J-S08032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



BARRY O. KUHSTOSS,                       :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
               Appellant                 :
                                         :
                                         :
                   v.                    :
                                         :
                                         :
DONALD R. STEELE, SARA JANE              :
STEELE, AND JAMES K. STEELE T/A          :
STEELE'S LUMBER COMPANY AND              :
RICHARD STEELE A/K/A RICK                :
STEELE                                   :          No. 1092 WDA 2019


                Appeal from the Order Entered June 27, 2019
              in the Court of Common Pleas of Bedford County
                    Civil Division at No(s): 120 for 2013

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

DISSENTING MEMORANDUM BY McCAFFERY, J.:                 FILED MAY 27, 2020

      I respectfully dissent, as I would affirm the Bedford County Court of

Common Pleas’ order granting the motion for a preliminary injunction in favor

of Donald R. Steele, Sara Jane Steele, and James K. Steele, T/A Steele’s

Lumber Company and Richard Steele, a/k/a Rick Steele (collectively, the

Steeles).

      Our Supreme Court has explained:

      Appellate courts review a trial court order granting or denying a
      preliminary injunction for an abuse of discretion. Insofar as issues
      of statutory interpretation are concerned, however, our review is
      de novo. Additionally,
J-S08032-20


          we do not inquire into the merits of the controversy, but
          only examine the record to determine if there were any
          apparently reasonable grounds for the action of the
          court below. Only if it is plain that no grounds exist to
          support the decree or that the rule of law relied upon was
          palpably erroneous or misapplied will we interfere with
          the [decree].

Marcellus Shale Coalition v. Dep't of Envtl. Prot. of Pa., 185 A.3d 985,

995-96 (Pa. 2018) (citations omitted and emphasis in original). See also

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d

995, 1005 (Pa. 2003) (Superior Court cannot reweigh testimony taken by trial

court in preliminary injunction matter).

      At the hearing on the Steeles’ preliminary injunction motion, the trial

court reviewed the relevant case authority, statutes, pleadings, and exhibits

and made findings on the various relevant factors for granting a preliminary

injunction. See N.T. Injunctive Order H’rg, 6/26/19, at 61-64. In granting

the Steeles relief, the court considered the effect of Appellant Barry O.

Kuhstoss’ erecting a chain and/or gate, and acknowledged it could not

conclude, at that stage of the litigation, whether the Unenclosed Woodlands

Act applied:

           The only reason that . . . I am going to grant the preliminary
      injunction for now is that it may be arguable that the road itself is
      enclosed due to [Richard] Steele’s testimony regarding the cable
      that was put across the road and then the gate that was erected
      against the road.      Now, I certainly may be wrong on any
      interpretation on that because under the statutes, it’s an
      unenclosed woodland.

           Now, the other thing that I think is arguable I guess is that
      the road does begin in not a woodland area. It appears to be the

                                      -2-
J-S08032-20


      out buildings there of [Appellant, Barry O. Kuhstoss] that can be
      seen right there. But I agree with [the Steeles’ counsel] that the
      case law is pretty clear that regardless if it travels through a field
      at one point, if it travels through woodland that, that statute
      applies.

           However, the preliminary injunction at this point is an
      equitable remedy. And I think considering that I think the
      [Steeles] have met all the other elements clearly for the
      preliminary injunction. I’m not willing at this point . . . to deny
      the injunction just due to that. I think that it is arguable that that
      road has been enclosed.

            Now, it may not be a strong argument. But given that I take
      it as genuine, that [the Steeles] cannot access the property at this
      point except for this road, I am going to grant the injunction. . . .

Id. at 65-66. The court also stated:

          Now I, like I said — I'm granting it on equitable reasons. But
      I’m conceding that this — I’m ruling based on the fact that . . .
      the statute I don’t think is that well-written as to what is an . . .
      unenclosed woodland . . . .

           The case law does really specify that you’re not to look at the
      nature of the ground. You’re to look at the nature of the
      easement. Now if you take that analysis into the wording of the
      statute, I think the plain language of the statute is unenclosed
      woodland which kind of means that the enclosure would go around
      the property, or some way of the property.

           I'm looking at an easement. And the testimony here was . .
      . that there was a cable put across the easement and a gate put
      across the easement. So, that's the way I 'm saying that this
      could be exempted from that statute saying that this is an
      enclosed easement.

Id. at 76.

      I disagree with the majority’s decision to reverse the trial court’s

findings and to conclude, instead, that the evidence established that

“Hunting Road runs through woodlands that are likely to be considered

                                      -3-
J-S08032-20


‘unenclosed woodlands’ under the Unenclosed Woodlands Act.”          See

Majority Memorandum at 11. At this stage of the pre-trial proceedings,

I would defer to the trial court’s findings of fact and affirm the order

granting equitable relief in the form of a preliminary injunction.

      Accordingly, I dissent.




                                     -4-
