Opinion
No. 2353 C.D. 2010
07-21-2011
William Gerg and Jerome Gerg, Jr., Appellants v. Township of Fox
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge (P) OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
Appellants, William Gerg and Jerome Gerg, Jr., appeal from the order of the Court of Common Pleas of the Fifty Ninth Judicial District (common pleas), which granted summary judgment in favor of the Township of Fox and dismissed their civil action asserting negligence and trespass claims.
Appellants are the owners of farm property located in Fox Township, Elk County. The property is bisected by a public road known as Hogback Road. In July and August of 2008, the Township engaged in construction activities on and around Hogback Road for the purpose of reconstructing, widening and paving the road. Appellants assert that during the construction activity, the Township removed a large quantity of topsoil and dirt from an area that encompassed both the permanent right-of-way and the abutting land.
Appellants filed a civil complaint seeking monetary damages and alleging that the removal of the topsoil and dirt was either willful or negligent. Appellants alleged that the Township trespassed upon their property and removed 383 cubic yards of topsoil and 1,100 cubic yards of dirt. Appellants sought damages in the amount $39, 622.50. Appellants filed a motion for partial summary judgment requesting that common pleas specifically find that the right-of-way for Hogback Road is 33 feet rather than the 50 foot right-of-way asserted by the Township. The Township filed a motion for summary judgment asserting that because the right-of-way is 50 feet the Appellants had failed to state a cause of action upon which relief could be granted. In the alternative, the Township asserted that it was immune from claims under the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541-8542. The Township also contended that the dispute involved a de facto taking and that Appellants' remedy lay in the Eminent Domain Code.
Common pleas granted summary judgment in favor of the Township. Common pleas found that the right-of-way of Hogback Road is 33 feet as provided by Section 2307(a) of the Second Class Township Code, 53 P.S. § 67307(a). Common pleas held that the Township's widening and paving of Hogback Road, which resulted in the removal of topsoil and fill, was in the nature of a de facto taking. Relying on Fulmer v. White Oak Borough, 606 A.2d 589 (Pa. Cmwlth. 1992), common pleas concluded that Appellants' cause of action could only be brought under the Eminent Domain Code.
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101 -68701. Section 2307(a) provides:
(a) Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right-of-way of thirty-three feet even though there is no public record of the laying out or dedication for public use of the road.
Common pleas did not specifically analyze the Township's claim of governmental immunity, but noted that if it had addressed the issue it would have determined that the Township was immune from suit. This appeal followed.
After carefully reviewing the record, the briefs of the parties and the relevant law, this Court agrees that Fulmer is controlling, and that the issues raised by Appellants are accurately addressed in the well-reasoned opinion issued by the Honorable John B. Leete in Gerg v. Township of Fox (59th Judicial District, No. 1023 of 2009) filed October 6, 2010. Accordingly, this Court affirms common pleas' order on the basis of that opinion.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 21st day of July 2011, the order of the Court of Common Pleas of the Fifty Ninth Judicial District is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge