*1 noted, as the would job availability, or Commonwealth a If the nullity. employer render the IRE essentially process there is job availability, also and prove earning power must streamlined, more no reason to avail itself of the simply efficient IRE process.
Thus, we hold that the Commonwealth Court on seeking that an reargument correctly employer concluded disability upon untimely reduce a claimant’s status based an IRE, without a in the amount of change compensation, earning power job availability. need not evidence of or present IRE, WCJ, if may The results of the found credible be sufficient in the claimant’s support change evidence status. disability
The decision of the Commonwealth Court is affirmed. SAYLOR, EAKIN, BAER, TODD, Justices McCAFFERY join and ORIE MELVIN the opinion. A.3d
In the Matter of OPENING a ROAD FOR the BENE- PRIVATE (A) Timothy Hickory FIT OF P. O’REILLY Over Lands of on (B) Association, Mary
the Green Homeowners Lou Sor- bara; Gregory Burgunder; Cain; E. Ann E. Don E. Cottrill & Cottrill, H/W; Joseph Cupples; Norma J. K. Bart Delcimmu- V. to; Dragoo Dragoo, H/W; Kimberly James D. & Linda J. M. Fonzi; Gallagher Gallagher, H/W; Brian J. & Diane J. Dolores Gembarosky; Gralish, Virginia Gralish, M. Michael J. Jr. & A. H/W; Battista; Hutchens; Jeffery James W. Michael Stein berg; George Wilmot, H/W; Harry E. Wilmot & Linda M. J. Jr.; Lee, Byrne; Greg Malone; Joseph John G. S. Mazur V. & Kelly Poole; Schaal, Patty H/W; L. Thomas C. Schaal & G. Regis Niederberger Niederberger, H/W; G. & Kathleen C. Gor Orr; Paul; don J. Anne M. Thomas G. Porter & Melinda D. Porter, H/W; Joseph Shrager; Alan Eric H. Rittenhouse & H/W; Rittenhouse, Cusick; Danielle L. Lisa A. Jerome Schmier Falo, H/W; Nancy Huff; Spatafore & Carol J. Marcus A. & Spatafore, H/W; Sprecher Kristin C. William E. & Marcellene H/W, Sprecher, Sprecher Agnes Sprecher, and Frank J. & E. Stanko; Estate; Squillante; H/W, M. Susan C. Life Roxanne Danhires, Stewart; Danhires & Linda R. Gerald W. Shanan Yeckley; Taylor; Zamer- H/W; Gregory M. Dennis M. Gianna Zamerski, H/W; Betty B. & Leon I. Williams ski & Noreen *2 Pitzer; Stabile; (Co-Trustees); Micheline William F. Williams Billingham; Zewe; Colangelo; Ro- Karen R. Franki R. Janet Quali- Hlutkowski; Knaus, Virginia Trustee L. Under man M. 2000; July 27, Agreement, Dated Residence Trust fied Personal Altenhof; Massella; Durkan; R. Donna Geraldine Joan L. H/W; Spence Ramamoorthy, Aprajita James E. Rathore Ravi& Malone; H/W; Kathy Tracy A. Spence, West Jennifer & F. Viola; Trust; Callery; Adrianna F. F. Koblitz The Judith Dorothy Wagner; Spitzig Living A. Trust and William D. Hanson; (Trustees); Marilyn Spitzig Spitzig Sandra Jean J. Skena; Moshin; L. Paul Amic & Carole C. Zaraf W. Thomas Showalter; Flannery Amic, H/W; Margaret James P. & M. H/W; Gertz; Flannery, L. Deborah A. Carol Schart- Patricia C. H/W; Udischas, ner; Donna M. A. C. John Udischas & Susan Bartko; Martin; Rapone Kyli & Roberta J. Frederick Sr. Solomon; H/W; Amy Rapone, Richard M. Buck & Barbara R. Eiler; Buck, H/W; Lipton; G. Catherine M. L. Arlene William Carroll; Fincke; Margaret Smith; M. Mildred K. David J. Testa, H/W; Cornellius; Joseph Margaret J. Can A. Testa & Lobdell, Salvini; Whitney A. Lobdell & Roberta S. dace L. Bauer, H/W; H/W; Teresa L. Anna Marie Ronald G. Bauer & Cimarolli; Palmer, H/W; Jor R. Palmer & Ann D. Rita V. Astorino, H/W; Frizlen; Joseph Marilyn J. J. Astorino & Patton; Gercher; Phillips; Naomi H. Thomas John A. Stan S. Hack, H/W; ley E. Melissa J. Schiller & A. Hack & Christine H/W; Schiller; Paulette Melanie M. John Schlater & Schlater Garrity, H/W; Garrity, Archie L. J. Patricia Ann William Sr. & Welter, H/W; McIntyre; Joseph Lis- Clarence Welter & Mara Fetrow, Dineen; Margaret Fetrow A. beth A. Charles W. & Dorothy H/W; Breakwell, Jocelyn M. Mark A. Petrozza & H/W; Brace, may appear. Petrozza, Jamie A. as their interests Association, Hickory Appeal et al. on the Green Homeowners Supreme Pennsylvania.
Argued Sept. 2009. Aug. 2010. Resubmitted Sept. Decided 2010. *3 Allen, L.L.P., Armstrong, P. Reed Esq., Thorp
Kevin & Association, et al. Hickory on the Homeowner’s Green curiae, Bashman, Esq., Howard for amicus Insti- Jonathan tute for Justice. se. Billingham, pro
Karen R. pro
Franki R. se. Colangelo, pro
Brian J. se. Gallagher,
Diane se. Gallagher, pro J. Huff,
Nancy J. se. pro Lasker, L. se. pro
Jarrett Marcovitz,
Marilyn pro se. Marcovitz, pro
Richard se. II, P. Bresnahan Dwight Ferguson, Esq., David William *4 Bresnahan, P. Dwyer, Esq., Esq., John Francis William Esq., Hollinshead, Mendelson, Nixon, P.C., Bresnahan Pitts- & O’Reilly, Timothy P. burgh, Orr, se. pro
Gordon J. Roston, se.
Kimberly pro Salvini, se. pro
Candace Stanko, pro
Susan C. se. se.
Gregory Taylor, pro SAYLOR, EAKIN, BAER, TODD, CASTILLE, C.J., McCAFFERY, MELVIN, ORIE JJ.
OPINION Justice SAYLOR.
In review the Court’s deter- appeal, we Commonwealth not mination that the Private Road Act does private property. effect an unconstitutional Act,1 commonly the law known as the Private Road Under of a to property permitted petition the owner landlocked court of common for the of a board of pleas appointment necessity viewers to evaluate the of a road to connect private thoroughfare such with the nearest or property way leading public thoroughfare. to a See 36 P.S. 2731. a Upon finding necessity, lay board will out road to cause the least to damage private property. See 36 § 1785. The Act requires P.S. owner of the landlocked to over whose property pay damages persons property built; new road is the owner is then afforded exclusive use of §§ the road. See 36 P.S. 2761.
Appellee, Timothy O’Reilly, property Fay- owns a in South which, relates, ette Township, Allegheny County, he was land- locked as a result of the Commonwealth’s exercise of eminent domain to build Interstate In February 79. Appellee proceedings commenced under the Act to open private road Drive, connect his a public Clubview road “Hickory within the on the development. Green” residential proposed The road would traverse by Mary land owned Lou (“Sorbara”) Sorbara and the on the Hickory Green Home- Green”). owners Association on (“Hickory Appellants, Sorbara, Green, Hickory on the and its constituent property owners, preliminary objections filed that the Act contending facilitates an unconstitutional taking for a private purpose violation of the Fifth Amendment to the 13, 1836, (as 2731-2891) §§ 1. Act of June P.L. 551 amended 36 P.S. (the "PRA”). "Act” or the
285 I, 1 and and Article Sections of the United States Constitution Pennsylvania.2 10 of the Constitution objections, Appellants’ court overruled pleas The common the constitutional- upholding a of decisions referencing history (O’Reilly), Rd. Opening the PRA. In re a Private ity of 2007).3 (C.P. 26, 04-2972, It Allegheny, No. at 19 Oct. slip. op. note, however, potential two recent decisions highlighting did In re associated with the Act. See implications constitutional (Zeafla), a Private Rd. 405 Pa.Su- Laying Opening Out (1991) 298, 343, 309, a per. (“[Ajllowing private 592 A.2d 349 private for a power citizen to exercise the eminent domain In re Forres- may implications.”); raise constitutional purpose (2003) ter, 365, 370-71, 102, (plurality) Pa. 836 A.2d 105-06 575 (“[T]he the Act does not pursuant of a road opening pondered The court accomplish public purpose[.]”). of Forrester’s conclusion import plurality constitutional interests, No. 04- only private O’Reilly, the Act serves see at 19 “Does slip. op. (inquiring, pronouncement [the automatically invali- public purpose] the Act does not serve date the PRA for all but did not address the purposes?”), further, matter because Forrester reasoning expressly Act, it constitutionality disclaimed consideration of the authority deeming was bound the Act to be constitu- prior tional. pro-
2. The Fifth Amendment
to the Constitution of the United States
vides,
part,
in relevant
shall
be taken for
"[N]or
Const,
use,
just compensation.”
without
U.S.
amend. V.
reads,
I,
Article
Section 1 of the Constitution of
"All men
rights, among
... have certain inherent and indefeasible
which are
acquiring, possessing
protecting property[.]”
those ... of
Pa.
