Oliver, K. v. Gasdik, D.

J-S53032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIM OLIVER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAVID GASDIK AND BARBARA ANN : No. 1390 EDA 2019
GASDIK :
Appeal from the Order Entered May 1, 2019
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2018-C-0538
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 17, 2020
Appellant Kim Oliver appeals from the order sustaining a preliminary
objection filed by Appellees David Gasdik and Barbara Ann Gasdik, dismissing
her fourth amended complaint, and granting Appellees’ motion for sanctions.
Appellant claims that the trial court erred in dismissing her fourth complaint
for legal insufficiency and ordering her to pay $2,500 for Appellees’ attorney’s
fees. For the reasons that follow, we reverse the dismissal of the complaint
and remand this matter for further proceedings, but affirm the sanctions.
The trial court summarized the background of this appeal as follows:
This case involves two adjoining rowhomes with a common
chimney between the properties. The chimney does not service a
fireplace but is connected to a gas boiler. [Appellant] had her
home weatherized by Custom Weatherization. Custom
Weatherization determined the chimney had a hole in it which was
leaking carbon monoxide; the leak was on [Appellees’] property.
[Appellant] was warned by Community Action, the organization
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that arranged for the weatherization, that she was at risk for low[-
]level carbon monoxide and there was a substantial risk of high-
level carbon monoxide poisoning if the boiler on [Appellees’] rental
property failed, [Appellees] forbade their tenants from applying
for inclusion in the weatherization program.
The procedural history of this case began with [Appellant] filing a
praecipe for writ of summons on March 6, 2018. A complaint after
summons was filed May 29, 2018, followed by an answer with new
matter. On June 20, 2018, [Appellant] filed a [first] amended
complaint, [p]reliminary objections and motion to fix amount in
controversy were filed on July 10, 2018 followed by a response to
preliminary objections.
On July 23, 2018, the Honorable Douglas O. Reichley recused
himself from this case and the case was reassigned to the
undersigned.
On September 11, 2018, a status conference and argument on
the preliminary objections were held, Attorney Robert
Pandaleon[1] appeared on behalf of [Appellant] and [Appellees]
represented by Attorney Andrew Bench. During the status
conference, the case was scheduled for routine deadlines and
important dates including a pretrial and jury trial date.[2] It was
not brought to the [trial] court’s attention that [Appellant] had
consented to have the case arbitrated pursuant to the documents
filed in response to the preliminary objections.
By order dated September 19, 2018, th[e trial] court ruled on
[Appellees’] preliminary objections sustaining the lack of
specificity objection and permitting twenty days to file a second
amended complaint that more specifically sets forth the cause of
action. [Appellant] was also directed to file a praecipe to strike
the case for arbitration consistent with representations made in
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1 Attorney Richard J. Orloski filed the complaints relevant to this appeal and
represents Appellant in this appeal. Attorney Pandaleon appeared as
substitute counsel when Attorney Orloski was not available.
2 On September 12, 2018, the trial court issued a case management order
based on Appellant’s first amended complaint and Appellees’ answer and new
matter. The September 12, 2018 order directed that the parties complete
factual discovery by December 15, 2018. While Appellant subsequently filed
her second amended complaint, the parties engaged in some discovery, which
Appellees referred to in their preliminary objections.
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her brief, which stated: “[a]t this point, [Appellant] is willing to
agree to an arbitration where damages are under $50,000” and
“[at] this point, this is a case for arbitration.”
[Appellant] filed a second amended complaint on October 3, 2018.
[Appellees] filed preliminary objections to this new pleading and
[Appellant] responded in opposition.
The preliminary objections to the second amended complaint were
scheduled for argument but prior to that date, on October 31,
2018, [Appellant] filed a motion to amend complaint and a third
amended complaint. [Appellees] filed preliminary objections and
[Appellant] filed a response in opposition. Argument was heard
on preliminary objections on December 4, 2018. Present for
[Appellant] was Attorney Pand[a]leon; Attorney Bench
represented [Appellees]. By order dated December 11, 2018, th[e
trial] court sustained the preliminary objections to the third
amended complaint and provided twenty days for [Appellant] to
file a fourth amended complaint.[3] The order stated “[t]he fourth
amended complaint must clearly set forth the cause(s) of action
asserted, provide factual assertions to support the causes of
action with specificity, assert only the damages claimed, and must
be properly verified.”
On December 31, 2018, [Appellant] filed a fourth amended
complaint (demanding a jury trial and asserting that damages are
in an amount in excess of the jurisdictional limits for arbitration).
[Appellees] filed preliminary objections to the fourth amended
complaint on January 11, 2019; [Appellant] filed a response in
opposition on January 31, 2019. Additionally, [Appellees] filed a
motion to compel and a motion for protective order on February
7, 2019; a motion for sanctions on February 9, 2019; a motion for
discovery sanctions on February 11, 2019; and a motion to
determine sufficiency on February 23, 2019. [Appellant]
responded to all of the motions.
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3Appellant’s third amended complaint set forth two counts, one for negligence
and one for an intentional tort of “reckless endangerment.” The trial court,
when sustaining Appellees’ preliminary objections to Appellant’s third
amended complaint, expressed confusion over whether a cause of action for
reckless endangerment existed in tort law. N.T., 12/4/18, at 10-11.
Appellant’s fourth amended complaint contained a claim of reckless
endangerment similar to the one in her third amended complaint.
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Argument was scheduled for the preliminary objections and all of
the outstanding motions for April 23, 2019 by scheduling orders
dated February 28, 2019 and March 5, 2019. On April 22, 2019,
th[e trial] court received a continuance application for the April
23, 2019 arguments. Lehigh County Rules of Civil Procedure
provide: “[p]rior to submitting any such motion [for continuance],
the movant or his/her counsel shall confer with all counsel of
record and any unrepresented parties to determine their position
with respect to the continuance request, and shall indicate their
position in the motion.” Leh.R.C.P. 208.3(a)(4). [Appellant]
failed to obtain and/or indicate opposing counsel’s position to the
continuance in her application for continuance.
Attached to the application for continuance was a letter to the
[trial] court stating that [Appellant’s] counsel[, Attorney Orloski,]
will be attached for a federal trial beginning on April 22, 2019, and
will, therefore, be unavailable for argument on April 23, 2019.
Counsel did not provide a copy of the federal attachment to th[e
trial] court. The correspondence further provides:
Regretfully, I must request a continuance of the argument
scheduled for Tuesday, April 23, 2019. I am prepared to
attempt an alternative which is acceptable to you: 1) the
testimony in the jury trial is supposed to end at 5:00 p.m.
If you are agreeable to schedule the argument after 5:00
p.m., I could leave federal court in Allentown and proceed
directly to your courtroom which I should be able to do in
five minutes; or 2) I could have another lawyer cover the
argument for me but that did not work so well the last time
we tried that; or 3) I am content to have the matters
decided on briefs or 4) on behalf of my client, we would
waive oral argument on behalf of [Appellant] and to allow
[Appellees] to argue to you on Tuesday, April 23, 2019.
In response to [Appellant’s] request for continuance, [Appellees]
provided the [trial] court with correspondence indicating their
opposition to the continuance request. The [trial] court refused
the continuance application. A telephone call was placed to the
offices of both [Appellant’s and Appellees’] counsel given the
proximity of the request and the decision to the scheduled
argument. The continuance application with the refusal was
signed and filed April 22, 2019.
On April 23, 2019, argument in this matter was held. Counsel did
not appear on [Appellant’s] behalf; Attorney Bench appeared and
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argued on behalf of [Appellees]. All of the pending matters were
taken under advisement and were decided based on consideration
of all of the written filings.
