J-A14025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 896 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, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 15, 2016

        Grandview Management, Inc. and Burnham Farms, LP (Grandview and

Burnham) appeal from the judgment entered on October 1, 2015,1 in the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although Grandview and Burnham ostensibly appeal from the April 23,
2015 order entering judgment, pursuant to Pa.R.C.P. 227.4, in favor of
Stone Valley Construction, Inc. (Stone Valley), the appeal properly lies from
the subsequent October 1, 2015 order which made final the verdict of May
20, 2015, compelling Grandview and Burnham to pay $43,285.00 for the
removal and replacement of certain trees on Plaintiff, James G. Waite’s
property, and to modify the storm water drainage system.
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Court of Common Pleas of Centre County.          In this appeal, Grandview and

Burnham raise two issues: (1) Was the April 23, 2015 entry of judgment

premature, and (2) Did the trial court err in granting a directed verdict in

favor of Stone Valley?         After a thorough review of the certified record,

relevant law, and the submissions by the parties, we agree that the entry of

judgment was premature; however, such action was harmless as Grandview

and Burnham preserved their claims. We further conclude the trial court did

not err in granting a directed verdict in favor of Stone Valley. Accordingly,

Grandview and Burnham are not entitled to relief.

        The trial court recounted the basic factual history of this matter as

follows:

        [Waite] owns a 3.02 acre tract of land in Spring Township,
        Centre County. The bulk of this tract is woodland, although the
        track also contains [Waite’s] home and, until recently, a
        garage.[2] Until approximately 2005, the area upslope from
        [Waite’s] property was a farm, forest, and meadow.

        [CDG Properties, LLC] purchased the property and began to
        construct a residential development known as Burnham Farms
        Estate with the assistance of Additional Defendants[3] in 2006.
        The development has a storm water management system
        consisting of swales, conduits, pipes, and a detention basin,
        installed pursuant to several permits issued by the Department
        of Environmental Resources.
____________________________________________


2
    Unrelated to this action, the garage burned to the ground.
3
  Additional Defendants include Appellants, Grandview Management, Inc.
and Burnham Farms, L.P.



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       Approximately three years after construction on the
       development began, [Waite] noticed the trees along the property
       line near the development had begun to die. After investigation,
       [Waite] came to the conclusion the trees were dying due to
       increased subsurface drainage from the development and filed
       the instant suit.

Trial Court Opinion, 5/20/2015, at 2.

       Additionally, we note that at trial two experts, Eric Chase, a

geologist/hydrologist,      and     Keith      Lingenfelter,       a     horticulturalist/plant

pathologist testified on behalf of Waite. Chase opined that the storm water

drainage system did not function properly, but provided no testimony as to

why, how or who was responsible for that failure. Lingenfelter provided his

opinion that the primary cause of the tree death was an excess of subsurface

water that essentially drowned the trees.                    John Oleksa, a registered

landscape     architect,   testified   as      an   expert    on       behalf   of   Grandview

Management and provided his opinion that a wide variety of stresses,

including insects, pathogens and drought were possible causes of the tree

death.

       On January 26, 2015, at the close of evidence in the non-jury trial of

this matter, the trial court granted Stone Valley’s motion for directed verdict

after it determined no evidence had been presented against them. 4 The trial


____________________________________________




(Footnote Continued Next Page)


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J-A14025-16




court took the case against the remaining defendants under advisement. The

oral order granting the directed verdict was reduced to writing and entered

on the docket on March 13, 2015. However, as noted, claims against other

defendants still remained viable. In fact, the trial court subsequently found

against defendants Grandview and Burnham.          Accordingly, pursuant to

Pa.R.A.P. 341, the directed verdict was not a final order because it did not

dispose of all claims and all parties. See also, Boyce v. Smith-Edwards-

Dunlop Co., 580 A.2d 1382 (Pa. Super. 1990) (Directed verdict that did not

dispose of all claims and parties was not a final appealable order).

Nonetheless, Stone Valley filed a premature praecipe to enter judgment

prior to the final resolution of Waite’s claims against the remaining

defendants.     While judgment was entered in favor of Stone Valley, the

appeal did not become ripe until the October 1, 2015 order disposed of all

claims and parties.5

      In their first issue, Grandview and Burnham argue the entry of

judgment by praecipe in favor of Stone Valley pursuant to Pa.R.C.P. 227.4

was improper and therefore the judgment should be stricken.        As noted

                       _______________________
(Footnote Continued)
4
  Although directed verdict was granted in favor of both Stone Valley and
CDG Properties, Grandview and Burnham are only appealing the judgment in
favor of Stone Valley.
5
   Country Cove Condominium Association (Country Cove) was never
independently served and was not independently represented at trial.



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J-A14025-16




above, we agree that the April 23, 2015 order entering judgment in favor of

Stone Valley was premature and improper. Nevertheless, we agree with the

trial court’s determination that such error was a harmless procedural error.

Grandview and Burnham have preserved their substantive claim, and that

claim is currently before us. Grandview and Burnham have demonstrated no

harm, nor can we perceive any.       Further, Grandview and Burnham have

provided no authority to support their claim that the relief they are entitled

to is to have the judgment stricken.   Accordingly, we decline to strike the

judgment in favor of Stone Valley.

      The substance of Grandview and Burnham’s second argument is that

the directed verdict was improper because there was evidence creating a

question whether Stone Valley could be held jointly liable for the improperly

functioning storm water drainage system.        Specifically, Grandview and

Burnham claim:

      It is respectfully submitted that a factual issue was presented in
      the testimony that could have created a question for the fact
      finder concerning whether construction of the drainage swale
      was a factor in allowing water to infiltrate into the subsurface.

Appellant’s Brief at 14. This claim ignores the fact that the same trial judge

who granted the directed verdict was also the ultimate fact finder.        The

same evidence, or lack thereof, was before the trial judge whether he

granted the directed verdict or waited to dispose of the claim along with the




                                     -5-
J-A14025-16




claims against Grandview and Burnham.            Accordingly, that aspect of

Grandview and Burnham’s claim fails.6

       As to whether the trial court correctly determined there was no open

question of law or fact regarding the possibility of Stone Valley’s culpability

in requesting the directed verdict, counsel for Stone Valley stated:

       [W]hile there has been testimony evidence that Stone Valley
       constructed the swale, there is no testimony or evidence at this
       time with regard to whether the construction of the swale is the
       issue. There has been no expert testimony as to whether the
       swale was designed improperly, constructed improperly, or
       maintained improperly.      I don’t believe that any of those
       occurred. But I think in order to establish a case against Stone
       Valley, that it must be established that the swale was
       constructed improperly. And there is absolutely no evidence or
       testimony of record to that effect, your Honor.

N.T. Trial, 1/26/2015 at 184-85.

       Our review of the evidence presented at trial convinces us that this

statement was an accurate representation of the lack of evidence against

Stone Valley.     Indeed, there was no indication of what Stone Valley may

have done to cause an excess flow of subterranean water onto Waite’s

property. In light of the fact that no evidence at all was presented to the

trial court regarding any improper or negligent act on the part of Stone

____________________________________________


6
  We have interpreted this aspect of Grandview and Burnham’s claim as an
assertion that the directed verdict was premature. Such an argument would
be more appropriate if the ultimate fact finder was a jury, not the trial
judge.



                                           -6-
J-A14025-16




Valley, any verdict against Stone Valley would have necessarily been based

upon pure speculation. Such a verdict is not allowable. Krauss v. Trane

U.S., Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (verdict may not be based

upon “conjecture, surmise, guesswork, or speculation”).   Accordingly, the

trial court properly granted directed verdict in favor of Stone Valley and

Grandview and Burnham are not entitled to relief.

     Judgment affirmed.

     Judge Bowes joins in this memorandum.

     Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




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