Opinion
No. 2440 C.D. 2010
10-19-2011
Barry H. Carb, Appellant v. City Of Pittsburgh
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Barry H. Carb (Carb) seeks review of an order of the Court of Common Pleas of Allegheny County (trial court) that granted summary judgment in favor of the City of Pittsburgh (City). Carb contends disputed issues of material fact remain regarding the City's operation of a park, specifically whether the authorization of a youth baseball league constitutes a nuisance. Additionally, Carb argues City's non-enforcement of its ordinances and permits creates an additional nuisance.
Upon review, we agree issues of material fact remain regarding the reasonableness of the authorization of youth baseball and its associated activities at the park. However, we affirm the grant of summary judgment in favor of the City as to Carb's claims regarding the City's discretionary ordinance and permit enforcement. Thus, we affirm in part, and reverse and remand in part.
I. Background
The following facts are not in dispute. In 1985, Carb purchased a property in Pittsburgh, Pennsylvania, which abuts a playground and ball field owned by the City. When Carb purchased his property, he was fully aware the ball field was regularly used for baseball, softball and kickball.
Approximately 14 years after Carb began living on his property, the City constructed a fence along the perimeter of the ball field. The City built the fence, at least partially, because in a prior year Carb lodged a complaint with the City about children entering his property. More recently, the City built a second, 20-foot high fence behind the original fence to further shield Carb's property from balls exiting the field.
For 20 years, Carb raised no other objections to the use of the ball field. During that time, the City routinely issued permits to the Greenfield Baseball Association (GBA) for little league baseball play. Nonetheless, Carb did not complain about City's operation of the ball field or the spectators' behavior.
However, in 2008, due to an alleged increase in the frequency of little league games and uncivil behavior amongst spectators, Carb filed a nuisance action against the City requesting an injunction to prohibit the use of the ball field and compensatory damages. Thereafter, the City filed a motion for summary judgment.
In its brief opinion, the trial court determined: Carb purchased his home in 1985; the property abutted a baseball field; at the time of purchase, Carb knew the field was regularly used for baseball, softball, and kickball; the City built two fences to separate the baseball field from Carb's property; the baseball field is used for league games and practices in accordance with permits granted by the City; the field has no artificial lights for nighttime play; and, the sound system output did not exceed a reasonable volume. As a result, the trial court concluded Carb did not establish the existence of a dispute of material fact as to whether the City's conduct constituted a nuisance. Additionally, the trial court denied Carb's other requests for relief (failure to enforce and prosecute ordinance and permit violations against GBA members and spectators) as not supported by law. Thus, the trial court granted the City summary judgment. Carb appeals to this Court.
II. Issues
On appeal, Carb contends the City's actions constitute a nuisance. The entry of summary judgment was in error because disputed issues of material fact remain. Additionally, Carb argues the trial court improperly applied the doctrine of laches and considered extra-record evidence.
Our review of the grant of a motion for summary judgment is limited to determining whether the trial court committed an error of law or a manifest abuse of discretion. Jones v. Clearfield Area Sch. Dist., 578 A.2d 612 (Pa. Cmwlth. 1990). Summary judgment is properly granted only where the pleadings, depositions, answers to interrogatories and affidavits establish there is not genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035. --------
III. Discussion
Summary judgment may only be granted when, viewing all the facts in the light most favorable to the nonmoving party and resolving all doubt as to the existence of any material fact against the moving party, the moving party is entitled to judgment as a matter of law. McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 2008). It is not the function of a court when ruling on a motion for summary judgment to weigh evidence and determine the truth of the matter. Keenheel v. Pa. Sec. Comm'n, 579 A.2d 1358 (Pa. Cmwlth. 1990). To establish a genuine issue of material fact where the nonmoving party bears the burden of proof at trial, that party must present sufficient evidence that could compel a jury to return a verdict in its favor. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
A. Nuisance
As distinguished from negligence, a municipality may be civilly liable if it creates or maintains a nuisance on its property. Lawrence v. Scranton City, 284 Pa. 215, 130 A. 428 (1925); Chase v. Eldred Borough, 902 A.2d 992 (Pa. Cmwlth. 2006).
Our Supreme Court holds the proper test for determining whether a particular use of a property is a nuisance requires weighing the reasonableness or unreasonableness of the use of the property in the particular locality under the circumstances of the case. Guarina v. Bogart, 407 Pa. 307, 180 A.2d 557 (1962). If a nuisance is established, a remedy may be shaped, if one exists, by weighing the seriousness of the complained injury against the cost of avoiding it and the conduct's utility. In re Westmont, 570 A.2d 1382 (Pa. Cmwlth. 1990).
The fact that a party comes to the nuisance by locating itself next to the harmful activity does not automatically deprive that party the right to enjoin the use. Chase (citing Carter v. Lake City Baseball Club, 62 S.E.2d 470 (S.C. 1950)). Accordingly, a party's coming to the nuisance does not create a complete bar from recovery, but remains a factor for the court to consider when determining the activity's reasonableness on the particular piece of land. See Guarina.
1. Little League Baseball Play
Carb first alleges factual issues exist regarding the unreasonableness of little league baseball play at the park. Specifically, Carb alleges in his affidavit in opposition to the City's motion for summary judgment that, starting in 2005, little league play on the ball field dramatically increased. Reproduced Record (R.R.) at 104a-105a. Carb claims the increased use of the park led to his loss of the use and enjoyment of his property as a result of the little league play and its accompanying activities. R.R. at 104a-107a. He averred that the field was prepared beginning at 6:00 or 6:30 in the morning, creating clouds of dust, and used for games or partying until 10:00 or 10:30 at night, seven days per week. Id.
The trial court determined GBA's organizing and playing of little league baseball on the ball field was reasonable for the field's location; therefore, the City did not create a nuisance. In so holding, the trial court concluded that the little league games and practices constituted a reasonable use of the property under the circumstances despite any number of balls children may hit over the fences. Tr. Ct., Slip Op. at 2. The trial court drew additional support for this conclusion from the undisputed evidence that Carb purchased the property after he observed the existence of the neighboring field, and that children played little league baseball on the field for the last several decades. Id.
Without expressing an opinion on the merits of Carb's claim, we respectfully disagree with the trial court's grant of summary judgment because issues of material fact remain in dispute. Specifically, when viewed in light of the summary judgment standard, the evidence presented by Carb requires a fact-finder to determine whether the use of the ballpark for little league baseball play is a nuisance.
In Chase, this Court observed youth baseball on a local field located in a residential area could constitute a nuisance where evidence supports the conclusion that a baseball league is unreasonable for the location. See id. (citing Carter). In Carter, the South Carolina Supreme Court held that the game of baseball is not a nuisance per se; therefore, those who live in the vicinity of a playing field are not entitled to equitable relief, unless the games are conducted in an unreasonable manner causing a substantial injury to those individuals. Id. (citing Peden v. Furman Univ., 151 S.E. 907 (S.C. 1930) (reversing a directed verdict and holding that playing baseball consistent with permission from the landlord could constitute nuisance actionable against the landlord, where the games were accompanied by unreasonable harm consisting of homerun balls landing in an aggrieved party's property, trespassing spectators, traffic congestion, and noise).
Therefore, while youth baseball played on an appropriate field generally will not be enjoined because of noise, dust, or errant balls, which are natural incidents of the game, an injunction may be granted where the game and its predictable ancillary activities are unreasonably conducted and cause a plaintiff a substantial and unreasonable harm. See Chase; Lieberman v. Twp. of Saddle River, 116 A.2d 809 (N.J. Super. 1955). Cf. Weishner v. Washington County Golf & Country Club, 11 Pa. D. & C.3d 458 (C.P. Washington 1979) (holding 60 years of golf course operation without expansion was reasonable use despite golfers and errant golf balls entering the neighboring property where reasonable steps were taken to limit golf balls from leaving the course).
In his affidavit, Carb claims the use of the ball field drastically increased in recent years, to such an extent that the use of the park is unreasonable and causes him serious harm. R.R. at 103a-105a. According to Carb, the increase in baseball games resulted in a "rain of baseballs" landing on his property. Id. at 106a. The once rare occurrence of a homerun ball entering his property was replaced by a constant bombardment, which broke windows, dented cars, and limited Carb's use of his backyard. Id. at 103a-104a. To support his claims of the alleged bombardment, Carb submitted photographs of baseballs that he found on his property and the resulting damage to his personal property. R.R. at 160a, 162a-164a.
Moreover, as a direct result of the increased use, Carb avers the league play caused traffic problems, large dust clouds, and noise pollution, which all result in a substantial deprivation of the use and enjoyment of his property. Id. at 105a-106a. These deprivations were frequent and long-lasting. Id. These allegations were also supported by photographic evidence. R.R. at 157a-158a, 164a. If a fact-finder believed all the claims made in Carb's affidavit and portrayed in supporting exhibits, and attributed these problems to league play, there is sufficient evidence to support relief in his favor. See Ertel v. The Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996) (citing Anderson v. Liberty Lobby, 477 U.S. 242 (1986)).
Therefore, viewing the facts in the light most favorable to Carb and resolving all doubt as to the existence of any material fact against the City, issues of material fact remain as to whether the use of the ball field is reasonable, and ultimately whether the use constitutes a nuisance. See McCarthy. Accordingly, we reverse and remand for further proceedings on the issue of whether the permitted use of the baseball field and the direct and foreseeable activities flowing from that use constitute a nuisance.
2. Ordinance and Permit Violations
In his brief, Carb claims that because the City provided an insufficient police presence and failed to strictly enforce GBA's permit, the City's use of the park constitutes a nuisance. Specifically, Carb alleges the City acquiesced in spectators violating parking ordinances, trespassing on his property, and acting in an uncivilized and sometimes illegal manner. Furthermore, he alleges the City allowed GBA to routinely violate the terms of its permit by using the field outside of the allocated hours, constructing a scoreboard and concession stand, and playing too many games.
While a municipality can be liable for the creation or maintenance of a nuisance, no support exists for the proposition that a municipality's failure to enforce its ordinances or permits with regard to third parties can constitute a nuisance by the municipality. See Burton v. Dormont, 437 A.2d 532 (Pa. Cmwlth. 1981). Contrary to Carb's argument, the City has no duty to provide police protection distinctively to Carb, or any particular individual, as the City has vast discretion in its allocation of resources towards the enforcement of ordinances and permits. See Thomas v. City of Phila., 574 A.2d 1205 (Pa. Cmwlth. 1990) (affirming dismissal of appellant's complaint because the municipality had no duty to provide police services to a particular person absent a special relationship between police and victim); Morris v. Musser, 478 A.2d 937 (Pa. Cmwlth. 1984) (proper redress is through civil suit against the wrongdoer or filing a criminal report, not a suit for monetary damages against the municipality).
Moreover, in Burton, this Court affirmed dismissal of a complaint at the preliminary objections stage. We held a municipality could not be liable for failing to enforce its ordinances to the accommodation of a particular citizen. The plaintiff in Burton claimed the municipality created a nuisance by failing to enforce parking ordinances because illegal street-parking caused him inconvenience, obstructed the use of his property, and resulted in monetary damage. This Court held the municipality could not be liable for failing to abate a nuisance created by third parties because the exercise of the municipality's ordinance enforcement power was discretionary. Id.
Similar to the plaintiff in Burton, Carb asks that the City enforce its ordinances and permits as he so requests, because the behavior of third parties causes him inconvenience, disrupts the use of his property, and creates compensable damage. As discussed above, and because Carb did not allege an ordinance violation for which private enforcement is available, Carb's argument is not supported in law. See id. Thus, the City's failure to prosecute violations of ordinances, or enforce the permits it issues to GBA does not of itself constitute a nuisance; therefore, we reject Carb's argument on this point. As a result, summary judgment in favor of the City, on the issue of whether non-enforcement of ordinances and permits constitutes a nuisance, is affirmed.
B. Laches
Separately, Carb argues the trial court's application of laches was improper. The doctrine of laches is applicable where sufficient time elapsed since the cause of action accrued so as to result in the equitable determination that plaintiff is barred from bringing suit. Guarina. Contrary to Carb's assertions, the trial court did not apply the doctrine of laches. In its opinion, the trial court addressed the suit's factual history to determine whether the City's activities were reasonable at the location, not for purposes of applying laches. Tr. Ct., Slip Op. at 1-2; see Guarina; Chase; Weishner. Thus, Carb's argument is rejected as meritless.
C. Extra-Record Evidence
Lastly, Carb contends the trial court improperly considered extra-record evidence that the City submitted by affidavit (Moser Affidavit). Specifically, Carb contends the trial court's description of the parties' properties and the two fences between the properties is unsupported by the record without consideration of the Moser Affidavit, which was previously excluded by court order. Because we reverse in part and remand for further proceedings, which may include live testimony from Mr. Moser, this issue is moot.
For the above stated reasons, we affirm in part and reverse and remand in part.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of October, 2011, the order of Court of Common Pleas of Allegheny County is AFFIRMED in part, and REVERSED in part, and this case is REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge