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2008-SU-4141-07 versus JAMES SHAFER and ANN SHAFER Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY 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 amended complaint, 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 all vegetation 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 quality and quantity of storm water that recently flowed on and from the Shafers’ property. Stambaugh also 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’s expressed concerns. Indeed, Stambaugh concedes the effectiveness of steps the Shafers took in response to his concerns. See Amended Complaint at ¶ 14. Nevertheless, Stambaugh remains unsatisfied and now seeks injunctive relief and damages.
The Shafers’ preliminary objections necessarily assume the truth of all facts set forth in Stambaugh’s amended complaint. Even accepting Stambaugh’s allegations as true, Stambaugh’s complaint fails to state a claim on which relief can be granted (see Section II.A, infra), seeks relief that is unavailable (see Section II.B, infra), fails adequately to specify his monetary damages (see Section II.C, infra), and depends on inadmissible evidence of settlement negotiations between the parties (see Section II.D, infra). The Shafers’ preliminary objections should be sustained and Stambaugh’s amended complaint dismissed in its entirety. II. Argument A. Stambaugh’s Complaint Fails to State a Claim upon Which Relief May Be Granted
Despite its extensive allegations, Stambaugh’s amended complaint fails to state any claim upon 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 which it is addressed as well as all reasonably-deducible inferences, but not conclusions of law. In order to sustain a demurrer, the Court must find that the law will not afford plaintiff any recovery on the strength of the pleaded facts. See, e.g., National Recovery Systems v. Frebraro, 430 A.2d 686 (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’s amended complaint plainly does not. With regard to fundamentals of the claims Stambaugh attempts to plead, any action based on the flow of surface waters must begin with the recognition that “[t]he law of surface waters in this jurisdiction remains essentially unchanged from its origins in the maxim, ‘Water must flow as 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—and simple—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 Sales Univ., 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, [the Shafers] 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, the owner 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 the Shafers 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 natural and historic character. Because he has not pleaded facts that, when taken as true, establish any change 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 waters on 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 entitle Stambaugh 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 establish that 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 the owner 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 3
result some additional flow of surface water thereon.” Rau v. Wilden Acres, Inc., 103 A.2d 422, 423 (Pa. Super. Ct. 1954). As the Superior Court more recently reiterated: [N]ot only is an owner of higher land under no liability for damages to an owner of lower land caused by water which naturally flows from the one level to the other, but he can . . . improve his land by regrading it or erecting buildings thereon, without legal responsibility for any consequent diversion of surface waters from his property to that of adjoining owners, it being recognized that changes or alterations in the surface may be essential to the enjoyment of his property. Laform v. Bethlehem Township, 499 A.2d 1373, 1378 (Pa. Super. Ct. 1985) (emphasis added) (quoting Chamberlin v. Ciaffoni, 96 A.2d 140, 142 (1953)). With regard to actionable flow, our Supreme Court instructs, “[i]t is only where the owner of the higher land is guilty of negligence which causes unnecessary damage to the servient owner, or where, by an artificial channel, he collects and discharges surface waters in a body or precipitates them in greatly increased quantities upon his neighbor, that the latter may recover for any damage thereby inflicted.” Leiper v. Heywood-Hall Construction Co., 113 A.2d 148, 149 (Pa. 1955) (emphasis added); see also Piekarski v. Club Overlook Estates, Inc., 421 A.2d 1198, 1204 (Pa. Super. Ct. 1980) (same). For over a century, our courts have recognized this “universal rule of the common law, and nowhere is it more strictly enforced than in Pennsylvania.” Strauss v. Allentown, 63 A. 1073, 1073 (Pa. 1906). As the Supreme Court recently—and succinctly—summarized, “the owner of upper land is not a guarantor against damage caused by surface water run-off through a natural course to lower land.” Shamnoski v. PG Energy, 858 A.2d 589, 599 (Pa. 2004). Stambaugh’s amended complaint contains no allegations of negligence on the part of the Shafers. It likewise presents no allegations charging the Shafers with having altered the flow of waters from their natural course by means of an artificial channel. Thus, in addition to his fundamental failure to allege facts establishing any alteration of the natural and historic flow of waters on and from the Shafers’ property, Stambaugh fails to allege facts showing that the