On May 1, 2019, th[e trial] court ruled on the six matters pending
in the above-captioned case. Pursuant to the May 1, 2019 Order,
th[e trial] court: sustained preliminary objections in the nature of
a demurrer and dismissed [Appellant’s] Fourth Amended
Complaint; the remaining preliminary objections were denied as
moot. Further, th[e trial] court denied as moot [Appellees’]
motion to compel, [Appellees’] motion for protective order and
[Appellees’] motion to determine sufficiency, and denied
[Appellees’] motion for sanctions. Finally, the [trial] court granted
[Appellees’] motion for sanctions pursuant to Pa.R.C.P. 1023.2
and ordered [Appellant] to pay [Appellees] $2,500 in attorney’s
fees.
Trial Ct. Op., 7/1/19, at 1-5 (footnotes omitted).
Appellant timely appealed and submitted a request for transcription of
the April 23, 2019 argument. However, Appellant did not pay for the cost of
transcription. The trial court issued an order requiring the filing and service
of a Pa.R.A.P. 1925(b) statement, and Appellant complied. The trial court
issued a responsive Rule 1925(a) opinion.
Appellant presents the six issues, which we have reordered for review
as follows:
1. Whether or not a state trial court could dismiss a case for
counsel’s non-appearance at oral argument where the state
trial judge had actual notice that [Appellant’s] counsel was
physically present in a five day on[-]going jury trial in federal
court . . . [.]
2. Whether or not Article[] VI, Clause II, of the United States
Constitution called the Supremacy Clause mandates that a
federal court’s scheduling preempts a state court scheduling
order[.]
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3. Whether or not the doctrine of intrastate comity in state court
conflicting date require that the earliest court scheduling order
be given preference[.]
4. Whether or not [Appellant’s] counsel ought to be censured on
his non-appearance in state court before his federal court
appearance[.]
5. Whether or not the order dismissing the four counts of
[Appellant’s] amended complaint violated the established rule
that, on preliminary objections, facts are decided on facts most
favorable to [Appellant.]
6. Whether or not the facts of this case support a sanction on
[Appellant’s] counsel[.]
Appellant’s Brief at 6.
In her first four issues, Appellant asserts that that the trial court
dismissed her action based on her counsel’s failure to appear at argument on
April 23, 2019. See Appellant’s Brief at 21. Appellant asserts that her
attorney requested a continuance and offered several alternatives, including
having the trial court decide Appellees’ preliminary objections on the briefs.
Id. at 27. Appellant claims that her counsel proffered legitimate reasons for
his failure to appear and that dismissal of her complaint was too harsh a
remedy for her counsel’s failure to appear for argument. Id.
“Our standard of review of a trial court’s dismissal of a complaint is an
abuse of discretion.” Norman for Estate of Shearlds v. Temple Univ.
Health Sys., 208 A.3d 1115, 1119 (Pa. Super. 2019) (citation omitted).
Similarly, we review the denial of a motion for continuance for an abuse of
discretion. Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022,
1035 (Pa. Super. 2001). “An abuse of discretion is more than just an error in
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judgment and, on appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the results of partiality, prejudice, bias or ill-will.”
Id. (citation omitted).
Instantly, Appellant assumes that the trial court dismissed her fourth
amended complaint based on her counsel’s failure to appear for oral
argument. However, the trial court stated that it considered Appellees’
preliminary objection based on the pleadings and the parties’ briefs. Trial Ct.
Op. at 8-9. The trial court explained that it did not dismiss Appellant’s
complaint based Appellant’s counsel’s failure to appear at the April 23, 2019
argument. Id. at 7. Because there is no support for Appellant’s assumption
that the trial court dismissed her action based on her counsel’s failure to
appear at the April 23, 2019 argument, we conclude that Appellant’s first four
issues are meritless.4 See Norman, 208 A.3d at 1119; Corrado, 790 A.2d
at 1035.
In her fifth issue, Appellant asserts that the trial court erred in sustaining
Appellees’ preliminary objection and dismissing her fourth amended complaint
for legal insufficiency. See Appellant’s Brief at 27-52.
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4 We add that Appellant’s counsel did not pay for the transcription of the April
23, 2019 arguments. As noted by the trial court, the failure to ensure that
this Court has a complete record would constitute an independent basis to find
Appellant’s first four issues waived. See MacPherson v. Magee Mem’l
Hosp. for Convalescence, 128 A.3d 1209, 1224 (Pa. Super. 2015) (en
banc).
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Initially, we summarize the relevant portions of Appellant’s fourth
amended complaint, which read as follows:
5. At all times referenced herein [Appellant] resided next to the
rental property owned by [Appellees].
6. [Appellant] believes the property owned by [Appellees] has
maintained a dangerous level of carbon monoxide at all relevant
times hereto
* * *
10. The chimney does not service any fireplace but is connected
to the gas boiler.
11. An entity known as Community Action . . . was sponsoring a
free weatherization program including an audit of the house prior
to performing the actual weatherization.
12. The auditor who was assigned to audit [Appellant’s] home was
Matthew Woll . . . .
13. [Appellant] was approved by Community Action to receive the
benefit.
14. Community Action hired Custom Weatherization to do the
weatherization at [Appellant’s] residence.
* * *
17. In the process of completing the work, Custom Weatherization
required access to the attic.
18. Prior to the involvement of Custom Weatherization, there was
no access from to the attic.
19. [Appellant] gave Custom Weatherization permission to make
a hole in the ceiling and walls as necessary to access the attic.
20. Custom Weatherization accessed the attic, and upon
examination, determined that the chimney which was used by
[Appellant’s and Appellees’ properties] had a hole in the chimney
which was leaking carbon monoxide.
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21. The leak from the chimney was specifically on [Appellees’]
property and knew [sic] the program would not cover the repairs.
...
22. At time of repairs, previous to this inspection, [Appellant] had
installed a chimney liner on her portion of the chimney and the
inspectors noted that the adjacent owner needed a similar set-up.
23. The chimney liner involved working from [Appellant’s]
basement to the roof of the property.
24. Community Action was not authorized to do the work because
it was [Appellees’] property and they were not covered by the
program, but because the property was rented to tenants who met
the financial requirements, the property was otherwise covered.
25. Community Action warned [Appellant] that she was at risk for
low level carbon monoxide and there was a substantial risk of high
level carbon monoxide poisoning if the boiler on [Appellees’] rental
property failed.
26. [Appellant] checked with her family doctor who determined
that the blood test indicated low levels of carbon monoxide in her
blood.
27. [Appellant] duly reported this problem, and [Appellees] were
given the option of having their tenants apply for inclusion in the
weatherization program, but [Appellee] forbade the tenants from
applying.
28. [Appellees] were willing to risk the death of [Appellant] by
carbon monoxide poisoning from its defective chimney.
29. [Appellant] has no records about her involvement with
Community Action, and all records are in the control of Community
Action . . .
Appellant’s Fourth Am. Compl., 12/31/18, at ¶¶ 5-6, 10-14, 17-29. Appellant
listed four counts against Appellees: Count 1—Trespass Quare Clausum Fregit
and Section 158 of the Restatement (Second) of Torts, Count 2—Nuisance,
Count 3–Negligence, and Count 4—“Intentional Tort; Recklessly
Endangering.” Id. at ¶¶ 30-60.
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Appellant sought damages for “physical injury to her mind and body and
damage to her realty.” Id. at ¶ 36. Specifically, for her personal injuries,
Appellant requested recovery for “physical and mental pain, anguish, anxiety,
distress, discomfort, fear of illness and death and inconvenience as a direct
result of carbon monoxide poisoning.” Id. at ¶ 37. Appellant also sought
damages for “the future procurement of medicines, medical attention, and
other treatment rendered necessary by reason of aforesaid injuries.” Id. ¶¶
at 37-38. For the injuries to her property, Appellant requested damages over
$10,000 for “a diminution in the value of her realty because no one wants to
buy a house where they may die by carbon monoxide poisoning,” and “a
permanent diminution of value of her realty because of reputation damage.”
Id. at ¶¶ 40-41. Lastly, Appellant sought punitive damages for Appellees’
“intentional, willful, wanton, malicious and outrageous conduct.” Id. at ¶¶
42.
Appellees filed preliminary objections to Appellant’s fourth amended
complaint raising ten grounds for dismissing or striking portions of the
complaint.5 Of relevance to this appeal, Appellees argued that Appellant
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5 Specifically, Appellees’ ten preliminary objections to Appellant’s fourth
amended complaint sought the following: (1) dismissal of the complaint
because Appellant’s repeated refusal to specify when the leaks occurred
indicated that the “alleged condition, in fact, never actually existed;” Prelim.
Objs. to Fourth Am. Compl., 1/11/19, at ¶ 20.; (2) more specific pleading of
the injuries Appellant suffered, the amounts of Appellant’s medical bills, and
whether the trespass is permanent or abatable, id. at ¶ 37 (wherefore clause);
(3) more specific pleading of Appellees’ conduct supporting Appellant’s
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“fail[ed] to plead whether the alleged release of carbon monoxide was
something that occurred only in the past or is ongoing.” Prelim. Objs. to
Fourth Am. Compl., 1/11/19, at ¶ 16. Appellees asserted that the lack of
specificity as to the time of a leak impeded their ability to raise defenses under
the statute of limitations and laches. Id. at ¶ 19. Appellees also claimed that
time was essential to determine the possible forms of relief and damages. Id.
at ¶¶ 51 & n.9, 53.
The trial court sustained this preliminary objection, reasoning that
Appellant failed to set forth “the dates that any of the allegations took place”
and “if the factual allegations alleged are ongoing or if they were cured at
some point.” Trial Ct. Op. at 10. The trial court further criticized Appellant
for repeatedly asserting a “nonexistent intentional tort [of] reckless
endangerment.” Id. at 11.
On appeal, Appellant contends that that her complaint stated viable
causes of action in nuisance or trespass. Appellant’s Brief at 36-41. Appellant
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request for punitive damages, id. at ¶ 44 (wherefore clause); (4) striking
Count 1 (trespass) as legally insufficient or striking damages for fear of injury,
id. at ¶ 49 (wherefore clause); (5) striking Count 1 (trespass) as legally
insufficient or striking damages for diminution in the value of property, id. at
¶ 54 (wherefore clause); (6) striking Count 2 (nuisance) as legally insufficient
or striking damages for fear of injury, id. at 59 (wherefore clause); (7) striking
Count 3 (negligence) as legally insufficiency or striking damages for fear of
injury, id. at ¶ 65 (wherefore clause); (8) striking count for failure to plead
the permanency of the nuisance and cognizable damages or striking damages
for diminution in the value of property, id. at 70 ¶ (wherefore clause); (9)
striking Count 4 (intentional tort) as legally insufficient and “plausibly
sanctionable,” id. at ¶ 75 (wherefore clause); (10) failure to verify the
complaint, id. at ¶ 77.
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argues that the failure to specify any dates in her complaint was not fatal to
her claims. Id. at 42. Appellant alleges that Appellees’ preliminary objection
mischaracterized her claims as involving a specific leak. Id. Appellant insists
that her claims were “about a chimney with a hole and a defective heating
system which carries a risk of carbon monoxide poisoning.” Id.
Appellant further contends that she does not remember the relevant
dates, but pled sufficient facts for the times relevant to her complaint to be
discovered. Id. at 43. Appellant asserts that the times relevant to her action
were apparent because she alleged that Community Action audited her home
and named the individual auditor and the contractor who attempted to correct
the hole in the chimney. Id. Additionally, Appellant refers to an exhibit
attached to Appellees’ preliminary objections and asserts that the exhibit, a
report for Appellant’s doctor, is “important for the date (January 11, 2018).”
Id. at 42. Referring to her allegations regarding the presence of carbon
monoxide in her home, Appellant notes that she could hold Appellees liable
for a continuing trespass. Id. at 38.
The following principles governing our review:6
Our standard of review of an order of the trial court overruling or
granting preliminary objections is to determine whether the trial
court committed an error of law. When considering the
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6 We note that Appellant did not object when Appellees attached discovery
materials to their preliminary objections to her fourth amended complaint.
Moreover, as noted above, Appellant at times relies on the discovery
materials. However, the trial court apparently did not consider those materials
when dismissing Appellant’s complaint. Therefore, we will not consider any
information when reviewing the trial court’s ruling.
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appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Am. Interior Constr. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 A.3d
509, 512 (Pa. Super. 2019) (citation omitted).
Pennsylvania Rule of Civil Procedure 1019 states that “[t]he material
facts on which a cause of action or defense is based shall be stated in a concise
and summary form. Pa.R.C.P. 1019(a). Additionally, Rule 1019 requires that
“[a]verments of time, place and items of special damage shall be specifically
stated.” Pa.R.C.P. 1019(f). The purpose of the complaint is to “apprise the
defendant of the nature and extent of the plaintiff’s claim so that the
defendant has notice of what the plaintiff intends to prove at trial and may
prepare to meet such proof with his own evidence.” Discover Bank v.
Stucka, 33 A.3d 82, 86-87 (Pa. Super. 2011) (citation and quotation marks
omitted). To that end, “[t]he complaint need not identify specific legal
theories, but it must provide essential facts to support the claim.” 412 N.
Front St. Assocs., LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646, 656
(Pa. Super. 2016) (citation omitted).
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This Court has noted that “[i]n every instance the allegation of time
when the cause of action accrued must be sufficiently specific to enable the
defendant to plead the statute of limitations if it is applicable.” Baker v.
Rangos, 324 A.2d 498, 509-10 (Pa. Super. 1974) (citation and quotation
marks omitted). “The specificity with which time and place must be alleged
to satisfy Rule 1019(f) ‘depends on the nature of the complaint.’” Id. at 509.
In so noting, this Court relied on a former edition of Goodrich Amram, see id.
at 509-10, the current edition of which provides:
The remedy for failing to specifically state time and place in a
pleading depends on the significance of the failure. If place or
time is significant, such as where different law may apply
depending on the place, or where the statute of limitations is
possibly involved, a preliminary objection in the form of a motion
for a more specific complaint is available. If these factors are not
significant, discovery offers an adequate remedy.
2 Goodrich Amram 2d § 1019(f):1.
The essence of a trespass action is the entry on another’s property that
directly infringes on that individual’s right of exclusive possession of property.
Waschak v. Moffat, 109 A.2d 310, 314 (Pa. 1954); accord Restatement
(Second) of Torts § 821D, cmt. d (stating that “[a] trespass is an invasion of
the interest in the exclusive possession of land, as by entry upon it”). With
respect to a claim of a physical trespass, such as an intruding tree branch,
this Court has stated that
an owner of realty has a cause of action in trespass against any
person who has committed a trespass upon his lands, and it is not
necessary for the landowner to allege any actual injury or damage
as an element of the cause of action. There is no need to allege
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harm in an action for trespass, because the harm is not to the
physical wellbeing of the land, but to the landowner’s right to
peaceably enjoy full, exclusive use of his property. Moreover . . .
Any physical entry upon the surface of the land is a trespass,
whether it be by walking upon it, flooding it with water,
casting objects upon it, or otherwise. One may commit a
trespass upon the vertical surface of another's premises, as
well as the horizontal—as where he piles dirt or attaches
wires against a boundary wall.
Jones v. Wagner, 624 A.2d 166, 169 (Pa. Super. 1993) (citations omitted).
This Court has defined 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.
Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical
Knowledge, 102 A.3d 501, 509 (Pa. Super. 2014) (citations and footnotes
omitted). Generally, liability for nuisance also requires “a 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.” Karpiak v.
Russo, 676 A.2d 270, 272 (Pa. Super. 1996).
The Pennsylvania Supreme Court has distinguished trespass and
nuisance as follows:
In legal phraseology, the term nuisance is applied to that class of
wrongs that arise from the unreasonable, unwarrantable, or
unlawful use by a person of his own property, real or personal, or
from his own improper, indecent, or unlawful personal conduct,
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working an obstruction or injury to a right of another, or of the
public, and producing such material annoyance, inconvenience,
discomfort or hurt that the law will presume a consequent
damage. The distinction between trespass and nuisance consists
in the former being a direct infringement of one’s right of property,
while, in the latter, the infringement is the result of an act which
is not wrongful in itself, but only in the consequences which may
flow from it.
Waschak, 109 A.2d at 313-14 (citations and quotation marks omitted).
Reported decisions in Pennsylvania have generally discussed odors,
dust, and gasses under the principles of nuisance. See Folmar v. Elliot Coal
Min. Co., 272 A.2d 910, 912 (Pa. 1971); Waschak, 109 A.2d at 317; Evans
v. Moffat, 160 A.2d 465, 467 (Pa. Super. 1960); accord Karpiak, 676 A.2d
at 275. We have found no reported cases in Pennsylvania applying liability
principles of trespass by a physical thing to an intrusion by a gas or dust.
Compare Jones, 624 A.2d at 169 (noting that “a branch overhanging a
landowner’s property line is a technical trespass” and that “[t]he redressable
harm caused is that of the trespass onto [the] property, not physical damage
done to [the land]”), with Karpiak, 676 A.2d at 275 (declining to address
“whether dust is sufficient enough of a particle to constitute a trespass”
because evidence failed to establish that the dust caused harm to the plaintiffs’
persons or property).
Moreover, there is a distinction between permanent versus continuing
causes of actions. If, for example, a trespass is permanent, “there can be but
a single action therefor to recover past and future damages and the statute of
limitations runs against such cause of action from the time it first occurred, or
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at least from the date it should reasonably have been discovered.” Sustrik
v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46-47 (Pa. 1964) (citations
omitted). Where the trespass or nuisance is continuing, however, an
aggrieved party may be able to maintain “a succession of actions” based on
separate injuries. Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1161 (Pa.
Super. 2019).
In distinguishing between a permanent versus a continuing cause of
action, a court must consider “a variety of factors, including: (1) the character
of the structure or thing which produces the injury; (2) whether the
consequences of the trespass will continue indefinitely; and (3) whether the
past and future damages may be predictably ascertained.” Id. at 1160
(citation omitted). If, for example, “it is impossible to know exactly how many
incidents of trespass will occur in the future, or the severity of the damage
that may be caused, such that the full amount of damages cannot be
calculated in a single action, the trespass is continuing.” Id. at 1161 (citation
omitted).
Instantly, we understand the parties’ frustration with the quality of
Appellant’s pleadings. It is apparent that Appellant’s fourth amended
complaint contains no references to dates. See Appellant’s Fourth Am.
Compl., 12/31/18, at ¶¶ 5-6, 10-14, 17-29. Moreover, as noted by Appellees,
greater specificity as to the times of certain allegations, such as her discovery
of the defective condition on Appellees’ property, may have relevance to
possible defenses under the statute of limitation or laches or other matters
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such as damages. See Kowalski, 206 A.3d at 1160-61; see also Cassel-
Hess v. Hoffer, 44 A.3d 80, 88-89 (Pa. Super. 2012) (concluding that
nuisance claims based on a mosquito-infested lake were barred because the
plaintiff failed to file her complaint within two years of the time the lake
became a permanent feature on the defendants’ land).
We note that that Appellant’s arguments that support her fifth appellate
issue rely on a patchwork of legal theories. For example, Appellant variously
alleges that the hole in the chimney constitutes a defective condition; that
carbon monoxide should be considered a thing that entered her property; and
that any impact from any molecule of carbon dioxide emitted from the hole in
the chimney could sustain damages for pain and suffering, mental anguish,
and fear of death. For the reasons stated herein, our review compels us to
conclude that trial court erred in dismissing her fourth amended complaint
with prejudice. Therefore, we need not consider all of Appellant’s allegations.
Viewing Appellant’s fourth amended complaint as a whole, the
allegations are relatively straightforward. There is a hole in Appellees’ side of
the chimney, through which a low level of carbon monoxide is escaping and
migrating into Appellant’s home. Appellant’s Fourth Am. Compl., 12/31/18,
at ¶¶ 20-21, 25. Appellant has had low amounts of carbon monoxide in her
blood. Id. at ¶ 26. If Appellees’ boiler fails, there is a substantial risk that a
high level of carbon monoxide would be released, which carries with it the
possibility of carbon monoxide poisoning. Id. at ¶ 25. Appellant has
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approached Appellees about fixing the hole, but Appellees refused. Id. at 27-
28.
We note that Appellant’s fourth amended complaint does not specifically
plead the amount of carbon dioxide that migrated into her home or that she
suffered a significant harm. See Karpiak, 676 A.2d at 272. Nevertheless,
our standard of review requires that we confine our review to the complaint
at issue, draw reasonable inferences in Appellant’s favor, and resolve any
doubts about Appellant’s ability prove the magnitude of the intrusion and a
significant harm in Appellant’s favor. See Am. Interior Constr., 206 A.3d
at 512. Accordingly, it may be possible for Appellant to prove a significant
harm based on an actual and ongoing exposure to carbon monoxide from the
hole in the chimney.
In sum, we agree with Appellant to the extent that she argues that the
dismissal of her fourth amended complaint was premature based on the trial
court’s ruling that she failed to plead material dates. See id.; see also
Kowalski, 206 A.3d at 1160-61. Accordingly, we are constrained to reverse
the trial court’s order dismissing the complaint with prejudice and to remand
this case for further proceedings.7
In her final issue on appeal, Appellant asserts that in light of her prior
arguments on appeal, the trial court erred when imposing sanctions.
Appellant’s Brief at 56. Although we have upset the trial court’s decision to
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7 On remand, the trial court will be free to consider Appellees’ remaining
preliminary objections.
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dismiss Appellant’s fourth amended complaint, the record reveals no basis to
disturb the imposition of attorney’s fees.
Initially, we note that Appellant’s claim is waived. Appellant’s counsel
fails to develop any meaningful response to the trial court’s ruling under
Pa.R.C.P. 1023.1 and 1023.4. See Trial Ct. Op. at 11-12. Instead, counsel,
in a single sentence, merely incorporates his prior arguments that the trial
court sanctioned Appellant based on his failure to appear at the April 23, 2019
argument and that the fourth amended complaint stated valid claims.
Appellant’s Brief at 56.
In any event, we discern no abuse of discretion in the imposition of
$2,500 in attorney’s fees. See US Coal Corp. v. Dinning, 222 A.3d 431,
442 (Pa. Super. 2019) (noting that an abuse of discretion standard applies to
a review of an award of sanctions under Pa.R.C.P. 1023.4). Instantly, the trial
court stated that “[i]nstead of becoming clearer as time moves forward, the
pleadings are circular with no clarity.” Trial Ct. Op. at 12. The record further
supports the trial court’s conclusion that, over the course of four amended
pleadings, Appellant’s counsel did not respond in any meaningful fashion to
Appellees’ preliminary objections or the trial court’s orders to clarify the
complaint. Under the circumstances of this case, we agree with the trial court
that counsel’s conduct evinced an improper purpose, such as needlessly
delaying or increasing the cost of litigation. Therefore, no relief from the
award of sanctions is due.
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Order affirmed in part and reversed in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/20
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