J. A16041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

631 NORTH BROAD STREET LP,              :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :          No. 378 EDA 2018
                                        :
CONGREGATION RODEPH SHALOM              :


          Appeal from the Judgment Entered December 28, 2017,
           in the Court of Common Pleas of Philadelphia County
              Civil Division at No. April Term, 2016 No. 02632


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 09, 2019

      631 North Broad Street, LP (“631 N. Broad”) appeals from the

December 28, 2017 judgment dismissing its actions for declaratory relief and

quiet title and entering judgment in favor of Congregation Rodeph Shalom

(“CRS”) in this longstanding dispute over the parties’ respective rights to a

party wall (hereinafter, “South Wall”) that straddles the property line

separating their two lots.    The December 28, 2017 judgment declared,

inter alia, that CRS was the legal owner of a portion of the South Wall and

that 631 N. Broad is permanently enjoined from demolishing the South Wall,

either completely or partially, without its consent.1 After careful review, we

affirm.


1 The December 28, 2017 judgment also dismissed CRS’s counterclaims.
(Final judgment order, 12/28/17 at 1-2, ¶¶ 3-7.)
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      The trial court summarized the relevant facts and underlying procedural

history of this case as follows:

            1.    [631 N. Broad] is a Pennsylvania limited
                  partnership that owns real property located at
                  631 North Broad Street in Philadelphia.

            2.    [CRS] owns real property at 619 North Broad
                  Street. This property is immediately south and
                  adjacent to 631 North Broad Street.

            3.    [631 N. Broad] is redeveloping a brick structure
                  that has occupied their lot on North Broad Street
                  since the 1860s. Plans involve converting the
                  existing building into residences while also
                  preserving some historical portions of the
                  building, primarily its original exterior brick
                  walls. As part of its plan, [631 N. Broad] seeks
                  to demolish a portion of the South Wall of the
                  existing structure to open up light and air for
                  several proposed apartments.        These living
                  spaces must be set back ten feet from the
                  property line to comply with City of Philadelphia
                  building codes. Without the partial demolition,
                  windows of several proposed apartments as
                  designed by [631 N. Broad’s] architect would
                  face a closed brick wall ten feet away.

            4.    However, the South Wall lies directly over a
                  property line separating both litigants’ real
                  estate. The South Wall extends approximately
                  five inches over [CRS’s] 619 North Broad Street
                  property lot.

            5.    The structure located at 631 North Broad was
                  originally built to be a stable. It is unknown
                  exactly when the stable was built, but we find
                  construction took place during the Civil War era
                  in the 1860’s or years close in time either before
                  or after the War. During this period, a relevant
                  party wall statute allowed for the construction
                  of party walls up to 6½ inches over a property
                  boundary.


                                     -2-
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          6.   Sometime after the stable was constructed, a
               commercial bakery was built at the 619 North
               Broad Street property. It is unknown when the
               bakery’s construction took place, but it is clear
               the bakery was in operation during the first half
               of the 20th Century. The bakery and the stable
               were physically attached along the South Wall
               until the bakery was demolished sometime in
               1949 or 1950. After the bakery’s demolition,
               the South Wall remained attached to the stable
               building. From the 1950s through the present
               time, no building on the 619 North Broad Street
               lot has physically adjoined the South Wall.

          7.   The South Wall as it exists today is three stories
               high and approximately 17 inches thick;
               approximately 5 inches of the wall are over the
               619 North Broad Street side of the property line.
               It is unknown who originally constructed the
               South Wall but the evidence shows the
               South Wall was built to be used as a single
               structure---with a part of the South Wall over
               the 619 North Broad Street property line. The
               components of the South Wall were constructed
               at the same time and for use as a single wall.

          8.   [CRS] purchased 619 North Broad Street in
               2009. At that time, the former stable on the
               property at 631 North Broad Street was being
               used as an art gallery and was not owned by
               [631 N. Broad]. Today, there is a one story
               building located on [CRS’s] 619 North Broad
               Street lot and this building was used until
               recently as an early learning center for young
               children. The building is not used today for this
               purpose and children now attend classes at
               [CRS’s] main building across Mt. Vernon Street.
               [CRS] moved the children out of the building on
               619 North Broad Street for reasons that we find
               are not related to [631 N. Broad’s] proposed
               plans for the South Wall.




                                  -3-
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           9.    This existing one story building on the lot at
                 619 North Broad Street is separated from the
                 South Wall by an alleyway.

           10.   In 2011, the South Wall required repair due to
                 falling brick and masonry. A dispute took place
                 between       [CRS]     and    [631 N. Broad’s]
                 predecessor owner of the 631 North Broad
                 Street property. Neither wanted to pay for the
                 repairs and a lawsuit ensued. This included
                 pleadings by [CRS] denying ownership and
                 responsibility for the South Wall. However, the
                 litigation was settled and [CRS] paid $350,000
                 to masonry contractors to fix the South Wall’s
                 brickwork. This included adding new meshwork
                 and a layer of stucco.

           11.   After [631 N. Broad] introduced its plans for the
                 631 North Broad Street property to community
                 and zoning authorities, [CRS] did not give
                 consent to [631 N. Broad] for demolition of the
                 South Wall, partial or complete.

           12.   Ultimately[,] the dispute led to legal action on
                 two fronts. The first was this case, filed by
                 [631 N. Broad] in the Commerce Court[2] to
                 quiet title and for issuance of a declaratory
                 judgment. Later, [CRS] sought injunctive relief
                 in this court to block demolition while this
                 lawsuit remains pending. The second track
                 involved zoning litigation in Philadelphia’s
                 Zoning Board of Adjustment (“ZBA”). On appeal
                 to Common Pleas Court by [CRS] from an
                 adverse decision by the ZBA, the zoning issues
                 were      ultimately  decided    in   favor   of
                 [631 N. Broad] by this court and are not in
                 litigation now.

2 The Commerce Court “is a specialized civil program of the Trial Division of
the Philadelphia County Court of Common Pleas” that handles commercial and
business disputes that are not subject to the Compulsory Arbitration Program
in the Court of Common Pleas of Philadelphia County. See Gior G.P., Inc. v.
Waterfront Square Reef, LLC,           A.3d     , 2019 WL 178004, at *4 n.7
(Pa.Comm.Ct. January 14, 2019) (citation to website omitted).


                                    -4-
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            13.   After the zoning issues were decided in favor of
                  [631 N. Broad], [the trial court] granted [a]
                  preliminary injunction in favor of [CRS] to stay
                  a demolition permit issued to [631 N. Broad] by
                  Philadelphia’s Department of Licenses and
                  Inspection to take down the South Wall. The
                  preliminary injunction was explained in a
                  Memorandum Order dated March 1, 2017.

            14.   We find that if this court is reversed,
                  [631 N. Broad’s] demolition plans comply with
                  Philadelphia’s Department of Licenses and
                  Inspections requirements to take the South Wall
                  down safely, either partially or completely.

Trial court’s “Findings of Fact and Conclusions of Law upon Completion of Trial

Evidence,” 10/30/17 at 1-4 (footnotes omitted).

      The remaining procedural history of this case, as gleaned from the

certified record, is as follows.   On April 22, 2016, 631 N. Broad filed a

complaint in equity against CRS that sought a declaratory judgment that it

was the owner of the South Wall and, therefore, possessed a legal right to

demolish it, as well as an action to quiet title. On May 24, 2016, CRS filed an

answer and new matter, alleging a number of counterclaims that are not

presently before this court. Thereafter, on November 17, 2016, CRS filed a

motion for a preliminary injunction to prevent 631 N. Broad from demolishing

the South Wall and utilizing its property for any construction activities.

Following hearings on December 2 and 21, 2016, the trial court granted a

preliminary injunction in favor of CRS and enjoined 631 N. Broad from




                                     -5-
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demolishing the South Wall without CRS’s consent.3 (See trial court order,

3/1/17 at ¶ 2.) In a separate order entered that same day, the trial court

denied both counts of 631 N. Broad’s complaint.4 On May 2, 2017, CRS filed

a motion to withdraw its counterclaims and requested entry of a final order

that included a permanent injunction.

      Following a September 25, 2017 bench trial, the trial court entered an

order on October 30, 2017 permanently enjoining 631 N. Broad “from

demolishing any portion of the party wall between the properties located at

619 and 631 North Broad Street without the consent of [CRS].” (Permanent

injunction order, 10/30/17 at ¶ 1 (footnote omitted; emphasis added).) That

same day, the trial court issued findings of fact and conclusions of law in

support of its October 30, 2017 order. (See “Findings of Fact and Conclusions

of Law upon Completion of Trial Evidence,” 10/30/17.) On November 9, 2017,

631 N. Broad filed post-trial motions, which were denied by the trial court on

December 28, 2017. That same day, the trial court entered final judgment in

favor of CRS, incorporating and adopting by reference its October 30, 2017




3 The record reflects that 631 N. Broad appealed the trial court’s entry of the
preliminary injunction order in favor of CRS. On April 20, 2018, a panel of
this court granted CRS’s motion to quash the appeal as moot because the trial
court subsequently entered a final, permanent injunction based on a merits
review of the same substantive issues raised in the preliminary injunction.
See 631 North Broad Street, LP v. Congregation Rodef Shalom, 190
A.3d 727 (Pa.Super. 2018) (unpublished memorandum at *1-4).

4631 N. Broad appealed this order on March 24, 2017, but later withdrew its
appeal.


                                     -6-
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findings of fact and concussions of law. (See final judgment order, 12/28/17

at 1 n.1).

      Read in relevant part, the trial court’s final judgment order included the

following: (1) a declaration that “[CRS] is the legal owner of a portion of the

South Wall, and [631 N. Broad] may not demolish the South Wall, in its

entirety or partially, absent agreement or otherwise by the property owner

of 619 North Broad Street, its assigns, heirs and successors[;]” and (2) a quiet

title determination that CRS is “the owner, in fee simple, of a portion of the

South Wall on 619 North Broad Street” and that CRS, “as the property owner

of 619 North Broad Street . . . ha[s] easement rights for use of the South Wall

as a party wall.” (Id. at 1, ¶¶ 1-2 (emphasis added).) 631 N. Broad filed a

timely notice of appeal on January 25, 2018.5

      631 N. Broad raises the following four issues for our review:

             1.   Does CRS possess an ownership interest in a
                  portion of the subject wall that prevents
                  [631 N. Broad] from modifying the subject wall,
                  partially or in its entirety, without CRS’[s]
                  agreement where CRS did not build the wall and
                  has not used it to support an attached building
                  in almost 70 years?

             2.   Did CRS (or its predecessors-in interest)
                  abandon any rights in the subject wall by:
                  (a) failing to use the wall to support an attached
                  building for almost 70 years; and (b) keeping
                  the area immediately adjacent to the wall


5The trial court did not order 631 N. Broad to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On February 28,
2018, the trial court filed its Rule 1925(a) opinion.


                                      -7-
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                    vacant so it could be used as a driveway and
                    later a playground?

              3.    May a trial court issue a preliminary injunction
                    without hearing relevant evidence on all
                    essential elements?

              4.    May a trial court condition a party’s right to
                    introduce relevant evidence at trial on whether
                    the party withdraws appeals of the trial court’s
                    rulings entered in connection with a preliminary
                    injunction hearing?

631 N. Broad’s brief at 7.

        Prior to addressing the merits of 631 N. Broad’s claims, we must

address CRS’s contention at oral argument that 631 N. Broad’s appeal is

moot.     Following oral argument, this court directed the parties to submit

supplemental briefs to address this issue. (See per curiam order, 7/25/18.)

The parties complied on August 15 and 26, 2018, respectively.

        “As a general rule, an actual case or controversy must exist at all stages

of the judicial process, or a case will be dismissed as moot.” Warmkessel v.

Heffner, 17 A.3d 408, 412 (Pa.Super. 2011) (citation omitted), appeal

denied, 34 A.3d 833 (Pa. 2011). Our supreme court has summarized the

mootness doctrine as follows:

              [C]ases presenting mootness problems involve
              litigants who clearly had standing to sue at the outset
              of the litigation. The problems arise from events
              occurring after the lawsuit has gotten under way—
              changes in the facts or in the law—which allegedly
              deprive the litigant of the necessary stake in the
              outcome. The mootness doctrine requires that an
              actual case or controversy must be extant at all stages



                                       -8-
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            of review, not merely at the time the complaint is
            filed.

William Penn Sch. Dist. v. Pennsylvania Dep’t of Educ., 170 A.3d 414,

435 n.33 (Pa. 2017) (citations omitted).

            The concept of mootness focuses on a change that has
            occurred during the length of the legal proceedings.
            If an event occurs that renders impossible the grant
            of the requested relief, the issue is moot and the
            appeal is subject to dismissal.

Warmkessel, 17 A.3d at 413 (citations and internal quotation marks

omitted).

      Here, CRS contends that it has no interest, economic or otherwise, in

the South Wall, and thus, no stake in the outcome of the instant litigation

because it sold the 619 North Broad Street property to KFA Investment LLC

(“KFA”) on November 8, 2017, during the pendency of this action.

(CRS’s supplemental brief at 6-10.) CRS further avers that 631 N. Broad’s

appeal is moot because 631 N. Broad entered into an agreement with KFA on

May 8, 2018 that allowed it to remove a portion of the South Wall. (Id.)

      Relying, in part, on this court’s decision in in Jefferson Bank v.

