the exceptions filed by Pencil to the Board of Viewers ...

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carla J. Koontz and Susan C. :
Waugerman, Executrices of The : No. 1237 C.D. 2012
Estate of R. Carl Pencil, : Argued: September 12, 2013
a/k/a Richard Carl Pencil, :
:
Appellants :
:
v. :
:
William J. Baer, III and Susan B. :
Baer, his wife, Nelson Lee Miller and :
Amy J. Miller, his wife, Sarah :
Nichole Hocker, Ryan Christopher :
Hocker, and George J. Shannon and :
Donna M. Shannon, his wife :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN FILED: October 7, 2013

Carla J. Koontz and Susan C. Waugerman, Executrices of The Estate of
R. Carl Pencil, a/k/a Richard Carl Pencil (Pencil)1 appeal from the May 22, 2012,
order of the Bedford County Court of Common Pleas (trial court), which dismissed
the exceptions filed by Pencil to the Board of Viewers’ (Viewers) report, confirmed
the report and, among other things, directed the Viewers to supplement their report
within 60 days with a plot or draft of the private road that they opened as required by

1 Pencil passed away during the course of this litigation.

section 3 of the Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §1831 (Act).2
We vacate and remand.

Pencil was the owner of rural land in Bedford County. For at least 20
years, with the permission of the adjoining landowners, Pencil used a private road
(Proposed Pencil Road) to reach his remote property. Upon realizing that he would
need a private right-of-way of ingress and egress over the adjoining neighbors’ land
in order to sell the property, Pencil petitioned the trial court, naming his neighbors as
defendants, for a private road/right-of-way under section 11 of the Act, 36 P.S.
§2731. None of the defendants filed any pleadings or objections and the Viewers
were convened.

Before the Viewers, Pencil introduced a draft of the Proposed Pencil
Road and presented testimony. The Viewers attempted to view the Proposed Pencil
Road, but could not see its entirety due to a locked gate. The Proposed Pencil Road
ran though neighboring properties, including a portion of property owned by
Appellees William J. Baer, III and Susan B. Baer, his wife (Baer).

2 Section 3 of the Act states in pertinent part as follows:

The viewers as aforesaid, shall make report at the next term of
the said court, and in the said report shall state particularly: first, who
of them were present at the view; second, whether they were severally
sworn or affirmed; third whether the road desired be necessary for a
public or private road; they shall also annex and return to the court a
plot or draft thereof, stating the courses and distances, and noting
briefly the improvements through which it may pass . . . .

36 P.S. §1831.

2

The Viewers found the necessity for a private road pursuant to section
11 of the Act, 36 P.S. §2731. However, the Viewers did not accept the Proposed
Pencil Road, which Pencil has used for the past 20 years. Instead, the Viewers issued
a report that granted Pencil a right-of-way through the center of the Baer’s property,
on an old road previously used by Baer for logging (Baer Logging Road). The
Proposed Pencil Road includes a portion of the Baer Logging Road. A draft of the
Baer Logging Road had not been presented to the Viewers, nor was it attached to
their report. Pencil appealed to the trial court, which affirmed the decision of the
Viewers, but ordered the Viewers to attach a draft of the Baer Logging Road within
60 days. Pencil appealed to this court.3

Pencil and Baer agree that the Viewers’ decision should be set aside
because the Viewers never actually viewed the property they chose to utilize for the
right-of-way. We agree.

We initially note that the Viewers have exclusive discretion to determine
where a private road will be located. Holtzman v. Etzweiler, 760 A.2d 1195, 1197
(Pa. Cmwlth. 2000).

The location of the road is wholly within the province of the
viewers. Viewers go upon the premises of a proposed road
and observe all the physical aspects of the land and are far

3 Our review of a board of viewers’ decision is limited to ascertaining the validity of the
viewers’ jurisdiction, the regularity of the proceedings, questions of law, and whether the viewers
abused their discretion. Soska v. Bishop, 19 A.3d 1181, 1187 n.4 (Pa. Cmwlth. 2011). An abuse of
discretion occurs when the viewers’ decision is manifestly unreasonable; shows partiality,
prejudice, bias or ill-will; or is clearly erroneous due to lack of support. Id.

3

better able to select a location than any judges sitting in the
courthouse. The statute gives the viewers power to locate
the road.

Id. (citation omitted.) However, this discretion is premised upon the Viewers actually
viewing the proposed location of the road. Section 2 of the Act, 36 P.S. §1785,
provides that the Viewers “shall view such ground” that is the subject of the petition
for a right-of-way.

In accordance with section 2 of the Act, 36 P.S. §1785, in laying out the
road, the Viewers must consider four factors: shortest distance, best ground over
which the private roadway is to be opened, the least injury to the private property,
and the location proposed by the petitioner. 36 P.S. §1785; In re Laying Out and
Opening a Private Road (Zeafla), 592 A.2d 343, 347 n.4 (Pa. Super. 1991); see also
Reber v. Tschudy, 824 A.2d 378, 386 (Pa. Cmwlth. 2003).

Here, there are two rights-of-way at issue: the Proposed Pencil Road and
the Baer Logging Road. The Viewers did not view all, or even a majority, of the land
prior to making their determination. The record reflects that a gate was locked,
precluding the Viewers from seeing a portion of the Proposed Pencil Road.

On the date of the view, on attempting to view the road
proposed by Petitioner, the view was frustrated due to none
of the parties having a key to a gate that was across the
proposed private road. The road proposed by [Pencil], and
testified to as his access to his property, was blocked by a
locked gate, to which [Pencil] did not have a key.

(Viewers’ Report, at 2.) In addition, the Viewers saw only a small three-eighths of a
mile-long portion of the Baer Logging Road. The Viewers never saw the remaining

4

portion of the Baer Logging Road, which the Viewers ultimately opened as the
private road. Further, the Baer Logging Road was never formally offered by anyone
as a location for the requested right-of-way.

The Viewers never viewed the portion of the Baer Logging Road leading
from Township Road 545 to the existing easement being used by Pencil, nor did they
have a survey of the Baer Logging Road to refer to. Thus, the Viewers could not
possibly have determined which road was the shortest distance, the best ground, or
would result in the least damage. Therefore, the Viewers failed to give full
consideration to the required legal analysis and abused their discretion.

Accordingly, we vacate the trial court’s order and remand the matter to
the trial court with directions to remand to the Viewers to render a new determination
after viewing the proposed right-of-way in its entirety.

___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge

5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carla J. Koontz and Susan C. :
Waugerman, Executrices of The : No. 1237 C.D. 2012
Estate of R. Carl Pencil, :
a/k/a Richard Carl Pencil, :
:
Appellants :
:
v. :
:
William J. Baer, III and Susan B. :
Baer, his wife, Nelson Lee Miller and :
Amy J. Miller, his wife, Sarah :
Nichole Hocker, Ryan Christopher :
Hocker, and George J. Shannon and :
Donna M. Shannon, his wife :

ORDER

AND NOW, this 7th day of October, 2013, we vacate the May 22, 2012,
order of the Bedford County Court of Common Pleas and remand this matter for
further proceedings consistent with this opinion.

___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge