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HomeMy WebLinkAbout2005-5863 Equity THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and: GENEVIEVE A. DIEHL, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT, 1.1. OPINION AND ORDER The plaintiffs, Thomas R. Benjey and Ann E. Benjey, have filed a complaint in equity against the defendants, Donald, Suzanne, Raymond and Genevieve Diehl. The defendants are the developers of the Netherby Development which adjoins the land of the plaintiffs. In the plaintiffs' complaint, they acknowledge that the defendants obtained approval of South Middleton Township with respect to subdivision and land development plans, including storm water management plans, for the Netherby Development. The plaintiffs' complaint alleges, further, that, beginning in 2004 and continuing in 2005, the plaintiffs have experienced excessive storm water on their land and have noticed the development of sinkholes. The complaint goes on to allege that, because of serious deficiencies in the development's storm water plan and implementation of those plans by the defendants, the Netherby Development significantly adds to storm water directed onto the land of the plaintiffs. The complaint seeks injunctive relief to correct the storm water plan and to, otherwise, take remedial measures to alleviate storm water flow onto the plaintiffs' property. Without NO. 05-5863 EQUITY alleging specific deficiencies in the storm water plans, the plaintiffs' complaint attaches a copy of a report, prepared by its experts, outlining the deficiencies in the storm water plans. The defendants first posit a preliminary objection under Pa.R.C.P. 1028(a)(7) alleging a failure to exercise or exhaust a statutory remedy. Among the injunctive remedies sought by the plaintiffs is a requirement to update and correct deficiencies in the storm water management plan filed with South Middleton Township. Under the Municipalities' Planning Code, however, the exclusive remedy for those aggrieved by a plan approval is appeal to the Court of Common Pleas, within thirty (30) days following the approval. 53 Pa.C.S.A. 1101-A, 1102-A. It appears from the face of the pleadings (and we have received no information to the contrary) that the thirty-day appeal period has long since expired. Thus, we agree with the defendants that any attempt to force a wholesale reconsideration of the storm water management plan is barred. We do not mean, however, to bar evidence of deficiencies in the storm water plan or to prevent the plaintiffs from demonstrating how the plan contributes to injury to their property. At common law, in order to proceed in equity in a case involving water runoff, the plaintiffs are required to plead in accordance with the "common enemy" rule. That rule "regards surface water as a common enemy which every landowner must fight to get rid of as best he may. Tom Clark Chevrolet Inc. v. Dept. of Environment Protection, 816 A.2d 1246, 1252 (Pa. Cmwlth. 2003), citing several cases. There is liability only where a landowner (a) artificially diverts the water from its natural channel, or (b) unreasonably or unnecessarily increases the quantity or changes the quality of water discharged from his property. Id at 1253. The plaintiffs' complaint, as currently framed, does not specifically set forth either of these common law theories. 2 NO. 05-5863 EQUITY At least one paragraph of the plaintiffs' complaint appears to invoke the provisions of the Storm Water Management Act, 32 P.S. Section 680.1-680.17. Specifically, paragraph 11 of the complaint alleges that the Netherby Development "significantly adds to the storm water directed onto the lands of the plaintiffs." The Storm Water Management Act provides, in pertinent part: 680.13. Duty of persons engaged in the development of land 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. The defendants contend that, under the Act, the only remedy available to a person injured by conduct, which violates the above provision, is to recover damages. Thus, according to the defendants, there exists a statutory remedy at law and we should dismiss any prayer for equitable relief. The position adopted by the defendants involves a misreading of Section 680.15 of the Act. 32 P. S. 680 .15( c), indeed, allows the recovery of damages. However, the recovery of such damages is allowed in addition to "any other remedy provided under this act..." Paragraph (b) of32 P.S. 680.15 provides, specifically, that suits may be brought in equity to "abate violation of this act." We are satisfied that a "violation" of the act would include a breach, by a landowner, 3 NO. 05-5863 EQUITY of the duties set forth in 680.13. For this reason, we will deny the preliminary obj ection which seeks to dismiss the plaintiffs' complaint in equity on the ground that there exists an adequate remedy at law. The plaintiffs' complaint alleges injury to their property by virtue of excessive storm water runoff and the development of sinkholes. It goes on to allege that these injuries result, inter alia, from "serious deficiencies" in the management of storm water in the Netherby Development. The plaintiffs, however, do not delineate, in their complaint, the "serious deficiencies" of which they complain. Instead, they attach an expert report. Thus configured, the plaintiffs' complaint cannot be answered in conformity to the Rules of Civil Procedure. We know of no authority whereby Pennsylvania's fact-pleading requirement can be satisfied by the attachment of an expert report. To the contrary, the Rules of Civil Procedure are clear that the complaint must state the "material facts on which a cause of action. .. is based," which facts must be stated in "a concise and summary form." Pa.R.C.P. 1019(a). In a related vein, the Rules also provide that a pleading "shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." Pa.R.C.P. 1022.1 Accordingly, we will sustain the preliminary objection of the defendants raising insufficient specificity in the complaint to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury caused by excessive storm water. 1 We understand that the Rules allow and, in fact, require the attachment of any writing upon which a claim is based. Pa.R.c.P. 1019(i). The claim, in this case, is not "based" on the expert report, but rather the report is simply evidence of the plaintiffs' claim 4 NO. 05-5863 EQUITY ORDER AND NOW, this 2nd day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Kevin A. Hess, 1. Marcus A. McKnight, III, Esquire F or the Plaintiffs Thomas E. Flower, Esquire F or the Defendants :r1m 5 THOMAS R. BENJEY and ANN E. BENJEY, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 05-5863 EQUITY DONALD E. DIEHL, SUZANNE DIEHL, RAYMOND E. DIEHL and: GENEVIEVE A. DIEHL, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS AND EBERT, 1.1. ORDER AND NOW, this 2nd day of February, 2007, the preliminary objection of the defendants raising insufficient specificity of the complaint is SUSTAINED to the extent that the complaint fails to sufficiently described the cause and extent of the alleged injury. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Kevin A. Hess, 1. Marcus A. McKnight, III, Esquire F or the Plaintiffs Thomas E. Flower, Esquire F or the Defendants :r1m