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FOOD FAIR STORES v. KLINE. (07/02/59)

July 2, 1959

FOOD FAIR STORES, INC., APPELLANT,
v.
KLINE.



Appeals, Nos. 19, 20, 21, 22, 23, 24, 25 and 26, May T., 1959, from decree of Court of Common Pleas of Dauphin County, No. 2269 Equity Docket, in case of Food Fair Stores, Inc. v. Josiah W. Kline et al. Decree affirmed; reargument refused September 9, 1959. Equity. Adjudication filed dismissing complaint and decree entered for all defendants, opinion by SOHN, J. Plaintiff appealed.

COUNSEL

Arthur Berman, with him Samuel Handler, and Compton, Handler, Berman & Boswell, for appellant.

Bernard G. Segal, with him Josephine H. Klein, Arthur J. Sullivan, and Schnader, Harrison, Segal & Lewis, and Hurwitz, Klein, Meyers & Benjamin, and Earnest and Torchia, and McNees, Wallace & Nurick, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 396 Pa. Page 398]

OPINION BY MR. JUSTICE BOK

This action began with a complaint in equity and ended when preliminary objections were sustained. In such event the case must be clear and free from doubt: Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955). And we think it is.

Defendant Kline owned sixteen acres of land of rectangular shape, about four times as long as broad, and running in its longer dimension from west to east. Its one contiguous access street, Twenty-fifth Street in Harrisburg, runs along its western edge.

Defendant Kline conveyed to the Kline Foundation the western half of his sixteen acres on which he had built a long rectangular building surrounded by a parking area. The eastern end of this building was leased to plaintiff. The parking area and a place for another building extended east, from the eastern edge of the land conveyed to the Foundation, so that the total land developed equaled about two-thirds of the sixteen acres. The rest of it, still to the east, remained undeveloped until defendant Kline leased part of it to defendant, Penn Fruit Company and the placement and perquisites of the latter's building are the basis of this case.

The developed area, two-thirds of the whole, is called Schedule B, of which the part not deeded to the Foundation is called the Annex, and the whole tract of sixteen acres is called Schedule A.

The Penn Fruit building, with a concrete apron on its western side, was so canted that the southwest corner and most of the apron are west of what the maps in evidence show as the eastern boundary of Schedule B. Hence it extends into the Annex. The distance between

[ 396 Pa. Page 399]

    the nearest points of the plaintiff's and Penn Fruit's buildings is over two hundred feet. The figures of the encroachment are that its total, including apron and building, is 3968 square feet, ...


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