IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cogan House Township :

:

v. : No. 1899 C.D. 2017

: ARGUED: September 12, 2018

David Lenhart and Dianne Lenhart, :

Appellants :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

SENIOR JUDGE LEADBETTER FILED: November 15, 2018

David and Dianne Lenhart (Landowners) appeal from an order of the 

Court of Common Pleas of Lycoming County (trial court) finding in favor of Cogan 

House Township (Township) and against Landowners on their counterclaim

pertaining to 2011 and 2014 projects performed on Post Road, which runs through 

their property. Landowners sought to impose liability on the Township and require 

it to undertake corrective action based on their position that it allowed these projects 

to be conducted in violation of the Storm Water Management Act (SWMA),1the 

Department of Environmental Protection’s regulations (DEP Regulations) 

promulgated pursuant to the Clean Streams Law,

2 and the Township’s Storm Water 

Management Ordinance (Ordinance). Landowners also asserted common law 

claims, including willful or gross misconduct, negligence, negligence per se, and 

trespass. They requested equitable relief in the form of a temporary injunction 

barring the Township from causing future damage and a permanent injunction 

 

1 Act of October 4, 1978, P.L. 864, as amended, 32 P.S. § 680.1 - 680.17.

2 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1 - 691.1001.
2

directing it to perform reasonable remedial measures. After granting the parties’ 

request to bifurcate the issue of liability from damages, viewing the property, and 

holding a four-day trial on liability only, the trial court entered a verdict in favor of 

the Township. We reverse and remand for further proceedings consistent with this 

opinion.3

This matter originated with the Township’s 2011 approval of the 

request of two gas companies, Anadarko and Range Resources, to employ an 

engineering firm to design and oversee road improvements to Post Road in 

anticipation of gas drilling activities to be conducted in the area. (October 12, 2017, 

Opinion “Op.,” Finding of Fact “F.F.” No. 3.) Following the 2011 and 2014 projects, 

the Township filed an August 2014 two-count complaint against Landowners 

asserting that, without authority, they improperly interfered with a drainage system 

and easements along Post Road. In July 2016, Landowners filed a fourth amended 

counterclaim, which is now at issue, asserting that the Township caused 

modifications to be performed on Post Road in violation of the aforementioned law, 

ordinance, and regulations. In addition, they averred that the modifications had a 

direct, material and negative effect on the condition and value of their property. 

When the trial court rendered a verdict on the counterclaim, it also entered an order 

dismissing the Township’s complaint. The trial court subsequently denied

Landowners’ post-trial motions and entered final judgment in favor of the Township. 

Because the Township did not appeal from the dismissal of its complaint, we 

 

3 On review of a non-jury verdict, we are limited to determining whether there is competent 

evidence to support the trial court’s findings and whether it committed an error of law. John 

Spearly Constr., Inc. v. Penns Valley Area Sch. Dist., 121 A.3d 593, 601 (Pa. Cmwlth. 2015). In 

addition, we must give the same weight and effect on appeal to the court’s findings as the verdict 

of a jury. Id. Finally, we must view the evidence in the light most favorable to the verdict winner. 

Id.
3

consider only the appeal from the order entering a verdict in favor of the Township

on Landowners’ counterclaims.

4

 We have combined and summarized the eight

issues Landowners raise on appeal as follows: (1) whether the trial court erred in 

ruling that the Township did not engage in alteration or development of land for 

purposes of the SWMA and the Ordinance; (2) whether the trial court erred in 

determining that the Township’s activities constituted road maintenance and not 

road construction or reconstruction for purposes of DEP’s Regulations; and (3) 

whether the trial court erred in failing to address Landowners’ common law claims

and request for equitable relief. We answer each in the affirmative.

I. The Alteration or Development of Land and Storm Water Runoff

By way of a framework for our statutory analysis, we note that Section 

13 of the SWMA provides:

Duty of persons engaged in the development of land

Any landowner and any person engaged in the 

alteration or development of land which may affect storm 

water runoff characteristics shall implement such 

measures consistent with the provisions of the applicable 

watershed storm water plan as are reasonably necessary to 

 

4 Following oral argument, Landowners filed an uncontested application for postcommunication submission advising this Court that the common pleas judge who rendered the 

non-jury verdict, the Honorable Dudley N. Anderson, had assumed senior judge status. 

Presumably, Judge Anderson will be available as a senior judge to comply with our directives on 

remand. To the extent we remand as to most issues only for an assessment of damages, Judge 

Anderson’s availability takes on less significance since the trial was bifurcated as to damages. 

However, even where this is not the case, we note that our Supreme Court recently considered the 

issue of the proper role of an appellate court when reviewing a non-jury decision where it deemed 

the trial court’s opinion inadequate under Pennsylvania Rule of Appellate Procedure 1925(a), but 

the judge was no longer available to render a supplemental opinion. In Dolan v. Hurd Millwork 

Co., ___ A.3d ___ (Pa., No. 51 MAP 2017, filed October 17, 2018), the Court determined that an 

appellate court under such circumstances could decide whether the trial court correctly decided the 

legal issues and whether the findings of fact were supported by competent evidence.
4

prevent injury to health, safety or other property. Such 

measures shall include such actions as are required:

(1) to assure that the maximum rate of storm water 

runoff is no greater after development than prior to 

development activities; or

(2) to manage the quantity, velocity and direction of 

resulting storm water runoff in a manner which otherwise 

adequately protects health and property from possible

injury.

32 P.S. § 680.13 (1) and (2) (emphasis added).

Landowners argue that the trial court erred in concluding that the 

Township’s activities did not constitute “the alteration or development of land which 

may affect storm water runoff characteristics,” citing the transformative and invasive 

nature of the work performed. As we will discuss in detail, the trial court determined 

that the work performed did not satisfy that triggering phrase based on its finding of 

fact that the work did not exceed the original location and graded area of Post Road. 

In interpreting that phrase “[w]e must first look for the meaning of a statute’s word 

or term in that statute’s definitions, then in the Statutory Construction Act [of 1972

(Statutory Construction Act)], a law dictionary and, finally, a standard dictionary, in 

that order.” Sklar v. Dep’t of Health, 798 A.2d 268, 276 (Pa. Cmwlth. 2002).

The definitional section of the SWMA provides no statutory definition

for “alteration or development of land.” It defines “storm water” as “[d]rainage 

runoff from the surface of the land resulting from precipitation or snow or ice melt.” 

Section 4 of the SWMA, 32 P.S. § 680.4. The Statutory Construction Act provides 

that when words in a statute are not defined, they shall be construed according to 

their common and approved usage. 1 Pa. C.S. § 1903. It also provides that, in 

construing a statute, we must consider the provision as a whole and in context. Id.
5

We conclude that the legal definitions for the phrase’s operative terms 

reflect their common and approved usage. In pertinent part, “alteration” is defined 

as “[a] substantial change to real estate . . . .” Black’s Law Dictionary 90 (9th ed. 

2009). The definition of “development,” in pertinent part, provides: “A substantial 

human-created change to improved or unimproved real estate . . . .” Id. at 516. The 

key term and common thread in both definitions is “substantial change.” If one were 

to substitute “substantial change” for “alteration or development” and “drainage” for 

“storm water” in the statute, the plain meaning of the legislature’s word choices

would be preserved. In other words, if a landowner or person engages in a 

substantial change of land that may affect drainage runoff characteristics, then that 

person is obligated to take measures “to ensure that development does not increase 

the rate of storm water runoff or to manage the increased run-off in a manner that 

protects health and property.” Youst v. Pa. Dep’t of Transp., 739 A.2d 625, 628 (Pa. 

Cmwlth. 1999) (emphasis added).

Moreover, mindful of the legislature’s use of the word “may” in the 

phrase “may affect storm water runoff characteristics,” we emphasize that Section 

13 imposes a duty to implement measures to prevent injury from changes in runoff 

that may or may not occur. Thus, the issue as to liability is not whether, in hindsight, 

runoff was in fact affected, but whether the statutory duties were triggered by the 

potential of such effects. In other words, the duty to follow the dictates of the 

statutory provision is neither negated nor cured by whether or not runoff, ultimately,

was altered. Of course, the amount of such an effect may be relevant to the issue of 

damages, but this case has not reached that stage of the proceedings.5

 Turning to the Ordinance, which resembles Section 13 of the SWMA 

in its use of the phrase alteration or development of land, we note generally that the 

 

5 Evidence was presented in the present case that storm water runoff was affected.
6

Ordinance refers to the SWMA as the Township’s primary authority for regulating 

storm water management. (Article “Art.” I, Section 104(A) of the Ordinance; 

Reproduced Record (R.R.), Volume “Vol.” 2 at 909a.) Regarding the importance of 

that regulation, the Township stated: “A comprehensive program of stormwater 

management, including reasonable regulation of development and activities causing 

accelerated runoff, is fundamental to the public health, safety and welfare and the 

protection of people of the Commonwealth, their resources and the environment.” 

(Art. I, Section 102(B); R.R. at 908a.) To that end, the Ordinance requires 

preparation and implementation of an approved Storm Water Management Site Plan 

for all “regulated activities” and no such activities are to commence until the 

Township issues written approval of a plan. (Art. III, Section 301(A); R.R. at 916a.) 

“Regulated activities” are defined as follows: “Any Earth Disturbances or any 

activities that involve the alteration or development of land in a manner that may 

affect stormwater runoff.” (Art. II; R.R. at 914a) (emphasis added). “Earth 

disturbance” is defined as “[a] construction or other human activity which disturbs 

the surface of the land, including, but not limited to, clearing and grubbing; grading; 

excavations; embankments; road maintenance; building construction; the moving, 

depositing, stockpiling, or storing of soil, rock or earth material.” (Id.; R.R. at 912a.) 

Accordingly, given the fact that the Township adopted the Ordinance under the 

SWMA and that their stated purposes are the same, we afford the phrase an identical 

interpretation in both contexts.

 In the present case, the trial court reasoned that the work completed did 

not constitute alteration or development of land under Section 13 and, therefore, the 

Ordinance, concluding: “The original location of the road and accompanying 

ditches was maintained and existing pipes were replaced in their original locations.” 

(Op. at p. 5.) In addition, it found that “construction activities in both projects all 
7

occurred within the original graded area between the existing toes of fill slopes and 

tops of cut slopes on either side of the road and any associated drainage features; 

i.e., within the existing road cross-section.”6 (F.F. No. 14.) Mindful of the foregoing 

statutory analysis, we reject the trial court’s conclusion.

As an initial matter, there is no competent evidence to support the 

determination that the work performed was limited to the original location and 

graded area of the road, and some evidence to the contrary. As a transportation 

engineer testifying on behalf of the Township acknowledged, the pre-construction 

width of the road was as narrow as twelve feet and the post-construction width was 

twenty feet of macadam. (September 7, 2017, Hearing, Notes of Testimony (N.T.)

at 8-9, 28-29, and 62; R.R., Vol. 1 at 314-15a, 334-35a, and 368a.) Consistent with 

that testimony, the trial court found that the contractor established four-foot stone 

shoulders on both sides of the road. (F.F. No. 6.) Accordingly, there is no support 

for the trial court’s primary reason for determining that there was no alteration or 

development of land.

Additionally, the trial court’s own findings regarding the undisputedly

invasive nature of the activities undertaken contradict its conclusion that there was 

no alteration or development of land. As the trial court found, before completion of 

the 2011 project, Post Road was primarily gravel-covered, with occasional segments 

tarred and chipped, and the road surface was between twelve to sixteen feet wide 

with two-foot stone shoulders on both sides. (F.F. No. 5.) “The renovations on Post 

Road comprised an area of just shy of one mile in length along the north-south stretch 

of the road.” (F.F. No. 6.) This length was subject to the reclamation of a sixteenfoot cart-way, “which involved grinding the roadway surface to a depth of one foot, 

 

6

“The existing road cross-section consists of the original graded area between the existing 

toes of fill slopes and tops of cut slopes on either side of the road and any associated drainage 

features.” 25 Pa. Code § 102.1.
8

mixing powdered cement and water with the ground material, laying that mixture on 

the cart-way and topping that with three inches of blacktop.” (Id.) Four-foot stone 

shoulders also were established on both sides. (Id.)

The undisputed nature of the piping installed provides further indicia of 

alteration or development of land that could affect storm water runoff characteristics. 

In that regard, before reclamation work on the roadway itself, “pipes under the road 

were replaced with similar-sized pipes, including two pipes which carried streams 

under the road.” (F.F. No. 7.) Even though a new pipe was not added at the Kyle 

driveway, the Township’s contractor replaced a completely clogged and buried sixinch diameter pipe with a twenty-four inch pipe at that location. (Id.) Additionally, 

“[i]n 2014, an under-drain was installed in the ditch to the east side of the road for 

approximately 1000 feet, to carry underground water from the points of seepage to 

the end of the drain, which empties into a culvert which runs from the east side of 

the road to the west side.” (F.F. No. 9.) At that time, “the cracks in the road were 

also repaired, the entire road was overlaid with additional blacktop and a 1000-foot 

section of berm (adjoining the ditch which contained the under-drain) was paved on 

the east side.” (F.F. No. 10.) A civil engineer specializing in water resources 

testifying on behalf of the Township was unable to dispute, and in fact agreed, that 

an increase in water volume resulted from the piping installed and the work 

performed. (September 8, 2017, Hearing, N.T. at 51; R.R., Vol. 2 at 691a.) The 

following colloquy between the trial court and that witness is illustrative:

THE COURT:

I don’t understand how you can put in a brand new 

pipe that is unobstructed and have that water come down 

the east side of Post Road, hit the pipe, go over to the west 

side and now come down toward [Landowners’] property 

without increasing the volume of water.
9

What am I missing here? If it was clogged, if that 

pipe was inoperable, wouldn’t the water pool on the east 

side of the road and never get to the west side of the road?

WITNESS:

That’s a good point.

. . . .

THE COURT:

So is the answer to my question that there could 

have been a greater volume of water cascading onto 

[Landowners’] property after the pipe issue was resolved?

THE WITNESS:

There could and would have been actually.

. . . .

THE WITNESS:

And it would be the same effect as if the pipe had 

been properly maintained and cleaned out on a periodic 

basis.

THE COURT:

So [Landowners’] conclusion that there is increased 

volume of water as a result of this road project may very 

well be correct because of the added volume that the 

improved transportation system has provided?

THE WITNESS:

Yes.

(Id. at 50-51; R.R. at 690-91a.)

Based on the foregoing, we must conclude that the work described 

constituted alteration or development of land that affected storm water runoff 

characteristics. To that end, we reverse the trial court’s determination to the contrary 

and remand for further evidence as to the amount of damages, if any, which resulted 
10

from the Township’s failure to comply with the aforementioned law and ordinance

provisions. 

II. DEP’s Regulations

Landowners argue that the trial court erred in construing DEP’s 

Regulations found in Chapters 102 and 105 of Title 25 of the Pennsylvania Code, 

which respectively, pertain to “erosion and sediment (E&S) control” and “dam 

safety and waterway management.” Specifically, Landowners maintain that the trial 

court erred in construing Chapter 102 of DEP’s Regulations and determining that 

the work performed constituted road maintenance and not road construction or 

reconstruction. In addition, they argue that the trial court erred in construing Chapter 

105 of DEP’s Regulations and determining that the Township’s failure to procure a 

permit for the pipe replacement for the Bear Run tributary was irrelevant. We turn 

first to DEP’s Regulations pertinent to road maintenance.

A. Chapter 102 of DEP’s Regulations

Chapter 102 of DEP’s Regulations applies to those who engage in 

“earth disturbance activities.” Those activities, which include road maintenance, are 

defined as follows:

A construction or other human activity which disturbs the 

surface of the land, including land clearing and grubbing, 

grading, excavations, embankments, land development, 

agricultural plowing or tilling, operation of animal heavy 

use areas, timber harvesting activities, road maintenance 

activities, oil and gas activities, well drilling, mineral 

extraction, and the moving, depositing, stockpiling, or 

storing of soil, rock or earth materials.
11

25 Pa. Code § 102.1 (emphasis added).

7

 The term “road maintenance activities” 

means “[e]arth disturbance activities within the existing road cross-section,” and, in 

pertinent part, includes the following: shaping or restabilizing unpaved roads; 

shoulder grading; slope stabilization; cutting of existing cut slopes; reshaping and 

cleaning drainage ditches and swales; pipe cleaning; pipe replacement; and support 

activities incidental to resurfacing activities. Id.

In concluding that the work performed was road maintenance, the trial 

court stated, inter alia, that the full-depth reclamation could be characterized as 

“restabilizing unpaved roads.” In addition, it noted that the replacement of pipes and 

cleaning of drainage ditches similarly were enumerated in the regulation as road 

maintenance activities. However, like our determination that the work performed 

constituted alteration or development of land, we similarly conclude that it exceeded

road maintenance under DEP’s Regulations.

As an initial matter, the trial court’s findings of fact do not support a

determination that a full-depth reclamation was tantamount to merely restabilizing 

an unpaved road. As noted, the recovery of a sixteen-foot cart-way entailed highly 

invasive and comprehensive measures such as grinding the roadway surface to a 

depth of one foot, mixing powdered cement and water with the ground material, 

laying that mixture on the cart-way and topping that with three inches of blacktop. 

(F.F. No. 6.) In addition, the Township’s contractor established four-foot stone 

shoulders on both sides of the road, clearly exceeding shoulder grading. Finally, the 

work entailed more than nominal pipe replacement in that the Township’s contractor 

replaced a six-inch pipe with a twenty-four inch pipe. (Id., No. 7.)

 

7 This regulation is consistent with the Ordinance’s definition for “earth disturbance” set forth 

on page six of this opinion.
12

Additional factors indicative of road construction or reconstruction 

include the fact that the Township’s contractor widened the roadway and shoulder 

and changed the roadway surface from gravel to fully paved. As a transportation 

engineer testifying for the Township acknowledged, the pre-construction width of 

the road was as narrow as twelve feet and that the post-construction width resulted 

in twenty feet of macadam. Accordingly, we conclude that the work performed 

constituted road construction or reconstruction rather than road maintenance.

This conclusion relates directly to Landowners’ argument that the trial 

court erred in holding that the project did not require a National Pollutant Discharge 

Elimination System (NPDES) permit pursuant to 25 Pa. Code § 102.5, (DEP’s 

Regulation pertaining to permit requirements relating to erosion and sediment 

control). Subsection (a) of the regulation, in pertinent part, requires a permit for 

earth disturbance activity greater than one acre except for road maintenance 

activities. Specifically, the disputed regulation provides:

(a) Other than agricultural plowing or tilling 

activities, animal heavy use areas, timber harvesting 

activities or road maintenance activities, a person 

proposing an earth disturbance activity that involves 

equal to or greater than 1 acre (0.4 hectare) of earth 

disturbance, or an earth disturbance on any portion, part, 

or during any stage of, a larger common plan of 

development or sale that involves equal to or greater than 

1 acre (0.4 hectare) of earth disturbance, shall obtain an 

individual NPDES Permit or coverage under a general 

NPDES permit for Stormwater Discharges Associated 

With Construction Activities prior to commencing the 

earth disturbance activity. In addition to other applicable 

requirements, persons required to obtain an Individual 

NPDES Permit for Stormwater Discharges Associated 

With Construction Activities for projects proposed in 

special protection watersheds shall evaluate and use BMPs 

[best management practices] in accordance with 

antidegradation requirements in §§ 102.4(b)(6) and 

102.8(h) (relating to erosion and sediment control 
13

requirements; and PCSM [post-construction storm water 

management] requirements) regardless of whether the 

discharge is new, additional or increased.

(b) A person proposing a timber harvesting or road 

maintenance activity involving 25 acres (10 hectares) or 

more of earth disturbance shall obtain an E&S Permit 

under this chapter prior to commencing the earth 

disturbance activity.

25 Pa. Code § 102.5(a) and (b) (emphasis added). The trial court concluded that no 

permit was required, reasoning:

As the earth disturbance activity here involved more than 

one acre, sub-section (a) could apply to require the 

NPDES permit, but since that sub-section excludes “road 

maintenance activities” and the court has already 

determined that the projects here are properly classified as 

such, sub-section (b) applies instead. Under that subsection, no permit was required since the activity involved 

less than 25 acres.

(Op. at pp. 8-9.)

In light of our conclusion that the work performed constituted road 

construction or reconstruction, rather than road maintenance, the trial court’s 

determination must be reversed. 

The trial court also concluded, contrary to Landowners’ claim, that the 

Township was in compliance with 25 Pa. Code § 102.4(b)(1) and (2). That 

provision, pertaining to erosion and sediment control requirements, provides:

(b) For earth disturbance activities other than 

agricultural plowing or tilling or animal heavy use areas, 

the following erosion and sediment control requirements 

apply:

 (1) The implementation and maintenance of E&S 

BMPs [erosion and sediment best management practices] 

are required to minimize the potential for accelerated 

erosion and sedimentation, including those activities 
14

which disturb less than 5,000 square feet (464.5 square 

meters).

 (2) A person proposing earth disturbance activity shall 

develop and implement a written E&S Plan under this 

chapter if one or more of the following criteria apply:

(i) The earth disturbance activity will result in a total 

earth disturbance of 5,000 square feet (464.5 square 

meters) or more.

(ii) The person proposing the earth disturbance 

activities is required to develop an E&S Plan under this 

chapter or under other Department regulations.

(iii) The earth disturbance activity, because of its 

proximity to existing drainage features or patterns, has the 

potential to discharge to a water classified as a High 

Quality or Exceptional Value water under Chapter 93 

(relating to water quality standards).

25 Pa. Code § 102.4(b)(1) and (2).

In interpreting Section 102.4(b), the trial court acknowledged that the 

earth disturbance activities of the Post Road improvements triggered the requirement 

in Section 102.4(b) for erosion and sediment control, concluding that the Township’s 

contractor implemented and maintained erosion and sediment control best 

management practices in compliance with Section 102.4(b)(1). In addition, it 

concluded that the Township’s contractor performed a storm water management 

analysis, and “through utilization of Best Management Practices, implemented an 

erosion and sediment control plan, thus also complying with Section 102.4(b)(2).”8

 

8

In pertinent part, the trial court found as follows regarding what the Township’s contractor 

did and did not do:

11. [The Township’s contractor] did utilize Stormwater Best 

Management Practices in both projects.

12. [The contractor] did prepare a stormwater management 

analysis prior to beginning construction in 2011, and concluded that 

it met the stormwater management requirements by simply utilizing 
15

(Op. at 3.) However, contrary to the requirement of Section 102.4(b)(2), no written 

E&S plan was submitted, let alone approved. Since, as the trial court noted with 

regard to the permit requirement, it is undisputed that the earth disturbance exceeded 

one acre, which is a far greater area than 5000 square feet. Therefore, we agree that 

the Township failed to comply with Section 102.4(b)(2). 

Accordingly, we remand for further evidence as to the amount of 

damages, if any, which resulted from the Township’s failure to comply with Chapter 

102 of DEP’s Regulations.

B. Chapter 105 of DEP’s Regulations

Turning to Chapter 105 of DEP’s Regulations,

9 which, in pertinent part, 

pertains to waterway management, the trial court acknowledged that the Township 

failed to comply with Chapter 105 by not applying for a permit when replacing the 

 

Stormwater Best Management Practices because it was matching 

existing drainage conditions, replacing pipes in their prior locations 

and directing flow through natural drainage areas.

13. [The Township’s contractor] did not submit an erosion 

and sediment control plan as part of a permit application for either 

project, based on its assessment that the projects were “roadway 

maintenance projects” involving less than 25 acres.

. . . .

15. A permit was obtained for the replacement of the pipe 

which carried Bear Run under Post Road. An erosion and sediment 

control plan was submitted in connection with that permit 

application.

