2023-04

In Re: Vacation of a Portion of Paper Mill Rd. ~ Appeal of: Newtown Twp. ( 2023 )

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         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
4
$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.

In Re: Vacation of a Portion of Paper Mill Rd. ~ Appeal of: Newtown Twp. ( 2023 )

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