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PAUL L. MILLER AND BETTIE J. MILLER v. CLAY TOWNSHIP (03/17/89)

decided: March 17, 1989.

PAUL L. MILLER AND BETTIE J. MILLER, APPELLANTS
v.
CLAY TOWNSHIP, APPELLEE



Appeals from the Order of the Court of Common Pleas of Butler County in the case of Paul L. Miller and Bettie J. Miller v. Clay Township, No. A.D. 85-741, Book 127, page 218, and No. A.D. 85-737, Book 127, page 214.

COUNSEL

Raymond H. Bogaty, for appellants.

Stephen M. Elek, with him, Ned Trbovich, for appellee.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 124 Pa. Commw. Page 253]

This case comes to us on appeal by Paul L. Miller and Bettie J. Miller (hereinafter collectively referred to as Appellants) from a decision and order of the Court of Common Pleas of Butler County granting the petition to enforce settlement filed by Clay Township (Township). For the reasons set forth herein, we reverse and remand.

The sole issue presented for our review herein is whether the trial court's granting of the Township's petition to enforce settlement was proper.

Before addressing this issue, the following factual background is necessary for an understanding of this case. Appellants are the owners of certain property located in the Township. Bordering along the eastern boundary line of their property is a Township roadway commonly known as Cupec Road. Because they believed the Township had constructed Cupec Road in a manner which improperly encroached and entered onto their property, Appellants filed a petition for appointment of viewers and a complaint in equity naming the Township as respondent and defendant respectively. A pre-trial conference was held on these matters. At the pre-trial conference, both parties made offers to settle the matter but no agreement to settle was reached. However, a subsequent letter dated September 17, 1987 from Appellants' counsel indicated that Appellants were willing to accept the Township's pre-trial conference offer to settle. This letter addressed to Attorneys Charles Flach and Ned Trbovich, attorneys for the Township, relevantly provided:

Gentlemen:

[ 124 Pa. Commw. Page 254]

I called Attorney Flach and left a message that Mr. and Mrs. Miller would agree to settle the case based upon the last remaining offer made at the recent pre-trial conference. Mr. and Mrs. Miller are hopeful of establishing the roadway surface so Page 254} that all Parties will clearly understand their rights, obligations and duties.

I understand that the Township will pay the Millers $1300.00; that the parties will agree upon the placement of the roadway of Cupec Road with the help of an engineer, either Mr. McGarvey or someone else to be hired by the Township if necessary; letters will be sent to all residents of Cupec Road specifically stating that the Township is responsible for road maintenance, snow removal, and cutting grass and that Township residents should not engage in this activity; and lastly, that these agreed upon matters be achieved within a reasonable time, perhaps by October 31, 1987.

It would be important to have the road surface properly placed in an agreed upon matter and any necessary work ...


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