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BRUKER v. CARLISLE BOROUGH (01/13/54)

January 13, 1954

BRUKER, APPELLANT,
v.
CARLISLE BOROUGH



Appeal, No. 201, Jan. T., 1953, from order of Court of Common Pleas of Cumberland County, May T., 1952, No. 130, in case of Francis F. Bruker, George H. Reed, Elizabeth R. Crosby and Charles W. Link, v. The Burgess and Town Council of The Borough of Carlisle. Order affirmed; reargument refused February 13, 1954.

COUNSEL

John D. Faller, Jr., with him James D. Flower, for appellants.

Tom H. Bietsch, with him Harold S. Irwin and Joseph L. Kramer, for appellees.

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

Author: Stern

[ 376 Pa. Page 332]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The town of Carlisle was laid out in 1751 according to a plan of Thomas Penn, then Proprietor of Pennsylvania. In a letter to Richard Peters, Secretary of the Province, he wrote that in the center of Carlisle he would have a Square and that "the Court House may be in the middle of one side and the Gaal in any place near, there may be a places I think in the middle of the Center Square for a Market, or if that will take off too much of the lots, a lot may be given at the rent of a Shilling as for the other public uses for that purpose,..." A public market occupied a portion of the southeast quarter of the Square as early as 1764, and from time to time thereafter new market houses were erected on the same site and markets

[ 376 Pa. Page 333]

    were regularly conducted there. The last of such structures was erected in 1878; it contained the Council Chamber and some Borough offices on the second floor, and later there were installed on the first floor a police headquarters, a lock-up, and two restaurants. In the latter part of 1951 by resolution of the Burgess and Town Council the market house, together with some of the adjoining sidewalk areas and surrounding streets and alleys, were closed to the public and further market activities prevented. Subsequently, by order of the Council, the market house was demolished and it is allegedly the Council's intention to abandon entirely the use of the southeast quarter of the Square as a market place and to erect a structure on the site for some other public purpose.

An action to quiet title was instituted by the present plaintiffs, who are citizens and taxpayers and for many years have been vendors of farm or bakery products in the market; another plaintiff has long been a customer there. In their complaint they prayed for a decree adjudicating the title to the southeast quarter of the Square to be in the Commonwealth of Pennsylvania for the use of the general public for market purposes. Defendants filed preliminary objections, challenging both the form of the action and the sufficiency of the complaint to set forth a cause of action. The court sustained the objection to the form of action, and, in effect, dismissed the complaint. From its order plaintiffs now appeal.

The action at law to quiet title has its origin in Pa. R.C.P. 1061, which specifies four purposes for which it may be brought. Of these only one is here material, namely, "where an action of ejectment will not lie, to determine any right, lien, title or interest in the land...." It would seem quite clear that it was intended to be extremely broad in scope and to

[ 376 Pa. Page 334]

    replace not only proceedings in equity by bill quia timet*fn* but also various statutory legal proceedings. In Goodrich-Amram, § 1061(b)-1, it is said that "The action to quiet title is a new form of action, created as a consolidation of a large number of independent actions and proceedings, mostly statutory, designed to remove clouds on title, [and] to adjudicate title disputes where ejectment will not lie...." And further, § 1061(b)-3: "The proceedings ...


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