Segal & Lieberman Prime Assoc. v. Binyan 14 South

J-S31033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SEGAL, SEGAL & LIEBERMAN PRIME : IN THE SUPERIOR COURT OF
ASSOCIATES : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1413 EDA 2020
BINYAN 14 SOUTH 3RD STREET LLC :
AND BINYAN #306 LLC :
Appeal from the Judgment Entered November 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190101235
SEGAL, SEGAL & LIEBERMAN PRIME : IN THE SUPERIOR COURT OF
ASSOCIATES : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1414 EDA 2020
BINYAN 14 SOUTH 3RD STREET LLC :
AND BINYAN #306 LLC :
Appeal from the Judgment Entered November 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190101235
SEGAL, SEGAL & LIEBERMAN PRIME : IN THE SUPERIOR COURT OF
ASSOCIATES : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1522 EDA 2020
BINYAN 14 SOUTH 3RD ST LLC AND :
BINYAN #306 LLC :
J-S31033-21
Appeal from the Judgment Entered November 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190101235
SEGAL, SEGAL & LIEBERMAN PRIME : IN THE SUPERIOR COURT OF
ASSOCIATES : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 509 EDA 2021
BINYAN 14 SOUTH 3RD ST LLC AND :
BINYAN #306 LLC :
Appeal from the Judgment Entered November 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190101235
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 14, 2021
Segal, Segal & Lieberman Prime Associates (SSL) appeals from the
judgment entered in the Court of Common Pleas of Philadelphia County (trial
court) in favor of Binyan 14 South 3rd St. LLC (Binyan 14) in this action
concerning the installation of a metal gate blocking a pedestrian alley that it
contends also interfered with its recorded easement over Binyan 14’s
neighboring property. SSL claims the trial court erred in holding that Binyan
14’s installation of the metal gate at the entrance of the alley was allowed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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because it was permitted by the City of Philadelphia and that it did not
interfere with its easement. We affirm.
I.
A.
The relevant facts and procedural history of this case are as follows.
The parties own adjacent properties located at 3rd and Market Streets in
Philadelphia and this case involves a longstanding dispute regarding an
easement. A four-foot wide pedestrian alley runs for 40 feet alongside Binyan
14’s South 3rd Street property and connects with the easement over its
property that serves as an egress to 3rd Street from the back of SSL’s Market
Street property. SSL’s property is not adjacent to the alley.
Before Binyan 14 began construction on the then-vacant lot, SSL
brought an action in March 2013 to have recognized a prescriptive easement
to preserve rear access from its building to 3rd Street. In May 2014, this
action was settled when the parties entered a Reciprocal Easement Agreement
permitting full and complete ingress and egress between the respective
properties. The easement agreement was recorded in the Philadelphia Office
of the Recorder of Deeds.
While construction of the Binyan 14 building was underway, in 2016,
SSL again initiated litigation because Binyan 14 had dug a ten-foot hole that
purportedly interfered with its easement rights. In September 2016, the trial
court entered an order providing in relevant part that: “The easement will be
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at least 36” wide at all points and at least 10’ high as previously agreed.”
(Order, 9/21/16).
B.
This dispute began in December 2017 when Binyan 14 installed a locked
metal gate where the alley opens to 3rd Street. City Planning photographs
taken in 1972 and 2005 show that there was a gate with a locking mechanism.
In January 2019, SSL filed the underlying complaint advancing claims of
nuisance, interference with easement rights seeking ejectment and injunctive
relief, as well as an award of punitive damages. In November 2019, SSL filed
a motion for summary judgment contending that it was entitled to entry of
judgment in its favor “because it is undisputed that Defendants installed a
locked gate that restricts and interrupts access and use of the public alley,
without Plaintiff’s permission or consent and without the necessary permits,
approvals and inspections.” (Motion for Summary Judgment, 11/04/19, at 1,
Paragraph 2).
The trial court denied the motion and held a one-day bench trial on
February 21, 2020. The court heard testimony from the following witnesses:
Glen Segal and Joseph Lieberman as partners in SSL; Ian Seidenwar as a
principal of Binyan 14; Randall Barron, a Preservation Planner with the
Philadelphia Historical Commission of the City of Philadelphia; Craig Deutsch,
a partner in the architectural firm that prepared the plans for the Binyan 14
property; Robert Short, the general contractor (GC) that oversaw construction
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of the property including the gate; and Mike Schley, a resident of the
apartment building abutting the easement area.
Mr. Segal, a partner in SSL, testified that SSL has used the easement
area and adjacent public alley since it acquired the building in 1996 as a means
of egress from SSL’s building to Market Street. He explained “to go from our
building to the street for our egress, we need to go first through the easement
over 14th South 3rd [Street]. And then that connects into the public alley.
And then we would have to go out the public alley to have complete access to
the street.” (N.T. Trial, 2/21/20, at 17-18). He testified that the locking gate
at the public alley interferes with SSL’s use of the easement and public alley
and access to its property.1 Mr. Segal recalled learning of the gate’s
installation “sometime in January 2019” while he was “inspecting the property
and found the gate, and I wasn’t able to get in.” (Id. at 21). Binyan 14 did
not seek SSL’s consent before installing the gate or immediately provide the
access code to enter the gate, although Binyan 14 did provide it at some point
through the parties’ attorneys. On cross-examination, Mr. Segal testified that
he had never used the button marked “Exit” located on the wall to the right
of the gate to exit the alley. (Id. at 24).
Mr. Lieberman, another SSL partner, testified that he was involved in
the acquisition of the SSL property in 1996 and that “many times I would park
____________________________________________
1 The parties stipulated that the width of the gate is 32¾ inches.
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on 3rd Street [and walked] up the public alley and then up the easement area
[to the] rear door of our property.” (Id. at 35-36). He testified that SSL was
seeking punitive damages in the form of reimbursement of legal fees and court
costs in the amount of $25,000.00 because of Binyan 14’s repeated
interference with the use of the public alley and easement area.
On cross-examination, Mr. Lieberman acknowledged that he did not
know if the alley could be exited by pressing the exit button on the wall next
to the gate, and that although his attorney had the code to enter the alley
through the keypad system, he did not have it himself because he “never
thought to ask him for it.” (Id. at 43).
Mr. Seidenwar, Binyan 14’s principal, stated its deed reads that the
“property is bounded by a four-foot-wide alley,” and that it is 40-feet deep.
(Id. at 47). Mr. Seidenwar testified that the alley “is not owned by Binyan
14” and is instead owned by “the public.” (Id.). He provided the access code
to enter the gate to SSL when his counsel asked that he do so, and averred
that he did not think it was “an issue because I always thought the easement
was meant for just emergency exit.” (Id. at 55). Mr. Seidenwar has owned
the property since 2010 and it was a vacant lot at the time of purchase
because a fire had destroyed the previous building. He submitted a building
permit in June 2011 and was granted permission to build on his entire
property, at which time there were no recorded easements on the lot. He was
issued a building permit and the locked gate was installed in December 2017
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towards the end of the construction phase. Mr. Seidenwar testified that an
inspector from the City of Philadelphia Department of Licenses and Inspections
(L&I) came out to the property to review the gate before issuing a certificate
of occupancy (CO).
Mr. Seidenwar confirmed that to enter the gate, entry of a code is
required, and that to exit through the gate, “you have to press an exit button
to get out.” (Id. at 71). He explained that he reduced his building size to
widen the alley from 40 feet to 60 feet during construction “for the safety of
the people.” (Id. at 78). Prior to installation of the gate, “there was always
trespassing, people jumping over barbwires . . . graffiti.” (Id. at 79). Mr.
Seidenwar averred that there have been no similar issues since installation of
the gate and that the company has not been issued any violations by any
municipal agency related to the gate.
