IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith A. Howarth, :

Appellant :

:

v. : No. 447 C.D. 2021

: Argued: December 4, 2023

Falls Township :

BEFORE: HONORABLE ANNE E. COVEY, Judge 

HONORABLE STACY WALLACE, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: February 14, 2024

Keith A. Howarth (Howarth) appeals the March 26, 2021, order of the 

Court of Common Pleas of the Forty-Fourth Judicial District, Wyoming County 

Branch (trial court), that granted summary judgment to Falls Township (Township), 

defendant in Howarth’s civil action for damages to his property caused by the 

Township. Howarth contends that the trial court erred because the evidence 

established that the Township’s installation of a culvert under a road adjacent to his 

property constituted an alteration of land that triggered the requirements of the Storm 

Water Management Act.1 Howarth also contends that the trial court erred in holding 

that the Township’s creation of an artificial channel to discharge water onto his 

property did not state a common law negligence claim, the first step in any claim 

brought under what is known as the Political Subdivision Tort Claims Act.2 We 

reverse the trial court’s order.

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

2

42 Pa. C.S. §§8541-8542.
2

Howarth owns and resides at property located at 17300 Creek Hollow 

Drive, Falls Township in Wyoming County, Pennsylvania (Property). In his brief, 

Howarth offers the following description of the Property, the surrounding landscape, 

and the flow of storm water around and onto the Property.

The Property is located in the bed of a valley near a shallow 

creek. Creek Hollow Drive, a public highway that [the 

Township] owns and maintains, runs adjacent to the Property 

from the peak of one hillside downward towards the valley bed, 

and then over the creek into the next hillside. Presently, storm 

water that runs along the east of Creek Hollow Drive is captured 

and artificially directed through an 18-inch diameter pipe that 

runs under Creek Hollow Drive . . . , ultimately causing the storm 

water to discharge onto [Howarth’s] property[.] 

Howarth Brief at 11 (emphasis added). Howarth contends that the storm water

discharged from the Township’s 18-inch-wide pipe onto his Property has caused 

damage, such as erosion in the form of a 14-inch-deep ditch that he must continually 

fill. The Township’s culvert also washes debris, such as garbage and silt, into his 

yard. 

On June 12, 2017, Howarth filed a civil complaint against the 

Township, seeking damages. The complaint alleged that the Township’s “storm 

water drainage system” has channeled storm water “in an excessive and concentrated 

fashion onto [Howarth’s] properties.” Complaint, ¶¶6-7. Howarth’s complaint

raised four counts: Count I asserted continuing trespass; Count II asserted 

continuing private nuisance; Count III asserted negligence; and Count IV asserted

violations of the Storm Water Management Act. The Township filed an answer 

denying the allegations on the basis of insufficient knowledge or that they stated 

conclusions of law that did not require a response. In new matter, the Township 
3

raised several defenses including, inter alia, governmental immunity, assumption of 

risk, estoppel, and comparative negligence.

At his deposition, Howarth testified that when he purchased the 11.77-

acre Property in 2000, it was vacant. Previously, it had been used to raise livestock. 

Howarth put a mobile home on the Property and lived there during the construction 

of his house, which was completed in 2005. 

Howarth testified about his conversations with Robert Kenia (Kenia), a 

former Township supervisor and road crew foreman for the Township. Howarth met 

Kenia when he sought a permit for his driveway.

3

 At that time, Kenia stated that 

water collects in the lower level of the Property. Howarth believed, nevertheless,

that his plan to install a pipe from that part of his Property to the nearby creek would 

address the problem.

Howarth testified that the Township’s current 18-inch pipe under Creek 

Hollow Drive was not in place when he purchased the Property and that it was 

installed in 2008 or 2009. When shown a subdivision map from 2000, Howarth 

acknowledged the presence of a pipe on the map but stated that the outlet was 

covered by vegetation and could not be seen. Howarth testified that he requested

the Township remove the pipe because it was diverting water to his septic mound 

tank. His request was denied, but the Township re-graded the Property to protect 

the septic system. Howarth testified that although he installed the septic system in 

2000 or 2001, he did not experience trouble until 2008 or 2009. 