Newton Assocs., 686 A.2d 834 (Pa.Super. 1996),6 631 N. Broad counters




6  Jefferson involved an owner of condominium units who claimed that the
condominium association’s appeal was moot because he had transferred the
title of the units to third parties. Jefferson, 686 A.2d at 837-838. The
Jefferson court concluded that the unilateral act of transferring title to a third
party will not automatically render an appeal moot because Pennsylvania
courts “have never held that an adverse party may create mootness through
deliberate factual manipulation.” Id. at 838.


                                      -9-
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that CRS’s unilateral sale of 619 North Broad Street to a third party did not

render its appeal moot.         (631 N. Broad’s supplemental brief at 5.)

631 N. Broad further contends that its removal of a portion of the South Wall

pursuant to an agreement with KFA does not render its appeal moot because

“the challenged decisions relate to the entire South Wall, a substantial portion

of which remains standing[,]” and “the present dispute over title to and rights

in the remainder of the South Wall presents a continuing controversy.” (Id.

at 3, 8-10 (emphasis added).) Additionally, 631 N. Broad avers that “[a] live

controversy . . . exists with respect to the challenged injunction because that

injunction continues in effect, preventing [631 N. Broad] from demolishing

‘any portion’ of the South Wall without the consent of the 619 Property

owner.” (Id. at 3-4.) 631 N. Broad notes that the modification agreement

specifically provides that it only applies to the portion of the wall that was

demolished and does not act as a limitation on the rights of ownership and

control that 631 N. Broad believes it possesses and are at issue in this appeal.

(Id. at 12.)

      Upon review, we are not persuaded by CRS’s contention that

631 N. Broad’s appeal is moot.     CRS did not simply render 631 N. Broad’s

appeal moot by transferring ownership to KFA. Furthermore, the fact that

631 N. Broad entered into a modification agreement with KFA to remove a

portion of the South Wall does not render its appeal moot because a

continuing controversy still exists with respect to the remaining portion of the



                                     - 10 -
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South Wall that is enjoined from being demolished. See, e.g., Warmkessel,

17 A.3d at 412. 631 N. Broad, as owner of one of the two properties which

border the South Wall, clearly has a “necessary stake in the outcome” of this

litigation because it remains subject to the permanent injunction precluding it

from modifying the remaining portion of the South Wall without consent of

619 N. Broad Street’s property owner, KFA. See William Penn Sch. Dist.,

170 A.3d at 435 n.33. However, to the extent 631 N. Broad’s claims concern

CRS’s ownership interest and/or alleged abandonment of its rights in the

South Wall (see 631 N. Broad’s brief at 35-42), we find that these claims have

been rendered moot by the fact that CRS no longer has any ownership interest

in 619 N. Broad Street property.       We now turn now to the merits of

631 N. Broad’s remaining claims.7



A.    Grant of a Permanent Injunction

      We begin by addressing 631 N. Broad’s claim that the trial court erred

in entering judgment in favor of CRS following the grant of a permanent

injunction in the underlying equity action. (631 N. Broad’s brief at 25.)

      Our scope and standard of review in assessing whether a trial court

erred in granting a permanent injunction is well settled. When an appellate

court reviews the grant of a permanent injunction, its scope of review is




7 For the ease of our discussion, we have elected to address 631 N. Broad’s
claims in a slightly different order than presented in its appellate brief.


                                    - 11 -
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plenary. Kuznik v. Westmoreland County Bd. of Comm'rs, 902 A.2d 476,

489 (Pa. 2006). The grant or denial of a permanent injunction is a question

of law. Buffalo Township v. Jones, 813 A.2d 659, 663-664 (Pa. 2002),

cert. denied, 540 U.S. 821 (2003). Thus, our standard of review is de novo

and our inquiry concerns whether the trial court’s legal determination that the

plaintiff established a clear right to relief, as a matter of law, was proper.

Seven Springs Farm, Inc. v. Croker, 801 A .2d 1212, 1216 n.1 (Pa. 2002),

affirmed, 801 A.2d 1212 (Pa. 2002).           “To be entitled to a permanent

injunction, a party must establish a clear right to relief, and must have no

adequate remedy at law, i.e., damages will not compensate for the injury.

Unlike a preliminary injunction, a permanent injunction does not require proof

of immediate irreparable harm.”      Liberty Place Retail Assocs., L.P. v.

Israelite Sch. of Universal Practical Knowledge, et al., 102 A.3d 501,

506 (Pa.Super. 2014) (internal citations omitted).

      Here, the trial court set forth the following reasoning in support of its

decision to grant a permanent injunction in this matter:

            A permanent injunction is appropriate because there
            is no adequate redress at law for [631 N. Broad’s]
            proposed demolition, partial or total, of the party wall.
            Demolition would prevent [CRS] from complete
            enjoyment of its property right. This may include
            using the party wall for support or fire protection for
            a structure in the future. It is not possible for a court
            to assess specific monetary damages for the many
            types of repercussions of a demolition conducted
            without the other party’s consent. Assessing such
            damages is speculative because there are multiple
            factors dependent on how [CRS] or a successor buyer


                                     - 12 -
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              uses the property. These variables are unknown and
              may include the cost of delay if the demolition of the
              party wall causes future zoning litigation over what
              may be built, and where, on the 619 North Broad
              Street lot. This potential for delay relates to whether
              zoning or other approvals will be necessary if the party
              wall is demolished and the owner of 619 North Broad
              Street then wants to build a structure that may impact
              [631 N. Broad’s] planned condominiums which are
              below the height of the existing party wall.

Permanent injunction order, 10/30/17 at ¶ 1 n.1.

         Upon review, and for the reasons discussed more fully below, we discern

no error of law in the trial court’s conclusion that there existed “no adequate

remedy at law” for 631 N. Broad’s proposed demolition. Liberty Place Retail

Assocs., L.P., 102 A.3d at 506.         The trial court’s grant of a permanent

injunction in this matter was entirely appropriate.



B.       Declaration that the South Wall Constituted a Party Wall

         631 N. Broad contends that the trial court erred in declaring that the

South Wall constituted a party wall, a determination that serves as a

foundation upon which the trial court’s grant of permanent injunctive relief

rests.    (See 631 N. Broad’s brief at 26-34.)     In support of its contention,

631 N. Broad first argues that the record does not support the trial court’s

factual finding that “[i]t is unknown who originally constructed the

South Wall[.]” (Id. at 26-28; see also “Findings of Fact and Conclusions of

Law upon Completion of Trial Evidence,” 10/30/17 at 2, no. 7.) 631 N. Broad

avers that the South Wall was erected in conjunction with the stable


                                       - 13 -
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constructed on 631 North Broad Street property in 1866. (Id. at 12-13.) The

record belies this contention.

      It is well settled that “in all equity matters . . . we must accept the trial

court’s factual findings and give them the weight of a jury verdict where they

are supported by competent evidence.” Thomas A. Robinson Family Ltd.

P'ship v. Bioni, 178 A.3d 839, 843 (Pa.Super. 2017) (citation omitted),

appeal denied, 194 A.3d 560 (Pa. 2018).

              In Buffalo Township, [813 A.2d at 664 n.4], our
              Supreme Court clarified that the appellate standard of
              review of decisions granting or denying a permanent
              injunction is for an error of law.         The [Buffalo
              Township] court, however, did not discard the
              longstanding principle that an appellate court must
              generally defer to a trial court’s factual findings. See
              id. at 647 n.7 (“In reviewing fact-laden decisions, an
              appellate court displays a high level of deference to
              the trial court as the fact finder.”).

Liberty Place Retail Assocs., L.P., 102 A.3d at 506 n.4 (citation formatting

corrected).

      Here, we find that the evidence            of record does not support

631 N. Broad’s claim that the party wall was built at the time that the stable

was constructed. During the December 2, 2016 hearing, CRS presented the

testimony of Dr. Wing Chong Au (“Dr. Au”), an expert in the field of civil

structural engineering.     (Notes of testimony, 12/2/16 at 42-45.)         Dr. Au

testified that his review of an atlas map from 1860 depicting the 631 North

Broad Street and 619 North Broad Street properties reveals that the

South Wall existed before the construction of the stable in 1866:


                                       - 14 -
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            A.    The line to me is a party wall going from Broad
                  Street all the way to Pemberton Street, and it
                  shows on both sides of this building. It looks
                  like there are row houses in this area, and this
                  party wall is separating the building on the north
                  side and also the building on the south side.

Id. at 48-49.

      631 N. Broad next argues that because its predecessor in title

constructed the South Wall, Pennsylvania law dictates that it owns the wall

and the trial court erred as a matter of law in concluding that it was enjoined

from demolishing it.    (631 N. Broad’s brief at 26-31, 35.)     Based on this

contention, 631 N. Broad maintains that the trial court’s determination that

the South Wall constituted a party wall is erroneous. (Id. at 26.) Again, we

disagree.

      In the instant matter, the trial court set forth the following “conclusions

of law” in support of its October 30, 2017 permanent injunction order:

            17.   We conclude [CRS] prevails on the merits on
                  declaratory judgment and in quiet title because
                  the South Wall is a party wall which [CRS] owns
                  in part and [631 N. Broad] owns in part. No
                  owner may make an opening on a party wall
                  without the other owner’s consent.

            18.   The South Wall partially lies on [CRS’s] side of
                  the property line, a fact agreed by stipulation.
                  For many years up to the demolition of the
                  bakery in 1949 or 1950, the South Wall
                  supported buildings belonging to owners on
                  both sides of the property line.

            19.   Since acquiring ownership of the 619 North
                  Broad Street lot, [CRS] has not abandoned its



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                rights to the wall as demonstrated by its repair
                of the South Wall in 2011.

          20.   [631 N. Broad] argues that it is entitled to quiet
                title and declaratory judgment on grounds that
                [CRS] has no property interest in the
                South Wall. [631 N. Broad] posits two grounds
                for its position. First is its claim that the
                South Wall is not a party wall. Second is its
                claim that even if the South Wall is a party wall,
                [CRS] has no remaining interest because the
                South Wall is no longer used for its original
                purpose. [631 N. Broad] argues the party wall
                belongs either to the property owner whose
                predecessor originally built the wall or to the
                owner of the surviving building when the
                adjoining building has been destroyed. None of
                these points is correct.

          21.   In reaching our conclusion, we first look to our
                own Commerce Court precedent.                    As
                U.S. District Judge C. Darnell Jones, II
                summarized when he served on Commerce
                Court, “A party wall sits between adjoining
                properties. Each property is servient to the
                service of the other with respect to the property
                wall. The primary factor in determining whether
                a wall is a party wall is the intent of the builder.
                Other factors include the wall’s location with
                reference to the boundary line between
                adjoining properties . . . the understanding of
                the adjoining owners at the time it was built,
                and its use for a long number of years.”

          22.   Ordinarily, a party wall is constructed upon the
                division line, and each adjoining lot owner has
                an easement on his neighbor’s premises to
                assure the support and any other particular use
                that is made of the party wall. “It is not
                necessary that such a wall be used to support
                the roof or floors of both buildings. It is enough
                that the wall be used as a curtain wall,
                protecting the buildings from the elements and
                protecting the spread of fire.”


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          23.   The situation presented here raises the question
                what happens to the status of a party wall after
                its ordinary party wall uses are no longer
                applicable because of the demolition of one of
                the attached buildings?

          24.   Evidence established the South Wall was built
                as a party wall in accordance with relevant
                Pennsylvania     statutes  and     Philadelphia
                ordinances authorizing builders to encroach
                over property lines when building party walls.
                Photo evidence also established actual use of
                the South Wall as a party wall for many years
                connecting the bakery and the stable. After the
                bakery was demolished, the South Wall was left
                standing and no evidence shows any of the
                subsequent 619 North Broad Street owners sold
                or otherwise devised their interest in the
                South Wall or the land on which the party wall
                lies.

          25.   Upon review, we conclude the South Wall
                remains a party wall today, even though it is
                presently not used for ordinary party wall
                purposes. We are persuaded that despite its
                lapsed use for ordinary party wall purposes, the
                wall lies over [CRS’s] property line and [CRS]
                has not abandoned its maintenance of the wall.
                It is also unknown what use a developer on the
                619 North Broad Street side may want to make
                of the South Wall in the future.

          26.   Again, it is undisputed that the property line
                between [631 N. Broad] and [CRS]’s properties
                runs beneath the wall. Approximately 5 inches
                are on the 619 North Broad Street side. There
                is no evidence of any express easements or
                covenants that affect the property status or use
                of the party wall in the event one of the
                adjoining buildings is demolished.        Nothing
                states that ownership of the wall transfers to the
                lot owner who owns the last building standing.
                There is no easement running personally or with


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                  the land that grants any special rights such as
                  the privilege to break into the wall and create a
                  hole or opening. And there is no evidence to
                  this point that one party has contracted with the
                  other to alter the legal status of the wall from
                  party ownership to sole ownership. Nor is there
                  evidence to this point that [631 N. Broad] has
                  purchased [CRS’s] land on which a part of the
                  South Wall stands.

            27.   Accordingly, both [631 N. Broad] and [CRS]
                  own the South Wall whether it is called a party
                  wall, a joint wall or something else.

            28.   In this context and absent express agreements,
                  we conclude that [CRS] is entitled to title
                  recognition of its part ownership of the
                  South Wall. We will therefore enter declaratory
                  judgment in favor of [CRS] and [631 N. Broad]
                  is permanently enjoined from demolishing the
                  South Wall, either completely or partially,
                  without the other owner’s consent.

“Findings of Fact and Conclusions of Law upon Completion of Trial Evidence,”

10/30/17 at 4-8 (footnotes omitted).

      Following our careful and independent review of the record, we find that

both the evidence of record and long-standing case law of this Commonwealth

supports the trial court’s determination that the South Wall constituted a party

wall. In Sobien v. Mullin, 783 A.2d 795 (Pa.Super. 2001), a panel of this

court summarized what constitutes a “party wall” in Pennsylvania:

            Party wall rights did not exist at common law. Rather,
            such rights are granted to adjoining landowners by
            statute, contract or prescription. Ordinarily, a party
            wall is constructed upon the division line, and each
            adjoining lot owner has an easement on his neighbor’s
            premises for the support or extent of use made of the
            party wall. Where a wall is built completely on the


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           land of the builder, without the intention to give it the
           quality of a party wall, it is a division wall, and the
           laws regulating party walls do not apply to it. A party
           wall has also been defined as follows:

                 A party wall may be defined generally as
                 a wall located upon or at the division line
                 between adjoining landowners and used
                 or intended to be used by both in the
                 construction     or     maintenance       of
                 improvements on their respective tracts,
                 or, more briefly, as a dividing wall for the
                 common benefit and convenience of the
                 tenements which it separates. The term
                 ‘wall in common,’ as sometimes used, has
                 the same meaning as party wall.            A
                 distinctive feature of a party wall is that
                 the adjacent buildings are so constructed
                 that each derives its support from the
                 common wall. Thus, where each of two
                 persons is seised of a specified half of a
                 wall and nothing more, and no right of
                 support or shelter has been acquired by
                 the one from the other, such a wall is not
                 a party wall.

           However, such a division wall may take on the
           character of a party wall by prescriptive use.

Sobien, 783 A.2d at 798 (internal citations and quotation marks omitted).

     Here, under the facts presented, we agree with the trial court that the

wall in question was a party wall as contemplated by the courts in this

Commonwealth.      Our supreme court has held that one of the key

characteristics of a party wall is that it straddles or crosses the adjoining

property line. See Lukens v. Lasher, 51 A. 887,            (Pa. 1902) (stating,

“[a] party wall is a wall erected on the line between two adjoining estates

belonging to different persons, for the use of both estates.”     (citation and


                                    - 19 -
J. A16041/18

internal quotation marks omitted)).    Here, neither party disputes that the

South Wall lies directly over the property line separating 631 North Broad

Street and 619 North Broad Street. (“Findings of Fact and Conclusions of Law

upon Completion of Trial Evidence,” 10/30/17 at 2, No. 4; see also notes of

testimony, 12/2/16 at 50.) Other important factors in determining whether a

wall is a party wall include “[t]he location of a wall with reference to the

boundary line between two adjoining properties[,] . . . [t]he intent of the

builder, the understanding of the adjoining owners at the time it was built,

and its use for a long number of years[.]” McClernan v. Greenberg, 182 A.

59, 61 (Pa.Super. 1935). Here, two 1950 surveys introduced into evidence

and examined by expert Dr. Au depict a party wall that had metal tie-ins

between the second floor joists of the 631 North Broad Street property and

the roof joists of the 619 North Broad Street property. (Notes of testimony,

12/2/16 at 49-51; see also Exhibits 3B and 3C.) Additionally, an atlas from

1860 depicts the party wall at issue, as described in the expert testimony of

Dr. Au. (Notes of testimony, 12/2/16 at 48-49.) Lastly, the record reflects

that in 2011, CRS spent over $350,000 to repair its side of the South Wall’s

brick and masonry.      (“Findings of Fact and Conclusions of Law upon

Completion of Trial Evidence,” 10/30/17 at 3, No. 10.)

     631 N. Broad would have this court disregard the longstanding

precedent of this Commonwealth with respect to party walls; we decline to do

so. Accordingly, for all the foregoing reasons, 631 N. Broad’s contention that



                                    - 20 -
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the trial court erred in declaring the South Wall a party wall and permanently

enjoining 631 N. Broad from demolishing it, either completely or partially,

without consent of the 619 Broad Street property owner, must fail.8



C.    The Propriety of the Preliminary Injunction

      631 N. Broad    next   contends    that   the   trial   court’s   erroneous

determination that the South Wall constituted a party wall requires that we

address the propriety of the preliminary injunction that enjoined its demolition

of the South Wall. (631 N. Broad’s brief at 42-44.) However, because we

have already determined that the trial court did not err in concluding that the

South Wall constituted a party wall, we need not address this issue.


8631 N. Broad cites, inter alia, Roberts v. Bye, 30 Pa. 375 (Pa. 1858), and
Appeal of Masson, 70 Pa. 26 (1871), in support of his claim that the
South Wall is not a party wall. (631 N. Broad’s brief at 27, 29.) We agree
with the trial court’s reasoning that these cases are distinguishable from the
case sub judice:

            These cases are cited for the proposition that the
            party who built the wall is entitled to sole ownership
            of a party wall if the other party has not paid his share
            of the costs of the wall’s construction. This involves a
            different legal issue than reviewed here. Over two
            days of testimony, no evidence was presented on
            whether the construction costs of the South Wall were
            paid, or not, by the adjoining landowner and no
            evidence was offered conclusively as to who put up
            the wall and when.          As the South Wall’s initial
            construction costs are not in evidence, neither
            Roberts v. Bye nor [Appeal of Masson] is helpful.

“Findings of Fact and Conclusions of Law upon Completion of Trial Evidence,”
10/30/17 at 10, No. 34 (footnotes omitted).


                                     - 21 -
J. A16041/18

Furthermore, 631 N. Broad has already appealed the trial court’s entry of the

preliminary injunction order.    As noted, a panel of this court quashed the

appeal because the preliminary injunction merged into the final permanent

injunction order the trial court entered involving the same substantive issues.

See 631 North Broad Street, LP v. Congregation Rodef Shalom, 190

A.3d 727 (Pa.Super. 2018) (unpublished memorandum at *4).               Thus, this

court finds no reason to revisit the preliminary injunction order.



D.    Judicial Bias

      In its final claim, 631 N. Broad argues that it was deprived of due

process because Judge Ramy I. Djerassi was biased against it and “decided

early on that he would rule in CRS’ favor.” (631 N. Broad’s brief at 48.) In

support of this contention, 631 N. Broad cites to Judge Djerassi’s “roots

connecting him to CRS” and construes the September 25, 2017 proceedings

as a “sham trial.”    (Id. at 48-49.)    631 N. Broad also takes issue with a

number of evidentiary rulings Judge Djerassi made in favor of CRS at the

December 21, 2016 hearing. (Id. at 49.) These claims are both waived and

devoid of merit.

      It is well settled that “a party may not raise the issue of judicial prejudice

or bias for the first time in post[-]trial proceedings.” Ware v. U.S. Fid. &

Guar. Co., 577 A.2d 902, 905 (Pa.Super. 1990) (citations omitted). On the

contrary, “a party seeking recusal or disqualification on the basis of judicial



                                      - 22 -
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bias or impartiality “[is required] to raise the objection at the earliest possible

moment, or that party will suffer the consequence of being time barred.”

In re Lokuta, 11 A.3d 427, 437 (Pa. 2011) (citations omitted; brackets in

original), cert. denied, 565 U.S. 878 (2011).

      Instantly, the record reflects that at the commencement of the

December 2, 2016 hearing, Judge Djerassi disclosed his connection to CRS

and indicated he could be impartial:

            I will advise you that I have had a relationship with
            [CRS] throughout my life in that I went to Hebrew
            school there and was [a] bar mitzvah there, but I have
            not been a member of [CRS] myself since [a]ge 18. I
            have made, through a family foundation, a
            contribution to [CRS] on behalf of my mother who is
            a member of [CRS], but I am not; therefore, I believe
            that I am not prejudiced one way or another as far as
            there being some kind of conflict in this matter. I am
            a member of three synagogues. None of them are
            [CRS].

Notes of testimony, 12/2/16 at 4-5.

      631 N. Broad’s counsel did not move to disqualify Judge Djerassi on this

basis, and, in fact, indicated on 631 N. Broad’s behalf that, “Your Honor, we’re

satisfied.” (Id. at 5.) Because 631 N. Broad failed to raise its claim of judicial

bias at the earliest possible opportunity, it is waived. See Pa.R.A.P. 302(a)

(stating, “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).

      Furthermore, we recognize that an appellant’s “mere recitation of

unfavorable rulings against [it],” as 631 N. Broad’s does in the instant matter,



                                      - 23 -
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“does not satisfy the burden of proving judicial bias, prejudice or unfairness.”

Ware, 577 A.2d at 904 (citation omitted). Likewise, our independent review

of the September 25, 2017 transcript reveals no support for 631 N. Broad’s

contention that the trial was in any way a “sham,” and its claim to the contrary

is disingenuous. Accordingly, as the issues that 631 N. Broad has raised do

not provide a scintilla of evidence that Judge Djerassi was biased against it,

we would reject these claims.

      For all the foregoing reasons, we affirm the December 28, 2017

judgment.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/9/19




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