Clark, S. & v. v. Fritz, M. & S., and Fritz, H. ( 2016 )

J-A06022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHAWN & VALERIE CLARK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
MARK AND SUSAN AND HELEN FRITZ
Appellants No. 1085 MDA 2015
Appeal from the Judgment Entered August 7, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 13-2044
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 06, 2016
Mark and Susan Fritz (h/w) and Helen Fritz (collectively the “Fritzes”)
appeal from the judgment, entered on a verdict in favor of Appellees, Shawn
and Valerie Clark, (h/w) (the “Clarks”), after the court granted a permanent
injunction1 in the underlying equity action. After careful review, we affirm.
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1
When an appellate court reviews the grant of a permanent injunction, its
scope of review is plenary. Kuznik v. Westmoreland County Bd. of
Comm’rs, 902 A.2d 476, 489 (Pa. 2006). On appeal, our inquiry concerns
whether the lower court’s legal determination that the plaintiff established a
clear right to relief, as a matter of law, was proper. Accordingly, our
standard of review is de novo. Seven Springs Farm, Inc. v. Croker, 801
A.2d 1212, 1216 n.1 (Pa. 2002) (standard of review for questions of law is
de novo). Moreover,
[t]o be entitled to a permanent injunction, a party must
establish a clear right to relief, and must have no adequate
remedy at law, i.e., damages will not compensate for the injury.
J.C Erlich Co. v. Martin, [] 979 A.2d 862, 864 (Pa. Super.
(Footnote Continued Next Page)
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In July 2001, the Fritzes purchased and installed on their property a
Phase-2,2 400,000 BTU outdoor wood-fired burner (OWB/furnace).3 The
total cost of the unit, including installation, was $30,000. N.T. Non-Jury
Trial, 4/8/15, at 592. The furnace was used year-round to heat the interior
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(Footnote Continued)
2009) (quoting Pestco, Inc., [] 880 A.2d [at] 710[.] Unlike a
preliminary injunction, a permanent injunction does not require
proof of immediate irreparable harm. Id.Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal
Practical Knowledge, et al., 102 A.3d 501, 506 (Pa. Super. 2014).
2
Phase-2 denotes a newer model wood-fired boiler that is more efficient
than older models, resulting in reduced emissions of particulate matter equal
and less than 2.5 micrometers in diameter (PM2.5) which negatively impact
the environmental and public health. See 40 Pa. Bull. 5571 (October 10,
2010).
3
OWBs, also referred to as outdoor wood-fired furnaces, outdoor wood-
burning appliances or outdoor hydronic heaters, are free-standing fuel-
burning devices designed: (1) to burn clean wood or other approved solid
fuels; (2) specifically for outdoor installation or installation in structures not
normally intended for habitation by humans or domestic animals, such as
garages; and (3) to heat building space or water by means of distribution,
typically through pipes, of a fluid heated in the device, typically water or a
water and antifreeze mixture. OWBs are sold to heat homes and buildings
and to produce domestic hot water. See
http://www.pabulletin.com/secure/data/vol40/40-40/1876.html (last visited
April 4, 2016). The specific model owned by the Fritzes, the Optimizer 350,
is manufactured by Portage & Main. The gases burned in this furnace reach
temperatures of in excess of 2000 degrees Fahrenheit. The process of
“gasification” that is used in the operation of the Optimizer 350 is defined as,
“out combustion, with a controlled amount of oxygen and/or steam.”
http://www.gasification-syngas.org/technology/the-gasification-process (last
visited April 6, 2016).
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of their residences4 as well as their water supply.5 Mr. Fritz testified that he
primarily burned seasoned hard wood in the furnace. Id. at 591. The
furnace greatly reduced the Fritzes’ heating expenses compared to what it
had cost them to run their standard home oil-based heating system.6 The
furnace is located approximately 420 feet to the west of the Clarks’ property
line and 670 feet west of the Clarks’ residence. The topography of the
parties’ land is primarily rolling hills.
