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BLAINE ATKINS AND JEAN ERESH ATKINS v. A.R. PORE (11/10/83)

filed: November 10, 1983.

BLAINE ATKINS AND JEAN ERESH ATKINS, HIS WIFE, JAMES BALOG, JR. AND REGINA L. BALOG, HIS WIFE, NICHOLAS G. GOMARAC AND PAULINE A. GOMARAC, HIS WIFE, JOHN F. GORMAN, JR. AND BRIDGET E. GORMAN, HIS WIFE, GLENN F. JACKEL, JR. AND ALICE J. JACKEL, HIS WIFE, DONALD A. KUSHNER AND MARILYN E. KUSHNER, HIS WIFE, RICHARD V. LANDERS AND DAWN LANDERS, HIS WIFE, JAMES MILLER AND JEAN MILLER, HIS WIFE, RONALD R. MINK AND SANDRA M. MINK, HIS WIFE, RICHARD A. MONK AND ROSE MARIE MONK, HIS WIFE, ROBERT P. RODGERS AND M. GOLDIE RODGERS, HIS WIFE, SHUSTER'S BUILDERS SUPPLIES, INC., JAMES T. STAFFORD AND PHYLLIS J. STAFFORD, HIS WIFE, ANDREW ZUROVCIK AND PATRICIA ZUROVCIK, HIS WIFE, JOHN R. BACCO AND PATRICIA A. BACCO, HIS WIFE,
v.
A.R. PORE, A/K/A RAY PORE AND MILDRED L. PORE, HIS WIFE, EUGENE PORE AND VIOLET L. PORE, HIS WIFE, CAMPFIELD AND BOURKE, A PARTNERSHIP. APPEAL OF A.R. PORE, A/K/A RAY PORE AND MILDRED L. PORE, HIS WIFE



No. 71 PITTSBURGH, 1982, Appeal from an Order in the Court of Common Pleas, Civil Division, of Westmoreland County, No. 5358 of 1979.

COUNSEL

Dennis J. Gounley, Greensburg, for appellants.

Joseph F. Cassarino, Greensburg, for appellees.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Hester

[ 321 Pa. Super. Page 58]

The plaintiffs-appellees in this equity action are home-owners in the Mil-Ray Acres Plan in Sewickley Township, Westmoreland County. They consist of fourteen (14) families, thirteen (13) of whom purchased lots directly from the defendants-appellants A.R. Pore and his wife Mildred. Also

[ 321 Pa. Super. Page 59]

    named as defendants, as agents for the Pores, were their son and daughter-in-law Eugene and Violet Pore, together with the real estate brokerage firm of Campfield and Bourke. Violet Pore's motion for summary judgment was granted as was Campfield and Bourke's motion for a judgment on the pleadings.

This equity action for specific performance was instituted by the appellees in an effort to have the two streets in their plan, Oak Creek Drive and Circle Drive, constructed to conform to the street and road specifications of said township. Appellees allege that appellants promised to improve said streets in order to induce appellees to purchase the lots in appellants' plan. Further, appellees asserted at trial that appellants had promised to maintain said streets until such time as their maintenance was assumed by the township.

The testimony established that the streets at the time of trial were in a virtual impassable condition. Numerous potholes, deep ruts and projecting piles of material were found to not only be existing at the time of trial but to have existed since 1973, the time some appellees had purchased their lots. Testimony was provided which demonstrated that emergency vehicles at times could not travel these streets due to their condition. Moreover, these roads had become so hazardous that the Postal Service had discontinued mail delivery to the appellees' homes in 1979. Further, appellees presented expert testimony which indicated that the conditions of the streets did not in any manner meet the township's street and road specifications. It is also to be noted that the Court on the first day of trial viewed the streets in question.

Upon this evidence, the court, after making appropriate findings of fact and conclusions of law, issued the following Decree Nisi:

AND NOW, this 19th day of March, 1981, it is hereby ordered that the Defendants A.R. Pore and Mildred L. Pore complete the construction and surfacing of all roads and culverts in the Mil-Ray plan of lots in Sewickley Township, Westmoreland County, ...


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