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MARION WOODWARD PAYNE v. JACOB G. KASSAB (11/21/73)

decided: November 21, 1973.

MARION WOODWARD PAYNE, SARA WOLFE BELL, LEA M. CSALA, FRANCES PHELPS WALLER, RACHAEL W. GUTMAN, ANTHONY J. MUSSARI, BARBARA B. ALBERT, MAGDALENE DYSLESKI, STELLA M. MOAT, ELIZABETH C. MINER, GEORGE LOVELAND, ESQUIRE, CAROLYN H. REIF, JUDITH L. REISHTEIN, ANTHONY J. WALAITIS AND STELLA WALAITIS, HIS WIFE, AND THE WILKES COLLEGE STUDENTS' COMMITTEE FOR A CLEAN ENVIRONMENT, BY MARK CHAMBERLAIN, TRUSTEE AD LITEM, PLAINTIFFS,
v.
JACOB G. KASSAB, INDIVIDUALLY AND AS SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, AND THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION: CITY OF WILKES-BARRE, JOHN B. MCGLYNN, MAYOR, MARJORIE BART, ROBERT P. BRADER, JOHN V. MORRIS, KENNETH REMENSNYDER, CON SALWOSKI, AND JOSEPH A. WILLIAMS, COUNCILMEN OF THE CITY OF WILKES-BARRE, LUZERNE COUNTY, PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of Marion Woodward Payne, Sara Wolfe Bell, Lea M. Csala, Frances Phelps Waller, Rachael W. Gutman, Anthony J. Mussari, Barbara B. Albert, Magdalene Dysleski, Stella M. Moat, Elizabeth C. Miner, George Loveland, Esquire, Carolyn H. Reif, Judith L. Reishtein, Anthony J. Walaitis and Stella Walaitis, his wife, and The Wilkes College Students' Committee for a Clean Environment, by Mark Chamberlain, Trustee Ad Litem v. Jacob G. Kassab, Individually and as Secretary of the Pennsylvania Department of Transportation, and The Commonwealth of Pennsylvania Department of Transportation; City of Wilkes-Barre, John B. McGlynn, Mayor, Marjorie Bart, Robert P. Brader, John V. Morris, Kenneth Remensnyder, Con Salwoski and Joseph A. Williams, Councilmen of the City of Wilkes-Barre, Luzerne County, Pennsylvania.

COUNSEL

F. Charles Petrillo, with him James F. Geddes, Jr., for plaintiffs.

Edward V. A. Kussy, Assistant Attorney General, with him Charles P. Gelso, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Adjudication by Judge Mencer. Concurring Opinion by President Judge Bowman. Concurring Opinion by Judge Wilkinson.

Author: Mencer

[ 11 Pa. Commw. Page 16]

This equity action was initiated by several individual citizens of the City of Wilkes-Barre and a group of students attending Wilkes College in Wilkes-Barre. The named defendants include the Secretary of the

[ 11 Pa. Commw. Page 17]

Pennsylvania Department of Transportation, the Commonwealth of Pennsylvania Department of Transportation, the City of Wilkes-Barre, and the Mayor and Councilmen of the City of Wilkes-Barre. The complaint filed seeks to enjoin the widening of portions of North and South River Streets in Wilkes-Barre.

Under the proposed plans, River Street would be widened to a forty-two-foot four-lane artery for a distance of approximately two-thirds of a mile. As a consequence, there would be an encroachment up to twelve feet at certain points and the taking of approximately one-half acre from lands known as the River Common (Common). Some large trees would be removed and a pedestrian walk would be eliminated.

The Common is presently comprised of about twenty-two acres and is essentially a park area. The original "town plot" of Wilkes-Barre was laid out in 1770 by settlers of the Susquehanna Company who migrated to the Wyoming Valley from the Connecticut Colony. An area along the Susquehanna River was left open and became known as the River Common. During the past two centuries this land has been used for various public events, and historical monuments have been erected on the Common. In 1779 it was the site of encampment of the Clinton-Sullivan Expedition against warring elements of the Iroquois Nation.

In 1806 the Borough of Wilkes-Barre was incorporated and in 1807 the Pennsylvania Legislature dedicated the Common lands between South Street and Union Street for use as a public common. In 1846 the Legislature dedicated the land from Union Street northward to North Street as a public common. The Luzerne County Courthouse is located at the north end of the Common.*fn1 Kings and Wilkes Colleges are located on

[ 11 Pa. Commw. Page 18]

    the east side of River Street, and students from those institutions use the park area of the Common.

The defendants filed answers, and an evidentiary hearing was held for four days in December 1972. At the completion of this hearing, certain of the defendants made a motion to dismiss. The parties have presented briefs and offered oral argument before this Court en banc. Upon consideration of the evidence, we make the following

Findings of Fact

1. The plaintiffs in this action in equity are Marion Woodward Payne, Sara Wolfe Bell, Lea M. Csala, Frances Phelps Waller, Rachael W. Gutman, Anthony J. Mussari, Barbara B. Albert, Magdalene Dysleski, Stella M. Moat, Elizabeth C. Miner, George Loveland, Esquire, Carolyn H. Reif, Judith L. Reishtein, Anthony J. Walaitis and Stella Walaitis, his wife, all of whom are residents and taxpayers in the City of Wilkes-Barre, Luzerne County, Pennsylvania, and its environs, and the Wilkes College Students' Committee for a Clean Environment, an unincorporated association of Wilkes College students comprising a school sanctioned club at Wilkes College in the City of Wilkes-Barre, Luzerne County, Pennsylvania.

2. The defendants are Jacob G. Kassab, individually and as Secretary of the Pennsylvania Department of Transportation, the Commonwealth of Pennsylvania Department of Transportation, the City of Wilkes-Barre, and John B. McGlynn, Mayor, Marjorie Bart, Robert P. Brader, John V. Morris, Kenneth Remensnyder, Con Salwoski, and Joseph A. Williams, Councilmen

[ 11 Pa. Commw. Page 19]

    of the City of Wilkes-Barre, Luzerne County, Pennsylvania.

3. The action is in the nature of a class action and was brought to enjoin the widening of portions of North and South River Streets in the City of Wilkes-Barre, insofar as the widening project proposed by the defendants encroaches upon lands known as the River Common of the City of Wilkes-Barre.

4. The Pennsylvania Department of Transportation, also called PennDOT, under the Act of May 6, 1970, P.L. 356, §§ 11-18, as amended, 71 P.S. §§ 511-521, has certain powers and duties, including those formerly vested in the Pennsylvania Department of Highways, that encompass the planning and developing of transportation programs and the building, rebuilding, maintenance, widening and construction of State designated highways and rights of way.

5. The City of Wilkes-Barre is a third class city of the Commonwealth of Pennsylvania duly incorporated pursuant to the Act of May 4, 1871, P.L. 539, of the Pennsylvania Legislature, and operating in accordance with the Third Class City Code, Act of June 23, 1931, P.L. 932, 53 P.S. § 35101 et seq., and under the provisions as well of the Optional Third Class City Charter Law, Act of July 15, 1957, P.L. 901, 53 P.S. § 41101 et seq., all as amended.

6. Dating from about the year 1770, when the original town of Wilkes-Barre was plotted out by settlers of the Susquehanna Company from Connecticut Colony, there has existed a tract of land bordering the Susquehanna River at Wilkes-Barre, consisting originally of approximately thirty-five acres and dedicated and used as a public common.

7. In 1799, while Wilkes-Barre was still a township, the Legislature of the Commonwealth of Pennsylvania, in order to resolve conflicting claims between Pennsylvania and Connecticut settlers and to legalize titles to lands in the area involved, which included the

[ 11 Pa. Commw. Page 20]

    then township of Wilkes-Barre, passed an act entitled "An Act for offering compensation to the Pennsylvania claimants of certain lands within the Seventeen Townships in the county of Luzerne, and for other purposes therein mentioned." Act of April 4, 1799, recorded in Law Book Vol. VI, 394, 3 Sm.L. 362.

8. On January 2, 1804, commissioners appointed under the Compensation Act of April 4, 1799, and its supplements, made and returned a survey and issued a certificate to the "township committee," at that time comprised of Matthias Hollenback, Lord Butler, and Jesse Fell, for two tracts of land in the township of Wilkes-Barre, "one thereof being a square in the town plot thereof and called the Centre Square and the other being the public common on the river bank," and the latter embracing the entire river front from North Street to South Street; which two tracts contained about "thirty-nine acres and forty-one perches, with the usual allowance of six percentum for roads."

9. By the Act of March 17, 1806, recorded in Law Book Vol X, 326, 4 Sm.L. 321, the Borough of Wilkes-Barre was incorporated by the Legislature of the Commonwealth.

10. By Section III, Act of April 9, 1807, recorded in Law Book Vol. XI, 47, 4 Sm.L. 411 (a supplement to the Act of April 4, 1799), the Pennsylvania Legislature dedicated that portion of the River Common along the river front between South and Union Streets for use as a public common in the following manner: "And be it further enacted by the authority aforesaid, That all that certain tract of land fronting the town-lots in the borough of Wilkes-Barre, on the bank of the Susquehanna, extending from the land of Jebez Fish, up the said river, one hundred and ninety-two rods, in a line parallel with the front line of the town-lots, be, and the same hereby is granted and set apart as a public common, and to remain as such for ever."

[ 11 Pa. Commw. Page 2111]

. By the Act of March 28, 1846, P.L. 196, § 6, the Pennsylvania Legislature provided: "That all that certain tract of land, fronting the town lots in the borough of Wilkes-Barre, on the bank of the Susquehanna River, extending from the north side of Union street, up the said river, about sixty three rods to the north side of North street, be and the same hereby is granted and set apart as a public common, and to be under the control and jurisdiction of the town council of said borough."

12. By Articles of Agreement made February 8, 1869, and recorded in Luzerne County Deed Book 141 at page 276, and by Indenture made May 16, 1870, and recorded in Luzerne County Deed Book 141 at page 278, the Trustees of the Properties of the Borough and Township of Wilkes-Barre, successors to the former Township Committee, did convey the two tracts of land, being the Public Square and the River Common, to the Burgess and Town Council of the Borough of Wilkes-Barre.

13. By patent issued from the Land Department of the Commonwealth of Pennsylvania on January 10, 1870, and recorded in Luzerne County Deed Book 170 at page 240, and upon the payment of the sum of $207.39, the two tracts of land, namely the Public Square and Public Common (River Common), were granted to the Burgess and Town Council of the Borough of Wilkes-Barre.

14. The Borough of Wilkes-Barre became an incorporated city of the Commonwealth of Pennsylvania pursuant to the Act of May 4, 1871, P.L. 539.

15. Prior to 1971, the Commonwealth of Pennsylvania, Department of Highways and/or PennDOT, commenced studies and planning for the widening of Legislative Route Spur 5, which encompasses North and South River Streets in the City of Wilkes-Barre between North and South Streets in that municipality,

[ 11 Pa. Commw. Page 22]

    and on April 20, 1971, a public hearing was conducted with reference to the project at which only two proposals for widening were made to the public -- one which would not encroach upon River Common lands on the westerly side of the street, and one which would encroach upon the River Common lands as well as lands of property owners on the easterly side of the street.

16. The proposal recommended by PennDOT would widen North and South River Streets to a four-lane traffic artery, forty-two feet in width, for a distance of approximately two-thirds of a mile, taking lands from both the easterly and westerly (River Common) sides of the street.

17. River Street is a multilane roadway which passes through the River Common along its eastern side as well as beyond the limits of the park in both a northerly and southerly direction. It varies from three to four lanes along the length of the Common. At South Street, River Street is forty-six feet six inches wide, tapering to forty-two feet in width five hundred feet north of South Street. It is at this point that the proposed project will commence. The existing street continues to gradually narrow down to thirty-two feet at Market Street. North of Market, River Street is thirty feet wide until it gradually widens to thirty-eight feet six inches at North Street. This allows for four lanes of traffic between South Street and Northampton Street and three lanes of traffic for the remainder of the distance.

18. River Street is bordered by tree-lined sidewalks on both sides, and a tree lawn is between these sidewalks and River Street. The trees in both of these tree lawns are in variable conditions. Surveys were made in June of 1970 and again in December of 1972. These surveys showed the trees directly affected by the project:

[ 11 Pa. Commw. Page ...


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