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CANNON BROTHERS v. JOHN D'AGOSTINO AND JACQUELINE M. D'AGOSTINO (09/02/86)

filed: September 2, 1986.

CANNON BROTHERS, INC., APPELLANT,
v.
JOHN D'AGOSTINO AND JACQUELINE M. D'AGOSTINO, HIS WIFE, APPELLEES



Appeal from Decree of the Court of Common Pleas, Civil Division, of Delaware County, No. 82-13217.

COUNSEL

James R. Flick, Media, for appellant.

Wickersham, Wieand and Popovich, JJ.

Author: Wieand

[ 356 Pa. Super. Page 288]

This is an appeal from a final decree denying injunctive relief and dismissing a complaint in equity. The learned trial judge held that the plaintiff had failed to establish legal title to or an easement over the disputed tract of land and that, in any event, plaintiff had failed to show an actual or threatened injury. Our review of the record discloses that the plaintiff was able to prove a right of way over the disputed piece of land but that it failed to prove any interference with its right to use the easement for its intended purpose. Therefore, we affirm the decree denying injunctive relief.

Cannon Brothers, Inc., the plaintiff-appellant, and John and Jacqueline D'Agostino, the defendant-appellees, own lands in Ridley Township, Delaware County. Their respective tracts were at one time part of a subdivision owned by a common grantor. According to an unrecorded plan, prepared by the prior, common grantor, the lands now owned by plaintiff and defendants were separated by a stone and gravel right of way known as Stony Brook Drive. This driveway formed the eastern boundary of the lot owned by the D'Agostinos. On the other side of the driveway, to the east thereof, was the land which has now been developed by Cannon Brothers, Inc. The driveway was situated in such a manner that the adjoining lots of Cannon and D'Agostino were not rectangular but irregular. Thus, Stony Brook Drive lay diagonally across the southeast corner of the land owned by the D'Agostinos.

Cannon's land holdings were not limited to the single lot situated along the western side of Stony Brook Drive and opposite the D'Agostino lot. The developer had purchased numerous additional lots from the original subdivision and had constructed apartment buildings thereon. Prior to 1975, when the D'Agostinos acquired title to their lot, the developer had paved the surface of Stony Brook Drive in such a way that it was no longer identifiable as a right of way. Rather, it had become part of a larger area which the developer had paved and set aside for parking. This parking

[ 356 Pa. Super. Page 289]

    area was adjacent to the foot of an embankment which existed along and formed a part of the eastern portion of the D'Agostinos lot. The southern line of the parking lot was a continuation of the southern boundary of the D'Agostino lot. Concrete parking blocks had been placed by the developer along the southern edge of the parking lot. These blocks prevented traffic from reaching the unpaved continuation of Stony Brook Drive to the south.

When the defendant-appellees took possession in 1975, a dispute arose regarding their right to use the parking lot for free access to the rear of the residence erected on their single lot. The dispute initially was focused upon a triangular area, measuring 28' by 11' by 40', which was a part of the former Stony Brook Drive and which, if added to appellees' lot, would have made it approximately rectangular in shape. The D'Agostinos regularly traversed this disputed segment of the parking lot, which had formerly been a part of Stony Brook Drive, to gain access to the rear entrance of their home. They also parked their automobiles in this area and used it to receive deliveries of heating oil. Tenants of the developer's apartment building also used the disputed area to park their vehicles. Because of parked cars, the D'Agostinos frequently were deprived of access to the rear of their home. They were also unable to park on the triangular corner of the lot which they claimed as a part of their property. Therefore, the D'Agostinos placed four concrete parking blocks on the disputed area along what had been the eastern side of Stony Brook Drive. These blocks interfered with the ability of tenants of the apartment building to park on Stony Brook Drive. The D'Agostinos also parked their vehicles within the area between the blocks and their embankment. When the developer discovered the presence of the blocks on the parking lot, he demanded that appellees remove them and thereafter refrain from parking their automobiles on appellant's parking lot. The D'Agostinos complied by removing the blocks. They then excavated the embankment at the rear of their lot where to this date they continue to park their automobiles.

[ 356 Pa. Super. Page 290]

Unwilling to relinquish their claim to the disputed area, however, the D'Agostinos later replaced the concrete parking blocks. These blocks again prevented the parking of cars along the disputed southwestern corner of the paved parking lot. However, they did not impede passage to the unpaved continuation of Stony Brook Drive. The developer again demanded that the blocks be removed, but this time the D'Agostinos refused.

The developer then brought an action in equity for an injunction which would have compelled the removal of the blocks and would have enjoined the use of the space by the D'Agostinos.*fn1 The D'Agostinos responded to the complaint by filing a pro se answer which, although generally denying the developer's ownership of the disputed portion of the parking lot, failed to deny specifically several averments of the complaint as required by Pa.R.C.P. ...


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