*1 In Re: ERIE GOLF COURSE
Appeal of: of Erie. Pennsylvania. Court of
Commonwealth
Argued Oct. 2008.
Decided Jan. Karle, Erie, appellant. A.
Gregory Erie, Curry, appellee. Paul F. LEADBETTER, President BEFORE: McGINLEY, Judge, Judge, SMITH-RIBNER, Judge, and PELLEGRINI, SIMPSON, Judge, and LEAVITT, Judge, Judge, BUTLER, Judge.
606 Park, 143, Pa.Cmwlth. 567 A.2d Judge BY SMITH- 750
OPINION
II), and
(Bangor
RIBNER.
Vutnoski Rede
Scranton,
velopment Authority
941 A.2d
of
(City) appeals from an
City
The
of Erie
(Pa.Cmwlth.2006), adopting the
view
County
Erie
Common Pleas
order of the
only
Act
when there
applies
that the
is no
(trial court)
City’s
that denied the
Court
acceptance
property by
formal record
the use of dedicated
petition to abandon
and White v. Town
known as “Erie Golf
public property
Clair,
ship
Upper St.
dedicating property I the common law by relying erred stat- trust doctrine instead of the available opinion, its June utory remedy. 13, 1926 the August court found that on convey par- Club resolved to Golf the trial court City
The submits cels known as Erie Golf Course now reviewing an incorrect standard applied assumption of a City City’s and the $1 narrowly too the evidence and construed 24, 1926, $15,000. August On mortgage request under 4 of the an ordinance au- City Council enacted Act, by and that it erred The deed trans- thorizing purchase.1 concluding City presented that the insuffi- duly ferring opinion that cient evidence to its 31, 1926, it includ- August and recorded on long- use of the is no requiring ed a restriction deed ceased to serve the practicable er and has and main- assigns keep by its successors interest. This matter was heard golf as a course or premises tain the en banc to address the inconsis- the Court public park purposes or both.2 tencies In re Memorial between A, Ordinance, conveyance, agree to and Repro- covenant and Ex. 1. The Intervenors' 1752a, 1754a, (R.R.) Club], provides: and duced Record its successors [Erie with the Golf assigns, [City], its successors and the con- Section 3. That in addition to hereof, assigns, in Section 2 and all times sideration set forth shall and will at hereafter part forever, for this con- premis- as a of the consideration keep and maintain the and veyance, in the deed of of Erie golf hereby conveyed, as a course or for es acceptance conveyance thereof shall park purposes or both. agree [Erie to and with the covenant and Club], assigns, and Golf its successors agreed be- distinctly and It is covenanted assigns, [City], shall its successors and that all the cove- parties tween the hereto forever, and will at all times hereafter expressed agreements nants and above premises hereby keep and maintain the and bind the land shall be held to run with conveyed, or for as a course subsequent hereby conveyed, all own- purposes, park or both. thereof, accep- occupants and the ers and 1341a, deed, R.R. effect 2. The Petitioner's Ex. tance this deed shall have same .of 1343a, following: upon [City], includes the suc- binding force assigns, were [City], part as if the same 1. And the consideration cessors and itself, conveyance, [City]. its suc- signed for this does for and sealed assigns, by the cessors and complained ap- of matters of on the dedicated statement has maintained used R.A.P.1925(a) course, and listed although peal as a opin- August In its people points. trial court noted that in winter have twelve concluded that the skiing it for ion the trial court used activities such *3 It deemed to watching and waived eleven of its issues.3 year walking, round for bird questions of whether Downing preserved forth. The owns Golf be so its dis- as Act and whether abused Course and J.C. Martin Course Golf well, ruling must hold operates and it the three courses as cretion origi- gen- Course consistent with enterprise separate an fund from Golf nal dedication. eral fund. 2 quoted trial Sections during
In 2004 the administration of 4, §§ through 3382-3384: Mayor Fillippi, City ap- Richard Council $2,250,000 a issue for to make proved bond buildings All Section 2. lands courses; improvements golf approx- to the po- or hereafter donated to a heretofore imately ninety percent on Erie spent public litical subdivision for use as a general obligation Golf Course. Under the use or facility, or dedicated assets, by note secured use, offered for dedication to such where $160,000 obligated pay approximately is accep- no formal record per year until 2024 when an estimated division, by political tance [sub] $1,200,000balloon It un- payment is due. facility and situate within the significant dertook renovations in 2005 and subdivision, political regard- bounds of a completed them the summer of less of whether such dedication occurred but Mayor under the administration of Jo- incorpo- the creation or before or after seph City permanently Sinnott the closed subdivision, shall political ration of the Erie Golf Course on October 2006. On by political be deemed to be held such 20, 2006, City passed December Council trustee, subdivision, of for the benefit budget authorizing and resolution ad- legal full title in the said with vertisement for bids for sale of the trustee. course; budget provided funding no All such lands and build- Section 3. operation of the course. The subdivision, as ings political held petition February filed its on trustee, purpose be used for the shall Conservancy Region the Lake Erie they originally purposes for which were Keep Open
Committee to Erie Golf Course donated, insofar as except dedicated (Intervenors) along two with residents pursuant court order modified granted were later leave to intervene. act. When, of opinion petition,
After the trial court denied the
which is
appeal
of
subdivision
filed
notice
7.1(a)
general
require exceptions but that the election of
provides
not
3. Pa. O.C. Rule
that in
exceptions may
twenty
exceptions
aggrieved party
be filed no later than
to file
will
an
order,
days
entry
adjudi-
after
of an
decree or
appeal.
