J-A13006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BRADLEY A. SIMON AND AMY J.    :            IN THE SUPERIOR COURT OF
 SIMON, HUSBAND AND WIFE        :                 PENNSYLVANIA
                                :
                Appellants      :
                                :
                                :
           v.                   :
                                :
                                :            No. 771 WDA 2017
 SUNOCO PIPELINE, L.P.; SUNOCO  :
 LOGISTICS PARTNERS, L.P.;      :
 PERCHERON FIELD SERVICES, LLC; :
 EVAN DESVERNINE, LORI ANDREWS; :
 TOM KENNEY; MICHAEL JONES      :

                     Appeal from the Order May 4, 2017
    In the Court of Common Pleas of Washington County Civil Division at
                             No(s): 2015-3302


BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 07, 2019

      Appellants, Bradley A. Simon and Amy J. Simon (husband and wife),

appeal from an order entered on May 4, 2017 in the Civil Division of the Court

of Common Pleas of Washington County that denied their petition for a

preliminary injunction. We affirm.

      The relevant facts and procedural history are as follows. On September

13, 2013, Appellants executed a right-of-way (ROW) agreement with Sunoco

Pipeline, L.P. (Sunoco).   The parties’ ROW agreement granted Sunoco a

permanent, non-exclusive 50-foot ROW across Appellants’ property to

construct the Mariner East 1 Pipeline for use in the transportation of natural

gas liquids and other petroleum products. The ROW agreement also conveyed
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to Sunoco a 25-foot wide temporary workspace, together with and an

additional 30-foot wide temporary workspace, next to the permanent ROW

across Appellants’ property.        Pursuant to the parties’ agreement, Sunoco’s

right to use the temporary construction workspaces started on the date

construction commenced on the Mariner East 1 Pipeline, which occurred in

2014.     The ROW further provided, however, that if Sunoco’s use of the

temporary workspaces ended before the passage of 12 months, then the

temporary workspaces would immediately terminate. The ROW agreement

also granted Sunoco the right to construct additional pipelines through

Appellants’ property in the future.            These additional pipelines were to be

located parallel to the initial Mariner East 1 Pipeline and within the 50-foot

permanent easement. Sunoco completed construction of the Mariner East 1

Pipeline in 2014 and its use of the temporary workspaces ended in 2015.

        On April 12, 2016, Sunoco notified Appellants of its intent to install a

second pipeline, known as the Mariner East 2 Pipeline, through their property.

In response, Appellants, on April 28, 2017, filed a petition for preliminary

injunctive relief, seeking to prevent Sunoco from using the temporary

workspace easements to construct the Mariner East 2 Pipeline. 1 Appellants
____________________________________________


1 On June 8, 2015, prior to filing their petition for preliminary injunctive relief,
Appellants filed a first amended complaint against Sunoco alleging fraud,
negligence, and negligent misrepresentation because Sunoco allegedly
claimed it had eminent domain powers at the time the parties executed the
ROW agreement. The amended complaint requested rescission of the ROW
agreement and damages. Appellants’ petition for preliminary injunctive relief
was filed at the same docket number as their amended complaint for
damages.

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asserted that the ROW agreement granted Sunoco the right to install

additional pipelines within the 50-foot permanent easement but not the right

to use the temporary workspace easements to facilitate construction of those

additional pipelines.   As such, Appellants asked the trial court to enjoin

Sunoco’s construction work in connection with the Mariner East 2 Pipeline

along the temporary easements on their property.

      The trial court heard oral argument on May 3, 2017 and denied

Appellants’ petition on May 4, 2017.      The court concluded, inter alia, that

Appellants failed to demonstrate irreparable harm.

      Appellants filed a timely notice of appeal on May 25, 2017. Pursuant to

court order, Appellants filed a concise statement of errors complained of on

appeal on August 16, 2017. See Pa.R.A.P. 1925(b). The trial court issued its

Rule 1925(a) opinion on September 29, 2017.

      Appellants raise the following claims for our review:

      Whether the [trial court] erred as a matter of law when it denied
      [Appellants’] petition for preliminary injunction, which requested
      that [Sunoco’s] easement for the Mariner East 2 Pipeline across
      [Appellants’] land be limited to the fifty (50’) permanent
      right-of-way granted by [Appellants] to Sunoco for the Mariner
      East 2 Pipeline?

      Whether [Appellants] met the criteria for granting a preliminary
      injunction?

      Whether the [trial court] erred in allowing Sunoco to occupy a
      larger easement for [the Mariner East 2 Pipeline] without an
      evidentiary hearing allowing Sunoco to evade the requirements of
      the Eminent Domain Act?

Appellants’ Brief at 4 (certain capitalization omitted).

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      Appellants’ claims assert that the trial court erred in denying their

petition for a preliminary injunction.    We apply a well settled standard of

review to such claims:

      [Our] review of a trial court's order granting or denying
      preliminary injunctive relief is highly deferential. Summit Towne
      Centre, Inc. v. Shoe Show of Rocky Mount Inc., 828 A.2d
      995, 1000 (Pa. 2003). This highly deferential standard of review
      states that in reviewing the grant or denial of a preliminary
      injunction, an appellate court is directed to examine the record to
      determine if there were any apparently reasonable grounds for
      the action of the court below. Id. [Based upon the analysis in
      Summit Town Centre, which implies that an appellate court
      must conduct a searching inquiry of the record, a plenary scope
      of review is applied. An appellate court should] find that a trial
      court had apparently reasonable grounds for its denial of
      injunctive relief where the trial court has properly found that any
      one of the following essential prerequisites for a preliminary
      injunction is not satisfied. Id. at 1002.

      There are six essential prerequisites that a party must establish
      prior to obtaining preliminary injunctive relief. The party must
      show: 1) that the injunction is necessary to prevent immediate
      and irreparable harm that cannot be adequately compensated by
      damages; 2) that greater injury would result from refusing an
      injunction than from granting it, and, concomitantly, that issuance
      of an injunction will not substantially harm other interested parties
      in the proceedings; 3) that a preliminary injunction will properly
      restore the parties to their status as it existed immediately prior
      to the alleged wrongful conduct; 4) that the activity it seeks to
      restrain is actionable, that its right to relief is clear, and that the
      wrong is manifest, or, in other words, must show that it is likely
      to prevail on the merits; 5) that the injunction it seeks is
      reasonably suited to abate the offending activity; and, 6) that a
      preliminary injunction will not adversely affect the public interest.
      Id. at 1002.      The burden is on the party who requested
      preliminary injunctive relief[.]

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004) (footnote omitted;

internal quotation marks omitted).


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      In applying the above principles in this case, we are convinced that the

trial court had reasonable grounds to deny relief. In its Rule 1925(a) opinion,

the trial court found that Appellants did not meet their burden of

demonstrating irreparable harm.      Trial Court Opinion, 9/29/17, at 2.      In

particular, the trial court reasoned that the temporary workspaces at issue in

this case would be returned to Appellants in a restored condition. See id.

      Significantly, Appellants do not dispute this finding before this Court.

Instead, Appellants argue that recurrent future use of the temporary

workspaces by Sunoco qualifies as irreparable harm. See Appellants’ Brief at

16-23. Appellants’ buttress this claim by declaring that Sunoco’s use of the

temporary workspaces has extended beyond the timelines and/or parameters

contemplated by the parties’ ROW agreement. See id. at 23.

      Notwithstanding these contentions, we fail to see how Appellants have

proven irreparable harm. “An injury is regarded as ‘irreparable’ if it will cause

damage which can be estimated only by conjecture and not by an accurate

pecuniary standard.” Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000),

appeal denied, 782 A.2d 541 (Pa. 2001).         Here, Appellants conveyed to

Sunoco the right to use the temporary workspaces for construction of the

Mariner East 1 Pipeline. Even if Appellants are correct that Sunoco has used

the temporary workspaces outside the original contemplation of the parties as

expressed in the ROW agreement, they have offered nothing to show that




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Sunoco’s use of the land is incapable of reclamation or not amenable to

compensation pursuant to an accurate pecuniary standard.

       In view of the record before us, we cannot conclude that the trial court

lacked any reasonable grounds for its order denying relief.2 Consequently,

pursuant to our highly deferential standard of review, the order denying

Appellants’ preliminary injunction must be upheld.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2019




____________________________________________


2 Some of the arguments raised by Appellants, e.g. the issues raised in parts
III and IV of Appellants’ brief, invite us to address the ultimate merits of some
of the claims present in this case. We decline this invitation. The scope of
this appeal extended to whether or not the trial court had any apparently
reasonable grounds to deny Appellants’ request for a preliminary injunction.
As such, it would be improper for this Court to address any issues beyond
whether Appellants proved the essential prerequisites for preliminary
injunctive relief. We have confined our discussion accordingly.

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