267 A.3d 1235
Pa. Super. Ct.2021Background
- Ronald and Linda Morgan own property on the south side of Label Lane; Millstone owns uphill property with a paved lot and installed a sluice pipe under Label Lane in ~2005 that diverts runoff to the Morgans’ side.
- After Millstone’s work, runoff washed out the Morgans’ gravel berm repeatedly (8–10 times) and, during an unusually heavy storm on August 14, 2018, flooded the Morgans’ garage and woodshop causing substantial damage.
- The Morgans sued (Aug. 6, 2019) for continuing nuisance and continuing trespass seeking damages and a permanent injunction prohibiting Millstone from discharging runoff onto the south side of Label Lane.
- Non-jury trial held Oct. 29, 2020; on Nov. 24, 2020 the trial court awarded the Morgans $12,360 and permanently enjoined Millstone from discharging runoff that flows onto the Morgans’ property.
- Millstone appealed before formal judgment but invoked Pa.R.A.P. 311(a)(4)(ii) to challenge the injunction; the Prothonotary entered judgment for damages after the appeal notice was filed.
- Superior Court exercised jurisdiction over the injunction under Rule 311(a)(4)(ii) (injunction immediately appealable because it changed the status quo and was effective before final order) and over damages issues to the extent final judgment later entered; some issues were waived for failure to file post-trial motions.
Issues
| Issue | Plaintiff's Argument (Morgans) | Defendant's Argument (Millstone) | Held |
|---|---|---|---|
| 1. Applicability of laches to injunctive claim | Laches does not bar injunction because the harm is a continuing nuisance/trespass; timely filed after 2018 flood | Morgans unreasonably delayed: knew of drainage since ~2005 and waited until 2019 | Held for Morgans — laches inapplicable to continuing nuisance/trespass; injunction may issue |
| 2. Defenses of excuse / de jure authority / implied license | Borough suggestion to install pipe does not absolve Millstone of liability for creating a nuisance; permission does not preclude inquiry into nuisance | Millstone relied on borough manager’s suggestion and municipal acquiescence to justify its drainage design | Held for Morgans — municipal suggestion does not immunize Millstone; liability still hinges on whether defendant created nuisance and exercised due care |
| 3. Equitable estoppel / implied waiver | Morgans did not induce Millstone; lack of direct complaints to Millstone does not estop Morgans | Millstone says Morgans’ silence and complaints to borough (not Millstone) permit estoppel/waiver | Held for Morgans — Millstone failed to show inducement, justifiable reliance, or prejudice needed for estoppel/waiver |
| 4. Permanent injunction adequacy / necessity (whether damages suffice) | Money damages are inadequate because the trespass/nuisance is continuing and will recur; injunction needed to prevent future harm | Damages would be adequate; injunction inappropriate without explicit findings on adequacy and necessity | Held for Morgans — trial court made sufficient factual findings; continuing nature of harm makes damages inadequate and supports permanent injunction |
Key Cases Cited
- Youst v. Keck’s Food Service, Inc., 94 A.3d 1057 (Pa. Super. 2014) (artificial diversion of surface water creating private nuisance can justify abatement and injunction)
- Chalkey v. Roush, 805 A.2d 491 (Pa. 2002) (post-trial motions required to preserve most claims after bench trial; equity actions not exempt)
- Matenkoski v. Greer, 213 A.3d 1018 (Pa. Super. 2019) (decision after non-jury trial not final until reduced to formal judgment; Rule 311 exceptions analyzed)
- Thomas A. Robinson Family Unlimited P’ship v. Bioni, 178 A.3d 839 (Pa. Super. 2017) (explains Rule 311(a)(4)(ii) purpose — immediate review of new injunctions effective before final order)
- Hostetter v. Sterner’s Grocery, Inc., 134 A.2d 884 (Pa. 1957) (laches does not bar enjoining a continuing nuisance)
- Smith v. Bell Tel. Co. of Pa., 153 A.2d 477 (Pa. 1959) (continuing nuisance doctrine allows successive actions while nuisance continues)
- PA Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008 (Pa. Super. 2015) (elements and standard for permanent injunction; damages must be inadequate)
- Kowalski v. TOA PAV, L.P., 206 A.3d 1148 (Pa. Super. 2019) (distinguishing permanent alteration to land from intermittent, unpredictable floods that constitute a continuing trespass)