Clark, S. & v. v. Fritz, M. & S., and Fritz, H.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 SHAWN & VALERIE CLARK IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellees v.

MARK AND SUSAN AND HELEN FRITZ

Appellants No. 1085 MDA 2015

Appeal from the Judgment Entered August 7, 2015 In the Court of Common Pleas of Berks County Civil Division at No(s): 13-2044

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 06, 2016

Mark and Susan Fritz (h/w) and Helen Fritz (collectively the “Fritzes”) appeal from the judgment, entered on a verdict in favor of Appellees, Shawn and Valerie Clark, (h/w) (the “Clarks”), after the court granted a permanent injunction1 in the underlying equity action. After careful review, we affirm.

In July 2001, the Fritzes purchased and installed on their property a Phase-2,2 400,000 BTU outdoor wood-fired burner (OWB/furnace).3 The total cost of the unit, including installation, was $30,000. N.T. Non-Jury Trial, 4/8/15, at 592. The furnace was used year-round to heat the interior of their residences4 as well as their water supply.5 Mr. Fritz testified that he primarily burned seasoned hard wood in the furnace. Id. at 591. The furnace greatly reduced the Fritzes’ heating expenses compared to what it had cost them to run their standard home oil-based heating system.6 The furnace is located approximately 420 feet to the west of the Clarks’ property line and 670 feet west of the Clarks’ residence. The topography of the parties’ land is primarily rolling hills.

The Fritzes obtained the requisite township permits and uniform construction code permit for the furnace. The Fritzes complied with all zoning and building regulations, as well as manufacturer’s instructions, when installing and using the furnace. One of those instructions included locating the unit downwind from their residences. The unit also complies with Environmental Protection Agency (EPA) standards. However, notably, the EPA requires that manufacturers provide all potential buyers of Phase II furnaces the following information in their respective owner’s manuals:

Statements indicating that the person(s) operating a hydronic heater is/are responsible for operation in a manner that does not create a public or private nuisance condition. The manufacturer’s distance and stack height recommendations and the requirements in any applicable laws or other requirements may not always be adequate to prevent nuisance conditions due to terrain or other factors.

EPA Hydronic Heater Program, Phase 2 Partnership Agreement, 10/12/11, at § VI(A)(5) (Outreach Materials; Owner’s Manuel Statement).

On February 13, 2013, the Clarks filed a civil action in equity, sounding in private nuisance and trespass, seeking to enjoin the Fritzes from causing further damage to them and their property. In the complaint, the Clarks averred that when the prevailing winds blow from west to east, the furnace’s strong, pungent and foul-smelling smoke would descend upon their property and cause them to suffer from any and all of the following conditions: burning in their eyes, throats and lungs, sore throats, and headaches. As a result of the odor emanating from the furnace, the Clarks had to close their windows and doors and keep the air conditioning on throughout the year.7 Despite these measures, it was virtually impossible to keep all of the fumes from permeating their home through vents and the fireplace. Overall, the fumes prevented the Clarks from enjoying any outdoor activities on their property. Despite several requests by the Clarks that the Fritzes cease using the furnace, as well as requests that the Fritzes raise the smoke stack of the unit, the quantity of smoke drifting onto the Clarks’ property did not decrease or cease.

The Clarks also filed a separate petition for special relief in the nature of a preliminary injunction against the Fritzes, claiming that smoke from the furnace was entering their home and causing adverse health effects on their entire family, including their young child and family dog. The Fritzes filed preliminary objections to the complaint, to which the Clarks filed an answer. On May 6, 2013, the court dismissed the Fritzes’ preliminary objections.

On May 21, 2013 and June 4, 2013, the court held hearings on the Clarks’ request for a preliminary injunction. On June 10, 2013, the court entered an order granting injunctive relief finding that:

[P]laintiffs have met the burden of proof that a party must establish in order to obtain preliminary injunctive relief . . . and that defendants’ outdoor wood burning furnace is a private nuisance as it presently exists and, as such, defendant is prohibited from using the outdoor wood burning furnace in its present location. Defendants may submit a plan to relocate the outdoor wood burning furnace elsewhere on their property that does not disturb the peaceful use and enjoyment of any of the neighbors.

Order, 6/11/13. Despite the court’s suggestion that the Fritzes relocate the unit, they did not attempt to do so. After the Fritzes ceased using the furnace, there was no more smoke in the air, the Clarks’ physical problems subsided and they were able to fully enjoy use of their property.

Days after the court issued the preliminary injunction, Mr. Fritz constructed a 55-gallon burn barrel,8 ignited a fire in the barrel, burned various items (including household trash) in it, and placed it on the edge of Helen’s property that bordered the Clarks’ property. Mr. Fritz tended to the fire, which was continuously stoked for 13 hours, as he sat in a lounge chair under a sun umbrella while drinking beer.9

On May 22, 2015, after a bench trial and three days of testimony, the court entered a permanent injunction that prohibited the Fritzes from using the furnace and, again, gave them the opportunity to relocate the furnace to an area that would not interfere with the Clarks’ use and enjoyment of their property. The court also assessed $1,500 in punitive damages against the Fritzes “due to Defendants’ reckless indifference to the right of Plaintiffs to enjoy the clean air and peaceful enjoyment of the property.” Order, 5/27/15. Finally, the court prohibited the Fritzes from “any open burning, including barrel burning, within 150 feet of the border of Plaintiffs’ property line.” Id. On June 5, 2015, the Fritzes filed post-trial motions, which were denied on June 9, 2015. This timely appeal follows.10

On appeal, the Fritzes11 raise the following issues for our consideration:12

(1) Whether the court erred by refusing to decide Appellant’s motions in liminae [sic], preventing a clear record for appeal; (2) Whether the trial court erred by allowing Appellees to testify to their medical conditions pursuant to the use of the furnace; (3) Whether the trial court improperly allowed Appellees’ expert report and testimony of Alan R. Leston into evidence; (4) Whether the court, sitting as factfinder, improperly conducted its own independent research which it relied upon in granting the permanent injunction; (5) Whether the trial court’s permanent injunction violates the equal protection clause of the United States and Pennsylvania Constitutions; (6) Whether the trial court erred and abused its discretion in refusing to allow a jury trial on the eve of trial where: (1) Defendants had properly made a jury demand 20 months earlier and no objection had ever been made; (2) Defendants had a constitutional and statutory right to a jury trial; and (3) the nature of a nuisance action requires the community, not the court, to determine what standards are acceptable; and (6) Whether the trial court erred and abused its discretion in assessing punitive damages against Defendants for using a burn barrel where: (1) the use was legal and was not at issue before the court; and (2) the barrel burning took place before the court’s preliminary injunction was legally effective.

See Brief of Mark and Susan Fritz, at 4; Brief of Helen Fritz, at 6-16.

Helen Fritz claims that the trial court failed to rule upon several pretrial motions in limine, including a ruling on the proper standard for an expert witness (Daubert13/Frye14 claim), the diminution of the Clarks’ property value, and how the Clarks’ health was affected by the operation of the furnace.15 Helen asserts that failure to rule upon these motions prior to trial constituted “reversible error that can only be cured by a new trial.”

To support this issue, Helen Fritz cites to one criminal case where a trial court refused to hear evidence on a defendant’s motion to suppress in an underage drinking case. See Commonwealth v. Breslin, 732 A.2d 629 (Pa. Super. 1999). In Breslin, the evidence the defendant sought to be suppressed consisted of breath samples and test results taken from the defendant’s breath samples, which formed the sole support for the defendant’s conviction. The circumstances in Breslin are in no way analogous to the current equity action seeking a permanent injunction against the Fritzes. Where there is no citation to relevant authority on the issue to show how the court committed reversible error, we find this issue waived. Pa.R.A.P. 2119.16

Next, the Fritzes assert that the court erred by permitting the Clarks to offer “speculative, unproven” testimony about the alleged adverse health effects they suffered as a result of emissions from the Fritzes’ furnace.

Prior to trial, the parties agreed that the Clarks’ medical records would not be introduced into evidence, primarily due to the fact that they were not seeking damages for any medical claims or injuries. Despite this agreement, it was incumbent upon the Clarks, as plaintiffs, to prove that the Fritzes created a nuisance. Section 822 of the Restatement (Second) of Torts sets forth the elements of liability for a private nuisance as follows:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Diess v. Pa. DOT, 935 A.2d 895, 905 (Pa. Commw. 2007), citing Restatement (Second) of Torts § 822. See also Kembel v. Schlegel, 478 A.2d 11 (Pa. Super. 1984) (acknowledging that Pennsylvania Supreme Court adopted section 822 of Restatement (Second) of Torts as test to determine private nuisance). The Restatement further defines the harm necessary to impose liability under nuisance law as “significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Id. at 15, citing Restatement (Second) of Torts, § 821F.

Here, testimony about the physical symptoms suffered by the Clarks as a result of the smoke from the Fritzes’ furnace was necessary to prove the “significant harm” element of a claim for nuisance. See Evans v. Moffat, 160 A.2d 465 (Pa. Super. 1960) (testimony that plaintiffs experienced headaches, coughing, nausea and irritation of nasal passages as result of noxious and foul smelling gases emanating from defendant’s coal company relevant to prove case under section 822 of the Restatement (Second) of Torts). Under these circumstances, the court did not err in admitting such evidence.

The Fritzes next claim that the court improperly admitted the expert report and testimony of the Clarks’ expert, Alan R. Leston, into evidence at trial.17 Specifically, they assert that the court should not have permitted a lay witness to opine on the engineering characteristics of the furnace, its causal connection to damaging the environment, and reference to metrological data in his report as proof of causation. Without this testimony, the Fritzes claim that the Clarks failed to prove that the furnace caused any harm which would warrant a permanent injunction.

First, we note that, contrary to the Fritzes’ assertion, the court certified Leston as an expert witness in the area of air quality science and outdoor wood boilers. N.T. Non-Jury Trial, 4/8/15, at 315, 317. Leston testified that part of his job as a senior engineer was to analyze data and prepare daily air quality pollution reports. Id. at 301. He also determined prevailing winds and used airport data to obtain wind speed direction when he worked for the Connecticut Department of Environmental Protection. Id. at 323-24. Based on Leston’s experience in air quality analysis and data, as well as his extensive employment history in the industry, the trial court properly qualified him as an expert witness. See Pa.R.E. 702 (witness qualified as expert by knowledge, skill, experience, training or education may testify in form of opinion or otherwise if expert’s knowledge is beyond that possessed by average layperson, where knowledge will help trier of fact understand evidence or determine fact in issue and where expert’s methodology generally accepted in relevant field); see also Abbott v. Steel City Piping Co., 263 A.2d 881 (Pa. 1970) (practical experience may, in proper case, suffice to qualify witness as expert).

In order to obtain technical information on the Fritzes’ furnace, Leston relied on videos and photos taken by Mr. Clark, as well as the manufacturer’s owner’s manual, sales brochures, and the manufacturer’s website. N.T. Non-Jury Trial, 4/8/15, at 320. Leston also testified that he looked at topographical maps of the area and gathered data from several airports and the National Weather Service to ascertain the area’s prevailing wind direction. Id. at 321. Because Leston’s conclusions were based upon generally accepted principles and methodologies, the court did not abuse its discretion in permitting him to testify regarding the relevant issues surrounding the winds and how they affected the smoke flowing from the furnace. Freed, supra; Pa.R.E. 702.

The Fritzes next claim that the court improperly conducted its own independent research and took judicial notice of extraneous evidence which it used to support the grant of a permanent injunction. Specifically, they claim that the court relied on evidence of the prevailing winds in the Los Angeles City Valley basin and its smog effects upon the City of Los Angeles and then compared it to the wind currents and topography in Tilden Township. Additionally, the Fritzes assert that the court improperly took judicial notice of the Eastern United States’ air currents and how they apply to the instant case.

Instantly, the court’s reference to and use of facts relating to wind currents was not improper where those facts could be determined from accurate sources and where the information was supported by both lay and expert testimony from trial. See Pa.R.E. 201(b). See also Interest of D.S., 622 A.2d 954, 957 n.4 (Pa. Super. 1993) (“Adjudicative facts are facts about the particular parties to the controversy, their activities, their property, and their interests. Facts which help answer who did what, when, where, why, how, and with what motive and intent are all adjudicative.”). Here, the facts in question were adjudicatory facts; therefore, we find no merit to this claim.

Next, Helen Fritz claims that the court’s issuance of a permanent injunction is unconstitutional under the Equal Protections Clauses of the Pennsylvania18 and United States Constitutions19 because the Fritzes are not being treated the same as other similarly-situated citizens of Tilden Township, the Commonwealth of Pennsylvania, and the United States. Additionally, the Fritzes claim that because their furnace complied with local township ordinances and because the unit was approved for use by the EPA, the court has “improperly criminalized the legal behavior of [their] use of the Furnace.” We disagree.

In order to grant a permanent injunction, the evidence only needed to show that a legal wrong existed for which there was no adequate remedy at law. J.C. Erlich, supra. There was no question that the Fritzes’ continued, intentional use of the furnace greatly impacted the Clarks’ daily life, as it prevented them from enjoying the outdoors and also caused them to suffer physically from the smoke that permeated their home despite constant self- help efforts to abate the problem. Accordingly, they successfully proved that a private nuisance claim. See Restatement (Second) of Torts § 822 (“One is subject to liability for a private nuisance if . . . his conduct is a legal cause of an invasion of another interest in the private use and enjoyment of land, and the invasion is . . . intentional and unreasonable[.”]). Because no other adequate remedy existed short of shutting down the unit to rectify the situation, a permanent injunction was justified. Id.20

Moreover, it is of no moment that the Fritzes complied with local ordinances in installing and operating the furnace or that the unit was approved by the EPA, it is well-settled that a private nuisance often flows from the consequences of an otherwise lawful act. Liberty Place, supra at 509 (collecting cases where defendants enjoined from legal acts that created private nuisances).

The Fritzes next claim that the trial court abused its discretion in refusing to conduct a jury trial when they made a jury demand months before the scheduled trial date and had a statutory and constitutional right to a jury trial. It has been long recognized that Article 1, Section 6 of the Pennsylvania Constitution does not permit a jury trial in an ordinary equity action.21 Rosenberg v. Rosenberg, 419 A.2d 167, 206 (Pa. Super. 1980), citing Schwab v. Miller, 153 A. 731 (Pa. 1931). Once the Clarks brought the original action in equity, the matter has entered the realm of equity and equity jurisdiction subsumed the entire case. See McGovern v. Spear, 344 A.2d 826 (Pa. 1975). Therefore, this claim has no merit.

Finally, the Fritzes complain that the court improperly awarded punitive damages to the Clarks where there was “no basis in the facts or the law to support same.” Appellants’ Brief, at 5. Punitive damages may be awarded in equity cases and “the finder of fact should be given broad discretion in assessing the amount of punitive damages which will be sufficient to punish the defendant and to set an example which may deter the defendant and others from similar conduct.” Pierce v. Penman, 515 A.2d 948, 954 (Pa. Super. 1986).22

Just days after the court issued a preliminary injunction23 preventing the Fritzes from operating their furnace, Mr. Fritz built a 55-gallon burn barrel, ignited a fire in the barrel, and placed it on the edge of the Clarks’ property. Mr. Fritz tended to the fire, which was continuously stoked for 13 hours, as he sat in a lounge chair under a sun umbrella while drinking beer. Mr. Fritz later admitted that he was “peeved” and had “had a couple beers” at the time. N.T. Non-Jury Trial, 4/8/15, at 265. The court determined that Mr. Fritz’s actions were “deliberate and meant to harass the plaintiffs.” Trial Court Opinion, 8/28/15, at 28. Under such circumstances, punitive damages were warranted to punish the Fritzes and prevent them from engaging in similar conduct in the future. Pierce, supra; SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702 (Pa 1991) (whether party’s actions rise to level of outrageous conduct is within discretion of fact finder).

Judgment affirmed.

DUBOW, J., Joins the majority.

STABILE, J., Concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 5/6/2016