CASSEL-HESS v. Hoffer
44 A.3d 80
| Pa. Super. Ct. | 2012Background
- Appellant sues Appellees for trespass and nuisance related to flood waters and a mosquito-infested lake near 4507 North Front Street, Harrisburg, after wetlands were allegedly filled during construction (2003) and the area subsequently flooded.
- Appellees completed construction by 2007; by 2008–2009, neighboring and Appellant properties experience continued standing water and mosquitoes, allegedly harming Appellant's property value.
- Appellant acquired the 4601 North Front Street property in April 2008 by executor's deed; the deed traces back to her late husband who owned the property before their marriage.
- Appellees move for summary judgment arguing (a) standing issues due to a permanent standing-water condition existing before Appellant's ownership, (b) statute of limitations, and (c) that a prior related wetlands-filling case undermines Appellant's claims.
- Appellant cross-moves for summary judgment, arguing collateral estoppel from a related case finding Appellees liable for flooding a neighboring property.
- Trial court grants summary judgment to Appellees on standing and nuisance but dismisses nuisance and leaves trespass unresolved; the matter is appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nanty-Glo applicability to summary judgment | Cass-Hess argues Nanty-Glo bars reliance on oral testimony for summary judgment. | Hoffer contends Nanty-Glo does not bar summary judgment when opposing party admissions are used. | Nanty-Glo does not bar; deposition admissions support summary judgment. |
| Standing for trespass vs nuisance | Cass-Hess contends she has standing to sue for trespass as owner/occupant with an ongoing injury. | Hoffer asserts standing is lacking because the permanent condition predated Appellant's ownership. | Standing for trespass questioned; nuisance standing not dispositive; trespass remanded for factual determination. |
| Permanent vs continuing trespass and SOL | Cass-Hess treats the intrusion as continuing trespass with damages ongoing. | Hoffer argues permanency of the lake means one-time action and two-year SOL applies for nuisance, time-barred. | Court concludes permanent change; nuisance SOL expired; trespass not resolved and remanded. |
| Nuisance timeliness | Cass-Hess seeks nuisance relief despite potential late filing. | Hoffer asserts nuisance claim time-barred since formation in 2005 with damages continuing. | Nuisance claim time-barred; affirmed dismissal of nuisance. |
Key Cases Cited
- Beach Street Corp. v. A.P. Construction Co., 658 A.2d 379 (Pa. Super. 1995) (permanent trespass; right to sue belongs to possessor at time of trespass)
- Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44 (Pa. 1964) (distinguishes permanent change from continuing trespass; permanency yields single action)
- Graybill v. Providence Twp., 593 A.2d 1314 (Pa. Cmwlth. 1991) (holding of continuing trespass where multiple incidents defeat single-damages calculus)
- Cass v. Penna. Co., 28 A. 161 (Pa. 1893) (permanent nuisance; SOL begins at formation)
- Nanty-Glo v. American Surety Co., 163 A.2d 523 (Pa. 1932) (rule limiting use of oral testimony in summary judgments)