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FRANKLIN LAND COMPANY AND JOHN HOBART MILLER v. BOROUGH FOX CHAPEL (11/23/77)

decided: November 23, 1977.

FRANKLIN LAND COMPANY AND JOHN HOBART MILLER, INC.
v.
BOROUGH OF FOX CHAPEL, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Franklin Land Company and John Hobart Miller, Inc. v. Borough of Fox Chapel, No. GD 76-27852.

COUNSEL

A. Bruce Bowden, with him John R. Johnson, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellant.

T. Lawrence Palmer, with him Jay D. Glasser, and Hollinshead and Mendelson, for appellees.

Judges Wilkinson, Jr. and Rogers, sitting as a panel of two. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 32 Pa. Commw. Page 479]

This appeal follows the granting of a preliminary injunction by the court below. This injunction prohibits the appellant Borough of Fox Chapel (Borough) from interfering with the appellees' ingress and egress to and from their property in Harmar Township (Township) over a street located in the Borough, known as Sweet Gum Road. The Borough was further ordered to remove any obstructions which existed upon that road. We affirm the granting of the preliminary injunction.

The appellees own a tract of land which is divided by the boundary between the Borough and the Township. On the Borough side of their property the appellees have substantially completed a residential development known as "The Forest." The Township side has not yet been developed.

In connection with the development of the Township property, the appellees plan to extend Sweet Gum Road into the Township so as to have a means of access onto their property from the Borough side. The record shows that a cinder topped road in the Township, known as Campbell Road, could provide access from the Township side. To limit appellees to this access road, however, would require the construction of a road one mile long through the appellees' property so as to enable them to begin construction of homes near the municipality boundary line. The appellees readily agree that it is economically advantageous

[ 32 Pa. Commw. Page 480]

    to construct homes near the Borough side first, and to have prospective buyers enter the development through the Borough, due to the higher price they will be able to obtain for their homes. Additionally, it is clear that it is much cheaper merely to continue construction of Sweet Gum Road, and to extend the utility lines located along it, than to construct a new road, and some new utility lines, from the Township side.

Sweet Gum Road lies entirely within the Borough. It was constructed by the appellees, and then dedicated to, and accepted by, the Borough. The road is not paved all the way to the boundary line; rather, the paved portion of the road stops some 13 to 16 feet from the boundary line. It is significant to note that the Borough insisted that a portion of the cash bond posted by the appellees for the proper construction of Sweet Gum Road be retained pending completion of additional work on the last 13 to 16 feet. This demonstrates a recognition on the part of the Borough that Sweet Gum Road extended up to the boundary line, and did not stop at the then end of the paved section.

On October 18, 1976, the Borough enacted an ordinance vacating Sweet Gum Road. The validity of the vacating ordinance was immediately contested, which had the effect of staying the vacation pending a final determination by the Court of Common Pleas of Allegheny County of the propriety of the vacation. On November 24, 1976, the appellees began to actively use both the paved and unpaved sections of Sweet Gum Road to gain access to their Township property. On November 29, as well as December 1, Borough police came to the appellees' work site in an effort to prevent ...


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