In Re: Vacation of a Portion of Paper Mill Rd. ~ Appeal of: Newtown Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Vacation of a Portion of : CASES CONSOLIDATED

Paper Mill Road, Newtown Township, :

Petition of Scott Brehman and :

Margaret Brehman : No. 701 C.D. 2017

:

Appeal of: Newtown Township :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown :

Township, Petition of Scott :

Brehman and Margaret Brehman : No. 730 C.D. 2017

:

Appeal of: Jennifer F. Anderson, :

Ross D. Anderson, John Balog, Jr., :

Theresa A. Balog, Valerie Boyko, :

Henry S. Bryans, Martha B. Bryans, :

Maureen A. Cherry, James Cox, :

Monica Cox, Gary S. Coyle, Laurena :

S. Coyle, James B. Francis, Jr., Sally :

M.G. Francis, Brandon J. Koch, Diane :

M. Koch, Janet Krevenas, Christopher :

D. McIsaac, Linda I. McIsaac, John W. :

Newman, Lansdale S. Newman, David :

M. Reller, Tracy M. Reller, Paula :

Rothermal, Rodman S. Rothermal, :

Paul H. Saint-Antoine, Susan M. :

Saint-Antoine, Robert S. Winter, Jr., :

and Vicki L. Winter :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown Township :

Petition of Scott Brehman and :

Margaret Brehman : No. 1300 C.D. 2017

:

Appeal of: Newtown Township :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown :

Township, Petition of Scott Brehman : No. 1311 C.D. 2017

and Margaret Brehman : Submitted: May 27, 2022

:

Appeal of: Jennifer F. Anderson, :

Ross D. Anderson, John Balog, Jr., :

Theresa A. Balog, Valerie Boyko, :

Henry S. Bryans, Martha B. Bryans, :

Maureen A. Cherry, James Cox, :

Monica Cox, Gary S. Coyle, :

Laurena S. Coyle, James B. Francis, Jr., :

Sally MG Francis, Brandon J. Koch, :

Diane M. Koch, Janet Krevenas, :

John W. Newman, Lansdale S. :

Newman, Christopher D. McIsaac, :

Linda I. McIsaac, David M. Reller, :

Tracy M. Reller, Rodman S. :

Rothermal, Paula Rothermal, :

Paul H. Saint-Antoine, Susan M. :

Saint-Antoine, Robert S. Winter, Jr., :

and Vicki L. Winter :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE WOJCIK FILED: April 20, 2023

In these consolidated appeals, Newtown Township (Township)1 and

“Paper Mill Residents”2 (collectively, Appellants) appeal from the Delaware County

1

The Township is a township of the second class located in Delaware County,

Pennsylvania. See 125 The Pennsylvania Manual 6-5, 6-93 (2021); Emert v. Larami Corporation,

200 A.2d 901, 902 n.1 (Pa. 1964) (“Courts will take judicial notice of geographical facts such as

the county in which a town or city is located.”) (citations omitted).

2

Paper Mill Residents are Jennifer F. Anderson, Ross D. Anderson, John Balog, Jr.,

Theresa A. Balog, Valerie Boyko, Henry S. Bryans, Martha B. Bryans, Maureen A. Cherry, James

(Footnote continued on next page…)

Court of Common Pleas’ (trial court) May 23, 2017 final decrees and order that

rejected the Board of View’s (Board) Report denying Scott and Margaret

Brehmans’, husband and wife (Brehmans), Petition to Vacate a Portion of Paper Mill

Road (Petition to Vacate) and ordered the vacation of a portion of Paper Mill Road.

Appellants argue that the trial court exceeded its review; substantial evidence

supports the Board’s findings; and those findings support the Board’s conclusion

that the road in question should not be vacated. For the reasons that follow, we

reverse the order of the trial court and reinstate the Board’s Report.

I. Background

On January 31, 2013, the Brehmans filed a Petition to Vacate with the

Township Board of Supervisors (Board of Supervisors) to vacate the eastern most

583.83 feet of Paper Mill Road (Contested Road) pursuant to Section 2304(a) of the

Second Class Township Code (Code).3 Reproduced Record (R.R.) at 1357a-58a.

The Contested Road immediately precedes the border between the Township and

Radnor Township, and divides the Brehmans’ residential property, 44 Paper Mill

Road, Newtown Square, Delaware County (Property). The Brehmans purchased the

Cox, Monica Cox, Gary S. Coyle, Laurena S. Coyle, James B. Francis, Jr., Sally M.G. Francis,

Brandon J. Koch, Diane M. Koch, Janet Krevenas, Christopher D. McIsaac, Linda I. McIsaac,

John W. Newman, Lansdale S. Newman, David M. Reller, Tracy M. Reller, Paula Rothermal,

Rodman S. Rothermal, Paul H. Saint-Antoine, Susan M. Saint-Antoine, Robert S. Winter, Jr., and

Vicki L. Winter. Collectively, they own approximately 15 residences on Paper Mill Road and

Paper Mill Lane, of which there are approximately 28 total residences. Paper Mill Residents

participated as intervenors in the proceedings below.

3

Act of May 1, 1933, P.L. 103, as amended, added by the Act of November 9, 1995, P.L.

350, 53 P.S. §67304(a). This section provides: “The board of supervisors may by ordinance enact,

ordain, survey, lay out, open, widen, straighten, vacate and relay all roads and bridges and parts

thereof which are located wholly or partially within the township.” 53 P.S. §67304(a).

2

10-acre Property in 2011 and converted the barn into their primary residence. The

Property also contains a tenant house.

On March 25, 2013, at a public meeting, the Board of Supervisors

considered and denied the Brehmans’ Petition to Vacate by unanimous oral vote,

upon concluding that the Contested Road was not useless, inconvenient, or

burdensome, and it subsequently memorialized its oral vote by written unanimous

resolution. R.R. at 1351a, 1357a.

The Brehmans then filed a petition for the appointment of viewers with

the trial court pursuant to Section 2304(c) of the Code4 and Section 18 of Act of June

13, 1836, P.L. 551, commonly referred to as the General Road Law, 36 P.S. §1981,

to review the Petition to Vacate. R.R. at 1357a. The trial court appointed the Board,

which then conducted two evidentiary hearings on November 14, 2014, and January

23, 2015, and a physical view of the Contested Road and surrounding area before

filing its Report on February 3, 2016. Paper Mill Residents intervened and

4

Section 2304(c) provides:

When any petition is presented to the board of supervisors

requesting the board of supervisors to open or vacate a specific road

in the township and the board of supervisors fails to act on the

petition within sixty days, the petitioners may present their petition

to the court of common pleas which shall proceed thereon under the

act of June 13, 1836 (P.L. 551, No. 169), referred to as the General

Road Law. If the board of supervisors acts on the petition but denies

the request of the petition, the board of supervisors shall notify the

person designated in the petition of its denial. If the request of the

petition is denied, the petitioners, or a majority of them, may within

thirty days after receipt of the notice petition the court of common

pleas for the appointment of viewers and proceedings shall be taken

thereon under the General Road Law.

53 P.S. §67304(c).

3

participated in the proceedings. Based on the testimony and evidence presented, the

Board made the following relevant findings of fact.

By order dated August 23, 1836, the Court of Quarter Sessions of

Delaware County established Paper Mill Road as a public road in the Township,

opening a public thoroughfare between St. David’s Road in the Township and

Darby-Paoli Road in Radnor Township, with a 33-foot right-of-way. Report of the

Board of View, 2/3/16, Finding of Fact (F.F.) No. 6. Only a portion of the Contested

Road is paved and improved. F.F. No. 12. Paper Mill Road has no paved turnaround

or cul-de-sac to permit vehicles to turn around. F.F. No. 19. Paper Mill Road splits

into Paper Mill Lane and Paper Mill Road a short distance before the area sought to

be vacated. Only three residences, including the Brehmans, use the portion of Paper

Mill Road after the split to access their residences. F.F. No. 34.

In 1970, abutting Radnor Township purchased 90 acres of land

surrounding a portion of Paper Mill Road to make Skunk Hollow Park. F.F. No. 13.

The Radnor Township side of the road was blocked off to vehicular traffic and is

still used as a limited access entrance to Skunk Hollow Park from Darby-Paoli Road.

F.F. No. 14. Skunk Hollow Park includes numerous walking trails, Darby Creek,

Little Darby Creek, and access to a 47-acre public park known as the “Willows.”

F.F. Nos. 17, 52.

The Brehmans are the only owners of land abutting the Contested Road.

F.F. No. 15. The Brehmans were aware that Paper Mill Road traversed the Property

when they purchased it. F.F. No. 21. The Contested Road provides vehicular access

to the Brehmans’ Property only. F.F. No. 26. There is no need for vehicles to travel

over the Contested Road other than to access the Brehmans’ Property. F.F. No. 30.

The Brehmans presented evidence that it would cost the Township more than

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$300,000 to improve the Contested Road. F.F. No. 23. The Township represented

that, if the Petition to Vacate is denied, it “may improve” Paper Mill Road with a

turnaround and other improvements, and its engineer testified that such

improvements would cost approximately $130,000. F.F. Nos. 27-28. If, however,

the Petition to Vacate is granted, a turnaround would not be constructed at the then

existing terminus of the Contested Road unless the property owners in that area

petition the Township to build one. F.F. No. 29.

The cost of policing and maintaining the Contested Road is borne by

the Township. F.F. No. 31. The Township has performed no maintenance except

for mowing the swath in the unpaved portion, snow plowing the paved portion, and

conducting biannual inspections. F.F. Nos. 32, 35. The Township retains the

Contested Road as a public road to provide area residents with a nature trail to access

Skunk Hollow Park. F.F. No. 33.

When the Brehmans purchased the Property, the Contested Road was

barricaded, by the prior owner, at the end of the paved portion to prevent vehicular

traffic and contained a “No Trespassing” sign, which they maintained. F.F. Nos. 36-

38. In addition to the barricade, there were fences to prevent vehicles from going

around the barricade. F.F. No. 39. The prior owner lined the cartway of the

Contested Road with piles of rocks to dissuade motorists from parking in the right-

of-way. F.F. No. 40. The record established that the Brehmans sought and attempted

to interfere with the access to the Contested Road for a limited time. F.F. No. 58.

After purchasing the Property, the Brehmans monitored the vehicular

and pedestrian usage of the Contested Road with surveillance cameras in between

September 20, 2012, and October 11, 2012, and then November 19, 2013, and

December 5, 2013. F.F. Nos. 41-48. The monitoring revealed two to five vehicles

5

per day, with a high count of 10 or more, erroneously entering the Contested Road.

F.F. No. 48. Because the paved portion of the Contested Road ends, these vehicles

have to turnaround to exit, and, on occasion, have disturbed the Brehmans’ Property.

F.F. No. 48-49.

The predominant usage of the Contested Road was by pedestrians and

children who used it recreationally to walk, jog, and ride bikes, on average two or

three times per day. F.F. Nos. 54-55. Most would proceed to the end of the

macadam and turn around. F.F. No. 54. “Pedestrian and bike trips to the end of the

macadam were not trips intended to use the [Contested Road] to access any property

unless proceeding to Skunk Hollow Park.” F.F. No. 55. The use of the Contested

Road to access Skunk Hollow Park is greatest in the fall and spring and declines in

the summer months. F.F. No. 56. The purpose of the Township in retaining the

Contested Road as a public road is to provide the residents of Paper Mill Road and

Paper Mill Lane with a “nature trail” to access Skunk Hollow Park. F.F. No. 33.

In addition to the recreational use, Paper Mill Resident Theresa Balog

owns a property on Paper Mill Lane and uses the Contested Road to access the rear

.4 acre of her property, which is intersected by Darby Creek. F.F. No. 16. The Darby

Creek Valley Association and the Delaware County Planning Department presented

evidence on the importance of the Contested Road because it provides access to, and

contributes to, the Darby Creek Watershed Greenway Plan. F.F. No. 57. Residents

of Paper Mill Road and Paper Mill Lane may access Skunk Hollow Park through

alternate but “more inconvenient routes.” F.F. No. 51.

Based upon the evidence presented, the Board concluded that, as to

vehicular traffic, the Contested Road is useless, inconvenient and burdensome.

Board of View, 2/3/16, Conclusion of Law (C.L.) No. 6. Critically, the Board

6

determined that, as for “pedestrian and recreational traffic,” the Contested Road

was not useless, inconvenient, or burdensome. C.L. No. 8 (bolded emphasis in

original). “The record establishes that certain [Paper Mill Residents] and other

neighbors use the [Contested Road] for walking, cycling, hiking or other activity.”

C.L. No. 7 (emphasis added). “A portion of this use extends over the entire

[Contested Road] for access into Skunk Hollow Park.” Id. On this basis, the Board

unanimously denied the Petition to Vacate. The Brehmans appealed the Board’s

Report.

By order dated June 1, 2016, the trial court, without taking any

additional evidence, and without opinion, rejected the Board’s Report and vacated

the Contested Road. R.R. at 29a. Appellants appealed to this Court. By order dated

October 4, 2016, this Court vacated the order and remanded the matter to the trial

court “to issue a decree nisi, with exceptions and an opinion to follow.” In re:

Vacation of a Portion of Paper Mill Road (Pa. Cmwlth., Nos. 966 C.D. 2016 & 973

C.D. 2016, filed October 4, 2016).

On remand, by order dated December 15, 2016, the trial court issued a

decree nisi again rejecting the Board’s Report and vacating the Contested Road. In

the supporting opinion, the trial court determined that the evidence of recreational

use was insufficient to meet the standard as to what constitutes useless, inconvenient,

or burdensome, and the cost to maintain and improve the Contested Road was

burdensome. Appellants filed timely exceptions, which the trial court overruled by

final decrees and order dated May 23, 2017. On August 16, 2017, the trial court

issued “Findings of Fact and Conclusions of Law Issued in Support of the May 23rd,

2017 Final Decree.” R.R. at 143a-66a. Ultimately, the trial court concluded that the

Board’s findings regarding the high cost of maintenance and improvements should

7

have led the Board to conclude that the Contested Road is useless, inconvenient, or

burdensome, even though there was evidence presented regarding its recreational

use. Trial Court Opinion, 8/16/17 at 24; R.R. at 166a.

The Township and Paper Mill Residents again appealed and filed

statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On

October 18, 2017, the trial court issued a 50-page opinion pursuant to Pa.R.A.P.

1925(a) in support of the May 23, 2017 Final Decrees and Order. See Trial Court

1925(a) Opinion, 10/18/17. By Order dated November 29, 2017, this Court

consolidated the Township’s and Paper Mill Residents’ appeals. In addition to the

parties’ briefs, Radnor Township5 filed an amicus curiae brief in support of

Appellants’ positions.

II. Issues

In this appeal,6 Appellants collectively raise three issues, which we

combine and summarize as follows. First, they assert that the trial court failed to

apply the appropriate scope and standard of review for road vacations. Second, they

contend that the trial court erred in rejecting the Board’s Report where substantial

5

Radnor Township is a home rule municipality that abuts the Township. Radnor Township

asserts an interest in this case because the Contested Road has historically been used as a through-

way between the townships and is currently used as a pedestrian access way to Radnor Township

parks, such as Skunk Hollow Park and the Willows, as well as Darby Creek and Little Darby

Creek, and serves as a pedestrian access connection for Radnor residents to the Township. Amicus

Curiae Brief at 1.

6

“In reviewing a [b]oard of [v]iew’s decision, ‘[a]ppellate review is limited to ascertaining

the validity of the [b]oard’s jurisdiction, the regularity of proceedings, questions of law[,] and

whether the [b]oard abused its discretion.’” In re Adams, 212 A.3d 1004, 1012 (Pa. 2019)

(citations omitted). An abuse of discretion occurs when the board’s decision shows “manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly

erroneous.” Paden v. Baker Concrete Construction, Inc., 658 A.2d 341, 343 (Pa. 1995).

8

evidence supports the Board’s finding and ultimate determination that the Contested

Road should not be vacated because it is not useless, inconvenient, or burdensome.

Third, they argue that the Board’s findings are legally sufficient to support the denial

of the Petition to Vacate as a matter of law.

III. Discussion

A. Review

First, Appellants argue that the trial court exceeded its review by

making its own findings and substituting its judgment for that of the Board. We

agree.

Section 2304(a) of the Code grants power to a second class township to

vacate public roads within the township. 53 P.S. §67304(a). If the board of

supervisors fails to act on, or denies, a petition to vacate a road, the petitioners

seeking vacation may petition the trial court for the appointment of a board of view

and proceedings under the General Road Law. 53 P.S. §67304(c); see Section 18 of

the General Road Law, 36 P.S. §1981.7 A second class township road formally

7

This section provides:

The courts aforesaid shall, within their respective counties, have

authority, upon application to them by petition, to inquire of and to

change or vacate the whole or any part of any private or public road

which may have been laid out by authority of law, whenever the

same shall become useless, inconvenient or burthensome

notwithstanding the fact that the vacation of a part of a public road

results in leaving the remaining part or parts of the road with one of

its termini at a point other than in a public highway or place of public

resort: Provided, That the other terminus of each of the remaining

parts of the road is in a public road and that each remaining part of

the road is necessary for public travel or for the use of a property

owner or owners located on such remaining part. The said courts

(Footnote continued on next page…)

9

opened to the public may only be vacated through these procedures. In re Swamp

Road in Wayne Township, 859 A.2d 528, 530 (Pa. Cmwlth. 2004); see

Commonwealth ex rel. Attorney General, 9 A. 524 (Pa. 1887).

Pursuant to Section 18 of the General Road Law, the common pleas

courts8 have the authority upon application “to inquire of and to change or vacate

the whole or any part of any private or public road . . . .” 36 P.S. §1981. The

common pleas courts shall proceed “by views and reviews, in the manner provided

for the laying out of public roads and highways” by appointing a board of view

consisting of three persons qualified to view the ground and make a report of their

proceedings to the court.9 Id.; see Section 1 of the General Road Law, 36 P.S. §1781;

see generally Sections 2-4, 7-9, 51-58 of the General Road Law, 36 P.S. §§1782-

1785, 1831-1834, 1852-1855.

The board of view conducts a de novo evidentiary review of such

petitions to determine if the road sought to be vacated is “useless, inconvenient or

burdensome” to the township in which it is located. Swamp Road, 859 A.2d at 532;

accord Codorus Stone & Supply Co., Inc. v. Kingston, 711 A.2d 563, 565

shall proceed therein by views and reviews, in the manner provided

for the laying out of public roads and highways.

36 P.S. §1981 (emphasis added).

8

The General Road Law refers to the “court[s] of quarter sessions.” See Section 1 of the

General Road Law, 36 P.S. §1781. In 1968, by constitutional amendment, the courts of quarter

sessions and common pleas were unified into one court known as the court of common pleas. In

re Private Road, Cogan Township, Lycoming County, 684 A.2d 237, 239 n.2 (Pa. Cmwlth. 1996).

9

We note that the General Road Law governs public roads (36 P.S. §§1761-2721.4) and

private roads (36 P.S. §§2731-2891). Because proceedings regarding private roads are handled in

the same manner as public roads with the appointment of a board of view, Section 11 of the General

Road Law, 36 P.S. §2731, cases dealing with the private road review process are instructive and

germane to our discussion.