Mr. Barron, a preservation planner for the City of Philadelphia, testified
that the Binyan 14 property is listed on the Philadelphia Register of Historical
Places and that all construction plans for any property on this list must be
approved by the Historical Commission. The plans for Binyan 14 were
submitted to the Historical Commission in 2011 and following approval, they
were stamped in October 2016. Mr. Barron also identified Historical
Commission photographs of the property dated in 1972 and 2005, both of
which depicted a gate with a locking mechanism.
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Mr. Deutsch testified that he prepared the architectural plans for the
Binyan 14 property that were submitted to L&I and the Historical Commission
for approval. Over objection by SSL’s counsel, Deutsch testified on direct
examination:
Q. Do you recall at any point during the approval process with the
Department of L&I whether a concern was raised about the
installation of the gate as shown on the plan?
[SSL’s counsel]: Objection. Calls for hearsay.
The Court: Overruled. She’s asking if he recalls personally.
[Deutsch]: No.
The Court: You don’t recall or were there?
A. I don’t recall any objections being made.
Q. And same question with regard to the Historical Commission.
Do you recall whether or they raised any objection with regard to
installation of a gate as put on the plans?
A. No objection to the gate. The gate was, actually, something
that was asked to be drawn in our drawings.
[SSL’s counsel]: Objection. This is hearsay, Your Honor.
The Court: It’s not hearsay. He is the architect. The builder.
[SSL’s counsel]: He said it was something that was asked to be
drawn into the drawings. That’s hearsay.
The Court: Overruled, Counsel.
(Id. at 108-09).
Mr. Deutsch explained that when the drawings were submitted to the
Historical Commission, they “show an elevation [and] the compass of the
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block, including that gate that existed there in time and then the building of a
new building, so they wanted me to show that a gate was there. So it’s drawn
in elevation, approved by them.” (Id. at 109). He testified that he visited
the Binyan 14 property before he prepared the plans for it and that “there was
an existing gate with a locking mechanism” at that time. (Id. at 110). The
plans approved by the City entities read: “New metal g[ate] primed and
painted.” (Id. at 112).
Mr. Short testified that part of his duties as the general contractor on
the Binyan 14 property included overseeing installation of the gate and that
he was on site every day for one year. He was made aware of instances of
trespassing prior to installation of the gate and he personally observed
homeless people in the alley twice. He stated that “several times when we
came in, in the morning, we saw homeless people that were in the egress
area─the easement area on our jobsite hanging out there for the evening.
And we had to remove them─ask them to leave. . . . They were using it . . .
for a bathroom back in there.” (Id. at 120-21). He then testified on direct
examination over objection by counsel for SSL on grounds of hearsay:
Q. At some point, did you have reason─prior to the locked gate
being installed, did you at some point put up a temporary barrier
where the locked gate is?
A. Yes. We had to close off the alleyway and we also had to close
off another section where there─there was a building missing on
the side of the property that we had to close off as well. Two
different locations we had to close off.
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Q: And was the reason for that to prevent trespassing and other
such issues?
A. Yes.
Q. Did you do that of your own accord or was that because of any
issues or other violations given to you?
A. It was demanded of me to close it off.
[SSL’s counsel]: Objection. She’s eliciting hearsay, Your Honor.
The Court: Overruled. . . .
A. Yes, I was told to close them off.
[SSL’s counsel]: Objection, Your Honor.
The Court: Overruled.
Q. And who was it that told you to close it off?
A. James Mason.
[SSL’s counsel]: Objection.
The Court: Overruled.
Q. And James Mason is an inspector with L&I?
A. Yes.
(Id. at 121-22).2
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2 At several points during defense counsel’s examination of witnesses, counsel
for SSL made numerous objections which the court viewed as excessive and
legally baseless. It admonished counsel accordingly. (See N.T. Trial, at 26,
41-42, 72).
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Mr. Short explained that Inspector Mason reviewed the entire property
before issuing it a CO, and that as part of that review, he tested the open and
closing mechanisms of the gate. Mr. Mason provided him with the dimensions
for the gate and “everything that was on that gate was told to me by James
Mason to put on it.” (Id. at 127). Mr. Mason issued the CO providing that
the building was in accord with the plans for the property approved by the L&I
Department, and in compliance with the requirements of the Philadelphia
Building Construction and Occupancy Code and the Pennsylvania Uniformed
Construction Code.
Mr. Schley testified that he and his wife reside in a second-floor
apartment abutting the easement area and that the fire escape connected to
their residence leads into that area. He stated that anyone passing through
the alley and easement can see into their residence, which is not visible from
the public street. (See id. at 132-33).
C.
Several days after the trial concluded, the trial court entered an order
that provided:
[Binyan 14] shall, within 90 days, remove and replace the
existing alley gate adjacent to 308 Market Street with a gate that
conforms to the Court order dated 9/21/16. Specifically, that the
gate opening shall be at least 36 inches wide. It is further
ordered that the [Binyan] must immediately provide plaintiff with
any codes, keys or any such information needed to have complete
and unfettered access through the gate at all times for as long as
plaintiff retains title to 308 Market Street.
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(Order, 2/25/20) (emphasis added). The trial court denied SSL’s claims
seeking monetary damages and punitive damages.
SSL filed a motion for post-trial relief on March 2, 2020, but the litigation
was delayed because of the Covid-19 pandemic. SSL filed a notice of appeal
on June 5, 2020, and it and the trial court complied with Rule 1925(b). See
Pa.R.A.P. 1925(a)-(b).3 The trial court then denied SSL’s post-trial motion on
December 10, 2020, following oral argument. The trial court entered
judgment on the verdict on November 12, 2021.4
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3 SSL filed a premature notice of appeal before the trial court entered
judgment on the verdict. We will consider the premature notice of appeal as
filed on the date the court entered judgment. See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.”).
4
Our standard of review in non-jury trials is to assess whether the
findings of facts by the trial court are supported by the record and
whether the trial court erred in applying the law. Upon appellate
review[,] the appellate court must consider the evidence in the
light most favorable to the verdict winner and reverse the trial
court only where the findings are not supported by the evidence
of record or are based on an error of law. Our scope of review
regarding questions of law is plenary.
Woullard v. Sanner Concrete & Supply, 241 A.3d 1200, 1207 (Pa. Super.
2020) (citation omitted).
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II.
A.
On appeal, SSL challenges the trial court’s denial of its motion for
summary judgment and its verdict in favor of Binyan 14 on several
overlapping bases concerning its objection to installation of the locking gate.
The crux of SSL’s claim is that Binyan 14 interfered with its use of the
easement by restricting the use of the public alley by constructing the gate.
With regard to the public alley, SSL argues that neither L&I nor the Historical
Commission had the authority to grant property rights to Binyan 14, which is
“in active violation of Pennsylvania law for having restricted access to a public
space.” (SSL’s Brief, at 40). It relies on this Court’s decision in Philadelphia
v. Teller, 50 Pa. Super. 260 (1912) to support its argument.5
As to its appeal from the summary judgment motion, we note that we
have recently stated in Xtreme Caged Combat v. Zarro, 247 A.3d 42, 50–
51 (Pa. Super. 2021), appeal denied, 260 A.3d 924 (Pa. 2021), that “once a
case goes to trial and evidence is presented at trial, the denial of summary
____________________________________________
5 In Teller, the defendant constructed a permanent awning above a public
sidewalk despite the refusal of the chief of the bureau of highways to issue a
permit for the structure and its receipt of notice from the agency prohibiting
its installation. See Teller, supra at 263. On appeal, the defendant
challenged the trial court’s issuance of an injunction requiring it to remove the
awning. This Court affirmed the trial court’s decision because the awning
“structure is not authorized by any valid municipal regulation” or by any
statutory authority. Id. at 266.
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judgment is moot and the sufficiency of the evidence must be analyzed based
on the trial record. Whitaker v. Frankford Hospital of City of
Philadelphia, 984 A.2d 512, 517 (Pa. Super. 2009).”6
Even if we were to address this issue, we agree with the trial court’s
rationale that there were genuine issues of material fact that required the
denial of the summary judgment motion. It reasoned:
Appellants argued in its motion for summary judgment that
it is undisputed that the locked gate created a nuisance and
interfered with its free and interrupted use of the alley.
Additionally, SSL alleged that Binyan 14 failed to obtain the
necessary permits and approvals for installation of a locked gate.
Defendants responded by providing evidence showing that SSL
always had free and unfettered access to the alley way, and
furthermore that they obtained approval from two (2) city
agencies (Philadelphia Historical Commission and Department of
Licenses and Inspections) prior to installation of the gate.
Whether the gate encroached upon the alley in such a way as to
____________________________________________
6Immediately following this passage, at footnote 7, we stated in Xtreme
Caged Combat that:
We note that our Supreme Court and this Court in reported
decisions subsequent to Whitaker have in fact ruled on the merits
of denials of summary judgment in appeals following a hearing or
trial. See Woodford v. Insurance Department, ––– Pa. –––,
243 A.3d 60, 68-71 (2020) (affirming denial of summary
judgment on the merits in appeal from judgment following
evidentiary hearing); Krepps v. Snyder, 112 A.3d 1246, 1257-
60 (Pa. Super. 2015) (affirming denial of plaintiff’s motion for
summary judgment on the merits in appeal from judgment
following trial). These decisions, however, have not addressed
the issue of whether the factual record at trial supersedes the
denial of summary judgment and whether the denial of summary
judgment is appealable as a separate issue following trial. No
decision has overruled Whitaker, and it therefore remains
binding precedent.
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restrict or interfere with its unobstructed use was subject to
differing factual assertions by the parties. Indeed, testimony at
trial was elicited by both parties addressing these issues. Clearly,
these were [issues] of fact which needed to be evaluated and
determined by a finder of fact requiring denial of the motion for
summary judgment.
(Trial Court Opinion, 4/15/21, at 10).
B.
SSL also claimed in its summary judgment motion that Binyan 14
impermissibly invaded the public alley by constructing the locked gate. In this
case, no one offers any testimony of how this four-foot wide 40-foot
passageway, generously called an alley, was created. There is no evidence
that it was ever dedicated to the City of Philadelphia or that it was accepted
by the City within 21 years required to accept the dedication.7
The trial court found that there was no unlawful impediment to the alley
because the gate was installed with permission of the City:
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7 Assuming that it was even dedicated, it could be considered a “paper alley.”
A “paper street” refers to a street that has been expressly dedicated by a
landowner and appears on the plan or on other publicly-recorded documents
such as subdivision plans but has never been accepted or opened by the
municipality or used by the public and has no existence except on paper. See
Tobin v. Radnor Township Board of Commissioners, 597 A.2d 1258 (Pa.
Cmwlth. 1991). Generally, the time limit for a municipality to accept an offer
of dedication is 21 years. See 36 P.S. 1961; see also Kao v. Handleman,
728 A.2d 345 (Pa. 1999); Kramer Appeal, 266 A.2d 96 (Pa. 1970); Rahn v.
Hess, 106 A.2d 461 (Pa. 1954). This provision was enacted “in order to
relieve land from the burden of public servitude created by a dedication in
which the dedicated streets have been laid out but not opened." Lillo v.
Moore, 704 A.2d 149, 153 (Pa. Super. 1997).
