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filed: September 13, 1985.


No. 02499 Philadelphia, 1984, No. 02399 Philadelphia, 1984, Appeal From Order, Court of Common Pleas, Civil Division, Philadelphia County No. 1048 August Term, 1976


David Berger, Philadelphia, for appellant (at 2399) and appellee (at 2499).

Kell M. Damsgaard, Philadelphia, for appellant (at 2499) and appellee (at 2399).

Cavanaugh, Cirillo and Hester, JJ.

Author: Cavanaugh

[ 345 Pa. Super. Page 438]

This case involves an appeal by the Philadelphia Musical Academy (PMA) and Pennsylvania Higher Educational Facilities Authority (PHEFA) from the entry of summary judgment in favor of the appellee, Academy House, Inc. Academy House, Inc. has filed a cross appeal at No. 2499 Philadelphia, 1984 from the order of Judge Stanley M. Greenberg dated December 8, 1982 granting the appellants an extension of time in which to file a certificate of readiness.*fn1

The basis of the litigation is an easement which was granted by deed of partition in 1850 to the owners of real property located at what is now known as 1423 Manning Street, Philadelphia, Pennsylvania. The real estate on Manning Street is a narrow piece of land seventeen feet wide by some eighty feet deep running in a north-south direction. The easement, which was also referred to as an "alley" in the proceedings, extended from the northwest corner of the Manning Street property due west for one hundred twenty-three feet and then due south for a distance of eighty feet to Manning Street. The L shaped easement was ten feet wide. The Manning Street property at one time was a stable and is now used as a dressing room for the Shubert

[ 345 Pa. Super. Page 439]

Theatre which is also located on an adjacent parcel of land. The appellants have an interest in the Manning Street property referred to as parcel B and the adjacent property sometimes referred to in this opinion as parcel A. Parcel A, known as 250 South Broad Street, has a ninety foot frontage on Broad Street and a two hundred foot frontage on Manning Street. Collectively, parcels A and B are known as the Shubert Theatre although the building on parcel A is a large 7-story building housing the theater itself and offices. The small structure on parcel B has dressing rooms and is connected to parcel A by a door through the party wall.*fn2

The appellant's neighbors immediately north of their property is the Academy of Music, which also fronts on Broad Street, and which has been located at its present site for more than one hundred years. At the present time, the property immediately west of parcel B is owned and occupied by the appellee, Academy House, Inc. The Academy House is a 37-story condominium building containing over five hundred residential units, rehearsal hall and several stores and offices. The property on which the Academy House condominium is located is west of the Academy of Music and the Shubert Theater and fronts on Locust Street, Manning Street and 15th Street and is irregular in shape. Title to the land on which the Academy House is constructed was obtained in 1973 and construction was commenced in that year.

PMA acquired title to the Shubert Theater in approximately 1974. In August of 1976, after the Academy House was substantially completed, the appellants commenced an action in equity against the appellee seeking to enjoin it from encroaching upon the appellants' use of the alley. The appellants sought a "mandatory injunction ordering [Academy House, Inc.] to demolish that portion of its building which occupies [the] space defined by the said alley."

[ 345 Pa. Super. Page 440]

The appellants also sought other relief, including punitive damages in the amount of $5,000,000.00, compensatory damages and counsel fees.

Counsel for the appellants did not file a certificate of readiness by August 31, 1980, as required by a Supreme Court order of November 19, 1979, No. 161, E.D.Misc. 1979, known as the 240 Day Rule. However, new counsel for the appellants filed a petition for extension of time within which to file a certificate of readiness, nunc pro tunc. On December 8, 1982 the court below denied the appellee's motion for entry of a formal order of dismissal.

Depositions were taken below both before and after the order of December 8, 1982. The appellees filed a motion for summary judgment under Pa.R.C.P. 1035 which was granted by the court below.*fn3 It is axiomatic that summary judgment will be entered only in a clear case. Hankin v. Mintz, 276 Pa. Super. 538, 419 A.2d 588 (1980). However, summary judgment may be granted where the pleadings, depositions, interrogatories and admissions on file show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Goodman v. Pate Construction, Inc., 305 Pa. Super. 147, 451 A.2d 464 (1982); Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Super. 341, 361 A.2d 676 (1976); Community Medical Services, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa. Super. 238, 437 A.2d 23

[ 345 Pa. Super. Page 441]

(1981). See also, Pa.R.C.P. 1035(b). In the instant case, the pleadings, depositions and affidavits reveal that there were no genuine issues as to any material fact. The complaint alleges that the original Deed of Partition recorded in Deed Book C.W.C. 64/30 "granted an easement for passage and watercourses over an L-shaped alley" and describing the direction and distances over which the alley ran from appellants' property west and then south to Manning Street. There is no dispute as to the grant of the easement. Appellants' Exhibit 2, which was a survey prepared on June 23, 1972, referred to a "former 10 ft. wide alley" and clearly delineates the alley or easement in question. It is also undisputed that the actual alley no longer exists as the Academy House now occupies the area where the alley was formerly located. It is uncontroverted that the appellants have an interest in the two parcels of real estate referred to as parcels A and B at 250 South Broad Street (parcel A) and 1423 Manning Street (parcel B). In 1970 John Merriam entered an Agreement of Sale to purchase the Shubert Theatre then owned by the Jujameyn Trust. In December, 1972, Mr. Merriam assigned his interest in the agreement to PMA which then acquired title from the trust. In 1974, PMA transferred formal title to PHEFA in exchange for cash and a lease on the property.

With respect to the appellee, it was incorporated in 1972 for the purpose of developing the Academy House property. In May, 1973, the property west of the Academy of Music and the Shubert Theater was acquired from the Academy of Music Foundation as the site for the future Academy House condominium. At the time of the purchase the property immediately west of the Academy of Music was a parking lot and immediately west of the Shubert Theater was a parking garage. The parking garage was connected to the parking lot by a concrete ramp which directly passed over what had been the 10 foot wide alley and would have completely blocked it if the alley had still been there. Immediately after the Academy House, Inc. obtained title to the site for its proposed condominium building, the parking

[ 345 Pa. Super. Page 442]

    garage on Manning Street was razed and the ground breaking ceremony occurred in June, 1973.

The controversy surrounding the easement did not first arise in these proceedings. On August 15, 1972, counsel for PMA wrote to counsel for the Academy House and stated that John Merriam had the premises at the northwest corner of Broad and Manning Street under an agreement of sale and stated that the agreement covered the Shubert Theater building and parcel B, referred to in the letter as property No. 78.

According to the enclosed data, it seems clear that the right to use the 10 foot alley which runs due west from the most northerly corner of property No. 78 and which then turns south at right angles connecting with Manning Street, still pertains to property No. 78. We know of no deed or instrument of extinguishment.

The dispute concerning the easement was apparently not resolved and on October 9, 1973 counsel for PMA again wrote to counsel for Academy House and referred to the easement and the fact that no response had been received from his letter of August ...

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