*1 associations, . . . “disruption employment, curtailment Common- and the creation of public obliquy, anxiety,” to Mitchell, v. 561, 372 wealth 472 Pa. at A.2d at supra, attempts Rule to. limit. The Commonwealth after complaint could have or withdrawn dismissed juvenile legal to court and removed reinstated appellee was he adult him when was certified to proceedings against so, However, chose to do now be they and will court. during complaint which the remained charged days with the viable, juvenile time was court. appellee exclusive of the Therefore, during which this com- periods we hold tacked to determine the amount of plaint existed shall be trial speedy under the rule. passed time which had juve- appellee’s arrest and transfer period between the period May from eighteen days, nile court involved court, was certified criminal day appellee Septem- until the Petition Dismiss on filing appellee’s of time days. Together, was 114 amount ber Therefore, days. period appel- to the run was applicable filed, granted. petition prematurely improperly lee’s remanded for trial. Reversed and A.2d WADE, Wade, Jr. and Audra his wife Furman COMPANY, corporation J. & SONS S. GROVES Jane Williams.
Appeal of S. J. GROVES & SONS COMPANY. Pennsylvania.
Superior Court of Argued Nov. 1979.
Filed Jan. *3 Keller, appellants. Washington,
Charles C. Berman, Pittsburgh, appellees. Alan CERCONE, Judge, President and MONTGOMERY Before LIPEZ, JJ. CERCONE, Judge: President 15, 1978order of the September from the appeal
This County adjudged Pleas of Greene Court Common liable for jointly severally the defendants negligence. as a result of their plaintiffs’ property caused to partly reparable partly perma- The lower court found awarding damages for the cost of re- injury thereby nent value, depreciation respectively. and for the in market pairs This, awarded in the form of conjunction with interest which, up made the total “delay compensation,” *4 powers, judge, his the trial through equity the invocation of percent in acting equity, apportioned ninety as chancellor contractor-defendant, J. & against Company, S. Groves Sons landowner-defendant, Jane Wil- percent against and ten part, affirm in and vacate and part, liams. We reverse for the remand the remainder of the case to the lower court reasons set forth below. defendant, was the contractor re- Company,
The Groves portion the construction of a of Interstate sponsible for of Franklin Borough Waynesburg, 79 near the Highway In connection with its duties County. in Greene Township contract, Company this state road construction Groves under with Jack E. Williams Agreement” into a “Waste entered provided dumping large Williams which for and Jane dirt, commonly other material known rock and quantity Mr. and Williams. or fill on land of Mrs. The as waste the with gully fill was a natural area to be covered the running through it. The contour of existing water course like a bowl was wider at shaped this watershed bottom. The of the bowl is top top the and narrower at the Wade’s plaintiff property hundred above one feet the situated to west of the main bowl portion which is the lower and on its rim. Company the cover- agreement,
Pursuant to waste Groves 206,602 4 acres of square property ed feet or the Williams’ 124,000 fill yards May cubic between with top 1972. The fill extended to the rim of the February of, above, east directly in the section Wades’ bowl gully plain- In 46 foot to the east of filling residence. his fill in a fashion as sloped tiffs’ Groves such property, more draw toward the Wades’ house. pronounced create a water drainage problems This resulted serious water, mud, rained, large silt, when it amount Wades: newly and other debris washed down off of the stone filled their The backyard. section of the bowl and into Wades pipes and catch basins underground have installed several away property. the course of water from this Mr. divert neighbors done on Wade and his have bulldozer work have property continually contour of Williams’ maintain erosion sought adequate vegetation resistant on area. of both the repairs the waste defendant-contrac- apparently tor and the Wades been successful since the have damage further property indicates that no has evidence thereafter. occurred Wade, Furman Jr. and plaintiffs,
In June Wade, wife, brought equity against his an action in Audra damage Williams Company they Groves and Jane caused Wades’ negligently property. Plaintiffs *5 sought damages for both the cost of the repairs they have made and for the permanent diminution value of their addition, property. plaintiffs prayed injunctive In for relief seeking require the defendants to remove or otherwise the condition the land fill remedy prevent so as to further being plaintiffs’ waste from washed onto the land. Sitting jury, without a the trial court properly refused to grant injunctive relief since there was evidence that condition already had been substantially remedied. The court, however, trial did find both defendants and “jointly severally” $15,053.99, liable and awarded damages of included repair temporary costs for the injury, diminution in value permanent loss of the plaintiffs’ value of property, compensation” and “delay measured the amount of legal (6%) interest 7 years back to 1971. This total sum of damages was then apportioned by the trial judge per- ten cent against the landowner-defendant ninety percent against the This appeal contractor-defendant. follows by defendant, Company Groves alone.
In this appeal, appellant presents Groves four issues for (1) our review: whether the court below was correct in apportioning damages between defendants who are jointly liable; severally (2) whether the trial court erred in allowing “delay compensation” measured by rate legal (6%) interest from the time the unliquidated tort claim arose; (3) whether the trial correctly court included as part award, of the damage a bill which was made out to the plaintiffs’ neighbor assisting who was him in making re- pairs; whether the lower court properly allowed damages for the change plaintiffs’ market value of prop- erty in addition to damages repairs. for the cost of
I. Appellant’s argument first is that the lower court erred in apportioning damages percent against at ten defendant-ap pellee ninety percent against Williams and defendant-ap- appellee respect 1. Defendant Williams with to issue I of this opinion concerning apportionment damages, plaintiffs, while Mr. made Company having after a determination pellant Groves *6 were liable. jointly severally that such individuals originally court based this allocation of lower had Statute, Comparative Act Negligence on the Pennsylvania 7102, 28, 142, April P.L. added July of No. § 42 Pa.C.S. 10(89), (Supp. P.L. 202 No. § § 1980).2 However, filed an on the appellant exception Groves was in effect at the time this cause basis that the statute and, hence, improper was on which authority of action arose damages. of The trial noted apportionment to base court stating that that was correct in the statute appellant but, case, nevertheless, the court inapplicable present to the stand, by invoking let its the discre previous apportionment equity: tion of a chancellor in case is true Act had not been enacted when this It that arose, out, is correctly points as J. counsel S. Grove date, beyond September not retroactive its effective Lair, A.2d 1313. 1976. See Costa now, problem even we before us in And consider law, that, that there is no at equity, recognizing possibility made, are it could be we satisfied that the differentiation of the Court as chancellor is within the sound discretion in the only passive agent so. owner was do The land damages. the resulting causal connection of the acts and Wade, respect remaining appellees and Mrs. are the with to all issues. 10th, its 12th conclu- 2. The lower court found as follows in 11th and sions of law: Code) (Judicial upon imposes of Title de- 10. Section 7102 liable, severally liability jointly for the fendants are who proportion dollar awarded as in the of the total amount negligence causal to the ratio of amount of each defendant’s negligence against to all amount of causal attributed defendants recovery is allowed. whom Williams, her For the ratio of the amount of the defendant negligence negligence causal attributed to causal amount of resulting recovery against 10%, all whom allowed is defendants money judgment $1505.34. of in a total sum ' Groves, of its 12. For the ratio the amount the defendant negligence negligence of causal attributed causal amount resulting recovery against whom is allowed is all defendants 90% $13,448.05. money judgment in a total sum land for a who leased the company It was the construction huge quantities fill in the dirt spilled sum and who modest rains, for the stage and who set the slope, down the bursts, put in cloud amounts or whether in usual proper- plaintiff’s of silt and debris on substantial amount consent, lease, and who has a any nor gave who no ty involun- property made an not to have his residential right overflow of dirt from area for the tary cachement of I 79. construction the trial court’s conclusion. disagree
We
with
with,
this case is a
it is doubtful whether
begin
To
principles
at all.
equitable
one for the invocation
proper
that,
reality,
asserts
Along
appellant
these lines the
*7
the trial
at law for
because
trespass
was a
action
original
relief in its
prayer
equitable
the
court dismissed
injunction
the claim for an
decree nisi. The court dismissed
repaired
been
already
the condition had
on the rationale that
therefore,
which,
injunc
rendered the
possible
to the extent
position that when the
appellant’s
It is
unnecessary.
tion
dismissed,
automatically
action
became
the
equity claim
inapplica
law,
rendering equitable principles
thereby
one at
However,
juris
that
takes
acknowledge
equity
we
once
ble.
continues until
jurisdiction
that
controversy,
diction over a
have been decided.
controversy
in that
all
issues raised
826,
269, 272-73,
A.2d
Pa.
344
828
Spear,
McGovern v.
463
34, 49,
Pa.
209
(1975);
Sablosky,
Theatre Co. v.
418
Arcadia
375,
(1964).3
A.2d
382
McGovern,
applicable
general
be-
In
court said this
rule was
the
equitable
subject
that were the
cause the encroachments
continuing
at the time suit was institut-
claims were
encroachments
ed,
prior
despite
were removed
the fact that
the encroachments
272,
Maloney
See also
472
Nevertheless,
true that a chancellor in
surely
it is
he
discretion to do as
sees fit.4
has the boundless
equity
Rather,
equity
that a chancellor
must
it is well-settled
of law.
In
principles
and established
clearly
follow
fixed
Swift,
v.
Ass’n of Lancaster
First Fed.
& Loan
457 Pa.
Sav.
206, 210,
(1974),
Supreme
897
Court of
321 A.2d
maxim that
fol
age-old
“equity
enforced the
Pennsylvania
5
lows
law”:
has broad
equity
Even
a court
recognizing
suppose,
equity
that a court of
powers,
is a mistake
‘[i]t
law,
statute,
either common or
is amenable to no
(sic)
arbitrary legislator
every
assumes the rule
Blackstone’s Commentaries on
Law
particular case.’
(B.
1941).
rights
party
When the
of a
are
732
Gavit ed.
law,
principles
equity
defined
clearly
by
established
rights. Equity
should not
or unsettle those
follows
change
Hedges
County,
v. Dixon
150
14
the law.
U.S.
S.Ct.
Co.,
Bauer v. P. A. Cutri
Pa.
(1893);
37 L.Ed.
Brewing
v.
Waynesburg
Scott
(1969);
A.2d
Wilson,
Co.,
Abrahams
(1917);
473 J. A (1939); Pomeroy, see 2 297, A.2d 1016 3 Pa.Super. 134 (5th Symons 425 ed. S. Jurisprudence Equity § on Treatise 1941). compara law of that the new is clear case it present
In the of the statute’s because dispositive is not negligence tive court admits in Likewise, the lower as effect. prospective above, possibility would be no at law there opinion quoted its as apportioned case could damages in this that ,situation, then, equity In this attempted to do. trial court normal rule that where apply the law and must follow each defendant is liable liability, and several joint there is degrees damages regardless the entire amount 65, 62, Co., 121 Storage fault, v. Fenton Randall only derives apportionment 767, (1936), and 182 A. 768 under right to contribution statutory from the tortfeasor’s Incol Tortfeasors Act.6 Among Contribution the Uniform 79, 527, 539, (1977). A.2d 85 See Pa. 379 Ewing, 474 lingo Co., 978, F.Supp. Eng’r v. Buccioni also Greco (3d 1969); Hafer v. F.2d 87 Cir. (W.D.Pa.1967), aff’d 407 785, 295, (1968). Schauer, 289, 239 A.2d court’s appor that the trial argues Williams Appellee in the the law as articulated damages followed tionment of Torts, provides 433A which (Second) of § Restatement follows: Harm To Causes
Apportionment of two apportioned among to be for harm are (1) Damages where or more causes or, harms,
(a) there are distinct determining the con- basis for (b) there is a reasonable single harm of each cause to tribution apportioned cannot be other harm (2) Damages any harms. two or more among nor a neither distinct harms there were
In the case at bar the contribution of each determining basis for reasonable resulting harm of silt single single harm. cause to 142, 2, July § § No. Pa.C.S. P.L. 6. Act July (re-enactment (Supp.1980) P.L. § of the Act of 2083). § P.S. *9 Wades’ land was caused deposited upon the being and debris appellant Company. Williams and Groves by appellee jointly single injury. cause a of both combined to negligence The of any hypothetically separate portion nor specific part No or the other. In by caused one injury singularly the was 433A, (Second) Torts, the of illustration 4 to Restatement § coming water from the land land was flooded plaintiffs’ of A, fifty percent It was shown that B & C. of defendants ditch, B’s thirty percent A’s from ditch the water came from was a sufficient and from C’s. This twenty percent and an of apportionment on which to make reasonable basis percentages. enumerated in accordance with the damages appor to a situation in which points the illustration Whereas case is one in which present the proper, tionment cause ten Williams did not Appellee is not. apportionment percentage identifiable any reasonably nor other percent the Wades’ land. There deposited on the dirt or fill to determining the contribution of was no reasonable basis and, therefore, single cause to a harm each (Second) have Restatement apportioned.7 should not been Torts, 433A(2). § Qualls, 263 Pa. 397 A.2d Super. Lasprogata In appor (1979), recently addressed issue of this court rights it from the of contribution distinguished tionment indemnity: joint only contribution exists between right equally distributes the loss or tortfeasors. Contribution A prorata right his or her share. joint pay each tortfeasor imposed the entire loss is on one exists when indemnity have example, original wrongdoer may For an person. if treating physician right indemnity against resulting is held liable for original tortfeasor physician. that of the How- negligence his from both ever, brought separately are whenever two actions places the burden of here that the Restatement It should be noted party proving apportionment Restatement on the who seeks it. 433(B)(2). only appellee (Second) Williams not Not has § of Torts any indicating the record is devoid of evidence met this burden but (cid:127) apportionment. propriety of
475 part original of the on negligence acts identifiable apportionment treating physician, and the wrongdoer place take two causes should damages between the 639, A.L.R.3d case. See Annot. 8 we allow in the instant (1966). 641 (emphasis A.2d at 805
Id., Pa.Super. 397 at added). very we used a Lasprogata,
In
in
making
distinction
thereby
and
“joint
of the
tortfeasor”8
strict definition
term
an incon
joint
tortfeasors”
“apportionment
made
between
reason
terms.9
and their results are
sistency of
Where acts
results,
other
and
separation
from
acts
ably capable
Here, separa
apportioned accordingly.
should
“jointly”
acting
the two actors were
possible
tion is not
See, e.
v. A.
g.,
in
sense of
S.
the strict
that
term.
Shaull
Co.,
(1952)
York
Appellant’s “delay compensa the form of interest in awarding erred in “interest” simply applied the lower court Originally tion.” When Groves appellant sustained. to the remedial interest is not recovera however, the basis that on excepted, claims, the lower court in tort unliquidated ble on City Dist. of the of citing its error School acknowledged Maryland, of 346 Pa. Deposit v. & Co. Fidelity Carbondale that interest runs 491, proposition A.2d 279 31 Nevertheless, judge the trial from the time of verdict. only award to stand in the same decided to allow his interest compensation.” Ap “delay while it as reclassifying amount this is error. Groves asserts that pellant recently broached Pennsylvania of Supreme Court Bottling Marrazzo v. Nehi area of the law in Scranton 336, (1970) where it Co., 72, 74-75, 263 A.2d 337 438 Pa. stated: early in some cases
Although
language
there is
v.
477 (1894); A. 862 Act Co., 160 Pa. 28 Reading Terminal 381, 1, 12 781 and 6, 1859, P.S. Sm.L. § P.L. April § 12 P.S. § § the doctrine that: Court, however, developed has
This
tort,
unliqui-
and cases of
sounding
“. . . there are cases
of which the
only
principle
where not
damages,
dated
but where also the
compensation,
had is
is to be
recovery
value,
market
or other
measured
compensation can be
of the unintentional
are cases
standards. Such
definite
Into these
property,
etc.
destruction
conversion or
important
enter as an
may
of time
cases the element
factor,
fully compensated
will not be
plaintiff
receive,
property,
of his
but
only the value
unless he
be,
his loss.
as of the date of
it,
may
as
nearly
receive
as
damages,
allow additional
jury may
it is that the
Hence
interest,
time.
It is never
lapse
for the
the nature of
such,
right,
compensa-
matter of
but
nor as a
interest
interest affords the
which the rate of
delay,
tion for the
v. Citizens Natural Gas
fair
measure.” Richards
legal
37, 40,
(1889).
A.
Irvine v.
130 Pa.
Company,
Smith,
(1902);
v. Ebervale
The trial in Court, there Supreme interest and the awarding reason record for the trial court to fore, remanded the vacated and delay. of law as to the and conclusions findings make of fact to the trial court for an Likewise, the record we remand as well as responsibility delay, assessment of of “delay the amount computing and imposing basis for 10 delay relevant “All circumstances compensation.” following of the should be mindful remand the lower court On excerpt Marrazzo: from 478 Marrazzo,
must be
and
developed
analyzed.”
It should further be noted that Hill Inc. Bastin, (1971) 542 Pa. 276 A.2d does not change There, the matter. in an action for specific performance, court’s award of interest was affirmed. The lower with Supreme opinion quoted Court’s then a com- approval Superior McDermott, ment from the Court in McDermott v. 127, 130, A. Pa.Super. as being appropriate in cases: equity dealing
An examination of the cases
with the charge and
difficulties,
allowance of interest will
many
disclose
but
the decided trend of courts of law and courts of equity has
been ‘to break
hard and fast
away
charge
from
rules and
principles
allow interest
in accordance with
of equity,
* *
justice
accomplish
particular
order to
each
case’
found,
Unless a case be
which is a conclusive precedent,
way
safest
at the same time the fairest
for a court
is to decide
to
questions pertaining
interest
to a
according
(No.
Lehigh Valley
Company
2),
In Pierce v.
Coal
232 Pa.
(1911),
important
fault
lies with the
reason of an excessive and uncon-
demand,
required
protect
scionable
one which the defendant
against by litigation,
penalized
himself
he should not be
for the
plaintiff
required
pay damages
unwarranted conduct
delay
Bloom,
for the
in the settlement of the claim.’ Conover v.
(1921);
Compa-
479
dealing.
and fair
justice
consideration of
simple
plain
410,
III. Appellant next contends that the damage award im properly included a bill for the rental of a bulldozer which Jr., Mr. Wade and neighbor, King, his Harold used to cut a ditch across diagonally slope the face of on the Williams’ property prevent so as to more fill from washing down the King, hill. Harold Jr. owns the property between the Wil liams’ slope property. father, and the Wade Through his Sr., Harold King, who works for Harold Dulaney Lumber action, later, up after the accrual of the cause of whichever is award, the date of the verdict or decision. trial, plaintiff, and continues that offer in effect until commencement of award than 125 made. of settlement in a (e) award, but the offer is not If a damages percent defendant verdict or for [*] specified delay at decision, any [*] offer, accepted for the time sum with [*] exclusive of the court or the arbitrators shall not prior period and the [*] to trial makes prompt after the date the offer was plaintiff [*] damages cash [*] does not recover payment for a written offer delay, to the more 238(f) 12. Rule states as follows: (f) rule, pending If an action is on the effective date of this or if brought an action is after the effective on a date cause action date, prior delay which accrued to the effective for shall computed plaintiff complaint from the date files the initial or action, year from a date one after the accrual of the cause of or rule, from a date six months after the effective of this date whichever date is later. Jr. use of bulldozer from King, Harold secured Company, Together Furman Wade. plaintiff, on behalf Dulaney’s remedy fill worked on the site Kings Wade and King, Jr., for A bill made out to Harold problem. was $2,460.00 Dulaney’s. It of the bulldozer from rental therefore, K.” Appellant, “Paid. H. asserts marked bill trial to include this in its that it was error court the bill was plaintiff award of because *15 who a paid by party a third received allegedly incurred and the repairs. benefit from substantial steps by The court below stated that the remedial taken plaintiffs necessary appropriate and reasonably the “were an justifiable engi- and were ‘from under the circumstances ” standpoint.’ Appellant dispute Groves does neering a in which the that its caused situation such negligence fact Rather, Groves seeks necessary. was made expenditure concededly legitimate expense this payment avoid of to, allegedly paid by, bill made because the was out Jr., Wade, King, Equity, Jr. of Furman Harold instead however, regards g., Roomberg over form. See e. substance S., (E.D.Pa.1941); Re v. U. In McKeown’s F.Supp. (1919). Appellee A. Wade
Estate, 263 Pa.
believed,
he
testified,
apparently
and the lower court
that
Regardless
this
the
bill.
obligation
pay
incurred
King,
was
to Harold
Jr. or
obligation
whether this
owed
himself,
was
Mr.
by
the fact that it
incurred
Wade
Dulaney
negligence
as a
of the
is alone sufficient
result
defendants’
damages,
as to
the Wades’ burden
because
proof
meet
make,
the trial
reasonably
of fact could
court
finder
did,
damages
on
basis.
legal
assessment
See
Trovato,
(1975).
IV. final Appellant’s allegation of error is that the lower improperly court awarded for a reduction in the property fair market value of the in addition to for repairs. the cost of The lower court’s rationale doing so was the damages “partly reparable partly that were permanent.” injuries, For the remediable the court awarded $6,905.99 a sum of which represents repairs, cost of $5,250.00 the permanent injury, the court awarded represents depreciation in the fair market value of the property prior damage from its condition and its repairs condition after had been made. We affirm this portion holding. of the lower court’s trial,
At the Wades’ real appraisal expert, estate Mr. Fine, Julian testified the situation had that been corrected to a full “probably degree.” engineering Wades’ ex- pert, acknowledged Michael Sydlik, barring a tremen- dous or failure of the existing vegetation, cloudburst “most problem Finally, appellee is over.” Furman Wade himself has indicated that nor further trouble experi- Nevertheless, enced after 1975. Mr. Fine testified that a *16 prospective buyer who was informed of the of the history would less for the property pay property than he would willing pay, otherwise have been to due to the possibility, remote, albeit of slide and necessity another because of the regularly maintaining drainage pipes, of ditches and repair years. catch basins in over the In an attempt calculate how much a would buyer depreciate the value of the property, percent depreciation Mr. Fine arrived at a ten factor, depreciation which indicates total in the of amount $5,250.00 applied property when with a normal fair mar- $52,500.00. upon ket value Based this testimony, of the trial court stated as follows: case, early damage
In the instant caused by runoff is over and is well obviously fairly contained. However, change that does not the fact that the drainage field above is plaintiffs’ property permanently changed, permanently and must be considered as in a resulting
483 at which was fixed value, of the amount change of real Fine, well-recognized licensed a Julian $5250.00 be a and we believe to broker, which is unrebutted estate figure. founded correctly is “pure that contends Company
Appellant Groves
damages
that
position
appellant’s
It
is
speculation.”
fact,
were,
fully
reme-
reparable,
were fully
caused
be the sole
therefore,
repairs
should
died; and,
the cost
agree.
We cannot
damages.
measure of
that the
in this Commonwealth
is well-settled law
It
is the cost
property
damages
injury
measure
however,
where
reparable;
is
injury
where that
repairs
measure of dam
permanent,
is characterized
injury
in the fair market value
decrease
ages becomes the
Hayman
v.
& Good
Philadelphia
Club of
See Art
property.
922,
(1937);
v.
592,
Rabe
190 A.
man, 325 Pa.
257-58,
Co.,
62 A.
213 Pa.
Shoenberger Coal
102, 109
Philadelphia, 103 Pa.
v.
(1906);
City
Vanderslice
Inc.,
Lehigh
L.J.
Freight,
Acker v. All
(1883);
States
64, 68,
Humberg,
v.
180 Kan.
(1957).
also Foster
362-63
See
(1954).
Annot.,
36 A.L.R.2d
(1956);
299 P.2d
for the allowance
authority
also
These cases are
in the fair
in addition to the reduction
cost of repairs
for the
to such
injury
where
property
value of the
market
Id.
permanent.
partially
partially reparable
property
using
“compensa
notion of
in line with the modern
This is
concerning
in matters
light
guiding
as the
standard”
tory
Incollingo
Ewing,
damage awards. See
stated
Supreme Court
(1971).
Incollingo the
A.2d 206
In
relating
appropriate
rules
“fixed and formulated
are
im
varying
circumstances
measure of
that they
when
is determined
mutable,
it
give way
and must
Id., 444 Pa.
standard.”
setting
compensatory
are not
*17
Shoenberger
also Rabe
at
Since does, to a one injury building, might argue, appellant there, only illusory permanent injury in -the present physical tangible case. there is no a injury Since to portion property of the Wade which can be characterized as permanent, argument follows that the measure of dam- ages should not include the reduction in the fair market rejected value of the The lower court property. argu- above, ment a its portion opinion quoted which is concluding permanent change that the in the field drainage above the was a plaintiffs’ property upon sufficient basis which to assess for the diminution in market value. Although point physical permanent this does not injury land, done the above is reflec- directly plaintiffs’ analysis scholarly approach proffered by tive of a and realistic recent commentator on the law of He damages. states that “physical permanency injury is not the real basis for approach the choice between the diminution and the repair Rather, the term approach. ‘permanent injury’ seems that, reason, express repair the conclusion some cost Dobbs, inappropriate.” would be unfair or Law of Remedies *18 case, been stated that already it has (1973).14 In this fully compensate to the inappropriate be repair costs would loss to the Wades was This real and substantial appellees. real estate testimony experienced established the so not chal testify to competency whose appraiser expert this fact, entire substance of witness’ lenged. In the acting as judge, went unrefuted. The trial totally testimony Mr. fact, expertise of the recognized appraiser, the finder of We, Fine, perfectly to be credible. testimony found his and that diminu therefore, find merit to claim the appellant’s no speculative so or to fair value was remote tion of market The trial court’s damage the of a award. have been basis damages in the amount of of permanent assessment $5,250.00is affirmed. is respect court reversed with
The order the below IV, III I, with to issues and and respect issue affirmed pro- court below further vacated and remanded the II of opinion. with issue ceedings consistent MONTGOMERY, J., concurring dissenting files a and opinion.
MONTGOMERY, Judge, concurring dissenting: and it has made disposition I concur with the majority compensation”, II “bill for rental of “delay III Issues bulldozer,” for the reduction “consequential IV to Issue but I dissent as I property,” the fair value damages. right apportion to the relating chancellor’s with lower in its conclusionof The court majority agrees liable, jointly and but finding severally law the defendants damages. I apportionment court’s reverses lower that with and the lower court disagree majority but the chancellor’s acting jointly, support were defendants damages. apportionment of primarily the converse situation Dobbs was concerned with While to, recovering might plaintiff than be entitled his more he present reasoning equally applicable where the situation plaintiff fully compensated. would otherwise not joint joint- tortfeasors are rightly *19 Trespass 37 P.L.E. bring single injury,
to about the Sect. I the defendants herein were agree acting do not created the condition jointly. causing The lessee Groves by dumping to fill on the lessor’s damage plaintiff’s property manner, to negligent by failing provide adequate land in a ditching ponds and sedimentation on the waste terracing, area, erosion resistant failing provide adequate vegeta- in to there, what was growth stripping away tion after and in failing necessary steps provide adequate to take or generally drainage to the area for the supervision proper to insure lessee, As the protection adjoining properties. Groves operation, was in full control of the land fill and as such affected as to complaints parties received the from the work. After doing years manner in which it was four operation, finally correcting Groves did succeed the negli- conditions, chancellor was gent since the satisfied that the the run off of water and waste early damage by caused material was over. Williams,
As to the lessor-land owner
it is unrefuted that
right
she
a
to use her
manner
legitimate
property
any
had
chose,
she
that use did not create an unreasonable
long
so
as
Furthermore,
adjacent property
risk of harm
owners.
she
to her
permitted
improvements
was
to make
land which
increase of the natural flow
resulted in a not unreasonable
property.
to a lower
See Chamber
higher
water from a
Ciaffoni,
(1953), Leiper
lin
Lasprogata v. (1979). can be Balas, 402 Pa. A.2d McArthur v. to landown- proposition applied as supporting viewed Therein, liability landowner’s ers and lessees. adjoining property onto the property his landslide from preventive or take corrective upon his failure to based adjacent property, eliminate the measures to conditions which caused the the artificial upon *20 is me it clear to that the analysis, Prom the above harm. were, which was based upon liability acts of the tortfeasors subsequent in time and physician, like the tortfeasor viewed as a act. negligence joint and cannot be tortfeasors, joint were not several they joint Since Rather, herein. the chancellor liability inappropriate Torts, 2nd Ed. Sect. properly followed Restatement 433A, provides: Harm to Causes
Apportionment of among to be two “(1) Damages apportioned for harm are where or more causes harms, or
(a) there are distinct determining the con- (b) a reasonable basis there is single harm. each cause to tribution of apportioned harm any other cannot Damages among more harms.” two or and Williams negligence I find the acts of Groves
Since
from
other in nature
identifiable
each
separate
to be
time,
properly subject
are
they
apportionment
pursuant
433A of Restatement
2nd. Torts.
I would
§
damages.
apportionment
affirm the
Superior Pennsylvania. Court of
Argued March 1980.
Filed Jan. notes majority liable, any damages resulting from their ly severally While I with that apportioned. agree cannot be negligence law, I principle statement of do not find that axiomatic applicable to the case at bar. the defendants must act in concert imply joint liability, To