Berwick Twp. v. R.F. O'Brien

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berwick Township :
:
v. : No. 461 C.D. 2016
: Argued: September 15, 2016
Robert F. O'Brien, Linda A. O'Brien, :
Robert F. O'Brien, Jr., and Lydia A. :
O'Brien, :
Appellants :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: October 12, 2016
In this appeal, Landowners1 ask whether the Court of Common Pleas
of Adams County2 (trial court) erred in granting summary judgment in favor of
Berwick Township (Township) in the Township’s suit seeking declaratory and
injunctive relief with regard to its right to access a right-of-way it previously
obtained for sewer lines that run across Landowners’ property pursuant to a Right-
of-Way Agreement (Agreement) between the parties. Landowners raise several
issues. Upon review, we affirm.
1
Landowners are Robert F. O’Brien, Linda A. O’Brien, Robert F. O’Brien, Jr. and Lydia
A. O’Brien.
2
The Honorable Michael A. George, P.J., presided.
I. Background
The trial court set forth the following background to this matter. At
the center of this dispute is the interpretation of the Agreement entered into by
Landowners and the Township.
Landowners own real property in the Township. The Township owns
and operates a public sanitary sewer system serving its residents. The system is
operated pursuant to a permit issued by the Pennsylvania Department of
Environmental Protection (DEP).
In March 2001, the Township and Landowners entered into the
Agreement, which permits the construction, operation, inspection, maintenance
and replacement of sewage lines and sewage facilities across a portion of
Landowners’ property. Landowners received compensation of $11,022 in
exchange for the grant of the right-of-way.
Pursuant to the terms of the Agreement, on October 22, 2013, the
Township provided Landowners a six-month notice of its intent to clear
obstructions within the right-of-way boundaries. On March 13, 2014, the
Township gave Landowners additional notice that it wished to schedule a date to
clear brush from the right-of-way. This correspondence was met by
correspondence from Landowners’ counsel threatening the initiation of criminal
prosecution and a civil suit in the event the Township’s employees entered the
right-of-way and damaged any trees, vegetation or other property within the right-
of-way. Additionally, Landowners erected a fence across the width of the right-of-
way at a location where it was accessible from a public roadway.
2
Thereafter, the Township filed suit seeking declaratory and injunctive
relief as to its rights under the Agreement. Specifically, the Township sought an
order: (1) enjoining Landowners from interfering with the Township’s exercise of
its rights under the Agreement; (2) prohibiting Landowners from denying the
Township access to Landowners’ property for the purpose of maintaining and
inspecting the line; (3) entering declaratory judgment to permit the Township to
clear brush and overgrowth (including trees) in accordance with the terms of the
Agreement; and, (4) directing Landowners to remove a section of the fence they
erected in order to allow the Township to access the right-of-way. Photographs
attached to the Township’s complaint depict significant brush and overgrowth as
well as small trees within the Township’s right-of-way. Reproduced Record (R.R.)
at 24a-29a.
Landowners filed an answer and new matter. The Township then
filed a reply to the new matter. The parties conducted discovery.
The trial court subsequently held a pre-trial conference and scheduled
a non-jury trial. A few months before the scheduled trial date, the Township filed
a motion for summary judgment, and Landowners filed an answer. After briefing,
the trial court entered an order granting, in part, the Township’s motion for
summary judgment.
In particular, the trial court: (1) permanently enjoined Landowners
from interfering with the exercise of the property rights authorized to the Township
by the Agreement; (2) enjoined Landowners from taking any action that prohibits
3
the Township access to the property for purposes of inspecting and maintaining
sewage lines within the easement; and, (3) declared the easement and right-of-way
permitted the Township to remove brush and overgrowth, including trees, as
necessary to permit the Township access for the purposes set forth in the
Agreement. Thus, the trial court indicated the area within the easement could be
clear cut to the extent necessary consistent with customary industry practices to
permit access by Township officials and equipment to perform reasonable
inspection.
However, the trial court denied the Township’s request to order
removal of the fence because the terms of the Agreement permitted the erection of
pasture fences within the right-of-way. See Agreement at ¶3(D); R.R. at 15a. The
trial court explained that pursuant to paragraph 2 of the Agreement, the Township
could temporarily remove the fence for the purposes set forth in the Agreement,
provided that the fence was restored to the extent reasonably possible under the
circumstances. The trial court also noted the Agreement permitted the removal of
trees within the right-of-way for the purposes of exercising the rights granted by
the Agreement.
Finally, the trial court refrained from issuing any additional ruling on
the ground that advisory opinions based on assertions of hypothetical events were
improper. Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 937 A.2d 385 (Pa.
2007). The trial court also explained, if the Township’s actions exceeded the rights
set forth in the Agreement, Landowners could pursue actions for monetary
damages. However, the trial court reiterated that Landowners were enjoined from
4
taking any action prohibiting or interfering with the Township’s right to access the
property including, the right to remove overgrowth, shrubbery and trees within the
right-of-way for the purposes of exercising its rights under the Agreement.
Landowners appealed to the Superior Court, which transferred the
appeal to this Court on the ground that this appeal involved the Township’s action
for enforcement of a right-of-way and easement, and this Court possessed greater
expertise regarding the issues raised.
The trial court directed Landowners to file a concise statement of the
errors on appeal pursuant to Pa. R.A.P. 1925(b), which they did. The trial court
then issued an opinion pursuant to Pa. R.A.P. 1925(a) in which it stated that
Landowners raised a number of alleged errors, some of which could be addressed
summarily. For example, Landowners claimed the trial court erred in granting
summary judgment because a factual dispute precluded the entry of summary
judgment. In support, the trial court stated, Landowners set forth an unsupported,
broad boilerplate claim that “genuine issues of material fact” existed. As the trial
court was unable to meaningfully address such a broad claim, it deemed it waived.
See Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002).
In addition to the broad claim of the existence of a material factual
dispute, the trial court explained, Landowners also cited specific examples of such
a dispute. They argued there was a genuine issue of material fact as to whether
“routine mowing” was permitted under the Agreement and whether “video
inspection” of the sewage line minimized damages in accordance with the
5
Agreement. Tr. Ct., Slip Op., 11/23/15 at 3. Regardless of how Landowners
framed this issue, the trial court responded, the issue before it was one of contract
interpretation and did not involve development of an extensive factual background.
Specifically, the trial court stated, whether routine mowing was
permitted under the Agreement did not involve a factual issue as to the meaning of
“routine mowing,” but rather an issue of contract interpretation regarding whether
the Agreement permitted routine mowing. Id. Similarly, the trial court stated,
there was not great factual dispute as to whether “video inspection” was less
intrusive or feasible than other methods of line inspection. Id. Rather, the issue
was whether a right to inspect existed, and, if so, whether that right was limited by
the terms of the Agreement. The trial court explained that the latter concerns were
clearly issues of contract interpretation and did not give rise to a factual dispute.
