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VENTRESCA v. VENTRESCA. (11/13/56)

November 13, 1956

VENTRESCA, APPELLANT,
v.
VENTRESCA.



Appeal, No. 134, Oct. T., 1956, from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1950, No. 6033, in case of Dominic Ventresca v. Erminio Ventresca and Filomena Ventresca. Decree reversed.

COUNSEL

Frederick C. Fiechter, Jr., with him Maurice Freedman and Freeman, Fox & Fiechter, for appellant.

Daniel Sherman, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Ervin

[ 182 Pa. Super. Page 249]

OPINION BY ERVIN, J.

The lower court confined to damages the remedy for a deliberate violation of a deed restriction which prohibited the erection of any building within five feet of the side lines of a lot. The defendants built a garage approximately three feet four inches from the side line which divided plaintiff's and defendants' properties. The plaintiff appealed.

The lower court found that soon after the excavation for the garage was visible the plaintiff made oral protests and objections to the defendants and on various occasions thereafter repeated his objections; that the garage was substantially completed before April 22, 1952 and that on April 22, 1952, plaintiff's attorney sent a written notice to the defendants notifying them to move the garage back beyond five feet from the dividing line as it violated the restrictive covenants. The suit for a mandatory injunction was commenced May 7, 1952. The defendants' answer and the evidence they introduced at the trial raised the defense of laches. The

[ 182 Pa. Super. Page 250]

    trial judge, in his adjudication, found that "Plaintiff is not entitled to a mandatory injunction in that he may properly be charged with laches." He also found that the infringement by the defendants of the restrictive covenant was wilful. In the decree nisi plaintiff's complaint seeking a mandatory injunction was dismissed. Plaintiff excepted to the failure of the lower court to find his 6th conclusion of law, which was as follows: "6. The garage erected by defendants is in violation of the restrictions as aforesaid and must be removed or moved so that it will stand at least 5 feet from the property line."

After argument the court in banc disposed of, inter alia, the above exception as follows: "Plaintiff's exceptions to conclusion of law No. 2, paragraph 1 of the Decree Nisi and for the Chancellor's failure to find Plaintiff's requested findings of fact Nos. 8 and 11, and requested conclusions of law Nos. 4, 5 and 6 are sustained insofar as they establish that Plaintiff was not guilty of laches but are dismissed insofar as they establish Plaintiff's right for a mandatory injunction."

The lower court also granted leave to plaintiff to file an amended complaint for damages and a right to defendants to answer, and further said: "... after which the case may be ordered on the equity trial list for further hearing on the question of damages alone."

The defendants' contention that the appeal is premature and that the order of the lower court was interlocutory is without merit. The cases which are cited are not in point. In Korona v. Bensalem Twp., 385 Pa. 283, 122 A.2d 688, there was no hearing on the merits nor was there an adjudication by the trial judge and a disposition by the court in banc of the exceptions filed thereto. ...


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