PA Energy Vision, LLC v. South Avis Realty, Inc.

J-A34037-14
2015 Pa. Super. 154
PA ENERGY VISION, LLC AND BLG IN THE SUPERIOR COURT OF
LEASING, D/B/A HENRY STREET, A PENNSYLVANIA
GENERAL PARTNERSHIP
Appellant
v.
SOUTH AVIS REALTY, INC.
Appellee No. 336 MDA 2014
Appeal from the Judgment entered March 14, 2014
In the Court of Common Pleas of Clinton County
Civil Division at No: 1364-12
PA ENERGY VISION, LLC AND BLG IN THE SUPERIOR COURT OF
LEASING, D/B/A HENRY STREET, A PENNSYLVANIA
GENERAL PARTNERSHIP
Appellee
v.
SOUTH AVIS REALTY, INC.
Appellant No. 338 MDA 2014
Appeal from the Judgment entered March 14, 2014
In the Court of Common Pleas of Clinton County
Civil Division at No: 1364-12
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
OPINION BY STABILE, J.: FILED JULY 20, 2015
These cross-appeals arise out of an action initiated on November 16,
2012 by Appellee/Cross-Appellant PA Energy Vision, LLC and BLG Leasing,
J-A34037-14
d/b/a Henry Street (Henry Street), requesting declaratory and injunctive
relief against Appellant/Cross-Appellee, South Avis Realty Inc. (South Avis),
regarding the use and maintenance of a railroad crossing. South Avis
contends the trial court erred in entering a final decree prohibiting South
Avis, or any of its successors and assigns, from interfering in any way with
Henry Street’s use of the crossing known as “Crossing 2.” Henry Street
contends the trial court erred in requiring it to pay the restoration costs of
Crossing 2. Because we conclude the trial court erred in finding that Henry
Street established a right to use the railroad crossing, we reverse the
judgment entered on the final decree. Henry Street’s cross-appeal is denied
as moot.
In 1994, South Avis, a Pennsylvania corporation, purchased the “Penn
Central Mill Hall Branch a/k/a the Avis industrial track,” (the Avis line) from
Consolidated Rail Corporation (Conrail). The Avis line is a 30-foot wide
right-of-way that passes through a 26-acre parcel now owned by Henry
Street, a Pennsylvania general partnership. The deed between Conrail and
South Avis remised, released and quitclaimed1 all right, title and interest of
Conrail to the described “Premises.”
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1
The distinguishing feature of a “quitclaim deed” is that it is a conveyance of
a grantor’s interest in a property, rather than of the property itself. See
Greek Catholic Congregation of Borough of Olyphant v. Plummer, 32
A.2d 299, 300 (Pa. 1943); see also Southall v. Humbert, 685 A.2d 574,
580 (Pa. Super. 1996).
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As of 1994, three railroad crossings existed over the Avis line tracks.
Crossing 1 was created by express grant in 1978 and is not at issue in this
case. Crossing 3 was a temporary crossing established in the 1990s. It
consisted merely of gravel dumped on the track bed. It, too, is not at issue
here. The focus of this lawsuit is Crossing 2. Crossing 2 was 38 feet wide
and has been in existence since about 1984. The crossing was constructed
of amesite on the east side of the rails, stone in the middle, and chip and tar
on the west side. Henry Street’s predecessor in interest, Excel Homes, used
Crossing 2 to move 68-foot modular homes, forklifts, and other equipment
across the Avis line tracks.
In 2012, South Avis hired a contractor to repair the railroad line, which
was in a state of disrepair and unsafe for train traffic. The contractor
removed 115 feet of rails in order to replace the rail and the ties beneath
them. The contractor also removed Crossings 2 and 3. There was some
discussion regarding restoration of Crossing 2. According to the contractor,
there are three ways to build a railroad crossing. The least expensive and
least durable is a crossing made from loose gravel and cinders. The second
is a timber panel and asphalt crossing. The most durable is a crossing made
of precast concrete panels.
According to the contractor, a gravel crossing did not meet railroad
standards. The cost of building a timber panel crossing was between $7,000
and $8,000, but the contractor recommended a precast concrete panel
design after learning that Crossing 2 was likely to handle heavy truck traffic.
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Ultimately, South Avis directed the contractor not to restore Crossing
2, because of a dispute between South Avis and Henry Street over
restoration payment. See Trial Court Order, 12/4/12, at 1-2 (noting that
South Avis directed its contractor not to restore Crossing 2 after Henry
Street “impose[d] questionable limitations” on South Avis’s ability to access
Henry Street’s property to complete the restoration). Construction exposed
and raised the railroad tracks preventing Henry Street from using Crossing
2.
Henry Street sued South Avis, advancing several legal theories
supporting its right to use Crossing 2. It also filed a petition for a
preliminary injunction. After hearing, the trial court entered an “interim
order” directing South Avis to restore Crossing 2 and for each party to pay
one-half of the restoration costs. After a stay was denied, the contractor
installed a 20-foot-wide precast concrete panel crossing costing $28,940.2
Following a full hearing on the merits, on January 8, 2014, the trial
court ruled the 1994 deed from Conrail to South Avis created a right in
Henry Street to continue to use Crossing 2. The trial court enjoined South
Avis from interfering with Henry Street’s use of Crossing 2, but ordered
Henry Street to pay the full cost of restoring Crossing 2. South Avis and
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2
South Avis filed an appeal from the order granting a preliminary injunction,
docketed in this Court at No. 87 MDA 2013, but we quashed the appeal as
moot after the contractor restored Crossing 2.
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Henry Street filed post-trial motions. The trial court denied both motions,
and this appeal and cross-appeal followed.3 The trial court ordered both
parties to file concise statements of errors complained of on appeal. The
trial court did not issue a responsive opinion, but rather relied on its prior
orders.4
We first consider South Avis’s appeal. South Avis presents two
questions for our review:
1. Did the trial court properly grant the extraordinary relief of a
permanent injunction, despite Henry Street’s failure to satisfy
the three prerequisites to a permanent injunction?
2. Did the trial court properly grant preliminary injunctive relief,
where Henry Street failed to meet its burden of proving all
the prerequisites for a preliminary injunction?
Appellant/Cross-Appellee’s Brief at 5. We address the questions presented
in reverse order.
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3
Both parties filed appeals from the denial of their post-trial motions. The
orders denying post-trial relief are interlocutory, as an appeal of a final order
in a civil case lies from the entry of judgment. See Prime Medica Assocs.
v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009).
After docketing of the parties’ appeals, we ordered the parties to praecipe
the trial court for entry of judgment. The parties did so, thus perfecting
these appeals. See Pa.R.A.P. 905(a).
4
Neither party has provided this Court with copies of their concise
statements or the trial court’s opinion. We remind the parties that the Rules
of Appellate Procedure require these items to be attached to the appellant’s
and cross-appellant’s briefs. Pa.R.A.P. 2111(a)(11), (b) and (d).
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South Avis argues the trial court erred in granting a preliminary
injunction. This issue, however, is now moot because the trial court issued a
final, permanent injunction. The issuance of a permanent injunction
supersedes a preliminary injunction. Den-Tal-Ez, Inc. v. Siemens Capital
Corp., 566 A.2d 1214, 1217 n.1 (Pa. Super. 1989) (en banc). “Where a
preliminary injunction is in force, the issuance of a permanent injunction
terminates the preliminary injunction.” Izenson v. Izenson, 418 A.2d 445,
446 (Pa. Super. 1980) (per curiam) (internal citation omitted). In Izenson,
for example, we dismissed an appeal from an order granting a preliminary
injunction, because the trial court granted final injunctive relief during the
appeal’s pendency, and the appellants failed to appeal the order granting the
permanent injunction. Id. Here, the trial court rendered a decision on the
merits and issued a permanent injunction. Any issues regarding the
granting of a preliminary injunction cannot now be considered in this appeal.
Den-Tal-Ez, supra; Izenson, supra.
South Avis’ remaining issue challenges the propriety of the trial court
enjoining it from interfering with Henry Street’s use of Crossing 2. In the
trial court, Henry Street argued it had the right to use Crossing 2 (1) under
the Railroad Act of 1849 (Railroad Act);5 (2) by adverse possession; and (3)
by laches, estoppel, and waiver. The trial court rejected those arguments,
____________________________________________
5
Act of Feb. 19, 1849, P.L. 79, No. 76 (repealed 1978).
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but concluded that the 1994 deed from Conrail to South Avis granted Henry
Street an “equitable right” to use Crossing 2. On appeal, South Avis argues
the trial court erred in granting final injunctive relief because no legal theory
supports the relief granted. We agree with South Avis that Henry Street
failed to prove a legal entitlement to use Crossing 2.
The standard for granting a permanent injunction is well-settled.
To be entitled to a permanent injunction, a party must establish
a clear right to relief, and must have no adequate remedy at
law, i.e., damages will not compensate for the injury. Unlike a
preliminary injunction, a permanent injunction does not require
proof of immediate irreparable harm.
Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal
Practical Knowledge, 102 A.3d 501, 505-06 (Pa. Super. 2014) (internal
citations omitted). “The grant or denial of a permanent injunction is a
question of law.” Id. South Avis challenges the trial court’s legal conclusion
that Henry Street is entitled to injunctive relief, and does not dispute any
factual findings. Therefore, our standard of review is de novo, and our
scope of review is plenary. See id.
We first conclude the long-repealed Railroad Act does not apply to
Crossing 2. Section 12 of the Railroad Act granted property owners the right
to cross over or under a railroad that severed their property. 6 See Estate
____________________________________________
6
The original language is as follows:
Whenever, in the construction of such road or roads, it shall be
necessary to cross or intersect any established road or way, it
shall be the duty . . . of such company to make or cause to be
(Footnote Continued Next Page)
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of Spickler v. Lancaster Bd. of Comm’rs, 577 A.2d 923, 924 (Pa. Super.
1990) (quoting Sonnen v. Reading Co., 43 Pa. D. & C.2d 737, 743 (C.P.
Lebanon 1967)). In addition, “once a property owner acquired a private
crossing over the right-of-way under the Act[] of 1849, he cannot [sic] be
divested of this right by the subsequent location of a public road across the
property which would supply a less convenient alternate crossing route.” Id.
(emphasis added). The Railroad Act was one of many laws repealed by the
_______________________
(Footnote Continued)
made a good and sufficient causeway or causeways, whenever
the same may be necessary to enable the occupant or occupants
of said lands to cross or pass over the same, with wagons, carts
and implements of husbandry, as occasion may require, and the
said causeway or causeways, when so made, shall be maintained
and kept in good repair by such company; and if the said
company shall neglect or refuse, on request, to make such
causeway or causeways, or when made, to keep the same in
good order, the said company shall be liable to pay any person
aggrieved thereby, all damages sustained by such person in
consequence of such neglect or refusal; such damages to be
assessed and ascertained in the same manner as provided in the
last section for the assessment of damages: Provided, [t]hat the
said company shall, in no case, be required to make or cause to
be made more than one causeway through such plantation or lot
of land, for the accommodation of any one person owning or
possessing land through which the said railroad may pass; and
where any public road shall cross such railroad, the person
owning or possessing land through which the said public road
may pass, shall not be entitled to require the company to erect
or keep in repair any causeway or bridge for the accommodation
of the occupant of said land.
Act of Feb. 19, 1849, P.L. 79, No. 76 § 12. Section 12 of the Railroad Act
was formerly included in Purdon’s unofficial codification of Pennsylvania’s
laws at 15 P.S. § 4101.
