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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                       :
                                               :
                                               :   No. 1905 MDA 2015
               v.                              :
                                               :
                                               :
    GRANDVIEW MANAGEMENT, INC.                 :
    AND BURNHAM FARMS, LP.                     :
                                               :
                      Appellants               :
                                               :
    STONE VALLEY CONSTRUCTION,                 :
    INC., AND COUNTRY COVE                     :
    CONDOMINIUM ASSOCIATION                    :

               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*

CONCURRING/DISSENTING MEMORANDUM BY OTT, J.:FILED JANUARY 18, 2017

        I agree with the Majority’s resolution of Appellants’ first and third

issues. With respect to Appellants’ second issue, I do not disagree with the

Majority that injunctive relief can be a proper remedy in matters such as

this; however, I believe the evidence does not support imposing a

____________________________________________


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



mandatory injunction, where that evidence does not show how the harm can

be corrected.    Accordingly, I respectfully dissent from that portion of the

Majority decision that affirms the trial court’s issuance of an injunction.

      The trial court ordered Appellants to “modify the storm water drainage

system so that water is conveyed to the storm water basin as intended and

no longer drains onto [Waite’s] property.” Opinion and Verdict, 5/20/2015,

at 6. Essentially, Appellants claim there is insufficient evidence upon which

to base the grant of injunctive relief and the order for relief is too vague and

speculative to be obeyed. I agree.

      Initially, there is a difference between a mandatory injunction and a

prohibitory injunction:

      Generally, preliminary injunctions are preventive in nature and
      are designed to maintain the status quo until the rights of the
      parties are finally determined. There is, however, a distinction
      between      mandatory     injunctions,    which  command      the
      performance of some positive act to preserve the status quo,
      and prohibitory injunctions, which enjoin the doing of an act that
      will change the status quo. This Court has engaged in greater
      scrutiny of mandatory injunctions and has often stated that they
      should be issued more sparingly than injunctions that are merely
      prohibitory. Thus, in reviewing the grant of a mandatory
      injunction, we have insisted that a clear right to relief in the
      plaintiff be established.
      A mandatory injunction is an “extraordinary” remedy that
      “should be utilized only in the rarest of cases.”

Gati v. University of Pittsburgh, 91 A.3d 723, 728, n. 9 (Pa. Super.

2014) (citation omitted).

      Further,



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     An injunction is a court order that can prohibit or command
     virtually any type of action. It is an extraordinary remedy that
     should be issued with caution and “only where the rights and
     equity of the plaintiff are clear and free from doubt, and where
     the harm to be remedied is great and irreparable.” 15 Standard
     Pennsylvania Practice 2d, § 83:2 (2005). The required elements
     of injunctive relief are: a clear right to relief; an urgent necessity
     to avoid an injury that cannot be compensated in damages; and
     a finding that greater injury will result from refusing, rather than
     granting, the relief requested. Id. at § 83:19. Even where the
     essential prerequisites of an injunction are satisfied, the court
     must narrowly tailor its remedy to abate the injury. John G.
     Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1,
     7, 369 A.2d 1164, 1167 (1977).

Big Bass Lake Cmty. Ass’n v. Warren, 950 A.2d 1137, 1144-45 (Pa.

Cmwlth. 2008).

     Because of the extraordinary nature of a mandatory injunction,

requiring a clear right to relief and an urgent need to avoid further injury

which cannot be compensated in damages, I believe there must, in this

instance, be a greater level of evidence demonstrating the specific nature of

the problem to be corrected, and the manner in which such corrections can

be made, particularly since the construction company responsible for the

swale was removed from the case by a directed verdict. Here, the trial court

determined only that “the damage to [Waite’s] trees was caused by

Additional Defendants Grandview and Burnham Farms’ failure to construct

and maintain a properly functioning storm water drainage system[.]”           See

Opinion and Verdict, 5/20/2015 at 5.       Waite argues in his Appellee’s brief




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that the injunction “merely requires the Appellant to properly correct the

grade of the ditch into the retention pond”1 to abate the problem. However,

Waite fails to indicate where in the certified record this statement can be

found and my review of the notes of testimony has failed to reveal the

source of this statement.           Paul David Dembowski,2 the civil engineer

employed by the Pennsylvania Department of Environmental Protection

assigned to the development project in question, testified there was a

sufficient grade to allow the storm water to flow downhill, N.T. Trial,

1/26/2015, at 90, and that the relevant improvements he mandated had

been made, yet the catch basin still did not fill.

        Further, another of Waite’s experts, Eric Chase, a geologist, testified to

the following on cross-examination:

        Q [counsel for Stone Valley Construction]: Excuse me Mr. Chase,
        just a few questions for you. You testified that it is your opinion
        that the swale is not functioning effectively; is that correct?

        A: Correct.

        Q: There’s different ways a swale cannot function correctly, or
        function effectively; is that correct?

        A: Correct.

        Q: It could be designed improperly; correct?

        A: Yes.
____________________________________________


1
    Appellee’s Brief, at 6-7.
2
    Mr. Dembowski was called to testify by Appellee, James Waite.



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      Q: It could be constructed improperly; correct?

      A: Yes.

      Q: It could be maintained improperly; correct?

      A: Correct.

      Q: You’re offering no opinion whatsoever as to which of those is
      going on here; is that correct? There’s nothing in your report…

      A: There’s nothing in my report.

N.T. Trial, 1/26/2015, at 129-30.

      Finally, Keith Lingenfelter, an ISA certified arborist, another of Waite’s

experts, testified on cross-examination to the following:

      Q [counsel for Stone Valley Construction]: Mr. Lingenfelter, you
      are not an expert in the design of drainage swales; correct?

      A: No. I have landscape experience in that and that is it.

      Q: You are not an expert in construction of drainage swales;
      correct?

      A: No.

      Q: And you are not an expert in the maintenance of drainage
      swales; correct?

      A: No.

      Q: So, if there is excess water getting to Mr. Waite’s property,
      you would not be offering any opinion with regard to whether it
      is because of the design, construction or maintenance of the
      drainage swale; is that correct?

      A: I could not comment on that, no.

Id. at 75.


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       The expert testimony in this matter only indicated that after the storm

water drainage system was constructed, additional amounts of water made

its way, underground, from Appellants’ property to Waite’s property, and

that water killed a number of Waite’s trees within three years of the

construction. The experts did not measure underground water flow nor did

they track the underground water flow. There is no proof how much extra

water is diverted to Waite’s property or if such drainage occurs after every

rain or only heavier rains.        The experts did not explain how or why the

construction caused the drainage problem. In fact, the evidence presented

at trial was insufficient to prove culpability on the part of Stone Valley

Construction, the company that actually built the storm water drainage

system.3

       In the same vein, the evidence has provided no guidance to Appellants

in what must be undertaken to abate the problem.          This makes the trial

court’s order imposing a mandatory injunction too vague to obey.

       Additionally, I believe the vague nature of the evidence and order

distinguishes the instant matter from other relevant case law. In Youst v.

Keck’s Food Service, Inc., 94 A.3d 1057 (Pa. Super. 2014), the evidence

demonstrated,

____________________________________________


3
  Storm Valley Construction was granted a directed verdict on the basis
there was no evidence the swale had been designed, constructed or
maintained improperly. See N.T. Trial, at 184-87.



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     It is uncontroverted that, in 2009, Appellant drained the pond,
     destroyed the 100–year–old Dam, and re-banked the pond
     approximately 20 feet away from its prior location. Id. at 46.
     Appellant then created an artificial rock-lined bed, which
     changed the direction of the surface water channel. Id. at 44–
     48. In particular, Appellant channeled the surface water away
     from the pond and directly into the Yousts' property through the
     newly installed six-foot-high by six-foot-wide drainage pipe. Id.
     Moreover, although Appellant's witness, Dr. Clay Emerson,
     opined that the year–2009 construction restored the area to its
     “natural” condition, Appellant's president and CEO testified that:
     “[t]he pond is actually on the lowest lying area of [Appellant's]
     property;” he did not know whether the pond existed before the
     Dam was constructed; and, he did not know the original, natural
     course of the channel. N.T. Trial, 8/2/12, at 90–95.

Youst, 94 A.3d at 1074.

     In Rau v. Wilden Acres, Inc., 103 A.2d 422 (Pa. Super. 1954), the

evidence was similarly detailed:

     [D]efendant divided its tract into lots, laid out and paved streets,
     graded the lots toward the streets, and constructed houses
     thereon; that, as a result, the surface waters drained down the
     streets to a point at their intersection near the mouth or funnel
     of the swale which was a low point in the contour of the land;
     that defendant, by a two-foot excavation, lowered it still more;
     that in order to dispose of the surface waters thus collected at
     that point defendant not only narrowed the mouth of the swale
     but cut a channel approximately 30 to 36 feet wide and 9 feet
     deep through a bank of earth it had previously erected across
     the mouth of the swale, thereby funnelling the water into a body
     and discharging it with greater force and in increased quantities
     at a particular point on plaintiff's land; that defendant also
     uprooted trees on its property and piled them, together with
     other debris, in a low spot on an undeveloped part of its own
     land whereby it further diverted surface water from the portion
     of the hollow on its own land into the portion on plaintiff's land;
     that prior to defendant's operations no damage was occasioned
     to plaintiff's land by the natural flow of surface waters and there
     was no interference with plaintiff's farming operations, but as a
     result of defendant's conduct a gulley or ditch had been washed
     or eroded from the artificial channel created by defendant across

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      its land to the uprooted trees piled in the hollow on its land, and
      surface water accumulating in this hollow has overflowed and
      washed a gulley or ditch across plaintiff's land which gutter
      varies in depth from 18 inches to 3 feet and in width from 5 to
      16 feet, and prevents access between the separated parts of
      plaintiff's field and prevents him from farming a large portion of
      his land. In substance, therefore, what the chancellor found was
      that ‘Defendant has diverted the natural flow of the surface
      water from its property onto and over [plaintiff's] field by
      concentrating the water at an artificial point of flow and by
      cutting an artificial channel, which natural flow of surface water,
      in the absence of these acts of defendant, would naturally be
      diffused and be dissipated in the main into the low point or
      hollow upon defendant's own premises.’

Rau, 103 A.2d at 424.

      In St. Andrew’s Evangelical Lutheran Church of Audobon v.

Lower Providence Twp., 198 A.2d 860 (Pa. 1964), the evidence

supporting relief was described as follows:

      Prior to the installation of the pipe, surface waters flowing from
      the Schrack property toward the parsonage property to the
      south flowed over a broad front along the rear portion of the
      latter property. The drainage pipe causes the surface waters to
      flow upon the Austin property in a concentrated flow, and has
      increased the quantity of surface waters discharged on the
      Austin property. By reason of the concentrated flow of surface
      waters, approximately 75 percent of the back yard of the
      parsonage is rendered swampy and mushy. The pipe drains not
      only the Schrack property, but also a part of the Apple Valley
      Development, a near by residential development. The pipe
      drains property on the north side of Sparrow Road for a distance
      of 135 feet to the east of the north terminus of the pipe, and for
      a distance of 55 feet to the west of the north terminus of the
      pipe, and for a distance of 160 feet to the north of the terminus
      of the pipe. The Austins' cesspool has filled up at an accelerated
      pace because of this increased and concentrated flow of water.
      Plaintiffs had a surface water problem prior to the installation of
      the pipe under Sparrow Road. However, the water problems
      have been increased and aggravated by the installation of the


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      pipe. Closing of the pipe will result in flooding of the Schrack
      property.

St. Andrew’s, 198 A.2d at 861.

      Finally, in Ridgeway Court, Inc. v. Landon Courts, Inc., 442 A.2d

246 (Pa. Super. 1981), the evidence presented demonstrated:

      Following the Landon's development of their respective
      properties, including the removal or elimination of a high land
      point or knoll, part of the surface water flow was diverted away
      from its natural course towards Lansdowne Avenue and re-
      directed toward and across the northerly portion of Ridgeway's
      property. The Plaintiff's experts testified that the Landon's
      development of their land created an increase in acreage of land
      draining onto Ridgeway's land, increased by 13% the slope of
      the land, and increased the concentrated and channelled surface
      water run-off by 4.07 cubic feet per second.

Ridgway, 442 A.2d at 247.

      I believe that in each of these cases where mandatory injunctive relief

was ordered, that order was supported by detailed evidence suggesting a

method of abatement.       It is the lack of such detailed evidence I find

troubling herein, and why I believe the instant order for mandatory

injunctive relief should be reversed.

      In light of the above, I respectfully dissent from that portion of the

majority decision affirming mandatory injunctive relief.




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