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HomeMy WebLinkAbout98-5558 EquityG & C ASSOCIATES, Plaintiff VS. SENIOR COTTAGES OF SHIPPENSBURG, LTD., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY 98-5558 EQUITY IN RE: PETITION FOR PRELIMINARY INJUNCTION AND NOW, this BEFORE HESS, J. ORDER day of October, 1998, in accordance with the foregoing, the petition for preliminary injunction is DENIED. BY THE COURT, Sally Winder, Esquire For the Plaintiff Michael D. Reed, Esquire For the Defendant :rlm G & C ASSOCIATES, Plaintiff VS. SENIOR COTTAGES OF SHIPPENSBURG, LTD., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION- EQUITY : 98-5558 EQUITY IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J. OPINION AND ORDER This case is before us on the plaintiff's petition for a preliminary injunction. We deny the plaintiff's petition and issue a brief opinion pursuant to Pa.R.C.P. 1517. The plaintiffs, G&C Associates ("G&C"), have filed an action in equity against the defendants, Senior Cottages of Shippensburg, Ltd. ("SCA"), for the alleged failure of the defendants to honor a storm water management agreement (the "Agreement") entered into pursuant to a real estate closing where SCA purchased 17.5 acres of land from G&C. The Agreement generally proVides that SCA will "provide for storm water management and run-off, including discharge across the Baltimore Road through a presently existing 24 inch diameter pipe, onto other lands owned by G&C." Agreement at R-2. The Agreement also provides that "[i]f at any point after the signing of this Agreement the size of the pipe is increased by requirement of any entity other than the parties to this Agreement and additional water is discharged from the SCA property, then. SCA shall not be entirely liable for damages caused by such water." Id_~. at paragraph 3. Recently, SCA installed a new 34-inch pipe. Before the pipe was installed, SCA 98-5558 EQUITY informed G&C that they did not intend to design or build storm water mn-off facilities for any flow of water from the new pipe onto the lands owned by G&C. G&C felt that this was a violation of the Agreement and petitioned this court for an ex parte preliminary injunction to stop the installation of the pipe. We denied this request and allowed the pipe to be installed. The plaintiffs were granted a subsequent hearing, however, and now ask to have the pipe removed. They contend that PennDOT did not require or assent to the larger pipe being installed, and that the flow of water onto their property will increase and damage their land. The defendants claim that PennDOT mandated that the larger pipe be installed and that the amount of water flowing onto G&C's property has not increased, but actually decreased. It is well settled that "[a] trial court may grant an injunction only if the plaintiff seeking that extraordinary remedy establishes a clear right to that relief." WPNT Inc. v. Secret Communication Inc., 443 Pa. Super. 269, 272, 661 A.2d 409, 410 (1995). To establish a clear right to relief, the plaintiff must show: (1) that relief is necessary to thwart immediate and irreparable harm which could not be remedied by damages; (2) that greater injury will result by refusing the injunction than by granting it; (3) that the injunction will restore the parties to their status as existing prior to alleged wrongful conduct; and (4) that the injunction is reasonably suited to abate such activity. Id__~. (quoting Schaeffer v. Frey, 403 Pa. Super. 560, 565, 589 A.2d 752, 755 (1991); Bell Fuel Corp. v. Cattolico, 315 Pa. Super. 238, 245,544 A.2d 450, 453 (1989)). In the case sub judice, the plaintiffs have failed to establish that the installation of the 34 inch pipe has or is likely to cause "immediate or irreparable harm" to their property. At trial, the plaintiffs offered no concrete evidence that the flow of water onto their property has increased or 2 98-5558 EQUITY will increase as a result of the installation of the larger pipe or that any irreparable damage will occur. The plaintiffs merely speculated 'that the flow of water would increase. The plaintiff's evidence was insufficient to convince this court that a preliminary injunction was necessary, especially in light of the defendant's engineering repons stating that the flow of water onto G&C's property has actually decreased as a result of SCA's storm water management efforts. Accordingly, we find that the plaintiffs have failed to establish a clear right to the requested relief, and deny the petition for preliminary injunction. ORDER AND NOW, this I/,, ° day of October, 1998, in accordance with the foregoing, the petition for preliminary injunction is DENIED. BY THE COURT, in A. ss, J. Sally Winder, Esquire For the Plaintiff Michael D. Reed, Esquire For the Defendant :rlm