J. A20031/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
PAMELA KOCH T/D/B/A : IN THE SUPERIOR COURT OF
STARVING MARVIN TACK STORE, : PENNSYLVANIA
:
Appellant :
:
v. : No. 53 MDA 2017
:
DEBORAH ANONIE :
Appeal from the Judgment Entered January 17, 2017,
in the Court of Common Pleas of Lycoming County
Civil Division at No. 16-0199
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2018
Pamela Koch t/d/b/a Starving Marvin Tack Store (“appellant”) appeals
from the January 17, 2017 judgment, entered in favor of Deborah Anonie
(“appellee”) and against appellant that denied removal of the encroachment
and ordered appellee to direct the runoff of water away from the boundary
line and onto appellee’s property and ordered appellee to stabilize an
embankment to prevent rocks and debris from falling.1 After careful review,
we affirm.
1 In the November 3, 2016 order, the Court of Common Pleas of Lycoming
County ordered and directed the boundary line between the parties’
properties to be that shown on the March 2, 2016 survey prepared by
Daniel A. Vassallo. The trial court also ordered that appellant shall have a
perpetual easement for the unlimited right to park in the first five parking
spaces from the left side of the motel as one faces the motel and shall be
granted the unlimited right to park along the arc in front of the motel and
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The trial court made the following relevant findings of fact and
conclusions of law:
1. In October of 2015, [appellee] sold property[2]
to [appellant].
2. The property is adjacent to [appellant’s]
property.
3. [Appellee] acquired [appellant’s] property and
her own adjacent property at the same time.
4. The motel existed prior to [appellee’s]
acquiring the properties and is estimated to
have been there since the 1970s.
5. Prior to the sale from [appellee] to [appellant],
[appellant] rented the property for over a year
and [a] half and ran two stores on it.
6. No survey was done prior to the sale.
7. A survey dated March 2, 2016 by Daniel A.
Vassallo shows the boundary line between the
[appellant] and [appellee’s] property.
8. The survey revealed that [appellee’s] motel
encroached on [appellant’s] land at 9.3’, 11.9’,
and 9.9’ adjacent to a drop-off at the edge of
[appellant’s] property.
9. Neither party was aware of the encroachment
prior to the March 2, 2016 survey.
ordered appellant to have the right to utilize the existing signage located on
Parcel 60-4-112 facing Route 220. The trial court also granted appellant a
right-of-way behind the rear of the motel for maintaining a propane tank
located on Parcel 60-4-111, subject, however, to appellant’s obligation to
repair any damage caused by appellant’s use of said right-of-way.
2 The property was located at 5828 State Route 220 HWY, Linden,
Pennsylvania 17744, in the municipality of Woodward in Lycoming County.
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10. The boundary line provided a windfall to
[appellant] as it was not known or considered
when setting the price for the property.
11. Had [appellee] been aware of the boundary
line, [appellee] would have required additional
money for the purchase of the property.
12. The motel is and was open, visible, permanent
and continuous at the time [appellant]
purchased her property.
13. The topography surrounding the encroachment
by the building renders the area of the
encroachment essentially useless to
[appellant].
14. Customers have access to [appellant’s]
buildings.
15. [Appellant] is not harmed by the
encroachment.
16. Encroachment was not willful.
17. [Appellee] operates a motel/efficiency rental
business on her property and receives income
from rental of the efficiency unit that is within
the portion of the building that encroaches on
[appellant’s] land.
18. [Appellee] would be irreparably harmed by
removing encroachment of the building.
19. [Appellee] repaired a leaking roof on the
encroaching motel for the efficiency unit
despite knowledge of the encroachment.
20. Water flows from the motel onto [appellant’s]
property, creating a concern for [appellant] as
to the stability of the embankment.
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21. Removal of the building would cause
irreparable harm to [appellee].
CONCLUSIONS OF LAW
22. The encroachment is “de minimis” in light of
the circumstances and equities of this case.
23. Equitable considerations in light of the
“de minimis” rule weigh against requiring
removal of the encroachment.
24. Equity and due care require [appellee] to direct
the runoff water away from the boundary line
and require [appellee] to stabilize the
embankment.
25. The encroachment is an implied easement
from prior use.
26. The existence of an implied easement from
prior use weighs against requiring the removal
of the encroachment.
27. [Appellant] is not harmed by the
encroachment.
28. [Appellee] would be irreparably harmed by
removing encroachment of the building.
Trial court opinion, 10/11/16 at 1-3 (citation to record omitted).
On October 20, 2016, appellant moved for post-trial relief. The trial
court denied the motion on December 14, 2016. Appellant filed a notice of
appeal on January 9, 2017. On January 10, 2017, the trial court ordered
appellant to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). Appellant complied with the order on
January 19, 2017. On March 3, 2017, the trial court, pursuant to
Pa.R.A.P. 1925(a), stated that its opinion and verdict of October 11, 2016,
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and its opinion and order of December 13, 2016, provided the reasoning of
the court with respect to the errors complained of on appeal.
Appellant raises the following issues for this court’s review:
1. Was there insufficient evidence or error of law
in the trial court’s determination that the
encroachment was “de minimis” and therefore
acceptable?
2. Was there insufficient evidence or error of law
in the trial court’s determination that the
encroachment was an “apparent easement”
and therefore acceptable?
3. Was there insufficient evidence or error [of]
law in the trial court’s decision to replace
“removal” with a direction to stabilize and plan
stormwater management for the edge of the
encroachment?
Appellant’s brief at 3.
Appellate review of equity matters, including injunction proceedings, is
limited to a determination of whether the trial court committed an error of
law or abused its discretion. Robbins v. Kristofic, 643 A.2d 1079, 1082
(Pa.Super. 1994), allocatur denied, 651 A.2d 541 (Pa. 1994).
Initially, appellant contends that there was insufficient evidence and/or
the commission of an error of law in finding the encroachment to be
“de minimis.” Appellant argues that the trial court’s determination that she
was not harmed by the encroachment is in error because she pays taxes on
land, which she cannot use, and the encroachment causes erosion and storm
water problems on her property.
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Appellant described some photographs at trial as follows:
You can tell where the bank is and the erosion,
where the spouting came down and that the bank is
really steep and it’s all dirt and everything and it was
erosion [sic] into the warehouse at the time. And
you can see where she added a roof on not long ago
and that was on the part this encroachment.
Notes of testimony, 9/28/16 at 12. Concerning another photograph,
appellant remarked,
Yes, this shows where at the time she had the roof
being built and it has a steep bank. And it shows
where the dirt – you can see on the right side
towards the warehouse where it’s all fresh dirt
coming down in the water easing into the
warehouse.
Id. Appellant explained that the embankment eroded every time it rained.
(Id. at 14.) Appellant also worried that blocks that hold up the portion of
the motel that encroaches on her property would come down and bring the
motel with it. (Id. at 14-15.) However, on cross-examination, appellant
admitted that she had no idea how close the drop-off was to the motel
building itself. (Id. at 21.)
In Yeakel v. Driscoll, 467 A.2d 1342 (Pa.Super. 1983), this court
explained the de minimis doctrine in a case where a recently constructed
fire-wall between two pieces of property extended two inches over the actual
property line:
The heart of the instant action concerns the
application of the doctrine of “de minimus” to this
case. The doctrine is set forth in the maxim,
“de minimus non curat lex” which means that the
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law will not concern itself with trifles. More
specifically it means that a court will not grant
equitable relief to a plaintiff who seeks a decree
which will do him no good but which will work a
hardship on another. Bristol-Myers Co. v.
Lit Brothers, Inc., 336 Pa. 81, 6 A.2d 843 (1939).
As discussed above, the court found no nexus
between the plaintiff’s water problems and the
defendant’s fire wall. Thus, the removal of the fire
wall from the two inches of plaintiff’s property will
not correct her water problem. Nor will the removal
of the wall improve her security as the plaintiff’s son
has constructed a new cellar door in place of the old
one. Thus, the only benefit to be gained by the
plaintiff is to preserve her exclusivity to her two
inches of property by forcing defendant to remove
the fire wall from its present location. The City
Codes of Allentown require the construction of a fire
wall in such circumstances to protect property
owners on both sides of the wall from a potential fire
on the other side. Thus, we find that the court below
did not commit reversible error when it weighed the
equities involved in the case and decided that the
removal or relocation of the wall (if that was
possible) would do plaintiff no good and would work
a hardship on another. The new wall replaced an old
wall that had always been there. The new wall
protects plaintiff, as well as[] defendants. Such a
wall was required by the City. Under these
circumstances we find that the Chancellor did not err
when he ruled that a two inch encroachment for a
distance of twelve feet was subject to the
“de minimus” maxim. Because of our disposition of
this case we need not consider plaintiff’s other
allegations of error.
Yeakel, 467 A.2d at 1344.
Here, the record reflects that the alleged encroachment caused some
harm to appellant, and the trial court sitting in equity granted her relief by
requiring appellee to correct the water runoff and erosion issue. However,
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appellee testified that the room of the motel that encroaches on appellant’s
property was her “number one” efficiency room for which she charged $800
per month. (Notes of testimony, 9/28/16 at 25-26.) While there is evidence
that the encroachment harms appellant by way of some erosion and water
runoff onto her property, the loss of a potential $800 per month of rental
income would cause great harm to appellee. The trial court did not err or
abuse its discretion when it determined that the encroachment was
de minimis and granted appellant relief on the erosion issue.3
Appellant next contends that there was insufficient evidence and/or an
error of law when the trial court found that the encroachment was an implied
easement. Appellant asserts that all decisions that affirmed an implied
easement have interpreted an “open and visible” requirement to mean
visible and recognizable as an easement such as a lane of traffic or a sewer
line with visible manhole covers. (Appellant’s brief at 13.)