on
not result in waiver of issues
that would become a final order under
cation
adds, however,
"nothing
this rule is
341(b)
following disposition
Pa. R.A.P.
or 342
abrogate
requirement
deci-
intended to
exceptions;
however: “Failure to file
mandating that issues
sional law or court rule
exceptions
in waiver if the
shall not result
timely petition,
preserved by a
appeal
appeal
properly
grounds for
are otherwise
answer, claim,
proof
objection,
offer
Explanatory
to Rule 7.1
preserved.” The
Note
appropriate vehicle.” Id.
other
part
permits
7.1
but does
states in
that Rule
trustee,
Philadelphia
continuation of the
tees
Museums v. Trustees
University
Pennsylvania,
held in
particular property
use of the
facility
longer
progeny,
611
Alliance,
maintain that the trial
412 Pa.
Intervenors
Republican
Lurie v.
(1963).
that the Act did
was bound to determine
absence of such an application the resi- Ill permitted proceed equi-
dents were ty.7 approved an Westmont this Court appli the correct provides orphans’ court’s removal of a deed restric- cation of the rules of construction buildings conveyed by tion on land and entire in the context of the interpretation corporation to a for munici- borough steel sentence, after 2 is one Act. Section pal purposes only, borough after it contains the words phrase dispute *7 municipal building moved its to a new loca- oc “regardless of whether such dedication 4 tion. The Court stated Section in after the creation or curred before or granted power court to re- orphans’ subdivision,” political of the corporation otherwise, covenant; move a restrictive an actual dedication. thereby indicating power approve a sale under Section lands and build 3 commands that Section 4(3) where the use of the “is no as trus ings by political held subdivision in longer practicable possible or or purposes for the tee “shall be used nugato- they originally interest” would be rendered were dedicated donated,” by court or- except as modified ry. facility violated sports complex recreational statutory remedy preferred was im- that a plicit along. argued sup- all that White the Act. The residents applied position the Act even ported the Vutnoski, published after briefs were filed formally property had been dedicated. where case, Bangor II and in this the Court relied on Although acknowledging conflict with White quoted Bangor I. It affirmed the rationale of language simply concluded that the this Court resident/taxpayers’ complaint dismissal of applicability of dictum on in White was obiter alia, equity averring, that the redevel- in inter dedication. there was formal the Act where authority’s proposed conveyance of a opment 612 Act, pursuant
der again referring qualifying language readily would be ap- parent. an actual dedication. Another rule of construction states, however: “In no case shall the disjunction 4 Section first creates a be- punctuation of a statute control affect when, opinion political tween Assembly the intention of the General in trustee, subdivision as continuation of the punctuation the enactment thereof but original use of the held in trust is in be used to aid the construction longer practicable no and has finally thereof if the statute was enacted ceased to serve the interest “or” after December 1 1964.” Pa.C.S. where the subdivision is doubt 1923(b). validity as to the effectiveness or an apparent dedication of the lack because The is correct that the trial acceptance. a record of lack court applying erred common law acceptance plainly record of appli- has no statutory trust doctrine when the portion. cation to the 4 first Section lists applies. Giving relief found in the Act types four that an orphans’ meaning relief Act the terms Section of the one, 4(4), may permit only they but Section dictated the context in which are used, specifically waiving rights Philadelphia Housing Authority refers to “to Board, Pennsylvania such land and Relations buddings ap- as have been Labor parently applying dedicated but for which no formal A.2d of “where no for acceptance appears qualifying language of record....” Section 4(3) acceptance mal record permits proceeds to the immedi [subdivision” applied its sale to be to another use ately preceding words but not to those the event the purpose “[i]n trust remote, Packer, more the Court holds longer practicable possible or the Act when there is a formal por- interest” and mirrors the first record of and dedication of do tion of Section and does not turn on lack property. nated The Court therefore acceptance. Finally, of a record of if the II contrary holdings overrules legislature intended for the Act to apply and Vutnoski. only where there is no formal record of dedication, acceptance of an it offer of had argues next that the trial only to formal acceptance among list by using court erred an incorrect standard specifically circumstances excluded from evidence in review to assess the reach of Act in petition. Although of its § 3386. apply, court held that did