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JOSEPH I. HARKINS v. JOHN ZAMICHIELI AND MARGARET ZAMICHIELI (05/25/79)

decided: May 25, 1979.

JOSEPH I. HARKINS, SR., AND RITA M. HARKINS, APPELLANTS,
v.
JOHN ZAMICHIELI AND MARGARET ZAMICHIELI



No. 1050 Oct. Term 197 -- In Equity, Appeal from an Order of the Court of Common Pleas, Civil Action, Equity of Montgomery County, Pa., Docket No. 77-16178.

COUNSEL

Malcolm J. Harkins, III, Washington, D. C., for appellants.

George C. Brady, III, Conshohocken, submitted a brief on behalf of appellees.

Cercone, Spaeth and Lipez, JJ. Cercone, President Judge, concurs in result.

Author: Spaeth

[ 266 Pa. Super. Page 404]

This appeal is from an order sustaining preliminary objections and dismissing appellant's complaint in equity. In determining whether the lower court properly dismissed the complaint, we must take as true "every well pleaded material fact set forth in the pleading . . ., as well as the inferences reasonably deducible therefrom." Schott v. Westinghouse Electric Corp., 436 Pa. 279, 282, 259 A.2d 443, 445 (1969). Furthermore, we must bear in mind

     the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968); Todd v. Skelly, 384 Pa. 423, 120 A.2d 906 (1956); Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955). To sustain preliminary objections in the nature of a demurrer, it must appear

[ 266 Pa. Super. Page 405]

    with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary objections should be sustained, that doubt should be resolved by refusing to sustain the objections. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). Id., 436 Pa. at 291, 259 A.2d at 449.

So read, the complaint states the following facts. Appellants are husband and wife who reside at 3016 Butler Pike, Conshohocken. They purchased this residence in 1952 from Mr. and Mrs. John Skilton, who also owned 3018 Butler Pike, the adjoining property. At the time of the purchase the boundary line between the properties was marked by a grass and sod strip approximately 6 to 8 inches wide. Parallel to the strip, on appellants' property, was a hedge, approximately 3 to 3 1/2 feet high and extending the length of the property line. Also parallel to the strip, on the Skiltons' property, was a 10 foot wide driveway. This driveway ran to a work area at the rear of the Skiltons' property, where it widened to approximately 40 feet to provide a turnaround and parking places. In 1953, Mr. Skilton and his son Wayne, who was Mr. Skilton's business associate and agent, asked appellants for permission to widen the driveway onto appellants' property, and to transplant the shrubbery hedge, which would be removed in the operation, to the front of the Skiltons' property. Appellants agreed on the condition that they be allowed to use the portion of the widened driveway lying immediately alongside their house for parking. The Skiltons accepted this condition, the hedge was transplanted, and the driveway was widened and paved. Appellants subsequently exercised their parking privileges for more than twenty-three years without incident. During this period they contributed to the driveway's maintenance and improvement. On January 15, 1975, appellees bought the Skiltons' property. Prior and subsequent to their purchase, appellees recognized appellants' right to use the driveway for parking. Nevertheless, on July 22, 1977, appellees erected

[ 266 Pa. Super. Page 406]

    a barrier blocking the driveway, and have denied appellants use of the driveway ever since.

Appellants' complaint is stated in three counts. Count I asserts that appellants acquired an irrevocable license to use the driveway for parking in 1953, when the driveway was widened pursuant to the parol agreement between them and the Skiltons, and that this license limits the property rights of appellees as successors-in-title to the Skiltons. Count II asserts that appellants enjoy an irrevocable license to use the driveway by virtue of a separate, independent contract between appellants and appellees. Count III asserts that even if appellants' license is revocable, under the doctrine of unjust enrichment appellees may revoke it only after they have restored appellants' property to its original condition. The lower court held that an irrevocable license was not ...


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