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KRESS APPEAL. (04/16/63)

THE SUPREME COURT OF PENNSYLVANIA


April 16, 1963

KRESS APPEAL.

Appeal, No. 69, March T., 1963, from order of Court of Quarter Sessions of Washington County, May T., 1962, No. 12, in re opening of streets in the Walter C. McNary and Alma M. McNary plan of lots in Peters Township. Order affirmed; reargument refused April 30, 1963.

COUNSEL

Adolph L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for appellants.

Andrew W. Cummins, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 410 Pa. Page 566]

OPINION BY MR. JUSTICE COHEN

Appellants are residents of a development known as the McNary Plan located in Peters Township, a second class township of Washington County. The lots in the subdivision are connected by five roads which were constructed by the developers of the McNary Plan and are presently open to and used by the public. Desiring that these five roads be made a part of the public road system, and hence maintainable at township expense, appellants made an offer of dedication to appellees, the supervisors of Peters Township.

Appellees refused to accept the offer of dedication until appellants undertook certain improvements so that the roads would conform with township requirements for public roads. Unwilling to make these improvements, appellants sought to achieve their objective by proceeding under section 1101 of the Second

[ 410 Pa. Page 567]

Class Township Code.*fn1 In accordance with that section, they presented a petition to appellees to "survey, lay out, and open" the five roads as public roads. When the supervisors failed to act within 60 days, appellants presented a petition to the court below for the appointment of a board of viewers. The court below refused to appoint viewers and this appeal followed.

We hold that the court below correctly decided that section 1101 of the Code was improperly invoked in this case. That section gives a court of quarter sessions power to appoint a board of viewers to "survey, lay out [and] open" roads as public roads where the township supervisors fail to so act. But the roads in question here have already been surveyed, laid out, and opened by the developers of the McNary Plan, and thus there is no reason or basis for the appointment of viewers under section 1101.*fn2 Appellants' objective is

[ 410 Pa. Page 568]

    not to have roads laid out and constructed as public roads, but rather to have roads already constructed maintained at public expense. See In re Milford, 4 Pa. 303 (1846). In such a situation, the proper procedure is to comply with the provisions of The Second Class Township Code dealing with dedication of private roads.*fn3

Appellants assert that Lank v. Hughes, 402 Pa. 284, 167 A.2d 268 (1961), is authority for the procedure followed in this case. In Lank, however, we had no occasion to consider the propriety of proceeding under section 1101 since the only question before us there was whether mandamus would lie to compel supervisors to maintain roads which had already "been judicially made a part of the Scott Township road system." (402 Pa. at 287). Here, we are faced with the question - not decided in Lank - whether these roads can judicially be made a part of the township road system by the appointment of viewers under section 1101.

Accordingly, we conclude that the court below properly denied the petition to appoint viewers.

Mr. Chief Justice BELL and Mr. Justice ROBERTS dissent.

Disposition

Order affirmed.


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