J-S58017-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL NOTO & LISA NOTO                           IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellants

                     v.

DANIEL J. MILLETT, BRETT A. MILLETT,
DANIEL MILLETT, III, JOHN TODD
MILLETT, MARI MILLETT DOHERTY,
STACIE MILLETT RECHLICZ, AND
TIMOTHY G. MILLETT, INDIV. /D/B/A
MILLETT REAL ESTATE, A
PENNSYLVANIA GENERAL PARTNERSHIP

                                                         No. 362 MDA 2016


              Appeal from the Order Entered February 16, 2016
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 2015-04180


BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED OCTOBER 19, 2016

       Michael Noto and Lisa Noto appeal from the February 16, 2016 order

sustaining preliminary objections in the nature of a demurrer and dismissing

their amended complaint. We affirm.

       Appellants instituted this action against Daniel J. Millett, Brett A.

Millett, Daniel Millett, III, John Todd Millett, Mari Millett Doherty, Stacie Millet

Rechlicz, and Timothy G. Millett, individually, and doing business as Millett

Real   Estate   (collectively   “Millet”).   The   amended     complaint    sought

declaratory and equitable relief, and also asserted claims for negligence and


* Retired Senior Judge assigned to the Superior Court.
J-S58017-16



nuisance. The facts are as follows. Appellants own a parcel of land abutting

property owned by Millett in South Abington Township, Lackawanna County.

Millett sought to improve its land by constructing a personal care facility on

its property. In order to manage stormwater runoff, Millett included a large

stormwater detention basin and infiltration system as part of the planned

property development. This system relied on an overflow spillway to direct

stormwater from the premises in case of extreme weather events. In such

an event, the spillway conducted overflow onto Appellants’ property.

      In order to comply with the strictures of the Pennsylvania’s Storm

Water Management Act, 32 P.S. § 680.1, et seq., Millett submitted its

stormwater runoff management plan for approval to the Lackawanna County

Conservation District acting on behalf of the Department of Environmental

Protection. Following a series of revisions to the plan, Millett obtained the

necessary permits to install the stormwater basin and spillway.

      After Millett completed installation of its stormwater basin and

spillway, Appellants filed a complaint against Millett alleging violations of the

Storm Water Management Act, seeking declaratory and equitable relief, and

raising claims for negligence and nuisance.      Appellants focused upon the

threat of harm to their property, upon which they planned to build

townhouses, caused by runoff originating from the spillway.          Millett filed

preliminary objections, which the court sustained in part following oral




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argument. The court directed Appellants to file an amended complaint, and

they complied.

      Appellants’ amended complaint raised counts for declaratory and

equitable relief, negligence, and nuisance. However, they abandoned their

claims arising under the Storm Water Management Act.             Appellants also

added averments regarding historical storm data in Lackawanna County, and

alleged miscalculations as to the size and capacity of Millett’s basin in

documents attached to Millett’s stormwater management permit application.

In essence, Appellants’ amended complaint asserted that it was merely a

matter of time before an extreme weather event would overwhelm the

basin’s   carrying   capacity,   cause    harmful   erosion   from   concentrated

stormwater flowing onto their property, and reduce the value of townhouses

they planned to develop thereon.

      Millett filed preliminary objections in the nature of a demurrer, to

which Appellants responded with their own preliminary objections.         During

oral argument, Millett asserted that Appellants had not proven that harm to

their property was imminent since they did not allege that the basin, as

constructed, was of a smaller volume than estimated due to the supposed

miscalculations.

      The court issued an order sustaining Millett’s preliminary objections in

the nature of a demurrer finding that Appellants’ claims were not ripe. The

court noted that miscalculations in the design of the basin “could be a

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concern if shown,” but emphasized that “there are no known design

problems with the stormwater system as built.” Trial Court Opinion, 4/6/16,

at 4. Furthermore, it found that allegations that the runoff would diminish

the   value   of   townhomes   Appellants   aspired   to   build   was   “remote,

hypothetical, and speculative at this time.” Id. Finally, the court observed

that Appellants’ reliance on a “100 year storm event” as proof that harm to

their property was likely did not establish that such damages were real,

present, or imminent. Id. Thus, it concluded that Appellants’ claims were

not ripe, and granted Millett’s preliminary objections in the nature of a

demurrer.

      Appellants filed a timely notice of appeal.     The court did not direct

Appellants to file a Rule 1925(b) statement of errors complained of on

appeal, and authored an opinion in support of its order.

      Appellants raise two issues for our consideration:

      1. Whether the lower court erred in dismissing the Amended
         Complaint, which asserted claims of negligence and nuisance
         and sought declaratory and injunctive relief, by relying upon
         purported unverified facts outside the Amended Complaint
         and by sustaining [Millett’s] preliminary objection in the
         nature of a demurrer?

      2. Whether the lower court erred in its application of the
         doctrine of ripeness in sustaining [Millett’s] preliminary
         objections in the nature of a demurrer?

Appellants’ brief at 4.




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      Initially, we note the standard for our review of a trial court’s ruling on

preliminary objections in the nature of a demurrer:

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint. The question presented by the
      demurrer is whether, on the facts averred, the law says with
      certainty that no recovery is possible. Thus, our scope of review
      is plenary and our standard of review mirrors that of the trial
      court.    Accepting all material averments as true, we must
      determine whether the complaint adequately states a claim for
      relief under any theory of law.

Grose v. Procter & Gamble Paper Products, 866 A.2d 437, 440

(Pa.Super. 2005) (citation and internal quotations omitted). The court must

also accept as true all reasonable inferences deducible from the averments.

Juszczyszyn     v.    Taiwo,    113    A.3d   853,     856     (Pa.Super.      2015).

Nevertheless, “the court may consider only such matters as arise out of the

complaint itself; it cannot supply a fact missing in the complaint.”           Id. If

there is any doubt as to whether a preliminary objection in the nature of a

demurrer should be sustained, that doubt should be resolved in favor of

overruling the preliminary objection. Richmond v. McHale, 35 A.3d 779,

783 (Pa.Super. 2012).

      Appellants first challenge the trial court’s purported reliance on

unverified facts presented to the court by Millett.         Specifically, Appellants

assail the court’s determination that alleged miscalculations in the design of

the   stormwater     basin,   which   would   render   it    much    smaller    than

contemplated in the original plans, were corrected when the system was



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built.    Appellants emphasize the following averments from their amended

complaint:

               40. Significantly, a careful review of the design calculations
         submitted by [Millett] concerning the detention basin discloses
         that, whether intentionally or negligently, [Millett] erroneously
         referred to a one foot (1’) change in elevation as a four foot (4’)
         elevation change. This error results in [Millett’s] further basin
         sizing calculations using a nine foot (9’) basin depth when the
         actual depth is only six (6’) feet.           As a result of this
         miscalculation, [Millett] overstated the volume of the detention
         basin by approximately twenty-five percent (25%).

               41. [Millett] design drawings further show that the
         emergency spillway and the R-4 rock used as riprap are at a
         lower elevation (approximately 1 ½ feet) than the spillway
         elevation as designed, thereby reducing the actual capacity of
         the basin.

               42. As a result of the foregoing negligent or intentional
         errors and calculations, the actual capacity of the basin is
         approximately 56% less than the basin sizing calculations
         submitted by [Millett].

               43. In fact, based upon the errors and miscalculations on
         the designs submitted by [Millett], the capacity of the detention
         basin is barely large enough to hold the volume from a “10-year”
         storm event rather than the expected volume of a “100-year”
         storm.1

Amended Complaint, 10/26/15, at ¶¶ 40-43.              Appellants argue that the

court erred in basing its conclusion that the threatened discharge of

____________________________________________


1
  Appellants characterize a “100-year storm event” as a high level of rainfall
with a one-percent chance of occurring in any given year, and therefore on
this same line of reasoning, a “10-year storm event” is a lesser level of
rainfall with a ten-percent chance of occurring in any given year, and so
forth. See Amended Complaint, 10/26/15, at ¶ 31.



