J-S24025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANK R. KUSHER AND BARBARA A.                        IN THE SUPERIOR COURT OF
KUSHER, HUSBAND AND WIFE                                    PENNSYLVANIA

                            Appellants

                       v.

ROBERT WOLOSCHUK AND KATHY
WOLOSCHUK, HUSBAND AND WIFE, AND
JAMES EXCAVATING, INC.

                            Appellee                         No. 1205 WDA 2016


                  Appeal from the Order entered May 13, 2016
                In the Court of Common Pleas of Cambria County
                         Civil Division at No: 2012-3988


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                                      FILED JUNE 9, 2017

        Frank   R.   Kusher    and     Barbara   A.   Kusher,   Husband    and    Wife

(“Appellants” or “Kushers”), appeal from the May 13, 2016 order entered in

the Court of Common Pleas of Cambria County dismissing their ejectment

action against Robert Woloschuk and Kathy Woloschuk, Husband and Wife

(“Woloschuks”),      and     James     Excavation,    Inc.    (“James”)   (collectively

“Appellees”).    Following review, we affirm.

        In a February 8, 2016 opinion issued in conjunction with an order

denying Appellees’ pre-trial motions, the trial court captured the essence of

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*
    Former Justice specially assigned to the Superior Court.
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this case, noting, “[t]he case before the [c]ourt involves a dispute between

adjoining land owners concerning a stream, a portion of pipe and a load of

dirt.” Trial Court Opinion, 2/8/16, at 1. Following disposition of the pre-trial

motions, the parties agreed to submit the case on stipulated facts.       From

those stipulated facts we glean the following.           The Kushers and the

Woloschuks own adjacent parcels of property on Park Hill Drive in East

Taylor Township, Cambria County.        An unnamed tributary of the Little

Conemaugh River runs under the Kushers’ property. In the 1950s or 1960s,

Frank Kusher’s father installed a 24” concrete stream enclosure to contain

the stream flow. The enclosure ran under the Kushers’ property and ended

close to the property line between the two properties.

      In 1997, the Woloschuks installed a 36” stream enclosure to contain

water from the Kushers’ property and did so without obtaining a permit from

the Department of Environmental Protection (“DEP”). The DEP investigated

the site in 2006 and determined that remedial work was required.

Discussions and proposals were floated back and forth between and among

the Kushers, the Woloschuks, the parties’ lawyers, the Woloschuks’

engineers, and the DEP before construction was finally initiated and

completed in 2012.

      In 2013, the Kushers filed an ejectment action against the Woloschuks

and their contractor, James, contending inter alia that the Woloschuks

attached their storm water pipe onto the Kushers’ pipe without permission to


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do so, and that the DEP permitted the Woloschuks and James to fill the

valley on the Kushers’ property and dump fill on the Kushers’ property

without permission. The Kushers asked the trial court to order the DEP to

revoke its permit or approval of the project “where it permits entry onto

[Kushers’]   property   and   disconnect    and   remove   any   connection   or

improvement from [the Kushers’] property performed without [the Kushers’]

consent, and open to free flow of water [the Kushers’] pipeline clogged by

the DEP project and prior dumping.”        Appellants’ Amended Complaint at 4

(Prayer for Relief).

      As noted, the parties submitted the case to the trial court on stipulated

facts. By order dated May 13, 2016, the trial court determined the Kushers

did not meet their burden of proof for an ejectment action.       The Kushers

filed exceptions to the May 13, 2016 order. The trial court properly treated

the exceptions as a motion for post-trial relief and denied the requested

relief by order entered on July 14, 2016. On August 9, 2016, the Kushers

filed a praecipe for entry of judgment for purposes of filing an appeal from

the May 13, 2016 order. This timely appeal followed. Both the Kushers and

the trial court complied with Pa.R.A.P. 1925.

      The Kushers present three issues for this Court’s consideration:

      A. Whether the trial court erred in concluding that Paragraphs 28
         and 29 of the parties’ joint stipulation of facts authorized
         [Appellees] to enter onto [Appellants’] property to excavate
         and attach a pipe to carry storm water under the Woloschuk
         property?


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        B. Whether [Appellees’] actions in entering onto [Appellants’]
           property to excavate and atttach (sic) a water pipe to the
           Woloschuk pipe were deminimis (sic)?

        C. Whether the trial court erred in not requiring [Appellees] to
           restore the grade to [Appellants’] land after excavation to
           make the pipe connection?

Appellants’ Brief at 4.

        In Triage, Inc. v. Prime Ins. Syndicate, Inc., 887 A.2d 303 (Pa.

Super. 2005), this Court explained that “[w]hen a case is submitted on

stipulated facts, the rulings of the trial court are limited to questions of law.

Accordingly, our standard of review allows us to evaluate only whether the

trial court committed legal error.    Our scope of review is plenary.” Id. at

306 (citing Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 746 A.2d

1118, 1120 (Pa. Super. 1999) (en banc)).

        Appellants’ issues are interrelated and we shall discuss them together.

Essentially, Appellants argue the trial court erred in finding Appellees were

authorized to enter Appellants’ property and attach a pipe to Appellants’

pipe.    Further, Appellants contend that Appellees’ actions in excavating

Appellants’ property and attaching a water pipe were not de minimis and

that the trial court erred because it did not require Appellees to restore the

grade to Appellants’ property.




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       One aspect of Appellants’ argument focuses on Paragraphs 28 and 29

of the joint stipulation of facts.1            Appellants contend the trial court

incorrectly read those paragraphs to authorize Appellees to enter onto

Appellants’ property to excavate and attach a storm pipe to carry storm

water under the Woloschuks’ property.               The Woloschuks counter that

“looking at the Joint Stipulations of Fact as a whole it is clear that the

Appellants admitted repeatedly that the 24” inch (sic) Kusher pipe would be

connected to the drainage system and excavated.” Woloschuk Brief at 12.

