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.”

____________________________________________


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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J-A34037-14



        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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J-A34037-14



       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

____________________________________________


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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J-A34037-14



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.




____________________________________________


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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J-A34037-14



        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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J-A34037-14



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)


                                           -7-
J-A34037-14



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.



                                            -8-
J-A34037-14



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

                                    -9-
J-A34037-14



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




                                    - 10 -
J-A34037-14



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);
____________________________________________


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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J-A34037-14



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

                                      - 12 -
J-A34037-14



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



                                     - 13 -
J-A34037-14



(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

                                    - 14 -
J-A34037-14



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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J-A34037-14


      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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