Viscarello, R. & L. v. Elliott, T.

• Court: Superior Court of Pennsylvania
• Decided: November 25, 2015
• Docket: 801 MDA 2014
• Status: Unpublished

Opinion

J. A03043/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROGER C. VISCARELLO & : IN THE SUPERIOR COURT OF LAURA A. VISCARELLO, H/W : PENNSYLVANIA : Appellants : : v. : : THOMAS M. ELLIOTT, CRAIG A. : BRENNAN AND KELLY A. ELLIOTT : : : No. 801 MDA 2014

Appeal from the Judgment Entered April 4, 2014 In the Court of Common Pleas of Bradford County Civil Division No(s).: 2011 EQ 000377

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.: FILED NOVEMBER 25, 2015

I respectfully dissent. In my view, under the particular circumstances

of this case, I would find that the license to use the roadway to access the

hunting cabin became irrevocable under the rules of estoppel. See Morning

Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.

Super. 2000). The record established that Appellee Elliott gave Appellants

permission to use the disputed roadway. Appellee Elliott was aware of the

cabin construction and did work in connection with the construction. It is

undisputed that Appellee Elliott knew that a significant investment was being

* Former Justice specially assigned to the Superior Court. J. A03043/15

made by Appellants. “[A] license to do something on the licensor’s land

when followed by the expenditure of money on the faith of it, is irrevocable .

. . .” Id. at 144 (citation omitted). Appellee Elliott’s permission cannot be

recalled to Appellants’ detriment. See id.

Appellee Brennan was aware of the fact that Appellee Elliott had given

Appellants permission to use the roadway prior to the time he acquired co-

ownership in Appellee Elliott’s property. “[S]uccessors-in-title take subject

to an irrevocable license if they had notice of the license before the

purchase.” Id. (citation omitted). Thus, I would hold that Appellee

Brennan’s interest in the property is subject to the irrevocable license. See

id. Therefore, I would find the trial court erred as a matter of law in denying

Appellants’ request for a permanent injunction compelling Appellees to allow

them the use of the roadway to access their hunting cabin.

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