Trial Court Dismisses Claim of Non-Trepassory Invasion Asserted Against a Defendant in a Fire Loss Case

In the case of Pursell v. DTB Services, LLC, No. 691-CV-2025 (C.P. Monroe Co. Sept. 22, 2025 C. Daniel Higgins, J.), the court sustained certain Preliminary Objections filed by a Defendant in a fire loss case.

According to the Opinion, the Defendant is a company that engages in the business of installing, servicing, and repairing gas fireplaces. The Plaintiffs are homeowners who utilized the Defendant’s services.

The Plaintiffs allege that the Defendants were negligent in providing inspection and repair work on the Plaintiff’s gas fireplace.

More specifically, the Plaintiffs alleged that the Defendant failed to inform the Plaintiffs that the outside vent to the fireplace was low-grade and dangerously close to combustibles. The Plaintiffs also allege that the Defendants did not recommend any urgent corrective action or that the fireplace should not be used.

Thereafter, a fire occurred. The Plaintiffs contended that the fire was the result of combustibles located near the venting system igniting.

In one of the Counts of their Complaint, the Plaintiffs alleged that the Defendants’ acts and/or omissions interfered with the Plaintiffs’ right of peaceful enjoyment of their real property. The Plaintiffs otherwise alleged in that Count that the Defendant committed a non-trespassory invasion of the Plaintiffs’ property by way of the Defendants’ negligent conduct and that the invasion caused the fire. The Defendants filed a Preliminary Objection to this Count asserting that the Plaintiffs failed to plead any facts that could be considered to be an invasion of their privacy.

The court noted that a claim for interference with the right of peaceful enjoyment of one’s real property is based on the private nuisance doctrine. The court noted that this doctrine is governed under Pennsylvania law by §822 of the Restatement (Second) of Torts.

The court noted that, under §822l, liability exists in this regard only if the contested “conduct is the legal cause of an invasion of another’s interests in the private use and enjoyment of any land.” Under the law, such an invasion must be either intentional and unreasonable, or unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions and activities.

The court noted that an “invasion” in this context has been identified under the law as occurring when a Plaintiff’s property interests have been encroached by something that has come onto the property against the Plaintiff’s will.

Here, the court found that the Plaintiff did not assert any facts that would allow for a jury to presume that the Plaintiff did not voluntarily use Defendant’s services and invite them onto to their property for the inspection and/or maintenance of their fireplace.

Accordingly, the court found that, regardless of whether or not the Defendant’s actions at the Plaintiffs’ home were the cause of the fire, such actions did not constitute an invasion as that term is identified by the law. Accordingly, the court sustained the Defendant’s demurrer to this Count of the Plaintiffs’ Complaint.

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I send thanks to Attorney Richard (Ricky) E. Santee, Esquire of the Bethlehem, PA law firm of Shay, Santee, Kelhart & Deschler, LLC for bringing this case to my attention.