J-A07019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANCESCA 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: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 09, 2015

     Robert W. Carroll and Holly Lacey Carroll (the Carrolls) appeal from

the order of the Court of Common Pleas of Allegheny County that entered a

permanent injunction enjoining them from interfering with the repair and

use of a sewer line located on their property that services a nearby

residence. After careful review, we reverse.

     The trial court set forth the factual background of the case as follows:

     On October 31, 2011, [Appellee], Francesca Gurecka, entered
     into a written Standard Agreement for the sale of real estate
     with Rachel French and William Ommert, the purchasers, for the
     sale price of $390,000.00.       The closing date was set for
     November 30, 2011. On or about November 18, 2011, it was
     discovered during a municipal dye test that the sewer line
     servicing the property had a blockage which required repair.

     The plumber employed to make the repairs inserted a camera
     into the sewer line and discovered that the sewer line lateral
     proceeded to run downhill, under Forest Glen Drive and through
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      the property of [Appellants]. The plumber started to perform
      excavation and repair of the sewer line on the Carroll property
      when Holly Lacey Carroll instructed the plumber to cease all
      work and immediately vacate her property.

      Common Pleas Court Judge Judith Friedman issued a preliminary
      injunction on December 2, 2011, authorizing the reasonable
      repairs of the sewer line pending further litigation and required
      Gurecka to post a $5.000.00 bond. Due to the future litigation
      surrounding the sewer line repair, the sales agreement between
      Francesca Gurecka and Rachel French/William Ommert was
      terminated.

      Francesca Gurecka next sought a permanent injunction seeking
      to restrict the Carrolls from interfering with the repair or
      continued use of the sewer line. Francesca Gurecka maintains
      that she has a right to continued use and maintenance of the
      sewer due to an easement by implication, or implied easement.
      This case was assigned to this writer to decide whether a
      permanent injunction should issue, as a future sewer line
      blockage coupled with the Carrolls refusal to allow maintenance
      of the line may render the property uninhabitable.

      The Carrolls maintain that they have had plans to reposition
      their driveway from the time of their purchase in March of 2011.
      The Carrolls further maintain that if the Gurecka line was to
      remain in the current location, any hopes of redesigning and
      repositioning their driveway would be impossible. The Carrolls
      assert that the sewer line encroaches 13 feet into their 107 foot
      wide lot, rendering 12.15% of their property unusable.

Trial Court Opinion, 7/11/14, at 1-2.

      The trial court adopted the following joint statement of facts by the

parties:

      1. [Appellee], Francesca V. Gurecka, is an individual residing at
         603 Cherry Blossom Way, Bridgeville, Pennsylvania 15017
         and is the Trustee of the Alba N. Valli Irrevocable Trust,
         title[d] owner of real estate located at 8 Forest Glen Drive,
         Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania
         15228 (the “Property”).



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     2. [Appellants], Robert W. Carroll and Holly Lacey Carroll are
        individuals residing at 13 Forest Glen Drive, Pittsburgh, Mt.
        Lebanon, Allegheny County, Pennsylvania 15228 (the Carrolls’
        Property.)

     3. On October 5, 1936, Orca Geyer (“Geyer”) acquired
        approximately 13 acres in Mt. Lebanon from Beverly Heights
        Company, by deed dated October 5, 1936, and recorded in
        the office of the Recorder of Deeds of Allegheny County in
        Deed Book Volume 2540, Page 204.

     4. Geyer thereafter developed Forest Glen, a subdivision, which
        was proposed in October 1948, and accepted by Mt. Lebanon
        and recorded January 17, 1949, in Plan Book Volume 44,
        Pages 17, 18 and 19 (herineafter “Forest Glen Subdivision”).
        First Glen Subdivision contained 25 lots.

     5. The Property is known and referred to as Lot 4 and part of Lot
        5 in the Forest Glen Subdivision.

     6. [The Carrolls’] Property is known and referred to as Lot 18 in
        the Forest Glen Subdivision.

     7. A right of way for public sewer lines runs behind Lots 12, 13,
        14, 15, 16, 17, 18, 19 and 21 in the Forest Glen Subdivision.
        These lots would be considered to be on the “low side” of
        Forest Glen Drive.

     8. Lots 1, 2, 3, 4, 5 and 6, 7, 8, 9, 10 and 11 are on the
        opposite side of Forest Glen Drive and therefore on the
        opposite side of the public right of way. These lots would be
        considered on the “high side” of Forest Glen Drive.

     9. [Gureka’s] “high side” lot had no direct access to the public
        sewer therefore, Geyer, as developer, between 1949 and
        1956, constructed a sewer line which went through the
        [Appellants’] “low side” lot and connected to the manhole
        which is in the public right of way.

     10. The sewer line at issue which runs through [the Carrolls’]
        Property is located approximately 13 feet from the boundary
        line with Lot No. 17.

     11. Geyer lived in the Property for a period of time between
        the 1940s and 1969. Geyer granted and conveyed Lot 18
        (the Carrolls’ lot) to S. Boyd Challinor and Ruth G. Challinor,
        by deed dated October 2, 1956, and recorded in the Office of

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        the Recorder of Deeds of Allegheny County in Deed Book
        Volume 3529, Page 489 (the “Challinor Deed”).

     12. The Challinor Deed does not contain an express easement
        for the existing sewer line from the Property through and
        across the Carrolls’ property to the public sewer line.

     13. Forest Glen Subdivision does not contain an express
        easement for the sewer line from [Gureka’s] property through
        the [Carrolls’] property.

     14. Geyer granted and conveyed the [high-side] property to
        Aris V.C. Valli and Alba N. Valli by deed dated July 28, 1969
        and recorded in the Office of the Recorder of Deeds of
        Allegheny County in Deed Book Volume 4763, Page 249.

     15. Aris V.C. Valli died August 26, 1976, thereby vesting full
        title in fee simple through survivorship in his wife Alba N.
        Valli. Alba N. Valli thereafter transferred the property in trust
        naming her daughter Francesca V. Gurecka as Trustee.

     16. Challinor conveyed Lot 18 to the Appellants by deed dated
        March 24, 2011, and recorded in deed book volume 14535
        page 310. The Challinor Deed does not contain any reference
        to the sewer line running through the [Carrolls’] property.

     17. There are four visible manholes located on the [Carrolls’]
        Property; two located at the back of the property across the
        creek and two located on this side of the creek; one on the
        bottom left and one to the bottom right (Identified as
        Manholes #1 and #2 respectively).

     18. [Manhole] #1 and [manhole] #2 are located within the
        sanitary sewer right of way which traverses the [Carrolls’]
        property.

     19. [Gureka’s] sewer line runs right into public manhole #2
        while the [Carrolls’] sewer line doesn’t connect to a public
        manhole but taps into the public sanitary sewer line which
        traverses [the Carrolls’] property.

                                     ...

     21. [Gureka] discovered the existence of the sewer line during
        a home inspection in November 2012.




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Id. at 3-5.

        Based on the stipulated facts, the briefs of the parties and a visit to

the subject property, the trial court issued an opinion and order on July 14,

2014, making permanent the preliminary injunction entered on December 2,

2011.

        The Carrolls filed a timely appeal, in which they raise the following

issues for our review:

        1. Whether the trial court committed an error of law in
           determining that the “open and visible” prong of the test for
           an implied easement was satisfied in the case where the
           existence of the sewer line was unknown to either of the
           current property owners, it was wholly undocumented in any
           deed or plan of lots, and had no physical features of its own
           above visible ground but the trial court held that merely
           because (a) the municipal sewer main, which is depicted on
           the Forest Glen Plan of lots, traverses the rear of the
           [Carrolls’] lot and (b) four physical sewer access manhole
           covers are visible on the [Carrolls’] lot, the [Carrolls] were
           provided legal notice that an individual sewer line serving
           another property was present approximately parallel to the
           boundary of an adjacent property.

        2. Whether the court below committed error of law by holding
           that there was an implied easement merely because the
           sewer line in question had been in existence for fifty years
           although wholly unknown to the [Carrolls] and their
           predecessor landowners where [Gurecka] cannot establish
           that her property would be rendered uninhabitable as she can
           readily tap into the public sewer line through an express right
           of way that is also downhill of her property and also across
           Forest Glen Road.




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Appellants’ Brief, at 4.1

       “When reviewing the grant or denial of a final or permanent injunction,

an appellate court’s review is limited to determining whether the trial court

committed an error of law.” Buffalo Tp. v. Jones, 813 A.2d 659, 663-64

(Pa. 2002).

       In Bucciarelli v. DeLisa, 691 A.2d 446 (Pa. 1997), our Supreme

Court noted:

       The traditional test for implied easement at severance of title is
       set out in Burns Manufacturing v. Boehm, 356 A.2d 763, 767
       (Pa. 1976):

          It has long been held in this Commonwealth that although
          the language of a granting clause does not contain an
          express reservation of an easement in favor of the grantor,
          such an interest may be reserved by implication, and this
          is so notwithstanding that the easement is not essential for
          the beneficial use of the property. . . . The circumstances
          which will give rise to an impliedly reserved easement
          have been concisely put by Chief Justice Horace Stern
          speaking for the Court in Tosh v.Witts, [113 A.2d 236
          ([Pa.] 1955)]:

              Where an owner of land subjects part of it to an
              open, visible, permanent and continuous servitude or
              easement in favor of another part and then aliens
              either, the purchaser takes subject to the burden or
              the benefit as the case may be, and this irrespective
              of whether or not the easement constituted a
              necessary right of way. Tosh v. Witts, supra . . .
              at 228.

          (Citations omitted). The Boehm court further stated:
____________________________________________


1
   We have reversed the order of the issues in order to facilitate our
discussion.



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        Easements by implied reservation . . . are based on the
        theory that continuous use of a permanent right-of-way
        gives rise to the implication that the parties intended that
        such use would continue, notwithstanding the absence of
        necessity for the use.

        365 A.2d at 767 n.4.

     Bucciarelli, supra, at 448-49.

        In order to establish a claim for a permanent injunction,
        the party must establish his or her clear right to relief.
        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.

Buffalo Tp., supra at 663 (citations and quotations omitted).

     Here, the 1956 deed from Geyer to the Challinors does not include an

express reservation of a sewer easement. In a verification affidavit attached

to the Carrolls’ answer to Gureka’s motion for partial summary judgment,

Challinor avers that when he and his wife purchased Lot 18 from Gureka,

“they were not informed, and had no knowledge of a private sewer line from

the [h] ouse occupying Lot No. 4.” Affidavit of S. Boyd Challinor, 12/10/11.

The Carrolls were likewise unaware of the existence of the sewer line when

they purchased their property from the Challinors.

     In the absence of an express easement, the question before the trial

court was whether an easement by implication was created at the time of

the severance of title in 1956. Critical to this determination is whether the

Carrolls’ property is subject to an “open, visible and permanent” easement.

See Tosh, supra. The trial court held that it is, stating: “[T]he array of



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J-A07019-15



manholes in the rear of the [Carrolls’] property does place [the Carrolls] on

notice of a network of sewer lines coming onto and crossing their property.”

Trial Court Opinion, 7/11/14, at 8.

      In support of the trial court’s determination, Gurecka cites to Motel 6

v. Pfile, 718 F.2d 80 (3d. Cir. 1983) for the proposition that “Pennsylvania

Courts have recognized sewer lines, not visible on the surface of the land, to

be given implied easement status.” Appellees Brief, at 3. While this is true,

it is instructive to consider the following discussion of the issue by the Motel

6 court:

      There can be no dispute that the use involved here satisfies the
      requirements of [Boehm] that an implied easement be “open”
      and “visible.” Like the sewage system at issue in Bryn Mawr
      Hotel Co. v. Baldwin, 12 Montg.Co.L.Rep. 145, 149 (1896), the
      system here was of a “notorious character.”           That the
      underground pipes may not have been “visible” in the literal
      sense is beside the point, because the existence of the sewage
      connection was known to the parties. See Geissel v. Supplee,
      95 Pa. Super. 358, 360 (1929), (finding an easement in the use
      of a water pipeline when such use was notorious and “know[n]
      to both parties.”)

Motel 6, at 85.

      Therefore, Motel 6 stands for the limited proposition that an implied

easement for sewer lines can exist where the open and visible requirements

are met.

      Our review of the record indicates that at no time has Gurecka

established that manholes are commonly used at connection points between

private sewer pipes and municipal sewer lines.          She has attached no



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affidavits to this effect to any of the pleadings, nor has she provided citation

to the law of Pennsylvania or 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, Gureka has not established a clear right to a

permanent injunction.          See Buffalo Tp., supra.     Therefore, we are

constrained to reverse the order of the trial court.2

       Order reversed.

       Mundy, J., Joins the memorandum.

       Bender, PJE., Files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015


____________________________________________


2
  Because of our disposition of the first issue, we will not address the
Carrolls’ position that Gurecka is not entitled to relief because there is an
easement for sewers straddling the lot line between Lot Nos. 19 and 21,
which would allow her to connect a new sewer to the main sewer line. See
Trial Court Opinion, 7/11/14, at 7.



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