G. Hudock & G. Hudock, h/w v. Saltlick Twp., PA ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gabriel Hudock and Gloria Hudock, :
husband and wife, :
Appellants :
:
v. : No. 321 C.D. 2021
: ARGUED: September 12, 2022
Saltlick Township, Pennsylvania and :
Seven Springs Mountain Resort, Inc., :
formerly known as Seven Springs Farm, Inc. :
Gabriel Hudock and Gloria Hudock, :
husband and wife :
:
v. : No. 391 C.D. 2021
:
Saltlick Township, Pennsylvania and :
Seven Springs Mountain Resort, Inc., :
formerly known as Seven Springs Farm, Inc. :
:
Appeal of: Tinkey Cemetery :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 16, 2022
The focus of the above-captioned appeals is Neals Run Road, a rural
single-lane gravel road that traverses through property owned by Seven Springs
Mountain Resort, Inc. and abuts properties owned by Gabriel and Gloria Hudock.1
1
In June 2021, this Court consolidated the above-captioned appeals.
Tinkey Cemetery is located to the west of the Hudocks’ properties and depends on
Neals Run Road for access.
In the appeal with this Court docketed at No. 321 C.D. 2021, the
Hudocks appeal from an order of the Court of Common Pleas of Fayette County
denying-in-part and granting-in-part their exceptions to the report of a Board of
Viewers appointed by the trial court. The Board recommended that a portion of
Neals Run Road be vacated pursuant to the act commonly known as the Private Road
Act (PRA).2 In No. 391 C.D. 2021, Tinkey Cemetery appeals from the trial court’s
order denying its emergency petition to intervene in the litigation initiated by the
Hudocks. In addition, we consider Tinkey Cemetery’s application to quash appeal.
We affirm both of the trial court’s orders and deny the application to quash.
The pertinent background is as follows. “Neals Run Road . . . traverses
[generally east-west] through a mountainous area of Saltlick Township located in
Fayette County with a small portion thereof located in Somerset County, being [in]
Seven Springs Borough and Middle Creek Township.” (April 15, 2020 Bd. Decision
at 76-77; Reproduced Record “R.R.” at 738a-39a.) On its western end in Fayette
County, Neals Run Road is essentially an off-shoot road from the paved public road
known as Indian Head Road, terminating there when traveling westward. (Id. at 78;
R.R. at 740a.) On its eastern end, Neals Run Road terminates at County Line Road
in Somerset County. There, Neals Run Road is known as Kate Henry Road. (Id. at
78-79; R.R. at 740a-41a.)
The Hudocks own real property in Saltlick Township, Fayette County,
including 543 Neals Run Road (Parcel ID 31-21-0003) and an adjacent property that
they subdivided in 2011 with the County’s approval, both abutting the road on the
2
Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §§ 2731-2891.
2
south (Parcel ID 31-21-0003-01 through 07).3 (Id. at 29; R.R. at 691a.) In addition
to Tinkey Cemetery, the other properties located on the western portion of Neals
Run Road to the west of the Hudocks’ properties include those of Brian Kalp, the
McHolmes, and Bruce Jones. Neals Run Road runs through Seven Springs’
property, which surrounds the aforementioned properties, and the resort is the only
abutting property owner on the eastern portion.
In the 1970s, Seven Springs developed ski slopes (North Face)
extending over the eastern portion of Neals Run Road thereby closing that portion
during ski season. For many years, Saltlick Township informally acquiesced to the
arrangement before entering into a formal agreement in 1991 thereby granting Seven
Springs a license to obstruct the eastern portion of Neals Run Road with man-made
and natural snow and to prevent vehicular traffic thereon from November 15 to April
1.4 The eastern boundary of the Hudocks’ property is the western boundary of the
North Face, where Seven Springs places one of two gates to block vehicular access
to the slopes. The second gate is located to the east in Somerset County near North
Gate Road, a private road traversing Seven Springs’ property between Neals Run
3
Promoting the lots as ski-in/ski-out was part of Mr. Hudock’s plan in undertaking the
subdivision. (Nov. 6, 2019 Bd. Hr’g, Notes of Test. “N.T.” at 152-53; Suppl. R.R. “S.R.R.” at
366b-67b.)
