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REGINALD L. PAWLOWSKI v. BOROUGH BARNESBORO (08/03/88)

decided: August 3, 1988.

REGINALD L. PAWLOWSKI, TRUSTEE OF TRUST OF REGINALD L. PAWLOWSKI AND LORETTA PAWLOWSKI, HUSBAND AND WIFE, APPELLANTS
v.
BOROUGH OF BARNESBORO, A MUNICIPAL CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Reginald L. Pawlowski, Trustee of Trust of Reginald L. Pawlowski and Loretta Pawlowski, husband and wife v. Borough of Barnesboro, a municipal corporation, No. 1985-1957.

COUNSEL

Suzanna M. Pawlowski, for appellant.

Christian A. Fisanick, with him, Vasil Fisanick, for appellee.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 118 Pa. Commw. Page 376]

Reginald L. Pawlowski, trustee of a trust of Reginald L. Pawlowski and Loretta Pawlowski, husband and wife, appeals an order of the Court of Common Pleas of Cambria County which sustained the preliminary objections of the Borough of Barnesboro (Borough) and denied his petition for the appointment of viewers.

On July 26, 1985, Pawlowski filed a petition for the appointment of viewers, alleging a de facto taking of his property by the Borough. The Borough filed preliminary objections alleging that no de facto taking had occurred. The trial court dismissed the preliminary objections. The Borough filed an appeal and we reversed, remanding for a hearing to determine if a de facto taking

[ 118 Pa. Commw. Page 377]

    had occurred. Borough of Barnesboro v. Pawlowski, 100 Pa. Commonwealth Ct. 94, 514 A.2d 268 (1986).

At the hearing, certain evidence was presented. The attached map, which is a survey prepared by the original landowner in 1915, has been reproduced to facilitate an understanding of the facts and will be referred to in the following recitation. Pawlowski's family purchased lots 25 through 42, inclusive, in 1936. Pawlowski testified that at the time his family acquired the property, the improved portion of Martha Street (which has been renamed 9th Street) ended at its intersection with Oak Street. Although the survey indicated that Martha Street continued past Oak Street, Pawlowski testified that no improved street existed.

In late 1957 and early 1958, Pawlowski and his wife (since deceased) built a house on lots 31-33. At that time, Martha Street was extended past Oak Street to the new house. Pawlowski paid for one-third of the cost of extending the street with the Borough paying the remainder. In 1959, Pawlowski and his wife purchased lots 17 and 18. In 1983, the Borough laid sewer lines under the entire length of 9th Street (formerly Martha Street), including the portion of the street which abuts lots 24 and 25.

The Borough presented testimony of various witnesses who agreed that the paving ends at the Pawlowski residence (at lot 31). The Borough also presented the testimony of Paul Toth, who was 79 years old at the time. Toth testified that he had lived in the area in question all of his life. He testified that he and other individuals used to walk on a path through the disputed grassy and wooded area.

Relying upon the testimony of Toth, the trial court held that Pawlowski had failed to prove the requisite twenty-one years of non use as a street. The court therefore held ...


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