Moyerman v. Glanzberg

• Decision Date: 16 January 1958
• Citation: 138 A.2d 681,391 Pa. 387
• Parties: Samuel MOYERMAN and Anna D. Moyerman, his Wife, Appellants, v. Jules GLANZBERG and Flossie Glanzberg, his Wife, Theodore I. Goodman, and Township of Cheltenham, Montgomery County, Pa. Anna D. MOYERMAN and Samuel Moyerman, Appellants, v. The ZONING BOARD OF ADJUSTMENT OF CHELTENHAM TOWNSHIP and Theodore I. Goodman.
• Court: Pennsylvania Supreme Court

Page 681

138 A.2d 681

391 Pa. 387

Samuel MOYERMAN and Anna D. Moyerman, his Wife, Appellants, v. Jules GLANZBERG and Flossie Glanzberg, his Wife, Theodore I.

Goodman, and Township of Cheltenham, Montgomery

County, Pa.

Anna D. MOYERMAN and Samuel Moyerman, Appellants, v. The ZONING BOARD OF ADJUSTMENT OF CHELTENHAM TOWNSHIP and Theodore I. Goodman.

Supreme Court of Pennsylvania.

Jan. 16, 1958.

Rehearing Denied Feb. 10, 1958.

Roland J. Christy, Norristown, Samuel Moyerman, Philadelphia, for appellants.

Michael H. Egnal, Philadelphia, Wisler, Pearlstine & Talone, Norristown, of counsel, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

On August 28, 1953, Samuel Moyerman and his wife, the appellants, conveyed to Jules Glanzberg and his wife a vacant lot in Cheltenham Township, Montgomery County. This lot had a frontage of 80.38 feet, a depth of 175 feet and a rear width of 58.89 feet. At the same time the appellants granted to the Glanzbergs an easement or right of way over a 25 foot wide driveway which ran the length of the westerly side of the lot. The title to the driveway was retained by the appellants. Apparently the Glanzbergs were acting as straw parties in this transaction and they conveyed title to the lot and rights to the easement to Theodore I. Goodman, ¹ the appellee in both these appeals.

On September 10, 1953, the appellee applied to the township building inspector for a permit to erect a dwelling on this lot and in his application incorrectly stated that the lot had a frontage of 105.38 feet and a rear width of 80.74 feet. From that misstatement of the dimensions of the lot arises the present controversy.

A permit to build was granted to the appellee and a single family dwelling was constructed. Had the lot dimensions actually been as represented in appellee's application for a building permit, the dwelling as located could not have been the subject of objection. However, the lot was actually 25 feet less in frontage and 21.85 feet less in rear width. As a result the completed dwelling--located in accordance with the incorrect dimensions--was built so close to the boundary--between the westerly side of the lot and the driveway--that for a distance of approximately 10 feet it encroached on the driveway to a depth of from 14 to 16 inches. In addition to this admitted encroachment, the location of the dwelling so close to the lot boundary violates § 406 of the Cheltenham Township Zoning Ordinance of 1929 which requires that dwellings built in 'A' Residence Zoning Districts have two side yards, 'one on each side of the main building, together having an aggregate width of not less than 30 feet but neither having a width of less than 10 feet'.

The appellee, contending that he had become aware of this situation only after the dwelling had been substantially completed, applied to the Zoning Board of Adjustment of Cheltenham Township for the grant of a variance from the side yard requirements of the ordinance. After a hearing, at which appellants and their counsel appeared and strenuously objected, the Board granted the variance. At about the same time the appellants filed a complaint in equity seeking an injunction against the appellee's continued encroachment upon the easement together with damages therefor. The appellants appealed from the decision of the Board of Adjustment and the Court of Common Pleas of Montgomery County heard both that appeal and the equity action at the same time.

