J-A05045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROLYN H. LANKARD AND ROBERT M.             IN THE SUPERIOR COURT OF
LANKARD, HUSBAND AND WIFE                          PENNSYLVANIA



                        Appellants

                   v.

LAUREL MOUNTAIN MIDSTREAM
OPERATING, LLC

                        Appellee                 No. 1367 WDA 2016


              Appeal from the Order Entered August 25, 2016
              In the Court of Common Pleas of Greene County
                   Civil Division at No(s): A.D. 778-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                         FILED JUNE 12, 2017

     Carolyn H. and Robert M. Lankard (“the Lankards”) appeal from the

August 25, 2016 order of the Greene County Court of Common Pleas

granting the motion for summary judgment filed by Laurel Mountain

Midstream Operating, LLC (“Laurel Mountain”). We affirm.

     The Lankards own a 15-acre property in Franklin Township, Greene

County.   On March 27, 2014, the Lankards filed an amended complaint

against Laurel Mountain alleging causes of action for:     (1) breach of

contract; (2) ejectment; (3) trespass/continuing trespass; (4) private

nuisance; (5) conversion; (6) fraudulent misrepresentation; and (7) a

demand for equitable accounting.     The allegations stemmed from Laurel
J-A05045-17



Mountain’s installation of a natural gas pipeline on a portion of the Lankards’

property.    In their amended complaint, the Lankards sought a preliminary

injunction requiring Laurel Mountain to relocate the pipeline to the correct

location on the property in accordance with an easement and a separate

letter agreement (“SLA”) entered into by the parties in 2011.

       The trial court comprehensively set forth the factual and procedural

history of this case in its order and opinion granting summary judgment,

which we adopt and incorporate herein. See Trial Ct. Op., 8/25/16, at 1-9

(unpaginated).

       On January 29, 2016, following discovery, Laurel Mountain filed a

motion for summary judgment, to which the Lankards filed a response. The

trial court heard argument on the motion on May 2, 2016. On August 25,

2016, the trial court granted Laurel Mountain’s motion for summary

judgment.1 On September 19, 2016, the Lankards timely appealed to this

Court.

       On appeal, the Lankards raise the following issues:
           1. Whether the trial court committed an error of law
              and/or abused its discretion by fundamentally
              misapplying the parol evidence rule and refusing to
              consider clear and convincing record evidence
              establishing the parties’ contractual intent, formation
              and modification?
____________________________________________


       1
         In response to the Lankards’ Pennsylvania Rule of Appellate
Procedure 1925(b) statement of errors complained of on appeal, the trial
court entered an order on October 11, 2016, adopting its August 25, 2016
opinion as its Rule 1925(a) opinion.



                                           -2-
J-A05045-17



           2. Whether the trial court committed an error of law
              and/or abused its discretion by relying upon void, and
              ambiguous, purported receipts and releases in entering
              summary judgment on all claims in favor of the alleged
              releasee?

           3. Whether the trial court committed an error of law
              and/or abused its discretion by failing to correctly apply
              the required standard of review to resolve a motion for
              summary judgment?

           4. Whether the trial court committed an error of law
              and/or abused its discretion by allowing the movant to
              benefit from its spoliation of evidence directly relevant
              to the central issues in this case, which by itself should
              have precluded the entry of summary judgment?

           5. Whether the trial court committed an error of law
              and/or abused its discretion by dismissing a properly
              pled cause of action for ejectment to compel the
              removal of an intentionally installed encroaching
              pipeline and valve?

Lankards’ Br. at 7-8 (suggested answers omitted).

      Our standard of review of an order granting summary judgment is as

follows:
           [O]ur scope of review is plenary, and our standard of
           review is the same as that applied by the trial court. . . .
           [We] may reverse the entry of a summary judgment only
           [if we] find[] that the lower court erred in concluding that
           the matter presented no genuine issue as to any material
           fact and that it is clear that the moving party was entitled
           to a judgment as a matter of law.           In making this
           assessment, we view the record in the light most favorable
           to the non-moving party, and all doubts as to the
           existence of a genuine issue of material fact must be
           resolved against the moving party. As our inquiry involves
           solely questions of law, our review is de novo.




                                       -3-
J-A05045-17



Mull v. Ickes, 994 A.2d 1137, 1139 (Pa.Super. 2010); see Pa.R.C.P.

1035.2.

       Preliminarily, we find that the Lankards have waived their fifth issue,

which challenges the trial court’s dismissal of their ejectment action, by

failing to raise it in their Rule 1925(b) statement.2 The trial court dismissed

the ejectment action in its June 9, 2014 order sustaining in part Laurel

Mountain’s preliminary objections to the amended complaint. In their Rule

1925(b) statement, the Lankards listed five separate issues, none of which

challenged the June 9, 2014 order or the dismissal of the ejectment action.

See    Pa.R.A.P.    1925(b)(4)(ii)     (requiring   that   appellant   identify   “with

sufficient detail” each ruling or error he or she intends to challenge on

appeal).3 Because the Lankards failed to raise the ejectment claim in their

Rule 1925(b) statement, it is waived.
____________________________________________


       2
        We have reordered our discussion of the Lankards’ issues for ease of
disposition.
       3
         In their reply brief, the Lankards argue that this claim is not waived
because the introductory paragraph of their Rule 1925(b) statement averred
that it “should be deemed to include every subsidiary issue raised with the
Court, including, without limitation, the issues raised in opposition to [Laurel
Mountain’s] preliminary objections.” 1925(b) Stmt. at 1. This vague,
boilerplate language, however, is insufficient to preserve a claim for
appellate review. See Commonwealth v. Proctor, 156 A.3d 261, 267
(Pa.Super. 2017); Pa.R.A.P. 1925(b)(4)(ii).

