J-A14026-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES G. WAITE                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

                   v.

CDG PROPERTIES, LLC.

                    v.

GRANDVIEW MANAGEMENT, INC. AND
BURNHAM FARMS, LP.

                         Appellants

STONE VALLEY CONSTRUCTION, INC.,
AND COUNTRY COVE CONDOMINIUM
ASSOCIATION                                     No. 1905 MDA 2015



            Appeal from the Judgment Entered October 1, 2015
              In the Court of Common Pleas of Centre County
                      Civil Division at No(s): 2013-569


BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 18, 2017

      Grandview Management, Inc. (“Grandview”) and Burnham Farms, LP

(“Burnham”) filed the present appeal after the trial court rendered a verdict

against them and in favor of Appellee, James G. Waite. We affirm.

      Mr. Waite owns a 3.02 acre tract of land containing woodland and his

residence that is located at 296 Valentine Hill Road, Bellefonte. Mr. Waite’s

property is at the foot of a parcel of real estate that slopes down to his land

and formerly consisted of a farm, meadowland, and a forest. In 2005, CDG

* Retired Senior Judge assigned to the Superior Court.
J-A14026-16



Properties, LLC (“CDG”) purchased that adjacent property.           CDG, with the

assistance     of   Grandview       and    Burnham,   constructed   a   residential

development known as Burnham Farms Estate.             As part of that project, a

storm water management system was designed and installed. It consisted

of a swale, conduits, pipes, and a drainage detention basin. Approximately

three years after the construction of Burnham Farms Estate, Mr. Waite

noticed that trees along his property line with the real estate containing the

that residential development began to die.             Mr. Waite’s investigation

revealed that the trees’ deterioration was the result of increased subsurface

water drainage onto his land caused by the storm water management

system.

       On February 13, 2013, Mr. Waite filed this action against CDG, and he

then filed an amended complaint naming as defendants CDG, Grandview,

Burnham, and Stone Valley Construction, Inc.1 Mr. Waite averred that the

defendants, as the developers and owners of Burnham Farms Estate, were

liable for his property damage because the storm water management system

caused an increase in the subsurface water flow onto his land.




____________________________________________


1
  Country Cover Condominium Association, while a named defendant, was
never separately served with the complaint.



                                           -2-
J-A14026-16



       The matter proceeded to a nonjury trial, where the trial court entered

a directed verdict in favor of Stone Valley Construction Inc. and CDG.2 After

consideration of the evidence presented by Mr. Waite, the court awarded

him $43,285.00 in damages against Grandview and Burnham.                   Damages

were for the removal and replacement of the trees already affected by the

increase in subsurface water flow.             The court also directed Grandview and

Burnham to “modify the storm, water drainage system so that water is

conveyed to the storm water [drainage detention] basin as intended and no

longer drains onto Plaintiff's property.” Order of Court, 5/20/15, at 1.

       This appeal followed the denial of Grandview and Burnham’s post-trial

motion. They present these issues on appeal:

       A. Whether the lower court erred in accepting the testimony of
       the plaintiff's two liability experts and committed an abuse of
       discretion by regarding this testimony as being credible for
       purposes of finding a causal connection between the alleged
       harm and the appellants' conduct?

       B. Whether the lower court erred in granting mandatory
       injunctive relief inasmuch as sufficient evidence was not
       presented to support this form of relief and where an adequate
       remedy at law is available?

       C. The lower court erred in finding that Grandview Management,
       Inc., and Burnham Farms, L.P. were liable in this matter as the
       parties who were the permittees for purposes of the storm water
       management system.
____________________________________________


2
  Grandview and Burnham appealed the grant of this directed verdict, which
we affirmed. Waite v. CDG Properties, LLC., 2016 WL 5401842 (Pa.
Super. filed August 15, 2016) (unpublished memorandum).



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Appellants’ brief at 3-4.

      Initially, we observe that the following standard of review applies after

a bench trial.

      When reviewing the verdict from a bench trial, we must review
      the evidence of record in the light most favorable to the verdict
      winner to determine whether competent evidence supports the
      trial court's findings and whether it erred in reaching its
      conclusions of law. McEwing v. Lititz Mut. Ins. Co., 77 A.3d
      639, 646 (Pa.Super. 2013). We afford the same weight to the
      trial court's findings of fact as we do a jury's verdict. Id. We will
      only reverse if the trial court's findings of fact are unsupported
      by competent evidence or if it erred as a matter of law. Id.

Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Mkt., Inc.,

98 A.3d 645, 652 (Pa.Super. 2014).

      The law regarding alteration of surface water is well-ensconced in this

Commonwealth. In 1954, applying prior law on the subject, our High Court

articulated the pertinent principle:

          A landowner may not alter the natural flow of surface water
      on his property by concentrating it in an artificial channel and
      discharging it upon the lower land of his neighbor even though
      no more water is thereby collected than would naturally have
      flowed upon the neighbor's land in a diffused condition. One
      may make improvements upon his own land, especially in the
      development of urban property, grade it and build upon it,
      without liability for any incidental effect upon adjoining property
      even though there may result some additional flow of surface
      water thereon through a natural watercourse, but he may not,
      by artificial means, gather the water into a body and precipitate
      it upon his neighbor's property.

Rau v. Wilden Acres, Inc., 103 A.2d 422, 423 (Pa. 1954); accord St.

Andrew's     Evangelical    Lutheran     Church     of   Audubon     v.   Lower

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J-A14026-16



Providence Twp., 198 A.2d 860 (Pa. 1964); Ridgeway Court, Inc. v.

Landon Courts, Inc., 442 A.2d 246 (Pa.Super. 1981). Subsurface waters

are analogous to surface waters for purposes of this cause of action. Miller

v. C.P. Centers, Inc., 483 A.2d 912 (Pa.Super. 1984).

       Herein, Mr. Waite presented the testimony of two expert witnesses,

Eric   Chase,   a    geologist   and   hydrologist,   and   Keith   Lingenfelter,   a

horticulturalist and plant pathologist. Mr. Chase opined that the storm water

drainage system did not function properly and had altered and increased the

water flow underneath the surface of Mr. Waite’s property.             That expert

testified that he visited the site, including both Mr. Waite’s property and the

development.        He toured the swale and drainage basin, looked for sink

holes, saw the dead or dying trees, and ascertained the soil thickness and

the composition of the underlying rock by reviewing various United States

Geological Surveys. See N.T. Trial, 1/26/15, at 109-115.

       Based upon his review of the property, the surveys and his

professional experience, Mr. Chase concluded:

            It’s my professional opinion that the storm water swale is not
       functioning effectively, allowing the storm water to pond and
       infiltrate into the ground, up gradient of the subject property,
       which is Jim Waite’s property. And that based on the local site
       conditions that I viewed while I was there, the proximity of the
       subject property to the swale, which is immediately adjacent to
       the swale, the shallow soils, the topography, the local ground
       water direction, that the storm water entering the swale is
       actually going through the swale into the soils and onto Jim
       Waite’s property. And this did not exist previously when it
       was a meadow and/or forested area.

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J-A14026-16




Id. at 115-116.

     Based upon his observations, Mr. Chase stated that the storm water

drainage system was designed to channel storm water flowing from the

development’s property into a swale and along that swale into a drainage

detention basin.   He reported that the swale was not operating properly.

Specifically, due to the soil conditions and the slope of the rock under the

drainage swale, a significant amount of the water entering the swale drained

into the earth below the swale rather than along the swale and into the

drainage detention basin, as it was supposed to do. The water seeping from

the swale flowed down into Mr. Waite’s property.     Mr. Chase noted that,

even after heavy rainfalls, the drainage detention basin was empty.

     Mr. Chase's testimony was corroborated by Paul Dembowski, a senior

civil engineer with the Department of Environmental Protection. Mr.

Dembowski oversaw the construction and operation of the storm water

management system, which was permitted by that Department. He visited

the site several times and, during his first inspection, he observed water

draining into the swale and being directly absorbed into the ground instead

of flowing along the swale into the drainage detention basin. He also

observed vegetation growth in the swale and the drainage detention basin

and several large rocks located in the swale.    Mr. Dembowski expressed

concern that storm water runoff was not collecting in the drainage detention



                                    -6-
J-A14026-16



basin, as indicated in the system’s design, and he took several pictures,

which were presented by Mr. Waite at trial.

      This proof was thus sufficient to establish liability under the above-

enunciated principles. The natural water flow from the property containing

Burnham Farms Estate was altered by concentrating it into a man-made

channel, the swale, but that swale caused more water to discharge in a

concentrated manner onto the adjacent lower land owned by Mr. Waite. The

property in question was not improved and developed with a resultant

increase in flow of the surface water through a natural watercourse. Diffuse

water was collected and placed in a conduit consisting of a defective swale.

The swale was designed to carry storm water runoff from the development

into the drainage detention basin, and it did not perform that function.

Instead, the water in the swale seeped into the earth and down onto Mr.

Waite’s property.

      Mr. Lingenfelter’s opinion related to damages.   He opined that tree

death occurring on Mr. Waite’s real estate was the result of the increase in

subsurface water flow occasioned by the alteration of the property when

Burnham Farms Estate was built. He stated that the roots of several of the

trees that bordered the swale suffocated due to the excess water.       Mr.

Lingenfelter’s opinion was based upon his personal examination, which

eliminated insects and disease as the cause of the tree death.          Mr.

Lingenfelter articulated:

                                    -7-
J-A14026-16



             And what I saw was mature canopy trees and young canopy
         tress exhibiting the very similar characteristics. You have one-
         third, one-half of the canopy die back. You have browning. You
         have mortality rates that are so high, they shouldn’t be like this
         unless you’re in an epidemic situation, like a major insect
         infestation. So touring the property, walking around, looking at
         adjacent property, and walking around the construction
         perimeter kind of when you get up the hill there where the
         developments occurred, I came to the conclusion that the insect
         and disease pressure in that area was not significant at all. Not
         only by the lack of symptoms I saw in any of the trees that I
         looked at, but by the general lack of infestation in walking
         around.

N.T. Trial, 1/26/15, at 37. That expert opined that the tree mortality was

caused by an excess amount of water resulting from the improperly

constructed storm water management system. See id. at 38-41.

         In their first issue on appeal, Grandview and Burnham maintain that:

“The expert witnesses simply did not present a credible and convincing basis

upon which the verdict in favor of Mr. Waite was justified.” Appellants’ brief

at 12.     Grandview and Burnham suggest that the “experts’ testimony should

not have been accepted by the fact finder” because that proof was based

upon speculation. Id. at 13 (relying upon Collins v. Hand, 246 A.2d 398

(Pa. 1968) (expert testimony cannot be based upon speculation or

conjecture)).

         In Haan v. Wells, 103 A.3d 60, 72–73 (2014), we repeated the oft-

cited principle that “a fact-finder is permitted to accept all, part, or none of

the testimony, and it is within the fact-finder's exclusive province to resolve

conflicts in that testimony.”     Therein, we rejected a challenge to the trial

                                       -8-
J-A14026-16



court’s decision to accept testimony proffered by an expert witness. Further,

this Court “will not reverse the trial court’s credibility determinations absent

an abuse of discretion.” In re Estate of Aiello, 993 A.2d 283, 287 (Pa.

Super. 2010).

      Grandview and Burnham assail Mr. Chase’s credulity because he did

not proffer “scientific or technical analysis upon which to base his

conclusions.”   Appellants’ brief at 15.     However, we conclude that Mr.

Chase’s opinion regarding the increase flow of water onto Mr. Waite’s land

had a firm factual basis and was not speculative. He testified that he viewed

the property after rainstorms and looked at “what was happening with the

swale” and that he knew the geology of the area.        He concluded that no

testing was necessary because his conclusions were supported by his view of

the property and the geological surveys. Id. at 122. We reject Grandview

and Burnham’s position that Mr. Chase’s testimony was speculative because

it was firmly premised upon his expert knowledge and examination of the

land, the storm water management system, and geological surveys.

      As to Mr. Lingenfelter, Grandview and Burnham maintain that he was

required to provide some scientific proof for his opinion and that he was not

credible because there was a discrepancy between his first and second

expert reports. Mr. Lingenfelter was a certified arborist consultant with an

undergraduate    degree    from   Colorado    State   University   in   Forestry

Horticulture. He had worked for the United States Forestry Service and was

                                     -9-
J-A14026-16



working in private industry when he testified herein.      Mr. Lingenfelter had

never operated as an expert witness before this lawsuit.

      Mr. Lingenfelter’s opinion as to the cause of tree death was based

upon his observation of the affected trees and the lack of any other

discernable cause for their death. He also relied upon Mr. Chase’s proof that

the storm water management system, due to the malfunctioning swale,

altered the natural water flow and increased the amount seeping onto Mr.

Waite’s property. We therefore find that he had a sufficient forensic basis

for his opinion.

      The second aspect to Grandview and Burnham’s challenge to Mr.

Lingenfelter’s credibility relates to the fact that he authored two reports and

that there was an email exchange between their issuance.         As noted, Mr.

Lingenfelter had never been an expert witness, and his first report did not

specifically mention the word water in it. Thereafter, Mr. Lingenfelter was

reminded that liability for the tree mortality in this case hinged on the

existence of excess water and that another one of his associates had

mentioned the existence of excess water on Mr. Waite’s land.               Mr.

Lingenfelter then issued a second report that was ultimately consistent with

his trial testimony.   Mr. Lingenfelter was subjected to vigorous cross-

examination regarding the discrepancy between his first and second reports.

He steadfastly maintained his opinion that water suffocation was the primary

cause of the tree mortality on Mr. Waite’s property below the swale.

                                    - 10 -
J-A14026-16



      The trial judge accepted both of Mr. Waite’s experts as credible. Trial

Court Opinion, 5/20/15, at 3-4. It was fully aware of the discrepancies

between Mr. Lingenfelter’s two reports. We find no abuse of discretion on

the part of the trial judge in accepting Mr. Lingenfelter explanation and

opinion. Accordingly, Grandview and Burnham are not entitled to relief on

their first issue.

      Appellants’ second position is that the trial court erred in awarding

injunctive relief.   As noted, supra, they were ordered to rectify the storm

water management system so that it no longer caused excess water to flow

onto Mr. Waite’s land and so that the water traveled into the drainage

detention basin, as intended.     Their challenges to the grant of injunctive

relief are as follows 1) the injunction was inappropriate since Mr. Waite has

an adequate remedy at law and any future harm to his trees can be

remedied by an award of damages, Appellant’s brief at 24, 27; 2) Mr. Waite

did not demonstrate the clear right to relief required for the issuance of an

injunction requiring an affirmative act on their part, Appellant’s brief at 25;

3) the trial court’s treatment of the grant of injunctive relief was cursory,

Appellant’s brief at 26; and 4) the testimony of Mr. Waite’s expert witnesses

was insufficient to establish that the factors necessary for the grant of

injunctive relief were present, Appellants’ brief at 26-27. We have already

analyzed and addressed Grandview and Burnham’s challenges to the




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J-A14026-16



sufficiency of the testimony proffered by Mr. Chase and Mr. Lingenfelter.

Thus, no further discussion of the fourth position is necessary.

      There is a fatal flaw in Grandview and Burnham’s first three complaints

about the issuance of the injunction herein. They overlook the specific body

of law applicable to the issuance of an injunction when a person is liable

because he artificially channeled surface water onto the land of an adjacent

property owner. We begin our analysis with the Rau decision, supra, where

our Supreme Court upheld the trial court’s finding that the defendant therein

had artificially altered the course of his surface water and caused it to

discharge more forcefully and in increased quantities on a portion of the land

of a neighboring property owner. Based on these findings alone, the Rau

Court ruled that the “plaintiff was entitled to the injunction which the court

granted and which ordered defendant to cease and desist from collecting and

concentrating the surface water on its land and discharging it in a body

through ditches or artificial channels upon the plaintiff's farm.” Rau, supra

at 424.

      In St. Andrew’s, supra, our High Court more fully explored that

nature of the tort in question as well as the availability of injunctive relief.

Therein, a local township paved a road, raising it eight inches and causing

flooding onto property owned by the Schracks. The township then installed

a drainage pipe that concentrated and diverted the surface water from the

Schrack property and another development and discharged it onto property

                                     - 12 -
J-A14026-16



owned by the Austins.    The water emanating from the pipe increased the

surface water both on the Austins’ property and property owned by a

church.   After the church and the Austins sued the township and the

Schracks, the equity court characterized the channeling of the surface

current as a nuisance and ordered the township to abate it.

      The township specifically claimed on appeal that the plaintiffs were not

entitled to injunctive relief since they had an adequate remedy at law. In

summarily rejecting that position, our Supreme Court noted that the

“trespass alleged would re-occur with each rainfall” and ruled “no citation of

authority is required for the proposition that equity may restrain a

continuing trespass.”   St. Andrew’s, supra at 862.       The St. Andrew’s

Court also characterized the artificial discharge of surface water as a

nuisance, and it ruled that the “final decree directing the abatement of the

flow on to the property of Austin and others was a just and equitable

solution to the problem created by the township.” Id.

      This Court considered the issue in Ridgeway Court, supra.           The

defendant therein owned property adjacent to that of the plaintiff and which

was higher in elevation. Before the defendant developed its property, the

natural flow of water onto that of the plaintiff was diffuse and evenly

distributed. Thereafter, the defendant altered the contour of its land, and

“part of the surface water flow was diverted away from its natural course . .




                                    - 13 -
J-A14026-16



. . and re-directed toward and across the northerly portion of [the plaintiff’s]

property,” causing flooding. Id. at 247.

      After concluding that the defendant was liable for damages caused by

the increased water run-off onto the plaintiff’s land under Rau, supra, this

Court in Ridgeway Court rejected the defendant’s position that the trial

court was not authorized to enter an injunction ordering it to remedy the

situation. The defendant claimed that the plaintiff was entitled only to the

difference in the value of the property before and after the change in water

flow. We ruled that, since the alteration of the water current was permanent

in nature, the plaintiff was entitled to have the situation corrected.

      More recently, in a case relied upon by Mr. Waite, Youst v. Keck's

Food Service, Inc., 94 A.3d 1057 (Pa.Super. 2014), we applied the

principles announced in the above-examined case law.            Therein, a jury

rendered a verdict that established the following. Keck’s Food Service, Inc.

(“Keck’s”) owned real estate adjacent to that of three members of the Youst

family (“Yousts”). For one hundred years, Keck’s’ land contained a pond and

dam fed by a creek, and the pond and creek were used as a water

management system in that they captured water when the creek was

overrun and stored the water for use during times that the creek was dry.

Yousts’ land, which was used as a farm, always had been served by the pond

and dam through two drainage pipes, which provided a regular, controlled,

and steady source of water.

                                     - 14 -
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      Keck’s replaced the pond and dam with a storm water management

system that caused the creek to empty into one drainage pipe that led

directly to the Yousts’ land. These changes altered the water flow to such an

extent that the Yousts’ property either suffered from drought, when the

creek was dry, or flooding, when the creek became overrun with rainwater.

The inconsistent cycle of drought and flooding caused farm animals to die.

The jury awarded the Yousts damages on trespass and nuisance claims

raised in the Yousts’ complaint, and the trial court awarded the Yousts a

permanent injunction.

      Against a challenge by Keck’s, we upheld the jury’s finding that it had

committed a nuisance. This Court applied the above-delineated precept that

“the right of the upper landowner to discharge water on the lower lands of

his neighbor is, in general, a right of flowage only, in the natural ways

and natural quantities.” Id. at 1073 (emphasis added; citation omitted).

The Youst Court continued that, when the “the upper landowner alters the

natural conditions so as to change the course of the water, or concentrates it

at a particular point, or by artificial means increases its volume, he becomes

liable for any injury caused thereby.” Id. (citation omitted). We observed

that there was sufficient proof to support that Keck’s diverted the surface

water from its natural course, channeled it unnaturally, and thereby caused

a private nuisance on the Yousts’ real estate.




                                    - 15 -
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      This Court then rejected a challenge to the issuance of the permanent

injunction wherein the trial court mandated that Keck’s “abate the nuisance

of the periodic flooding of the Yousts’ property in a manner permitted by

DEP regulations.” Id. at 1079. The Youst Court concluded that, since the

jury found that Keck’s created a private nuisance on the Yousts’ land,

“Undoubtedly, [Keck’s] must abate this nuisance; and, since the nuisance is

continuing, the trial court possessed the authority to issue a permanent

injunction and order Appellant to ‘abate the nuisance.’” Id. (citing Gardner

v. Allegheny County, 114 A.2d 491, 498 (Pa. 1955) (“it is hornbook law

that a Court of Equity possesses jurisdiction to enjoin a nuisance”)). Thus,

the case law uniformly holds that, when a defendant artificially alters the

natural flow of the surface water on his land so as to injure another

property, it is a nuisance or continuing trespass that will be enjoined.

      In   the   present   case,   the    evidence   supports   the   trial   court’s

determination that Grandview and Burnham altered the natural flow of the

rainwater from the property in question by channeling it into a storm water

management system consisting of swales, conduits, pipes, and a drainage

detention basin. The evidence submitted by Mr. Waite validated the court’s

conclusion that the system operated improperly and increased the amount of

storm water flowing onto Mr. Waite’s property. Thus, the system caused a

nuisance and continuing trespass onto Mr. Waite’s land.          Accordingly, the

trial court was within its power to issue the injunction in question by

                                         - 16 -
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ordering Grandview and Burnham to fix the swale so that the water in it

went, as it was designed to do, into the drainage detention basin. Indeed,

without the injunction, the nuisance/trespass will not abate and the

phenomenon in question will continue to damage to Mr. Waite’s property,

resulting in litigation over the ensuing years. Accordingly, we affirm the trial

court’s issuance of an injunction.

      Grandview and Burnham’s final position is that they were not the

permittees of the storm water management system and that Grandview

Development Group, L.P. was the entity that owned the permit. Grandview

and Burnham continue that Grandview Development Group, L.P., as

permittee for the storm water management system, is the liable party

herein. Appellants’ brief at 28-29.

      The argument in question is confusing and unsupported by citation to

any legal authority. In its opinion, the trial court never mentioned an entity

that owned the permit for the storm water management system. Instead, it

premised its finding of liability upon the fact that Grandview and Burnham

were involved in the development and construction of Burnham Farms

Estate. Trial Court Opinion, 5/20/15, at 2. Grandview and Burnham do not

refute this fact. Thus, they were not found liable based upon their status as

the entities issued a permit by the Department of Environment Protection for

the system in question.     Indeed, Grandview and Burnham have failed to

indicate where in the certified record the trial court based its verdict upon

                                      - 17 -
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identifying them as permittees.   Thus, we find this undeveloped argument

waived.   Markovsky v. Crown Cork & Seal Co., 107 A.3d 749, 755 n.5

(Pa.Super. 2014) (failure to properly develop argument results in waiver).

     Judgment affirmed.

     Judge Platt joins the Memorandum.

     Judge Ott Files a Concurring and Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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