The Fritzes obtained the requisite township permits and uniform
construction code permit for the furnace. The Fritzes complied with all
zoning and building regulations, as well as manufacturer’s instructions, when
installing and using the furnace. One of those instructions included locating
the unit downwind from their residences. The unit also complies with
Environmental Protection Agency (EPA) standards. However, notably, the
EPA requires that manufacturers provide all potential buyers of Phase II
furnaces the following information in their respective owner’s manuals:
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4
The Fritzes own two adjoining lots, located on a span of 6 acres in Tilden
Township, Berks County. Two residences are on the lots; Mark and Susan
live together in one home, and Mark’s mother, Helen, lives in the other
home. The furnace was able to heat the interior and water supplies of both
residences.
5
The unit was operated year-round (twenty-four hours a day, seven days a
week and 365 days a year) as it also heated the Fritzes’ reptiles.
6
The Fritzes have an oil furnace in their home that is still operable, which
they have been using as their heat source since they were ordered to stop
operating the furnace.
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Statements indicating that the person(s) operating a hydronic
heater is/are responsible for operation in a manner that does not
create a public or private nuisance condition. The
manufacturer’s distance and stack height recommendations and
the requirements in any applicable laws or other requirements
may not always be adequate to prevent nuisance conditions due
to terrain or other factors.
EPA Hydronic Heater Program, Phase 2 Partnership Agreement, 10/12/11, at
§ VI(A)(5) (Outreach Materials; Owner’s Manuel Statement).
On February 13, 2013, the Clarks filed a civil action in equity,
sounding in private nuisance and trespass, seeking to enjoin the Fritzes from
causing further damage to them and their property. In the complaint, the
Clarks averred that when the prevailing winds blow from west to east, the
furnace’s strong, pungent and foul-smelling smoke would descend upon their
property and cause them to suffer from any and all of the following
conditions: burning in their eyes, throats and lungs, sore throats, and
headaches. As a result of the odor emanating from the furnace, the Clarks
had to close their windows and doors and keep the air conditioning on
throughout the year.7 Despite these measures, it was virtually impossible to
keep all of the fumes from permeating their home through vents and the
fireplace. Overall, the fumes prevented the Clarks from enjoying any
outdoor activities on their property. Despite several requests by the Clarks
that the Fritzes cease using the furnace, as well as requests that the Fritzes
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7
Mr. Clark kept a log which indicated that irritating smoke came out of the
Fritzes’ furnace 210 days out of the first 365 days of its use.
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raise the smoke stack of the unit, the quantity of smoke drifting onto the
Clarks’ property did not decrease or cease.
The Clarks also filed a separate petition for special relief in the nature
of a preliminary injunction against the Fritzes, claiming that smoke from the
furnace was entering their home and causing adverse health effects on their
entire family, including their young child and family dog. The Fritzes filed
preliminary objections to the complaint, to which the Clarks filed an answer.
On May 6, 2013, the court dismissed the Fritzes’ preliminary objections.
On May 21, 2013 and June 4, 2013, the court held hearings on the
Clarks’ request for a preliminary injunction. On June 10, 2013, the court
entered an order granting injunctive relief finding that:
[P]laintiffs have met the burden of proof that a party must
establish in order to obtain preliminary injunctive relief . . . and
that defendants’ outdoor wood burning furnace is a private
nuisance as it presently exists and, as such, defendant is
prohibited from using the outdoor wood burning furnace in its
present location. Defendants may submit a plan to relocate the
outdoor wood burning furnace elsewhere on their property that
does not disturb the peaceful use and enjoyment of any of the
neighbors.
Order, 6/11/13. Despite the court’s suggestion that the Fritzes relocate the
unit, they did not attempt to do so. After the Fritzes ceased using the
furnace, there was no more smoke in the air, the Clarks’ physical problems
subsided and they were able to fully enjoy use of their property.
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Days after the court issued the preliminary injunction, Mr. Fritz
constructed a 55-gallon burn barrel,8 ignited a fire in the barrel, burned
various items (including household trash) in it, and placed it on the edge of
Helen’s property that bordered the Clarks’ property. Mr. Fritz tended to the
fire, which was continuously stoked for 13 hours, as he sat in a lounge chair
under a sun umbrella while drinking beer.9
On May 22, 2015, after a bench trial and three days of testimony, the
court entered a permanent injunction that prohibited the Fritzes from using
the furnace and, again, gave them the opportunity to relocate the furnace to
an area that would not interfere with the Clarks’ use and enjoyment of their
property. The court also assessed $1,500 in punitive damages against the
Fritzes “due to Defendants’ reckless indifference to the right of Plaintiffs to
enjoy the clean air and peaceful enjoyment of the property.” Order,
5/27/15. Finally, the court prohibited the Fritzes from “any open burning,
including barrel burning, within 150 feet of the border of Plaintiffs’ property
line.” Id. On June 5, 2015, the Fritzes filed post-trial motions, which were
denied on June 9, 2015. This timely appeal follows.10
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8
A burn barrel is a homemade incinerator constructed of a metal 55 gallon
open head drum, modified to burn household trash.
9
Mr. Fritz continued to use the barrel for months thereafter.
10
The Fritzes also filed an application for a supersedeas to stay the verdict
pending appeal, pursuant to Pa.R.A.P. 1731. The application was denied by
the trial court.
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On appeal, the Fritzes11 raise the following issues for our
consideration:12
(1) Whether the court erred by refusing to decide Appellant’s
motions in liminae [sic], preventing a clear record for appeal;
(2) Whether the trial court erred by allowing Appellees to testify
to their medical conditions pursuant to the use of the furnace;
(3) Whether the trial court improperly allowed Appellees’ expert
report and testimony of Alan R. Leston into evidence;
(4) Whether the court, sitting as factfinder, improperly
conducted its own independent research which it relied upon in
granting the permanent injunction;
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11
We note that Susan and Mark Fritz and Helen Fritz have filed separately
counseled appellate briefs in the instant matter. We have consolidated their
issues, several of which overlap, for review on appeal.
12
In her appellate brief under the section titled, “Statement of Issue
Raised,” Helen Fritz states the following: Whether the lower court abused its
discretion by granting a permanent injunction against Appellants’ future use
of their wood furnace used to heat their home and water supply and also
assessing punitive damages after a non-jury trial before the Honorable
Jeffrey K. Sprecher. Appellant’s Brief, at 2. However, she argues the issues
raised above in her brief which are marginally related to the overall issue of
whether the court properly granted a permanent injunction. See Pa.R.A.P.
2116(a) (statement deemed to include every subsidiary question fairly
comprised therein”) (emphasis added). We caution counsel, however, that
“[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). See
Greenwich Collieries v. Workmen’s Comp. Appeal Bd., 664 A.2d 703(Pa. Commw. 1995) (where issue addressed in argument portion of
appellant’s brief was not the same as or suggested by issue presented in
statement of questions presented, court found issue waived). Because
counsel has not provided any argument, whatsoever, on the issue raised in
Helen’s Rule 2116 Statement of Questions Involved, we will not address it on
its merits.
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(5) Whether the trial court’s permanent injunction violates the
equal protection clause of the United States and Pennsylvania
Constitutions;
(6) Whether the trial court erred and abused its discretion in
refusing to allow a jury trial on the eve of trial where: (1)
Defendants had properly made a jury demand 20 months earlier
and no objection had ever been made; (2) Defendants had a
constitutional and statutory right to a jury trial; and (3) the
nature of a nuisance action requires the community, not the
court, to determine what standards are acceptable; and
(6) Whether the trial court erred and abused its discretion in
assessing punitive damages against Defendants for using a burn
barrel where: (1) the use was legal and was not at issue before
the court; and (2) the barrel burning took place before the
court’s preliminary injunction was legally effective.
See Brief of Mark and Susan Fritz, at 4; Brief of Helen Fritz, at 6-16.
Helen Fritz claims that the trial court failed to rule upon several pretrial
motions in limine, including a ruling on the proper standard for an expert
witness (Daubert13/Frye14 claim), the diminution of the Clarks’ property
value, and how the Clarks’ health was affected by the operation of the
furnace.15 Helen asserts that failure to rule upon these motions prior to trial
constituted “reversible error that can only be cured by a new trial.”
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13
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.
Ed. 2d 469, 113 S. Ct. 2786 (1993).
14
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (novel scientific
evidence admissible only upon showing that methodology has gained general
acceptance in relevant community).
15
The admission of evidence is committed to the sound discretion of the trial
court and our review is for an abuse of discretion. Commonwealth v.
