Pennsylvania Supreme Court Rules for Private Property Rights In Key Post-Kelo Decision

John Kramer
John Kramer · October 5, 2010

Arlington, Va.—On Friday, October 1, the Pennsylvania Supreme Court handed down yet another state high-court ruling protecting private property under state constitutions from seizure by the government. This decision is part of a national trend in favor of property rights following the U.S. Supreme Court’s disastrous opinion in 2005’s Kelo v. City of New London, in which a narrow 5-4 majority held that private property can be taken by the government for private economic development.

The Institute for Justice, which litigated the Kelo case all the way to the U.S. Supreme Court, filed a friend of the court brief in the Pennsylvania case (In the Matter of: Opening a Private Road to Benefit Timothy O’Reilly, J-70-2010) on behalf of landowners in danger of losing their property to a private road.

The law at issue in last Friday’s decision was Pennsylvania’s Private Road Act. The Act authorizes the owners of landlocked property to petition a state court to grant them a right to build a private road over the property of a neighbor in order to connect the landlocked property to a public road. Under the Act, the new road belongs entirely to the owner of the landlocked property.

“Although much of the opinion is very technical, the bottom line is critically important for all Pennsylvanians,” said Dana Berliner, senior attorney at the Institute for Justice. “The public must be ‘the primary and paramount beneficiary’ of any use of eminent domain in the state.”

The Commonwealth Court had held that takings under the Private Road Act were automatically constitutional, but the Pennsylvania Supreme Court disagreed and told the lower courts to make that determination on the facts of the case.

“That means that Pennsylvanians subject to eminent domain will have a genuine opportunity to defend themselves and to prove that the taking is for private benefit and not for a paramount public benefit,” Berliner explained. “Other states, like New York, do not give property owners that opportunity. With this ruling, the Pennsylvania Supreme Court made sure that all Pennsylvania owners have a chance to protect their rights.”

The Institute for Justice friend of the court brief was drafted by Paul R.Q. Wolfson, Rachel Brand and Steven Lehotsky of Wilmer Cutler Pickering Hale & Dorr, L.P. and assisted by local counsel Howard J. Bashman of Willow Grove, Pa.