J-A19017-20

2020 PA Super 276

ELAINE CARUSO-LONG AND ERIC 

LONG 

Appellants

v.

GEORGE RECCEK, EXECUTOR OF THE 

ESTATE OF: DELORES MCFARLAND, 

DECEASED AND FOXWOOD 

DEVELOPMENT HOMEOWNERS 

ASSOCIATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3458 EDA 2019

Appeal from the Order Entered October 23, 2019

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

No. CV2018-5151

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McLAUGHLIN, J.: Filed: November 25, 2020

Elaine Caruso-Long and Eric Long (“Appellants”) appeal pro se from the 

entry of summary judgment in favor of George Reccek, in his role as executor 

of the estate of Delores McFarland. Reccek is Delores McFarland’s son.

Appellants claim that the court erred in granting Reccek’s motion for summary 

judgment based on the statute of limitations. We reverse and remand for 

further proceedings. 

This case stems from a dispute among neighbors about trees growing 

along a property line. Appellants own a home in a private community known 

as Foxwood in Kresgeville, Pennsylvania. Appellants purchased a home in 

Foxwood in 2003 with a yard abutting a property owned by James and Delores 
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McFarland. The McFarlands have both passed away. On the McFarlands’ side 

of the property is a line of mature trees behind a fence. 

Appellants aver that when they purchased their home in 2003, the trees 

were no more than 8 to 10 feet high and not overgrown. Appellants’ Br. at 19. 

They claim that over time the trees have grown to over 55 feet and drop 

needles and branches on Appellants’ property, causing damage to their 

property, including to a garden and an above ground pool. Id. at 18. 

Appellants also contend that the trees’ roots are approaching the foundation 

of their home and have damaged their property, including a paved patio. Id. 

Appellants admit that in 2009 they noticed that the trees’ branches were 

encroaching on their property. Id. at 19. Appellants also maintain that in 

2016, a tree branch fell on Caruso-Long’s head and caused a significant injury.

Id. at 16. They further assert that in February 2018, a 30-foot limb fell on 

and damaged their fence. Id. at 23. Appellants have provided monetary

estimates in support of their claims. Appellants allege that they repeatedly 

approached both the McFarlands and Reccek about the trees, but other than 

some pruning in 2013, their concerns have not been addressed. Id. at 17-22.

Appellants instituted this suit in July 2018. They asserted claims of 

trespass, nuisance, and negligence against Reccek, and breach of contract 

against Foxwood’s homeowners’ association. The parties filed motions for 

judgment on the pleadings, and the trial court dismissed the negligence claim 

against Reccek and the breach of contract claim against the homeowners’ 

association.
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Reccek filed the instant motion for summary judgment in August 2019,

asserting that Appellants’ remaining nuisance and trespass claims were barred 

by the statute of limitations. Reccek also claimed that because Appellants had 

allegedly failed to respond to Reccek’s request for admissions in a timely 

manner, they could not establish damages. In an opinion and order dated 

October 23, 2019, the trial court granted Reccek’s summary judgment motion 

based on the statute of limitations alone. It did not rule on the damages issue.

Appellants timely appealed and raise the following issues:

1. Did the court err in its October 23, 2019 ruling, by 

inappropriately applying a Statute of Limitations to an 

Ongoing Trespass, thereby depriving [Appellants] of their 

right to trial?

2. Did the court err in its October 23, 2019 ruling, by failing 

to consider [Appellants’] multiple submission(s) of dated 

Photographic chronological proof and multiple expert 

reports attesting to Ongoing Trespass, thereby depriving 

[Appellants] of their equitable relief?

3. Did the court err in granting summary judgment and 

dismissing [Appellants’] case thereby precluding them 

from even filing for injunctive relief to an ongoing 

Trespass?

Appellants’ Br. at 12-13.

Appellants present a single argument section in their brief addressing

all three of their issues. Their failure to divide their argument “into as many 

parts as there are questions to be argued” violates the Rules of Appellate 

Procedure. See Pa.R.A.P. 2119(a). We will nonetheless address their issues 

on the merits because the violation does not fatally impede our review. See

Lemenestrel v. Warden, 964 A.2d 902, 910 n. 5 (Pa.Super. 2008).
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The essence of their argument is that the trees at issue constitute a 

continuing rather than permanent trespass and nuisance. Appellants contend

that the trial court failed to consider that the trees have caused, and will 

continue to cause, “multiple separate, recurrent, and unpredictable incidents” 

of damage to their property. Appellants’ Br. at 51. In support, Appellants cite 

Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1163 (Pa.Super. 2019). There, 

this Court concluded that water flowing from a condominium development 

onto the plaintiff’s property constituted a continuous trespass such that the 

statute of limitations did not begin to run upon the condominium’s initial 

construction. Appellants maintain that because their case involves a 

continuing trespass and nuisance, the trial court erred by dismissing their 

case.

Conversely, Reccek contends that the trial court properly applied the 

statute of limitations to Appellants’ nuisance and trespass claims. He argues 

that the statute of limitations started running in 2009, when Appellants 

concede they first noticed that the trees were encroaching their property and 

causing damage. Reccek likens this case to Cassel-Hess v. Hoffer, 44 A.3d 

80 (Pa.Super. 2012). There, this Court concluded that the construction on a 

neighboring property of an allegedly mosquito-infested lake abutting and 

slightly flowing into plaintiff’s property constituted a permanent nuisance and 

triggered the statute of limitations to begin running at the inception of the 

problem. Id. at 87-88. Reccek emphasizes that our Court in Cassel-Hess

reasoned that the lake was a permanent feature of the neighbor’s land, the 
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consequences of which had been unremitting, and damages stemming from it 

could be predictably ascertained. Id. 

Reccek thus argues that the trees at issue here, like the mosquitoinfested lake in Cassel-Hess, constitutes a permanent fixture on the land, 

with damages that are reasonably ascertainable. Reccek’s Br. at 34-35. 

Hence, Reccek argues that the trees constitute a permanent condition 

triggering the statute of limitations in 2009, when Appellants have admitted 

that they had reason to notice the alleged trespass and nuisance. 

Whether there is a genuine issue of material fact is a question of law, 

and our standard of review is de novo and our scope of review is plenary. 

Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018) (citing Pa.R.C.P. 

1035.2(1)). [S]ummary judgment is only appropriate in cases where there 

are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.” Id. “When considering a motion for summary 

judgment, the trial court must take all facts of record and reasonable 

inferences therefrom in a light most favorable to the non-moving party and 

must resolve all doubts as to the existence of a genuine issue of material fact 

against the moving party.” Id. We reverse a grant of summary judgment if 

there has been an error of law or an abuse of discretion. Id. at 892. 

The tort of trespass is “[a]ny physical entry upon the surface of the 

land,” and may occur by any number of means, such as walking on, flooding, 

or throwing objects on land. Jones v. Wagner, 624 A.2d 166, 169 (Pa.Super. 

1993) (citation omitted). A nuisance is “the unreasonable, unwarrantable, or 
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unlawful use by a person of his own property . . . producing such material 

annoyance, inconvenience, discomfort or hurt that the law will presume a 

consequent damage.” Cassel-Hess, 44 A.3d at 85-86 (quoting Kramer v. 

Pittsburgh Coal Co., 19 A.2d 362, 363 (Pa.1941)).. 

Actions for trespass and actions for nuisance are both subject to a twoyear statute of limitations. See Cassel-Hess, 44 A.3d at 88-89.1 However, 

when the statute of limitations begins to run for causes of action for trespass 

and nuisance depends on whether the wrong is permanent or continuing. A 

permanent trespass or nuisance, as the name suggests, is one “that effects a 

permanent change in the condition of the land,” and in such a case, “the 

statute of limitations begins to run at the time of the original trespass.” Id. at 

86. A permanent trespass or nuisance entitles the possessor of the land to 

institute a single action for all past and future damages. Id.

Conversely, in the case of a continuing trespass or nuisance “it is 

impossible to know exactly how many incidents of trespass will occur in the 

future, or the severity of the damage that may be caused, such that the full 

amount of damages cannot be calculated in a single action.” Kowalski, 206 

A.3d at 1161. For that reason, a party aggrieved by a continuing trespass or 

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1 See also 42 Pa.C.S.A. § 5524(4) (“The following actions and proceedings 

must be commenced within two years . . . An action for waste or trespass of 

real property”); 42 Pa.C.S.A. § 5524(7) (“The following actions and 

proceedings must be commenced within two years . . . . Any other action or 

proceeding to recover damages for injury to person or property which is 

founded on negligent, intentional or otherwise tortious conduct”)
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nuisance can maintain a succession of actions based on continuing infractions 

or the aggravation of the original offense. Id. 

To determine whether a trespass or nuisance constitutes a permanent 

or continuing cause of action, courts must consider a variety of factors, 

including: 1) “the character of the structure or thing which produces injury”; 

2) whether “‘the consequences of the [trespass/nuisance] will continue 

indefinitely’”; and, 3) whether the “‘past and future damages’ may be 

predictably ascertained.” Cassel-Hess, 44 A.3d at 87 (quoting Sustrik v. 

Jones & Laughlin Steel Corp., 197 A.2d 44, 46-47 (Pa. 1964)).

In the case sub judice, we must consider if the alleged trespass and 

nuisance were permanent or continuing in order to determine if the trial court 

properly applied the statute of limitations. In Jones, this Court considered 

whether a homeowner could resort to self-help when contending with a 

neighbor’s overgrown trees. In the context of that discussion, we noted the 

“continuing” nature of the trespass that encroaching trees present:

The continuing presence of the branches and trees overhanging 

property lines indicates that the nature of the relief afforded to 

the aggrieved landowner is not limited to monetary relief. The 

Restatement notes that a continuing trespass is committed by the 

“continued presence of a structure, chattel, or other thing which 

the actor has tortiously placed there, whether or not the actor has 

the ability to remove it.” Restatement (Second) of Torts § 161(a). 

An actor places branches “tortiously” on another’s property when 

he is subject to liability in tort, that is, when he is trespassing onto 

another’s property. Id., comment a. As we have noted, a trespass 

occurs by a mere overhang. Furthermore, given the rather 

unremarkable observation that trees will tend to grow, the 

trespass, even if remedied once, is bound to recur just as soon as 

the trees or shrubbery regenerate. See, Graybill v. Providence 
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Twp., [593 A.2d 1314 (Pa.Commw.Ct, 1991)] (recurring flooding 

on plaintiff’s land caused by defendant's conduct is a continuing 

trespass). Thus, the trespass is “continuing” and the possessor of 

land is entitled to pursue a proper remedy.

Jones, 624 A.2d at 170. 

We concur with the Jones court’s characterization of the trespassing 

trees as presenting a “continuing” cause of action. Reccek brings Jones to 

this Court’s attention but argues that the above passage was mere dicta and 

that the Jones court failed to consider the requisite factors. Even if it is dicta, 

we find the Jones Court’s discussion persuasive. Although not explicit, the 

Jones court engaged in the analysis the factors require, and that same 

analysis applies with full force here. As this Court explained in Jones, unless 

the trees are removed, the branches and roots will continue to grow and are 

likely to cause repeated damage to Appellants’ property or to Appellants 

themselves, rendering the calculation of future damages speculative at best. 

Appellants’ causes of action for trespass and nuisance are continuing in 

nature. See Kowalski, 206 A.3d at 1161.

Reccek cites the Tennessee case, Lane v. W.J. Curry & Sons, 92 

S.W.3d 355 (Tenn. 2002), to urge this Court to turn away from the analysis 

set forth in Jones, and not afford a cause of action every time a “tree or plant 

so much as drops a leaf or casts shade upon another’s land.” Reccek’s Br. at 

37 (quoting Lane, 92 S.W.3d at 363). This argument misses the mark. The 

analysis set forth Cassel-Hess and related cases binds us, and, as a threejudge panel, we cannot ignore or overrule those cases. 
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Moreover, we do not have before us a facial challenge to causes of action 

for trespass and nuisance for encroaching trees and plants. Lane was not a 

statute of limitations case, but rather was about the circumstances in which 

encroaching trees and plants constitute a cause of action for nuisance. Id. at 

359 n.2. In contrast, Appellants’ issues go to when the statute of limitations 

began to run. Indeed, to the extent Lane contains any discussion about the 

issue we address, it supports our decision here. The court there, in turning 

aside a laches argument, quoted our observation in Jones that “trees tend to 

grow” and “the trespass is bound to recur,” and said, “[B]ranches and roots 

can constitute a continuing nuisance which can recur no matter what the 

injured party does by way of self-help, absent the removal or destruction of 

the tree.” Id. (quoting Jones, 624 A.2d at 170). Although not the holding of 

Lane, that statement reinforces our conclusion here. 

Accordingly, we conclude that the trial court erred by dismissing on 

statute of limitations grounds Appellants’ causes of action for trespass and 

nuisance against Reccek. We do not address Reccek’s request that we affirm 

in part on the alternative basis that Appellants cannot establish certain 

damages, without prejudice to Reccek’s ability to seek such a ruling from the 

trial court in the first instance. 

Order reversed. Case remanded for proceedings consistent with this

Opinion. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/20