Kowalski, B. v. TOA PA V, L.P.

J-A23010-18

2019 PA Super 93

BRIAN KOWALSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TOA PA V, L.P., AND TRADITIONS OF : No. 80 WDA 2018
AMERICA AT LIBERTY HILLS :
(BEAVER) CONDOMINIUM :
ASSOCIATION :

Appeal from the Judgment entered January 2, 2018
In the Court of Common Pleas of Beaver County Civil Division at No(s):
11131-2013

BRIAN KOWALSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOA PA V, L.P.; TRADITIONS OF :
AMERICA AT LIBERTY HILLS :
(BEAVER) CONDOMINIUM : No. 125 WDA 2018
ASSOCIATION :
:
Appellants :

Appeal from the Judgment entered January 2, 2018
In the Court of Common Pleas of Beaver County Civil Division at No(s):
11131-2013

BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

OPINION BY BOWES, J.: FILED MARCH 27, 2019

Brian Kowalski appeals, and Traditions of America at Liberty Hills

(Beaver) Condominium Association (“Condo Association”) cross-appeals, from
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the judgment entered on January 2, 2018.1 We affirm in part, reverse in part,

and remand for further proceedings.

Mr. Kowalski owns property situated downhill from the property on

which the Liberty Hills Condominiums were constructed. The trial court set

forth the relevant facts as follows:

[Mr.] Kowalski acquired the property, that he claims is being
flooded, when he purchased it at a Sheriff’s sale on or about March
12, 2012. The previous owner, David Hoffman, purchased the
property, virtually undeveloped, in 1977. At first, Mr. Hoffman
lived in the dilapidated farmhouse, which he later remodeled.
While he lived there, Mr. Hoffman installed a piping system to
collect storm water through the valley on his property uphill to the
Kenny Farm, which is the area where the Liberty Hills
Condominiums are now located. From 1982 to 1983, over the
course of a year and a half, Mr. Hoffman buried a natural stream
on the property, using 12-inch to 24-inch underground pipes.
These pipes were used to carry water runoff from the uphill
properties, in the area of Kenny Farm, across his property, to the
Crow’s Run Creek. Mr. Hoffman started the drainage system up
at the ravine with a 12-inch pipe, and as it progressed down
through the valley, he increased to an 18-inch pipe and ended up
with a 24-inch pipe down at Crow’s Run Creek. He installed catch
basins along the way. He also removed all of the trees, and then
cleared the property to make a pond and build a new residence.
Over the course of the next several years, he constructed the
pond, gazebo and residence on the property, and he lived there
until he started to experience financial difficulties around 2005 or
2006. He vacated the property following a mortgage foreclosure
action in 2009.

In 2007, while Mr. Hoffman was still living there, New
Sewickley Township and Economy Borough approved TOA’s plan
to develop the Liberty Hills Condominium site on the Kenny Farm
located uphill from the Hoffman property. As part of the
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1 Additional defendant, TOA PA V, L.P.’s (“TOA”), did not file an appeal, but
submitted briefs for our consideration. When the arguments of TOA and the
Condo Association coincide, we will refer to these parties as “the defendants.”

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development, TOA constructed a detention pond at the Liberty Hill
Condominiums site to detain the water flow from Liberty Hills that
drained onto the Hoffman property to Crow’s Run Creek. Mr.
Hoffman raised concerns about the development to both TOA and
[New Sewickley] Township. The development is located partially
in New Sewickley Township and partially in Economy Borough.
Both municipalities approved the TOA storm water management
plan prior to construction.

Since the Liberty Hills Condominiums were built, the parties
have disagreed about the nature and extent of the water runoff
from the development, and how, or whether it has adversely
affected the Hoffman/Kowalski property. Prior to buying the
property, Mr. Kowalski lived only a few miles away; he drove by
it a couple of times per week, since 2006 or 2007. Mr. Kowalski
was aware of flooding issues on the property before he purchased
it. From 2009 to 2012, the property remained vacant. Mr.
Kowalski bought the property at the Sheriff’s sale in March 2012
and moved in shortly thereafter. Although the home needed some
work because it sat vacant for a few years, the home was
habitable.

Mr. Kowalski filed this lawsuit [against TOA and the Condo
Association (collectively “the defendants”)] in July 2013, claiming
that water runoff from Liberty Hills Condominiums overwhelms the
storm water pipe and causes flooding on his property. [He
asserted claims sounding in breach of contract, negligence,
trespass, nuisance, and a violation of the Storm Water
Management Act. The Condo Association filed a cross-claim for
indemnity against TOA.] TOA and the [Condo] Association claim
that any flooding on the Kowalski property is caused by Mr.
Hoffman’s burying of the natural stream, using a pipe that was
too small to handle the natural storm water runoff. They also
allege that the remedy Mr. Kowalski seeks to fix the flooding on
his property was necessary before any construction at Liberty
Hills, and as such, he has suffered no harm caused by their
actions.

[The parties filed cross-motions for summary judgment.
The trial court granted partial summary judgment in favor of TOA
and the Condo Association on the breach of contract and
negligence claims, reasoning that those claims were barred by the
relevant statute of limitations. The case proceeded on the

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remaining claims for trespass, nuisance, and a violation of the
Storm Water Management Act.]

At [a non-jury] trial, Mr. Kowalski offered testimony from a
professional engineer, Scott Shoup, who has served as the
engineer for several municipalities, including Economy Borough.
As part of his duties as the Economy Borough engineer, Mr. Shoup
approved the storm water plan for the Liberty Hills Condominium
Development. He testified that, in his professional opinion, the
water runoff after construction was greater than anticipated in the
original plan submitted to [Economy] Borough. In his opinion, to
remedy the excess water will require the installation of 36[-]inch
and 42[-]inch pipes from the top of the hill, across the Kowalski
property, to the Crow’s Run Creek. He believed the storm water
plan for the property should be designed to handle a 100-year
storm, as recommended by the DEP. Significantly, on cross
examination, Mr. Shoup acknowledged that the same remedy was
needed to manage storm water runoff on the Kowalski property
before any construction at Liberty Hills.

Mr. Kowalski [sought] damages in excess of $300,000, the
cost to install the storm water management system recommended
by Mr. Shoup. Following presentation of Mr. Kowalski’s case in
chief, both Defendants made oral motions for a non[]suit on Mr.
Kowalski’s claims for trespass, nuisance, and a violation of the
Storm Water Management Act. The [trial c]ourt granted the
motions. The [trial c]ourt entered a written order confirming the
entry of a non[]suit on the docket, on November 16, 2017. . . .

....

Mr. Kowalski filed [timely] post-trial motions and requested
the [trial c]ourt to reverse its decision on summary judgment
concerning the breach of contract and negligence claims. Mr.
Kowalski also requested the [trial c]ourt to set aside the non[]suit
on the nuisance, trespass, and Storm Water Management Act
claims.

Trial Court Opinion, 12/12/11, at 2-5 (citations to record and footnotes

omitted).

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On December 12, 2017, the trial court entered an opinion and order

granting in part and denying in part Mr. Kowalski’s post-trial motions. The

trial court affirmed (1) the entry of summary judgment on the breach of

contract and negligence claims; and (2) the entry of nonsuit on the nuisance

and Storm Water Management Act counts. However, it determined that the

entry of nonsuit on the trespass claim was in error, reversed that ruling, and

entered judgment in favor of Mr. Kowalski on his trespass claim against the

Condo Association. The trial court awarded Mr. Kowalski nominal damages of

only $1.00. He thereafter filed a timely notice of appeal, and the Condo

Association filed a timely notice of cross-appeal.2

At appeal No. 80 WDA 2018, Mr. Kowalski raises the following issues for

our review:

1. Whether [Mr. Kowalski’s] negligence and breach of contract
claims are barred by the statute of limitations.

2. Did the trial court err in failing to enter judgment in favor of
[Mr. Kowalski] on the breach of contract claim[?]

3. Did the trial court err in granting a non[]suit to [TOA and the
Condo Association] on [Mr. Kowalski’s] trespass and nuisance
claims[?]

4. Did the trial court err in finding that there was not a causal
nexus between the trespass and the loss/damage to [Mr.
Kowalski?]

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2 This Court sua sponte consolidated the appeals.

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5. Did the trial court err in entering judgment in favor of [Mr.
Kowalski] and against . . . [the Condo Association] for only
nominal damages[?]

Kowalski’s brief at 6 (unnecessary capitalization omitted).3

At appeal No. 125 WDA 2018, the Condo Association raises the following

issues for our review:

1. Did the trial court err as a matter of law in granting Mr.
Kowalski’s motion for post-trial relief with respect to his
trespass claim against [the Condo Association] because it
misapplied the law of Pennsylvania regarding discharge of
water from an uphill landowner’s property, because the
evidence did not support a finding that the [Condo] Association
was responsible for causing the complained of discharge of
storm water from its property on to Mr. Kowalski’s property,
and because there was no evidence that the [Condo]
Association owned the storm water management system at
Liberty Hills[?]

2. Did the trial court err as a matter of law in granting Mr.
Kowalski’s motion for post-trial relief with respect to his

____________________________________________

3Initially, we note that, although Mr. Kowalski purports to raise five issues on
appeal, the argument section of his brief is limited to two sections. See
Pa.R.A.P. 2119(a) (providing that “the argument shall be divided into as many
parts as there are questions to be argued”). Although we decline to find
waiver on this basis, see id., Mr. Kowalski’s failure to set forth a separate
discussion for each of his issues hampers our ability to discern which
arguments pertain to which issues.

Further, Mr. Kowalski’s third issue purports to challenge the trial court’s entry
of nonsuit on his trespass and nuisance claim. However, Mr. Kowalski does
not discuss the nuisance claim in his brief. Therefore, his challenge to the
entry of nonsuit on the nuisance claim is waived. Additionally, upon post-trial
motions, the trial court reversed the entry nonsuit on the trespass claim,
rendering this aspect of his third issue confusing. Nevertheless, in his brief,
Mr. Kowalski clarifies his position that the trial court correctly reversed the
entry of nonsuit, but erred in imposing liability for trespass only upon the
Condo Association and not upon TOA.

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trespass claim against the [Condo] Association because [Mr.]
Kowalski did not have standing to assert that claim?

3. Did the trial court err as a matter of law in granting Mr.
Kowalski’s motion for post-trial relief with respect to his
trespass claim against the [Condo] Association because that
claim was barred by the statute of limitations?

4. Did the trial court err as a matter of law in not conducting a
trial on the [Condo] Association’s cross-claim for indemnity
against TOA . . . [where the] evidence showed that TOA
designed and built the Liberty Hills storm water drainage
system, and there was no evidence that discharge of water on
to the [sic] Mr. Kowalski’s property was caused by failure to
maintain the drainage system[?]

Condo Association’s brief at 3 (unnecessary capitalization omitted).

Breach of Contract and Negligence

As Mr. Kowalski’s first two claims concern the trial court’s entry of

summary judgment in favor of TOA and the Condo Association on the breach

of contract and negligence claims, we will address them together. In

reviewing the grant or denial of a motion for summary judgment,

[w]e view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. 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.

Abrams v. Pneumo Abex Corp., 981 A.2d 198, 203 (Pa. 2009).

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Mr. Kowalski contends that the trial court erred in concluding that his

breach of contract and negligence claims were barred by the statute of

limitations. He asserts that the claims “would have originated when TOA

improperly designed and constructed the Liberty Hills Development or when

TOA and the [Condo] Associat[ion] failed to manage or rectify the excessive

flow of water caused by the construction of Liberty Hills.” Kowalski’s brief at

27-28. According to Mr. Kowalski, he purchased the property on March 12,

2012, and filed suit sixteen months later on July 23, 2013. He claims that this

sixteen-month period is within the two-year statute of limitations applicable

to negligence actions, 42 Pa.C.S. § 5523, and within the four-year statute of

limitations applicable to contract actions, 42 Pa.C.S. § 5525(a)(8).

Mr. Kowalski further argues that the breach of contract and negligence

claims are continuing in nature because the damages resulting from the

negligent conduct and the serial breach of contract occur over and over again.

He explains that “the storm water management facilities are routinely and

regularly discharging water from the pond, out the discharge pipe, and over

[his] property causing damages.” Kowalski’s brief at 28. He specifically claims

that “it is a separate tort and a separate breach of contract every time the

storm water from the TOA [Planned Residential Development (“PRD”)]

overwhelms the Kowalski pipe system and floods the Kowalski property.” Id.

at 26-27.

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Mr. Kowalski compares the continuing nature of the damages to his

property to those at issue in Miller v. Stroud Twp., 804 A.2d 749

(Pa.Cmwlth. 2002), wherein the Commonwealth Court ruled that the

municipality’s construction of sewer lines near plaintiff’s property, coupled

with rainfall, resulted in a continuing trespass of water and fecal matter, which

caused damage to plaintiff’s property. Mr. Kowalski argues that, like the

continuing trespass occurring in Miller v. Stroud Twp., a new cause of action

for breach of contract and negligence accrues upon every flooding event on

his property.

Mr. Kowalski additionally argues that the trial court should have entered

summary judgment in his favor on the breach of contract claim. He points to

the Developer’s Agreement between TOA, New Sewickley Township, and the

New Sewickley Township Municipal Authority, which includes a provision

obligating TOA to “perform the work and install the improvements upon the

property in accordance with . . . [t]he conditions referenced in the letter

regarding Final Approval . . . from the Township Engineer dated 01/15/07 and

incorporated herein by reference.” Developer’s Agreement at 4. The

Township Engineer’s Letter contains the following provision:

[Engineer] was provided with a copy of a letter dated 01/15/07
that [TOA] sent to the Township indicating that the developer will
be responsible to address various storm water issues associated
with Mr. Hoffman’s downstream property/facilities should these
facilities be negatively impacted by storm water flow from the
development.

Engineer’s Letter, 1/15/07 at 3.

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In the January 15, 2007 letter sent by TOA to New Sewickley Township,

it indicated as follows: “If the storm water overwhelms the carrying capacity

of the downstream pipe culvert located on the David P. Hoffman property,

then [TOA] will replace the existing pipe (or install parallel pipe) to handle the

flow.” TOA Letter, 1/15/07.

