Olexa v. DeSales University

78 Pa. D. & C.4th 171
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedDecember 12, 2005
Docketno. 2004-C-2341
StatusPublished

This text of 78 Pa. D. & C.4th 171 (Olexa v. DeSales University) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olexa v. DeSales University, 78 Pa. D. & C.4th 171 (Pa. Super. Ct. 2005).

Opinion

Black, J.,

The plaintiff, Stephanie Olexa, is the owner of a 7.7019-acre tract of land located in Upper Saucon Township, Lehigh County, Pennsylvania. The defendant, DeSales University, owns the surrounding land on which it has developed various buildings and facilities as part of its campus. In her complaint, Olexa seeks relief from the University in four counts for interference with her property.

In Count I labeled “Trespass,” Olexa alleges that the University has constructed a stone driveway and an underground storm water pipe that encroach on the southern portion of her property. She seeks removal of the encroachments, an injunction against future trespasses on her property; and compensatory and punitive damages.

In Count II labeled “Storm Water Trespass,” Olexa alleges that the University has unlawfully diverted surface water onto her property. She contends that the increased flow of surface water onto her property is a continuing trespass as well as a violation of the Pennsylvania Storm Water Management Act, 32P.S. §680.13, and the Upper Saucon Township Subdivision and Land Development Ordinance, sections 262.2 and 262.3. She requests an order compelling the University to cease and remediate [174]*174damage from the storm water trespasses, an injunction against future trespasses; and compensatory and punitive damages.

In Count III labeled “Negligence,” Olexa alleges that the University was negligent in causing the physical encroachments and storm water trespasses referred to in Counts I and II. She seeks the same relief as in these counts.

In Count IV labeled “Ejectment,” Olexa seeks the removal of the physical encroachments, the cessation of the storm water trespasses and a judgment granting her sole and exclusive possession of her property.

After a two-day trial without jury and oral argument, we make the following findings of fact and conclusions of law:

FINDINGS OF FACT

(1) The plaintiff, Stephanie Olexa, is the owner of a 7.7019-acre tract of land located north and west of the intersection of Landis Mill Road and Clamshell Drive, in Upper Saucon Township, Lehigh County, Pennsylvania. The property is described in a certain deed dated July 11, 1980, recorded in the Office of the Recorder of Deeds of Lehigh County, Pennsylvania, in Deed Book 1282 page 275.

(2) Olexa purchased the property jointly with her former husband on July 11, 1980.1 She acquired sole ownership on May 17, 2002, when her former husband deeded his interest in the property to her as part of the [175]*175equitable distribution of marital property in their divorce.2

(3) The defendant, DeSales University, is a private educational institution with its principal office located at 2755 Station Avenue, Center Valley, Upper Saucon Township, Lehigh County, Pennsylvania.

(4) The University’s campus has experienced significant growth since 1980. Among other improvements, the University has added a baseball field, batting cages, a softball field, a University center, residences, a sports and fitness center, and a science center, as well as roadways and parking areas.3

(5) The Olexa property is a heavily wooded, unimproved tract. A streambed runs from east to west across the southern portion of the property. The property is zoned R-3, which permits single-family homes and cluster development.

(6) The Olexa property is bordered on the east by Landis Mill Road, a public street, and on the south by Clamshell Drive, a private road owned by the University. Landis Mill Road and Clamshell Drive intersect at the southeast comer of the Olexa property.

(7) Clamshell Drive is an unpaved, stone road.

(8) Surveys of the Olexa property were conducted by Earl P. Geissler P.L.S., on behalf of Olexa, and by Kerry L. Good P.E., on behalf of the University. The results of the two surveys were similar, but placed the boundaries of the Olexa property at slightly different locations.4

[176]*176(9) The survey of Kerry Good is the more accurate one since Mr. Good was able to locate more monuments than Mr. Geissler as references for determining the boundaries of the property.

(10) Both surveys concur that (a) the stone road known as Clamshell Drive currently extends partially onto the Olexa property and (b) a turning radius at the intersection of Landis Mill Road and Clamshell Drive encroaches on the southeast comer of the Olexa property.

(11) In 1980, when the plaintiff and her former husband acquired the Olexa property, the width of Clamshell Drive was approximately equal to the width of one automobile.5

(12) In or around 1987 or 1988, the University expanded the width of Clamshell Drive to allow two lanes of traffic. Currently, it is approximately 20 feet wide.6

(13) The expanded Clamshell Drive encroaches by two to three feet over part of the southern portion of the Olexa property, as indicated on the survey of Kerry Good, RE.7

(14) The turning radius over the southeast comer of the Olexa property came into existence at some point in time after 1980 to accommodate southbound traffic on Landis Mill Road desiring to turn onto Clamshell Drive.8 It is unclear exactly when or how this turning radius first came into use.

[177]*177(15) The Pennsylvania Department of Transportation has paved this turning radius. The date that PennDOT did so is unknown.9

(16) This turning radius is also a continuing encroachment on the Olexa property, as indicated on defendant’s exhibit 7.

(17) In August 1997, the University constructed an underground storm water drainage pipe under Clamshell Drive to redirect water from its property to the streambed on the Olexa property.10

(18) This pipe encroaches approximately 30 feet onto the Olexa property.

(19) Before the pipe was constructed, significant rain events caused water to sheet-flow over Clamshell Drive onto the Olexa property.11 The pipe redirects this water from its natural course on the University’s land under Clamshell Drive onto the Olexa property, where it is discharged at a single location at the streambed on the Olexa property.12

(20) Most of this pipe is located underground, but the end of the pipe at the streambed on the Olexa property is visible.13

(21) The pipe under Clamshell Drive was built without the approval of either Olexa or Upper Saucon Township.14

[178]*178(22) The University has conducted studies and plans in preparation for removal of the pipe under Clamshell Drive, but despite demand, has failed to remove it.15

(23) A 42-inch storm water drainage pipe exists under Landis Mill Road, extending from the University property to the eastern boundary of the Olexa property. This pipe carries storm water from the University’s land on the east to the streambed on the Olexa property.

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Bluebook (online)
78 Pa. D. & C.4th 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olexa-v-desales-university-pactcompllehigh-2005.