Opinion
J. A21021/16 No. 3778 EDA 2015
09-22-2016
ROBERT AND MARYANN BERGER, Appellants v. PECO ENERGY COMPANY, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 28, 2016
In the Court of Common Pleas of Chester County
Civil Division at No.: 2014-04507 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellants Robert and MaryAnn Berger, plaintiffs below, appeal from the Judgment entered January 28, 2016, after the entry of a compulsory nonsuit in favor of Appellee PECO Energy Company following a bench trial. We affirm.
The underlying facts, as summarized in the trial court's Pa.R.A.P. 1925(a) Opinion filed on January 15, 2016, are as follows:
This trespass action was filed by Appellants, seeking relief for PECO's purported interference with their rights, as property owners, to use and enjoy their property as they wish and their ability to compel a trespasser to remove unwanted chattels from above, on or below the property. [Appellants sought a permanent mandatory injunction.]
Appellants reside at 46 Blenheim Hill Lane in Malvern, Pennsylvania, a residence which they purchased in 2004. Blenheim Hill Lane is characterized as a flag lot with a long driveway serving two houses. In 2013, PECO entered
Appellants' property for purposes of installing a new underground electric cable located on the east side of the driveway. The old cable located on the west side of the drive was abandoned due to electric service reliability issues.
PECO's placement of the underground electric facilities is governed by an Easement entered into by PECO's predecessor, Philadelphia Energy Company, and the original property owners, the Feehrers. The Easement granted PECO:
The uninterrupted right, liberty and privilege to install, operate, maintain, inspect, renew, repair and remove underground electric facilities required to supply electric service to the premises and those adjacent thereto.
Such rights were limited by three express conditions:
The aforesaid rights are granted under and subject to the following conditions:
(1) The location of the electric facilities to be installed hereunder shall be shown and delineated on plans prepared by Company copies of which will be in the possession of the parties hereto having first been approved by them.
(2) The undersigned agree that the initial exercise of any of the powers and rights herein granted shall not be construed as fixing or limiting Company's rights and privileges hereunder.
(3) The undersigned agree that no building or permanent structure shall be erected over the underground facilities.
Trial Court Opinion, filed 1/15/16, at 1-3.
The Easement was executed on behalf of the Feehrers, the original landowners, and Philadelphia Electric Company on June 23, 1978.
During a bench trial on August 26, 2015, the trial court granted PECO's oral Motion for Compulsory Nonsuit. Appellants filed a Post-Trial Motion, which the trial court denied on December 2, 2015.
See Pa.R.C.P. No. 230.1 (entitled "Compulsory Nonsuit at Trial").
Appellants filed a Notice of Appeal on December 18, 2015, prior to the entry of final judgment on January 28, 2016. Both Appellants and the trial court complied with Pa.R.A.P. 1925.
Although Appellants filed their Notice of Appeal prematurely, we will treat it as properly filed. See Pa.R.A.P. 905 ("A [N]otice of [A]ppeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof."). We further note that the entry of final judgment is the proper appealable Order following the entry of a compulsory nonsuit. See Rachlin v. Edmison , 813 A.2d 862, 864 n.1 (Pa. Super. 2002) (en banc) (final judgment is proper appealable order following the entry of nonsuit).
Appellants present three issues for our review:
1. Did the Court commit legal error in finding that the Easement permitted PECO to install the New Cable anywhere it wanted on the Bergers' property?Appellants' Brief at 4.
2. Did the Court commit legal error in concluding that any trespass committed by PECO would have been a permanent trespass, as opposed to a continuing trespass?
3. Did the Court commit legal error in requiring the Bergers to show actual harm in order to show a trespass and to show the insufficiency of money damages [to] obtain a mandatory injunction?
Appellants first challenge the trial court's interpretation of PECO's easement. We review the trial court's interpretation of the language in an easement as a question of law; as such, our scope of review is plenary. PARC Holdings , Inc. v. Killian , 785 A.2d 106, 112 (Pa. Super. 2001). "[T]he same rules of construction that apply to contracts are applicable in the construction of easements[.]" McNaughton Properties , LP v. Barr , 981 A.2d 222, 227 (Pa. Super. 2009) (citation omitted).
As with any contract the rights conferred by the grant of an express easement must be ascertained solely from the language of the deed, provided that the deed language is unambiguous. When the language is ambiguous, however, a court may resort to evidence of extrinsic circumstances as an aid to interpretation. When the purposes of an express easement are not specifically stated, the court must ascertain the objectively manifested intention of the parties in light of the circumstances in existence at the time of conveyance. Whether an ambiguity exists is a question of law subject to plenary review. However, resolution of conflicting parol evidence relevant to what the parties intended by an ambiguous provision is for the trier of fact.PARC Holdings , supra at 112 (citations omitted).
The Honorable Jeffrey R. Sommer, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellants' challenge to his interpretation of the easement. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 5-8, 14 (concluding that it properly granted compulsory nonsuit because: "(1) the Easement was unambiguous, allowing PECO to place the new electrical cable on the Appellants' property without first submitting written plans and obtaining permission from Appellants, and (2) the Appellants did not show the existence of any injury or damages.").
Appellants next challenge the trial court's legal conclusion that any trespass by PECO would constitute a permanent rather than a continuing trespass, which would alter the availability of equitable remedies to Appellants. Appellants argue that if PECO's trespass is properly classified as a continuing trespass, they would be entitled to a mandatory injunction forcing PECO to remove the offending cable without a showing of harm; if the trespass is classified as a permanent trespass, as the trial court concluded, Appellants would be entitled to seek money damages after demonstrating harm.
"In reviewing a question of law, our standard of review is de novo and our scope is plenary." WellSpan Health v. Bayliss , 869 A.2d 990, 996 (Pa. Super. 2005). The Second Restatement of Torts explains the difference between a continuing and a permanent trespass as follows:
A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land. Thus, if one, without a privilege to do so, enters land of which another is in possession and destroys or removes a structure standing upon the land, or digs a well or makes some other excavation, or removes earth or some other substance from the land, the fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a continuing trespass. Since his conduct has once for all produced a permanent injury to the land, the possessor's right is to full redress in a single action for the trespass, and a subsequent transferee of the land, as such, acquires no cause of action for the alteration of the condition of the land.Restatement (Second) of Torts § 162 cmt. e (1965).
After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 8-11 (concluding PECO did not commit a trespass because PECO's entry was privileged pursuant to its rights under the easement; moreover, any trespass would have constituted a permanent trespass because PECO excavated land to place the cable and permanently changed the condition of the land).
In their third issue, Appellants aver that the trial court erred as a matter of law "in requiring the [Appellants] to show actual harm in order to show a trespass and to show the insufficiency of money damages [to] obtain a mandatory injunction[.]" Appellants' Brief at 4.
"Appellate review of the grant or denial of a permanent injunction is limited to determining whether the trial court committed an error of law." WellSpan Health , supra at 995-96.
A mandatory injunction is an extraordinary remedy that should be granted only in the "rarest of cases." Summit Towne Centre , Inc. v. Shoe Show , 828 A.2d 995, 1005 n.13 (Pa. 2003). Appellate courts exercise greater scrutiny over mandatory injunctions, which should be issued more sparingly than injunctions which are merely prohibitory in nature. Id. "Thus, in reviewing the grant of a mandatory injunction, we have insisted that a clear right to relief in the plaintiff be established." Overland Enterprise , Inc. v. Gladstone Partners , LP , 950 A.2d 1015, 1020 (Pa. Super. 2008) (citation omitted).
After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 11-14 (concluding Appellants failed to satisfy any of the prerequisites for a permanent mandatory injunction, and failed to demonstrate any damages, injury, or "urgent necessity" for a mandatory injunction).
The parties are instructed to attach a copy of the trial court's January 15, 2016 Opinion to all future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/22/2016
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