Mr. Kowalski contends that the trial court erred in holding that TOA is

not liable on the breach of contract count because Mr. Hoffman did not enforce

his rights under the Developer’s Agreement. Mr. Kowalski maintains that Mr.

Hoffman reported the breaches to TOA, but his complaints were ignored. Mr.

Kowalski asserts that, once he became the property owner, he promptly

reported the breaches, and thereafter filed suit when TOA refused to comply

with the promises made in the Developer’s Agreement.

Mr. Kowalski also argues that the above-cited provisions establish that

Mr. Hoffman was a third-party beneficiary to the Developer’s Agreement, and

that Mr. Kowalski, as Mr. Hoffman’s successor, is entitled to rely on and

enforce the terms of the Agreement. Mr. Kowalski contends that TOA’s failure

to replace the existing pipe or install a parallel pipe after every flooding event

constitutes a separate and actionable breach of the Developer’s Agreement.

Mr. Kowalski asserts that he has suffered damages as a result of the breaches

because the carrying capacity of the piping system on his property is clearly

overwhelmed. Finally, he argues that, “because the New Sewickley Township

Subdivision and Land Development Ordinance requires communication and

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coordination with downstream property owners, the pledge made by TOA was

made in order to mollify [Mr.] Hoffman and to induce the Township to grant

the PRD subdivision application.” Kowalski’s brief at 34-35. On this basis, Mr.

Kowalski argues that TOA should not be permitted to enjoy the benefits of

PRD approval without complying with the conditions imposed by New

Sewickley Township in order to obtain PRD approval.

The trial court explained its rationale for entry of summary judgment in

favor of TOA and the Condo Association on the breach of contract and

negligence claims, as follows:

The alleged breach was that Defendants failed to “replace
the existing pipe or install a parallel pipe to handle the flow.” Any
breach would have occurred in 2007 when the development was
constructed, not in 2012 when Mr. Kowalski purchased the home.
The lawsuit filed in 2013 was well beyond the four-year statute of
limitations for this claim. . . .

Likewise, with respect to the negligence claim, there is no
question that the statute of limitations has run. Pennsylvania law
typically requires a party to file a claim of negligence within two
years of the date of the occurrence. 42 Pa.C.S. § 5524(2). . . .
Again, the [p]laintiff, Mr. Kowalski, stepped into the shoes of the
prior owner, Mr. Hoffman, when he purchased the property; he
did not get a new statute of limitations regarding the negligence
claim.

The record establishes that Mr. Hoffman knew about the
flooding in 2007. In his Brief in Opposition to the Motion for
Summary Judgment, Mr. Kowalski cited deposition testimony from
Mr. Hoffman, where Mr. Hoffman admitted that he noticed the
additional flooding right away, as soon as construction on the
development started. . . . Mr. Kowalski further noted that this
testimony was uncontradicted. . . . The undisputed facts, as
presented by Mr. Kowalski, indicate that the downstream property
owner discovered the harm, allegedly caused by the Defendant’s

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actions, in 2007. Mr. Kowalski filed this lawsuit in 2013, which is
well beyond the two-year statute of limitations.

The court’s decision to grant summary judgment, on both
the negligence and the breach of contract claims, is supported by
the facts of record. No genuine issue of material fact existed
regarding: 1) the date of the alleged contract; 2) the date the
alleged negligence [and breach were] discovered; or 3) the date
the lawsuit was filed. Since the record was clear on these dates,
and Mr. Kowalski failed to file his lawsuit within the time allowed
by law, summary judgment [in favor of TOA and the Condo
Association] was appropriate on the negligence and breach of
contract claims.

Trial Court Opinion, 12/12/17, at 6-7.

In a contract case, a cause of action accrues when “there is an existing

right to sue forthwith on the breach of contract.” Leedom v. Spano, 647

A.2d 221, 226 (Pa.Super. 1994); see also Thorpe v. Schoenbrun, 195 A.2d

870, 872 (Pa.Super. 1963) (holding that, as a general rule, a statute of

limitations begins to run when a plaintiff’s cause of action arises or accrues).

Viewing the record in the light most favorable to Mr. Kowalski, as the non-

moving party, we agree with the trial court’s determination that Mr. Kowalski’s

breach of contract claim is barred by the statute of limitations. That claim

was based on Mr. Kowalski’s assertion that TOA breached the terms of the

Developer’s Agreement when it failed to replace the existing pipes installed by

Mr. Hoffman, or install parallel pipes to handle the increased flow of surface

water runoff from Liberty Hills. See Amended Complaint, 8/2/15, at 26. Here,

the evidence of record reflects that, although Mr. Hoffman noticed flooding in

2007 and complained to TOA that his pipes were overwhelmed, TOA did not

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replace the existing pipes, or install parallel pipes, as it had promised to do

pursuant to the Developer’s Agreement. Thus, the contractual breach alleged

by Mr. Kowalski accrued in 2007, when TOA first refused to replace the

existing pipes or install parallel pipes upon its notification that Mr. Hoffman’s

pipes were overwhelmed. See Leedom, supra. Accordingly, we affirm the

trial court’s determination that Mr. Kowalski’s breach of contract claim expired

in 2011, and is therefore barred by the four-year statute of limitations. See

42 Pa.C.S. § 5525.4

We also agree with the trial court’s determination that Mr. Kowalski’s

negligence claim is barred by the statute of limitations. His cause of action

for negligence was premised on his assertions that defendants breached their

duty of care by failing to design, construct, and maintain a storm water

management system that prevented unreasonable water runoff from the

Liberty Hills development. That duty was breached in 2007, when Mr.

____________________________________________

4 We are mindful that, when ruling on the cross-motions for summary
judgment, the trial court indicated that, in response to Mr. Hoffman’s initial
complaints, TOA attempted to remediate the flow of excess surface water, but
eventually stopped. See Trial Court Opinion, 9/13/17, at 7; see also N.T.
Trial, 11/14/17, at 32 (wherein Mr. Hoffman testified that on one occasion,
TOA sent ten men to clean up debris from the excess water flow). If Mr.
Kowaski could establish that the defendants attempted to remediate the
excess surface water flow until sometime after July 2009, then his contract
claim might still be viable. However, the trial court did not specify when TOA
stopped its remediation efforts, and Mr. Kowalski concedes that TOA breached
the Developer’s Agreement in 2007, when it failed to install larger pipes or a
parallel piping system. See Kowalski’s brief at 35.

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Hoffman first noticed flooding due to excess surface water flowing onto his

property from the Liberty Hills construction. See Thorpe, supra.

Accordingly, we agree with the trial court’s determination that any negligence

claim became time-barred in 2009, when the two-year statute of limitations

for negligence claims expired. See 42 Pa.C.S. § 5524(7).5 Thus, Mr.

Kowalski’s first two claims warrant no relief.

Trespass

We next address the Condo Association’s first claim of error that the trial

court erred by reversing the entry of nonsuit on the trespass claim upon post-

trial motions on the basis of its finding that Mr. Kowalski established a

trespass. See Brown v. Philadelphia College of Osteopathic Medicine,

760 A.2d 863 (Pa.Super. 2000) (appeal does not lie from order denying post-

trial motions but rather upon judgment entered following disposition of post-

trial motions). Our standard of review in non-jury cases is limited to:

a determination of whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in the application of law. Findings of the trial
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5 Mr. Kowalski argues that, similar to the continuing trespass in Miller v.
Stroud Twp., supra, we should regard his claims for breach of contract and
negligence as continuing in nature, such that a new statute of limitations
begins to run with each flooding event. Notably, Mr. Kowalski points to no
legal authority in support of his position, see Pa.R.A.P. 2119(a), and we are
aware of none. Presently, no Pennsylvania court has extended the legal
theory supporting a continuing trespass to claims for negligence and breach
of contract.

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judge in a non-jury case must be given the same weight and effect
on appeal as a verdict of a jury and will not be disturbed on appeal
absent error of law or abuse of discretion. When this Court
reviews the findings of the trial judge, the evidence is viewed in
the light most favorable to the victorious party below and all
evidence and proper inferences favorable to that party must be
taken as true and all unfavorable inferences rejected.

Gutteridge v. J3 Energy Grp., Inc., 165 A.3d 908, 914 (Pa.Super. 2017)

(citation omitted). Additionally, this Court has stated that we will respect a

trial court’s findings with regard to the credibility and weight of the evidence

“unless the appellant can show that the court’s determination was manifestly

erroneous, arbitrary and capricious or flagrantly contrary to the evidence.”

Id. (citation omitted).

In Pennsylvania, specialized rules have been developed as to when an

upper landowner may be liable for the effects of surface water running off its

property. “The law regards surface water as a common enemy which every

proprietor must fight to get rid of as be he may.” Laform v. Bethlehem

Twp., 499 A.2d 1373, 1378 (Pa.Super. 1985). Under the so-called common-

enemy rule,

Our Supreme Court has held that, because water is descendible
by nature, the owner of a dominant or superior heritage has an
easement in the servient or inferior tenement for the discharge of
all waters which by nature rise in or flow or fall upon the superior.
Therefore, an owner of higher land is under no liability for
damages to an owner of lower land caused by water which
naturally flows from the one level to the other.

Notwithstanding the above, the right of the upper landowner to
discharge water on the lower lands of his neighbor is, in general,
a right of flowage only, in the natural ways and natural quantities.
Thus, if the upper landowner alters the natural conditions so as to

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change the course of the water, or concentrates it at a particular
point, or by artificial means . . . increases its volume, he becomes
liable for any injury caused thereby. In other words, it is only
where the water is diverted from its natural channel or where it is
unreasonably or unnecessarily changed in quantity or quality has
the lower owner received a legal injury.

Youst v. Keck's Food Serv., Inc., 94 A.3d 1057, 1073 (Pa.Super. 2014)

(internal citations, quotation marks, brackets and footnote omitted).

Where surface waters falling on an upper land have been diverted or

changed in a manner that causes legal injury to the lower landowner, the court

must determine whether the action concerns a permanent trespass through a

change in the condition of the lower land, or whether the action alleges

separate, independent injuries to the lower land in the nature of a continuing

trespass.6 See Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46-

47 (Pa. 1964); Cassel-Hess v. Hoffer, 44 A.3d 80, 86 (Pa.Super. 2012). In

making this determination, 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 will continue indefinitely;

and (3) whether the past and future damages may be predictably ascertained.

Cassel-Hess, supra at 87.

For a trespass that effects a permanent change in the condition of the

land, the statute of limitations begins to run at the time of the original

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6 The statute of limitations for an action sounding in trespass, whether
continuing or permanent, is two years. See 42 Pa.C.S. § 5524(4).

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trespass, or at least from the date it should reasonably have been discovered.

Sustrik, supra at 47 (citing Restatement of Torts § 162); Cassel-Hess,

supra at 86. The possessor of the land may then institute a single action to

recover past and future damages for a permanent trespass. Sustrik, supra

at 47; Cassel-Hess, supra at 86. Since a permanent trespass “once and for

all produce[s] a permanent injury to the land,” only the possessor of the land

at the time of the trespass has a cause of action for the trespass. Cassel-

Hess, supra at 86 (quoting Restatement (2d) Torts § 162 cmt. e); see also

id. (quoting Restatement (2d) Torts § 162 (“A trespass on land subjects the

trespasser to liability for physical harm to the possessor of the land at the

time of the trespass, or to the land or to his things.”)).

Conversely, where it is impossible to know exactly how many incidents

of trespass will occur in the future, or the severity of the damage that may be

caused, such that the full amount of damages cannot be calculated in a single

action, the trespass is continuing.7 Cassel-Hess, supra at 87 (citing

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7 The Restatement (Second) of Torts defines a continuing trespass as follows:

The actor’s failure to remove from land in the possession of
another a structure, chattel, or other thing which he has tortiously
erected or placed on the land constitutes a continuing trespass for
the entire time during which the thing is wrongfully on the land
and . . . confers on the possessor of the land an option to maintain
a succession of actions based on the theory of continuing trespass
or to treat the continuance of the thing on the land as an
aggravation of the original trespass.

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Graybill v. Providence Twp., 593 A.2d 1314, 1317-18 (Pa.Cmwlth. 1991)

(en banc) (holding that a continuing trespass will be found where the

defendant’s artificial use of his own land does not directly and immediately

cause any injury to the property of another, but, coupled with the effects of

rainfall results in intermittent and unpredictable consequential damage to

another’s property)).8 The possessor may maintain a succession of actions

based on the continuing trespass or treat the continuance of the thing on the

land as an aggravation of the original trespass. See Cassel-Hess, supra at

87 (describing the long understood principle of “‘continuing trespass’ . . . as

conduct that allows an injured party to bring actions for separate, independent

injuries”); see also Miller v. Stroud Twp., supra at 754 (relying on

Restatement (2d) of Torts, § 161, cmt. e, to conclude that appellants could

maintain a succession of actions because the Township failed to remove water

and fecal matter resulting from the construction of a sanitary sewer line near

appellants’ property, or treat the continued flow of water, fecal matter, fungi,

mold and bacteria onto their land as an aggravation of the original trespass).

Liability for a continuing trespass is also created by the continued

presence on the land of a thing “if the actor, having acquired his legal interest

____________________________________________

Restatement (2d) of Torts, § 161, cmt. b; see also Restatement of Torts
§ 161 cmt. b (substantially the same).

8 Although decisions by the Commonwealth Court are not binding on this
Court, they may be persuasive. See Estate of Brown, 30 A.3d 1200, 1204
n.2 (Pa.Super. 2011).

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J-A23010-18

in the thing with knowledge of such tortious conduct or having thereafter

learned of it, fails to remove the thing.” Restatement (2d) of Torts § 161(2);

see also Restatement (2d) of Torts § 158 (providing that liability in trespass

is created where, inter alia, one intentionally fails to remove a thing from the

land in violation of a duty).

The defendants initially contend that the trial court erred in granting Mr.

Kowalski post–trial relief based on its determination that a trespass is

occurring through excess surface water runoff from the Liberty Hills onto Mr.

Kowalski’s property through an artificial means. The defendants claim that

there was no evidence that storm water runoff from the Liberty Hills property

was diverted from its natural channel through an artificial means.

We disagree. An upper landowner is liable for the effects of surface

water running off his property in two distinct circumstances: (1) where the

landowner has diverted the water from its natural channel by artificial means;

or (2) where the landowner has unreasonably or unnecessarily increased the

quantity or changed the quality of water discharged upon his neighbor. See

Laform, supra at 1378. While the owners of higher lands have the right to

have the water flowing from their lands discharged in a natural watercourse

upon the lower lands, and may increase the flow through the natural and

reasonable use of the lands, a large condominium development in a rural area

cannot be considered a “natural” use of the land. See Miller v. C.P. Ctrs.,

Inc., 483 A.2d 912, 915 (Pa.Super. 1984) (holding that the development of

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an apartment complex was an artificial use); see also Westbury Realty

Corp. v. Lancaster Shopping Ctr, Inc., 152 A2d. 669, 672 (Pa. 1959)

(holding that the development of shopping center was an artificial use). Under

such circumstances, the developers must make the proper accommodation so

as not to place the burden of the increased flow upon the servient tenement.

Miller v. C.P. Ctrs., Inc., supra at 915; Westbury, supra at 672.

In the instant case, the Liberty Hills development constitutes an artificial

use of the uphill property which was previously Kenny Farm. The development

covers twenty-eight acres with impermeable buildings and pavement,

including 191 units, roads, sidewalks, patios, roofs, and hard surfaces, all of

which prevent natural seepage and increase the flow of surface waters from

the development. N.T. Trial, 11/14/17, at 133, 146-48. Accordingly, the

evidence of record supports the trial court’s determination that TOA altered

the flow of the rainwater from the uphill property by developing Liberty Hills

and channeling the increased surface water into a storm water management

system consisting of a drainage detention pond. See Trial Court Opinion,

12/12/17, at 3; Trial Court Opinion, 9/13/17, at 2. Thus, contrary to the

defendants’ arguments otherwise, the water from the former Kenny Farm was

clearly “diverted from its natural channel by artificial means” upon the

development and construction of Liberty Hills. See Laform, supra.

We also disagree with the defendants’ argument that, although Mr.

Shoup testified that the flow of surface water increased as a result of the

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Liberty Hills construction, his testimony did not establish that the development

“unreasonably or unnecessarily increased the quantity or changed the quality

of the water discharged” onto Mr. Kowalski’s property. Condo Association’s

brief at 13; TOA’s brief at 8-9.

The defendants misapprehend the alternate bases for liability in trespass

for surface water runoff. As noted previously, an upper landowner is liable for

the effects of surface water running off his property when either (1) the

landowner has diverted the water from its natural channel by artificial means;

or (2) the landowner has unreasonably or unnecessarily increased the

quantity or changed the quality of water discharged upon his neighbor. See

Laform, supra at 1378 (holding that since “this is not a case of artificial

diversion of surface waters . . . we need only consider whether the City caused

an unreasonable or unnecessary increase in the water flowing through its

drainage swale”); see also Graybill, supra at 316 (finding error where “the

trial court applied only the second standard set forth in Laform (unreasonable

or unnecessary change in quality or quantity), and overlooked the first

(diversion from the natural channel by artificial means)”). The trial court

herein properly determined that TOA diverted the water from its natural

channel by artificial means. This determination does not involve consideration

of the reasonableness of the change in quantity or location of water flowing

onto the lower land. See Bretz v. Cent. Bucks Sch. Dist., 86 A3d 306, 316

(Pa.Cmwlth. 2014). Rather, to establish liability under this theory, a plaintiff

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need only show that a landowner collected and/or concentrated surface water

from its natural channel through an artificial medium and that the water was

discharged onto the plaintiff’s property in an increased volume or force,

however, slight. Id. As Mr. Kowalski satisfied this burden, he was not

required to also establish the alternate basis for liability that TOA

unreasonably or unnecessarily increased the quantity or changed the quality

of water discharged. LaForm, supra at 1378.

The defendants next contend that, to the extent that this matter

involves a trespass, it is a permanent trespass rather than a continuing

trespass. The trial court rejected this argument, and determined that the

excess surface water flowing from Liberty Hills onto Mr. Kowalski’s property is

a continuing trespass. See Trial Court Opinion, 9/13/17, at 11. As the trial

court explained,

At the time of the development, it was contemplated that water
would flow from Liberty Hills through the Hoffman pipe.
Significantly, this was done with Hoffman’s permission. Thus,
although the development of Liberty Hills was permanent and
constituted a permanent change on the Defendant’s property, the
construction of Liberty Hills did not constitute a change or an
injury to [Mr.] Kowalski’s property. Rather, any change that
occurred, if at all, did not occur until the existing Hoffman pipe
became overwhelmed with water flow/runoff from the
development, that forced additional water onto Kowalski’s
property. This was not constant or permanent, but varied with
the occurrence of storms. . . . Consequently, we find the alleged
trespass to be a continuing one[.]

Id. at 11-12.

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J-A23010-18

We agree with the trial court’s determination. The record does not

evidence a permanent change or permanent injury to Mr. Kowalski’s property

as a result of the increased surface water flowing from the Liberty Hills

development. Cf. Cassel-Hess, supra (holding that the creation of a

mosquito-infested lake on the plaintiff’s property constituted a permanent

trespass); Beach Str. Corp. v. A.P. Constr. Co., 658 A.2d 379 (Pa.Super.

1995) (holding that the dumping of mounds of soil on plaintiff’s land

constituted a permanent trespass). Rather, since the inception of construction

of the Liberty Hills complex, temporary flooding of Mr. Kowalski’s property has

occurred intermittently and unpredictably after heavy rains. See Trial Court

Opinion, 9/13/17, at 12 (finding that the flooding on Mr. Kowalski’s property

caused by water runoff from Liberty Hills “was not constant or permanent, but

varied with the occurrence of storms”). Thus, the trial court properly reversed

the entry of nonsuit on the trespass claim based on its determination that this

matter involves a continuing trespass to Mr. Kowalski’s property. See id.9

Accordingly, the Condo Association’s first issue warrants no relief.

____________________________________________

9 Because we have determined that the trespass is continuing in nature, we
find no merit to the Condo Association’s second issue, wherein it claims that
Mr. Kowalski lacks standing to sue for trespass. As section 162 of the
Restatement (Second) of Torts provides:

A trespass on land subjects the trespasser to liability for physical
harm to the possessor of the land at the time of the trespass, or
to the land or to his things, or to members of his household or to
their things, caused by any act done, activity carried on, or

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Liability for the Continuing Trespass

We next address which parties should be liable for the continuing

trespass caused by the excess water runoff from the Liberty Hills

development. In the second part of its first issue, the Condo Association

claims that the trial court erred in imposing liability upon it for the continuing

trespass. Mr. Kowalski, on the other hand, asserts in what we perceive to be

his third and fourth issues that the trial court correctly reversed the nonsuit

and entered judgment against the Condo Association, but erroneously failed

to impose liability on TOA, which he claims is also liable for the continuing

trespass.

____________________________________________

condition created by the trespasser, irrespective of whether his
conduct is such as would subject him to liability were he not a
trespasser.

Restatement (2d) of Torts § 162 (emphasis added). Further, section 157
defines a “possessor of the land” as, inter alia, a person who “in occupancy of
land with intent to control it.” Restatement (2d) of Torts § 157(a). Hence,
for standing purposes in the case at bar, the determinative factor is when Mr.
Kowalski began his “occupancy of [the] land with intent to control it.” The
trial court determined that he purchased the property in March 2012, and
moved in shortly thereafter. Trial Court Opinion, 12/12/17, at 3. Thus, the
trial court correctly determined that, as possessor of the land, Mr. Kowalski
had standing in July 2013 to file the instant lawsuit alleging trespass. See
Trial Court Opinion, 9/13/17, at 12.

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J-A23010-18

The Condo Association argues that, as the successor to TOA, it cannot

be responsible for TOA’s actions in designing and building the Liberty Hills

storm water management system. Pointing to the Restatement (Second) of

Torts § 158(c),10 it argues that it did not perform any act that caused storm

water to enter Mr. Kowalski’s property. It further argues that the two

Pennsylvania appellate decisions on which the trial court relied, Rau v.

Wilden Acres, Inc., 103 A.2d 422 (Pa. 1954),11 and Marlowe v. Lehigh

Township, 441 A.2d 497 (Pa.Cmwlth. 1982),12 “both involved defendants

____________________________________________

10 Section 158 provides:

One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest
of the other, if he intentionally

(a) enters land in the possession of the other, or causes a thing
or a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a duty
to remove.

Restatement (2d) of Torts § 158.

11 In Rau, the defendant’s farmland was higher than the adjoining farmland
of plaintiff. The Court upheld an injunction imposed against the defendant
after the upper property was developed in a manner that collected and
concentrated surface water, causing increased amounts to flow onto plaintiff’s
property through artificial channels.

12 In Marlowe, the Township was found liable for a continuing trespass due
to excess surface water flowing onto plaintiffs’ property that was concentrated
through artificial channels constructed by the Township.

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J-A23010-18

who had actively altered the drainage [[about] which the plaintiffs

complained.” Condo Association’s brief at 15. Additionally, the Condo

Association contends that, assuming its status as successor to TOA is sufficient

to permit the imposition of liability, the trial court “erred when it determined

that the Condo Association owned the Liberty Hills common areas generally

and the detention pond specifically.” Id. at 15. While it concedes that the

Declaration of Condominium for Liberty Hills states at Section 6.1(h) that “the

[Condo] Association is perpetually responsible for maintenance of the Storm

Water Management Plan,” it claims that the Declaration is silent as to when

such responsibility took effect. Condo Association’s brief at 15. Finally, the

Condo Association asserts that “there was no evidence that failure to maintain

the detention pond, as distinguished from its design or construction, caused

the alleged excessive discharge of stormwater [sic] on to Mr. Kowalski’s

property.” Id. at 16.

The trial court determined that TOA designed and built Liberty Hills, and

that the Condo Association owns the common areas of the development,

including the detention pond that drains onto to Mr. Kowalski’s property. See

Trial Court Opinion, 12/12/17, at 26-27; Trial Court Opinion, 9/13/17, at 1.

In so ruling, the trial court looked to the Declaration of Condominium for

Liberty Hills, dated July 3, 2008, which “clearly assign[ed] responsibility for

the Storm Water Management System, as a General Common Element, to the

[Condo] Association.” Trial Court Opinion, 9/13/17, at 13. The Declaration

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J-A23010-18

also provided that the Condo Association “is perpetually responsible for

maintenance of the Storm Water Management System.” Id. The trial court

further explained its decision to impose liability on the Condo Association as

follows:

[T]his [is] a claim for continuing trespass since the pipes were
built on the Liberty Hills site, and not the Kowalski property, and
the harm occurs each time there is a heavy rain. Since a new
trespass occurs each time there is flooding, the trespass action
lies against the owner of the property causing the trespass at the
time of the trespass. Here, the [Condo] Association owns the
common areas of Liberty Hills, including the detention pond, which
is collecting and diverting the water causing the flooding. Thus,
the cause of action lies against the [Condo] Association.

Trial Court Opinion, 12/12/17, at 26-27.

We agree with the trial court’s determination. The evidence presented

by Mr. Kowalski established that, since 2008, the Condo Association has

owned the common areas of Liberty Hills, including the storm water

management system and the detention pond that overflows onto Mr.

Kowalski’s property. See Trial Court Opinion, 9/13/17, at 13. The fact that

the Condo Association did not design or build the storm water management

system is of no consequence because the Condo Association’s status as owner

of the storm water management system since 2008 renders it liable for the

flow of excess surface water onto Mr. Kowalski’s property. Pursuant to the

Restatement (Second) of Torts § 161:

A trespass may be committed by the continued presence on the
land of a structure, chattel, or other thing which the actor’s
predecessor in legal interest therein has tortiously placed there, if
the actor, having acquired his legal interest in the thing with

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knowledge of such tortious conduct or having thereafter learned
of it, fails to remove the thing

Restatement (2d) of Torts § 161(2).

Here, the evidence established that the Condo Association was aware of

the flooding on Mr. Kowalski’s property due to the overflowing pond, but

“acknowledge[d] that it did nothing to rectify the problems allegedly arising

from the Liberty Hills storm water management system.” See Trial Court

Opinion, 9/13/17, at 13. Thus, the Condo Association, as the present owner

of the storm water management system, is liable for the continuing trespass

since it was aware of the excess water runoff from the system onto Mr.

Kowalski’s property, and failed to abate it. See Restatement (2d) of Torts §

161(2). We therefore affirm the trial court’s entry of judgment against the

Condo Association on the trespass claim.

We next address TOA’s liability for the continuing trespass. Mr. Kowalski

points to the testimony of his expert, Mr. Shoup, that TOA’s storm water plan

failed to account for two acres of impervious surface area in the development,

resulting in an underestimated rate of velocity and flow of surface water due

to its miscalculations. Kowalski’s brief at 38-39. Additionally, “1.74 acres of

the two acres flowed directly into the stormwater [sic] management pond

. . . which was not constructed per the specifications of the TOA storm water

management plan.” Id. at 39-40. Mr. Kowalski maintains that “[t]he pond

was designed to capture water, hold three feet of the water in the pond, and

then release the three fee[t] of water into the ground through infiltration.”

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J-A23010-18

Id. at 40. However, he claims that the pond was improperly constructed,

such that “instead of draining the bottom three feet of water into the ground

. . . the pond was sitting full of water even during dry periods and was . . .

only draining down in the soil at a very low rate or a very slow rate, if at all.”

Id. (internal quotation marks omitted). According to Mr. Kowalski, because

the pond water did not drain, it increased the rate and volume of the water

discharged from the pond and flowing directly on his property. He claims that,

“every time it rains . . . the first drops of water into the pond are immediately

sent to the Kowalski tract, flooding his tract.” Id. at 41. Kowalski asserts

that the trial court incorrectly evaluated the storm water management plan,

and failed to properly analyze the engineering evidence.

TOA contends that the evidence established that defendants did not

concentrate the storm water runoff onto Mr. Kowalski’s property, nor did they

substantially increase the rate of discharge onto his property. Rather, TOA

argues, the storm water management system discharged the storm water into

a pre-existing stream on Liberty Hills’ property, which transverses Mr.

Kowalski’s property downstream.

As noted previously, the trial court determined entry of nonsuit on the

trespass claim was error because Mr. Kowalski established that excess water

runoff from Liberty Hills constitutes a continuing trespass. In reversing

nonsuit on the trespass claim, it further determined that the Condo

Association, as the owner of the common areas of Liberty Hills and the storm

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J-A23010-18

water management system, is liable for the trespass. However, in its opinion,

the trial court provided no explanation as to why it imposed no liability for the

trespass against TOA.

Here, TOA designed and constructed Liberty Hills, and its storm water

management system that causes excess surface water to flow intermittently

onto the Hoffman/Kowalski property since 2007. However, ownership of the

common areas of Liberty Hills, including the storm water management

system, was transferred to the Condo Association in 2008. Thus, it is unclear

as to whether TOA has the ability to alter that system. Nevertheless, pursuant

to the Restatement (Second) of Torts § 161(1), “[a] trespass may be

committed by the continued presence on the land of a structure, chattel, or

other thing which the actor has tortiously placed there, whether or not the

actor has the ability to remove it.” The comment to § 161 further provides;

Effect of actor’s inability to remove the thing. Since the
conduct of the actor in placing the thing on the land is tortious,
his responsibility for its presence on the land continues . . .
although through subsequent conduct on his part it has now
become impossible or impracticable for him to terminate the
intrusion on the other’s land. In this respect, the liability of one
who has tortiously placed a thing on another’s land is more
stringent than the liability of his transferee . . .

Restatement (2d) of Torts § 161(1), cmt. c. The comment to § 161 provides

the following illustrations:

1. A, without B’s consent or other privilege to do so, erects on his
own land a dam which backs up water on B’s land. This is a
trespass, which continues so long as A maintains his dam in
such a way as to flood B’s land.

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J-A23010-18

....

2. The same facts as in Illustration 1, except that after building
the dam, A transfers to C his interest in the land on which he
had erected the dam. Although A cannot now demolish or
reduce the level of the dam or lower the flood gate without
committing a trespass against C, he is nevertheless under
liability to B for the continuance of the flooding of B's land.

Restatement (2d) of Torts § 161, cmt.

Based on these provisions, § 161 clearly provides for the imposition of

liability upon TOA, as the entity which developed Liberty Hills and constructed

the storm water management system in a manner which caused excess

surface water to flow onto Mr. Kowalski’s property. See Lake v. Hankin

Group, 79 A.3d 748, 758-59 (Pa.Cmwlth. 2013) (analyzing § 161 and

concluding that, because evidence may establish that the alleged trespass of

the former owner and developer of property purportedly continues to cause

violations of the Clean Streams Law, they could be found liable under that act

“even though they no longer have an interest in the property from which the

storm water flows”).13 However, we believe that such liability is subject to

the applicable statute of limitations.

____________________________________________

13 In Lake, the Commonwealth Court reversed the entry of summary
judgment in favor of all defendants on the trespass claim, including the former
owner and developer, on the basis that the trial court erred in concluding that
the trespass was permanent rather than continuing in nature. See Lake, 79
A.3d at 755. Notably, the former owner and developer had completed
construction in 2003, and ownership of the property had been transferred at
that time. The Lakes did not file their action against the defendants until
2009. Unfortunately, the Court provided no discussion or analysis as to why
the claims against the former owner and developer were not time-barred.

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J-A23010-18

Statute of Limitations

In its third issue, the Condo Association claims that Mr. Kowalski’s

trespass claim is barred by the statute of limitations. Had we determined that

a permanent trespass occurred, the statute of limitations would have begun

to run at the time of the original trespass, or at least from the date it should

reasonably been discovered. See Cassel-Hess, supra at 87. Presumably,

this would have occurred in 2007, when Mr. Hoffman first noticed flooding

from the Liberty Hills construction. See Sustrik, supra. However, our

conclusion that excess water from the Liberty Hills development constitutes a

continuing trespass dictates a different result. As noted previously, a

continuing trespass allows an injured party to bring actions for separate,

independent injuries. See Miller v. Stroud Twp., supra at 754; see also

Lake, supra at 758. Thus, as Mr. Kowalski is entitled to bring an action in

continuing trespass every time excess water from the Liberty Hills

development floods his property, the trial court correctly determined that his

present claim is not time-barred. See Trial Court Opinion, 9/13/17, at 12.

However, we conclude that Mr. Kowalski’s continuing trespass claim was

timely only with respect to the Condo Association. Although we are unable to

find any Pennsylvania law on this point, a majority of courts considering the

issue have ruled that, in the context of a continuing trespass, a right of action

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exists only for the damages suffered within the statutory period immediately

preceding suit. As explained by the Supreme Court of Nebraska:

a claim for damages caused by a continuing tort can be maintained
for injuries caused by conduct occurring within the statutory
limitations period. Seen in this light, the “continuing tort doctrine”
is not a separate doctrine, or an exception to the statute of
limitations, as much as it is a straightforward application of the
statute of limitations: It simply allows claims to the extent that
they accrue within the limitations period. A “continuing tort”
ought not to be a rationale by which the statute of limitations
policy can be avoided. But when there are continuing or repeated
wrongs that are capable of being terminated, a claim accrues
every day the wrong continues or each time it is repeated, the
result being that the plaintiff is only barred from recovering those
damages that were ascertainable prior to the statutory period
preceding the lawsuit.

Alston v. Hormel Foods Corp., 730 N.W.2d 376, 383-84 (Neb. 2007).

Accord United States v. Hess, 194 F.3d 1164, 1177 (10th Cir. 1999) (“In

trespass cases, where the statute of limitations has expired with respect to

the original trespass, but the trespass is continuing, we and other courts have

calculated the limitation period back from the time the complaint was filed.”);

Nieman v. NLO, Inc., 108 F.3d 1546, 1559-60 (6th Cir. 1997) (affirming

concept that recovery for continuing trespass damages includes only those

damages incurred within the statute of limitations period prior to filing the

lawsuit); Tucker v. Southern Wood Piedmont Co., 28 F.3d 1089, 1092

(11th Cir. 1994) (same); California v. Kinder Morgan Energy Partners,

L.P., 2016 U.S. Dist. LEXIS 40551, at *9 (S.D. Cal. Mar. 24, 2016) (holding

California law limits available damages in continuing trespass and nuisance

cases involving real property to the limitations period immediately preceding

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J-A23010-18

the commencement of an action to recover those damages); Woldson v.

Woodhead, 149 P.3d 361, 362 (Wash. 2006) (applying a three-year statute

of limitations, and holding that continuing trespass damages are available

from the beginning of the trespass, but no more than three years before the

filing of the lawsuit); Breiggar Props. v. H.E. Davis & Sons, 52 P.3d 1133,

1135-36 (Utah 2002) (holding that in the case of a continuing trespass, the

person injured may bring successive actions for damages until the trespass is

abated, but recovery is limited to actual injury suffered within the statutory

limitations period prior to commencement of each action); Davis v. Laclede

Gas Co., 603 S.W.2d 554, 556 (Mo. 1980) (holding that if the wrong may be

said to continue from day to day, and to create a fresh injury from day to day,

and the wrong is capable of being terminated, a right of action exists for the

damages suffered within the statutory period immediately preceding suit);

McCoy v. Gustafson, 103 Cal. Rptr. 3d 37, 58 (2009) (noting that California’s

appellate courts have held that when a trespass is continuing, the injured

party is entitled to bring a series of successive actions, each seeking damages

for new injuries occurring within the period of limitation immediately preceding

the filing of the action).

As Mr. Kowalski commenced this action in July 2013, his recovery is

limited to actual injury suffered during the two years prior to the filing of this

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J-A23010-18

action (i.e., after July 2011).14 Since the Condo Association has owned the

common areas of Liberty Hills since July 2008, any liability on the part of TOA

would have become time-barred in July 2010, at the latest. As such, TOA

cannot be responsible for any of the injuries or damage sustained by Mr.

Kowalski during the time period encompassed by the present action for

trespass (i.e., between July 2011 and July 2013). Accordingly, we affirm the

trial court’s determination that TOA is not liable for the specific continuing

trespass claim encompassed by the present action.

Nominal Damages

In his fifth issue, Mr. Kowalski contends that the trial court erred in

awarding nominal damages of $1.00 on the judgment against the Condo

Association on the trespass claim. He points to the trial court’s conclusion

that causation was not established because Mr. Shoup testified that the same

pipe size, 36-42 inches, was necessary to convey excess surface water over

Mr. Kowalski’s property both before and after the Liberty Hills development.

Mr. Kowalski argues that the trial court’s determination disregards the

____________________________________________

14 In the context of this case, the damage restriction appears to have no
material effect, since the particular flooding damages alleged by Mr. Kowalski
within the limitations period are similar to the separate damages caused by
prior flooding events occurring before July 2011. Moreover, he seeks the same
remedy for the flooding encompassed by the applicable limitations period;
namely, the installation of larger pipes to accommodate the excess surface
water flowing from Liberty Hills.

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J-A23010-18

malfunctioning pond which deposits excessive amounts of water on his

property at an increased rate, causing flooding. He asserts that he is left with

no option but to install the larger pipes and incur costs in excess of $300,000.

According to Mr. Kowalski, there “is no dispute that the surface water from

TOA flows through the stormwater [sic] management facilities and is

deposited on [his property] at an increased rate,” requiring reversal of the

nominal damages award on its trespass claim against the Condo Association.

Id. at 44.

We agree. To establish liability, a plaintiff need only show that a

landowner collected and/or concentrated surface water from its natural

channel through an artificial medium and that the water was discharged onto

the plaintiff’s property in an increased volume or force, however, slight. Rau,

supra at 423-24; Laform, supra at 1378; Marlowe, supra at 501. Here,

the trial court found as fact that, as a result of the development of Liberty

Hills, surface water was collected and diverted to a detention pond that

overflowed, resulting in excess surface water flowing onto Mr. Kowalski’s

property, thereby increasing the total volume and causing flooding. See Trial

Court Opinion, 12/12/17, at 3. These findings simply cannot be reconciled

with the trial court’s conclusion that Mr. Kowalski has not established an

entitlement to compensatory damages. Under the common enemy rule, Mr.

Hoffman was only required to accept the surface waters flowing onto his

property as a result of rain falling onto the Kenny Farm in its natural state.

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As the developer of Kenny Farm, TOA was required to establish a storm water

management system:

Any landowner and any person engaged in the alteration or
development of land which may affect storm water runoff
characteristics shall implement such measures consistent with the
provisions of the applicable watershed storm water plan as are
reasonably necessary to prevent injury to health, safety or other
property. Such measures shall include such actions as are
required:

(1) to assure that the maximum rate of storm water runoff
is no greater after development than prior to development
activities; or

(2) to manage the quantity, velocity and direction of
resulting storm water runoff in a manner which otherwise
adequately protects health and property from possible injury.

Pennsylvania’s Storm Water Management Act, § 13.

As the lower landowner, Mr. Hoffman was under no obligation to

construct a storm water management system for the uphill property. Thus,

the fact that, in 1982, he opted to submerge the stream running through his

property from Kenny Farm is of no consequence. Nor is the fact that, in so

doing, he used pipes that would not, under present engineering standards,

accommodate a 100-year storm event. See Laform, supra (addressing

engineering standards applicable in 1974 recommending that storm water

disposal facilities be designed to accommodate a ten-year storm).15

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15 Indeed, Mr. Hoffman testified that the stream on his property was an
intermittent, seasonal stream and that, after submerging the stream in 1982-
1983, the pipes were overwhelmed by surface water from the Kenny Farm on

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In ruling that Mr. Hoffman should have installed thirty-six to forty-two

inch pipes in 1982, some twenty-five years before TOA began construction of

Liberty Hills, the trial court unfairly and improperly shifted the burden of

implementing a storm water management system from TOA to Mr. Hoffman

and his successor, Mr. Kowalski. As the developer of the Liberty Hills

condominium complex, TOA alone was responsible for designing and

constructing a storm water management system to protect the Hoffman

property from injury or damage. See Westbury, supra at 672 (holding that

developers of higher lands, when making an artificial use of the land such as

the construction of a shopping center, “must make the proper accommodation

so as to not place the burden of the increased flow upon the servient

tenement”). Clearly, TOA failed to do so. We therefore conclude that the trial

court erred in determining that Mr. Kowalski was entitled to nominal damages

only. Accordingly, we vacate that award and remand for a new trial as to

compensatory damages.

Cross Claim for Indemnity Against TOA

We must next address the Condo Association’s fourth issue, addressing

its cross claim for indemnity against TOA. The trial court conceded that its

entry of judgment against the Condo Association on the trespass claim did not

____________________________________________

only two occasions prior to the development of Liberty Hills in 2007. N.T.
Trial, 11/14/17, at 27-28.

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negate its cross claim against TOA. However, it reasoned that “since this case

is only about nominal damages, we do not believe a new trial is warranted to

determine the cross claim between the Defendants.” Trial Court Opinion,

12/12/17, at 27. In light of our determination that compensatory damages

are warranted, this reasoning must be reevaluated.

The Condo Association contends that, because its cross claim for

indemnity against TOA is still viable, the trial court erred by not ordering a

new trial on that claim since the entry of judgment against it on the continuing

trespass claim will be entitled to res judicata or collateral estoppel effect in

any future lawsuits brought by Mr. Kowalski or his successors in interest. The

Condo Association further asserts that, had a new trial been granted, its

witnesses would have testified that the Condo Association had not accepted

ownership of any portion of the Liberty Hill storm water management system,

and that representatives of TOA instructed the Condo Association to take no

action with respect to the detention pond. Condo Association’s brief at 16.

Given our determination that remand is necessary for the entry of an

award of compensatory damages against the Condo Association, we agree

that a new trial is warranted on the Condo Association’s cross claim for

indemnity against TOA.

We therefore affirm the entry of judgment on the trespass claim against

the Condo Association, reverse the award of nominal damages, remand for a

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new trial as to damages and on the Condo Association’s cross claim against

TOA.

Judgment affirmed in part and reversed in part, case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/27/2019

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