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Sample Brief — Preliminary Objections (Public Filing)

Sample Brief — Preliminary Objections (Public Filing)

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Published by ericsuter
Brief in support of preliminary objections in an action involving claims based on the fact that water flows downhill. The court granted the objections in part and denied them in part.
Brief in support of preliminary objections in an action involving claims based on the fact that water flows downhill. The court granted the objections in part and denied them in part.

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Published by: ericsuter on Aug 21, 2010
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05/12/2014

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IN THE COURT OF COMMON PLEAS OFYORK COUNTY, PENNSYLVANIACIVIL ACTION – EQUITY
STEVEN STAMBAUGH,Plaintiff,
versus
JAMES SHAFER and ANN SHAFER Defendants. No. 2008-SU-4141-07
 DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OFPRELIMINARY OBJECTIONS TO AMENDED COMPLAINT
Come now defendants James and Ann Shafer (the “Shafers”), by and through their counsel, CGA Law Firm, and, in support of their preliminary objections to plaintiff’s amendedcomplaint, file the following memorandum of law.
I.
 
Introduction
Steven D. Stambaugh, Esq. brings this against his neighbors, Jim and Ann Shafer seeking both damages and injunctive relief in connection with the flow of storm water from the Shafers’high ground to his lower ground. The flow issues of which Stambaugh complains have never  before been an issue on the properties and only became an issue after Stambaugh removed allvegetation from the border of the two properties and replaced it with a vast bed of mulch.In his amended complaint, Stambaugh offers detailed allegations regarding the qualityand quantity of storm water that recently flowed on and from the Shafers’ property. Stambaughalso makes extensive allegations concerning the various neighborly steps the Shafers took— 
i.e.
,steps taken without regard to the nature of their legal obligations—to ameliorate Stambaugh’sexpressed concerns. Indeed, Stambaugh concedes the effectiveness of steps the Shafers took inresponse to his concerns.
See
Amended Complaint at ¶ 14. Nevertheless, Stambaugh remainsunsatisfied and now seeks injunctive relief and damages.
 
 The Shafers’ preliminary objections necessarily assume the truth of all facts set forth inStambaugh’s amended complaint. Even accepting Stambaugh’s allegations as true, Stambaugh’scomplaint fails to state a claim on which relief can be granted (
 see
Section II.A,
infra
), seeksrelief that is unavailable (
 see
Section II.B,
infra
), fails adequately to specify his monetarydamages (
 see
Section II.C,
infra
), and depends on inadmissible evidence of settlementnegotiations between the parties (
 see
Section II.D,
infra
). The Shafers’ preliminary objectionsshould be sustained and Stambaugh’s amended complaint dismissed in its entirety.
II.
 
ArgumentA.
 
Stambaugh’s Complaint Fails to State a Claim uponWhich Relief May Be Granted
Despite its extensive allegations, Stambaugh’s amended complaint fails to state any claimupon which this Court could grant relief even if Stambaugh could prove each and every one of the allegations he offers. Defendants’ principle preliminary objection, then, is in the nature of demurrer. A demurrer admits every well-pleaded material fact set forth in the pleadings to whichit is addressed as well as all reasonably-deducible inferences, but not conclusions of law. Inorder to sustain a demurrer, the Court must find that the law will not afford plaintiff any recoveryon the strength of the pleaded facts.
See, e.g., National Recovery Systems v. Frebraro
, 430 A.2d686 (Pa. Super. Ct. 1981). The standard is whether the complaint states a claim for relief under any theory of law.
Morley v. Gory
, 814 A.2d 762 (Pa. Super. Ct. 2002). Here, Stambaugh’samended complaint plainly does not.With regard to fundamentals of the claims Stambaugh attempts to plead, any action basedon the flow of surface waters must begin with the recognition that “[t]he law of surface waters inthis jurisdiction remains essentially unchanged from its origins in the maxim, ‘Water must flowas it is wont to flow.’”
 Laform v. Bethlehem Township
, 499 A.2d 1373, 1377 (Pa. Super. Ct.1985). As explained below, the rules applicable to this dispute distill into a single—andsimple—proposition: “Generally, damage to the lower landowner’s property from surface water as a result of the upper landowner’s use of his property is not actionable.”
Olexa v. De SalesUniv.
, 78 Pa. D. & C. 4th 171, 186 (Lehigh County, Dec. 13, 2005).
 
 
 As an initial matter, it is well established that, “being the owners of the upper land, [theShafers] have the right to have the water flowing from their land discharged in a natural water course upon the lower (plaintiff’s) land.”
 Beals v. Robertson
, 48 A.2d 56, 57 (Pa. Super. Ct.1946) (parenthetical in original). More precisely, “[b]ecause water is descendible by nature, theowner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior.”
Sweigart v. Burkholder 
, 36 A.2d 181, 183 (Pa. Super. Ct. 1944).Because the Shafers, as owners of the high ground, enjoy the right to natural discharge of storm waters across lower land, Stambaugh must, in order to prevail, allege and prove that theShafers somehow altered the flow of waters from their natural course. Stambaugh, however,offers no allegations regarding the natural and historic flow of waters on and from the Shafers’ property, and no allegations regarding the manner in which that flow now differs from its naturaland historic character. Because he has not pleaded facts that, when taken as true, establish anychange to the natural and historical flow of waters, let alone an actionable change, the Shafers’right of discharge prevails and Stambaugh’s amended complaint must be dismissed.Even if, however, Stambaugh pleaded facts sufficient to establish that the flow of waterson and from the Shafers’ property is today different in quantity or quality than it had been in the past, an altered flow of waters is, while essential to his claim, not itself sufficient to entitleStambaugh to any relief. In addition to establishing an alteration to the natural flow of waters(which, as noted, he does not plead), Stambaugh must further allege facts sufficient to establishthat the flow was altered by
impermissible
means. In other words, Stambaugh must allege an
actionable
alteration.Before considering what types of circumstances might be actionable in terms of water flow visited upon the lower land, it is important to appreciate the nature and scope of the property rights attaching to the high land. In terms of water flow, the law has long held that theowner of higher land “may make improvements upon his own land . . . grade it and build upon it,without liability for any incidental effect upon an adjoining property even though there may

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