J-A10022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAMS FIELD SERVICES COMPANY,              IN THE SUPERIOR COURT OF
LLC,
                                                     PENNSYLVANIA


                         Appellant



                    v.



CLEO R. TEEL AND GLORIA D. TEEL,
HUSBAND AND WIFE



                         Appellees                No. 1475 MDA 2013



              Appeal from the Judgment Entered August 8, 2013
            In the Court of Common Pleas of Susquehanna County
                      Civil Division at No: 2012-1959-CP

BEFORE: DONOHUE, ALLEN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 25, 2014

     Appellant, Williams Field Services Company, Inc., appeals from the

August 8, 2013 judgment entered in favor of Appellees, Cleo R. and Gloria

D. Teel. We vacate and remand.

     This litigation arises from a Pipeline Right-of-Way and Compressor Site

Grant agr                     -of-

                                                         -acre property in

Susquehanna County.      Appellees executed the Right of Way in 2007 with

                                                    predecessor-in-interest.
J-A10022-14


In addition, in 2008, Appellees and Cabot executed a Compressor Station



concerning the compressor station to be built. The Right-of-Way gave Cabot

the right

Right-of-



                                    -of-Way, 10/6/07.        The Right of Way also



                                         Id.

      In 2010, Cabot assigned its rights in the Right-of-Way and Compressor

Station Agreement to Appellant.         In 2011, Appellant engaged Appellees in

discussions about the location of a new pipeline, specifically a discharge line,

                                                                      -of-Way. N.T.

Trial, 7/10/13, at 86-87.        Appellees, however, declined to consent to the

construction of a new pipeline in accordance with the Right of Way.                In

response, instead of standing on rights acquired under the Right of Way,

Appellant thereafter approached Appellees with a proposal for a new right-

of-                                                      Id. at 88.

      The Proposed Agreement would, among other things, govern the

location    of   a   discharge   line   and    provide   Appellees    more   financial

compensation than the Right-of-Way.             Id. at 48-49, 52-54.         Appellant

believed the parties verbally agreed to a location for the discharge line. Id.


                                         -2-
J-A10022-14


at 54, 103.     Nonetheless, the parties never executed the Proposed

Agreement because they could not agree on compensation. Id. Appellant

offered testimony that one of its goals in pursing the Proposed Agreement

was to arrive at a mutually acceptable location for the discharge line,

regardless of whether the parties executed the proposed agreement or

proceeded under the existing Right of Way.   Id. at 37.   When it became

evident that agreement on the Proposed Agreement would not be had,

Appellant undertook to commence construction of the discharge line under

the terms of the executed Right of Way. Id. at 62, 68-

6.   Appellant tendered compensation pursuant to the Right of Way, in

response to which Appellees denied any agreement as to location of the

discharge line and declined the compensation. Id.



preparations for the discharge line, Appellees ejected them. Id. at 68-69,

135-37.



action on October 23, 2012 seeking permanent injunctive relief.       The

complaint upon which the Appellant proceeded to trial sought to enforce

rights Appellant possessed under the executed Right of Way and Compressor

Station Agreements. The parties proceeded to a non-jury trial on July 10,



compulsory nonsuit.   Appellees argued that the parties had not reached


                                  -3-
J-A10022-14


mutual consent for location of the discharge line and therefore, Appellant did

not meet its burden of proof. Id. at 139-40. In response, Appellant argued

it was entitled to relief, since Appellees could not unreasonably withhold

consent. Id. at 140. The trial court agreed it had to make a determination

as to whether consent was unreasonably withheld.            Id. at 141.   It also

stated that it felt the location selected was the best location anyone could

have, as it was direct, along the road, and did not bother anyone too much,

and that the location selected was a reasonable right-of-way area. Id. at

139-41.     Nonetheless, without any further explanation, the trial court



had not proven its case to merit the granting of a permanent injunction.

      Post-trial motions to remove the nonsuit were filed by Appellant and

denied by the trial court.    In its 1925(a) opinion, the trial court explained



was obtained by Appellant.      Trial Court Opinion, 10/1/13, at 3.    It further

explained that while Appellant argues that consent as to location was

obtained,   that   hardly   satisfied   the   consent   requirement   considering

Appellees had issues with monetary compensation, among other things, and

that other witnesses stated there were outstanding provisions presented by

Appellant that had yet to be finalized. Id. at 4-5. The latter was an obvious

reference to the terms not yet agreed to under the Proposed Agreement.




                                        -4-
J-A10022-14


        Judgment in favor of Appellees was entered on August 8, 2013, and

this timely appeal followed. Appellant raises three issues on appeal: (1) the

trial court erred in entering the nonsuit; (2) the trial court erred in

considering inadmissible parol evidence; and (3) the trial court erred in

                                                    st-

at 5.    We will confine our analysis to the first issue, which we consider

dispositive.

        Rule 230.1 of the Pennsylvania Rules of Civil Procedure governs entry

of nonsuit.     The Rule permits entry of nonsuit on any cause of action for



right to relief. Pa.R.C.P. 230.1(a)(1). The trial court, in ruling on a motion



favorable      to   the   plaintiff   introduced   by     the   defendant.   Pa.R.C.P.

230.1(a)(2).

               The motion for compulsory non-suit allows a defendant to

        only in cases where it is clear that the plaintiff has not provided
        sufficient evidence to establish all the elements necessary to
        maintain a cause of action. In making its determination, the trial
        court must give the plaintiff the benefit of all reasonable
        inferences arising from the evidence present and must resolve
        any conflict in favor of the plaintiff.

Bugosh v. Allen Refractories Co., 932 A.2d 901, 913 (Pa. Super. 2007)

                                                                              remove

a nonsuit for abuse of discretion or error of law. Dietzel v. Gurman, 806

A.2d 1264, 1268 (Pa. Super. 2002).                 We must resolve all evidentiary

                                           -5-
J-A10022-14


conflicts in favor of the party against whom the trial court entered the

nonsuit. Shay v. Flight C Helicopter Servs., 822 A.2d 1, 13 (Pa. Super.

2003).1     A compulsory non-suit is proper only where the facts and

circumstances compel the conclusion that the defendants are not liable

                                                           Mahan v. Am-Gard,

Inc., 841 A.2d 1052, 1058 (Pa. Super. 2003) (emphasis added), appeal

denied, 858 A.2d 110 (Pa. 2004).2


1
    Concerning the grant or denial of a permanent injunction, we must
determine whether the trial court committed an error of law in finding the
plaintiff established (or failed to establish) a clear right to relief. Buffalo
Twp. v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002), cert. denied, 540 U.S.
821 (2003). Our standard of review for a question of law is de novo. Id.
To justify the award of a permanent injunction, the party seeking relief
              sh that his right to relief is clear, that an injunction is necessary
to avoid an injury that cannot be compensated by damages, and that
greater injury will result from refusing rather than granting the relief
               Kuznik v. Westmoreland Cnty. Bd.                          , 902 A.2d
476, 489 (Pa. 2006).

We observe that Appellant did not file an action seeking specific performance
of the Right of Way. Showings necessary to receive the remedy of specific
performance are similar, but not identical, to those required for a permanent
             Specific performance is an equitable remedy that permits the
court to compel performance of a contract when there exists in the contract

Lackner v. Glosser                                              Specific
performance should only be granted where the facts clearly establish the

                     Id.
2
   We believe the Dissenting Judge has not applied the correct standard of
review. The case cited in the Dissenting Memorandum, Eckman v. Erie
Ins. Exch., 21 A.3d 1203 (Pa. Super. 2011), does not involve entry of
nonsuit. Rather, that case is simply an appeal from the denial of a motion
for preliminary injunction. Id.


                                       -6-
J-A10022-14


     Instantly, the trial court entered a nonsuit against Appellant because it

believed the parties never reached mutual consent as to the location of the

discharge line and that other provisions had yet to be finalized. Therefore,

according to the trial court, Appellant had no chance of obtaining relief. We

disagree.

     Our review of the record confirms that Appellant had the right,

pursuant to the Right-of-

subject only to a) App

not unreasonably withhold, and b) payment of certain compensation as

required under the Right of Way. Right-of-Way, 10/6/07.         Although the

parties could not agree on compensation under the Proposed Agreement,



Dissent has conflated two standards of review. Dissenting Memorandum, at

of a preliminary injunction. Eckman, 21 A.3d at 1206. In reviewing entry
of a nonsuit, as set forth in Dietzel
abuse of discretion or error of law. As explained infra, we conclude the
latter occurred in this case.

Further, the correct standard of review requires us to resolve evidentiary
conflicts and draw all reasonable inferences in favor of the losing party, per
Bugosh and Shay


answered a question that is simply not before us. Dissenting Memorandum,
at 5.   Rather, we must discern whether Appellant produced sufficient
evidence to obtain relief, resolving evidentiary conflicts and drawing


                                          Mahan, 841 A.2d at 1058. We
believe the Dissent has placed on Appellant a far greater burden than is
applicable here.


                                    -7-
J-A10022-14


nothing of record suggests that the payment tendered by Appellant under

the Right of Way was not in accord with the terms of that agreement. 3 As

these were the only two conditions to be satisfied prior to Appellant being

able to exercise its right to install a new pipeline under the Right of Way, the

only issue that had to be resolved by the trial court was whether consent by

Appellees was unreasonably withheld under the Right of Way.

      As for consent, the record reflects that Appellees insisted upon

satisfaction of no less than 28 conditions before they would give consent to a



conditions is not to be found in the Right of Way. The one to be found in the

Right of Way is condition 15 relating to location, which in fact comports with



Button Road. N.T. Trial, 7/10/13, at 66; Plainti

only two conditions to be satisfied prior to installation of a new pipeline, the

only one in dispute being mutual consent as to location not to be



motion for compulsory nonsuit on the basis that agreement on monetary

compensation and other terms yet to be finalized had not occurred between

the parties.

3
  The record reflects that by check dated June 6, 2012, Appellant tendered
payment of $8,000 to Appellees pursuant to the Right of Way. By letter
dated June 14, 2012, the Appellees returned this payment indicating that
they had not agreed to a location, but that they remained interested in



                                     -8-
J-A10022-14


      The terms not yet finalized pertained to the Proposed Agreement,

which was not the basis for App



of Way.   The only issue that had to be resolved by the trial court was

whether Appellees acted unreasonably in not consenting to the proposed



refusal to consent is a question of law to be answered pursuant to the terms
                       4
of the Right of Way.        Though the trial court ultimately did not directly

answer this question, the court telegraphed its belief the location selected

was the best possible location.

      Appellant was entitled to the benefit of all its evidence and all



compulsory nonsuit.        Appe

arrived at a mutually agreeable location for the discharge line, and that

Appellees refused to permit Appellant to install the discharge line in

accordance with the Right of Way.5      The trial court erred by not affording


4
                                          usal to give consent, but she does
not address the possibility, based on the plain language of the Right of Way,

to consent. Dissenting Memorandum, at 5.
5
   We do not underst
Appellant has an adequate remedy at law. See Dissenting Memorandum, at
6.   The compressor station built pursuant to the Compressor Station
Agreement was useful only to the extent that Appellant could run pipelines
to and from it. Equitable enforcement of a contract affecting an interest in
real estate is appropriate unless money damages are readily ascertainable.

                                      -9-
J-A10022-14


Appellant the benefit of that evidence, and further by conflating the



Right of Way with terms not agreed upon under the Proposed Agreement

that were irrelevant to Appellan

a minimum, Appellant produced sufficient evidence to preclude the granting

of a compulsory nonsuit in favor of Appellees. The trial court erred by not

applying the law applicable to entry of a nonsuit.6 We therefore vacate the

judgment and remand for further proceedings.

       Judgment vacated. Case remanded. Jurisdiction relinquished.

       Allen, J., filed a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




See Petry v. Tanglwood Lakes, Inc., 522 A.2d 1053, 1055-57 (Pa. 1987).
We discern no basis upon which to ascertain an amount of money damages

contemplated in the Compressor Station Agreement and the Right of Way.
6
    We address here only the basis given by the trial court for the granting of

contractual terms of what it thought controlled the outcome in this case. It
did not address the other criteria for the granting of permanent injunctive
relief. Accordingly, we leave those considerations for proceedings upon
remand.

                                     - 10 -