      In any event, even if the Lankards had properly preserved this issue in
their Rule 1925(b) statement, we would still find it waived for their failure to
develop it with pertinent legal argument. See Umbelina v. Adams, 34
A.3d 151, 161 (Pa.Super. 2011) (“[W]here an appellate brief fails to provide
(Footnote Continued Next Page)


                                           -4-
J-A05045-17



      In their third issue, the Lankards contend that the trial court

erroneously applied the applicable standard of review in ruling on Laurel

Mountain’s summary judgment motion. Specifically, they claim that “[t]he

trial court incorrectly interpreted the record against the Lankards, the non-

moving parties, and made fact-based and credibility assessments in favor of

Laurel Mountain on a controlling issue in this case.” Lankards’ Br. at 60. We

disagree.

      The trial court began its legal analysis by setting forth the applicable

standard of review for summary judgment motions. Trial Ct. Op., 8/25/16,

at 9-10. After examining the language of the easement and the SLA, as well

as “the lengthy and substantial record,” the trial court determined that the

Lankards could not establish that Laurel Mountain breached the agreements.
          After careful review of the file, oral arguments, and in
          viewing the evidence in the light most favorable to the
          non-moving party, the Court finds that the crux of the
          [Lankards’] averrments [sic] is that [Laurel Mountain]
          intentionally violated the Easement and the SLA, thus
          resulting in a breach of contract claim.       This Court
          disagrees, and finds that [Laurel Mountain] did not breach
          said Contracts.

                       _______________________
(Footnote Continued)

any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived.”) (quoting In re W.H., 25 A.3d 330, 339 (Pa.Super.
2011)); Pa.R.A.P. 2119(a). In their brief, the Lankards merely assert that
their complaint “averred that Laurel Mountain intentionally installed the
encroaching Pipeline and aboveground valve on their Property, and
otherwise pled a justiciable cause of action for ejectment.” Lankards’ Br. at
67-68.



                                            -5-
J-A05045-17



Id. at 13, 17. The trial court granted summary judgment because it found

no genuine issues of material fact with regard to any of the Lankards’

claims. Based on our review of the trial court’s decision, we conclude that

the trial court correctly applied the standard of review.

      The trial court addressed each of the Lankards’ three remaining

properly preserved issues in its August 25, 2016 opinion. Based on our de

novo review of the certified record, the parties’ briefs and oral arguments,

and the relevant law, we conclude that the trial court did not err in granting

summary judgment in Laurel Mountain’s favor. We reach this conclusion for

the reasons stated in the trial court’s cogent opinion, which we adopt and

incorporate herein. See Trial Ct. Op., 8/25/16, at 10-20.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




                                     -6-
                                                                                 Circulated 05/18/2017 12:21 PM




         IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
                                CIVIL l)MSION


       CAROLYN      n. LANKARD,        et al.,          )
                                                        )
                                                                                             t   1
                              Plaintiffs,.              )
                                                        )
                                                       l
                      vs.                              )       778 A.D. 2013
                                                       )
                                                       }
       LAUREL MOUNTAIN MIDSTREAM                       )


I
 .     OPERATING, LLC,

                              Defendant.
                                                       )
                                                       )
                                                       )
..I
~
~
/;;                                          flJUJER AND .OPINJQN
a
a
~             AND NOW, this        ?')       day of August, 2016, tbe matterbeing before the Court on
&
~ the Defendant's Motion for Summary Judgment, after Oral Argument on May 2, 2016, this
~
      Court makes the following findings:

                                        PROCEDURAL HISTORY
             Carolyn H. Lankard (formerly Carolyn H. McNeely) filed a Writ of Summons on

      October 16, 2013, against Laurel Mountain Midstream (hereinafter "Defendant"). On

      February 21, 2014, Mrs. Lankard filed the Complaint adding Mr. Lankard as an additional

      Plaintiff to the action {hereinafter "Plaintiffs"). On March 27, 2014, Mrs. Lankard filed an

    Amended Complaint.
                      The Amended Complaint contained seven Causes of Action relating to the installation

        of.a natural gas pipeline revolving around an Easement on Plaintiffs property. The seven

        Causes ofActior; were: (1) breach of contract, (2) ejectment,

        (3) trespass/continuing trespass, (4) private nuisance, (5) conversion,

        (6} fraud/misrepresentation, and {7} demand for equitable accounting.

                 April 11, 2014, the Defendant filed Preliminary Objections to the Plaintiffs Amended

        Complaint. On June 09, 2014, former President Judge Nalitz dismissed the Plaintiffs

 z., following claims: claim (2}
                              . ejectment, claim (4} private nuisance, and claim (7) equitable
 :.
 z
  f accounting. Therefore, only four counts remain for this Court's review.
 .
 ...
!..              On June 27, 2014. Defendant filed an Answer and New Matter to Plaintiffs Amended
 ~           .    .        .   .   .         .   .   .   .   .   ..
·~ Complaint, August 5, 2014, the I)efendant filed an Amended Answer and New Matter. On
~

i
!I
Q

       August 21, 2014, Plaintiffs filed a Reply to Amended New Matter. January 29, 2016, the

j Defendant filed a Motion             for Summary Judgment, a Statement of Undisputed Facts in Support
I"


       of its Motion for Summary Judgment, a Brief in Support of its Motion for Summary

       Judgment, and Exhibits in Support of its Motion for Summary Judgment.

                 On February 29, 2016, Plaintiffs filed a ResponsetoDefendant's     Statement of

       Undisputed Facts in Support of Motion for Summary Judgment. Enlarged Exhibits to

     Affidavit of John Dunn, and a Counterstatement of Supplemental Material Facts. March 18,

     2016, the Defendant filed a Praecipe to Attach Affidavits in Support of Defendant's Motion

     for Summary Judgment
               On April 11, 2016, Plaintiffs filed Plaintiffs Briefin   Support of Response in

       Opposition toDefendant's     Motion for Summary Judgment.        April 29, 2016, the Plaintiffs filed

       Plaintiffs Supplemental    Brief in Support of Responses in Opposition to Defendant's Motion

       for Summary Judgment.      On May 2, 2016, Plaintiffs filed Affidavit. of Robert M. Lankard in

       Support of Response in Opposition to Defendant's Motion for Summary Judgment and

       Praecipe to Attach Affidavit in Support of'Defendant's Motion for Summary Judgment on the

       Authentication of E:-rnails. On May 2, 2016i this Court heard Oral Arguments relating to

 • Defendant's Motion for Summary Judgment.
 J
 ?:
 fz           May 6, 2016, the Defendant filed Reply Briefin Further Support ofthe Defendant's
 it
: Motion for Summary Judgment. On May 9, 2016, Defendant filed Reply Brief in Further
a:

~· Support of Defendant's Motion for Summary Judgment and Praecipe to Attach Affidavitin

i
s
!!

      Support of Defendant's Motion for Summary Judgmenton the Authentication of E-mails.

1=                                              PROPERTY
!
             The crux of this case revolves the interpretation of the Right of Way; an Easement and

      Seperate Letter Agreement (hereinafter "SLA"J in relation to the installation of'a Pipeline on

      the Eastern side of the Plaintiffs property. Whereas, Plaintiffs argue is unlawfully encroaching

     upon their property.

             Mrs. Lankard acquired-the subject property in 1991. In August of 2013, Plaintiffs were

 married. On.January 24, 2014, a Deed was executed between Mr. and Mrs. Lankard whereby

 Mr. Lankard       obtained interest in the subject property. However, Mr. Lankard is not a party to

 the Easement or SLA.
                    The property is hilly) contains approximately 15 acres and is vacant except for a small

           shed on the Western side. The property has a l.5 acre, fenced in, dog run in the middle of the

           property near the Northern border. However, the property (in the mid-2000s) had a gravel

           driveway, water connection, septic tank, and leach bed installed on the Western side.

                  Mrs. Lankard has prior experience find knowledge within the oil and gas field. She

          entered into a lease, for the natural gas rights on the property with Atlas on August 9, 2010,

          and received royalty interest for the Atlas Lease. Mrs .. Lankard also received royalty payments

   • for at least two Marcellus natural wells drilled pursuant to the Atlas Lease. Then, Mrs.
  !i Lankard was paid for entering into another lease, to the same natural gas rights, by Chevron
  iS...

  ~ Appalachia, LLC (after Chevron acquired Atlas).
 t"'
...a.                                     Ril!ELINE NEGOTIATIONS
 il
 D
 .,
·:::i
                  In May of 2011, Defendant (through Defendant's agentKimberly Lively) approached
tz
...
iPlaintiffs to negotiate
j!;
                                 an agreement for the installation ofa Pipeline on the property. The

          negotiations hinged on the necessary Easement for installation. During negotiations, Plaintiffs

          stated their particular requirements. Specifically, perserving two large oak trees arid other

        trees along the property line. Lively showed the Plaintiffs a sketch depicting the general route

        of the rught of Way and Easement. This sketch was signed by Mrs. Lankard, later attached to

        the Easement and SLA and was superseded by the "as-built drawlng":

                 June I I, 2011, Plaintiffs, Lively and Mr. Smithee (Defendant's project manager for the

      Pipeline) met at the property and discussed the installation of the Pipeline. It was explainted

      that, at this point, the exact route ofthe Pipeline was unknown. Mrs. Lankard fully executed
       the Easement and SLA on JuneZl, 2011. Mr. Lankard did not sign these documents because

       he did not have any property interests (this being prior to marriage).

               On August 10, 2011, Defendant's Attorney-in-Fact (Clayton Harris) signed the

       Easement and SLA. August 23, 2011, the fully executed Easement was recorded in the

       Greene County Recorder of Deeds Office of Pennsylvania.

                                      PlPEI"rNE CONSTRUCTION
               In November pf 2011, the Right of Way and Centerline of the Pipeline were surveyed

 sz and marked with stakes. In December of 2011, the Defendant paid Mrs. Lankard for its option
 4·
 ~
 f rights under the Easement      and SLA. She accepted payment and signed a Receipt and Release;
 z
 L


~ It is noted that Defendant obtained         all necessary permits for the construction oftbe Pipeline.
i
~             In late February of2012f Mr. Lankard complained that the survey flags were outside
M
f of what he thought
=l                        to be the workspace allotted. The Court finds relevant that on March 14,
                                          .
...
j 2012, Mrs. Lankard
,-
                           agreed to and signed a "Receipt for Additional Work Space" and. was

      paid $2,000 for granting such additional space. Exhibit 44 to Defendants.Exhibiis in Support
      of its Motionfar Summary Judgment.

             The Easement and SLA contained terms releating to the necessary relocation of a dog

      run, including the need for two additional trees for the relocation. Therefore, Mrs. Lankard

      was paid pursuant to the additional terms within the SLA. She accepted paymenrand executed

      a Receipt and Release.

             The Pipeline was installed on the Eastern part of the property (th" opposite side of the

  property from the road). The Pipeline runs parallel to the wooded Eastern fence line and
           makes a minor bend to go between two telephone poles. A valve with an enclosure was

           installed on the Southern end of the property. The Pipeline was completed around September

           of 2012 ..However, reclamation and restoration work continued into 2013.

                  The Affidavit of Easement, Right of Way Survey and the "as-built drawing" were

           dated November I 2, 2014 and filed in February of 2015.

                   $EPERATE LETTER.AG~EMENT                  N   UNSIGNED B~
                  Plaintiffs allege that there is an additional, Unsigned Seperate Letter Agreement

 .. (hereinafter "Unsigned SLA") that ONLY Mrs. Lankard signed and therefore controls.
!
,t
~
i Plaintiffs
     ..
                                   .          .

                    argue that this Unsigned SLA contained revised additional stipulations that were not

          contained in the fu11y executed SLA.
e•
:                the Plaintiffs allege that Lively provided this Unsigned SLA to Mrs. Lankard, that
i                                 . .                .                  .
.~ Mrs. Lankard signed but did not date it, and she then returned said document to Lively.

f... Plaintiffs do not remember when this document was received,
%
                                                                            but admit to never seeing.

      Lively after June 21, 2011, and Mr. Lankard does not know if the Unsigned SLA is even the

          SLA that he thought was binding, Dep. Tr. of Mr: Lankard atpgs. 415:11-25, 416, 422. The

     Defendant states that the existence or recognization of'this Unsigned SLA was unknown to

     them untilJuly of 2013, and the Defendant never signed this document

                It is further noted that the Bold Type Language above the signature lines on this

    Unsigned SLA (as wel1 as the signed SLA) states, "IT IS FURTHER UNDERSTOOD THAT

    THE TER.MS OF THIS AGREEMENT ARE NOT BlNDlNG UNTIL EXECUTED BY

 BOTH THE GRANTOR(S) AND THE GRANTEE." Exhibit 21 to Defendants Exhibits in
         Support of its Motion for Summary Judgment. Furthermore, Lively testified at a deposition

         that after Mrs. Lankard signed the SLA on June 21, 2011, she did not make changes to the

         SLA. Dep. Tr. a/Kimberly A. lively atpg. 215:6~18, Exhibit 46 to Defendant's· Exhibits in

         Support of'tts Motion forSummary Judgment. Further, the Defendant did not sign the

         Unsigned SLA. Exhibit 45 to Defendant's Exhibits in Support of its Motion for Summary

        Judgment.

                                     PLAINTIFFS CAUSES OF ACTION
  :!'           The remaining CaUSe$ of Action ate: Breach ofContract, Trespass/Continuing
  ii Trespass, Conversion,      and Fraud/Misrepresentation.
 z
 .
 :'.
 0

 Ii             BREACH OF CONTRACT
 i              The Plaintiffs averr that the Defendant intentionally violated the Easement and the
l; SlA.       Specifically in dispute is the location of the Pipeline on the Plaintiffs property.
i
11:            The Plaintiffs averr that said Pipeline was installed outside of the Easement.
~

        Specifically, that the pipeline is approximately 82 feet from the East Property line and failed

        to match the location provided to the Plaintiffs by a map of the Pipeline location.

               The Plaintiffs averr that the aboveground valve, flange and enclosure were installed

      approximately 72 feet from the East Property line when they were not to be installed at all.

      Additionally, the. Plaintiffs averr that the Defendant did norreclaim and restore the Plaintiffs

      property. Specifically, that the Defendant did not level the right-of-way nor remove the rock

      and other debris. The Plaintiffs averr that the Defendant failed to seed and fertilize the

    Plaintiffs land per the SLA.
               The Plaintiffs averr that they were not compensated   for the removal of locust trees

       from the property. Specifically, that the Defendant cut down at least 18 locust trees and

       removed these from the site, contrary to the Easement and SLA. The Plaintiffs averr that this

       material breach of the Easement and SLAis the direct and proximate cause oftheir damage.

              TRESPASS/CONTlNUING             TRESPASS

              The Plaintiffs aveer that the Defendant intentionally encroached on the Plaintiffs land

       by unlawfully installing the pipeline, valve, flange and enclosure onto said land. The Plaintiffs

 .:!   averr that this unlawful installation gave the Defendant exclusive use and possession of that
 i
.:>


z
 ~. property. Therefore; this unlawful and unreasonable trespass, and continuing trespass prevents
f
~ the     Plaintiffs from the use and development.of said property.
"'G                 .    .
ai            The Plaintiffs averr that because of the Defendant's willful and wrongful conduct the
u
i:i
~ Plaintiffs have lost their right to use and the enjoynment of their property. Further, that as a
~...
j    directand proximate cause of the Defendant's willful and wrongful conduct the Plaintiffs

      property has been physically damaged and risks further damage.

              CONVERSION

             The Plaintiffs averr that the Defendant intentionally encroached onPlaintiffs land by

      unlawfully installing the pipeline, valve, flange, and enclosure onto said land. The Plaintiffs

      averr that this unlawful installation gave the Defendant exclusive use and possession of that

  property; including the right and use of the locust trees and other timber on the Property. The

 Plaintiffs avert that the Defendant unlawfully converted for its own use the Plaintiffs locust

  trees; Therefore, this unlawful conversion prevents the Plaintiffs from the use of said trees.
                          The Plaintiffs averr thatbecause of Defendant's unlawful conversion Plaintiffs have

                  lost their right to the enjoynment and use of their property. Further, because of this Willful and

                  wrongful conduct Plaintiffs property has been physically damaged and risks further damage.

                         FRAUD/MISREPRESENTATION

                         The Plaintiffs av err that the Defendant made representations to the Plaintiffs to induce

                  the finalization of the Easement. The Plaintiffs averr that Mrs. Lankard signed the SLA under

                  the misrepresentations of Lively and that she justifiably relied on Lively's respresntations,

            :!           The: Plaintiffs averr that the Defendant defrauded them because they were led to
            z
            ~
            ~ believe that the Unsigned SLA would be recorded, when the Defendant had no intention to
            ..
           ·'Z



           ·~ actually file said SLA. Further, that as a direct and proximate result of the Defendant's
           ~
           ~. misrepresentations and fraudulent recordation .of the invalid SLA, the Plaintiffs have been
           <I.

           ~
           ~damaged.
           i
           ·~                                      STANDARD OF REVIEW
           ~
                         In Pennsylvania, a party moving for summary judgmentmust show that there is .. no

                 genuine issue of any material fact as to a necessary element of the cause of action or defense

                 which could be established by additional discovery or expert.»Az.R;C.P. 1035.2(1),

                        The Court must view the evidence in the light most favorable to the non-moving party

                 and enter judgment only when there are no genuine issues as to any material facts and the

                right to judgment is clear as a matter oflaw, N,ationwkie Mutuil Ins, Cg. v, Njxqn, 682 A.2d

                131 O, 1313 (Pa. Super. 1996). Summary judgment-is appropriate only in cases that are free
                                        -                                            .

.---...,       from doubt. Elder v, Nationwide Ins, Co,. 599 A.2d 996 (Pa; Super. 1991) ..
                Under Pa.R.C.P. 1035.2{1), the motion is brought When there is "no genuine issue of

        any material fact ; .. which could be established by additional discovery or expert report,"

        Under Pa.R.C.P. 1035.2(2}, the motion is brought "after the completion of discovery relevant

        to the motion,"



               "It is well established that the same rules of construction that apply to contracts are

       applicable in the construction of easement grants." ZettlemQyer v. Transcon. Gas Pi:gelirte.

!      .QQ.m.., 540 Pa. 3371 344, 657 A.2d 920, 924 (1995),citing Sigal v. MamifacturersLight and
zc
>
'Heat Company, 450 Pa. 228, 234, 299 A.2d 646, 649(1973); Percy A. Brown & Co. v. Raub,
f~
~ 357 Pa. 271, 286, 54 A.2d 35, 43 {1947}.
11'.


!. BREACH OF CONTRACT
 I "To support a claim for breach of contract, a plaintiff must allege: 1) the existence of'a
i
~~ contract, including its essential terms; 2). a breach of duty. imposed by the contract; and 3)
                                                                       .•




       resultant damage." Woodwardv, ViroPharma Inc., No. 3222 EDA 2011, 2013 WL 1485110

       (Pa. Super. Ct. Apr, 3, 2013}, citing CoreStates Bank, NA. v. Cutillo, 723 A.2d 10$3, 1058

       (Pa.Super.1999).

               Contract interpretation is a question oflaw. Calabrese v. Zeager, 2009 PA Super 95,

       976 A.2d 115 l, JI 54 {2009}, citing .Kn.i.filnger v. K,raisinger, 928 A.2d 333, 339

    (Pa.Super.2007), quoting Stamerw v. Stamerro, 889 A.2d 1251 {Pa.Super.2005).
       TRESPASS/CONTINUING             TRESPASS

       The concept of a "continuing trespass" is defined under the Restatement (Second) of Torts §
       161, comment b. {1965) which provides:

              The actor's failure to remove from land in the possession of another a structure, chattel
              or other thing which he has tortiously erected or placed on the land constitutes a
              continuing trespass for the entire time during which the thing is wrongfully on the land
              and .. , confers on the possessor of the land an option to maintain a succession of
              actions based on the theory of'continuingtrespass or to treat the continuance of the
              thing on the land as an aggravation of the original trespass.

      A "permanent trespass" is defined by the Restatement (Second) ef Torts § 162, comrnente.
 ~ (1965) as follows:
 !           A continuing trespass must be distinguished from a trespass which permanently
i
...
0
             changes the physical condition of the land. Thus, if one, without.a privilege to do so,
             enters land of which another is in possession and destroys or removes a structure
·~
             standing upon the land, or digs a well or makes some other excavation or removes
i            earth or some other substance from the land, the fact that the harm thus occasioned on
             the land is a. continuing harm does not subject the actor to liability for a continuing
             trespass. Since his conduct has once [and] for all produced a permanent injury to the
             land, the possessor's right is to [a] full redress in a single action for the trespass, and a
             subsequent transferee of the land, as such, acquires no cause of action for the
             alteration of'the condition of the land.

      Pennsylvania courts have adopted the above definitions. GrnyhlU Y, Providence I»l2·, 140 Pa.
      Cmwlth. SOS, 515-16, 593 A.2d 1314, 1319 (1991), ~           533 Pa. 611 618A.2d 3?2 (199J)1
      See Mancia v. Dept. of Transportation, 102 Pa.Commonwealth Ct. 279, 517 A.2cl 1381
      (1986}; County of Allegheuy v. Merrit Construction Co.. 309 Pa.Superior Ct. I~ 454 A.2d
      1051 (1982).                                                          .


             "Under Pennsylvania law, the intentional tort of trespass is defined as the

      'unprivileged, intentional intrusion upon land inpossession of another.?' Abraham yOreater

 N~ C!§tle Cmty, Fed. CredjtUnign,2016             U.S. Dist. Lexis 37871. "However, '[cjonduct

     [that] would otherwise constitute a trespass is not a trespass if privileged.   rn   Id., Restatement
    •·




                       of Torts (Second) § 158, comment e. 110ne such privilege exis ts where the intruding party has

                      been granted right of entry pursuant to a valid casement." Abraham, supra, citing Kennedy v,

                      Consot Energy Inc., 2015 PA Super 93, J 16 A.3d 626, 635-36 (Pa. Super; 2015). "It is
                      well-settled law that in order to establish a claim for trespass, a plaintiff must prove an

                      intentional entrance upon land in the possession of another withouta privilege to do so."

                      Kennedy, supra at 636.
                      CONVERSION

                 ~z           "Under Pennsylvania law, the elements to the tort of conversion are; (I) deprivation of
                 ..
                ·>.
                ~z another's right of property in, or use or possession of, (2)
                                                                             .
                                                                                a chattel, (3) without the owner's
                r
......... ,..   ~ consent, and ( 4) without lawful justification." Carter v. Morriso.n, No. crvx, 06~3000, 20 lO
                ;;

                ~·WL 701799 (E.D. Pa. Feb. 24, 2010),Bffdsub nom, ~.                 429 F.App'x 114 (3d Cir. 2011),
                s

                i citing
                !!
                Cl

                            Sims v. Jliacomi No. CJV.A.09-3521, 2009 WL3856667, n. 5 (E.D.Pa; Nov.J 7, 2009),
                "
                ( (citing Stevenson v. Economy Bank of Ambridge, 413 Pa. 442; 197 A..2d 721, 7'1,6 (Pa,1964)).
                "'
                      FRAUD!MlSREPRESENTATION

                             The elements of fraud, .or intentional misrepresentation, are " (l) a representation; {2)

                     which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or

                     recklessness as to whether it is true or false; {4) with the intent of misleading another into

                     relying on it; (5)justifiable reliance on the misrepresentation; and (6) the resulting injury was

                     proximately caused by the reliance." Kity.     Mitchen, 2001 PA Super 94, 771 A.2d    814, 819

                     (2001), citing Gruenwald v. Advanced Computer 730 A.2d 1004, 1014 (Pa.Super.1999),

                     (citing Gibbs   V;   Ernst; 538 Pa.193, 647 A.2d 882, 889 (1994)). '1These elements must be
              proven by clear and convincing evidence.0/d,;    citing Sewak v. Lockhart, 699 A.2d 755, 759

              (Pa,Super.1997). In order to protect those againstwhom generalized and unsupported fraud

              may be levied, the Pennsylvania Rules of Civil Procedure require that fraud be "averred with

              particularity." Pa.R.C.Jl; 1019(b).

              SPOLIATION OF EVIDENCE

                     .. ~Spoliation ofevidence' is the non-preservation or significant alteration of evidence

              for pending or future litigation. When a party to a suit has been charged with spoliating

         :s evidence in that suit (sometimes called "first-party spoliation"), we have allowed trial courts
         z
         c
         >·
         i to exercise their discretion to impose a range of sanctions against the spoliator," Pyeritz v.
         t
         t .Qmb 613 Pa. 80, 88-89,       32 A.Jd 687, 692 (2011), See Schroeder v. Com; Dept. of
         I                        .      .·                     ..
         ~ Transportation, 551 Pa. 243, 710 A.2d 23, 27 0998).
         2
         ~           ''[T]he spoliation doctrine is broadly applicable to cases where relevant evidence has
         .
         ~ been lost or destroyed." Id. (internal quotation marks omitted).   MountOlivet Tabernacle
         ~
             Qmrch v. Edwin L. WieeancLDiy .. 781 A.2.d 1263, 1269 (Pa.Super.2001}
                     " ... given the well-established standard for consideration of summary judgment
                    motions, we bold that the open question about spoliation precludes the entry of
                    summary judgment. ..Since the early 17th century, courts have admitted evidence
                    tending to show that a party destroyed evidence relevant to the dispute being litigated.
                    Such evidence permitted an inference, the spoliation inference, that the destroyed
                    evidence would have been· unfavorable to the position of the offending party •... [T'[he
                    evidentiary rationalejfor the spoliation inference] is nothing more than the common
                    sense observation that a party who has notice that[evidenceJ is relevant to litigation
                    and who proceeds to destroy {evidence] is morelikely to have been threatened by [that
                    evidence] than is a party in the same position who does not destroy the document."

             Rodriguez v. Kraveo Sim!lo..0.o.., 2015 PA Super 41, JJ 1 A3cl ll 91, n 96 (2015), citing
..-.,,
             Mount Olivet Tabernacle Church, supra, (internal citations and quotation marks omitted)
             (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78-79 (3rd Cir.1994}).
.-
     --
      ·,,.




                                                                DISCUSSION

                               After a careful review of the file, oral arguments, and in viewing the evidence in the

                       light most favorable to the non-moving party, the Court finds that the crux of the Plaintiffs

                       averrrnents is that the Defendant intentionally violated the Easement and the SLA, thus

                       resulting in a Breath of Contract claim. This Court disagrees, and finds thatthe Defendant did

                      not breach said Contracts.

                      BREACH OF CONTRACT

              ,(
                              The Plaintiffs claims are dependent upon contract interpretation, reserved to the
             !f courts. The Contracts in question are the Easement and SLA. This Court finds that the
             ......
             L                                                                   .   .
             ~ Defendant did not breach the signed Easement and signed SLA. The Easement and SLA

             ~ define the contractual relationship between the parties and as such were not breached.
             ~·
             Q
             ;:i.
             ~--
                             The Easement (dated and signed June 21, 20 ll) granted theDefendant a Right-of.:way
             !
             J for the purpose of "Pipeline Installation." Option to Purchase Pipeline Easement, Exhibit 20
                      to Defendant's Exhibits in Support of its Moffonfor Summary Judgment. Also, the Easement

                      contains additional. clauses, references the SLA and further states, "this Agreement constitutes

                   all of the agreements and stipulations of the parties pertaining to the subject matter of this

                   Agreement, superseding an prior verbal agreements, representations or understandings, and

                   may be modified only by a written agreement signed by both parties." Id. at JO.

