J-A14025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES G. WAITE IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

CDG PROPERTIES, LLC.

 v.

GRANDVIEW MANAGEMENT, INC. AND 

BURNHAM FARMS, LP.

 APPELLANTS

STONE VALLEY CONSTRUCTION, INC., 

AND

COUNTRY COVE CONDOMINIUM 

ASSOCIATION

No. 896 MDA 2015

Appeal from the Judgment Entered October 1, 2015

In the Court of Common Pleas of Centre County

Civil Division at No(s): 2013-569

BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016

Grandview Management, Inc. and Burnham Farms, LP (Grandview and 

Burnham) appeal from the judgment entered on October 1, 2015,1in the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although Grandview and Burnham ostensibly appeal from the April 23, 

2015 order entering judgment, pursuant to Pa.R.C.P. 227.4, in favor of 

Stone Valley Construction, Inc. (Stone Valley), the appeal properly lies from 

the subsequent October 1, 2015 order which made final the verdict of May 

20, 2015, compelling Grandview and Burnham to pay $43,285.00 for the 

removal and replacement of certain trees on Plaintiff, James G. Waite’s 

property, and to modify the storm water drainage system.
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Court of Common Pleas of Centre County. In this appeal, Grandview and 

Burnham raise two issues: (1) Was the April 23, 2015 entry of judgment 

premature, and (2) Did the trial court err in granting a directed verdict in 

favor of Stone Valley? After a thorough review of the certified record, 

relevant law, and the submissions by the parties, we agree that the entry of 

judgment was premature; however, such action was harmless as Grandview 

and Burnham preserved their claims. We further conclude the trial court did 

not err in granting a directed verdict in favor of Stone Valley. Accordingly, 

Grandview and Burnham are not entitled to relief.

The trial court recounted the basic factual history of this matter as 

follows:

[Waite] owns a 3.02 acre tract of land in Spring Township, 

Centre County. The bulk of this tract is woodland, although the 

track also contains [Waite’s] home and, until recently, a 

garage.[2] Until approximately 2005, the area upslope from 

[Waite’s] property was a farm, forest, and meadow.

[CDG Properties, LLC] purchased the property and began to 

construct a residential development known as Burnham Farms 

Estate with the assistance of Additional Defendants[3]in 2006. 

The development has a storm water management system 

consisting of swales, conduits, pipes, and a detention basin, 

installed pursuant to several permits issued by the Department 

of Environmental Resources.

____________________________________________

2 Unrelated to this action, the garage burned to the ground.

3 Additional Defendants include Appellants, Grandview Management, Inc. 

and Burnham Farms, L.P.
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Approximately three years after construction on the 

development began, [Waite] noticed the trees along the property 

line near the development had begun to die. After investigation, 

[Waite] came to the conclusion the trees were dying due to 

increased subsurface drainage from the development and filed 

the instant suit.

Trial Court Opinion, 5/20/2015, at 2.

Additionally, we note that at trial two experts, Eric Chase, a 

geologist/hydrologist, and Keith Lingenfelter, a horticulturalist/plant 

pathologist testified on behalf of Waite. Chase opined that the storm water 

drainage system did not function properly, but provided no testimony as to 

why, how or who was responsible for that failure. Lingenfelter provided his 

opinion that the primary cause of the tree death was an excess of subsurface 

water that essentially drowned the trees. John Oleksa, a registered 

landscape architect, testified as an expert on behalf of Grandview 

Management and provided his opinion that a wide variety of stresses, 

including insects, pathogens and drought were possible causes of the tree 

death.

On January 26, 2015, at the close of evidence in the non-jury trial of 

this matter, the trial court granted Stone Valley’s motion for directed verdict 

after it determined no evidence had been presented against them.4 The trial 

____________________________________________

(Footnote Continued Next Page)
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court took the case against the remaining defendants under advisement. The 

oral order granting the directed verdict was reduced to writing and entered 

on the docket on March 13, 2015. However, as noted, claims against other 

defendants still remained viable. In fact, the trial court subsequently found 

against defendants Grandview and Burnham. Accordingly, pursuant to 

Pa.R.A.P. 341, the directed verdict was not a final order because it did not 

dispose of all claims and all parties. See also, Boyce v. Smith-EdwardsDunlop Co., 580 A.2d 1382 (Pa. Super. 1990) (Directed verdict that did not 

dispose of all claims and parties was not a final appealable order). 

Nonetheless, Stone Valley filed a premature praecipe to enter judgment 

prior to the final resolution of Waite’s claims against the remaining 

defendants. While judgment was entered in favor of Stone Valley, the 

appeal did not become ripe until the October 1, 2015 order disposed of all 

claims and parties.5

In their first issue, Grandview and Burnham argue the entry of 

judgment by praecipe in favor of Stone Valley pursuant to Pa.R.C.P. 227.4 

was improper and therefore the judgment should be stricken. As noted 

(Footnote Continued) _______________________

4 Although directed verdict was granted in favor of both Stone Valley and 

CDG Properties, Grandview and Burnham are only appealing the judgment in 

favor of Stone Valley.

5 Country Cove Condominium Association (Country Cove) was never 

independently served and was not independently represented at trial. 
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above, we agree that the April 23, 2015 order entering judgment in favor of 

Stone Valley was premature and improper. Nevertheless, we agree with the 

trial court’s determination that such error was a harmless procedural error. 

Grandview and Burnham have preserved their substantive claim, and that 

claim is currently before us. Grandview and Burnham have demonstrated no 

harm, nor can we perceive any. Further, Grandview and Burnham have 

provided no authority to support their claim that the relief they are entitled 

to is to have the judgment stricken. Accordingly, we decline to strike the 

judgment in favor of Stone Valley.

The substance of Grandview and Burnham’s second argument is that 

the directed verdict was improper because there was evidence creating a 

question whether Stone Valley could be held jointly liable for the improperly 

functioning storm water drainage system. Specifically, Grandview and 

Burnham claim:

It is respectfully submitted that a factual issue was presented in 

the testimony that could have created a question for the fact 

finder concerning whether construction of the drainage swale 

was a factor in allowing water to infiltrate into the subsurface.

Appellant’s Brief at 14. This claim ignores the fact that the same trial judge 

who granted the directed verdict was also the ultimate fact finder. The 

same evidence, or lack thereof, was before the trial judge whether he 

granted the directed verdict or waited to dispose of the claim along with the 
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claims against Grandview and Burnham. Accordingly, that aspect of 

Grandview and Burnham’s claim fails.6

As to whether the trial court correctly determined there was no open 

question of law or fact regarding the possibility of Stone Valley’s culpability 

in requesting the directed verdict, counsel for Stone Valley stated:

[W]hile there has been testimony evidence that Stone Valley 

constructed the swale, there is no testimony or evidence at this 

time with regard to whether the construction of the swale is the 

issue. There has been no expert testimony as to whether the 

swale was designed improperly, constructed improperly, or 

maintained improperly. I don’t believe that any of those 

occurred. But I think in order to establish a case against Stone 

Valley, that it must be established that the swale was 

constructed improperly. And there is absolutely no evidence or 

testimony of record to that effect, your Honor.

N.T. Trial, 1/26/2015 at 184-85.

Our review of the evidence presented at trial convinces us that this 

statement was an accurate representation of the lack of evidence against 

Stone Valley. Indeed, there was no indication of what Stone Valley may 

have done to cause an excess flow of subterranean water onto Waite’s 

property. In light of the fact that no evidence at all was presented to the 

trial court regarding any improper or negligent act on the part of Stone 

____________________________________________

6 We have interpreted this aspect of Grandview and Burnham’s claim as an

assertion that the directed verdict was premature. Such an argument would 

be more appropriate if the ultimate fact finder was a jury, not the trial 

judge. 
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Valley, any verdict against Stone Valley would have necessarily been based 

upon pure speculation. Such a verdict is not allowable. Krauss v. Trane 

U.S., Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (verdict may not be based 

upon “conjecture, surmise, guesswork, or speculation”). Accordingly, the 

trial court properly granted directed verdict in favor of Stone Valley and 

Grandview and Burnham are not entitled to relief.

Judgment affirmed.

Judge Bowes joins in this memorandum.

Judge Platt concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2016