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Act of July 1, 1978, P.L. 596, No. 116 § 2, which created the Public Utility
Code (Code). Its replacement, 66 Pa.C.S.A. § 2702, requires railroads to
seek permission from the Public Utility Commission before removing grade
crossings. The Code does not apply here, however, because South Avis is
not a public utility.
The Railroad Act has continued viability, but only for rights vesting
before the repeal date. For example, in Estate of Spickler, the railroad
crossing at issue existed before the Railroad Act’s repeal date. Estate of
Spickler, 577 A.2d at 925 n.1. We therefore held, in a divided decision,
that the crossing-owner’s rights had vested. Id. at 925 & n.1; see also 1
Pa.C.S.A. § 1976(a) (providing that “any repeal of any civil provisions of a
statute shall not affect or impair any act done, or right existing or accrued,
or affect any civil action pending to enforce any right under the authority of
the statute repealed”). In contrast, here Henry Street failed to show that
Crossing 2 existed before 1978. Crossing 2 existed, at the earliest, as of
1984. Because the evidence shows that Crossing 2 was established after the
Railroad Act was repealed, Henry Street and its predecessors in interest
have no vested right to use Crossing 2 under the Railroad Act.
Nonetheless, Henry Street urges this Court to adopt the repealed
Railroad Act as part of the common law. Appellee/Cross-Appellant’s Brief at
16. It cites no law supporting this Court’s authority to take such a measure.
In essence, Henry Street would have this Court contravene the General
Assembly’s repeal of a statute. Given Henry Street’s failure to develop this
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argument and to provide any authority for us to do so, we decline Henry
Street’s invitation to adopt the repealed Railroad Act as part of the common
law.
Henry Street also is not entitled to use Crossing 2 under an easement
by prescription theory. “It is well-settled that a prescriptive easement is
created by (1) adverse, (2) open, (3) notorious, (4) continuous and
uninterrupted use for a period of 21 years.” See Burkett v. Smyder, 535
A.2d 671, 673 (Pa. Super. 1988). Importantly, one cannot acquire by
adverse possession land within a railroad right-of-way. A. D. Graham &
Co. v. Pa. Tpk. Comm’n, 33 A.2d 22, 31 (Pa. 1943). This is so, because
“‘[t]he right of way of a railroad company, whatever its established width, as
soon as acquired is impressed with a public use; it constitutes a public
highway. The railroad company holds it in trust for the people of the
[C]ommonwealth.’” Conwell v. Phila. & Reading Ry. Co., 88 A. 417, 418
(Pa. 1913) (quoting Del., Lackawanna & W. R.R. Co. v. Tobyhanna Co.,
77 A. 811, 813 (Pa. 1910)). The law thus creates a fiction that the
Commonwealth owns railroad rights-of-way. Under the doctrine of nullum
tempus occurrit regi (no time runs against the King), one cannot acquire
property from the Commonwealth by adverse possession. See
Williamstown Borough Author. v. Cooper, 591 A.2d 711, 715 (Pa.
Super. 1991) (“Even privately owned property which has been dedicated to
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public use cannot thereafter be claimed by adverse possession.”), appeal
granted, 602 A.2d 861 (Pa. 1992).7 Moreover, as to railroads, “[t]he public
use [of the right-of-way] arises as soon as it is acquired, and it continues
at all time during the life of the franchise against which no prescription
runs.” A. D. Graham, 33 A.2d at 31 (emphasis added).
Up until 1994, Conrail—a railroad—owned the Avis line. Therefore,
prior to 1994, Henry Street cannot claim adverse use of Crossing 2. Land
within a railroad right-of-way cannot be claimed by prescription.
Furthermore, Henry Street cannot tack any time before 1994 to meet the 21
years required for continuous and uninterrupted use to establish a
prescriptive easement. So long as Conrail owned the Avis line, Henry Street
and its predecessors could not claim prescriptive use of any crossing over
the railroad. Therefore, Henry Street’s prescriptive easement claim fails.
