Gurecka, F. v. Carroll, R.

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2017 PA Super 27FRANCESCA V. GURECKA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT W. CARROLL AND
HOLLY LACEY CARROLL
Appellants No. 1301 WDA 2014
Appeal from the Order Entered July 11, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 11-024656
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
and OTT, J.
DISSENTING OPINION BY LAZARUS, J.: FILED FEBRUARY 3, 2017
Because I do not believe that the Carrolls’ property is subject to an
“open, visible and permanent” easement, I respectfully dissent.
The Majority agrees with the trial court and concludes that the
existence of the four manhole covers on the Carrolls’ property should have
alerted them to the presence of a network of sewer lines crossing under
their property, thus satisfying the tripartite test for the creation of an implied
easement set forth in Daddona v. Thorpe, 749 A.2d 475, 481 (Pa. Super.
2000). I do not believe that the record supports this conclusion.
My review of the record indicates that Gurecka failed to establish that
manholes are commonly used at connection points between private sewer
pipes and municipal sewer lines. Gurecka has attached no affidavits to this
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effect to any of her pleadings, nor has she provided citation to Pennsylvania
case law or that of any other jurisdiction in support of this critical issue.
Accordingly, Gurecka has provided an insufficient basis on which the court
could find “the subject sewer, and for that matter, the network of sewers in
the area of the [Carrolls’] property to be open, visible and permanent.” Trial
Court Opinion, 7/11/14, at 8.
On the record provided, I do not believe that Gurecka has established
a clear right to a permanent injunction based upon the existence of an
easement by implication. See Buffalo Tp. v. Jones, 813 A.2d 659, 663
(Pa. 2002) (“In order to establish a claim for a permanent injunction, the
party must establish his or her clear right to relief.”). Therefore, I would
reverse the order of the trial court.
Judge Bowes joins this Dissenting Opinion.
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