No. 1504 October Term, 1979, Nos. 522,523 Philadelphia, 1980, Appeal from the Orders of the Court of Common Pleas, Civil Division, of Carbon County, No. 46 September Term, 1976.
Roger N. Nanovic, Jim Thorpe, for appellant.
Paul R. Mazzoni, Scranton, submitted a brief on behalf of Hughes, appellees.
Merton E. Jones, Wilkes-Barre, for Pron, appellees.
Linda Wallach Miller, Mount Pocono, for Smith, appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 286 Pa. Super. Page 422]
On July 14, 1976, appellees Robert and Anne Hughes brought this ejectment action against appellees Stephen and Margaret Pron in the Court of Common Pleas, Carbon County. The Hughes' alleged, and eventually proved at trial, that in 1966-7, the Prons had mistakenly erected a house on the Hughes' property in a large development known as Lake Harmony Estates in the Pocono Mountain area. Following an unsuccessful attempt to settle the property dispute themselves, the Hughes filed suit against the Prons, who joined appellant Yamulla Trucking and Excavating Co., Inc., the owner of the Lake Harmony Estates, as an additional defendant. The Prons alleged that the house was mistakenly built upon the Hughes' land because of the negligence of Yamulla's agent, one Macalush, who had assured the Prons that the residence was being constructed on the right lot. Yamulla demanded a jury trial and joined as an additional defendant the building contractor, appellee Clark Smith, averring that it was Smith's negligence which caused the errant building.
The case came on for trial before the court below without a jury and on May 1, 1979, the following occurred: in the case of Hughes v. Pron, the court found in favor of the Hughes and ordered the Prons to remove the encroachment from the Hughes' lot and to pay to the Hughes the amount of $40.00 per month for loss of mesne profits from July 14, 1970 to the date of removal of the house. The court then ordered that the two cases of Pron v. Yamulla and Yamulla v. Smith be severed from Hughes v. Pron and tried together
[ 286 Pa. Super. Page 423]
at a later date "in furtherance of convenience." See Pa.R.C.P. 213(b). Yamulla filed exception to the non-jury decision in Hughes v. Pron, which exceptions were dismissed by the court. Yamulla appealed that order to this Court at No. 522, Philadelphia, 1980. At approximately the same time, Yamulla moved for summary judgment and requested leave to file an amended answer with new matter. Both motions were denied and Yamulla appealed to our Court at No. 1504 October Term, 1979.
The cases of Pron v. Yamulla and Yamulla v. Clark proceeded to trial before a jury on June 28-9, 1979. Verdicts were returned against Yamulla in both actions. Yamulla's motion for a new trial and judgment n. o. v. were denied and an appeal was taken at No. 523 Philadelphia, 1980. All three of ...