Opinion
No. 987 C.D. 2012
04-04-2013
Carolyn J. Florimonte, Appellant v. Borough of Dalton
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Carolyn J. Florimonte (Appellant), pro se, appeals from the December 28, 2011 Lackawanna County Court of Common Pleas (Trial Court) opinion and order denying her claim for relief against the Borough of Dalton (Borough) for trespass and negligence.
Judgment was entered in favor of the Borough on April 25, 2012.
Appellant is the owner of a parcel of land situated at 219 Third Street in the Borough of Dalton, Lackawanna County, Pennsylvania (Property). In the Borough of Dalton, Third Street runs between Fuller Road and Lake Street. The Property is flat, but located on Third Street between two significant slopes that place the Property at the bottom of a bowl. (Notes of Testimony (N.T.) at 147, 215-216, Reproduced Record (R.R.) at 302b, 370b-371b.) As a result of the surrounding topography, surface water drains naturally from the twenty-six acres above the Property to the area of Third Street where the Property is situated. (N.T. at 99, 218-219, R.R. at 254b, 373b-374b.)
Appellant purchased the Property by deed dated May 5, 2000, from Stanley and Josephine Hedrick. (N.T. at 27-28, R.R. at 182b-183b, Appellant's Trial Exhibit 4.) The Property consists of three lots, each a hundred feet wide: Lot 16 contains Appellant's residence and borders upon Third Street; Lot 17 is adjacent to Lot 16 and also borders upon Third Street; and Lot 30 is situated directly behind Lot 16. (N.T. at 57, 222, R.R. at 212b, 377b.) At the time of purchase, the Property had stood vacant for five years and Lot 17, which is at the heart of this appeal, was wooded and overgrown with brush. (N.T. at 46-19, 184-186, R.R. at 201b-204b, 339b-341b.)
Shortly after purchasing the Property, Appellant grew concerned about excess surface water and traced the source of the water to the interior of Lot 17. (N.T. at 151, R.R. at 306b.) Appellant discovered two plastic sluice pipes carrying water onto the Property. The first sluice pipe travels underground at a ninety-degree angle to Third Street and outlets on the surface about seven to nine feet from the boundary line, within the Borough's right of way. (N.T. at 151, 190-191, 219-220, 226, R.R. at 306b, 345b-346b, 374b-375b, 381b.) Appellant contacted the Borough. (N.T. at 154, R.R. at 309b.) In April 2001, Appellant discovered the second sluice pipe. (N.T. at 188, R.R. at 343b.) This second sluice pipe is partially visible on the surface of Lot 17, before it continues underground, crossing Third Street at a forty-five degree angle, and continuing toward Lake Street. (N.T. at 188, 219-220, 223, R.R. at 343b, 374b-375b, 378b.)
The side of Third Street on which the Property is located does not have culverts or a swale; however, the opposite side of Third Street has a swale running parallel to the street and the bordering properties, and most of the driveways have culverts underneath to allow surface water to travel freely through the swale. (N.T. at 59, 63, 65, R.R. at 214b, 218b, 220b.) The surface water running down the opposite side of Third Street through the swale is then conveyed underneath Third Street and onto Lot 17 via the sluice pipes. (N.T. at 130, R.R. at 285b.) Both pipes are a part of the Borough's storm water management system. (N.T. at 226, R.R. at 381b.)
Initially, Appellant gave permission for Borough representatives to enter the Property and attempt to work a solution to the flooding caused by the discharge of water on Lot 17 from the two pipes. (N.T. at 155, R.R. at 301b.) Borough representatives entered the Property, cut back brush on Lot 17, and dug a trench at the point where the discharge from the two pipes was closest, to allow the water exiting the pipes to traverse the length of Lot 17, and outlet into an existing channel located on the property behind Lot 17. (N.T. at 153, 157, 195, 222, R.R. at 208b, 250b, 312b, 377b.) The trench failed to lessen the effect of the flooding on the Property and, dissatisfied with this result, Appellant subsequently rescinded permission for the Borough to enter the Property. (N.T. at 159, 191-193, R.R. at 314b, 346b-348b, Appellant's Trial Exhibit 59.)
The flooding and standing water on Lot 17 continued, and when Lot 17 became saturated, the water traveled onto Appellant's other lots. (N.T. at 198, R.R. at 353b.) Appellant's residence, situated next to Lot 17 on Lot 16, is a former barn constructed of cinder block and the water traveled under the foundation, causing damage to the residence. (N.T. at 178-180, 198, R.R. at 333b-335b, 353b.) Over time, Appellant took steps to protect the residence, such as adding a silicone coating to the siding, constructing a stone wall at the Property line, raising Lot 16, and putting down gravel to absorb the water, but the flooding continued to impact her residence. (N.T. at 180, 196, 198, 204, 335b, 351b, 353b, 359b.) Ultimately, Appellant's residence suffered significant water damage, Lot 17 remained saturated, and none of the steps Appellant undertook lessened the damage caused by the excess surface water discharged onto her Property.
On March 4, 2003, Appellant, represented by counsel, filed a complaint in equity alleging that the Borough is the owner of a water drainage system that is located, in part, on her property, that the Borough's placement of the water drainage system was without consent, and that the water drainage system continually deposits excessive quantities of water onto her land. (Complaint ¶¶4-8, R.R. at 12a-13a.) Appellant claimed that the excessive quantity of water deposited by the drainage system amounted to a continuing trespass, rendering a portion of her land unusable and interfering with her enjoyment of the Property. (Complaint ¶¶15-16, R.R. at 13a-14a.) Appellant further alleged that the Borough altered the natural flow of surface water by concentrating the discharge of surface water onto the Property, causing a dangerous condition, and that the Borough had negligently constructed and maintained its water drainage system. (Complaint ¶¶18-19, R.R. at 14a.) Appellant asked for both monetary damages and equitable relief.
On April 18, 2007, Appellant petitioned for preliminary and/or permanent injunctive relief, requesting that the Borough be ordered to remove the pipes discharging water onto the Property and/or abate the continuous discharge of water. Hearings were held before the Trial Court on April 3, 2009, and May 1, 2009, and the Trial Court conducted a view of the Property on May 1, 2009. On October 6, 2009, the Trial Court issued an opinion and order denying Appellant's petition for injunctive relief. The Trial Court reasoned that an injunction was inappropriate because (1) the record failed to establish the status quo, (2) Appellant had an adequate remedy at law, and (3) it was not clear from the record that removal would not harm the public interest. (October 6, 2009, Opinion and Order (Injunction Op.), at 9-10, R.R. at 262a-263a.) The Trial Court also stated that its opinion and order was limited to Appellant's entitlement to a mandatory injunction and was not intended to address Appellant's entitlement to the relief requested in her complaint. (Injunction Op. at 9, R.R. at 262a.)
Appellant was represented by counsel up to and including the two hearings and the view conducted as a part of the Trial Court's review of Appellant's petition for injunctive relief. On May 28, 2009, Appellant's counsel filed a petition for leave to withdraw as counsel. The petition was granted on June 16, 2009, at which time Appellant elected to proceed pro se.
On August 10, 2011, the Trial Court held a single-day non-jury trial on Appellant's claims. Appellant testified and submitted into evidence a series of photographs of the pipes at issue, the water collecting on the Property, and the damage to her residence. Appellant, however, chose not to submit evidence concerning monetary loss. Both Appellant and the Borough presented the testimony of the Borough's engineer, John Seaman. The Borough also presented photographs, a street profile of Third Street, and a topographical map of the area surrounding the Property. The Borough did not dispute the water problems and the damage to the Property alleged by Appellant, but sought instead to demonstrate throughout the trial that the excess surface water on Appellant's Property was a result of the natural watercourse and not due to any act for which the Borough was liable.
Following the non-jury trial, the Trial Court concluded that Appellant had "failed to meet her burden," writing: "There simply is no credible evidence of record which supports a cause of action in negligence or trespass. For this reason, Plaintiff's claim for relief is hereby denied." (December 28, 2011, Opinion and Order (Trial Court Op.) at 14, R.R. at 677a.) Appellant appealed to this Court.
Before this Court, Appellant argues a right to recover under the Storm Water Management Act (SWMA), and contends that the Borough's actions constitute a taking in violation of the United States and Pennsylvania Constitutions. Appellant also contends that the Trial Court's denial of her recusal request was an abuse of discretion. Finally, Appellant contends that the Trial Court committed an error of law and abused its discretion in finding that she failed to meet her evidentiary burden and denying her claim for equitable relief based on negligence and trespass. For the reasons that follow, although we conclude that Appellant procedurally waived her takings claims and her claim under the SWMA, and we affirm the Trial Court's denial of Appellant's claim for relief based in negligence, we must reverse and remand this matter to the Trial Court, as we conclude that the Trial Court committed an error of law in denying Appellant equitable relief for her claim of trespass.
Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1-680.17.
"Our appellate role in cases arising from non-jury trial verdicts is to determine whether competent evidence supports the trial court's findings or whether the court committed an error of law. The trial court's findings of fact must be given the same weight and effect on appeal as the verdict of a jury. Further, we consider the evidence in a light most favorable to the verdict winner." James Corp. v. North Allegheny School District, 938 A.2d 474, 483 n.6 (Pa. Cmwlth. 2007) (internal citations omitted).
Appellant argues that the Borough violated the SWMA by diverting surface water over her land, creating a nuisance, and by failing to file a storm water management plan. Appellant is procedurally barred from recovery under the SWMA. Appellant did not allege a right to recover under the SWMA in her complaint. Appellant's complaint contains only claims for trespass and negligence and Appellant has never amended her complaint to include other claims. Appellant contends that the SWMA has "been a part of the Pleadings since June, 2007," and cites to portions of the reproduced record that contain her counseled brief in support of a petition for preliminary injunction and her post-hearing pro se brief in support of a request for preliminary injunction. (Appellant Br. at 32.) Neither of the briefs cited by Appellant are proper pleadings or vehicles with which to raise a claim for relief. See Pa. R.C.P. No. 1017(a). Regardless of whether Appellant may have at one time had a substantive basis upon which to claim a right to recover under the SWMA, Appellant waived any such claim in these proceedings.
Pennsylvania Rule of Civil Procedure No. 1017(a) states: "Except as provided by Rule 1041.1, the pleadings in an action are limited to (1) a complaint and an answer thereto, (2) a reply if the answer contains new matter, a counterclaim or a cross-claim, (3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter, (4) a preliminary objection and a response thereto."
Section 15 of the SWMA, with certain exceptions, allows private individuals aggrieved by violations of the act to bring suit for damages or equitable relief. 32 P.S. § 680.15.
Similar procedural deficiencies bar Appellant's takings claim. In her brief to this Court, Appellant alleges that her rights under the Fifth and Fourteenth Amendment of the United States Constitution and under Article 1, Section 10 of the Pennsylvania Constitution have been violated. As with Appellant's argument concerning the SWMA, Appellant may well have had a substantive basis upon which to pursue a claim against the Borough for taking the Property or a portion thereof without the payment of just compensation. However, Appellant has failed to follow the proper procedural law in advancing her claim. Appellant filed a civil action in equity alleging claims of negligence and trespass. Nowhere in her complaint does Appellant raise any counts related to the Pennsylvania or United States Constitution. More importantly, Appellant did not and has never filed a petition with the common pleas court for the appointment of a board of viewers in accordance with the Eminent Domain Code. In order to advance her claims that the Property or a portion thereof was taken without just compensation, Appellant needed to file a petition for appointment of a board of viewers. Id. Accordingly, Appellant's state and federal constitutional claims are not properly before this Court.
The Fifth Amendment to the United States Constitution provides, in relevant part, "[N]or shall private property be taken for public use, without just compensation." The Fourteenth Amendment to the United States Constitution provides, in relevant part, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." See also Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S. Ct. 581, 586 (1897). Article 1, Section 10 of the Pennsylvania Constitution provides, in relevant part, "[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured."
At the time Appellant filed her civil action, Section 502 of Article V, the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §§ 1-101 - 1-903, providing for the appointment of a board of viewers was still in effect. The Act has since been repealed and replaced with the Act of May 5, 2006, P.L. 112, § 1, 26 Pa. C.S. § 502(c).
A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his or her property. Capece v. City of Philadelphia, 552 A.2d 1147, 1148 (Pa. Cmwlth. 1989). In order to sustain a taking as a result of excess surface water, the water must constitute an actual, permanent invasion of the land amounting to an appropriation. Oxford v. Commonwealth Dep't. of Transp., 506 A.2d 990, 994 (Pa. Cmwlth. 1986). If the condition is abatable and preventable, it is not permanent, and amounts to an injury to the property rather than an appropriation. Colombari v. Port Authority of Allegheny County, 951 A.2d 409, 413 (Pa. Cmwlth. 2008).
Next, Appellant contends that the Trial Court Judge demonstrated a bias against her and that it was therefore an abuse of discretion to deny her motion for recusal. As a general rule, a motion for recusal is initially addressed to and ruled upon by the jurist whose impartiality is being challenged. Commonwealth v. White, 589 Pa. 642, 657, 910 A.2d 648, 657 (2006). The party requesting recusal has the burden to produce evidence establishing bias, prejudice, or interest. Reilly by Reilly v. Commonwealth, 507 Pa. 204, 222, 489 A.2d 1291, 1300 (1985). The jurist will then make an independent, self-analysis of the ability to be impartial and decide whether continued involvement in the case "creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary." Commonwealth v. Druce, 577 Pa. 581, 589, 848 A.2d 104, 108 (2004). An appellate court, such as this one, presumes judges are fair and competent and will only disturb the decision to deny a request for recusal where it is shown to be an abuse of discretion. White, 589 Pa. at 657, 910 A.2d at 657. Nonetheless, there is no need to find actual prejudice; the appearance of impropriety alone is sufficient justification to grant new proceedings. In Interest of McFall, 533 Pa. 24, 34, 617 A.2d 707, 712 (1992).
