A Road to Nowhere? Future of The Private Road Act Still in Limbo Following Commonwealth Court Decision

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The Private Road Act, found at 53 P.S. §§ 2731-2891, permits the owner of a landlocked parcel of real estate to petition the local Court of Common Pleas for the appointment of a board of viewers to determine whether that parcel is indeed landlocked and, if so, establish a right-of-way through the private land of neighboring landowners which inflicts the least burden on those landowners. The board of viewers also place a monetary value on this right-of-way, which, when paid, converts the use of that right-of-way to the exclusive use of the petitioning landlocked landowner. The Private Road Act, which has its roots in the colonial legislature of the Commonwealth and has survived nearly 200 years of constitutional analysis, remains in limbo following recent court decisions.

Last fall, in the case of In the Matter of: Opening a Private Road for the Benefit of Timothy P. O'Reilly, 5 A.3d 246 (Pa. 2010), the Pennsylvania Supreme Court placed the constitutionality and the continued viability of The Private Road Act in serious question. In the O'Reilly case, a landowner's parcel became landlocked when the Commonwealth condemned property for the construction of State Route 79 in Allegheny County. The landowner petitioned for a board of viewers under The Private Road Act to establish access to a public road through neighboring private property. The neighboring landowners affected by the petition filed preliminary objections, citing the constitutional prohibition against takings without just compensation under the Fifth Amendment of the United States Constitution as well as Articles 1 and 10 of the Pennsylvania Constitution. These objections were overruled and the neighboring landowners filed an interlocutory appeal to the Commonwealth Court. The Commonwealth Court, relying on the long history of The Private Road Act, affirmed, and the neighboring landowners appealed to the Supreme Court.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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