Judge Patricia A. McCullough
Judge Patricia A. McCullough ()

A trial court will need to re-examine a property owner’s claim that a school district’s construction projects caused damages under the common-enemy rule after the Commonwealth Court determined the district could be considered negligent, despite the local township granting approval of the project.

A seven-judge en banc Commonwealth Court panel unanimously ruled Feb. 21 that the plaintiff in Bretz v. Central Bucks School District should be entitled to injunctive relief because several projects undertaken on property containing Central Bucks High School East and Holicong Middle School damaged neighboring property. The decision reversed the holdings of the trial court, which held that the district was not negligent because it did not violate any provisions of the applicable subdivision and land development ordinances.

Judge Patricia A. McCullough, who wrote the majority opinion, said the claim was viable under the common-enemy rule, which she described as “the general principle that the law regards surface waters as a common enemy which every proprietor must fight to get rid of as best he may.”

According to McCullough, the state Superior Court, in the 1985 case LaForm v. Bethlehem Township, established that a landowner can be held liable for the effects of surface water running off the property if the landowner has artificially diverted the water from its natural channel, or if the landowner unreasonably or unnecessarily increased the quantity or changed the quality of water discharge. The principles were adopted by the Commonwealth Court 13 years later in Fazio v. Fegley Oil.

The trial court, McCullough said, overlooked the first standard and only applied the second.

“A plaintiff need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium and that the water was discharged onto the plaintiff’s property in an increased volume or force, however slight,” McCullough said. “[The] trial court’s explicit findings that water was collected and diverted as a result of the district’s expansion projects conflict with its conclusion that an exception to the common-enemy rule is not established in this case.”

According to McCullough, in 1981, Mary Bretz bought 31 acres downstream and adjacent to the schools. In the 1990s and again approximately 10 years later, the school underwent construction projects, which concluded construction of a detention basin adjacent to its property.

Bretz filed a complaint alleging that expansion projects caused an increase in the volume and duration of stormwater discharge on the property. Bretz requested an injunction requiring the district to redesign the projects and implement stormwater management to reduce the discharge.

A trial court hearing was held in which the plaintiff’s husband, as well as experts from both sides, testified. According to McCullough, testimony focused on whether the district violated applicable subdivision and land development ordinances.

The court held that the district was not negligent because the projects did not violate any ordinances, and ultimately denied the injunctive relief.

Bretz appealed the decision and argued that the town’s approval of the district’s land development plan was not evidence per se that the district was not liable under the common-enemy rule or violated local ordinances.

The trial court, McCullough noted, had found that an increased quantity of water was “reasonable” and that installing the detention basin and a 36-inch drainage pipe was a “proper and profitable use” of the district’s land.

However, McCullough noted that the Commonwealth Court’s 1982 case Marlowe v. Lehigh Township established that a plaintiff sustains a cognizable injury if there is any increase in the total volume of water discharge on the property or if the force of the discharge is increased.

Citing the court’s 2006 case Chase v. Eldred Borough, which held that a plaintiff can pursue injunctive relief even if “the land, structures or activities that caused the nuisance had been authorized under the zoning procedure,” McCullough agreed with Bretz that local approval of the project did not eliminate the district’s liability.

Bretz’s attorney, Martin J. King of KingsLaw in New Hope, Pa., said he’s pleased with the ruling.

The district’s attorney, Sharon F. Harvey of Connor, Weber & Oberlies in Paoli, Pa., did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 19-page opinion in Bretz v. Central Bucks School District, PICS No. 14-0305, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •