APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 71-2317.
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
The construction of residential housing areas on heretofore undeveloped rural land is a hallmark of twentieth century America. The dislocations which often follow in the wake of such construction give rise to this case.
Plaintiffs, Doris Louise Breiner and her husband, Howard B. Breiner, Jr., own a forty-two acre farm in Lower Macungie Township in Lehigh County, Pennsylvania. They filed suit in the United States District Court for the Eastern District of Pennsylvania*fn1 alleging that the residential development of a tract of real estate, adjacent to their farm but located in the neighboring Borough of Alburtis, had increased the flow of surface water onto their land so that they could no longer grow strawberries commercially.
The subdivision development was undertaken by Meinrad Schnellman, who constructed about 38 houses over approximately seven years through his unincorporated business, Schnellman Construction Company (collectively "Schnellman"), and C & P Home Builders, Inc., the stock of which was wholly owned by Schnellman and his wife. Schnellman and his two companies were joined as defendants and charged with "negligence and carelessness in the construction, maintenance and use of the premises where the construction took place and adjoining roads" which allegedly caused the flooding of the Breiner farm.
A fourth defendant, the Borough of Alburtis ("Borough"), issued building permits to C & P Home Builders for construction of single family residences in the Borough. The Breiners aver that the Borough was negligent and careless in "granting a building permit and failing to encore [enforce?] such as to prevent abnormal drainage of surface water and to permit the constructors to divert the normal flow of surface water."
The Borough engineers, A. L. Weisenberger Associates, Inc., and the individual engineerassigned to Borough matters, Jerome J. Polachek (collectively "engineers"), are the other two defendants herein. The Breiners charged them with negligently preparing a subdivision plan which failed to provide for adequate surface drainage. The record shows that they did not themselves prepare a plan but rather approved the one submitted to the Borough Council by Schnellman, which the district court deemed sufficient for liability.
The case was tried to a jury. After plaintiffs had rested, the district judge granted C & P Home Builders' motion for a directed verdict since it was merely a land holding company and was not actively involved with construction activities. The remaining defendants were found liable in the sum of $36,130.
Schnellman moved for a new trial on the ground that the district judge had erred in his charge to the jury. The Borough and its engineers moved for judgment notwithstanding the verdict and for a new trial. The district court denied all the motions and entered judgment in favor of the Breiners. Breiner v. C & P Home Builders, Inc., 398 F. Supp. 250 (E.D. Pa. 1975). Defendants appeal.
We affirm the judgment against Schnellman personally and Schnellman Construction Company. We reverse, however, as to the Borough and its engineers and direct the district court to enter judgment in their favor.
Schnellman objects to the judge's charge that liability could be premised on an intentional discharge of water as well as on a negligent discharge. Including intentional conduct as a basis for liability would not appear to prejudice Schnellman as it places the burden on the Breiners to prove actual knowledge. At oral argument in this court, however, Schnellman revealed his understanding of the charge was that he could be held liable merely for his intentional operations upon the land, for example, building houses or roads.
This interpretation of the charge is entirely unfounded. The district judge quite plainly did not instruct the jury that Schnellman could be found liable on some theory of strict liability for his actions in developing the land. The judge charged:
Schnellman may not have actually known in performing this work that there would in fact be an unreasonable discharge of surface water on the Breiner property, but you may conclude that a reasonable person in his position should have known and that would be negligence. If you find that he actually knew, then that would be intentional.
Since Schnellman concedes that the instruction as to negligence was proper, we see no way in which he could have been harmed by the addition of an instruction on intentional torts. We, ...