Following the hearing in the equity action the chancellor filed an adjudication in which he found, in substance: (1) that the appellee's encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee's part regarding the quantum of land he had purchased; (2) that the appellee's mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the construction had been substantially completed because the encroachment was too slight to be readily discernible and because building materials and other debris in the area tended to obscure it; (4) that the appellants did, however, know that the appellee was violating the zoning ordinance but took no action until the dwelling had been practically completed; (5) that the encroachment did not materially interfere with the use of the easement. The chancellor thereupon concluded that 'the granting of an injunction in this case would be inequitable, doing more harm than the wrong sought to be redressed'; accordingly, he dismissed the prayer for an injunction and certified the case to the law side of the Court for the assessment of damages resulting from the permanent trespass to the appellants' land.

The appellants filed exceptions to the chancellor's adjudication and decree nisi and, after a hearing, the court en banc dismissed all the exceptions save one, holding, in accordance with the appellants' contention, that the chancellor had erred in certifying the question of damages to the law side because equity, having once assumed jurisdiction in the injunction action should determine all questions arising under the pleadings. ²

The rule governing our scope of review is well established: a chancellor's findings have the force and effect of a jury's verdict when affirmed by a court en banc and ordinarily will not be disturbed upon appeal; such findings will not be considered conclusive, however, when the record affords them inadequate evidentiary support or when they have been premised upon erroneous inferences and deductions drawn by the chancellor from the evidence. Commonwealth Trust Company v. Szabo, Pa., 138 A.2d 85, and cases therein cited.

It is, therefore, our duty to examine this record to ascertain whether the chancellor's findings of fact and conclusions of law are supported by adequate evidence and based upon inferences properly drawn therefrom. Such an examination readily discloses adequate evidentiary support for the chancellor's findings that appellants were not guilty of laches, that, even though appellants knew of the zoning ordinance violation, they took no action until the dwelling was practically completed and that the encroachment did not materially interfere with the use of the easement. The chancellor's finding of an absence of laches is not inconsistent with the finding that appellants had notice of a zoning ordinance violation. The husband-appellant was present on several occasions while the dwelling was under construction and had sold several lots in the area. That he did not notice the encroachment is understandable; the amount of debris inevitably surrounding a dwelling in the course of construction could well have hidden an encroachment as slight as the one here involved. On the other hand, the juxtaposition of the location of the dwelling to the lot boundary would have rendered obvious a violation of the side yard requirement of the zoning ordinance. Moreover, the evidence is clear that the encroachment does not materially affect the use of the easement. The cartway of the 25-foot driveway is approximately 18 feet wide and on each side is a concrete gutter; the encroachment thereon of slightly more than 1 foot could not seriously affect the purpose for which the easement was intended, i. e. ingress and egress to a lot owned by the appellants which is located directly to the rear of the lot in question.

Appellants, in their argument before this Court and in their exceptions to the chancellor's adjudication, stress as their basic contention that the chancellor and the court en banc erred in determining that the encroachment was not wilfully and intentionally committed. We are in accord with appellants' view that the crux of this case is the validity of the court's determination in this respect.

In Kern v. Greensweig, 125 Pa.Super. 430, 436, 190 A. 182, 185, the Court stated: "An injunction is not of right, and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he is asked to redress.' 'A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand * * *. If an injunction is prayed for where, upon a consideration of the whole case, it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor.' Powers' Appeal, 125 Pa. 175, 186, 17 A. 254, 255.' See also: Baugh v. Bergdoll, 227 Pa. 420, 422, 76 A. 207. Upon that doctrine the lower court placed reliance, holding that the granting of an injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than of benefit to appellants. With that determination we are in agreement.

However, despite that doctrine, the Court below would have had no choice but to grant the injunction if it had found that the appellee had deliberately and wilfully built upon the appellants' property or if it believed that he had intentionally taken a chance. This rule was well stated in Ventresca v. Ventresca, 182 Pa.Super. 248, 253, 126 A.2d 515, 518, wherein it was said: 'Where the defendant's act is tortious or in bad faith or where he intentionally takes a chance, injunctive relief should be granted.' See also: Kanefsky v. Dratch Construction Co., 376 Pa. 188, 196, 101 A.2d 923; Baugh v. Bergdoll, supra; Bright v. Allan, 203 Pa. 394, 53 A. 251.

The instant record discloses that the appellee acquired title to only a portion of the lot in question as it had existed in the subdivision as originally...