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DAVID H. KUBERT v. FIDELITY BANK (11/22/76)

decided: November 22, 1976.

DAVID H. KUBERT, APPELLANT,
v.
THE FIDELITY BANK, APPELLEE, AND THE CITY OF PHILADELPHIA



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Equity Division, at No. 4923, June Term, 1975. (Trial Div., Law) No. 740 October Term, 1976.

COUNSEL

David H. Kubert, inpropria persona, Philadelphia, for appellant.

James Charles Dobbs, Philadelphia, with him Arthur R. Littleton, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 245 Pa. Super. Page 62]

On June 26, 1975, the appellant filed a complaint in equity alleging that the appellee, The Fidelity Bank (Bank), had created a public nuisance by parking its vehicles on the public sidewalk on the south side of Sansom Street between Juniper and Broad Streets in Philadelphia. On July 21, 1975, the Bank filed preliminary objections to the appellant's complaint, averring that the complaint did not state a valid cause of action upon which relief could be granted. Specifically, the Bank claimed that the appellant failed to allege facts to demonstrate that he had suffered any injury beyond that which was suffered by the general public.

On July 31, 1975, the appellant responded to the Bank's preliminary objections by filing an amended complaint

[ 245 Pa. Super. Page 63]

    in which he abandoned his claim that the Bank had created a public nuisance by obstructing the public sidewalk, alleging instead that the Bank's actions had infringed his constitutional right to travel. The appellant complained that he was forced to walk in the gutter of Sansom Street in order to proceed and that he was subjected to possible harm from both the noxious fumes emanating from the vehicles and the slippery droppings of gasoline, grease, and oil. The Bank again objected that the appellant did not state a valid cause of action upon which relief could be granted. The additional defendant, the City of Philadelphia, similarly objected.

On December 10, 1975, a hearing was held by the lower court on the preliminary objections. At this hearing, the appellant informed the lower court that he had recently become aware of the Act of May 3, 1927, P.L. 515, § 1 (17 P.S. § 305), which provides that the lower court may abate encroachments on public sidewalks upon the complaint of a private citizen, regardless of any special injury to that citizen, if written notice of the encroachment has been given the municipality by or on behalf of such citizen and the municipality has failed to act within thirty days of receiving such notice,*fn1 and requested leave

[ 245 Pa. Super. Page 64]

    to amend his complaint to demonstrate compliance with the provisions of the statute.*fn2

On December 15, 1975, the lower court dismissed the appellant's amended complaint in equity for failure to state a cause of action upon which relief could be granted. The lower court did not grant the appellant leave to amend his complaint. We believe that the appellant should have been allowed to show that he had complied with the provisions of the Act of May 3, 1927, P.L. 515, § 1 (17 P.S. § 305). We therefore reverse the order ...


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