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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


BARRY L. DONALDSON AND                      :     IN THE SUPERIOR COURT OF
BRENDA L. DONALDSON, HUSBAND                :          PENNSYLVANIA
AND WIFE,                                   :
                                            :
                          Appellants        :
                                            :
                    v.                      :
                                            :
AMERIKOHL MINING, INC, AND SENEX            :
EXPLOSIVES, INC,                            :
                                            :
                          Appellees         :     No. 1892 WDA 2014

                Appeal from the Order Entered October 20, 2014
                In the Court of Common Pleas of Fayette County
                    Civil Division No(s).: 3617 of 2009, G.D.

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2015

        Appellants, Barry L. Donaldson and Brenda L. Donaldson, his wife,

appeal from the order entered in the Fayette County Court of Common Pleas

granting the motion of Appellees, Amerikohl Mining, Inc., and Senex

Explosives, Inc., for summary judgment. Appellants contend the trial court

erred in holding that blasting was not a continuous tort as a matter of law.

We vacate and remand for further proceedings.

        On December 31, 2009, Appellants filed a complaint and averred “at

all times relevant hereto and up to and including June 11, 2008, [Appellees]



*
    Former Justice specially assigned to the Superior Court.
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conducted or caused to be conducted blasting operations with explosives on

property adjacent to [Appellants’] property,” and that as a result of the

blasting, their property was damaged. Appellants’ Compl., 12/31/09, at ¶ 6-

7. On March 12, 2013, Appellees filed a motion in limine for a determination

as a matter of law that blasting is not a continuous tort.     On August 29,

2013, the trial court granted the motion and found as a matter of law that

blasting was not a continuous tort and that Appellants were precluded from

proof of and recovery of damages occurring prior to December 31, 2007.

Order, 8/29/13.1

      On October 20, 2014, the date the trial was scheduled, counsel for

Appellees made an oral motion for summary judgment. N.T., 10/20/14, at

2.   The trial court granted the motion for summary judgment.       Id. at 11.

The court stated: “[I]t is the finding of this Court that [Appellants] would be

unable to sustain their burden of proof necessary to recover in this matter in

light of this Court’s Order dated August 29, 2013, and therefore . . . the

Motion for Summary Judgment of [Appellees] is granted.”2 Order, 10/20/14.


1
  On September 17, 2013, the trial court entered an order restating its
holding in the August 29th order and further found that the “order involve[d]
a controlling question of law as to which there is a substantial ground for
difference of opinion and that an immediate appeal form this Order may
materially advance the ultimate termination of this matter.” Order, 9/17/13.
This Court denied Appellants’ petition for permission to appeal. Order,
11/19/13.
2
  Following the ruling, counsel for Appellants stated: “If I could just make a
request in the Order if you put that we were unable to sustain our burden of



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This timely appeal followed. Appellants filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. The trial court relied upon its August 29,

2013 opinion and order in lieu of a Pa.R.A.P. 1925(a) opinion. Statement in

Lieu of Opinion, 11/20/14.

      Appellants raise the following issue for our review: “Whether the [t]rial

[c]ourt committed prejudicial error by granting Appellees[’] Motion In

Limine[3] and Motion for Summary Judgment holding that blasting is not a

continuous tort and, as a result, Appellants were precluded from proof of

and recovery of damages occurring           prior   to   December    31, 2007?”

Appellants’ Brief at 5.   Appellants argue the trial court erred in finding that

blasting was not a continuous tort. Appellants contend Appellees’ “blasting

activities damaged [their] property, but such damage occurred in the course

of [Appellees] committing and continuing to commit damage-causing

blasting activities.” Appellants’ Brief at 10-11. Appellants claim that the full

extent of their damages could not be determined in light of the continuous

nature of the blasting activities. Id. at 12. They aver “the facts of this case

render it factually similar to continuous trespass or tort cases . . . .” Id.

      Our review is governed by the following principles:




proof in considering your previous Court Order dated August 29, 2013. That
way the issue will be very narrow.” N.T., 10/20/14, at 11.
3
  We note the appeal lies from the October 20th order granting Appellees’
motion for summary judgment.



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        Our scope of review of a trial court’s order granting or
        denying summary judgment is plenary, and our standard
        of review is clear: the trial court’s order will be reversed
        only where it is established that the court committed an
        error of law or abused its discretion.

        Summary judgment is appropriate only when the record
        clearly shows that there is no genuine issue of
        material fact and that the moving party is entitled to
        judgment as a matter of law. The reviewing court must
        view the record in the light most favorable to the
        nonmoving party and resolve all doubts as to the
        existence of a genuine issue of material fact against
        the moving party. Only when the facts are so clear that
        reasonable minds could not differ can a trial court
        properly enter summary judgment.

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012) (citation

omitted and emphases added).

     In Cassel-Hess, this Court explained the distinction between a

permanent trespass4 and a continuing trespass5 as follows:

        To determine whether the action concerns a “permanent
        change in the condition of the land”—or whether the action
        alleges separate, independent injuries—a court must
        consider a variety of factors, including: 1) the character
        of the structure or thing which produces the injury; 2)
        whether “the consequences of the [trespass/nuisance] will
        continue indefinitely”; and, 3) whether the “past and
        future damages” may be predictably ascertained. Sustrik

4
  We note the statute of limitations for “[a]n action for waste or trespass of
real property” is two years. 42 Pa.C.S. § 5524(4).
5
  “If the action is for damages resulting from one continuous wrong, the
right of action does not accrue and the statute of limitations does not begin
to run until there is a cessation of the overt act constituting the wrong.”
Cogley v. Duncan, 32 A.3d 1288, 1290 n.4 (Pa. Super. 2011), citing 31 Pa.
Law Encyclopedia 2d, Limitation of Actions § 51 (2003).




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         [v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46–47
         (Pa. 1964)6], and Graybill v. Providence Twp., [ ] 593
         A.2d 1314, 1316–1317 ([Pa. Cmwlth.] 1991) (en banc) . .
         ..
Id. at 87 (emphasis added).7


6
  Instantly, the trial court acknowledged there were no controlling cases in
Pennsylvania addressing the issue. Trial Ct. Op., 8/29/13. The court cited
Parker v. Vibra-Tech Eng’s., 22 Phila.Co.Reptr. 353 (Phila. C.C.P. 1991).
“We recognize that decisions of the Court of Common Pleas are not binding
precedent; however, they may be considered for their persuasive authority.”
Hirsch v. EPL Techs., Inc., 910 A.2d 84, 89 n.6 (Pa. Super. 2006) (citation
omitted). In Parker, the court opined: “Directing our attention to the case
at bar, there are no salient reasons why the damages to the plaintiffs’
properties could not have been adequately estimated for the purpose
of pursuing recovery in one cause of action.” Parker, 22 Phila.Co.Reptr. at
360 (emphasis added).
7
   Our research does not reveal any precedential Pennsylvania cases
addressing the issue of whether blasting was a continuous tort. Out of state
decisions can be received for their persuasive authority, but they are not
binding precedent. Branham v. Rohm and Haas Co., 19 A.3d 1094, 1107
(Pa. Super. 2011). In Moon v. Harco Drugs, Inc., 435 So.2d 218 (Ala.
1983), the court opined:

        This Court has held that a defendant’s repeated wrongs to
        the plaintiff can constitute a “continuous tort,” such as:
        (1) when an employer exposes its employee on a
        continuing basis to harmful substances and conditions; (2)
        when there is a “single sustained method pursued in
        executing one general scheme,” as in a blasting case; and
        (3) when a plaintiff landowner seeks damages for the
        contamination of a well or stream.

        The stream and well pollution cases, the blasting cases,
        and the employer-employee cases are all cases in which
        this Court has held that the defendants committed a
        continuous tort. The cases are analogous to a continuing
        trespass in that the repeated actions of the defendants
        combined to create a single cause of action in tort.

Id. at 220-21 (citations omitted and emphasis added).



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     In Graybill,8 the Commonwealth Court opined:

        [T]he term ‘permanent,’ as here used, ‘has reference not
        alone to the character of the structure or thing which
        produces the alleged injury, but also to the character of
        the injury produced by it. In other words, the structure or
        thing producing the injury may be as permanent and
        enduring as the hand of man can make it; yet if the
        resulting injury be temporary or intermittent, depending
        on future conditions which may or may not arise, the
        damages are continuing, and successive actions will lie for
        successive injuries.’

Graybill, 593 A.2d at 1317 (citation omitted), see also Restatement 2d

Torts, § 162, cmt.(e).

     The Graybill Court noted the difficulty in determining which doctrine

was applicable in a particular case and opined:

           In the annotation, When Statute of Limitation
        Commences to Run Against Damage from Overflow of Land
        Caused by Artificial Construction or Obstruction, 5 A.L.R.2d
        302 (1949), the annotator noted that courts have
        frequently stated that the subject under annotation is one
        “beset with extreme difficulties, on which the
        authorities are in greatest conflict and exhibit a good deal
        of confusion.” Id. at 309-10 (footnotes omitted). Courts
        have uniformly based their holdings, concerning when the
        statute began to run, on the distinction between
        permanent change (sometimes called “original injury” or
        damage resulting from structures “necessarily injurious”)
        versus continuing trespass (also referred to as
        “temporary”, “transient” or “recurring” injury, see id. at
        310). However, the cases reveal that determination of



8
 We note “[a]lthough decisions of the Commonwealth Court are not binding
on this Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted).



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        that question usually involves the close analysis of
        many factors.
Id. at 1316 (emphases added). In Piccolini v. Simon's Wrecking, 686

F.Supp. 1063 (M.D. Pa. 1988), the court opined: “The issue of whether an

injury is permanent is not easily resolved.” Id. at 1077.

     In the case sub judice, the determination of whether the blasting was

a continuous tort required the court to consider a variety of factors.   See

Cassel-Hess, 44 A.3d at 87; Graybill, 593 A.2d at 1316.        Instantly, the

trial court found that blasting was not a continuous tort as a matter of law,

without any analysis of the facts of the case. Therefore, we find the court

erred in granting summary judgment. See Cassel-Hess, 44 A.3d at 84-85.

Accordingly, we vacate the order granting summary judgment and remand

for further proceedings consistent with this memorandum.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2015




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