Adams, N. v. Miller, D. ( 2021 )

J-A24021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NANCY ADAMS AND DOUG REED : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
DAVID J. MILLER AND FREEMAN : No. 192 WDA 2020
MILLER D/B/A D&F LUMBER & :
LOGGING :
Appeal from the Order Entered January 7, 2020
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
Case No. 156-2017 C.D.
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 15, 2021
Nancy Adams and Doug Reed (collectively, “Appellants”) appeal from
the order denying their request for injunctive relief against David J. Miller and
Freeman Miller D/B/A D&F Lumber & Logging (“D&F Lumber”). We decline to
transfer the case to the Commonwealth Court, and will not quash the appeal
for failure to file post-trial motions. Upon consideration of the merits of the
appeal, we affirm the trial court’s order.
Appellants, who are husband and wife, own a farm on Pike Road, which
is a dirt road running east-west in Henderson Township, Jefferson County.
Their property is located next to two sawmills, the Hickory Hill Hardwoods,
LLC (“H3 Mill”) and the D&F Lumber Mill (“the D&F Mill”). D&F Lumber now
owns both mills. The mills are on either side of Pike Road, with the H3 Mill on
the north side and the D&F Mill on the south. Trial Court Opinion, filed Jan. 7,
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2020, at 2. “Their eastern boundaries abut [Appellants’] western boundary.”
Id.1 The H3 Mill burned to the ground prior to 2010 and was the property of
Lester Byler from 2010 to 2012. During that time, there was no mill on the
property, but rather only an office trailer. Id. Byler rebuilt the mill using the
existing concrete slab. Id. After he finished rebuilding, “the chipper building
and approximately 30 feet of the grader building were the only portions of
structure not built on the original slab.” Id. In May 2018, Byler sold the H3
Mill to D&F Lumber. Id.
The land underlying the mills was under heavy excavation in 2012 to
accommodate construction of the mills and supporting facilities. Id. Although
construction of the D&F Mill lagged behind the rebuilding of the H3 Mill, both
sawmills were operational and running at their peak by 2014. Id. They
operated at full capacity from 7:00 a.m. to 3:30 p.m. every day for the next
few years. Id. However, after D&F Lumber acquired the H3 Mill, it operated
only one band saw in a building approximately 700 feet west of Appellants’
residence. Id. The mills generate large quantities of wood dust that is blown
directly into a designated building, or “dust bin.” Id.
In February 2017, Appellants filed a civil complaint asserting four causes
of action – private nuisance, water trespass, negligence, and violations of the
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1The trial court found Appellants’ “residence sits approximately 300 feet east
of that boundary on the H3 side of Pike Road.” Trial Ct. Op. at 2. “The D&F
[M]ill sits nearer to the parties’ shared boundary but, given its more southerly
position, appears to be approximately the same distance from [Appellants’]
home as the H3 [M]ill.” Id.
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Stormwater Management Act. Appellants alleged that the sawmills were
discharging water, wood dust, and other pollutants, and that the discharge
was causing damage to Appellants’ property and to their health. As relief, the
Complaint sought both a permanent injunction and money damages.
More than two years after the filing of the Complaint, in June 2019,
Appellants filed a petition for a preliminary injunction. They maintained that
Appellant Doug Reed suffered from bronchial spasms and, according to expert
opinion, the condition was caused by “sawmill pollutants” and would continue
to worsen until D&F Lumber remediated conditions at the sawmill properties.
Plaintiffs’ Petition for Injunctive Relief, filed June 28, 2019, at 3-4. The court
scheduled a hearing, but Appellants discontinued the petition without
prejudice, citing their expert’s unavailability on the hearing date. See Order,
filed July 12, 2019; Motion to Discontinue Petition and/or Continue Hearing,
filed July 12, 2019.
A few weeks later, in August 2019, Appellants refiled their petition for a
preliminary injunction. The court again scheduled a hearing, but postponed it
because neither party was ready and discovery was outstanding. After a status
conference, although Appellants had petitioned for a preliminary injunction,
the court set a hearing for December 2019 for a “permanent injunction.”
Order, filed Sept. 5, 2019. It also set deadlines for the exchange of expert
reports and the filing of “pre-trial statements.” Id. Appellants filed a “pre-trial
statement” stating that the December hearing concerned the request for
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injunctive relief, not damages, and, therefore, they would not present
evidence of damages. Plaintiffs’ Pretrial Statement, filed Nov. 19, 2019, at 5.
At the December 2019 hearing, D&F Lumber objected to the testimony
of Appellants’ expert, Lake Randall, claiming the expert was to testify as to
stormwater, and stating, “This is a preliminary injunction on dust. . . .” N.T,
12/9/2019, at 5-8. Appellants responded that, because the court had
designated the hearing as being on the request for a permanent injunction,
the court should allow the witness to testify. Id. The court overruled the
objection.
Appellants then presented the testimony of an expert in pulmonology,
John Penek, M.D. N.T., 12/9/19, at 14. He testified that it was his opinion that
“there’s significant chronic exposure to various dust and pollutants that have
negatively impacted [Reed’s] respiratory function.” Id. at 15. He said that
“[w]ood dust is clinically toxic and is associated with various abnormal
respiratory functions including allergic alveolitis, inflammation of the alveoli,
[and] chronic obstructive lung disease.” Id. He also said that there “is a
relationship between wood dust and the development of lung cancer and other
chronic respiratory disorders.” Id. Dr. Penek said he had spoken with Reed
and reviewed Reed’s medical history, and that Reed “has chronic obstructive
lung disease, some restrictive lung disease, [and] sleep apnea, which [was] a
weight[-]related issue and not directly related to exposure.” Id. at 17-19. Dr.
Penek also said that a pulmonary function test had shown mild restrictive lung
disease and obstructive lung disease. Id. at 20-21. Dr. Penek testified that,
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in his opinion, the source of Reed’s ailments was “allergic alveolitis [and]
allergic pneumonitis associated with the inhalation of sawdust.” Id. at 21-22.
On cross-examination, Dr. Penek stated he had not looked at Reed’s
medical records from more than five years before the hearing, and conceded
that Reed had been treated for his condition for longer than five years. Id. at
31. Dr. Penek also admitted that he did not know whether his opinion would
change if there was no dust or very little dust from D&F Lumber’s property.
Id. at 34-35. He further testified that Reed still would have his pulmonary
problems if the sawmills stopped operation, but “in a decreasing amount.” Id.
at 35. He also acknowledged that Reed worked as an excavator, which
involved exposure to dust. Id. at 39. He agreed that Reed worked as a farmer
and grew hay, and that “farmer’s lung” is “an allergic pneumonitis or alveolitis
as a result of moldy hay.” Id. at 40. Dr. Penek reiterated, however, that he
“believe[d] the sawdust contributed to [Reed’s condition] significantly”
because the issue was “multifactorial, some of which is sawdust, some of
which is road dust.” Id. at 41, 44.
Regarding the sources of the dust, counsel for D&F Lumber asked Dr.
Penek, “You don’t know what is causing it. You have done no testing to
determine what is causing it, correct? You’re missing the causation, aren’t
you?” Dr. Penek answered, “Yes.” Id. at 48. On re-direct, Dr. Penek testified
that his understanding of the sources of dust came from Reed. Id. at 57.
Appellants also presented Randall, as an expert in civil engineering and
hydrology. Randall testified that he had investigated Appellants’ property, and
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the water flowing to it, on three occasions. He concluded that D&F Lumber
“increased the stormwater peak rate, volume and velocity that leaves [its]
site, and as a result, there are impacts, and the impacts aren’t mitigated.” Id.
at 78. He testified that D&F Lumber’s stormwater controls were not compliant
with township ordinances or Pennsylvania Department of Environmental
Protection (“DEP”) standards. Id. at 85. He further testified that he was on
Appellants’ property on two occasions “to see the dust clouds.” Id.
On cross-examination, he agreed that many of his photographs
contained no dust clouds, and that one of the photographs with a dust cloud
showed the dust coming from the dirt road. Id. at 93-94. He further agreed
that the other photograph of a dust cloud showed a truck causing the dirt or
dust on the township road. Id. at 96. He stated that D&F Lumber “would be
required to do the dust control even on the township road.” Id. at 95. Randall
further testified that he completed his report in 2018, and was not aware of
anything that occurred at or near the site since that time. Id. at 98-99. He
testified that it was “very clearly the truth” that the DEP and the township had
allowed the construction to happen even though it was not within the
regulations and ordinances. Id. at 101.
Appellant Nancy Adams testified that she moved to the property in
1996. She said that at the time, there was an operational sawmill on the site
that the H3 Mill now occupies, but that it had burned to the ground in 2000.
Id. at 139-40. She stated that after Lester Byler bought the H3 Mill, it became
“an industrial park with heavy machinery, numerous buildings, all kinds of
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construction, constant construction and excavation.” Id. at 142-43. She
stated the “water [came] from all directions” after the owners “elevat[ed] and
excavat[ed] and put[] buildings up.” Id. at 143. She described the effect the
water had on her property, including that she gets water in the basement of
her house and pooling in the pasture. Id. at 145-47.
She also testified about the sawdust, stating it was “so bad” and the
wind always blows the sawdust in their direction. Id. at 150. She said that the
“sawdust is usually through the roof,” “you can walk outside and feel it hitting
you in the face,” and it is “all over the cars.” Id. at 150-51. She stated it is
“all through [her] house. It’s in the cupboards. It’s in [her] closets. It’s
everywhere.” Id. at 151. She testified that as many as “fifty [trucks] a day”
traveled the road from the sawmill. Id. at 157. She further testified that she
saw a DEP investigator, Justin Rogers, outside her house, and invited him in,
but that he never collected a sample of the dust from her mantel for testing.
Id. at 217.
Reed testified that he has lived with his wife Nancy Adams at the Pike
Road farm since 2009. Id. at 219. He testified that he does the farming on
the property, including making hay and caring for the cattle. Id. He testified
that he also has a job running heavy equipment for an excavating company.
Id. at 220. He said he started having problems with breathing in July 2011,
which was when he started using an inhaler following “two serious attacks.”
Id. He testified he does not have attacks while farming and that both his farm
equipment and his work equipment have closed cabs with filtered air
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conditioning. Id. at 221. On cross-examination, Reed stated that he might
open the windows on the machinery to get fresh air when there is no dust.
Id. at 235. However, he said his breathing attacks were “definitely from” the
sawmills. Id. at 235-36. He conceded that at his deposition, he had testified
that the dust came from both the mills and the road. He testified at the
hearing, “It comes from the sawmills and off the road or both. That’s fine, but
there was no trucks during my attack.” Id. at 236.
D&F Lumber also called witnesses to testify. It first presented the
testimony of Henderson Township Supervisor, Harold Pifer. Pifer said that at
an April 2016 meeting, Adams expressed her concern about a drainage pipe
the township planned to install in a “ditch line,” or culvert. Id. at 276-77. He
testified that the water was coming out of Adams’ property and going down
the ditch line, and the township planned to install an underdrain to carry the
water to where it could be “relieved without soaking up the road.” Id. at 277.
He said they were trying to fix Pike Road at Adams’ request, and the pipe was
intended to keep water from a spring on her property from running onto the
township road. Id.
Pifer further testified that he understood that the DEP had been at D&F
Lumber’s property due to trouble with the sawdust bins and water run-off. Id.
at 280-81. He said he understood that they had fixed the bins, and there had
not been any trouble since then, in the last year or two. Id. at 281-82. Pifer
further testified that the DEP had asked D&F Lumber to install a holding pond
for stormwater management on one side of the mill, and D&F Lumber had
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complied. Id. at 283. Pifer testified that D&F Lumber was in compliance with
the stormwater management ordinance. Id. at 286.
Henderson Township Solicitor, Carl J. Zwick, Esq., testified next. He
testified that he had reviewed material regarding D&F Lumber’s compliance
with the township’s stormwater management ordinance. He said he found D&F
lumber had always been in compliance, and had drafted a letter stating so.
Id. at 297.
The secretary and treasurer of the Henderson Township Supervisors,
Ruth Reitz, also testified. She testified that Adams had made multiple
complaints about D&F Lumber’s property, and that the complaints were
investigated. Id. at 306-07. She further testified that D&F Lumber was in
compliance with the stormwater management ordinance. Id. at 310.
An inspector with the DEP Air Quality Program, Justin Rogers, also
testified. He said he collected a dust sample from a mantel inside of Appellants’
house, and had followed DEP’s procedures for collecting and labeling the
sample. Id. at 315-17. He said the test result revealed that the sample was
cotton and paper fibers, not sawdust. Id. at 317. Rogers testified that the
testing had been pre-arranged with Appellants. Id. at 318. He explained that
he had conducted several investigations of D&F Lumber’s sawmills over
several years, and had been at the location about 15 times, but had never
seen a “big ball” of sawdust rising from the dust bins. Id. at 315, 320. Rogers
testified that he did find some violations when investigating D&F Lumber, and
D&F Lumber corrected them promptly. Id. at 323. He further testified that on
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one occasion he did see saw dust escape the front of the building, but it did
not blow toward Appellants’ property. Id. at 324.
D&F Lumber also presented the testimony of the district manager for
the Jefferson County Conservation District, Shaun Wassell. He explained that
the Conservation District “helps conserve and protect resources in the
county.” Id. at 330. He said the Conservation District had received complaints
from Appellants and he, or someone in his department, investigated. Id. at
331-32. He said that they instructed D&F Lumber to make corrections, which
D&F Lumber made. Id. at 332.
A water quality specialist for the Commonwealth, Clint Stonesifer,
testified that he had gone to the D&F Lumber property after receiving
complaints from a neighboring property. Id. at 343. He stated, “It looked to
me like most of the water was coming from the township road at the time.”
Id. He said it was possible the sawmills could have been adding to the water,
but most was coming from the road. Id. He testified that in August 2019, D&F
Lumber was in compliance with DEP requirements. Id. at 349.
In addition, D&F Lumber called the former owner of the H3 Mill, Lester
Byler, to testify. He said he bought the mill in 2010. Id. at 370. He guessed
that six to ten trucks went to each lumber mill every day. Id. at 360-61. He
did not recall ever seeing sawdust leave the premises. Id. at 361. He said that
the DEP did ask him in 2016 to put foam in cracks in the sawdust bins and to
place a curtain on the ends, and he did so. Id.
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One of D&F Lumber’s owners, Freeman Miller, also testified. He testified
that when the trucks are unloading, dust can blow off from it, but it is not
something that happened regularly, and that trucks now come to a different
part of the mill away from Appellants’ property. Id. 391-92. He further
testified they paid to have the roadway oiled and chipped. Id. at 394.
Following the hearing, the court made the following factual findings,
largely rejecting Appellants’ evidence:
8. The mills generate large quantities of wood dust that is
blown directly into a designated building, or “dust bin.”
When that bin was damaged in 2016, a significant quantity
of the dust escaped. See Exh. 12, photo 6. That condition
was soon rectified in accordance with DEP
recommendations, however, pursuant to which the bin was
sealed and curtained.
9. The wood dust was sold to farmers and pellet mills and
hauled away in pick-up and tractor-trailer trucks. The
proceeds went to John Gould, as did the money from wood
chip and bark sales, as payment for use of his chipper,
debarker, and high lift.
10. When sawdust is being loaded into the trucks, some of
it is released into the air. To reduce the potential of the dust
affecting the [Appellants], however, the trucks are loaded
as far from the [Appellants’] Property as possible.
11. Vehicles approaching the mills from the east travel past
the [Appellants’] house and proceed up a hill. By the time
they reach the H3 [M]ill, they are on a downslope that, if
followed farther, leads to more residential properties.
12. When both mills were operating at their peak, as many
as 25 commercial trucks drove past [Appellants’] residence
each day to conduct business at the mills.
1.[Appellants] set the number at 25-50 per day, while
Mr. Byler indicated that 6-8, but sometimes more,
visited each mill on any given day. [Appellants’] clear
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tendency to exaggerate made the former
unbelievable, while 25 total adds a conservative
cushion to the latter, thereby accounting for
“sometimes more.”
13. Traffic from passenger vehicles is also heavier during
hours of operation.
14. Pike Road is a dirt road that becomes dry and generates
significant amounts of airborne dust, some of which pollutes
the air and surfaces around [Appellants’] home.
15. In accordance with a schedule dictated by the Township,
D&F pays to have Pike Road oiled and chipped. This is only
a temporary solution, though.
16. Although the Township requires the mills to bond Pike
Road and pay for it to be oiled and chipped, it is ultimately
the Township’s responsibility to maintain it.
17. Mr. Reed, who grew up on a dairy farm, moved to the
[Appellants’] Property in 2009 and began casually farming
it. To that end, he raises a few head of beef cattle and grows
and harvests hay.
