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VACATION PORTION TOWNSHIP ROAD 164 (11/13/86)

decided: November 13, 1986.

IN RE: VACATION OF PORTION OF TOWNSHIP ROAD 164, LAUSANNE TOWNSHIP, CARBON COUNTY, PENNSYLVANIA. CASIMERE LAGANOSKY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Carbon County in the case of In Re: Vacation of portion of Township Road 164, Lausanne Township, Carbon County, Pennsylvania, No. 68 Miscellaneous 1984.

COUNSEL

Mark A. Peleak, for appellant.

No appearance for appellee.

Judge MacPhail, and Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 102 Pa. Commw. Page 81]

Casimere Laganosky (Appellant) appeals here the final decree of the Carbon County Court of Common Pleas denying Appellant's exceptions to the court's decree nisi and entering judgment in accordance with that decree. The decree nisi confirmed the Report of the Board of Viewers, appointed to perform a de novo review of the enactment of an ordinance by the Lausanne Township Board of Supervisors vacating a portion of Township Road 164 (TR 164). The Report adopted as an amendment to that ordinance a stipulation between the township supervisors and a Joseph Klementovic agreeing that that portion of TR 164 vacated would become a private road, to be used and maintained by all adjoining property owners.

Appellant argues on appeal that the Township Supervisors, the Board of Viewers, and the common

[ 102 Pa. Commw. Page 82]

    pleas court erred legally and procedurally in effecting the vacation of a portion of TR 164. Appellant suggests that we remand this matter to the common pleas court to direct that an evidentiary hearing be held the record of which may be utilized at a later time for purposes of review for errors of law. We agree.

The procedure for laying out and vacating roads in second class townships is governed by Section 1101 of The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 66101, and Section 1102 of the Code, added by the Act of July 10, 1947, P.L. 1481, as amended, 53 P.S. § 66102.

The Code in 1933 provided that procedure in road matters was to be governed by the General Road Law, Act of June 13, 1886, P.L. 551, and its supplemental acts, as amended, 36 P.S. §§ 1761 -- 3588. The above-referenced Act of July 10, 1947, P.L. 1481, amended the Code by divesting the quarter sessions courts*fn1 of original jurisdiction over road matters as provided under the General Road Law and placing determinations formerly made by a board of view appointed by the court within the discretion of the township supervisors.

Thus, the Code, as amended, authorizes second class township supervisors to lay out, open, widen, straighten and vacate roads within the township by enacting an ordinance upon the petition of interested citizens, or without petition if in the judgment of the supervisors, it is necessary. Under Section 1102(a) of the Code, 53 P.S. § 66102(a), however, prior to the passage of any ...


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