In Re: Petition of the Wilkinsburg Taxpayers and Residents Interest in Green Street Park Sale to a Private Developer and other Park-Systems Conditions ~ Appeal of: K. Luxemburg

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition of the Wilkinsburg :
Taxpayers and Residents Interest in :
Green Street Park Sale to a : No. 120 C.D. 2018
Private Developer and other :
Park-Systems Conditions : Submitted: September 14, 2018
:
Appeal of: Kate Luxemburg :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY
JUDGE McCULLOUGH FILED: December 17, 2018

Kate Luxemburg, on behalf of a group of taxpayers and residents of the
Borough of Wilkinsburg (hereafter, Appellants), appeals from the December 11, 2017
order of the Orphans’ Court Division of the Court of Common Pleas of Allegheny
County (Orphans’ Court) that sustained the preliminary objections filed by the School
District of Wilkinsburg (District) and Akator Construction, LLC (Developer) and
dismissed Appellants’ petition seeking to condition the sale of property to Developer
or, alternatively, to void the sale and eject Developer from the property.

Facts and Procedural History
The property at issue in this case is identified by the Allegheny County
Department of Real Estate as Lot & Block #176-F-170 located at the northwest corner
of the intersection of Green Street and Mifflin Avenue in the Borough (the Property).
(Orphans’ Court op. at 1; Finding of Fact No. 1.) The Property is known locally as
“Green Street Park” and has been the subject of previous litigation before the Civil
Division of the Court of Common Pleas of Allegheny County (trial court) and this
Court. See In re Petition of Wilkinsburg School District for Court Approval of The
Sale of Vacant Land (Pa. Cmwlth., No. 1890 C.D. 2013, filed October 8, 2014).1 In
our earlier decision, we affirmed the order of the trial court approving the District’s
petition to sell the Property to Developer pursuant to section 707(3) of the Public
School Code of 1949 (Public School Code).2
We noted in our earlier decision that:

Since 1970, the Property was used as a park and was
maintained by the Borough. In the summer of 2011, the
Borough informed the School District that the Borough
would no longer maintain the Property as a park and that any
future maintenance would be the School District’s
responsibility. Between October 2011 and February 2012,
the School District and the Borough considered and
discussed potential conveyance of the Property to the
Borough. In February 2012, the Borough notified the School
District that it was not interested in acquiring title to the
Property.

Over the course of several months, the School District’s
Board of Directors (School Board) discussed the status of the
Property at public meetings and reached a consensus that the
School District did not use the Property and that the Property
was unnecessary.

In May 2012, the Borough informed the School District that
[Developer] was interested in purchasing the Property. At

1
Friends of Green Street Park, an unincorporated association of individuals, some of whom
are Appellants herein, had objected to the sale.

2
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §7-707(3). This section allows public
school districts to petition the local common pleas court to sell unused and unnecessary lands and
buildings via private sale.

2
 the School Board’s meeting on December 18, 2012, a Motion
was made, and seconded, to approve the “Agreement of
Sale” between the School District and [Developer] to sell the
Property for $71,000.00. The Motion was carried by
unanimous vote.

In April of 2013, the School District filed a Petition for Court
Approval of the Private Sale of Vacant Land pursuant to
Section 707(3) of the Public School Code, 24 P.S. §7-707(3).

...

In response, Objectors argued that the School District was
required to pass a separate resolution or motion specifically
finding that the Property was “unused and unnecessary”
before determining whether to sell. Objectors also argued
that the Property was “used” by adults and the children in the
neighborhood and was “necessary” green space.
Id., slip op. at 2-4.
On July 22, 2015, the Property was conveyed to Developer for
$71,000.00, which we noted in our earlier decision was the fair market value of the
Property as determined by an appraisal commissioned by the District. 3 (Orphans’
Court op. at 1; Finding of Fact No. 4.) Developer later applied to Borough Council for
a land use permit to subdivide the Property but, following a public hearing, its
application was denied at a Borough Council meeting on May 4, 2016. (R.R. at 108a,
113a.) By letter dated May 6, 2016, Borough Council notified Developer of its
decision. (R.R. at 225a.) Developer thereafter filed a notice of land use appeal with
the trial court. (R.R. at 226a-30a.) By opinion and order dated February 2, 2017, the
trial court reversed the decision of the Borough Council denying the permit and
approved Developer’s subdivision plan. (R.R. at 436a-40a.)

3
A deed was recorded in the Allegheny County Department of Real Estate the next day.
(Reproduced Record (R.R.) at 1a.)

3
 Shortly thereafter, on May 10, 2017, Appellants filed the present petition
with the Orphans’ Court to condition the sale of Property to Developer or, alternatively,
to void the sale and eject Developer from the Property. At the very least, Appellants
sought replacement lands for outdoor use to make up for the loss of the Property.
Appellants asserted standing under the common law public trust doctrine4 and the act
commonly known as the Donated or Dedicated Property Act (DDPA).5 Appellants
premised their current petition on the common law public trust doctrine, the DDPA,
and the Inalienable Property Act (IPA),6 which Appellants noted had not been
addressed in any prior litigation. Appellants described the litigation in this matter as
arising from the failure of the District or the Borough to properly record a deed in 1957
transferring the Property from the District to the Borough. Appellants noted that in
1957 both the District and the Borough Council passed matching resolutions relating
to the transfer of the Property to the Borough.7 While the resolutions directed that a
deed be prepared, Appellants acknowledged that no deed was ever recorded.

4
“Under the common law public trust doctrine, when land has been dedicated and accepted
for public use, a political subdivision is estopped from interfering with or revoking the grant at least
so long as the land continues to be used, in good faith, for the purpose for which it was originally
dedicated.” In re Estate of Ryerss, 987 A.2d 1231, 1237 n.8 (Pa. Cmwlth. 2009) (citation omitted).

5
Act of December 15, 1959, P.L. 1772, 53 P.S. §§3381-3386.

6
20 Pa.C.S. §§8301-8306.

7
Appellants attached an exhibit to their petition reflecting the minutes of a January 15, 1957
District meeting approving a resolution authorizing the sale of the Property to the Borough, along
with the resolution itself. (R.R. at 77a-80a.) Appellant also attached a copy of a March 11, 1957
resolution from the District noting its acceptance of the Borough’s offer for the Property, along with
minutes from that meeting wherein the resolution was approved. (R.R. at 81a-82a.) These minutes
included the authorization of the District’s Solicitor to prepare a deed conveying the Property.

4
 Nevertheless, from that time until 2011, Appellants alleged that the
actions of the parties reflect the understanding that the Borough owned the Property.
Appellants pointed to a certificate of title prepared and signed by the Borough Solicitor
in 1981 indicating Borough ownership of the Property for the purpose of obtaining
grant monies for park improvements from the Department of Community Affairs’ Land
and Water Conservation Fund (LWCF).8 Appellants stated that the 1957 resolutions
and 1981 certificate of title were only recently discovered. Consequently, Appellants
averred that the prior litigation did not consider any covenants, conditions, or
restrictions in the public’s interest arising from state and federal resources and
regulations related to LWCF funding. Further, Appellants alleged that approval of the
sale of the Property under the Public School Code was misplaced because the Property
was not associated with school grounds, but instead was dedicated to public use as a
local park. Appellants stated that the prior litigation did not absolve the Borough from
its obligations under the aforementioned doctrines and statutes.
Finally, Appellants pointed to a July 5, 2016 letter to the Borough from
the Department of Conservation and Natural Resources’ LWCF Coordinator noting the
1981 certificate of title and the Borough’s acceptance of LWCF funds, which required
that the Property be maintained in public ownership for public, outdoor recreational
uses in perpetuity.9 The letter noted that the Borough’s sale to a private developer
constituted “a conversion of LWCF-protected park property, which must be resolved
in accordance with the National Park Service’s regulatory guidelines,” which in turn

8
Appellants attached a copy of this certificate to their petition. (R.R. at 84a.)

9
Appellants attached a copy of this letter to their petition. (R.R. at 68a-70a.)

5
requires the Borough to “identify replacement land of equal or greater fair market value
. . . and reasonably equivalent recreational usefulness.” (R.R. at 69a.)
In their prayer for relief, Appellants sought an order directing the Borough
to develop plans for replacement outdoor recreation lands in accordance with the July
5, 2016 letter from the LWCF Coordinator, a stay of the trial court’s February 2, 2017
order approving Developer’s subdivision plan, and an order directing Developer to
cease and desist from any development of the Property. Alternatively, Appellants
requested that the Orphans’ Court consider voiding the agreement of sale between the
District and Developer and commence an action in ejectment.
Both the District and Developer filed preliminary objections to
Appellants’ petition. In their respective preliminary objections, both the District and
Developer contended, inter alia, that the petition was barred by the doctrines of res
judicata and/or laches.10 Regarding the former, the District and Developer contended
that Appellants’ current claims could have been raised in the 2013 proceedings
contesting the sale of the Property. Both the District and Developer noted that, contrary
to Appellants’ contention that they were not aware of the 1957 resolutions and 1981
certificate of title accompanying the Borough’s grant application at that time,
Appellants extensively referenced the 1957 resolutions and grant application in their

10
The District further alleged in its preliminary objections that Appellants’ claims were barred
as a result of the in rem judgment that arose out of the 2013 proceedings and was binding on both the
2013 parties and any future parties that would assert an interest in the Property; that there was no
private cause of action relating to grant monies received from the LWCF; and that Appellants failed
to state a cognizable claim under the common law public trust doctrine, the DDPA, or the IPA.

Developer further alleged in its preliminary objections that the sale of the Property was proper
under the common law public trust doctrine, the DDPA, or the IPA and that voiding a sale was not a
remedy under the same. Alternatively, Developer averred that it had no obligation to remedy a
violation of the common law public trust doctrine, the DDPA, or the IPA.

6
second objections to the District’s second amended petition seeking approval of the
sale of the Property to Developer.
Regarding laches, the District and Developer contended that Appellants
failed to exercise due diligence by waiting nearly four years to raise the claims in their
current petition. Developer noted that Appellants essentially admitted in paragraph 21
of their present petition that they were aware of the 1957 resolutions and grant
application in late 2014 or very early in 2015, as the discovery of the same prompted
the Borough to file a petition against the District to quiet title to the Property on January
16, 2015.11 In other words, Appellants were aware of the 1957 resolutions and grant
application at least six months prior to the July 22, 2015 conveyance of the Property to
Developer and still waited until nearly two years after this conveyance to file the
present petition. The District and Developer asserted that Appellants’ delay in raising
their current claims operated to prejudice their respective positions.
By order dated December 11, 2017, the Orphans’ Court sustained the
preliminary objections of the District and Developer and dismissed Appellants’
petition. In an accompanying opinion, the Orphans’ Court concluded that it could not
overrule the 2013 order as affirmed by this Court. The Orphans’ Court noted that the
2013 proceeding was in rem and, therefore, the judgment in that proceeding was
binding on everyone, even if they were not a party to that action. Further, the Orphans’
Court concluded that the doctrines of res judicata and laches bar Appellants’ petition.

Discussion

11
The Borough withdrew this petition in March 2015.

7
 On appeal,12 Appellants argue that the Orphans’ Court erred in sustaining
the preliminary objections of the District and Developer on the basis of the doctrines
of res judicata and laches. We disagree.

Res Judicata
The doctrine of res judicata precludes the relitigation of issues decided in
a prior valid judgment in any future suit between the parties on the same cause of
action. Bell v. Township of Spring Brook, 30 A.3d 554, 557 (Pa. Cmwlth. 2011).
Generally, for res judicata to apply, “there must be a concurrence of four conditions:
(1) identity of the issues, (2) identity of causes of action, (3) identity of persons and
parties to the action, and (4) identity of the quality or capacity of the parties suing or
sued.” Safeguard Mutual Insurance Company v. Williams, 345 A.2d 664, 668 (Pa.
1975). However, the doctrine of res judicata applies not only to matters decided, but
also to matters that could have, or should have, been raised and decided in an earlier
action. Bell, 30 A.3d at 558. The essential inquiry is whether the ultimate and
controlling issues have been decided in a prior proceeding in which the present parties
had an opportunity to appear and assert their rights. Callery v. Municipal Authority,
243 A.2d 385, 387 (Pa. 1968).
As both the District and Developer noted in their respective preliminary
objections, contrary to Appellants’ contention that they were not aware of the 1957

12
In reviewing a common pleas court’s order sustaining preliminary objections, “the standard
of review is de novo and the scope of review is plenary.” Williams v. City of Philadelphia, 164 A.3d
576, 584 (Pa. Cmwlth. 2017). In ruling on preliminary objections, a court must accept as true all
well-pleaded material allegations in the complaint, as well as all inferences reasonably deduced
therefrom. Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). The court need not accept as
true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions
of opinion. Id. In order to sustain preliminary objections, it must appear with certainty that the law
will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id.

8
resolutions and 1981 certificate of title accompanying the Borough’s grant application
during the 2013 proceedings, Appellants extensively referenced the 1957 resolutions
and grant application in these proceedings, namely in their second objections to the
District’s second amended petition seeking approval of the sale of the Property to
Developer. In fact, Appellants relied on the same in support of their argument that the
Borough, not the District, was the actual owner of the Property. However, the trial
court rejected this argument in the 2013 proceedings and approved the District’s sale
of the Property to Developer, a decision which was later affirmed by this Court.
Thus, Appellants were well aware in 2013 of the facts upon which they
now rely to assert claims under the common law public trust doctrine, the DDPA, and
the IPA. Appellants had every opportunity to raise any legal theories supported by
these factual premises during the 2013 proceedings. Indeed, in their brief, Appellants
state that Developer was aware of the “Public Trust Issues” regarding this Property
because those issues were raised “at the municipal agency level and in a 9/24/2013
hearing” before the trial court. (Appellants’ Brief at 17.) Even if jurisdiction over
these claims may not have been proper in the trial court in 2013, an issue we need not
decide here, Appellants could have raised these issues and sought transfer to the
Orphans’ Court or filed a separate action in the Orphans’ Court addressing the same.
Further, Appellants’ reliance on this Court’s prior decision in In re Estate
of Ryerss, 987 A.2d 1231 (Pa. Cmwlth. 2009), is misplaced. Appellants rely on In re
Estate of Ryerss in support of their argument that either the District or the Borough was
required to seek Orphans’ Court approval of the conversion of the public trust purposes
of the Property via its sale to Developer. In that case, Fox Chase Cancer Center had
sought to lease 19 acres of land that had been devised to the City of Philadelphia for
use as a park in order to expand its cancer research facility. The City filed a petition

9
for authorization to lease the land with the Orphans’ Court Division of the Court of
Common Pleas of Philadelphia County, but the same was denied under the common
law public trust doctrine and the IPA. On appeal, this Court affirmed. While we
concluded that the Philadelphia County’s Orphans’ Court had erred by failing to apply
the DDPA, we nonetheless held that the City had failed to establish its entitlement to
relief under the DDPA.
Appellants point to our holding in that case that the DDPA “commands
that lands . . . held by a political subdivision as trustee ‘shall be used for the purposes
for which they were originally dedicated or donated,’ except as modified by court order
pursuant to the [DDPA].” Id. at 1238-39 (citing In re Erie Golf Course, 963 A.2d 605,
611-12 (Pa. Cmwlth. 2009), vacated on other grounds, 992 A.2d 75 (Pa. 2010)). While
this holding remains intact, In re Estate of Ryerss is distinguishable from the present
case. In In re Estate of Ryerss, we did not address the issue of the failure of a political
subdivision to seek court approval of the redevelopment of property under the common
law public trust doctrine, the DDPA, or the IPA because the City in that case had filed
a petition seeking approval of the lease under the IPA or any other applicable law.
Additionally, the property in In re Estate of Ryerss had been formally dedicated for use
as a park through a City ordinance accepting the property from the devisee who had
conditioned the use of the property as a park after his death. In the present case, while
the original intent of the District may have been to convey the Property to the Borough
on the condition that it be used “solely for playground purposes,” R.R. at 79a, the fact
remains that the Property was never properly conveyed to the Borough nor was it ever
formally dedicated for public use.13

13
Appellants also rely on Bruker v. Carlisle Borough, 102 A.2d 418 (Pa. 1954), for support.
However, Bruker is similarly distinguishable. The Bruker case involved the use of a corner of the

10
 Because Appellants could have raised claims regarding the common law
public trust doctrine, the DDPA, and the IPA in the 2013 proceedings, the trial court
did not err to the extent that it concluded that the doctrine of res judicata barred
Appellants’ petition.

Laches
A claim is barred by laches where the party failed to exercise due
diligence, which resulted in prejudice to the opposing party. Pennsylvania Social
Services Union, Local 688 v. Commonwealth, 59 A.3d 1136, 1144 (Pa. Cmwlth. 2012).
“The test for due diligence is not what a party knows, but what he might have known
by the use of information within his reach. Prejudice may be found where there has
been some change in the condition or relations of the parties which occurs during the
period the complainant failed to act.” White v. Township of Upper St. Clair, 968 A.2d
806, 811 (Pa. Cmwlth. 2009), appeal denied, 995 A.2d 355 (Pa. 2010). Further, we
have described the doctrine of laches as “an equitable bar to the prosecution of stale
claims and is the practical application of the maxim that those who sleep on their rights
must awaken to the consequence that they have disappeared.” Pfeifer v. Westmoreland

