Woods at Wayne Homeowners v. Gambone

• Decision Date: 24 February 2006
• Parties: THE WOODS AT WAYNE HOMEOWNERS ASSOCIATION v. GAMBONE BROTHERS CONSTRUCTION COMPANY, INC., Gambone Brothers Development Company and Township of Upper Merion, Appeal of Gambone Brothers Construction Company, Inc. and Gambone Brothers Development Company.
• Court: Pennsylvania Commonwealth Court

893 A.2d 196

THE WOODS AT WAYNE HOMEOWNERS ASSOCIATION v. GAMBONE BROTHERS CONSTRUCTION COMPANY, INC., Gambone Brothers Development Company and Township of Upper Merion, Appeal of Gambone Brothers Construction Company, Inc. and Gambone Brothers Development Company.

Commonwealth Court of Pennsylvania.

Argued November 15, 2005.

Decided February 24, 2006.

COPYRIGHT MATERIAL OMITTED

Arthur L. Jenkins, Jr., Norristown, for appellants.

James J. Greenfield, Radnor, for appellee, the Woods at Wayne Homeowners Association.

Alan E. Boroff, Blue Bell, for appellee, Township of Upper Merion.

Before PELLEGRINI, Judge, and LEAVITT, Judge, and KELLEY, Senior Judge.

OPINION BY Judge LEAVITT.

Gambone Brothers Construction Company, Inc. and Gambone Brothers Development Company (collectively Gambone) appeal a preliminary injunction issued by the Court of Common Pleas of Montgomery County (trial court) upon request of the Township of Upper Merion. The mandatory preliminary injunction directs Gambone to stabilize retaining walls that it constructed at a townhouse development known as The Woods at Wayne. The trial court found that one of the retaining walls, positioned within a few feet of adjacent townhouses, was in imminent danger of collapse, which could cause structural damage to the homes and serious bodily injury to their occupants. In this appeal, we consider whether these circumstances warranted the issuance of a preliminary objection.

BACKGROUND

In November 1996, the Township approved a subdivision and land development plan proposed by Gambone for the construction of a planned residential community known as The Woods at Wayne. The development consists of clusters of adjoining townhouses on approximately 12 acres of land. Because the land is sloping, Gambone excavated into the slopes to make space adequate for the rows of townhouses. The cuts into the hill were then secured by retaining walls. At the south side of the development, the cut was made into a steep slope that required the construction of a retaining wall 12 to 14 feet in height and 500 feet in length. A postage stamp backyard separates this tall retaining wall from the rear wall of the townhouses. At the top of the retaining wall, a chainlink fence was placed, presumably to protect persons from falling into the rear yards of the townhouses.

A homeowners association was established by Gambone and approved by the Township;¹ the terms governing the Association are set forth in a Declaration. In July 1999, when construction was complete and 60% of the homes had been sold, the association was accepted by the homeowners. Thereafter, Gambone transferred ownership of all common areas in the development, including the retaining walls, to The Woods at Wayne Homeowners Association (Association).

The Association surveyed the residents of The Woods to collect information about construction issues. Several homeowners responded that the tall retaining wall on the south side of the development was bulging. The Association then held several meetings with Gambone and the Township to discuss the matter. According to Brian Noll, President of the Association, Gambone's representative assured those in attendance that "whatever was inappropriate would be corrected." Notes of Testimony, February 11, 2005, at 26 (N.T. ___); Reproduced Record at 97a (R.R. ___). On December 27, 1999, the Association sent a letter to Gambone identifying all the construction problems identified by the owners and demanding their correction. Gambone made no repairs.

In March 2000, a section of the tall retaining wall in the south part of the development collapsed, causing an avalanche of dirt and blocks that filled the rear deck of the adjacent townhouse and crashed into the home of John Swift. The force was enough to leave a trail of shattered glass twelve feet into Swift's townhouse. Gambone rebuilt the collapsed section of the retaining wall; repaired the damage to the interior of Swift's home; and replaced Swift's deck and air conditioning equipment.

In spite of this rebuilding, the remainder of the wall continued to bulge and to lean noticeably. Other, much shorter, retaining walls located at various places in the development also began to exhibit problems. Schoor DePalma, an engineering firm retained by the Township, investigated the retaining walls at The Woods. It offered the following analysis and recommendation:

We are of the opinion that the wall is no longer in safe condition and is beyond repair. It is also our opinion that the wall will collapse in the near future, especially after heavy rainfalls when additional water pressure may build up behind the wall.... For the sake of public safety, we recommend that the wall be demolished and a new reinforced earth wall be constructed in its place immediately.

Alternatively, if Gambone wishes to evaluate the potential remedial options, the wall should be immediately secured utilizing some form of bracing or other means.

Technical Memorandum, May 6, 2004, at 5; R.R. 13a (emphasis in original).

On June 1, 2004, the Township initiated a suit in equity against Gambone along with a petition for a preliminary injunction to require Gambone to take immediate steps to brace the entire length of the wall that had collapsed. The Township also sought a permanent injunction to require Gambone to construct a new retaining wall that conformed to the Township's specifications.

In response, on June 18, 2004, Gambone suggested a remedy to the Township, called the "Gambone Plan," that would secure the retaining wall with a system of "soil anchors." The system would consist of 12-foot long cables that would connect a 4-foot square steel plate on the face of the wall to an anchor in the soil behind the wall. Gambone believed that 120 to 200 soil anchors would secure the wall and provide a permanent solution. However, the Township's engineer, Schoor DePalma, identified a number of flaws in the proposal, believing that longer cables and larger steel plates would be needed.

In addition to intervening in the Township's claim for injunctive relief, the Association filed its own suit in equity against Gambone in September 2004. It alleged, inter alia, that

Gambone negligently and/or recklessly designed and built the retaining walls, and/or failed to follow design drawings that Gambone filed with the Township, in such a manner that the walls were defective, were likely to fail, and were incapable of serving the function for which they were purportedly designed and approved.

Association Complaint at ¶ 7; R.R. 44a. The Association requested that Gambone be ordered to redesign and reconstruct all of the retaining walls in The Woods. It did not believe that the Gambone Plan would provide an appropriate permanent solution, for the reasons identified by Schoor DePalma. In addition, the anchors and steel plates would not be aesthetically pleasing. The Association named the Township as a defendant, believing it to be an indispensable party.²

Gambone filed two sets of preliminary objections, seeking dismissal of both complaints. It asserted that the parties were bound by a provision in the Declaration that required all construction disputes to be submitted to alternative dispute resolution.³ Gambone acknowledged that the Declaration allowed an exception to arbitration for injunctive relief but argued that the complaints did not seek "true injunctive relief." R.R. 56a. Gambone also contended that the Association had no right to pursue a cause of action "of any nature whatsoever having to do with a retaining wall...." R.R. 28a, 57a. The trial court has not yet disposed of Gambone's preliminary objections.

The trial court consolidated the complaints of the Township and the Association.⁴ On February 11, 2005, the trial court held a hearing on the consolidated petitions for a mandatory preliminary injunction. John Swift, whose home was damaged in 2000 by the collapsed wall, described the incident. Swift also produced photographs showing that the large retaining wall was still bulging and wavering in spite of Gambone's repairs after the collapse. Swift explained that the movement of the wall had moved the fence at the top of the wall, causing its post caps to pop off. The movement was most evident at the point where the wall is at its tallest, i.e., 14 feet.

Brian Noll, the Association's president, testified that at various times since 1999, Gambone's representative had pledged to repair all of the retaining walls in The Woods. Although Gambone had rebuilt the portion of the large retaining wall that collapsed in March 2000, no other repairs had yet been initiated.

The Association also presented the testimony of Sameh Majid, a licensed structural engineer experienced in wall construction. Majid reviewed the reports of Schoor DePalma and found it significant that the geogrid, the plastic lacing that was placed into the hillside behind the retaining wall for support, was missing or ripped in a number of locations. In addition, the soil material behind the wall was trapping water and adding pressure to the wall. Majid examined the large retaining wall on two occasions, and between the two visits he could see "movement" and "deformation" in the wall. N.T. 47; R.R. 118a. Majid recommended replacing the wall.

Charles Davis, a general superintendent for Gambone, testified that Schoor DePalma had approved installation of soil anchors to support the large retaining wall. According to Davis, Gambone was ready, willing and able to install the soil anchor system.

On February 16, 2005, the trial court issued an order finding that "Gambone negligently and/or recklessly designed and built the retaining walls." Memorandum and Order, February 16, 2005, at 2. The trial court determined, based upon the hearing testimony and photographic evidence, "that an imminent threat exists to the health, safety and welfare of [The Woods]." Id. at 3. The trial court ordered Gambone to brace...