Appellant first requested that the Trial Court Judge recuse himself as one of several claims raised in a petition for a writ of mandamus that was filed at the same term and number as Appellant's civil action. The Trial Court Judge orally denied the writ in toto prior to the commencement of the August 10, 2011, non-jury trial and on September 13, 2011, issued a written opinion detailing the grave procedural and substantive deficiencies in the petition that supported denial. However, at the August 10, 2011 hearing and in the December 28, 2011 opinion, the Trial Court Judge separately addressed the recusal request, placing in the record Appellant's request and his reasons for denying the recusal request. (N.T. at 10-11, R.R. at 165b-166b); see also Trial Court Op. at 3 n.2, R.R. at 666a.)
Before the Trial Court, Appellant requested that the Trial Court Judge recuse himself on the basis that his denial of her request for a stenographer at the October 26, 2010 summary judgment hearing reflected a bias against her. The Trial Court Judge stated that he had no independent recollection of denying the request for a stenographer and that his practice is to always grant such requests. (N.T. at 11, R.R. at 166b.) In addition, the Trial Court Judge stated that even if Appellant's recollection was correct, the summary judgment proceedings were for the purpose of legal argument, not fact finding, and that Appellant was not prejudiced by the lack of fact finding at the summary judgment hearing, nor was a conflict created that would prevent him from serving as a fact-finder at trial. (Id.)
Before this Court, Appellant argues that recusal was necessary "for the very reason that he knew of belief by Appellant of bias on his part and therefore he could not possibly render an impartial verdict." (Appellant Br. at 23.) Appellant also contends that the Trial Court Judge's impartiality is reflected in references to her lack of legal knowledge contained in the December 28, 2011 opinion. (Appellant Br. at 23-25.)
We find no abuse of discretion in the denial of Appellant's recusal motion. Appellant offered no evidence to support the request, let alone evidence that established bias, prejudice, or interest. Moreover, a jurist's knowledge that a party before him or her believes the jurist is partial is not grounds for recusal; if such knowledge alone were sufficient grounds for recusal, any party could recuse any jurist simply by making the motion.
Separately, the record in this case reveals a long journey from the clarity of the allegations pled to the opacity of what exactly was evinced at trial. The discussion in the December 28, 2011 opinion of Appellant's pro se status speaks to the difficulty the Trial Court Judge here faced in trying to ensure Appellant access to the courts without also providing her assistance in the prosecution of her case, thereby depriving the Borough of its right to a fair trial. The transcript of the August 10, 2011 hearing memorializes repeated instances where Appellant's lack of legal training and confusion over what can be offered as evidence and what is a legal argument worked to the detriment of her case. (N.T. at 29-36, 83-86, 120-121, 132, 141, 144-145, 148-150, 169; R.R. at 184b-192b, 238b-241b, 275b-276b, 287b, 296b, 299b-300b, 303b-305b, 324b.) Unfortunately, such difficulty is all too common among pro se litigants, a fact which reflects on the enormity of their task rather than on the litigants themselves, but does not and cannot relieve a party unrepresented by counsel of the obligation to follow procedural and substantive law. The Trial Court Judge's discussion of the law concerning the role of the trial court and the obligations of pro se litigants in the December 28, 2011 opinion is a necessary discussion of the context within which the record on appeal was created and serves to aid our review of a record that he aptly described as "convoluted." (Trial Court Op. at 5, R.R. at 668a.)
Next, Appellant contends that the Trial Court committed an error of law and abused its discretion in finding that she failed to meet her evidentiary burden and in denying her claims for equitable relief based on negligence and trespass. The Borough argues that Appellant failed to meet her evidentiary burden on both claims.
Under Pennsylvania common law, the owner of upper land is not liable to an owner of lower land for damage from surface water that flows through the natural water course; however, there are two well-settled exceptions to this rule of loss without injury. Shamoski v. P.G. Energy, Div. of Southern Union Co., 579 Pa. 652, 669, 679, 858 A.2d 589, 599, 606 (2004). First, a landowner may not alter the natural flow of surface water by concentrating it in an artificial channel and discharging it on the land of another, even though no more water is collected than would naturally have flowed upon another's land in a diffused condition. Rau v. Wilden Acres, Inc., 376 Pa. 493, 494-495, 103 A.2d 422, 423-424 (1954); Chamberlain v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953); Pfeifer v. Brown, 165 Pa. 267, 273, 30 A. 844, 845 (1895); Kauffman v. Griesemer, 26 Pa. 407 n.a (1856) (quoting Martin v. Riddle, "[N]or has the owner of the upper ground a right to make excavations or drains by which the flow of water is directed from its natural channel, and a new channel made on the lower ground; nor can he collect into one channel water usually flowing off into his neighbour's fields by several channels, and thus increase the wash upon the lower fields."). Second, a landowner may not unreasonably increase the quantity of water or change the quality of water discharged upon a lower landowner. Lucas v. Ford, 363 Pa. 153, 156, 69 A.2d 114, 116 (1949); Tom Clark Chevrolet, Inc. v. Dept't of Environmental Protection, 816 A.2d 1246, 1252 (Pa. Cmwlth. 2003); LaForm v. Bethlehem Township, 499 A.2d 1373, 1378 (Pa. Super. 1985). These common law rules of surface waters bind all landowners, including municipalities. Rau, 376 Pa. at 494-494, 103 A.2d at 423-424 ("Even a municipality, while not liable to a property owner for an increased flow of surface water over his land arising merely from changes in the character of the surface produced by the opening of streets and the building of houses in the ordinary and regular course of the expansion of the city, may not divert the water onto another's land through the medium of artificial channels."); Marlowe v. Lehigh Township, 441 A.2d 497 (Pa. Cmwlth. 1982).
In Tom Clark Chevrolet, Inc. v. Department of Environmental Protection, 816 A.2d 1246, 1252 n.15 (Pa. Cmwlth. 2003) (internal citations omitted) we stated that "surface water means water from rain, melting snow, springs, or seepage, or detached from subsiding floods, that lies or flows on the surface of the earth but does not form a part of a watercourse or lake," and that "watercourse means a stream of water of natural origin, flowing constantly or recurrently on the surface of the earth in a reasonably definite natural channel." We also examined the difference between "natural" and "artificial" in the context of watercourses:
By "natural" watercourses are meant those watercourses whose origin is the result of the forces of nature. (But see Comment g [relating to new channels] ). By artificial waterways are meant all waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes and the like. Many "natural" watercourses have in some respects been altered by acts of man. The phrase "natural origin" also includes a natural watercourse that has in some measure been so altered. Widening, narrowing, deepening or straightening the natural channel, or changing the course in part, are alterations that do not change its classification as a watercourse. Likewise the addition of water that, but for the act of man, would never have become part of the stream, does not destroy its character as a natural watercourse. These changes may, however, affect the legal relations of persons who perform or may be affected by those acts.
While Pennsylvania municipalities are bound by the same common law rules of surface waters as other landowners, our municipalities do not have a common law duty to provide storm water management systems. Carr v. Northern Liberties, 35 Pa. 324 (1860); City of Washington v. Johns, 474 A.2d 1199, 1202 (Pa. Cmwlth. 1984); Yulis v. Borough of Ebensurg, 128 A.2d 118, 120 (Pa. Super. 1956). As a result, a municipality cannot be held negligent if harm befalls another due to the inadequacy of a storm water management system constructed and maintained by the municipality; but, if harm is due to negligence in the construction of the system, a municipality may face liability. Tom Clark Chevrolet, Inc, 816 A.2d at 1252.
For example, in Al Staffaroni v. City of Scranton, 620 A.2d 676, 677, 679 (Pa. Cmwlth. 1993), the plaintiff claimed the city negligently constructed its storm water management system after the city placed a 15-inch drainage pipe underneath a road running alongside the plaintiff's property in an attempt to alleviate an icing problem on the roadway. The placement of the pipe allowed surface water that had previously traveled across the road in a diffuse manner to be collected, channeled underneath the road, and discharged in a concentrated fashion on plaintiff's land creating a gully and causing erosion. Id. At trial, the plaintiff demonstrated through photographs, oral testimony, and documentary evidence that the city installed the pipe despite the foreseeable injury to the plaintiff, the concentration of water created the gully and caused the erosion on plaintiff property, and the gully and erosion constituted actual economic damage to the property. Id. With these proofs, the plaintiff demonstrated that the city was negligent in the construction of its storm water management system and, accordingly, the trial court ordered that the city block off the pipe and compensate the plaintiff for the damage done to the property. Id. at 678.
Similarly, once a municipality has constructed or taken ownership and control over a storm water management system, the municipality must take steps to maintain that system, such as replacing cracked pipes and preventing blockages, or the municipality may be liable for harm caused by the failure to do so. Morton v. Borough of Ambridge, 375 Pa. 630, 101 A.2d 661 (1954) (borough's failure to maintain lateral connections allowed water to seep around sewer, which weakened the fill, and caused sewer to collapse, creating a jury question as to whether resulting harm was due to borough's negligence); Tom Clark Chevrolet, Inc., 816 A.2d at 1252.
In City of Washington v. Johns, the plaintiffs repeatedly lodged complaints with the city because a portion of the city's drainage system caused storm water to back up in the basement of the plaintiffs' private home. 474 A.2d at 1201. The city responded to the plaintiffs' complaints on only one occasion and at that time removed large quantities of dirt that had accumulated in the public sewer. Id. Following a heavy rainstorm, the plaintiffs' private home suffered interior water and structural damage, for which the plaintiffs brought an action against the city for negligent maintenance of its storm water management system. Id. This Court concluded that the plaintiffs had produced sufficient evidence to demonstrate that it was the city's failure to keep the sewer free of dirt, rather than the inability of the system to adequately manage the amount of storm water, that caused injury to the plaintiffs' property. Id. at 1202-1203.
In her complaint, Appellant alleges extensive damage to the Property caused by the Borough's negligent construction and maintenance of its drainage system and requests money damages and equitable relief. (Complaint ¶¶18, 20.) To prove her negligence cause of action, Appellant had the burden to establish at trial: (1) a duty recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure of the actor to conform to that standard; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damages to the interests of another. Fazio v. Fegley Oil Co., Inc., 714 A.2d 510, 512 (Pa. Cmwlth. 1998). However, unlike the plaintiff in Al Staffaroni v. City of Scranton, Appellant failed to offer the requisite proof to support her allegations.
Under Appellant's claim for negligent construction, the duty on the Borough was to construct or install its storm water management system without altering the natural flow of surface water by concentrating it in an artificial channel and discharging it onto the Property. Although there was no question that both of the pipes direct surface water onto the Property, there was not sufficient evidence at trial to demonstrate that the Borough installed the pipes. The only evidence concerning the initial installation or construction of the two pipes consisted of the Borough's response to Appellant's interrogatories, which states: "The original drainage system was installed at least thirty (30) years ago. The precise date of the installation is unknown. New piping was installed approximately fifteen (15) years ago, by the Sewer Author [sic]." (N.T. at 90, R.R. at 245b; Appellant's Trial Exhibit 33.) At no time during the course of this litigation did the Borough represent that it installed the pipes or that it had knowledge of who may have installed the pipes. Without proof that the Borough performed the act of installation or construction, Appellant's negligence claim cannot be sustained; without the act, there is no duty, and without a duty, there can be no breach.
Likewise, Appellant's claim for negligent maintenance must fail due to insufficient evidence. There was no evidence at trial that showed or suggested a failure by the Borough to maintain its storm water management system, such as cracks or sags in the pipes, clogs in the culverts, erosion of the swale, or the like. Instead, it is clear from the record that the system functions just as it was intended and it is this system that causes the damage Appellant complains of, rather than a failure to maintain the system amounting to negligence.
Appellant's final argument is that the Trial Court erred in denying her claim for trespass due to insufficient evidence. Liability in trespass is created where one intentionally causes a thing to enter the land of another or causes a thing to remain on the land or fails to remove a thing from the land in violation of a duty. Restatement (Second) of Torts § 158. Rawlings v. Bucks County Water and Sewer Authority, 702 A.2d 583 (Pa. Cmwlth. 1997). In addition, liability for a continuing trespass is created by continued presence on the land of a thing "which the actor has tortiously placed there, whether or not the actor has the ability to remove it," or "which the actor's predecessor in legal interest therein has tortiously placed there, if the actor, having acquired his legal interest in the thing with knowledge of such tortious conduct or having thereafter learned of it, fails to remove the thing." Restatement (Second) of Torts § 161 (1965); see also Miller v. Stroud Township, 804 A.2d 749, 754 (Pa. Cmwlth. 2002); Rawlings, 702 A.2d at 586; Graybill v. Providence Township, 593 A.2d 1314, 1316-1318 (Pa. Cmwlth. 1991); Marlowe, 441 A.2d at 500-501.
The Restatement (Second) of Torts § 158 (1965) states: "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove."
Appellant contends that she established a continuing trespass by demonstrating that the Borough owns and maintains a water drainage system that is located, in part, on her property, that the system was placed without consent, and that the water drainage system continually deposits a concentration of surface water onto her land. We agree.
The Borough produced a street profile and topographical map demonstrating that the Property is located below twenty-six acres in the flat slope of a "bowl" and that surface water naturally traverses the higher land in the direction of Third Street and the Property. (N.T. at 147, 211, 217, Borough Trial Exhibit 3, 4, R.R. at 302b, 366b, 372b.) The Borough engineer testified that the topography of Third Street has not changed in the last fifteen years and that the only change to Third Street was an inch and a half of pavement added in 2009. (N.T. at 245, R.R. at 400b.) The Borough engineer admitted that the Property and the properties directly across Third Street share the same elevation or flat slope. (N.T. at 236-239, R.R. at 391b-394b.) The Borough engineer further stated that "the pipe is conveying water from the northeast side of Third Street onto your property. That's what we testified to time and time again." (N.T. at 241, R.R. at 396b.) The Borough engineer admitted that if the pipes were removed, surface water would collect on the opposite side of Third Street, and with a big enough rain fall, run over top of Third Street and onto Appellant's Property. (N.T. at 234-241, R.R. at 389b-396b.) The Borough engineer stated that "these engineering drawings, Ms. Florimonte, indicate that the waters [sic] coming your way. There's no way to get around it. Until the good Lord reverses gravity the waters [sic] going to cross Third Street." (N.T. at 239; Trial Court Op. at 12-13.)
In denying her claim for trespass, the Trial Court stated:
[Appellant] did not present any evidence, expert or otherwise, that addressed the natural flows of water before pipe installation or the natural flow of water after installation. There was no evidence of record that addressed the amount of water discharged, the nature and relative flow rate and/or velocity of same, both before and after installation. What was clear to this Court was that the removal of the pipe would not abate [Appellant's] problem and would likely create a safety hazard on Third Street, especially in the winter months.(Trial Court Op. at 13-14.) Had Appellant based her trespass claim on a change in the quantity or quality of surface water deposited on the Property, Appellant would have had to produce evidence akin to that delineated by the Trial Court concerning the nature and relative flow rate and/or velocity or volume of water discharged on the Property. Here, Appellant's theory is based on the collection, concentration, and diversion of surface water onto the Property via an artificial channel. As a result, to prove trespass, Appellant needed to demonstrate the natural flow of water before and after installation of the pipes. We conclude that the Trial Court committed error by applying the incorrect law to the evidence at trial.
Here, Appellant was able to prove her claim in large part due to the evidence presented by the Borough. The testimony of the Borough's engineer, credited and cited by the Trial Court, (Trial Court Op. at 11-12.), and the supporting exhibits offered into evidence by the Borough, establish that surface water traveled through the watershed to the area of Third Street where the Property is located, it did so in a diffuse condition, and that the water only flowed onto the Property in a concentrated fashion because it was collected by the culverts and swale and diverted through an artificial channel, the sluice pipes, onto the Property. See Marlowe, 441 A.2d at 501 ("We disagree with this rationale to the extent that it implies, as the township vigorously argues, that the [plaintiffs] have not suffered an actionable wrong because the water now flowing over their property is the same storm runoff, albeit in a concentrated state, which was present before the township acted.").
Furthermore, the evidence clearly shows that the Borough maintains this artificial diversion of surface water onto the Property for the benefit of Third Street. The Borough argues that a central point in this case is the fact that removal of the pipes would cause water to pond on Third Street and would create freezing and icy road conditions in winter, amounting to a public hazard. However, the fact that the Borough's diversion of surface water onto the Property benefits the road is not material in an analysis of whether or not the Borough is liable for trespass, nor does a benefit to the road or the public transform a recoverable loss into a loss without injury. Moreover, if the Borough wishes the public benefit to be central to an analysis of its use of the Property, the Borough can of course make use of its powers of eminent domain.
Finally, the evidence shows that the Borough's artificial diversion of surface water onto the Property continues without consent. (N.T. 255, R.R. at 410b.) Before the Trial Court, Appellant entered into evidence the deed to the Property, which reflected an absence of formal easements. (N.T. at 28, R.R. at 183b, Appellant's Trial Exhibit 4.) The Borough's engineer testified that the two pipes discharging water onto the Property were part of the Borough's storm water management system. (N.T. at 91-92, 225-226, R.R. at 246b-247b, 380b-381b.) The Borough also abandoned its claim that a prescriptive easement had been acquired by adverse, open, notorious, continuous and uninterrupted use of Lot 17 for 21 years. (N.T. at 28, 250-251, R.R. at 183b, 405b-406b); compare Gehres v. Falls Township, 948 A.2d 249 (Pa. Cmwlth. 2008) (municipality acquired a public, prescriptive easement to artificially collect, concentrate, and discharge storm water runoff onto plaintiff's private property by adverse, open, notorious, continuous and uninterrupted use of plaintiff's private property for storm water drainage for 21 years). Appellant and the Borough's engineer testified that she allowed the Borough onto the Property in 2001 to remove the surface water, but subsequently rescinded permission in March 2002 when the Borough failed to do so. (N.T. at 159, 191-193, R.R. at 314b, 346b-348b, Appellant's Trial Exhibit 59; Trial Court Op. at 13.) Clearly, the Borough does not have permission to divert surface water onto the property.