Henry Street’s “claims” of laches, waiver, and detrimental reliance are
likewise unavailing for the same reason its claim for a prescriptive easement
fails. These defenses rise no higher and are deserving of no greater
protection than its claim based upon a prescriptive easement that would not
permit one to take property from a government entity. See Williamstown
Borough Authority, 591 A.2d at 715 (holding that the doctrine of laches
cannot succeed where the analogous claim of adverse possession fails);
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7
As of the date of this writing, there is no reported decision by our Supreme
Court in Williamstown Borough Authority.
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Glenn Hope Borough v. Kitko, 621 A.2d 1043, 1046 (Pa. Super. 1993)
(holding that estoppel, like laches, cannot succeed against a government
entity where a claim of adverse possession would fail).
Henry Street further claims in its brief it is entitled to relief as a third-
party beneficiary of the 1994 deed from Conrail to South Avis. We again
disagree.
In order for a third party beneficiary to have standing to recover
on a contract, both contracting parties must have expressed an
intention that the third party be a beneficiary, and that intention
must have affirmatively appeared in the contract itself.
Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992).
Furthermore,
to be a third party beneficiary entitled to recover on a
contract it is not enough that it be intended by one of the
parties to the contract and the third person that the
latter should be a beneficiary, but both parties to the
contract must so intend and must indicate that intention
in the contract; in other words, a promisor cannot be held
liable to an alleged beneficiary of a contract unless the
latter was within his contemplation at the time the contract
was entered into and such liability was intentionally
assumed by him in his undertaking.
Kirschner v. K & L Gates LLP, 46 A.3d 737, 762 (Pa. Super. 2012)
(quoting Spires v. Hanover Fire Ins. Co., 70 A.2d 828, 830-31 (Pa. 1950)
(emphases in original), overruled in part by, Guy v. Liederbach, 459 A.2d
744 (Pa. 1983)) (parallel citations omitted).
The 1994 deed was a grant from Conrail to South Avis. The deed does
not name or mention Henry Street’s predecessor in interest. In addition, the
deed does not manifest an express intent by Conrail and South Avis to
create third-party beneficiaries. At best, Henry Street’s predecessor is an
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incidental beneficiary. Henry Street’s attempt to rely upon the “subject to”
language in the deed as support for third party beneficiary status is
unavailing. The subject to provision in the Conrail deed provides as follows:
UNDER and SUBJECT, however, to (1) whatever rights the public
may have to the use of any roads, alleys, bridges or streets
crossing the Premises, (2) any streams, rivers, creeks and water
ways passing under, across or through the Premises, and (3)
any easement or agreements of record or otherwise affecting the
Premises, and to the state of facts which a personal inspection or
accurate survey would disclose, and to any pipes, wires, poles,
cables, culverts, drainage courses or systems and their
appurtenances now existing and remaining in, on, under, over,
across and through the Premises, together with the right to
maintain repair, renew, replace, use and remove same.
Deed from Conrail to South Avis, 9/29/94, at 3. Nowhere does this
language grant Henry Street a property right in Crossing 2. The purpose of
this clause is to note specifically any encumbrances, limitations or
reservations that might affect the interest conveyed by Conrail. Clause (1)
informs South Avis that it took the Avis line subject to whatever crossings
the public may have over it. Crossing 2 is not a public crossing. It is
located entirely within Henry Street’s property. Moreover, clause (1) does
not create the right to establish crossings. Clause (2) is not applicable.
Clause (3) has three components, none of which vests rights in
Crossing 2 to Henry Street. First, title is subject to easements or
agreements of record, i.e., Crossing 1, affecting the deeded property. The
record does not reflect that Crossing 2 either is a recorded easement or
exists by virtue of any other publically recorded agreement. Second, clause
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(3) subjects title “to the state of facts which a personal inspection or
accurate survey would disclose.” This language serves to protect Conrail
against claims that the interest it transferred is clouded by certain
encumbrances not otherwise expressly disclosed by Conrail in the deed.
