J-S45038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA J. SAVASTA, AN ADULT                      IN THE SUPERIOR COURT OF
INDIVIDUAL,                                             PENNSYLVANIA

                          Appellee

                   v.

ZANE R. PROCTOR,

                          Appellant                    No. 1978 WDA 2015


               Appeal from the Order of November 16, 2015
          In the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): 5516 of 2014


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:                  FILED AUGUST 17, 2016

     Respectfully, I believe that the current appeal is interlocutory and

unappealable. As such, I believe that we must quash the current appeal. I

must therefore dissent.

     As the learned Majority notes, on November 5, 2014, Barbara J.

Savasta (hereinafter “Ms. Savasta”) filed a complaint against her brother,

Appellant Zane R. Proctor. Within the complaint, Ms. Savasta averred that

she and Appellant reside in New Stanton, Pennsylvania, and that they both

own land in the “Proctor-Lazar Subdivision Plan of Lots.”         Ms. Savasta’s

Complaint, 11/5/14, at ¶¶ 3-6.        Specifically, Ms. Savasta averred that she

owns parcels “B” and “E” in the subdivision and that Appellant owns parcels

“A” and “F.” Id.




*Retired Senior Judge assigned to the Superior Court.
J-S45038-16



     As Ms. Savasta averred: “[t]he [] sub-division plan clearly sets forth a

15 foot existing right-of-way extending from Hautintaught Road . . .

extending through the various parcels of land in the said sub-division

through parcel F[,] which is the property of [Appellant,] and extending to

and into parcel E[,] which is the property of [Ms. Savasta].”     Id. at ¶ 7

(some internal capitalization omitted). Ms. Savasta averred that the “right-

of-way has been in continuous use by [Ms. Savasta] as the sole means of

access to her property since she acquired ownership of the said parcel on

October 17, 2006.” Id. (some internal capitalization omitted).

     According to the complaint:

        On and after August 8, 2014[,] when [Appellant] acquired
        ownership to parcels A and F in said Plan[,] he has
        undertaken to deprive [Ms. Savasta] of a means of access
        to her property and dwelling house located on parcel B in
        said Plan and has attempted to block access of [Ms.
        Savasta] to her property by obstructing and damaging the
        existing    right-of-way    piling various  materials   and
        construction debris upon the area of the right-of-way,
        disrupting the existing gravel roadway[,] and interfering
        with [Ms. Savasta’s] general right of access to her property
        by means of the designated right-of-way as was clearly set
        forth in the sub-division Plan.

                                     ...

        [Ms. Savasta] has further hired contractors to pave and
        improve portions of the [] right-of-way and [Appellant] did
        interfere with those contractors . . . and did, in fact,
        damage various improvements and paving materials which
        were installed by contractors hired by [Ms. Savasta].

Id. at ¶¶ 8 and 11 (some internal capitalization omitted).




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        As a result, Ms. Savasta demanded that the trial court: 1) grant Ms.

Savasta a preliminary injunction “directing [Appellant] to cease and desist all

activities which would obstruct [Ms. Savasta’s] access to her property by

means of the designated right-of-way” 2) grant Ms. Savasta a permanent

injunction “directing [Appellant] to cease and desist all activities which he

has engaged in for the purpose of obstructing and preventing [Ms. Savasta]

access to the [] right-of-way;” 3) award Ms. Savasta monetary damages for

the harm and disruption to the right-of-way and “for damage and

destruction to contracted improvements made by [Ms. Savasta] to the right-

of-way;” and, 4) award Ms. Savasta punitive damages for Appellant’s

“deliberate violation of [Ms. Savasta’s] rights” to the right-of-way.     Id. at

¶ 15.

        On November 5, 2014, the trial court entered an order granting Ms.

Savasta a preliminary injunction. The order declared:

          a preliminary injunction is issued forthwith directing
          [Appellant] to immediately cease and desist from all
          activities which would obstruct [Ms. Savasta’s] access to her
          property by means of the designated right-of-way as set
          forth on the Proctor-Lazar Plan of Lots and [Appellant] is
          further directed to immediately remove all obstructions and
          debris which he has placed within and on the right-of-way in
          question so as to restore [Ms. Savasta] a proper means of
          access to her residence property.

Trial Court Order, 11/5/14, at 1.

        Further, within the trial court’s November 5, 2014 order, the trial court

scheduled an evidentiary hearing on Ms. Savasta’s request for a permanent



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injunction for November 10, 2014.              Id.   Appellant did not file a notice of

appeal from the November 5, 2014 order.

       On November 10, 2014 and July 29, 2015, the trial court held an

evidentiary hearing on Ms. Savasta’s request for a permanent injunction.

During (what was in essence) the two-day evidentiary hearing, the trial

court heard testimony from Ms. Savasta, Appellant, and two other people.

       On November 16, 2015, the trial court issued an order granting Ms.

Savasta a permanent injunction.                The order stated:    “[t]he Preliminary

Injunction issued by [the trial court] on November 5, 2014 shall hereby be

made permanent.”         Trial Court Opinion and Order, 11/16/15, at 9.             On

December 7, 2015, Appellant filed a notice of appeal from this order.                 I

believe we must quash this appeal.1

       “The general rule is that, unless otherwise permitted by statute, only

appeals from final orders are subject to appellate review.” Commonwealth

v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998).                     In relevant part,

Pennsylvania Rule of Appellate Procedure defines a “final order” as any order

that “disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1). 2
____________________________________________


1
   Before we may reach the merits of Appellants’ claims, we must first
determine whether we have jurisdiction over this appeal. Further, although
neither party raised the issue of jurisdiction, “we may nevertheless raise the
issue [] sua sponte.” Commonwealth v. Blystone, 119 A.3d 306, 311 (Pa.
2015) (footnote and citation omitted).
2
 Rule 341 also defines a “final order” as any order that “is expressly defined
as a final order by statute” or “is entered as a final order pursuant to
(Footnote Continued Next Page)


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      In this case, the trial court’s November 16, 2015 order is not final, as

the order did not dispose of Ms. Savasta’s monetary claims.           Thus, the

current order constitutes a non-final, interlocutory order.

      Interlocutory orders are appealable in certain circumstances.        Our

Supreme Court has explained:

         in addition to an appeal from final orders of the Court of
         Common Pleas, our rules provide the Superior Court with
         jurisdiction in the following situations: interlocutory appeals
         that may be taken as of right, Pa.R.A.P. 311; interlocutory
         appeals that may be taken by permission, Pa.R.A.P. [312];
         appeals that may be taken from a collateral order, Pa.R.A.P.
         313; and appeals that may be taken from certain
         distribution orders by the Orphans’ Court Division, Pa.R.A.P.
         342.

Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal

quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d

345, 349 n.6 (Pa. 2002).

      Appellant did not ask for or receive permission to appeal the

November 16, 2015 order (per Pa.R.A.P. 312) and the order is not

appealable under the collateral order doctrine (per Pa.R.A.P. 313). Thus, the

question before this Court is whether the order in this case is appealable as

of right under Rule 311. See Pa.R.A.P. 311.



                       _______________________
(Footnote Continued)

[Pa.R.A.P. 341(c)].” Pa.R.A.P. 341(b)(2) and (3).         However, these two
categories are not applicable to the current appeal.




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      Rule 311, which is entitled “Interlocutory Appeals as of Right,” states,

in relevant part:

        (a) General Rule.--An appeal may be taken as of right and
        without reference to Pa.R.A.P. 341(c) [(regarding a
        “determination of finality”)] from:

                                     ...

            (4) Injunctions.--An order that grants or denies,
            modifies or refuses to modify, continues or refuses to
            continue, or dissolves or refuses to dissolve an
            injunction unless the order was entered:

                                     ...

                (ii) After a trial but before entry of the final order.
                Such order is immediately appealable, however, if
                the order enjoins conduct previously permitted or
                mandated or permits or mandates conduct not
                previously mandated or permitted, and is effective
                before entry of the final order.

Pa.R.A.P. 311(a)(4).

      In the case at bar, the trial court granted Ms. Savasta a permanent

injunction on November 16, 2015 after a trial (it was a two-day evidentiary

hearing) and Appellant filed his notice of appeal “before entry of the final

order.” Id. Further, the trial court’s November 16, 2015 order did not alter

the status quo, as the contours of the permanent injunction are identical to

those that had existed since November 5, 2014, when the trial court entered

its order granting Ms. Savasta a preliminary injunction.      See Trial Court

Opinion and Order, 11/16/15, at 9 (“[t]he Preliminary Injunction issued by

[the trial court] on November 5, 2014 shall hereby be made permanent”).



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Specifically, the November 16, 2015 order did not enjoin conduct previously

permitted or mandated, as the trial court’s November 5, 2015 order (which

was in effect at the time of the November 16 order) already enjoined

Appellant from obstructing Ms. Savasta’s access to her property.          The

November 16, 2015 order merely continued this ruling on a permanent

basis.    As such, under the plain terms of Rule 311(a)(4), the trial court’s

decision does not constitute an interlocutory order that is appealable as of

right.

         We do not have jurisdiction over this appeal.   As such, I believe we

must quash the appeal.




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