Further, “[t]he drainage system as a whole was approved by the Pa DEP and

the entire site was backfilled and is working properly.”         Id. (citing Joint

Stipulation of Facts (“JSF”) at ¶¶ 34-37).

       The trial court determined that two decisions from this Court were

factually analogous to the case before us. In the first, Yeakel v. Driscoll,

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1
  Paragraph 28 provides, “[Appellants], on June 19, 2010, consented to the
original plan of October 20, 2006, as submitted without a catch basin or inlet
pipe installed on their property as suggested by the DEP. See Exhibit ‘I’
attached hereto.”[FN]
       FN:
          Exhibit ‘I’ is a March 26, 2010 letter to Frank Kusher that he
       signed and dated June 19, 2010[,] and then returned, indicating
       he consented to approval of the Woloschuks’ drainage plan and
       permit without a catch basin or inlet pipe being installed on the
       Kushers’ property.

Paragraph 29 provides, “As a result of [Appellants’] consent, the catch basin
and inlet pipe were not required by the DEP and no further objection or
revocation of [Appellants’] consent to the original plan was received and
[Appellees] moved forward with the original plan of October 20, 2006.”



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467 A.2d 1342 (Pa. Super. 1983), the plaintiff brought an ejectment action

after discovering that the defendant’s firewall encroached onto the plaintiff’s

property by two inches for a distance of twelve feet. The trial court denied

relief after determining that the defendant mistakenly sought and obtained

permission to construct the firewall from the plaintiff’s son—a former owner

of the property—rather than from the plaintiff. Further, the construction was

in conformity with the applicable city codes and the encroachment was “de

minim[i]s.”       On appeal, we affirmed, applying the “doctrine of ‘de

minim[i]s’ . . . mean[ing] that the law will not concern itself with trifles.

More specifically it means that a court will not grant equitable relief to a

plaintiff who seeks a decree which will do him no good but which will work a

hardship on another.” Id. at 1344.

      The second case, Ochroch v. Kia-Noury, 497 A.2d 1354 (Pa. Super.

1985), involved the erection of a chain-link fence and fill around the

defendants’ swimming pool.        The fence and fill encroached upon the

plaintiffs’ property to the extent of 100 feet in length, ten feet in width, and

five feet in height.   The trial court directed the defendants to remove the

fence but required them only to improve the look of the fill that was visible

from the plaintiffs’ pool and tennis area, finding the fill was a de minimis

encroachment that should be improved but not removed.        On   appeal,   this

Court disagreed and distinguished the case from Yeakel, finding there was




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no consent and noting the encroachment was not trivial.       Therefore, all of

the encroachments had to be removed.

      Applying Yeakel and Ochroch, the trial court concluded:

      [W]e are left with the entirely inescapable fact that [Appellants]
      in the instant matter consented for work to commence in 2010.
      The stipulated facts cited [in] paragraphs 28-29 bear that out in
      stark clarity. [Appellants] fall back on boilerplate language in
      the DEP permit that restricts the legal effect of the permit itself
      but says nothing as to the consent conferred outside its four
      corners.

      In the long and tortured history of this case we have witnessed a
      trend where two adjoining landowners have been unable and in
      some cases unwilling to work together to alleviate a problem
      they were both experiencing related to flooding, drainage and
      other water related issues. This difficult and winding road of
      litigation had stymied the progress of any solution for years.
      The stipulated facts reveal that the work was completed at the
      end of 2012 and there is no evidence before the [c]ourt to
      suggest that it has not accomplished the goal of protecting both
      properties. All of the work was done in consultation with DEP.
      The letter from [Frank Kusher] of May 18, 2010[,] details his
      struggles with flooding since 2005.         We believe that the
      disconnection of the pipe and removal of the fill at this point will
      do [Appellants] no good and be a hardship on [Appellees] and
      indeed, the drainage system protects both parties. With this in
      mind, we find that the stipulated facts bear out that [Appellants]
      consented to the work being done, it was done and now they
      want to undo it. Equity dictates that we cannot allow this to
      happen and we find support in the cases cited above.

Trial Court Opinion, 5/13/16, at 7 (citation omitted).

      We find no error in the trial court’s conclusions.         Despite their

protestations to the contrary, Appellants clearly consented to the original

plan submitted to the DEP. See JSF at ¶ 28. Further, as James accurately

argues, “ejectment is a possessory action only, and can succeed only if the


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plaintiff is out of possession, and if he has a present right to immediate

possession.”     James’ Brief at 16.     “Here, there is no contention that

[Appellants] do not possess the land in question. The Stipulation of Facts

establishes that any possession or occupation of the property by [] Appellees

was authorized and temporary in nature.” Id. Therefore, the trial court did

not err in determining Appellants failed to meet the burden of proof required

to prevail in an ejectment action.

      Appellants contend the Woloschuks’ conduct poses a “genuine safety

[h]azard to Kushers should the pipe back up and flood their home.”

Appellants’ Brief at 7.   However, as the Woloschuks observe, “[t]he trial

court properly analyzed that the disconnection of the pipe and removal of

the fill at this point . . . would be a significant hardship on [the Woloschuks]

with no known benefit to the Appellants.”      Woloschuks’ Brief at 15.    See

Trial Court Opinion, 5/13/16, at 7.      There is no evidence of any safety

concerns or the risk of flooding, only Appellants’ suggestion that burial of

their pipe with fill prevents them from examining and cleaning their pipe to

avoid backups.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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