J-A05035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN J. THOMPSON, TRUSTEE OF 

THE THOMPSON FAMILY TRUST 

AGREEMENT

v.

YOUNG SIK KIM 

Appellee

APPEAL OF: KAREN THOMPSON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2321 EDA 2022

Appeal from the Order Entered January 24, 2022

In the Court of Common Pleas of Montgomery County

Civil Division at No. 2017-03442

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 28, 2023

Karen Thompson (Appellant), as trustee of the Thompson Family Trust, 

appeals by permission1from the order determining the equitable relief 

awarded to her in this action for trespass, private nuisance, and violation of 

the Clean Streams Law (35 P.S. §§ 691.1-1001). We affirm.

The trial court detailed the underlying facts and procedural history as 

follows:

____________________________________________

1 Appellant filed a petition for permission to appeal which the trial court 

granted on September 20, 2022.
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[T]his dispute is between the owners of two parcels of land. The 

parcel higher in elevation comprises approximately 10 acres, 

fronting on Welsh Road in Horsham Township, northwest of the 

intersection of Welsh Road and Mann Road. Welsh Road serves 

as the boundary between Horsham Township and Upper Dublin 

Township, which is to the southwest of Welsh Road. The parcel is 

currently owned by [Appellee Young Sik Kim (Kim)] and is referred 

to as the Kim Parcel.

The other parcel, lower in elevation, comprises 

approximately 71 acres, fronting on Mann Road in Horsham 

Township, northeast of the intersection of Welsh Road and Mann 

Road, and extending northeast and northwest. The parcel 

includes a strip of land approximately 50 feet in width, located in 

the western part of the parcel and running from the northeast to 

the southwest, providing access to Welsh Road. The parcel is 

currently owned by the Thompson Family Trust Agreement (“the 

Trust”) and is referred to as the Trust Parcel. [Appellant] is 

trustee of the Trust. The two parcels share a boundary along the 

northwest edge of the 50-foot-wide strip and elsewhere along the 

western boundary of the Trust Parcel.

A third relevant parcel consists of approximately 39 acres, 

on which is situated the Maple Glen Church and its parking area 

(“the Church Parcel”). The Church Parcel shares a border with the 

eastern portion of the Trust Parcel and also lies across the 50-

foot-wide strip from the Kim Parcel. Like the Trust Parcel, the 

Church Parcel is lower in elevation than the Kim Parcel. 

* * *

Much of the development affecting the two subject parcels 

occurred before they were acquired by the parties to this lawsuit. 

Before the late 1950’s, the land in Upper Dublin Township across 

Welsh Road from the Kim Parcel was undeveloped farmland. In 

the late 1950’s, a housing subdivision was constructed on that 

land. This development resulted in increased storm water runoff 

from the Upper Dublin property, which is at a higher grade than 

Welsh Road and the Kim Parcel. As part of the construction of the 

subdivision, a culvert was installed under Welsh Road, depositing 

the storm water runoff onto the Kim Parcel. The natural course of 

the water from the culvert crossed over the Kim Parcel and across 

the 50-foot-wide strip onto the Church Parcel. The flow was 

primarily sheet flow, but with the passage of time, a small swale 
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or very shallow, meandering channel and a small ephemeral pond 

appeared on the Kim Parcel.

On April 30, 1990, the Kim Parcel was purchased by Dr. 

Norman Werther and Ellen Werther, husband and wife. The 

Werthers installed a wider and deeper defined channel with a bed 

and banks for the conveyance of the water to a pond that they 

also constructed. The channel was wholly contained on the Kim 

Parcel. The pond was partly on the Kim Parcel but the majority of 

the pond was located within the 50-foot-wide strip that is part of 

the Trust Parcel. The effect of the channel and the pond was to 

increase the flow of water runoff from the Kim Parcel and to divert 

it from the Church Parcel to the Trust Parcel.

At all relevant times prior to December 20, 2010, Natural 

Lands Trust, Inc. (“NLT”), was the owner of the Trust Parcel.

* * *

On December 20, 2010, the Trust purchased the Trust 

Parcel from NLT, subject to an Agricultural Conservation Easement 

established the same date by NLT. At the time of its purchase of 

the Trust Parcel, the Trust was aware that the pond was situated 

largely on the 50-foot-wide strip that was part of the Trust Parcel 

and that it caused an increase in water runoff onto the Trust 

Parcel.

* * *

On January 9, 2015, [Kim] purchased the Kim Parcel from 

the Werthers. 

* * *

At and after the time of his purchase of the Kim Parcel, 

[Kim] was aware that the work done by the Werthers had 

increased the flow of water onto the Trust Parcel. In 

approximately the summer of 2016, [Kim] made certain changes 

to the channel, including removing old railroad ties and replacing 

them with boulders, and to other parts of the Kim Parcel. He did 

not change the location of the channel or the pond. The evidence 

is in dispute over whether the changes made by [Kim] aggravated 

or mitigated the impact of water runoff from the channel and pond 

onto the Trust Property. It is undisputed, however, that the 
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changes did not wholly reverse the increased water runoff onto 

the Trust Property caused by the Werthers’ actions.

Trial Court Opinion, 11/15/22, at 1-4 (footnote omitted, capitalization 

modified).

The Trust commenced this action for trespass, violation of the Clean 

Streams Law and Storm Water Management Act, private nuisance, public 

nuisance, and negligence on February 21, 2017. The trial court held a bench 

trial December 1 - 4, 2020, and issued its decision on February 26, 2021. 

On the Trust’s statutory claims, the court determined [Kim]

had not developed and implemented an Erosion and Sediment 

Control Plan in accordance with the requirements of regulations of 

[the Department of Environmental Protection (DEP)], 25 Pa. Code 

§ 102.4(b). The court held that [Kim] was therefore in violation 

of the Clean Streams Law. See 25 Pa. Code § 102.31. 

Accordingly, the court held that the Trust was entitled to equitable 

relief against [Kim] pursuant to section 601(a) and (c) of the 

Clean Streams Law, 35 P.S. § 691.601(a), (c), to abate his 

violations and compel compliance with the statute. On the nature 

of the remedial relief, the court adopted the suggestion of the 

Trust’s counsel by ordering [Kim] to apply to DEP to determine 

what corrective activity was required. ... 

On the common-law claims, the court determined [Kim] was 

liable to the Trust for equitable relief for trespass and private 

nuisance. ...

While finding [Kim] liable on these common-law claims, the 

court held in abeyance the determination of equitable relief on the 

claims, pending the proceedings before DEP ordered on the Clean 

Streams Law claim. ...

On March 8, 2021, [Kim] filed a motion for post-trial relief. 

On March 18, 2021, the Trust filed its own motion for post-trial 

relief. After briefing, by order dated May 27, 2021, the court 

denied both motions and entered the relief set forth in the decision 

as a judgment of the court. Neither party filed an appeal from 

that judgment.
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* * *

On July 14, 2021, [Kim]’s engineer, Mr. [Timothy] 

Woodrow, submitted to DEP (and also to the Montgomery County 

Conservation District) an application for adequacy review, in 

purported compliance with paragraph 2(a) and (b) of the court’s 

order. On July 29, 2021, the Trust filed [a] motion to enforce 

judgment, to hold [Kim] in contempt, and for sanctions (“the First 

Motion to Enforce”), asserting that Mr. Woodrow’s submission did 

not comply with ... the order. A hearing on the motion was set for 

September 1, 2021. ... The court determined that proceedings 

on the motion should be held in abeyance pending an informal 

conference with an appropriate representative of DEP[, which] 

was held on September 21, 2021, with Christopher Smith, a DEP 

engineer, in attendance. ... 

On October 29, 2021, DEP, by its assistant counsel, 

provided to the parties’ counsel by email a DEP status update. ... 

[On] November 12, 2021, [the Trust filed] a motion to 

enforce relief and for a hearing pursuant to the May 27, 2021 

judgment order of court (“the Second Motion to Enforce”). ... 

Id. 6-9 (footnotes omitted, capitalization modified).

On January 11, 2022, the trial court conducted a hearing on both 

motions to enforce. Gregory Charles Newell, Appellant’s engineer, and Mr. 

Woodrow, Kim’s engineer, both testified.

Mr. Newell testified that the proper abatement measure 

would be to install a new stormwater management basin on the 

Kim Parcel near the outlet of the culvert running from Upper 

Dublin Township under Welsh Road and to fill in the channel and 

pond that the Werthers had installed. This was the same plan that 

Mr. Newell had proposed during his testimony at the four-day trial. 

At that time, he had estimated the cost of implementing the plan 

as $583,000. (Ex. P-75, p. 11; Tr. 12/3/20, at 13-14.) On crossexamination, Mr. Newell testified that he had not considered 

dredging the pond as a potential remedy. (Tr. 1/11/22, at 48.)

* * *
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Mr. Woodrow, on behalf of [Kim], had a very different 

opinion. He testified that no remediation was necessary to 

address the increased water flow from the Kim parcel — a 

conclusion that was clearly at odds with the findings in the court’s 

decision. But he also proposed, as an alternative, that the pond 

be dredged and that other alterations to the pond be made. ... 

Mr. Woodrow further testified that he had not yet prepared a 

design or specifications for such work. (Tr. 1/11/22, at 139.)

Id. at 10-12.

On January 24, 2022, the trial court issued a decision which provided:

[Kim] will be ordered to promptly dredge or deepen the 

pond that straddles the parties’ properties and to modify the 

associated outlet structures, spillway, and berm, so as to 

achieve the maximum feasible reduction of water flow from 

[Kim’s] property onto [Appellant’s] property, in accordance 

with the following procedure:

(a) The parties, through their respective engineers, 

shall engage in a cooperative and collaborative 

process to reach agreement on the nature, scope and 

design of the work to be performed. The agreement 

shall be set forth in a writing (including sketches, 

plans, or other graphic materials) acceptable to both 

engineers. Upon the entry of such agreement, [Kim]

shall proceed with the agreed work as promptly as 

feasible.

(b) In the event that the parties, through their 

respective engineers, cannot reach agreement in 

accordance with subparagraph (a) above, each party 

shall submit to the court, on a date agreed upon by 

the parties, a written report stating the work proposed 

by that party’s engineer, explaining the reasons for 

such proposal, and explaining any objection to the 

proposal of the opposing party’s engineer. Within ten 

(10) days after the submission of such reports, each 

party may submit a rebuttal report by that party’s 

engineer. Upon review of such reports, and after such 

further proceedings, if any, that the court considers 
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necessary, the court will determine the work to be 

performed.

Trial Court Opinion, 11/15/22, at 14.

On January 31, 2022, the Trust filed a motion seeking reconsideration. 

The court denied reconsideration on February 10, 2022. Appellant timely 

appealed.2

Appellant presents the following issues:

1. Did the trial court abuse its discretion and commit 

manifest errors of law by issuing and entering its January 24, 2022 

memorandum and order, reversing, or materially deviating from 

and nullifying, the court’s February 26, 2012 decision, later 

affirmed by its May 27, 2021 judgment order[?]

2. Did the trial court therefore commit abuses of 

discretion and manifest errors of law by entering its January 24, 

2022 memorandum and order denying Appellant’s relief request 

in the Trust’s November 12, 2021 motion to enforce relief and for 

a hearing pursuant to the May 27, 2021 judgment order?

3. Did the trial court therefore commit abuses of 

discretion and manifest errors of law by: (1) creating an artificial, 

subjective standard for determining an acceptable volume of 

unnaturally channeled water i.e. “maximum feasible reduction” 

reversing the standard of [Kowalski v. TOA PA V, L.P., 206 A.3d 

1148 (Pa. Super. 2019)] (“however slight”) and (2) refusing to 

reinstate, and enforce against [Kim] without limitation, the full 

and complete abatement relief awarded Appellant by the court, as 

intended, in its February 26, 2021 [decision] as affirmed by its 

May 27, 2021 judgment order?

____________________________________________

2 The trial court viewed the order as “arguably appealable as of right.” Id. at 

15, n.6. However, as previously noted, the court granted Appellant 

permission to appeal. Order, 9/20/22. Appellant and the trial court have 

complied with Pa.R.A.P. 1925.
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4. In [its] November 15, 2022 opinion, did the trial court 

sua sponte and without attribution, improperly interpose a 

defense of de jure authority on behalf of [Kim] with regard to 

unnaturally channeled water flowing from Upper Dublin Township

onto [Kim’s] property, to justify less than full abatement relief 

awarded Appellant rather than require [Kim] to effectuate full and 

permanent relief in favor of Appellant while yet finding that [Kim] 

“is still responsible under the law of trespass and private nuisance 

for the increased runoff that remains[?]”

5. Should the trial court’s January 24, 2022 

memorandum and order therefore be vacated, and this matter 

remanded with instructions to the trial court[?]

Appellant’s Brief at 5-9 (modified).

At the outset, we recognize:

When reviewing an equitable decree, our standard of review is 

limited. “We will reverse only where the trial court [ ] palpably 

err[ed], misapplied the law or committed a manifest abuse of

discretion. Where there are any apparently reasonable grounds 

for the trial court’s decision, we must affirm it.” Viener v. 

Jacobs, 834 A.2d 546, 554 (Pa. Super. 2003) (citations omitted). 

Moreover,

The function of this Court on an appeal from an 

adjudication in equity is not to substitute [our] view 

for that of the lower tribunal; our task is rather to 

determine whether “a judicial mind, on due 

consideration of all the evidence, as a whole, could 

reasonably have reached the conclusion of that 

tribunal.”

Hess v. Gebhard & Co., Inc., 570 Pa. 148, 808 A.2d 912, 920 

(2002) (quoting Aiken Indus., Inc. v. Estate of Wilson, 477 

Pa. 34, 383 A.2d 808, 810 (1978)). Additionally, we note that 

“[w]hen reviewing the results of a non-jury trial, we are bound by 

the trial court’s findings of fact, unless those findings are not 

based on competent evidence.” Viener, 834 A.2d at 554.

Kinney v. Lacey, 252 A.3d 644, 647 (Pa. Super. 2021).
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Furthermore,

in Pennsylvania, specialized rules have been developed as to when 

an upper landowner may be liable for the effects of surface water 

running off its property. Our Supreme Court has held that, 

“[b]ecause water is descendible by nature, the owner of a 

dominant or superior heritage has an easement in the servient or 

inferior tenement for the discharge of all waters which by nature 

rise in or flow or fall upon the superior.” Chamberlin v. Ciaffoni, 

373 Pa. 430, 96 A.2d 140, 142 (1953), quoting Kauffman v. 

Griesemer, 26 Pa. 407 (Pa. 1856). Therefore, “an owner of 

higher land [is] under no liability for damages to an owner of lower 

land caused by water which naturally flows from the one level to 

the other.” Chamberlin, 96 A.2d at 142.

Notwithstanding the above, “[t]he right of the upper landowner to 

discharge water on the lower lands of his neighbor is, in general, 

a right of flowage only, in the natural ways and natural quantities.” 

Pfeiffer v. Brown, 165 Pa. 267, 30 A. 844 (1895). Thus, if the 

upper landowner “alters the natural conditions so as to change the 

course of the water, or concentrate[s] it at a particular point, or 

by artificial means [ ] increase[s] its volume, he becomes liable 

for any injury caused thereby.” Id. In other words, it is “only 

where the water is diverted from its natural channel or where it is 

unreasonably or unnecessarily changed in quantity or quality has 

the lower owner received a legal injury.” Lucas v. Ford, 363 Pa. 

153, 69 A.2d 114, 116 (1949).

Youst v. Keck’s Food Service, Inc., 94 A.3d 1057, 1073 (Pa. Super. 2014).

Appellant’s argument does not correspond with her statement of 

questions. See Appellant’ Brief at 5-48. In addition, Appellant essentially 

argues a single issue, i.e., that the trial court abused its discretion and 

committed an error of law by ordering an inequitable remedy. Id.

Appellant acknowledges that some of the water runoff onto the Trust 

property “originates from Upper Dublin Township,” not Kim. Id. at 30. 

However, she contends Kim
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is liable for full and effective permanent relief in favor of Appellant 

because of the work done by [Kim] on his property regardless of 

whether his site work aggravated or diminished the artificial runoff 

caused by the predecessor owners’ site work channeling the Upper 

Dublin Township unnatural surface water through their property 

and onto Appellant’s property.

Id. at 31.

Appellant cites this Court’s decisions in Kowalski 206 A.3d 1148 (Pa. 

Super. 2019), and Morgan v. Millstone Resources Ltd., 267 A.3d 1235 (Pa. 

Super. 2021), to argue:

The fact [Kim] did not build the Upper Dublin Township storm 

water conveyancing system allowing storm water to flow onto his 

property “is of no consequence” because his pre-purchase 

knowledge and property ownership since 2016 renders him liable 

for the flow of excess surface water onto Appellant’s property.

Id. at 30-31.

Appellant’s reliance on Kowalski and Morgan is misplaced. Morgan 

held that a defendant who “artificially alters the natural flow of the surface 

water on his land so as to injur[e] another property” commits trespass and 

“will be enjoined.” Morgan, 268 A.3d at 1249. Kowalski held that a 

successor owner can be held liable for his or her predecessor’s trespass “if the 

actor, having acquired his legal interest in the thing with knowledge of such 

tortious conduct or having thereafter learned of it, fails to remove the thing.” 

Kowalski, 206 A.3d at 1165 (citation omitted). Neither case holds that a 

defendant landowner can be held liable and required to remedy damage 

caused by a third, non-party landowner’s diversion of water onto the parties’ 

properties.
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Instantly, the trial court explained:

In performing the task of fashioning the appropriate 

equitable remedy, the [c]ourt had before it two proposals by the 

parties’ two respective engineers. One proposal, by the Trust’s 

engineer, would have gone well beyond remedying the adverse 

impact on the Trust Parcel caused by the Werthers’ installation of 

the channel and pond, as modified by [Kim]. That installation 

diverted water runoff resulting from the land development 

in Upper Dublin Township onto the Trust Parcel. The Trust 

proposal, however, would not remedy the effect of the 

Werther installation so much as it would capture the Upper 

Dublin water at the point where it entered the Kim Parcel,

before it could run downhill either naturally or as diverted.

As Mr. Newell explained, it would catch the water “right at its 

source.” (Tr. 1/11/22, at 72.) As a result, the Trust proposal 

would not simply remedy the diversion of water caused by the 

Werthers’ (or [Kim’s]) alteration of the land but rather would 

remedy the “upstream” diversion of water by Upper Dublin.

It would “restore” the land not simply to its condition prior to the 

Werthers’ installation but rather to a condition better than when 

the Werthers first commenced their work.

Moreover, the proposal would impose a very significant 

expense on [Kim], to the tune of $583,000 in 2020 dollars. As 

the [c]ourt stated in its [January 2022 m]emorandum, it would 

have ordered [Kim] to incur that expense if it was necessary to 

remedy the continuing harm that he or his predecessors caused 

to the Trust Parcel. But the [c]ourt declined to compel him to 

implement a proposal that would go well beyond the modifications 

needed to address the impact of his or his predecessors’ 

alterations. As the Commonwealth Court has cautioned:

Although a chancellor’s powers are controlled by law 

in this Commonwealth, he still possesses the broad 

and flexible ability to grant remedial relief where 

justice and good conscience so require. This is a 

sacred responsibility which must be exercised with 

both due diligence and the full consideration of the 

rights of all, and with an acute awareness of the harm 

that may result from tire improvident granting of a 

specific requested relief.
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Leonard v. Thornburgh, 463 A.2d 77, 79 (Pa. Cmwlth, 1983) 

(citation omitted). In short, [Kim] can be required to remedy 

what he or the Werthers did to the land, but not what Upper 

Dublin did.

The alternative proposal, by [Kim’s] engineer, would require 

dredging or deepening the existing pond and modifying the outlet 

structures and berm. [Kim’s] engineer credibly testified that this 

proposal would benefit the Trust Parcel by reducing the water flow 

from the Kim Parcel. And even the Trust’s engineer acknowledged 

that dredging the pond would be “advantageous” and “helpful,” 

although falling short of a complete remedy. (Tr. 1/11/22, at 73.) 

The [trial c]ourt found from this evidence that “[t]he trespass and 

private nuisance would be abated, or at least significantly 

mitigated, by the dredging and/or deepening of the existing pond 

and modification of the outlet structures and berm.” 

(Memorandum, 1/24/22, at 4.)

The Trust places much weight on the footnote in the [trial 

c]ourt’s [d]ecision that the [c]ourt intended the term “abatement” 

to have “its usual legal meaning of removal,” rather than mere 

“diminishment” of the nuisance. It is true that the intention of the 

[d]ecision was to remove, not simply diminish, the increase in 

water runoff caused by the Werthers’ and/or [Kim’s] modifications 

to the land. But at the hearing on a remedy to enforce that 

intention, the [c]ourt was given only two alternatives — one that 

the [c]ourt found to be clearly excessive, and the other that would 

result in a substantial benefit, even if not complete removal of the 

problem. [The trial c]ourt has no training or experience in 

engineering that would permit it to devise a middle ground 

between the two proposals. Rather, it was wholly dependent on 

the opinions of the expert engineers who testified at the remedy 

hearing. Faced with two imperfect solutions, and cognizant of the 

burden of proof borne by the Trust, the [c]ourt selected the lessimperfect option. “The broad equitable powers a court may have 

to fashion relief do not extend so far as to allow the issuance of 

alternative injunctive relief where the burden of proof for such 

relief has not been met.” City of Duquesne v. Redevelopment 

Auth., No. 1550 C.D. 2018, 2019 WL 2908876, at *6 (Pa. Cmwlth. 

July 8, 2019) (unreported memorandum opinion).

Trial Court Opinion, 11/15/22, at 19-21 (emphasis added).
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The record supports the trial court’s rationale for declining to find Kim 

liable for Upper Dublin Township’s diversion of water. See Trial Court Opinion, 

11/15/22, at 21 (concluding Kim’s proposal “was more closely tailored to the 

extent of the actionable conduct by Mr. Kim and his predecessors.”). Appellant 

has not shown that the trial court “palpably err[ed], misapplied the law or 

committed a manifest abuse of discretion.” Kinney, 252 A.3d at 647 (citation 

omitted). As there are reasonable grounds for the trial court’s decision, no 

relief is due. Id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2023