4
The duration of the obstruction was subject to the provision “that if the road is open to regular
traffic during the first few days of deer hunting season, then Seven Springs shall keep [it] open
during [those] first few days . . . at approximately the time of the Thanksgiving holiday.” (Oct. 1,
1991 Road Use License and Maintenance Agreement, Ex. 1 of Sept. 6, 2016 Pet. for Appointment
of Bd. of Viewers, ¶ 2; R.R. at 518a.) In addition, acknowledging the presence of “a cemetery to
which access may be needed from time to time during the winter months . . . Seven Springs agrees
to provide access . . . in the event of such necessity.” (Id., ¶ 3.) “In the alternative, Seven Springs
shall request Saltlick Township to open the road from the other end and bill Seven Springs for the
cost . . . .” (Id.) The reimbursement was to be no less than $100 per occurrence. (Id.)
3
Road and County Line Road. Seven Springs opens North Gate Road intermittently
for use by its employees and guests. (Id. at 53; R.R. at 715a.)
During the annual closure, the Hudocks and other property owners to
the west must access their properties via the western portion of Neals Run Road.
The western property owners testified that they had no issue with accessing their
properties to the west during the annual closures, stating that “they have no problem
getting in and out to the public road by going in the direction of Indian Head Road
and that they don’t use the eastern part very much . . . .” (Id. at 78; R.R. at 740a.)
“[N]o one lives on the eastern portion . . . of Neals Run Road beyond the Hudock
property and all the way through the balance of Fayette County and into some of
Somerset County where the road is known as Kate Henry Road [and] where only
one family resides.” (Id. at 14; R.R. at 676a.)
In November 2015, the Hudocks filed a complaint in the Court of
Common Pleas of Fayette County seeking an order that Saltlick Township maintain
the eastern portion and enjoin the annual closure. The trial court denied the
Hudocks’ petition for a preliminary injunction, concluding that they failed to
establish immediate and irreparable harm because they had owned their property for
seven years under the same conditions. (Nov. 16, 2015 Trial Ct. Order at 1; R.R. at
150a.) Subsequently, the Hudocks petitioned Saltlick Township to vacate a portion
of the road that runs through Fayette County pursuant to Section 2304 of the Second
Class Township Code.5 Saltlick Township denied the petition.
In September 2016, the Hudocks filed their petition for appointment of
a board of viewers pursuant to the PRA. They requested that the portion of Neals
5
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.
4
Run Road beginning at the westernmost boundary of their property and continuing
east up to the boundary line between Saltlick Township and Seven Springs Borough
be vacated pursuant to Sections 1 and 18 of the PRA, 36 P.S. §§ 1781 and 1981.
(Sept. 6, 2016 Pet. for Appointment of Bd. of Viewers, ¶ 25; R.R. at 515a.) Section
1 affords common pleas courts the power to appoint viewers. Section 18 affords
them the authority “to change or vacate the whole or any part of any private or public
road . . . whenever the same shall become useless, inconvenient or burthensome . . .
.” 36 P.S. § 1981. In the case of vacation, the Hudocks further requested that the
trial court decree that the vacated portion become a private right-of-way for their
benefit pursuant to Section 1 of the Act of April 17, 1929, P.L. 530 (Act of 1929),
36 P.S. § 2781. (Sept. 6, 2016 Pet. for Appointment of Bd. of Viewers, ¶ 26.)
Following a view and hearings conducted over four days in November
and December 2019, the Board concluded that the closed road portion of Neals Run
Road had become useless, inconvenient, or burdensome and, accordingly,
recommended vacation under Section 18 of the PRA. The vacated portion was to
include “that portion of Neals Run Road from the gate on the western side of the
North Face where it is currently located on Seven Springs property and running to
the east to the point where Neals Run Road meets with North Gate Road.” (April
15, 2020 Bd. Decision at 84; R.R. at 746a.) The Board did not include that portion
of Neals Run Road in front of the Hudocks’ property as they had requested. The
Board also recommended that the trial court order Seven Springs to “provide for the
appropriate cul-de-sac in order to comply with any Federal, State or Local Laws to
be placed on the western part of its property where the gate is located to the west.”