Howarth testified that at a 2017 meeting of the Township supervisors, 

he “[t]old them there was a problem[,] and it needed to be solved.” Howarth Dep. 

3

In his deposition, Howarth testified that he had been in a motor vehicle accident in 2010, 

sustained “severe head trauma[,]” and “[m]emory loss [was] one of [his] problems.” Howarth 

Dep. at 36; Reproduced Record at 154a (R.R. __).
4

at 104; R.R. 222a. Howarth wanted the pipe removed because it was causing erosion 

and damage to the Property. The supervisors responded that they would not remove 

the pipe. 

Howarth identified gun shells, 32-ounce bags of garbage, rocks, bottles, 

and waste from McDonald’s in photographs of his Property that had been taken prior 

to the 2017 meeting with the Township supervisors. Howarth testified that this

debris is carried from the pipe under Creek Hollow Drive onto his Property;

accumulates in various amounts at various times; and requires an annual cleanup. 

He noted that garbage appeared on the Property again in 2018, after the season’s 

snow had melted. Howarth testified that the water runoff and the garbage that 

collects prevents him from mowing the affected area of his Property and restricts

where his grandchildren are allowed to play. 

Kenia was also deposed. He explained that he began employment with

the Township in 1970 and retired in December 2018. He testified that he informed 

Howarth about water pooling on the Property prior to Howarth’s purchase. Kenia

testified that when Howarth asked the Township to remove the pipe, he explained

that it could not be done without exponentially increasing storm water runoff onto a 

neighboring property. Kenia testified that an 18-inch galvanized pipe under Creek 

Hollow Drive had been installed before he began his career with the Township and 

that the Township received no complaints about the pipe from the Property’s prior 

owners. 

Kenia explained that the Township constructed a swale on the Property

to protect Howarth’s sand mound and septic tank from discharge from the pipe. The 

Township also built a catch basin to collect debris at the pipe outlet before it reached
5

the swale. He stated that the Township periodically cleans the catch basin when it 

fills up with sediment, stones, and other debris.

Kenia testified that in 2004 the galvanized pipe was replaced with a 

smooth-bored plastic pipe of the same dimension because the galvanized pipe had 

rusted and become clogged. He acknowledged the galvanized pipe ceased to 

function approximately two to three years before its replacement and that the pipe 

was clogged when Howarth purchased the Property. The Township “just kept 

cleaning it out a little bit, but then it got to a point where [it] couldn’t clean it out 

[any] more.” Kenia Dep. at 82; R.R. 69a. 

Kenia testified that after installation of the swale and catch basin, 

Howarth did not complain to the Township about storm water discharge from the 

pipe. However, after a March 2017 snowstorm dropped 32 inches of snow, Howarth 

appeared at a Township meeting and complained about sediment and debris 

collecting on his Property. One of the Township supervisors agreed to visit the

Property to view the damage alleged by Howarth but reported that he “didn’t see 

much.” Kenia Dep. at 41; R.R. 58a. Kenia stated that he also drove by the Property 

a few days later and, likewise, did not see anything. 

The Township presented an expert report from Val F. Britton (Britton), 

a professional geologist, with V.F. Britton Group, LLC, an environmental and 

hydrogeological consulting firm. Britton conducted a reconnaissance of the 

Property, reviewed Howarth’s complaint, transcripts of testimony in the case, and

weather and other records, maps, and aerial photographs of the Property and 

surrounding area, taken at various points in time since 1981. Expert Report, 

10/14/2020, at 1-20; R.R. 99a-118a. 
6

Britton’s report reached several conclusions: (1) soils in the area have 

poor permeability; (2) significant discharge from the pipe onto the Property occurs

during storms; (3) the majority (78%) of the flooding on the Property results from

overland flow of water; (4) approximately 22% of the flooding on the Property

results from the pipe; (5) were the pipe to be removed, storm water would damage 

Creek Hollow Drive and a neighboring property; and (6) the original swale on the 

Property was changed between 1995 and 2004,4 but the pipe under the road has been 

there from at least 1981. Expert Report, 10/14/2020, at 6; R.R. 104a. In sum, when 

a significant storm produces a pooling of water on the Property, 78% is derived from 

the overland movement of water, and 22% is derived from discharge from the pipe.

Upon conclusion of discovery, the Township filed a motion for 

summary judgment in its favor. Therein, it asserted that (1) Howarth had failed to 

produce evidence to support his claims; (2) the claims for trespass and nuisance were 

barred by governmental immunity; (3) the Township’s actions were reasonable and 

did not alter the quantity, quality, or flow of water discharged onto the Property; (4) 

Howarth was aware of water runoff issues prior to purchasing the Property; and (5)

Howarth’s claims were barred under the assumption of risk doctrine and by the 

statute of limitations. Howarth answered the motion but did not file his own 

summary judgment motion.

The parties requested that the trial court decide the summary judgment 

motion on the briefs. Prior thereto, Howarth withdrew Counts I and II (continuing 

4 Britton noted that “[n]o apparent drainage swale is evident on the 2004 aerial photograph; 

however, disturbance in the area of the drainage swale observed during the September 23, 2020[,]

site reconnaissance was observed on this photograph suggesting possible construction at this time.” 

Expert Report, 10/14/2020, at 4; R.R. 102a.
7

trespass and private nuisance). The trial court granted the Township’s motion for 

summary judgment. 

Beginning with governmental immunity, the trial court explained that 

damage actions can be brought against municipalities in certain excepted cases, such 

as those involving a dangerous condition of a utility service owned by a local 

agency,

5 but concluded that the Township could not be held liable to Howarth for an 

inadequate storm water system because it is under no duty to build such a system in 

the first place. Citing McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 

2008), the trial court explained that the Township could be held liable for negligent 

construction of a water collection system, but Howarth had not provided evidence 

of negligent construction or maintenance of the pipe. In short, Howarth’s evidence 

did not show a claim for negligence under the common law.

The trial court next addressed Howarth’s contention that the Township 

violated the Storm Water Management Act by failing to manage storm water runoff. 

The trial court found that there was no evidence, “such as an expert report or the 

like,” to support Howarth’s claim that the Township had altered or developed the 

land in a way that could increase storm water runoff to the Property. Trial Court 

Op., 3/26/2021, at 9; R.R. 349a. 

Based on these conclusions, the trial court granted judgment to the 

Township on Counts III and IV.

6

 Howarth appealed to this Court.7

On appeal, Howarth raises two issues. 

5

See 42 Pa. C.S. §8542(b)(5).

6 The trial court also dismissed Counts I and II, which had been withdrawn by Howarth.

7 Our standard of review of an appeal from a trial court’s entry of summary judgment is de novo

and our scope of review is plenary. City of Philadelphia v. Cumberland County Board of 

Assessment Appeals, 81 A.3d 24, 44 (Pa. 2013).
8

First, Howarth contends that when the record evidence is viewed in the 

light most favorable to him as the non-moving party, there is a material factual 

question of whether the Township engaged in an alteration or development of land 

that had the potential to affect storm water runoff, thereby triggering the 

requirements set forth in the Storm Water Management Act. 

Second, Howarth asserts that when the record evidence is viewed in the 

light most favorable to him as the non-moving party, there is a material factual 

question as to whether the Township’s installation of the new pipe constituted new 

construction, not a repair, for which it was foreseeable that the new pipe could cause 

damage to the Property, thereby subjecting the Township to liability under the 

common law.

We begin our analysis with a review of the applicable law. 

The Storm Water Management Act creates a remedy for damages 

where a person’s conduct violates its provisions. It states, in relevant part, as 

follows:

(c) Any person injured by conduct which violates the provisions 

of section 13 may, in addition to any other remedy provided 

under this act, recover damages caused by such violation from 

the landowner or other responsible person.

Section 15(c) of the Storm Water Management Act, 32 P.S. §680.15(c). In turn, 

Section 13 states as follows:

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 prevent injury to health, safety or

other property. Such measures shall include such actions as are

required:
9

(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 (emphasis added).

The provisions of the Political Subdivision Tort Claims Act relevant to 

this appeal follow:

§8541. Governmental immunity generally.

Except as otherwise provided in this subchapter, no local 

agency[8]shall be liable for any damages on account of any injury 

to a person or property caused by any act of the local agency or 

an employee thereof or any other person.

42 Pa. C.S. §8541.

§8542. Exceptions to governmental immunity.

(a) Liability imposed.--A local agency shall be liable for 

damages on account of an injury to a person or property within 

the limits set forth in this subchapter if both of the following 

conditions are satisfied and the injury occurs as a result of one 

of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law

or a statute creating a cause of action if the injury were 

caused by a person not having available a defense under 

section 8541 (relating to governmental immunity 

generally) or section 8546 (relating to defense of official 

immunity); and

(2) The injury was caused by the negligent acts of the local 

agency or an employee thereof acting within the scope of 

his office or duties with respect to one of the categories 

8 Townships are a “local agency” for purposes of the Political Subdivision Tort Claims Act. See

42 Pa. C.S. §8501 (relating to matters affecting government units, definitions).
10

listed in subsection (b). As used in this paragraph, 

“negligent acts” shall not include acts or conduct which 

constitutes a crime, actual fraud, actual malice or willful 

misconduct.

(b) Acts which may impose liability.--The following acts by a 

local agency or any of its employees may result in the imposition 

of liability on a local agency:

. . . . 

(3) Real property.--The care, custody or control of real 

property in the possession of the local agency, except that 

the local agency shall not be liable for damages on account

of any injury sustained by a person intentionally 

trespassing on real property in the possession of the local 

agency. As used in this paragraph, “real property” shall 

not include:

(i) trees, traffic signs, lights and other traffic 

controls, street lights and street lighting systems;

(ii) facilities of steam, sewer, gas and electric 

systems owned by the local agency and located 

within rights-of-way;

(iii) streets; or

(iv) sidewalks.

. . . . 

(5) Utility service facilities.--A dangerous condition of 

the facilities of steam, sewer, water, gas or electric systems 

owned by the local agency and located within rights-ofway, except that the claimant to recover must establish that 

the dangerous condition created a reasonably foreseeable 

risk of the kind of injury which was incurred and that the 

local agency had actual notice or could reasonably be 

charged with notice under the circumstances of the 

dangerous condition at a sufficient time prior to the event 

to have taken measures to protect against the dangerous 

condition.
11

42 Pa. C.S. §8542(a)-(b)(3), (5) (emphasis added). To hold a political subdivision 

liable for damages, a plaintiff must first demonstrate a claim under the common law 

and, next, an exception to immunity.

The Pennsylvania Rules of Civil Procedure authorize either party to 

seek judgment in advance of trial. PA.R.CIV.P. 1035.2.

9

 Rule 1035.2 has been 

construed as follows:

[W]e will review the record in the light most favorable to the 

nonmoving party, and all doubts as to the existence of a genuine 

issue of material fact must be resolved against the moving party.

E.R. Linde Construction Corporation v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 

2013). Our Supreme Court has explained that the purpose of summary judgment is 

“‘to pierce the pleadings and to assess the proof in order to see whether there is a 

genuine need for trial.’” Curran v. Philadelphia Newspapers, Inc., 439 A.2d 652, 

658 (Pa. 1981) (quoting Phaff v. Gerner, 303 A.2d 826, 829 (Pa. 1973)). 

Specifically,

[i]n considering the merits of a motion for summary judgment, a 

court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine 

issue of material fact must be resolved against the moving party. 

9

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, 

any party may move for summary judgment in whole or in part as a matter of law[.]” PA.R.CIV.P.

1035.2. It states:

(1) whenever there is no genuine issue of any material fact as to a necessary 

element of the cause of action or defense which could be established by additional 

discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the 

production of expert reports, an adverse party who will bear the burden of proof at 

trial has failed to produce evidence of facts essential to the cause of action or 

defense which in a jury trial would require the issues to be submitted to a jury.

Id. 
12

Finally, the court may grant summary judgment only where the 

right to such a judgment is clear and free from doubt . . . . 

Toy v. Metropolitan Life Insurance Company, 928 A.2d 186, 195 (Pa. 2007)

(citations omitted).

With these precepts in mind, we review the issues raised by Howarth.

In his first issue, Howarth contends that the trial court erred in entering 

summary judgment in favor of the Township on his claim under the Storm Water 

Management Act. The trial court did so for the stated reason that Howarth did not 

present expert evidence to show that the Township’s pipe effected an “alteration or 

development of land,” which is the threshold to a claim under the Storm Water 

Management Act. Section 13 of the Storm Water Management Act, 32 P.S. §680.13.

Howarth argues that expert testimony was not necessary to make this threshold 

demonstration.

In support, Howarth directs the Court to Cogan House Township v. 

Lenhart, 197 A.3d 1264 (Pa. Cmwlth. 2018), which established the principle that a 

substantial, human-created change to land constitutes a land alteration or 

development for purposes of the Storm Water Management Act. Howarth argues 

that the pipe in question was clogged and not functioning when he purchased the 

Property and for years afterward. The Township’s failure to maintain the pipe 

constituted human-related conduct that changed the characteristics of the land. A

fortiori, the Township’s installation of a new pipe, which increased the flow of storm 

water onto the Property, constituted an alteration to the land.

In Cogan House Township, the township approved the request of two 

gas companies to undertake road improvements in anticipation of gas drilling 

activities in the area. Prior to the improvement, the road was gravel-covered and 12 

to 16 feet wide, with 2-foot stone shoulders. The improvement produced a 1-mile 
13

long paved 16-foot cartway with a 4-foot stone shoulder on both sides. Pipes under 

the road were replaced with similar-sized pipes, and a completely clogged and buried 

6-inch diameter pipe was replaced with a 24-inch pipe. The township’s civil 

engineer admitted that the installation of the new pipes increased the flow of water, 

but this would not have been the case had the previous piping been “properly 

maintained and cleaned out on a periodic basis.” Cogan House Township, 197 A.3d 

at 1271 (quotation omitted).

In Cogan House Township, the trial court reasoned that the installation 

of the new pipe did not constitute an alteration or development of the land within the 

meaning of the Storm Water Management Act because the new pipes were installed 

in their original locations. This Court reversed. Noting that the Storm Water 

Management Act provides no definition of “alteration or development of land,” 

Cogan House Township, 197 A.3d at 1268, we concluded that the phrase meant a 

“‘substantial, human-created change to land.’” Id. (quoting Black’s Law Dictionary 

516 (9th ed. 2009)). We further explained that the key question is whether the 

substantial change to the land is one that could have had an effect on drainage runoff 

characteristics. Cogan House Township, 197 A.3d at 1270-71. 

In the present matter, Howarth argues that the trial court erred in 

holding that an expert report was needed to establish a “substantial, human-created 

change to land.” The Township’s own witness, Kenia, established that the pipe was 

not functioning when Howarth purchased the Property; the Township had not 

replaced or cleaned out the clogged pipe for years; and the Township installed a new 

pipe after Howarth had purchased the Property. Howarth argues that regardless of 

whether the pipe was replaced in 2004 or 2008, the Township’s expert report 

confirmed that the original pipe had not properly functioned for years and that the 
14

Township’s new pipe increased the flow of storm water onto the Property.

10

 These 

uncontested facts establish a human-created substantial change to land, as was the 

case in Cogan House Township, 197 A.3d at 1270-71.

In holding that Howarth was required to offer expert testimony to 

establish that the Township’s installation of the new pipe constituted an alteration of 

land, the trial court erred. No such requirement is stated in the Storm Water 

Management Act or suggested in Cogan House Township.

Both Kenia’s testimony and the Township’s expert report established 

that the pipe had not been functional for years before its replacement. Now, it 

channels water onto the Property and does so effectively. Howarth notes that, as in 

Cogan House Township, 197 A.3d at 1270, “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.” Likewise, here, the Township did not refute Howarth’s 

evidence that the new pipe has increased the volume of water flowing onto the 

Property.

Kenia stated that the length, diameter, location, function, and capacity 

of the new pipe were the same as the previous one. Kenia Dep. at 24-25; R.R. 54a. 

The Township believes that given this fact, the replacement of a decades-old, metal 

pipe with a plastic pipe in the exact same location did not constitute an alteration of 

land. This argument was rejected in Cogan House Township.

Unlike its predecessor, the new pipe effectively channels storm water 

onto the Property. The Township’s expert, Kenia, and Howarth testified about the 

increased flow of water effected by the installation of the new pipe. Instead of 

10 In his brief, Howarth argues that the Township’s replacement of the pipe caused a “22% increase 

in damage to [his] [P]roperty.” Howarth Brief at 24-25. The Township argues that this 

mischaracterizes the expert report. Howarth argues it is a reasonable inference from that report.
15

considering this evidence, the trial court held, in error, that an expert report was 

needed to prove an alteration or development of land. 

Alternatively, the Township argues that the trial court properly 

dismissed Howarth’s Storm Water Management Act claim because the Township is 

immune from such claims under the Political Subdivision Tort Claims Act.11 The 

Township believes that the trial court “rightly recognized” that because this statutory 

claim is not listed as one of the exceptions to governmental immunity set forth in 

“Section 8542(b), it could not pierce the cloak of governmental immunity[.]” 

Township Brief at 40. Stated otherwise, the Township argues that the trial court 

apparently believed that the Political Subdivision Tort Claims Act has implicitly 

repealed the Storm Water Management Act, at least with respect to political 

subdivisions such as the Township. 

Prior to the abrogation of sovereign immunity, the legislature enacted 

numerous statutes that subjected both state and local agencies to liability to third 

parties. They include, for example, The Clean Streams Law12 and the Pennsylvania 

Human Relations Act.13 An implicit repeal of any statute is exceedingly rare, and it 

did not happen here. See generally Maine Community Health Options v. United 

States, 590 U.S. __, 140 S. Ct. 1308, 1323 (2020) (“[R]epeals by implication are not 

favored,” Morton v. Mancari, 417 U.S. 535, 549 (1974) (internal quotation marks 

omitted), and are a “rarity,” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International,

Inc., 534 U.S. 124, 142 (2001) (internal quotation marks omitted)). The Political 

11 In its brief, the Township argues that Howarth did not prove an “applicable watershed storm 

water plan.” Section 13 of the Storm Water Management Act, 32 P.S. §680.13. It did not raise 

the issue in its motion, and it was not addressed by the trial court. It is waived.

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

13 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
16

Subdivision Tort Claims Act relates to common law claims, and it does not 

immunize the Township against claims brought under the Storm Water Management 

Act.

In his second issue, Howarth argues that viewing the record evidence 

in the light most favorable to him, there is a genuine issue of material fact as to 

whether the Township’s installation of the new pipe to divert storm water from its 

natural channel onto his Property unreasonably increased the quantity of water being 

discharged onto the Property. Further, there is no question that the Township knew 

that the new pipe affected the flow of water onto the Property.

The elements of a negligence claim are as follows: (1) a duty of the 

defendant to conform to a certain standard of conduct for the protection of others

against unreasonable risks, (2) failure by the defendant to conform to said standard, 

(3) a causal connection between the defendant’s conduct and the resulting injury, 

and (4) actual loss or damage resulting to the plaintiff. Trial Court Op. at 6 (citing 

R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005)); R.R. 346a. 

This Court has held that a political subdivision cannot be held liable for 

insufficient or inadequate capacity of storm water facilities because it is under no 

duty to erect storm water facilities. City of Washington v. Johns, 474 A.2d 1199, 

1201-02 (Pa. Cmwlth. 1994). Relying on City of Washington, the trial court held 

that under the common law, the Township can be held liable only for the negligent 

construction of the storm water system, not for its inadequacy. The trial court held 

that the evidence did not support Howarth’s claim that the Township’s negligence 

was the proximate cause of the damage to his Property.

Viewing the record in the light most favorable to the non-moving party, 

Howarth contends that the record evidence is sufficient to make a negligence claim.
17

In support, he directs the Court to Staffaroni v. City of Scranton, 620 A.2d 676 (Pa. 

Cmwlth. 1993). There, the city placed a 15-inch diameter pipe under a road to 

collect runoff water and deposit it onto the property adjacent to the road. The 

property owners asked the city to remove the pipe, but it refused. The property 

owners filed a complaint against the city, in equity and in tort, for damage caused to 

their property by water from the pipe. The trial court ordered the city to block the 

pipe and compensate the landowners for the damage done to their property. 

On appeal, this Court affirmed, holding that landowners’ claim fell 

within the real estate exception to the Political Subdivision Tort Claims Act, 42 Pa. 

C.S. §8542(b)(3). Because the pipe was intended to relieve a recurring problem with 

the road, the damage to the landowners’ property was foreseeable. Further, “‘a 

landowner may not alter the natural flow of surface water [] by concentrating it in 

an artificial channel and discharging it upon the lower land of his neighbor, even 

though no more water is thereby collected than would naturally have flowed upon 

the neighbor’s land in a diffused condition.’” Staffaroni, 620 A.2d at 193 (citing

Leiper v. Heywood-Hall Construction Company, 113 A.2d 148, 150 (Pa. 1955)). 

Leiper concerned a suit in equity filed against a developer who built a 

residential development of 149 dwellings on 56 acres of former farmland and did so 

without installing gutters, sewers, reservoirs, or drains to carry off surface water.

The landowners contended that the developer’s regrading of lots on the property 

increased the surface water runoff onto their property. The Leiper Court 

summarized the prevailing law as follows:

“The owner of upper land has the right to have surface waters

flowing on or over his land discharged through a natural water

course onto the land of another [. . .] . He may make proper and 

profitable use of his land even though such use may result in 

some change in quality or quantity of the water flowing to the 
18

lower land. [. . .] From those rules it is clear that 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 . . . .”

“It is only where the owner of the higher land is guilty of

negligence which causes unnecessary damage to the servient

owner, or where, by an artificial channel, he collects and 

discharges surface waters in a body or precipitates them in 

greatly increased quantities upon his neighbor, that the latter may 

recover for any damage thereby inflicted[.]”

Leiper, 113 A.2d at 149 (quoting Chamberlin v. Ciaffoni, 96 A.2d 140, 142-43 (Pa. 

1953)) (emphasis added). In short, the owner of land is liable to his neighbor when

“by an artificial channel, he collects and discharges surface waters” upon his 

neighbor. Leiper, 113 A.2d at 149

In Leiper, the Supreme Court concluded that the landowners’ damage

from “the increased volume of surface water was a damnum absque injuria” because

there was no artificial channel. Leiper, 113 A.2d at 149. The developer was 

permitted to improve his own land so long as he did “not alter the natural flow of 

surface water on his property by concentrating it in an artificial channel[.]” Id. at 

150. Absent the creation of an artificial channel, the landowners did not state a 

negligence claim.

Here, Howarth argues that the record shows that as in Staffaroni, the 

Township created an artificial channel of water at a time when the Township was on 

notice that he resided on his Property. As in Staffaroni, Howarth contends that the 

damage to his Property was the foreseeable consequence of its installation of a new 

pipe under Creek Hollow Drive. Accordingly, this evidence states the essence of a 

negligence claim under the common law. See R.W., 888 A.2d at 746.

The Township responds that Howarth did not produce evidence that the 

pipe was in a “particularly dangerous condition.” Trial Court Op. at 7; R.R. 347a. 
19

A “dangerous condition” is simply a “defective or dangerous” condition, and the 

owner of the property has the duty to maintain the property to “minimize and reduce 

risk” of injury. Essington v. Monroe County Transit Authority, 302 A.3d 219, 236 

(Pa. Cmwlth. 2023) (citing Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 

2018)). A dangerous or defective condition is one that creates a risk of injury, either 

injury to body or injury to property. Essington, 302 A.3d at 236.

The trial court’s conclusory statement that the pipe was not 

“particularly dangerous” was obiter dictum. Further, the statement lacked any 

supporting analysis and, thus, will not be further addressed. The stated holding of 

the trial court was that the evidence did not support a negligence claim under the 

common law, and the trial court erred in this regard.

For the foregoing reasons, we reverse the trial court.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith A. Howarth, :

Appellant :

:

v. : No. 447 C.D. 2021

:

Falls Township :

O R D E R

AND NOW, this 14

th day of February, 2024, the March 26, 2021, order 

of the Court of Common Pleas of the Forty-Fourth Judicial District, Wyoming 

County Branch, granting Falls Township’s motion for summary judgment in the 

above-captioned matter is REVERSED.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita