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JAMES M. BURTON v. BOROUGH DORMONT (12/02/81)

decided: December 2, 1981.

JAMES M. BURTON, APPELLANT
v.
BOROUGH OF DORMONT, A MUNICIPAL CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of James M. Burton, an individual, v. Borough of Dormont, a municipal corporation, No. GD 80-06950.

COUNSEL

James M. Burton, Rosenzweig, Rosenzweig & Burton, for appellant.

Phillip D. Paull, for appellee.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Judge MacPhail.

Author: Palladino

[ 63 Pa. Commw. Page 44]

Appellant-homeowner appeals an order of the Court of Common Pleas of Allegheny County which sustained preliminary objections in the nature of a demurrer filed by Appellee-Borough of Dormont. We affirm the decision of the court of common pleas.

Appellant owns a garage with an ingress/egress on a twenty-foot wide street. Because the parking of motor vehicles is permitted all along the street, Appellant asserts that access to his garage is impeded and that the obstructive parking constitutes a nuisance.*fn1

In legal phraseology, the term 'nuisance' is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction

[ 63 Pa. Commw. Page 45]

    or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. . . .

Groff v. Borough of Sellersville, 12 Pa. Commonwealth Ct. 315, 318, 314 A.2d 328, 330 (1974) (quoting Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 381, 19 A.2d 362, 363 (1941)).

In his complaint in equity to abate and remove the alleged nuisance, Appellant states that "the [Appellee-Borough] has permitted and encouraged the blockage of access into and out of [Appellant's] garage" and that "[t]he aforesaid blockage, exists by virtue of the fact that the [Appellee-Borough] allows and encourages non-resident and resident parking on Mervin Avenue directly opposite [Appellant's] garage. . . ." Appellant further declares that he "has been greatly inconvenienced and caused to suffer emotional distress, loss of wages and costs of towing-away vehicles which block the garage entrance/exit."

Since preliminary objections in the nature of a demurrer "admit[s] as true all well pleaded facts in the . . . complaint"*fn2 and since Appellant's pleadings aver an interference with Appellant's right to enjoy his property, Appellant has successfully pleaded the existence of a nuisance in the instant case. However, Appellant's averments disclose that the subject nuisance about which Appellant complains, is created and maintained by private citizens whose street-parking hinders access to Appellant's garage. With respect to Appellee-Borough, Appellant's pleadings merely ...


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