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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL NOTO & LISA NOTO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
DANIEL J. MILLETT, BRETT A. MILLETT,
DANIEL MILLETT, III, JOHN TODD
MILLETT, MARI MILLETT DOHERTY,
STACIE MILLETT RECHLICZ, AND
TIMOTHY G. MILLETT, INDIV. /D/B/A
MILLETT REAL ESTATE, A
PENNSYLVANIA GENERAL PARTNERSHIP
No. 362 MDA 2016
Appeal from the Order Entered February 16, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2015-04180
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
Michael Noto and Lisa Noto appeal from the February 16, 2016 order
sustaining preliminary objections in the nature of a demurrer and dismissing
their amended complaint. We affirm.
Appellants instituted this action against Daniel J. Millett, Brett A.
Millett, Daniel Millett, III, John Todd Millett, Mari Millett Doherty, Stacie Millet
Rechlicz, and Timothy G. Millett, individually, and doing business as Millett
Real Estate (collectively “Millet”). The amended complaint sought
declaratory and equitable relief, and also asserted claims for negligence and
* Retired Senior Judge assigned to the Superior Court.
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nuisance. The facts are as follows. Appellants own a parcel of land abutting
property owned by Millett in South Abington Township, Lackawanna County.
Millett sought to improve its land by constructing a personal care facility on
its property. In order to manage stormwater runoff, Millett included a large
stormwater detention basin and infiltration system as part of the planned
property development. This system relied on an overflow spillway to direct
stormwater from the premises in case of extreme weather events. In such
an event, the spillway conducted overflow onto Appellants’ property.
In order to comply with the strictures of the Pennsylvania’s Storm
Water Management Act, 32 P.S. § 680.1, et seq., Millett submitted its
stormwater runoff management plan for approval to the Lackawanna County
Conservation District acting on behalf of the Department of Environmental
Protection. Following a series of revisions to the plan, Millett obtained the
necessary permits to install the stormwater basin and spillway.
After Millett completed installation of its stormwater basin and
spillway, Appellants filed a complaint against Millett alleging violations of the
Storm Water Management Act, seeking declaratory and equitable relief, and
raising claims for negligence and nuisance. Appellants focused upon the
threat of harm to their property, upon which they planned to build
townhouses, caused by runoff originating from the spillway. Millett filed
preliminary objections, which the court sustained in part following oral
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argument. The court directed Appellants to file an amended complaint, and
they complied.
Appellants’ amended complaint raised counts for declaratory and
equitable relief, negligence, and nuisance. However, they abandoned their
claims arising under the Storm Water Management Act. Appellants also
added averments regarding historical storm data in Lackawanna County, and
alleged miscalculations as to the size and capacity of Millett’s basin in
documents attached to Millett’s stormwater management permit application.
In essence, Appellants’ amended complaint asserted that it was merely a
matter of time before an extreme weather event would overwhelm the
basin’s carrying capacity, cause harmful erosion from concentrated
stormwater flowing onto their property, and reduce the value of townhouses
they planned to develop thereon.
Millett filed preliminary objections in the nature of a demurrer, to
which Appellants responded with their own preliminary objections. During
oral argument, Millett asserted that Appellants had not proven that harm to
their property was imminent since they did not allege that the basin, as
constructed, was of a smaller volume than estimated due to the supposed
miscalculations.
The court issued an order sustaining Millett’s preliminary objections in
the nature of a demurrer finding that Appellants’ claims were not ripe. The
court noted that miscalculations in the design of the basin “could be a
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concern if shown,” but emphasized that “there are no known design
problems with the stormwater system as built.” Trial Court Opinion, 4/6/16,
at 4. Furthermore, it found that allegations that the runoff would diminish
the value of townhomes Appellants aspired to build was “remote,
hypothetical, and speculative at this time.” Id. Finally, the court observed
that Appellants’ reliance on a “100 year storm event” as proof that harm to
their property was likely did not establish that such damages were real,
present, or imminent. Id. Thus, it concluded that Appellants’ claims were
not ripe, and granted Millett’s preliminary objections in the nature of a
demurrer.
Appellants filed a timely notice of appeal. The court did not direct
Appellants to file a Rule 1925(b) statement of errors complained of on
appeal, and authored an opinion in support of its order.
Appellants raise two issues for our consideration:
1. Whether the lower court erred in dismissing the Amended
Complaint, which asserted claims of negligence and nuisance
and sought declaratory and injunctive relief, by relying upon
purported unverified facts outside the Amended Complaint
and by sustaining [Millett’s] preliminary objection in the
nature of a demurrer?
2. Whether the lower court erred in its application of the
doctrine of ripeness in sustaining [Millett’s] preliminary
objections in the nature of a demurrer?
Appellants’ brief at 4.
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Initially, we note the standard for our review of a trial court’s ruling on
preliminary objections in the nature of a demurrer:
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. The question presented by the
demurrer is whether, on the facts averred, the law says with
certainty that no recovery is possible. Thus, our scope of review
is plenary and our standard of review mirrors that of the trial
court. Accepting all material averments as true, we must
determine whether the complaint adequately states a claim for
relief under any theory of law.
Grose v. Procter & Gamble Paper Products, 866 A.2d 437, 440
(Pa.Super. 2005) (citation and internal quotations omitted). The court must
also accept as true all reasonable inferences deducible from the averments.
Juszczyszyn v. Taiwo, 113 A.3d 853, 856 (Pa.Super. 2015).
Nevertheless, “the court may consider only such matters as arise out of the
complaint itself; it cannot supply a fact missing in the complaint.” Id. If
there is any doubt as to whether a preliminary objection in the nature of a
demurrer should be sustained, that doubt should be resolved in favor of
overruling the preliminary objection. Richmond v. McHale, 35 A.3d 779,
783 (Pa.Super. 2012).
Appellants first challenge the trial court’s purported reliance on
unverified facts presented to the court by Millett. Specifically, Appellants
assail the court’s determination that alleged miscalculations in the design of
the stormwater basin, which would render it much smaller than
contemplated in the original plans, were corrected when the system was
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built. Appellants emphasize the following averments from their amended
complaint:
40. Significantly, a careful review of the design calculations
submitted by [Millett] concerning the detention basin discloses
that, whether intentionally or negligently, [Millett] erroneously
referred to a one foot (1’) change in elevation as a four foot (4’)
elevation change. This error results in [Millett’s] further basin
sizing calculations using a nine foot (9’) basin depth when the
actual depth is only six (6’) feet. As a result of this
miscalculation, [Millett] overstated the volume of the detention
basin by approximately twenty-five percent (25%).
41. [Millett] design drawings further show that the
emergency spillway and the R-4 rock used as riprap are at a
lower elevation (approximately 1 ½ feet) than the spillway
elevation as designed, thereby reducing the actual capacity of
the basin.
42. As a result of the foregoing negligent or intentional
errors and calculations, the actual capacity of the basin is
approximately 56% less than the basin sizing calculations
submitted by [Millett].
43. In fact, based upon the errors and miscalculations on
the designs submitted by [Millett], the capacity of the detention
basin is barely large enough to hold the volume from a “10-year”
storm event rather than the expected volume of a “100-year”
storm.1
Amended Complaint, 10/26/15, at ¶¶ 40-43. Appellants argue that the
court erred in basing its conclusion that the threatened discharge of
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1
Appellants characterize a “100-year storm event” as a high level of rainfall
with a one-percent chance of occurring in any given year, and therefore on
this same line of reasoning, a “10-year storm event” is a lesser level of
rainfall with a ten-percent chance of occurring in any given year, and so
forth. See Amended Complaint, 10/26/15, at ¶ 31.
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stormwater was too remote a possibility to be legally cognizable because
that conclusion rested on facts that appeared outside the record.
To establish a common law cause of action in negligence, a plaintiff
must demonstrate that the defendant owed a duty of care to the plaintiff,
the defendant breached that duty, the breach resulted in injury to the
plaintiff, and the plaintiff suffered an actual loss or damage. Lux v. Gerald
E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super. 2005). An action
for negligence lies only if injury or damage is present. Jeloszewski v.
Sloan, 100 A.2d 480, 482 (Pa. 1953).
Additionally, an injunction to restrain a threatened nuisance will not be
granted unless the facts show that the proposed use will be a nuisance per
se or that a nuisance must necessarily result. City of Erie v. Gulf Oil
Corp., 150 A.2d 351, 353 (Pa. 1959). Where there is no nuisance per se,
an injunction will not be granted to restrain a threatened nuisance unless it
appears that the nuisance is practically certain and not merely probable.
Ranck v. Bonal Enterprises, Inc., 359 A.2d 748, 752 (Pa. 1976) (citation
omitted). Finally, declaratory relief is not a matter of right, but rather is a
matter left to the sound judicial discretion of the court. Consolidated Coal
Co. v. White, 875 A.2d 318, 325 (Pa.Super. 2005).
Instantly, Appellants averred that the stormwater basin was built and
that, according to the plans, it did not have the represented capacity due to
miscalculations contained therein. See Amended Complaint, 10/26/15, ¶¶
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18, 40-43. Since Appellants are entitled to the benefit of all reasonable
inferences deducible from the allegations in their amended complaint, we
find it reasonable to infer that Millett built its basin according to the plans
submitted during the permitting process. Juszczyszyn, supra.
In sustaining the demurrer, however, the trial court found that
Appellants failed to plead that the basin was built as designed. In arriving at
that conclusion, the trial court credited Millett’s representation in its brief
that the basin, as constructed, did not include the supposed design defects.
Since we find it was reasonable to infer that Millett’s basin was built per the
plans, Appellants should have been given the benefit of that inference, and
Millett’s statement to the contrary should not have been considered in
determining the sufficiency of the complaint. The court misapplied the
proper standard of review of preliminary objections in the nature of a
demurrer. Although the court erred in this regard, it will not afford
Appellant relief based on our disposition of their second issue. Knowles v.
Levan, 15 A.3d 504 (Pa.Super. 2011) (finding an error by the trial court
harmless where it did not affect the result).
Appellants next assert that the court erred in determining this matter
was not ripe for review. They posit that the factual averments included in
the amended complaint established that it was only a matter of time before
Millett’s stormwater basin overflowed causing damage to their property.
Appellants maintain that the historical storm data and significant design
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deficiencies pled in the amended complaint, as discussed above, compelled
the conclusion that injury to their property, including erosion and diminution
to the value of townhouses they plan to build on their property, was
imminent. Thus, they contend, this matter was ripe for the court’s review.
The doctrine of ripeness implicates the timing of the court’s
intervention in litigation. Philadelphia Entertainment and Development
Partners, L.P. v. City of Philadelphia, 937 A.2d 385, 392 (Pa. 2007). The
ripeness doctrine is invoked to prevent the courts, by avoiding premature
adjudication, from entangling themselves in abstract disagreements. Id.
Courts are not to answer academic questions, render advisory opinions, or
make decisions based on assertions as to hypothetical events that might
occur in the future. Id.
With regard to the quantity of past rainfall in Lackawanna County,
Appellants asserted the following:
32. For instance, within Lackawanna County during the last
twenty (20) years, two (2) storms have had rainfall that
exceeded the expected “500-year storm” level. Similarly, within
Lackawanna County during the past twenty (20) years, three (3)
storms have occurred with an amount of rainfall at the expected
“20 to 25-year storm” levels and five (5) storms have occurred
with an amount of rainfall between the amount expected for “50-
year” and “100-year” storms.
Amended Complaint, 10/26/15, at ¶ 32. Appellants maintain that the basin
was only large enough to hold the volume of a “10-year storm” event.
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Here, Appellants levied no allegations sounding in trespass, or of
actual harm to their property. Indeed, the record reveals that no harm has
yet befallen Appellants’ property and that no runoff has occurred. Thus, any
relief due must be premised upon their contentions that the threatened
harm arising from Millett’s stormwater system was practically certain to
occur, and not merely probable. Ranck, supra.2
Appellants’ allegations of past storm data and miscalculations as to the
design of the basin, even if true, do not support the conclusion that harm is
practically certain to occur or is more than merely probable. Appellants
concede that the basin, as designed, is “large enough to hold the volume
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2
Appellants cite to three Commonwealth Court cases for the uncontroversial
claim that remedies are available to property owners where harm is
threatened against their property. See Appellants’ brief at 17. The
proposition arises first in dicta in Klein v. Shadyside Health, Educ. and
Research Corp., 643 A.2d 1120 (Pa.Cmwlth. 1994). Two other
Commonwealth Court cases, Chase v. Eldred Borough, 902 A.2d 992
(Pa.Cmwlth. 2006), and Bretz v. Central Bucks School Dist., 86 A.3d 306
(Pa.Cmwlth. 2014), cite to Klein for this proposition, however, these two
cases involve allegations of actual, and ongoing, property damage.
Significantly, the Klein court observed “a land use can obtain a proper
zoning approval under a zoning ordinance which is valid, and yet, by reason
of the manner of its operation or its particular nature, still constitute a
nuisance subject to an equitable remedy.” Klein, 62 A.2d at 558 (emphasis
added). The implication arising in Klein, and expressed in Chase and
Bretz, is that some things constitute a nuisance by their character alone,
and others become so as a result of their use. Although we are not bound
by decisions of the Commonwealth Court, its decisions may provide
persuasive authority. Petow v. Warehime, 996 A.2d 1083, 1088 n.1
(Pa.Super. 2010). Since Appellants challenge the manner in which the basin
will operate in the future, it is clear they have not, and cannot, allege actual
harm. Thus, Chase and Bretz are inapplicable.
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from a ‘10-year storm’ event.” Amended Complaint, 10/26/15, at ¶ 43.
Hence, their claims rely on the occurrence of a level of rainfall that has less
than a ten percent chance of occurring in any given year.
The unlikely nature of this claim renders this dispute premature.
Although Appellants assert that ten storms with a sufficient level of rainfall
to overtop the basin have taken place in the last twenty years in
Lackawanna County, the likelihood of such a storm occurring is less than five
percent each year. Such a low probability does not support the claim that
harm to Appellants’ property was practically certain. Furthermore, that this
potential danger may diminish the value of townhomes Appellants may build
sometime in the future is of no moment, as such diminution in value is
equally as speculative. Philadelphia Entertainment, supra. Since
Appellants’ averments do not establish the requisite likelihood of injury to
their property, this matter is not ripe for review, and the court did not err in
sustaining Millett’s preliminary objections in the nature of a demurrer.3
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3
Obviously, at some point in the future if runoff causes harm to Appellants’
property, a suit could be filed against Millett at that time. See Rau v.
Wilden Acres, Inc., 103 A.2d 422 (Pa. 1954).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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