square in the center of the Borough of Carlisle as a public market that dated back in excess of 200
years. Our Supreme Court in Bruker concluded that such extended use was “sufficient to raise a
conclusive presumption of an original grant for the purpose of a public square,” and the public use
must be maintained. Id. at 421. However, the court in Bruker did not address the doctrines of res
judicata or laches. Further, Developer describes the Property in the years prior to and up to the time
of the sale as having fallen into disrepair and overgrown due to a lack of use and maintenance. See
Developer’s brief at 4. Indeed, in our 2013 decision affirming the trial court’s approval of the sale of
the Property to Developer, we described the Property as merely consisting of “low concrete walls,
grassy areas, and a deteriorated basketball court,” In re Petition of Wilkinsburg School District for
Court Approval of The Sale of Vacant Land, slip op. at 2, which appears to confirm Developer’s
description and disproves an extended public use.

11
County Tax Claim Bureau, 127 A.3d 848, 854 (Pa. Cmwlth. 2015), appeal denied, 138
A.3d 7 (Pa. 2016).
Appellants contend that the doctrine of laches does not apply here because
they raised the public trust issues within three months of the final adjudication allowing
the conversion of the Property. Presumably, Appellants are referencing the trial court’s
February 2, 2017 order that reversed the decision of Borough Council denying
Developer’s application for a land use permit and approved Developer’s subdivision
plan. Appellants’ petition was filed approximately three months later in May of 2017.
Appellants again rely on Bruker, as well as Conwell v. Philadelphia & Reading
Railway Co., 88 A. 417 (Pa. 1913), for support. We noted above that Bruker is
distinguishable from the present case. Conwell is similarly distinguishable as it did not
address the doctrines of res judicata or laches and only focused on the application of
the statute of limitations for adverse possession in a railroad right of way determined
to be held by the railroad company in trust for the public use.
In the present case, the averments in Appellants’ petition demonstrate a
lack of due diligence in raising and advancing their claims under the common law
public trust doctrine, the DDPA, or the IPA. In their petition, Appellants acknowledge
that the 2013 proceedings involved the sale of the Property to Developer. As noted
above, a review of those proceedings reveals that Appellants were aware at that time
of the 1957 resolutions and the grant application upon which their current claims are
based. Hence, Appellants had notice of these issues as early as 2013. Alternatively,
Appellants essentially acknowledge their awareness of these issues by the end of 2014
or the beginning of 2015, some two years before they filed the present petition. Further,
Appellants state in paragraph 24 of their petition that after the deed to the Property was
recorded on July 23, 2015, Developer proceeded to apply for a land use permit to

12
subdivide the Property for private, residential development. Hence, at the very latest,
Appellants were aware of Developer’s intent to develop the property in mid-2015.
Despite their awareness of the underlying ownership and public trust
issues, Appellants did not file a petition raising these issues until May 2017, four years
after the 2013 proceedings in which many of the current Appellants appeared and
objected to the sale of the Property to Developer and, at the very latest, nearly 2 years
after they had knowledge of Developer’s intent to subdivide the Property into private
residences. Subsequent to the trial court’s 2013 decision approving the sale, and this
Court’s 2014 affirmance of the same, the District and Developer closed on the sale of
the Property, Developer proceeded with a plan of subdivision, and Developer expended
significant sums of money in seeking and eventually obtaining a land use permit and
approval of its plan. To allow Appellants to now challenge the sale of the Property on
grounds that could have been raised years earlier would certainly be prejudicial to
Developer, both in terms of monies expended and the length of time during which
Developer has essentially been deprived of the use of the Property.
Because Appellants failed to exercise due diligence in raising the public
trust issues during the 2013 proceedings or in the immediate years thereafter and the
delay in raising these issues would result in prejudice to Developer, the trial court did
not err to the extent that it concluded that the doctrine of laches barred Appellants’
petition.
Accordingly, the trial court’s order is affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge

13
Judge Wojcik did not participate in this decision.

14
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition of the Wilkinsburg :
Taxpayers and Residents Interest in :
Green Street Park Sale to a : No. 120 C.D. 2018
Private Developer and other :
Park-Systems Conditions :
:
Appeal of: Kate Luxemburg :

ORDER

AND NOW, this 17th day of December, 2018, the order of the Orphans’
Court Division of the Court of Common Pleas of Allegheny County, dated
December 11, 2017, is hereby affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge