J-S28034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ROBERT J. LEIBENSPERGER, JR. AND         :   IN THE SUPERIOR COURT OF
 DEBORAH LEIBENSPERGER,                   :         PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
 PPL SERVICES CORP. (AS AMENDED           :
 TO PPL ELECTRIC UTILITIES CORP.)         :        No. 1665 MDA 2017

                Appeal from the Order Entered October 5, 2017
              in the Court of Common Pleas of Schuylkill County,
                     Civil Division at No(s): S-1321-2017

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

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 03, 2018

      Robert J. Leibensperger, Jr. (“Robert”), and Deborah Leibensperger

(collectively “the Leibenspergers”) appeal from the Order sustaining the

Preliminary Objections filed by PPL Services Corp. (“PPL”), and dismissing the

Leibenspergers’ Action for Declaratory Relief, with prejudice. We affirm.

      The Leibenspergers own a parcel of land (“subject property”) in

Schuylkill County, Pennsylvania, that is subject to an express easement owned

by PPL, an electric company that operates electric lines on property adjacent

to the subject property. The easement was originally granted in a December

21, 1964 deed between the Panther Valley Water Company and Pennsylvania

Power & Light Company, PPL’s predecessor, which granted Pennsylvania

Power & Light Company,

      its successors, assigns and lessees, the right to construct, operate
      and maintain, and from time to time (limited to the extent that
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       presently designated clearing widths will permit) to reconstruct its
       electric lines, including such poles, towers, cables and wires above
       and under the surface of the ground, fixtures and apparatus as
       may be from time to time necessary for the convenient transaction
       of the business of the said [Pennsylvania Power & Light
       Company]; its successors, assigns and lessees, upon, across,
       over, under and along the cleared areas as set forth and shown
       on the plan hereto attached and made a part hereof and located
       in Packer Township, Carbon County, and Rush and Rahn
       Townships, Schuykill County, Pennsylvania, and upon, across,
       over, under and along the existing roads, streets and highways
       belonging to [the Panther Valley Water Company] adjoining the
       said cleared areas, including the right of ingress and egress to and
       from the said lines at all times for any of the purposes aforesaid….

Deed, 12/21/64, at 1 (pages renumbered and emphasis added).

       Robert acquired the subject property in an April 22, 1988 deed from

Blue Ridge Real Estate Company, and subsequently transferred ownership to

himself and his wife, jointly.1 The April 22, 1988 deed states that the subject

property was “under and subject to a permanent easement agreement dated

December 21, 1964, by and between Panther Valley Water Company and

Pennsylvania Power and Light Company, for transmission and distribution lines

and other facilities, said Agreement having been assigned to Blue Ridge Real

Estate Company.” Deed, 4/22/88, at 2 (pages renumbered).

       On July 13, 2017, the Leibenspergers filed an Action for Declaratory

Relief, requesting that the trial court “resolve the issue over the construction

of the [e]asement and declare their right to be free of [PPL’s] ingress and


____________________________________________


1The record does not contain copies of the deed transferring ownership of the
subject property between Panther Valley Water Company and Blue Ridge Real
Estate Company.

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J-S28034-18


egress over the [s]ubject [p]roperty.”     Action for Declaratory Relief, at 2

(pages unnumbered).      The Leibenspergers specifically alleged that PPL’s

easement is invalid, or alternatively, that PPL should be barred from using the

easement because PPL has access to its transmission facilities directly from a

public highway. PPL filed Preliminary Objections in the nature of a demurrer,

alleging that the easement is not ambiguous, and alternatively, that even if it

is ambiguous, the Leibenspergers still have no basis for relief.             The

Leibenspergers filed an Answer. The trial court sustained PPL’s Preliminary

Objections and dismissed the Leibensperger’s Action with prejudice.          The

Leibenspergers filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      The Leibenspergers’ issues on appeal are as follows:

      1. Whether the trial court committed an error of law in concluding
      that the Leibenspergers’ Action for Declaratory Relief did not state
      a claim on which relief could be granted?

      2. Whether the trial court committed an abuse of discretion in
      dismissing the Leibenspergers’ Action for Declaratory Relief with
      prejudice?

Brief for Appellants at 4 (some capitalization omitted).

            An appeal from an order granting preliminary objections in
      the nature of a demurrer is subject to plenary review. In
      determining whether the trial court properly sustained preliminary
      objections, the appellate court must examine only the averments
      in the complaint, together with the documents and exhibits
      attached thereto, and the impetus of our inquiry is to determine
      the legal sufficiency of the complaint and whether the pleading
      would permit recovery if ultimately proven. This Court will reverse
      the trial court’s decision regarding preliminary objections only
      where there has been an error of law or abuse of discretion.

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      Finally, preliminary objections in the nature of a demurrer require
      the court to resolve issues solely on the basis of the pleadings,
      and no testimony or other evidence outside of the complaint may
      be considered to dispose of the legal issues presented.

McNaughton Props., LP v. Barr, 981 A.2d 222, 224 (Pa. Super. 2009)

(citations omitted).

      The Leibenspergers allege that the language granting the easement is

vague in that it does not specify an exact location where “ingress and egress”

is permitted. See Brief for Appellants at 10, 14-15. The Leibenspergers argue

that where an easement is vague, the easement holder’s use of the easement

is limited to “any manner that is reasonable.” See id. (citing Lease v. Doll,

403 A.2d 558 (Pa. 1979)). According to the Leibenspergers, all use of the

easement at issue is unreasonable, because PPL has alternate access to their

power lines via a route that does not require use of the subject property. See

Brief for Appellants at 11-13.

      “An easement is a right in the owner of one parcel of land by reason of

such ownership to use the land of another for a special purpose not

inconsistent with a general property in the owner.” Clements v. Sannuti, 51

A.2d 697, 698 (Pa. 1947) (emphasis and citation omitted). “[A]n easement

is an abstract property interest that is legally protected.” Forest Glen Condo.

Ass’n v. Forest Green Commons Ltd. P’ship, 900 A.2d 859, 864 (Pa.

Super. 2006) (citation omitted). An express easement is created by explicit

reservation in a grant of land. See Piper v. Mowris, 351 A.2d 635, 638 (Pa.

1976).

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      In interpreting an express easement,

            [i]t is well established that the same rules of construction
      that apply to contracts are applicable in the construction of
      easement grants. … In ascertaining the scope of an easement,
      the intention of the parties must be advanced. Such intention of
      the parties is determined by a fair interpretation and construction
      of the grant and may be shown by the words employed construed
      with reference to the attending circumstances known to the
      parties at the time the grant was made. Where the grant of an
      easement is unrestricted, the grantee is given such rights as are
      necessary for the reasonable and proper enjoyment of the thing
      granted. … Thus, our cases tell us that when the grant of an
      easement is ambiguous[,] we must determine if the grantee’s
      asserted use is a reasonable and necessary use in relation to the
      original purpose of the grant and within the intention of the
      original parties to the grant.

Zettlemoyer v. Transcon. Gas Pipeline Corp., 657 A.2d 920, 924 (Pa.

1995) (quotation marks, brackets, and citations omitted).

      Further, “terminating an easement is not a simple matter....          [A]n

easement may terminate either through the operation of the limitations of its

creation or by extinguishment.” Forest Glen, 900 A.2d at 864.

      Alternatively,

      [i]n order to establish the abandonment of a right-of-way, the
      evidence must show that the easement holder intended to give up
      its right to use the easement permanently. Such conduct must
      consist of some affirmative act on his part which renders use of
      the easement impossible, or of some physical obstruction of it by
      him in a manner that is inconsistent with its further enjoyment.

Moody v. Allegheny Valley Land Tr., 930 A.2d 505, 514 (Pa. Super. 2007)

(citation omitted).

      Here, the Leibenspergers have not alleged that the easement has been

extinguished, or that PPL abandoned the easement, or committed some act

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that would render use of the easement impossible.       Instead, they simply

assert that the holding in Lease provides a basis for termination of the PPL

easement.

     In Lease, the Lease family and Doll family owned adjoining parcels of

land. Lease, 403 A.2d at 560. The sole means of access from a public road

to the Leases’ property was an easement over the Doll’s property. Id. The

easement was expressly reserved by a prior owner of both parcels in a

transaction separating the two properties.      Id.   The language of that

easement, in pertinent part, read as follows:

           A right-of-way is granted … leading from the southeast
     corner southward on the west side of the stream of water from
     the said corner to the public road. That the grantees and their
     successors may at all times have the right to use same as an outlet
     from the premises hereby conveyed to the public road.

