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PETITION FRIED-EL CORPORATION ETC. FRIED-EL CORPORATION v. BOROUGH MONROEVILLE. MUNICIPALITY MONROEVILLE (04/12/84)

decided: April 12, 1984.

PETITION OF FRIED-EL CORPORATION ETC. FRIED-EL CORPORATION, APPELLANT. FRIED-EL CORPORATION
v.
BOROUGH OF MONROEVILLE. MUNICIPALITY OF MONROEVILLE, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Petition of Fried-El Corporation for Appointment of Viewers for Vacation of a portion of Pennsylvania State Highway 187, situate formerly in Patton Township, now of the Borough of Monroeville, Allegheny County, Pennsylvania, No. GD80-15284 and Fried-El Corporation v. Borough of Monroeville.

COUNSEL

Harvey E. Robins, with him Arnold M. Epstein, Brennan, Robins & Daley, for appellant.

Gary T. Zolyak, with him, John D. Finnegan, for appellee.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 81 Pa. Commw. Page 494]

In these consolidated appeals, Fried-El Corporation and Monroeville appeal from two decisions of the Court of Common Pleas of Allegheny County concerning Fried-El's request for a street vacation. The issues

[ 81 Pa. Commw. Page 495]

    for our determination are whether the trial court erred (1) in requiring Fried-El to request the vacation from Monroeville before resorting to the court or (2) in determining that Monroeville's council abused its discretion when it denied Fried-El's request to vacate the public way.

Fried-El Corporation owns property abutting an area formerly part of a state highway in Monroeville, which was a borough during the period involved here. By letter dated April 8, 1947, the Secretary of Highways informed Patton Township, Monroeville's predecessor, that the Commonwealth was abandoning a part of the state highway located within the township. The letter also indicated that the property would then revert "as a public highway to the jurisdiction of the officials in [the] township."

According to a stipulation filed in the first of these two cases, neither the township nor Monroeville has ever undertaken to maintain or use that portion of the abandoned segment which abuts property now belonging to Fried-El. The paved section of the property is now completely covered with earth. The remnant of the former highway is not visible, and no one uses the abandoned section for access to other areas.

Fried-El, in the first case here, petitioned the court of common pleas for the appointment of viewers to consider its request to vacate that part of the old state highway which the Commonwealth had abandoned. The viewers filed a report, finding that the property belonged to Fried-El "free and clear of any public highway right-of-way." Upon Monroeville's appeal, the court of common pleas determined that Fried-El's petition for the appointment of viewers had been premature and that the court was without power to order the vacation of the property until Fried-El, in compliance

[ 81 Pa. Commw. Page 496]

    with the Borough Code,*fn1 petitioned Monroeville to vacate the street.

Fried-El appealed the court's decision in the first case to this court, and also petitioned Monroeville to vacate the property. The municipal council denied the petition. On Fried-El's appeal pursuant to the Borough Code, the court of common pleas reversed the denial, concluding that the council had abused its discretion in declining to vacate the property. Thus, Monroeville has appealed the trial court's second decision.

Authority to Vacate

With respect to the trial court's first order, Fried-El contends that requiring it to request a vacation from the municipality was error because the statutes and case law, upon which the trial court ...


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