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VACATION PORTION DORNEY PARK ROAD (FORMERLY L.R. 39028) FROM ROAD SYSTEM SOUTH WHITEHALL TOWNSHIP. DORNEY PARK COASTER COMPANY v. BOARD COMMISSIONERS SOUTH WHITEHALL TOWNSHIP (12/09/83)

decided: December 9, 1983.

IN RE VACATION OF PORTION OF DORNEY PARK ROAD (FORMERLY L.R. 39028) FROM THE ROAD SYSTEM OF SOUTH WHITEHALL TOWNSHIP. DORNEY PARK COASTER COMPANY, INC., APPELLANT,
v.
THE BOARD OF COMMISSIONERS OF SOUTH WHITEHALL TOWNSHIP, GEORGE WHITNER AND JANE SMITH, APPELLEES



No. 19 E.D. Appeal Docket 1983, Appeal from the Order Entered August 11, 1982 in the Commonwealth Court as of No. 1219, C.D. 1980, Reversing the Order of the Court of Common Pleas of Lehigh County, Dated April 17, 1980 at No. 4-A-79, 68 Pa. Commonwealth Ct. 239, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a concurring opinion in which Nix and McDermott, JJ., join.

Author: Hutchinson

[ 503 Pa. Page 68]

OPINION OF THE COURT

Appellant, Dorney Park Coaster Company, Inc., appeals by allowance an order of Commonwealth Court, reversing

[ 503 Pa. Page 69]

Lehigh County Common Pleas and remanding this case to allow appellees, George Whitner and Jane Smith, to proceed nunc pro tunc on exceptions to the Board of South Whitehall Township Commissioners' report on a township road vacation. Appellees filed their petition to proceed nunc pro tunc on April 20, 1979, eleven days beyond the time established in Section 2009 of the First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended May 27, 1949, P.L. 1955 § 43, 53 P.S. § 57009. Because there was neither fraud nor breakdown in the court's operation resulting in prejudice to a party in this case, we reverse the order of Commonwealth Court and affirm the Lehigh County Court of Common Pleas' dismissal of appellees' petition.

Appellant is the operator of an amusement park (Dorney Park). In response to its petition, the Township Commissioners held a duly advertised public meeting on March 14, 1977, to consider the vacation of approximately 770 feet of a township road known as Dorney Park Road. The entire length of Dorney Park Road is 1.7 miles. The portion proposed for vacation bisects the amusement park. Appellant sought vacation of this portion of the road both out of concern for the safety of its patrons and for better protection of its ride equipment against vandalism. The land abutting the portion to be vacated is owned solely by appellant. Appellee Whitner and others who testified against vacation at the March 1977 hearing objected, contending that the remaining road would no longer be a complete thoroughfare.

The board of commissioners held a second duly advertised public meeting on January 8, 1979, at which time they enacted Ordinance No. 294, vacating the indicated portion of Dorney Park Road. This ordinance directed the township engineer to file a report and survey of the street vacated for approval by the board of commissioners and directed the report be subsequently filed in the Office of the Clerk of

[ 503 Pa. Page 70]

Court, in accordance with the applicable statute.*fn1 The ordinance also directed the township manager to give notice of the ordinance's passage by posting handbills along the line of the vacated street within ten days, as is required by Section 2011 of the Code, 53 P.S. § 57011. Since appellees were in attendance at the January 8, 1979 meeting and have not complained of any failure to comply with Section 2011, we presume that this requirement was, also, properly observed and obeyed. On March 9, 1979, the report was filed in the Office of Clerk of Courts.

Some seven weeks after the enactment of the ordinance, but prior to the filing of the report, appellees met with new legal counsel for the purpose of pursuing their opposition to the road vacation. Their new counsel requested the clerk of courts to notify him when the report was filed. Because of an apparent misunderstanding the clerk failed to do so. Counsel was subsequently advised of the report's filing by someone else, after an April township meeting. Counsel then filed his petition for review nunc pro tunc within three days after this advice.

Lehigh County Common Pleas rejected appellees' nunc pro tunc petition for review holding it lacked jurisdiction to extend the statutory time for review in the absence of fraud or breakdown of court operations. In a comprehensive opinion, Gardner, J., visiting judge, perceptively reviewed the authorities on this issue. This Court has repeatedly maintained the same position. Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971); Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 261 A.2d 309 (1970); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Wise v. Cambridge Springs Borough, 262 Pa. 139, 104 A. 863 (1918); Singer v. Delaware, Lackawanna and Western RR. Co., 254 Pa. 502, 98 A. 1059 (1916). Neither basis for a discretionary extension of time is present here. Appellees' counsel's request to the clerk of courts was an individual

[ 503 Pa. Page 71]

    request for assistance. It cannot be construed as a breakdown of court operations and neither of ...


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