Const,
I, §
art.
1.
I,
Pennsylvania provides,
Article
Section 10 of the Constitution of
part,
applied
relevant
shall
be taken or
"[N]or
use,
authority
just compensation
without
of law and without
Const,
I,
being
first made or secured.” Pa.
art.
10.
Rd.,
Rd.,
(1851);
Pocopson
Twp.
3. See In re
On permissive interlocutory appeal,
the Commonwealth
Court affirmed in a divided en banc opinion. See In re
Opening
(Pa.Cmwlth.
a Private Rd.
57
(O’Reilly),
A.2d
2008) (en banc). The majority
that the
opined
constitutionality
of the PRA
see,
had been settled in Pennsylvania,
e.g., Wad
(1877),
dell’s
Appeal,
Pa. 90
until recent decisions in Kelo v.
London,
City
469,
New
545 U.S.
125 S.Ct.
of
(2005),
L.Ed.2d 439
and Middletown Township v. Lands of
Stone,
(2007),
595 Pa.
The en banc if the As- majority questioned, why, General *7 sembly in the Mills Act that recognized taking pri- Constitution a landowner from prohibited riparian dam, vate property without the owner’s consent to construct require it did not consent to take to build a PRA, under the which private only year road was enacted one answer, according majority, earlier. The to the was a 1700 Legislature enactment the Pre-Commonwealth Provincial of land would be an providing every purchaser granted additional six of land free of for the of percent charge building they roads as became public necessary.
The that the majority reasoned Commonwealth continued this and that were practice, private properly roads formed from the six as percent, they integral development were system of the of roads in the Commonwealth. id. at 66 n. See Act, 91, (quoting 13 Section 91 of the Public Lands 64 P.S. provides grants which that land for New Purchase Lands— purchased land from the Native Americans at Fort in Stanwix 1784 and at Fort McIntosh in 1785—should “the usual include nia[;] private ways public ... with connection of these [I]t resort, highways, places necessary together public or with of with the them, implied right public going or license of the to use at least in out, much, premises person laying quite and from the of the them as more, rights, purely if not as the consideration of individual that have judicial recognition constitutionality. won for these acts of 94).
O’Reilly,
(quoting
Appeal,
288 centum for re- per highways”) (emphasis
allowance of six
moved);
at
the 1735
to the
(referencing
“Supplement
id.
66-67
for
and Public Roads Act” for
Laying
Highways
Law
Out
roads).
equal
opening
public
private
its
treatment
from
majority
The
further
relied on two decisions
Court,
Curwen,
509,
v.
6 Binn.
Based on this
the en banc
sua
that,
Commonwealth,
sponte,
beginning
from the
all
lands in
were
a
percent
encumbered with
six
burden for the
incorporeal
building
public
system,
of a
road
held, therefore,
which included
roads.
It
that
private
the
creation of
roads under the PRA did
private
not constitute “a
in
taking
ordinary
majority
sense.” Id. at 72. The
finally
reasoned, even if it were to conduct a
takings
traditional
constitutional,
analysis, it would find the Act to be
as the PRA
fulfills a
public purpose notwithstanding
private
—
property
petitioned
private
gains—
owner who
for the
road
in
“otherwise[,]
Pennsylva-
swaths of land
inaccessible
because
Id.
unproductive.”
remain fallow and
nia would
in
opinion,
the dissenting
authored
Judge Smith-Ribner
reasoning
that the
disagreed
majority’s
which she
with
inacces-
from the
of otherwise
garnered
opening
benefit
public
a
under the PRA constitutional.
taking
sible land rendered
Rather,
plurality’s
the dissent credited the Forrester
determi-
“primary
paramount
nation that the
was not the
thus,
reasoned,
and,
the Act
it
beneficiary”
taking
of a
under
at
Act was unconstitutional.
954 A.2d
74-76
O’Reilly,
(internal
J.,
(Smith-Ribner,
and citation
dissenting)
quotations
omitted).
for its
support
posi-
The dissent derived additional
163, in
the Michigan
tion from
626 N.W.2d at
which
Tolksdorf,
road act to
Michigan’s analogous private
held
Supreme Court
private
because “it
authorize^]
be unconstitutional
Id. at 169.
private purpose.”
for a
predominantly
discussed
heavily
Tolksdorf,
on
the dissent
Lastly, relying
by necessity
the fundamental distinction between easements
As the common
by private
and interests created
road acts.
noted,
Michigan
Appeals McKeigh
court
Court of
pleas
an,
road acts
suggested
private
593 N.W.2d at
In
the law of
easements.
overrul
merely supplement
private
reasoned
McKeighan,
Michigan Supreme
ing
easements,
act
private
unlike
under a
road
private
proceedings
private right-of-way—
allow land to be burdened —with a
in interest
predecessor
without
the owner or the owner’s
Presently, Appellants because it facilitates the transfer of property unconstitutional private property from one owner to another owner for a use. For reference support, they holdings that, from this Court establishing constitutionally, private use, only can be taken to serve a which requires that benefit the primarily public. See Appellants (citing Brief for at 13 In re Certain Parcels of Lancaster, 295, 301, Land in First 420 Pa. Ward 216 A.2d of (1966) (“First ”); Stone, 772 Lands Ward Lancaster of 337). 595 Pa. at at Appellants 939 A.2d further note a litany continuing challenges to the PRA. See id. at 6 law, its historical in (“Despite presence constitutionality of the Private Road Act has been in doubt most of the history.”). Commonwealth’s
While expressing the criticisms are “of almost equal PRA, vintage” as the Appellants draw attention to Pocopson “ Road, the only case in which this ‘squarely Court was ” presented’ with a constitutional to the Act. at challenge Id. 14. Appellants stress that this single-paragraph per Court’s case, curiam in that opinion which discerned that the simply “ ” substance,’ constitutional claim ‘an appearance lacked and which was itself deemed insubstantial the Forrester has plurality, led “confusion and uncertainty.” Id. at 14-15 (citation omitted). Moreover, Appellants highlight that only case offered appellee Pocopson Road in support Thomas, of the constitutionality of the PRA was v. Harvey (Pa.1840), Watts 63 a now-discredited decision wherein this Court held that the Constitution prohibit did not private property for a use. See Brief for at Appellant 15 n.4. Forrester,
Considering
Appellants emphasize
although
the plurality declined
directly
address the constitutionality
Act,
in concluding it did not satisfy
purpose, it “effectively
the Private Road Act
delineate[d]
as
Forrester,
unconstitutional.”
Id. at 18 (quoting
575 Pa. at
J.,
(Saylor,
A.2d
concurring)). Appellants addition-
note
ally
prior observations from this
confirming
For-
*10
“taking
the PRA is a
of
taking
indication that a
under
Tester’s
use.” In re Rd. in Plum Creek
private
for
private property
(“Plum
(1885)
”);
544, 548,
1 A.
Creek
110 Pa.
Twp.,
(“[J]ust
n.7
as the Forrester
Brief for
at 18
Appellants
see
Court,
rejected the fiction that a
twenty-first century
in the
benefit,
too
Act
is for the
so
did
taking
public
Private Road
century.”).
in the nineteenth
the Plum Creek Court
According Appellants,
Supreme
the United States
Court’s
private property
decision in Kelo reaffirmed the notion that
private property
cannot be taken for the benefit of another
represents
owner.5
insist Lands
Stone
Appellants
of
Kelo,
that
synthesis
reasoning
requirement
Court’s
of
that its
there
“an
that demonstrates ...
that an
intelligent plan
be
the true
of the
public purpose
goal
taking,”
authorized
is
“carefully
reflects this
that the
considered
recognition
Court’s
to the
deci-
development plan”
integral
Supreme
was
Court’s
Stone,
617, 621,
sion in Kelo.
Lands
Appellants applying this standard present plainly case illustrates that the PRA is unconstitution- al: seizure of
[Appellee’s] proposed
[Appellants’] private prop-
erty pursuant to the Private Road Act is
an
clearly
attempt
to take
for a
The
private property
private
“primary
use.
and
paramount beneficiary”
proposed taking indisput-
ably
[Appellee]. Any
would be
benefits to the
would
public
Kelo,
477-78,
(‘‘[T]he City
5. See
be tenuous not contend otherwise. plausibly, could Additionally, along at 23. Appellants Appellants, Brief for Justice, highlight Amicus Institute for a number of with finding respective private decisions from other states their road acts to be unconstitutional.6 merely that the Act is
Addressing
argument
police
not involve a
power regulation
property,
does
that, if
explain
were to succeed
Appellants
Appellee
action, they
many
PRA
would lose
of the benefits of property
Moreover,
ownership.
