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HomeMy WebLinkAbout2008-6880 FRANK E. LENTZ, III and CHERYL F. : IN THE COURT OF COMMON PLEAS LENTZ, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : : DONALD H. ERWIN and PATRICIA A. : NO. 2008-6880 CIVIL PROVENZANO, INSITE : DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC. : Defendants : IN RE: DEFENDANTS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT BEFORE OLER, J., EBERT, J. AND MASLAND, J. ORDER OF COURT th AND NOW this 8 day of July, 2011, upon consideration of Defendants’ Motions for Partial Summary Judgment, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motions for Partial DENIED Summary Judgment are . By the Court, ____________________________________ M. L. Ebert, Jr., J. Robert Radebach, Esquire Attorney for Plaintiffs 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire Andrew P. Dollman, Esquire Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Kevin C. McNamara, Esquire Jeffrey M. McCormick, Esquire Attorneys for Defendant Neiswonger Construction, Inc. P.O. Box 999 Harrisburg, PA 17108-0999 2 3 FRANK E. LENTZ, III and CHERYL F. : IN THE COURT OF COMMON PLEAS LENTZ, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL DIVISION : DONALD H. ERWIN and PATRICIA A. : NO. 2008-06880 PROVENZANO, INSITE : DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC. : Defendants : IN RE: DEFENDANTS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT BEFORE OLER, J., EBERT, J. AND MASLAND, J. ORDER OF COURT EBERT, J., July 7, 2011 – PROCEDURAL HISTORY Plaintiffs Frank E. Lentz, III and Cheryl F. Lentz commenced this civil action by filing a Writ of Summons on November 21, 2008. On April 27, 2009, Plaintiffs filed a Complaint alleging that Defendants Donald H. Erwin, Patricia A. Provenzano, Insite Development, LLC and Neiswonger Construction, Inc. separately or jointly came on to the lands of Plaintiffs, without prior notice, and removed trees, shrubs, and vegetation in preparation for excavation and installation of a sanitary sewer line. Plaintiffs are seeking damages under Section 8311 of the Judicial Code of Pennsylvania, 42 Pa.C.S.A. § 8311. On April 20, 2011, Defendant Neiswonger filed a Motion for Partial Summary Judgment, claiming that 42 Pa.C.S.A. § 8311 does not apply to this case because the trees removed from the Plaintiffs’ property do not constitute “timber” as defined under the statute. On April 28, 2011, Defendants Erwin, Provenzano, and Insite filed a Motion for Partial Summary Judgment asserting the same claim. Having found that additional fact finding is 1 required to determine the proper measure of damages in this case, Defendants’ Motions for Partial Summary Judgment are denied. STATEMENT OF FACTS Defendants Donald H. Erwin and Patricia A. Provenzano own land located in Hampden 1 Township, Cumberland County, Pennsylvania. Defendant Insite Development, LLC was involved in developing a residential subdivision called “Hawk Landing” which includes lands 2 owned by Defendant Insite as well as Defendants Erwin and Provenzano. According to Defendants Erwin, Provenzano, and Insite, Defendant Neiswonger Construction, Inc. was an 3 independent contractor of Defendant Insite. Plaintiffs Frank E. Lentz, III and Cheryl F. Lentz allege that, on February 19, 2008, Defendants separately or jointly entered upon the lands of Plaintiffs which are wetlands traversed 4 by a tributary of Sears Run, without prior consent. Plaintiffs further allege that Defendants commenced to remove trees, shrubs, and vegetation in preparation for excavation and installation of a sanitary sewer line connecting “Hawk Landing” to the public sewer system of Hampden 5 Township Sewer Authority. Plaintiffs subsequently had their lands surveyed, allegedly to confirm that the Defendants 6 had trespassed. Plaintiffs also consulted an Arborist to assess the value of the trees that were 7 removed. Plaintiffs allege that Defendants deliberately and intentionally trespassed upon their 1 Plaintiffs’ Complaint, filed Apr. 27, 2008, ¶ 6 2 Defendants Erwin, Provenzano, and Insite’s Answer with New Matter and Cross Claims, filed Jun. 2, 2009, ¶ 7 3 Defendants Erwin, Provenzano, and Insite’s Answer with New Matter and Cross Claims, ¶ 8 4 Plaintiffs’ Memorandum Opposing Motions for Summary Judgment, filed May 24, 2011, p. 1 5 Plaintiffs’ Complaint at ¶ 8 6 Plaintiffs’ Complaint at ¶ 11 7 Plaintiffs’ Complaint at ¶ 15 2 lands and are seeking damages under 42 Pa.C.S.A. § 8311 for the timber appraisal, the survey, 8 and treble damages. 