3 As part of this argument, appellant asserts that the trial court’s Findings of
Fact 16 and 18 are unsupported by any evidence in the record. Finding of
Fact 16 states that the encroachment was not willful. Appellee testified that
she had no knowledge of any alleged encroachment before the
commencement of this action. (Notes of testimony, 9/28/16 at 31-32.) This
statement supports that the encroachment was not willful. Further, appellee
was the owner of both parcels of land prior to the sale to appellant.
With respect to Finding of Fact 18, which states that appellee would be
irreparably harmed by the removal of the encroachment of the building, we
have already addressed her loss of income, which would be a significant
loss.
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The record reflects that appellee owned both properties for
approximately 30 years and that there had been no additions to the motel
during that time. (Notes of testimony, 9/28/16 at 24.) Therefore, the
encroaching portion of the motel had existed in its current location for
approximately 30 years before appellant filed her complaint. Appellant
rented the property for approximately one and one-half years before
purchasing it. (Id. at 17.) Nothing in the record suggests that appellee
concealed the presence of the encroachment.
In Bucciarelli v. DeLisa, 691 A.2d 446 (Pa. 1997), the Pennsylvania
Supreme Court addressed the issue of an implied easement and laid out the
traditional test for an implied easement at severance of title:
[W]here an owner of land subjects part of it to an
open, visible, permanent and continuous servitude or
easement in favor of another part and then aliens
either, the purchaser takes subject to the burden or
the benefit as the case may be, and this irrespective
of whether or not the easement constituted a
necessary right of way.
Id. at 449, quoting Burns Manufacturing v. Boehm, 356 A.2d 763, 767
(Pa. 1976).
Here, the portion of the motel that encroached on appellant’s property
was open, visible, permanent, and continuous for at least 30 years.
Appellee owned both parcels and sold one to appellant. The trial court found
that appellee severed her property to sell part of it to appellant. The trial
court further concluded, “[t]he reasonable inference is that the parties
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intended the motel to continue in existence after the sale, particularly
because neither party was aware of the encroachment. As such, the Court
concludes that [appellant] purchased the property subject to the
encroachment.” (Opinion and verdict, 10/12/16 at 5.)
Although appellant is correct that the cases tend to involve roads or
sewer lines, she cites no case law to indicate that the portion of the motel
could not fall into the same category as an implied easement. When
appellant purchased the property, she did not expect that she would own the
property where the motel encroaches because neither party knew the
correct boundary line. Given the continuous use of the motel, this court
finds no error or abuse of discretion on the part of the trial court.
Next, appellant contends that the trial court’s conclusion that the
offending destabilization, effects of erosion, and storm water trespass could
be cured without removal of the encroaching structure was without any
evidence to support it and was error. (Appellant’s brief at 14.) Appellant
acknowledges that the trial court realized that there was an erosion and
storm water management problem when it ordered appellee to direct runoff
water away from the boundary line and onto appellee’s land and to stabilize
the embankment to prevent rocks and debris from falling. However,
appellant contends that the court erred when it did not order the requested
removal of the encroaching portion of the motel and return control of that
land to appellant.
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When considering a mandatory injunction to remove a portion of a
building, a court must consider the equities of the whole case. In cases
involving requests for mandatory injunctions, a court of equity will deny a
request for the removal of a building or structure extending over a boundary
line by a minimal distance and encroaching upon adjoining realty, where the
expense, difficulty, and hardship of removal of the building would place a
disproportionate burden on the owner of the encroaching structure. Tioga
Coal Co. v. Supermarkets General Corp., 589 A.2d 242, 245 (Pa.Super.
1991).
Here, there was no allegation that the encroachment was tortious or in
bad faith. Appellant testified that storm water was washing “fresh” dirt onto
her property from the embankment near the encroachment. (Notes of
testimony, 9/28/16 at 12.) She also testified that she was concerned that
the blocks upon which the encroaching structure was placed would give way
and at some time in the future would fall onto her property. (Id. at 14-15.)
The trial court balanced the harm that has been visited upon appellant
versus the harm that appellee would suffer, if the encroaching structure was
removed. Appellant has not incurred much in the way of damages. It is
also speculative to consider what might or might not happen with the blocks
in the future. On the other hand, appellee would definitely suffer a loss of
income, if she lost the opportunity to rent the room that is contained in the
encroaching structure. Upon review, we find that the trial court did not
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commit an error of law or an abuse of discretion when it ordered appellee to
direct the runoff water away from the boundary line and onto appellee’s
property and to stabilize the embankment to prevent rocks and debris from
falling.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2018
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