The trial court noted Landowners also claimed the injunction was not
narrowly tailored to protect against the harm alleged. The trial court responded
this claim mischaracterized both the issue before it and the nature of the relief
granted. To that end, the Township’s complaint sought to enforce its clearly
defined rights under the Agreement and to enjoin Landowners from interfering
with those rights. The trial court’s order enjoined Landowners from interfering
with the exercise of the Township’s rights under the Agreement, including the right
to enter the property to inspect and maintain sewer lines within the easement. The
trial court stated it could not understand Landowners’ exact complaint as it related
to this issue as the trial court’s order declared the terms of the Agreement to be
enforceable and enjoined Landowners from interfering with those terms.
6
Moreover, to provide general guidance, the trial court indicated the language of the
Agreement would be interpreted under customary understanding in the industry.
In addition, the trial court explained, Landowners also asserted the
trial court erred in ruling on this action because it did not involve an “actual
controversy.” The trial court stated this issue was meritless. Unquestionably, the
Declaratory Judgments Act3 (DJA) requires a party to show an actual controversy
exists. Cnty. Comm’rs. Assn. of Pa. v. Dinges, 935 A.2d 926 (Pa. Cmwlth. 2007)
(en banc). In the context of a declaratory judgment action, an actual controversy is
defined as a dispute indicating imminent and inevitable litigation and a direct,
substantial, and present interest. Id.Here, the trial court stated, the Township’s notice to Landowners of
its intent to exercise its legal rights under the Agreement prompted a threatening
response of potential criminal prosecution and civil litigation. Additionally, a
physical barrier was erected within the right-of-way boundaries. As a result, the
trial court stated, Township officials were faced with the Hobson’s choice of
abandoning their rights under the Agreement or exercising those rights at the risk
of being subject to criminal prosecution. This gave the Township a direct and
substantial interest in a determination of its rights so as to avoid future imminent
and inevitable litigation.
3
42 Pa. C.S. §§7531-7541.
7
The trial court also noted that Landowners argued the trial court erred
in denying their request for a jury trial. The trial court deemed this claim moot
because it entered summary judgment.
Finally, the trial court stated, Landowners claimed the trial court’s
order effectively changed or nullified material terms of the Agreement. The trial
court responded that this claim was based on a distorted interpretation of its order.
To that end, after reviewing the Agreement, the trial court interpreted it to grant the
Township access to Landowners’ property for the purpose of inspecting and
maintaining sewage lines within the easement. It further interpreted the
Agreement to permit the Township to remove brush and overgrowth, including
trees, as necessary for the Township to exercise its access for purpose of inspection
and maintenance. These rights were clearly granted to the Township in paragraphs
2(D) and (F) of the Agreement. In order to give the parties some guidance so as to
avoid unnecessary future litigation, the trial court stated, its order explained that
customary industry practices would aid in determining whether the Township
utilized “reasonable means” in exercising its rights under the Agreement. Contrary
to Landowners’ claim, its order did not reform or add terms to the Agreement. Tr.
Ct., Slip Op. at 6.
Additionally, contrary to Landowners’ claims, the trial court stated, its
order did not limit Landowners to a single remedy of a suit for monetary damages
in the event the Township exceeded its rights under the Agreement. To the
contrary, a reading of the order as a whole indicated an acknowledgment that
Landowners had the ability to seek monetary damages for injury caused by the
8
Township’s actions should such injury contrary to the Agreement ever occur. The
trial court explained this claim was an example of Landowners’ effort to have the
trial court specifically identify every acceptable and unacceptable action under the
Agreement in the context of what may possibly happen. The trial court responded
that it properly refused Landowners’ invitation to do so. See Phila. Enm’t & Dev.
Partners.
This matter is now before us for disposition.
II. Issues
On appeal,4 Landowners assert the trial court erred in: (1) not limiting
the scope of its order in this declaratory judgment action to ruling on the “actual
controversies” regarding routine mowing and video inspections that existed
between the parties; (2) granting the Township summary judgment where genuine
issues of material fact existed as to whether routine mowing was permitted, and
whether the Township’s proposed video inspection was necessary and minimized
damages in accordance with the Agreement; (3) granting broad injunctive relief
with respect to future actions to be taken by the Township where genuine issues of
material fact existed as to whether the prerequisites for an injunction were
4
Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Kuniskas v.
Commonwealth, 977 A.2d 602 (Pa. Cmwlth. 2009). When reviewing a trial court’s grant of
summary judgment, we must examine the record in a light most favorable to the non-moving
party, accepting as true all well-pled facts and reasonable inferences to be drawn from those
facts. Id.In addition, when reviewing the grant or denial of a permanent injunction, an appellate
court’s review is limited to determining whether the trial court committed an error of law.
Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002).
9
established, and without any factual record to establish whether unknown future
actions were permitted by the Agreement; and, (4) issuing an order that reformed
the Agreement to allow clear cutting based on industry standards (as opposed to
being required to show trees interfere with a permitted use and choosing a method
that minimizes damages to trees and other property), and to limit Landowners’
permitted remedy to suing for monetary damages.
III. Discussion
A. Scope of Trial Court’s Order; “Actual Controversies”
1. Contentions
Landowners first argue the trial court erred by not limiting the scope
of its order to ruling on the “actual controversies” regarding routine mowing and
video inspections that exist between the parties. They assert the trial court did not
specifically address the “actual controversies” regarding whether the Agreement
allows for the routine mowing of trees and vegetation, and whether a video
inspection is necessary or is a method that minimizes damage to property. Instead,
Landowners contend, the trial court granted the Township’s request for broad
injunctive relief as to any future actions taken by the Township in the right-of-way.
For future events that have not occurred, Landowners maintain, there is obviously
no factual record or evidence on which to base and justify such broad injunctive
relief within the framework of a declaratory judgment action. Therefore,
Landowners argue, declaratory relief should be narrowly tailored to address the
actual controversies shown on the record.
Prior to the Township filing its complaint, Landowners assert, the
record shows an actual controversy existed between the parties only as to whether
10
the Township could engage in “routine mowing” of trees and vegetation as a
permitted purpose within the right-of-way. Appellants’ Br. at 17. In that regard,
the parties exchanged nine letters before the Township filed suit; these letters
contained no reference by the Township of its intent to perform a video inspection
or clean the sewer lines. See Aff. of Robert F. O’Brien, Sr., at ¶¶2-13; Reproduced
Record (R.R.) at 191a-99a, 202a-213a; Dep. of Robert Foltz, Jr., 3/11/15, at 37-38,
114; R.R. 289a-90a, 366a, Ex. 2; R.R. at 382a-393a; see also Br. of Defs. in Opp.
to Mot. for Summ. J. of Pl. at 5-9, 17-18; R.R. at 411a-15a, 423a-24a.
Landowners contend the Township then raised for the first time in its
complaint a new purpose to justify clearing trees and vegetation from the right-of-
way: a video inspection of the sewer system. See Foltz Dep. at 37-38, 114; R.R. at
289a-290a, 366a, Ex. 2; R.R. at 382a-393a. In light of the deposition testimony of
Robert Foltz (a Township Supervisor and Sewer Plant Manager), and other record
evidence discussed below, Landowners assert, there is also an actual controversy
as to whether a video inspection or a less destructive method to minimize damage
to trees and vegetation is required under the Agreement.
Landowners maintain the trial court’s opinion acknowledged their
position that there are issues regarding whether the routine mowing and video
inspection proposed by the Township are permitted under the Agreement. See Tr.
Ct., Slip Op., at 3-4. However, the trial court claimed these issues could be
resolved simply by contract interpretation and “[did] not create a factual dispute.”
Id. at 4. Landowners contend the trial court’s position was that the only issues to
be decided were whether there was a valid Agreement and whether its terms
11
provided the Township with a right to inspect and maintain the sewer system.
They argue the validity and enforceability of the Agreement was not an actual
controversy at issue. To that end, they never claimed the Agreement was invalid.
Rather, they relied on the Agreement’s validity and asked that the Township
comply with it.
Contrary to the trial court’s position, Landowners assert, the two
actual controversies create factual disputes for trial and cannot be resolved by
summary judgment. Landowners argue the Township has the burden to show
routine mowing and video inspection are permitted under the Agreement. They
contend the trial court did not provide any analysis or factual basis in its order to
support a finding that the Township should be allowed to routinely mow the right-
of-way, perform a video inspection, or be granted a broad injunction. Instead, the
trial court simply issued an order that stated the Agreement’s terms are valid and
enforceable, and Landowners cannot interfere with the Township’s exercise of any
of its rights under the Agreement.
As to the actual controversy involving routine mowing, Landowners
maintain, having a right to inspect and maintain the sewer does not mean the
Township established the Agreement allows it to routinely mow down trees and
vegetation. They contend that allowing “routine mowing” of the right-of-way
would also nullify Paragraph 4(D) of the Agreement because no trees could ever
grow naturally. Likewise, Landowners argue, the Township did not establish it
complied with paragraph 2(F) of the Agreement’s requirement that it choose a
method that minimizes damage to trees and property. Instead, the Township chose
12
the most destructive method of inspection under the circumstances: a video
inspection with clear cutting of the right-of-way.
Landowners maintain the trial court’s failure to address the actual
controversies, and the issuance of its broad injunction, allow the Township to
choose methods that maximize destruction of trees and other vegetation. Allowing
Landowners to sue for money damages after clear cutting will not restore mature
trees.
2. Analysis
a. Generally
Petitions for declaratory judgments are governed by the provisions of
the DJA. The granting of a petition for declaratory judgment under the DJA is a
matter lying within the sound discretion of a court of original jurisdiction. Gmerek
v. State Ethics Comm’n, 751 A.2d 1241 (Pa. Cmwlth. 2000), aff’d, 807 A.2d 812(Pa. 2002). The DJA is remedial. 42 Pa. C.S. §7541(a). Its purpose is to afford
relief from uncertainty and insecurity with respect to rights, status, and other legal
relations, and it is to be liberally construed and administered. Id. A petitioner
whose rights, status, or other legal relations are affected by a written contract may
have determined any question of construction arising under that contract and obtain
a declaration of rights, status, or other legal relations. 42 Pa. C.S. §7533; Pa.
Chiropractic Fed’n v. Foster, 583 A.2d 844 (Pa. Cmwlth. 1990). Under the DJA,
“[a] contract may be construed either before or after there has been a breach
thereof.” 42 Pa. C.S. §7534.
13
Declaratory judgment is not appropriate to determine rights in
anticipation of events that may never occur. Silo v. Ridge, 728 A.2d 394 (Pa.
Cmwlth. 1999). It is appropriate, however, where there is imminent and inevitable
litigation. Id. Thus, an action brought under the DJA must allege an interest by a
party seeking relief that is direct, substantial and present and must show the
existence of an actual controversy related to the invasion or a threatened invasion
of one’s legal rights. Bd. of Comm’rs of Bedford Cnty. v. Ling, 92 A.3d 112 (Pa.
Cmwlth. 2014).
Further, “the subject matter of the dispute giving rise to a request for
declaratory relief need not have erupted into a full-fledged battle ....” Ronald H.
Clark, Inc. v. Twp. of Hamilton, 562 A.2d 965, 968 (Pa. Cmwlth. 1989).
[O]ur Supreme Court has said:
‘If differences between the parties concerned, as to their legal
rights, have reached the state of antagonistic claims, which are
being actively pressed on one side and opposed on the other, an
actual controversy appears; where, however, the claims of the
several parties in interest, while not having reached the active
stage, are nevertheless present, and indicative of threatened
litigation in the immediate future, which seems unavoidable,
the ripening seeds of a controversy appear.’
Pa. Game Comm’n v. Seneca Res. Co., 84 A.3d 1098, 1103-04 (Pa. Cmwlth. 2014)
(quoting Mid-Centre Cnty. Auth. v. Boggs Twp., 384 A.2d 1008, 1011 (Pa.
Cmwlth. 1978)) (quoting Lakeland Joint Sch. Dist. Auth. v. Scott Twp. Sch. Dist.,
200 A.2d 748, 751 (Pa. 1964)).
14
b. Alleged Overbreadth
Here, Landowners assert the trial court’s grant of declaratory relief
was overly broad. More particularly, they argue the trial court erred in failing to
limit the scope of its decision to what they deem the two actual controversies in
this case: the Township’s right to perform routine mowing of the right-of-way and
to conduct a video inspection of the sewer lines. As the trial court aptly
recognized, “[t]his claim mischaracterizes both the issue before the [trial] [c]ourt
and the nature of the relief granted.” Tr. Ct., Slip Op., at 4.
The Township gave Landowners the required six-month notice of its
intent to clear obstructions within the right-of-way. What happened next is
important to our analysis. In response to the six-month notice, Landowners
responded with correspondence threatening to contact law enforcement (and
copying the Pennsylvania State Police) as well as threatening to initiate a civil suit
if Township officials entered the right-of-way and damaged trees or vegetation.
R.R. at 62a-63a. They also erected a fence across the width of the right-of-way at
a location where it was accessible from a public roadway.
In our view, Landowners’ threats and acts materially propelled the
dispute to a new level. The threats and acts became the focus of the current
litigation. For this reason, we discern no error in the trial court’s refusal to limit its
focus to the pre-threat disputes, as urged by Landowners.
In response to Landowners’ threats and acts, the Township filed suit
seeking an order, which, in relevant part: (1) “[p]reliminarily and permanently
enjoin[ed] [Landowners] from interfering in any way with the exercise of the
15
property rights authorized by the [Agreement]”; (2) “[p]rohibit[ed] [Landowners]
from denying [the Township] access to the property for the purpose of inspecting
and maintaining the line”; and, (3) “[e]nter[ed] judgment declaring the
[Agreement] permits [the Township] to clear brush and overgrowth (including
trees) in accordance with the terms thereof.” R.R. at 11a.
In turn, the trial court’s order granting summary judgment in favor of
the Township states, as pertinent:
1. [Landowners] are permanently enjoined from interfering
with the exercise of the property rights authorized to [the
Township] by the [Agreement];
2. [Landowners] are enjoined from taking any action which
prohibits [the Township] access to the property for
purposes of inspecting and maintaining sewage lines
within the easement; [and,]
3. The easement and right-of-way at issue permits the
[Township] to remove brush and overgrowth including
trees as necessary to permit [the Township] access for
purposes set forth in the [Agreement]. By way of further
clarification, the area within the easement may be clear
cut to the extent necessary consistent with customary
industry practices in order to permit access by Township
officials and equipment to perform reasonable
inspection[.]
****
It is noted the [Agreement] permits the removal of any trees
within the right-of-way for the purposes of exercise of the
rights granted by the [Agreement].
The Court refrains from any additional ruling at this time
as advisory opinions based on assertions of hypothetical events
are improper. If the [Township’s] actions exceed [the] rights
set forth in the [Agreement], [Landowners] may pursue actions
16
for monetary damages. However … [Landowners] are enjoined
from taking any action prohibiting or interfering with [the
Township’s] right to access the property including the right to
remove overgrowth, shrubbery, and trees within the right-of-
way for purposes of exercising their rights under the
[A]greement. …
Tr. Ct. Order, 8/31/15, at 1-2 (citation omitted).
Thus, based on our review of the relief sought by the Township, and
granted by the trial court, there is no indication that the trial court’s order was
overly broad here. To the contrary, the trial court’s order was arguably sufficient
to establish a defense to criminal trespass prosecution, see 18 Pa. C.S. §3503(c),
and to establish a privilege to enter upon the right-of-way, which would be relevant
to a prospective civil action. Further, the trial court’s order set forth a resolution of
the new fence problem: the fence may be temporarily removed to allow access to
the right-of-way, provided it is restored to the extent reasonably possible under the
circumstances. Tr. Ct. Order at 2. The trial court refrained from additional rulings.
Id.
c. Interpretation of Express Easement
As the trial court recognized, this case centers on an interpretation of
the Agreement, which sets forth the parties’ rights with regard to the right-of-way.
A right-of-way is an easement, which may be created by an express grant.
Amerikohl Mining Co., Inc. v. Peoples Natural Gas, 860 A.2d 547 (Pa. Super.
2004) (citing Merrill v. Mfrs. Light & Heat Co., 185 A.2d 573, 575 (Pa. 1962)).
The same rules of construction that apply to contracts apply in the construction of
easement grants. Zettlemoyer v. Transcon. Gas Pipeline Corp., 657 A.2d 920 (Pa.
17
1995). The law on the interpretation of easements is clear. “To ascertain the
nature of the easement created by an express grant we determine the intention of
the parties ascertained from the language of the instrument. Such intention is
determined by a fair interpretation and construction of the grant and may be shown
by the words employed construed with reference to the attending circumstances
known to the parties at the time the grant was made.” Amerikohl Mining, 860
A.2d at 550 (quoting Merrill, 185 A.2d at 575).
Ambiguous words are construed in favor of the grantee. Amerikohl
Mining. “Where a deed or agreement or reservation therein is obscure or
ambiguous, the intention of the parties is to be ascertained in each instance not
only from the language of the entire written instrument in question, but also from a
consideration of the subject matter and of the surrounding circumstances.” Id.
(quoting Merrill, 185 A.2d at 576). Further,
[w]here the grant of an easement is unrestricted, the grantee is
given such rights as are necessary for the reasonable and proper
enjoyment of the thing granted. Taylor v. Heffner, [58 A.2d
450, 453 (Pa. 1948)]; Hammond v. Hammond, [101 A. 855,
856 (Pa. 1917)]. … Thus, our cases tell us that when the grant
of an easement is ambiguous we must determine if the grantee’s
asserted use is a reasonable and necessary use in relation to the
original purpose of the grant and within the intention of the
original parties to the grant.
For example, in Lease [v. Doll, 403 A.2d 558 (Pa.
1979)], the deed expressly granted the grantee a right-of-way
over the grantor’s land to reach the grantee’s property from a
public roadway. The successor grantee prepared the right-of-
way for vehicular use. The successor grantor constructed a
fence which limited the right-of-way to a footpath. When the
successor grantee sued, the successor grantor argued that the
original owner of the property did not own an automobile and,
18
accordingly, the right of way was limited to pedestrian use. We
noted the ‘general legal principle that an express easement
granted in general terms must be construed to include any
reasonable use ....’ Lease, [403 A.2d at 563] (citations
omitted). We found that the unambiguous language of the grant
established its purpose as providing an outlet to the main road.
[Id. at 562]. We ultimately held that the successor grantee’s
contemplated use of the easement for vehicular travel
‘reasonably fulfill[s] [the easement’s] specific purpose, namely
that the easement is to serve as an outlet from [the grantee’s]
land to the public road ….” [Id. at 564]. …
Zettlemoyer, 657 A.2d at 924 (emphasis added); see also Taylor, 58 A.2d at 453
(quoting Hammond, 101 A. at 856) (“A grant [of an easement] is to be construed in
favor of the grantee, and include whatever is reasonably necessary to an enjoyment
of the thing granted[.]”). As a result, “[w]here the terms of an express grant of an
easement are general, ambiguous, and not defined by reference to the
circumstances known to the parties at the time of the grant, the easement is to be
construed in favor of the grantee, and the easement may be used in any manner that
is reasonable.” Columbia Gas Transmission Corp. v. Savage, 863 F. Supp. 198,
201 (M.D. Pa. 1994) (citing Zettlemoyer) (emphasis added); see also Lease.
Here, the Agreement contains the following relevant provisions:
1. DEFINITIONS: The term ‘sewer lines’ when used in this
instrument shall refer to a sanitary sewer pipe, conduit,
manhole, drain, marker, service connection and other
appurtenances to be constructed by the Township, meeting the
specifications of the Township Engineer, as approved by the
Township, for use in the aforesaid sewer system within the
sanitary sewer right-of-way on Owner’s property, as shown on
the right-of-way plan prepared by William F. Hill & Associates,
Inc., marked Exhibit ‘A’, attached hereto and made a part
hereof, and as further limited and clarified by the description in
Paragraph 2 of this Agreement.
19
2. GRANT TO TOWNSHIP:
A. The Owner hereby gives and grants to the Township
an easement and right-of-way across a strip of Owner’s
aforesaid land which is described as follows:
1. The easement and right-of-way shall be no more
than 20 feet wide with the final location to be ten (10)
feet on either side of the center of the sewer pipe and
with a lesser total width as shown for sewer lines running
parallel beside or on Bair Road, as shown on Exhibit ‘A’
and further limited and clarified by the additional terms
as set forth in Paragraph 2.
2. The easement and right-of-way shall be no more
than 3,674 feet in total length …
****
D. The easement, right-of-way, rights, and privileges
herein granted shall be used to install, construct,
reconstruct, replace, remove, enlarge, inspect, operate,
repair, make connections with, and maintain such sewer
lines, their accessories and appurtenances, as the
Township may from time to time require, consisting of
underground pipes, conduits, manholes, drains, markers,
mains, service connections, and other appurtenances
upon, over, and under the aforesaid easement and right-
of-way.
****
F. To have and to hold the same perpetually to the
Township and its successors and assigns, together with
the right and privilege at any and all times to enter the
said easement and right-of-way, or any part thereof,
provided that the Township gives to the Owner
reasonable advance notification of the nature of any
intended work on the easement and right-of-way and the
expected duration of such work, for the purpose of
installing, constructing, reconstructing, replacing,
removing, enlarging, inspecting, operating, repairing,
maintaining, and/or making connections with the sewer
20
lines or other appropriate means of access to the sewer
lines; all upon the condition that the Township will at all
times during the construction, reconstruction,
replacement, removal, repair or maintenance of the sewer
lines cause every reasonable means to be used to protect
from injury or damage all property, including lawns,
trees, shrubbery, fences, buildings, walls, roads, water
courses, natural features, or any existing improvement
thereto, and will at all times after doing any work in
connection with the construction, reconstruction,
replacement, removal, repair or maintenance of the sewer
lines, cause the said premises to be restored to the
condition in which the same were found before such
work was undertaken, including replacement and/or
repair of damaged property (except trees in the wooded
portions of Owner’s property within the permanent right-
of-way) to the extent reasonably possible under the
circumstances and consistent with the rights and
privileges herein granted, and for any destroyed or
damaged property or other loss which cannot or is not
replaced or restored to the same condition to the extent
reasonably possible under the circumstances and
consistent with the rights and privileges herein granted,
pay reasonable compensation therefore.
****
3. COVENANTS OF THE OWNER:
****
D. The Owner does hereby covenant that no structure or
other obstruction shall be erected or permitted on the
aforesaid strip of land, with the express exception that
pasture fences may be erected and are permitted on the
Township’s right-of-way, so long as no post is placed
directly above the sewer line itself.
****
4. COVENANTS OF THE TOWNSHIP:
****
21
A. In addition to any other compensation or covenants by
the Township referenced in this Agreement, and as part
of the material consideration for Owner’s grant of the
aforesaid easement and right-of-way, the Township
covenants and agrees to allow Owner to retain a
contractor to remove any and all trees of value within the
Township’s right-of-way under the following parameters:
****
3. For any … construction or any actions by the
Township [after initial construction of the sewer
system], its successors and assigns employees
and/or contractors on the permanent right-of-way
which may damage any trees, unless there is an
emergency requiring immediate access, the
Township covenants and agrees to provide Owner
with six (6) [months’] notice of such construction
or other actions to allow the Owner to retain a
contractor to remove any and all trees of value
within the Township’s right-of-way. In the event
of a non-emergency, if the Township fails to give
such notice, then the Township covenants and
agrees to pay the Owner the fair market value
difference between the value of the said trees
harvested by a contractor while still standing and
in their condition at the time of entry into the right-
of-way versus their value to a contractor after
being cut down or otherwise damaged.
****
B. In addition to any other compensation or covenants by
the Township referenced in this Agreement, as part of the
material consideration for Owner’s grant of the aforesaid
easement and right-of-way, Township covenants and
agrees, with respect to any and all trees not covered
under paragraph 4.A., to cut, or have its contractor cut,
any other trees felled or damaged during any initial or
future construction or other actions performed on the
easement, into eight (8) foot lengths, unless Owner
agrees to a longer length.
22
C. In addition to any other compensation or covenants by
the Township referenced in this Agreement, as part of the
material consideration for Owner’s grant of the aforesaid
easement and right-of-way, Township covenants and
agrees to remove or have its contractor remove any
brush, stumps, or other debris remaining after any
construction, now or in the future, [within] a reasonable
time period to not exceed six (6) months after completion
of said construction, unless Owner agrees or desires to
allow the said brush, stumps, or debris to remain on the
property.
D. Township covenants and agrees that Owner retains,
reserves and shall continue to enjoy the use of the surface
of the aforesaid strip of land on which the easement
applies for any and all purposes which do not interfere
with and prevent the use by Township of the within
easement, including the right to build and use the surface
of the herein granted easement for roads or driveways
(paved or unpaved), walks (paved or unpaved), gardens,
lawns, fences, pastures, farm fields, planting, or parking
areas (paved or unpaved). It is also agreed to by the
parties that trees will be permitted to grow naturally
within the right-of-way provided that they do not
interfere with the Township’s use thereof in which case
the provisions of Paragraphs 4.A., 4.B., and 4.C. apply.
Agreement at ¶¶1, 2(A)(1), (2), (D), (F), 3(D), 4(A)(3), (B)-(D); R.R. at 12a-14a,
15a-17a (emphasis added).
Construing these provisions, the trial court enjoined Landowners from
interfering with the rights granted to the Township under the Agreement and from
taking any action that prohibited the Township from accessing the property for
purposes of inspecting and maintaining its sewer lines. The trial court also
declared that the easement and right-of-way allowed the Township to remove
brush and overgrowth, including trees, as necessary to permit the Township to
23
access the property for the purposes set forth in the Agreement. By way of further
clarification, the trial court stated, the area within the easement could be clear cut
to the extent necessary consistent with customary industry practices in order to
permit access by Township officials and equipment to perform reasonable
inspection. The trial court also noted the Agreement expressly permitted the
removal of any trees within the right-of-way for the purposes of exercise of the
rights granted by the Agreement. Based on our review of the above-quoted
provisions of the Agreement, no error is apparent in the trial court’s interpretation.
To that end, pursuant to the express language of the Agreement, the
Township has the right to access Landowners’ property in order to inspect and
maintain its sewer lines. Agreement at ¶2(D); R.R. at 13a-14a. Additionally, the
Agreement clearly contemplates that the Township’s right of access may entail the
clearing of vegetation and trees within the right-of-way in order to inspect and
maintain the sewer lines. Agreement at ¶¶2(F), 3(D), 4(A), (B)-(D); R.R. at 14a-
17a. Thus, the Agreement grants Landowners the right to use the land above the
easement for any and all purposes which do not interfere with and prevent the use
by Township of the easement. Agreement at ¶4(D); R.R. at 17a. The parties also
specifically agreed that trees would be permitted to grow naturally within the right-
of-way provided that they do not interfere with the Township’s use of the right-of-
way. Agreement at ¶4(D); R.R. at 17a.