(Id. at 85; R.R. at 747a.) However, the Board declined to recommend that a private
right-of-way be granted across the closed road portion.
5
In April 2020, the trial court issued a decree nisi6 confirming the report
and advising the parties that it would become a final decree in the absence of
exceptions being filed within thirty days. The Hudocks filed three exceptions to the
report: (1) exception to the Board’s failure to recommend a right-of-way along the
vacated eastern portion of Neals Run Road by operation of law for the use and
benefit of the Hudocks and others; (2) exception to the Board’s recommendation of
a cul-de-sac; and (3) exception to the Board’s contingent recommendation that the
longstanding practice between Saltlick Township and Seven Springs to close Neals
Run Road be continued if the trial court declined to accept the Board’s primary
recommendation.
The trial court denied the first exception, granted the second, and
determined that the third was moot. On February 16, 2021, the trial court confirmed
the April 2020 decree nisi and declared the same as a final decree. In Tinkey
Cemetery’s ensuing emergency petition to intervene, Tinkey Cemetery averred that
it first discovered the litigation on March 2, 2021. Nonetheless, the trial court denied
the petition. The Hudocks appeal from the trial court’s order adjudicating the
exceptions and Tinkey Cemetery appeals from the trial court’s denial of the
emergency petition to intervene.
I.
We first consider Tinkey Cemetery’s August 2022 application to quash
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1972(a)(7), a catch-all
provision providing that an appeal may be quashed for any reason not enumerated
6
The Latin word for “unless,” nisi means “([o]f a court’s ex parte ruling or grant of relief)
having validity unless the adversely affected party appears and shows cause why it should be
withdrawn.” Adams Twp. v. Richard Twp., 154 A.3d 250, 259 n.11 (Pa. 2017) [quoting Black’s
Law Dictionary 1207 (10th ed. 2014)].
6
but appearing on the record.7 Tinkey Cemetery filed this application immediately
before the Court’s September argument session despite previously asserting in the
statement of jurisdiction segment of its brief that this Court had jurisdiction over a
final order of the trial court. (Dec. 20, 2021 Definitive Br. of Tinkey Cemetery at
1.) In any case, Tinkey Cemetery argues that, especially in light of the fact that the
trial court cancelled a July 2020 jury trial in the equity case, there was no final order
entered in that action, the one from which it and the Hudocks appealed.
Tinkey Cemetery’s position is without merit. Over two years before
cancelling the jury trial, the trial court, upon consideration of the record and the
Hudocks’ motion to consolidate, consolidated for discovery and trial the equity
action (No. 2212 of 2015 GD) and the Fayette County board of viewers PRA action
(No. 1750 of 2016 GD).8 (Nov. 21, 2018 Trial Ct. Order; R.R. at 607a.) Of course,
a consolidation for those purposes does not necessarily mean that one case is
7
Rule 1972(a) provides that “any party may move” for a disposition on motion. Pa. R.A.P.
1972(a) (emphasis added). Section 102 of the Judicial Code defines “party” as “[a] person who
commences or against whom relief is sought in a matter.” 42 Pa.C.S. § 102. It is unclear whether
a litigant denied intervention below has standing to file an application to quash in an appellate
court. Pennsylvania Rule of Appellate Procedure 501 requires an appellant to have party status in
order to appeal. Given the fact that Tinkey Cemetery in its appeal to this Court is challenging the
trial court’s denial of its emergency petition to intervene, we consider the application to quash.
