J. A21021/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ROBERT AND MARYANN BERGER,               :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellants       :
                                         :
                  v.                     :
                                         :
PECO ENERGY COMPANY,                     :
                                         :
                        Appellee         :     No. 3778 EDA 2015

               Appeal from the Order Entered January 28, 2016
               In the Court of Common Pleas of Chester County
                       Civil Division at No.: 2014-04507

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                     FILED SEPTEMBER 22, 2016

     Appellants Robert and MaryAnn Berger, plaintiffs below, appeal from

the Judgment entered January 28, 2016, after the entry of a compulsory

nonsuit in favor of Appellee PECO Energy Company following a bench trial.

We affirm.

     The underlying facts, as summarized in the trial court’s Pa.R.A.P.

1925(a) Opinion filed on January 15, 2016, are as follows:

     This trespass action was filed by Appellants, seeking relief for
     PECO’s purported interference with their rights, as property
     owners, to use and enjoy their property as they wish and their
     ability to compel a trespasser to remove unwanted chattels from
     above, on or below the property.          [Appellants sought a
     permanent mandatory injunction.]

     Appellants reside at 46 Blenheim Hill Lane in Malvern,
     Pennsylvania, a residence which they purchased in 2004.
     Blenheim Hill Lane is characterized as a flag lot with a long
     driveway serving two houses.        In 2013, PECO entered
J. A21021/16


      Appellants’ property for purposes of installing a new
      underground electric cable located on the east side of the
      driveway. The old cable located on the west side of the drive
      was abandoned due to electric service reliability issues.

      PECO’s placement of the underground electric facilities is
      governed by an Easement entered into by PECO’s predecessor,
      Philadelphia Energy Company, and the original property owners,
      the Feehrers. The Easement granted PECO:

            The uninterrupted right, liberty and privilege to
            install, operate, maintain, inspect, renew, repair and
            remove underground electric facilities required to
            supply electric service to the premises and those
            adjacent thereto.

      Such rights were limited by three express conditions:

            The aforesaid rights are granted under and subject
            to the following conditions:

            (1) The location of the electric facilities to be
            installed hereunder shall be shown and delineated on
            plans prepared by Company copies of which will be
            in the possession of the parties hereto having first
            been approved by them.

            (2) The undersigned agree that the initial exercise of
            any of the powers and rights herein granted shall not
            be construed as fixing or limiting Company's rights
            and privileges hereunder.

            (3) The undersigned agree that no building or
            permanent structure shall be erected over the
            underground facilities.

      The Easement was executed on behalf of the Feehrers, the
      original landowners, and Philadelphia Electric Company on June
      23, 1978.

Trial Court Opinion, filed 1/15/16, at 1-3.




                                     -2-
J. A21021/16


        During a bench trial on August 26, 2015, the trial court granted

PECO’s oral Motion for Compulsory Nonsuit.1        Appellants filed a Post-Trial

Motion, which the trial court denied on December 2, 2015.

        Appellants filed a Notice of Appeal on December 18, 2015, prior to the

entry of final judgment on January 28, 2016.2 Both Appellants and the trial

court complied with Pa.R.A.P. 1925.

        Appellants present three issues for our review:

        1. Did the Court commit legal error in finding that the Easement
        permitted PECO to install the New Cable anywhere it wanted on
        the Bergers’ property?

        2. Did the Court commit legal error in concluding that any
        trespass committed by PECO would have been a permanent
        trespass, as opposed to a continuing trespass?

        3. Did the Court commit legal error in requiring the Bergers to
        show actual harm in order to show a trespass and to show the
        insufficiency of money damages [to] obtain a mandatory
        injunction?

Appellants’ Brief at 4.

        Appellants first challenge the trial court’s interpretation of PECO’s

easement. We review the trial court’s interpretation of the language in an

1
    See Pa.R.C.P. No. 230.1 (entitled “Compulsory Nonsuit at Trial”).
2
  Although Appellants filed their Notice of Appeal prematurely, we will treat it
as properly filed. See Pa.R.A.P. 905 (“A [N]otice of [A]ppeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
We further note that the entry of final judgment is the proper appealable
Order following the entry of a compulsory nonsuit.          See Rachlin v.
Edmison, 813 A.2d 862, 864 n.1 (Pa. Super. 2002) (en banc) (final
judgment is proper appealable order following the entry of nonsuit).



                                      -3-
J. A21021/16


easement as a question of law; as such, our scope of review is plenary.

PARC Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001).

“[T]he same rules of construction that apply to contracts are applicable in

the construction of easements[.]”    McNaughton Properties, LP v. Barr,

981 A.2d 222, 227 (Pa. Super. 2009) (citation omitted).

      As with any contract the rights conferred by the grant of an
      express easement must be ascertained solely from the language
      of the deed, provided that the deed language is unambiguous.
      When the language is ambiguous, however, a court may resort
      to evidence of extrinsic circumstances as an aid to
      interpretation. When the purposes of an express easement are
      not specifically stated, the court must ascertain the objectively
      manifested intention of the parties in light of the circumstances
      in existence at the time of conveyance. Whether an ambiguity
      exists is a question of law subject to plenary review. However,
      resolution of conflicting parol evidence relevant to what the
      parties intended by an ambiguous provision is for the trier of
      fact.

PARC Holdings, supra at 112 (citations omitted).

      The Honorable Jeffrey R. Sommer, sitting as the trial court, has

authored a comprehensive, thorough, and well-reasoned opinion, citing to

the record and relevant case law in addressing Appellants’ challenge to his

interpretation of the easement.     After a careful review of the parties’

arguments and the record, we affirm on the basis of the trial court’s Opinion.

See Trial Court Opinion at 5-8, 14 (concluding that it properly granted

compulsory nonsuit because: “(1) the Easement was unambiguous, allowing

PECO to place the new electrical cable on the Appellants’ property without




                                    -4-
J. A21021/16


first submitting written plans and obtaining permission from Appellants, and

(2) the Appellants did not show the existence of any injury or damages.”).

      Appellants next challenge the trial court’s legal conclusion that any

trespass by PECO would constitute a permanent rather than a continuing

trespass, which would alter the availability of equitable remedies to

Appellants. Appellants argue that if PECO’s trespass is properly classified as

a continuing trespass, they would be entitled to a mandatory injunction

forcing PECO to remove the offending cable without a showing of harm; if

the trespass is classified as a permanent trespass, as the trial court

concluded, Appellants would be entitled to seek money damages after

demonstrating harm.

      “In reviewing a question of law, our standard of review is de novo and

our scope is plenary.”   WellSpan Health v. Bayliss, 869 A.2d 990, 996

(Pa. Super. 2005). The Second Restatement of Torts explains the difference

between a continuing and a permanent trespass as follows:

      A continuing trespass must be distinguished from a trespass
      which permanently changes the physical condition of the land.
      Thus, if one, without a privilege to do so, enters land of which
      another is in possession and destroys or removes a structure
      standing upon the land, or digs a well or makes some other
      excavation, or removes earth or some other substance from the
      land, the fact that the harm thus occasioned on the land is a
      continuing harm does not subject the actor to liability for a
      continuing trespass. Since his conduct has once for all produced
      a permanent injury to the land, the possessor’s right is to full
      redress in a single action for the trespass, and a subsequent
      transferee of the land, as such, acquires no cause of action for
      the alteration of the condition of the land.



                                    -5-
J. A21021/16


Restatement (Second) of Torts § 162 cmt. e (1965).

      After a careful review of the parties’ arguments and the record, we

affirm on the basis of the trial court’s Opinion. See Trial Court Opinion at 8-

11 (concluding PECO did not commit a trespass because PECO’s entry was

privileged pursuant to its rights under the easement; moreover, any

trespass would have constituted a permanent trespass because PECO

excavated land to place the cable and permanently changed the condition of

the land).

