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DORMONT BOROUGH APPEAL (05/27/52)

May 27, 1952

DORMONT BOROUGH APPEAL, LEECH APPEAL


Appeal, No. 111, March T., 1952, from order of Superior Court, April T., 1951, No. 107, reversing decree of Court of Quarter Sessions of Allegheny County, Jan. Sessions, 1950, Misc. Docket, No. 153, in Appeal of William A. Leech, Jr., et al., from resolution of Borough of Dormont, Allegheny County. Order of Superior Court reversed; reargument refused June 24, 1952.

COUNSEL

Arthur Wessel, Jr., with him Walter W. Riehl, for appellant.

John G. Wayman, with him Herbert V. Brownlee, for appellees.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 85]

OPINION BY MR. JUSTICE JONES

At a sheriff's sale sur tax liens and municipal claims, the Borough of Dormont purchased a tract of unimproved land having an area of approximately four and one-half acres. The Borough paid all of the County taxes against the property and took title by Sheriff's Deed, dated September 19, 1942, in the name of the Borough alone under an agreement with the School District that, in the event of a subsequent sale of the property by the Borough, the School District would share in the proceeds in proportion to its unpaid tax claims after deduction of all costs and claims paid by the Borough. The land was roughly an elongated rectangle in shape and lay adjacent, lengthwise, to one

[ 371 Pa. Page 86]

    side of Dormont Park, a twenty-nine acre tract which the Borough had established and maintained as a public park for a number of years.

By ordinance enacted March 1, 1943, and approved March 3, 1943, the Borough dedicated the four and one-half acre tract to park purposes as a part of Dormont Park. By resolution of March 8, 1943, the School District confirmed the dedication (in a sense quitclaimed its pecuniary interest in the property) "on condition and with the understanding that if at any time the said lands should not be used for Park purposes but be sold, conveyed or disposed of by the Borough of Dormont, that the Borough shall pay to the School District" the amount of the latter's unpaid tax claims.

On May 15, 1950, the Borough Council by a vote of five to two (all members being present) adopted a resolution authorizing the grant to a private individual of an option to purchase the four and one-half acres above-mentioned for the sum of $50,000 for the erection thereon of an apartment house, at a total cost of $5,500,000, according to plans and specifications to be approved by the Borough Council. The resolution directed the Borough Solicitor, in the event the option was exercised, to prepare a proper ordinance rescinding the ordinance of dedication of March 3, 1943. The Burgess vetoed the resolution, setting forth at length in a letter to council nine reasons for his action. None of such reasons questioned the power of council to rescind the dedication. It was the Burgess's expressed view that the property should be sold in lots for the erection thereon of homes rather than an apartment house. Council passed the resolution over the Burgess's veto (again by a vote of five to two) on June 5, 1950 (effective June 16, 1950), and a written agreement of option between the Borough and the prospective purchaser was executed on June 17, 1950, in accordance with the resolution.

[ 371 Pa. Page 87]

The present appellees, being citizens, taxpayers and property owners of the Borough, petitioned the Court of Quarter Sessions of Allegheny County pursuant to the provisions of the Act of May 4, 1927, P.L. 519, Art. X, Section 1010, as amended, 53 PS ยง 12900, praying that the resolution of May 15, 1950, be declared invalid and illegal. After hearing, the Court of Quarter Sessions found that the dedication of the four and one-half acre tract to park purposes had never been accepted by the public and, thereupon, entered an order dismissing the petition. On the petitioners' appeal, the Superior Court reversed the order of the court below. The matter is now before us pursuant to our allocatur granted on the Borough's petition. The basic question involved is whether the evidence justified the trial court's findings and conclusion. As the Superior Court recognized, "... ...


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