Appellee
go
would be able
come and
own,
pleased
present,
as he
over
he does not
*11
and from which
can
Appellants
lawfully
now
exclude him.
contend,
further
They
Pennsylvania
under both federal and
law,
constitutional
that a physical
permanent
invasion and
occupation
property,
of
such as that which would attend the
road,
of a
of
building
property.
effects
See
v. Teleprompter
Loretto
Manhattan CATV
Corp.,
U.S.
(1982) (“[A]
419, 421,
3164, 3168,
102 S.Ct.
Regarding the
majority opinion,
Commonwealth Court
Ap-
that,
pellants allege
sponte concluding
sua
that all land in
Pennsylvania is encumbered
aby
percent
six
incorporeal
roads,
burden for the
building
the court has rendered
takings under the Private Road Act
from
exempt
constitution-
al
in the nature
scrutiny
use” standard.
“public
See
(“[T]he
Brief
Appellants
for
at 27
Commonwealth Court’s
assertion that
‘incorporeal
its
burden’ on all Pennsylvania
property should
and
trump
nullify
‘public
traditional
use’
scrutiny under the federal and Pennsylvania constitutions is
See,
163;
e.g., Tolksdorf,
6.
626 N.W.2d at
Clark v. Bd.
Comm’rs
(1904);
County,
Waggoner’s
Mitchell
69 Kan.
As concerns the existence note, first, that They of challenges. offer a series Appellants their retained land for Pennsylvania landowners in original use; conveyed, never there was as this land was personal burden. Fur- incorporeal an to attach an opportunity never thermore, Pennsylvania Legislature Independence, after of a of these lands without mention ownership confirmed the Likewise, § 4. allowance. 64 P.S. percent six road See land were pre-Independence grants Legislature provided Act, to be to Section 39 of the Public Lands patented pursuant and unconditional which bestows with “absolute grantees whatsoever, ... to all intents and clear property, purposes whatsoever, charge and exonerated or encumbrance any from the debts of said owner.” Brief for at 25 excepting Appellants 39) (quoting (emphasis original). 64 P.S. time,
Lastly, Appellants aver at one the southwest issue, Pennsylvania, corner of the land at was em- including broiled in a land with the dispute Virginia. Commonwealth Bingham id. at (citing Munger, Donna History Land 133-35 Records —A Guide Research Resources, (Scholarly Inc. In resolving dispute, 1991)). persons Virginia who held warrants for lands determined to be *12 in Pennsylvania were allowed to submit those warrants to the Office, them, Land which accept provided would conflicting superior that there was not a claim to the land. Appellants failing criticize the Commonwealth Court for to a any percent consider whether of these warrants included six allowance for roads. which is particular respect Appellants’ property,
With rivers, the Allegheny Appellants located south of the Ohio discount the reliance on 91 of Commonwealth Court’s Section Act, their claiming the Public Lands land was never E. subject Appendix to Section 91. See id. at 26 & See also (“This § 91 n.2 act refers to the two made of purchases 64 P.S. Indians, at in and at Fort McIntosh in the Fort Stanwix 1784
1785.”). maintain that their which was Appellants property, 1768, of from the Native Americans in part purchased land was, instead, 70 of the granted pursuant to Sections Act, laws, §§ Public Lands 61-70. These which make P.S. roads, no mention of a six allowance for further percent alia, under, patented establish that the land is to be inter Act, 39 of the Public Lands 64 P.S. 64 & supra. Section See n.l.
Moreover,
the
Appellants dispute
Commonwealth Court’s
McClenachan,
of
that this
dif
application
highlighting
Court
case,
ferentiated that
which
a condemnee’s
type
addressed
right to receive
for
lands taken for
compensation
unimproved
road,
involving
from one
lands taken to form a private
road.
Brief for
at 28
...
Appellants
(“[Distinguishing
See
takings for
roads from
‘takings
private property for
use,’
private
“wholly
which are
different’ and ‘prima facie
”)
Creek,
in
(quoting,
part, Plum
110 Pa. at
unconstitutional.]’
433).
1 A. at
Additionally,
Appellants challenge
Commonwealth Court’s reference to
purportedly
statements
made
this
in
by
Court Waddell’s
84 Pa. at
Appeal,
Breckbill, 3 Dall. at
Appellants point
496.
out that the Com
monwealth Court’s
from
quotation
Appeal,
Waddell’s
see su
pra note which it attributed to this Court and which it used
to support its initial conclusion
concerning
settled nature
PRA,
of the constitutionality
actually
was
written
by
trial
in
29-30;
court
that case.
Brief for Appellants
at
Furthermore,
O’Reilly,
A.2d
61.
note that
Appellants
error,
appellants
Forrester committed the same
which a
plurality of this
expressly
Court
addressed in its opinion.7
Breckbill,
With
respect
Appellants emphasize that
Court decided the case on a procedural
issue and never
merits;
reached the
the Commonwealth
thus
mistaken-
Forrester,
368-69,
("[Appellants]
7. See
295
in the
arguments
to this
the defendants’
ly attributed
Breckbill,
Appellee responds tracing PRA for sistent refusal to find the unconstitutional. See Brief history Pennsyl- at 12 “an extensive Appellee (referencing in jurisprudence every vania which has declined on occasion three to find the seventy year history PRA’s one hundred and which has offered at rational statute unconstitutional least PRA”). that public purposes Appellee explains served expressly use is not or Penn- prohibited by Constitutions United States sylvania, mutually nor is it exclusive of a to serve a Indeed, he public purpose. opening claims that the of a road property “necessarily impli- to access otherwise landlocked important public cates interests.” Id. at 1. For support, Newman’s in Appellee points dissenting opinion Justice Forrester, which concluded that the Act essential provided benefits, recent changes to the Eminent Domain (the “EDC”) Kelo, which, Code in the wake of Appellee Forrester, argues, confirm Justice Newman’s conclusion. See (Newman, J., Pa. at 836 A.2d dissenting); §§ Believing Pa.C.S. 101-1106. Kelo stands for the construed, should be proposition “public purpose” broadly legislative on Kelo’s deference to in the relying judgments context of focuses on defining public purpose, Appellee 2 of the Section EDC:
[Notwithstanding [Pennsylvania] Legislature’s intent limit the use of eminent domain “to take severely (26 use it for private enterprise,” order to *14 nevertheless, 204(a)), expressly § the Legislature Pa.C.S. the use of eminent domain in cases where “the permitted ... to a provide is used or to be used access property for a which would be other- public thoroughfare property (26 204(b)(9)). inaccessible[.]” wise Pa.C.S.
Brief for at 17. Appellee that the not maintaining govern proceed-
While EDC does 204(b)(9) PRA, avers that ings Appellee under Section nonetheless demonstrates that the Act serves a public purpose is, therefore, Additionally, Appellee constitutional. claims 204(b)(9) that Section evinces the Legislature’s abrogate intent Forrester’s intimation that “the PRA is notes, devoid of Id. at 20. more- public purpose.” Appellee over, 204(b)(9) that especially applicable Section in cases one, present such as the where Appellee’s original means of the property extinguished access to was as a result of the Commonwealth’s exercise of eminent domain to build Inter- state 79. rejects
Although Appellee plurality’s the Forrester conclu sion that the PRA does not serve a public purpose, he nevertheless relies on its determination that the Act does not involve a eminent domain. Appellee thus contends that Appellants’ reliance on eminent domain cases is mis placed. Specifically, “primary he claims that the and para mount beneficiary” standard for eminent evaluating domain takings articulated in Lands inapplicable. Stone is He avers, instead, that the PRA involves a regulation reasonable of property usage derived from the police Commonwealth’s power. In supportive reasoning, he compares present case with Miller & Paving, Incorporated Wrightstown Son v. (1982), 499 Pa.
Township, A.2d 1002 in which this local upheld zoning regulation that increased the setback to “ applicable quarrying operations, rejecting claims ” effectively that it ‘confiscated’ over two million tons of instead, stone and finding, that it was a exercise of proper (citation omitted). Brief for police power. Appellee at 29-30 Distinguishing police power the exercise of from that emi domain, nent that Appellee explains police power controls the whereas, owner, public good; for the use of property from the property eminent domain involves the (citing Appeal, id. at 34 White’s owner for a use. See (1926)). 259, 264, 134 A. 287 Pa. the Act does not argument
In furtherance of his domain, analogizes Appellee an exercise of eminent constitute rights, under the Act to easement provided the rights of land- the PRA the owner asserting simply provides for the to obtain an easement ability locked He main- thoroughfare. accessing public limited purpose tains, or by necessity his to obtain an easement given inability *15 private could fashion a cause Legislature that the prescription, PRA, action, its constitu- by as that created within such him unavailable relief. authority, tional to afford otherwise Finally, Appellee briefly summarizes Commonwealth provides that it addition- analysis, reasoning Court’s historical al for the of the PRA. support validity above, opined,
As discussed Commonwealth subject that all land in is to an sponte, sua burden, a conclusion derived from a incorporeal pre-Constitu six provision by Legislature adding percent tion Provincial necessary. roads as became grants they to land 65; 954 A.2d at Brief for at 25-28. For O’Reilly, Appellants the court referenced 91 of the statutory support, Section Act, Public Lands which authorizes land “with the grants per highways.” usual allowance of six centum for 64 P.S. however, 91, by § its Appellants highlight, 91. As Section terms, only to land from the Native applies purchased Ameri in 1784 Fort McIntosh in 1785. cans at Fort Stanwix and at Notably, See 64 P.S. 91 n.2. the Commonwealth Court neither land was within the lands Appellants’ established how, 91, by Section nor demonstrated notwithstand governed limitation, 91’s it has state ing express geographical Section wide relevance. as further Sections 61 to
Additionally, Appellants develop, grants Lands Act also land governed 70 of the Public 91, moreover, contain no Pennsylvania; they unlike Section assertion, for additional land for roads. provision Appellants’ uncontested that the land at issue was Appellee, granted rather pursuant Sections 61 to than Section ostensi- bly undermines the Commonwealth Court’s determination subject to an Appellants’ property incorporeal is burden. appears by relying exclusively It on while Section limitations, its neglecting sup- Commonwealth Court has an which plied incorporeal-burden analysis incomplete at the least, if very not untenable. As we can no simply glean for the crafted support position Commonwealth Court that an burden attends we incorporeal Appellants’ property, are unable to credit its conclusion that a of that property under the PRA “is not a in the ordinary sense.” at 72. O’Reilly, A.2d
Relatedly,
reject
we
that the
Appellee’s argument
creation
but, instead,
of a private road under the Act is not a taking,
embodies
regulation
property usage
reasonable
or provision
easement,
of an otherwise
private
unavailable
both exercised
under the
police power.
Commonwealth’s
See Brief for Appel-
observe,
lee at 25-26. As Appellants correctly
irrespective
rubric,
the police-powers
physical
invasion and permanent
occupation
such as that which
property,
would be
Act,
accomplished by
creation of a
road under the
*16
Loretto,
a taking.
421,
3168;
is
458
See
U.S. at
102
S.Ct.
Creek,
548,
Plum
Likewise, we are unconvinced Appellee’s contention that the Act does not effect taking by and, eminent domain as such, it inappropriate to evaluate under proceedings the Act to pursuant eminent domain Brief principles. See for Appel- lee at 23. In advancing argument, this relies on Appellee Forrester’s plurality determination “as the of a opening road private pursuant to the PRA does not accomplish [sic] it public purpose, cannot be seen as an exercise the power
299 Forrester, 370-71, Pa. at (quoting eminent domain.” Id. 575 105-06) Court, original). 836 A.2d at This how- (emphasis ever, that, absent a valid exercise of the recognized power has domain, of eminent of the to invest power Legislature
t is not within the corporation right either an individual or a with the to take the use property private of a owner for of some if corporation, provided other individual or even a method is what be ascertaining damages paying for shall just deemed compensation. Co., 305, 309-10,
Phila. v. York 241 Pa. 88 A. Clay Clay Co. (1913). 487, 16, Appeal, See also In re Lance’s 55 Pa. (1866).8 -, 7489, reason, *7 For this the rationale WL not offer a plurality advanced Forrester does constitu- firm cause. tionally Appellee’s foundation vindicate
The
of the
and Pennsylva
Constitutions
United States
only
nia mandate that
can
be taken to serve a
private property
5;
§ 102.
public purpose.
supra
note
accord 26 Pa.C.S.
that, to
satisfy
obligation,
This Court has maintained
this
must be the
of the
public
primary
paramount beneficiary
Stone,
617,
Lands
Although
petitioned
who
road,
road
certainly gains
opening
from
the public gains because otherwise inaccessible swaths of
unproductive,
land in
would remain fallow and
farm,
residences,
log
whether to
timber or
for
making
virtually
contributing
land
worthless and not
to commerce
Wilkes-Barre,
555, 565,
City
generally
8. See
Balent v.
542 Pa.
(1995) ("Eminent
power
A.2d
take
domain is the
use.”);
Co.,
Clay
Phila.
Perhaps compelling lie in the interrelation between the Com- pellee purported monwealth’s initial exercise of its eminent domain power an highway apparently construct interstate isolated —which from access to roads—and Appellee’s property Appel- subsequent lee’s invocation of the PRA to restore access. In taken, however, light appeal potentially course this has (for relevant details whether use of the example, Appellee’s PRA to restore access to the was contemplated it, the time the Commonwealth removed and whether Appel- lee promptitude acted with reasonable such that the two be takings reasonably might regarded as an interconnected events) course of are not well before this developed Court. Accordingly, we will return the matter to the Commonwealth Court to consider this and matters which have any remaining judicial been raised and review and which preserved may bear on whether the as the fairly regarded primary paramount beneficiary.
The dissent would take this to reaffirm opportunity Pocop- addressing shortcomings son Road without asserted including that decision’s: lack of a coherent ratio- Appellants, nale; case; reliance on a apparent incompati- discredited bility takings with the standard for which this Court prevailing Further, has otherwise uniformly applied. indicated is be
301 Appellants’ overt consideration to gives also no the dissent limitations of the Kelo the internal arguments concerning easements Finally, implied the dissent offers decision. takings to Private Road Act without necessity analogue as an distinction, Smith- highlighted by Judge attending to dissent, involvement of a common from the arising Ribner’s in scenarios. See way-of-necessity owner in the chain of title (Smith-Ribner, J., dissenting). 77 O’Reilly, 954 A.2d at appellate the court of original We have concluded instance, in first jurisdiction has the responsibility, arguments, and colorable and Appellants’ preserved review should be decision to affirm the of their any view, position In our the dissent’s closely reasoned. baldly here —because Road Pocopson there are no difficulties there are none—is an unsustainable one.9 said The order of the is vacated and the Commonwealth Court with this matter is remanded for further review consistent opinion. TODD,
Justice Justice McCAFFERY and Justice ORIE join MELVIN the opinion. EAKIN in which dissenting opinion
Justice files a Chief join. BAER Justice CASTILLE and Justice EAKIN. Justice
DISSENTING OPINION
I
from the
as the
respectfully
majority’s opinion,
dissent
(Act)
constitutionality of the Private Road Act
is well settled.1
explained
signifi-
complains
9. The dissent also
that we have not
degree
cance
of a
of interconnectedness
between
portion
Appellants’ property
and the construction of an interstate
believe, however,
highway.
public fairly
in
We
terms of whether the
regarded
beneficiary,
may
primary
paramount
such
be
as
import
apparent
should be
to the Commonwealth Court.
Road,
(1851)
Pocopson
(rejecting
1.
16 Pa.
constitutional
See In Re:
Road,
Act);
challenge
Township
to Private Road
In Re: Dickinson
(1903)
Pa.Super.
(rejecting
contention that Private Road Act is
unconstitutional);
Township,
In Re: Private Road in East Rockhill
Bucks
the Act’s
Despite
173-year history
opportuni-
numerous
ties to review its
has never
constitutionality,
deter-
unconstitutional,
mined the Act to be
nor
the Legislature
has
Indeed,
indicated a desire to
it.
as
repeal
Appellee argues,
seems to have
Legislature
recently bolstered the Act’s
relief to a landlocked landowner. After
purpose
providing
Supreme
City
United States
Court’s decision Kelo v.
London,
New
545 U.S.
125 S.Ct.
By simply granting a private right action to an otherwise landowner, landlocked the Act is akin to the common law doctrine of by easement which necessity, has been used long to allow a landlocked landowner to access a highway over another’s land when no other relief is available. Although an by necessity easement typically result of land which has been owner, here, severed its original Appellee’s land was severed Commonwealth in order to Therefore, facilitate construction of Interstate 79. without the Act, Appellee would have no other relief to gain access to the property, leaving unproductive it result which is not in the —a public’s interest.
Furthermore,
I
justification
believe the majority’s
to re-
based,
mand is
in part, upon irrelevant considerations. The
Pa.,
County,
(1994) (confirming
165 Pa.Cmwlth.
Chief Justice CASTILLE dissenting opinion.
5 A.3d260 BRANDON, Appellant Curtis
v. Jeffrey BEARD, Ph.D., Secretary, Varner, A. Chief Griev Dorina Officer, Kerestes, Dunkle, Superintendent,
ance John Michael *20 Lieutenant, Meyers, Sergeant, Pennsylvania Department of Corrections, al., Appellees. et
Supreme Pennsylvania. Court of
Oct. 2010. ORDER PER CURIAM. NOW, October, 2009,
AND day this 19th Order AFFIRMED. Commonwealth Court is