In addition, because the Agreement does not limit the Township’s
right to remove brush and overgrowth in order to access its sewer lines, and sets
forth no restriction on the Township’s method of inspection, it is appropriate to
24
consider whether the Township’s proffered use is within the intent of the parties to
the grant and “reasonable and necessary” to the purpose of the grant. Zettlemoyer.
Clearly, the removal of brush and overgrowth in order to allow the Township to
access its sewer lines for purposes of inspection and maintenance is reasonable and
necessary to the purpose of the grant and within the intent of the parties to the
grant. To that end, the purpose of the easement is to allow for, among other things,
the inspection and maintenance of Township sewer lines; thus, removal of brush
and overgrowth in order to allow access is reasonably necessary to enjoyment of
the sewer line easement. As such, construing the terms of the easement in favor of
the Township as grantee, Amerikohl Mining, no error is apparent in the trial
court’s order interpreting the Agreement to allow the Township to remove brush
and overgrowth, including trees, as is necessary to permit the Township access for
the purposes set forth in the Agreement.
d. Landowners’ Remedies
Of further import, Landowners are not without recourse for injury or
damage to property, including trees, caused by the Township in its performance of
work within the right-of-way. The Agreement expressly provides Landowners
remedies both before and after the Township performs work in the right-of-way.
In particular, as to Landowners’ remedy prior to the Township’s
performance of work within the right-of-way, the Agreement states,
[f]or any future construction or any actions by the Township
[after initial construction of the sewer system], its successors
and assigns employees and/or contractors on the permanent
right-of-way which may damage any trees, unless there is an
emergency requiring immediate access, the Township
25
covenants and agrees to provide [Landowners] with six (6)
[months’] notice of such construction or other actions to allow
the Owner to retain a contractor to remove any and all trees of
value within the Township’s right-of-way. In the event of a
non-emergency, if the Township fails to give such notice, then
the Township covenants and agrees to pay the Owner the fair
market value difference between the value of the said trees
harvested by a contractor while still standing and in their
condition at the time of entry into the right-of-way versus their
value to a contractor after being cut down or otherwise
damaged.
Agreement at ¶4(A)(3); R.R. at 16a (emphasis added).
Thus, the Township must provide Landowners six months’ notice
prior to its performance of work within the right-of-way, which it did here. R.R. at
22a. This six-month period affords Landowners an opportunity to examine their
options with regard to the existence of trees within the right-of-way that may
interfere with the Township’s performance of work prior to the Township
performing any work. This includes Landowners’ ability to retain an expert to
evaluate what measures are necessary regarding tree removal, to preserve evidence
by video or photograph, or to harvest any trees of value within the right-of-way.
Should the opinions of Landowners’ expert differ from those of the Township,
there is no preclusion to Landowners seeking declaratory or injunctive relief before
work takes place.
In addition, Landowners have a remedy after the Township performs
work within the right-of-way. The Agreement does not require the Township to
replace or restore trees “in the wooded portions of [Landowners’] property within
the permanent right-of-way;” however, as to other conditions of the right-of-way
26
or nearby, the Agreement states, “for any destroyed or damaged property or other
loss which cannot or is not replaced or restored to the same condition to the extent
reasonably possible under the circumstances and consistent with the rights and
privileges herein granted, [the Township will] pay reasonable compensation
therefore.” Agreement at ¶2(F); R.R. at 14a (emphasis added). Also,
[w]ith respect to any damages or loss caused by the Township
and/or [its], servants, contractors, and /or employees to lands or
property outside of the right-of-way granted herein,
[Landowners] [do] not waive any rights under applicable law,
and the Township agrees to provide [Landowners] with the
right to reasonable restoration or compensation to non-easement
damages as is provided for damages within the easement as is
set forth in Paragraph 2.F. above.
Agreement at ¶3(A); R.R. at 15a (emphasis added).
Thus, in addition to other common law remedies, the Agreement
expressly grants Landowners the right to reasonable compensation for any
destroyed or damaged property or other loss within the right-of-way that cannot be
replaced or restored to the same condition to the extent reasonably possible under
the circumstances (as well as reasonable compensation for damage to property
outside of the right-of-way).
In short, the Agreement expressly provides Landowners with
remedies for damage to property, including trees, caused by the Township both
before and after the Township performs its work.
27
B. Alleged Factual Disputes
1. Contentions
Landowners next assert the trial court erred in granting summary
judgment because genuine issues of material fact exist as to: (1) whether the
Agreement permits the Township to perform routine mowing in the right-of-way;
or, (2) whether clear cutting of the right-of-way for a video inspection minimizes
damages in accordance with paragraph 2(F) of the Agreement. Landowners argue
allowing routine mowing would nullify provisions of the Agreement that provide
for natural growth of trees. They maintain a genuine issue of material fact also
exists as to whether clear cutting of the right-of-way to perform a video inspection
is a method that minimizes damages where: (1) all prior inspections in the
Township showed no evidence of tree roots in the sewer system; (2) the known
causes of water intrusion in other Township sewer lines are not present on
Landowners’ property; and, (3) a less intrusive flow meter system would show
what specific sections of the sewer lines, if any, have water intrusion and need
further inspection.
2. Analysis
Contrary to Landowners’ assertions, genuine issues of material fact do
not exist regarding the Township’s right to perform routine mowing and video
inspection. Rather, as explained above, in its suit here, the Township sought an
order: enjoining Landowners from interfering with the Township’s exercise of its
property rights under the Agreement; prohibiting Landowners from denying the
Township access to the property for the purposes of inspecting and maintaining its
sewer lines; and, declaring that the Agreement permits the Township to clear brush
and overgrowth, including trees, in accordance with the terms of the Agreement.
28
In turn, the trial court issued an order: permanently enjoining
Landowners from interfering with the exercise of the property rights authorized to
the Township by the Agreement; enjoining Landowners from taking any action
that prohibits the Township access to the property for purposes of inspecting and
maintaining its sewer lines within the easement; and declaring that the Township
was permitted to remove brush and overgrowth including trees as necessary to
permit the Township access for the purposes set forth in the Agreement. As set
forth above, the trial court’s resolution of this issue centered on its interpretation of
the Agreement, and the trial court properly construed the terms of the Agreement
in granting the relief sought by the Township. Thus, as the trial court explained:
[Landowners] argue that there is a genuine issue of material fact
as to whether ‘routine mowing’ is permitted under the
[Agreement] and whether ‘video inspection’ of the sewage line
minimizes damages in accordance with the parties’ agreement.
