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Stone v. Kingston4/22/1998
re that constitutes de novo review. Pursuant to particular statutes, procedures run the gamut from excluding all previous testimony to permitting the adjudicator, in his or her discretion, to receive no additional testimony. The sine qua non of de novo review is not that the person or body conducting the review hear testimony anew; rather it is that such person or body possess and exercise the authority to arrive at an independent judgment on the matter in dispute. The Court notes that 53 P.S. §67305 states only that an appointed Board of View must "review the ordinance and the exceptions thereto." Nothing in this language gives rise to an inference that the record before the Supervisors must be excluded from the proceedings before the Board of View. Where specific statutory language such as that involved in Funk does not constrain the de novo review, the Court believes that the general definition discussed in Gresock and Pendergast applies. Under that definition, the Board of View did not err by admitting into evidence the record made before the Supervisors. In addition, this Court agrees that the hearing before the Board of View had the attributes of the fact finding process. The Township was the party with the overall burden of persuasion to show necessity for vacating the disputed portion of Dellinger Road, and it had the initial burden to go forward to make out its case. Matter of Jackson Township. Contrary to Kingston's assertion that the Board of View ruled that the Township had made out its prima facie case, the statement of the Chairman at the hearing that the burden had shifted to others to go forward simply reflected that the party with the initial burden had rested its case. Once the Township rested, it became incumbent on others to go forward if the hearing were to proceed. Kingston and Codorus did so by calling witnesses and offering exhibits, and a substantial new record was created. Further, Kingston was aware of the Township's intention to submit the record before the Supervisors into evidence, and he had the power to subpoena any witness who had appeared in the earlier hearing. Kingston did subpoena all three Supervisors; he called only one Supervisor as a witness.
Finally, after reviewing the decision of the Board of View, the Court sees no indication that the Board of View believed that it should function in an appellate role or that it did so. The Board of View made extensive independent findings of fact; it analyzed the legal issues involved and resolved them and it arrived at its own determination. The common pleas court in the present case therefore erred in concluding that, because the Board of View serves no appellate function, Matter of Jackson Township, it was required to hear all of the testimony anew. Accordingly, the Court reverses the order of the common pleas court.
Judge Leadbetter did not participate in the decision in this case.
DORIS A. SMITH, Judge
O R D E R
AND NOW, this 22nd day of April, 1998, the order of the Court of Common Pleas of York County is reversed, and the report of the Board of View dated October 31, 1996 is reinstated.
DORIS A. SMITH, Judge
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