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12/17/97 MICHAEL LILLO AND CAROL LILLO v. W. GERALD

December 17, 1997

MICHAEL LILLO AND CAROL LILLO, APPELLANTS
v.
W. GERALD MOORE AND KAY EBY MOORE



Appeal from the Order entered March 11, 1997. In the Court of Common Pleas of Chester County, Civil No. 92-05280. Before SUGERMAN, J.

Before: Cirillo, P.j.e., and Eakin and Olszewski, JJ. Opinion BY Cirillo, P.j.e. Olszewski, J., files a Concurring Opinion.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

Filed December 17, 1997

Michael and Carol Lillo appeal from the order entered in the Court of Common Pleas of Chester County denying their petition for injunctive relief. We affirm.

In 1958, REM Construction Company (REM) purchased land bordering the western side of Brandywine Street in the Borough of West Chester (the Borough), Chester County and extending east to the border of property owned by John and Ruth Chatley (the Chatleys). After acquiring this land, REM sought, and was granted, approval by the Borough, to subdivide the land for a subdivision called "Mayfield Gardens Section Two" (Gardens 2). The Gardens 2 plan provided for a future street (the street extension) fifty feet in width extending eastward from Brandywine Street and ending at the Chatleys' property. *fn1 Subsequently, REM sold lots eighteen and nineteen that were located north and south of the street extension. In 1960, REM granted by deed the Chatleys a right of way for ingress and egress from the Chatleys' property to Brandywine Street. In June of 1977, the Chatleys conveyed by deed a 13,179 square foot parcel of land to the Lillos. The Lillos' property bordered lot eighteen on the west and the Chatleys' remaining property on the east. During the summer of the following year, the Lillos and the Chatleys agreed to excavate and construct a right of way from Brandywine Street to their respective properties for purposes of ingress and egress. In October of 1987, the Chatleys conveyed by deed the remaining portion of their property to W. Gerald and Kay Eby Moore (the Moores). The Moores subsequently sought to develop and did develop a portion of their property into a townhome community, consisting of five townhomes (Mayfield). Meanwhile, during April of 1990, James Boswell, the owner of lot eighteen, conveyed by quitclaim deed his right, title, and interest in the southeastern portion of the street extension to Carol Luanne Baker, the Lillos' daughter, who subsequently conveyed this land to the Lillos. *fn2

The Moores sought to further develop their property and as part of that further development, sought to install curbs, as well as grade and pave a twenty-two foot wide portion of the street extension. In response, the Lillos filed the instant action seeking injunctive relief, asserting that they possessed fee title to the southern portion of the street extension. The trial court sitting in equity issued a preliminary injunction against further improvements on the street extension. After conducting an extensive hearing, however, the trial court issued a decree nisi concluding that because the street extension was accepted as a public street, the Lillos could not possess title and thus the Moores were entitled to improve the entire street extension. In so concluding, the trial court first explained that the street extension was offered for dedication in the Gardens 2 subdivision plan in 1957. The trial court then noted that the Borough formally accepted the dedication of the street extension as a public street by Resolution 1-68 on January 2, 1968. The trial court further stated that the street extension was opened to public use during the summer of 1978 when the Lillos and the Chatleys obtained curb permits from the Borough and paved the area where the street extension intersects with Brandywine Street. The trial court concluded, therefore, that because the street extension was opened to public use within twenty-one years of being laid out, the street extension was a public street. Exceptions were filed and denied. This appeal followed. The Lillos present the following issues for our consideration:

Whether a way can be deemed open for public use under the Borough Code merely because the public could have used it?

Whether the public status of the driveway was at issue?

Whether the Borough was an indispensable party if the public status of the driveway was at issue.

Preliminarily, we note that appellate review of an equity matter is limited to a determination of whether the chancellor committed an error of law or an abuse of discretion. Soderberg v. Weisel, 455 Pa. Super. 158, 687 A.2d 839 (1997); Marchetti v. Karpowick, 446 Pa. Super. 509, 667 A.2d 724 (1995). The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Soderberg, (supra) ; Hostetter v. Hoover, 378 Pa. Super. 1, 547 A.2d 1247 (1988). However, "Conclusions of law or fact, being derived from nothing more than the chancellor's reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable." Sprankle v. Burns, 450 Pa. Super. 319, , 675 A.2d 1287, 1288 (1996) (quoting Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa. Super. 526, 534, 423 A.2d 370, 375 (1980)).

The Lillos contend that the trial court erred in concluding that the street extension was a public street and, thus, subject to an easement for public use. *fn3 Specifically, the Lillos assert that not only was there never actual acceptance of the street extension as a public street, but that even if there had been acceptance, the street was never opened for public use.

It is the act of acceptance of a dedicated parcel of land which makes the dedication complete. In re Keifer, 430 Pa. 491, 243 A.2d 336 (1968); Tri City Broadcasting v. Howell, 429 Pa. 424, 240 A.2d 556 (1968); Boyer v. Baker, 196 Pa. Super. 405, 175 A.2d 143 (1961). Acceptance of an offer of dedication may be express or implied. See Wensel v. North Versailles Twp., 136 Pa. Super. 485, 7 A.2d 590 (1939). Thus, when a governmental entity definitively acts regarding an offer of dedication, such as adoption of an ordinance or passing a resolution, the action is generally sufficient to manifest the intent to accept the dedication. Tri City, 429 Pa. at 426, 240 A.2d at 558; Borough of Milford v. Burnett, 288 Pa. 434, 136 A. 669 (1927). See Burger v. Rockhill Builders, Inc., 278 Pa. Super. 430, 420 A.2d 616 (1980) ("any unequivocal authoritative acts by the public authority establishes acceptance of the offer of dedication") (citation and quotation omitted).

Mere formal acceptance of the dedication of a street (or other area for that matter) that exists only on paper does not, however, render the accepted area (street, sidewalk, etc.) "public." In re Petition of Wynn, 188 Pa. Super. 499, 149 A.2d 149 (1959); Borough of Lehighton v. Katz, 75 Pa. Commw. 388, 462 A.2d 889 (1983). Rather, under such circumstances, offer and ...


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