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decided: August 26, 1982.


Appeal from the Order of the Court of Common Pleas of Chester County in the case of Alexander C. Kovach and Elsie Kovach, his wife v. Borough of Phoenixville and Joseph Ellinger, Building Officer of the Borough of Phoenixville, No. 372 July Term, 1979.


Allan B. Greenwood, with him Mark L. Tunnell, Cremers, Morris, Greenwood & Tunnell, for appellants.

Mary Ann Rossi, with her William J. Gallagher and Lynn E. Palenscar, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for appellees.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.

Author: Doyle

[ 68 Pa. Commw. Page 442]

This is an appeal by the Borough of Phoenixville (Borough) from a decision and order of the Court of Common Pleas of Chester County reversing the Borough Council's affirmance of the Borough Building Officer's decision to deny a street improvement permit to Alexander and Elsie Kovach.

The instant case centers around a fifty foot wide, five hundred foot long paper street in the Borough known as "Mulberry Street."*fn1 Mulberry Street, which intersects Columbia Avenue to the west and Chester Avenue to the east, runs parallel to and between Cherry Street to its north and Madison Avenue to its south. In 1951, the Kovachs purchased property fronting on Cherry Street, the rear boundary for which is Mulberry Street. Subsequent to the Kovachs' acquisition of their property, Mulberry Street was rendered unusable as a right of way by Pennsylvania Builders, Inc.'s, the owner of the fee title to Mulberry Street, excavation of soil to facilitate the development of housing lots fronting on Madison Avenue. In an attempt to regain the use of Mulberry Street, the Kovachs and other owners of land fronting on Cherry Street initiated a suit in equity before the Court of Common Pleas of Chester County to compel Pennsylvania Builders, Inc. to restore the original grade of the street. That court, in its decision in Kovach v. Pennsylvania Builders, Inc., 8 Chester Co. Rep. 329 (1958), held that the Kovachs and their co-plaintiffs, "as grantees of lots sold and conveyed by description with

[ 68 Pa. Commw. Page 443]

    reference to Mulberry Street . . . acquired an easement appurtenant by implication as a private right of property arising out of a grant." Id. at 332 (emphasis added).

The court, however, refrained from entering an actual judgment in favor of the plaintiffs because it felt regrading Mulberry Street could also affect those property owners whose homes fronted on Madison Avenue. Thus, the proceedings were suspended pending joinder of those owners as parties to the action so as to be able to determine if they had rights in the easement. When the Cherry Street residents some time later recommenced efforts to improve Mulberry Street, the Madison Avenue residents went before the common pleas court and requested a permanent injunction of the proposed improvements on the grounds that they would unduly interfere with their easement rights. The court, in Nord v. Devault Contracting Company, Inc., 23 Chester Co. Rep. 98 (1975) held that, while the Cherry Street residents possessed easements by implication, only one of the Madison Avenue residents possessed easement rights and that the injunction must be denied because that party had failed to establish potential injury. This decision was affirmed by the Pennsylvania Supreme Court in Nord v. Devault Contracting Company, Inc., 460 Pa. 647, 334 A.2d 276 (1975). Subsequently, the Kovachs began efforts to obtain a permit for a curb cut and to grade and pave a ten foot wide and approximately two-hundred and twenty foot long strip of Mulberry Street running eastward from Columbia Avenue so as to provide access to their property from the rear. These efforts culminated in the denial by the Borough Building Officer on April 19, 1979, of the building permit application which is the subject of the instant case. The Kovachs appealed this denial to the Borough Council and, following a hearing, an adjudication was

[ 68 Pa. Commw. Page 444]

    rendered on July 10, 1979, affirming the denial of the permit application. The reasons proffered by the Council for its decision were: (1) the Kovachs had not established their right to the easement; (2) the Kovachs failed to submit a copy of their deed; (3) the name of the owner of Mulberry Street was not on the building permit application; (4) said owner had not given approval for the improvements or joined in the application; (5) the proposed improvements were inconsistent with a district zoned R-3, single family residential, and (6) no provision had been made to assume responsibility for the maintenance and upkeep of the roadway. On appeal, the court of common pleas took no additional evidence and overturned the Council's decision by holding that the Kovachs had satisfied all the requirements for a building permit and that one therefore must be issued. The appeal to this Court followed in which the Borough asserts that each of the reasons it set forth to deny the permit application was sufficient as a matter of law to warrant such a denial.

This Court's scope of review where, as here, the common pleas court has rendered a decision without taking any additional evidence, is the same as that to which the common pleas court is held, i.e., whether the borough council committed an abuse of discretion or an error of law. ...

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