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CLEARFIELD BOROUGH v. CLEARFIELD BOROUGH PARK AUTHORITY (12/28/71)

decided: December 28, 1971.

CLEARFIELD BOROUGH
v.
CLEARFIELD BOROUGH PARK AUTHORITY



Appeal from the Order of the Court of Common Pleas of Clearfield County in case of Clearfield Borough v. Clearfield Borough Park Authority, No. 1540 May Term, 1970.

COUNSEL

Carl A. Belin, Jr., with him Belin & Belin, for appellant.

Richard A. Bell, with him Bell, Silberblatt & Swoope, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer.

Author: Kramer

[ 4 Pa. Commw. Page 192]

This is an appeal from an Opinion and Order dated April 16, 1971, issued by the Court of Common Pleas of Clearfield County in an action in mandamus whereby judgment was entered on behalf of the defendant, Clearfield Borough Park Authority (Authority), after argument on a motion for summary judgment.

In 1955, the plaintiff, Clearfield Borough (Borough) established the Clearfield Borough Park Authority under the provisions of the Municipality Authorities Act of 1945, Act of May 2, 1945, P.L. 382, 53 P.S. 301 et seq., as amended. The purpose of the Authority was to acquire, maintain, improve and operate certain park property known as the Clearfield Driving Park. The Authority acquired the property in 1958 and has operated and maintained it to the present time.

On September 3, 1970, the Borough passed a resolution indicating its desire to acquire the Authority's property and demanding the conveyance of the Clearfield Driving Park to the Borough. The Authority refused to act upon the demand of the Borough and refused to convey the property to the Borough.

The Borough thereafter filed this action in mandamus, and after argument on a motion for a summary judgment, the court below directed judgment to be entered on behalf of the Authority. None of the facts is in dispute. The sole question presented to this Court involves the construction of Section 18 of the Municipality Authorities Act of 1945, supra, 53 P.S. 321, which reads as follows: "(A) If a project shall have been established under this act by a board appointed by a

[ 4 Pa. Commw. Page 193]

    municipality or municipalities, which project is of a character which the municipality or municipalities have power to establish, maintain or operate, and such municipality or municipalities desire to acquire the same, it or they may by appropriate resolution or ordinance adopted by the proper Authorities, signify its or their desire to do so, and thereupon the Authorities shall convey by appropriate instrument said project to such municipality or municipalities, upon the assumption by the latter of all the obligations incurred by the Authorities with respect to that project." (Emphasis added.)

The Authority argues, and the court below held, that the language of Section 18 requires that a resolution must be passed by the Authority approving the transfer of the project property before the municipality can acquire the property. This entire case hinges upon the words of Section 18: ". . . adopted by the proper Authorities, . . ." The court below ruled that these five words indicate a legislative intent that there is a discretion given to the Authority on whether or not it will permit the Borough to acquire the project property.

In the briefs submitted to this Court, the opinion of the court below and from our research, we find that there are only four cases which touch upon Section 18 of the Act. Two of these cases would indicate that Section 18 provides limits or restrictions upon the ownership of property by the Authority which would permit the municipality unilaterally to regain possession of the Authority's property. These cases are Williams v. Samuel, et al., 332 Pa. 265, 2 A.2d 834 (1938) and Gemmill v. Calder, et al., 332 Pa. 281, 3 A.2d 7 (1938). The other two cases would indicate that a municipality cannot retake the Authority's property unless the Authority passes a resolution ...


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