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The facts of this case are wholly distinguishable [from
Teller]. Here, there was testimony that the plans for the building,
including the gate, were approved by both L&I and the Historical
Commission. Defendant’s general contractor testified that the
inspector from L&I came out to inspect he property, including the
gate, prior to issuing the Certificate of Occupancy. The general
contractor testified that L&I inspected the gate, including testing
the locking and unlocking mechanisms and issued a Certificate of
Occupancy based on the inspection. Furthermore, no citations
from L&I have been issued since installation of the gate with
locking mechanism. Based on the foregoing, Binyan 14 had
permission from the City, by way of a permit from L&I, to install
the gate with the locking mechanism across the entrance of the
alleyway. Because the gate did not comply with the prior Order
that required the opening of the alley way to be 36 inches, the
court found that Binyan 14 was in violation of that Order, and
therefore had to make the appropriate correction to the gate to
maintain the 36 inch width of the alley way.
(Id. at 12).
C.
SSL contends that there is not sufficient evidence to support the
conclusion that the City required installation because it depends on hearsay
testimony that was introduced over its objections. It first asserts that Mr.
Short’s testimony consisted of “almost entirely” of hearsay and takes issue
with his statement that “James Mason told Mr. Short that the public alley way
needed to be closed off.” (SSL’s Brief, at 49). SSL contends that this
testimony was unfairly prejudicial where Mr. Mason “was not called as a
witness by either party [and] may not even exist.” (Id.). SSL also challenges
Mr. Deutsch’s testimony that the Historical Commission directed him to include
a gate in the architectural drawings. SSL maintains that because these
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statements were offered into evidence to prove the truth of the matter
asserted, the trial court should have excluded them.8
Our Rules of Evidence define “hearsay” as an out-of-court statement
made by a declarant offered into evidence to prove the truth of the matter
asserted. See Pa.R.E. 801(c). For purposes of hearsay, “the ‘declarant’ is
defined as the person who makes the out-of-court statement, not the person
who repeats it on the witness stand.” Adams v. Rising Sun Med. Ctr., 257
A.3d 26, 35 (Pa. Super. 2020) (citing Pa.R.E. 801(b)).
Generally, hearsay is inadmissible because it is deemed untrustworthy
since it was not given under oath and subject to cross-examination. See id.“A statement that is not offered for its truth, however, is not hearsay.”
Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1244 (Pa. 2015)
(citation omitted). The comment to Rule 801 explains: “There are many
situations in which evidence of a statement is offered for a purpose other than
to prove the truth of the matter asserted.” Pa.R.E. 801, Comment.
“Sometimes a statement has direct legal significance, whether or not it is true.
____________________________________________
8 Our standard of review of an evidentiary ruling made by the trial court is
extremely narrow. “The admission or exclusion of evidence is a matter within
the sound discretion of the trial court, which may only be reversed upon a
showing of a manifest abuse of discretion.” Charlton v. Troy, 236 A.3d 22,
35 (Pa. Super. 2020), appeal denied, 251 A.3d 772 (Pa. 2021) (citation
omitted). “To constitute reversible error, an evidentiary ruling must not only
be erroneous, but also harmful or prejudicial to the complaining party.” Id.(citation omitted).
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For example, one or more statements may constitute an offer, an acceptance,
a promise, a guarantee, a notice, a representation . . . [or] compliance with a
contractual or statutory obligation.” Id. Additionally, “communications that
are not assertions are not hearsay . . . [including] offers, instructions [and]
warnings[.]” Id. (emphasis added).
In this case, the trial court explained that it admitted Mr. Short’s
testimony regarding Inspector Mason because it:
Was not being offered for the truth of the matter, but rather
for another purpose─to explain the general contractor’s actions.
Furthermore, Mr. Short testified, without objection, that the
inspector from L&I came to view the gate after the construction
was completed and tested the gate to see if it worked and that
thereafter the Certificate of Occupancy was issued. This is
testimony about actions that were taken by the contractor in order
to obtain a [CO]. . . . [E]ven if it was error to admit this testimony,
it was harmless error insofar as the same information was
admitted through other testimony.
