Appeal from the Order of the Court of Common Pleas of Carbon County in case of J. Gordon Katz and Shirley G. Katz, husband and wife v. Borough of Lehighton, No. 84 January Term, 1978.
Paul A. McGinley, Gross, McGinley & McGinley, with him Marianne S. Lavelle, Shutack & Lavelle, for appellant.
Armin Feldman, with him Cheryl Ann Klepper, Martin H. Philip Associates, P.C. for appellees.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 75 Pa. Commw. Page 389]
The Borough of Lehighton (Borough) has appealed from a decree of the Court of Common Pleas of Carbon County in an action to quiet title. At issue is the trial court's determination that J. Gordon Katz and Shirley J. Katz (Appellees) possess fee simple title, subject to existing easements, to one-half of a portion of an unopened street in the Borough and that the Borough possesses no right to use the street as a public thoroughfare.
[ 75 Pa. Commw. Page 390]
The record reflects that in April, 1903 a plan of lots, streets and alleys was prepared regarding land located in the Borough known as the Beckendorf Estate. One of the streets laid out by the plan, Ochre Street,*fn1 is the subject of the instant appeal. Several of the lots in the Beckendorf Estate were sold between 1903 and 1950 when the remaining land was conveyed to Walter D. and Hilda Hammel. The Hammels subsequently prepared a new plan which incorporated the streets and alleys as laid out in 1903. At a Borough Council meeting on March 3, 1952, the Hammels offered to dedicate three streets, including Ochre Street, to the Borough for public use as highways. The offer was made in the form of a written deed of dedication. On April 21, 1952, the Council voted to:
[A]dvise Mr. Hammel or his attorney that provision be made for an alley between 5th & 6th Streets along the north property line and also that all public streets and alleys as indicated on the proposed plan be dedicated to the borough.
On April 7, 1970, the Appellees purchased a parcel of land from the Hammels which is bounded on the north by Ochre Street, on the east by Sixth Street and on the west by King Alley. Appellees thereafter obtained a building permit and constructed a dwelling on their property with an attached garage. On May 8, 1972, Appellees were notified by the Borough that their garage encroached onto Ochre Street, as it appeared on the Hammels' development plan, by approximately eight feet. The Borough apparently took no further action with respect to the alleged encroachment until, in November 1977, the Appellees filed the instant action to quiet title.
[ 75 Pa. Commw. Page 391]
Following a hearing, the trial court ruled that the Borough had lost its right to use Ochre Street between King Alley and Sixth Street as a public thoroughfare due to its failure to open or use that portion of the street during the twenty-one years following the Hammels' 1952 offer of dedication.*fn2 The Borough's exceptions to the court's decree were dismissed and, following the entry of judgment, the instant appeal was taken.
The trial court found that the sole issue before it was whether or not the Borough had accepted the Hammels' dedication offer within twenty-one years. The statutory language applicable to boroughs which establishes the twenty-one year limitation is found at Section 1724 of ...