206 A.3d 1148
Pa. Super. Ct.2019Background
- Kowalski owns downhill property that was intermittently flooded after TOA developed the 28-acre Liberty Hills condominium (built on former Kenny Farm) with impermeable surfaces and a detention pond; prior owner Hoffman had buried a natural intermittent stream (installed 12–24" pipes) decades earlier.
- Hoffman observed flooding when Liberty Hills construction began in 2007 and complained to TOA; TOA had promised in a Developer’s Agreement to replace or parallel larger pipes if downstream culvert was overwhelmed.
- Kowalski bought the property at sheriff’s sale in March 2012, sued TOA and the Condo Association in July 2013 alleging breach of contract, negligence, trespass, nuisance, and Storm Water Management Act violations; the Condo Association cross‑claimed indemnity against TOA.
- Trial court granted summary judgment for defendants on breach of contract and negligence (statutes of limitations), entered nonsuit on several counts, but on post‑trial reversed nonsuit as to trespass and entered judgment for Kowalski against the Condo Association for nominal damages ($1).
- On appeal the Superior Court affirmed the statutes‑of‑limitations rulings for contract and negligence, held the surface‑water problem constituted a continuing trespass, found the Condo Association liable as owner of the stormwater common elements, held TOA not liable on the continuing‑trespass claim (for damages in this suit) because TOA’s conduct predates the limitations window, vacated nominal damages and remanded for a new trial on compensatory damages and the Condo Association’s indemnity cross‑claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are breach of contract and negligence time‑barred? | Kowalski: continuing wrongful discharges create new accruals with each flood; suit filed within two/four years of his purchase. | Defendants: harm was discovered in 2007; statutes expired before 2013 suit. | Held: Claims barred. Contract accrued in 2007 (four‑year limit); negligence accrued in 2007 (two‑year limit). |
| Was TOA liable on breach of the Developer’s Agreement? | Kowalski: TOA promised to replace/install parallel pipe and breached; successor (Kowalski) can enforce third‑party beneficiary rights. | TOA: any breach occurred long before and is time‑barred; remediation occurred earlier. | Held: Contract claim time‑barred; no relief. |
| Nature of the trespass — permanent or continuing? | Kowalski: intermittent flooding after storms means continuing trespass so successive accruals. | Defendants: if a trespass, it was permanent from development. | Held: Continuing trespass (intermittent, storm‑dependent flooding). |
| Which parties are liable and what damages are recoverable? | Kowalski: both TOA and Condo Association are liable; seeks compensatory damages to install new storm system. | Condo Assn: as successor it did not cause original construction; TOA designed/built system and should bear responsibility; statute bars TOA for this suit period. | Held: Condo Association liable as owner of stormwater common elements and having knowledge failed to abate; TOA not liable for damages in this suit because its conduct occurred outside the two‑year limitations window for continuing‑trespass damages; nominal damages vacated — remand for trial on compensatory damages and Condo Association’s indemnity cross‑claim. |
Key Cases Cited
- Youst v. Keck's Food Serv., Inc., 94 A.3d 1057 (Pa. Super. 2014) (explains common‑enemy rule and limits on upper‑landowner liability for surface water)
- Laform v. Bethlehem Twp., 499 A.2d 1373 (Pa. Super. 1985) (artificial diversion or unreasonable increase in quantity/quality creates liability)
- Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44 (Pa. 1964) (distinguishes permanent vs continuing trespass and accrual)
- Cassel‑Hess v. Hoffer, 44 A.3d 80 (Pa. Super. 2012) (factors for permanent vs continuing trespass and standing)
- Miller v. Stroud Twp., 804 A.2d 749 (Pa. Cmwlth. 2002) (continuing trespass theory applied to intermittent sanitary/sewer‑related contamination)
- Rau v. Wilden Acres, Inc., 103 A.2d 422 (Pa. 1954) (developer liability when drainage is concentrated and diverted by artificial channels)
- Leedom v. Spano, 647 A.2d 221 (Pa. Super. 1994) (accrual rule for contract claims)
- Lake v. Hankin Group, 79 A.3d 748 (Pa. Cmwlth. 2013) (discusses possible liability of former owner/developer for continuing impacts of stormwater system)