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VACATION HAIN AVENUE (09/29/80)

decided: September 29, 1980.

IN RE: VACATION OF HAIN AVENUE, SWATARA TOWNSHIP, LEBANON COUNTY, PENNSYLVANIA. SWATARA TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lebanon County, in case of In Re: Vacation of Hain Avenue, Swatara Township, Lebanon County, Pennsylvania, No. 376, 1978.

COUNSEL

Patrick M. Reb, Reb & Buchanio, for appellant.

David J. Brightbill, Siegrist, Koller & Brightbill, for appellee.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 103]

The Board of Supervisors of Swatara Township in Lebanon County adopted an ordinance vacating a portion of Hain Avenue, a public road in the township. James Morrissey, Sr., as an owner of property abutting on a non-vacated portion of Hain Avenue, filed exceptions to the ordinance in the Court of Common Pleas of Lebanon County, alleging, inter alia, that the supervisors failed to comply with the notice requirement of Section 1102(a) of the Second Class Township Code, Act of May 1, 1933, P.L. 103, added by the Act of July 10, 1947, P.L. 1481, as amended, 53 P.S. ยง 66102(a), which provides:

(a) Prior to the passage of any ordinance for the laying out, opening, changing or vacating of any road or highway or section thereof, the supervisors shall give ten days' written notice to the property owners affected thereby of the time and place when and where all parties interested may meet and be heard. Witnesses may be summoned and examined by the supervisors and by the parties interested at such meeting or any adjournment thereof.

Morrissey was not so notified, nor did he attend the meeting held by the supervisors before they adopted the ordinance.

[ 54 Pa. Commw. Page 104]

After the appointment of viewers, Morrissey petitioned the court below to determine whether he was a property owner affected within the meaning of Section 1102(a). The lower court, after a hearing, concluded that Morrissey was so affected; accordingly, the court decreed the street vacation ordinance to be void and of no effect. This appeal by the township followed.

The following sketch illustrates the relative locations of the Morrissey property, the vacated portion of Hain Avenue, and the street system in the vicinity.

The vacated portion of Hain Avenue extends from the township boundary north to a point about 500 feet south of Morrissey's property. Thus, the vacation leaves Morrissey with access to his property only from the north on Hain Avenue; before the vacation, access to his property was available from the north and south, the latter being the direction in which the county seat lies.

To answer the fundamental question of this case, whether Morrissey is a property owner entitled to "written" notice of the vacation, the threshold inquiry must be to determine what class of owners is ...


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