No. 2545 Phila., 1981, Appeal from the Order of August 31, 1981, in the Court of Common Pleas of Lehigh County, Civil, at No. 79-E-180.
F. Laubner, Allentown, for appellant.
Malcolm J. Gross, Allentown, for appellees.
Brosky, McEwen and Watkins, JJ. Brosky, J., files a dissenting opinion.
[ 321 Pa. Super. Page 240]
This case comes to us on appeal from the Court of Common Pleas of Lehigh County, Civil Division, and involves plaintiff-appellant's appeal of an order of court which dismissed her Complaint in Equity. The Chancellor's decision was affirmed by the Court en banc after which plaintiff took this appeal.
Plaintiff and defendants were owners of adjoining parcels of real estate in the City of Allentown. Each party owned one-half of a double home located adjacent to one another. The double home was constructed during the 1930's and contains a party wall separating the two homes together with rear porches which were separated by a cinder block wall. Having made plans to enclose their rear porch for energy conservation purposes, the defendants obtained the requisite building permit from the City of Allentown. The building permit required defendants to use a fire wall for that portion of the enclosure separating their property from that of the plaintiff. Two courses of decayed cinder block in the cinder block wall also had to be replaced. The fire wall between the properties was constructed by erecting it upon the cinder block wall which had previously existed between the rear porches. The work had commenced on August 30, 1979.
On September 6, 1979 plaintiff wrote a letter to a local newspaper complaining about the appearance of defendants' work. On September 25, 1979 plaintiff's attorney wrote to defendant complaining of their actions. By this
[ 321 Pa. Super. Page 241]
time work on the wall had been completed. On October 30, 1979, the plaintiff filed her Complaint in Equity against the defendants alleging that the new fire wall encroached several inches onto her property and requesting the court to order the defendants to refrain from entering onto her property, to remove the wall, and, to enjoin defendants from interfering in any way with the plaintiffs' use and occupancy of her property. After the defendants filed a timely Answer and New Matter to the Complaint and the plaintiff filed a Reply, the matter was heard by the court below on April 23, 1980. The hearing included a visit to the premises of the parties' by the Chancellor. Both parties agreed to the visit.
The Chancellor found that the defendant, John Driscoll, had discussed his plans with plaintiff's son prior to commencing the work. Plaintiff's son had owned plaintiff's property from 1972 until 1976 when he conveyed it to plaintiff. Defendants did not know that he was not the present owner. The plaintiff's son resided in plaintiff's home with her. The Chancellor also found that although defendants did remove a wooden frame or lip attached to the old cinder block wall which had provided support for a door of plaintiff's covering the steps at the rear exterior entrance to her basement, that defendant John Driscoll had obtained the approval of plaintiff's son to do so. He also found that plaintiff's son then extended plaintiff's rear porch and constructed a cover and locking door at the rear exterior entrance to her basement and same were secured by attaching them to defendants' concrete block wall. The Chancellor also held that the outer edge of defendants' new fire wall extended onto plaintiff's property for a distance of two inches on a skew approximately twelve (12) feet long from a point at the rear wall of plaintiff's dwelling to another point on the property line. The construction was in conformity with all City Codes. The Chancellor then went on to find that defendants' encroachment of a width of two (2) inches for twelve (12) feet constituted a "de minimus" or trivial one, applied the principal of "De minimus non curat
[ 321 Pa. Super. Page 242]
Lex" to the case, and dismissed the plaintiff's complaint. ...