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Home My WebLink About99-3702 EquityJOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this Zr/to?ay of March, 2000, upon consideration of Plaintiffs' complaint, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Defendant is enjoined, within four months from the date of this decree, from continuing to use its property in a manner which results in the frequent intrusion of golf balls upon Plaintiffs' property from the sixth tee; 2. Plaintiffs are awarded $9,300.00 in damages from Defendant for repair of their home, plus costs of suit. 3. All other relief requested by Plaintiffs is denied. THIS DECREE NISI shall automatically become a Final Decree unless a party files a post-trial motion within the ten-day time period provided for in Pennsylvania Rule of Civil Procedure 227.1. Ron Turo, Esq. 32 South Bedford Street Carlisle, PA 17013 Attorney for Plaintiffs BY THE COURT, Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant irc JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs Vo FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and DECREE NISI OLER, J., March 27, 2000. This equity case arises out of an alleged private nuisance in the form of the intrusion of golf balls from Defendant's property upon Plaintiffs' property. Relief requested is an injunction, compensation for physical damage to Plaintiffs' property, and attorney's fees. A nonjury trial was held on Wednesday, March 22, 2000. For the reasons stated in this opinion, injunctive and other relief will be granted to Plaintiff. FINDINGS OF FACT The present action was commenced by the filing of a complaint on June 18, 1999. 2. Plaintiffs are John E. Anderson, Jr., and individuals residing at 13 Cardinal Drive, South Cumberland County, Pennsylvania. Cheryl Anderson, adult Middleton Township, 3. Defendant is Froelich and Company, Inc., a corporation having offices at 1 Mayapple Drive, South Middleton Township, Cumberland County, Pennsylvania. 4. Plaintiffs purchased the home in which they reside on January 30, 1988. 5. Defendant owns premises adjacent to Plaintiffs' property, upon which a golf course was built in 1990. 6. The said golf course is essentially a public course, operating year-round and presently serving over 40,000 golfers per year. 7. Plaintiffs' property lies along the western boundary of Defendant's property. The "tee boxes" for the sixth hole of Defendant's golf course lie 150 yards south of Plaintiffs' residence. A straightaway fairway extends northward past Plaintiff's property to the green. The distance from the tee to the green is 550 yards. 8. Many hundreds of errant golf balls, driven from the sixth tee, have landed on Plaintiffs' property, denting the aluminum siding on Plaintiffs' home and depriving Plaintiffs of the comfortable use of their yard. 9. The construction of Plaintiffs' home is such that all siding above a given area of damage must be removed to access the damaged area, and then replaced with new siding. 10. Restoration of Plaintiffs' home to its previous condition will cost $9,300.00. 2 11. Plaintiffs' attempts to have Defendant remedy the situation have been unsuccessful, although Defendant has undertaken in good faith some measures which have failed to protect Plaintiffs' property. 12. Defendant's owner is of the view that a properly installed fence in the area of the tee boxes for the sixth hole will rectify the problem. 13. Such a fence would require issuance of a special exception by the municipality, which the owner believes probably could be obtained. 14. The present use by Defendant of its property constitutes a private nuisance with respect to Plaintiffs' property. 15. Defendant's conduct in the present litigation has not been shown to have been obdurate, dilatory, arbitrary, vexatious or in bad faith. DISCUSSION Statement of Law Private nuisance. A private nuisance is described in the Restatement (Second) of Torts in the following terms: One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.~ There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.2 In this regard, "[t]he law does not concern itself with trifles .... "Karpiak v. Russo, 450 Pa. Super. 471,476, 676 A.2d 270, 272 (1996). "The standard for the determining of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant." Id. at 476-477, 676 A.2d at 273. Remedies for private nuisance. Injunctive relief is an available remedy in appropriate circumstances where a private nuisance is shown to exist. See, e.g., Altman v. Ryan, 435 Pa. 401, 257 A.2d 583 (1969). Damages may also be awarded for past harm. Cf. Lafferty v. Montgomery, 48 Delaware Co. 65 (1960). Attorney's fees. Under Section 2503 of the Judicial Code, attorney's fees may be awarded to a litigant where the conduct of the other party has been Restatement (Second) of Torts §822 (1979) Restatement (Second) of Torts §821F (1979). 4 "dilatory, obdurate or vexatious" during the pendency of the matter3 or "arbitrary, vexatious or in bath faith" in commencing the matter or otherwise.4 Statute of limitations. A two-year statute of limitations applies to nuisance actions at law. Act of July 9, 1976, P.L. 586, {}2, as amended, 42 Pa. C.S. §5524 (1999 Supp.). In the present case, the court is of the view that Defendant's use of its property in a manner which results in the frequent intrusion of golf balls, driven from a tee, upon Plaintiffs' property, significantly damaging their home and preventing their comfortable use of their yard, qualifies as a private nuisance as defined in the Second Restatement of Torts. This degree of intrusion, in the court's opinion, would be seriously annoying to a normal person in the community. CONCLUSIONS OF LAW litigation. 2. The court has jurisdiction over the parties and subject matter of this Defendant's use of its property represents a private nuisance for which equitable and other relief is appropriate. 3 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(7). 4 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(9). 3. The private nuisance is a repetitive one and the cost of restoration of Plaintiffs' home due to the cumulative effects of the nuisance can not be assigned, in terms of causation, to a period beyond the applicable statute of limitations. DECREE NISI AND NOW, this 27th day of March, 2000, upon consideration of Plaintiffs' complaint, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Defendant is enjoined, within four months from the date of this decree, from continuing to use its property in a manner which results in the frequent intrusion of golf balls upon Plaintiffs' property from the sixth tee; 2. Plaintiffs are awarded $9,300.00 in damages from Defendant for repair of their home, and costs of suit. 3. All other relief requested by Plaintiffs is denied. THIS DECREE NISI shall automatically become a Final Decree unless a party files a post-trial motion within the ten-day time period provided for in Pennsylvania Rule of Civil Procedure 227.1. BY THE COURT, J. Wesley Oler, J. J. Wesley Oler, Jr., J. 6 Ron Turo, Esq. 32 South Bedford Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc