MJ Byelich Properties v. JJL Normandy Properties

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MJ BYELICH PROPERTIES, LLC : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JJL NORMANDY PROPERTIES, LLC, :

AND CHRIS ELER :

: No. 2904 EDA 2023

Appellant :

Appeal from the Judgment Entered October 17, 2023

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

2021-02831

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 3, 2025

JJL Normandy Properties, LLC, and Chris Eler appeal from the judgment,

entered in the Court of Common Pleas of Bucks County, after a jury returned

a verdict in favor of Appellee MJ Beylich Properties, LLC. After our review, we

affirm.

The trial court set forth the factual and procedural history of this matter

as follows:

This case involves a trespass by water infiltration between

adjoining properties. [Appellants] own a commercial property

situated uphill from [Appellee], MJ Byelich’s [] commercial

property. [Appellants] trespassed onto [Appellee’s] property by

causing artificially directed water to enter [Appellee’s] property[,]

rendering [Appellee’s] property undevelopable.

In October of 2019, Mark Byelich, managing member of

[Appellee,] decided to purchase the property at issue in this case

to create a permanent residence for [Appellee’s] wealth

management firm. [Appellee’s] property consists of raw land

behind the building that houses the firm but extends behind

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[Appellants’] building as well. The raw land factored into Byelich’s

decision to buy the property.

At the time of purchase, Byelich had plans for the raw land. The

previous owner supplied Byelich with previously approved plans

for the development [of] another office building (7500 square

feet) and a parking lot. However, nothing can be done before

mitigating the water trespass. [Appellee] does not have control

over the water infiltration because it is coming from [Appellants’]

property. Therefore, [Appellee’s] raw land is left undevelopable.

Shortly after purchase, Byelich observed that the raw land was

soaked with water[,] causing him to sink to his ankles when

walking through the field. Around January 2020, Byelich observed

two big PVC pipes installed on [Appellants’] property, through

which water flowed out of the ground onto [Appellee’s] property.

Even Eler testified that he directed the installation of the new

white piping which directed and discharged water onto

[Appellee’s] property.

Eler[, managing member of Appellant JJL Normandy Properties,

LLC (“JJL”),] testified that[,] around this time, he was renovating

JJL’s building[,] a three-hundred-year-old mill[,] which consisted

of two separate buildings. The renovation connected [those

buildings] by creating an atrium. JJL is an LLC [whose] sole

purpose [is] to hold the real estate located at 1071 Lindehurst

Road[,] the property adjoining [Appellee’s] property. In this case,

JJL was set up to avoid liability.

[Appellants’] building housed Eler’s business, State Capital Title

and Abstract Company[,] and a construction firm. The

construction firm is the firm that performed JJL’s building

renovations; however, Eler refused to answer an interrogatory

[that] asked the name of the contractor that designed the water

system and testified at trial that he did not know. At some point

in his testimony, [Eler] finally gave the name, ELMS Construction.

Eler combatively stated that [] he thought [the interrogatory was

asking] who designed the original water system; in this case, he

said that ELMS “rehabilitated it.” [Eler] also stated that he did not

know the cost of the renovation even though he admitted he

signed the contract for the work and was responsible for paying

for the work.

Eler admitted that the roof, which is artificial[,] increased in

surface area during the renovation[, t]hereby[] increasing

impervious surfaces[. H]owever, Eler did not produce permits or

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inspections showing impervious inspection approvals for the

renovation. Eler testified that was [Appellee’s] job; however,

[Appellee’s] counsel went to the township to pull the permits and

there [were] none. Eler further admitted that there are fourteen

artificial downspouts, and a grate that collects water coming off of

the road in front of the building to make sure it does not enter his

building.

On four to six different occasions from about 2020 until present,

Byelich observed [Appellants] installing large hoses (fire hose

size) directing the water to flow onto [Appellee’s] property.

Byelich attempted to contact Eler several times as early as

January of 2020. The two spoke and Byelich asked Eler if he could

stop pumping water onto [Appellee’s] property by redirecting the

hose elsewhere. Eler explained that it has always been that way.

Later, Eler sent Byelich an email in an attempt to further explain

the history of pumping and reiterate that it[ has] always been that

way. Basically, Eler believes it is not his problem because water

has always been pumped out of his property onto the adjoining

property.

Eler testified that he thought about working amicably with

[Appellee] to install a berm or otherwise address the issues;

however, he did not do any of it because “it would require [Eler]

to do extensive engineering and, [he] assume[s], all sorts of due

diligence to understand whether [he] is allowed to do that.”

Further, Eler never hired an engineer to determine how to address

the drainage or runoff from his property onto [Appellee’s] property

because he “didn’t feel like [he] was required to do that.” Eler

stated the condition was pre-existing and he did not feel

responsible to address the water he was allowing to be artificially

directed to his neighbor’s downhill property.

Eler never spoke to Byelich about an attempt to mitigate. In fact,

when Byelich told Eler he had obtained an estimate to build a

berm, Eler said, “you can’t do that. You’ll flood my property.”

Byelich took videos between November of 2020 and September of

2021 showing different hoses and pipes that artificially direct

water onto [Appellee’s] property. At some point in early 2023,

Eler [] move[d] the piping further away from [Appellee’s]

property[, as Appellants’ drainage system had been intruding

several feet onto Appellee’s property]; however, the water still

trespasses onto [Appellee’s] property.

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Eler admitted that he is able to and does direct water somewhere

other than [Appellee’s] property. There is an underground sump-

pump that is pumping water out of Eler’s building into Core Creek

through a two-inch PVC pipe that runs across his property. By

contrast, the two PVC pipes that direct water onto [Appellee’s]

property are larger than the two-inch pipe to Core Creek.

Byelich testified that the value of [Appellee’s] raw land is

estimated at $650,000.00. This figure is based on the 7,500

[square foot] previously approved development [plan] that the

previous owner supplied to Byelich at the time [Appellee’s]

property was purchased. Construction costs to build the approved

plan are estimated at $1.2 million. Based on the real estate in the

area for that square footage of office space, the finished value of

the 7,500 square [foot] plan is estimated to be $1.8 million. The

difference between the finished value of the approved plan and

the cost to construct it equals the value of the raw [] land[,] which

is $680,625.00.

Prior to trial, on May 16, 2023, [Appellants] filed a motion in limine

to exclude [the] testimony and report of [Appellee’s] expert,

Robert Koruch, on the grounds that [Appellee] failed to comply

with the court’s order [] entered March 6, 2023, directing

[Appellee] to respond to discovery[,] including interrogatories and

request[s] for production (which required [Appellee’s] expert

report), no later than March 23, 2023. On May 30, 2023, the court

held oral argument of the motion in limine and limited all evidence

to discovery that was exchanged up to March 23, 2023.

On May 31, 2023, [Appellants] filed a motion in limine to preclude

[Appellee’s] March 23, 2023 letter and testimony from

[Appellee’s] expert. On June 1, 2023, the court held oral

argument on the motion in limine after the parties made opening

statements to the jury. The court granted the motion in limine

and precluded [Appellee’s] expert from testifying.

[On June 2, 2023, the jury returned a verdict in favor of Appellee,

awarding compensatory damages for the decreased value of the

property in the amount of $300,000.00 and punitive damages in

the amount of $200,000.00.] On June 12, 2023, [Appellee] filed

a motion [] to mold [the v]erdict [to include Pa.R.C.P.] 238

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damages.[1] [That same day, Appellants filed a post-trial motion.]

On August 11, 2023, the court held oral argument on [Appellee’s

delay-damages] motion. On October 13, 2023, the court entered

[orders granting Appellee’s delay damages motion and denying

Appellants’ post-trial motion. Judgment was entered in favor of

Appellee on October 17, 2023.]

Trial Court Opinion, 1/25/24, at 2-9 (unnecessary capitalization and footnotes

omitted).

This timely appeal follows, in which Appellants raise the following issues

for our review:2

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1 “At the request of the plaintiff in a civil action seeking monetary relief for . .

. property damage, damages for delay shall be added to the amount of

compensatory damages awarded against each defendant . . . found to be liable

to the plaintiff in the verdict of a jury[.]” Pa.R.C.P. 238(a)(1).

2 We have reworded and reorganized Appellants’ stated issues. We have also

combined certain of Appellants’ claims, as the substance of the argument

sections pertaining to those claims is redundant. In particular, questions 1,

2, 3, 4, 5, and 7 all purport to raise distinct claims. However, the

corresponding argument sections all essentially repeat versions of the same

fundamental argument, i.e., that Byelich was unqualified to testify as to

causation and damages and, therefore, Appellee failed to prove its claims.

Accordingly, as the trial court and Appellee have previously done, we have

attempted to identify Appellants’ discrete claims and address them as best we

can. See Trial Court Opinion, 1/25/24, at 18-19 (noting issues raised in

Appellants’ Rule 1925(b) statements “are anything but concise” and

combining issues to avoid redundancy); Brief of Appellee, at 14-19 (noting

“extravagant” nature of Appellants’ Rule 1925(b) statements and suggesting

quashal for failure to comply with Rules of Appellate Procedure by, inter alia,

stating “concisely” the issues to be resolved). We further note that Appellants

omit from their brief a “[s]tatement of place of raising or preservation of

issues” as required by Pa.R.A.P. 2117(c). Given our determination, infra, that

multiple of Appellants’ claims have been waived for failure to preserve them,

the absence of a Rule 2117(c) statement is particularly glaring in this matter.

Nevertheless, we decline to quash the appeal and proceed to address those

issues we are reasonably able to glean from Appellants’ argument.

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1. Whether the evidence was sufficient to establish causation

under Appellee’s theories of negligence, nuisance, and/or

trespass.

2. Whether the evidence was sufficient to support the jury’s

damages award?

3. Whether the jury’s monetary award of compensatory and

punitive damages was excessive.

5. Whether the trial court erred in precluding Appellants from

presenting relevant evidence at trial.

6. Whether the trial court erred in failing to sustain Appellants’

objection to statements made by Appellee’s counsel during his

closing argument and in failing to give a curative instruction.

7. Whether the trial court erred as a matter of law and abused its

discretion in granting Appellee’s motion to award delay damages

under Pa.R.C.P. 238.

See Brief of Appellants, at xiv-xvii (issues reorganized, combined, and

reworded for ease of disposition).3

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3 In section X. of their argument section, Appellants raise the following issue:

The trial court erred as a matter of law and abused its discretion

in denying the post-trial motion by permitting the Appellee to

advise the jury that it would present expert witness testimony in

support of its claims and outlining such purported expert support

for its claims, before the trial court ruled on Appellants’ motion in

limine to exclude Appellee’s expert witness’ expert report and

testimony [], and then ultimately granting Appellants’ motion in

limine and excluding Appellee from presenting the expert report

during trial and precluding testimony from Appellee’s expert

witness, and without giving a curative instruction to the jury.

Brief of Appellants, at 54. This claim is waived for multiple reasons. “In order

to preserve an issue for appeal, a litigant must make a timely, specific

objection at trial and must raise the issue on post-trial motions.” Thorson v.

EDDW, LLC, 309 A.3d 141, 148 (Pa. Super. 2024), quoting Reilly by Reilly

v. Southeastern Penn. Transp. Auth., 489 A.2d 1291, 1296 (Pa. 1985).

(Footnote Continued Next Page)

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We first address whether the evidence was sufficient to establish

causation under Appellee’s claims of negligence, nuisance, and trespass.

Appellants claim that the trial court erred by denying their motion for a

directed verdict at the close of Appellee’s case and by also denying their post-

trial motions for a new trial and judgment notwithstanding the verdict

(“JNOV”). Appellants argue that Appellee “did not present any evidence that

water from [] Appellants’ property actually caused its property to be valueless”

and that “permitting [Byelich,] a lay witness[,] to blatantly offer the very same

expert testimony that the trial court had previously excluded was highly

prejudicial and constitutes reversible error.” Brief of Appellants, at 49.

Appellants also assert that Byelich “testified that [his property] was damaged

because [he] thought that [] Appellants’ renovated stormwater management

____________________________________________

“[I]f no objection is made, error which could have been corrected . . . during

trial by timely objection[] may not constitute a ground for post-trial relief.”

Pa.R.C.P. 227.1(b)(1), Note. Here, Appellants raised no issue regarding

counsel’s opening statement following the trial court’s grant of Appellants’

motion in limine, did not request a curative instruction, and failed to raise the

issue in their post-trial motion. Accordingly, the claim is waived.

Moreover, the claim addressed in section X. of Appellants’ brief was not raised

in the statement of questions presented. See Brief of Appellants, at xiv-xvii.

Pursuant to Pa.R.A.P. 2116, no question will be considered on appeal unless

it is stated in the statement of questions involved or is fairly suggested

thereby. See Pa.R.A.P. 2116(a). The claim raised in section X. of Appellants’

argument section is neither included in the statement of questions presented

nor fairly suggested thereby. Accordingly, it is also waived for that reason.

See In re K.T.E.L., 983 A.2d 745, 750 (Pa. Super. 2009) (finding challenges

to statutory grounds for terminating parental rights waived on appeal because

they were not raised in statement of questions involved).

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system was discharging more water into the [d]rainage [a]rea, without

presenting any basis for that claim.” Id. (emphasis in original).

Appellants further argue that Appellee’s claims required the testimony

of an expert as to causation, “which required a highly technical analysis of the

existing water management system, changes made to the previous system,

and how those changes allegedly increased water flow” to the Appellee’s

property. Id. at 15. Appellants contend that there was “no way for [Appellee]

or the jury to know whether water flowing from [Appellants’] property was

actually the cause of the damage to [Appellee’s] property because [Appellee]

did not obtain or present any evidence of the same.” Id. at 28. Appellants

are entitled to no relief.

[A] jury verdict may be set aside as inadequate “when it appears

to have been the product of passion, prejudice, partiality, or

corruption, or where it clearly appears from uncontradicted

evidence that the amount of the verdict bears no reasonable

relation to the loss suffered by the plaintiff. Where the jury’s

verdict is so contrary to the evidence as to ‘shock one’s sense of

justice[,]’ a new trial should be awarded.” [Kiser v. Schulte, 648

A.2d 1, 4 (Pa. 1994)] (citations omitted). [It is] within “the

province of the jury to assess the worth of the testimony and to

accept or reject the estimates given by the witnesses,” and if the

verdict “bears a reasonable resemblance to the proven damages,

it is not the function of the court to substitute its judgement for

the jury’s.” Id. Yet, where “the injustice of the verdict ‘stand[s]

forth like a beacon’, a court should not hesitate to find it

inadequate and order a new trial.” Id. (citations omitted).

Mader v. Duquesne Light Co., 241 A.3d 600, 612–13 (Pa. 2020).

Our standards of review when considering motions for directed

verdict and [JNOV] are identical. We may reverse only if we find

an abuse of discretion or an error of law [that] controlled the

outcome of the case. We must also consider the evidence,

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together with all favorable inferences drawn therefrom, in a light

most favorable to [appellee], the verdict winner. We must . . .

afford the verdict winner the benefit of every inference which may

reasonably be drawn from the evidence, while rejecting all

unfavorable testimony and inferences.

O'Sullivan v. Joy Techs., Inc., 666 A.2d 664, 667 (Pa. Super. 1995).

With these standards in mind, we proceed to a determination as to

whether Appellee’s evidence was sufficient to sustain the jury’s verdict.

Appellee proceeded under theories of negligence, private nuisance, and

trespass.

“To maintain a negligence action, the plaintiff must show that the

defendant had a duty to conform to a certain standard of conduct[,] that the

defendant breached that duty[,] that such breach caused the injury in

question[,] and actual loss or damage.” Phillips v. Cricket Lighters, 841

A.2d 1000, 1008 (Pa. 2003) (citation and quotation marks omitted).

Additionally,

One is subject to liability for a private nuisance if, but only if, his

conduct is a legal cause of an invasion of another’s interest in the

private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules

controlling liability for negligent or reckless conduct, or for

abnormally dangerous conditions or activities.

Diess v. Pa. DOT, 935 A.2d 895, 905 (Pa. Cmwlth. 2007), citing Restatement

(Second) of Torts § 822. See also Kembel v. Schlegel, 478 A.2d 11 (Pa.

Super. 1984) (acknowledging adoption by Pennsylvania Supreme Court of

section 822 of Restatement (Second) of Torts as test to determine private

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nuisance). The Restatement further defines the harm necessary to impose

liability under nuisance law as “significant harm, of a kind that would be

suffered by a normal person in the community or by property in normal

condition and used for a normal purpose.” Kembel, 478 A.2d at 15, citing

Restatement (Second) of Torts, § 821F.

Finally, “[t]he 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.” Caruso-Long v. Reccek, 243 A.3d

234, 238 (Pa. Super. 2020), quoting Jones v. Wagner, 624 A.2d 166, 169

(Pa. Super. 1993) (citation omitted).

Here, Appellee’s claims at trial were all grounded in its contention that

Appellants’ artificial direction of water onto Appellee’s lower-lying property

caused damage to Appellee’s property. 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. “The law regards surface

water as a common enemy which every proprietor must fight to get rid of as

best he may.” Laform v. Bethlehem Twp., 499 A.2d 1373, 1378 (Pa. Super.

1985). Under the so-called common-enemy rule,

[o]ur Supreme Court has held that, because 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.

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.

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Notwithstanding the above, the 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. Thus, if the upper landowner alters the natural

conditions so as to change the course of the water, or

concentrates it at a particular point, or by artificial means

. . . increases its volume, he becomes liable for any injury

caused thereby. 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.

Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1160 (Pa. Super. 2019),

quoting Youst v. Keck’s Food Serv., Inc., 94 A.3d 1057, 1073 (Pa. Super.

2014) (emphasis added; internal citations, quotation marks, brackets, and

footnote omitted).

In brief,

A landowner may not alter the natural flow of surface water

on his property 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. One may make improvements upon his own

land, especially in the development of urban property, grade it

and build upon it, without liability for any incidental effect upon

adjoining property even though there may result some additional

flow of surface water thereon through a natural watercourse, but

he may not, by artificial means, gather the water into a body and

precipitate it on his neighbor’s property.

Leiper v. Heywood-Hall Const. Co., 113 A.2d 148, 150 (Pa. 1955) (internal

quotations omitted) (emphasis added).

Here, Byelich testified that he owns property adjacent to, and downhill

from, Appellants’ property. When he purchased the property, his intention

was to develop it. See N.T. Trial, 5/31/23, at 111, 113. However, shortly

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after purchasing the property, Byelich performed a walkthrough of the area

and “sunk down, up to about [his] ankles . . . and what [he] determined was

that water was being pumped onto [his] property.” Id. at 114. Byelich noted

that there was construction underway on Appellants’ property and was

“hopeful that this was just an issue that was going on during construction.”

Id. However, “[s]hortly thereafter, [] large PVC pipes arrived and [Byelich]

saw that it was a more permanent situation.” Id. at 114-15. When it rained

even moderately, Byelich observed water coming out of the pipes onto his

property, ponding and pooling in different areas. Id. at 116-18. Byelich

testified that, on multiple occasions, he also observed firehose-sized pipes

pumping water onto his property. Id. at 117. Although Byelich could not

state with precision how deep the water gets, “it looks pretty darn deep at

times.” Id. at 118. Byelich testified that, as it stands, he would be unable to

build on the parcel of land affected by the water flowing from Appellants’

property. Id. at 120. In support of Byelich’s testimony, Appellee presented

several videos Byelich had taken over a period of 1½ to 2 years, depicting

water flowing onto his property through the pipes and hoses installed by

Appellants and pooling on the property. See id. 126-152; Plaintiff’s Exhibits

15-25.

Eler, himself, admitted that water flowed from his property onto

Appellee’s through the pipe he installed. See Id. at 69-75 (Eler repeatedly

agreeing that photos taken by him depict water flowing through pipe and

collecting on Appellee’s property); id. at 74 (Eler testifying “[t]here is water

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coming out of my pipe, yes”); id. at 75 (“Q: Okay. So[,] there’s no doubt

that you’re causing or contributing to the amount of water on [Appellee’s]

property through your singular pipe; right? A: I would agree with

[‘]contribute[’]”).

In light of the testimony adduced at trial, it is apparent that Appellant,

the upper landowner, “alter[ed] the natural conditions so as to change the

course of the water[ and] concentrate[d] it at a particular point[.]” Kowalski,

206 A.3d at 1160. Under the common enemy rule, that is all that is necessary

to support a finding of liability. Moreover, as Appellants correctly note in their

brief, “where something is not ‘beyond the grasp of the average layperson,’

no expert testimony is required.” Brief of Appellant, at 34, quoting

Commonwealth v. Williams, 141 A.3d 440, 462 (Pa. 2016). Here, the

ability to observe water flowing from a pipe or hose and pooling on the ground

is not something “beyond the grasp of the average layperson.” Williams,

141 A.3 at 462. Accordingly, Appellee was not required to offer expert

testimony to prove causation.

Appellants next argue that the evidence was insufficient to support the

jury’s damages award. Specifically, Appellants claim that Appellee presented

no evidence of the market value of its property or the cost of repairs. See

Brief of Appellants, at 30. Appellants further argue that the trial court should

not have allowed Byelich to testify and “offer an expert opinion as to []

damages.” Id. at 32. Appellants assert that, generally, expert testimony is

necessary to establish the fair market value of real property, id. at 34, and

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that Byelich “possessed no specialized skill and/or knowledge[] to render an

expert opinion [] as to the diminution of value of [the] property[.]” Id. at 32.

Appellants are entitled to no relief.

“A property owner is ‘deemed qualified, by reason of his relationship as

owner, to give estimates of the value of what he owns regardless of his

knowledge of property valued, and the weight of such evidence is for the

jury.’” Shamnoski v. PG Energy a Div. of S. Union Co., 765 A.2d 297, 305

(Pa. Super. 2000), quoting Pavloff v. City of Clairton, 22 A.2d 74, 75 (Pa.

Super. 1941). Additionally,

under Pennsylvania law, damages need not be proved with

mathematical certainty, but only with reasonable certainty, and

evidence of damages may consist of probabilities and inferences.

Where the amount of damages can be fairly estimated from the

evidence, the recovery will be sustained even though such amount

cannot be determined with entire accuracy.

A.Y. v. Janssen Pharm. Inc., 224 A.3d 1, 29 (Pa. Super. 2019).

In Richards v. Sun Pipe Line Co., 636 A.2d 1162 (Pa. Super. 1994),

this Court affirmed the denial of JNOV, concluding the trial court had properly

admitted the testimony of the plaintiffs as to the diminished value of their

property due to defendant’s removal and pruning of plaintiff’s trees to facilitate

pipeline maintenance. The Court explained:

Instantly, appellees testified concerning the value of their real

estate. They testified that they believed the loss of privacy caused

by the removal and pruning of the trees reduced the value of their

property by $10,000.00. Although appellees testified that [they]

had not performed any “market” study in arriving at the

$10,000.00 figure, they did state that they based their valuation

upon information learned about local property values at the time

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they purchased their residence in 1985. In particular, appellees

testified that when they purchased their home[,] they also looked

at other homes of similar size [that] had larger lot sizes. Despite

having larger lots, those houses were less expensive because, in

appellees’ opinion, they lacked trees for aesthetics and privacy.

Id. at 1165.

Similarly, here, the trial court properly allowed Byelich to testify as to

the value of his property. Similar to the plaintiffs in Richards, Byelich testified

that, in order to ascertain the current value of his property, he looked at other

properties in the area, ascertained their values per square foot, and calculated

the average to be slightly over $250.00 per square foot. Id. at 158-59. Using

the previously approved plans for development supplied to him by the former

owner of his property, Byelich estimated that, post-development, the property

would be worth approximately $1.8 million. Id. at 159. Byelich estimated

construction costs to be approximately $1.2 million. Id. Byelich subtracted

the construction costs from the post-development value to arrive at a present-

day value of $680,625.00. Id. The jury, as sole fact-finder, weighed this

evidence and arrived at a compensatory damages value of $300,000.00.

Accordingly, Appellants are entitled to no relief.4

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4 To the extent Appellants argue that the jury’s award was unsupported due

to Appellee’s failure to present evidence of the cost of repair, Appellants have

waived this argument for failure to raise it either in their post-trial motions or

their Rule 1925(b) statement. See Thorson, supra (to preserve for appeal,

issue must be raised in post-trial motions); Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998) (issues not raised in timely Rule 1925(b) statement

waived on appeal).

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Appellants next assert that the jury’s compensatory and punitive

damages awards were excessive. Appellants argue that the award of

compensatory damages “was so contrary to the weight of the evidence that a

new trial on all claims, a new trial on damages, or judgment in favor of the

Appellants” is required. Brief of Appellants, at 38. Appellants further claim

that the punitive damages award does not meet the criteria of advancing the

dual goals of punishment and deterrence and is “disproportionate to the

character of the tortious act, to the harm suffered by the plaintiff, and to the

wealth of the defendant.” Id. at 39, quoting Sprague v. Walter, 656 A.2d

890, 927 (Pa. Super. 1995). Appellants assert that Appellee did not establish

that its property was valueless or the cost to repair the property and, thus,

neither damages award is “rooted in any evidence submitted at trial.” Id.

Appellants are entitled to no relief.

Our standard of review for the denial of a request for new trial based

upon an excessive verdict is as follows:

The grant or refusal of a new trial because of the excessiveness of

the verdict is within the discretion of the trial court. This [C]ourt

will not find a verdict excessive unless it is so grossly excessive as

to shock our sense of justice. We begin with the premise that

large verdicts are not necessarily excessive verdicts. Each case is

unique and dependent on its own special circumstances and a

court should apply only those factors which it finds to be relevant

in determining whether or not the verdict is excessive.

Graham v. Campo, 990 A.2d 9, 17 (Pa. Super. 2010).

The determination of damages lies initially within the discretion of

the jury, which weighs the evidence and assesses the credibility

of the witnesses. See Simmons v. Mullen, [] 331 A.2d 892 ([Pa.

Super.] 1974). The decision to grant or to deny a new trial on the

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ground of excessiveness lies, in turn, within the discretion of the

trial court. We will not disturb the decision absent a clear abuse

of that discretion. See Skoda v. West Penn Power Co., [] 191

A.2d 822 ([Pa.] 1963); Ammon v. Arnold Pontiac-GMC, Inc.,

[] 522 A.2d 647 ([Pa. Super.] 1987); Powell v. City of

Philadelphia, [] 457 A.2d 1307 ([Pa. Super.] 1983). A verdict

will stand unless its excessiveness shocks our sense of justice.

Glomb by Salopek v. Glomb, 530 A.2d 1362, 1368 (Pa. Super. 1987).

Here, the trial court did not abuse its discretion in concluding that the

jury’s award of compensatory damages was not excessive. As noted above,

Byelich presented competent testimony regarding the value of Appellee’s land

and the inability to develop it due to the conditions created by Appellants’

refusal to redirect the water draining off their property onto Appellee’s land.

See N.T. Trial, 5/31/23, at 160-61 (Byelich testifying engineer informed him

there is nothing he can do to develop the property until water issue mitigated);

id. at 123 (Byelich testifying he told Eler he had estimate to construct berm

to mitigate water drainage; Eler responded “You can’t do that. You’ll flood my

property.”). Under these circumstances, the jury’s compensatory award of

$300,000.00 does not shock the conscience and, therefore, Appellants are

entitled to no relief.

Appellants’ claim regarding the excessiveness of the jury’s punitive

damages award is waived for failure to develop their argument. “[I]t is well

settled that an appellant bears the burden of sufficiently developing his

arguments to facilitate appellate review.” Commonwealth v Armolt, 294

A.3d 364, 376 (Pa. 2023). “[O]ur rules of appellate procedure are explicit

that the argument contained within a brief must contain ‘such discussion and

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citation of authorities as are deemed pertinent.’” Wirth v. Commonwealth,

95 A.3d 822, 837 (Pa. 2014), quoting Pa.R.A.P. 2119(a). “Where an appellate

brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion capable

of review, that claim is waived. It is not the obligation of an appellate court

to formulate [an] appellant’s arguments for him.” Banfield v. Cortés, 110

A.3d 155, 168 n.11 (Pa. 2015) (citation omitted). See Samuel-Bassett v.

Kia Motors America, Inc., 34 A.3d 1, 29 (Pa. 2011) (litigant's “failure to

develop the claim in any meaningful fashion . . . so as to allow for appellate

review [is] a sufficient basis in itself to reject the argument”) (citation

omitted).

In their brief, Appellants set forth the standard for the award of punitive

damages, followed by a conclusory statement that “[i]n this case, the punitive

damages awarded by the jury do not meet these criteria[.]” Brief of

Appellants, at 39. Appellants make no argument, with reference to the record,

as to why the award does not meet the criteria for punitive damages, nor do

they cite any non-boilerplate case law in support of their claim. Accordingly,

we find this claim to be waived.5

____________________________________________

5 Even if this claim were not waived, we would find it to be meritless.

Under

Pennsylvania law the “size of a punitive damages award must be reasonably

related to the State’s interest in punishing and deterring the particular

behavior of the defendant and not the product of arbitrariness or unfettered

discretion.” Hollock v. Erie Ins. Exch., 842 A.2d 409, 419 (Pa. Super.

2004), quoting Shiner v. Moriarty, 706 A.2d 1228, 1241 (Pa. Super. 1998).

(Footnote Continued Next Page)

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Next, Appellants claim that the trial court erred by precluding them from

presenting relevant evidence at trial. Specifically, Appellants claim that the

court “did not permit [them] to fully present evidence on [Appellee’s]

contribution to the water pooling in the [d]rainage [a]rea” on Appellee’s

property. Brief of Appellants, at 50. Appellants assert that the trial court only

allowed them to present “approximately half of one of the videos recorded by

Eler during a rainstorm that showed considerable amounts of water flowing

down from [Appellee’s] property toward [Appellants’] property[] and the

____________________________________________

In accordance with this limitation, “[t]he standard under which punitive

damages are measured in Pennsylvania requires analysis of the following

factors: (1) the character of the act; (2) the nature and extent of the harm;

and (3) the wealth of the defendant.” Pioneer Comm. Funding Corp. v.

Am. Fin. Mortg. Corp., 797 A.2d 269, 290 (Pa. Super. 2002), rev’d on other

grounds, 855 A.2d 818 (Pa. 2004).

Here, the evidence adduced at trial demonstrated that Appellants were aware

that water from its property was being artificially directed onto Appellee’s

property, rendering it unsuitable for development, yet refused to cooperate

with Appellee in attempting to remedy the situation. See, e.g., N.T. Trial,

5/31/23, at 39 (“[Plaintiff’s Counsel]: [D]id you ever . . . think about directing

those pipes in a different direction? [Eler]: Yes. Q: Well, did you do it? A:

No.”); id. at 119 (“[Plaintiff’s Counsel]: Has [Eler] provided you any

information whatsoever by which you could then proceed to try to figure out

what the problem is or the scope of the problem? [Byelich]: No, not at all.

[] I have no control over the situation at all.”). See Hutchison ex rel.

Hutchison v. Luddy, 870 A.2d 766, 771-72 (Pa. 2005) (“reckless

indifference to the rights of others and conscious action in deliberate disregard

of them . . . may provide the necessary state of mind to justify punitive

damages”) (citation omitted). Accordingly, the trial court did not abuse its

discretion in concluding that the jury’s award of $200,000.00 in punitive

damages bears a reasonable relationship to the State’s interest in punishing

and deterring the particular behavior of Appellants and was not the product of

arbitrariness or unfettered discretion.

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[d]rainage [a]rea” on Appellee’s property. Id. Appellants claim that “Eler

testified that the video marked D-12 showed water running from [Appellee’s]

property into the [d]rainage [a]rea, and the trial court interrupted Eler’s

testimony, questioned why the Appellants were showing video taken of

[Appellee’s] property, and directed the Appellants to move to the next video.”

Id. Appellants further allege that the trial court did not permit Eler to testify

that, in his opinion, renovations performed on Appellants’ property “lessened

the flow of water” from Appellants’ property. Id. Appellants are entitled to

no relief.

First, Appellants’ assertion that the trial court only permitted them to

show one half of one of the videos recorded by Eler is not supported by the

record. Appellants refer to the following testimony to support their claim:

BY [DEFENSE COUNSEL]:

Q: I am going to show you a video that has been marked as D-

12.

THE COURT: When was it taken?

THE WITNESS: This was taken before the extension was

run on this—

THE COURT: Sir, that's not a date. Give me a date.

THE WITNESS: I believe it was June of 2021.

BY [DEFENSE COUNSEL]:

Q: And who took the video?

A: Me.

Q: Can you just describe what we’re seeing?

A: Okay, so it’s raining—

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THE COURT: Go back, please, so you can describe.

THE WITNESS: Yeah. It’s raining. I am now on the hill

between the plaintiff’s office and mine. He sits uphill of me there

and his downspout drain is right here. There’s not a lot of water

coming through at all on that downspout drain.

BY [DEFENSE COUNSEL]:

Q: So these are views of the plaintiff’s property?

A: Plaintiff’s property, right.

Q: Why was this video taken?

A: Well, I thought it was important to show what the property

looks like. You can see that the downspouts—

THE COURT: Whose property—

THE WITNESS: Yes. You can see the downspouts aren’t

working.

THE COURT: That’s not at issue in this case. You have no

claim against him; correct?

THE WITNESS: Correct. However—okay. Yes. I’m with

you.

THE COURT: Excuse me. Counsel, what’s the relevancy of

what we’re seeing here? There’s no claim against the [plaintiff]

and it’s the [plaintiff’s] property.

[DEFENSE COUNSEL]: That [] the defendants have

maintained that water is also coming from the [plaintiff’s]

property onto the [] area in question, the basin.

THE COURT: Let’s deal with where the water is coming out

of the hose, or not coming out of the hose, from the defendants’

property.

[PLAINTIFF’S COUNSEL]: Thank you, Your Honor, and I

would object for another reason. These videos are of my client’s

property, not the defendants’ property, so he’s—

THE COURT: And that’s what I’m asking. What’s the

relevance?

[PLAINTIFF’S COUNSEL]: Right. Thank you, Your Honor.

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[DEFENSE COUNSEL]: That there’s also water coming down

from the defendants’ property—

[PLAINTIFF’S COUNSEL]: Objection.

[DEFENSE COUNSEL]: —Plaintiff’s property onto [] the

area.

THE COURT: Excuse me.

[DEFENSE COUNSEL]: —that’s pooling and it’s the plaintiff’s

contention that all of the water is—

THE COURT: Okay. Be quick, please.

[DEFENSE COUNSEL]: Yes, Your Honor.

[PLAINTIFF’S COUNSEL]: Your Honor, but—let me object.

There’s—that’s not what that video shows. It doesn’t show the—

THE COURT: Counsel, you have your interpretation of what

it shows. He has his interpretation of what it shows.

[PLAINTIFF’S COUNSEL]: Okay. Thank you, Your Honor.

THE COURT: Next video.

[DEFENSE COUNSEL]: Yes, Your Honor.

N.T. Trial, 6/1/23, at 114-17.

Here, there is simply nothing in the above-quoted portion of the trial

transcript to substantiate Appellants’ claim that the trial court only permitted

Appellants to show “approximately one half” of Exhibit D-12. 6 Moreover, when

____________________________________________

6 We note that the videos taken by Eler are not included in the certified record

on appeal. It is Appellants’ obligation to ensure that the certified record

“contains all of the materials necessary for the reviewing court to perform its

duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super.

2006) (citation omitted). As Appellants failed to ensure that the video

evidence was transmitted to this Court, we could find this claim waived. See

Commonwealth v. Whitaker, 878 A.2d 914, 922–23 (Pa. Super. 2005)

(failure to ensure complete certified record may render issue raised on appeal

waived). However, because we are able to dispose of this claim without

viewing the video in question, we decline to find waiver on this basis.

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the trial court directed counsel to move on to the next video, counsel did not

object or attempt to make further inquiries about Exhibit D-12; she simply

moved on to another video. See id. at 117 (“THE COURT: Next video.

[DEFENSE COUNSEL]: Yes, Your Honor.”). This failure to lodge a timely

objection results in the waiver of this claim on appeal. Thorson, supra.

Moreover, an objection to excluded testimony may be waived if, as happened

here, counsel “acquiesces in the exclusion without obtaining a ruling by the

court.” In re Lokuta, 11 A.3d 427, 445 (Pa. 2011) (citation omitted). For

these reasons, Appellants’ claim is waived.

Appellants next claim that the trial court erred in failing to sustain their

objection to Appellee’s counsel’s “unfounded,” “scandalous,” “inflammatory,”

and “irresponsible” statements regarding Eler during his closing argument and

in failing to give a curative instruction, as the statements were improper,

discussed facts not in evidence, and prejudiced Appellants. Brief of

Appellants, at 52-53. Appellants specifically object to statements by

Appellee’s counsel referring to Eler as a “frat boy,” claiming Eler never heard

the word “no” from his mother or his wife, suggesting Eler thinks he is “above

the law” and knew his renovations caused the water issues, and suggesting

“that his family members (and dog) likely do not support him in this lawsuit

and are probably afraid of him.” Id. at 52. This claim is waived.

The absence of a contemporaneous objection below constitutes a waiver

of an appellant’s claim respecting statements made during closing argument.

See Commonwealth v. Powell, 956 A.2d 406 (Pa. 2008), citing Pa.R.A.P.

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302(a). Although counsel need not object during the closing argument, the

claim is waived if an objection is not raised immediately thereafter, with

“sufficient specificity to give the court the opportunity to correct the prejudicial

effect of the improper argument.” Commonwealth v. Rose, 960 A.2d 149,

154 (Pa. Super. 2008), citing Commonwealth v. Adkins, 364 A.2d 287, 291

(Pa. 1976); Commonwealth v. MacBride, 587 A.2d 792, 795–96 (Pa.

Super. 1991).

Here, Appellants’ counsel did not object to Appellee’s counsel’s

statements during or immediately after the conclusion of the closing

argument. Rather, counsel waited until long after the jury had been dismissed

and the court had nearly concluded its charging conference. See N.T. Trial,

6/1/23, at 230. Even then, Appellants’ counsel only objected to a purported

statement by Appellee’s counsel that Eler was “oppressive.” Id.; see id.

(court and Appellee’s counsel agreeing that Appellee’s counsel had actually

used word “arrogant”). The trial court then raised the prospect of a cautionary

instruction—which Appellee’s counsel agreed to—but Appellants’ counsel failed

to respond. See id. at 232. When the court asked counsel if there was

“anything else,” Appellants’ counsel responded “No, Your Honor.” Id.

Accordingly, this claim is waived.

Finally, Appellants assert that the trial court erred as a matter of law

and abused its discretion in granting Appellee’s motion to mold the verdict

where Pennsylvania law did not support the entry of delay damages. This

claim is waived.

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Here, while Appellants’ statement of questions involved frames this

issue in terms of a challenge to the award of delay damages under Pa.R.C.P.

238, the argument presented on the claim challenges the jury’s verdict as

excessive. While Appellants pay lip-service to the standard of review of an

award of delay damages and cites the portion of Rule 238 referring to the

exclusion of delay damages for periods of delay caused by plaintiffs, see Brief

of Appellants, at 19, Appellants make no effort to develop any argument

related to the calculation of delay damages. Rather, the remainder of

Appellants’ argument on this claim consists of an application of six factors for

analyzing whether a jury verdict in a personal injury matter is excessive, as

set forth in Glomb v. Glomb, 530 A.2d 1362 (Pa. Super. 1987). “When issues

are not properly raised and developed in briefs, . . . a Court will not consider

the merits thereof.” Branch Banking & Tr. v. Gesiorski, 904 A.2d 939,

942–43 (Pa. Super. 2006). See Pa.R.A.P. 2119(a) (“The argument shall be

divided into as many parts as there are questions to be argued; and shall have

at the head of each part . . . the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”);

Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining

to review claim where brief contains limited explanation and development of

argument). As such, this claim is waived.

Judgment affirmed. Application for Relief denied.

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Date: 4/3/2025

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