(Trial Ct. Op., at 14).
The record reflects that the trial court admitted the subject statements
not for their truth, but to explain Mr. Short’s reasons for his actions with regard
to the gate as the GC on the Binyan 14 building project.9 Similarly, the
testimony of Mr. Deutsch concerning the Philadelphia Historical Commission’s
directives was offered to illustrate his reasons for including the gate on the
____________________________________________
9 Insofar as SSL questions whether Inspector Mason “even exists,” the record
plainly reflects that his name was listed on the CO issued for the property
marked as Exhibit 123 at trial.
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architectural plans, i.e., because depiction of gate was necessary to show the
proper elevations. The challenged testimony also directly countered SSL’s
specific allegation that Binyan 14 installed the gate without first obtaining the
requisite City approvals, and to demonstrate that the opposite was the case
in that the gate was installed in order to comply with City requirements.
SSL’s claims that the court erred in overruling its hearsay objections merit no
relief.10 Moreover, we agree with the trial court’s conclusion that to the extent
____________________________________________
10In a related claim, SSL challenges the trial court’s admonition of its counsel
at trial to discontinue objecting during defense counsel’s examination of
witnesses. SSL argues that counsel’s objections were well founded and were
necessary to prevent the admission of hearsay testimony presented by Binyan
14 witnesses, including Mr. Short’s testimony concerning Inspector Mason.
(See SSL’s Brief, at 54-56). We first note that as previously discussed in
detail above, the objected-to testimony did not constitute hearsay as it was
admitted for a purpose other than to prove the truth of the matter asserted.
Additionally,
At several points during the trial, the Court had to warn
Appellant’s counsel against raising objections to testimony without
any legal basis. After a series of objections made by counsel that
were overruled, the Court admonished counsel . . . ‘I’m not going
to tolerate the obsessive objecting. . . . And I’m going to warn
you again. You’ve objected to almost every question being
asked . . . you are walking a line here with unnecessary
objections, so you need to stop.’
In directing counsel not to make specious objections, the
Court was reasonably exercising judicial control of the proceedings
in order to ensure an orderly trial, and maintaining order and
decorum in the courtroom, which is entirely appropriate. See
Commonwealth v. Collins, 70 A.3d 1245, 1255 (Pa. Super.
2013). Counsel clearly was not hampered by the Court’s
admonitions, as was demonstrated by the fact that he continued
to make objections without legal grounds throughout the trial.
(Footnote Continued Next Page)
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any of the objected-to testimony did constitute hearsay, any error in its
admission was harmless in view of the totality of the unobjected-to evidence
indicating that plans for the project were approved by all City entities.
D.
SSL next challenges the trial court’s dismissal of Counts I through IV of
its complaint concerning Ejectment, Nuisance, Interference with Easement
Rights and Injunctive Relief seeking removal of the gate. SSL claims that its
right to relief is clear because it is undisputed that Binyan 14’s installation of
the gate at the entrance of the alley prevented its free and uninterrupted use
of the easement area and impacted its ability to use the alley as a form of
ingress to and egress from its property. SSL maintains that a permanent
injunction requiring removal of the gate is warranted where money damages
cannot compensate it for the interference of its property rights. (See SSL’s
Brief, at 57-63).
“Ejectment is an action filed by a plaintiff who does not possess the land
but has a right to possess it, against a defendant who has actual possession.”
Becker v. Wishard, 202 A.3d 718, 721 (Pa. Super. 2019) (citation omitted).
____________________________________________
(Trial Court Op. at 14-16) (citing N.T. Trial, at 26, 41-42, 72).
After review of the trial transcript with a focus on the contested objections,
we find that the court appropriately sought to limit counsel’s repetitive
objections once it made its position on the matter clear in order to move the
proceedings forward. SSL’s challenge to the court’s rulings merits no relief.
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“Ejectment is a possessory action only, and can succeed only if the plaintiff is
out of possession, and [the plaintiff] has a present right to immediate
possession.” Id. (citation omitted). A nuisance is “the unreasonable,
unwarrantable, or unlawful use by a person of his own property . . . producing
such material annoyance, inconvenience, discomfort or hurt that the law will
presume a consequent damage.” Caruso-Long, supra at 238 (citation
omitted).
Relief on an interference with easement rights claim may be obtained in
a dispute between the owners of a dominant and servient estate under
circumstances where one party unreasonably interferes with the other’s use
of the easement. See Kao v. Haldeman, 728 A.2d 345, 349 (Pa. 1999).
Finally, “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.” Morgan v. Millstone Res. Ltd., 2021
WL 5314395 at *12 (Pa. Super. filed Nov. 16, 2021) (citation omitted).
“Unlike a preliminary injunction, a permanent injunction does not require proof
of immediate irreparable harm.” Id. (citation omitted).
The trial court explained its rationale for its dismissal of the counts as
follows:
All of these causes of action hinge on one question─ does
the gate interfere with Plaintiff’s right to free and uninterrupted
use of the alleyway. The Court determined that there was some
infringement on SSL’s use of the alleyway to the extent that the
opening to the gate did not comply with the prior Order that
stipulated that it had to be 36 inches, and therefore ordered that
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the gate be changed to comply with the measurement. However,
Appellant failed to prove that the gate itself was a meaningful
hinderance to the use of the alley. Appellant’s own
representatives testified that even though their attorney had the
code, they never even bothered to ask for it throughout the
pendency of this litigation. Further, Appellant’s representatives
ignored the fact that there was an exit button that, when pushed,
opened the gate.
* * *
The act of having to press the exit button to leave the alley
and use a keypad to enter the alley was not an unreasonable
obstruction and did not prevent SSL’s free and uninterrupted
access to South 3rd Street. The fact that the principals chose not
to avail themselves of the access code that was provided to their
attorney at the outset of the litigation is a hinderance that they
brought on themselves in a failed attempt to further their position
in this lawsuit. Instead, this unreasonable position undermines
the entire basis of Plaintiff’s position.
(Trial Ct. Op., at 17-18).
We agree with the trial court’s assessment that SSL had free and
uninterrupted access to the alley through use of the entry code provided to
their counsel and the exit button installed near the gate. We are also mindful
that although Binyan 14 constructed the gate in December 2017, the
principals at SSL did not notice its installation until more than one year later
in January 2019, calling into question how frequent its use of the easement
actually was and undermining its claim of a gross interference with its property
rights. The testimony at trial also shows that Binyan 14 installed the gate in
order to comply with City requirements, and that it was necessary in order to
prevent instances of trespassing and loitering in the alley. Based on the
foregoing, we conclude that the trial court properly dismissed the counts of
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the complaint and limited the award of injunctive relief to replacement of the
gate to provide the previously ordered 36-inch width.11
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2021
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11 SSL also claims the trial court erred in permitting Binyan 14 to raise a post-
trial oral argument that it failed to preserve by not raising it during trial. SSL
contests Binyan 14’s brief argument that the alley is not publicly-owned
because “during trial the parties were in agreement and [Binyan’s]
representative admitted that the Public Alley Way is public.” (SSL’s Brief, at
65). Ignoring that SSL has waived this issue for its failure to raise it in its
Rule 1925(b) statement, there is no indication that Binyan 14 is presently
representing that it owns the subject alley. In its brief, Binyan plainly states
that the gate at the entry of the alley “is not within [its] property line.”
(Binyan 14’s Brief, at 3). At trial, Mr. Seidenwar unequivocally testified to the
alley’s public status. (See N.T. Trial, at 47) (“Q. Do you know who owns the
alley? A. The public.”). Because there is no legitimate dispute as to Binyan
14’s lack of ownership of the alley, this contention is meritless.
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