18. Exposure related to the mobilization of moldy hay can
result in “Farmer’s Lung.”
19. Mr. Reed’s income derives from his employment as an
excavator—an occupation that has exposed him to varying
amounts of ambient dust for more than 40 years.
20. In July of 2011, Mr. Reed experienced two severe
respiratory attacks, after which he began to use an inhaler.
He now uses two bronchial inhalers and takes medication to
manage chronic lung disease. His condition is exacerbated
by sleep apnea, which Dr. P[e]nek attributes to the weight
gain Mr. Reed has realized on account of having to be on
steroids.
21. Mr. Reed’s initial report to Dr. P[e]nek was that his
“work environment and home environment” were causing
his problems, and the doctor’s official opinion was that
“wood dust, mold, and other environmental pollutants” were
causing his “significant medical issues.” When he testified,
however, Dr. P[e]nek excluded all but the wood dust
emanating from the defendant sawmills as notable
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contributors. Relying to an unreasonable degree on the
literature that linked pulmonary diseases with the inhalation
of wood dust, he made no mention of mold and would not
discuss how “other environmental factors” could or could not
change the equation or how his opinion might be affected if
conditions were different than he believed them to be.
22. Mr. Reed likewise concluded that his breathing issues
could be traced to the sawdust and nothing else. Though at
his deposition he identified both the sawdust and road dust
as irritants, he testified at the hearing that it was “definitely”
and solely the “fugitive dust off the saws” that was causing
his problems. Confronted with his deposition testimony, he
qualified that he had only had an allergic reaction to the
sawdust. He further insisted that his excavation work was
not an issue since he was always in a sealed cab.2
2Mr. Reed added that be sometimes opened the cab
windows to get fresh air when the weather was nice
but said he only did so when his work was not
generating a lot of dust.
23. The offending dust, according to Mr. Reed, rose up from
the sawmills and formed a massive dust cloud that travelled
eastward and alighted on the [Appellants] Property
whenever the sun was shining and the winds were blowing
out of the west. Such a dust event could be seen from a mile
away, he testified, and could be precipitated by a tractor-
trailer or even a fast-moving car coming down the hill[.]
24. Though its progress could be slowed, Mr. Reed’s chronic,
progressive, and irreversible lung condition will continue to
worsen even if he reduces his exposure to dust and other
irritants.
25. Lake Randall, a professional engineer, was at the mill
site and [Appellants’] Property on multiple occasions in 2017
to complete an impact study related to stormwater runoff,
erosion, and related impacts. He twice saw what he
described as dust clouds around the mills. Justin Rogers, a
DEP inspector sent to investigate multiple complaints of dust
leaving the sawmill properties, was there approximately 15
times and never witnessed such an occurrence.
26. Mr. Rogers did note a few situations that could lead to
sawdust migration if not addressed. None warranted an
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immediate finding that either [sawmill] was in violation of
DEP regulations, though, and because the owners
implemented his preemptive suggestions each time, no
violation was forthcoming.
27. On one occasion, Mr. Rogers responded to Ms. Adams’
complaint by collecting a dust sample from a mantel in her
home. The DEP lab report indicated that it was comprised of
cotton and paper fibers rather than the sawdust Ms. Adams
professed it to be.
28. As is evident from Exhibits 8 & 9, there are times when
mill operations generate a lot of dust, but one cannot
ascertain from the photographs alone whether it comes from
Pike Road as vehicles travel to and from the mills or from
the mills themselves as they process timber.
29. Ms. Adams expressed her view of the dust’s origins
during her testimony. With limited exceptions, however, the
Court does not deem her to be a reliable source of
information.
30. In addition to the allegedly migrating dust, Ms. Adams
has lodged numerous complaints regarding the mills’
alleged non-compliance with Township and DEP
requirements for stormwater management. In failing to
comply, she says, they are discharging large amounts of
water onto her property, which has caused flooding, water
contamination, irremediable mold, and related problems.
31. The Township investigated Ms. Adams’ water-related
complaints as they came in and concluded each time that
the mills were in compliance with its Ordinance. See e.g.,
Exhs. 27. That was also its solicitor’s conclusion. See Exh.
61.
32. Speaking through Inspectors Shaun Wessell and Clint
Stonesifer, the Jefferson County Conservation District and
DEP similarly concluded on multiple occasions that the mills’
practices satisfied DEP standards. See e.g., Exhs. 21, 21,
30, 37, 38, 40 & 63. Although both [sawmills] belatedly
applied for National Pollutant Discharge Elimination System
permits, therefore, both were issued permits and have
remained in good standing with the DEP.
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33. A water quality specialist, Mr. Stonesifer concluded that
most of the offending water emanated from Pike Road, not
the mills. See Exh. 40. That observation coincided with
measures the Township had taken to keep Pike Road clear
of water being emitted from a spring on [Appellants’]
Property. See Exh. 51.
34. As had Mr. Rogers with respect to the sawdust, Mr.
Stonesifer offered suggestions for more effective
stormwater containment. [The sawmills] implemented
every suggestion, on account of which Mr. Stonesifer never
found them to be in violation of DEP regulations. He
concluded, moreover, that the abatement measures they
had taken were adequate under the circumstances.
35. Mr. Randall disagreed with Mssrs. Wessel and
Stonesifer, as well as the Township. The water flooding the
[Appellants’] Property, he said, was clearly coming from the
mills, whose purported best management practices were not
permissible or effective long-term solutions for stormwater
management. [The sawmills], he opined, were in violation
of DEP requirements and the Township’s Ordinance. Both
authorities, he said, were simply not enforcing their
standards.
