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Glencannon Homes Ass'n, Inc. v. N. Strabane Twp.

Commonwealth Court of Pennsylvania

April 22, 2015

Glencannon Homes Association, Inc.
v.
North Strabane Township, Canon-McMillan School District, McDowell Estates, L.P. and Heartland Homes, Inc. Appeal of: Canon-McMillan School District; Glencannon Homes Association, Inc., Appellant
v.
North Strabane Township, Canon-McMillan School District, McDowell Estates, L.P. and Heartland Homes, Inc.; Glencannon Homes Association, Inc.
v.
North Strabane Township, Canon-McMillan School District, and Heartland Homes, Inc. Appeal of: North Strabane Township

Argued November 12, 2014

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[Copyrighted Material Omitted]

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Appealed from No. 2010-5793. Common Pleas Court of the County of Washington. Judge O'Dell-Seneca, President Judge.

Robert A. Arcovio, Pittsburgh, for appellant North Strabane Township.

Brett W. Farrar, Pittsburgh, for appellant Canon-McMillan School District.

Marcia L.T. DePaula, Canonsburg, for appellee Glencannon Homes Association, Inc.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

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PATRICIA A. McCULLOUGH, Judge.

North Strabane Township (Township) and Canon-McMillan School District (School District) appeal from the June 25, 2013 order of the Court of Common Pleas of Washington County (trial court), which denied their post-trial motions and molded

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the jury's verdict to the amount of $500,000.00 against the District and $500,000.00 against the Township, for a total of $1,000,000.00, in accordance with section 8553(b) of the statute commonly known as the Political Subdivision Tort Claims Act (PSTCA).[1] Glencannon Homes Association, Inc. (the Association) has filed a cross-appeal arguing that the trial court erred in imposing this statutory cap on damages and in failing to grant equitable relief.[2]

Facts/Procedural History

The Association's members are homeowners in the Glencannon residential development located in the Township. (Trial court op. at 1.) The Association maintains the Glencannon Pond Dam (Pond), a common area in the development consisting of a twenty-four-foot-high, 295-foot-long earthen embankment dam, which provides storm water retention and sedimentation control for the residential units above the Pond. (Trial court op. at 1.)

In 1996, the School District initiated plans for the development of a sports complex located immediately north of the Pond and McDowell Lane in the Township. (Trial court op. at 2; Reproduced Record (R.R.) at 27a.) The School District leased the land from the Township. (R.R. at 96a, 114a, 119a-24a.) Pursuant to an agreement between the School District and the Township in 1997, the Township undertook improvements to McDowell Lane. (Trial court op. at 2.) Also in 1997, the Association became aware of excessive amounts of sediment accumulating in the Pond, as well as erosion. (Trial court op. at 1.) The Association had contracted for various services related to the Pond's maintenance since these problems were discovered, including having the Pond dredged in 2001. (Trial court op. at 1.) In 2009, the Association discovered that whenever it rained, water, sediment, and other debris flowed from the sports complex to McDowell Lane, and, ultimately, into the Pond. (Trial court op. at 2.)

On June 2, 2011, the Association filed a second amended complaint against the School District and the Township[3] asserting claims of negligence and violations of the Storm Water Management Act (SWMA), Act of October 4, 1978, P.L. 864, as amended, 32 P.S. § § 680.1-680.17.[4] (Trial

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court op at 2; R.R. at 201a-33a.) The School District filed preliminary objections, and the Association filed an answer. (R.R. at 265a-84a, 294a-98a.) The trial court denied the School District's preliminary objections and a trial commenced on June 11, 2013. (R.R. at 335a.)

Robert Snow, a senior principal engineer for D'Appolonia Engineers, the firm contracted by the Association in 1997 to provide a plan to improve the Pond's sediment problem, testified that the firm only provided services to improve the Pond and was never asked to determine the cause of the increased sediment. (R.R. at 1224a, 1227a-28a.) Anthony Wayne Sacco, a member of the Association's board, testified that the Association never gave notice of the Pond's sediment problem to the School District prior to filing a lawsuit against the School District. (R.R. at 1394a.)

The Association presented the expert testimony of Terry Soster (Soster), a registered engineer. Soster testified that he performed an evaluation in 2011 for the Association in order to determine the cause of the Pond's sediment problem. (R.R. at 1420a-21a.) He opined that the School District was a major contributor to the Pond's problem but that the Township was also a contributor. (R.R. at 1458a.) He explained that the water runoff from the School District's sports complex drains onto McDowell Lane, and eventually ends in the Pond. (R.R. at 1471a.) He stated that neither the School District nor the Township provided him with a stormwater management plan upon his request. (R.R. at 1466a-67a.) While he did not prepare his own stormwater management plan or calculate the amount of runoff both pre- and post-construction, Soster testified that " it's common sense that when you take grass away and you put in asphalt, the runoff is more" and that when you put pipes in the ground to carry water or build structures with roofs, the water " comes off faster." (R.R. at 1493a-94a.) He also opined that the sediment accumulation rate in the Pond after construction of the School District's sports complex was higher than it was pre-construction. (R.R. at 1510a-11a.)