8
The Hudocks initiated a second board of viewers action in the Court of Common Pleas of
Somerset County at No. 587 Civil 2016 for that portion of Neals Run Road/Kate Henry Road
located in that county. The Somerset County action and the one in Fayette County at No. 1750 of
2016 GD were already coordinated pursuant to Pennsylvania Rule of Civil Procedure 213.1,
Pa.R.Civ.P. 213.1, pertaining to coordination of actions in different counties. (May 25, 2018 Trial
Ct. Order at 1-2; R.R. at 595a-96a.) Fayette County’s coordination order, a certified copy of which
was filed in Somerset County, also stayed the Somerset County action pending the Fayette County
board of viewers’ recommendation. (Id. at 1; R.R. at 596a.) The last docket entry in the Somerset
County matter is in March 2021 and provides: “Per phone call of Fayette County Prothonotary’s
Office-the [Fayette County] report of board of view[ers], decree nisi and opinion and order are to
be returned to Fayette County Prothonotary’s Office for appeal purposes.” (Somerset Common
Pleas Docket Entries, No. 587 Civil 2016; S.R.R. at 9c.)
7
subsumed in the other. Confusingly, however, the docket entries for what started as
the Fayette County board of viewers PRA action stop on February 19, 2020 (No.
1750 of 2016 GD, Docket Entries; S.R.R. at 1c-3c) and all further orders related to
the PRA action were entered on the equity action docket, including the decree nisi
and its confirmation as a final decree. When the trial court cancelled the jury trial,
it did so in consideration of its decree nisi. (July 1, 2020 Trial Ct. Order, Ex. 3 to
Tinkey Cemetery’s Aug. 18, 2022 Appl. to Quash.) This Court is persuaded that the
trial court’s finalization of the viewers action rendered the equity action moot and
that the trial court considered that action to be disposed of by its confirmation of the
decree nisi. Consequently, although the better practice would have been to enter the
decree nisi and its confirmation on the board of viewers docket and to dismiss the
equity action, on its own separate docket, as moot, we believe the order appealed
from operated as a final order disposing of both cases.9 Tinkey Cemetery’s
application to quash is without merit.
II.
We next consider whether the trial court erred in denying Tinkey
Cemetery’s emergency petition to intervene, the focus of its appeal at No. 391 C.D.
2021. Pennsylvania Rule of Civil Procedure 2328 requires a proposed intervenor to
attach the pleadings that it would file if permitted to intervene. Pa.R.Civ.P. 2328.
Tinkey Cemetery attached a motion to strike and/or open judgment and a petition
for a second view.
9
Notwithstanding the fact that there were two related dockets below, the Hudocks filed their
notice of appeal with this Court under only one lower court docket number. In Commonwealth v.
Walker, 185 A.3d 969, 976 (Pa. 2018), the Supreme Court held that when “one or more orders
resolves issues arising on more than one docket or relating to more than one judgment, separate
notices of appeals must be filed.” Because the Hudocks technically did not appeal two dockets in
one appeal, we conclude that the Walker rule does not apply here.
8
Tinkey Cemetery filed its petition after the trial court’s confirmation of
the decree nisi but before the appeal period had expired. In pertinent part,
Pennsylvania Rule of Civil Procedure 2327 provides as follows as to when and who
may intervene:
At any time during the pendency of an action, a
person not party thereto shall be permitted to intervene
therein, subject to these rules if
....
(4) the determination of such action may affect any
legally enforceable interest of such person whether or not
such person may be bound by a judgment in the action.
Pa.R.Civ.P. 2327. However, even an otherwise qualified petitioner may be denied
intervention if “the intervention will unduly delay, embarrass or prejudice the trial
or the adjudication of the rights of the parties.” Pa.R.Civ.P. 2329(3).
As a threshold matter, the trial court concluded that Tinkey Cemetery
failed to satisfy Rule 2327’s requirement that a petition for leave to intervene must
be filed during the pendency of an action. Tinkey Cemetery argues that the instant
matter remained pending because the appeal period had not yet expired, citing
Section 5505 of the Judicial Code’s provision that a trial court has broad discretion
to modify or vacate its own orders for thirty days thereafter. 42 Pa.C.S. § 5505.
Tinkey Cemetery’s position is without merit. The fact that the trial
court retained discretion to modify or vacate its order for thirty days is not
determinative as to whether the matter remained pending. A matter is “pending”
until a final adjudication has been issued. Barasch v Pa. Pub. Util. Comm’n, 540
A.2d 966, 969 (Pa. Cmwlth. 1988) [(citing Sch. Dist. of Robinson Twp. v. Houghton,
128 A.2d 58 (Pa. 1956)]. “After final adjudication, a petition to intervene is too
late.” Newberg by Newberg v. Bd. of Public Educ., 478 A.2d 1352, 1354-55 (Pa.
9
Super. 1984). Accordingly, a petition to intervene filed after the entry of a decree
should be denied absent extraordinary circumstances. Jackson v. Hendrick, 446
A.2d 226, 230 (Pa. 1982); Pendle Hill v. Zoning Hearing Bd. of Nether Providence
Twp., 134 A.3d 1187, 1197 (Pa. Cmwlth. 2016). Because the trial court had already
entered a final order, Tinkey Cemetery had to establish extraordinary circumstances
warranting the grant of intervention.
Tinkey Cemetery argued that the lengthy duration of the litigation,
without its participation, and its presence in the road use and maintenance
agreement, constituted extraordinary circumstances warranting the grant of an
untimely petition for intervention. However, extraordinary circumstances “cannot
pertain to the merits or the substantive defense the intervenor seeks to litigate.”
Pendle Hill, 134 A.3d at 1197. “[I]t is the circumstances proffered to excuse the
untimely filing that must be scrutinized.” Id. To that end, Tinkey Cemetery seems
to argue only that it did not discover the litigation until March 2, 2021.
The question of intervention is within the sound discretion of the court
below. Lewis v. Pine Twp., 367 A.2d 742, 744 (Pa. Cmwlth. 1976). In addition to
determining that the matter was no longer pending when Tinkey Cemetery sought
intervention, the trial court concluded that “Tinkey Cemetery has no property right
or interest in the vacated portion of Neals Run Road, [it] is not an indispensable
party, and [its] ingress and egress to the cemetery is not restricted.” (March 17, 2021
Trial Ct. Order at 2; R.R. at 1052a.) Further, the duration of the litigation actually
supports denial of the petition. In addition to the trial court’s efforts, the Board
undertook a view and conducted hearings over four days. The latter proceedings
involved numerous witnesses, including homeowners, who invested time, effort,
10
and/or other resources into these matters. Accordingly, we conclude that the trial
court did not abuse its discretion in denying the petition to intervene.
III.
In the appeal at No. 321 C.D. 2021, the Hudocks appeal from the trial
court’s order denying-in-part and granting-in-part their exceptions to the Board’s
report. The Hudocks’ first two arguments are interrelated because they both
question the breadth of the trial court’s authority when conducting appellate review
of a report from a board of viewers.10 The Hudocks argue that the trial court
exceeded its statutory authority when it deviated from the relief requested in the
petition to vacate Neals Run Road and that it erred in accepting only a portion of the
Board’s report. Specifically, they argue that the trial court was empowered to accept
or reject the Board’s report only as a whole, should not have adopted bifurcated
relief, and erred in adopting the Board’s recommendation to vacate Neals Run Road
without simultaneously granting the private road/right-of-way.
The Hudocks’ argument misstates the trial court’s authority in these
cases. Pursuant to Section 1 of the Act of 1929, the trial court adopted the Board’s
recommendation not to grant a private right-of-way. Section 1 provides as follows:
Retention of vacated public road as private road
Whenever viewers, appointed by the court of quarter
sessions to view and vacate any public road within this
10
“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 Constr., Inc., 658 A.2d 341, 343 (Pa. 1995).
11
Commonwealth,[11] shall find and report that there is no
necessity for such public road, but shall recommend in
their report that the route thereof, or of any portion thereof,
be and remain a private road, upon the approval of their
said report and the confirmation thereof by the court and
the vacation of said public road, the court shall have
power to enter a decree that the route of such abandoned
public road, or any portion thereof, so recommended for
a private road, shall be and become a private road, of the
width of twenty-five feet, for the use and benefit of the
owners of lands through or along which it passes, to be
maintained and used as private roads are now maintained
and used under existing laws.
36 P.S. § 2781 (footnote and emphasis added).
As the trial court determined, “[t]he statute is not mandatory that upon
the Court’s vacating of a public road that the same automatically becomes a private
right-of-way.” (Feb. 16, 2021 Trial Ct. Op. at 5-6.) The plain language of Section
1 of the Act of 1929 affords the trial court discretion to “enter a decree that the route
of such abandoned public road, or any portion thereof, so recommended for a private
road, shall be and become a private road[.]” 36 P.S. § 2781 (emphasis added). The
phrase “any portion thereof” also implies a possibility of “no portion thereof.”
Where the language of a statute is clear and unambiguous, the words are not to be
disregarded under the pretext of pursing its spirit. Section 1921(b) of the Statutory
Construction Act of 1972, 1 Pa.C.S. § 1921(b). It is only when the language is not
explicit that the court should seek to determine the legislature’s intent through
consideration of statutory construction factors. 1 Pa.C.S. § 1921(c).
11
“Section 4 of the Schedule to the Judiciary Article of the 1968 Constitution abolished the
quarter session courts.” In Re Vacation of Portion of Twp. Rd. 164, 518 A.2d 2, 3 n.1 (Pa. Cmwlth.
1986). The jurisdiction once exercised by the quarter session courts went to the common pleas
courts. Id.12
In addition, had the trial court entered such a decree for a private road,
it would have applied only to “the owners of lands through or along which it
passes[,”], 36 P.S. § 2781, which would not have included the Hudocks. The trial
court observed that the Hudocks were not abutting landowners to the portion of
Neals Run Road subject to vacation. Instead, Seven Springs was the only landowner
of the surrounding lands on the vacated portion. (Feb. 16, 2021 Trial Ct. Op. at 6.)
Section 3 of the Act of February 27, 1849, P.L. 90 (Act of 1849), provides for the
reversion of vacated land to the abutting property owner, stating: “Whenever any
highway, street, court, or alley, shall be vacated, or hath been vacated, by authority
of law, the adjoining owner or owners shall be authorized to reclaim the same . . . .”
36 P.S. § 2131. At all events, the trial court cited the Board’s reasoning that “a right-
of-way was not necessary as all properties in the vicinity of the vacated road were
accessible via the public roadway, Indian Head Road.” (Feb. 16, 2021 Trial Ct. Op.
at 5.)
In sum, the trial court conducted an appropriate appellate review of the
Board’s decision. Taken to its logical conclusion, the Hudocks’ argument would
result in the trial court not considering the Board’s recommendations individually
and rubber stamping all of them, including the cul-de-sac recommendation, to which
the Hudocks excepted. This interpretation is not consistent with the trial court’s
appellate review and case law acknowledging the authority of trial courts to
disregard discrete portions of reports where the viewers overstepped their
jurisdiction or abused their discretion. See, e.g., In re Limestone Rd., 67 Pa. Super.
105, 109 (1917) (where board of viewers was appointed to consider only the single
question of whether a partially opened road should be changed or vacated, that part
of their report recommending that the road should be vacated and relocated was
13
deemed surplusage and Superior Court affirmed the lower court’s decision
disregarding that portion of the report where the viewers overstepped their
jurisdiction and confirming the remainder of the report as modified).
IV.
The Hudocks next argue that the trial court exceeded its statutory
authority when it vacated the small segment of the closed portion of Neals Run Road
located in Somerset County.12 As noted, in addition to the September 2016 board of
viewers action filed in Fayette County, which is the subject of the present appeal,
the Hudocks also filed a November 2016 board of viewers action in Somerset
County and secured a coordination of the two actions pursuant to Pennsylvania Rule
of Civil Procedure 213.1, pertaining to coordination of actions in different counties.13
(May 25, 2018 Trial Ct. Order at 1-2; R.R. at 595a-96a.) However, only the Fayette
County case advanced and the Board of Viewers vacated the very small piece of the
road lying in Somerset County in its decision. We conclude that the Hudocks waived
this issue by failing to raise it during the underlying proceedings. Soska v. Bishop,
19 A.3d 1181, 1190 (Pa. Cmwlth. 2011) (where landowners failed to include issue
in their exceptions to the board of viewers report, the issue was waived for appellate
review).14
12
The length of the Somerset County portion is approximately one-tenth of one mile.
13
See supra note 8 detailing the history of the Somerset County action.
14
Were the issue not waived, we would nevertheless affirm. Rule 213.1(d)(3) provides: “If
the court orders that actions shall be coordinated, it may . . . (3) make any other appropriate order.”
Pa.R.Civ.P. 213.1(d)(3). The rationale for Rule 213.1 is to “avoid[] multiple trials and proceedings
in these actions and the resultant economy to both parties and the judicial system.” Pa.R.Civ.P.
213.1 (Explanatory Comment-1990). Hence, subsection (d)(3) affords an opportunity for creative
judicial management. Id. The order is “limited only by its function of providing a fair and efficient
method of adjudicating the controversy.” Id. There is no temporal limitation in the subsection
that prevents such creativity in the resolution of a stray outstanding issue in a coordinating
(Footnote continued on next page…)
14
V.
The Hudocks next maintain that the trial court erred in failing to apply
specific provisions of Pennsylvania’s road laws, including those pertaining to the
composition of a board of viewers and demands for a second view. However, they
also waived any challenges as to the Board’s composition and the opportunity for a
second view. The trial court requested that the parties select “an attorney, a realtor,
and an engineer for a Board of Viewers from the appropriate list available at the
Fayette County Prothonotary’s Office.” (Oct. 26, 2018 Trial Ct. Order at 1; R.R. at
597a.) When the parties were unable to come to an agreement, the trial court in
accordance with the aforementioned order made the appointment. (March 25, 2019
Trial Ct. Order at 1; R.R. at 608a.) The Hudocks failed to object to the composition
of the board of viewers at any point during the underlying proceedings and raised
the issue of the absence of a surveyor for the first time on appeal. Similarly, they
waived any issue pertaining to the demand for a second view. As an attachment to
the emergency petition to intervene, Tinkey Cemetery attached a proposed petition
for a second view. Notwithstanding the Hudocks’ attempted joinder in “intervenor”
Tinkey Cemetery’s petition for a second view, raising a request in this manner via
an entity that was denied intervention below does not constitute a party raising
and/or preserving an issue on appeal.
VI.
Finally, the Hudocks contend that the trial court erred in refusing to
enjoin the annual winter closure of the eastern portion of Neals Run Road for Seven
Springs’ private purposes. As the trial court determined, because it accepted the
jurisdiction. In addition, we perceive no legitimate reason for relegation of this matter for further
proceedings in the Court of Common Pleas of Fayette County.
15
Board’s recommendation to vacate the closed portion, the third exception was
rendered moot. (Feb. 16, 2021 Trial Ct. Op. at 7.)
VII.
In light of the foregoing, we affirm the relevant orders of the trial court
and deny Tinkey Cemetery’s application to quash.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Judge Dumas did not participate in the decision for this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gabriel Hudock and Gloria Hudock, :
husband and wife, :
Appellants :
:
v. : No. 321 C.D. 2021
:
Saltlick Township, Pennsylvania and :
Seven Springs Mountain Resort, Inc., :
formerly known as Seven Springs Farm, Inc. :
Gabriel Hudock and Gloria Hudock, :
husband and wife :
:
v. : No. 391 C.D. 2021
:
Saltlick Township, Pennsylvania and :
Seven Springs Mountain Resort, Inc., :
formerly known as Seven Springs Farm, Inc. :
:
Appeal of: Tinkey Cemetery :
ORDER
AND NOW, this 16th day of November, 2022, the order of the Court of
Common Pleas of Fayette County at issue in No. 321 C.D. 2021, denying-in-part
and granting-in-part Appellants’ exceptions to the report of an appointed board of
viewers, is hereby AFFIRMED. The order of the Court of Common Pleas of Fayette
County at issue in No. 391 C.D. 2021, denying Tinkey Cemetery’s emergency
petition to intervene, is also AFFIRMED. Further, the application to quash filed by
Tinkey Cemetery is hereby DENIED.
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BONNIE BRIGANCE LEADBETTER,
President Judge Emerita