author: HODGE, J.,

text:
    Fornataro v. Jorgensen

      C.P. of Lawrence County,
    No. 30005 of 2013, C.A.

      Richard J. Schubert, for plaintiffs.

      Darren M. Newberry, for defendant.
    November 5, 2013
   HODGE, J.,

Before the court for disposition are preliminary objections filed on behalf of the defendant, Jens F. Jorgensen, D.M.D. (hereinafter, “defendant”), in response to a civil complaint filed by the plaintiffs, Angelo Fomataro (hereinafter, “plaintiff’) and Elaine Fomataro (hereinafter, collectively referred to as “plaintiffs”).

By way of background, the instant action arises out of dental treatment defendant provided to plaintiff for diagnostic and surgical purposes. Plaintiff sought defendant’s professional services because plaintiff was experiencing dental pain associated with a back molar. Defendant scheduled plaintiff for dental surgery to remove the infected tooth. During the procedure, defendant removed various teeth in addition to the molar which was causing plaintiff pain. Following surgery, plaintiff continued to experience severe pain. Plaintiff followed up with defendant to no avail. Plaintiff ultimately discovered that he suffered from a broken jaw.

Plaintiffs initiated the instant action on May 15, 2013 by filing a writ of summons. Defendant filed a praecipe to file complaint on May 23, 2013, and plaintiffs filed the underlying complaint on June 26, 2013. Defendant responded by filing preliminary objections to plaintiffs’ complaint on July 16, 2013. Following argument on defendant’s preliminary objections, held before this court on October 28, 2013, defendant’s preliminary objections are now before the court for consideration.

Defendant’s first preliminary objection is made pursuant to Rule 1020(a) of the Pennsylvania Rules of Civil Procedure. Defendant specifically contends that plaintiffs’ complaint makes allegations of negligence and informed consent without establishing separate causes of action for these claims.

The Pennsylvania Rules of Civil Procedure provide for a preliminary objection for failure of a pleading to conform to rule of court. Pa. R.C.P. 1028(a)(2). Rule 1020(a) specifically requires each cause of action, and any special damages related thereto, to be stated in separate counts with a corresponding demand for relief. Although failing to set forth separate counts for each cause of action is procedurally defective, such an error does not “foreclose the substantive rights of the parties.” Baranus v. Lis, 480 A.2d 1178, 1183 (Pa.Super. 1984). A party should be permitted to cure the defect by amending their pleadings to conform to the rules of court. Id.

Defendant’s initial objection is well founded. In plaintiffs’ complaint, plaintiffs make averments to support causes of action in negligence and informed consent, but plaintiffs fail to establish separate causes of action and corresponding demands for relief. Consistent with the Superior Court of Pennsylvania’s holding in Baranus, supra, it is appropriate for Plaintiffs to file a more specific complaint specifically stating the causes of action and requested relief.

Defendant’s second preliminary objection is made in the form of a demurrer. Defendant objects to the allegations of reckless conduct set forth in paragraphs 6, 6(a), 7 and 8 of plaintiffs’ complaint. Defendant specifically argues that plaintiffs generally allege that the defendant acted recklessly in attempting to establish a claim for punitive damages. Defendant argues that reckless conduct is distinguishable from negligent conduct and requires specific averments of conduct well in excess of that which constitutes negligent behavior. Defendant believes that plaintiffs’ complaint fails to set forth sufficient pleadings to establish reckless conduct, and that plaintiffs should therefore be precluded from seeking punitive damages.

It is well established in Pennsylvania law that a preliminary objection in the nature of a demurrer can be sustained and a complaint dismissed when the complaint is clearly insufficient on its face to establish the pleader’s right to relief. Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa.Super. 2008); See also, Mazzagatti v. Everingham, 516 A.2d 672 (Pa. 1986); County of Allegheny v. Commonwealth, 490 A.2d 402 (Pa. 1985); Cianfrani v. State Employees’ Retirement Board, 479 A.2d 468 (Pa. 1984).

In testing the legal sufficiency of a complaint, a court may only look to the pleadings itself, and may not consider testimony or other evidence outside of the complaint. Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa.Super. 2008). However, all well-pled allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa.Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa.Super. 2000). “To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” Harkins v. Zamichieli, 405 A.2d 495, 497 (Pa.Super. 1979) (quoting Schott v. Westinghouse Electric Corporation, 259 A.2d 443, 445 (Pa. 1969). The sustaining of a demurrer results in the denial of a claim or the dismissal of a suit, and should therefore be sustained only in cases that are clear and free from doubt. R.W. v. Manzek, 888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazara, 746 A.2d 642, 643 (Pa. Super.Ct. 2000).

Pennsylvania courts have always permitted a patient to recover exemplaiy damages in a medical malpractice case provided that the health care provider’s actions are so outrageous as to rise to the level of intentional, willful, wanton, outrageous or reckless conduct. See Medvecz v. Choi, 569 F.2d 1221, 1227-30 (3d Cir. 1987); Hoffman v. Memorial Osteopathic Hospital, 492 A.2d 1382, 1386-87 (Pa.Super. 1985). In 1997, the General Assembly enacted section 812-A of the Health Care Services Malpractice Act, 40 P.S. §1301.101 et seq., which states that “[p] unitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 P.S. §1301.812-A(a). The HCSMA amendments further clarify that in the context of a medical negligence claim, “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 P.S. §13Q1.812A(b). In that regard, section 812-A is simply a codification of well-settled common law governing exemplary damages. See SHV Coal Inc. v. Continental Grain Co., 587 A.2d 702, 705 (Pa. 1991).

In SHV Coal, plaintiff brought an action against defendant, a former employee, alleging breach of fiduciary duty, tortious interference with prospective business relationship and conspiracy. 587 A.2d at 703. Plaintiff was successful at trial, and was awarded punitive damages. Id. The Superior Court of Pennsylvania reversed the trial court’s finding that defendant’s conduct warranted plaintiff’s claim for punitive damages, and plaintiff appealed to the Supreme Court of Pennsylvania for review. Id.

The Supreme Court ultimately held that punitive damages are proper when a person’s actions are so outrageous that intentional, willful or reckless conduct is established. Id. at 704. Further, the SHV Coal court reiterated its prior adoption of section 908(2) of the restatement (2d) of torts in Feld v. Merriam, 485 A.2d 742 (Pa. 1984). Section 908(2) states:

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Comment (b) following Section 908 further states that reckless indifference to the rights of others and conscious action in deliberate disregard of those rights can justify punitive damages. However, Pennsylvania courts have declined to characterize reckless indifferences as equivalent to wanton or willful misconduct. SHV Coal, 587 A.2d at 704.

Thus, reckless conduct is better defined in comment (a) of Section 500 of the Restatement (Second) of Torts as:

(1) where the “actor knows, or has reason to know,... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk;” and
(2) where the “actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.”

The first type of reckless conduct described above demonstrates a higher degree of culpability than the second, and is more comparable to an intentional act. SHV Coal, 587 A.2d at 704 (defining comment (a) to the restatement (second) of torts). Thus in order to be reckless, a person’s conduct must be more than negligent. Id. It must not only be unreasonable, but also involve a risk of harm that substantially exceeds that of negligent conduct. Id. It must involve a danger that is so easily perceptible and probable that a definitive result is more apparent than the risks created through sheer negligence. Id. The determination of whether a person’s actions arise to outrageous conduct lies within the sound discretion of the fact-finder.

Applying the standard set forth above to the case sub judice, the court determines that plaintiffs’ complaint sets forth sufficient allegations to warrant a claim for punitive damages. Plaintiffs allege that the defendant deviated from the standard practice and procedure adopted by the applicable medical community. Plaintiffs stated that the defendant failed to conduct appropriate tests and examinations, in addition to defendant’s failure to appropriately respond to plaintiff’s complaints. Plaintiffs’ complaint describes extensive injuries that resulted from the medical services provided to plaintiff by defendant. Plaintiff’s injuries include numbness and consequential drooling, severe pain after eating, nerve injury, disability of his jaw and impaired speech.

Viewing the complaint in its entirety, the court finds that in light of the Supreme Court’s holding in SHV Coal, it would be improper to deny plaintiffs the ability to recover punitive damages because plaintiffs’ complaint sets forth sufficient facts to establish reckless conduct. Plaintiffs aver that defendant substantially deviated from the common medical practices and procedures thereby causing plaintiff serve physical pain and injury. This explanation is sufficient to overcome defendant’s preliminary objection and present the allegations to the trier of fact. Defendant’s second preliminaiy objection is therefore overruled.

Defendant’s third preliminary objection is in the form of a motion to strike, or in the alternative a request for a more specific pleading. Defendant specifically states that plaintiffs’ complaint improperly pleads vague conduct in paragraphs 6(a) through 6(h). Pennsylvania is a fact-pleading jurisdiction. Consequently, a complaint must aver the material facts in a concise and summary form as required by Pa.R.C.P. 1019(a), in sufficient detail to “appraise 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.” Weiss v. Equibank, 460 A.2d 271, 274 - 75 (Pa.Super. 1983) (citing Laursen v. General Hospital of Monroe County, 393 A.2d 761 (Pa. Super. 1978), reversed on other grounds, 431 A.2d 237 (Pa. 1981).

It is important to recognize that the complaint’s purpose is not only to inform the opposition, but also to inform the court. One of the primary functions of pleadings is to form the issues and to restrict the proof at trial to those issues. Toleration of loose pleadings leads to confusion and uncertainty on the part of adverse parties and the court, the risk of prejudice, delay and increased costs for all concerned. Discovery is not a substitute for proper pleadings of the material facts, Gross v. United Engineers & Constructors, Inc., 302 A.2d 370 (Pa.Super. 1973), although if the facts have been pled properly, the parties may be relegated to discovery for evidentiary details.

The court recognizes the judicial expression that “where the crucial facts are in the exclusive knowledge of the defendant, and the plaintiff so pleads, he should be given considerable latitude.” Line Lexington Lumber & Millwork Company, Inc. v. Pennsylvania Publishing Corp., 301 A.2d 684, 689 (Pa. 1973). However, as explained in Gross v. United Engineers and Constructors, Inc., “[t]he rule is as stated in 2A Anderson Pa. Civil Practice 1019.8 (1969 Edition), pages 85-86: ‘The pleader is not relieved of his duty of pleading the material facts on which his claim or defense is based by virtue of the circumstances that the adverse party has knowledge of such facts. It is not sufficient that the defendant knows the basis for plaintiff’s claim against him as the rules require that the facts be set forth in the plaintiff’s complaint.’” 302 A.2d at 372; See also J. Reisman and Sons, Inc. v. Snyder’s Potato Chips, 31 Sumerset L.J. 77, 113 (1975). There is no bright line rule to fix the level of specificity that may be required. Each case must be examined on its facts to determine the detail that the exercise of sound discretion should require.

In the instant case, the court’s consideration weighs in favor of requiring additional detail from plaintiffs. The court is persuaded that defendant’s ability to respond is hindered by the lack of specificity in pleading general descriptions of defendant’s carelessness, recklessness, negligence and malpractice. In order to enable an appropriately informed and informative response, plaintiffs should provide, to the extent reasonably possible, all available detail regarding the nature of the alleged regarding defendant’s conduct. Defendant’s third preliminary objection is therefore sustained.

Similar to his second preliminary objection, defendant’s last preliminary objection is raised in the form of a demurrer. The court incorporates by reference the applicable standards for proper analysis of such an objection as set forth above. Paragraph seven of plaintiffs’ complaint states a claim for lack of informed consent. Defendant argues that plaintiffs’ complaint fails to state any averments that would establish defendant failed to describe a procedure or treatment, the risks associated with the treatment and available alternative procedures. Defendant correctly references the Medical Availability and Reduction Error Act (MCARE Act), which states that:

[cjonsent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled, to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.

40P.S. §1303.504.

In their complaint, plaintiffs allege that defendant failed to properly advise and inform plaintiff of the risks and consequences associated with his surgery. Plaintiffs also allege that plaintiff was improperly informed of the possible complications plaintiff could incur. Additionally, plaintiffs claim that defendant removed healthy wisdom teeth without plaintiff’s consent. The court believes these averments are sufficient to raise a claim for lack of informed consent.

The court will enter the following order of court consistent with this opinion:

ORDER OF COURT

And now, this 5th day of November, 2013, with this case being before the court on this date for argument on defendant’s preliminary objections, with Richard J. Schubert, Esquire, appearing and representing the plaintiffs, Angelo and Elaine Fomataro; and with Darren M. Newberry, Esquire, appearing and representing the defendant, Jens F. Jorgensen, D.M.D., and after considering the arguments presented by counsel, as well as the briefs offered in support of their respective positions, the court hereby orders and decrees as follows:

1. Consistent with the attached opinion, defendant’s first and third and fourth preliminary objections are overruled.

2. Consistent with the attached opinion, defendant’s second preliminary objections is sustained.

3. Plaintiffs are granted twenty (20) days from the date this order is docketed in which to file an amended complaint.

4. The prothonotary shall properly serve notice of this order of court upon counsel of record for the parties.


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    Bank of America v. Hallowich

      C.P. of Lawrence County,
    No. 10400 of 2013, C.A.

      Jeremy K.Kobeski, for plaintiff.

      Jonathan R. Miller, for defendant.
    November 6, 2013
   PICCIONE, J.,

Before this court for disposition are the preliminary objections to the complaint in mortgage foreclosure (hereinafter, the “preliminary objections”) filed on behalf of the defendant, Kurt J. Hallowich (hereinafter, the “defendant”). The current action was commenced on April 22, 2013 when the plaintiff, Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP, F/K/A Countrywide Home Loans Servicing, LP (hereinafter, the “plaintiff’), filed the complaint in mortgage foreclosure (hereinafter, the “complaint”), which alleges the defendant defaulted on a mortgage issued by the plaintiffs predecessor in interest. The mortgage encumbers real property the defendant owns in Lawrence County, Pennsylvania. The mortgage was subsequently assigned to the plaintiff. The plaintiff avers in the complaint that the defendant defaulted on the monthly payments of principal and interest upon the mortgage on November 1, 2011, and has failed to render payment each month thereafter. The plaintiff argues that the defendant owes $84,029.49 to the plaintiff as of March 25,2013.

The complaint sets forth that the plaintiff mailed a notice of intention to foreclosure as set forth in Act 6 of 1974 (hereinafter, “Act 6), Notice of Homeowner’s Emergency Mortgage Assistance Program pursuant to Act 91, as amended in 2008, and/or notice of default as required by the mortgage documents as applicable to the defendant. The plaintiff requests in the complaint that this court enter an in rem judgment against the defendant in the sum of $84,029.49 plus interest, costs, fees, and charges collectible under the mortgage.

On May 16, 2013, the defendant filed the instant preliminary objections, wherein the defendant argues that this court is without subject matter jurisdiction due to the plaintiffs failure to comply with the notice requirements of Act 6, Act 91, and/or Pennsylvania Rule of Civil Procedure 1147. Although the complaint alleges that such notices were sent to the defendant, the defendant argues that the plaintiff has not provided any documentation proving that the plaintiff in fact mailed these notices to the defendant. Additionally, the defendant asserts in the preliminary objections that the complaint does not comply with Pennsylvania Rule of Civil Procedure 1028(a)(2) because the plaintiff has not provided proper documentation to trace the assignment of mortgage from the initial lender to the plaintiff. Additionally, the defendant argues that the plaintiff has not complied with Rule 1028(a)(2) because the complaint does not provide an itemized statement indicating how the amount allegedly owed was calculated. The defendants request this court dismiss the complaint for these reasons.

The defendant filed a praecipe to place the case for disposition on the preliminary objections, wherein the defendant stated that oral argument was not required. After conferring with each party’s counsel, this court then issued an order dated September 4, 2013 informing the parties that the preliminary objections will be decided on briefs alone and without oral argument. Each party complied with this order and filed its respective brief.

The defendant’s first preliminary objection is in the nature of a demurrer and is based upon violations of Pennsylvania Rule of Civil Procedure 1028(a)(1) and (2). The defendant argues this court is without subject matter jurisdiction because the plaintiff has failed to comply with the notice requirements of Act 6, Act 91, and/or Pa.R.C.P. 1147. The defendant argues that although the complaint alleges that such notices were sent to the defendant, it fails to identify when or to where the notices were sent or provide documentation of the same. Additionally, the defendant argues that even assuming such notices were sent to the defendant, the notices would have been defective. The defendant argues that since the mortgage was modified on March 21, 2013, the plaintiff was required to send an additional Act 6 notice to the defendant thirty days from that date before commencing a legal action to collect the debt. Without being provided of such notice, the defendant argues this court lacks subject matter jurisdiction, and the complaint should be dismissed.

The standard of review for a preliminary objection in the nature of a demurrer is as follows:

A preliminary objection in the nature of a demurrer admits as true all well-pled material, relevant facts and every inference fairly deducible from those facts. The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim upon which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.

Baker v. Central Cambria School Dist., 24 A.3d 488, 492 n.6 (Pa. Cmwlth. 2011) (citing Palmer v. Bartosh, 959 A.2d 508, 512 n.2 (Pa. Cmwlth. 2008) (internal citations omitted)). As stated above, the defendant argues that the plaintiff failed to comply with rule 1028(a)(1) of the rules of civil procedure. Rule 1028(a)(1) provides that a preliminary objection to a pleading may be filed which alleges that the court lacks jurisdiction over the subject matter of the action. Pa.R.C.P. 1028(a)(1).

Prior to commencing the instant proceedings, the plaintiff filed the notice of intention to foreclosure to the defendant. This notice was sent pursuant to the requirements of the Act 6, which is codified at 41 RS. § 403. Strict compliance with such notice provisions is a prerequisite of this court’s obtaining subject matter jurisdiction over a mortgage foreclosure action. Bankers Trust Co. v. Foust, 621 A.2d 1054 (Pa. Super. 1993). The plaintiff filed plaintiff’s response to defendant’s preliminary objections (hereinafter, the “response”) in which it asserts that a notice of intention to foreclose mortgage was sent to the defendant at the defendant’s last known address. The plaintiff has attached a copy of the Act 6 notice to its response as exhibit “D.” The court has reviewed the copy and finds that the plaintiff indeed mailed such notice in compliance with Act 6 to the defendant on January 17, 2013.

Both parties recognize that the mortgage was modified by later agreement. Upon review, the court acknowledges that the modification agreement is dated February 10, 2012, and was signed and accepted by the defendant on February 17, 2012. The modification contained material changes to the mortgage. The modification changed the principal sum of the mortgage that is owed to the plaintiff and the date upon which the full amount of the debt is owed to the plaintiff. This modification agreement was recorded in the Recorder’s Office of Lawrence County on March 21, 2013. It appears that the defendant is arguing that he is entitled to receive an additional notice of the intent to foreclosure pursuant to Act 6 after the plaintiff recorded the modification. The defendant makes this contention without the support of any case law or other authority, binding or otherwise.

The defendant does not acknowledge that the modification to the mortgage was dated February 10, 2012; rather, he bases his argument entirely upon the date on which the modification was recorded, March 21, 2013. The court finds that the defendant’s reliance on the recording statute is misplaced under these circumstances. “The purpose of the recording statutes... is to notify future encumbrancers[.]” Beckman v. Altoona Trust Co., 2 A.2d 826, 828 (Pa. 1938). The recording statutes establish priorities of interest in real estate and protect future bona fide purchasers of real estate. See Poffenberger v. Goldstein, 776 A.2d 1037 1042 (Pa. Cmwlth. 2001). However, the recording statutes do not require the recording of instruments for the purposes of commencing an action in mortgage foreclosure against the initial mortgagor; rather, the purpose of the recording statutes is to protect potential future interest holders. An unrecorded interest in real estate does not render such interest invalid, nor does the recording of an interest render the time prior to its recording invalid. Consequently, a transfer of interest, or a modification thereof, is established on the date of the transfer or modification rather than the date of its recording.

The fact that the modification was recorded on March 21, 2013 does little to convince the court that the defendant should have received an additional notice of the plaintiff’s intent to foreclose. More important than the constructive notice that recording an instrument provides, the defendant had actual notice of the modification of the mortgage, which is evidenced by his signature’s appearing on the document itself. Additionally, the plaintiff avers in the complaint that the defendant defaulted on the monthly payments of principal and interest upon the mortgage on November 1, 2011, and has failed to render payment each month thereafter. This time period encompasses the time before and after the parties effectuated the modification of the mortgage. As such, the allegation sets forth that the defendant has defaulted under both the original terms of the mortgage and the terms as altered by the modification. Moreover, as the interest holder, the defendant would indeed have actual notice of the terms of the mortgage on which he defaulted. Therefore, the court finds that the plaintiff was not required to provide the defendant with an additional notice of intent to foreclose after recording the modification.

The Act 6 notice was sent to the defendant on January 17, 2013. Act 6 provides that a notice of the intent to foreclose at least thirty days prior to the commencement of any legal action to collect the debt 41 P.S. § 403. The complaint was filed on April 22, 2013, which is well beyond the requisite thirty-day period as proscribed by Act 6. As a result, the court finds that the plaintiffs notice of intent to foreclosure was in compliance with Act 6, and the plaintiff was not required to send the defendant additional notice after recording the modification of the mortgage.

Similar to Act 6, Act 91, the Emergency Mortgage Assistance Act of 1983, (hereinafter, “Act 91”), provides that a mortgagee must provide the mortgagor with notice of its intention for foreclose upon the mortgaged property before proceeding with any legal action. 35 P.S. § 1680.402c. The defendant argues that the plaintiff has not complied with the notice requirements of Act 91, rendering this court without subject matter jurisdiction. The plaintiff, however, argues Act 91 is inapplicable in the instant case since the defendant’s mortgage is insured by the Federal Housing Administration (hereinafter, the “FHA”).

Act 91 provides, inter alia, that assistance may not be made to a mortgagor under this act if the mortgage is insured by the federal housing administration under title II of the National Housing Act. 35 RS. § 1680.402c(a)(3). The defendant argues that the plaintiff was still required to provide such notice to him prior to commencing the instant legal action regardless of the mortgage’s being insured by the FHA. This court disagrees.

“Act 91 notice merely places a mortgagor on notice that if the mortgagor does nothing, a foreclosure action will follow.” Fish v. Pennsylvania Hosing Finance Agency, 931 A.2d 764, 767 (Pa. Cmwlth: 2007). Such notice, however, is not required to be sent to a defaulting mortgagor under certain circumstances. The Superior Court provided in Resolution Trust Corp. v. Buchanan, 637 A.2d 1020, 1024 (Pa. Super. 1994), “Act 91’s ‘notice’ requirement, to be sent in advice of commencing any legal action to recover under any obligation by a mortgagee, shall not be applicable if ... [t]he mortgage is insured by the Federal Housing Administration[.]” (emphasis supplied) (brackets and quotations omitted). Further, the Superior Court stated that because the defendants “did not satisfy the preliminaiy eligibility requirements of Act 91, they were not entitled to receive the protections of Act 91.” Id. Therefore, if a mortgage does not meet the criteria provided by Act 91, a mortgagor is not entitled to receive notice pursuant thereto.

Instantly, the plaintiff has demonstrated by providing the FHA case number that the defendant’s mortgage is indeed federally insured by the FHA. As a result, Act 91 is inapplicable in the instant case, and the plaintiff was not required to send the defendant notice pursuant to Act 91. Therefore, the plaintiff has complied with the requirements of Act 6 and has conformed to Rule 1028(a)(1). As such, the defendant’s first preliminary objection is overruled.

In his second preliminary objection, the defendant argues that the complaint violates Rule 1028(a)(2). Rule 1028(a)(2) provides, inter alia, that a party may file a preliminary objection for the “failure of a pleading to conform to law[.]” Pa.R.C.P. 1028(a)(2). The defendant’s first contention in this preliminary objection is that the complaint fails to conform to Rule 1147 of the Rules of Civil Procedure. Rule 1147 sets forth the pleading requirements for complaints in mortgage foreclosures. Rule 1147(a) provides that a complaint in mortgage foreclosure shall set forth the following:

(1) the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments;
(2) a description of the land subject to the mortgage;
(3) the names, addresses and interest of the defendants in the action and that the present real owner is unknown if the real owner is not made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due; and
(6) a demand for judgment for the amount due.

Pa.R.C.P. 1147(a). Upon review of the complaint, the court finds that the plaintiff has complied with the above requirements. Paragraphs 2 through 6 of the complaint set forth each of the requirements numbered “(1)” through “(5)” above. Additionally, the “wherefore clause” in the complaint sets forth the plaintiff’s demand for judgment in the amount owed, $84,029.49, which satisfies the requirement numbered “(6)” above. Therefore, the court finds that the complaint conforms to the pleading requirements of Rule 1147(a).

Additionally in his second preliminary objection, the defendant asserts that the complaint fails to conform to Rule 1019(i) by not attaching to the complaint a copy of the following: (1) documentation of the plaintiff’s acquisition of the mortgage; (2) statement of account and monthly statements upon which the claim is based showing the charges incurred, the accumulation of the principal and interest, and penalties on the account; (3) the promissory note; (4) the modification agreement to the mortgage; and (5) the Act 6 notice that was sent to the defendant. As a result of these alleged errors, the defendant requests this court sustain the second preliminary objection and dismiss the complaint.

Rule 1019(i) provides as follows: “When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.” Pa.R.C.P. 1019(i). The court notes that the plaintiff had not attached the promissory note, the modification agreement, and the Act 6 notice to its complaint. In satisfaction of the defendant’s preliminary objections thereto, the plaintiff then attached these three documents to its response. Therefore, the court will only address the remaining two writings not attached to the complaint that the defendant argues does not conform to a rule of law in violation of Pa.R.C.P. 1028(a)(2).

The defendant argues that the complaint failed to attach adequate documentation to establish that the plaintiff acquired the mortgage. Paragraph 3 of the complaint sets forth that the defendant originally executed a mortgage through Mortgage Electronic Registration Systems, Inc. as Nominee for Village Capital & Investment LLC, a Limited Liability County. The plaintiff avers that it acquired the mortgage by assignment, which is recorded in the Recorder’s Office of Lawrence County. The plaintiff has provided documentation of the assignment of mortgage from Village Capital & Investment LLC to the plaintiff. The plaintiff has additionally provided documentation of the merger agreement between Bank of America, N.A. with BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LLC. The assignment of mortgage and the merger documents are also recorded in the recorder’s office. Upon review, the court is satisfied that the plaintiff has provided the appropriate documentation to establish that it is the lawful owner of the mortgage.

The defendant lastly argues in his second preliminary objection that the complaint has failed to attach an appropriate itemized statement of the amount due under the terms of the mortgage. Pennsylvania Rule of Civil Procedure 1147(a)(5) requires a plaintiff must set forth “an itemized statement of the amount due” to its complaint in mortgage foreclosure. Pa.R.C.P. 1147(a)(5). The plaintiff argues that paragraph 7 of the complaint is sufficiently specific to satisfy the requirement of Rule 1147(a) (5); however, the defendant maintains that it contains insufficient detail to allow him properly to respond.

Paragraph 7 of the complaint contains the following:

The following amounts are due on the mortgage as of 03/05/2013:

Principal Balance $74,295.20
Interest $7,523.75
10/01/2011 through 03/31/2013
Late Charges $0.00
Escrow Deficit $2,228.08
Subtotal $84,047.03
Suspense Credit ($17.54)
TOTAL $84,029.49

Complaint ¶7. The court finds that this properly sets forth the amount the plaintiff seeks to recover in an itemized fashion. Additionally, this type of itemized statement has been accepted in similar types of cases. See e.g. Wells Fargo Bank v. Jenkins, 2009 WL 1848471 (Pa.Com.Pl. 2009). If the defendant wishes to obtain further explanation of these amounts, it is permitted to do so through the discovery process; however, the plaintiff is permitted to plead the facts as they currently appear in the complaint. As such the court is satisfied that the complaint sufficiently sets forth an itemized statement of the amount due pursuant to Rule 1147(a)(5). Because the complaint complies with Rules 1019 and 1147, the defendant’s second preliminary objection is overruled.

Based upon the foregoing, the defendant’s preliminary objections to the complaint in mortgage foreclosure are dismissed.

ORDER OF COURT

And now, this 6th day of November, 2013, this case being before the court to decide the defendant’s preliminary on briefs alone, with Jeremy J. Kobeski, Esquire, representing the plaintiff, and with Jonathan R. Miller, Esquire, representing the defendant, and after a complete and thorough review of the applicable record, the court hereby orders and decrees as follows:

1. The defendant’s preliminary objections to the complaint in mortgage foreclosure are hereby overruled pursuant to the attached opinion.

2. The defendant is ordered to file an answer to the complaint in mortgage foreclosure within twenty (20) days of the date of this order of court.

3. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

      . The court acknowledges that the plaintiff is not required to attach the promissory note or the modification agreement to the complaint. The current action is based upon a mortgage, not the note secured. An action in mortgage foreclosure does not attempt to enforce a personal liability, specifically a debt instrument, or note, that a defendant would secure to obtain a mortgage. The plaintiff is seeking only a judicial sale of the properly under the terms of the mortgage and not the promissory note. As a result, the plaintiff is not required to attach a copy of the note to the complaint. Secondly, the plaintiff incorporated the modification agreement by reference as the modification agreement is recorded in the Recorder’s office of Lawrence County, which is permissible pursuant to Pa.R.C.P. 1019(g).


text:
    Thomas v. Thomas

      C.P. of Lawrence County,
    No. 271 of 2009, D.R.

      Richard L. Ducote, for Holly Thomas.

      Stephanie T. Anderson, for Kevin Thomas.
    November 12, 2013
   PICCIONE, J.,

Before the court for disposition are competing exceptions to the report and recommended order entered by the equitable distribution master. Kevin Thomas (hereinafter, “husband”), and Holly Thomas (hereinafter, “wife”), were married on December 31, 1999 and separated on June 1, 2004. Wife is currently 38 years old and is presently employed part-time as a dietician. Wife has not worked full time since the birth of the parties’ only child, Connor Thomas, bom February 10, 2001. Husband is 45 years old. Husband received his doctorate in osteopathy in 1998 and specializes in family medicine and neuromuscular skeletal medicine.

The parties’ minimal marital assets included a joint account with National City Bank, a savings account with GNC Community Federal Credit Union and the marital residence. These assets were all subject to equitable distribution. Wife also made a claim for alimony and request that husband be ordered to provide continuous health insurance coverage on her behalf. Following the equitable distribution hearing, the master entered a report and recommended order dividing the marital estate with 80% being awarded to wife and the remaining 20% being awarded to husband. The master further recommended that wife’s request for alimony be denied, and that husband only be required to provide wife with health insurance coverage for six months to allow wife a reasonable period of time to obtain appropriate health insurance.

The parties each filed timely exceptions to the master’s report and recommendations. Husband contends that the master committed the following errors:

1. The master erred in recommending that the marital estate be divided 80% to wife and 20% to husband.

2. The master erred in recommending that husband pay wife’s COBRA (health insurance) expenses for six months after the entry of the divorce decree.

3. The master erred in recommending that wife’s spousal support terminate upon entry of the divorce decree and not at an earlier period of time.

4. The master erred in finding that husband engaged in marital misconduct.

Wife listed six exceptions to the master’s report and recommendations, with each of these exceptions being based upon the master’s recommendation that wife’s alimony terminate upon entry of the divorce decree. Wife references specific factual findings made by the master in reaching a determination regarding alimony, and wife alleges that these findings were an abuse of the master’s discretion.

In disposing of the exceptions filed by the respective parties, the court observes that while a master’s report is advisory only, it is to be given great deference. Fiorelli v. Fiorelli, 195 A.2d 369 (1964); Morschhauser v. Morschhauser, 516 A.2d 10 (1986). A reviewing court has a duty to make a complete and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d 755 (1980).

In reviewing master’s considerations, the report should be given “fullest consideration” particularly on issues of credibility. Kohl v. Kohl, 564 A.2d 222 (1989). The review is intended to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, , interest, and opposition to incontrovertible physical facts by which credibility may be ascertained. Rollman, supra. However, because the master is the person hearing the testimony and observing the demeanor and appearance of the witness, any issue of credibility must be resolved by giving the master’s findings the fullest consideration. Rorabaugh v. Rorabaugh, 448 A.2d 64 (1982). With this standard in mind, the following is a discussion and disposition of the parties’ exceptions.

Husband’s Exception 1

In his first exception, Husband contends that the master erred in the overall distribution of the parties’ marital estate. Husband argues for a distribution that reflects a more even allocation of the assets. In disposing of husband’s first exception, the court notes that a trial court has broad discretion in fashioning equitable distribution awards. Isralsky v. Isralsky, 824 A.2d 1178, 1184 (Pa. Super. 2003). The divorce code provides that a trial court

shalL.equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties in such proportions and in such manner as the court deems just after considering all relevant factors....

23 Pa.C.S. §3502(a). Thus, the affirmed objectives of the divorce code are to “effectuate economic justice between the parties...and insure a fair and just determination of their property rights.” Anzalone v. Anzalone, 835 A.2d 773, 785 (Pa. Super. 2003). Moreover, a trial court has “the authority to divide the award as the equities presented in the particular case may require.” Drake v. Drake, 555 Pa. 481, 725 A.2d 717, 727 (1999).

The master specifically discussed each factor to the extent that they were applicable to the facts relative to this case. The master was aware of and commented on each provision that resulted in wife being awarded a distribution fashioned in her favor. Specifically, the master addressed the parties’ current and future earning capacities, the difference in ability to acquire future assets, and the assets already obtained by each party. The court finds that the master did not abuse his discretion in his division of the marital assets. The master effectuated economic justice by finding that the factors favored wife over husband and, thus, recommended an appropriate division of the marital property.

Accordingly, husband’s exception 1 is denied.

Husband’s Exception 2

In his second exception, husband contends that the master erred in recommending that husband pay wife’s COBRA (health insurance) expenses for six months after the entry of the divorce decree. Husband argues that the master’s recommendation is merely an alternative award of alimony, to which the master determined wife was not entitled. Upon careful review of the transcripts from the equitable distribution hearing and the master’s report, the court sustains husband’s second exception. It is clear that requiring husband to pay for wife’s COBRA insurance coverage is a supplemental form of alimony. Given the master’s thorough analysis of the statutory factors prescribed by §3701 of the divorce code, the court cannot rectify the discrepancy in the master’s recommendation. It is error to require husband to pay for wife’s medical benefits given the master’s recommendation and the court’s conclusion that wife is not entitled to alimony. Husband’s exception 2 is therefore granted.

Husband’s Exception 3 and Wife’s Exceptions

Husband next argues that the master erred recommending that husband’s spousal support obligation terminate upon entry of a divorce decree and not at some earlier period of time. Wife’s exceptions to the master’s report and recommendation alternatively argue that the master erred in not awarding alimony. The court will address each of the parties’ respective arguments in this discussion to succinctly dispose of this issue.

Spousal support is derived from the marital obligation and is designed to ensure the receiving party a reasonable living allowance. This duty, however, may be terminated when the marriage ends. Purdue v. Purdue, 580 A.2d 1146, 1148 (Pa. Super. 1990). The obligation to support a dependant spouse continues until it is shown that the conduct of the dependent spouse provides a ground for divorce. Thus, while the parties are still legally married, the payor spouse continues to have an obligation of support. King v. King, 568 A.2d 627, 631 (Pa. Super. 1989).

Husband has provided wife with spousal support since the parties’ separation on June 1, 2004. The master correctly notes that husband has been paying support for a period of time in excess of two times the length of the parties’ marriage. Although husband’s support obligation had an extensive duration, the parties remained legally married for the entirety of the award. Thus, the court finds no merit in husband’s argument that his obligation should have terminated prior to the entry of a divorce decree. Husband’s exception 3 is therefore denied.

Wife alternatively argues that she should be entitled to alimony. Section 3701 of the Pennsylvania Divorce Code sets forth the necessary factors that must be considered when determining whether to enter an award of alimony. 23 Pa. C.S.A. §3701 (b). The court has thoroughly reviewed the master’s report where he specifically addresses each of the requisite factors set forth in section 3701. The court finds that the master carefully considered all of the relevant factors and placed appropriate weight upon each factor in reaching an overall recommendation regarding alimony. The master’s factual findings are supported by the record, and the court therefore concludes that wife’s exceptions to the master’s report and recommended order are also without merit. Wife’s exceptions are therefore denied in their entirety.

Husband’s Exception 4

Husband’s last exception contends that the master erred in finding that husband engaged in marital misconduct. After a careful review of the transcripts from the equitable distribution proceedings, the court finds that the master’s factual finding is supported by the testimony and evidence presented. See e.g., N.T. July 22, 2013, pp. 33-34. Husband’s exception 4 is therefore denied.

Having fully addressed the exceptions filed to the report and recommended order of the equitable distribution master, the court will enter the following order of court consistent with this opinion.

ORDER OF COURT

And now, this 12th day of November, 2013, with this matter being before the court for argument on competing exceptions to the report and recommendations of the equitable distribution master, with Stephanie T. Anderson, Esquire, appearing on behalf of Kevin Thomas, and with Richard L. Ducote, Esquire, appearing on behalf of Holly Thomas, and with the court considering the exceptions filed on behalf of the respective parties, in addition to thoroughly reviewing the report and recommendations of the esquitable distribution master, the court makes the following findings and hereby orders and decrees as follows:

1. Kevin Thomas’ exceptions 1, 3 and 4 are denied.

2. Kevin Thomas’ exception 2 is granted.

3. Holly Thomas’ exceptions 1,2,3,4,5 and 6 are denied.

4. All provisions of the master’s recommended order, not inconsistent with this order of court, are affirmed and fully incorporated herein as a final order of court.

5. The prothonotary shall properly serve notice of this order of court and attached opinion upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.


author: BELTRAMI, J.,

text:
    McPoyle v. Mast Excavating, Inc.

      C.P. of Northampton County,
    No. C-48-CV-2013-7658

      Todd S. Miller, for plaintiff.

      Joseph F. McNulty, Jr., for defendants.
    November 13, 2013
   BELTRAMI, J.,

ORDER OF COURT

And now, this 13 th day ofNovember, 2013, “defendants ’ preliminary objections to plaintiff’s complaint” are hereby overruled. Defendants shall file an answer to plaintiff’s complaint within twenty (20) days.

STATEMENT OF REASONS

This matter is before the court on “defendants’ preliminary objections to plaintiff’s complaint.” Briefs have been submitted, and oral argument was heard on September 24, 2013.

On August 1, 2013, plaintiff commenced this action by filing a complaint that alleges the following facts. On August 1, 2011, plaintiff was riding his motorcycle southbound on Route 143 in Berks County, Pennsylvania. (Compl. ¶ 6.) At the same time, defendant Marcos Jimenez, who was driving a large truck pulling a trailer, exited a stone parking lot located at a roadside farm along the east side of Route 143. {Id. ¶ 7.) Jimenez was employed by defendants Mast Excavating, Inc. and Rota Mill, Inc. at the time. {See id. ¶ 5.) Jimenez intended to turn north onto Route 143 from the lot. {Id. ¶ 7.) While making the turn, Jiminez crossed the solid, double-yellow line and blocked both the northbound and southbound lanes of travel. (Id. ¶ 9.) Simultaneously, plaintiff came around a blind curve to find defendants’ tractor-trailer blocking both lanes. (Id. ¶ 10.) Plaintiff was forced to take evasive action to avoid a collision with defendants’ truck. (Id.) During this evasive action, plaintiff shattered his left knee and left shin. (Id.)

On August 22, 2013, defendants filed the instant preliminary objections, which contain demurrers to counts II and III of plaintiff’s complaint. At argument, defendants withdrew the demurrer to count III. In the only remaining preliminary objection, defendants assert a demurrer to count II of plaintiff’s complaint, which sets forth a claim for punitive damages. Initially, the court notes that a request for punitive damages is not an independent cause of action to be pleaded in a separate count of a complaint. See Shanks v. Alderson, 582 A.2d 883, 885 (Pa. Super. 1990). That is because punitive damages are an element of damages arising out of a cause of action and are not a separate cause of action. Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989). Nevertheless, defendants have not raised a preliminary objection to plaintiff pleading punitive damages as a separate count. Further, no purpose would be served by requiring plaintiff to file an amended complaint to plead punitive damages as an element of damages. Accordingly, count II of plaintiff’s complaint will be addressed, at trial, as an element of damages sought for the negligence outlined in count I of plaintiff’s complaint.

With regard to defendants’ demurrer to count II, the court notes that “[preliminary objections in the nature of a demurrer are an inappropriate means by which to challenge the legality of the damages sought in a complaint.” See Hudock v. Donegal Mut. Ins. Co., 264 A.2d 668, 671 n.2 (Pa. 1970). As the Pennsylvania Supreme Court explained in Hudock, “[tjhis rule is a sound one because a plaintiff should not be put out of court completely merely because he alleges the wrong measure of damages.” Id. In Hudock, the court treated the defendant’s demurrer to, inter alia, the plaintiff’s claims for punitive damages, as a preliminary objection alleging “inclusion of. . . impertinent matter,” pursuant to Rule of Civil Procedure 1028(a)(2). Id. Accordingly, this court will treat defendants’ demurrer to count II of plaintiff’s complaint in the same manner. To be impertinent, “the allegations must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

In Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770-71 (Pa. 2005), the Pennsylvania Supreme Court stated:

The standard governing the award of punitive damages in Pennsylvania is settled. “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Restatement (Second) of Torts § 908(2) (1979)); see also Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963). As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48; Chambers, 192 A.2d at 358. See also Restatement (Second) of Torts § 908, comment b. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Restatement (Second) of Torts § 908 (1) (“Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.”). Additionally, this court has stressed that, when assessing the propriety of the imposition of punitive damages, “[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” See Feld, 485 A.2d at 748; see also Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12 (1985) (plurality opinion).

For purposes of awarding punitive damages, Pennsylvania law requires a specific type of recklessness defined in comment a to section 500 of the Restatement (Second) of Torts. Hutchison, 870 A.2d at 771. Under that definition, a person acts with recklessness where he “knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. (quoting Martin, 494 A.2d at 1097 (quoting RESTATEMENT (SECOND) OF TORTS §500 cmt. a (1965))). Therefore, “a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Id. at 772.

In the case at bar, plaintiff has pleaded that Jimenez “intentionally . . . block[ed] all lanes of travel on [Route] 143 with a tractor[-]trailer, knowing that the visibility at this severe sharp turn limited visibility by oncoming traffic.” (Compl. ¶ 24(a).) Based on this averment and the other facts alleged in plaintiff’s complaint, the court is unable to conclude, at this stage of the proceeding, that plaintiff will be unable to establish that Jiminez acted recklessly such that punitive damages should be awarded. Thus, the court will not strike plaintiff’s punitive damages claim from plaintiff’s complaint as impertinent.

      . Also listed for argument that day was “Defendants’ Petition to Transfer Venue for Forum Non Conveniens Pursuant to Pa.R.C.P. No. 1006.” At argument, defendants requested and were granted leave to relist the petition for a subsequent session of argument court in order to create the record required for disposition of that petition.

      . A review of count II reveals that punitive damages are requested solely on the basis of the negligence claim outlined in count I of the complaint and not on the basis of the negligent hiring and/or entrustment alleged in count III of the complaint.

      . There is an alternate definition of “recklessness” found in comment a to section 500 of the restatement. This alternate definition states that a person acts recklessly where he “has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.” RESTATEMENT (SECOND) OF TORTS §500 cmt. a (1965). For purposes of awarding punitive damages, Pennsylvania explicitly rejects this definition of recklessness. Hutchison, 870 A.2d at 771; SHV Coal, Inc., 587 A.2d at 704-05.


author: NEALON, J.,

text:
    Czarkowski v. Jennings

      C.P. of Lackawanna County,
    No. 13 CV 5188

      Michael R. Mey, for plaintiffs.

      Brigid E. Carey and Edward S. Neyhart, for defendant.
    November 18, 2013
   NEALON, J.,

Glenbum Township property owners have filed a motion for a preliminary injunction seeking to enjoin their neighbor from asserting any interest in a six foot portion of the twelve foot wide alley which separates their properties, and to bar that neighbor from entering or using six feet of the alley which is allegedly owned by them. The movants assert that as abutting landowners, they have acquired title in fee to one-half of the alley pursuant to 36 P.S. § 1961, and that their neighbor has trespassed and caused irreparable water damage to their property by performing excavation activity within that alley.

Based upon the credible evidence presented, the movants have not adequately established that they possess title in fee to the center of the alley, or that their neighbor does not, at a minimum, have an implied easement right with respect to the entire alley. Furthermore, the movants failed to demonstrate that their water damage was caused by their neighbor’s trespass or tortious conduct, and that their alleged harm is irreparable. Consequently, their request for injunctive relief will be denied and the special, ex parte injunction granted on September 23, 2013, will be dissolved.

I. PROCEDURAL HISTORY

On September 23, 2013, plaintiffs, Paul Czarkowski and Roberta J. Czarkowski (“the Czarkowskis”), filed a complaint against defendant, David Jennings (“Jennings”), charging Jennings with trespass onto their property, seeking to recover compensatory and punitive damages for surface water runoff damage allegedly caused by Jennings’ removal of a berm on their land, and requesting that Jennings “be preliminary and permanently enjoined from asserting any possessory, legal or equitable interest in the subject property.” (Docket entry no. 1 at pp. 2-3). On that same date, the Czarkowskis filed a “motion for preliminary injunction” in which they averred that Jennings had “trespassed and caused damage to [the Czarkowskis’] property with the use of excavating equipment, most notably removing a berm to the rear of [their] property which controlled water and sedimentation runoff.” (Docket entry no. 3 at ¶¶ 1-2). The Czarkowskis further alleged that they had “suffered water and sedimentation damage to their property due to [Jennings’] actions,” and seek “to exercise control of this property and repair the damage caused by [Jennings] without [Jennings’] continued trespassing and interference.” {Id. at ¶¶ 3-4).

Based upon the finding “that immediate and irreparable injury will be sustained before notice can be given or a hearing held,” a special injunction under Pa.R.C.P. 1531(a) was granted on September 23, 2013, and Jennings was “immediately ordered to remove any and all equipment from [the Czarkowskis’] property and to no longer trespass on [the Czarkowskis’] six feet of the undeveloped alley, which abuts both [parties’] property, until further order of court.” (Docket entry no. 5). The Czarkowskis were directed to post bond or deposit legal tender pursuant to Pa.R.C.P. 1531 (b), and since the special injunction had been issued on an ex parte basis, a hearing on the Czarkowskis’ request for a preliminary injunction was scheduled for September 30, 2013, in accordance with Pa.R.C.P. 1531(d). (Docket entry no. 4).

During the hearing on September 30, 2013, testimony was presented by plaintiff, Paul Czarkowski, and a title searcher, Gino V. Mori. In addition, the Czarkowskis introduced eight exhibits and Jennings offered nine exhibits into evidence. At the request of the parties, the record remained opened until October 7,2013, and Jennings filed a “submittal” and “supplemental submission” on that date. (Docket entry nos. 9-10). The Czarkowskis filed their response to those submissions on October 11, 2013, and Jennings submitted a “rebuttal brief’ on October 15,2013. (Docket entry nos. 13-14). Following Jennings’ filing of his answer to the Czarkowskis’ motion for a preliminary injunction on October 18, 2013, this matter became ripe for disposition. (Docket entry no. 17).

When considering requests for injunctive relief, the trial judge acts as the factfinder and makes credibility determinations in resolving any conflicts in the evidence presented. See Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1245 (Pa. Super. 2011); Hunter v. Bowman, 159 Pa. Cmwlth. 222, 225-226, 633 A.2d 655, 656 (1993). As the factfinder who personally heard the witnesses testify, the trial judge is “in the sole position to observe the demeanor of the witnesses and assess their credibility.” Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 88 (Pa. Super. 2006), app. denied, 591 Pa. 727, 920 A.2d 833 (2007). As a result, the trial judge “may believe all, part or none of the evidence presented.” Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006), app. denied, 599 Pa. 711, 962 A.2d 1197 (2008); Rizzo v. MSA, Inc., 18 Pa. D. & C. 5th 233, 245 (Lacka. Co. 2010), aff’d, 32 A.3d 830 (Pa. Super. 2011). The factual findings set forth in section II below are based upon the evidence which has been deemed to be competent, credible and relevant.

II. FINDINGS OF FACT

In April 1925, a licensed surveyor, A. E. Seamans, surveyed the “South Ackerly” plot in Glenbum Township that was owned and developed by Archibald R. Stetler. (Plaintiffs’ exhibit no.l; defendant’s exhibit no. 8). The survey map of the South Ackerly plot was later recorded on September 8,1953, in Lackawanna County Map Book 7 at page 136. (Id.). Lots 23 through 42 of the South Ackerly plot are fronted by Farview Avenue and abutted in the rear by an unnamed, twelve foot wide alley. (Id.). Lots 43 through 57 of that development are fronted by Arch Avenue and abutted in the rear by the same twelve foot wide alley. (Id.).

The Czarkowskis are the current owners of Lots 43, 44, 45 and 46 in the South Ackerly plot, and Jennings is the present owner of Lots 40 and 41. (Plaintiffs’ exhibit no. 2; docket entry nos. 13-14). The rear portions of the Czarkowskis’ Lots 45 and 46 and Jennings’ Lots 40 and 41 are separated by the unnamed, twelve foot wide alley depicted on A.E. Seamans’ survey of the South Ackerly plot that was recorded on September 8, 1953. (Plaintiffs’ exhibit no.l; defendant’s exhibit no. 8). The deeds of conveyance in the Czarkowskis’ chain of title all identify Lots 45 and 46 as “being each Fifty (50) feet in front on Arch Avenue, One Hundred Fifty (150) feet in depth, and rectangular in shape, with an alley in the rear Twelve (12) feet in width as shown on said [South Ackerly] Plot.” (Docket entry no. 9 at pp. 12,27,31,36). Although certain streets in the South Ackerly plot have been formerly dedicated to Glenbum Township or otherwise used by the public, the unnamed alley separating the rear portions of the Czarkowskis’ Lots 45 and 46 and Jennings’ lots 40 and 41 has never been opened to the public and has become a wooded area containing brush and other vegetation. (Plaintiffs’ exhibits nos. 3-7; defendant’s exhibit nos. 2-5, 9).

In early September 2013, Jennings admittedly engaged in excavating or landscaping activity in the twelve foot wide alley separating the rear portions of Lots 45 and 46 and Lots 40 and 41. (Plaintiffs’ exhibit nos. 5, 6). The Czarkowskis contend that Jennings removed a supporting berm in the process, but pre-September 2013 photographs of the subject alley do not reflect the presence of such a berm. (Defendant’s exhibit nos. 2, 9). On September 11, 2013, Lackawanna County experienced a torrential rain storm which caused flash flooding and power outages throughout the county. The Czarkowskis allege that Jennings’ purported removal of a berm caused them to suffer water and sedimentation damage to their property on September 11, 2013, but the photographic evidence introduced by the parties indicates that the nature, extent and cause of that damage are unclear. (Plaintiffs’ exhibit nos. 7-8; defendant’s exhibit no. 4). Furthermore, no evidence has been produced of any continuing trespass or further damage that has been caused to the Czarkowskis’ property during any rainfall subsequent to the severe storm on September 11, 2013.

The Czarkowskis contend that they own six feet of the twelve foot wide alley, and premise that argument upon section 1 of the act of May 9, 1889, P.L. 173, no. 192, which provides that “[a]ny...lane or alley, laid out by any person or persons in any...plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened....” 36 P.S. § 1961. Citing Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954), the Czarkowskis maintain that if a township “does not open an alley within the twenty-one (21) year period set forth in [36 P.S.] § 1961, the abutting lot owners acquire the fee in the alley to the center line.” (Docket entry no.l at ¶ 7). Based upon that reasoning, they posit that since the unnamed, twelve foot wide alley was not open to or used by the public within twenty-one years of the date that the South Ackerly plot was recorded on September 8, 1953, “each of the parties have acquired in fee one-half the width of this alley along their respective property lines.” (Docket entry no. 20 at p. 4).

Jennings represented himself during the hearing on September 30, 2013, although counsel subsequently entered their appearance on his behalf and filed a series of post-hearing submissions. (Docket entry nos. 9-12, 15-17). Jennings alleges that he is the rightful owner of the alley in question by virtue of a series of 2013 corrective conveyances from his great-grandfather, Archibald R. Stetler, who died on July 19,1948. According to Jennings’ submissions, Archibald R. Stetler executed a will on June 30, 1942, which bequeathed his “homestead property” in Glenbum Township, “together with the adjacent land owned by [him] of about eleven acres,” to Stetler’s daughter, Anna M. Jennings. (Docket entry no. 9 at pp. 58-59). After Stetler died on July 19, 1948, his estate was “probated in the Office of the Register of Wills of Lackawanna County to Estate no. 833 of Year 1948.” (Id. at p. 52). On December 5, 1953, Anna M. Jennings executed a will pursuant to which she devised all of her real and personal property to her son, David J. Jennings. (Id. at p. 70).

No documentary or testimonial evidence was presented with respect to the probate of the estate of Anna M. Jennings following her death. Jennings has introduced a supplemental Pennsylvania Inheritance Tax Return that he filed on September 8, 2013, concerning the estate of Archibald R. Stetler which was probated sixty-five (65) years ago. In that filing, Jennings identifies himself as the “great-grandson of Archibald R. Stetler, grandson of Anna M. Jennings and son of...David J. Jennings who was the sole testamentary heir of his mother, Anna M. Jennings.” (Id. at p. 52). Jennings states in his supplemental tax return that Archibald R. Stetler’s “lands were inventoried and reported for inheritance tax purposes in [his] estate when administered in 1948,” but that “[b]y inadvertence, the Executrix, Anna M. Jennings..., omitted to distribute a portion of real estate which remains in her successor, her grandson, David Jennings.” (Id. at p. 51).

On September 9, 2013, Jennings also filed three deeds which ostensibly conveyed to him title in fee to the subject alley. First, in his alleged capacity as “administrator d.b.n.c.t.a. of the Estate of Archibald R. Stetler,” Jennings conveyed “[t]he alley on the south side of Lot 1 as shown on the [South Ackerly plot] map...being approximately 12’ x 46.3”’ to the “Estate of Anna M. Jennings, deceased.” (Docket entry no. 10 at p. 6). The attached description of the alley conveyed identifies it as being “shown on the map prepared for David Jennings by Nicholas A. Piccini, PLS dated 8/20/2013, intended to be duly recorded in the Office of the Recorder of Deeds of Lackawanna County.” (Id. at p. 10). The deed is entitled “deed of distribution fiduciary warranty deed,” and states that it “is a deed of distribution in the Estate of Archibald R. Stetler to correct a scrivener error in the absence of the conveyance of lands described herein due to the heir, Anna M. Jennings, and is exempt from realty transfer tax.” (Id. at pp. 6-8).

The second “deed of distribution fiduciary warranty deed” dated September 9, 2013, also purports to transfer title to the foregoing alley from “David Jennings, Administrator c.t.a. of the Estate of Anna M. Jennings, also known as Anna Mae Jennings, deceased” to “David J. Jennings, widower.” (Id. at pp. 15-22). The final deed dated September 9, 2013, reportedly conveys the same 12’ x 46.3’ alley from “David J. Jennings, widower,” to “David Jennings and Gretchen Jennings.” (Id. at pp. 24-32). The stated consideration in all three deeds is $1.00. (Id. atpp. 6,15,24). Based upon the tripartite conveyances on September 9, 2013, Jennings submits that he cannot be liable to the Czarkowskis for trespass or injunctive relief since “[t]he alley is not the [Czarkowskis’] and never can be.” (Id. at p. 4).

In his supplemental submission, Jennings further asserts that the Czarkowskis’ reliance upon Rahn is misplaced since it stands for the proposition that abutting property owners acquire title in fee to the middle of a roadway identified as a boundary in a deed only when the boundary is a public street or highway. (Docket entry no. 10 at pp. 3-4). Jennings maintains that where the deed descriptions refer to an alley as the boundary, rather than a public street or highway, the abutting property owner does not obtain title in fee to the center of it, and instead simply acquires an easement by implication or right-of-way over that alley. {Id. at pp. 2, 5-6). Thus, a threshold determination must be made regarding the parties’ respective rights relative to the twelve foot wide alley.

III. DISCUSSION

(A) STANDARD OF REVIEW

The elements necessary to establish entitlement to a preliminary injunction are: (1) immediate and irreparable harm in the absence of an injunction; (2) greater injury will result from refusing an injunction than from granting it; (3) an injunction will restore the parties to the status quo that existed immediately prior to the wrongful conduct; (4) the proponent’s right to relief is clear; (5) the injunction is reasonably suited to abate the offending activity; and (6) the preliminary injunction will not adversely affect the public interest. Wyland v. West Shore School District, 52 A.3d 572, 582 (Pa. Cmwlth. 2012); American Homecare Supply Mid-Atlantic, LLC v. Gannon, 10 Pa. D. & C. 5th 362, 375 (Lacka. Co. 2009). Harm is considered to be irreparable if it cannot be adequately compensated by an award of damages. See Duquesne Light Co. v. Longuevue Club, 63 A.3d 270, 275 (Pa. Super. 2013). “An injury is ‘irreparable,’ as that term is contemplated in the context of a preliminary injunction, if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard.” Ambrogi v. Reber, 932 A.2d 969, 978 n.5 (Pa. Super. 2007), app. denied, 597 Pa. 725, 952 A.2d 673 (2008).

To demonstrate that its right to relief is clear, the plaintiff “must show that it is likely to prevail on the merits.” Duquesne Light Company, supra, “For a right to relief to be clear, it must be more than merely ‘viable’ or ‘plausible.’” Ambrogi, 932 A.2d at 980. Moreover, “[i]t is important to recognize that ‘for a preliminary injunction to issue, every one of the prerequisites must be established; if the petition fails to establish any one of them, there is no need to address the others.” Shogan v. Com., Bureau of Commissions, Elections and Legislation, 938 A.2d 1132, 1134-1135 (Pa. Cmwlth. 2007) (quoting Summit Town Centre, Inc. v. Shoe, Show of Rocky Mount, Inc., 573 Pa. 637, 646, 828 A.2d 995, 1001 (2003)).

(B) THE PARTIES’ PROPERTY RIGHTS REGARDING THE ALLEY

Jennings contends that as a result of the supplemental inheritance tax return and deeds that he filed on September 8,2013, and September 9,2013, he is the owner of the 12’ x 46.3’ alley in dispute, and is free to conduct excavation activities on that land that he allegedly owns. The Czarkowskis’ submit that by operation of the twenty-one year limitation period set forth in the act of 1889, they have acquired title in fee to the center of the alley, such that Jennings may not trespass upon the six foot portion of that alley which is ostensibly owned by the Czarkowskis.

In the seminal decision in Rahn, property owners sought to enjoin their neighbors from blocking access to streets that were originally identified on a duly filed plot map, but which had “not been physically opened or used by the public as public ways for a period of twenty-one years.” Rahn, 378 Pa. at 267, 106 A.2d at 462. The Supreme Court of Pennsylvania interpreted 36 P.S. § 1961 as establishing a statute of limitation of twenty-one years within which an acceptance of a road by the public must occur. Id. at 268, 106 A.2d at 463. The Rahn Court concluded that if the street is not used as a public road for twenty-one years, the servitude imposed upon neighboring landowners for use of that street as a public road is removed. Id. at 269, 106 A.2d at 463-464.

Notunlike Jennings, certain landowners in Rahn argued that title to those streets that were designated in the filed map remained in the original developer or subdivider who still had “the option of rededicating the streets to public use or retaining the fee in himself’ at the end of the twenty-one year period. Id. at 269, 106 A.2d at 464. The Supreme Court characterized that argument as “untenable,” and found that the original developer had “divested himself’ of ownership to the streets by conveying lots to grantees and, therefore, “had no fee to ‘rededicate’” or retain once the streets had not been physically opened or used by the public for twenty-one years. Id. at 269-270, 106 A.2d at 464. Accord Ferko v. Spisak, 373 Pa. Super. 303, 308, 541 A.2d 327, 329 (1988) (discussing Rahn as holding that “the abutting lot owners acquired the fee in the streets” and that “the subdivider had divested himself of title to the streets...and had no fee to rededicate.”), aff’d, 522 Pa. 503, 564 A.2d 157 (1989).

Jennings’ claim that he is the owner of the twelve foot wide alley is of dubious merit. By recording the South Ackerly plot map on September 8, 1953, which plan incorporated the various streets and alleys idéntified on that map, Archibald R. Stetler extended an offer to dedicate those streets and alleys for public use. See Ott v. Reager, 313 Pa. Super. 365, 370, 459 A.2d 1272, 1275 (1983). Once twenty-one years elapsed without an acceptance of those roads and alleys by Glenbum Township, Archibald R. Stetler and his heirs were divested of any ownership interest in the streets and alleys and retained no fee in that land. See Rahn, 378 Pa. at 269-270, 106 A.2d at 464; Ferko, 373 Pa. Super, at 308, 541 A.2d at 329. As a result, the supposed correction of a “scrivener error” sixty-five years after the probate of the estate of Archibald R. Stetler is of no legal consequence.

The Supreme Court in Rahn also addressed the argument which is currently being advanced by the Czarkowskis, i.e., that they acquired title in fee to the center of the twelve foot wide alley which is identified as a boundary line in their deed. To that end, the court stated:

It is settled law in Pennsylvania that where the side of a street is called for as a boundary in a deed, the grantee takes title in fee to the center of it, if the grantor had title to that extent, and did not expressly or by clear implication reserve it.

Rahn, 378 Pa. at 270, 106 A.2d at 464. See also Zaloga v. Borough of Moosic, 2011 WL 29383422, at * 17 (M.D. Pa. 2011) (“Where a municipality does not open the street within the twenty-one year period set forth in Section 1961, the abutting lot owners acquire the fee in the street to the center line.”). Both the Superior Court and the Commonwealth Court have subsequently recognized and applied the above-quoted principle of law. See Ferko, 373 Pa. Super. at 310, 541 A.2d at 330 (“Since the eastern side of Franklin Street was called for as the Ferkos’ western boundary, Rahn directs the conclusion that title to the center of Franklin Street passed to the Ferkos.”); Leininger v. Trapizona, 165 Pa. Cmwlth. 493, 498, 645 A.2d 437, 440 (1994) (“Where a municipality does not open the street within the twenty-one year period set forth in section 1961, the abutting lot owners acquired the fee in the street to the center line.”).

In addition to holding that an abutting property owner acquires title in fee to the center of a street which is identified as a boundary in a deed, but not used by the public for twenty-one years, the Supreme Court in Rahn considered “whether the Act of 1889 terminated private easements as well as public rights in the street.” Rahn, 378 Pa. at 271, 106 A.2d at 464. Distinguishing “between the public right of passage over dedicated streets and the individual...private contractual rights resulting as a legal consequence from the implied covenants under which the grantees purchased” their abutting property, the court found “nothing contained within the provisions of the act of 1889 denoting any intent to affect purely private rights.” Id. at 271-272, 106 A.2d at 464-465. Thus, it concluded that “[t]he individual purchasers of lots...acquired rights which are entitled to protection, unless in some legally recognized way the easement has been surrendered.” Id. at 271-272, 106 A.2d at 465. More recent decisional precedent has similarly reasoned that “while a public easement or right of use in such roads is lost as a result of the passage of time and lack of use, the purely private rights of easement of individual property owners in the plan of lots to use the road is not extinguished.” Leininger, 165 Pa. Cmwlth. at 498-499, 645 A.2d at 440 (citing Riek v. Binnie, 352 Pa. Super. 246, 507 A.2d 865 (1986)). Accord Ferko, 373 Pa. Super, at 310, 541 A.2d at 330 (citing Riek and stating that “the parties’ ownership interests in the land comprising Franklin Street are subject to each other’s rights to travel the street.”).

Cases addressing ownership interests of abutting property owners recognize a distinction between boundaries that are public streets, as opposed to driveways. In his post-hearing submissions, Jennings cites Vinso v. Mingo, 162 Pa. Super. 285, 57 A.2d 583 (1948), in which the Superior Court stated that “[wjhere a street called for a boundary in a deed is not a highway nor dedicated to public use, the grantee does not take title in fee to the center of it, but by implication acquires an easement, or right of way over the lands.” Id. at 288, 57 A.2d at 584 (citing Andreas v. Steigerwalt, 29 Pa. Super. 1, 4 (1905)). Later decisions of the Supreme Court and the Superior Court have also acknowledged the creation of such an easement by implication, rather than title in fee to the center, “where descriptions in a deed refer to a driveway as a boundary, which is not a highway or dedicated to public use...” McAndrews v. Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (1972) (citing vinso and Andreas); Auman v. Grimes, 364 Pa. Super. 243, 246, 527 A.2d 1045, 1046-1047 (1987) (same).

Appellate authority has arguably reached conflicting conclusions when addressing ownership interests relating to unopened alleys, as opposed to public streets or private driveways. In Taylor v. Gross, 195 Pa. Super. 225, 171 A.2d 613 (1961), the Superior Court considered the parties’ claims with respect to a fifteen foot alley that was described as a boundary in the pertinent deeds. The Taylor court cautioned that “[i]t is not necessary for a decision in this case to determine where title lies to the 15-foot alley,” since “[tjhis action is primarily concerned with the question of the right of users of that alley.” Id. at 229, 171 A.2d at 616. Nevertheless, in discussing the “settled law in this state that when a public street or highway is called for as a boundary in a deed, the grantee takes title in fee to the middle of the street,” it’s stated that “[t]his is not so, however, where the street called for as a boundary is not a public highway but rather a private, unopened alley or way.” Id. at 231-232, 171 A.2d at 617.

More than forty years after Taylor, the Superior Court appeared to fashion a contrary result in Murphy v. Martini, 884 A.2d 262 (Pa. Super. 2005). In that case, the parties sought to litigate their property rights relative to an “unopened road and alley.” Id. at 265. In determining “whether the road and alley in this case were dedicated to public use,” the Superior Court noted that “‘[ijncorporation of streets and alleys into apian, recorded or unrecorded, constitutes an offer to dedicate these streets and alleys for use by the public.” Id. (quoting Ott, supra). After finding “that the road and alley were never accepted by the municipality” such that “the public’s right of use was extinguished,” the Murphy court held:

The unopened road and alley are named boundaries for parts ofAppellant’s assignor’s properties. Consequently, she is entitled to legal title to the center line of the road and alley on those portions of which her land abuts the road and alley.

Id. at 266. Interestingly, several trial courts have relied upon Rahn and Murphy in support of their contrasting conclusions (1) that landowners whose property abuts an alley acquire fee titles extending to the center of the alley, see, e.g., Bigas-Valedon v. McIlvane, 2013 WL 2896321, at *3 (Phila. Co. 2013) (“Since the alley is not a public street and pursuant to the dictates of Rahn v. Hess, 106 A.2d 461 (Pa. 1954), plaintiffs were awarded ownership of the alley in question in fee simple, extending from their original property line to the middle of the alley.”), and (2) that the abutting property owners merely secure a private easement right over the alley. See, e.g., Davidson v. Graefe, 2008 WL 7427196, at *4 (Chester Co. 2008) (“The foregoing cases also make clear that the Township’s vacation of the alley...resulted in an automatic and simultaneous private right of easement in the plaintiffs and defendant over their otherwise unencumbered fee titles extending to the center of the alley”).

In their “motion for preliminary injunction,” the Czarkowskis seek to enjoin Jennings from asserting any interest in one-half of the subject alley, to bar him “from entering upon” that portion of the alley, and to extend the emergency injunction requiring him to remove all equipment from that location. To obtain that relief, the Czarkowskis must demonstrate that Jennings has no express or implied right to use or enter upon the alley. Although the general public’s right of use of the alley was extinguished in 1974 by the Act of 1889, the parties’ easement rights arising from the implied covenants contained in their deeds remain operable. See Rahn, 378 Pa. at 271-272, 106 A.2d at 465; Leininger, 165 Pa. Cmwlth. at 498-499, 645 A.2d at 440. Hence, even if the Czarkowskis have acquired title in fee to six feet of the twelve foot wide alley, such ownership is subject to Jennings’ implied easement or right-of-way.

In light of the seemingly divergent rulings by the Superior Court in Murphy and Taylor, it is unclear whether the Czarkowskis possess fee title to the center of the unnamed alley or merely easement rights with respect to that alley. The pertinent case law clearly states that such fee title exists in situations involving public streets, as opposed to private driveways or courts. However, Supreme Court precedent consistently holds that “[w]here the street called for as a boundary is not a public highway nor dedicated to public use, the grantee acquires an easement by implication over it.” Justin J. Powell, Inc. v. Wian, 456 Pa. 35, 41, 318 A.2d 346, 350 (1974). An unopened alley is more akin to a driveway or court than a public highway or street. Based upon the decisional authority discussed above, the Czarkowskis have not established that they are likely to prevail on the merits of their argument that Jennings possesses no rights relative to the alley since the Czarkowskis allegedly have title in fee to the center of it.

At a minimum, Jennings has anon-possessory, easement interest entitling him to use or enjoyment of the alley even if another party has a fee simple, possessory interest in that land. See In re Condemnation Proceeding by South Whitehall Township Authority, 940 A.2d 624, 628 (Pa. Cmwlth. 2008). In Pennsylvania, “[t]he law is settled that those who have the same rights over an easement must exercise those rights fairly and reasonably so as not to interfere with the fair and reasonable exercise of the same rights by others who possess them.” Puleo v. Bearoff, 376 Pa. 489, 492, 103 A.2d 759, 761 (1954). Since the Czarkowskis have not demonstrated that Jennings may be enjoined from using the alley or “asserting any possessory, legal or equitable interest in the subject property,” (Docket entry no. 3 at p. 2), their “motion for preliminary injunction” must be denied.

(C) TRESPASS RELIEF

The gravamen of the Czarkowskis’ claim for injunctive relief is that Jennings has trespassed onto their land and committed irreparable harm in the process. One who intentionally enters the property of another without the privilege to do so is chargeable with trespass. Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450, 91 A.2d 232, 235 (1952). To succeed with a trespass claim, “there must be in the plaintiff either actual possession or the right to immediate possession flowing from the right of property; and [s]he must have been deprived of it by the tortious act of another.” Florig v. Estate of O’Hara, 912 A.2d 318, 327 n. 13 (Pa. Super. 2006), app. denied, 593 Pa. 740, 929 A.2d 1162 (2007).

In addition to their failure to establish their right to immediate possession of one-half the alley, the Czarkowskis have neglected to present credible evidence of actual harm caused by Jennings’ tortious activity. The photographic evidence does not establish the presence of a berm which the Czarkowskis claim was later removed by Jennings. Nor did the credible proof demonstrate that the surface water and sedimentation damage alleged by the Czarkowskis was caused by Jennings’ excavation activity, rather than the natural flow of surface water during a heavy rainstorm. As such, the Czarkowskis have not established any actionable trespass on the part of Jennings. See Shamnoski v. PG Energy, Div. of Southern Union Co., 569 Pa. 652, 680, 858 A.2d 589, 606 (2004) (holding that responsibility for water damage “cannot lawfully be assigned to appellant” since “it was only the natural flow of excess water produced by the storm which proceeded down through the natural watercourse and caused the damage to appellees’ properties.”).

(D) ABSENCE OF IRREPARABLE HARM

Assuming arguendo that the Czarkowskis had established that their ownership right to six feet of the unnamed alley was clear, and that they suffered water damage as a result of Jennings’ trespass onto that land, they nonetheless would not be entitled to injunctive relief. The Czarkowskis may secure a preliminary injunction only upon a showing that their harm is irreparable since they do not have an adequate remedy at law. As stated above, the Czarkowskis seek to recover compensatory and punitive damages from Jennings for water damage that they have allegedly suffered.

It is long established in this Commonwealth that a landowner may grade and improve property “without liability for an incidental effect upon adjoining property even though there may result some additional flow of surface water thereon through a natural watercourse, but he may not, by artificial means, gather the water into a body and precipitate it upon his neighbor’s property.” Westbury Realty Corp. v. Lancaster Shopping Center, 396 Pa. 383, 387, 152 A.2d 669, 671-672 (1959). Additionally, an owner of upper land may not unreasonably increase the quantity of water or change the quality of water discharged upon a lower landowner. Colombari v. Port Authority of Allegheny Co., 951 A.2d 409, 413 (Pa. Cmwlth. 2008); Tom Clark Chevrolet, Inc. v. Dept. of Environmental Protection, 816 A.2d 1246, 1253 (Pa. Cmwlth. 2003), app. denied, 574 Pa. 763, 831 A.2d 601 (2003). To obtain injunctive relief against a neighboring landowner based upon the discharge of surface water onto property, the party seeking injunctive relief is generally required to establish a continuing trespass which reoccurs with each rainfall. See St. Andrew's Evangelical Lutheran Church of Audubon v. Township of Lower Providence, 414 Pa. 40, 43, 198 A.2d 860, 862 (1964); Staffaroni v. City of Scranton, 153 Pa. Cmwlth. 188, 192, 620 A.2d 676, 678 (1993); Township of West Carroll v. Wintz, 2009 WL 8753090, at *3 (Cambria Co. 2009).

The Czarkowskis have only produced evidence of a single instance of water damage following an exceedingly heavy rainstorm on September 11, 2013. While “[e]quity may enjoin repeated and continuing trespasses,” Rogoff v. Buncher Company, 395 Pa. 477, 480, 151 A.2d 83, 86 (1959), it is not appropriate to enjoin a single trespass which has not reoccurred. See Kramer v. Slattery, 260 Pa. 234, 238, 103 A. 610, 611 (1918) (“Equity will not restrain by injunction the commission of a mere, ordinaiy, or naked trespass; but jurisdiction to enjoin the commission of what is known as a continued or continuing trespass is now well established.”); Bradley v. Valicenti, 185 Pa. Super. 403, 407, 138 A.2d 238, 240 (1958) (“Equity is the special forum for relief where there has been a trespass or nuisance of a continuing and permanent character.”). The record indicates that to the extent that the Czarkowskis may prove that their single occasion of water damage was attributable to Jennings’ tortious conduct, they have an adequate remedy at law in the form of compensatory damages for that sole trespass. Accordingly, due to the Czarkowskis’ failure to establish that their harm is irreparable, they are not entitled to their requested injunctive relief. An appropriate order follows.

ORDER

And now, this 18th day of November, 2013, upon consideration of the “motion for preliminary injunction” filed by plaintiffs, Paul Czarkowski and Robert J. Czarkowski, the credible evidence introduced during the hearing, and the legal arguments contained in the parties’ post-hearing submissions, and based upon the factual findings and legal conclusions set forth in the foregoing Memorandum, it is hereby ordered and decreed that:

1. Plaintiffs’ motion for a preliminary injunction is denied; and

2. Pursuant to Pa.R.C.P. 1531(e), the special injunction issued on September 23, 2013, is dissolved.