Parker, 104 A.3d 17, 21 (Pa. Super. 2014) (citation omitted). “An abuse of
discretion occurs where the law is overridden or misapplied, or the judgment
(Footnote Continued Next Page)
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To support this issue, Helen Fritz cites to one criminal case where a
trial court refused to hear evidence on a defendant’s motion to suppress in
an underage drinking case. See Commonwealth v. Breslin, 732 A.2d 629(Pa. Super. 1999). In Breslin, the evidence the defendant sought to be
suppressed consisted of breath samples and test results taken from the
defendant’s breath samples, which formed the sole support for the
defendant’s conviction. The circumstances in Breslin are in no way
analogous to the current equity action seeking a permanent injunction
against the Fritzes. Where there is no citation to relevant authority on the
issue to show how the court committed reversible error, we find this issue
waived. Pa.R.A.P. 2119.16
Next, the Fritzes assert that the court erred by permitting the Clarks to
offer “speculative, unproven” testimony about the alleged adverse health
effects they suffered as a result of emissions from the Fritzes’ furnace.
Prior to trial, the parties agreed that the Clarks’ medical records would
not be introduced into evidence, primarily due to the fact that they were not
seeking damages for any medical claims or injuries. Despite this agreement,
_______________________
(Footnote Continued)
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record.” Commonwealth
v. Adams, 104 A.3d 511, 517 (Pa. 2014) (internal quotation marks and
citation omitted).
16
Additionally, Helen has failed to show how these delayed rulings
constituted reversible error.
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it was incumbent upon the Clarks, as plaintiffs, to prove that the Fritzes
created a nuisance. Section 822 of the Restatement (Second) of Torts sets
forth the elements of liability for a private nuisance as follows:
One is subject to liability for a private nuisance if, but only if, his
conduct is a legal cause of an invasion of another’s interest in
the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules
controlling liability for negligent or reckless conduct, or for
abnormally dangerous conditions or activities.
Diess v. Pa. DOT, 935 A.2d 895, 905 (Pa. Commw. 2007), citing
Restatement (Second) of Torts § 822. See also Kembel v. Schlegel, 478
A.2d 11 (Pa. Super. 1984) (acknowledging that Pennsylvania Supreme Court
adopted section 822 of Restatement (Second) of Torts as test to determine
private nuisance). The Restatement further defines the harm necessary to
impose liability under nuisance law as “significant harm, of a kind that would
be suffered by a normal person in the community or by property in normal
condition and used for a normal purpose.” Id. at 15, citing Restatement
(Second) of Torts, § 821F.
Here, testimony about the physical symptoms suffered by the Clarks
as a result of the smoke from the Fritzes’ furnace was necessary to prove
the “significant harm” element of a claim for nuisance. See Evans v.
Moffat, 160 A.2d 465 (Pa. Super. 1960) (testimony that plaintiffs
experienced headaches, coughing, nausea and irritation of nasal passages as
result of noxious and foul smelling gases emanating from defendant’s coal
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company relevant to prove case under section 822 of the Restatement
(Second) of Torts). Under these circumstances, the court did not err in
admitting such evidence.
The Fritzes next claim that the court improperly admitted the expert
report and testimony of the Clarks’ expert, Alan R. Leston, into evidence at
trial.17 Specifically, they assert that the court should not have permitted a
lay witness to opine on the engineering characteristics of the furnace, its
causal connection to damaging the environment, and reference to
metrological data in his report as proof of causation. Without this testimony,
the Fritzes claim that the Clarks failed to prove that the furnace caused any
harm which would warrant a permanent injunction.
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17
It is well established that:
[w]hen we review a ruling on the admission or exclusion of
evidence, including the testimony of an expert witness, our
standard is well-established and very narrow. These matters are
within the sound discretion of the trial court, and we may
reverse only upon a showing of abuse of discretion or error of
law. “An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Grady v. Frito-Lay, Inc., [] 839 A.2d
1038, 1046 (Pa. 2003). In addition, “[t]o constitute reversible
error, an evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.” McClain v.
Welker, [] 761 A.2d 155, 156 (Pa. Super. 2000) (citation
omitted).
Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super.), aff’d, 971
A.2d 1202 (Pa. 2009).
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First, we note that, contrary to the Fritzes’ assertion, the court
certified Leston as an expert witness in the area of air quality science and
outdoor wood boilers. N.T. Non-Jury Trial, 4/8/15, at 315, 317. Leston
testified that part of his job as a senior engineer was to analyze data and
prepare daily air quality pollution reports. Id. at 301. He also determined
prevailing winds and used airport data to obtain wind speed direction when
he worked for the Connecticut Department of Environmental Protection. Id.
at 323-24. Based on Leston’s experience in air quality analysis and data, as
well as his extensive employment history in the industry, the trial court
properly qualified him as an expert witness. See Pa.R.E. 702 (witness
qualified as expert by knowledge, skill, experience, training or education
may testify in form of opinion or otherwise if expert’s knowledge is beyond
that possessed by average layperson, where knowledge will help trier of fact
understand evidence or determine fact in issue and where expert’s
methodology generally accepted in relevant field); see also Abbott v. Steel
City Piping Co., 263 A.2d 881 (Pa. 1970) (practical experience may, in
proper case, suffice to qualify witness as expert).
In order to obtain technical information on the Fritzes’ furnace, Leston
relied on videos and photos taken by Mr. Clark, as well as the
manufacturer’s owner’s manual, sales brochures, and the manufacturer’s
website. N.T. Non-Jury Trial, 4/8/15, at 320. Leston also testified that he
looked at topographical maps of the area and gathered data from several
airports and the National Weather Service to ascertain the area’s prevailing
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wind direction. Id. at 321. Because Leston’s conclusions were based upon
generally accepted principles and methodologies, the court did not abuse its
discretion in permitting him to testify regarding the relevant issues
surrounding the winds and how they affected the smoke flowing from the
furnace. Freed, supra; Pa.R.E. 702.
The Fritzes next claim that the court improperly conducted its own
independent research and took judicial notice of extraneous evidence which
it used to support the grant of a permanent injunction. Specifically, they
claim that the court relied on evidence of the prevailing winds in the Los
Angeles City Valley basin and its smog effects upon the City of Los Angeles
and then compared it to the wind currents and topography in Tilden
Township. Additionally, the Fritzes assert that the court improperly took
judicial notice of the Eastern United States’ air currents and how they apply
to the instant case.
Instantly, the court’s reference to and use of facts relating to wind
currents was not improper where those facts could be determined from
accurate sources and where the information was supported by both lay and
expert testimony from trial. See Pa.R.E. 201(b). See also Interest of
D.S., 622 A.2d 954, 957 n.4 (Pa. Super. 1993) (“Adjudicative facts are facts
about the particular parties to the controversy, their activities, their
property, and their interests. Facts which help answer who did what, when,
where, why, how, and with what motive and intent are all adjudicative.”).
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Here, the facts in question were adjudicatory facts; therefore, we find no
merit to this claim.
Next, Helen Fritz claims that the court’s issuance of a permanent
injunction is unconstitutional under the Equal Protections Clauses of the
Pennsylvania18 and United States Constitutions19 because the Fritzes are not
being treated the same as other similarly-situated citizens of Tilden
Township, the Commonwealth of Pennsylvania, and the United States.
Additionally, the Fritzes claim that because their furnace complied with local
township ordinances and because the unit was approved for use by the EPA,
the court has “improperly criminalized the legal behavior of [their] use of the
Furnace.” We disagree.
In order to grant a permanent injunction, the evidence only needed to
show that a legal wrong existed for which there was no adequate remedy at
law. J.C. Erlich, supra. There was no question that the Fritzes’ continued,
intentional use of the furnace greatly impacted the Clarks’ daily life, as it
prevented them from enjoying the outdoors and also caused them to suffer
physically from the smoke that permeated their home despite constant self-
help efforts to abate the problem. Accordingly, they successfully proved that
a private nuisance claim. See Restatement (Second) of Torts § 822 (“One is
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18
See Pa. Const. art. III, § 32.
19
See U.S. Const. amend. XIV, §1.
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subject to liability for a private nuisance if . . . his conduct is a legal cause
of an invasion of another interest in the private use and enjoyment of land,
and the invasion is . . . intentional and unreasonable[.”]). Because no other
adequate remedy existed short of shutting down the unit to rectify the
situation, a permanent injunction was justified. Id.20
Moreover, it is of no moment that the Fritzes complied with local
ordinances in installing and operating the furnace or that the unit was
approved by the EPA, it is well-settled that a private nuisance often flows
from the consequences of an otherwise lawful act. Liberty Place, supra at
509 (collecting cases where defendants enjoined from legal acts that created
private nuisances).
The Fritzes next claim that the trial court abused its discretion in
refusing to conduct a jury trial when they made a jury demand months
before the scheduled trial date and had a statutory and constitutional right
to a jury trial. It has been long recognized that Article 1, Section 6 of the
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20
We also note that this situation does not invoke equal protection concerns.
The essence of the constitutional principle of equal protection is that like
persons in like circumstances will be treated similarly. However, it does not
require that all persons under all circumstances enjoy identical protection
under the law. Because the Fritzes chose to continue to operate their
furnace, which produced unwanted emissions that negatively affected the
use and enjoyment of the Clarks’ property, they were not similarly situated
like other local, state and national citizens who were utilizing their furnaces
in a way that did not substantially interfere with another’s use and
enjoyment of property.
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Pennsylvania Constitution does not permit a jury trial in an ordinary equity
action.21 Rosenberg v. Rosenberg, 419 A.2d 167, 206 (Pa. Super. 1980),
citing Schwab v. Miller, 153 A. 731 (Pa. 1931). Once the Clarks brought
the original action in equity, the matter has entered the realm of equity and
equity jurisdiction subsumed the entire case. See McGovern v. Spear, 344
A.2d 826 (Pa. 1975). Therefore, this claim has no merit.
Finally, the Fritzes complain that the court improperly awarded
punitive damages to the Clarks where there was “no basis in the facts or the
law to support same.” Appellants’ Brief, at 5. Punitive damages may be
awarded in equity cases and “the finder of fact should be given broad
discretion in assessing the amount of punitive damages which will be
sufficient to punish the defendant and to set an example which may deter
the defendant and others from similar conduct.” Pierce v. Penman, 515
A.2d 948, 954 (Pa. Super. 1986).22
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21
The equity jurisdiction of Pennsylvania courts is triggered only when an
adequate remedy is not available at law. See Peitzman v. Seidman, 427
A.2d 196, 198 (Pa. Super. 1981).
22
Although we recognize that where an injury is sustained to real property
as a result of the negligence of another, the property owner is entitled to
damages for the inconvenience and discomfort caused thereby, Evans v.
Moffat, supra at 473, here the Clarks did not request money damages or
include a separate claim for inconvenience and discomfort in their complaint.
At most, they requested that the Fritzes pay their attorneys’ fees and costs
for prosecuting the action. See Plaintiffs’ Complaint, 2/13/13, at ¶¶40(b),
41(b).
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Just days after the court issued a preliminary injunction23 preventing
the Fritzes from operating their furnace, Mr. Fritz built a 55-gallon burn
barrel, ignited a fire in the barrel, and placed it on the edge of the Clarks’
property. Mr. Fritz tended to the fire, which was continuously stoked for 13
hours, as he sat in a lounge chair under a sun umbrella while drinking beer.
Mr. Fritz later admitted that he was “peeved” and had “had a couple beers”
at the time. N.T. Non-Jury Trial, 4/8/15, at 265. The court determined that
Mr. Fritz’s actions were “deliberate and meant to harass the plaintiffs.” Trial
Court Opinion, 8/28/15, at 28. Under such circumstances, punitive damages
were warranted to punish the Fritzes and prevent them from engaging in
similar conduct in the future. Pierce, supra; SHV Coal, Inc. v.
Continental Grain Co., 587 A.2d 702 (Pa 1991) (whether party’s actions
rise to level of outrageous conduct is within discretion of fact finder).
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23
While the Fritzes claim that barrel burning took place before the court’s
preliminary injunction was legally effective, the Clarks’ log indicates that this
specific barrel was constructed and placed on the edge of their property just
days following the court’s entry of the preliminary injunction. Moreover,
while they may have used a burn barrel prior to this date, the court’s
determination that the this barrel was intentionally used to emit fumes and
smoke over the Clarks’ property as a result of the instant action is supported
in the record.
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Judgment affirmed.
DUBOW, J., Joins the majority.
STABILE, J., Concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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