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PRISCILLA F. PIEKARSKI v. CLUB OVERLOOK ESTATES (09/12/80)

filed: September 12, 1980.

PRISCILLA F. PIEKARSKI, EXECUTRIX OF THE ESTATE OF FRANCIS J. PIEKARSKI, DECEASED, ON BEHALF OF THE ESTATE OF FRANCIS J. PIEKARSKI AND ON BEHALF OF THE NEXT OF KIN OF FRANCIS J. PIEKARSKI
v.
CLUB OVERLOOK ESTATES, INC., PHILLIP FRATTO AND SAMUEL FRATTO, T/D/B/A DINO'S BAR, TOWNSHIP OF PENN, BUTLER COUNTY, PA., AND LATROBE CONSTRUCTION COMPANY. APPEAL OF TOWNSHIP OF PENN. APPEAL OF CLUB OVERLOOK ESTATES, INC. JOANNE M. PLANZ, EXECUTRIX OF THE ESTATE OF RAYMOND C. PLANZ V. CLUB OVERLOOK ESTATES, INC., A PENNSYLVANIA CORPORATION, PHILLIP AND SAMUEL FRATTO, T/D/B/A DINO'S BAR, PENN TOWNSHIP, A MUNICIPAL CORPORATION, LATROBE CONSTRUCTION COMPANY, A PENNSYLVANIA CORPORATION, AND PRISCILLA PIEKARSKI, ADMRX. OF THE ESTATE OF FRANCIS PIEKARSKI. APPEAL OF TOWNSHIP OF PENN. APPEAL OF CLUB OVERLOOK ESTATES, INC.



No. 1390 April Term 1978, No. 102 April Term 1979, No. 1391 - April Term 1978, No. 103 - April Term 1979, Appeals from the Order of the Court of Common Pleas of Allegheny County, Civil Div., at No. 1022 Jan. Term 1974 and No. 2938 April Term 1974.

COUNSEL

R. Kenneth Willman, Pittsburgh, for Township of Penn, appellant at Nos. 1390 and 1391.

Charles E. Evans, Pittsburgh, for Piekarski, appellee at nos. 1390 and 102.

Gerald W. Weaver, Pittsburgh, for Club Overlook Estates, appellant at nos. 102 and 103.

James E. McLaughlin, Pittsburgh, for Fratto, appellee.

Thomas L. Cooper, Pittsburgh, for Planz, appellee at nos. 1391 and 103.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 281 Pa. Super. Page 167]

These appeals are from an order denying motions for judgment n. o. v. or new trial in a trespass action. The action arose out of an accident that occurred on March 14, 1973 on Route 8 in Penn Township, Butler County, when a car being driven south by one Francis Piekarski collided head-on with a truck being driven north by one Raymond Planz. Both men died as a result of the accident.

The executrix of Piekarski's estate sued Club Overlook Estates, Inc., which owned land near Route 8; Phillip Fratto and Samuel Fratto, t/d/b/a/ Dino's Bar, an establishment adjacent to Route 8; Penn Township; and Latrobe Construction Co., which had done work on a residential site located on a hill overlooking Route 8. The executrix of Planz's estate sued the same parties and, in addition, Priscilla Piekarski, as Administratrix of the Estate of Francis J. Piekarski. The actions were consolidated for trial. Before the trial began, Latrobe Construction was dismissed as a defendant. After a lengthy trial, the jury returned large verdicts against Penn Township and Club Overlook; Dino's Bar and the Estate of Piekarski were exonerated. Penn Township and Club Overlook filed motions for judgment n. o. v. or new trial, which the lower court denied, and it is from that denial that these appeals have been taken.

-1-

Penn Township's Motions

(a)

The Motion for Judgment N. O. V.

In considering whether judgment n. o. v. should be entered in favor of Penn Township, we must regard the evidence, including all reasonable inferences arising from the evidence, in the light most favorable to appellees as the verdict-winners. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970). So regarded, the evidence discloses the following.

[ 281 Pa. Super. Page 168]

Route 8 is a four-lane state highway that runs north and south. In the area where the accident occurred, Route 8 is bordered on its western side by property owned by the Frattos, who operate Dino's Bar. Prior to 1955, Dino's Bar was bordered on its western and southern sides by unimproved farm land. In 1955, Club Overlook bought a tract of 60 acres that included both the hill located behind Dino's Bar and the land on top of the hill. In 1955 and 1956, in order to prepare the tract for residential development, Club Overlook, through its President Kenneth Noell, Jr., supervised the construction of a street and drainage system on the top of the hill. Several surface drains, pipes, and ditches were installed, which directed drainage water to a 21-inch pipe located at the head of a gully that ran from the top of the hill down to Dino's Bar.

In 1956, Penn Township inspected the completed street and drainage system, and, at the request of Club Overlook, assumed maintenance and control of the system. Club Overlook retained ownership of the hillside on which the gully was located.

Two years later, the state enlarged Route 8 from a three-lane to a four-lane highway. The additional lane was placed on the western side of the highway and eliminated some of the parking area in front of Dino's Bar. To compensate for the loss, Dino's Bar enlarged its parking area in back by excavating part of the hillside; approximately 60 to 70 feet of the hillside was removed. Before the excavation there was a sewer located almost at the base of the hill; afterwards, however, the sewer was some 80 to 85 feet from the base of the hill. N.T. at 1,047, 11/16/76.

Phillip Fratto, owner of Dino's Bar, testified that he first experienced a flooding problem on his property after the street and drainage system had been constructed on top of the hill. Prior to the construction, the water in the gully behind his property was a little "crick," N.T. at 243, 11/9/76; afterwards his property was frequently flooded during rainstorms, N.T. at 240, 11/9/76, and gravel was washed out onto Route 8. N.T. at 244, 11/9/76. Fratto notified Penn

[ 281 Pa. Super. Page 169]

Township of his flooding problem several times. N.T. at 274, 11/10/76.

Two witnesses, Deana McDowell, who was travelling on Route 8 on the night of the accident, and Arthur Marks, who occasionally patronized Dino's Bar, testified that on several occasions they had observed flooding of Route 8 near the entrance of Dino's Bar. N.T. at 231, 11/9/76; N.T. at 1,145, 11/18/76.

Wilbert Mowry, chairman of the Board of Penn Township Supervisors, testified that he was aware of the drains and roads on the top of the hill and their location with respect to Dino's parking lot and Route 8. N.T. at 1,070, 11/17/76.

Samir George Khoury, a professor at the University of Pittsburgh with a background in geology and civil engineering, testified that the effect of the drainage system installed by Club Overlook was to increase the amount and speed up the flow of water from the land on the top of the hill, down the hillside, to Dino's Bar and Route 8. N.T. at 400, 11/9/76. He stated that the effect of the drainage system was to put a "funnel with the mouth of it collecting the water from a large area on the top and directing it then to a point at the base, which is the head of the gully." N.T. at 402, 11/9/76. He further stated that the drainage system did not dispose of the water properly because it "just lets it out of the head of the gully, and from there on it's just left to go on its own course where it eventually winds up." N.T. at 422-423, 11/9/76. He expressed the opinion that if the water from the hillside flowed onto the highway in a west-east direction and formed a six to ten foot arc of water, four inches in depth, a driver in the southbound lane might lose control of his vehicle and turn into the northbound lane. N.T. at 429, 11/9/76; N.T. at 431, 11/9/76. He considered the drainage problem to be easily detectable to a trained eye, and suggested that it could have been ameliorated by retarding the flow of water at the head of the gully, one way to do this being to install a drainage well there. N.T. at 435, 11/9/76: N.T. at 440, 11/9/76. He acknowledged that the three drains on the premises of Dino's Bar might handle the

[ 281 Pa. Super. Page 170]

    water, if they were placed at the bottom of the hill instead of where they were, and the water from the gully was directly channeled into them and they were functioning properly, N.T. at 562, 11/12/76, but said that if he were designing the drainage system, he would not "take a chance with the amount of water coming from that hill." N.T. at 560, 11/12/76. He noted that on the day he visited Dino's Bar, the drain in back of it was not functioning because it was filled with gravel from the parking lot, N.T. at 552, 11/12/76, and suggested that this would be a continual problem because "of the large amount of water that the area was not properly defined to carry, it just clogged the drains." N.T. at 553, 11/12/76.

On the night of the accident, it was raining heavily. At approximately 10:30 p. m., Piekarski's car, which was travelling south at 40 to 45 m. p. h., when near the entrance to Dino's suddenly veered to the left, crossed into Planz's lane of traffic, and collided with his truck. N.T. at 179, 11/9/76. Several witnesses testified that there was a discharge of water onto Route 8 from the west side of the highway adjacent to Dino's parking lot, and that this water was four to six inches deep and three to four feet wide. N.T. at 229, 11/9/76; N.T. at 75, 11/8/76; N.T. at 149, 11/9/76. One eyewitness to the accident, Marsha Collins, located the concentration of water at the point where Piekarski's car made its abrupt turn into the northbound lane. N.T. at 184, 11/9/76. Another witness, Trooper Ronald Monoco, who arrived at the scene shortly after the accident, traced the water to the gully behind Dino's. N.T. at 77, 11/8/76.

Penn Township's first argument for judgment n.o.v. is that the lower court misstated its possible liability as an owner of the drains and streets on the land on top of the hill.*fn1 Penn Township argues that the lower court should not

[ 281 Pa. Super. Page 171]

    have charged the jury that it could be liable if "the water [in Penn Township's drainage system] was diverted from its natural channel or where it is unreasonably or unnecessarily-where it is unreasonably or unnecessarily-changed in quantity." N.T. at 1,254, 11/19/76.

In Leiper v. Heywood-Hall Construction Co., 381 Pa. 317, 320, 113 A.2d 148 (1955), the Supreme Court stated:

"The owner of upper land has the right to have surface waters flowing on or over his land discharged through a natural water course onto the land of another, . . . He may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land: . . . From those rules it is clear that only where the water is diverted from its natural channel or where it is unreasonable or unnecessarily changed in quantity or quality has the lower owner received a legal injury." [quoting Lucas v. Ford, 363 Pa. 153, 155, 156, 69 A.2d 114, 116 (1949)].

"It is only where the owner of the higher land is guilty of negligence which causes unnecessary damage to the servient owner, or where, by an artificial channel, he collects and discharges surface waters in a body or precipitates them in greatly increased quantities upon his neighbor, that the latter may recover for any damage thereby inflicted . . . ." [quoting Chamberlain v. Ciaffoni, 373 Pa. 430, 436, 437, 96 A.2d 140 (1953)].

The lower court's charge, it will be observed, was consistent with this standard. Penn Township argues, however, that this standard is not applicable to municipal upper riparian landowners. In Rau v. Wilden Acres, Inc., 376 Pa. 493, 103 A.2d 422 (1954), the Court made the following statement, in dictum :

[ 281 Pa. Super. Page 172]

One [a landowner] may make improvements upon his own land, especially in the development of urban property, grade it and build upon it, without liability for any incidental effect upon adjoining property even though there may result some additional flow of surface water, thereon through a natural watercourse, but he may not, by artificial means, gather the water into a body and precipitate it upon his neighbor's property. Even a municipality, while not liable to a property owner for an increased flow of surface water over his land arising merely from changes in the character of the surface produced by the opening of streets and the building of houses in the ordinary and regular course of the expansion of the city, may not divert the water onto another's land through the medium of artificial channels.

376 Pa. at 494-495, 103 A.2d at 423. (Emphasis added.)

Penn Township reads this statement to mean that a municipal upper riparian landowner may only be liable where it diverts water from its natural channel, as opposed to a private landowner, whose liability, as stated in Leiper v. Heywood-Hall Construction Co., supra, extends not only to a case in which water "is diverted from its natural channel" but also to a case in which water "is unreasonably or unnecessarily changed in quantity or quality." If this is the proper reading of Rau, then the lower court should have granted judgment n.o.v. in favor of Penn Township, because the evidence suggested that while the drainage system collected the water and increased the quantity of its flow, it did not divert the water from its natural watershed; indeed, the lower court conceded as much at one point in its charge. N.T. at 1,265, 11/19/76. We have concluded, however, that Rau should not be read as Penn Township reads it.

As mentioned, the language in Rau on which Penn Township relies was dictum. In Rau, the facts were that the defendant, a private landowner, had diverted the natural flow of the surface water from its property by concentrating the water and sending it through an artificial channel, discharging it onto the plaintiff's adjoining land. Accordingly,

[ 281 Pa. Super. Page 173]

    the Court had no difficulty in upholding the chancellor's decree enjoining the defendant, for settled authority established the impropriety of the defendant's conduct. So far as the present case is concerned, Rau is not in point, for it involved neither a municipal landowner nor a landowner who, while not diverting water from its natural channel, nevertheless unreasonably and unnecessarily changed the quantity of the flow of water onto his neighbor's land.

Of course, if the Court's dictum in Rau had been considered dictum in the sense of reflecting the Court's dissatisfaction with settled law, and expressing its desire to change the law, the dictum would be entitled to special consideration. Quite the contrary is the case, however; at the very outset of its opinion, the Court states that "[t]his controversy is concerned with facts rather than the law." 376 Pa. at 494, 103 A.2d at 423. The Court then summarizes the law, collecting the cases in a footnote.

Among the cases thus cited is Strauss v. Allentown, 215 Pa. 96, 63 A. 1073 (1906). There the Court held that "[t]here is no sound reason why the same rule should not apply to municipalities as to individuals." 215 Pa. at 98, 63 A. at 1073. Thus the Court rejected the argument made by Penn Township here, that its liability should ...


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