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HomeMy WebLinkAbout99-1236 declaratory judgmentSCOTT W. HARVEY, IN THE COURT Of COMMON PLEAS Of PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA Mo BOROUGH OF WORMLEYSBURG, DEFENDANT 99-1236 DECLARATORY JUDGMENT AND NOW, this /~.t4,{"" day of April, 2000, IT IS DECREED THAT defendant, Borough of Wormleysburg, cannot enforce the License Agreement it entered into with plaintiff, Scott W. Harvey, in 1994, to require plaintiff to vacate and remove a shed from the subject fifty-foot unopened section of South Second Street in the Borough of Wormleysburg. By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Plaintiff James Bogar, Esquire For Defendant :saa SCOTT W. HARVEY, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA Vo BOROUGH Of WORMLEYSBURG, DEFENDANT 99-1236 IN RE: DECLARATORY JUDGMENT BEFORE BAYLEY, J. OPINION AND JUDGMENT Bayley, J., April 24, 2000:-- Plaintiff, Scott W. Harvey, instituted this suit against defendant, Borough of Wormleysburg, on March 3, 1999. Plaintiff seeks a declaratory judgment that defendant may not, pursuant to the termination clause in a License Agreement entered into between the parties in 1994, require him to vacate and remove a shed on a section of South Second Street, fifty feet in width by one hundred thirty feet in depth, which is adjacent to property that he owns in the Borough of Wormleysburg. The Declaratory Judgments Act at 42 Pa.C.S. Section 7531-7541 provides at Section 7533: Any person interested under a... written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a... contract.., may have determined any question of construction or validity arising under the instrument... [or] contract... and obtain a declaration of rights, status, or other legal relations thereunder. We find the following facts. Plaintiff purchased a property at 230 South Second 99-1236 Street in the Borough of Wormleysburg on September 1, 1994. The property is on the west side of South Second Street and consists of two tracts on both the north and south side of Poplar Street where Poplar Street intersects with South Second Street. There is an office/warehouse on the larger tract to the north of Poplar Street in which plaintiff operates a business, Coins Unlimited. Poplar Street is open to the east of the intersection with South Second Street. It has never been opened to the west of the intersection where there is only a small section of land between plaintiff's two tracts before the unopened street ends at a railroad embankment. On July 19, 1909, the Borough of Wormleysburg, by ordinance, adopted various streets in the Borough and an official plan of such streets that had been dedicated to public use by John Wormley. The ordinance provides that such streets: [w]ithin the corporate limits of said borough, be and the same are hereby ordained and adopted as the public streets.., of said borough of Wormleysburg... that the plan of the aforesaid streets.., which said plan is hereto attached and made a part hereof, be and the same is hereby ordained, approved and adopted as the official plan of the plan of streets.., of the said Borough of Wormleysburg. Second Street was included in the streets adopted by the Borough under this ordinance. When plaintiff purchased his property in 1994, he entered into a written License Agreement with the Borough of Wormleysburg, which was prepared by the Borough, for a "[f]ifty (50) foot Borough right-of-way on South Second Street" next to his property. That fifty-foot section extends south past the intersection of Poplar Street. The grantors -2- 99-1236 of plaintiff's property, Alex and Dona DiSanto, and their predecessors in title, James and Cora Mardis, had similar license agreements with the Borough, the latter of which dated to September 4, 1984. All three agreements set forth that the Borough granted a license to the owners "for certain parking and use privileges" upon a fifty-foot Borough right-of-way on South Second Street. Plaintiff's License Agreement sets forth that the DiSantos and the Mardises had been issued a conditional temporary fence permit by the Borough and that plaintiff is bound by that permit. The section of South Second Street subject to the Agreement is fenced-in, and a portion of that fence is actually erected to the east of the street on property of Harrisburg Seaplane Base, Inc., which borders the fifty-foot section. Under a heading "Grant of License" the Agreement provides: The Borough hereby grants unto Harvey the right to utilize approximately sixteen (16) parking spaces, some of which are located in an unimproved and unopen fifty ($0) foot legal right-of-way for South Second Street owned by the Borough as is set forth in the attached site plan marked as Exhibit "B." Said right-of-way is not presently used by the Borough and permission is hereby granted to Harvey and his authorized agents to utilize portions of said right-of-way for parking only as designated on the attached Exhibit "B." (Emphasis added.) The Agreement contains the following indemnification clause: Harvey hereby agrees to indemnify, save harmless and defend the Borough on account of any claim, demand of action or cause of action asserted by any person or persons having private rights with respect to the unopened legal right-of-way of South Second Street, or any claims, demands, causes of action or lawsuits against the Borough which may arise as a result of any act, failure to act, injury, omissions, damages or the like which may occur to any person, partnership, corporation or otherwise as a result of Harvey's use and possession of the -3- 99-1236 aforesaid right-of-way of South Second Street as stated in this License Agreement. (Emphasis added.) The Agreement sets forth that the License is non-assignable, and under a heading, "Termination," it provides: This Agreement is terminable by either party at will by giving one hundred eighty (180) days prior written notice to the other party, or shall terminate automatically upon the sale of the tract by Harvey. Plaintiff, as did his predecessor in title, uses the 50-foot section of property for trucks to back up to a loading dock at the south end of his warehouse. He erected a large shed on the south end of the fifty-foot section that he uses for storage. His employees park their cars on the property. No one else uses the fenced-in property. On April 14, 1998, the Wormleysburg Borough council passed a resolution to terminate the License Agreement and notified plaintiff that he had to remove his shed and vacate the property within 180 days. The Borough plans to remove the fence and open the property for residential parking for which there is a considerable need. Plaintiff instituted this suit and sought an interim injunction to prevent the Borough from interfering with his use of the property. An ex parte injunction was entered on March 3, 1999. A hearing was conducted on March 5th and a preliminary injunction was entered to replace the ex parte injunction on March 8th. At the hearing for a declaratory judgment on March 20, 2000, the parties stipulated that the record of the hearing for the preliminary injunction be made part of this record. Additional testimony was then taken and the issues were briefed and argued. -4- 99-1236 The fifty-foot section of the street subject to the License Agreement has never been paved. Otherwise, South Second Street is paved to where it dead-ends at the intersection of Poplar Street. The fifty-foot section has never been opened by the Borough to vehicular traffic. It has not been maintained by the Borough although there is a drainage ditch on it that the Borough keeps open. Occasionally the Borough has plowed snow onto the property. The property is not on the tax rolls. For a period, until 1938, a private company operated a trolley line on tracks located in the middle of Second Street which went over the subject fifty-foot section of the property. There is no evidence as to when this trolley line was constructed, or what arrangements the trolley company had with the Borough, if any, for the operation of that line. The trolley company abandoned the line in 1938, and the tracks no longer exist. South Second Street is not open at any point south of the intersection with Poplar Street. The section of the unopened South Second Street just south of the subject fifty-foot section is used as a parking lot for a restaurant. Until the fence was erected that currently surrounds the property and part of the property of Harrisburg Seaplane Base, the property was an open field on which there was some gravel. Vehicles traveling on South Second Street occasionally used the property to turn around. John Holcombe, age eighty-six, lived in the Borough of Wormleysburg from when he was one-year-old until he was eighty-one. He was the code enforcement officer for the Borough from 1972 into the 1980s. In that capacity he issued the fence permit to James and Cora Mardis on September 4, 1984. Holcombe, along with other members -5- 99-1236 of his family, owned the property that plaintiff now owns from January 22, 1949, when it was sold to them by the Northern Central Railway Company, until August 28, 1962, when it was sold to Herman and Mary Bock. Holcombe constructed the building that plaintiff now uses for his company, Coins Unlimited. From the time he purchased the property until 1952, Holcombe manufactured equipment in that building. Thereafter, he rented the property to a paper company until it was sold to the Bocks in 1962. When Holcombe operated his manufacturing company he stored large quantities of lumber on the subject fifty-foot section of property for which he did not have the permission of the Borough of Wormleysburg. No one else used the property which remained unimproved during that period. DISCUSSION Plaintiff maintains that the Borough of Wormleysburg never opened the subject fifty-foot section of South Second Street by making it usable to the traveling public within twenty-one years of it being adopted as a public street by ordinance on July 19, 1909, after it was dedicated to public use by John Wormley. The Borough Code in Article XVII, 53 P.S. 46701-46782, governs streets in boroughs in the Commonwealth of Pennsylvania. Section 46706 provides: The provisions in this article, as applicable to the dedication, acceptance, laying out, opening and vacation of streets, shall be exclusive, and no streets shall be acquired, laid out, opened or vacated by any borough except under such provisions. The Borough Code is to be applied retroactively. Borough of Edgeworth v. -6- 99-1236 Lilly, 129 Pa. Commw. 361 (1989). Section 46701(1) provides that "Streets shall be of two classes, opened and unopened." Section 46701 (2) provides: 'Opened streets' shall mean and include all streets within the borough used as public passageways. Section 46701(3) provides: 'Unopened streets' shall mean and inClude all streets within the borough not used, accepted or maintained, but placed on the borough plan for future or prospective use, or placed on the plan of a real estate project, or referred to in individual deeds. Section 46701 (5) provides: 'Opening a street' shall mean and include the construction and grading of a street or portion thereof and the act of physically taking possession of an area or laid-out street for the purpose of making the same usable to the traveling public. (Emphasis added.) Section 46701 (6) provides: 'Improving a street' shall mean and include any work upon any street or portion thereof done or proposed to be done in order to open the same, if such street shall not previously have been opened, or if previously opened, to make the same more usable, or more suitable for use by the traveling public or safer for such use, and shall include, but shall not be limited to grading, paving, curbing and macadamizing. Section 46723 provides that "the laying out of a street, without opening the same, shall create no right to public use of such street." Section 46731 provides that "Any borough shall have authority, by ordinance (i) to open any street or portion thereof previously laid out; or (ii) simultaneously to lay out and open any street or portion thereof." Section 46724 provides, inter alia: Whenever any street shall have been laid out and shall not -7- 99-1236 have been opened to, or used by the public for a period of twenty- one years, such street shall not thereafter be opened without the consent of at least fifty-one percent of the number of owners of the abutting real estate and without the consent of the owners of at least fifty- one percent of the property abutting such street, based on a front foot basis. (Emphasis added.) The laying out of a street under Section 46724 without its opening for a period of twenty-one years results in a borough's interest in the street reverting to the adjoining landowners. Pawlowski v. Borough of Barnesboro, 118 Pa. Commw. 375 (1988). The opening of a portion of a street does not affect the status of the remaining unopened portion. Borough of Lehightown v. Katz, 75 Pa. Commw. 388 (1983). In the Borough of Lehightown, the Commonwealth Court stated: It is the act of acceptance, however, which makes the dedication complete. Wynn Appeal, 188 Pa. Super. Ct. 499, 149 A.2d 149 (1959). An acceptance may be express or implied; however, in order to avoid the bar of the twenty-one year limitation period, formal expressions of acceptance must generally be accompanied by the actual opening or use of the dedicated street. Elliott v. H.B. Alexander & Sons, Inc., 41 Pa. Commonwealth Ct. 184, 399 A.2d 1130 (1979). An express dedication of a street and its adoption by resolution of the municipality does not cause the land to become a public thoroughfare. '[S]uch acts are merely equivalent to a plotting or laying out; it is nothing but a paper street. Milyord Borough, 288 Pa. 434, 438, 136 A. 669, 671 (1927). (emphasis added). Moreover, a street offered for dedication becomes a public street only to the extent to which it is actually used or opened. The opening of a portion of a street does not affect the status of the remaining unopened portion. Shamokin v. He/t, 250 Pa. 80, 95 A. 385 (1915). (Emphasis added.) While it is clear in the case sub judice, that Second Street in the Borough of Wormleysburg was dedicated to public use by John Wormley, and that the Borough accepted the street by ordinance on July 19, 1909, and that subsequently the Borough -8- 99-1236 opened Second Street west of the intersection of Popular Street to the traveling public, there is no evidence that the Borough ever opened the subject 50-foot section of street to the east of the intersection of Popular Street to the traveling public within twenty-one years of July 19, 1909, which would have been by July 18, 1930, or for that matter to date. At some point, the date is not established in the record, the Borough allowed a traction company to operate a trolley on Second Street, including the portion east of the intersection of Popular Street, until the company abandoned the line in 1938. In Wensel v. Township of North Versailles, 136 Pa. Super. 485 (1939), a driver of a vehicle sued North Versailles Township for damages to his car and personal injuries he claimed were incurred when he was involved in a one-car accident on Tinstman Avenue. Plaintiff maintained that the accident was caused by the Township negligently maintaining Tinstman Avenue. A verdict was entered in favor of the plaintiff and the Township appealed. The township maintained, inter alia, that the evidence did not warrant an inference that Tinstrnan Avenue, at the point where the accident occurred, was a public street and maintained as such by the Township. Tinstman Avenue had been laid out on a plan of lots by a developer and dedicated to the Township. The Superior Court noted that the dedication of a street requires an act of acceptance on a part of a municipality before the latter may be held liable for failing to properly maintain and repair the street, and that acceptance by a municipality may be implied as well as expressed and may be established by showing acts of dominion or control over the street. There was evidence that (1) North Versailles Township had by ordinance given -9- 99-1236 a traction company the right to operate a streetcar line along Tinstman Avenue, however the company never accepted the franchise or built the line, (2) the Township had constructed an eight inch sanitary sewer in the bed of Tinstman Avenue, and (3) Tinstman Avenue had been maintained by the Township as a public street open to vehicular traffic although there was an issue as to whether the portion of the street upon which plaintiff was driving when he was involved in the accident had been maintained by the Township as a public street opened to vehicular traffic. The Superior Court concluded that the granting by the municipality of permission to a traction company to construct and operate tracks on the street constituted an acceptance of the dedication by the developer and there was sufficient evidence for the jury to find that the entire length of Tinstman Avenue was open to vehicular traffic. As in Wensel, where North Versailles Township had accepted the dedication of Tinstman Avenue from a developer, the Borough of Wormleysburg accepted Second Street in 1909 as dedicated from John Wormley. Wensel, however, does not stand for the proposition that the authorization by a municipality to a traction company to operate a private street car line alone makes a street useable to the traveling public which is the requirement for opening a street under Section 46701(5) of the Borough Code. Accepting the dedication of a street and then opening it are two distinct things. While there was sufficient evidence in Wensel that North Versailles Township had opened Tinstman to vehicular traffic, the Borough of Wormleysburg has never constructed and graded the subject portion of South Second Street for the purpose of making it useable -10- 99-1236 to the traveling public. The Borough's allowance of a private company to use the subject portion of South Second Street for a trolley line from some unknown point up to 1938 did not constitute opening the street. Although the Borough in entering into the three license agreements starting in 1984 with James and Cora Mardis, and later with Alex and Dona DiSanto and then plaintiff, exercised what it considered was its authority over the subject fifty-foot section of street, it admitted in all of the agreements that this section of street is not open. Those agreements, drafted by the Borough, set forth that the subject portion of South Second Street is "[a]n unimproved and unopened fifty (50) foot legal right-of-way for South Second Street owned by the Borough." (Emphasis added). Additionally, the agreements provided for indemnification to the Borough "loin account of any claim, demand of action or cause of action asserted by any person or persons having private rights with respect to the unopened legal right-of-way of South Second Street." (Emphasis added.) The Borough argues in its brief that the "[t]estimony presented clearly indicates that the public had the ability to access this portion of South Second Street from 1909 until approximately 1984," including access as a cul-de-sac. A cul-de-sac is within the definition of a street. 53 P.S. § 45111(6). However, whether the public occasionally accessed the subject portion of South Second Street to turn around at the intersection with Popular Street is not controlling on the issue of whether the Borough opened the street within twenty-one years of it acceptance by ordinance on July 19, 1909. In Lillo v. Moore, 704 A.2d 149 (Pa. Super. 1997), the Superior Court of Pennsylvania stated -11- 99-1236 that "[m]ere occasional use or inconsequential acts, however, will not be sufficient to convert a dedication into a public way." In conclusion, we find that the land constituting the subject fifty-foot section of street has never been opened by the Borough of Wormleysburg. Thus, it has reverted to the adjoining landowners. Therefore, the Borough of Wormleysburg cannot enforce the provisions in the License Agreement entered into with plaintiff in 1994 in order to require plaintiff to remove the shed he has placed on the property and vacate the property. DECLARATORY JUDGMENT AND NOW, this '~14~' day of April, 2000, IT IS DECREED THAT defendant, Borough of Wormleysburg, cannot enforce the License Agreement it entered into with plaintiff, Scott W. Harvey, in 1994, to require plaintiff to vacate and remove a shed from the subject fifty-foot unopened section of South Second Street in the Borough of Wormleysburg. B~~cou\ ~ Edgar B. Bayl~,~."" ( Hubert X. Gilroy, Esquire / For Plaintiff James Bogar, Esquire For Defendant :saa -12-