No. 1144 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 78-11924.
William J. Murray, Pittsburgh, for appellants.
Michael J. Seymour, Pittsburgh, for appellees.
Cercone, President Judge and Brosky and Hoffman, JJ.
[ 295 Pa. Super. Page 123]
This is an appeal from an order of the court en banc denying appellants' exceptions and making final the chancellor's decree nisi. We now reverse and remand for proceedings below not inconsistent with this opinion.
Appellants own a lot in Brentwood, Allegheny County, on which they had built a house. Appellees are the neighboring landowners, whose land lies approximately fifteen feet higher than appellants. Appellants filed a complaint in equity alleging damage to their property from large rocks, water and debris said to have come from appellees' lot. They sought either an injunction from the alleged damage or the chancellor's permission to enter upon appellees' land to rectify the alleged source of the harm, i.e. a steep grade at the property line. The original chancellor, then a common pleas judge now a Justice on the Pennsylvania Supreme Court, Justice John P. Flaherty, granted a rule to show cause why a preliminary injunction should not issue and set a time for a hearing on the matter. Appellees filed no responsive pleading but appeared at the hearing with counsel. The chancellor viewed the property, took testimony and admitted evidence while at the site. Before the chancellor could adjudicate the matter he ascended to the Pennsylvania Supreme Court. A year and a half after the hearing, Judge Papadakos ordered the parties to file briefs prior to the case's reassignment. Both sides filed briefs on January 16, 1980. Appellants contended in their brief that the court
[ 295 Pa. Super. Page 124]
should order the case reassigned to permit a different chancellor to conduct a view and hearing similar to the one held earlier by now Justice Flaherty. Also on January 16, 1980, appellees filed their answer, new matter and counterclaim to appellants' complaint of May 24, 1978. Appellants answered the new matter and counterclaim on January 28, 1980, denying all the allegations contained therein and demanding strict proof at trial. Although the new chancellor, Judge Papadakos, did hear oral arguments he refused to rehear the case. In the opinion accompanying the decree nisi the chancellor stated the following:
The new chancellor went on to make findings of fact and conclusions of law and to enter a decree nisi denying appellants the relief they sought and granting appellees the relief they sought under the counterclaim. Appellants filed exceptions contending inter alia that the chancellor had erred in deciding the case on the record and briefs, and should have held a rehearing before making findings of fact and entering the decree nisi. The exceptions were denied and the decree nisi made final. This appeal followed.*fn1
It is clear from the state of the pleadings alone that the chancellor erred in concluding that the record before him was complete. When the hearing before the Judge, now Justice, Flaherty was held June 2, 1978 the court had before it only appellants' complaint in equity. At the time of the
[ 295 Pa. Super. Page 125]
hearing the appellees had not filed a counterclaim. Entirely lacking from the record, therefore, is any evidence as to the extent of damage to appellees' property later alleged in their counterclaim. Certainly it could not accurately ...