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CARL E. KEMBEL v. EDWIN D. SCHLEGEL (05/25/84)

filed: May 25, 1984.

CARL E. KEMBEL, HELGA KEMBEL, JERRY D. HASSINGER, DIANE M. HASSINGER, PAUL C. NACE AND KATHRYN H. NACE, APPELLANTS,
v.
EDWIN D. SCHLEGEL, DAVID L. SCHLEGEL, VERA G. SCHLEGEL AND HEGINS VALLEY LINES, A CORPORATION



No. 356 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 3918.

COUNSEL

Jordan D. Cunningham, Harrisburg, for appellants.

Daniel L. Sullivan, Harrisburg, for appellees.

Wickersham, Del Sole and Montemuro, JJ.

Author: Wickersham

[ 329 Pa. Super. Page 162]

Plaintiffs-appellants appeal from the order of the Court of Common Pleas of Dauphin County refusing to enjoin defendants-appellees from operating a transportation business on certain land owned by appellees. Appellants allege that appellees' business violates restrictions in appellees' deed, that it constitutes a nuisance, and that appellants have sustained monetary damage as a result of appellees' business.

The trial court found that in 1950, appellees' father, Raymond Schlegel, constructed a cement building on Lot 47 of the land in question, which he used as a garage to house buses and mail trucks. From that time to the present, this building has been used to park, maintain, and repair buses and trucks used by the Schlegels in their bus transportation and mail delivery business. In 1958, Raymond Schlegel and his wife acquired Lots 44, 45, and 46, which were and are used for the parking of buses, trucks, and automobiles of patrons and employees. In 1963, Raymond Schlegel formed a partnership with his sons, Edwin and David, known as Schlegel Transportation Company (the Company). In the same year, the Company acquired certain common carrier rights from the Pennsylvania Public Utility Commission. Between 1965 and 1970, a shelter for the housing of buses was constructed on the northern side of the cement block building previously constructed on Lot No. 47. This shelter partially extends onto Lots 44, 45, and 46. By 1972, the Company had acquired three (3) diesel powered vehicles. From June 1972 to the time of the hearings, the Company*fn1 has owned between five (5) and eight (8) diesel powered vehicles. During 1979 and 1980, the Company instituted

[ 329 Pa. Super. Page 163]

    various commuter routes to and from the city of Harrisburg. Some of these services were requested by Dauphin County Human Services.

Appellants Carl and Helga Kembel acquired property near the site of the Schlegel Transportation Company in 1959 and 1960. They constructed a residence on this land in 1962. This land is not located within the same plan of lots as the lots upon which appellees' business is conducted.

Appellants Jerry and Diane Hassinger acquired their residence, which is constructed on Lot 42 of the same plan of lots as appellees' business, in 1972.

Appellants Paul and Kathryn Nace acquired their residence, which is constructed on Lot 41 of the same plan of lots as appellees' business, in 1962.

The demands of appellees' business, especially the common carrier concern, has required the Company to operate, repair, maintain, and prepare the motor vehicles during late evening and early morning hours, both on weekdays and weekends.

With the exception of periodic complaints from the [appellant] Carl Kembel concerning slight tire damage to the bank located on the western side of his property, and occasional complaints from Kembel concerning noise, the [appellees'] business has been conducted on Lots. Nos. 44, 45, [46] and 47 . . . without interference from any [appellant] or other individual from 1950 as to Lot No. 47 and 1958 as to Lots. Nos. 44, 45 and 46, and no legal action or other legal proceeding has been instituted by any individual to limit or remove the [appellees'] business until the instant lawsuit was instituted.

Lower ct. op., 10-22-81, at 11.

On October 11, 1979, appellants filed this action in equity alleging that appellees had breached the restrictive covenants in their deed and seeking to enjoin appellees' operations on the basis of an alleged nuisance. Appellants sought to enjoin appellees from conducting any type of business on any of the lots in ...


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