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FRANK J. POTIS AND ANGELA POTIS v. PAUL COON AND BEVERLY COON (08/02/85)

filed: August 2, 1985.

FRANK J. POTIS AND ANGELA POTIS, HUSBAND AND WIFE, APPELLANTS,
v.
PAUL COON AND BEVERLY COON, HUSBAND AND WIFE, AND RANSOM TOWNSHIP



Appeal from the Judgment entered October 26, 1984 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 80 Equity 29.

COUNSEL

John A. Mihalik, Bloomsburg, for appellants.

Joseph P. Lenahan, Scranton, for appellees.

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 344 Pa. Super. Page 445]

The sole issue on appeal is whether lot owners in a subdivision acquired a private easement over an unopened road because their deeds referred to a map of the subdivision showing such road where the map was unrecorded and the lots in question did not abut on the road. We find that appellants acquired an easement over the unopened road and, accordingly, reverse.

[ 344 Pa. Super. Page 446]

In 1968, Samuel J. Coon and Mary N. Coon (Samuel and Mary) owned a piece of property in Ransom Township which they decided to develop into a residential subdivision. On September 5 of that year, upon Samuel's request, Kenneth C. Seamans, a professional surveyor and engineer, prepared a map (1968 Map) showing a subdivision composed of various lots and two parallel "40-foot" roads. See Diagram A. On July 9, 1969, appellants, James P. Whitman and Judith Whitman, (the Whitmans) purchased Lot No. 1 in the subdivision from Samuel and Mary and received a deed which referred to the 1968 Map. (N.T. December 13, 1983 at 14-15). On October 26, 1970, Seamans prepared a second map (1970 Map) which added a plan for lots to be sold on the northwest side of the upper 40-foot road. See Diagram B. On April 5, 1972, Samuel and Mary conveyed Lot No. 2 to Edward H. Coon and Anna Coon (Edward and Anna). On May 21, 1972, Seamans prepared a third map (1972 Map) which reflected the same area as that shown on the 1968 Map and merely extended the southeastern portion. See Diagram C. None of the three maps was ever recorded. (N.T. December 13, 1983 at 4).*fn1 Both the 1970 May and the 1972 Map show a "U"-shaped 40-foot road encircling the portion of the subdivision containing the lots in question, and both open ends of this "U" are anchored on Ransom Road.

On June 29, 1973, appellants, Fred Vrabel and Mary Ann Coury, purchased Lot No. 2 from Edward and Anna and received a deed which referred to a map based on the 1972 Map. (N.T. December 13, 1983 at 15). After these purchasers were married, they conveyed the lot to themselves as Fred Vrabel and Mary Anne Vrabel (the Vrabels) on May 28, 1974. In October or November of 1974, appellants, Frank J. Potis and Angela Potis, (the Potises) entered into a purchase agreement with Mary Coon*fn2 for Lot No. 4. The

[ 344 Pa. Super. Page 447]

Potises made monthly payments until December 8, 1976, when Mary delivered the deed to Lot No. 4 to the Potises. This deed referred to the 1972 Map. (N.T. December 13, 1983 at 17-18).

Meanwhile, on July 16, 1975, appellees, Paul Coon and Beverly Coon, acquired by deed ownership of the lands surrounding the subdivision in question from Mary Coon. In 1976 or 1977, Mary transferred the remainder of her property to appellees.*fn3 Appellees then decided to resubdivide the acquired lands. This resubdivision would effectively eliminate the upper leg of the 40-foot road by changing it into a cul-de-sac. See Diagram D. This upper leg is an unopened road (i.e., a road not opened or used as a public street). On June 4, 1979, appellee Ransom Township approved of the proposed resubdivision plan.

Consequently, on March 24, 1980, appellants (the Whitmans, Vrabels, and Potises)*fn4 filed a complaint against appellees (Paul and Beverly Coon, and Ransom Township), seeking an injunction against the transfer of any lots or the issuance of any permits in connection with the proposed resubdivision which would interfere with their rights to ingress and egress through the unopened road (i.e., the upper leg of the 40-foot road). Appellants' lots front on the bottom leg of the 40-foot road, and it is undisputed that appellants have never used the upper leg of the road. See Lots 1, 2, and 4 in Diagrams A and C. After appellees filed their answers, the lower court held a hearing on December 13, 1983 for the presentation of evidence. Subsequently, on February 28, 1984, the lower court filed an opinion and order denying appellants' request for injunctive relief. The court held that appellants had failed to establish the existence of an easement by implication over the unopened road. Appellants then filed a motion for post-trial relief on March 8, 1984, requesting modification of the February 28 order so

[ 344 Pa. Super. Page 448]

    as to grant the injunctive relief sought. Finally, on September 28, 1984, the lower court filed an opinion and order dismissing the motion for post-trial relief. This September 28 order was reduced to judgment and entered upon the ...


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