Appeals, Nos. 121 and 122, March T., 1953, from decree of Court of Common Pleas of Westmoreland County, in Equity, No. 2456, in case of Ohringer Home Furniture Co. v. Lucie F. Hollingsworth et al. Decree reversed; reargument refused November 23, 1953.
Joseph M. Loughran, with him William M. Kahanowitz, for appellants.
Robert W. Smith, with him Smith, Best & Horn and Ruslander, Ruslander & Lieber, for appellee.
Before Stern, C.j., Stearne, Jones, bell, Musmanno/ and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff corporation, Ohringer Home Furniture Co., filed its bill in equity seeking to compel the defendants, C.B. Hollingsworth, B.E. Livingston and D.L. Joyce, to execute and deliver to it, pursuant to an inter partes written agreement, a deed of conveyance for certain described real estate which should include a right to the use of an adjacent private alley and, further, to require the defendants, David and James Grossman, to join in such deed as grantors or execute and deliver a separate deed in order to perfect in the plaintiff a record title to the easement over and across the private alley. Several of the defendants having died since the institution of the proceeding, their personal representatives have been substituted
of record. These substitutions do not in any way affect the disposition of the case.
An amended bill of complaint averred the facts substantially as well shall hereinafter relate them. Hollingsworth, Livingston and Joyce answered, admitting the principal averments of the bill and praying that the plaintiff be directed to tender them the purchase price and accept a deed for the property and that the Grossmans be required to join in the deed as grantors for the purpose above stated. The Grossmans filed preliminary objections to the bill, as originally and subsequently amended, asserting that the court did not have jurisdiction of the subject-matter in equity as to the Grossmans and that the Ohringer Home Furniture Co. was not a proper party plaintiff. The Grossmans also filed preliminary objections to the answer of Hollingsworth and associates and moved to strike off the answer. All of the objections by the Grossmans and their summary motions having been overruled, they thereupon answered to the merits as the court required them to do. The case went to a hearing and terminated in a final decree awarding the plaintiff the relief prayed for as to all defendants. The Grossmans have severally appealed, raising the same legal questions which they had interposed and argued on their preliminary objections and summary motions. Hollingsworth, Livingston and Joyce did not appeal.
Prior to May 4, 1921, Hollingsworth had become the sole owner of two adjacent parcels of improved real estate in Greensburg, Westmoreland County, fronting on the north side of West Otterman Street at the corner of Harrison Avenue, which streets intersect at right angles, West Otterman Street running east and west and Harrison Avenue north and south. The one parcel occupies the northeast corner at the
intersection with a frontage on West Otterman Street of approximately 65 feet and a frontage on Harrison Avenue of about 76 feet. There is erected on this parcel a three-story building known as the Merchants Hotel. The northernmost 10-foot (more or less) strip across this parcel is a private alley which has been in use since about 1902. The alley extends the entire width of the lot. Abutting the first parcel immediately to the east is the second lot which has a frontage of 35 feet on West Otterman Street and a depth of 126 feet which gives this lot a depth northwardly of approximately 50 feet beyond the northerly line of the parcel first described. A three-story store building occupies almost the whole of the second lot. The land immediately to the north of both of these properties is owned by the Slavonic-American Home, Inc., and is improved with a large building. The 10-foot alley-way affords convenient means of ingress ...