NO. 808 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas of Montgomery County,) Pennsylvania, Civil Action--Equity Division, at No. 72-13964
Stephen R. Signore, Jr., Norristown, for appellants.
Donald J. Martin, Norristown, with him Richard K. Masterson, Norristown, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 251 Pa. Super. Page 506]
This is a dispute between property owners in a recorded plan of lots over their respective rights in a street which was shown on a recorded plot plan but not accepted by the municipality as a public street within the 21 year limit prescribed by § 1724 of the Borough Code, 53 P.S. § 46724, and predecessor statutes. An attempt by the borough in a 1971 ordinance to accept the street as a public thoroughfare was held to be invalid because not made within 21 years of the filing of the plan: Guernaccini v. Lansdale Borough, 95 Montgomery County, L.R. 299 (1972).
Appellants and appellees are each owners of lots in a plan of subdivision known as Pennbrook Farms # 2 located in the Borough of Lansdale. The plan was recorded in the office of the Recorder of Deeds of Montgomery County in 1915. Included in the street pattern of the plan was one known as Highland Avenue extending in a north-south direction and another known as Forest Avenue which crosses it at right angles and runs east and west. Both streets run the full extent of the plan and connect with public highways which abut the plan except for that portion of Forest Avenue to the east of Highland Avenue which extends in an easterly direction some 200 feet from the point of intersection to the eastern boundary of the plan. The property abutting its eastern terminus was an open field at the time of dedication in 1913, but this adjacent property has since been developed into a public parking lot serving a bowling alley and a Y.M.C.A. which are now located on the property abutting Forest Avenue to the east of the plan. It is this 200 foot stretch of Forest Avenue which is the focal point of the dispute.
The appellees are the owners of lots on each side of Forest Avenue for the entire 200 feet distance from Highland Avenue to the eastern boundary of the plan. Appellees Milton F. Wenhold, Jr. and Elaine Wenhold, his wife, own
[ 251 Pa. Super. Page 507]
the property on the south side of Forest Avenue and John F. Guernaccini, Jr. and Shirley Guernaccini, his wife, on the north side of the street, their titles in both instances running to the middle of the street. Since this litigation began, the Wenholds have sold to the Guernaccinis their property rights in the disputed street.
Appellants are also the owners of property in the plan of lots, but their properties do not abut the controverted footage on Forest Avenue.
On or about September 1, 1972, without the permission of the residents of the plan, the appellee John F. Guernaccini, Jr. constructed a guard rail barricade and chain link fence across the eastern boundary of Forest Avenue 200 feet distant from Hamilton Avenue thereby obstructing both vehicular and pedestrian ingress and egress to and from the parking lots which abut the eastern terminus of the avenue. Following the erection of the barrier, the Guernaccinis extended their lawn approximately 5 feet into the right-of-way of Forest Avenue. As a consequence of his action, the appellants and all others, both within and without their plan of lots, have been unable to make use of the 200 foot stretch of Forest Avenue east of Hamilton Avenue as a means of ingress or egress to or from the parking lot immediately to the east of the barrier.
Appellants seek an injunction forbidding the appellees from erecting a barrier across Forest Avenue at its eastern terminus. They originally sought to assert their cause of action as a class action on behalf of all lot owners in Pennbrook Farms # 2. Preliminary objections to the complaint as a class action were sustained and this ruling has not been appealed. With respect to the individual rights of the appellants, the lower court has held that they have no enforceable rights of ingress or egress to or from Forest Avenue to or from ...