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HARFORD PENN-CANN SERVICE v. GERALD P. ZYMBLOSKY AND RITA ZYMBLOSKY (06/21/88)

submitted: June 21, 1988.

HARFORD PENN-CANN SERVICE, INC.
v.
GERALD P. ZYMBLOSKY AND RITA ZYMBLOSKY, HIS WIFE, WILLIAM JACKSON AND WILLIAM J. DEMPSEY. APPEAL OF WILLIAM JACKSON AND WILLIAM DEMPSEY



Appeal from the Order entered on July 29, 1987, in the Court of Common Pleas of Susquehanna County, Civil Division, at No. 1986-406 CP.

COUNSEL

Matthew Dempsey, Scranton, for appellants.

Michael M. Goss, Philadelphia, for Harford Penn-Cann, appellee.

Ralph P. Carey, Scranton, for Zymblosky, appellees.

Montemuro, Beck and Popovich, JJ.

Author: Beck

[ 378 Pa. Super. Page 580]

Defendants/appellants William Jackson and William Dempsey operate a gas station and truck stop under the name of "Harford 65." Plaintiff/appellee Harford-Penn Cann Service operates a gas station, restaurant, and truck wash directly across the highway from Harford 65. Appellee filed a complaint contending that dust from Harford 65 was blowing onto appellee's property, to the detriment of appellee's business, and asking for equitable relief. The trial court, after a hearing, issued the following order:

NOW TO WIT, this 27th day of July, 1987, this Court enjoins the Defendants and the Additional Defendants, their respective successors or assigns from using the leased premises as a gas station, truck stop, and from conducting any business or operation giving rise to the dust and dirt from their lands to the Plaintiff.

The Sheriff of Susquehanna County is directed to enforce this order, and if necessary, he can seize and impound any vehicles on the Defendant's land adding to this dust problem.

This timely appeal followed.*fn1

Appellants first contend that the trial court erred in its finding of fact that the dust created health problems for appellee's customers and employees and caused appellee to lose business. Appellants next contend that the trial court erred in its conclusion of law that appellants were liable for creating a continuing nuisance. They claim that, except for one occasion, the dust blowing onto appellee's property was

[ 378 Pa. Super. Page 581]

    caused not by their activities but by the activities of defendants Gerald and Rita Zymblosky conducted on an adjacent property. Appellants also contend that, even if caused by their own activities, the dust did not create the significant harm necessary for a finding that a nuisance exists. Finally, appellants claim that the injunction is vague and ...


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