         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bernard Zalman and Sandra Zalman,               :
his Wife,                                       :
                                                :
                              Appellants        :
               v.                               :   No. 1030 C.D. 2016
                                                    Submitted: February 9, 2017
City of Chester                                 :

Bernard Zalman and Sandra Zalman,               :
h/w                                             :
                                                :
               v.                               :   No. 1383 C.D. 2016
                                                :   Submitted: February 9, 2017
City of Chester                                 :
                              Appellant         :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                                  FILED: June 27, 2017

               Bernard Zalman and Sandra Zalman, who are the designated
Appellants (collectively Appellants), and the City of Chester1, cross-appeal from
an order issued on November 9, 2015 by the Court of Common Pleas of Delaware
County (Trial Court) quieting title to a portion of Yarnall Street and a portion of
West Front Street located within Chester. Based upon the following reasons and
the able and learned opinion issued by Judge Spiros E. Angelos of the Trial Court,
we affirm the Trial Court’s order.


1
  References within this opinion to the “City” refer to the City of Chester as a party to this
appeal, while references to “Chester” refer to the City of Chester as the location of the property
in dispute.
              Yarnall Street and West Front Street intersect within Chester in an
area along the Delaware River near the Commodore Barry Bridge that was
previously dominated by railroad tracks and industry and is now a street away from
the stadium that is home to the Philadelphia Union pro soccer team. An elevated
off-ramp from U.S. Route 322 creates a semi-circle above the area at issue and
allows cars to exit onto West Second Street. After the off-ramp, Yarnall Street is
the first street that crosses West Second Street and goes toward the river. As
Yarnall Street heads toward the river, Appellants’ first property is located on the
northwest side of where Yarnall Street intersects with West Front Street and
Appellants’ second property is located on the southwest side of where Yarnall
Street intersects with West Front Street. Appellant Bernard Zalman has operated a
business at the northwest and southwest corner of Yarnall and West Front Street
since 1956.
              Appellants filed a quiet title action to determine whether Appellants or
the City were the legal owners of portions of Yarnall and West Front Streets.
Following a non-jury trial, the Trial Court issued an order concluding that title to
that portion of West Front Street that abuts Appellants’ property belongs to the
City and that title to “the western half of Yarnall Street as it stretches from the
southern edge of the intersection of West Front Street and Yarnall Street south to
the southern boundary of [Appellants’] property located at the southwest corner of
Yarnall and West Front Street,” belongs to Appellants.
              Both Appellants and the City appealed the Trial Court’s order to this
Court and each requests that this Court affirm that portion of the Trial Court’s
order which quiets title in their favor and reverse that portion of the Trial Court’s



                                          2
order which quiets title in the other party’s favor.2 Appellants argue that the Trial
Court abused its discretion by concluding that the evidence demonstrated that West
Front Street was dedicated, opened, and used by the public prior to passage of the
Act of May 9, 1889, P.L. 173 (Act of 1889), 36 P.S. § 1961, and that, therefore, the
21-year statute of limitations set forth in the Act of 1889 is inapplicable to the
portion of West Front Street in dispute. The City argues that the Trial Court
abused its discretion by concluding that the City had vacated the portion of Yarnall
Street in dispute where the City did not pass an ordinance expressly vacating the
street. We will address these issues seriately.
              Appellants argue the record demonstrates that the Borough of South
Chester3 granted the right to construct a freight railway line across private property
on what is now West Front Street prior to any plotting, laying out or opening of
West Front Street. As a result, Appellants argue there was no dedication or
acceptance of West Front Street by the Borough of South Chester, which was later
incorporated into Chester. Appellants argue that there is no evidence in the record
that West Front Street was used by the public prior to passage of the Act of 1889
and Appellants, therefore, contend that there is no support in the record for the
Trial Court’s Finding of Fact No. 11. Finding of Fact No. 11 states:

              It has been specifically held that 36 P.S. § 1961 does not
              apply retroactively to a street that was in use at least by


