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ALTMAN v. RYAN (10/09/69)

decided: October 9, 1969.

ALTMAN
v.
RYAN, APPELLANT



Appeal from decree of Court of Common Pleas of Chester County, No. 1986, in case of Ashley J. Altman and Sydney A. Altman, co-partners trading as Strafford Station Apartments v. Edward J. Ryan, trading as Ryan Express, et al.

COUNSEL

William L. McLaughlin, for appellant.

John S. Halsted, with him Gawthrop & Greenwood, for appellees.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen would modify the decree by restraining unreasonable noise. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Roberts

[ 435 Pa. Page 403]

Appellants operate a freight forwarding business under the name Ryan Express at a location which it has occupied since the Fall of 1967. From September, 1967, until December of the same year, all of the operations of the business were conducted during the daytime hours, but since that time nighttime loading has been carried out between the hours of 11 p.m. and 7 a.m. Appellees are owners of a garden apartment built in 1963 adjacent to appellants' freight forwarding operation. They filed a complaint in equity in May, 1968, alleging a nuisance arising out of appellants' nighttime operation.

A partial hearing was held on May 28 due to the fact that appellants' counsel had only been recently engaged. At that time nine of the residents of appellees' apartment building testified to the disturbing noises they heard during the night. At the continuation of the hearing on July 1 both the building superintendent and one owner testified as to the complaints which they had received from tenants. In addition, the owner indicated that several of the tenants had threatened to vacate if the noise was not stopped. At the close of the hearing a conference was held at which time it was agreed that appellants would follow certain procedures "to decrease and/or eliminate the noise and disturbance emanating [from] the operations

[ 435 Pa. Page 404]

    during normal sleeping hours. . . ." A decree to that effect was entered on July 15, 1968.

According to the chancellor, "we arrived at an agreement, and an order was entered pursuant to that agreement, with the understanding that if the situation would not seem to be corrected by the carrying out of the terms of the agreement, we would hear additional testimony if it was necessary." Therefore, because appellees alleged that the noises had continued during July and August, another hearing was held in early September at their request. Following this hearing, the court below entered a decree enjoining appellants' loading operation from the hours of 11 p.m. to 7 a.m. because "the evidence shows that the noise arises from an improper conduct of the business and that remedial measures to lessen the disturbance have not proved successful." Exceptions were taken and dismissed by the court en banc and this appeal followed.

Appellants' first contention on appeal is that there is insufficient evidence to support a finding of a nuisance by the court below. This argument seeks to attack the sufficiency of the evidence at the hearing held on May 28, the continued hearing of July 1, and the one held in early September. However, since this appeal is from the second decree, we need only examine the evidence introduced to support that determination of the chancellor. In so doing we must be mindful of the fact that the chancellor's findings of fact have the effect of a jury verdict when approved by the court en banc and adequately supported in the record. Albert v. Lehigh Coal & Navigation Co., 431 Pa. 600, 246 A.2d 840 (1968); Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968).

The court below in its findings of fact, found that "From November, 1967, continuing until the date of the hearing the activities on the premises of defendant[s] ...


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