Appellant has demonstrated a continuing trespass. The Borough is liable to Appellant for trespass due to surface waters it concentrates in an artificial channel and discharges onto the Property as a part of its storm water management system. Appellant is entitled to equitable relief. St. Andrews Evangelical Lutheran Church of Audubon v. Township of Lower Providence, 414 Pa. 40, 198 A.2d 860 (1964).
Left is the issue of damages. Appellant's complaint was filed in equity prior to our Supreme Court's December 16, 2003 order merging actions in equity with civil actions effective July 1, 2004. See Supreme Court Order, December 16, 2003, No. 402 Docket No. 5 (In re Consolidation of the Action in Equity with the Civil Action). In her complaint, Appellant requested both money damages and equitable relief compelling the Borough "to remove that portion of its drainage system which is located on [the Property] in such a manner that an excessive amount of water is no longer deposited on [the Property]," along with any other relief the court deemed necessary under the circumstances. (Complaint ¶¶16, 20, R.R. at 14a-15a.) The Borough did not challenge Appellant's right to claim equitable and legal relief in the same action. (N.T. at 38, R.R. at 193b.) Prior to trial, neither Appellant nor the Borough requested that the Trial Court bifurcate the presentation of evidence. (N.T. at 120, R.R. at 275b; See also Docket Entries 2003-EQ-2011.) Yet, at trial, Appellant abandoned her claim for money damages, specifically objected to the inclusion of damages, and stated that she would only continue with her equitable claim. (N.T. at 36-38, 120, R.R. at 191b-193b, 275b.) Accordingly, Appellant has affirmatively waived her right to recover money damages.
We affirm in part, reverse the Trial Court's denial of Appellant's claim for relief in trespass, and remand to the Trial Court to fashion an equitable remedy that will abate the trespass created on Appellant's Property by the unlawful concentration and discharge of surface water thereon through and from the two pipes, referred to in the record as the ninety-degree and forty-five degree pipes, laid under Third Street and terminating near or upon the Property. We also note that nothing in this opinion should be construed to affect the right of the Borough to exercise its power of eminent domain.
Our opinion in this matter is consistent with a prior unpublished opinion addressing equitable relief for a continuing trespass by a local government's artificial diversion of surface water in a concentrated form onto the property of another, Medallis v. Northeast Land Development, LLC, et al., (Pa. Cmwlth. No. 1479 C.D. 2009, Filed July 23, 2010), where we affirmed on the basis of the trial court's opinion, Grace Medallis and Robert A. Medallis v. Northeast Land Development, LLC, CJS DEV, Inc., Tripp CIDC, Inc., CDC-1, LLC and City of Scranton, 8 Pa. D. & C. 5th 411 (Dkt. No. 2003 EQ 60063, Filed December 4, 2008 and June 26, 2009) (C.P. Lackawanna). As we have here, the trial court stated in its opinion in Medallis the principle that a landowner who diverts surface water in violation of the applicable common law rules is liable, even if the landowner is not guilty of negligence. Id. at 416. Also relevant to the matter before us, the trial court in Medallis addressed the inapplicability of the governmental immunity provisions of the Judicial Code, 42 Pa. C.S. §§ 8541-842, which extend to liability for damages, to certain types of injunctive relief. Medallis, 8 Pa. D. & C. 5th at 425; see also Rawlings, 702 A.2d at 587; E-Z Parks Inc. v. Larson, 498 A.2d 1364, 1370 (Pa. Cmwlth. 1985), affirmed, 509 Pa. 496, 503 A.2d 931 (1986) ("Since governmental immunity under Section 8541 of the Judicial Code extends only to liability for damages, Petitioner must be permitted to pursue his claim against the Authority for injunctive relief.") --------
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 4th day of April, 2013, the order of the Lackawanna County Court of Common Pleas denying Carolyn J. Florimonte's claim for relief in the above-captioned matter is affirmed, in part, as Carolyn J. Florimonte has failed to offer sufficient evidence of negligence and reversed, in part, as Carolyn J. Florimonte has demonstrated a continuing trespass and is entitled to equitable relief.
The matter is remanded to the Lackawanna County Court of Common Pleas to fashion equitable relief consistent with the attached opinion that will abate the trespass created on Carolyn J. Florimonte's property situated at 219 Third Street in the Borough of Dalton, Lackawanna County, Pennsylvania, by the unlawful concentration and discharge of surface water thereon through and from the two pipes, referred to in the record as the ninety-degree and forty-five degree pipes, laid under Third Street and terminating near or upon the property.
Jurisdiction relinquished.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
Id. (quoting Restatement (Second) of Torts § 841 comment h (1979)).