2
  This Court’s scope of review of the denial of post-trial motions is limited to determining
whether the trial court abused its discretion or committed an error of law. Hunter v. City of
Philadelphia, 80 A.3d 533, 536 n.7 (Pa. Cmwlth. 2013). An appellate court may not substitute its
judgment for that of the trial court where the determination of the trial court is supported by
competent evidence. Pirillo v. Vanco, 74 A.3d 366, 368 n.5 (Pa. Cmwlth. 2013). Where the
issues presented are pure questions of law, our standard of review is de novo and our scope of
review is plenary. Id.
3
  The Borough of South Chester was incorporated into Chester in 1921.
                                               3
              railroads. City of Pittsburgh v. Pittsburgh & L. E. R. Co.,
              106 A. 724, 726 (Pa. 1919).

(Trial Court Op., ¶11.) The City argues that the cases relied upon by Appellants
for historical evidence, including Borough of South Chester v. Chester and
Delaware River Railroad Co., 5 Del. Co. Rep. 114 (Del. Cmm. Pls. 1892), and
Chester and Delaware River Railroad Co. v. South Chester Railroad Co., 5 Del.
Co. Rep. 153 (Del. Cmm. Pls. 1892), as well as the 1913 and 1934 “Sanbourn
Maps”4 offered as exhibits by the City, support the City’s argument and the Trial
Court’s conclusion that West Front Street was a public street by at least 1892,
rendering the Act of 1889 inapplicable to Appellants’ quiet title claim.
              The three essential elements that must be satisfied to demonstrate that
a street has been opened for public use are: (1) a grant or dedication that is express
or implied; (2) an acceptance; and (3) an opening or public use. Borough of
Leighton v. Katz, 462 A.2d 889, 892 (Pa. Cmwlth. 1983). Per the Act of 1889, the
General Assembly set forth the following statutory provision applicable to
unopened ways or streets on town plots:

              Any street, lane or alley, laid out by any person or
              persons in any village or town plot or plan of lots, on
              lands owned by such person or persons in case the same
              has not been opened to, or used by, the public for twenty-
              one years next after the laying out of the same, shall be
              and have no force and effect and shall not be opened,
              without the consent of the owner or owners of the land on
              which the same has been, or shall be, laid out.




4
  “Sanbourn Maps” were originally created as fire insurance risk maps and show structures and
the type of material used in the structure. Today these maps are commonly used by engineers
and planners to identify the historical use of property.
                                             4
36 P.S. § 1961. As early as 1896, our Supreme Court stated that “[t]he purpose of
the act is to relieve land upon which streets have been laid out by the owner, but
not opened or used for 21 years, from the servitude imposed.” Quicksall v. City of
Philadelphia, 35 A. 606, 609 (Pa. 1896). In Quicksall, the Court concluded that
the Act of 1889 prevented a street laid out and dedicated in 1848 from being
opened and used by the public without compensation because for the preceding 44
years the street had been exclusively within the possession of the abutting owners
and used by them for stone quarrying and it was, therefore, too late for the city to
assert a right founded on the dedication in 1848.
             However, the Court also concluded that the Act of 1889 had no
retroactive effect, stating that “[t]here is nothing in this statute that would justify us
in giving it a retroactive construction, so as to apply to streets opened and used
prior to its passage.” Osterheldt v. City of Philadelphia, 45 A. 923, 923 (Pa. 1900).
In Osterheldt, a deed from Richard Peters to Frederick Osterheldt in 1849
contained a dedication for public use of a strip of land owned by Peters that had
also been stamped as a public street on the plat recorded by Peters. At some point
between 1865 and 1870, Osterheldt erected fencing enclosing 25 feet of the strip of
land laid out and dedicated by Peters as a public street. In 1884, city council
passed an ordinance opening “Fairmount Avenue” with a width of 50 feet. The
street now known as Fairmount Avenue included the strip of land identified as a
public street in the deed from Peters to Osterheldt that Osterheldt had enclosed
with fencing. Osterheldt’s heirs brought an action for damages against the city and
the Court held that the deed from Peters to Osterheldt in 1849 operated as a
relinquishment of all claims for damages for the use of the land within the line of



                                            5
Fairmount Avenue and that, because the Act of 1889 had no application,
Osterheldt’s heirs had no claim for damages. Id. at 923.
             Clarifying application of the Act of 1889 further, the Court held in In
re Widening of State Road, 84 A. 686 (Pa. 1912), that the Act applied only to new
streets laid out by owners but not opened or used by the public for the subsequent
21 years and that the Act had no application to the widening of a road to include
land previously dedicated as a part of a public highway. Id. at 687. In State Road,
an owner of a large tract of land executed a deed and recorded a plan subdividing
the tract into lots and streets including Aramingo Street, which was recorded as
being 60 feet wide although only 50 feet was currently being used by the public.
Purchasers of the surrounding tracts subsequently built fences along the bed of
Aramingo Street, enclosing the 10 unused feet of the plotted roadway. The Court
concluded that the public actually used and continued to use Aramingo Street after
its dedication and that, even though the public did not use the entire width
dedicated, public use of any part of the road was sufficient to establish acceptance
of the entire width of the road dedicated. Id. at 687.
             The Court addressed the effect of use of a street by the railroads on
the issue of whether a street was a public street in City of Pittsburgh v. Pittsburgh
& L. E. R. Co., 106 A. 724 (Pa. 1919). In Pittsburgh & L. E. R. Co., the city filed a
bill in equity to remove encroachments by abutting property owners on an alleged
public street, known as South Water Street, which stretched from Seventeenth to
Twenty-Sixth Street within the City of Pittsburgh. The area where the alleged
street was located was originally developed from two tracts of land on the southern
bank of the Monongahela River, the eastern part being owned by Oliver Ormsby
and the western part being owned by John Ormsby, which were partitioned by the


                                          6
Orphans Court in 1841 and 1844. A third tract, which lay between the two
Ormsby tracts, was determined to belong to Oliver Ormsby and partitioned in
1844. The Court found that “[n]umerous streets are referred to in the partition
proceedings and shown on plots accompanying the same, including Water street
represented as of the width of 100 feet, more or less, and extending to the river.
Subsequently much of the property was subdivided and passed by sundry
conveyances wherein Water street is referred to and called for as a boundary, and
some buildings were erected abutting upon the south line thereof.” Id. at 725.
             At the time of the partitions, there was an open coal mine from which
a railroad extended to the river along what became Twenty-First Street, and on the
western side of Twenty-First Street there was a block of lots known as the
“railroad lots.” The first two partitions, in 1841 and 1844, did not extend Water
Street across the railroad lots; the third partition, in 1844, showed Water Street
extending across the railroad lots and included as signatories all abutting
landowners. In 1849, the borough of East Birmingham, which included all of the
land originally comprised of the Ormsby tracts, was incorporated by the General
Assembly. Section 15 of the Act provided that the owners of the railroad lots
retained ownership of the lots to the low water mark of the river, “[p]rovided, that
in all such cases there shall be secured to the public a right of way along the river
bank across such lot or lots.” Id. at 726. Following incorporation, Water Street
was referred to in numerous borough ordinances and one ordinance referenced
fixing and grading the street. The borough of East Birmingham became part of the
City of Pittsburgh in 1872 and in 1878 the city “granted a franchise to the
Pittsburgh & Lake Erie Railroad Company to construct a line of railway upon and
along said street, and later granted additional franchises to railroad companies to


                                         7
construct tracks therein, which was done; and the tracks so constructed have been
in constant use upon the streets here in question for over 30 years.” Id.
             The Court found that the area along the river and around Water Street
had been widely used since the original partition and that the city had established
wharfage charges, although collection was unsuccessful, as well as made
expenditures in the construction and care of the wharves along Water Street, but
that Water Street was never formally opened as such or improved as a street.
However, the Court also found that:

             It has been used more or less by pedestrians since 1847,
             and some parts of it also by vehicles, largely in
             transportation to and from the wharves and other
             establishments above mentioned. A washout near
             Eighteenth street has for many years prevented the use of
             that part of Water street, and further east (up the river) it
             has always been to some extent obstructed by fences and
             other obstacles; the part most used for teaming being
             between Nineteenth and Twenty-Second streets. The
             railroads in Water street are constructed largely upon
             trestles, and so far as they occupy space prevent traffic by
             other vehicles.

Id. Based on this evidence, the Court first concluded that “[t]he several partitions
showing blocks and streets, including Water street, constituted a dedication of the
latter to public use, especially when followed by the many conveyances made with
reference thereto. While Water street was not extended across the railroad lots by
the first or second partition, we agree with the chancellor that it was by the third.”
Id. at 727. Having confirmed that Water Street had been dedicated, the Court went
on to conclude that the dedication had been accepted, stating:

             In our opinion the acts of the borough and city in making
             reference to Water street in numerous ordinances,
                                          8
            establishing the grade thereof, dumping of earth thereon,
            building and repairing wharves within its lines, and
            granting franchises to railroad companies to lay and
            operate tracks therein constitute an acceptance of the
            dedication. And we are still of the opinion expressed in
            McKee v. Penna. R. R. Co., [100 A. 454 (Pa. 1917)], that
            the city’s granting permission to the railway companies
            to construct and operate tracks in Water street constituted
            an acceptance of the dedication. See Philadelphia v.
            Thomas’ Heirs, [25 A. 873 (Pa. 1893)]. Of course public
            use alone will constitute an acceptance of a dedicated
            street, but we do not base the decision upon that ground
            because of the question as to the extent of such use.

Id. Finally, the Court concluded that the Act of 1889 did not apply because Water
Street had been accepted by the municipality and “was in use at least by the
railroad companies, which was a public use, before the passage of the act.” Id.
            Appellants contend that because the railway constructed in the instant
matter was a freight railway or contract carrier, it did not constitute a public use
like the street railway constructed on Water Street and found determinative in
Pittsburgh & L. E. R. Co., and therefore the three essential elements necessary to
open a street to public use were not present prior to the Act of 1889. In support of
their argument that a freight railway does not constitute a public use, Appellants
rely upon White v. Smith, 42 A. 125 (Pa. 1899), where our Supreme Court
examined whether the City of McKeesport properly seized and sold for taxes the
personal property used in a public school building maintained by St. Peter’s
Roman Catholic Church. In determining that a tax was not properly levied on the
convent building because it was a part of a purely public charity, the Court quoted
from Appeal of Donohugh, affirmed per curiam by 5 W.N.C. (Pa. 1878), where
Justice Mitchell, sitting in the Philadelphia County Court of Common Pleas, stated
that:

                                         9
             The essential feature of a public use is that it is not
             confined to privileged individuals, but is open to the
             indefinite public. It is this indefinite or unrestricted
             quality that gives it its public character. The smallest
             street in the smallest village is a public highway of the
             Commonwealth, and none the less so because a vast
             majority of the citizens will certainly never derive any
             benefit from its use. It is enough that they may do so if
             they choose.


White v. Smith, 42 A. at 126. In addition, Appellants rely upon Phillips v. Public
Service Commission, 191 A. 641 (Pa. Super. 1937), wherein the Superior Court,
relying in part on White v. Smith, held that an owner of three trucks and a trailer
hauling freight for three customers under contract was not a common carrier of
freight required to obtain a certificate of public convenience in order to operate. In
articulating the proper analysis for determining whether a transporter of goods was
a common carrier, the Superior Court in Phillips quoted in part from Lloyd v.
Haugh & Keenan Storage & Transfer Co., 72 A. 516, 517 (Pa. 1909), and stated:

             As our Supreme Court has said, “we express a doctrine
             universally sanctioned when we say that any one who
             holds himself out to the public as ready to undertake for
             hire or reward the transportation of goods from place to
             place, and so invites custom of the public, is in the
             estimation of the law a common carrier.” The character
             of the service may be exhibited both by actually
             rendering service and by an offer to furnish service, that
             is, by the manner in which the carrier holds himself out
             to the public.

Phillips, 191 A. at 643 (internal citation omitted). While the premise upon which
Appellants’ argument is based—that not all use of a street by the railroads amounts
to a public use—has merit, the Trial Court found and the record supports the

                                         10
finding that the portion of West Front Street that Appellants claim title to was
dedicated, accepted, and opened to public use prior to the Act of 1889. Appellants
focus their argument on the early history of the creation of the railroad along the
river in Chester discussed in Borough of South Chester v. Chester and Delaware
River Railroad Co., 5 Del. Co. Rep. 114 (Del. Cmm. Pls. 1892) (Borough of South
Chester I). The chief issue in Borough of South Chester I, is the extent of the
power granted by the Commonwealth to a railroad corporation by a charter for a
franchise to construct a railway within a municipality and the remedies available to
a municipality where it is alleged that the power has been exercised beyond what
was granted by the charter. At the start of the opinion, the trial judge states that as
of 1892:


             South Chester is one of the largest and most flourishing
             boroughs in the State. It has a population approaching
             10,000 inhabitants. It has millions of dollars invested in
             its manufacturing industries. It has, at great expense,
             surveyed, laid out, adopted, graded and regulated a
             system of streets, two of which are curbed and paved for
             a distance of nearly two miles. Third Street was graded
             and paved at an expense of $80,000. The borough is
             supplied with water and gas, and has a system of
             sewerage. No stranger visiting the city of Chester could
             tell where the city ends and the borough begins. The
             streets of the borough are all laid out and graded so as to
             conform to the general plan of the city of Chester, of
             which the borough must necessarily soon become a part.


5 Del. Co. Rep. at 115. However, later in the opinion the trial judge discusses the
history of the development of the railroad and the borough, stating:



                                          11
             The first ordinance under which the defendant claims to
             take this street was passed June 6, 1870. The borough
             had hardly been organized. No system of streets had
             been surveyed, laid out or adopted. The population did
             not then exceed five hundred inhabitants. Nearly all the
             land over which the proposed road was to be built then
             belonged to the Hon. John M. Broomall. The suggestion
             came from the P. W. & B. R. R. Company and the clear
             understanding was that the road was to be built at once to
             encourage manufacturers to locate in the borough, not
             after they had located there. For some unknown reason,
             perhaps the want of branching power, the P. W. & B. R.
             R. Company refused to build the road and Mr. Broomall
             procured the same privileges by the second ordinance,
             and actually built the road. It was a very primitive
             construction, not over twelve feet wide, but it answered
             its purposes and was patronized by perhaps one freight
             car a week. After the company was incorporated, it
             procured the passage of the Act of 1873, which I construe
             merely to confirm what had been done, the road then
             having been fully completed and, I suppose, approved by
             the street committee. The second section of this Act was
             intended to authorize the borough and railroad company
             to agree upon future extensions and improvements.

Id. at 121. Appellants contend that this history of the development of the railroad,
particularly the fact that it was built by the Hon. John Broomall on land he owned,
constructed prior to an adoption by the Borough of South Chester of a system of
streets, and that the line was used solely for commercial purposes demonstrates
that it was never opened for public use and therefore, the fact that the line traversed
the portion of West Front Street at issue was not competent evidence of public use.
Appellants’ interpretation of Borough of South Chester I, with its focus on the
history of the railway construction in the 1870s, overlooks the trial judge’s earlier
discussion of the railway and the streets of the Borough of South Chester in 1892

                                          12
and the context within which all of this factual history takes place—a bill in equity
seeking to enjoin the company incorporated by the Hon. John Broomall, Chester
and Delaware River Railroad Co., and the South Chester Railroad Co., from
abusing their charter privileges and creating a public nuisance by preventing safe
passage by the public at large along the streets and sidewalks of the Borough and
flouting Borough regulation. Id. at 115-116, 118. The Court held in Borough of
South Chester I that:


             Both of the defendant railroads are upon an equal
             footing, as to their right to use and occupy the streets of
             the borough of South Chester…that the proper person to
             be consulted and the terms to be agreed upon for the
             exercise of their charter privileges of using said streets in
             a reasonable manner, is the borough of South Chester,
             and until such location and reasonable conditions are
             agreed upon the injunction shall issue restraining both of
             said companies from any use of, or interference with said
             street.


Id. at 125-126. Whether in the year 1892 or 2017, an injunction sought by a
municipality to prevent private corporations from using private land in a manner
that excludes competition and the public at large from use of that land would not
issue; the bill in equity and the injunction that issued in Borough of South Chester I
necessarily stand on the condition precedent that the public has a right to use of the
streets.
             Furthermore, while Appellants set forth the analysis applicable to an
examination of whether a carrier is a common carrier or a contract carrier,
attempting to use the distinction as a means to distinguish the freight railroad
originally constructed by the Hon. John Broomall from the railway found to

                                          13
support public use in Pittsburgh & L. E. R. Co., they do not set forth facts to
demonstrate that the freight railway was not a common carrier, simply noting that
it was commercial in character and meant to attract and serve businesses along the
waterfront. The railway along Water Street in Pittsburgh & L. E. R. Co. originally
transported coal but this fact did not detract from the Court’s finding that the
existence of the railroad supported the conclusion that the street was in public use.
Appellants’ argument is unsupported by facts gleaned from Borough of South
Chester I that show the railroad constructed on West Front Street was limited to
use by a privileged few and not held out to the public at large as ready for use, or
that the area within West Front Street beyond the tracks was not open to the public
for use.
             Chester and Delaware River Railroad Co. v. South Chester Railroad
Co., 5 Del. Co. Rep. 153 (Del. Cmm. Pls. 1892) (Borough of South Chester II)
provides further support for the Trial Court’s conclusion that the portion of West
Front Street at issue was opened to the public. Borough of South Chester II was an
attempt by the railroad companies to re-litigate the issues in Borough of South
Chester I. 5 Del. Co. Rep. at 153. The opinion is replete with references to the
obstruction of public use and safe passage across the streets of the Borough, Front
Street in particular, by the ongoing war between the railroads because each
company was damaging the roads in order to obstruct the other company from
laying its tracks. Id. at 154-155, 158. In concluding that the injunction issued
earlier in the year in the Borough’s favor would stand and a special injunction
favoring one or the other of the railroad companies would not issue, the trial judge
stated that the Chester and Delaware River Railroad Company had “no right to
unnecessarily obstruct the remaining part of the street for the purpose of depriving


                                         14
any other rival [tracks] of its use. Neither have they the right to destroy the street
for public travel, only so far as the line adopted will, from necessity, destroy it.”
Id. at 155. In addition, the trial judge concluded that if the railroad company had
the powers it claimed of appropriating the whole street, then the company would
have to condemn it and pay for its exercise of eminent domain; from this
conclusion, it necessarily follows that the land in question was used by the public,
for otherwise eminent domain would not have been a part of the court’s calculus.
Id. at 156. Moreover, in reaching its conclusion, the court noted that the Chester
and Delaware River Railroad Company had the right to carry freight as well as
passengers, which undercuts Appellants’ attempt to distinguish Pittsburgh & L. E.
R. Co. from the instant matter.
             Borough of South Chester I and Borough of South Chester II both
support the conclusion that the portion of West Front Street at issue was opened for
public use before the 21-year statute of limitations in the Act of 1889, which our
Supreme Court long ago made clear has no retroactive effect. The Trial Court did
not err in concluding that Appellants failed to demonstrate clear title to the subject
portion of West Front Street.
             Next, the City argues that it was error for the Trial Court to conclude
that Yarnall Street had been vacated where the record demonstrated that City
Council had not passed an ordinance vacating the street. Specifically, the City
contends that the Trial Court erred by relying on Hasenflu v. Commonwealth, 179
A.2d 216 (Pa. 1962), to conclude that there is an exception to the general rule that
the city council of a municipality must pass an ordinance to vacate a street “where
city council passes an ordinance that results in the barricade of a particular street to
prevent vehicular traffic and the street is then actually closed.” (Trial Court Op.,


                                          15
¶19.) The City also argues that the Trial Court erred by not applying the Rules of
Statutory Construction in its analysis of the Ordinance passed by City Council.
              Generally, a municipality may vacate a street by ordinance where the
ordinance is affirmed by a three-fourth vote of the elected council, approved by the
mayor and where proper notice procedures have been followed. Section Nine of
the Act of May 16, 1891, P.L. 75, as amended, 53 P.S. § 16725; see generally In re
City of Altoona, 388 A.2d 313 (Pa. 1978). However, this rule is not without
exceptions. In Hasenflu, our Supreme Court examined whether the court below
erred by denying a landowner a new trial in an eminent domain proceeding. The
land at issue was bounded on the west side by Walnut Street, a public highway of
the City of Sharon. The landowner argued that a portion of Walnut Street had been
closed and reverted to his ownership and that the construction plans for Walnut
Street constituted a taking of that reversionary interest for which he was due just
compensation. The City of Sharon argued that the portion of Walnut Street had
never been legally vacated so there could be no taking. The record showed that a
barrier had been erected preventing vehicular traffic from traveling on the portion
of Walnut Street at issue, that the construction plans for the surrounding streets by
the Commonwealth had called for closing Walnut Street and erecting barriers, and
that the City of Sharon had approved this plan by ordinance. Id. at 220. The Court
concluded that the trial court erred in instructing the jury that there had been no
evidence of a legal street closing, stating:


5
  See also Act of May 23, 1907, P.L. 223, § 1 (copy of ordinance to be filed; manner of indexing
title) & § 2 (fees of recorder), Act of May 21, 1905, P.L. 46 § 1 , as amended (power of
municipalities) & § 2 (proceedings as now provided), Act of April 6, 1949, P.L. 394 § 2
(validation of street vacations), Act of March 30, 1922, P.L. 30 § 1 (time for enforcement) & 2
(effect of expiration of time), Act of April 7, 1927, P.L. 169 § 1 (limitations of actions) & § 2
(designation of no effect one year after being closed), 53 P.S. §§ 1941-1949.
                                               16
             Despite this approval by councilmanic action of the
             construction plan one of the details of which would close
             a portion of Walnut Street, the Commonwealth argues
             that, before a legal vacation of any portion of Walnut
             Street could take place, the City council had to pass an
             ordinance specifically declaring the vacation of the street.
             As a general rule such councilmanic action is requisite
             but our courts have very soundly recognized exceptions
             to this rule. Wetherill v. Pennsylvania Railroad Company
             et al., [45 A. 658 (Pa. 1900)]; Carpenter v. Pennsylvania
             Railroad Co., [45 A. 685 (Pa. 1900)]; [In re] Butler
             Street, 25 Pa.Super. 357 [Pa. Super. 1903]. The instant
             factual situation is an exception to the rule. Here we have
             municipal approval by ordinance of this plan of
             construction which portrays a closing of a portion of
             Walnut Street followed by an actual physical closing of
             such portion of the street. Both clearly manifest the
             municipal will. In charging the jury that there was no
             evidence of a ‘legal closing’ of this portion of Walnut
             Street the trial court erred.

Id. The City argues that the facts of Hasenflu are inapposite because in the instant
matter the street was only closed to vehicular traffic, the closing did not involve the
erection of permanent barriers, and the closing did not involve a construction plan
approved by city council but an Ordinance passed that explicitly closed the street
to vehicular traffic. Essentially, the City contends that rather than depend on
evidence of the “municipal will,” as the Court did in Hasenflu, the Trial Court has
allowed Appellants to take a public street by permissive possession.
             When Appellant Bernard Zalman located his business at Yarnall and
West Front Streets, a railroad line remained on West Front Street and the
surrounding area was nothing but mud. (October 5, 2015 Hearing Transcipt (H.T.)
at 21, 23.) In 1956, Bernard Zalman constructed a new building on the southwest
corner of Yarnall Street. (Id. at 26.) Sometime in the 1960s, the railroad tracks

                                          17
were removed, leaving mud and holes where the ties had been taken up on West
Front Street. (Id. at 24.) From the 1960s until present day, the City has not
improved West Front Street or Yarnall Street. (Id. at 25.) During Mr. Zalman’s
ownership of his properties abutting Yarnall Street, he testified that the area “was
just mud and people dumping trash all over the area.” (Id. at 27.) At some point in
time, a portion of Yarnall Street from West Front Street to West Second Street/
Pennsylvania Route 291 was improved with pavement but there was no evidence
concerning the entity that did the paving. (Id. at 28.) However, the paving fell into
disrepair and Mr. Zalman testified that “there were holes and everything in it. In
order to run on it I had to put down plates, seal plates in order to go on that section
of it.” (Id. at 29.) He further testified that due to the rampant short dumping in the
area, a vermin problem developed, and he was forced to clean up the area at his
own expense. (Id. at 31.) In response to the short dumping, Appellant Bernard
Zalman testified that the City advised him to close up the street. (Id.)
             On or about December 14, 1983, the City passed an Ordinance closing
the portion of Yarnall Street at issue to vehicular traffic, which was published in
the City’s index of vacated streets. (Trial Court Op. ¶20; see also Exhibits P-3 &
P-4 (Table of Special Ordinances Vacating Streets).) The City also vacated or
closed several adjacent segments of streets surrounding the intersection of West
Front Street and Yarnall Street. (Exhibit P-4; see also H.T. at 88.) The City then
provided Appellants with steel beams and pipes so that they could physically close
the road. (Id. at 32.) In or about 2009 to 2010, the Pennsylvania Department of
Transportation constructed new ramps from the Commodore Barry Bridge to
Route 291, and Mr. Zalman testified that during the construction the balance of



                                          18
Yarnall Street from Route 291 to West Front Street was destroyed by the heavy
trucks used by the Commonwealth. (Id. at 31, 33.)
             Based on the record before the Trial Court, we agree that title to the
subject portion of Yarnall Street is controlled by the exception articulated by our
Supreme Court in Hasenflu and is not an issue of Statutory Construction.
Although the Sanbourn Maps submitted into evidence by the City show that prior
to the creation of Yarnall Street, the predecessor street, Morton Street, contained
residential houses on the eastern side and that these homes were serviced by
utilities that today are public, the Trial Court did not find this evidence persuasive.
Instead, the Trial Court concluded and the record supports the conclusion that
closing of the subject portion of Yarnall Street by Ordinance, preceded by the
lengthy abandonment of the area and followed by the actual physical barricading
of the subject portion of Yarnall Street, amounts to a de facto vacation of the street
by municipal will.     Furthermore, although not determinative because of the
controlling nature of Hasenflu, the record does not show that the subject portion of
Yarnall Street was ever properly opened to the public.
             Accordingly, we discern no error and affirm the order of the Trial
Court in toto.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          19
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bernard Zalman and Sandra Zalman,     :
his Wife,                             :
                                      :
                       Appellants     :
            v.                        :   No. 1030 C.D. 2016
                                      :
City of Chester                       :

Bernard Zalman and Sandra Zalman,     :
h/w                                   :
                                      :
            v.                        :   No. 1383 C.D. 2016
                                      :
City of Chester                       :
                       Appellant      :


                                   ORDER

            AND NOW, this 27th day of June, 2017, the order of the Delaware
County Court of Common Pleas in the above-captioned matters is AFFIRMED.




                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
