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JOSEPH FERKO AND ANN FERKO v. MICHAEL A. SPISAK AND PATRICIA SPISAK (03/08/88)

filed: March 8, 1988.

JOSEPH FERKO AND ANN FERKO, HIS WIFE, APPELLEES,
v.
MICHAEL A. SPISAK AND PATRICIA SPISAK, HIS WIFE, THE BOROUGH OF NORTH EAST, ROCCO J. TONASINO AND DINAH JO TONASINO, HIS WIFE, DANIEL R. MORSE AND ELINOR MORSE, HIS WIFE, AND ROBERT B. HASLETT, EXECUTOR OF THE ESTATE OF LOCHNER TENNEY, APPELLANTS. APPEAL OF MICHAEL A. SPISAK AND PATRICIA SPISAK, HIS WIFE. JOSEPH FERKO AND ANN FERKO, HIS WIFE, APPELLANTS, V. MICHAEL A. SPISAK AND PATRICIA SPISAK, HIS WIFE, THE BOROUGH OF NORTH EAST, ROCCO J. TONASINO AND DINAH JO TONASINO, HIS WIFE, DANIEL R. MORSE AND ELINOR MORSE, HIS WIFE, AND ROBERT B. HASLETT, EXECUTOR OF THE ESTATE OF LOCHNER TENNEY, APPELLEES



Appeal from the Judgment entered February 13, 1987 in the Court of Common Pleas of Erie County, Civil Division, at No. 2431-A-1984.

COUNSEL

Cathy M. Lojuewski, North East, for Spisak, appellants in No. 353 and appellees in No. 354.

Eugene J. Brew, Jr., Erie, for Ferko, appellants in No. 354 and appellees in No. 353.

Rowley, Del Sole and Montgomery, JJ. Rowley, J., concurs in the result.

Author: Del Sole

[ 373 Pa. Super. Page 304]

Today we consider two consolidated appeals from the trial court Order which purportedly determined the parties' property rights to portions of certain paper streets as provided for in a subdivision plot plan. The facts are as follows. By conveyance dated June 17, 1946, the Ferkos acquired title to

[ 373 Pa. Super. Page 305]

    a parcel of land located in a plotted subdivision referred to as the Orchard Park Addition in North East, Pennsylvania. The subdivision was mapped out in 1916. The Ferkos' deed was filed on June 18, 1946.

The parties agree that the Ferkos' deed was described by metes and bounds, not by lot numbers as contained in the subdivision's map. However, the deed made the following reference with the respect to the subdivision's paper streets:

[E]xcepting the public street[] known as Franklin . . . Street[]: also excepting the rights of any and all other parties in and to the plotted streets in the Orchard Park Addition to North East Borough.

Davis Street was a "plotted street" as referred to in the Ferkos' deed.

The Spisaks purchased their parcel of land by deed on February 20, 1981 and recorded it on March 6, 1981. The Spisaks' land, like the Ferkos' was originally contained in the Orchard Park Addition Plan. The deed described the eastern boundary of the Spisaks' property as abutting the western line of Franklin Street. The southern boundary of the land was determined to abut the northern line of Davis Street.

The record shows that development on the Orchard Park Addition never occurred. Other than being plotted out in the subdivision plan, neither Franklin nor Davis Streets were ever physically opened. In fact, North East Borough, by ordinance, relinquished any interest it might have possessed in the paper streets provided for by the plan, with exception to the areas of land in dispute.

Arguments occurred between the parties concerning the boundary line separating their properties. According to the parties' deed descriptions, certain sections of Franklin and Davis Streets form common boundaries between the two properties.*fn1 Franklin Street consists of a ...


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