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Hionis v. Concord Township

May 11, 2009

ALEXANDER HIONIS, GENERAL PARTNER TRADING AS THE A. HIONIS FAMILY LIMITED PARTNERSHIP, APPELLANTS
v.
CONCORD TOWNSHIP, DELAWARE COUNTY, PIO'S SON REALTY, LLC, GENERAL PARTNER TRADING AS J'S MVP REALTY, L.P., 1100 BALTIMORE PIKE, LLC GENERAL PARTNER, TRADING AS CROSSWORD CENTER L.P., BRANDYWINE EAST, LLC GENERAL PARTNER, TRADING AS BRANDYWINE EAST, L.P.



The opinion of the court was delivered by: Judge Leavitt

Argued: February 24, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.

OPINION

Alexander Hionis, General Partner, T/A The A. Hionis Family Limited Partnership (Hionis) appeals an order of the Court of Common Pleas of Delaware County (trial court) sustaining defendants' preliminary objections and granting Hionis twenty days to file an amended complaint. Defendant, Concord Township, has moved to quash Hionis' appeal on the theory that the trial court's order was not a final and appealable order. We agree and quash the appeal.

This controversy initiated with a preliminary land development plan that Hionis submitted to the Township for commercial development of its 5.17-acre property (Property). The Property fronts on Route 202, but Hionis needs additional access to Applied Card Drive, another public road, in order to complete its intended development. A private road, known as Golden Gate Drive, connects the Property to Applied Card Drive. This road lies on land owned by Pio's Son Realty, LLC, T/A J's MVP Realty, L.P. (MVP Realty).

The Township informed Hionis that MVP Realty had granted the Township an easement to use Golden Gate Drive. This easement was required as a condition to the Township's approval of MVP Realty's land development plan, and it stated as follows:

Increase width of easement from new loop road to the west property from 25' to 50' and easement to be provided for access and utility easement in favor of Township and easement agreement subject to Township approval.

Amended Complaint

¶17. In addition, the Township's Zoning Officer, its Engineer and members of the Board of Supervisors informed Hionis that Golden Gate Drive would provide Hionis the access it needed to develop the Property. In May 2005, Hionis' representatives met with Township officials and requested that the Township accept dedication of Golden Gate Drive; Township officials assured Hionis that they would do so. However, Golden Gate Drive remains a private road.

On September 6, 2005, the Township granted Hionis final land development approval, subject to 10 conditions. Condition 4 provides:

The proposed road (to be known as "Golden Gate Drive") shall run from the Hionis property to Applied Card Drive crossing the rear of the Crossroads Center and providing access and egress thereto and must be completed to the satisfaction of the Township Engineer prior to the issuance of any Certificates of Occupancy.

Amended Complaint ¶¶24, 25; Exhibit E; Reproduced Record at 73a-74a, 105a. Despite repeated requests from Hionis, the Township has refused either to accept dedication of the 50' wide access and utility easement on which Golden Gate Drive is located or to take any action to compel MVP Realty to offer same for dedication.

On January 23, 2008, Hionis filed a two-count complaint against the Township to compel the dedication of Golden Gate Drive, thereby making it a public road. In response, the Township filed preliminary objections on grounds that the complaint failed to join an indispensable party; failed to state a cause of action; and that, in any case, the Township was statutorily immune from suit. Hionis then filed an amended complaint that was essentially the same as the first complaint except that it added new parties as defendants. Specifically, the amended complaint named the following persons as additional defendants: MVP Realty; 1100 Baltimore Pike, LLC T/A Crossroads Center L.P. (Crossroads Center); and Brandywine East, LLC T/A Brandywine East, L.P. (Brandywine). Each additional defendant owns land adjacent to the Property.

In Count I of its amended complaint, Hionis asserts that the Township is estopped from refusing to accept the dedication of Golden Gate Drive or, in the absence of an offer of dedication, from refusing to take appropriate action against MVP Realty to acquire the access and utility easement. In Count II, Hionis asserts that the Township has violated Hionis' rights under the Pennsylvania Constitution by coercing Hionis into paying MVP Realty a substantial sum of money for the privilege of using Golden Gate Drive. The Township filed preliminary objections to the amended complaint asserting, inter alia, that Hionis failed to state a cause of action and that, in ...


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