243 A.3d 234
Pa. Super. Ct.2020Background:
- Appellants (Elaine and Eric Long) bought a Foxwood home in 2003 adjacent to property owned by James and Delores McFarland; Delores later died and George Reccek is the executor and respondent.
- A line of mature trees on the McFarland property allegedly grew from ~8–10 feet in 2003 to over 55 feet, with branches/needles and roots causing repeated damage (pool, garden, patio, fence) and a 2016 injury when a branch fell on a plaintiff.
- Appellants admit they first noticed encroaching branches in 2009; further incidents included a 2018 limb that damaged their fence.
- Appellants sued in July 2018 for trespass, nuisance, negligence (against Reccek) and breach of contract (HOA); negligence and breach-of-contract claims were dismissed earlier.
- Reccek moved for summary judgment in Aug. 2019 asserting the two-year statute of limitations began in 2009; the trial court granted summary judgment Oct. 23, 2019 on SOL grounds.
- The Superior Court reversed and remanded, holding the alleged tree encroachment constituted a continuing trespass/nuisance so the SOL did not bar the action; the court did not resolve the alternative damages argument and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations bars trespass and nuisance claims | Trees constitute a continuing trespass/nuisance so SOL does not run from initial encroachment | Trees are a permanent condition; SOL began in 2009 when plaintiffs first noticed encroachment | Court held the trespass/nuisance were continuing; SOL did not bar claims; reversed SJ |
| Whether trial court ignored photographic/expert proof of ongoing trespass | Plaintiffs say photographs and expert reports show recurring, unpredictable damage supporting continuing cause of action | Defendant emphasizes ascertainable damages and SOL timing | Court reversed on continuing-nuisance basis and did not resolve evidentiary-credit issues; remanded for further proceedings |
| Whether summary judgment foreclosed injunctive relief for ongoing trespass | Plaintiffs argue dismissal precluded their ability to seek injunctive relief for repeated future incursions | Defendant argues claims were time-barred so relief unavailable | Court’s reversal preserves plaintiffs’ ability to pursue injunctive and other relief on remand; trial court may address remedies later |
Key Cases Cited
- Kowalski v. TOA PA V, L.P., 206 A.3d 1148 (Pa.Super. 2019) (treated recurring water flow as a continuous trespass so SOL did not start at development)
- Cassel-Hess v. Hoffer, 44 A.3d 80 (Pa.Super. 2012) (distinguishes permanent from continuing nuisance; SOL runs at inception for permanent nuisances)
- Jones v. Wagner, 624 A.2d 166 (Pa.Super. 1993) (characterizes overhanging branches/roots as a continuing trespass that can recur and warrants non-monetary relief)
- Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44 (Pa. 1964) (articulates factors for determining permanent vs. continuing nuisance)
- Nicolaou v. Martin, 195 A.3d 880 (Pa. 2018) (summary judgment standard and appellate review principles)