T.M. Loughery & M.K. Loughery v. Borough of Jim Thorpe, & 61 West Broadway, LLC ~ Appeal of: Borough of Jim Thorpe
CourtCommonwealth Court of Pennsylvania
Date FiledOctober 30, 2026
Docket466 C.D. 2025
JudgeCovey
StatusPublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas M. Loughery and :
Michelle K. Loughery :
:
v. :
:
Borough of Jim Thorpe, :
and 61 West Broadway, LLC :
: No. 466 C.D. 2025
Appeal of: Borough of Jim Thorpe : Submitted: September 25, 2026
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: October 30, 2026
The Borough of Jim Thorpe (Borough) appeals from the Carbon
County Common Pleas Court’s (trial court) December 10, 2024 order denying its
post-trial motion (Post-Trial Motion).1 The Borough presents two issues for this
Court’s review: (1) whether the trial court erred by finding that Thomas M. Loughery
and Michelle K. Loughery (collectively, Appellees) submitted sufficient evidence
1
Technically, an “[a]ppeal lies from the judgment entered and not the
denial of post-trial motions,” [Crosby v. Dep’t of Transp., 548 A.2d
281, 283 (Pa. Super. 1988)], and a “verdict [does] not become final
for purposes of appeal until properly reduced to and entered as a
formal judgment under [Pennsylvania Rule of Civil Procedure (Civil
Rule)] 227.4.” Crystal Lake Camps v. Alford, 923 A.2d 482, 488
(Pa. Super. 2007).
Mitchell v. Milburn, 199 A.3d 501, 504 n.3 (Pa. Cmwlth. 2018). Thus, this Court construes the
Borough’s Notice of Appeal as a timely appeal from the trial court’s September 25, 2026 order
entering judgment in favor of Thomas M. Loughery and Michelle K. Loughery.
regarding the dedication of the steps that connected West Broadway and High Street
(High Street Steps); and (2) whether the trial court erred by ordering the Borough to
continue to maintain the High Street Steps. After review, this Court affirms.
Appellees are the owners of real property located at 49 West Broadway,
Jim Thorpe, Carbon County, Pennsylvania (Subject Property). 61 West Broadway,
LLC (61 West Broadway) is the owner of real property located at 61 West
Broadway, Jim Thorpe, Carbon County, Pennsylvania (Bordering Property). The
Bordering Property adjoins the Subject Property to the west. The High Street Steps
connect two public streets, High Street and West Broadway, and do not connect any
private locations. The High Street Steps are situated in part on the Subject Property,
the Bordering Property, and on property the Borough owns along the High Street
roadway, according to the Borough’s survey (Survey).
On February 14, 2019, Appellees filed a Complaint against the Borough
in the trial court containing four counts: (1) adverse possession (Count I); (2)
dedication (Count II); (3) public descriptive easement (Count III); and (4) ejectment
(Count IV). Therein, Appellees sought a declaratory judgment declaring that the
Borough is the owner of the High Street Steps. Appellees alleged that prior to the
commencement of this action, the Borough renounced any obligation towards the
High Street Steps, notwithstanding that it has repaired and maintained them over the
years. Alternatively, Appellees sought an order that would eject the High Street
Steps from Appellees’ property at the Borough’s expense and obligation.
On April 2, 2020, the Borough filed preliminary objections to all four
counts of the Complaint (Preliminary Objections). On December 23, 2020, the trial
court sustained and dismissed the Preliminary Objections to Counts I and III and
overruled the Preliminary Objections to Counts II and IV. The trial court held a non-
2
jury trial on May 11, 2023. On June 3, 2024, the trial court entered a non-jury verdict
in favor of Appellees on Count II and in favor of the Borough on Count IV. On June
12, 2024, the Borough filed its Post-Trial Motion. On December 10, 2024, the trial
court denied the Post-Trial Motion.2 On January 7, 2025, the Borough appealed to
this Court.3 By September 3, 2026 Memorandum and Order, this Court directed the
Borough to cause entry of judgment in the trial court and file a certified copy of the
docket entries showing entry of judgment. On September 25, 2026, the trial court
entered judgment in favor of Appellees. The Borough filed a certified copy of the
docket entries showing entry of judgment that same date.
The Borough first argues that the trial court erred by finding that
Appellees submitted sufficient evidence regarding the dedication of the High Street
Steps. Specifically, the Borough contends that there are no records, whether
ordinances, resolutions, or minutes, which show that the Borough Council accepted
2
Pursuant to Civil Rule 227.4(1)(b), a post-trial motion is deemed denied by operation of
law when the trial court does not enter an order disposing of the motion within 120 days and
judgment has been entered. See Pa.R.Civ.P. 227.4(1)(b). The Civil Rules do not provide a
mechanism for post-trial motions to be deemed denied by operation of law after the passage of 120
days. Rather, the Civil Rules permit, but do not require, a party to praecipe for entry of judgment
to move the case forward where the trial court does not decide post-trial motions within 120 days.
See id. Here, because the trial court did not enter judgment until September 25, 2026, the trial
court properly ruled on the Post-Trial Motion.
3
This Court’s “review of a non-jury [verdict] is to determine whether the findings of the
trial court are supported by competent evidence, and whether an error of law was committed.”
Slack v. Slack, 256 A.3d 472, 477 n.9 (Pa. Cmwlth. 2021) (quoting City of Phila. v. Galdo, 181
A.3d 1289, 1291 n.2 (Pa. Cmwlth. 2018), aff’d, 217 A.3d 811 (Pa. 2019)). “It is beyond
peradventure that the trial court, sitting as the fact-finder, is free to believe all, part or none of the
evidence, to make all credibility determinations, and to resolve all conflicts in the evidence.” Id.
at 481 (quoting Laurel Rd. Homeowners Ass’n, Inc. v. Freas, 191 A.3d 938, 952 (Pa. Cmwlth.
2018)).
By April 23, 2026 Order, this Court precluded 61 West Broadway from filing a brief in
this Court for its failure to file a brief pursuant to this Court’s December 12, 2025 Order.
3
the High Street Steps; rather, the evidence demonstrated that the Borough conducted
some de minimis maintenance and repairs on the High Street Steps over the course
of 130 years. In addition, the Borough emphasizes that the Survey established the
property line between the two adjoining properties, and that the High Street Steps
are on the property line, but mostly on the Subject Property. The Borough insists
that since there was no action by the Borough Council to accept a dedication of the
High Street Steps, the trial court erred by finding that dedication was achieved.
Appellees rejoin that the High Street Steps are a large piece of public
infrastructure that the uncontradicted testimony established that the public has freely
used to walk between the public streets in the Borough for more than a century
without limitation of any kind. Appellees retort that the evidence at trial established
that the High Street Steps were dedicated to the Borough by implication. Appellees
insist that the public’s long-standing free use alone suffices to show the Borough’s
dedication of the High Street Steps to public purposes. Moreover, Appellees assert
that the Borough’s authoritative acts over the High Street Steps for more than a
century - including using public funds for constructing, repairing, rebuilding, and
maintaining them - is also evidence of the dedication of the High Street Steps to
public purposes.
This Court has explained:
Real property may be dedicated to public use in a variety
of ways. Dedication may be express or it may be implied
from the acts of the parties, and it need not take a particular
form. Dedication may be found in a single act, such as
the giving of a deed or the recording of a plan, or it may
be found from a series of acts, all consistent with and
pointing to the intention to dedicate. Dedication, like a
contract, requires both offer and acceptance, and once
there is acceptance, in whatever form it takes, dedication
is irrevocable.
4
White v. Twp. of Upper St. Claire, 799 A.2d 188, 193 (Pa. Cmwlth. 2002) (footnote
omitted; emphasis added). The Pennsylvania Supreme Court has long held:
Where there has been long-continued use of land as a
street by the public without objection on the part of the
owner of the soil, the [fact-finder] may presume a valid
dedication. No particular formality is requisite to
constitute a dedication upon the part of the owner. Any
act which clearly indicates an intention to dedicate is
sufficient.
Waters v. City of Phila., 57 A. 523, 523-24 (Pa. 1902) (citation omitted).
However,
[i]t is the act of acceptance of a dedicated parcel of land
which makes the dedication complete. In re Keifer, . . .
243 A.2d 336 ([Pa.] 1968); Tri City Broad[.] v.
Howell, . . . 240 A.2d 556 ([Pa.] 1968); Boyer v.
Baker, . . . 175 A.2d 143 ([Pa. Super.] 1961). Acceptance
of an offer of dedication may be express or implied. See
Wensel v. N[.] Versailles Twp., . . . 7 A.2d 590 ([Pa.
Super.] 1939). Thus, when a governmental entity
definitively acts regarding an offer of dedication, such as
adoption of an ordinance or passing a resolution, the
action is generally sufficient to manifest the intent to
accept the dedication. Tri City, . . . 240 A.2d at 558;
Borough of Milford v. Burnett, . . . 136 A. 669 ([Pa.] 1927).
See Burger v. Rockhill Builders, Inc., . . . 420 A.2d 616[,
618] ([Pa. Super.] 1980) (“any unequivocal
authoritative acts by the public authority establishes
acceptance of the offer of dedication”) (citation and
quotation marks omitted).
Lillo v. Moore, 704 A.2d 149, 152-53 (Pa. Super. 1997) (emphasis added).
In Gass v. City of Pittsburgh, 91 Pa. Super. 290 (1927), the
Pennsylvania Superior Court discussed the cases supporting the offer and acceptance
of dedications. Concerning Ackerman v. City of Williamsport, 76 A. 421 (Pa. 1910),
5
Kniss v. Borough of Duquesne, 100 A. 132 (Pa. 1917), and Felt v. West Homestead
Borough, 103 A. 508 (Pa. 1918), the Gass Court explained:
[I]t is clearly shown that, in the absence of a formal
acceptance, the liability of a municipality to keep a
dedicated street in a safe condition for public travel may
be asserted and established upon two separate and distinct
grounds, either of which is sufficient to fix liability upon
the municipality. The first of these grounds is through
long[-]continued public user without any formal act of
acceptance and the second through authorized or ratified
municipal acts from which an acceptance may be implied.
Gass, 91 Pa. Super. at 297 (emphasis added). The Gass Court expounded:
The rule with respect to the first ground upon which a
municipality may become liable for failure to keep a way
in repair is thus stated . . . in Felt . . . : “Acceptance of a
public road by long[-]continued user was fully discussed
in Ackerman . . . , and Kniss . . . , where it is pointed out
that a road may become a public highway by dedication
and acceptance by the public without formal action by
the municipality and, in absence of express dedication,
the public may acquire the right to the highway as
against the land owner by continuous use for a period
of [21] years and as against the municipality a much
shorter period is sufficient to impose upon the public
the duty of keeping the road in repair.” In
Ackerman . . . , our Supreme Court said: “Where
dedication is once established, it becomes simply a
question of acceptance by the public. Either can be
established by proof of user. As against the owner of the
soil, who would reassert his right in the way, an adverse
user for the statutory period must be shown; but as against
a municipality which disclaims all duty in connection
with the way, the dedication by the owner not being in
dispute, acceptance by the municipality may be shown
by proof of public use for a much shorter period. . . .
In the present case the user was continued and
uninterrupted for more than [30] years. A conclusive
presumption arises that the street was originally
dedicated, and the owners of the soil are precluded
6
from asserting any other right therein than what is
common to the public. The same evidence which
concludes the owners and establishes a dedication, is
more than sufficient to warrant a presumption of
acceptance of the way by the municipality.”
Gass, 91 Pa. Super. at 297-98 (emphasis added).
In the instant case, because it is uncontested that the public use of the
High Street Steps was continuous and uninterrupted for 130 years, there is a
conclusive presumption of the owners’ dedication and the Borough’s acceptance.
See Gass. Further, the record clearly shows the Borough Council’s authorized or
ratified municipal acts from which an acceptance may be implied. Specifically, the
Borough Council President testified to the lengthy history of meeting minutes
showing the Borough’s care and responsibility for the High Street Steps. See
Reproduced Record (R.R.) at 221a-228a. Among other things, he attested to: (1) the
August 6, 1912 meeting minutes regarding the condition of the High Street Steps,
where a Borough Council member suggested that the Borough Council “inspect the
same and decide what can best be done to make them more substantial and
permanent[,]” see R.R. at 360a; (2) the September 3, 1912 meeting minutes
reflecting that “[the] [Street] Committee was instructed to have them paved with
[s]ome [s]ubstantial material . . . ,” R.R. at 363a; (3) the November 10, 1977 meeting
minutes recording that the Borough obtained a quote to repair the High Street Steps,
see R.R. at 420a; (4) the November 30, 1977 minutes reflecting the Borough’s 1978
Budget which included $8,000.00 for “Reconstruction of High Street Steps[,]” R.R.
at 423a; (5) the August 10, 1978 minutes recording a motion which carried to
“authorize[] to advertise for [b]ids for the repair of the High St[reet] Steps[,]” R.R.
at 448a; and (6) the September 24, 2014 letter from the Borough to its residents
7
indicating that “[the Borough] is faced with the need to replace the High Street
Steps.” R.R. at 217a-218a.
In the instant case, the trial court concluded:
Through the voluminous record created at trial as set forth
in [the trial court’s] Findings of Fact, [see R.R. at 467a-
480a,] it is clear that a dedication has occurred, not so
much through a traditional “offer and acceptance” by the
owners and [the Borough], but through an abandonment of
the use by the owners in favor of the general public and
through the acts of the municipality in repairing, replacing
and maintaining the [High Street S]teps and providing for
their overall safe ingress and egress by the general public
for over a century.
R.R. at 499a. This Court discerns no error in the trial court’s reasoning.
[I]t is clear that [Appellees] relied upon[, inter alia,] the
first ground to which [the Gass Court] have above
referred, namely, long[-]continued public user of the way,
and [this Court] [is] satisfied that there was sufficient
evidence to sustain the finding of the [trial court] that the
[High Street Steps] . . . had become a public highway of
the [Borough] by dedication of the land owner and
acceptance by the public.
Gass, 91 Pa. Super. at 300. Accordingly, the trial court properly ruled that Appellees
submitted sufficient evidence regarding the owners’ dedication and the Borough’s
acceptance of the High Street Steps.
The Borough next argues that the trial court erred by ordering the
Borough to continue to maintain the High Street Steps. Specifically, the Borough
contends that if this Court determines that the Borough owns them, the High Street
Steps would be considered a street. As such, the Borough asserts that both the
Borough Code (Code)4 and case law show that the Borough has authority to
4
8 Pa.C.S. §§ 101-3501.
8
determine whether or not to keep the High Street Steps open or to vacate them; and
the Borough has the authority to determine the degree of maintenance appropriate
for the High Street Steps. Appellees rejoin that nothing in the Code relieves the
Borough of its obligation to maintain the High Street Steps for the public’s use and
safety. Appellees further retort that because a common law dedication has occurred,
what is commonly referred to as the Donated or Dedicated Property Act (DDPA)5
applies.
Initially, Section 1721.1(a) of the Code provides:
In accordance with the provisions of this chapter,
boroughs may, with or without petition of abutting
property owners, lay out, open, widen, straighten, alter,
extend[,] and improve, and may establish or reestablish the
grades of, and keep in order and repair and in safe passable
condition, a street or portion of a street within the borough
limits or may vacate the street or portion of a street if
deemed expedient for the public good and provide for the
costs of alteration.
8 Pa.C.S. § 1721.1(a). Further, Section 1731(a) of the Code authorizes:
Authority of council.--By ordinance, council has the
authority to:
(1) Open a street or portion of a street previously laid out
or simultaneously to lay out and open a street or portion
thereof. A street or portion of a street so opened is a public
street of the borough.
(2) Vacate or close a street or portion of a street previously
opened or laid out provided that no street or portion of a
street providing the sole means of access to a tract of land
is vacated without the consent of those to whom access
would be denied. Vacation of a street terminates the
5
Act of December 15, 1959, P.L. 1772, as amended, 53 P.S. §§ 3381-3386.
9
public right in or to the street but does not affect a private
right acquired by an owner of abutting property.
8 Pa.C.S. § 1731(a) (italic emphasis added).
However, Section 1734(b) of the Code proscribes:
No borough may acquire a right in or responsibility for a
street privately constructed until dedication of the street
has been presented to and accepted by the borough and
until the dedication has been recorded in the county office
for the recording of deeds.
8 Pa.C.S. § 1734(b). Here, the Borough’s obligation for the High Street Steps was
not created under the Code’s authority. Accordingly, because the Borough did not
open or lay out the High Street Steps pursuant to the Code, and the dedication and
acceptance of the High Street Steps did not occur thereunder, but rather, was
established under common law, the Code does not apply.
The Pennsylvania Supreme Court has explained:
[T]he fundamental purpose of the DDPA is to delineate
“the fiduciary nature of municipalities’ obligations
relative to donated and dedicated properties and provide[]
for orderly relief therefrom in appropriate circumstances.”
[In re Erie Golf Course], 992 A.2d [75,] 86 [(Pa. 2010)].
[The Erie Golf Course Court] further discerned that, in
enacting the DDPA, the General Assembly incorporated
“salient common-law principles” of the “public trust
doctrine” as articulated in our caselaw prior to its
enactment. Id. Under that doctrine, whenever property
was dedicated to public use by a municipality, this
action created a trust for the property with the public
as the beneficiary. It correspondingly required the
municipality to act in the capacity of a trustee by
holding the property in favor of the community, and
restricted the municipality from diverting it from
public use, or conveying it to a private party. B[d.] of
Tr[s.] of Phila[.] Museums v. Tr[s.] of Univ[.] of P[a.], . . .
96 A. 123, 125 ([Pa.] 1915); In re Petition of Acchione, . . .
227 A.2d 816, 820 ([Pa.] 1967) ([O]nce land is dedicated
10
to a public use by a municipality, the municipality
becomes “trustee, subject to all the duties and
responsibilities imposed on any other trustee.”). As we
recounted in Philadelphia Museums, the public trust
doctrine was developed in order to protect the
significant interests the public acquires in such
property through their use of it and the expenditures
of tax monies for its care and improvement. Id. at 125.
In re Borough of Downingtown, 161 A.3d 844, 872 (Pa. 2017) (emphasis added).
Section 2 of the DDPA expressly mandates:
All lands or buildings heretofore or hereafter donated to a
political subdivision for use as a public facility, or
dedicated to the public use or offered for dedication to
such use, where no formal record appears as to
acceptance by the political division, as a public facility
and situate within the bounds of a political subdivision,
regardless of whether such dedication occurred before or
after the creation or incorporation of the political
subdivision, shall be deemed to be held by such political
subdivision, as trustee, for the benefit of the public with
full legal title in the said trustee.
53 P.S. § 3382 (emphasis added).
Here, the trial court concluded:
[The trial court’s] determination of dedication is not
premised upon a finding of a statutory dedication which
requires strict compliance, but rather a common law
dedication by implication. Therefore, the Borough cannot
rely upon the [] Code and its provisions to suggest that the
[trial c]ourt cannot require it to maintain the High Street
Steps.
R.R. at 499a. This Court discerns no error in the trial court’s reasoning. See Gass,
91 Pa. Super. at 300 (Because dedication was established through long continued
public use, “[i]t follows that it was the legal duty of the city to keep the steps in
reasonably safe condition for public travel . . . .”). Accordingly, because the Code
11
does not apply, the trial court properly directed the Borough to continue to maintain
the High Street Steps.
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas M. Loughery and :
Michelle K. Loughery :
:
v. :
:
Borough of Jim Thorpe, :
and 61 West Broadway, LLC :
: No. 466 C.D. 2025
Appeal of: Borough of Jim Thorpe :
ORDER
AND NOW, this 30th day of October, 2026, the Carbon County
Common Pleas Court’s December 10, 2024 order is affirmed.
_________________________________
ANNE E. COVEY, Judge