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JOHN MORRIS BOWER AND ELIZABETH BOWER v. JEAN HOEFNER ET AL. CAMERON S. WILSON AND EDITH B. WILSON (08/01/88)

decided: August 1, 1988.

JOHN MORRIS BOWER AND ELIZABETH BOWER, HIS WIFE
v.
JEAN HOEFNER ET AL. CAMERON S. WILSON AND EDITH B. WILSON, APPELLANTS. JOHN MORRIS BOWER AND ELIZABETH S. BOWER V. JEAN HOEFNER ET AL. JEAN HOEFNER, APPELLANT



Appeals from the Order of the Court of Common Pleas of Bucks County, in the case of John Morris Bower and Elizabeth S. Bower v. Jean Hoefner, Cameron S. Wilson, Edith B. Wilson, Wilson Court Associates, Township of Northampton and Commonwealth of Pennsylvania, Department of Transportation, No. 83-04781-11-5, dated April 28, 1987.

COUNSEL

Don F. Marshall, Stuckert and Yates, for appellants, Cameron S. Wilson and Edith B. Wilson.

Donald B. McCoy, McCoy & Auchinleck, P.C., for appellant, Jean Hoefner.

Joanne D. Sommer, Eastburn and Gray, for appellees, John Morris Bower and Elizabeth S. Bower, his wife.

Janet Weaver Mason, with her, Joseph Goldberg, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, for appellee, Township of Northampton.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 118 Pa. Commw. Page 295]

Jean Hoefner (Appellant) appeals the order of the Court of Common Pleas of Bucks County, the trial judge sitting as a Chancellor in equity, ordering Appellant to cease and desist diverting the natural surface water runoff from her property onto the property of her neighbors John and Elizabeth Bower (Appellees). Additional defendants Cameron and Edith Wilson (Wilsons) have also appealed the trial court's refusal to grant them attorney fees against Appellant for joining them as additional defendants in bad faith pursuant to Pa. R.C.P. 2503(9). These two appeals have been consolidated for argument and transferred to this Court pursuant to Pa. R.A.P. 752(a) since Appellant also joined the Township of Northampton (Township) as an additional defendant. Also before the Court is Appellant's application for a stay of the trial court's order. We affirm the order of the trial court with respect to both appeals and deny Appellant's application for stay.

On October 30, 1980, Appellant became the owner of a property located at 43 Twining Fork Road in Northampton Township, Bucks County. Appellees owned the adjoining property. Behind the two properties is an undeveloped tract of land owned by the Wilsons. During storms, rainwater runoff would be carried from the

[ 118 Pa. Commw. Page 296]

    higher property owned by the Wilsons diagonally across the back portion of Appellees' property onto Appellant's property and then run through a swale or natural depression located on Appellant's property parallel to the property line between Appellant's and Appellees' property, finally discharging into a meadow in front of Appellant's property. Appellant's property was thus the servient property for surface water runoff for both the Appellees' and the Wilsons' land.

In 1981, Appellant received a building permit from the Township and began constructing an addition to her existing home. The addition was built in the path of the swale running along Appellant's property line. During storms, the runoff flooded the addition. In order to protect the addition, Appellant constructed a low level timber berm along the side of the addition running parallel to and approximately six feet from the property line. The effect of this berm was to restrict and concentrate the flow of storm water in the swale, but in the process the storm water was also backed up and diverted onto Appellees' property where it damaged and eroded a tree line Appellees' had planted thirty five years before.

On July 5, 1983, Appellees commenced this action to compel Appellant to remove her barrier and cease diverting surface water runoff onto their property. Appellant joined the Wilsons as additional defendants on the theory that proposed development of their land, for which they had already received subdivision approval by the Township, would alter and increase the natural flow of surface water onto her property. Although this subdivision was never built, some preliminary work involving land clearance was undertaken. Appellant also joined the Township and Department of Transportation (DOT) as ...


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