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stormwater was too remote a possibility to be legally cognizable because

that conclusion rested on facts that appeared outside the record.

      To establish a common law cause of action in negligence, a plaintiff

must demonstrate that the defendant owed a duty of care to the plaintiff,

the defendant breached that duty, the breach resulted in injury to the

plaintiff, and the plaintiff suffered an actual loss or damage. Lux v. Gerald

E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super. 2005). An action

for negligence lies only if injury or damage is present.      Jeloszewski v.

Sloan, 100 A.2d 480, 482 (Pa. 1953).

      Additionally, an injunction to restrain a threatened nuisance will not be

granted unless the facts show that the proposed use will be a nuisance per

se or that a nuisance must necessarily result.      City of Erie v. Gulf Oil

Corp., 150 A.2d 351, 353 (Pa. 1959). Where there is no nuisance per se,

an injunction will not be granted to restrain a threatened nuisance unless it

appears that the nuisance is practically certain and not merely probable.

Ranck v. Bonal Enterprises, Inc., 359 A.2d 748, 752 (Pa. 1976) (citation

omitted). Finally, declaratory relief is not a matter of right, but rather is a

matter left to the sound judicial discretion of the court. Consolidated Coal

Co. v. White, 875 A.2d 318, 325 (Pa.Super. 2005).

      Instantly, Appellants averred that the stormwater basin was built and

that, according to the plans, it did not have the represented capacity due to

miscalculations contained therein.   See Amended Complaint, 10/26/15, ¶¶

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18, 40-43.    Since Appellants are entitled to the benefit of all reasonable

inferences deducible from the allegations in their amended complaint, we

find it reasonable to infer that Millett built its basin according to the plans

submitted during the permitting process. Juszczyszyn, supra.

      In sustaining the demurrer, however, the trial court found that

Appellants failed to plead that the basin was built as designed. In arriving at

that conclusion, the trial court credited Millett’s representation in its brief

that the basin, as constructed, did not include the supposed design defects.

Since we find it was reasonable to infer that Millett’s basin was built per the

plans, Appellants should have been given the benefit of that inference, and

Millett’s statement to the contrary should not have been considered in

determining the sufficiency of the complaint.      The court misapplied the

proper standard of review of preliminary objections in the nature of a

demurrer.     Although the court erred in this regard, it will not afford

Appellant relief based on our disposition of their second issue. Knowles v.

Levan, 15 A.3d 504 (Pa.Super. 2011) (finding an error by the trial court

harmless where it did not affect the result).

      Appellants next assert that the court erred in determining this matter

was not ripe for review. They posit that the factual averments included in

the amended complaint established that it was only a matter of time before

Millett’s stormwater basin overflowed causing damage to their property.

Appellants maintain that the historical storm data and significant design

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deficiencies pled in the amended complaint, as discussed above, compelled

the conclusion that injury to their property, including erosion and diminution

to the value of townhouses they plan to build on their property, was

imminent. Thus, they contend, this matter was ripe for the court’s review.

      The   doctrine   of ripeness   implicates   the   timing   of   the   court’s

intervention in litigation. Philadelphia Entertainment and Development

Partners, L.P. v. City of Philadelphia, 937 A.2d 385, 392 (Pa. 2007). The

ripeness doctrine is invoked to prevent the courts, by avoiding premature

adjudication, from entangling themselves in abstract disagreements.            Id.

Courts are not to answer academic questions, render advisory opinions, or

make decisions based on assertions as to hypothetical events that might

occur in the future. Id.

      With regard to the quantity of past rainfall in Lackawanna County,

Appellants asserted the following:

      32. For instance, within Lackawanna County during the last
      twenty (20) years, two (2) storms have had rainfall that
      exceeded the expected “500-year storm” level. Similarly, within
      Lackawanna County during the past twenty (20) years, three (3)
      storms have occurred with an amount of rainfall at the expected
      “20 to 25-year storm” levels and five (5) storms have occurred
      with an amount of rainfall between the amount expected for “50-
      year” and “100-year” storms.

Amended Complaint, 10/26/15, at ¶ 32. Appellants maintain that the basin

was only large enough to hold the volume of a “10-year storm” event.




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       Here, Appellants levied no allegations sounding in trespass, or of

actual harm to their property. Indeed, the record reveals that no harm has

yet befallen Appellants’ property and that no runoff has occurred. Thus, any

relief due must be premised upon their contentions that the threatened

harm arising from Millett’s stormwater system was practically certain to

occur, and not merely probable. Ranck, supra.2

       Appellants’ allegations of past storm data and miscalculations as to the

design of the basin, even if true, do not support the conclusion that harm is

practically certain to occur or is more than merely probable.        Appellants

concede that the basin, as designed, is “large enough to hold the volume
____________________________________________


2
  Appellants cite to three Commonwealth Court cases for the uncontroversial
claim that remedies are available to property owners where harm is
threatened against their property.         See Appellants’ brief at 17.     The
proposition arises first in dicta in Klein v. Shadyside Health, Educ. and
Research Corp., 643 A.2d 1120 (Pa.Cmwlth. 1994).                    Two other
Commonwealth Court cases, Chase v. Eldred Borough, 902 A.2d 992
(Pa.Cmwlth. 2006), and Bretz v. Central Bucks School Dist., 86 A.3d 306
(Pa.Cmwlth. 2014), cite to Klein for this proposition, however, these two
cases involve allegations of actual, and ongoing, property damage.
Significantly, the Klein court observed “a land use can obtain a proper
zoning approval under a zoning ordinance which is valid, and yet, by reason
of the manner of its operation or its particular nature, still constitute a
nuisance subject to an equitable remedy.” Klein, 62 A.2d at 558 (emphasis
added). The implication arising in Klein, and expressed in Chase and
Bretz, is that some things constitute a nuisance by their character alone,
and others become so as a result of their use. Although we are not bound
by decisions of the Commonwealth Court, its decisions may provide
persuasive authority. Petow v. Warehime, 996 A.2d 1083, 1088 n.1
(Pa.Super. 2010). Since Appellants challenge the manner in which the basin
will operate in the future, it is clear they have not, and cannot, allege actual
harm. Thus, Chase and Bretz are inapplicable.



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from a ‘10-year storm’ event.”           Amended Complaint, 10/26/15, at ¶ 43.

Hence, their claims rely on the occurrence of a level of rainfall that has less

than a ten percent chance of occurring in any given year.

       The unlikely nature of this claim renders this dispute premature.

Although Appellants assert that ten storms with a sufficient level of rainfall

to overtop the basin have taken place in the last twenty years in

Lackawanna County, the likelihood of such a storm occurring is less than five

percent each year. Such a low probability does not support the claim that

harm to Appellants’ property was practically certain. Furthermore, that this

potential danger may diminish the value of townhomes Appellants may build

sometime in the future is of no moment, as such diminution in value is

equally as speculative.          Philadelphia Entertainment, supra.         Since

Appellants’ averments do not establish the requisite likelihood of injury to

their property, this matter is not ripe for review, and the court did not err in

sustaining Millett’s preliminary objections in the nature of a demurrer.3




____________________________________________


3
  Obviously, at some point in the future if runoff causes harm to Appellants’
property, a suit could be filed against Millett at that time. See Rau v.
Wilden Acres, Inc., 103 A.2d 422 (Pa. 1954).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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