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ASSOCIATES PHILIPSBURG v. EDSEL F. HURWITZ AND ALFRED B. HURWITZ (11/20/81)

filed: November 20, 1981.

ASSOCIATES OF PHILIPSBURG, APPELLANT,
v.
EDSEL F. HURWITZ AND ALFRED B. HURWITZ, T/D/B/A HURWITZ BROTHERS, A CO-PARTNERSHIP; ILENE R. HURWITZ, FRANCINE A. HURWITZ, AND IRWIN H. HURWITZ, INDIVIDUALS; BRONIA CORPORATION, AND MCDONALD'S CORPORATION



No. 878 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Clearfield County, at No. 79-3181-CD.

COUNSEL

Harold Gondelman, Pittsburgh, for appellant.

Harvey E. Robins, Pittsburgh, for Hurwitz, appellees.

Frederick J. Francis, Pittsburgh, for Bronia, appellee.

Carl A. Belin, Jr., Clearfield, for McDonald's, appellee.

Popovich, Montgomery and Hoffman, JJ.

Author: Montgomery

[ 292 Pa. Super. Page 408]

The Plaintiff-Appellant filed the instant appeal from a final order of the lower court which sustained preliminary objections in the nature of a demurrer and dismissed the Appellant's Petition for Declaratory Judgment. The Appellant instituted this action to resolve rights concerning the use of an entranceway to certain properties owned and/or controlled by the various parties to this case.

The record shows that the Appellant, Associates of Philipsburg, is a general partnership which is the successor in title to certain property in Decatur Township, Clearfield County. At the time of the filing of this action, the Appellant had a shopping plaza on that property. The immediate predecessor in title to the Appellant's property was an entity known as the Trustees of C.I. Mortgage Group (hereinafter referred to as "Trustees"). The Trustees had purchased the property on September 3, 1974 from the Appellee Hurwitz Brothers. The two individuals trading and doing business under that name were the Appellees Edsel F. and Alfred B. Hurwitz, apparently operating as a partnership. A little more than a year after the Trustees purchased the shopping

[ 292 Pa. Super. Page 409]

    plaza property from Hurwitz Brothers, both parties executed documents granting each other a right-of-way for entry to each property, from U.S. Route 322, over adjoining corners of land which each controlled along that road. At that time, on November 24, 1975, Hurwitz Brothers still retained property situated contiguous to and generally east of the property then owned by Trustees, and later owned by the Appellant. The pertinent sections of the November, 1975 agreement provided as follows:

1. The Parties hereto hereby mutually agree, one with the other, that each of the respective parties shall have a perpetual right to use the respective entranceways hereinbefore referred to and set out on the drawing hereinabove referred to which is attached to this Agreement. The respective rights to use both of said entranceways shall inure to the benefit of the successors in title and the respective agents, contractors, employees, lessees, business invitees, and business licensees and the customers of any business on the premises owned by the respective Parties; with full right of ingress and egress by pedestrians and vehicles relative to said entranceways.

It is understood and agreed by and between the Parties hereto that as of the date of the execution of this Agreement, the entranceway to the lands of the Parties of the First Part, outlined in green upon the attached map and being designated by the letter "D" is being utilized solely in connection with the ...


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