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Paulette Cassel-Hess v. Norman K. Hoffer and Matthew D. Hoffer D/B/A 4507

May 7, 2012

PAULETTE CASSEL-HESS, APPELLANT
v.
NORMAN K. HOFFER AND MATTHEW D. HOFFER D/B/A 4507 ASSOCIATES, APPELLEES



Appeal from Order entered March 29, 2011 in the Court of Common Pleas of Dauphin County Civil Division at No: 2009-CV-12543-CV.

The opinion of the court was delivered by: Olson, J.:

J-A33023-11

BEFORE: DONOHUE, OLSON and STRASSBURGER*, JJ.

OPINION BY OLSON, J.:

Appellant, Paulette Cassel-Hess, appeals from the order entered on March 29, 2011, granting summary judgment to Norman K. Hoffer and Matthew D. Hoffer, d/b/a 4507 Associates (collectively "Appellees"). We affirm in part, vacate in part, and remand.

On October 9, 2009, Appellant instituted the current action by filing a complaint against Appellees. As averred within the complaint, Appellees own land located at 4507 North Front Street, in Harrisburg, Pennsylvania.*fn1 Appellant's Complaint, 10/9/09, at ¶ 2. Appellant's property - which is located at 4601 North Front Street - is separated from 4507 North Front Street by "a narrow strip of flooded land." Id. at ¶ 3.

*Retired Senior Judge assigned to the Superior Court

According to the complaint, prior to 2003, a protected wetland ran alongside the eastern border of Appellees' 4507 North Front Street property. Id. at ¶ 4. In 2003, however, Appellees began to construct a commercial office building on 4507 North Front Street and, during the construction of this building, Appellees filled the wetlands with soil. Id. at ¶ 5. As a result of the filling of the wetlands, Appellant avers, land to the south and north of Appellant's property began to flood. Id.

As stated within the complaint, Appellees finished all construction on the building in 2007. Id. at ¶ 6. Sometime in 2008 or 2009, however, Appellant began to notice that properties adjacent to her own land were flooded - thus resulting in "mosquito-infested standing water that [] significantly reduced the value of [Appellant's] Front Street property." Id. at ¶¶ 6-7. Appellant claimed that Appellees were liable for her damages "under the . . . law of trespass and negligence, including the well-established law of real estate which precludes a landowner from interfering with the natur[al] movement of surface water so as to detrimentally affect other conjoining or nearby landowners." Id. at ¶ 13. Further, Appellant requested that the trial court issue an injunction to "abate and prevent the flooding of [Appellant's]

- 2 -

J-A33023-11

land and/or the adjoining mosquito-infected lake."*fn2 Id. at Wherefore Clause.

Appellees answered Appellant's complaint and denied liability. Moreover, Appellees pleaded new matter and asserted that all of Appellant's claims were barred by the applicable two-year statute of limitations. Appellees' Answer and New Matter, 1/29/10, at ¶ 16.

Discovery commenced. During discovery, it was revealed that Appellant obtained title to 4601 North Front Street on April 8, 2008, via executor's deed. As the deed recites, Appellant's husband - Boyd R. Hess - died testate on February 8, 2007 and devised the 4601 North Front Street property to Appellant. Appellees' Motion for Summary Judgment, 9/16/10, at Exhibit H. Prior to the devise, 4601 North Front Street had been Mr. Hess' separate property, as Mr. Hess purchased the property in 1983 - well before his 2005 marriage to Appellant. Appellant's Deposition, 3/22/10, at 9-10 and 13.

Further, during Appellant's deposition, Appellant testified as to the time when she and her late-husband first noticed the "mosquito-infested lake." As Appellant testified, she first visited the 4601 North Front Street property in 2000, when she and Mr. Hess were dating. Appellant's Deposition, 3/22/10, at 14-15. Appellant testified that, at this time, there was no "mosquito-infested lake" on any surrounding property. Rather, Appellees' land contained a canal-like area - where water would congregate in "a little wet spot" and then drain to the north. Id. at 22-23. In 2004, however, Appellees completed the main construction on their office building and "[s]hortly after the building was put in[, the 'little wet spot'] just got bigger and bigger and bigger" until the canal-area formed what is "a huge lake now." Id. at 22-25.

Appellant testified that she first experienced a problem with mosquitos in 2004 or 2005 - which is "[w]hen [the canal-area] became a pond." Id. at 43-44. According to Appellant, the mosquitos are the result of the fact that the lake is simply "trapped . . . standing water" that continues to "get[] bigger" over time. Id. at 44. Further, Appellant testified that the water became trapped in 2004 or 2005 and, since that time, the water has never drained from the canal-area. Id. at 26-27 and 44.

As Appellant testified, she is afraid that, "if [the lake] keeps coming forward, filling up . . . it is going to come up onto my property and into [my] building." Id. at 45. Indeed, Appellant commissioned a property survey in 2008 and, from this survey, Appellant testified that she "think[s]" that the lake now envelops the southeastern corner of her property. Id. at 31-32.

Following the completion of discovery, Appellees filed a motion for summary judgment and claimed that they were entitled to judgment as a matter of law. As Appellees argued, the facts of record prove that the standing water is a "permanent condition" upon the land. Appellees' Motion for Summary Judgment, 9/16/10, at ¶ 41. Further, Appellees cited to Appellant's deposition testimony and claimed that Appellant admitted the permanent condition existed since at least 2004 or 2005, when the water became trapped and the canal began to fill. Id. at ¶ 36. According to Appellees, since Appellant took ownership of her property in 2008 - well after the permanent condition came into being - Appellant did not have standing to sue for the trespass to her land. Id. at ¶ 69. In support, Appellees cited to Beach Street Corp. v. A.P. Construction Co., 658 A.2d 379 (Pa. Super. 1995) where this Court held that "any right to sue for [a permanent] trespass belongs solely to the possessor at the time of the trespass, and does not pass by deed." Id. at 380. Thus, according to Appellees, the right to sue for the trespass belonged to Appellant's husband and this right did not pass when Appellant obtained the deed to the property from her husband's estate. Appellees' Motion for Summary Judgment, 9/16/10, at ¶¶ 69-70.

Moreover, Appellees argued that Appellant's trespass and nuisance claims were barred by the applicable two-year statute of limitations. Id. at ¶ 77. As Appellees contended, Appellant admitted that she knew of the permanent condition since 2004 or 2005. Since Appellant did not file her complaint for property damage until October of 2009, Appellees argued that the asserted claims were time-barred. Id.

Appellant responded to the motion for summary judgment and, within her response, Appellant filed a cross-motion for summary judgment. According to Appellant's cross-motion, in a prior, unrelated case, Appellees had been sued for filling the wetlands and flooding another, neighboring property. Appellant's Cross-Motion for Summary Judgment, 10/6/10, at 11. In this unrelated case, the jury found Appellees liable for flooding the neighboring property and awarded the individual plaintiff both compensatory and punitive damages. Appellant argued that, given this prior jury determination, Appellees were collaterally estopped from denying ...


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