J-A02030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS S. & LISA A. HUFFSMITH                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                             Appellants

                        v.

PPL ELECTRIC UTILITIES CORPORATION,
TREESMITHS, INC., AND TREESMITHS
UTILITY ARBORISTS, INC.

                        v.

PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION
                                                             No. 1096 MDA 2015


                  Appeal from the Order Entered May 21, 2015
              In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 1012-CIVIL-2011


BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                       FILED MAY 24, 2016

        Appellants, Thomas and Lisa Huffsmith, appeal from the order granting

summary judgment to Appellees, PPL Electric Utilities Corporation (“PPL”),

Treesmiths,     Inc.,   and    Treesmiths      Utility   Arborists,   Inc.   (collectively

“Treesmiths”) on the Huffsmith’s claims for intentional trespass. The

Huffsmiths argue that the trial court erred in granting summary judgment as

a genuine issue of material fact was created by the affidavit filed by Thomas

Huffsmith. We agree, and therefore reverse and remand.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     The following factual and procedural history of this case, taken from

the various pleadings and their exhibits, is essentially undisputed. The

Huffsmiths are owners of a property (“the Property”) on Hickory Ridge Road

in Lackawanna County. Their ownership is subject to a utility right of way

owned by PPL, that is defined as reaching twenty-five feet into their property

as measured from the centerline of Hickory Ridge Road.

     In 2008, PPL approached the Huffsmiths to inform them that PPL was

upgrading the power lines in the area, and that PPL would like to install a

guy wire on the Property outside the right of way to stabilize the power

lines. PPL also discussed the presence of certain trees within PPL’s right of

way. PPL informed the Huffsmiths that some of the trees would need to be

cut down, while others would need to be trimmed.

     Ultimately, the Huffsmiths did not allow PPL to install the guy wire.

Shortly thereafter, Treesmiths, at the direction of PPL, cut down some of the

disputed trees allegedly in the right of way and trimmed other disputed trees

that were allegedly outside the right of way but whose branches crossed into

the right of way. The Huffsmiths commenced this action by filing a complaint

against PPL and Treesmiths, alleging that Treesmiths, at PPL’s direction,




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intentionally trespassed outside the right of way in performing the tree

removal and trimming.1

       PPL and Treesmiths filed answers and cross-claims, and Treesmiths

were granted permission to join and file a cross-claim against the

Pennsylvania Department of Transportation (“PennDOT”). All defendants

subsequently filed motions for summary judgment, highlighting several

exhibits. First, Treesmiths filed several photographs of their employees

measuring from the centerline of Hickory Ridge Road and allegedly

demonstrating that the disputed trees were within 25 feet of the centerline.

Second, PennDOT filed the report of a surveyor which opined that the

location of Hickory Ridge Road had remained the same since 1938.

       In response to these motions, Thomas Huffsmith filed an affidavit,

which contained several key allegations. First, that pursuant to PennDOT’s

maintenance and upgrade efforts, the centerline of Hickory Ridge Road had

shifted approximately six to nine inches closer to his property. In support of

this allegation, Huffsmith attached photographs purporting to demonstrate

that the double yellow lines separating lanes of traffic on Hickory Ridge Road

had been repainted several inches away from their previous position, as well

as photographs demonstrating that signage along the roadway had been

shifted approximately 15 inches from their original locations. Second,
____________________________________________


1
  The Huffsmiths also originally asserted claims for nuisance, but later
withdrew those claims.



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Huffsmith asserted that the photographs filed by Treesmiths were taken

using deceptive camera angles that misrepresented the actual distances

from the centerline to the disputed trees.

      The trial court heard oral argument on the motions. After reviewing

the motions and arguments of counsel, the trial court granted summary

judgment to all defendants and dismissed the Huffsmith’s complaint. This

timely appeal followed.

      On appeal, the Huffsmiths argue that the trial court erred in granting

summary judgment. We review a challenge to the entry of summary

judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).


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      The cause of action asserted by the Huffsmiths is trespass. Trespass is

the intentional act of entering onto the land of another without privilege to

do so. See Kopka v. Bell Telephone Co. of Pennsylvania, 91 A.2d 232,

235 (Pa. 1952). Even if the actor honestly believes that he is privileged to be

on the land, he can still be liable for trespass so long as his entry onto the

land was intentional. See id.

      Here, it is undisputed that PPL and its contractor, Treesmiths, are

privileged to enter onto the Property pursuant to a right of way. The

Huffsmiths asserted in their complaint that Treesmiths, at the direction of

PPL, cut down and trimmed trees outside PPL’s 25 foot right of way.

Appellees argued in their motions for summary judgment, and the trial court

held, that the Huffsmiths had failed to present any evidence capable of

establishing that Treesmiths cut or trimmed any trees outside of PPL’s right

of way. However, these arguments fail to account for the allegations

contained in Thomas Huffsmith’s affidavit.

      In his affidavit, Huffsmith alleged that the centerline of Hickory Ridge

Road had shifted approximately six to nine inches since the grant of the right

of way. See Affidavit of Thomas S. Huffsmith, 4/17/15, at ¶ 7. As a result,

Huffsmith alleged that Treesmith’s measurements, taken from the modern

centerline, improperly extended six to nine inches into the Property beyond

the right of way. See id., at ¶ 13. These allegations form a genuine dispute

of material fact over the location of the right of way.


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J-A02030-16


         Appellees argue, and the trial court held, that Huffsmith’s allegations

and photographs are insufficient to establish the location of the right of way

in the face of the surveyor’s report filed by PennDOT. However, this is a

question of the weight of the evidence submitted by the Huffsmiths, and

therefore constitutes a factual dispute that must be resolved by a fact-

finder. Viewing the allegations and photographs in the light most favorable

to the Huffsmiths, as we must, we conclude that this evidence is capable of

establishing that Treesmiths were not privileged to cut and trim the disputed

trees.

         Furthermore, Huffsmith alleged that Treesmiths had intentionally

mismeasured the distance from the modern centerline, and took deceptive

pictures to hide this fact. See id., at ¶ 14. While this evidence constitutes

the thinnest reed imaginable upon which to build this case, it does create a

genuine issue of material fact. Even if the Huffsmiths had failed to create an

issue of fact regarding the location of the right of way, they still have

presented sufficient evidence, when viewed in light most favorable to the

Huffsmiths, to establish in the alternative that Treesmiths intentionally

trespassed upon the Property outside the right of way.

         Order reversed. Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.




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J-A02030-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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