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filed: January 9, 1981.


No. 498 April Term, 1979 Appeal from the Order of the Court of Common Pleas of Greene County, Civil Division, at No. 642 In Equity.


Charles C. Keller, Washington, for appellants.

Alan Berman, Pittsburgh, for appellees.

Cercone, President Judge, and Montgomery and Lipez, JJ. Montgomery, J., files a concurring and dissenting opinion.

Author: Cercone

[ 283 Pa. Super. Page 467]

This is an appeal from the September 15, 1978 order of the Court of Common Pleas of Greene County which adjudged the defendants jointly and severally liable for damages caused to plaintiffs' property as a result of their negligence. The lower court found partly reparable and partly permanent injury thereby awarding damages for the cost of repairs and for the depreciation in market value, respectively. This, in conjunction with interest awarded in the form of "delay compensation," made up the total damages of which, through the invocation of his equity powers, the trial judge, acting as chancellor in equity, apportioned ninety percent against contractor-defendant, S. J. Groves & Sons Company, and ten percent against landowner-defendant, Jane Williams. We reverse in part, affirm in part, and vacate and remand the remainder of the case to the lower court for the reasons set forth below.

The defendant, Groves Company, was the contractor responsible for the construction of a portion of Interstate Highway 79 near the Borough of Waynesburg, Franklin

[ 283 Pa. Super. Page 468]

Township in Greene County. In connection with its duties under this state road construction contract, Groves Company entered into a "Waste Agreement" with Jack E. Williams and Jane Williams which provided for dumping a large quantity of dirt, rock and other material commonly known as waste or fill on the land of Mr. and Mrs. Williams. The area to be covered by the fill was a natural gully with an existing water course running through it. The contour of this watershed was shaped like a bowl which was wider at the top and narrower at the bottom. The top of the bowl is one hundred (100) feet above plaintiff Wade's property which is situated to the west of the main portion of the bowl and on its lower rim.

Pursuant to the waste agreement, Groves Company covered 206,602 square feet or 4 acres of the Williams' property with 124,000 cubic yards of fill between May 18, 1971 and February 28, 1972. The fill extended to the top rim of the bowl in the section directly east of, and above, the Wades' residence. In filling this 46 foot gully to the east of plaintiffs' property, Groves sloped his fill in such a fashion as to create a more pronounced draw toward the Wades' house. This resulted in serious water drainage problems for the Wades: when it rained, a large amount of water, mud, silt, stone and other debris washed down off of the newly filled section of the bowl and into their backyard. The Wades have installed several underground pipes and catch basins to divert the course of the water away from this property. Mr. Wade and his neighbors have done bulldozer work on the contour of the Williams' property and have continually sought to maintain adequate erosion resistant vegetation on the waste area. The repairs of both the defendant-contractor and the Wades have apparently been successful since the evidence indicates that no further property damage has occurred thereafter.

In June of 1976, the plaintiffs, Furman Wade, Jr. and Audra Wade, his wife, brought an action in equity against Groves Company and Jane Williams for the damage they negligently caused to the Wades' property. Plaintiffs

[ 283 Pa. Super. Page 469]

    sought damages for both the cost of the repairs they have made and for the permanent diminution in value of their property. In addition, plaintiffs prayed for injunctive relief seeking to require the defendants to remove or otherwise remedy the condition of the land fill so as to prevent further waste from being washed onto the plaintiffs' land.

Sitting without a jury, the trial court properly refused to grant injunctive relief since there was evidence that the condition had already been substantially remedied. The trial court, however, did find both defendants "jointly and severally" liable and awarded damages of $15,053.99, which included repair costs for the temporary injury, diminution in value for permanent loss of the value of plaintiffs' property, and "delay compensation" measured by the amount of legal interest (6%) for 7 years back to 1971. This total sum of damages was then apportioned by the trial judge ten percent against the landowner-defendant and ninety percent against the contractor-defendant. This appeal follows by defendant, Groves Company alone.

In this appeal, appellant Groves presents four issues for our review: (1) whether the court below was correct in apportioning damages between defendants who are jointly and severally liable; (2) whether the trial court erred in allowing "delay compensation" measured by the legal rate of interest (6%) from the time the unliquidated tort claim arose; (3) whether the trial court correctly included as part of the damage award, a bill which was made out to the plaintiffs' neighbor who was assisting him in making repairs; and (4) whether the lower court properly allowed damages for the change in market value of plaintiffs' property in addition to damages for the cost of repairs.


Appellant's first argument is that the lower court erred in apportioning damages at ten percent against defendant-appellee*fn1 Williams and ninety percent against defendant-appellant

[ 283 Pa. Super. Page 470]

Groves Company after having made a determination that such individuals were jointly and severally liable. The lower court had originally based this allocation of damages on the Pennsylvania Comparative Negligence Statute, Act of July 9, 1976, P.L. 586, No. 142, § 7102, added April 28, 1978, P.L. 202 No. 53, § 10(89), 42 Pa.C.S. § 7102 (Supp.1980).*fn2 However, appellant Groves filed an exception on the basis that the statute was not in effect at the time this cause of action arose and, hence, was improper authority on which to base an apportionment of damages. The trial court noted that appellant was correct in stating that the statute was inapplicable to the present case, but, nevertheless, the court let its previous apportionment stand, by invoking the discretion of a chancellor in equity:

It is true that Act had not been enacted when this case arose, as counsel for S. J. Grove correctly points out, and is not retroactive beyond its effective date, September 7, 1976. See Costa v. Lair, 241 Pa. Super. 517, 363 A.2d 1313. And even now, as we consider the problem before us in equity, recognizing that there is no possibility that, at law, the differentiation could be made, we are satisfied that it is within the sound discretion of the Court as chancellor to do so. The land owner was only a passive agent in the causal connection of the acts and the resulting damages.

[ 283 Pa. Super. Page 471]

It was the construction company who leased the land for a modest sum and who spilled the dirt fill in huge quantities down the slope, and who set the stage for the rains, whether in usual amounts or in cloud bursts, that put a substantial amount of silt and debris on plaintiff's property who gave no lease, nor any consent, and who has a right not to have his residential property made an involuntary cachement area for the overflow of dirt from the construction of I 79.

We disagree with the trial court's conclusion.

To begin with, it is doubtful whether this case is a proper one for the invocation of equitable principles at all. Along these lines the appellant asserts that, in reality, this was a trespass action at law for damages because the trial court dismissed the prayer for equitable relief in its original decree nisi. The court dismissed the claim for an injunction on the rationale that the condition had already been repaired to the extent possible which, therefore, rendered the injunction unnecessary. It is appellant's position that when the equity claim was dismissed, the action automatically became one at law, thereby rendering equitable principles inapplicable. However, we acknowledge that once equity takes jurisdiction over a controversy, that jurisdiction continues until all issues raised in that controversy have been decided. McGovern v. Spear, 463 Pa. 269, 272-73, 344 A.2d 826, 828 (1975); Arcadia Theatre Co. v. Sablosky, 418 Pa. 34, 49, 209 A.2d 375, 382 (1964).*fn3

[ 283 Pa. Super. Page 472]

Nevertheless, it is surely not true that a chancellor in equity has the boundless discretion to do as he sees fit.*fn4 Rather, it is well-settled that a chancellor in equity must follow clearly fixed and established principles of law. In First Fed. Sav. & Loan Ass'n of Lancaster v. Swift, 457 Pa. 206, 210, 321 A.2d 895, 897 (1974), the Supreme Court of Pennsylvania enforced the age-old maxim that "equity follows the law":*fn5

Even recognizing that a court of equity has broad powers, '[i]t is a mistake to suppose, that a court of equity is amenable to no law, either common or statute, and assumes the rule (sic) of an arbitrary legislator in every particular case.' Blackstone's Commentaries on the Law 732 (B. Gavit ed. 1941). When the rights of a party are clearly established by defined principles of law, equity should not change or unsettle those rights. Equity follows the law. Hedges v. Dixon County, 150 U.S. 182, 14 S.Ct. 71, 37 L.Ed. 1044 (1893); Bauer v. P. A. Cutri Co., 434 Pa. 305, 253 A.2d 252 (1969); Scott v. Waynesburg Brewing Co., 256 Pa. 158, 100 A. 591 (1917); Abrahams v. Wilson,

[ 283 Pa. Super. Page 473134]

Pa. Super. 297, 3 A.2d 1016 (1939); see 2 J. Pomeroy, A Treatise on Equity Jurisprudence § 425 (5th ed. S. Symons 1941).

In the present case it is clear that the new law of comparative negligence is not dispositive because of the statute's prospective effect. Likewise, as the lower court admits in its opinion quoted above, at law there would be no possibility that the damages in this case could be apportioned as the trial court attempted to do. In this situation, then, equity must follow the law and apply the normal rule that where there is joint and several liability, each defendant is liable for the entire amount of the damages regardless of degrees of fault, Randall v. Fenton Storage Co., 121 Pa. Super. 62, 65, 182 A. 767, 768 (1936), and that apportionment derives only from the tortfeasor's statutory right to contribution under the Uniform Contribution Among Tortfeasors Act.*fn6 Incollingo v. Ewing, 474 Pa. ...

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