           The right of way follows the stream which marks its eastern
     boundary and extends from the public road to the southern border
     of the Leases’ property. The ground immediately adjacent to the
     stream is soft and damp and, on occasion, is impassable by a
     motor vehicle.

Id. (quotation marks omitted). When the easement was originally granted in

1952, it was used solely for traffic by foot, primarily because the property

owner at that time did not own a motor vehicle. Id. at 561. Shortly after

purchasing the property in 1971, the Leases sought to use the easement to

travel by vehicle to the public road. Id. However, when they attempted to

prepare the easement for vehicular travel, the Dolls built a fence on their

property that “effectively limited the right of way to a footpath.” Id. The


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Leases filed a Complaint in equity against the Dolls, seeking to enjoin them

from preventing access to the Leases’ property, via motor vehicle travel,

pursuant to the easement. Id. at 560. The Court concluded that the language

setting forth the easement was ambiguous as to width and held that where an

express easement is ambiguous, it is to be construed (1) in favor of the

grantee, and (2) to allow any “reasonable use.” Id. at 563. The Court found

that use of the easement for motor vehicle travel was reasonable, because

access to the public road was the contemplated purpose of the easement. Id.

at 564.

      Here, the Leibenspergers argue that Lease empowers a trial court to

declare all use of an ambiguous express easement unreasonable. However,

the issue in Lease was the scope of the easement, i.e., what use of the

easement was reasonable.       Id. at 561.    The Lease Court did not state,

explicitly or implicitly, that a court may declare all use of an express easement

unreasonable.     Therefore, the holding in Lease is inapplicable.          See

McNaughton Props., supra; Forest Glen, supra.

      Moreover, the right of “ingress and egress” in PPL’s easement “to and

from the [electric] lines at all times” is clear and unambiguous. See PARC

Holdings, Inc. v. Killian, 785 A.2d 106, 115 (Pa. Super. 2001) (stating that

the grant of a right to “ingress and egress” is a type of easement, which may

be “specifically defined as the entrance and exit of people, or people and

vehicles, or more generally defined as access to the dominant estate.”).


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Indeed, the easement specifically stated that it was granted for the purposes

of “construct[ing], operat[ing] … maintain[ing], and … reconstruct[ing] [the]

electric lines.” Deed, 12/21/64, at 1 (pages renumbered). Thus, the terms

were defined with relation to the circumstances known to the parties at the

time of the grant. See Lease, 403 A.2d at 562. As Lease is inapplicable,

and PPL’s easement is unambiguous, we cannot grant the Leibenspergers’

Relief on their first claim.

         In their second issue, the Leibenspergers allege that the trial court

committed an abuse of discretion in dismissing their action with prejudice.

See Brief for Appellants at 13. The Leibenspergers argue that if they were

granted leave to amend their action, they could establish a factual record

showing that all use of the easement by PPL would be unreasonable. See id.

at 14.

         Pennsylvania Rule of Civil Procedure 1033, which governs the

amendment of pleadings, states, in relevant part, as follows:

                A party, either by filed consent of the adverse party or by
         leave of court, may at any time change the form of action, add a
         person as a party, correct the name of a party, or otherwise
         amend the pleading.           The amended pleading may aver
         transactions or occurrences which have happened before or after
         the filing of the original pleading, even though they give rise to a
         new cause of action or defense. An amendment may be made to
         conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033.

               Even where a trial court sustains preliminary objections on
         their merits, it is generally an abuse of discretion to dismiss a
         complaint without leave to amend. There may, of course, be

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      cases where it is clear that amendment is impossible and where
      to extend leave to amend would be futile. However, the right to
      amend should not be withheld where there is some reasonable
      possibility that amendment can be accomplished successfully. In
      the event a demurrer is sustained because a complaint is defective
      in stating a cause of action, if it is evident that the pleading can
      be cured by amendment, a court may not enter a final judgment,
      but must give the pleader an opportunity to file an amended
      pleading.

Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014) (citation and emphasis

omitted).

      Here, the Leibenspergers baldly seek to amend their action in order to

plead additional facts that would support their contention that all use of the

easement is unreasonable.      In light of the unambiguous language in the

easement, however, no amount of additional facts would permit the recovery

requested by the Leibenspergers. Therefore, amendment of their action will

not cure this fatal defect. See id. Accordingly, the trial court did not abuse

its discretion in dismissing the Leibeinspergers’ Action for Declaratory Relief

with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/03/2018




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