36. Ms. Adams and Mr. Reed concurred with their expert’s
conclusions in that regard. Whereas Mr. Randall declined to
speculate on the DEP and Township’s reasons, however,
[Appellants] expressed their belief that both authorities
continued to overlook the defendants’ violations because it
was financially advantageous to do so.
Trial Ct. Op. at 2-3.2
The trial court concluded that Appellants had failed to establish a clear
right to relief and entered an order denying the “petition for injunctive relief.”
Order, filed Jan. 7, 2020. Appellants filed this timely appeal.
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2The parties also presented testimony about “smoking” piles of wood and
noise, and the court found that Appellants’ failed to prove either was a
nuisance. Appellants do not challenge these findings on appeal.
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This Court issued a Rule to Show Cause, directing Appellants to explain
why the Court should not transfer this appeal to the Commonwealth Court.
Order, filed Feb. 2, 26, 2020. We noted that the appeal was “from an order
dealing with an action raising issues related to a municipal ordinance,
Henderson Township, and a regulatory authority (the Department of
Environmental Protection).” Id. Appellants filed a response to the Rule to
Show Cause, and this Court discharged the Rule and allowed the appeal to
proceed, but informed the parties that the merits panel could revisit the issue.
Order, filed Mar. 16, 2020.
D&F Lumber then filed a motion to dismiss, arguing Appellants failed to
preserve their issues because they did not file post-trial motions. This Court
denied the motion without prejudice, stating D&F Lumber could raise the issue
in its brief. Order, filed Mar. 17, 2020.
Appellants’ brief raises the following issues:
A. Is retention of an appeal in a case involving the
application of local ordinances by the Superior Court
appropriate where the appeal involves only nuisance and
common law claims for equitable relief between private,
nongovernmental parties, and where no objection to this
Court’s exercise of jurisdiction by [D&F Lumber] perfects
this Court’s jurisdiction pursuant to Pa. R.A.P. 741(a)?
B. Is dismissal of an appeal for a lack of post -trial motions
practice pursuant to Pa R.C.P. 227.1 inappropriate where
the appealed-from order involved purely claims for
injunctive relief, was not entered following a “trial” of all
issues, and legal claims for relief remain outstanding
following the appealed-from order?
C. Was the trial court’s denial of injunctive relief improper
where:
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1. The testimony and evidence establishing [D&F
Lumber’s] sawmill facilities’ stormwater trespasses
and nuisances is unrebutted, clear, and credible by
the manifest weight of the evidence?
2. The testimony and evidence establishing the health
and property impacts of [D&F Lumber’s] sawmill
facilities’ air pollution nuisances is unrebutted, clear,
and credible by the manifest weight of the evidence?
3. The court, in denying injunctive relief for common
law nuisances and trespasses, relies on a regulatory
authority’s determination that [D&F Lumber’s]
conduct adheres to a specific regulatory scheme?
Appellants’ Br. at 2-3.
A. We decline to transfer this appeal to Commonwealth Court.
In their briefs, both parties address whether this appeal belongs in
Commonwealth Court. Appellants concede that their Complaint asserts a
cause of action under the Stormwater Management Act for alleged violations
of the township Stormwater Management Ordinance, and therefore “draws
into question . . . the application of a local ordinance.” Appellants’ Br. at 26.
However, they argue that because they did not advance this theory in their
Petition for Injunctive Relief, and the court did not engage in an “extended
analysis” of the issue, transfer is inappropriate. Id. They add that even if
jurisdiction “would more properly” lie in the Commonwealth Court, the
Superior Court “may nevertheless retain jurisdiction as a matter of discretion
upon hearing no objection from [D&F Lumber].” Id. at 27.
D&F Lumber responds that although the Henderson Township and
Jefferson County were not parties, the lawsuit involved the application,
interpretation, and enforcement of a township ordinance. They argue that
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Appellants wish to avoid unfavorable Commonwealth Court precedents. D&F
Lumber’s Br. at 12.
The Commonwealth Court has exclusive jurisdiction in appeals from
Common Pleas Courts in “[a]ll actions or proceedings . . . where is drawn in
question the application, interpretation or enforcement of any . . . local
ordinance or resolution. . . .” 42 Pa.C.S.A. § 762(a)(4)(i)(B). Nonetheless, our
appellate jurisdiction is perfected if an appellee fails to file an objection to it
on or before the last day for the filing of the record, unless we order otherwise.
See 42 Pa.C.S.A. § 704(a); Pa.R.A.P. 741(a). Once our jurisdiction is
perfected, we determine whether to retain jurisdiction over an appeal on a
case-by-case basis. We make that determination by considering all relevant
factors, such as whether: (1) the case has already been transferred; (2) our
retention will disrupt the legislatively ordained division of labor between the
intermediate appellate courts; and (3) there is a possibility of establishing two
conflicting lines of authority on a particular subject. See Mohn v. Bucks
County Republican Comm., 218 A.3d 927, 933 (Pa.Super. 2019) (en banc).
Here, because Appellees did not lodge any objection to our jurisdiction
within the allotted time, our jurisdiction is perfected. We therefore need not
determine whether this case draws into question “the application,
interpretation or enforcement of” a local ordinance, such that jurisdiction
would lie in the Commonwealth Court. We instead have considered the
applicable factors and concluded that transfer is not indicated. Retaining
jurisdiction will not disrupt the legislatively ordained division of labor between
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the intermediate appellate courts or risk establishing two conflicting lines of
authority, as we do not need to engage in an analysis of matters within
Commonwealth Court’s jurisdiction in order to dispose of this appeal. We will
retain jurisdiction over this appeal.
B. We Decline to Dismiss the Appeal for Failure to File Post-Trial
Motions.
D&F Lumber next argues Appellants waived their appellate issues by
failing to file post-trial motions. D&F Lumber cites Pennsylvania Rule of Civil
Procedure 227.1, and cites precedents applying it in equity trials. D&F
Lumber’s Br. at 16-17. It claims the permanent injunction hearing “had all the
hallmarks of a trial,” Appellants “covered all issues” raised in their Complaint,
and the trial court addressed all of Appellants’ claims. Id. at 18. It argues that
Appellants’ “primary prayer for relief” was denied, and the request for money
damages became irrelevant “when Appellants were unable to meet their
burden of proof entitling them to the same.” Id.
Appellants respond that the order at issue disposed of less than all
claims in the case, and therefore was not a final order. Rather, the order
denied only injunctive relief, and Appellants therefore filed an interlocutory
appeal under Pennsylvania Rule of Appellate Procedure 311(a)(4).
In Wolk v. School District of Lower Merion, 197 A.3d 730 (Pa.
2018), the Pennsylvania Supreme Court addressed the role of post-trial
motions in the context of an appeal as-of-right from an order granting an
injunction, but where other claims are still pending. In Wolk, the plaintiffs
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filed a complaint seeking damages and the appointment of a trustee, and
seeking equitable relief “primarily in the form of court-supervised
modifications of the procedures employed by the District’s administrators.”
197 A.3d at 732. While preliminary objections and other motions were
pending, the plaintiffs filed a petition for injunctive relief seeking “immediate
relief,” requesting that the court enjoin the defendant from enacting any tax
increase. Id. (emphasis removed). The plaintiffs did not file a trial certification
or pre-trial statement as required under the local rules for a case to be trial-
ready. Id. at 732-33. The defendant’s response to the petition for injunctive
relief “made clear . . . that it believed that the [plaintiffs] were seeking a
preliminary injunction.” Id. at 733.
At the hearing, the defendants informed the court that the board had
enacted a tax increase the night before, prompting plaintiffs to change course
slightly and ask the court to enjoin implementation of the tax increase. Id.
Following the hearing, the defendant filed proposed findings of fact and
conclusions of law, which “again manifested its understanding that the
proceeding before the common pleas court was . . . a hearing on a request for
a preliminary injunction.” Id. at 733-34. The plaintiffs, however, claimed they
sought a permanent, not a preliminary, injunction. Id. at 734.
The trial court “couched its ruling in terms consistent with a permanent
injunction . . . while also recognizing that there had been no undertaking
whatsoever to resolve all issues in the case.” Id. “[A]nticipating that the order
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might be construed as . . . imposing a preliminary (or special) injunction . . .
the court imposed a bond upon [the plaintiffs].” Id.
The defendant appealed, “invoking [Rule 311(a)(4)], which provides
that an interlocutory appeal generally may be taken as of right from” an
injunction order. Id. The plaintiffs sought to quash the appeal, claiming the
defendant did not preserve its issues on appeal by failing to file post-trial
motions. Id.
The Supreme Court found the appeal was proper under Rule 311(a)(4),
as an appeal from an order granting an injunction. See id. at 739. The Court,
however, addressed whether post-trial motions were required. It explained
that the better approach for determining whether post-trial motions were
necessary was to focus “on the stage of the proceedings rather than whether
a trial-like proceeding may have been conducted.” Id. at 739-40. The Court
then pointed out that Rule 227.1(c)(2) requires a party in a non-jury civil case
to file post-trial motions within 10 days after the filing of “the decision,” and
“[w]here ‘the decision’ in the case has not yet issued, Rule 227.1 is not
implicated.” Id. at 740. The Court defined “the decision” in a non-jury case
for purposes of Rule 227.1 as “the decision that disposes of all claims for
relief.” Id. (citing Pa.R.C.P. 1038(b)).
The Court acknowledged that challenges may arise in complex cases,
“such as where claims are tried and/or considered in a divided fashion prior
to any judgment.” Id. It stated, however, that it had “no intention” of
requiring “serial post-trial motions in such cases,” stating that Rule 1038(b) –
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which governs civil bench trials and provides for a “decision” that “dispose[s]
of all claims for relief” – serves to prevent such a result. Id.; Pa.R.C.P.
1038(b). The Court also recognized that circumstances in particular cases may
obviate the need for a “trial,” such as when the court has held a hearing or
hearings to address “exigencies.” Id. The Supreme Court stated, however,
that in such cases, the trial court should advise the parties and “clarify that
post-trial motions are accordingly due.” Id. at 741.
Here, the Complaint sought both injunctive relief and money damages.
Two years into the litigation, Appellants filed a petition for a preliminary
injunction, but the order ultimately setting a hearing listed a hearing for a
“permanent injunction.” Both parties at various times expressed that not all
claims or requests for relief would be addressed at the hearing, and the
opinion and order issued by the court addressed only the petition for an
injunction. Due to the ambiguity surrounding the nature of the proceedings,
and the fact that the trial court did not advise the parties that the hearing
would serve as the “trial” such that post-trial motions would be necessary, we
decline to find waiver due to a failure to file post-trial motions. See Wolk,
197 A.3d at 741.
C. Appellants’ Substantive Issues
Appellants raise three substantive challenges to the trial court’s opinion
and order. They claim that the court should have granted injunctive relief
based on what they term the “unrebutted, clear and credible” evidence that
they believe established that the stormwater constituted a nuisance and
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trespass and the sawmills create an air pollution nuisance. They further argue
that the court erred in relying on a regulatory authority’s determination when
determining whether to grant injunctive relief for common law nuisance and
trespass. Appellants’ Br. at 2-3.
Our standard of review of an order granting or denying a permanent
injunction is de novo and our scope of review is plenary. Liberty Place Retail
Assocs., L.P. v. Israelite Sch. of Univ. Practical Knowledge, 102 A.3d
501, 506 (Pa.Super. 2014) (citation omitted). “[W]e must accept the trial
court’s factual findings and give them the weight of a jury verdict where they
are supported by competent evidence.” Id. (citation omitted).
“To 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.” Id. at 505-06 (citing J.C. Ehrlich Co. v.
Martin, 979 A.2d 862, 864 (Pa.Super. 2009). “Unlike a preliminary injunction,
a permanent injunction does not require proof of immediate irreparable
harm.” Id.Pennsylvania law defines private nuisance as:
[C]onduct that 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.
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Youst v. Keck’s Food Serv., Inc., 94 A.3d 1057, 1072 (Pa.Super. 2014)
(quoting Restatement (Second) of Torts § 822).
Liability for stormwater trespasses is limited. “[T]he right of the upper
landowner to discharge water on the lower lands of his neighbor is, in general,
a right of flowage only, in the natural ways and natural quantities.” Id. at
1073 (quoting Pfeiffer v. Brown, 30 A. 844, 845 (Pa. 1895)). If the upper
landowner “alters the natural conditions so as to change the course of the
water, or concentrate[s] it at a particular point, or by artificial means [ ]
increase[s] its volume, [the landowner] becomes liable for any injury caused
thereby.” Id. (quoting Pfeiffer, 30 A. at 845) (most alterations in Youst).
However, liability exists “only where the water is diverted from its natural
channel or where it is unreasonably or unnecessarily changed in quantity or
quality. . . .” Id. (quoting Lucas v. Ford, 69 A.2d 114, 116 (Pa. 1949)).
Appellants first maintain that the trial court’s order was against the
weight of the evidence. They content that their expert, Randall, “testified in
unrebutted fashion as to environmental impacts to a particular piece of
property.” Appellants’ Br. at 40. They claim only Randall performed a site-
wide, comprehensive storm water analysis identifying areas of the property
where water from D&F Lumber’s sites invaded. They claim the report
evaluated both pre- and post-construction drainage patterns. Further, they
claim Randall’s report and testimony explained the conditions of the property
that led to the storm water impacts.
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They then argue that the record does not support some of the trial
court’s findings. Appellants’ Br. at 41. They challenge the court’s findings that
Stonesifer concluded most of the water emanated from Pike Road, not D&F
Lumber’s sawmills, and that Stonesifer found the abatement measures
adequate. Appellants contend that the evidence “flatly contradicted” the claim
that Stonesifer evaluated whether the sawmills adversely impacted
Appellants’ property. Appellants argue Stonesifer’s testimony shows he
evaluated the sawmills’ compliance with the regulatory schemes, not their
impact on Appellants’ property. They point out that Stonesifer testified that
he was “not really involved” in evaluating whether a common law trespass
happened. Id. at 42 (citation omitted).
They further claim that Stonesifer’s testimony about stormwater
controls was limited to a discussion of a sediment trap on Miller’s property and
the source of discharges onto Pike Road. They maintain that Stonesifer “did
not address, much less contradict, anything Randall put into evidence
regarding impacts to other areas of the Adams property.” Id. Appellants
conclude that “the trial court’s finding that the Sawmills are not responsible
for the flooding and erosion experienced by [Appellants] flies in the face of
competent, credible, and unrebutted expert testimony, and accordingly is not
supported by substantial evidence.” Id. at 43. They claim Randall’s credible
and unrebutted testimony established that the water “unreasonably and
unnecessarily changed in quantity [and quality],” the invasions were due to
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intentional conduct, and the inundation would harm a person of reasonable
sensibilities. Id.
D&F Lumber replies that, contrary to Appellants’ contention, a court
need not accept the testimony of an expert, even if unrebutted. Further, they
contend the record contains testimony from “individuals who could be
considered independent expert witnesses,” including an inspector for the DEP
Air Quality Program, Justin Rogers, a district manager for the Jefferson County
Conservation District, Shaun Wassell, and a Water Quality Specialist for
Pennsylvania, Clint Stonesifer, and that such testimony contradicted Randall.
We disagree with Appellants that a fact-finder must agree with
unrebutted expert testimony. Rather, “the fact-finder is free to accept or reject
the credibility of both expert and lay witnesses, and to believe all, part or none
of the evidence.” Gunn v. Grossman, 748 A.2d 1235, 1240 (Pa.Super. 2000)
(citing Gaydos v. Gaydos, 693 A.2d 1368 (Pa.Super. 1997).
Here, the trial court concluded:
[T]he credible evidence does not support [Appellants’]
position that [D&F Lumber is] responsible for the water that
floods their property at times. Given Ms. Adams’ poorly
veiled animosity toward [D&F Lumber] and some of [its]
associates, as well as her denial that she ever admitted that
her own spring was discharging water onto Pike Road, her
opinion on the matter is highly suspect. Mr. Randall did not
evidence the same bias, of course. Weighed against the
testimony of a trained and experienced DEP water quality
specialist who draws a paycheck from the entity whose
regulations he is instructed to enforce, however, his opinion
is unconvincing. The Court is thus satisfied that the
measures H3 and D&F have implemented to manage the
stormwater on their own properties have in fact protected
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[Appellants’] Property from being inundated by it. Clearly
[Appellants] have experienced flooding on their property.
What is not clear, however, is that [D&F Lumber is] to
blame.
Trial Ct. Op. at 8-9 (footnote omitted).
The court’s factual findings and credibility determinations are supported
by the record, and it did not err in finding Appellants failed to establish that
any flooding on their property was due to D&F Lumber’s property. Although
Randall testified the water flowed from the mills and caused a negative impact
on Appellants’ property, D&F Lumber presented testimony the water flowed
from elsewhere. It was Appellants’ burden to convince the court by a
preponderance of the evidence that they were entitled to relief. As the trial
court did not credit their evidence, they consequently failed to carry their
burden.
Appellants next argue that the evidence does not support the trial
court’s finding that “Mr. Reed’s respiratory issues predated the mills’ major
expansion,” and “Western Pennsylvania’s prevailing meteorological conditions
guarantee that the levels of dust visible in the photographs comprising Exhibit
9 do not occur with the frequency [Appellants] would have the court believe.”
Appellants’ Br. at 44 (quoting Trial Ct. Op. at 7).
Appellants concede that the court rejected some of Dr. Penek’s findings
as inconsistent with Reed’s testimony. They maintain, nonetheless, that
“several aspects of Dr. Penek’s opinion [were] unrebutted and independently
sufficient to demonstrate that the substantial evidence establishes a casual
relationship between the Sawmills’ expansion and Reed’s respiratory
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diseases.” Appellants’ Br. at 45. They note Dr. Penek had Reed undergo
testing to evaluate the nature of his lung impairments and relied on his
training and expertise in pulmonology, noting there was a “relationship
between inhalation of wood dust and chronic bronchitis and emphysema and
lung cancer.” Id. Dr. Penek further explained the sawmill’s dust causes Reed
to have coughing attacks. Id. Appellants maintain there was no competing
evidence offered as to a source of Reed’s pulmonary distress. They further
claim no evidence supports the court’s conclusion that the meteorological
conditions preclude the causation theories. Id.D&F Lumber responds that the court was not required to accept Dr.
Penek’s testimony, and that in any event, his testimony was not “unrebutted.”
D&F Lumber’s Br. at 37-38.
The trial court concluded:
The Court does not doubt that Mr. Reed suffers from a
progressive respiratory disease exacerbated by dust. . . .
Based on the evidence, however, the Court doubts whether
[D&F Lumber is] the source of [the] problem.
The credible evidence indicates that Mr. Reed’s respiratory
issues predated the mills’ major expansion. Utilizing the
timeline provided by [Appellants], Dr. P[e]nek testified that
it was 2012 when the mill properties were undergoing the
excavation that precipitated Mr. Reed’s respiratory distress.
It was then, he testified, that his client began developing
asthmatic symptoms. Having not obtained medical records
more than five years old, though, Dr. P[e]nek was not in a
position to make that determination. Meanwhile, Mr. Reed
contradicted his medical expert’s timeline and proffered
causation, stating plainly that he was first prescribed an
inhaler after having two severe respiratory attacks in 2011—
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the year before heavy excavation commenced at the mill
sites.
The mills may contribute to Mr. Reed’s continued respiratory
decline, but only indirectly. That is to say that the dust
arising from Pike Road would likely be significantly less but
for the mill-related traffic. To the extent that the mills are
responsible for ensuring the road’s condition, however, they
are doing what the Township demands of them. It is not
their duty to further ensure that drivers travel at dust-
minimizing speeds or that Pike Road is in a condition year
round such that it will not create dust. At the same time,
Western Pennsylvania’s prevailing meteorological conditions
guarantee that the levels of dust visible in the photographs
comprising Exhibit 9 do not occur with the frequency
[Appellants] would have the Court believe.
As for the wood dust, [Appellants’] testimony is simply not
credible. By their account, a cartoonish dust cloud visible
from a mile away regularly rises up from the mill properties
on dry, windy days, travels the precise distance from there
to the homestead portion of their 150 acres, and descends
to cover their house and surrounding property. Improbable
in and of itself, the likelihood of that scenario is further
reduced by the following considerations: 1.) That [D&F
Lumber has] a financial incentive to retain as much sawdust
as [it] can; 2.) that it is blown directly into a designated dust
bin that, excepting the brief span of time between when it
was breached and repaired, keeps it contained; and 3.) that
DEP personnel who was at the site more than a dozen times
specifically tasked with ascertaining the mills’ level of
compliance with dust containment requirements never
witnessed a concerning sawdust event, never felt the need
to issue a violation, and only ever observed conditions he
thought could lead to a violation but that were quickly
remedied in accordance with his suggestions.
Trial Ct. Op. at 7-8.
The record supports the trial court’s factual findings and credibility
determinations, and the court did not err in concluding Appellants did not
prove that Reed’s respiratory ailments were caused by the operation of the
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sawmills. As the court noted, Reed’s condition began before the mills began
increased operations, and other conditions of his housing and employment
contributed to the ailments.
In their final claim, Appellants maintain the court erred in relying on
regulatory determinations that the sawmills were in compliance with specific
regulatory schemes. They note the trial court relied on testimony from
regulators that D&F Lumber complied with relevant regulatory schemes, and
argue such reliance was “inappropriate given the nature of the claims
asserted.” Appellants’ Br. at 46-47. They argue that a court may enjoin lawful
activities where they unreasonably interfere with another person’s property
rights, and therefore, D&F Lumber’s activity could be enjoined regardless
whether it complied with environmental statutes.
D&F Lumber argues the testimony from the government employees
showed D&F Lumber was in compliance with the government mandates and
that they were not engaged in a trespass or nuisance. It established there was
no credible evidence that sawdust from the facilities was unreasonably
harming Appellants or that D&F Lumber’s property was the source of the water
harming Appellants’ property.
We conclude the court did not err in relying on testimony from
government employees, who testified that D&F Lumber was in compliance
with the Township Ordinance and DEP regulations. Although such evidence
alone may not establish a trespass or nuisance did not occur, it is relevant
evidence that supports a finding that no actionable tort exists.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2021
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