Dan Deiseroth (Deiseroth), who was the Township engineer during the construction of the sports complex in 1997-98 and the vice president of Gateway Engineers, which was the engineering firm hired for the sports complex project, testified that there was a stormwater management plan in place during construction. (R.R. at 1229a-30a.) Deiseroth stated that the School District was never notified by the Association that the Pond was being affected. (R.R. at 1742a.) He also stated that the construction of the sports complex was completed properly and never rushed. (R.R. at 1742a.) Deiseroth said that he could not locate the stormwater management plan because his office had moved. (R.R. at 1748a-49a.) Deiseroth opined that the School District's sports complex is in compliance with the SWMA. (R.R. at 1761a.)

Frank R. Siffrin, the Township's manager, testified that McDowell Lane was repaved in 1997-98 as a result of the lease agreement with the School District and was again improved in 2010 to better manage stormwater. (R.R. at 1781a-83a.) Joseph H. Sites (Sites), the current Township engineer who also works for Gateway Engineers, testified that there was no stormwater consideration for the McDowell Lane improvements in 1997-98 and 2010, because stormwater management does not

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apply to resurfacing and other work accomplished on McDowell Lane. (R.R. at 1872a.) Sites stated that the School District never advised Gateway Engineers to cut any corners for the sports complex project. (R.R. at 2042a-43a.)

William L. Schaffer, the School District's former director of support until he retired in 2008, testified that the Association never complained to him that the School District was causing sediment problems in the Pond. (R.R. at 2093a.) He stated that he was involved in the 1997-98 plan to construct the sports complex and that he was not aware of the School District cutting any corners on the project. (R.R. at 2094a-98a.)

The School District presented the expert testimony of Robert Orchowski (Orchowski), who is an environmental consultant, a registered professional engineer, a licensed land surveyor, and a state-certified wastewater treatment plant operator. Orchowski stated that the School District hired him to perform a site investigation of the sports complex, which he did in December 2011 and again in June 2013. (R.R. at 2150a-52a.) He opined that the post-development stormwater discharge rate is less than the pre-development stormwater discharge rate on the sports complex. (R.R. at 2174a.) He also opined that the School District was not negligent because it constructed everything properly and that the School District did not violate any stormwater management requirements. (R.R. at 2191a.)

At the conclusion of the trial on June 20, 2013, the jury returned a verdict in favor of the Association. With respect to the negligence claim, the jury awarded the Association $240,000.00 for present damages and $1,310,000.00 for future damages, for a total of $1,550,000.00. The jury apportioned liability as follows: fifty percent to the Township, forty-five percent to the School District, and five percent contributory negligence on the part of the Association. With respect to the SWMA claim, the jury awarded the Association $319,000.00 for present damages and $1,310,000.00 for future damages, for a total of $1,629,000.00. The jury apportioned liability as sixty percent to the Township and forty percent to the School District. However, the jury noted that $1,550,000.00 of the damages for the violations of the SWMA were also included in the damages awarded under the negligence claim. (R.R. at 752a-57a; 2556a-58a.) Both the Township and the School District filed motions to mold the verdict to $500,000.00, consistent with section 8553 of the PSTCA. The trial court granted these motions and molded the verdict to $500,000.00 for each defendant. (R.R. at 766a-67a.)

The Township and the School District both filed motions for post-trial relief, requesting that the trial court mold the verdict to limit the total amount of the Association's recovery to $500,000.00 and for judgment notwithstanding the verdict and/or a new trial. (R.R. at 759a-64a; 820a-27a.) By orders dated June 26, 2013, and July 2, 2013, respectively, the trial court denied these motions. (R.R. at 768a, 828a.) The Association filed a motion for post-trial relief objecting to the trial court's molding of the verdict to reflect the statutory cap found in the PSTCA and a motion to mold the verdict to add delay damages and post-judgment interest. (R.R. at 769a-80a, 807a-12a.) By order dated September 3, 2013, the trial court granted the Association's motion to mold the verdict to add delay damages and post-trial interest. (R.R. at 942a.) By order dated November 5, 2013, the trial court denied the Association's motion for post-trial relief with respect to the statutory cap, stating that the molded verdict would

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remain $500,000.00 against the School District and $500,000.00 against the Township. (R.R. at 943a.) The trial court entered judgment against the Township and the School District on December 18, 2013. (R.R. at 944a-45a.) Each of the parties thereafter filed a notice of appeal with the trial court.

Trial Court Opinion

In its 1925(a) opinion, the trial court stated that the Association erroneously cited Deibert v. Pennsylvania Turnpike Commission, 15 Pa. D. & C. 5th 159 (2010), for the proposition that the PSTCA's statutory cap is inapplicable for claims under the SWMA, and, thus, concluded that the Association's argument was without merit. It found that the constitutionality of the PSTCA has been upheld and that the Association failed to cite any authority for its assertion that the SWMA requires special treatment under the PSTCA or that the statutory cap is against public policy when applied to the SWMA. The trial court noted that the Legislature deliberately chose to provide the $500,000.00 cap on damages. It further concluded that it cannot award equitable relief to the Association after the jury verdict, because the Association never asserted a claim for such relief against the School District or the Township.[5]

The trial court found that Mench v. Lower Saucon Township, 159 Pa.Cmwlth. 116, 632 A.2d 1011 (Pa. Cmwlth. 1993), cited by the School District for the proposition that there should be a $500,000.00 cap in the aggregate, was inapplicable because the issue in that case involved whether the cap could be exceeded where the municipality maintained a liability insurance policy in excess thereof. In interpreting section 8553 of the PSTCA, the trial court determined that it was the intent of the Legislature to treat each local agency as any other tortfeasor, but subject to the $500,000.00 cap. The trial court stated that if the $500,000.00 cap was in the aggregate, local agencies would be afforded even greater protection if there was more than one defendant and plaintiffs would be further disadvantaged. Thus, it found that the statutory cap applies to each local agency.

The trial court further concluded that the record is replete with evidence that the School District did not properly manage the stormwater runoff into the Pond. It also found that the School District is not immune under the SWMA because, contrary to the School District's argument that it cannot be liable for negligent supervision of third-party contractors, the Association claimed that the School District was itself negligent. The trial court determined that there was evidence to support the jury's verdict that the School District was negligent. It also found that, based on the discovery rule, this action was filed within the two-year statute of limitations. The trial court noted that the School District failed to cite any authority for its argument that the Association could not file separate counts for negligence and violations of the SWMA against the School District, and, thus, the School District's assertion was without merit.

The trial court stated that the Township's preliminary objections and its motion in limine to exclude the expert testimony of Soster were properly denied. The trial court incorporated the reasoning found in its May 3, 2011 order denying

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the Township's preliminary objections. The trial court explained that Soster's testimony was probative and that it met the Association's burden of proving that the Township and the School District did not adequately manage the stormwater runoff. It stated that the Township's argument that it was not liable for any damages with respect to the sports complex was irrelevant, because the Township's liability derived from the improvements made to McDowell Lane.

The trial court further stated that the Township has no basis for its argument that the jury's verdict is improper because a juror's post-trial statement reveals that the verdict was reached contrary to the trial court's specific instructions. Citing Carter by Carter v. U.S. Steel Corporation, 529 Pa. 409, 604 A.2d 1010, 1013 (Pa. 1992), it stated that jurors may not testify regarding the deliberations, and, thus, " it would be improper for [the trial court] to investigate into the deliberations of a jury." (Trial court op. at 11.) Lastly, the trial court stated that the Township's arguments that the trial court erred on the grounds of insufficient evidence to support the verdict, inconsistent verdict, immunity under the SWMA, a flawed verdict slip, no private right of action under the SWMA, and failure to properly mold the verdict were already raised by the School District and disposed of earlier in its opinion. Thus, the trial court upheld the jury's verdict.

Both the Township and the School District raise six issues on appeal. Several of these issues are common to both appeals and will be addressed initially below. The remaining issues, as well as the three issues raised by the Association in its cross-appeal, will be addressed in separate sections below.

Discussion

Issues Common to the Appeals of the Township and the School District

Statute of Limitations

The Township and the School District first argue that the trial court erred in failing to dismiss the Association's action as outside the applicable statute of limitations, namely section 5524 of the Judicial Code, 42 Pa.C.S. § 5524. The Township and the School District also argue that the Association failed to provide the requisite notice under section 5522 of the Judicial Code, 42 Pa.C.S. § 5522. We disagree.

Section 5522 of the Judicial Code provides that:

(a) Notice prerequisite to action against government unit.
(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:
(i) The name and residence address of the person to whom the cause of action has accrued.
(ii) The name and residence address of the person injured.
(iii) The date and hour of the accident.
(iv) The approximate location where the accident occurred.

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(v) The name and residence or office address of any ...

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