      In their third issue, Appellants aver that the trial court erred as a

matter of law “in requiring the [Appellants] to show actual harm in order to

show a trespass and to show the insufficiency of money damages [to] obtain

a mandatory injunction[.]” Appellants’ Brief at 4.

      “Appellate review of the grant or denial of a permanent injunction is

limited to determining whether the trial court committed an error of law.”

WellSpan Health, supra at 995-96.

      A mandatory injunction is an extraordinary remedy that should be

granted only in the “rarest of cases.”     Summit Towne Centre, Inc. v.

Shoe Show, 828 A.2d 995, 1005 n.13 (Pa. 2003). Appellate courts exercise

greater scrutiny over mandatory injunctions, which should be issued more

sparingly than injunctions which are merely prohibitory in nature.         Id.

“Thus, in reviewing the grant of a mandatory injunction, we have insisted

that a clear right to relief in the plaintiff be established.”      Overland



                                     -6-
J. A21021/16


Enterprise, Inc. v. Gladstone Partners, LP, 950 A.2d 1015, 1020 (Pa.

Super. 2008) (citation omitted).

      After a careful review of the parties’ arguments and the record, we

affirm on the basis of the trial court’s Opinion. See Trial Court Opinion at

11-14 (concluding Appellants failed to satisfy any of the prerequisites for a

permanent mandatory injunction, and failed to demonstrate any damages,

injury, or “urgent necessity” for a mandatory injunction).

      The parties are instructed to attach a copy of the trial court’s January

15, 2016 Opinion to all future filings.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2016




                                      -7-
                                                                  Circulated 09/08/2016 03:12 PM
                                    672a




ROBERT BERGER and                          IN THE COURT OF COMMON PLEAS
MARYANN BERGER                             CHESTER COUNTY, PENNSYLVANIA
         Plaintiffs

              VS.                          NO. 2014-04507

PECO ENERGY COMPANY
         Defendant                        CIVIL ACTION - LAW



Stuart D. Laurie, Esquire, on behalf of Plaintiffs



                                                                ,,
Jared Todd Hay, Esquire, on behalf of Defendant



Sommer, J.                                            January         ,2016



                           OPINION PURSUANT TO RULE 1925


I. PROCEDURAL SETTING

      This matter comes before this Court as a result of an appeal filed by Robert

Berger and MaryAnn Berger (hereinafter "Appellants") on December 18, 2015, from

the Order dated December 2, 2015, denying Appellants' post-trial motions following

oral argument held on November 30, 2015. A non-jury trial in this matter was held on

August 26, 2015, during which I granted Appellee PECO Energy Company's

(hereinafter, "PECO") oral motion for compulsory nonsuit. On December 18, 2015, I

issued an Order directing Appellants to file a Concise Statement of Matters

Complained Of on Appeal.      Appellants submitted a timely Concise Statement on

January 7, 2015. The matter is now ready for determination.

II. FACTS

      This trespass action was filed by Appellants, seeking relief for PECO's

purported interference with their rights, as property owners, to use and enjoy their

property as they wish and their ability to compel a trespasser to remove unwanted
                                    673a




chattels from above, on or below the property.

       Appellants   reside at 46 Blenheim       Hill Lane in Malvern,   Pennsylvania,   a

residence which they purchased in 2004. Blenheim Hill Lane is characterized as a flag

lot with a long driveway serving two houses.        In 2013, PECO entered Appellants'

property for purposes of installing a new underground electric cable located on the

east side of the driveway.    The old cable located on the west side of the drive was

abandoned due to electric service reliability issues.

       PECO's placement of the underground electric facilities is governed by an

Easement entered into by PECO's predecessor, Philadelphia Energy Company, and

the original property owners, the Feehrers. The Easement granted PECO:

              The uninterrupted right, liberty and privilege to install,
              operate, maintain, inspect, renew, repair and remove
              underground electric facilities required to supply electric
              service to the premises and those adjacent thereto.

Such rights were limited by three express conditions:

              The aforesaid rights are granted under and subject to the
              following conditions:

              (1) The location of the electric facilities to be installed
                  hereunder shall be shown and delineated on plans
                  prepared by Company copies of which will be in the
                  possession of the parties hereto having first been
                  approved by them.

              (2) The undersigned agree that the initial exercise of any of
                  the powers and rights herein granted shall not be
                  construed as fixing or limiting Company's rights and
                  privileges hereunder.

              (3) The undersigned agree that no building or permanent
                  structure shall be erected over the underground
                  facilities.


                                            2
                                          674a




The Easement was executed on behalf of the Feehrers, the original landowners,                             and

Philadelphia Electric Company on June 23, 1978.

       Appellants'      Concise      Statement    claims that the court erred in six ways,

summarized as follows:

       1.        The    Court    erred   by not granting          Plaintiff's     Motion      for    Summary

Judgment.

       2.        The Court erred by excluding testimony, evidence and admissions from

PECO        representative,     Debra Morgan, whose testimony                   purportedly     contradicted

PECO's central litigation position that it was under no obligation to seek homeowner

approval for relocating an electric cable from one side of the driveway to the other.

       3.        The Court erred by granting Defendant PECO's oral motion for nonsuit

and entering a verdict for Defendant for the following reasons:

                 a.      The Court erred in its legal interpretation of the Easement when it

                         found that the Easement's           Condition #1           applied only to the

                         original property owners, not Appellants, thereby permitting PECO

                        to    relocate   the   electric   cable     without       obtaining         homeowner

                         approval.

                 b.      The Court erred by requiring Appellants to demonstrate monetary

                         damages as a result of PECO's alleged trespass or that monetary

                         damages would         not be sufficient       to remedy PECO's alleged

                         conduct.

       4.        The Court erred in finding no trespass was committed by PECO.

       5.        The Court erred in finding that PECO's conduct constituted a continuing

trespass.
                                                   3
                                    675a




       6.      The Court erred in disregarding the controlling authority of Jones v.

Wagner, 624 A.2d 166 (Pa. Super. Ct. 1992).

       Several of these issues will be combined and addressed together.

Ill. ISSUE

       Whether the Court's granting of PECO's motion for compulsory nonsuit should

be affirmed.

IV. HOLDING

      Yes, the entry of compulsory nonsuit entered on behalf of PECO should be

affirmed because Appellants failed to meet their burdens establishing a right to the

relief requested.

V. RATIONALE

      A.       This Court did not Err in Denying Appellants' Motion for Summarv
               ,Judgment

      Appellants moved for summary judgment on July 14, 2015, requesting that this

Court enter judgment in their favor as a matter of law as to the interpretation of

Appellants' rights under the Easement. Finding the arguments to be lacking merit,

Appellants' motion for summary judgment was denied. Appellants then raised the

same issues at trial and, for the reasons discussed herein, the Court granted PECO's

motion for compulsory nonsuit after determining that Appellants failed to establish a

right to relief. Thus, the Court's analysis regarding denial of Appellants' motion for

summary judgment is addressed below.

      8.       This Court did not Err in excluding testimony, evidence, and admissions
               from Debra Morgan

      This issue was not raised and/or briefed in Appellants' Post-Trial Motion and,

therefore, it is deemed waived for purposes of appeal and need not be addressed
                                           4
                                       676a




herein.        See, Diamond Rea Truck Co. v. Mid-Pacific     Industries, Inc., 806 A.2d 423,

428 (Pa.Super.2002) (quoting L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55,

55 (Pa.1998)).

          C.       This Court did not Err in Granting PECO's Oral Motion for Nonsuit

          In granting PECO's oral motion for nonsuit at the conclusion of Appellants' case

at trial, the Court found that (1) the Easement was unambiguous, allowing PECO to

place the new electrical cable on the Appellants' property without first submitting

written plans and obtaining permission from Appellants, and (2) the Appellants did not

show the existence of any injury or damages. Appellants contend that I erred in

granting PECO's nonsuit as a matter of law.

          Pennsylvania Rule 230.1 of Civil Procedure governs compulsory nonsuits at

trial. A motion for compulsory nonsuit allows a defendant to test the sufficiency of a

plaintiff's evidence. See, Francioni v. Gibsonia Truck Corp., 372 A.2d 736 (Pa. 1977).

A trial court may enter a compulsory nonsuit on any and all causes of action if, at the

close of the plaintiff's case against all defendants on liability, the court finds that the

plaintiff has failed to establish a right to relief. Pa.R.C.P.   No. 230.1(a), (c): see also,

Biddle v. Johnsonbaugh,        664 A.2d 159 (Pa. Super. 1995) and Orner v. Mallick, 639

A.2d 491, 492 (Pa. Super. 1994). On appeal, entry of a compulsory nonsuit is affirmed

only if no liability exists based on the relevant facts and circumstances, with appellant

receiving "the benefit of every reasonable inference and resolving all evidentiary

conflicts in [appellant's] favor." See, Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998).

       At the outset of this analysis, it is highlighted that the parties agreed that the

Easement is an unambiguous document which speaks for itself. As an unambiguous

document, it is subject to the Court's interpretation as a matter of law.       See, Banks
                                               5
                                     677a




Engineering    Co., Inc., v. Polons, 697 A.2d 1020, 1022 (Pa.Super.1997)(citations

omitted), appeal granted, 706 A.2d 121 O (Pa. 1998). Appellants were not signatories

to the Easement at issue. The document does not contain any grant of rights to the

successors or assigns of the original landowners; in contrast, however, the Easement

does include a grant of rights to the then existing company, but also to PECO, which is

the successor to its prior company. Thus, I gave consideration to the fact that the

drafters and negotiators of this document specifically granted successor rights to

PECO and did not do the same for any successors or assigns of the original

landowners. See, Meeting House Lane, Ltd. v. Melso, 628 A.2d 854, 857 (Pa. Super.

1993)("1ndetermining the intent of the parties to a written agreement, the court looks

to what they have clearly expressed, for the law does not assume that the language in

the document was chosen carelessly.").        When the terms in an agreement are not

defined, the Court should construe its terms "in accordance with their natural, plain

and ordinary meaning." See, Cordero v. Potomac Ins. Co. of Illinois, 794 A.2d 897,

900 (Pa. Super. 2002).

       Pursuant to the Easement, PECO's right to install the electric facilities in the

first place was subject to the express condition that the location of the facilities to be

installed had to be depicted on plans and approved by the original homeowners, and

signatories of the Easement, in advance of installation.           This is established by

Condition #1. The Court pays particular attention to the words "parties hereto" and

"having been approved by them" as unambiguously stating that Condition #1 granted

the right of approval for the location of the electric facilities to the original homeowners,

the Feehrers, as parties to the Easement. However, Condition #2 limits these rights to

the initial exercise of the rights therein granted. Therefore, when Conditions #1 and #2
                                             6
                                       678a




are read together, the effect is that, in its initial exercise of placing electric facilities on

the property, PECO was obligated to submit plans to and obtain approval from the

original landowners, the Feehrers.       However, following the initial exercise of its rights

regarding the placement of the electric facilities, PECO is not required to seek the

same landowner approval.         Indeed, I read Condition #2 to mean that PECO's rights

were not restricted after the initial approval process was completed.              Neither the

Feehrers nor subsequent landowners, e.g. the Appellants, had further "prior approval"

rights.    Only PECO maintained the powers and rights originally granted.           Appellants

desire that I read Condition #1 in isolation, ignoring Condition #2 and the remaining

provisions of the document. This I cannot do.

          Appellants argue that my interpretation of the Easement grants PECO greater

rights as against Appellants      than it would have had against the original property

owners.      I disagree.   To the contrary, Appellants maintain the same rights as those

possessed by the original property owners.            Where my interpretation     differs from

Appellants'    is the understanding    of the rights conferred upon the original property

owners.     The language of the Easement grants the right of approval to the property

owners regarding the initial       location   of the electrical facilities.   Such right was

extinguished     upon PECO's      initial exercise   of its powers     and rights under the

Easement,      i.e. the original installation of the electric service and facilities.      The

Easement does not grant either the original property owners or subsequent property

owners the right to prior approval for any future placement of electrical facilities.

          Plaintiffs reduce the argument ad absurdum, claiming that under the Court's

construction of the Easement, PECO is permitted the unfettered right to place any

number of cables in any location PECO desires on the Appellants' 11 acre property,
                                                7
                                     679a




including "under the shed, under the house, and under the swimming pool," or perhaps

all of the above, without any consultation or approval from Appellants.           These are

simply not the facts at issue.   Rather, PECO placed the cable on the opposite side of

the driveway (from the old cable) following a determination that it was the only feasible

location.   Based upon this interpretation       of the Easement and the rights granted

thereunder, it was not incumbent on PECO to obtain Appellants' approval prior to

placing the electric cable on the other side of the driveway. I did not err in so finding.

       Appellants additionally argue that the Court erred in its finding that injunctive

relief was not available to Appellants in the absence of proof of damages.        In support

of this claim, Appellants cite to Jones v. Wagner for the proposition that Pennsylvania

law does not require the showing of physical harm or damage to the land before a

landowner can enforce his right to freely enjoy his property. 624 A.2d, 166, 171.        I do

not dispute that this principle of law is set forth in Jones, but I disagree with its

applicability here.

       In Jones, a property owner brought a suit for compensatory damages against

the adjoining landowner after the adjoining landowner trimmed owner's tree limbs to

the extent they encroached upon his property. The trial court dismissed the complaint

with prejudice upon preliminary objections and the Superior Court affirmed, holding

that the law required no showing of physical harm or damage to land before the

adjoining landowner could enforce his right to self help. See, Id. at 166. The plaintiffs

in Jones sought monetary relief for the damage done to their trees and the trial court

determined that such damages did not establish a cause of action. Id.

       In its discussion, the Jones Court analyzed the continuing nature of the

trespass at issue, branches overhanging the property lines. This was considered a
                                             8
                                    680a




"continuing" trespass because tree limbs tend to grow back when trimmed and the

encroachment   is bound to recur.   See, Id. at 170; see also, Graybill v. Providence

Twp., 593 A.2d 1314 (Pa. Commw. 1991)(recurring flooding on plaintiff's land caused

by defendant's conduct is a continuing trespass).    In so finding, the Superior Court

determined that Pennsylvania law does not require the showing of harm in order for a

property owner to state a cause of action based upon a continuing trespass. Id.

       Here, however, I was not dealing with a continuing trespass and, therefore, I do

not find Jones v. Wagner controlling as Appellants demand. Appellants are incorrect

on several levels.   First, Appellants contend that this Court erred in finding that

PECO's conduct constituted a continuing trespass. To the contrary, however, for the

reasons discussed above, I determined that PECO committed no trespass. To prevail

on a cause of action for trespass, the plaintiff must demonstrate that the defendant (1)

intentionally, (2) entered the property of another, (3) without the privilege to do so.

See, Kopka v. Bell Telephone Co. of Pa., 91 A.2d 232 (Pa. 1952). At trial, it was

conceded that PECO intentionally entered the property of Appellants; however, under

the Easement, it maintained a privilege to do so. Thus, no matter the nature of the

alleged trespass by PECO, either continuing or permanent, such a trespass is not a

trespass at all if the actor has obtained an Easement, thereby making its conduct

privileged. Because Appellants could not satisfy their burden of proof in demonstrating

that PECO committed a trespass, the entry of nonsuit was proper.

      To the extent that the trespass must be characterized, I did not conclude that

PECO's placement of the electrical cable constituted a continuing trespass as claimed

by Appellants, but rather a permanent trespass.        The concept of a "continuing

trespass" is defined under the Restatement (Second) of Torts § 161, comment b.
                                           9
                                    681a




(1965) which provides:

              The actor's failure to remove from land in the possession of
              another a structure, chattel or other thing which he has
              tortiously erected or placed on the land constitutes a
              continuing trespass for the entire time during which the
              thing is wrongfully on the land and .. . confers on the
              possessor of the land an option to maintain a succession of
              actions based on the theory of continuing trespass or to
              treat the continuance of the thing on the land as an
              aggravation of the original trespass.

       A "permanent trespass" is defined by the Restatement (Second) of Torts§ 162,

comment e. (1965) as follows:

             A continuing trespass must be distinguished from a
             trespass which permanently changes the physical condition
             of the land. Thus, if one, without a privilege to do so, enters
             land of which another is in possession and destroys or
             removes a structure standing upon the land, or digs a well
             or makes some other excavation or removes earth or some
             other substance from the land, the fact that the harm thus
             occasioned on the land is a continuing harm does not
             subject the actor to liability for a continuing trespass. Since
             his conduct has once [and] for all produced a permanent
             injury to the land, the possessor's right is to [a] full redress
             in a single action for the trespass, and a subsequent
             transferee of the land, as such, acquires no cause of action
             for the alteration of the condition of the land (emphasis
              added).


Pennsylvania courts have adopted the above definitions. See, Mancia v. Department

of Transportation, 517 A.2d 1381 (Pa. Cmwlth. 1986); see also, County of Allegheny v.

Merrit Construction Co., 454 A.2d 1051 (Pa. Super. 1982).

      To determine whether a trespass is of a continuing or permanent nature, the

court is to consider the following factors: "( 1) the character of the structure or thing

which produces the injury; (2) whether 'the consequences of the trespass will continue

indefinitely'; and (3) whether the 'past and future damages may be predictably

                                           10
                                      682a




ascertained."'     See, Cassell-Hess v. Hoffer, 44 A.3d 80, 87 (Pa. Super. 2012).

Considering the above factors, I determined that the alleged trespass constitutes a

permanent trespass as it involved PECO performing an affirmative act, excavating a

portion of the land, and permanently placing a new electrical cable underground. The

placement of such cable occurred once and has permanently changed the physical

condition of the land. Any claimed consequences of the placement of the electrical

cable will purportedly continue indefinitely due to the permanent nature of the cable

and any such damages, be they past or future, may be predictably ascertained. The

above-cited examples demonstrate that "continuing" is synonymous with "recurring"; in

contrast, "permanent" represents an enduring alteration to the land itself. Thus, if a

trespass at all, the placement of an underground electrical cable constitutes a

permanent trespass.

       Jones v. Wagner analyzed the remedies available for a continuing trespass and

determined that no showing of physical harm or damage to the land was required. 624

A.2d 166. The Jones Court reasoned that equitable remedies are available to a

property owner who suffers a continuing trespass because he is forced to repeatedly

endure the trespass due to its recurring nature. The same is not necessarily true

where an aggrieved landowner seeks a mandatory injunction regarding a permanent

trespass, the nature of which has caused an enduring alteration to the land. Jones

neither addressed the issues presented by a permanent trespass nor the high burden

required for a mandatory injunction.

       Appellants were thus required to demonstrate the prerequisites of a permanent

mandatory injunction. To prevail on a claim for a permanent mandatory injunction, the

plaintiff must establish (1) a clear right to relief, (2) that there is an urgent necessity to
                                             11
                                         683a




,   avoid an injury which cannot be compensated for by damages, and (3) that greater

    injury will result from refusing rather than granting the relief requested.   See, Big Bass

    Lake Cmty. Ass'n v. Warren, 950 A.2d 1137 (Pa. Cmwlth. 2008).

           At trial, I found that Appellants failed to establish a single prerequisite for a

    mandatory injunction, let alone all three. First, Appellants clearly failed to demonstrate

    a clear right to relief. Indeed, I concluded just the opposite. As a matter of law, I

    interpreted the Easement in a manner which did not convey to Appellants the right of

    prior approval of PECO's placement of the electrical cable on Appellants' property. As

    a result, PECO maintained a privilege to enter the property and place the cable where

    it deemed feasible and appropriate.           No trespass occurred and, accordingly,

    Appellants were not entitled to relief.

           Even if Appellants did establish a trespass, the right to a mandatory injunction is

    not automatic. At trial, I further found that Appellants failed to demonstrate any "urgent

    necessity" for an injunction so as to avoid an injury which cannot be compensated for

    by damages. Appellants suffered no damages, monetarily or otherwise, and such fact

    was admitted at trial by Appellants. They were given the opportunity to demonstrate to

    this Court how the placement of the new cable interfered with their use and enjoyment

    of their property and/or any diminution in value of the property. They failed to do so.

    Consideration of this evidence, or lack thereof, was part and parcel of the analysis of

    whether the Appellants established an "urgent necessity" as required for a mandatory

    injunction. Under the facts presented and Appellants' concession at trial that they

    suffered no damages, there was clearly no "urgent necessity" for the requested relief.

    Further, the fact that Appellants sustained no compensable damages or any loss of

    the use and enjoyment of their property means that they were not able to demonstrate
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to this Court that they were entitled to a mandatory injunction, an extraordinary remedy

issued in only the rarest of cases. See, 15 Standard Pennsylvania Practice 20, §83:9

(2005).

          In a similar vein, Appellants failed to demonstrate that greater injury will occur

from denial of the mandatory injunction than by granting it.           Plain and simple, I

concluded that Appellants suffered no injury, in any form, whatsoever. I deemed this

action brought by Appellants to be the height of frivolity, where Appellants simply

desired the new cable to be dug up and placed on the other side of the road, requiring

excavation of the abandoned cable, for no other purpose than their own edification.

The testimony at trial indicated that the current placement of the cable in no manner ,

interfered with Appellants' use and enjoyment of the property other than the fact that

the cable's placement without approval may have annoyed them. No trees, shrubs, or

landscaping were disturbed. No fence was removed. No structure or landmark was

relocated. It is difficult to conceive that greater injury would result from denial of the

mandatory injunction when Appellants have suffered no injury in the first place.

          Further, the remedy sought - forcing PECO to dig up and remove the operating

underground cable from its current location and move it to an undetermined location -

would serve to disrupt the electrical service to Appellants' neighbors for no

ascertainable benefit. Appellants provided no testimony at trial, expert or otherwise,

that would tend to suggest that the cable be moved for any engineering or utilitarian

purpose.      This demand for relief is neither reasonable nor equitable.          Thus, I

determined that greater injury would result from granting the requested injunction,

particularly from a public policy standpoint as it would serve to encourage such

frivolous lawsuits for the sake of one's ego, a fight, or whatever is motivating
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Appellants here.

       In light of the above, I did not err in denying Appellants' request for injunctive

relief or in requiring some evidence of injury in support of any injunction.        Indeed, the

entry of nonsuit was proper as Appellants failed to meet their burdens in proving the

necessary elements for injunctive relief. The case for a mandatory injunction must be

made by a very strong showing, which Appellants failed to do at trial. My focus on the

damages element (not necessarily monetary damages,            in contrast to Appellants'

claim) was clearly relevant in evaluating the elements necessary to establish a right to

injunctive relief, including whether Appellants demonstrated an "urgent necessity" for

said injunction or whether Appellants established that greater injury would result from

denial of the injunction than by granting the relief requested.   Appellants' contention

that Jones v. Wagner is controlling precedent that I failed to consider is simply

erroneous. Each of the cases cited by Appellants in support of the proposition that no

damages must be proven in order to establish a right to injunctive relief concerns a

continuing trespass and is, therefore, not applicable here. See, Jones, supra; Olexa v.

DeSa/es   Univ., 78 Pa.D.& C.4th 171, 181          (Leh. Cty. 2005); America Energy

Resources, LLC v. Moore, 2008 Tex. App. LEXIS 7644.

       Upon consideration of the foregoing reasons,        respectfully request that the

entry of nonsuit in favor of PECO be affirmed.

      All of which is respectfully submitted.

                                           BY THE COURT:




                                                                               J.

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