Appeal from the Order of the Court of Common Pleas of Fifty-Ninth Judicial District, Elk County Branch, in case of Borough of Ridgway v. Sarah M. Grant, Ella G. Powell, E. C. Powell and Matthew Rutigliano, No. 79-557.
Joel P. Aaronson, with him John M. Feeney, Baskin and Sears, for appellants.
Norbert J. Pontzer, Pontzer & Pontzer, for appellee.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 56 Pa. Commw. Page 452]
This is an appeal by Judith M. Stager and Gary Matheson (Appellants)*fn1 from the order of the Court of Common Pleas of the 59th Judicial District, Elk County Branch entered September 13, 1979, in a declaratory judgment action which ordered and decreed that the deed of Sarah M. Grant, Ella G. Powell, and E. C. Powell (Grantors) to the Borough of Ridgway (Borough) does not prohibit the construction of a fire engine house*fn2 in Grant Park.
The tract of land now known as Grant Park was conveyed to the Borough by a deed dated April 16, 1921 and recorded May 10, 1921. The grantee clause in the deed reads as follows:
WITNESSETH, that in consideration of One dollar ($1.00) in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant and convey to the said grantee, for use as a public municipal park to be known as GRANT PARK,
ALL that certain piece, parcel or tract of land. . . .
The tract has been actively used in its entirety as a public municipal park since the time of the conveyance, almost 60 years ago.
[ 56 Pa. Commw. Page 453]
On May 23, 1979, the Borough petitioned the lower court pursuant to the provisions of the Declaratory Judgments Act,*fn3 to construe the deed language quoted above in such a manner as to permit the construction of a fire engine house on a designated site located within the boundaries of Grant Park. Named as respondents were the Grantors and Matthew Rutigliano, a resident of the Borough. The Borough also gave notice of the impending proceeding to the Attorney General of the Commonwealth of Pennsylvania.
A hearing was held on August 31, 1979. An order permitting the construction was issued on September 13, 1979 from which order ...