Petition of Acchione

• Decision Date: 14 March 1967
• Citation: 227 A.2d 816,425 Pa. 23
• Parties: In re Petition of John P. ACCHIONE for Private Sale of Real Estate by the Township of Tinicum (two cases). Appeal of George GOODMAN and Louis Goodman. Appeal of John FINNIGAN, Intervenor.
• Court: Pennsylvania Supreme Court

227 A.2d 816

425 Pa. 23

In re Petition of John P. ACCHIONE for Private Sale of Real Estate by the Township of Tinicum (two cases). Appeal of George GOODMAN and Louis Goodman. Appeal of John FINNIGAN, Intervenor.

Supreme Court of Pennsylvania.

March 14, 1967.

Rehearing Denied April 18, 1967. [Copyrighted Material Omitted]

James L. Rankin, Chester, Rankin & Rankin, Chester, for appellants George Goodman and Louis Goodman.

Seletz & Clark, John H. Clark, Jr., Chester, for appellant John Finnigan.

Garland D. Cherry, Kassab, Cherry, Curran & Archbold, Chester, for appellee.

Before BELL C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES Justice.

In 1957 Tinicum Township (Township), a first-class township, purchased a tract of land, consisting of approximately 19 acres, located at the corner of Wanamaker Avenue and Governor Printz Boulevard in Tinicum Township, Delaware County. On August 3, 1959, the Township duly adopted an ordinance which provided in pertinent part: 'The Township does hereby dedicate and set apart for public park and recreation purposes and for making, enlarging and maintaining public parks, recreation areas and facilities, (the 19 acre tract of land).' ^[1]

The Township Recreation Board, with the Township's authority, supervised, maintained and regulated this land from 1959 until 1966. The land was used by the public, especially the youth of the Township, for approximately five months during each year; located thereon were two softball fields, with bleachers, backstops, and permanent bases, provided, with Township funds, by the Recreation Board. In October, 1963, the Township sold approximately one-third acre of this land to an adjoining church, and at that time, the Township, acting through its Commissioners, placed in the Township records a so-called 'statement of principles' to the effect that this land was not for sale and would not be for sale unless and until substitute land was available, that it would not be for sale until highway plans of the Commonwealth which would take part of the property were finalized and that no agreement for the sale of any substantial part of this land would be entered into 'without first holding a public hearing.'

On February 7, 1966, by a resolution which was not advertised, the Township Commissioners were authorized to dispose of the land 'at public or private sale,' after procuring approval of any court 'if, as, and when necessary' with the direction that proceeds derived from the sale should not be used for general purposes but should continue to be held for 'public purposes as may hereafter be determined.' On February 21, 1966, George and Louis Goodman conferred with the Township Commissioners and Township Solicitor. While there is a conflict of testimony as to what transpired at that meeting, there was testimony that George Goodman was willing to offer $125,000 for the land as then zoned, although the Township witnesses stated such offer was contingent upon the zoning being changed. Late in March 1966, the Township Commissioners met with one John P. Acchione and, on April 4, 1966, at a regular meeting, the Commissioners authorized the sale of the land to Acchione for $100,000 at a private, not a public, sale. On April 6, 1966, the Township Commissioners entered into a written agreement with Acchione 'or his nominee' for the sale of the land for $100,000, this agreement stating, inter alia, 'This agreement is subject to the approval of any Court which may be required and if Court approval cannot be obtained then this agreement shall become null and void.' By a letter mailed to the Township Commissioners and read at their regular meeting on May 2, 1966, Messrs. Goodman protested the proposed private sale to Acchione for $100,000 and stated that they would bid at a public sale at least $125,000 upon the same conditions as contained in the Township-Acchione agreement of April 6, 1966.

On May 12, 1966, Acchione filed in the Common Pleas Court of Delaware County a petition, later duly advertised, under the Revised Price Act of 1917 (Act of June 7, 1917, P.L. 388, § 1 et seq., as amended, 20 P.S. § 1561 et seq.). ^[2] Thereafter, George and Louis Goodman instituted an action in equity against the Township Commissioners and Acchione seeking to have the proposed private sale enjoined. ^[3]

After hearing in the court below, at which, inter alia, the Messrs. Goodman repeated their offer to pay $125,000 for the land, the court below entered a decree approving the sale to Acchione for $100,000. Shortly thereafter, and after preparation of the court's adjudication approving the sale for $100,000, Acchione offered to pay $125,000 and the court amended its decree to approve the private sale of this land to Acchione for $125,000. Upon entry of the decree, the Township The next day ^[4] conveyed the property to Acchione for $125,000.

The court below, in its opinion, expressed some doubt as to its Jurisdiction to act inasmuch as it would have no jurisdiction unless, by the Township ordinance of 1959, a trust had been created. The court stated, 'the Revised Price Act probably contemplated a situation, as applied to a municipal corporation, where land is Conveyed in trust for use for specific purposes only and/or for the benefit of a particular class of people'. However, the court below, upon the premise that the parties did not question its jurisdiction, decided the petition on its merits. Under the circumstances, it becomes our duty, initially, to determine whether the court below did have jurisdiction.

The Township purchased this land and then dedicated it unequivocally to the public use. That a municipality can do so is well settled; a municipality can act as trustee for a trust of a public nature provided that such trust is germane to the objects of the municipal corporation: the Mayor, Aldermen, etc. of City of Philadelphia v. Elliott, et al., 3 Rawle 170 (1831); Cresson's Appeal, 30 Pa. 437 (1858); City of Philadelphia v. Fox et al., 64 Pa. 169, 181, 182, (1870); Bogert, Trusts and Trustee (2nd Ed.) § 130, pp. 633, 634. ^[5] The dedication of this land was clearly for the public use and the object of such dedication was well within the municipality's general purposes. Moreover, that a municipality may dedicate property to the public use is clear: Commonwealth v. Rush, et al., 14 Pa. 186, 189 (1850); Hoffman et al. v. City of Pittsburgh, et al., 365 Pa. 386, 395, 75 A.2d 649 (1950); Leech Appeal, 170 Pa.Super. 130, 84 A.2d 787 (1951).

That the municipality in this case would be both the settlor and the trustee of the trust presents no obstacle to the creation of a trust. Section 17 of Restatement, Trusts 2d, Provides: 'A trust may be created by (a) a declaration by the owner of property that he holds as trustee for another person; * * *' and Section 100 of Restatement, Trusts 2d, provides: 'The Settlor as Trustee. The settlor of a trust can be a trustee of the trust.'

The Township by its dedication of this land to the public use created a trust wherein it became the trustee, subject to all the duties and responsibilities imposed on any other trustee. See: Loechel v. Columbia Borough School District, 369 Pa. 132, 136, 85 A.2d 81 (1952). In our view, any contemplated sale of this land could be accomplished only by strict compliance with the provisions of the Revised Price Act, supra, and the court below clearly had jurisdiction to entertain this petition under that statute.

In determining this appeal we bear in mind certain established legal principles: (1) 'By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; Judicial discretion may not be substituted for Administrative discretion.' Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 572, 573, 109 A.2d 331, 334 (1954). See also: Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 455--457, 160 A.2d 539 (1960) and authorities therein cited; (2) a municipal corporation has neither implied nor incidental authority to sell for private use land dedicated to or held by it in trust for the public use: Hoffman et al. v. City of Pittsburgh, et al., 365 Pa. 386, 395, 75 A.2d 649 (1950). See also: Trustees of Philadelphia Museums v. Trustees of University of Pennsylvania, 251 Pa. 115, 96 A. 123 (1915); Commonwealth v. Rush, et al., 14 Pa. 186 (1850); (3) however, land held by a municipal corporation and dedicated to a public use may be sold With court approval secured in compliance with the provision of the Revised Price Act, supra, (Loechel v. Columbia Borough School District, 369 Pa. 132, 85 A.2d 81 (1952)), but the proceeds of such court-approved sale must be held for the same or like use: Revised Price Act, supra, § 10, 20 P.S. § 1644; Greenville Borough Petition, 11 Pa.Dist. & Co.R.2d 50 (1957); (4) when a municipal corporation acts In a fiduciary capacity it is not only the right but the statutory duty of the judiciary to inquire into...