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HomeMy WebLinkAbout98-480 civilJOSEPH A. TURRI, Plaintiff VS. JOHN F. POVILAITIS and SUSAN T. POVILAITIS, husband and wife, Defendants · IN THE COURT OF COMMON PLEAS OF ' CUMBERLAND COUNTY, PENNSYLVANIA 98-480 CIVIL CIVIL ACTION- LAW I~N RE: NONJURY TRIAL VERDICT AND NOW, this ~ "~ day of April, 2001, after hearing and careful consideration of the testimony adduced, the court finds in favor of the defendants and against the plaintiff. The · claims for ejectment and for damages are DENIED. The request of the defendants for counsel fees is DENIED. BY THE COURT, Mark Duffle, Esquire For the Plaintiff Ron Turo, Esquire For the Defendants :rlm JOSEPH A. TURRI, Plaintiff VS. JOHN F. POVILAITIS and SUSAN T. POVILAITIS, husband · and wife, . Defendants . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-480 CIVIL CIVIL ACTION- LAW IN RE: NONJURY TRIAL FINDINGS AND VERDICT The plaintiff and defendants each own a lot in the borough of Camp Hill, which lots abut at the rear of each respectively. The defendants pUrchased their home in 1994 with the understanding that their lot included an undedicated and never opened grassy area which was originally laid out as an alley. At various times after the Povilaitises moved in, the plaintiff entered onto this "alley" at one point to park a car and at another to store a rowboat. The defendants then decided to place a fence in line with the end of their neighbors' properties. The plaintiff then filed this action in ejectment seeking removal of the fence or, in the alternative, damages, contending that the fence encroached on a twelve-foot public alleyway preventing his lawful access. Stipulated facts concerning title to ~the two tracts of land have helped to narrow the issues in this case. Stipulated to include the following. 1. The plaintiff is an adult individual residing at 201 Runson Road, Camp Hill, Cumberland County, Pennsylvania 17011. The plaintiff and Corethia M. Turri, his ex-wife, acquired this residence by deed dated June 14, 1957 and recorded in the office of the Recorder of 98-0480 CIVIL Deeds in and for Cumberland County on June 18, 1957. Corethia M. Turri conveyed her interest in the property to the plaintiff by deed dated August 6, 1973. 2. The defendants reside at 200 N. 33ra Street, Camp Hill, Cumberland County, Pennsylvania 17011. The defendants acquired title to their property by deed dated July 6, 1994. 3. Paul A. Bradigan and Elizabeth K. Bradigan, husband and wife, were the predecessors in interest to 200 N. 33ra Street. They conveyed their property to the defendants on July 6, 1994. The Bradigans acquired title to 200 N. 33~a Street from Walter E. Knippel and Corinne N. Knippel by deed dated April 5, 1971. 4. The defendants' property was originally subdivided by the Plan of Lots of Belvoir, recorded in Cumberland County Plan Book 1, Page 16, and dated June 27, 1906. 5. On the Plan of Lots, the defendants' property is identified as lots 134, 135, 136, 13 7, 138 and the southern five feet of lot 139. 6. The defendants' property was resubdivided on a plan of resubdivision of lots 134 through 150 and fifteen feet of lot 151, dated July 21, 1961, and recorded in Plan Book 12, Page 28 in the Office of the Recorder of Deeds in and for Cumberland County. The defendants' lot is identified as # 136A on said Plan of Resubdivision. 7. The defendants' property is also the subject of a Plan of Property for Paul A. and · · Elizabeth K. Bradigan dated April 21,1971. This plan is unrecorded. 8. The plaintiff's property was originally subdivided as lot #53 on a general plan of Hollywood Development. This plan was recorded in the Office of the Recorder of Deeds in and for Cumberland County on May 13, 1995, in Plan Book 7, Page 21. 98-0480 CIVIL 9. Both plaintiff's and defendants' properties abut was is identified as a twelve-foot alley at the rear of each of their respective properties. Logan Street borders each of the properties to the south. Runson Circle abuts the plaintiff's property to the west and North 33ra Street abuts the defendants' property to the east. 10. Title searches have revealed that the lands identified on the Plan of Belvoir and the lands identified on the Plan of Hollywood Development do not have a common grantor or, if in fact there was a common grantor, it predates the records of Cumberland County. 11. The twelve-foot alley laid out in the Plan of Belvoir and identified as an existing twelve-foot alley on the Plan of Hollywood Development lies entirely within the Plan of Belvoir. The stipulation goes on to indicate that the Borough of Camp Hill has identified the alley at issue on its borough street map as recently as 1978. It also identified the alley on its street and zoning map of October 2, 1956. The parties conceded that the alleyway in question was never, in fact, opened or accepted by the borough as a public road. Moreover, the alleyway was never part of the subdivision which includes the plaintiff's lot. Thus, the plaintiff has no rights with respect to the alleyway in . fee. The issue, as framed by the parties, is whether the plaintiff has a prescriptive easement with respect to the alleyway in question. An easement by prescription arises by actual, continuous, adverse, visible, notorious and hostile possession-of the property in question for a period of twenty-one years. Se.__~e ~Hash v. $ofinowski, 337 Pa. Super. 451,487 A.2d 32 (1985). As noted above, the Turris purchased their property in 1957. At that time and into the 1960s the "alley" was a small stream. The adjoining lots in the Belvoir tract were undeveloped. Eventually, drainage pipes were installed in the 98-0480 CIVIL stream and it was then that the area came to be used as an alley. At no point prior to 1971, however, had there been a twenty-one-year period during which the plaintiff maintained his use of the contested strip of land as a public alley. The question then becomes what was the nature of Mr. Turri's use of the alleyway from and after the time the Bradigans acquired title to 200 North 33ra Street. In this regard, we find the testimony of Mrs. Elizabeth Bradigan both credible and instructive. She described 'her property in 1971 as being an open field. When her home was constructed, the Bradigans planted their lawn up to the bank which marks the beginning of the backyard of Mr. Turri. They, in essence, considered the "alley" which is the subject of this litigation to be part of their backyard. This has been the position taken by all of the other neighbors in that portion of the Belvoir Development. As early as 1965, their neighbor, Richard Placey, who lives at 240 North 33ra Street, incorporated the alleyway into his backyard and driveway. In 1972, Mrs. Bradigan indicated to the Turris that their children could not longer ride motorized bicycles on the alleyway. Mrs. Bradigan indicated that while. Mr. Turri did occasionally have access to the rear of his yard by entering onto the former alleyway, it was always with the permission of the Bradigans. Mrs. Bradigan testified that there was, in any event, no regular usage of this area by Mr. Turri and that it was clear that the former alleyway had become part of the backyard of the Bradigans. We are satisfied, based on these factual findings, that the plaintiff has failed to establish the requisite elements of a prescriptive easement. The defendants in this case have countered with a claim for counsel fees. The right of a participant to receive counsel fees is governed by the Judicial Code at 42 Pa.C.S.A. 2503. A 98-0480 CIVIL participant may be awarded counsel fees where the conduct of another party in commencing a matter was "arbitrary, vexatious, or in bad faith." Id__.: at (9). It is not the intent of the rule permitting the recovery of counsel fees to penalize all of those who do not prevail in an action. Townshi ofS. Strabane v. Piecknick, 546 Pa. 551,686 A.2d 1297 (1996). Instead, the court must be in a position to identify specific conduct which was arbitrary, vexatious or in bad faith. Id__: Here it is agreed that the tract of land in dispute was originally laid out as a public alleyway. It was the position of the plaintiff that this status continues. While we have concluded that the plaintiff is incorrect in that regard, we cannot conclude that his efforts to enforce a right of access were arbitrary or designed to vex the defendants. Accordingly, we are compelled to conclude that an award of counsel fees is not appropriate in this case. VERDICT AND NOW, this z "J day of April, 2001, after hearing and careful consideration of the testimony adduced, the court finds in favor of the defendants and against the plaintiff. The claims for ejectment and for damages are DENIED. The request of the defendants for counsel fees is DENIED. BY THE COURT, Mark Duffle, Esquire For the Plaintiff Ron Turo, Esquire For the Defendants :rlm