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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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