                             The SLA, dated and signed June 2}.201 I, defines additional stipulations regarding the

                 Pipeline installation. The location of the Pipeline is essential to the claims. The SLA defines

                 the location of the Pipeline (this language being the critical language) as, "[s]tay offthe
                                           property line at least 50 to 60 feet with centerline ofpipeline, as far as practical, to avoid

                                           removing excessive amount of trees along the fence line." SLA, Exhibit 21 to Defendants

                                          Exhibits in Support oftts Motton/or Summary Judgment. The Court.finds the language of the

                                           Easement and SLA is dear and that the Easement and SLA are the legal, controlling,

                                           enforceable documents.

                                                  The Plaintiffs argue that the Unsigned SLA contains additional stipulations that were

                                          not part of the signed SLA and that the misrepresentations of Lively induced Mrs. Lankard

                                   sz     into signing the Easement and SLA. Therefore, th.is Court employs
                                                                                                      ..
                                                                                                            the same reasoning as the
                                   c
                                   ~·                                .

                                   j Superior        Court did in McGuire v. Schneider, Inc., 368 Pa, Super. 344, 351 ..53, 534 A.2d 115,
                                   "'a.
                                   ~ 119~20 (1987)dilf~ 5 J9 Pa. 439, 548 A.2d 1223 (1988), regarding parolevidence,

                                   I
                                   .J            Instantly, the Plaintiffs want the Court to allow the introduction of'parol evidence
                                   g
                                   ~ which would specifically contradict the written and executed Contracts (here the Easement
                                   ~
                                  i       and the SLA). The Plaintiffs argue that there were stipulations in the Unisgned SLA that were

                                          not in the signed SLA, and thatMrs. Lankard was induced into signing the Easement and

                                          SLA when relying on misrepresentations of Lively.

                                                 In McGuire.. the.Appellee argued that the introduction of'parol evidence regarding the

                                          misrepresentations of his employment contract were proper. However, the McGuire Court

                                       found the argument without merit. Id. Instantly, the Plaintiffsargue.thatLively        made

                                       misrepresentations to Mrs. Lankard, that the additional stipulations contained within the

                                       Unsigned SLA should govern the Contracts and the introduction of parol evidence to

                                       contradict the fully executed Contracts is proper. We disagree.




-·-~---·--- . ··-··--·-··-----· ...----·----·-·-·----.-.-•-•m•H•------·--·---------·--·---·--··------·-   . ..-,., ,. ,0,,0
                        On June 21,   ion, Mrs, Lankard signed an Easement and SLA detailing the specifics
             of the parties prior negiotations. Therefore, if the parties were not in assent to the terms and

             conditions contained in the fully executed Contracts, the party aggrieved by such document

             should protect themself and refrain from signing the Contract(s). Further, it is noted that Mrs.

         Lankard had prior experience with the oil and gas field, as Shown by her Atlas/Chevron lease.

                    uThis is precisely the type of claim that the parol evidence rule was designed to bar. 'If

         plaintiff's relied on any understanding, promises, representations or agreements made prior to

    .. the execution of the written contraet..; they should have protected themselves by
  i>
 ~                                                                                                .
  iz incorporating           in the written.agreementthe promises or representations upon which they now
 le
.~ rely, and they should have omitted the provisions which they now desire to repudiate and
!~ nullify;?'. McGuire,
                 .                                 .          ..         .
                        supra, citing Bardwell v. Willis Co., 375 Pa. at 508-9,
                                                                                          1.
                                                                                           00 A.2d    at 105.
4        .                                     .

~
...:z:
::J                 In.Bardwellv. Willis Company, 315 Pa.503i 507, 100 A.2d 102, 104 (l953), our
                   11
..z                Supreme Court held that only if a party to a contract averred thata promise had been
f                  omitted/ram the final, written contract because of fraud, accident, or mistake could
i                  parol evidence properly be admitted. After several subsequent decisions which
                   suggested a less restrictive approach, e.g., !Jerger v. Pittsburgh Auto Equipment Co.,
                   387 Pa_ 61, 64-65, 127 A.2d 334, 335 (1956); Nadolny v. Scoratow; 412 Pa. 488, 491,
                   195 A.2d 87, 89 (1963), the Supreme Court reasserted the Bardwell holding in
                   Nicolella v. Palmer. 432 Pa. 502, 507-8,248 A.2d 20, 22;..23 (1968). this court has
                   subsequently held that where the assertions put forth by one party ate specifically
                   contradicted by the written agreement, Bardwell applies andparol evidence is
                   admissible only toprove fraud in the execution, not the inducement, of the contract
                  Abel v. Miller. 293 Pa.Super. 6, 10, 437 A.2d 963, 965 ( 1982); Lebonne v. Kessler. 256
                  Pa.Super, 280, 294 & n. l 0, 389 A.2d 1123, 1130 & n. 10 (1978). A party cannot
                  justifiably rely upon prior oralrepresentations, yet sign a contract denying the
                  existence of those representations. Leiranne v. Kessler, 256 Pa.Super, at 294 n. 10, J89
                  A.2d at 1130 n, 10.

    M<;;Guu;u,.~.                          368 Pa. Super. 344, 351~53; 534 A.2d 115,   119-20 (1987),   ~
    519 Pa. 439, 548 A.2d 1223 ( 1988)
              Therefore, just as Appellee In   McGuire, instantly   Mrs. Lankard is bound by the terms

      of the Contracts that were fully executed. Here, the Easement andSLA, that both Mrs.

      Lankard and the Defendant signed, are the sole enforceable Contracts between the parties.

      Therefore, because the Defendant precisely followed the Easement and SLA, the Plaintiffs

      Breach of Contract claim fails.

             Further, this Court finds that the intent is clear, after reviewing the lengthy and

      substantialrecord, Mrs. Lankard was essentially worried aboutthe removal of the trees along


I"' her property line. Specifically,. when taken into consideration with the evidence within an
i    additional document titled, "Laurel Mountain Midstream Operating, LLC, Land/Operation,
i
: Worksheet;" Mrs. Lankard's intent is clear. Mrs. Lankard and Lively signed this "worksheet".
E
~. Exhibit 24 to Defendant ~ Exhibits in Support of its Motion/or Summary Judgment. This
ij
i5    .
~· .. worksheet" states, (with a star beside said language), "[s]tay at least so:..60 feet away from
..
l
; property line as faras practical to save trees along fence Iine." Id.
~
            Furthermore, in the Deposition of Mr. Lankard, he references the correct SLA having

     reference to a $450.00 payment and after review, the Unsigned SLA does not.reference this

     $450.00 payment However, the fully executed SLA does. DeprTr: ofMr.Lr:mkardatpgs.

     422:9-25, SLA, Exhibit 21 and Unisgned SLA Exhibit 45 to Defendant's Exhibits in Support of

     its Motion/or Summary Judgment.

            Lastly, the Plaintiffs remaining claims wiU also fail because of the binding, valid and

     enforceable Contracts between the parties.
      TRESPASS/CONTINUING             TRESPASS

              First, Trespass/Continuing Trespass claim, the Plaintiffs aveer that the Defendant

      intentionally encroached on the Plaintiffs ]and by Unlawfully installing the pipeline, valve,

      flange and enclosure onto said land.

             However, the Defendant was privileged pursuant to the valid Easement between the

      parties granting the right of entry to the Defendant. Tbe Easement and SLA make this

      encroachment lawful and proper under the Contracts relating to the installation of said

 :!   Pipeline. Therefore, there can not be an unlawful encroachment and the Plaintiffs claim fails.
!
 i CONVERSION
 ~
:            Secondly, with regard to the Conversion claim, the Plaintiffs averr that the Defendant
.~              .                                                 •.    .
~· intentionally encroached on the Plaintiffs land by unlawfully installing the pipeline, valve,
aa
~ flange and enclosure onto said land. Further, that the Defendant unlawfully converted.for its
a
J. own use, the Plaintiffs locust trees.
%                       .                .



             However, the Plaintiffs fail to meet the elements necessary for this claim. Specifically,

     Mrs. Lankard's consent, as contained in the Easement and SLA, deems lawful justification for

     the Defendant's actions herein. Therefore, this Court finds. that this claim fails because of the

     vaild and enforceable Contracts (the Easement and SLA).

     FRAUD/MISREPRESENTATION

            Lastly, with regard tothe Fraud/Misrepresentation claim, the Plaintiffs averr that the

    Defendant made representations to Mrs. Lankard to induce the finalization of the Easement

    transaction. The Plaintiffs averr that Mrs. Lankard justifiably relied on the misrepresentations
·,




           of Lively when she signed the SLA

                  However, "where the assertions put forth: by one party are specificaJly contradicted by

           the written agreement, Bardwell applies and parol evidence is admissible only to prove fraud

           in the execution, not the inducement. of the contract." McGuire, supra, citing Abel v. Miller,

          293 Pa.Super, 6. io, 437 A.2d 963, 965 (l982).

                  Furthermore, Mrs. Lankard should have carefully read the contracts (here an Easement

          and SLA), to ensure that all negioations and terms were to her agreement; otherwise she could

     s have     denied signing the Contracts until her wishes were addressed, Just as stated previously, a
     :t
     ,c
     ~
     j party camtotjµstifiably 1°ely upon prior oral representations, yet sign a contract denying the
     ~
     f existence of those representations.
     !    SPOLIATION OF EVIDENCE
     ~
     ~            Regarding the spoilasation of evidence. the Court finds that the Plaintiffs have filed
     g
     ~% four Motions to Compel Discovery; This Court is satisfied that all discovery. was complete
     ..
          and without deficiency. This Court finds that the Plaintiff's Third Motion to Compel was filed

          with this Court on December 30, 2014, and subsequently "refused" [denied] by retired

          President Judge Nalitz on December 30, 2015. Fourth Motion to Compel was filed with this

          Court January 29, 2016. This Court denied said Motion on July 29, 2016.

                 The Court is aware of the numerous documents and evidence within this action.

          However, there were no sanctions involving discovery herein and this Court does not find

          Plaintiffs argument persuasive. The.Plaintiffs argue that because of the Defendant's alleged

          spoliation of evidence. the holding in Rodriguez v. KravcQSimon Co., Ill A.3d 1191, 1196
 f




              (Pa. Super. 2015), as a matter of law, precludes the entry of summary judgment. The Court

              finds this argument is Without merit. The Court finds that the numerous emails and various

              documents throughout this action clearly show the prior negioations of the parties, typical of

              such a project.

                     Therefore, the Court finds that Summary Judgment for the Defendant is GRANTED.




                                                     CONCLUSION
                     AND NOW WHEREFORE, after consideration and finding that that no genuine
        ic
        >
        ~ dispute as to any material fact exists, Defendant's Motion for Summary Judgment is
       3
· -.
       &


       -~ GRANTED.
       E
       .,Ii
       s
       !.!
       ~
       ~. SO ORDERED AND.DECREED
       ::
       J
              AITEST:                                 BY THE COURT:

        ~JK~
             PROTHONOTARY                               ~~b
                                                         :i_,. z~. . /
                                                      F.~pOT~,
                                                      Date:                 (p
                                                                                  PRESIDENT JUDGE .