Shafers effected an alteration through actionable means. For both reasons, Stambaugh’s amended complaint fails, as a matter of law, to allege facts sufficient to entitle him to relief. Accordingly, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), defendants demur on the basis that, under governing law, the amended complaint fails to state a claim upon which relief may be granted. Because Stambaugh fails to allege facts that, if proven, would support relief, the amended complaint should be dismissed in its entirety. B. Stambaugh’s Complaint Fails to State Facts Capable of Supporting the Demand for Injunctive Relief
Notwithstanding Stambaugh’s recitation of the facts that precipitated this dispute, Stambaugh now concedes that steps the Shafers took at his request to manage water flows have “appeared to catch, hold and contain the storm water runoff from Defendants’ property.” Amended Complaint at ¶ 14. In short, Stambaugh pleads that the water flow concerns upon which this action is premised have been remedied during the time between filing of the original complaint and filing of the amended complaint. Before considering how the alleged remedy impacts Stambaugh’s requests for injunctive relief, there exist two threshold bars to his requests for equitable relief. First, as a matter of time-honored equity jurisprudence, permanent injunctive relief is available only where “such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.” Soja v. Factoryville Sportsmen’s Club, 522 A.2d 1129, 1131 (Pa. 1987); see also Berger v. West Jefferson Hill Sch. Dist., 669 A.2d 1084, 1086 (Pa. Commw. Ct. 1995) (“final injunction is warranted if no adequate remedy at law exists for a legal wrong”). The applicable rule is but one concrete consequence of the venerable maxim that “where injury can be redressed in an action at law equity will not interfere.” Berkey v. Berwind-White Coal Mining Co., 69 A. 329, 331 (Pa. 1908). Here, as evidenced by the damages claims included within the amended complaint, the law provides an ample remedy in the event Stambaugh incurs a future injury associated with failure of the admitted remedy. Second, equally applicable to Stambaugh’s requests for injunctive relief, “[m]ere anticipation of damage or injury in the future is not sufficient to warrant the court in granting an
injunction; the plaintiff must make out a case [of] clearly established danger and not mere apprehension of damages.” Berkey, 69 A. at 331 (Pa. 1908) (emphasis added). Indeed, “[i]f the injury be doubtful, eventual, or contingent, equity will not grant relief[.] The fact that it might possibly work injury is not sufficient. Moore v. Keystone Macaroni Mfg. Co., 82 Pa. D. & C. 412, 417 (Lebanon County, January 26, 1952); see also Locust Club v. Hotel & Club Employees’ Union 155 A.2d 27, 32 (Pa. 1959) (“injunction will not issue in the absence of a clear right thereto); Straup v. Times Herald, 423 A.2d 713 (Pa. Super. Ct. 1980) (same) (overruled on other grounds by Kreutzer v. Monterey County Herald Co., 747 A.2d 358 (Pa. 2000). Here, Stambaugh’s request for injunctive relief is exclusive premised on anticipation of future injury that is doubtful, eventual, and contingent. See Amended Complaint at ¶¶ 16 (alleging that the remedy may “eventually fail”); 17 (alleging that the Shafers or their successors may “fail to properly maintain” the remedy); 23 (“potential ongoing and continuing nature of the harm”). Although general principles governing the availability of injunctive relief are sufficient to foreclose its availability in this case, the principles specifically applicable to the water flow issues in this case establish that an injunction may not issue where, as here, “the conditions complained of by plaintiff [have] been remedied.” Chamberlin v. Ciaffoni, 96 A.2d 140, 141 (Pa. Super Ct. 1953) (refusing to enjoin landowner from water discharge where evidence established that the problem was remedied by controls). In Chamberlin, the defendant established at trial that the water flow issues that led plaintiff to seek injunctive relief had been remedied. Here, however, there is no need for the Shafers to prove the fact of remedy at trial. Because Stambaugh alleges the fact of remedy in his amended complaint, the issue may be fully resolved at the preliminary objection stage. Accordingly, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), defendants demur to Stambaugh’s demand for injunctive relief on the basis that, under governing law, injunctive relief is unavailable on the strength of the facts set forth in the amended complaint. Because Stambaugh pleads facts establishing that his water flow concerns, whether actionable or
not, have been remedied, the requests for injunctive relief in Counts I and II of the amended complaint should be dismissed and/or stricken. See Amended Complaint at ¶¶ 18-26. C. Stambaugh’s Demands for Monetary Damages Are Insufficiently Specific to Conform to Law or Rule of Court
In Count I, Stambaugh asks the Court to “award compensation to Plaintiff for Plaintiff’s labor in repairing the previous damage.” Amended Complaint at 8. Although the pertinent facts lie within his exclusive knowledge and control, Stambaugh provides no formula for the manner in which such damages are to be ascertained and calculated. For example, Stambaugh does not assert whether the compensation he seeks is to be determined by reference to the value of the time he might otherwise have dedicated to the pursuit of his profession, or by reference to the presumably lesser amount for which he could have obtained the yard work in the service market. More fundamentally, Stambaugh does not plead the number of times he claims he performed compensable mulch cleanup work, the specific dates on which he claims to have performed that work, or the amount of time he dedicated to each discrete cleanup effort. In Count II, Stambaugh demands an award of “special and general damages in favor of Plaintiff . . . in amounts according to proof at trial.” Id. at 9-10. The “special and general damages” to which Stambaugh purports to be entitled are left utterly undefined both in terms of their nature and in terms of their amount. As such, Count II provides the Shafers with no notice as to the nature of the damages claim they must prepare to defend. 1. Compensatory/General Damages
Pennsylvania Rule of Civil Procedure 1019(f) states that “[a]verments of time, place and items of special damage shall be specifically stated.” Pa. R. Civ. P. 1019(f). As noted above, in his Count I demand for compensatory damages, Stambaugh fails to plead the number of compensable events, the dates on which they occurred, or the time he devoted thereto. The same is true with regard to Stambaugh’s Count II demand for general damages, which, being by definition “damages [for] the usual and ordinary consequences of the wrong,” are presumed to be damages of a character similar to those denominated as compensatory damages in Count I. As
such, both the Count I demand for compensatory damages and the Count II demand for general damages fail for lack of specificity under Rule 1019(f) and must be stricken and/or dismissed. Stambaugh’s demands for compensatory and general damages fail because they are not pleaded with the requisite “degree of particularity to which the facts of the case are reasonably susceptible [and which would] enable the [Shafers] intelligently to prepare for trial.” Snyder v. The Bell Telephone Company of Pennsylvania, 1963 Pa. D. & C. 2d 128 (Dauphin County, Nov. 18, 1963). As a matter of law, “[g]eneral allegations of indebtedness, lumping charges and gross sums intended to cover and include different kinds of loss and damages, are not sufficient; the complaint should, whenever possible, show how the items of damage claimed are ascertained.” Id. (emphasis added). Here, Stambaugh does not identify the means according to which compensatory and general damages are to be calculated, let alone identify the amount of such damages. Insofar as the damages amount is a mere calculation involving the number of compensable events, the time dedicated to each event, and the rate applicable thereto—facts that lie within Stambaugh’s exclusive knowledge—the amount of damages is “reasonably susceptible” to being articulated with specificity at this stage. Absent such information, the Shafers are unable “intelligently to prepare for trial,” e.g., unable to determine the extent to which they need invest in a defense to Stambaugh’s demands for compensatory and general damages, in addition to a defense to the more onerous requests for injunctive relief. The defense investment would, for example, be considerably lower if Stambaugh seeks recovery for labor at the rate a local teenager would charge to provide mulch cleanup than it would be in the event Stambaugh seeks to recover his personal attorneys fees for the work. 2. Special Damages
Pennsylvania Rule of Civil Procedure 1019(f) requires that “items of special damage . . . be specifically stated.” Pa. R. Civ. P. 1019(f). With regard to Stambaugh’s Count II demand for special damages, courts have defined special damages as “those that are not the usual and ordinary consequences of the wrong done but which depend on special circumstances.” Hooker 8
v. State Farm Fire & Casualty Co., 880 A.2d 70, 77 (Commw. Ct. 2005). In application, Rule 1019(f) prevents special damages from being awarded “unless special facts giving rise to them are averred.” Hooker, 880 A.2d at 70. Here, Stambaugh alleges no facts, special or otherwise, in support of his demand for special damages and, for that reason, such damages are unavailable and the demand must be stricken and/or dismissed. * * *
Accordingly, pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2), the monetary damages demands made in Counts I and II of Stambaugh’s amended complaint fail to conform to law and/or rule of court and, for that reason, should be stricken and/or dismissed. D. Motion to Strike Allegations Pertaining to the Substance of Settlement Negotiations
Plaintiff’s amended complaint is replete with allegations reciting the substance of conversations between the parties, and actions taken by the Shafers following those conversations, regarding the subject matter of Stambaugh’s suit. See id. at ¶¶ 7, 8, 10 and 12. The amended complaint characterizes those conversations and actions as having been undertaken with the intention, and for the purpose, of ameliorating Stambaugh’s concerns and resolving the dispute between the parties. Such allegations, however, even accepted as true, constitute evidence of “conduct or statements made in compromise negotiations.” Pennsylvania Rule of Evidence 408(a). Being evidence of compromise negotiations, the conduct and statements at issue are inadmissible. See id. Accordingly, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2), Stambaugh’s amended complaint fails to conform to law or rule of court and, for that reason, the Court should order the allegations pertaining to conversations had, and actions taken, in an attempt to resolve the dispute stricken from Stambaugh’s amended complaint. III. Conclusion For all the foregoing reasons, the Shafers respectfully request that the Court dismiss this action in its entirety on the basis of (1) the amended complaint’s failure to state a claim on which relief may be granted (see Section III.A, supra), and/or (2) the combined effect of the amended
complaint’s inability to support injunctive relief (see Section III.B, supra) and the insufficient specificity with which it pleads a claim for damages (see Sections III.B and III.C, supra). Alternatively, the Shafers respectfully request that the Court issue an Order: • • • • Dismissing Count I for failure to state a claim on which relief may be granted (see Section III.A, supra); Dismissing Count II for failure to state a claim on which relief may be granted (see id.); Dismissing and/or striking Stambaugh’s Count I and II demand for injunctive relief (see Section III.B, supra); Dismissing and/or striking Stambaugh’s Count I and II demand for an award of unspecified compensatory/general damages (see Section III.C, supra); Dismissing and/or striking Stambaugh’s Count II demand for an award of unspecified special damages (see id.); and/or Striking from the amended complaint all allegations of statements made and conduct undertaken during the course of compromise negotiations (see Section III.D, supra).
The Shafers further request that the Court issue an Order awarding the Shafers costs of suit together with any and all such other relief as Court deems justice to require.
Dated: December 21, 2009 CGA Law Firm
Eric Suter, Esq. (No. 202017) 135 North George Street York, PA 17401 firstname.lastname@example.org Tel: 717-848-4900 Fax: 717-843-9039 Attorney for the Shafers
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CIVIL ACTION – EQUITY STEVEN STAMBAUGH, Plaintiff, No. 2008-SU-4141-07 versus JAMES SHAFER and ANN SHAFER Defendants. CERTIFICATE OF SERVICE I, Eric Suter, hereby certify that on this 21st day of December 2009 I caused to be served on the person(s) listed below, by first class mail postage prepaid at York, Pennsylvania, the foregoing Memorandum of Law in Support of Preliminary Objections to Amended Complaint: Steven D. Stambaugh, Esq. Stambaugh Law, P.C. 2121 South Queen Street York, PA 17403 717.846.1400 Pro se
Eric Suter (No. 202017) CGA Law Firm 135 North George St. York, PA 17401 P: 717.848.4900 F: 717.843.9039 Attorney for the Shafers
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