Robert v. Robert W.

• Decision Date: 18 May 2011
• Citation: 19 A.3d 1181
• Parties: Robert and Joyce SOSKA, Appellantsv.Robert W. and Kelly BISHOP.
• Court: Pennsylvania Commonwealth Court

19 A.3d 1181

Robert and Joyce SOSKA, Appellants

v.Robert W. and Kelly BISHOP.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Nov. 5, 2010.Decided March 18, 2011.Reconsideration Denied May 18, 2011.

Walter T. Grabowski, Wilkes–Barre, for appellants.Mark W. Bufalino and John G. Dean, Wilkes–Barre, for appellees.BEFORE: COHN JUBELIRER, Judge, and LEAVITT, Judge, and BUTLER, Judge.OPINION BY Judge COHN JUBELIRER.

Robert and Joyce Soska (the Soskas) appeal the March 8, 2010, Order of the Court of Common Pleas of Luzerne County (trial court) that dismissed the Soskas' exceptions to the Report of the appointed Board of Viewers (Board). Pursuant to the act commonly known as the Private Road Act (Act),¹ the Board denied the Soskas' request that a private road be opened over the land of their neighbors, Robert W. and Kelly Bishop (the Bishops). The Soskas assert that the Board erred and/or abused its discretion by refusing to open a private road over the Bishops' property and showing bias and ill will against them.

The Soskas own 1.2 acres in Exeter Township, Luzerne County (the Property), which they acquired by two deeds. (Stipulations III and IV, Report at 4; Deed dated October 28, 1988, Soska Ex.–2, and Deed dated April 28, 1989, Soska Ex.–1, Reproduced Record (R.R.) at 173a–78a.) The Soskas and the Bishops stipulated that the Property abuts a public county road, Sutton Creek Road, and that there currently is a driveway on the Property that the Soskas use to access Sutton Creek Road from their residence. (Stipulation III, Report at 4.) The Bishops own approximately forty-three acres also in Exeter Township; on that property is a private road, Barn Road, which provides access from the Bishops' property to State Road 1031, more commonly referred to as Mt. Zion Road. (Stipulation V, Report at 4.) Barn Road runs 435.5 feet over the Bishops' property between Mt. Zion Road and the east-west boundary between the Bishops' property and the Property. (Stipulations VI and VIII, Report at 5.)

The Soskas filed a Petition for the Appointment of a Board of Viewers to Open a Private Road (Petition), requesting the appointment of a Board to evaluate opening a “right-of-way across the land of [the Bishops] over the existing roadway [Barn Road] or another roadway across [the Bishops'] lands.” (Petition ¶ 7, Supplemental Reproduced Record (S.R.R.) at 2b.) The Soskas asserted that there was a “clear necessity” for the right-of-way to provide them with “reasonable access to and from [Mt. Zion Road].” (Petition ¶ 7, S.R.R. at 2b.) The Soskas further claimed that they “have no reasonable or practical access from their land to Sutton Creek Road because of the terrain and elevation of their driveway extending from their residence to Sutton Creek Road.” (Stipulation VII, Report at 5; see also Petition ¶ 5, S.R.R. at 2b.) The trial court appointed the Board, which, after providing timely notice, met with the parties and their counsel in August 2005. Although the Board accepted brief statements from counsel, it did not take testimony or accept evidence. Soska v. Bishop, No. 711 C.D. 2006, 923 A.2d 1271 (Pa.Cmwlth. May 3, 2007), slip op. at 2 ( Soska I ). Thereafter, the Board performed an in-person inspection of the properties in question, which included viewing and walking over the Property, the Property's present access to Sutton Creek Road, and Barn Road. Id., slip op. at 4. After its site view, the Board determined that the Soskas had access, ingress and egress, to Sutton Creek Road from the Property and that the opening of a private road was not necessary. Id. Therefore, the Board recommended that the trial court dismiss the Petition with prejudice. Id. The Soskas filed exceptions with the trial court, which were denied, and filed an appeal with this Court claiming, inter alia, that the Board erred when it failed to conduct a formal hearing in August 2005 or take any evidence or testimony regarding the reasonableness of their request. Id. This Court agreed, vacated the Board's decision and remanded the matter for the Board to hold a proper hearing, at which the parties could present evidence and testimony in support of their positions. Id., slip op. at 8–9.

On remand, the Board held a hearing on April 25, 2008, during which the parties presented evidence. Noting that it was not bound by the formal Rules of Evidence, the Board afforded the parties wide latitude with regard to their evidentiary offerings.² Mr. Soska testified that, when they first purchased the Property, they used Barn Road to access Mt. Zion Road, believing that they had an easement to do so. Mr. Soska agreed that, when he first purchased the Property in 1988, he asked Mr. Bishop to sign an agreement allowing the Soskas to use Barn Road, and Mr. Bishop would not sign the agreement. The Soskas continued to use Barn Road until the Bishops blocked the road approximately three years after the Soskas began constructing their home in 1989. It was at that time, according to Mr. Soska, that his wife had the current driveway “cut” to allow access from the Soskas' residence to Sutton Creek Road. Mr. Soska indicated that he was away from home at that time and that his wife hired a neighbor to bulldoze the driveway to provide the Soskas access to Sutton Creek Road. Mr. Soska testified that he must use a four-wheel-drive pickup truck to get from his residence to Sutton Creek Road via the existing driveway. He explained that coal trucks and UPS will not deliver to the residence and that, at one time, an ambulance would not drive up the driveway. According to Mr. Soska it is extremely difficult to use the driveway in the wintertime, when he has to put chains on his four-wheel-drive truck, and that when there are heavy rains he must fill in dirt that has been washed away by the rain. Mr. Soska acknowledged that he has done nothing to improve the driveway, believing that it would be a waste of money, and that he has not investigated the cost to rehabilitate or improve the driveway since it was cut.

The Soskas also presented the testimony of Glenn Johnson, a professional land surveyor, and Thomas J. Reilly, a registered engineer with expertise in road work. Mr. Johnson testified that he surveyed and prepared a survey map of the Property. Mr. Johnson confirmed that Barn Road was located on the Bishops' property and indicated that he did not recall ever seeing the Soskas drive on their driveway. The Board admitted Mr. Johnson's survey map of the Property into evidence, but noted that the map incorrectly signified that the Soskas had the right to use Barn Road. Mr. Reilly stated that he was familiar with the Property, had driven up the driveway from Sutton Creek Road in his four-wheel-drive SUV, had performed studies of the driveway to determine its slope and curvature, and drafted a report based on those studies. Mr. Reilly indicated, both in his testimony and his report, that the driveway, in its present form, was constructed sometime after 1992. Mr. Reilly opined that the grades of the driveway, ranging from 2% to 30%, did not conform to the Exeter Township Subdivision Ordinance and Land Development Ordinance (Ordinance), which cannot exceed 10%. In Mr. Reilly's opinion, the driveway did not comply with “generally-accepted engineering standards” as to grades or curves. (N.T. at 48, R.R. at 50a.) Mr. Reilly took photographs of the driveway and of Barn Road, which were admitted into evidence.

The Soskas attempted to introduce the testimony of Alan J. Rosen, a real estate appraisal expert, who was going to testify regarding the cost of opening Barn Road for the Soskas' use. The Bishops objected to Mr. Rosen's testimony on the grounds that it went to the damages that would be incurred in the taking of the Bishops' property for an easement. The Bishops asserted that, because the procedures for opening a private road under the Act are bifurcated, in that the Board must first determine whether there is a necessity for the opening of a private road and the location of the road before damages can be determined, Mr. Rosen's testimony was not relevant, helpful, or allowable during the “necessity” stage of the proceedings. The Board agreed, sustained the Bishops' objection, and precluded Mr. Rosen from testifying.

Mr. Bishop testified that he and his wife own Barn Road and explained that he allowed the Soskas to use Barn Road while they were constructing their residence because heavy equipment and lumber trucks would be travelling from Mt. Zion Road to the Soska residence. According to Mr. Bishop, he allowed the Soskas to use Barn Road for about three years and then he blocked the road, noting that the Soskas continued to use Barn Road even after construction on their residence was completed. Mr. Bishop testified that, after he blocked Barn Road on several occasions, the Soskas had a neighbor “cut” the current driveway from the Soskas' residence to Sutton Creek Road. Mr. Bishop indicated that he has observed as many as four different vehicles using the driveway and stated that many homes in Exeter Township are built high above road level, which necessarily results in some steep driveways between residences and public roads.

The Bishops also offered the testimony of George M. Albert, a licensed civil engineer, who visited the Property and drafted a “schematic” describing a way in which the Soskas could rehabilitate or reconstruct their driveway. Mr. Albert recalled the elevation of the Property from Sutton Creek Road, indicating that the grade change between the residence and Sutton Creek Road was between eighty and ninety feet and that, gauging a straight line slope, the grade of the Property was approximately 40%. Mr. Albert opined that the driveway could be lengthened to achieve a flatter grade and that the cost for reconstructing or rehabilitating the driveway would be around $24,000. Mr. Albert, who works for the firm that serves as Exeter Township's engineer,...