The opinion of the court was delivered by: Judge Smith-ribner
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
The City of Erie (City) appeals from an order of the Erie County Common Pleas Court (trial court) that denied the City's petition to abandon the use of dedicated public property known as "Erie Golf Course" filed pursuant to the act commonly known as the Donated or Dedicated Property Act (Act), Act of December 15, 1959, P.L. 1772, 53 P.S. §§3381 - 3386. The City argues that the trial court erred by refusing to apply the Act on the basis that the City formally accepted the offer dedicating the property to a public use and erred by relying on the common law public trust doctrine instead of the available statutory remedy.
The City submits that the trial court applied an incorrect standard in reviewing the evidence and construed too narrowly the City's request under Section 4 of the Act, 53 P.S. §3384, and that it erred by concluding that the City presented insufficient evidence to support its opinion that the original use of the property is no longer practicable and has ceased to serve the public interest. This matter was heard by the Court en banc to address the inconsistencies between In re Bangor Memorial Park, 567 A.2d 750 (Pa. Cmwlth. 1989) (Bangor II), and Vutnoski v. Redevelopment Authority of Scranton, 941 A.2d 54 (Pa. Cmwlth. 2006), adopting the view that the Act applies only when there is no formal record of acceptance of property by a political subdivision, and White v. Township of Upper St. Clair, 799 A.2d 188 (Pa. Cmwlth. 2002), and Petition of Westmont, 570 A.2d 1382 (Pa. Cmwlth. 1990), assuming that the Act applies in circumstances where there is a formal record of acceptance and dedication of property.
In its June 27, 2007 opinion, the trial court found that on August 13, 1926 the Erie Golf Club resolved to convey the parcels now known as Erie Golf Course to the City for $1 and the City's assumption of a mortgage of $15,000. On August 24, 1926, the City Council enacted an ordinance authorizing the purchase.*fn1
The deed transferring the property to the City was duly recorded on August 31, 1926, and it included a deed restriction requiring the City or its successors or assigns to keep and maintain the premises as a golf course or for public park purposes or both.*fn2 The City has maintained and used the dedicated property as a golf course, although the trial court noted that in winter people have used it for activities such as skiing and year round for walking, bird watching and so forth. The City owns Downing Golf Course and J.C. Martin Golf Course as well, and it operates the three courses as an enterprise fund separate from the general fund.
In 2004 during the administration of Mayor Richard Fillippi, City Council approved a bond issue for $2,250,000 to make improvements to the golf courses; approximately ninety percent was spent on Erie Golf Course. Under the general obligation note secured by the City's assets, the City is obligated to pay approximately $160,000 per year until 2024 when an estimated $1,200,000 balloon payment is due. It undertook significant renovations in 2005 and completed them in the summer of 2006, but under the administration of Mayor Joseph Sinnott the City permanently closed Erie Golf Course on October 31, 2006. On December 20, 2006, City Council passed a 2007 budget and resolution authorizing advertisement for bids for sale of the golf course; the budget provided no funding for operation of the golf course. The City filed its petition on February 26, 2007, and the Lake Erie Region Conservancy and Committee to Keep Erie Golf Course Open along with two residents (Intervenors) were later granted leave to intervene.
After the trial court denied the petition, the City filed its notice of appeal and statement of matters complained of on appeal under Pa. R.A.P. 1925(a) and listed twelve points. In its August 31, 2007 opinion the trial court concluded that the City waived eleven of its issues.*fn3 It deemed to be preserved the questions of whether the Act applies and whether it abused its discretion in ruling that the City must hold Erie Golf Course consistent with the original dedication.
The trial court quoted Sections 2 through 4, 53 P.S. §§3382 - 3384:
Section 2. All lands or buildings heretofore or hereafter donated to a political subdivision for use as a public facility, or dedicated to the public use or offered for dedication to such use, where no formal record appears as to acceptance by the political [sub]division, as a public facility and situate within the bounds of a political subdivision, regardless of whether such dedication occurred before or after the creation or incorporation of the political subdivision, shall be deemed to be held by such political subdivision, as trustee, for the benefit of the public with full legal title in the said trustee.
Section 3. All such lands and buildings held by a political subdivision, as trustee, shall be used for the purpose or purposes for which they were originally dedicated or donated, except insofar as modified by court order pursuant to this act.
Section 4. When, in the opinion of the political subdivision which is the trustee, the continuation of the original use of the particular property held in trust as a public facility is no longer practicable or possible and has ceased to serve the public interest, or where the political subdivision, as trustee for the benefit of the public, is in doubt as to the effectiveness or the validity of an apparent dedication because of the lack of a record of the acceptance of the dedicated land or buildings, the trustee may apply to the orphans' court of the county in which it is located for appropriate relief. The court may permit the trustee to-
(1) Substitute other lands or property of at least equal size and value held or to be acquired by the political subdivision in exchange for the trust property in order to carry out the trust purposes.
(2) If other property is not available, sell the property and apply the proceeds to carry out the trust purposes.
(3) In the event the original trust purpose is no longer practicable or possible or in the public interest, apply the property or the proceeds therefrom in the ...