Argued: October 8, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
ANNE E. COVEY, Judge
Tim and Jaime Lake (the Lakes) appeal from the Chester County Common Pleas Court's (trial court) February 7, 2013 order granting summary judgment in favor of The Hankin Group (Hankin Group), Hankin Properties Partnership (Hankin Properties), Claremont Village Homeowners' Association, c/o Shew Community Management, Inc. (Claremont Association), and Chester Valley Engineers, Inc. (Chester Valley Engineers) (collectively, Appellees). There are four issues for this Court's review: (1) whether the trial court properly concluded that the relevant statutes of limitations had expired because the alleged changes to the Lakes' property caused by flooding constituted a permanent change in the land, rather than a continuing trespass; (2) whether the Lakes' claims for equitable relief to abate flooding are subject to statutes of limitations and, if not, whether issues of material fact remain regarding laches; (3) whether the Lakes failed to join indispensable parties; and, (4) whether the Lakes' statutory and common law claims must be dismissed against a party who allegedly caused tortious storm water discharges, but no longer owns the property from which the storm water continues to flow. We reverse and remand for further proceedings.
The Lakes own and reside at the subject property located at 719 North Milford Road, Downingtown, Pennsylvania (Property). The Property is part of a three home subdivision which includes a property owned by Dean and Andrea Dortone (the Dortones) and another occupied by Dolores Wortley (Wortley).
Real estate formerly known as the Cairns Tract is located uphill and upgradient from the Property. Storm water from the former Cairns Tract flows from the open space, over a retaining wall, through the Cairns Pond and over the grassy area near the pond, following an unnamed tributary over the Dortones' property, through culverts under a driveway on the Dortones' property used by both the Dortones and the Lakes, for which the Lakes have an easement (the Driveway), onto the Property and into the Shamona Creek. Prior to Claremont Village's construction, storm water flowed in a dispersed manner from the former Cairns Tract to the Property.
Hankin Properties completed construction of Claremont Village in 2003 on the former Cairns Tract which, until completion, was owned by the Hankin Group. Chester Valley Engineers provided storm water calculations and design, and the erosion and sediment control plan for the project. Upon the development's completion and execution of a deed of dedication, Claremont Association has been responsible for Claremont Village's storm water management. Since Claremont Village's construction, the Property has experienced periodic flooding from Claremont Village when there has been significant rain.
Following breaches in the Cairns Pond's dam in 1999 or 2000, and 2003, the Lakes began to notice changes in the water flow coming from the Cairns Pond. Specifically, the Lakes noticed that the water flow frequency, rate and volume were increasing on a gradual basis. Therefore, the Lakes contacted Uwchlan Township officials seeking assistance; however, the Township informed them that it was not responsible and they should contact Hankin Group and Hankin Properties. The Lakes attempted to contact Hankin Group and Hankin Properties without success.
During this time, the dam breach was gradually worsening and periodically the culvert would fill with sediment which the Lakes would remove. After attempting to negotiate a resolution with Claremont Association and Hankin Group and Hankin Properties, on December 3, 2007, the Lakes along with the Dortones and Wortley sent a Notice of Intent to Sue under the Clean Streams Law, the Storm Water Management Act and the federal Clean Water Act to Claremont Association, Hankin Group, Hankin Properties, with copies to the Pennsylvania Department of Environmental Protection (DEP).
On January 25, 2008, after DEP conducted an investigation, it issued a Notice of Violation to Claremont Association stating:
The [DEP] has received and investigated a complaint concerning a pond and dam that is reportedly owned by the [Claremont Association] and which receives storm water runoff . . . . The complaint alleges, and our investigation has confirmed, that the dam associated with the pond in question has been breached at some point in the past and has allowed uncontrolled large volumes of sediment laden water to be discharged from the pond on occasions in the past. This polluted water flows into a small creek and tributary to Shamona Creek, a High Quality water of the Commonwealth.
Reproduced Record (R.R.) at 405a. After DEP approved a corrective action plan and Claremont Association, Hankin Group and Hankin Properties implemented that plan, by November 3, 2008 letter, DEP declared that the violations had been resolved.
Once the restorative work was completed, the Driveway flooding decreased significantly from 6 to 12 incidents per year to only twice in three years. Further, sediment deposits in the culvert previously requiring removal every few weeks thereafter required far less frequent remediation. Although the matter has improved significantly, the Lakes described the current situation:
It exists. It's hard to say because . . . frankly after so many years, I'm just tired and sick of monitoring it all the time, and going out there and looking at it, so it would be hard to calculate, but there are times [when the sediment-laden storm water flows].
R.R. at 980a.
On December 4, 2009, the Lakes filed a complaint with the trial court against Hankin Group, Claremont Association and Chester Valley Engineers. The complaint was amended twice. The Lakes' Second Amended Complaint was filed on February 7, 2012, adding Hankin Properties as a defendant, and alleging 8 counts in violation of the Clean Streams Law (Count I); the Clean Water Act (Count II); the Storm Water Management Act (Count III); negligence in the design, construction, operation and maintenance of the storm water management system (Count IV); breach of landowner's duty to manage surface water (Count V); private and public nuisance (Counts VI and VII); and continuing trespass (Count VIII).
Upon completion of discovery, all defendants filed summary judgment motions. By order dated February 7, 2013, the trial court granted summary judgment in favor of all defendants. As to Count I, the trial court found that no cause of action could exist under the Clean Streams Law as to Hankin Group and Hankin Properties because they no longer possessed or controlled the former Cairns Tract. The trial court determined that the Lakes' remaining claims were time-barred. The Lakes appealed to this Court.
The Lakes first argue that the trial court erred by granting summary judgment based upon its determination that their claims were time-barred. Specifically, they assert a genuine issue of fact remained as to whether the floods they have experienced, and the damages therefrom, constitute a continuing trespass, given that the floods cannot ...