This language places a grantee on notice that, in addition to other
encumbrances expressly called out in the deed, the Premises also is subject
to other claims that an accurate survey or a visible inspection of the
property might reveal. In this case, while the use of Crossing 2 was not
expressly noted under the Conrail deed, it was visible upon an inspection of
the property. This in of itself, however, does not create a vested right in
Henry Street to Crossing 2. The visual presence of Crossing 2 merely places
the grantee (and presumably all subsequent grantees barring no changes in
the exception language) on notice that its interest in the Premises is subject
to other interests, if any, that exist by virtue of Crossing 2 being on the
Premises. Hence, Henry Street can claim no vested right in Crossing 2
merely by virtue of the physical presence of Crossing 2 upon the Premises.
The final proviso under clause (3), which permits a grantee to maintain,
repair, renew, replace, use and remove any pipes wires, poles, cables,
culverts, drainage courses or systems and their appurtenances, does not
apply to Crossing 2.
The trial court purported to find an “equitable right” in Henry Street to
use Crossing 2 based on the language of the 1994 deed alone. See Trial
Court Final Decree, 1/8/14, at 3. The trial court, however, cited no authority
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for such a nebulous standard. Indeed, the law is otherwise, in that a court
generally cannot use equity to resolve disputes over legal title to property.
Ohringer Home Furniture Co. v. Hollingsworth, 100 A.2d 62, 64 (Pa.
1953). “It has long been settled that equity is not the proper form of action
to seek a determination of legal title to real property interests unless there is
substantial agreement between the parties as to ownership.” Trimble
Servs., Inc. v. Franchise Realty Interstate Corp., 285 A.2d 113, 117
(Pa. 1971). And while a court may grant equitable relief regarding property
rights in an appropriate case, see id.; see also Williams v. Bridy, 136
A.2d 832, 836 (Pa. 1957) (“[I]f the kernel of the controversy is the
legal title to land, then equity cannot be invoked; but, where the
question of the legal title is incidental and subordinate to other elements
which call for the exercise of equitable remedies, equity will take and retain
jurisdiction . . . .”) (internal quotation omitted) (emphasis in original), a
court cannot determine title to property using unnamed, undefined
“equitable rights.” In Williams, for example, a chancellor entered a
preliminary injunction that prohibited the defendant from entering onto a
tract of land and removing material from a culm bank. Williams, 136 A.2d
at 834. The crux of the controversy was ownership of the land and culm
bank. Id. at 835-36. On appeal, our Supreme Court reversed, because the
plaintiff failed to establish legal title in the land or culm bank:
The issuance of even a preliminary injunction under the instant
circumstances is in derogation of the long recognized rule in our
Commonwealth that equity will not grant injunctive relief unless
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title is clearly established. . . . [A]bsent proof of a clear legal
title injunctive relief cannot be granted, and the record shows
no such proof.
Id. at 837-38 (emphases in original). The trial court here similarly erred in
granting equitable relief without first identifying a valid source of Henry
Street’s legal right to relief.
In light of the foregoing whereby we have reversed the trial court’s
judgment granting equitable relief to Henry Street, we need not address
Henry Street’s cross-appeal that the trial court erred in imposing upon Henry
Street the full costs of repair of Crossing 2. Because we reverse the trial
court’s judgment, it follows also that the granting of relief imposing costs of
restoration as a part of that judgement is a nullity. Cf. Holt v. Navarro,
932 A.2d 915, 920 (Pa. Super. 2007) (declining to address appellant’s
remittitur argument, because this Court reversed the judgment entered in
appellee’s favor and remanded for entry of judgment n.o.v. in appellant’s
favor).
Judgment reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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