Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Re: Vacation of portion of Dorney Park Road (formerly L.R. 39028) from the Road System of South Whitehall Township, No. 4-R-79.
Wilbur C. Creveling, Jr., for appellants.
Thomas P. Monteverde, with him E. Keller Kline, III, for appellee, Dorney Park Coaster Company.
Blake C. Marles, with him James L. Heidecker, Jr., Butz, Hudders and Tallman, for appellee, South Whitehall Township.
Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Williams, Jr. President Judge Crumlish, Jr. concurs in the result only. Dissenting Opinion by Judge MacPhail.
[ 68 Pa. Commw. Page 240]
The genesis of this case was a municipal decision to vacate a portion of a certain public road in South Whitehall Township, Lehigh County. The appellants herein, Jane Smith and George Whitner, undertook to challenge the vacation; but they failed to pursue their statutory remedies within the time period fixed by law. When Smith and Whitner sought leave to pursue the remedies nunc pro tunc, the Court of Common Pleas of Lehigh County denied their application. From that order the instant appeal followed.
South Whitehall Township is a township of the first class, and has within it a public highway named
[ 68 Pa. Commw. Page 241]
Dorney Park Road (Road). The Road extends in length approximately 1.7 miles; and has a legal right-of-way 33 feet wide.*fn1 The Road was formerly part of the state road system, but was abandoned as such and became a township road.
A portion of Dorney Park Road, about 770 feet of it, bisects an amusement complex called Dorney Park, which is owned by the Dorney Park Coaster Company (Company). The Company petitioned to have that part of the Road vacated.
In early 1977 the Board of Commissioners of South Whitehall Township (Commissioners), pursuant to the Company's petition, advertised a public meeting to consider the vacation of that part of the Road which abutted the Company's land. A public meeting was held in March of 1977; and witnesses for the Company and members of the public gave testimony for and against the proposed vacation.*fn2
The Commissioners held another public meeting in May 1977, at which time they accepted the recommendation of the township engineer that the Road portion in question be vacated. In June 1977 Jane Smith, together with other objectors, filed an action in equity seeking to bar the vacation of the Road; that suit, however, was dismissed.
On January 8, 1979, almost two years after the last public meeting about the Road, the Commissioners held another public meeting, at which they enacted an ordinance to vacate the portion of the Road that abutted the Company's land. By a written document also dated January 8, 1979, the Commissioners entered into
[ 68 Pa. Commw. Page 242]
an agreement with the Company, setting forth the terms and conditions for the vacation of the Road portion in question.
In February 1979, objectors Jane Smith and George Whitner engaged attorney James F. Diefenderfer to represent them in mounting a legal challenge to the vacation of the Road. Attorney Diefenderfer advised his clients that, pursuant to The First Class Township Code,*fn3 they had to file challenges to the Commissioners' "report," and that the challenges had to be ...