analysis The title of the Act shows an intent to an assum performed nonetheless *8 apply properties ing arguendo to donated as that it trial court did. The uses, parks, squares proper- only or to the similar stated that the reason offered public parks, City ties otherwise dedicated as of its contention that the squares properties original purpose longer practicable or similar uses and to was no dedication, “offered for where no formal and had ceased to serve the interest had record the was that the debt service on the loan parks, expensive rendered Erie Golf Course too ” Indeed, squares keep opin or similar uses.... but and maintain. its second for the comma for dedi- that it not between “offered ion court indicated did ap- disregard City’s cation” and no formal record evidence of financial “where pears” application problems, appeal. the restrictive of the as contended on au- discretionary scope of its in outside City emphasizes provision did not plainly trial court “When, thority. The opin- 4 of the Act: to sell the City’s decision agree with which is ion subdivision of the ele- or with all Erie Golf Course trustee, the continuation of that deci- formulating that went into ments longer practicable possible ... is no or use there sion, findings in its is nowhere but inter- ceased to serve the has concluding officials any for basis may apply the trustee to the court est” faith, fraud, arbitrary or with bad acted def- requires The statute therefore relief. As power. capricious conduct or abuse opinion. municipality’s erence to the result, by failing to the trial court erred 30, Appeal, 425 Pa. 227 A.2d Goodman review this required limited (1967) (quoting Blumenschein matter. Authority, 379 Pa. Pittsburgh Housing (1954)),
566, 573, 109 A.2d argument closely In a related au- stated that a host of Supreme Court trial court misin City’s maintains that the following: had established the thorities phrase longer practica “no terpreted the not the actions of will review “[C]ourts prac it to physical or to limit possible” ble governmental bodies or administrative failed to ticability possibility, and it also discretion, in involving tribunals acts of suffi City presented determine faith, fraud, capri- the absence of bad 4 twice refers to cient evidence. Section power; they cious action or abuse of will longer practicable possi phrase “no ac- inquire not into the wisdom of such regard original purpose. ble” with manner tions or into details for the may consult dictionaries Courts adopted carry them into execu- usage of terms not approved common and might tion .... That the court have a Philadelphia Eagles defined in statutes. opinion judgment regard different Club, Philadelphia, Football Inc. v. agency to the action of the is not a (2003). A.2d 108 573 Pa. interference; ground judi- sufficient is defined Webster’s “practicable” word may discretion not be substituted cial Dictionary 1789 Third New International for administrative discretion[.]” practice per as “1: being put practice, into capable form : Philadelphia, See also Weber v. 437 Pa. ” The Feasible .... accomplished: noting that a done 262 A.2d usage common is that presumption municipal exists that officers view encompass fiscal or eco enough broad public good, act for the that courts impracticability. municipal nomic inquire not into the wisdom of collusion, fraud, acts absent evidence continuing need to cover Evidence of the arbitrary constituting bad faith or action supports general fund revenues losses with power, judicial discretion abuse course use City’s position not substituted for administra- should longer practicable. and that courts are tive discretion Powers, Di- Assistant Appraiser James not in- municipal bodies and should super David Mulvihill Public Works rector of motivation of rec- improper terfere absent testified that Mayor Sinnott *9 ord. money. Powers consistently lost course sus- that the course could never City that believed agrees with the
The Court much was too because there Interve- tain itself nor those of neither its witnesses May- market. The in the Erie competition a any evidence to nors offered general testified that the or and Mulvihill City’s actions fell that determination money fund had to loan to the opera- City’s consideration of the petition apply- Mayor tions. The Papar- ing accountant Act and for evaluation of the evi- one testified that accrued a presented dence under Section 4 with due $12,000,000 deficit past over the three deference to municipal the actions of offi- years, Mayor and the indicated that acting discretionary pow- cials within their money general diverted from the fund af- ers. public safety
fected core services such as works. ORDER merely The trial court noted NOW, AND day January, this 7th origin and accuracy financial 2009, this Court reverses the order of the data was “contested” and then found that County Court of Common Pleas of Erie financial clearly evidence alone did not denying petition of Erie’s to aban- demonstrate that use of Erie Golf Course don public property, the use of dedicated longer is no practicable. The trial court and this matter is remanded to the trial concluded that Erie Golf Course “does not petition court for consideration of the need generate any specific amount of foregoing opin- manner consistent with the income to be a public[,]” viable asset to the ion. 27, see June 2007 Opinion, p. 13. relinquished. Jurisdiction is adopted policy that a municipal fiducia- ry permitted should not be to create a Judge BY DISSENTING OPINION problem justification only serves as its PELLEGRINI. for overturning a deed restriction because disagree majority Because I with the any municipality wishing to sell donated public property at issue was do- property simply could accept loan on nated, respectfully I dissent. unreasonable terms and claim that it was too expensive repay. conveyed the Erie Golf Club property of Erie for and its $1 fallacy reasoning this is that the $15,000 assumption mortgage. of a speculated scenario turns on bad-faith con- City Council enacted an ordinance autho- above, duct municipality. As noted rizing purchase, and the deed transfer- courts and should intervene when bad recorded, ring in- shown; otherwise, faith or they fraud is requiring cluded a deed restriction Weber; should not. Appeal. Goodman keep and maintain the case, disagreed with the a golf public park. course or a Since policy City, decisions made but the a golf has been used as fraud, faith, trial court did not find bad City, course. The because of its fiscal capriciousness power. or abuse of Based condition, property. now desires to sell the review, on its the Court holds that the trial determining court erred in petition the Act did filed a to abandon the and further that the trial court use of the course as a prop- dedicated applied erty erred the manner which it the Donated or Dedicated (Act), assuming arguendo apply. Property that it did Act Act of December error, §§ Because of this is com- P.L. Court 3381-3386. pelled granted to reverse the trial court’s order The trial court leave to intervene denying City’s petition Region Conservancy Lake Erie the basis apply, argued that the Act did not and it remands which that the common law proper principles applied. this matter to the trial court for trust The trial court *10 and, therefore, the Act has no relevance with the agreed intervenors denied this decision. City’s petition. not terms Court, The Act itself does define the appeal majority to the
On this However, the dic- “donate” “dedicate.” and relies the or reverses court on tionary gift a “donate” as “to make City was defines Act to conclude that the entitled of; public to a charitable so, to contribute or golf the In it doing to abandon course. Collegiate Act, cause.” Ninth New Webster’s relies on Section 2 of the P.S. (1989). de- is Dictionary § Dedication provides: which at public as Id. open fined “to use.” All lands or buildings heretofore or case, course golf when the political a hereafter donated to subdivi- conveyed City to property was the facility, for use as sion a dedi- it for It was not the purchased $1.00. the cated to use offered for never gift, “donated” as a and there was use, to where no dedication such formal to any dedicating property document the acceptance by record the use. the its residents division, political public facility as Instead, the assumed the debt political within of a situate the bounds on the at that outstanding property was subdivision, regardless of whether such $15,000 mortgage in time—a 1926—and dedication occurred before after to present until to have continued creation or incorporation payments prop- make maintenance subdivision, shall be deemed to held be longer it erty point could no trustee, such afford to do so. for the benefit of the with full legal title in the (Empha- said trustee. donated, Because the was added.) sis majority the Act irrelevant applied this case. should not have it to so, doing the majority focuses on the reason, I trial For this would vacate the record, despite fact that no formal jurisdic- has no court’s decision because property was dedicated. It then at looks deny tion authorize the sale Act, 4 of the Section Act. If the wants to sell provides orphans’ may relief that an property, to do so accordance with it has 4(4) allow; specifically, provides Section a deed process selling land with waiving rights “to such land and restriction. have buildings apparently been dedicat- ed but for which no formal acceptance Judge LEADBETTER President Further, appears of record ...” join. Judge McGINLEY
4(3) that “in provides the event longer practicable purpose trust interest,”
possible or in proceeds or the from its sale applied public purpose. different
Determining longer practica- that it is no
ble or maintain course
financially, majority reverses the trial majori- I disagree
court’s order. with was
ty because course purchased, but
not “donated” instead