J-A06022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHAWN & VALERIE CLARK                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellees

                       v.

MARK AND SUSAN AND HELEN FRITZ

                            Appellants               No. 1085 MDA 2015


               Appeal from the Judgment Entered August 7, 2015
                 In the Court of Common Pleas of Berks County
                         Civil Division at No(s): 13-2044


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MAY 06, 2016

       Mark and Susan Fritz (h/w) and Helen Fritz (collectively the “Fritzes”)

appeal from the judgment, entered on a verdict in favor of Appellees, Shawn

and Valerie Clark, (h/w) (the “Clarks”), after the court granted a permanent

injunction1 in the underlying equity action. After careful review, we affirm.
____________________________________________


1
  When an appellate court reviews the grant of a permanent injunction, its
scope of review is plenary. Kuznik v. Westmoreland County Bd. of
Comm’rs, 902 A.2d 476, 489 (Pa. 2006). On appeal, our inquiry concerns
whether the lower court’s legal determination that the plaintiff established a
clear right to relief, as a matter of law, was proper. Accordingly, our
standard of review is de novo. Seven Springs Farm, Inc. v. Croker, 801
A.2d 1212, 1216 n.1 (Pa. 2002) (standard of review for questions of law is
de novo). Moreover,

       [t]o be entitled to a permanent injunction, a party must
       establish a clear right to relief, and must have no adequate
       remedy at law, i.e., damages will not compensate for the injury.
       J.C Erlich Co. v. Martin, [] 979 A.2d 862, 864 (Pa. Super.
(Footnote Continued Next Page)
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      In July 2001, the Fritzes purchased and installed on their property a

Phase-2,2 400,000 BTU outdoor wood-fired burner (OWB/furnace).3               The

total cost of the unit, including installation, was $30,000.      N.T. Non-Jury

Trial, 4/8/15, at 592. The furnace was used year-round to heat the interior



                       _______________________
(Footnote Continued)

      2009) (quoting Pestco, Inc., [] 880 A.2d [at] 710[.] Unlike a
      preliminary injunction, a permanent injunction does not require
      proof of immediate irreparable harm. Id.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal
Practical Knowledge, et al., 102 A.3d 501, 506 (Pa. Super. 2014).
2
  Phase-2 denotes a newer model wood-fired boiler that is more efficient
than older models, resulting in reduced emissions of particulate matter equal
and less than 2.5 micrometers in diameter (PM2.5) which negatively impact
the environmental and public health. See 40 Pa. Bull. 5571 (October 10,
2010).
3
   OWBs, also referred to as outdoor wood-fired furnaces, outdoor wood-
burning appliances or outdoor hydronic heaters, are free-standing fuel-
burning devices designed: (1) to burn clean wood or other approved solid
fuels; (2) specifically for outdoor installation or installation in structures not
normally intended for habitation by humans or domestic animals, such as
garages; and (3) to heat building space or water by means of distribution,
typically through pipes, of a fluid heated in the device, typically water or a
water and antifreeze mixture. OWBs are sold to heat homes and buildings
and        to      produce       domestic        hot       water.             See
http://www.pabulletin.com/secure/data/vol40/40-40/1876.html (last visited
April 4, 2016). The specific model owned by the Fritzes, the Optimizer 350,
is manufactured by Portage & Main. The gases burned in this furnace reach
temperatures of in excess of 2000 degrees Fahrenheit. The process of
“gasification” that is used in the operation of the Optimizer 350 is defined as,
“out combustion, with a controlled amount of oxygen and/or steam.”
http://www.gasification-syngas.org/technology/the-gasification-process (last
visited April 6, 2016).




                                            -2-
J-A06022-16



of their residences4 as well as their water supply.5 Mr. Fritz testified that he

primarily burned seasoned hard wood in the furnace.          Id. at 591.    The

furnace greatly reduced the Fritzes’ heating expenses compared to what it

had cost them to run their standard home oil-based heating system.6 The

furnace is located approximately 420 feet to the west of the Clarks’ property

line and 670 feet west of the Clarks’ residence.        The topography of the

parties’ land is primarily rolling hills.

       The Fritzes obtained the requisite township permits and uniform

construction code permit for the furnace.         The Fritzes complied with all

zoning and building regulations, as well as manufacturer’s instructions, when

installing and using the furnace. One of those instructions included locating

the unit downwind from their residences.          The unit also complies with

Environmental Protection Agency (EPA) standards.         However, notably, the

EPA requires that manufacturers provide all potential buyers of Phase II

furnaces the following information in their respective owner’s manuals:
____________________________________________


4
   The Fritzes own two adjoining lots, located on a span of 6 acres in Tilden
Township, Berks County. Two residences are on the lots; Mark and Susan
live together in one home, and Mark’s mother, Helen, lives in the other
home. The furnace was able to heat the interior and water supplies of both
residences.
5
 The unit was operated year-round (twenty-four hours a day, seven days a
week and 365 days a year) as it also heated the Fritzes’ reptiles.
6
  The Fritzes have an oil furnace in their home that is still operable, which
they have been using as their heat source since they were ordered to stop
operating the furnace.



                                            -3-
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       Statements indicating that the person(s) operating a hydronic
       heater is/are responsible for operation in a manner that does not
       create a public or private nuisance condition.               The
       manufacturer’s distance and stack height recommendations and
       the requirements in any applicable laws or other requirements
       may not always be adequate to prevent nuisance conditions due
       to terrain or other factors.

EPA Hydronic Heater Program, Phase 2 Partnership Agreement, 10/12/11, at

§ VI(A)(5) (Outreach Materials; Owner’s Manuel Statement).

       On February 13, 2013, the Clarks filed a civil action in equity,

sounding in private nuisance and trespass, seeking to enjoin the Fritzes from

causing further damage to them and their property. In the complaint, the

Clarks averred that when the prevailing winds blow from west to east, the

furnace’s strong, pungent and foul-smelling smoke would descend upon their

property and cause them to suffer from any and all of the following

conditions:     burning in their eyes, throats and lungs, sore throats, and

headaches. As a result of the odor emanating from the furnace, the Clarks

had to close their windows and doors and keep the air conditioning on

throughout the year.7 Despite these measures, it was virtually impossible to

keep all of the fumes from permeating their home through vents and the

fireplace.    Overall, the fumes prevented the Clarks from enjoying any

outdoor activities on their property. Despite several requests by the Clarks

that the Fritzes cease using the furnace, as well as requests that the Fritzes

____________________________________________


7
 Mr. Clark kept a log which indicated that irritating smoke came out of the
Fritzes’ furnace 210 days out of the first 365 days of its use.



                                           -4-
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raise the smoke stack of the unit, the quantity of smoke drifting onto the

Clarks’ property did not decrease or cease.

      The Clarks also filed a separate petition for special relief in the nature

of a preliminary injunction against the Fritzes, claiming that smoke from the

furnace was entering their home and causing adverse health effects on their

entire family, including their young child and family dog.     The Fritzes filed

preliminary objections to the complaint, to which the Clarks filed an answer.

On May 6, 2013, the court dismissed the Fritzes’ preliminary objections.

      On May 21, 2013 and June 4, 2013, the court held hearings on the

Clarks’ request for a preliminary injunction.    On June 10, 2013, the court

entered an order granting injunctive relief finding that:

      [P]laintiffs have met the burden of proof that a party must
      establish in order to obtain preliminary injunctive relief . . . and
      that defendants’ outdoor wood burning furnace is a private
      nuisance as it presently exists and, as such, defendant is
      prohibited from using the outdoor wood burning furnace in its
      present location. Defendants may submit a plan to relocate the
      outdoor wood burning furnace elsewhere on their property that
      does not disturb the peaceful use and enjoyment of any of the
      neighbors.

Order, 6/11/13. Despite the court’s suggestion that the Fritzes relocate the

unit, they did not attempt to do so.       After the Fritzes ceased using the

furnace, there was no more smoke in the air, the Clarks’ physical problems

subsided and they were able to fully enjoy use of their property.




                                     -5-
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        Days after the court issued the preliminary injunction, Mr. Fritz

constructed a 55-gallon burn barrel,8 ignited a fire in the barrel, burned

various items (including household trash) in it, and placed it on the edge of

Helen’s property that bordered the Clarks’ property. Mr. Fritz tended to the

fire, which was continuously stoked for 13 hours, as he sat in a lounge chair

under a sun umbrella while drinking beer.9

        On May 22, 2015, after a bench trial and three days of testimony, the

court entered a permanent injunction that prohibited the Fritzes from using

the furnace and, again, gave them the opportunity to relocate the furnace to

an area that would not interfere with the Clarks’ use and enjoyment of their

property. The court also assessed $1,500 in punitive damages against the

Fritzes “due to Defendants’ reckless indifference to the right of Plaintiffs to

enjoy the clean air and peaceful enjoyment of the property.”            Order,

5/27/15. Finally, the court prohibited the Fritzes from “any open burning,

including barrel burning, within 150 feet of the border of Plaintiffs’ property

line.” Id. On June 5, 2015, the Fritzes filed post-trial motions, which were

denied on June 9, 2015. This timely appeal follows.10
____________________________________________


8
 A burn barrel is a homemade incinerator constructed of a metal 55 gallon
open head drum, modified to burn household trash.
9
    Mr. Fritz continued to use the barrel for months thereafter.
10
  The Fritzes also filed an application for a supersedeas to stay the verdict
pending appeal, pursuant to Pa.R.A.P. 1731. The application was denied by
the trial court.



                                           -6-
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       On    appeal,    the    Fritzes11   raise   the   following   issues   for   our

consideration:12

       (1) Whether the court erred by refusing to decide Appellant’s
       motions in liminae [sic], preventing a clear record for appeal;

       (2) Whether the trial court erred by allowing Appellees to testify
       to their medical conditions pursuant to the use of the furnace;

       (3) Whether the trial court improperly allowed Appellees’ expert
       report and testimony of Alan R. Leston into evidence;

       (4) Whether the court, sitting as factfinder, improperly
       conducted its own independent research which it relied upon in
       granting the permanent injunction;

____________________________________________


11
   We note that Susan and Mark Fritz and Helen Fritz have filed separately
counseled appellate briefs in the instant matter. We have consolidated their
issues, several of which overlap, for review on appeal.
12
    In her appellate brief under the section titled, “Statement of Issue
Raised,” Helen Fritz states the following: Whether the lower court abused its
discretion by granting a permanent injunction against Appellants’ future use
of their wood furnace used to heat their home and water supply and also
assessing punitive damages after a non-jury trial before the Honorable
Jeffrey K. Sprecher. Appellant’s Brief, at 2. However, she argues the issues
raised above in her brief which are marginally related to the overall issue of
whether the court properly granted a permanent injunction. See Pa.R.A.P.
2116(a) (statement deemed to include every subsidiary question fairly
comprised therein”) (emphasis added). We caution counsel, however, that
“[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). See
Greenwich Collieries v. Workmen’s Comp. Appeal Bd., 664 A.2d 703
(Pa. Commw. 1995) (where issue addressed in argument portion of
appellant’s brief was not the same as or suggested by issue presented in
statement of questions presented, court found issue waived). Because
counsel has not provided any argument, whatsoever, on the issue raised in
Helen’s Rule 2116 Statement of Questions Involved, we will not address it on
its merits.




                                           -7-
J-A06022-16


       (5) Whether the trial court’s permanent injunction violates the
       equal protection clause of the United States and Pennsylvania
       Constitutions;

       (6) Whether the trial court erred and abused its discretion in
       refusing to allow a jury trial on the eve of trial where: (1)
       Defendants had properly made a jury demand 20 months earlier
       and no objection had ever been made; (2) Defendants had a
       constitutional and statutory right to a jury trial; and (3) the
       nature of a nuisance action requires the community, not the
       court, to determine what standards are acceptable; and

       (6) Whether the trial court erred and abused its discretion in
       assessing punitive damages against Defendants for using a burn
       barrel where: (1) the use was legal and was not at issue before
       the court; and (2) the barrel burning took place before the
       court’s preliminary injunction was legally effective.

See Brief of Mark and Susan Fritz, at 4; Brief of Helen Fritz, at 6-16.

       Helen Fritz claims that the trial court failed to rule upon several pretrial

motions in limine, including a ruling on the proper standard for an expert

witness (Daubert13/Frye14 claim), the diminution of the Clarks’ property

value, and how the Clarks’ health was affected by the operation of the

furnace.15 Helen asserts that failure to rule upon these motions prior to trial

constituted “reversible error that can only be cured by a new trial.”
____________________________________________


13
  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.
Ed. 2d 469, 113 S. Ct. 2786 (1993).
14
   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (novel scientific
evidence admissible only upon showing that methodology has gained general
acceptance in relevant community).
15
   The admission of evidence is committed to the sound discretion of the trial
court and our review is for an abuse of discretion. Commonwealth v.
Parker, 104 A.3d 17, 21 (Pa. Super. 2014) (citation omitted). “An abuse of
discretion occurs where the law is overridden or misapplied, or the judgment
(Footnote Continued Next Page)


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      To support this issue, Helen Fritz cites to one criminal case where a

trial court refused to hear evidence on a defendant’s motion to suppress in

an underage drinking case. See Commonwealth v. Breslin, 732 A.2d 629

(Pa. Super. 1999).        In Breslin, the evidence the defendant sought to be

suppressed consisted of breath samples and test results taken from the

defendant’s breath samples, which formed the sole support for the

defendant’s conviction.          The circumstances in Breslin are in no way

analogous to the current equity action seeking a permanent injunction

against the Fritzes. Where there is no citation to relevant authority on the

issue to show how the court committed reversible error, we find this issue

waived. Pa.R.A.P. 2119.16

      Next, the Fritzes assert that the court erred by permitting the Clarks to

offer “speculative, unproven” testimony about the alleged adverse health

effects they suffered as a result of emissions from the Fritzes’ furnace.

      Prior to trial, the parties agreed that the Clarks’ medical records would

not be introduced into evidence, primarily due to the fact that they were not

seeking damages for any medical claims or injuries. Despite this agreement,

                       _______________________
(Footnote Continued)

exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record.” Commonwealth
v. Adams, 104 A.3d 511, 517 (Pa. 2014) (internal quotation marks and
citation omitted).
16
   Additionally, Helen has failed to show how these delayed rulings
constituted reversible error.



                                            -9-
J-A06022-16



it was incumbent upon the Clarks, as plaintiffs, to prove that the Fritzes

created a nuisance. Section 822 of the Restatement (Second) of Torts sets

forth the elements of liability for a private nuisance as follows:

      One is subject to liability for a private nuisance if, but only if, his
      conduct is a legal cause of an invasion of another’s interest in
      the private use and enjoyment of land, and the invasion is either

         (a) intentional and unreasonable, or

         (b) unintentional and otherwise actionable under the rules
         controlling liability for negligent or reckless conduct, or for
         abnormally dangerous conditions or activities.

Diess v. Pa. DOT, 935 A.2d 895, 905 (Pa. Commw. 2007), citing

Restatement (Second) of Torts § 822. See also Kembel v. Schlegel, 478

A.2d 11 (Pa. Super. 1984) (acknowledging that Pennsylvania Supreme Court

adopted section 822 of Restatement (Second) of Torts as test to determine

private nuisance). The Restatement further defines the harm necessary to

impose liability under nuisance law as “significant harm, of a kind that would

be suffered by a normal person in the community or by property in normal

condition and used for a normal purpose.”         Id. at 15, citing Restatement

(Second) of Torts, § 821F.

      Here, testimony about the physical symptoms suffered by the Clarks

as a result of the smoke from the Fritzes’ furnace was necessary to prove

the “significant harm” element of a claim for nuisance.           See Evans v.

Moffat, 160 A.2d 465 (Pa. Super. 1960) (testimony that plaintiffs

experienced headaches, coughing, nausea and irritation of nasal passages as

result of noxious and foul smelling gases emanating from defendant’s coal


                                      - 10 -
J-A06022-16



company relevant to prove case under section 822 of the Restatement

(Second) of Torts).       Under these circumstances, the court did not err in

admitting such evidence.

        The Fritzes next claim that the court improperly admitted the expert

report and testimony of the Clarks’ expert, Alan R. Leston, into evidence at

trial.17 Specifically, they assert that the court should not have permitted a

lay witness to opine on the engineering characteristics of the furnace, its

causal     connection    to   damaging         the   environment,   and   reference   to

metrological data in his report as proof of causation. Without this testimony,

the Fritzes claim that the Clarks failed to prove that the furnace caused any

harm which would warrant a permanent injunction.
____________________________________________


17
     It is well established that:

        [w]hen we review a ruling on the admission or exclusion of
        evidence, including the testimony of an expert witness, our
        standard is well-established and very narrow. These matters are
        within the sound discretion of the trial court, and we may
        reverse only upon a showing of abuse of discretion or error of
        law. “An abuse of discretion may not be found merely because
        an appellate court might have reached a different conclusion, but
        requires a result of manifest unreasonableness, or partiality,
        prejudice, bias, or ill-will, or such lack of support so as to be
        clearly erroneous.” Grady v. Frito-Lay, Inc., [] 839 A.2d
        1038, 1046 (Pa. 2003). In addition, “[t]o constitute reversible
        error, an evidentiary ruling must not only be erroneous, but also
        harmful or prejudicial to the complaining party.” McClain v.
        Welker, [] 761 A.2d 155, 156 (Pa. Super. 2000) (citation
        omitted).

Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super.), aff’d, 971
A.2d 1202 (Pa. 2009).



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         First, we note that, contrary to the Fritzes’ assertion, the court

certified Leston as an expert witness in the area of air quality science and

outdoor wood boilers.       N.T. Non-Jury Trial, 4/8/15, at 315, 317.            Leston

testified that part of his job as a senior engineer was to analyze data and

prepare daily air quality pollution reports. Id. at 301. He also determined

prevailing winds and used airport data to obtain wind speed direction when

he worked for the Connecticut Department of Environmental Protection. Id.

at 323-24. Based on Leston’s experience in air quality analysis and data, as

well as his extensive employment history in the industry, the trial court

properly qualified him as an expert witness.               See Pa.R.E. 702 (witness

qualified as expert by knowledge, skill, experience, training or education

may testify in form of opinion or otherwise if expert’s knowledge is beyond

that possessed by average layperson, where knowledge will help trier of fact

understand evidence or determine fact in issue and where expert’s

methodology generally accepted in relevant field); see also Abbott v. Steel

City Piping Co., 263 A.2d 881 (Pa. 1970) (practical experience may, in

proper case, suffice to qualify witness as expert).

         In order to obtain technical information on the Fritzes’ furnace, Leston

relied    on   videos and    photos   taken     by   Mr.    Clark,   as   well   as   the

manufacturer’s owner’s manual, sales brochures, and the manufacturer’s

website. N.T. Non-Jury Trial, 4/8/15, at 320. Leston also testified that he

looked at topographical maps of the area and gathered data from several

airports and the National Weather Service to ascertain the area’s prevailing

                                       - 12 -
J-A06022-16



wind direction. Id. at 321. Because Leston’s conclusions were based upon

generally accepted principles and methodologies, the court did not abuse its

discretion in permitting him to testify regarding the relevant issues

surrounding the winds and how they affected the smoke flowing from the

furnace. Freed, supra; Pa.R.E. 702.

      The Fritzes next claim that the court improperly conducted its own

independent research and took judicial notice of extraneous evidence which

it used to support the grant of a permanent injunction.    Specifically, they

claim that the court relied on evidence of the prevailing winds in the Los

Angeles City Valley basin and its smog effects upon the City of Los Angeles

and then compared it to the wind currents and topography in Tilden

Township.   Additionally, the Fritzes assert that the court improperly took

judicial notice of the Eastern United States’ air currents and how they apply

to the instant case.

      Instantly, the court’s reference to and use of facts relating to wind

currents was not improper where those facts could be determined from

accurate sources and where the information was supported by both lay and

expert testimony from trial.   See Pa.R.E. 201(b).    See also Interest of

D.S., 622 A.2d 954, 957 n.4 (Pa. Super. 1993) (“Adjudicative facts are facts

about the particular parties to the controversy, their activities, their

property, and their interests. Facts which help answer who did what, when,

where, why, how, and with what motive and intent are all adjudicative.”).




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Here, the facts in question were adjudicatory facts; therefore, we find no

merit to this claim.

        Next, Helen Fritz claims that the court’s issuance of a permanent

injunction is unconstitutional under the Equal Protections Clauses of the

Pennsylvania18 and United States Constitutions19 because the Fritzes are not

being treated the same as other similarly-situated citizens of Tilden

Township, the Commonwealth of Pennsylvania, and the United States.

Additionally, the Fritzes claim that because their furnace complied with local

township ordinances and because the unit was approved for use by the EPA,

the court has “improperly criminalized the legal behavior of [their] use of the

Furnace.” We disagree.

        In order to grant a permanent injunction, the evidence only needed to

show that a legal wrong existed for which there was no adequate remedy at

law. J.C. Erlich, supra. There was no question that the Fritzes’ continued,

intentional use of the furnace greatly impacted the Clarks’ daily life, as it

prevented them from enjoying the outdoors and also caused them to suffer

physically from the smoke that permeated their home despite constant self-

help efforts to abate the problem. Accordingly, they successfully proved that

a private nuisance claim. See Restatement (Second) of Torts § 822 (“One is


____________________________________________


18
     See Pa. Const. art. III, § 32.
19
     See U.S. Const. amend. XIV, §1.



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J-A06022-16



subject to liability for a private nuisance if . . . his conduct is a legal cause

of an invasion of another interest in the private use and enjoyment of land,

and the invasion is . . . intentional and unreasonable[.”]). Because no other

adequate remedy existed short of shutting down the unit to rectify the

situation, a permanent injunction was justified. Id.20

       Moreover, it is of no moment that the Fritzes complied with local

ordinances in installing and operating the furnace or that the unit was

approved by the EPA, it is well-settled that a private nuisance often flows

from the consequences of an otherwise lawful act. Liberty Place, supra at

509 (collecting cases where defendants enjoined from legal acts that created

private nuisances).

       The Fritzes next claim that the trial court abused its discretion in

refusing to conduct a jury trial when they made a jury demand months

before the scheduled trial date and had a statutory and constitutional right

to a jury trial. It has been long recognized that Article 1, Section 6 of the

____________________________________________


20
   We also note that this situation does not invoke equal protection concerns.
The essence of the constitutional principle of equal protection is that like
persons in like circumstances will be treated similarly. However, it does not
require that all persons under all circumstances enjoy identical protection
under the law. Because the Fritzes chose to continue to operate their
furnace, which produced unwanted emissions that negatively affected the
use and enjoyment of the Clarks’ property, they were not similarly situated
like other local, state and national citizens who were utilizing their furnaces
in a way that did not substantially interfere with another’s use and
enjoyment of property.




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Pennsylvania Constitution does not permit a jury trial in an ordinary equity

action.21 Rosenberg v. Rosenberg, 419 A.2d 167, 206 (Pa. Super. 1980),

citing Schwab v. Miller, 153 A. 731 (Pa. 1931). Once the Clarks brought

the original action in equity, the matter has entered the realm of equity and

equity jurisdiction subsumed the entire case. See McGovern v. Spear, 344

A.2d 826 (Pa. 1975).       Therefore, this claim has no merit.

       Finally, the Fritzes complain that the court improperly awarded

punitive damages to the Clarks where there was “no basis in the facts or the

law to support same.”        Appellants’ Brief, at 5.   Punitive damages may be

awarded in equity cases and “the finder of fact should be given broad

discretion in assessing the amount of punitive damages which will be

sufficient to punish the defendant and to set an example which may deter

the defendant and others from similar conduct.”          Pierce v. Penman, 515

A.2d 948, 954 (Pa. Super. 1986).22
____________________________________________


21
   The equity jurisdiction of Pennsylvania courts is triggered only when an
adequate remedy is not available at law. See Peitzman v. Seidman, 427
A.2d 196, 198 (Pa. Super. 1981).
22
   Although we recognize that where an injury is sustained to real property
as a result of the negligence of another, the property owner is entitled to
damages for the inconvenience and discomfort caused thereby, Evans v.
Moffat, supra at 473, here the Clarks did not request money damages or
include a separate claim for inconvenience and discomfort in their complaint.
At most, they requested that the Fritzes pay their attorneys’ fees and costs
for prosecuting the action. See Plaintiffs’ Complaint, 2/13/13, at ¶¶40(b),
41(b).




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       Just days after the court issued a preliminary injunction23 preventing

the Fritzes from operating their furnace, Mr. Fritz built a 55-gallon burn

barrel, ignited a fire in the barrel, and placed it on the edge of the Clarks’

property. Mr. Fritz tended to the fire, which was continuously stoked for 13

hours, as he sat in a lounge chair under a sun umbrella while drinking beer.

Mr. Fritz later admitted that he was “peeved” and had “had a couple beers”

at the time. N.T. Non-Jury Trial, 4/8/15, at 265. The court determined that

Mr. Fritz’s actions were “deliberate and meant to harass the plaintiffs.” Trial

Court Opinion, 8/28/15, at 28. Under such circumstances, punitive damages

were warranted to punish the Fritzes and prevent them from engaging in

similar conduct in the future.                 Pierce, supra; SHV Coal, Inc. v.

Continental Grain Co., 587 A.2d 702 (Pa 1991) (whether party’s actions

rise to level of outrageous conduct is within discretion of fact finder).




____________________________________________


23
   While the Fritzes claim that barrel burning took place before the court’s
preliminary injunction was legally effective, the Clarks’ log indicates that this
specific barrel was constructed and placed on the edge of their property just
days following the court’s entry of the preliminary injunction. Moreover,
while they may have used a burn barrel prior to this date, the court’s
determination that the this barrel was intentionally used to emit fumes and
smoke over the Clarks’ property as a result of the instant action is supported
in the record.



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     Judgment affirmed.

     DUBOW, J., Joins the majority.

     STABILE, J., Concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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