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July 16, 1975


The opinion of the court was delivered by: BECHTLE

 Plaintiffs commenced this diversity action against defendants to recover for damage to their farmland due to the inundation of surface water flowing from a neighboring higher tract of land that had been converted from farmland into a residential development. The case proceeded to trial and the jury, in response to special interrogatories submitted by the Court, found defendants negligent and awarded damages in the sum of $36,130. *fn1" Presently before the Court are remaining defendants' motions for a new trial and/or judgment notwithstanding the verdict.

 Viewing the evidence in the light most favorable to plaintiffs, the following facts were developed at trial. Plaintiffs are the owners of a farm situated in Lower Macungie Township, Lehigh County, Pennsylvania, adjacent to a tract of real estate located in the Borough of Alburtis, Lehigh County, Pennsylvania, which was subdivided into single-family residential units by defendants Schnellman Construction Company and Meinrad Schnellman ("Schnellman"). On this adjacent tract of real estate, Schnellman, beginning in 1960, constructed approximately 38 homes without providing for adequate drainage systems for the increased flow of surface water. Instead, Schnellman built the houses, paved the streets, and graded the land in such a way as to substantially increase the flow of surface water from the development onto plaintiffs' land, which was located downslope from the residential development. The increased flow of surface water flooded the lower portion of plaintiffs' property, thereby precluding plaintiffs from using their land to continue growing strawberries. Both plaintiff, Howard Breiner, Jr., and his father, Howard Breiner, Sr. (the current tenant of the Breiner tract), testified that, prior to the residential development, the surface water did not flow onto the Breiner tract but pooled in a swamp or marshy area on the upper farmland. This swampy retention area was filled in by Schnellman sometime in 1968, after which the flow of surface water runoff substantially increased.

 As against defendant Borough of Alburtis ("Borough"), plaintiffs proceeded on the theory that the Borough was negligent in failing to enforce its land subdivision ordinance, specifically Article VI, section 4, concerning storm and surface drainage. (See plaintiffs' exhibit 36.) Plaintiffs showed that Schnellman submitted his subdivision plan (see plaintiffs' exhibit 34), which contained no provisions for a drainage system, and thereafter, the Borough approved the plan without requiring Schnellman to provide drainage facilities in compliance with the ordinance. This plan was approved by the Borough despite the fact that the Borough engineers alerted the Borough that Schnellman had failed to indicate on his drawings the means of storm drainage disposal. (See defendant Borough's exhibit 4.) Similarly, plaintiffs showed that defendants A. L. Wiesenberger Associates, Inc., the Borough engineer, as well as Jerome J. Polachek, the individual engineer assigned by Wiesenberger to provide engineering services to the Borough ("engineers"), were negligent in approving the subdivision plan, since it did not provide for drainage facilities. Plaintiffs offered an engineer, John S. Pidcock, as an expert witness, who testified that it was standard municipal engineering practice not to approve this type of subdivision plan unless the plan conformed to municipal rules and regulations. Furthermore, it was his experience that, if an engineer approved a plan, it meant that the engineer had reviewed the proposed method of storm water disposal and had satisfied himself that it met with the Borough's regulations. [N.T. 2-37-40.]

 The defendants have advanced numerous arguments in somewhat of a "hit or miss" fashion in support of their motions for a new trial and/or judgment notwithstanding the verdict, only the following of which merit discussion:

 I. Alleged Error in the Court's Charge

 Schnellman contends that the Court erred in instructing the jury that they could conclude as a basis for liability that Schnellman's conduct was either intentional or negligent. Schnellman argues that there is no basis in Pennsylvania case law *fn2" for such a charge and, since there is no way of knowing how the jury categorized Schnellman's conduct, a new trial should be granted.

 It is clear that under Pennsylvania law plaintiffs made out a valid cause of action. In Westbury Realty Corp. v. Lancaster Shopping Center, Inc., 396 Pa. 383, 152 A.2d 669 (1959), the plaintiffs sought to enjoin developers of a shopping center from discharging surface water onto their land. The lower court sustained a demurrer to the complaint on the ground that it did not aver negligence or an artificial channeling of the water. The Supreme Court reversed, stating that the plaintiffs had stated a cause of action even though they could not show negligence. The Court noted that the construction of these large type developments prevent natural seepage and substantially increase the flow of surface water, and that the burden of the increased flow should not fall upon the neighboring landowners. As to the standard utilized in determining whether a legal injury has been suffered, the Court quoted with approval from Lucas v. Ford, 363 Pa. 153, 69 A.2d 114 (1949), wherein the Court stated:

[It] is clear that only where the water is diverted from its natural channel or where it is unreasonably or unnecessarily changed in quantity or quality has the lower landowner received a legal injury. Id. at 156, 69 A.2d at 116 (emphasis added).

 Therefore, it appears that a landowner may recover damages by merely showing that the upper landowner unreasonably increased the flow of surface water.

 In Taylor v. Harrison Construction Co., 178 Pa.Super. 544, 115 A.2d 757 (1955), the court did not find error in the trial court's charge which included a reference to both intentional and negligent conduct:

Appellants cite section 833 of the Restatement of Torts governing the invasion of an interest in the private use of land by interference with the flow of surface waters. This section expressly refers, inter alia, to section 822 which sets forth that, if the actor is to be held liable, the invasion must be "either (1) intentional and unreasonable; or (2) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct." Id. at 548 (emphasis added).

 Viewed in the total context of the Court's charge [N.T. 5 -- 21-24] and in light of the above-mentioned cases, it cannot be said that the use of the word intentional constitutes reversible error. Even assuming, arguendo, that Pennsylvania law limits liability to only a negligent and unreasonable increase, Schnellman was benefited by the instruction as to intentional conduct as it presents a stricter burden of proof for the plaintiff. Schnellman would have liability limited to the question of whether he "should have known" that his subdivision would unreasonably increase the flow of surface water onto the plaintiffs' land. But the jury could have concluded not only that Schnellman should have known, but that he actually did know that there would be such an unreasonable increase. In fact, the evidence showed that Howard Breiner, Sr., alerted Schnellman as to the possibility of an increased flow, and Schnellman told him that he would take care of the drainage. [N.T. 3-24.]

 II. Defendants' (Borough and Engineers) Claim of No Duty ...

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