Regardless of how [Landowners] paint this issue, the issue
before the Court is one of contract interpretation and does not
involve development of extensive factual background. More
specifically, whether routine mowing is permitted under the
[Agreement] does not involve a factual question as to the
meaning of ‘routine mowing’ but rather requires an
interpretation of whether the [Agreement] permits [the
Township] the right to perform routine mowing. Similarly,
there is not great factual dispute as to whether ‘video
inspection’ is less intrusive or feasible than other methods of
line inspection. Rather, the issue centers upon whether a right
to inspect exists, and, if so, whether that right is limited by the
terms of the agreement. The latter concerns are clearly issues
of contract interpretation and do not create a factual dispute.
Tr. Ct., Slip Op., at 3-4 (emphasis added). We discern no error in the trial court’s
reasoning.
29
Consequently, although Landowners argue issues of material fact exist
regarding the Township’s right to perform routine mowing and conduct a video
inspection of its sewer lines, as the trial court observed, the central issue here is the
proper construction of the Agreement, which is a question of law. Amerikohl
Mining. Where the grant of an easement is unrestricted, the grantee is given such
rights as are necessary for the reasonable and proper enjoyment of the thing
granted. Zettlemoyer; Amerikohl Mining. Also, where the terms of an express
grant of an easement are general, the easement is to be construed in favor of the
grantee, and it may be used in any manner that is reasonable. Columbia Gas
Transmission. Applying these principles, the trial court here properly interpreted
the Agreement so as to grant the Township the right to access and inspect and
maintain its sewer lines free from the limitations that Landowners now seek to
impose where the express language of the Agreement does not contain the
limitations now posited by Landowners.
C. Grant of Injunctive Relief
1. Contentions
Landowners also contend the trial court erred by granting broad
declaratory and injunctive relief by way of summary judgment as to whatever
future actions the Township chooses to take on Landowners’ property. In this
regard, Landowners argue, the trial court’s broad injunction goes beyond the actual
controversies at issue in this declaratory judgment suit, routine mowing and video
inspection. They assert there are also genuine issues of material fact as to whether
the Township established the prerequisites for an injunction. Landowners contend
the Township’s complaint and request for injunction was based on a claim that
Landowners prevented the Township from exercising its rights by building a
30
pasture fence and sending a letter indicating Landowners would pursue legal action
if the Township proceeded with a course of conduct that violated the Agreement.
However, Landowners assert, pasture fences are expressly permitted under the
Agreement, and sending a letter indicating Landowners would pursue legal action
if the Township proceeded with a course of conduct that violated the Agreement
did not constitute a violation of the Agreement.
Landowners further maintain the Township did not satisfy the
prerequisites for the grant of injunctive relief. More particularly, they argue there
was not a showing of immediate and irreparable harm, or that greater injury would
result by not granting an injunction. An injunction was also not necessary to
restore the parties to the status quo as Landowners did not breach the Agreement
and committed no manifest wrong. Landowners argue the Township also failed to
comply with all of its duties and covenants under the Agreement in order to show it
was entitled to injunctive relief and, therefore, the Township’s right to injunctive
relief was not clear. For these reasons, they assert, genuine issues of material fact
exist as to whether the Township showed a clear right to an injunction.
2. Analysis
As explained above, this case centers on an interpretation of the
Agreement, which presents a question of law, see Amerikohl Mining, rather than a
dispute of material fact.
31
In addition, while Landowners address the elements required to obtain
preliminary injunctive relief,5 the trial court here “permanently enjoined
[Landowners] from interfering with the exercise of the property rights authorized
to [the Township] by the [Agreement][.]” Tr. Ct. Order at 1 (emphasis added).
Additionally, the trial court “enjoined [Landowners] from taking any action which
prohibits [the Township] access to the property for purposes of inspecting and
maintaining sewage lines within the easement[.]” Id. Thus, the trial court granted
permanent injunctive relief in favor of the Township.
In order to establish a claim for a permanent injunction, a party must
establish its clear right to relief. Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002).
However, unlike a claim for a preliminary injunction, the party need not establish
either irreparable harm or immediate relief and a court “may issue a final
injunction if such relief is necessary to prevent a legal wrong for which there is no
adequate redress at law.” Id. at 663. A party must also show greater injury will
result from refusing rather than granting the relief requested. Unified Sportsmen of
Pa. v. Pa. Game Comm’n, 950 A.2d 1120 (Pa. Cmwlth. 2008).
An injunction is appropriate to restrain interference with an easement.
Big Bass Lake Cmty. Ass’n v. Warren, 950 A.2d 1137 (Pa. Cmwlth. 2008).
5
Thus, to obtain a preliminary injunction, a petitioner must establish: (1) relief is
necessary to prevent immediate and irreparable harm that cannot be adequately compensated by
money damages; (2) greater injury will occur from refusing to grant the injunction than from
granting it; (3) the injunction will restore the parties to their status quo as it existed before the
alleged wrongful conduct; (4) the petitioner is likely to prevail on the merits; (5) the injunction is
reasonably suited to abate the offending activity; and, (6) the public interest will not be harmed if
the injunction is granted. Brayman Constr. Corp. v. Dep’t of Transp., 13 A.3d 925 (Pa. 2011).
32
Here, as set forth above, the Agreement clearly grants the Township a
right of access to the easement to inspect and maintain its sanitary sewer lines.
The right to gain access in order to inspect and maintain the sanitary sewer lines,
functions which the Township is legally obligated to perform consistent with its
National Pollutant Discharge Elimination System (NPDES) permit issued by DEP,
is necessary to prevent a legal wrong for which there is no adequate redress at law.
To that end, the Township’s ability to exercise its contractual right to access the
right-of-way in order to inspect its sewer lines is critical in light of the fact that the
Township can only discover an issue with the sewer lines (such as an obstruction
or crack in the sewer lines) through inspection. For the protection of the
community, it is highly preferable for the Township to do so before such an issue
arises. Further, greater injury would result from refusing rather than granting an
injunction that prevents Landowners from interfering with the Township’s exercise
of its rights under the Agreement and enjoins Landowners from taking actions that
prohibit the Township from accessing the property in order to inspect and maintain
its sanitary sewer lines within the easement, obligations which the Township is
legally obligated to perform.
In addition, as the trial court explained:
[Landowners] also claim the injunction was not narrowly
tailored to protect against the harm alleged. This claim
mischaracterizes both the issue before the Court and the nature
of the relief granted. [The Township’s] [c]omplaint sought to
enforce [its] clearly defined rights under the [Agreement] and
enjoin [Landowners] from interfering with the same. The
Court’s Order enjoined [Landowners] from interfering with the
exercise of [the Township’s] rights under the [Agreement]
which includes [the Township’s] right to enter the property for
purposes of inspecting and maintaining sewage lines within the
33
easement. This Court is at a loss to understand [Landowners’]
exact complaint as it relates to this issue as this Court’s Order
declared the terms of the [Agreement] to be enforceable and
enjoined [Landowners] from interfering with the same. …
Tr. Ct., Slip Op., at 4 (footnote omitted). No error is apparent in this regard.
To that end, the trial court’s grant of injunctive relief here simply
prohibits Landowners from interfering with the Township’s rights under the
Agreement and restrains Landowners from taking any actions that prohibit the
Township from accessing the easement in order to inspect and maintain its sewer
lines. Thus, contrary to Landowners’ assertions, the trial court did not grant broad
injunctive relief as to whatever future actions the Township chooses to take on
Landowners’ property.
D. Alleged Reformation of the Agreement
1. Contentions
In addition, Landowners argue, the trial court erred in that its order
reformed the Agreement to allow clear cutting based on industry standards. Prior
to this reformation, Landowners contend the Township could not destroy any trees
unless it first showed such trees interfered with a permitted use as set forth in
paragraph 4(D) of the Agreement, and second, showed it chose a method that
minimized damages to trees and other property as set forth in paragraph 2(F) of the
Agreement. Landowners further maintain that, contrary to the trial court’s
statement, its reference to “customary industry standards” did not give the parties
guidance so as to avoid future unnecessary litigation. They also assert the trial
court also effectively reformed the Agreement to limit Landowners’ remedy to a
suit for monetary damages after violations by the Township already occurred.
34
2. Analysis
Contrary to Landowners’ assertions, the trial court did not reform
paragraphs 2(F) and 4(D) of the Agreement with regard to the language in its order
which references “customary industry practices.” Tr. Ct. Order at 1. Instead, as
the trial court stated,“[b]y way of … clarification … the area within the easement
may be clear cut to the extent necessary consistent with customary industry
practices in order to permit access by Township officials and equipment to perform
reasonable inspection[.]” Id. As such, the trial court did not add or alter language
in the Agreement, but rather “to provide general guidance,” the trial court indicated
the language of the Agreement “would be interpreted under customary
understanding in the industry.” Tr. Ct., Slip Op., at 4.
Further, although the phrase “customary industry practices” does not
appear in the Agreement, as explained above, where the terms of an express
easement are general, the easement is to be construed in favor of the grantee, and
the easement may be used in any manner that is reasonable and necessary in
relation to its purpose. Columbia Gas Transmission. Similarly, where the grant of
an easement is unrestricted, the grantee is given such rights as are necessary for the
reasonable and proper enjoyment of the thing granted. Zettlemoyer. Applying
these principles here, no error is apparent in the trial court’s suggestion of a
standard to aid in the Township’s exercise of its right to obtain access for the
purposes of inspecting and maintaining its sewer line.
Moreover, unlike the subjective standard proffered by Landowners,
which would require the Township to obtain access and perform work in the right-
of-way in a manner that is satisfactory to Landowners (a standard that does not
35
appear in the Agreement), the express language of the Agreement contemplates an
objective, “reasonableness” standard. In particular, paragraph 2(F), states, in
relevant part:
the Township will at all times … cause every reasonable means
to be used to protect from injury or damage all property,
including … trees … and will at all times after doing any work
… cause the said premises to be restored to the condition in
which the same were found before such work was undertaken
… to the extent reasonably possible under the circumstances
and consistent with the rights and privileges herein granted, and
for any destroyed or damaged property or other loss which
cannot or is not replaced or restored to the same condition to
the extent reasonably possible under the circumstances and
consistent with the rights and privileges herein granted, pay
reasonable compensation therefore.
Paragraph 2(F) of the Agreement; R.R. at 14a (emphasis added). The Agreement
also permits trees to grow naturally within the right-of-way provided they do not
interfere with the Township’s use of the right-of-way, in which case paragraphs
4(A)-(C) apply (requiring, among other things, that the Township provide
Landowners six-months’ notice before undertaking work that may damage trees).
The trial court’s order did not reform these objective standards simply by
“clarify[ying] [that] the area within the easement may be clear cut to the extent
necessary consistent with customary industry practices in order to permit access by
Township officials and equipment to perform reasonable inspection[.]” Tr. Ct.
Order at 1.
Indeed, as the trial court explained:
[Landowners] claim that the Court’s Order effectively changed
or nullified material terms of the [Agreement]. Once again, this
claim is based upon a distorted interpretation of the Court’s
36
Order. After reviewing the [Agreement], the Court interpreted
the [A]greement to grant [the Township] access to the property
for the purpose of inspecting and maintaining sewage lines
within the easement. The [A]greement was further interpreted
to permit the [the Township] to remove brush and overgrowth
including trees as necessary for [the Township] to exercise [its]
access for purpose of inspection and maintenance. These rights
are clearly granted to the Township in the [Agreement]. See
paragraph 2[(D)] and 2[(F)]. In order to give the parties some
guidance so as to avoid unnecessary future litigation, the Order
explained that customary industry practices would aid in
determining whether ‘reasonable means’ were utilized by the
Township in exercising their rights under the agreement.
Contrary to [Landowners’] claim, the Court Order did not
reform or add terms to the agreement.
Id. at 5-6.
In addition, the trial court did not limit Landowners to the sole remedy
of seeking monetary damages in the event the Township exceeded its rights under
the Agreement. Instead, the trial court stated: “If the [Township’s] actions exceed
rights set forth in the [Agreement], [Landowners] may pursue actions for monetary
damages.” Tr. Ct. Order at 2. Thus, as the trial court explained, “contrary to
[Landowners’] claims, the Order did not limit [Landowners] to a single remedy of
seeking monetary damages in the event of the Township exceeding its rights under
the [A]greement. To the contrary, a reading of the Order as a whole indicates an
acknowledgment that [Landowners] have the ability to seek monetary damages for
injury caused by [the Township’s] actions should such injury contrary to the
[A]greement ever occur.” Tr. Ct., Slip Op., at 6 (emphasis added). As discussed
above, the express language of the Agreement contemplates monetary
compensation in the event the Township causes damage to Landowners’ property
while exercising its rights to use the easement. Agreement at ¶2(F); R.R. at 14a;
37
see also Agreement at ¶3(A); R.R. at 14a-15a (Township agrees to provide
Landowners the right to “reasonable restoration or compensation” for damages
outside of the easement as provided for in paragraph 2(F)). Further, as also
discussed above, the Agreement expressly provides Landowners a remedy prior to
the Township performing work in the right-of-way. See Agreement at ¶4(A)(3);
R.R. at 16a.
IV. Conclusion
For all the foregoing reasons, we affirm the trial court’s order.6
ROBERT SIMPSON, Judge
6
Landowners also contend the trial court erred in denying their request for a jury trial.
Based on our affirmance of the trial court’s order granting summary judgment, it is not necessary
to address this issue.
38
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berwick Township :
:
v. : No. 461 C.D. 2016
:
Robert F. O'Brien, Linda A. O'Brien, :
Robert F. O'Brien, Jr., and Lydia A. :
O'Brien, :
Appellants :
ORDER
AND NOW, this 12th day of October, 2016, the order of the Court of
Common Pleas of Adams County is AFFIRMED.
ROBERT SIMPSON, Judge