9 Defendants deny trespassing upon Plaintiffs’ lands. Furthermore, if Plaintiffs’ lands 10 were trespassed upon, Defendants deny that it was deliberate and intentional. Although Defendants have not admitted any liability in this action, they have all filed Motions for Partial Summary Judgment seeking to limit Plaintiffs’ damages. Defendants assert that 42 Pa.C.S.A. § 8311 does not apply to this case because the trees removed from the property do not constitute 11 “timber” as defined under the statute. If Plaintiffs prove liability, Defendants assert that the 12 proper measure of damages in this case is the reduction in value of the real estate. DISCUSSION Under Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after relevant pleadings are closed, “any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report . . .” Pa. R.C.P. 1035.2(1). A Motion for Summary Judgment involves an evidentiary record which entitles the moving party to a judgment as a matter of law. Toy v. Metropolitan Life Insurance Co., 928 A.2d 186, 195 (Pa. 2007). When examining a Motion for Summary Judgment, the court must view the record in the light most favorable to the non-moving party, and any doubt about the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 772 A.2d 435, 438 (Pa. 2001). The purpose of summary judgment is to prevent 8 Plaintiffs’ Complaint at ¶ 13, 14, 15, and 16 9 Defendants Erwin, Provenzano, and Insite’s Answer with New Matter and Cross Claims at ¶ 9 and 22; Defendant Neiswonger’s Answer, New Matter, and Cross-Claim, filed Jun. 3, 2009, ¶ 5 10 Defendants Erwin, Provenzano, and Insite’s Answer with New Matter and Cross Claims at ¶ 16 11 Defendant Neiswonger’s Motion for Partial Summary Judgment, filed Apr. 20, 2011, ¶ 5 12 Defendant Neiswonger’s Motion for Partial Summary Judgment at ¶ 7 3 wasted time and resources on the part of both the litigants and the court in cases where a trial would be a useless formality. Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). Section 8311 of the Judicial Code of Pennsylvania provides, in relevant part, as follows: (a) GENERAL RULE.--In lieu of all other damages or civil remedies provided by law, a person who cuts or removes the timber of another person without the consent of that person shall be liable to that person in a civil action for an amount of damages equal to: (1) the usual and customary costs of establishing the value of the timber cut or removed and of complying with the erosion and sedimentation control regulations contained in 25 Pa. Code Ch. 102 (relating to erosion control); (1.1) the cost of any surveys obtained in connection with the civil action; and (2) one of the following: (i) three times the market value of the timber cut or removed if the act is determined to have been deliberate; (ii) two times the market value of the timber cut or removed if the act is determined to have been negligent; or (iii) the market value of the timber cut or removed if the defendant is determined to have had a reasonable basis for believing that the land on which the act was committed was his or that of the person in whose service or by whose direction the act was done. 42 Pa.C.S.A. § 8311. (Emphasis added) The statute defines “Timber” as “Standing trees, logs or parts of trees that are commonly merchandised as wood products.” “Market value” is defined as “The value of the standing timber as local market prices for the species and quality of timber cut or removed at the time it was cut or removed.” 42 Pa.C.S.A. § 8311(c). Defendants cite the case of Christian v. Yanoviak, 945 A.2d 220 (Pa. Super. 2008) to argue that the trees removed in the present case do not constitute “timber” as it is defined under 4 13 42 Pa.C.S.A § 8311. In the Christian case, the Defendant cut down 13 mature trees from the plaintiffs’ residential property and sold these trees for timber for $2,200.00. Id. at 223, 224. In applying Christian to the case at bar, it is important to understand the specific requests each party was making to the Court. Unlike this case, it was the Defendant Yanoviak, the person who had cut down the thirteen trees, who was asking the Court to declare, pursuant to his Motion in Limine, that the trees removed from the Plaintiffs’ property were “timber” and that the damages were limited and restricted to the parameters set forth in 42 Pa.C.S.A. §8311. Again, upon close analysis of the facts reported in Christian, the removal of the trees was done after the Defendant had performed a survey of the land. In short, the trees were mistakenly identified as being on the Defendant’s property. Id. at 223. Given the agreement of the parties that the value of the 13 trees cut down and sold by the Defendant was $2,200.00, it was only common sense that the Defendant wanted the provisions of 42 Pa.C.S.A. §8311(a)(2)(iii) to control. In such a case, under §8311(a)(2)(iii), the timber would be valued at its market price because the Defendant had a reasonable base for believing that the land was his. Hence the Defendant would minimize the damages he would owe the Plaintiff. In Christian it was the Plaintiff landowners who were the ones who were requesting that damages be determined by deciding whether the land was reparable or irreparable under the holding of Slappo v. J’s Development Associates, Inc., 791 A.2d 409 (Pa.Super. 2002). In their complaint, the Plaintiffs made no reference to “timber” but stated that the trees that had been removed were “mature trees which shielded their home from the site, noise and pollution of the turnpike.” In short, the requests of the parties in Christian were directly opposite of the requests of the parties in this case. 13 Defendant Neiswonger’s Brief in Support of Motion for Partial Summary Judgment, p. 2-3; Defendants Erwin, Provenzano, and Insite’s Brief in Support of Motion for Partial Summary Judgment, p. 2 5 After an evidentiary hearing regarding the issue, the court in Christian determined that the trees were not “timber” because the plaintiffs did not intend to harvest them for commercial use. Id. at 226. The Court stated that “although the trees removed from the appellee’s property were merchandised as wood products” and therefore would meet the definition of the term “timber” in §8311, the Plaintiffs were not intending to harvest the trees for sale as wood products. Rather the Christian Court reasoned that the value of the trees was in the natural sound and visible barrier they provided between their home and the Pennsylvania Turnpike. Id. at 226. Having determined that 42 Pa.C.S.A § 8311 did not apply, the Christian court relied on the standard set forth in Slappo v. J’s Development Associates, Inc., 791 A.2d 409 (Pa. Super. 2002). Christian 945 A.2d at 226. The standard in Slappo provides as follows: Assuming the land is reparable, the measure of damage is the lesser of: (1) the cost to repair, or (2) the market value of the damaged property (before it suffered the damage, of course). If the land is not reparable, the measure of damage is the decline in market value as a result of the harm. Slappo, 791 A.2d at 415. The court in Christian determined that the plaintiffs’ land was not reparable because some of the trees that had been removed were at least 70 feet tall and more than 100 years old. Christian, 945 A.2d at 226. The Christian court cited testimony in its reasoning that indicated newly planted trees would have taken several decades to become full grown. Id. at 226. Therefore, the Christian court concluded that the proper measure of damages was the decline in market value as a result of the harm to the plaintiffs’ property. Id. at 226. This is exactly what the Plaintiffs had requested. 6 Here it is the Defendants who assert that the proper measure of damages in the present case is the decline in market value of Plaintiffs’ property because the trees removed do not 14 constitute “timber” under 42 Pa.C.S.A. § 8311 and Plaintiffs’ land is not reparable. However, Plaintiffs maintain that, although they reside upon the property involved, there is nothing to 15 indicate that the trees removed were not marketable timber. Unlike the evidence in the Christian case, the evidence in this case has not been heard. Currently, it is unclear what Plaintiffs’ intentions are with regard to the trees removed. The trees in the Christian case were serving the very specific purpose of providing a barrier between the plaintiffs’ home and the Turnpike and that having such a barrier enhanced the value of Plaintiffs’ home and property. The purpose of the trees in the present case has not yet been determined. In examining the Plaintiffs’ complaint, it appears that the Plaintiffs’ property is over seven acres (see Exhibit A of Complaint). Such a large area could support selective timbering. The Arborist’s report, at Exhibit C of the complaint, indicates that 25 trees were removed from the property some of which were black walnut and white ash. The Court recognizes that these are valuable hard woods. Again, this is a substantial piece of property, and without hearing it cannot be said that a “timber” harvest could not be completed on the property. However, the Arborist by using the “cost of cure method” seems to be indicating that the property is reparable by having debris removed and new trees planted. The total value of this “cure” work is estimated at $48,450.00. The Plaintiffs’ complaint then multiplies this number by 3 claiming that removal of the trees was a deliberate and intentional act by the Defendants requiring the payment of treble damages in the amount of $145,950.00. Again, without the benefit of any factual hearing, it would appear that the Plaintiffs cannot legally request repair of 14 Defendant Neiswonger’s Brief in Support of Motion for Partial Summary Judgment, p. 5; Defendants Erwin, Provenzano and Insite’s Brief in Support of Motion for Partial Summary Judgment, p. 3 15 Plaintiffs’ Memorandum Opposing Motions for Summary Judgment Filed by All Defendants 7 their property while at the same time claiming the benefit of the treble damages provision of §8311(a)(2)(i) which applies to deliberate conversion of timber. The damage system utilized in §8311(2) is based on the (market value of the timber) which is specifically defined as the value of this standing timber at local market prices. Consequently, under the language of the statute the Defendant cannot substitute cost of repair and use that figure to then utilize the treble damages provision found in §8311(2)(i) rather than the “market value of the timber cut or removed.” Even if the Court found that the trees removed in this case were not marketable timber, applying the standard set forth in the Slappo case would still require additional evidence. For example, the question of whether the land is reparable under Slappo cannot be answered until the court evaluates the available means of repairing the land. Additionally, Defendants also seem to be raising questions regarding the correctness of the Plaintiffs deed and the affect that the Hampden Township Sewer Easement had on the reasonableness of the Defendants’ actions in removing the trees. Specifically under §8311(a)(2)(iii), there is a possibility that the Defendants may prove that they were reasonable in their belief that they were not trespassing on the Plaintiffs land. In short, numerous genuine issues of material fact exist as to whether the trees removed in this case constitute “timber” as it is defined under 42 Pa.C.S.A. §8311 and what is the proper method of assessing damages. While it is possible that the Court may eventually conclude that the trees removed in this case do not constitute “timber”, it would be premature to make that decision before all of the evidence has been heard. At this stage, there are simply multiple theories for damages in this case and Partial Summary Judgment as to damages is not appropriate based on this record. 8 Accordingly, the following Order shall be entered: th AND NOW , this 8 day of July, 2011, upon consideration of Defendants’ Motions for Partial Summary Judgment, after argument, and consideration of the briefs submitted by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motions for Partial DENIED Summary Judgment are . By the Court, ____________________________________ M. L. Ebert, Jr., J. Robert Radebach, Esquire Attorney for Plaintiffs 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire Andrew P. Dollman, Esquire Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Kevin C. McNamara, Esquire Jeffrey M. McCormick, Esquire Attorneys for Defendant Neiswonger Construction, Inc. Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 9