10

(Pa. Cmwlth. 1998); In re Exceptions to Jackson Township Ordinance No. 91-103,

642 A.2d 564, 566 (Pa. Cmwlth. 1994); In Re Vacation of Portion of Township Road

164, 518 A.2d 2, 4 (Pa. Cmwlth. 1986); see 36 P.S. §1981. The “useless,

inconvenient or burdensome” standard “tracks the language of the General Road

Law.” Swamp Road, 859 A.2d at 532; see 36 P.S. §1981 (“useless, inconvenient or

burthensome”). “Because the standard is in the disjunctive, only one of the three

conditions is needed to justify vacation.” Swamp Road, 859 A.2d at 532 (citing Zeni

v. Township Supervisors of Springhill Township, 451 A.2d 809, 810, n.4

(Pa. Cmwlth. 1982); In re Bristol Township Road, 49 Pa. Super. 549, 553 (1912)).

“The concepts of ‘useless,’ ‘inconvenient,’ or ‘burdensome’ are not cast in stone;

they must necessarily draw their meaning from the facts of a particular case.” Zeni,

451 A.2d at 810. Although Section 18 of the General Road Law itself is silent as to

whom the road must become “useless, inconvenient or burdensome,” under the rules

of statutory construction, the provision favors the public, as opposed to private

interests. Section 1922(5) of the Statutory Construction Act of 1972, 1 Pa. C.S.

§1922(5).10 A party seeking the vacation bears the burden of proof. Codorus Stone,

711 A.2d at 567.

The board of view is “an independent tribunal” and “factfinder.” Soska

v. Bishop, 19 A.3d 1181, 1187 (Pa. Cmwlth. 2011) (citing Mandracchia v. Stoney

Creek Real Estate Corporation, 576 A.2d 1181, 1182-83 (Pa. Cmwlth. 1990)). It is

for the board, as the factfinder to assess the weight and credibility of the evidence.

Soska, 19 A.3d at 1187; In re Vacation of a Portion of Township Road 308 Located

10

This section provides: “In ascertaining the intention of the General Assembly in the

enactment of a statute the following presumptions, among others, may be used: . . . [t]hat the

General Assembly intends to favor the public interest as against any private interest.” 1 Pa. C.S.

§1922(5).

11

in Leidy Township, 943 A.2d 372, 376 (Pa. Cmwlth. 2008); Ordinance No. 91-103,

642 A.2d at 568. “Because the [b]oard is the factfinder, its judgments, including its

determinations as to credibility of witnesses and weight of the evidence, [are]

beyond the scope of appellate review.” Soska, 19 A.3d at 1187 (citing In re Rural

Route Neighbors, 960 A.2d 856, 860, 862 (Pa. Cmwlth. 2008)). “Although the

board’s findings are subject to review and may be set aside, its authority will not be

infringed upon by a court’s substituting its judgment for that of the viewers.” Driver

v. Temple, 543 A.2d 134, 136-37 (Pa. Super. 1988); accord In re Private Road in

Monroeville Borough, 205 A.2d 885, 887 (Pa. Super. 1965). Further, it is well

settled that the factfinder may “draw all reasonable inferences from the evidence

presented.”11 Rural Route Neighbors, 960 A.2d at 861.

“In reviewing the report of a board of viewers, a trial court may confirm

it or reject it and direct a review.” Benner v. Silvis, 950 A.2d 990, 994 (Pa. Super.

2008); accord Monroeville Borough, 205 A.2d at 887; see Section 4 of the General

Road Law, 36 P.S. §1832; see also In re Public Road in Benzinger Township, 10 A.

35 (Pa. 1887) (trial court is vested with discretion to approve or disapprove the

reports of viewers and reviewers); In re Beigh’s Road, 23 Pa. 302, 305 (1854) (the

court had no power to alter the report but was bound to confirm or reject); In re

Herr’s Mill Road, 14 Serg. & Rawle 204 (Pa. 1826) (“The report is the act of the

viewers, which the court may either reject or confirm; but they cannot alter it, for

then it is no longer the act of the viewers.”); Petition of Supervisors of Mahoning

Township, Armstrong County, 128 A.2d 95, 96 (Pa. Super. 1956) (trial court is

11

This principle has been applied in a variety of cases. See, e.g., Lehigh County Vo–Tech

School v. Workmen’s Compensation Appeal Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995); In re

Griffis, 259 A.3d 542, 550 n.10 (Pa. Cmwlth. 2021); James Corporation v. North Allegheny School

District, 938 A.2d 474, 498 (Pa. Cmwlth. 2007); Ellis v. City of Pittsburgh, 703 A.2d 593, 593

(Pa. Cmwlth.1997).

12

vested with discretion to approve or disapprove the reports of viewers and

reviewers). “‘[A]ppellate review is limited to ascertaining the validity of the

[b]oard’s jurisdiction, the regularity of proceedings, [and] questions of law[,] and

whether the [b]oard abused its discretion.’” In re Private Road in Speers Boro, II,

Washington County, 11 A.3d 902, 905 (Pa. 2011) (quoting In re Packard, 926 A.2d

557, 559 n.2 (Pa. Cmwlth. 2007)).

“An abuse of discretion occurs if the [b]oard’s decision shows

‘manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.’” Soska, 19 A.3d at 1187 n.4 (quoting Paden v.

Baker Concrete Construction, Inc., 658 A.2d 341, 343 (Pa. 1995)) (emphasis added).

In other words, an abuse of discretion is established when findings of fact are not

supported by substantial evidence. See id. Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640

(Pa. 1983). “[A]n abuse of discretion may not be found merely because the appellate

court might have reached a different conclusion, but requires a showing of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as

to be clearly erroneous.” Paden, 658 A.2d at 343.

In determining whether substantial evidence exists to support the

Board’s finding, our review extends to the whole record. Swamp Road, 859 A.2d at

530 n.2; Zeni, 451 A.2d at 809 n.3 (citing Section 5105(d)(1) of the Judicial Code,

42 Pa. C.S. §5105(d)(1)). However, a “reviewing court may not look beyond the

record or review the facts.” Soska, 19 A.3d at 1187 (citing Mandracchia, 576 A.2d

at 1183). Further, the reviewing court must examine “the evidence in the light most

favorable to the prevailing party below, including the benefit of all inferences

13

reasonably drawn.” Sell v. Workers’ Compensation Appeal Board (LNP

Engineering), 771 A.2d 1246, 1250 (Pa. 2001).

Here, the trial court correctly referenced the foregoing standard and

scope of review for reviewing the Board’s Report, but ultimately deviated from it.

See Trial Court Opinion, 12/15/16, at 6-7; Trial Court 1925(a) Opinion, 10/18/17, at

28. Instead of examining the record to determine whether the Board’s findings were

supported by substantial evidence, the trial court impermissibly assumed the role of

factfinder and made its own findings of fact and conclusions of law based on the

evidence presented and substituted its own judgment for that of the Board. The trial

court attempted to justify its actions by explaining the purpose was to demonstrate

that “it reviewed the entire [r]ecord.” Trial Court 1925(a) Opinion, 10/18/17, at 33.

Although examination of the whole record is certainly appropriate, Zeni, 451 A.2d

at 489 n.3, reweighing the evidence and making independent findings is not.

Ordinance No. 91-103, 642 A.2d at 568. The trial court compounded this error by

failing to consider record evidence that supported the Board’s findings. The trial

court incorrectly surmised that it could not reference or rely upon any facts or

evidence in the record that the Board did not expressly reference in its Report. Trial

Court 1925(a) Opinion, 10/18/17, at 28-30. However, the Board was not required

to reference each item of evidence that supported its findings.12 See Kretschmann

Farm, LLC v. Township of New Sewickley, 131 A.3d 1044, 1047 (Pa. Cmwlth. 2016)

(the hearing tribunal is not required to address each item of evidence offered in a

hearing); A.P. v. Department of Public Welfare, 98 A.3d 736, 744 (Pa. Cmwlth.

2014) (administrative law judge not required to address all the evidence that is

presented); Pistella v. Workmen’s Compensation Appeal Board (Samson Buick Body

12

We note that the Reproduced Record itself contains 1,470 pages.

14

Shop), 633 A.2d 230, 234 (Pa. Cmwlth. 1993) (factfinder must “make crucial

findings of fact on all essential issues necessary for [appellate] review . . . but is not

required to address specifically each bit of evidence offered”). Rather, it was for the

trial court to examine the record, in a light favorable to the prevailing parties, to

determine whether substantial evidence supported the Board’s findings. For these

reasons, we conclude that the trial court erred and abused its discretion by exceeding

the confines of its scope and standard of review.

Applying the proper review, we examine the Board’s Report to

determine whether the Board’s relevant findings are supported by substantial

evidence and whether those findings, in turn, support the determination that the

Contested Road is not useless, inconvenient, or burdensome as a matter of law.

B. Substantial Evidence

1. Use

The Board found that the Township retains the Contested Road as a

public road to provide area residents with a nature trail to access Skunk Hollow Park.

F.F. No. 33. The Contested Road is “used” predominantly by pedestrians and

children who use it recreationally to walk, jog, and ride bikes. F.F. No. 54. Most

trips went to the end of the macadam “unless proceeding to Skunk Hollow Park.”

F.F. No. 55. In addition, Paper Mill Resident Theresa Balog uses the Contested

Road to access the rear .4 acre of her property, which is intersected by Darby Creek.

F.F. No. 16. As for the frequency of the recreational use, the Board found that the

Contested Road was used an average of two to three times per day, noting some trips

were return trips for the same walker or jogger. F.F. No. 55. The Board found that

pedestrian traffic increased shortly before the hearings commenced. F.F. No. 59.

15

The Board’s findings pertaining to use are amply supported by the

record, which included surveillance monitoring and testimonial evidence. Scott

Brehman testified that the use varies by season, with spring and fall being peak

usage. F.F. No. 56; R.R. at 477a-78a. The surveillance logs, which monitored

activity between September 20, 2012, and October 11, 2012, and then November 19,

2013, and December 5, 2013, showed recreational use of the Contested Road two or

three times a day, on average.13 See R.R. at 925a-27a, 939a-70a. Brehmans’

residential construction manager and his wife, who lived at the Property during

construction, testified to witnessing regular use of the Contested Road by two or

three walkers, runners or dog owners, some of whom accessed Skunk Hollow Park.

Id. at 796a-99a, 813a. Paper Mill Residents testified regarding their personal use

and enjoyment of the Contested Road for walking, biking, and accessing the park

trails, including frequency of use. Id. at 652a-53a, 697a, 719a, 725a, 738a-39a, 749a,

13

This Court observes that the first surveillance period monitored activity during or in

close proximity to the Brehmans’ efforts to deter neighbors from using the Contested Road. The

Board found that the Brehmans actively “sought and attempted to interfere with the access to the

[Contested Road].” F.F. No. 58. This finding is supported by Mr. Brehman’s own testimony. Mr.

Brehman testified that, shortly after purchasing the Property, he undertook measures to stop

neighbors from using the Contested Road beginning in March 2012. R.R. at 496a-500a, 506a-08a,

528a, 535a. Mr. Brehman testified that these measures included sending a letter to the neighbors

advising them he was blocking off the Contested Road; erecting barricades; posting private

property, no trespassing and other deterrence signs (“My dog can make it to the fence in 3 seconds.

Can you?”); and verbally warning passersby to stop using the Contested Road. Id. at 496a, 506a,

531a, 535a, 1378a. Those efforts continued until sometime after the Board of Supervisors’

meeting in March 2013. Id. at 529a-30a. Testimony offered by Paper Mill Residents corroborated

the deterrence efforts. Id. at 660a-63a, 701a-02a, 721a-22a, 755a-56a, 760a, 764a. One witness

testified that the Brehmans’ deterrence efforts hindered his usage for a period of time because it

called into question the public’s right to use the Contested Road. Id. at 758a. Others expressed

reluctance and intimidation to use the Contested Road. Id. at 661a, 722a. We further note that the

second surveillance period monitored activity near the off-peak season. An inference may be

drawn that the surveillance monitoring underreported actual usage. The Board found an increase

in pedestrian traffic shortly before the hearings commenced. F.F. No. 59.

16

753a, 842a. Occasionally, nonresidents utilized the Contested Road for ingress and

egress to the park. Id. at 704a, 709a, 754a-55a, 608a. Even Mr. Brehman testified

that he and his family access the park two to three times a month. Id. at 476a. Other

testimony was offered regarding the Contested Road’s usefulness in creating

interconnectivity among the area’s parks, trails, and historic resources. R.R. at 581a,

602a. This evidence constitutes substantial evidence that the Contested Road was

used by pedestrians recreationally on a daily basis and is useful to the community.

2. Burdensome

As for whether the Contested Road is burdensome, the Board found that

the cost of policing and maintaining the Contested Road is borne by the Township.

F.F. No. 31. The Township’s maintenance presently includes minimal upkeep of

mowing the unpaved portion and snow plowing. F.F. No. 32. The Board also found

that the Township “may improve” the Contested Road with a vehicle turnaround if

the Petition to Vacate is denied and that the contemplated cost for making such road

improvements is roughly $130,000.00. F.F. Nos. 27, 28. If the Contested Road is

not vacated, a turnaround would not be constructed at the terminus of Paper Mill

Road unless the property owners in that area petition the Township to build one.

F.F. No. 29.

The Board’s findings in this regard are supported by the testimony of

Mr. Brehman, the Township’s Engineer, Eileen Nelson (Township Engineer), and

Chairman of the Board of Supervisors, Joseph Catania (Township Supervisor). Mr.

Brehman testified that the Township’s maintenance consists of mowing the unpaved

portion and plowing snow from the paved portion of the Contested Road. R.R. at

17

473a-74a. Mr. Brehman testified that he had not requested the Township to improve

the Contested Road. Id. at 685a-86a.

Township Engineer testified that the improvements to the Contested

Road are not mandatory or necessary to maintain the status quo. R.R. at 419a-20a.

She explained that, at the end of the Contested Road, there is a driveway, a portion

of which is in the right-of-way. Id. at 420a. Vehicular traffic can make a three-point

turn at the end of the Contested Road utilizing that right-of-way without disturbing

the Property. Id. at 421a; see id. at 456a. Township Engineer explained that the

Township is not required to construct turnarounds on the terminus or dead-end

sections of a road unless requested to do so by a property owner. Id. at 419a.

“Unless it[ is] petitioned by the owners[,] no capital dollars are expended to

improve.” Id. at 421a. Assuming such a request is made, and granted, she estimated

that the cost would be $130,000, or less depending on the exact location of the

turnaround. Id. at 398a, 427a; see id. at 634a. Although Brehmans’ civil engineer,

David Fiorello (Brehmans’ Engineer), estimated that the cost would exceed

$300,000 to improve the Contested Road, F.F. No. 23; R.R. at 355a, Township

Engineer disputed the estimate. R.R. at 397a. Township Engineer explained that

Brehmans’ Engineer’s estimate is based on application of the highest standards,

which are applicable to subdivisions and land developments, and that those high

standards were not required for, nor even applicable to, the Contested Road. Id. at

397a, 399a-400a, 415a-17a. She prepared cost estimates under the applicable

standards under the Code, Township ordinances, and Municipal Liquid Fuels

Program requirements. Id. at 398a, 415a, 429a.

Township Supervisor testified that the Contested Road is inspected

every other year. Id. at 631a. He further testified that the Township had not received

18

any requests to improve the Contested Road. R.R. at 632a. Regardless of whether

the Contested Road is vacated or not, Township Supervisor testified that the

Township is considering adding a turnaround “at some point[,] somewhere,” but it

is waiting for the outcome of this case to decide. Id. at 638a; see id. at 632a.

Township Engineer further testified that no policy decision has been made as to

whether the preferred location of such a turnaround was at the Radnor Township

border, the end of the existing macadam of the Contested Road, or on the portion of

Paper Mill Road preceding the Contested Road. Id. at 428a, 430a. Paper Mill

Resident Tracy Reller, who lives next door to the Brehmans’ Property, testified that,

if the Contested Road is vacated, the terminus of Paper Mill Road would be at her

property. Id. at 708a. The foregoing evidence supports the Board’s findings

regarding the Township’s burden to maintain and the potential costs if the Contested

Road is improved.

3. Inconvenience

As for whether the Contested Road is inconvenient, the Board

concluded it was not. C.L. No. 8. Although other access to Skunk Hollow Park

exists, the Board found it would be through “other more inconvenient routes.”

F.F. No. 51. These alternate routes involve driving 1.5 to 2 miles to Radnor

Township. R.R. at 650a-51a, 697a. The only asserted inconvenience was to the

Brehmans. The Board found that the Brehmans were aware that the Contested Road

traversed the Property when they purchased it. F.F. No. 21; R.R. at 437a. Mr.

Brehman testified that persons utilizing the Contested Road posed a personal

inconvenience to him and his family. R.R. at 458a, 460a, 503a, 530a. Mr. Brehman

complained about vehicular traffic speeding and turning around on the Contested

19

Road and disturbing his Property in the process. Id. at 455a-60a. Between July 2012

and December 2012, there was an increase in vehicular traffic as a result of a

neighboring bridge closure despite road construction signs directing traffic away

from the Contested Road. Id. at 455a-57a, 928a-937a.

Paper Mill Residents countered with testimony regarding the

convenience of using the Contested Road to access the network of trails and parks

and not having to drive on public roads to utilize these resources. R.R. at 649a, 651a,

697a, 719a, 738a-39a, 749a. Although they corroborated an increase in vehicular

traffic for a limited duration as a result of a neighboring bridge closure, Paper Mill

Residents testified that the increase in vehicular traffic was not long lasting once

regular commuters realized it was not a viable detour and was not a major

inconvenience. See id. at 667-68a, 703a-04a, 752a-53a. One Paper Mill Resident

described the increase in vehicles as “noticeable,” but not “onerous.” Id. at 705a.

Now that the bridge has reopened, the traffic has returned to “normal” and “almost

non-noticeable frequency.” Id. at 672a, 706a. The Board’s findings regarding

convenience are supported by substantial evidence.

Upon review, the Board’s relevant findings regarding the nature and

frequency of use and convenience of the Contested Road as well as the maintenance

required to continue such use are supported by substantial evidence. Although

conflicting evidence was presented, it was for the Board, as the factfinder, to assess

the weight and credibility of the evidence presented. As this Court has recognized,

“any time one of these cases is the subject of an appeal, there is likely to have been

conflicting evidence presented to the board regarding the use of the road.” Leidy

Township, 943 A.2d at 376.

20

C. Matter of Law

We turn now to determine whether the Board’s findings support the

conclusion that the Contested Road is not “useless, inconvenient or burdensome” as

a matter of law. In determining that the Board erred, the trial court primarily relied

on Leidy Township and Swamp Road, in addition to Appeal of Likar, 43 A.2d 388,

390 (Pa. Super. 1945), as authority supporting its decision to reverse the Board’s

Report and vacate the Contested Road. We address each case in turn.

1. Leidy Township

In Leidy Township, following the denial of a property owner’s petition

to vacate Route 308, a township road, by the township board of supervisors, the

owners requested and were granted the appointment of a board of view. The board

weighed conflicting evidence and found, in pertinent part,

that Route 308 burdens Point Pleasant Farm because it

invites trespass thereon by those members of the public

wishing to access Kettle Creek and its eastern bank for

recreational purposes; that the flowage easement acquired

by the Army Corps of Engineers does not accommodate

entry by members of the public for recreational purposes;

that there is no state game land, camping facilities, or state

parks to which Route 308 provides direct access without

requiring trespass on the [property owners’] private

property; that there are numerous alternative means of

accessing Kettle Creek from its western side; and that

vacating Route 308 would not be detrimental to the

provision of fire and emergency services, as the [property

owners] do not continuously reside upon Point Pleasant

Farm.

Leidy Township, 943 A.2d at 376. The board also found that “the Army Corps of

Engineers’ access was necessary for public safety to inspect Kettle Creek for flood

control.” Id. Based on these findings, the board concluded that the road was useless,

21

inconvenient, or burdensome. The board voted to vacate the road, subject to the

Army Corps of Engineers’ and the Commonwealth’s ability to access and maintain

governmental land and/or flowage easements for flood protection and prevention

purposes. The township filed exceptions to the board’s report, which the trial court

overruled and confirmed the board’s report. Id.

On appeal, we concluded that the board’s findings did not support its

conclusion as a matter of law. Leidy Township, 943 A.2d at 377. We opined that

vacating the road was contrary to the board’s findings that the road was “needed for

government access to maintain public land and protect the public safety . . . .” Id.

“Given the [b]oard’s findings that Route 308 is needed for government access to

maintain public land and protect the public safety, it simply is not useless,

inconvenient [or] burdensome as a matter of law.” Id. Furthermore, we noted that

there is “nothing in the [] Code or the General Road Law, which authorizes a [b]oard

of [v]iew to partially vacate a road or to vacate it subject to an easement in favor of

the parties who need to use it.” Id. (emphasis in original). Thus, we reversed the

order of the trial court. Id.

The trial court likened Leidy Township to the case here because “the

evidence of recreational use for walking, jogging, hiking, or biking of the [Contested

Road] does not create a necessity for public access, especially when there is an

alternate route to access Skunk Hollow Park.” Trial Court 1925(a) Opinion,

10/18/17, at 42. The trial court explained that “[i]n Leidy Township, the road was

necessary for a public safety reason . . . .” Trial Court 1925(a) Opinion, 10/18/17,

at 42. However, the test here is not whether the road is “necessary.” Whether “such

road is necessary” is the proper test for a request to open a private road under the

Section 12 of General Road Law, 36 P.S. §2732, because the opening of a private

22

road over the land of another is in the nature of eminent domain.14 Soska, 19 A.3d

at 1188; Application of Little, 119 A.2d 587, 589 (Pa. Super. 1956); see also In re

Vacation of Wentz Road, 5 Pa. D. & C. 2d 727, 731 (1956) (the moving party need

only show uselessness or inconvenience and need not show lack of necessity for the

public convenience). As stated above, the proper test to vacate a road is whether the

road is useless, inconvenient, or burdensome. Swamp Road, 859 A.2d at 532; see

36 P.S. §1981. The test to vacate a road is much broader than the test to open a road

because the road is already in existence, and no taking is implicated. If a road is

necessary, it is, by definition, useful. See Leidy Township. However, the converse

is not necessarily true. Here, the Contested Road is useful for recreational use.

Furthermore, the facts favoring vacation of the road in Leidy Township

are absent here. In Leidy Township, there was no state game land or public park to

which the road provided access without trespassing on the landowners’ property.

Here, the Contested Road leads to and connects to Skunk Hollow Park and an

integrated system of park trails, which further supports the recreational use. Thus,

we conclude that Leidy Township does not compel the vacation of the Contested

Road.

2. Swamp Road

Next, Swamp Road involved an unpaved portion of Swamp Road, a

public road that serviced a Department of Conservation and Natural Resources’

14

In addition, we note that, under a prior version of Section 2304 of the Code, the General

Assembly authorized the board of supervisors to vacate a road if, in the supervisors’ judgment, it

was necessary. See former Section 1101 of the Code, formerly 53 P.S. §66101 of the Code. In

1995, the General Assembly reenacted and renumbered Section 1101 as Section 2304 and

eliminated the “necessary” language. See Bubb v. Blanchard, 740 A.2d 1196, 1198 (Pa. Cmwlth.

1999).

23

(DCNR) conservation area. The road traversed a heavily wooded and steeply sloped

area. Swamp Road, 859 A.2d at 529. Citing the road’s poor condition and infrequent

use as well as a plan to incorporate the road into an existing nature trail system,

DCNR sought to vacate a 0.7 mile portion of Swamp Road. Following the denial by

the township board of supervisors, DCNR petitioned the court for the appointment

of a board of view. The board of view conducted an evidentiary hearing, wherein

DCNR presented evidence concerning the road’s dilapidated condition, including

expert testimony that the narrow width of the road made its use inconvenient and

dangerous and that upgrades to the road would cost several hundred thousand

dollars. Id. at 532 n.5. The township countered with evidence that the road was

used by hikers, bikers, handicap hunters, and emergency vehicles on a regular basis.

Id. at 529. The board weighed the conflicting evidence and determined that the road

should be vacated, upon finding it was “useless, inconvenient, and burdensome.” Id.

at 530. The township filed exceptions. The trial court denied exceptions and ordered

the road vacated. Id.

On appeal, we examined the record and determined that “DCNR

produced ample evidence” as to the road’s condition and the cost to repair “to

conclude that the 0.7 mile portion of Swamp Road was useless or inconvenient or

burdensome.” Swamp Road, 859 A.2d at 532. “Although the [t]ownship

emphasize[d] conflicting evidence,” including recreational and emergency use,

“determining what weight to give evidence [was] an issue for the fact[]finder, not

the appellate court.” Id. (emphasis added). Thus, we affirmed. Id.

The trial court likened Swamp Road to the case here on the basis that

the evidence regarding the cost to improve and maintain the Contested Road, as well

as the lack of need for vehicles to travel thereon, “sufficiently outweighed the

24

evidence as to minimal recreational use.” Trial Court 1925(a) Opinion, 10/18/17, at

40. However, it was not for the trial court, as the reviewing court, to weigh the

evidence presented. Swamp Road, 859 A.2d at 532.

Here, the Board weighed the evidence and determined that the

pedestrian and recreational use outweighed the other evidence presented. As

discussed above, the Board’s findings of continued recreational use are amply

supported by the record and support the conclusion that the Contested Road is not

useless. Although there was evidence challenging the frequency of the use, the

evidence established that the Contested Road was used for recreational purposes on

a daily basis.

Furthermore, unlike the road in Swamp Road, the Board did not find

that the Contested Road was dilapidated, inconvenient, or dangerous, but could

continue to be used for recreational purposes and to access the Property without

improvement. Township Engineer testified that road improvements were not

necessary or mandatory to maintain the status quo. R.R. at 419a-20a. Paper Mill

Residents testified that the Contested Road was suitable for their recreational use in

its current condition. See id. at 103a-04a, 672a, 740a, 759a. Although evidence was

presented regarding the potential costs to improve the Contested Road, the Board

did not find that such costs were required because there is no need for vehicles to be

able to travel over the area requested other than to access the Property. F.F. Nos.

27, 30. Although the Board found that the Township “may improve” the paved

portion of the Contested Road if the Petition to Vacate is denied, it did not find that

such improvements were required. F.F. No. 27.

Critical to our analysis here, vacating the Contested Road would not

eliminate the Township’s burden regarding potential improvement costs. Three

25

residences, including the Brehmans’ Property, use the portion of Paper Mill Road,

after the split from Paper Mill Lane, for vehicular access. F.F. No. 34. Even if the

Contested Road is vacated, the Board found that the Township may face potential

improvement costs to construct a turnaround at the newly formed terminus to Paper

Mill Road upon petition from the property owners. F.F. No 29; see R.R. at 632a,

638a. Because the potential costs to improve the terminus of Paper Mill Road with

a turnaround exist regardless of whether or not the Contested Road is vacated, we

cannot conclude that the use or convenience of the Contested Road is “greatly

overbalanced by the cost” as a matter of law. Cf. Mahoning Township, 128 A.2d at

96.15 On the contrary, the Board’s findings in this case support the legal

determination that the Contested Road is not burdensome.

3. Likar Appeal

Lastly, in Likar Appeal, the viewers reported that the road in question

had become useless, inconvenient, and burdensome by reason that

it is impassable at certain periods of the year; has

insufficient clearance under an overhead railroad crossing;

has a bridge condemned for certain load limits; has

dangerous railroad grade crossings, and to be placed in

proper condition, would require the expenditure of

considerable sums of money, and for the further reason

that the State Highway Department has provided a good

and sufficient alternate route.

15

Mahoning Township concerned the vacation of a 1,500-foot portion of the road, which

constituted a loop through a farmer’s property. 128 A.2d at 96. This portion of the roadway was

mainly used for the purpose of aiding the farming operations on the property. Id. The Superior

Court noted that, although it will be necessary for the farmer to travel a longer distance to reach

the township roadway system beyond his farmland, “this inconvenience is greatly overbalanced

by the cost that would be entailed in reconstruction and upkeep.” Id.

26

43 A.2d at 389. Although the closure of the road would cause some inconvenience,

the Superior Court opined “mere inconvenience to some of the traveling public is

not sufficient to prevent a vacation.” Id. at 390. The Court determined that “other

valid factors outweigh such inconvenience.” Id.

The trial court likened this case to Likar Appeal because alternate

access to the park system is available. Although other access to Skunk Hollow Park

exists, the Board found it would be through “other more inconvenient routes.” F.F.

No. 51 (emphasis added). These alternate routes involve driving 1.5 to 2 miles to

Radnor Township. R.R. at 650a-51a, 697a. Unlike the road in Likar Appeal, the

Contested Road is not in poor or dangerous condition but may continue to be used

for its present purposes without improvement. As discussed above, the only asserted

inconvenience was to the Brehmans. Because a proper interpretation of the

inconvenient provision favors the public interests, as opposed to private interests,

see 1 Pa. C.S. §1922(5), the Brehmans’ evidence of personal inconvenience was

insufficient to demonstrate inconvenience to support vacation of the Contested

Road. Clearly, the public interest, which is served by walkable access to a network

of trails and public parks, would not best be served by the vacation of the Contested

Road. Thus, the Board did not err in determining that the Contested Road was not

inconvenient.

IV. Conclusion

Upon review of the Board’s findings, supporting evidence, and

pertinent caselaw, we conclude that the Board did not err or abuse its discretion in

determining that the Contested Road was not useless, inconvenient, or burdensome

27

and denying the Petition to Vacate. Accordingly, we reverse the order of the trial

court and reinstate the Board’s Report.

MICHAEL H. WOJCIK, Judge

Judge Covey did not participate in the decision of this case.

Judge Fizzano Cannon did not participate in the decision of this case.

28

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Vacation of a Portion of : CASES CONSOLIDATED

Paper Mill Road, Newtown Township, :

Petition of Scott Brehman and :

Margaret Brehman : No. 701 C.D. 2017

:

Appeal of: Newtown Township :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown :

Township, Petition of Scott :

Brehman and Margaret Brehman : No. 730 C.D. 2017

:

Appeal of: Jennifer F. Anderson, :

Ross D. Anderson, John Balog, Jr., :

Theresa A. Balog, Valerie Boyko, :

Henry S. Bryans, Martha B. Bryans, :

Maureen A. Cherry, James Cox, :

Monica Cox, Gary S. Coyle, Laurena :

S. Coyle, James B. Francis, Jr., Sally :

M.G. Francis, Brandon J. Koch, Diane :

M. Koch, Janet Krevenas, Christopher :

D. McIsaac, Linda I. McIsaac, John W. :

Newman, Lansdale S. Newman, David :

M. Reller, Tracy M. Reller, Paula :

Rothermal, Rodman S. Rothermal, :

Paul H. Saint-Antoine, Susan M. :

Saint-Antoine, Robert S. Winter, Jr., :

and Vicki L. Winter :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown Township :

Petition of Scott Brehman and :

Margaret Brehman : No. 1300 C.D. 2017

:

Appeal of: Newtown Township :

In Re: Vacation of a Portion of :

Paper Mill Road, Newtown :

Township, Petition of Scott Brehman :

and Margaret Brehman : No. 1311 C.D. 2017

Appeal of: Jennifer F. Anderson, :

Ross D. Anderson, John Balog, Jr., :

Theresa A. Balog, Valerie Boyko, :

Henry S. Bryans, Martha B. Bryans, :

Maureen A. Cherry, James Cox, :

Monica Cox, Gary S. Coyle, :

Laurena S. Coyle, James B. Francis, Jr., :

Sally MG Francis, Brandon J. Koch, :

Diane M. Koch, Janet Krevenas, :

John W. Newman, Lansdale S. :

Newman, Christopher D. McIsaac, :

Linda I. McIsaac, David M. Reller, :

Tracy M. Reller, Rodman S. :

Rothermal, Paula Rothermal, :

Paul H. Saint-Antoine, Susan M. :

Saint-Antoine, Robert S. Winter, Jr., :

and Vicki L. Winter :

ORDER

AND NOW, this 20th day of April, 2023, the order of the Court of

Common Pleas of Delaware County, dated May 23, 2017, is REVERSED, and the

Report of the Board of View, dated February 3, 2016, is REINSTATED.

__________________________________

MICHAEL H. WOJCIK, Judge