No. 764 Pittsburgh, 1980, Appeal from the Order entered July 7, 1980, of the Court of Common Pleas of Cambria County, Pennsylvania - Civil Action-Law at No. 1979-4127
Edward F. Peduzzi, Ebensburg, for appellants.
John A. Metz, Jr., Pittsburgh, for Cooney, etc., appellees.
Mark Gregg, Johnstown, for Adams Tp., appellee.
Brosky, DiSalle and Shertz, JJ. This case was decided prior to the expiration of Shertz, J.'s commission of office. DiSalle, J., did not participate in the consideration or review of this case.
[ 296 Pa. Super. Page 118]
This is an appeal from the order of the court below granting summary judgment to Appellee defendants. The trial court concluded that Appellants' complaint was barred by res judicata. On appeal, Appellants contend that their complaint was not barred by res judicata and was timely filed within the statute of limitations. We disagree and accordingly affirm the order of the court below.
The pertinent facts are as follows. Appellants filed a complaint in equity against Appellees on November 24, 1975. Therein Appellants averred therein that Appellee Township had vacated Township Road 309 which passed between properties owned by Appellants. Appellants further claimed that they acquired title to the road and that during the period from July to October 1974, without permission of the Township or Appellants, Cooney Bros. had covered the road with fill rendering it useless. Appellants also claimed that
[ 296 Pa. Super. Page 119]
some of the fill covered portions of Appellants' adjacent properties. Appellants sought to compel Appellees to remove the fill, to restore the road and for the use of the road on a wheelage or tonnage basis. Appellee Township and Appellee Cooney Bros. each demurred, claiming that the road was not vacated by the Township. The Chancellor, concluding that the road had not been vacated, entered an order sustaining the demurrers and dismissing the complaint. Appellants took no action to challenge the propriety of said order.
On August 24, 1979, Appellants filed a complaint in trespass; it is this complaint which is the subject of this appeal. Appellants reiterate their previous claim that the road was vacated by the Township and that Appellee Cooney Bros. covered the road and adjacent property with fill. Additionally, Appellants claim that:
The defendants, Cooney Bros., also cut through and across a certain portion of plaintiffs' land, constructing a new road thereon, by and with the consent and permission of defendant, Adams Township, but without the consent and permission of the plaintiffs.
R.R. at 34a. Appellants concede that Cooney Bros. proceeded with permission from the Township and that there is no record that the road was ...