Twp. of Cranberry v. R.J. Spencer

T
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Township of Cranberry                   :
                                        :
                                        :
                     v.                 :   No. 201 C.D. 2020
                                        :   Argued: February 8, 2021
Randy J. Spencer,                       :
                          Appellant     :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: March 24, 2021



      Randy J. Spencer appeals from a November 13, 2019 Order of the Court of
Common Pleas of Venango County (trial court), which granted the Township of
Cranberry’s (Township) Motion for Special or Preliminary Injunction Prior to
Hearing (Motion) and ordered Spencer to take all necessary steps to remove the
junked motor vehicles and travel trailers from his property as they were a public
nuisance that created safety concerns. The Township sought the injunction after
flooding of a nearby creek resulted in a road closure, which the Township alleged
was caused by Spencer’s junked vehicles and travel trailers being washed onto and
across the roadway. Before this Court, Spencer argues that the trial court had no
reasonable ground to grant the Motion because no non-speculative evidence was
presented to support a finding that Spencer’s property caused or contributed to any
flooding issues, the trial court erred in finding that Spencer’s vehicles blocked the
roadway, and the Township’s ordinance does not authorize the relief requested.
Because there was a reasonably apparent basis for the trial court to grant the
preliminary injunction, we affirm the trial court’s Order.

   I.         BACKGROUND
        Spencer is the owner of 4110 Deep Hollow Road, Franklin, Pennsylvania,
which is located in the Township (Property) and upon which a number of vehicles
and travel trailers are kept. “The Property is in a floodplain and adjacent to” Lower
Two Mile Run (Creek), which flows into the Allegheny River. (Complaint in Equity
(Compl.) ¶ 4, Reproduced Record (R.R.) at 2a.) The Allegheny River runs beside
United States Route 322 (U.S. 322) “and is located approximately 800 feet from the
Property.” (R.R. at 2a.)
        After a flooding incident in July 2019 involving Spencer’s Property, the
Township filed a Complaint in Equity (Complaint) with the trial court, pursuant to
Section 132-6(C) of the CRANBERRY TOWNSHIP, PENNSYLVANIA, PROPERTY
MAINTENANCE CODE (2018) (Code),1 alleging that Spencer’s storage of the junk
vehicles on the Property “constitute[s] a nuisance[]” as well as “violat[es] [] the
Township’s ordinances.” (R.R. at 6a.) The Complaint sought an order requiring

        1
            Section 132-6(C) of the Code states in relevant part that the

        chapter may also be enforced through an action in equity brought in the [trial court]
        . . . as an alternative to or in addition to any other enforcement action or proceeding.
        If a violation of this chapter also results in or constitutes the permitting, creation or
        existence of a public nuisance, such action in equity may be for, though not
        necessarily limited to, abatement and/or removal of such public nuisance.

Code § 132-6(C).


                                                   2
Spencer to remove the junk vehicles, and if Spencer failed to do so, authorizing the
Township to remove them, as well as an injunction prohibiting Spencer from storing
more than two junk vehicles at the Property. (Id. at 6a-7a.)
       One day after filing the Complaint, the Township filed its Motion, which
largely mirrors the allegations and relief sought in the Complaint. Township averred
as follows. On July 19 and 20, 2019, heavy storms impacted the area of the
Township. The Creek flooded, carrying junk vehicles from Spencer’s Property into
the Creek, causing it “to back up and spill dangerous amounts of water, mud, rock,
sand, and other junk vehicles and junk vehicle parts, onto Deep Hollow Road . . . ,
U.S. 322, other private property, and into the Allegheny River.” (Motion ¶ 9, R.R.
at 31a.) The Township further averred that the junk vehicles from Spencer’s
Property “plugg[ed] the road pipe,” causing increased flooding. (R.R. at 31a.) The
Township alleged flood water “back[ed] up until the pressure became so great that
it flushed the lodged items through the pipe.” (Id.) The Township also averred that
some junk vehicles from Spencer’s “Property appear[ed] to have gone over U.S. 322
while the floodwater was backed up.” (Id.) According to the Township, Spencer
had been previously cited for violating the Code. Specifically, on May 22, 2019, the
Township filed a non-traffic citation with the Magisterial District Judge (MDJ) for
violation of Section 132-4(D) of the Code, which prohibits “[t]he storage or
accumulation of more than two abandoned or junked motor vehicles[2] that can be
seen from any public highway, road, street, avenue, lane or alley which is maintained
by the Township or by the Commonwealth of Pennsylvania.” Code § 132-4(D). The


       2
          Section 132-3 defines an abandoned or junked motor vehicle as “[a]ny motor vehicle that:
[] [i]s not in operable condition; and/or [] [d]oes not have properly affixed thereto both a current
Pennsylvania inspection sticker (if required in order to be legally operated on a public street or
highway) and a current license plate.” Code § 132-3.


                                                 3
MDJ found Spencer guilty on July 25, 2019, but Spencer had not yet removed the
vehicles at the time the Township initiated this action in September 2019.
      The Township alleged that Spencer’s inaction is “jeopardizing the health,
safety and welfare of the citizens of the Township.” (R.R. at 30a.) Accordingly, it
asked the trial court to grant its request for a preliminary injunction, ordering
Spencer to remove the vehicles within 10 days or authorizing the Township to do so
if he does not, and enjoining further storage of more than two junked vehicles on the
Property.
      The trial court conducted an evidentiary hearing on the preliminary injunction
on November 6, 2019. The Township presented the testimony of its Township
Manager, who testified as follows. Township Manager was called to the Property
and Deep Hollow Road the morning of July 20, 2019. (Id. at 133a-34a.) When he
arrived on the scene, Township Manager took the photographs that were submitted
into evidence at the hearing. (Id. at 134a.) Township Manager described “the trailers
themselves block[ing] the roadway along with debris from stream banks . . . . There
were other automotive vehicles on[] the roadway. That was [his] immediate view
of the [P]roperty and the concerns that [he] had and the reason why [he] started
making other phone calls.” (Id. at 134a-35a.) Although the trailers and vehicles
have since been removed from the roadway, photographs that Township Manager
took two days before the hearing “identify debris of what was left from destroyed
vehicles during the flooding event from this summer that [was] still in place along
the stream banks,” which could be washed downstream causing injury. (Id. at 135a-
36a.) “[T]he vehicles were put back in their same locations” on the Property, as
before the flood occurred. (Id. at 136a.) Thus, Township Manager was concerned
that the vehicles created “the same condition that [existed] prior to the floo[d] on the



                                           4
19th and 20th with different vehicles in the same position.” (Id.) On cross-
examination, Township Manager admitted he was not aware of the elevation around
the Property and Deep Hollow Road or how far the water came up during the flood.
(Id. at 141a.) He further acknowledged no one saw the vehicles or trailers blocking
the culvert or debris being washed through the culvert.            (Id. at 142a-43a.)
Furthermore, Township Manager testified he did not perform any mathematical
calculations regarding the flood. (Id. at 144a, 154a.) Township Manager stated that
some of the vehicles that were blocking the road were not Spencer’s. (Id. at 147a.)
Township Manager also admitted that any future threat of a flood is speculation, as
was his belief that the culvert was blocked, which was based on what he witnessed
at the scene that morning and in photographs. (Id. at 148a-50a, 155a.) Township
Manager stated his future concern would be that “somebody else could be harmed
. . . from those items that are still remaining on [] Spencer’s [P]roperty.” (Id. at
157a-58a.)
      Spencer testified on his own behalf as follows. Spencer examined two of the
photographs taken after the flood and testified that he only owned one of the four
vehicles shown in those photographs. (Id. at 162a-65a.) On cross-examination,
Spencer stated he did not know if any of his vehicles went into the roadway because
he was not there at the time of the flood, but, when confronted with other
photographs of the aftermath, Spencer identified other vehicles that belonged to him
that crossed Deep Hollow Road. (Id. at 168a-69a.) Upon questioning by the trial
court, Spencer testified that all but two of the trailers photographed were his, and at
least two of his trailers ended up south of the U.S. 322 viaduct after the storm. (Id.
at 170a-71a.) Spencer stated he did not agree with the Township Manager’s




                                          5
characterization of his vehicles as junk as they were worth, in total, “over six
figures.” (Id. at 173a.)
      After the hearing, the trial court issued findings and an opinion granting the
preliminary injunction. The trial court stated that Spencer

      testified that all vehicles in the pictures in evidence, except for two of
      the travel trailers and a [sport utility vehicle] were his property.
      [Spencer] also conceded that at least two of his trailers, and perhaps
      more, wound up on the other side of [U.S.] 322[,] south of where his
      premises [is] located and this would indicate either that the vehicles
      went through the flooded tunnel under [U.S.] 322 or were swept by the
      flood water over [U.S.] 322.

(Trial Ct. Op. at 2.) The trial court also stated that no expert testimony was presented
on

      the dynamics of the flooding, but what is clear is that this large quantity
      of trailers, which are visible in the photographs, Exhibits 5 and 6, pose
      a threat in the event of any further flooding and is a nuisance as the
      trailers and [] [Spencer’s] land on which they are situated is within the
      floodplain.

(Id. (emphasis added).) The trial court determined that, during the events of July 19
to 20, 2019, Deep Hollow Road and U.S. 322 were

      flooded and [] [Spencer’s] trailers, which are stored in large quantity
      east and west of Deep Hollow Road, were dislodged by the water. Deep
      Hollow Road at [Spencer’s] [P]roperty was impassable. It was so
      impassable that emergency vehicles such as fire trucks and other rescue
      vehicles could not access properties where people were stranded north
      of the intersection of Deep Hollow Road with U[.]S[.] 322.

(Trial Ct. Op. at 2-3 (emphasis added).)




                                           6
      The trial court stated that Spencer pointed out the trailers are “valuable
commodities” and that “he is at his own pace moving the trailers from that location
to another location.” (Trial Ct. Op. at 3.)
      Ultimately, the trial court found that there are “safety concerns” and “the
Township has a duty to the other residents . . . to assure their protection and to avoid
having the trailers pollute [the Creek] and the Allegheny River.” (Id.) The trial
court further found that “an injunction in this case is necessary to prevent immediate
and [irreparable] harm and that the harm could not be compensated adequately by
damages.” (Id.) The trial court also found that greater injury would result from
denying the injunction than granting it and expressed the intention “to reasonably
structure the methods available to [Spencer] to bring himself into compliance with
this order” such that Spencer would not be caused substantial harm by the order. (Id.
at 3-4.) In addition, the trial court found that the injunction will “restore the parties
to their status as it existed prior . . . to [Spencer’s] alleged wrongful conduct.” (Id.
at 4.) The trial court also found that the Township has a clear right to relief. The
trial court anticipated more extensive evidence on causation and risk at a full and
final hearing, and, thus, concluded that the Township was likely to prevail on the
merits. (Id.) Finally, the trial court stated the injunction was “reasonably suited to
abate the offending activity” and would “not affect the public interest.” (Id.)
      Accordingly, the trial court granted the preliminary injunction and ordered
Spencer to “take all necessary steps to remove the junked motor vehicles” from the
Property and to submit, within 20 days, a specific plan regarding the removal of the
trailers from the Property within a reasonable time period. (Trial Ct. Order ¶ 1.) The
trial court stated that it was “mindful that [] [Spencer] ha[d] an agreement with the
Pennsylvania Department of Transportation” (DOT) to remove the vehicles from the



                                              7
Property and the trial court would accept that plan “as long as the plan
demonstrate[d] palpable and reasonable efforts to abate the nuisance.” (Id. ¶¶ 1-2.)
The trial court further enjoined Spencer “from storing any additional vehicles on the
[P]roperty.” (Id. ¶ 2.)
         On December 5, 2019, Spencer submitted the Plan of Abatement (Plan) to the
trial court. The Joint Stipulated Order entered into between Spencer and DOT was
attached to the Plan.3 On December 13, 2019, Spencer appealed the trial court’s
Order to the Superior Court. On January 15, 2020, the Superior Court transferred
Spencer’s appeal to this Court on the basis that we have exclusive appellate
jurisdiction over appeals from the courts of common pleas as this falls under a
municipality planning or zoning code. See Section 762 of the Judicial Code, 42
Pa.C.S. § 762.


   II.       PARTIES’ ARGUMENTS
         Spencer argues that the Township did not present sufficient evidence to prove
that the Township “had a reasonable likelihood of prevailing on the merits,” one of
the requirements for granting a preliminary injunction. (Spencer’s Brief (Br.) at 11.)
More specifically, Spencer argues that the trial court did not have a reasonable basis
for finding that Spencer caused or contributed to any damage or endangered others.
Spencer further asserts that the trial court misstated the record when it found that at
least two of Spencer’s trailers crossed U.S. 322, south of the Property. (Id.) Spencer
further contends that the Township could not establish the required level of harm or
injury if the preliminary injunction was denied because the record is full of

         3
         The Plan is located in the Reproduced Record at pages 118a-19a. The Joint Stipulated
Order is located in the Reproduced Record at pages 120a-22a. However, it is not dated and is
signed only by Spencer.


                                             8
speculation as to the danger to people during a flood but lacks any expert testimony
as to who or what caused the flood. (Id. at 12-13.) Spencer also asserts that none of
the vehicles photographed as blocking Deep Hollow Road belonged to him, and,
without any evidence that Spencer’s vehicles blocked the roadway, the trial “court’s
conclusion was speculative and not supported by evidence.” (Id. at 14.) Finally,
Spencer contends that the Code provision relied upon by the Township does not
support the grant of the preliminary injunction. That provision, he argues, only
prohibits storage of two or more abandoned or junked vehicles that are visible from
a roadway and any violation thereof could be cured by installing screening, which
would have blocked the view of the vehicles. (Id. at 15.) Spencer also argues that
the Code, which the Township admitted was the basis of the Complaint, “does not
authorize a general equity action,” as has been brought here. (Id.)
      The Township responds that the trial court properly granted a preliminary
injunction in this case as the Township satisfied its burden. (Township’s Br. at 10-
12.) Spencer willfully violated the Code and continues to do so, the Township
asserts, and thus, this “[d]efiance of an ordinance” authorized the trial court to grant
injunctive relief. (Id. at 12.) The Township contends that this action is supported
not only by the Code violation, but also because the junked vehicles constitute a
public nuisance. (Id. at 13-14.) The Township argues that Spencer wrongly claims
the injunction was sought based only on the violation of the Code and ignores the
Township’s concern about the public’s safety related to the storage of junked
vehicles in a floodplain near a trafficked roadway. (Id. at 13.) The Township
maintains that Spencer’s position that the harm was speculative overlooks the
testimony and evidence presented that “Spencer’s [vehicles and trailers] were
washed off [the P]roperty and went across U.S. 322” once already, and there is no



                                           9
requirement that the Township wait for another flood or produce eyewitness
testimony that Spencer’s vehicles blocked and/or crossed the roadway. (Id. at 14.)
The Township asserts that the trial court made a logical inference based on the
circumstantial evidence presented as it was evident that Spencer’s vehicles were
moved by the flood waters across U.S. 322, and they would do so again if not
removed. (Id.) The Township contends that it has a right to abate a public nuisance,
which is potentially dangerous to its citizens due to the clear flooding issues, and
“[t]he trial court did not err in granting injunctive relief.” (Id. at 15.)


   III.   DISCUSSION
       To be entitled to a preliminary injunction, the moving party must establish the
following six requirements:

       (1) the injunction is necessary to prevent immediate and irreparable
       harm that cannot be compensated adequately by damages; (2) greater
       injury would result from refusing the injunction than from granting it,
       and, concomitantly, the issuance of an injunction will not substantially
       harm other interested parties in the proceedings; (3) the preliminary
       injunction will properly restore the parties to their status as it existed
       immediately prior to the alleged wrongful conduct; (4) the party
       seeking injunctive relief has a clear right to relief and is likely to prevail
       on the merits; (5) the injunction is reasonably suited to abate the
       offending activity; and[] (6) the preliminary injunction will not
       adversely affect the public interest.

SEIU Healthcare Pa. v. Commonwealth, 

104 A.3d 495

, 502 (Pa. 2014); see Summit
Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 

828 A.2d 995

, 1001 (Pa.
2003). An appellate court reviews an order that denies or grants a preliminary
injunction for an abuse of discretion. Summit Towne 

Centre, 828 A.2d at 1000

.
Furthermore, an appellate court “examine[s] the record to determine if there were
any apparently reasonable grounds” for the order granting a preliminary injunction.

                                            10
Roberts v. Bd. of Dirs. of Sch. Dist., 

341 A.2d 475

, 478 (Pa. 1975). As the trial court
is the fact finder, we are bound by its findings of fact, as long as they have adequate
support from the record, as well as its credibility and evidentiary weight
determinations. Ziegler v. City of Reading, 

216 A.3d 1192

, 1202-03 (Pa. Cmwlth.
2019).
         The trial court made findings to support each of the six requirements above.
Spencer argues that there was no reasonable basis to conclude that his vehicles or
trailers caused or contributed to any damage or endangered others from the flood
water.     We disagree.    Based upon the photographs and testimony presented,
including Spencer’s own testimony, the trial court found that “all the vehicles . . .
except for two of the travel trailers and a [sports utility vehicle] were [Spencer’s]
property”; “at least two of [Spencer’s] trailers, and perhaps more, wound up on the
other side of [U.S.] 322[,] south of where his premises are located and this would
indicate either that the vehicles went through the flooded tunnel under [U.S.] 322 or
were swept by the flood water over [U.S.] 322.” (Trial Ct. Op. at 2.) Spencer
contends that the trailers “had not been identified as his,” because “he was unable to
retrieve or access any of the vehicles.” (Spencer’s Br. at 11.) However, Spencer’s
argument does not nullify the safety concerns that the trial court found exist because
vehicles remain on the Property, largely in the same location as they were before the
flood, and, as a result, they continue to pose a reasonable risk of similar future
problems. Because Spencer’s Property is located in a floodplain, the trial court noted
that the evidence supported an injunction to prevent the danger his vehicles pose in
the future should another flood occur. The lack of expert testimony goes to the
weight of the evidence presented, and the trial court found that the photographs and
testimony presented were enough at this stage of proceedings to demonstrate a



                                          11
violation of the Code and a nuisance. (Trial Ct. Op. at 2.) As we review whether
there were “any apparently reasonable grounds” in the record, for the trial court’s
action, 

Roberts, 341 A.2d at 478

, we cannot conclude such grounds are lacking given
the trial court’s supported findings.
      Further, Spencer argues that the trial court’s conclusion that Spencer’s
vehicles blocked Deep Hollow Road is mere speculation. However, based on the
photographs and Spencer’s testimony that all but two of the trailers were his, the trial
court found that the multiple vehicles that were swept away in the flood waters
during the flood from the Property contributed to making Deep Hollow Road
“impassable.” (Trial Ct. Op. at 2.) The trial court made findings of fact and assessed
the risk of harm to the public based on those facts. We are to defer to the trial court’s
determination as long as there are “any apparently reasonable grounds” in the record
for its decision, 

Roberts, 341 A.2d at 478

, and we conclude, based upon a review of
the record, that there are here.
      Spencer also asserts that Section 132-4(D) of the Code was not intended to
address this situation and any violation would be remedied by hiding the vehicles
from view with screening. However, Section 132-4(D) is not the sole basis for the
relief the Township requested or the sole basis for the relief the trial court granted.
The Township also alleged that the vehicles constitute a public nuisance and, thus,
warranted a preliminary injunction. In addition to a common law public nuisance
action, Section 132-6(C) of the Code specifically allows for public nuisance actions
when a violation of the Code results in the need to abate or remove that public
nuisance. Code § 132-6(C). A public nuisance is “an unreasonable interference with
a right common to the general public.” Diess v. Pa. Dep’t of Transp., 

935 A.2d 895

,
912 (Pa. Cmwlth. 2007) (quotation omitted). An unreasonable interference includes



                                           12
“a significant interference with the . . . public safety . . . or . . . conduct [that] is
proscribed by a statute, ordinance or administrative regulation.”

Id. (quoting
Restatement (Second)

of Torts § 821B(2)(a), (b) (Am. Law Inst. 1979)). The
Township argued before the trial court, and argues before this Court, that Spencer’s
actions in keeping the vehicles after the flood threatens the safety of its residents.
       The trial court accepted this argument and the evidence of the previous flood
to determine there was a danger to residents within the Township as the Property is
located in a floodplain and the conditions remain unchanged. (Trial Ct. Op. at 2-3.)
The Township has the prerogative to prevent actions that could potentially “increase
the danger from floods and freshets to the property and lives of its inhabitants.”
Borough of Tyrone v. Stevens, 

36 A. 166

, 167 (Pa. 1897). Furthermore, while
screening may hide the vehicles from view, there is no evidence that it would remedy
the Township’s safety concerns related to the Property and the vehicles remaining
on the Property. The trial court had an apparently reasonable basis to conclude that
the Property enhances the dangers from floods, especially those within a floodplain,
and creates safety concerns that the Township has a duty to avoid or abate. (See
Trial Ct. Op. at 3.) Accordingly, we will not overturn the trial court’s granting of
injunctive relief.


   IV.    CONCLUSION
       The credited evidence presented supports that future danger from potential
future flooding is a legitimate concern because Spencer’s junked vehicles and
trailers remain on the Property in the same location as they were when they were
swept onto the roadway by the previous flood waters. The trial court’s findings that
these vehicles are a threat to the safety of the Township’s residents and that the six



                                           13
requirements for a preliminary injunction have been met are supported by “any
apparently reasonable grounds.” 

Roberts, 341 A.2d at 478

. Therefore, we affirm
the trial court’s Order.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge




                                     14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Township of Cranberry                   :
                                        :
                                        :
                    v.                  :   No. 201 C.D. 2020
                                        :
Randy J. Spencer,                       :
                         Appellant      :

                                     ORDER


      NOW, March 24, 2021, the Order of the Court of Common Pleas of Venango
County, dated November 13, 2019, is AFFIRMED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge

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