(F.F. Nos. 11-13, and 15.)

9 The Township mistakenly asserts that Landowners waived any issues pertaining to Chapter 

105 for failure to argue them in their brief. (Township’s Brief at 16 n.4.) In addition to including 

Chapter 105 in the statement of issues segment of their appellate brief, Landowners discussed it 

on pages twenty-six and twenty-eight of their brief. By way of observation, it is not difficult to 

fathom why Landowners did not dwell on it in their brief in light of the trial court’s conclusion 

that “[t]he Township did violate 25 Pa. Code Chapter 105 by not applying for a permit for the pipe 

replacement in the tributary of Bear Run, but that violation did not cause any damage to 

[Landowners’] property.” (Conclusion of Law No. 3.)
16

thirty-three inch pipe for the tributary of Bear Run near their driveway. However, 

the trial court concluded that Landowners failed to provide credible evidence that 

the failure to obtain such a permit resulted in any damage to their property. In so 

determining, the trial court weighed the expert testimony and concluded:

[Landowners’] expert witness opined that the culvert is 

under-sized because it drained 123 acres prior to the Post 

Road improvements and 144 acres thereafter, but his 

addition of the 20 acres north of the east-west section of 

Post Road is not supported by the evidence. There is a 

ditch along the north side of that section of road which 

drained that 20 acres to the same place before and after the 

2011 and 2014 improvements . . . . Thus, the actual 

comparison is 123 acres to 124 acres, an increase of less 

than one percent.

(Op. at pp. 9-10.)

Because the trial court found that there was insufficient evidence to 

support a finding of damage, it held there could be no liability for failure to procure 

a permit. (Id. at p. 10.) We disagree. First, the trial court failed to acknowledge the 

existence of other evidence of harm,10 and we have no basis to conclude that any 

such evidence was discredited. Moreover, the trial was bifurcated as to damages so 

there was no reason Landowners should have submitted all of the relevant evidence 

of harm, so we cannot presume that they did so. Accordingly, we (1) reverse the 

trial court’s determination that the Township’s failure to comply with Chapter 105 

of DEP’s Regulations by not applying for a permit for the pipe replacement in the 

tributary of Bear Run was irrelevant because that violation did not cause any damage 

to Landowners’ property; and (2) remand for additional evidence, where necessary, 

 

10 For instance, a civil engineer testifying on behalf of Landowners opined that one of the 

adverse effects of the Township’s activities was the advent of new wetlands resulting in the loss 

of the use of certain areas of their property. 
17

and pertinent findings of fact and conclusions of law as to any damages that 

Landowners may have sustained.

III. Common Law Claims and Request for Equitable Relief

Finally, Landowners maintain that the trial court erred in failing to 

address their common law claims and request for equitable relief. We agree.11 As 

we have previously observed, in addition to the SWMA, common law provides that 

an owner of land who constructs a drain depositing increased water flow onto a 

neighbor’s land can be held liable for damage to the land that results therefrom. 

Glencannon Homes Ass’n, Inc. v. N. Strabane Twp., 116 A.3d 706, 720 (Pa. Cmwlth. 

2015) [citing Miller v. Laubach, 47 Pa. 154 (1864)]. Accordingly, we remand for 

the trial court’s consideration of Landowners’ common law claims and request for 

equitable relief, which may include additional evidence and must include pertinent 

findings of fact and conclusions of law.

IV. Conclusion

Accordingly, we reverse the judgment in favor of the Township on 

Landowners’ counterclaim and remand for further proceedings in accordance with 

this opinion.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

 

11 We note that this Court previously entered an order denying Landowners’ application for 

relief requesting summary remand on this basis. However, our refusal to undertake a piecemeal 

determination of this issue separate from the others in no way impacts our consideration here.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cogan House Township :

:

v. : No. 1899 C.D. 2017

:

David Lenhart and Dianne Lenhart, :

Appellants :

O R D E R

AND NOW, this 15th day of November, 2018, the judgment of the 

Court of Common Pleas of Lycoming County is hereby REVERSED. This matter 

is REMANDED for further proceedings in accordance with the foregoing opinion.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge