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When Portage resident Richard Kowalczyk sought to build a fence along the southern border to his home at 1201 Jefferson Ave., Borough Council rejected the proposal, noting the land was actually a dedicated street called Trout Run Alley.
Kowalczyk, who had been maintaining a portion of the Trout Run right-of-way (including mowing the grass), challenged the borough's refusal, and earlier this week the Pennsylvania Commonwealth Court affirmed a 2021 order by Cambria County Judge David Tulowitzki ceding the ground to Kowalczyk.
Tulowitzki was part of a three-judge panel of Cambria County judges -- including Linda Rovder Fleming and Timothy P. Creany -- who heard the case in 2020.
The Cambria County order pointed out that while Trout Run Alley appears on the original plans for the development where Kowalczyk lived, the alley was a "paper street" only, meaning it had never been opened.
The trial court ruled that "Mr. Kowalczyk shall take (the) title to the center line of Trout Run Alley."
The borough appealed to Commonwealth Court. While the Cambria County panel did not issue an opinion explaining its decision, the opinion issued Monday by Commonwealth Court Judge Ellen Ceisler went into more detail about the case.
Trout Run Alley was proposed in a plan filed in 1912, called the Hammers Addition to Portage Borough.
The alley was never opened, and in July 2010, Kowalczyk sought to put a fence along the centerline of the proposed alley.
According to the Commonwealth Court, the borough rejected the idea, stating "it would take any steps necessary to prevent any construction on the portion of Trout Run Alley in question to preserve the existing right-of-way for potential future use."
Kowalczyk, through his attorney, Paul J. Eckenrode of Ebensburg, contended the unopened portion of land had reverted to the owners on either side of the center line because the alley had never been opened.
Portage pointed to a section of Pennsylvania's Borough Code that indicated after 10 years, a homeowner "may petition Council to cancel the laying out of the street ... Council may deny ... the petition, or by ordinance grant the petition and cancel the laying out of the street."
Kowalczyk had never followed that procedure, according to the council.
The Commonwealth Court opinion, however, pointed to another section of the Borough Code, which stated that if a proposed street was not opened within a 21-year period, "The street may not thereafter be opened without the consent of at least 51 percent of the owners of the abutting real estate and without the consent of the owners of at least 51 percent of the property abutting the street, based on a front-foot basis."
Referring to Trout Run Alley, the appeals court noted it has remained unopened and unaccepted by the borough for 111 years.
Therefore, it concluded, under the Borough Code, Portage's portion of Trout Run Alley would have reverted to the Kowalczyk property on July 5, 1933.
"Therefore, we reject the Borough's contention that Mr. Kowalczyk was required to petition the Borough Council before seeking declaratory relief in the trial court," the opinion stated.
Ceisler was joined in her opinion by Judges Anne E. Covey and Bonnie Brigance Leadbetter.
Eckenrode said Kowalczyk and the family were happy with the decision but commented that it initially stemmed from tension between neighbors, and an ordinance passed by Borough Council that was aimed at his client, barring the use of unopened streets.
Eckenrode said the decision could have a ripple effect throughout the borough, which has several unopened streets.
He said the borough has 30 days to seek review of the decision by the Pennsylvania Supreme Court, which means Kowalczyk cannot construct his fence at least until the appeal period ends.
Eckenrode also commented that it took too long -- 11 years -- to resolve the case.