J-A35041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEYSTONE RIVER PROPERTIES, L.P., a       :      IN THE SUPERIOR COURT OF
Delaware Limited Partnership,            :            PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
              v.                         :
                                         :
MATTHEW CANESTRALE AND                   :
LORRAINE CANESTRALE, His Wife            :           No. 445 WDA 2015

                 Appeal from the Order entered February 11, 2015
             in the Court of Common Pleas of Westmoreland County,
                           Civil Division, No. 845 of 2009

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 19, 2016

        Keystone River Properties, L.P., a Delaware Limited Partnership

(“Keystone”), appeals from the Order granting the Motion for Summary

Judgment filed by Matthew Canestrale1 and Lorraine Canestrale (collectively

“the Canestrales”), and dismissing Keystone’s Complaint, with prejudice.

We affirm.

        Monessen Southwestern Railroad Company (“Monessen”) owned a

parcel of land in Rostraver Township, Westmoreland County, Pennsylvania.

On May 25, 1931, Monessen conveyed a strip of land running through their

parcel of land to the Pittsburgh and West Virginia Railway Company (“Pitt-

WV”).     As part of the conveyance, which divided Monessen’s land into


1
  Matthew Canestrale died on February 15, 2015, just after the entry of the
Order granting the Canestrales’ Motion for Summary Judgment. See Brief
for Appellees at 6. Despite his death, the caption of the litigation has not
been amended. See id.
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northern and southern portions, Monessen reserved an easement for use of

a railroad bridge over the railroad on Pitt-WV’s property. On September 4,

1980, Monessen filed an application with the Pennsylvania Public Utility

Commission (“PUC”) seeking authorization to abandon all of its railroad

tracks   located    in   Rostraver   Township   and   to   cease   its   operations.

Monessen’s application was ultimately granted, and it ceased all operations

in 1986.

     Monessen sold its interest in the land, both the northern and southern

portions, to the Canestrales in 1990.       On July 11, 1997, the Canestrales

conveyed the southern portion of the land (7.2145 acres) to Keystone. The

conveyance included the parcel of the property abutting the railroad bridge 2

connecting the two portions of property.        Keystone leased the property to

Three Rivers Marine & Rail Terminals (“Three Rivers”), which operates an

intermodal transloading terminal on the property.3 In 2008, the Canestrales

removed the bridge and installed it on their property in La Belle,

Pennsylvania.      Keystone discovered that the bridge had been removed in

January 2009.


2
  Following the creation of the easement, railroad tracks led up to and
crossed the bridge. However, these tracks had been removed by the time
Keystone had acquired its interest in the property.
3
  Three Rivers used barge access on the Monongahela River, truck access on
I-70 and State Route 906, and railroad tracks on the Wheeling and Lake Erie
Railroad. N.T., 9/4/13, at 12-13, 32. The tracks utilized by Three Rivers did
not include the railroad tracks that had previously crossed the bridge. Id. at
32.


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      On January 30, 2009, Keystone filed a Complaint against the

Canestrales. Keystone alleged, inter alia, that it had an easement to use the

bridge over the Pitt-WV property based upon a Monessen deed that retained

the easement. Keystone claimed that the Canestrales violated its property

rights by removing the bridge.    The Canestrales filed an Answer and New

Matter, and Keystone filed a Reply to New Matter. Following discovery, the

Canestrales filed a Motion for Summary Judgment. The trial court granted

the Canestrales’ Motion and dismissed Keystone’s Complaint, with prejudice.

Keystone filed a timely Notice of Appeal.

      On appeal, Keystone raises the following questions for our review:

      A. Whether the trial court erred by misapplying the standard of
         review and by making factual determinations when genuine
         issues of material fact existed as to whether the right[-]of[-]
         way had been abandoned[?]

      B. Whether the trial court erred in concluding that Summary
         Judgment was warranted as to Keystone’s trespass claim
         because Keystone had not allegedly pled that the Canestrales
         trespassed upon Keystone’s land[,] when Keystone had
         indeed pled the Canestrales had trespassed on its land[?]

      C. Whether the trial court erred in concluding that Keystone’s
         pleaded trespass action damages are not damages that could
         result from a trespass to Keystone’s land[?]

      D. Whether the trial court erred in relying on, and interpreting,
         facts cited in court opinions concerning [Monessen’s] filings
         with the [PUC] to assist the court in establishing that no
         genuine issues of material fact existed as to [Monessen’s]
         intention to abandon its right[-]of[-]way[?]

Brief for Appellant at 9.

      Our standard of review is as follows:


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     A reviewing court may disturb the order of the trial court only
     where it is established that the court committed an error of law
     or abused its discretion. As with all questions of law, our review
     is plenary.

     In evaluating the trial court’s decision to enter summary
     judgment, we focus on the legal standard articulated in the
     summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
     where there is no genuine issue of material fact and the moving
     party is entitled to relief as a matter of law, summary judgment
     may be entered. Where the non-moving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a
     non-moving party to adduce sufficient evidence on an issue
     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will 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.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citation and

brackets omitted).

     In its first claim, Keystone contends that the trial court erred in

granting the Canestrales’ Motion for Summary Judgment because it

misapplied the standard of review for entry of summary judgment. Brief for

Appellant at 17, 24.    Keystone argues that the trial court improperly

determined that the railroad bridge was abandoned based upon inferences

improperly made in favor of the Canestrales.      Id. at 19-24.    Keystone

asserts that there were genuine issues of fact as to whether Monessen

intended to abandon the railroad bridge. Id. at 19. Keystone claims that in

determining that Monessen intended to abandon the right of way, the trial

court improperly relied on proceedings before the PUC in that these


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proceedings did not involve Monessen’s intent to abandon the right-of-way.

Id. at 20-22; see also id. at 19 (stating that PUC proceedings are not

dispositive as to whether abandonment has occurred).            Keystone also

asserts that a genuine issue of fact remains as to whether Monessen’s

removal of railroad tracks on the bridge constituted an abandonment of the

entire right-of-way. Id. at 19, 22-24. Keystone argues that the removal of

the railroad tracks did not render the bridge unusable, and that the removal

of the tracks could have been done for reasons other than abandonment.

Id. at 22-24.

      An easement is defined as “[a]n interest in land owned by another

person, consisting in the right to use or control the land, or an area above or

below it, for a specific limited purpose.” Stanton v. Lackawanna Energy,

Ltd., 886 A.2d 667, 676 n.7 (Pa. 2005) (citation omitted). “When reviewing

an express easement, the language of the agreement, unless ambiguous,

controls.”    Baney v. Eoute, 784 A.2d 132, 136 (Pa. Super. 2001).         “To

determine the nature of an express easement, we must ascertain the

intention of the parties from the language of the instrument.      Amerikohl

Mining Co. v. Peoples Nat. Gas Co., 860 A.2d 547, 550 (Pa. Super.

2004).       “Such intention 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.” Id. (citation omitted). “[I]f the



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location, size or purpose of an easement is specified in the grant, then the

use of an easement is limited to the specifications.” PARC Holdings, Inc.

v. Killian, 785 A.2d 106, 111 (Pa. Super. 2001); see also Garan v.

Bender, 55 A.2d 353, 354 (Pa. 1947) (stating that “an owner may make

changes not affecting the character of the servient estate so long as the use

of the easement is confined strictly to the purposes for which it was

created.”).

      “[A]n easement may terminate either through the operation of the

limitations of its creation or by extinguishment.”       Forest Glen Condo.

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

Super. 2006) (citation omitted). An easement may be extinguished where

the dominant tenant abandons the easement.         Id.    With regard to the

abandonment of a railroad easement, our Court noted the following:

      In 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. Mere nonuse by the railroad does not amount to
      abandonment.

      In determining the intent of the parties, the intermediate courts
      have considered a myriad of factors. For example, ... a mere
      failure to maintain and repair existing tracks did not amount to
      an intent to abandon. [Further, it has been] held that evidence
      that the railroad company entered into salvage agreements and
      quitclaimed its interest in the subject property should be
      submitted for the factfinder to resolve the railroad’s intent to
      abandon. Courts in this Commonwealth have also indicated that
      the filing of a certificate of abandonment with the ICC or PUC


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J-A35041-15


      demonstrated intent to abandon, but cautioned that in order to
      justify a finding of abandonment, the filing of the certificate must
      be coupled with external acts in furtherance of abandonment.

      In sum, many different factors can be considered when making a
      determination of abandonment. Moreover, no single factor alone
      is sufficient to establish the intent to abandon. Abandonment
      must be determined based upon all of the circumstances
      surrounding the alleged abandonment.

Moody v. Allegheny Valley Land Trust, 930 A.2d 505, 514-15 (Pa. Super.

2007) (citations, quotation marks, and emphasis omitted), aff’d, 976 A.2d

484 (Pa. 2009).      “[Q]uestions of abandonment are heavily fact-driven

decisions.   The reason that these decisions are heavily fact-driven is that

intent to abandon must be established from the evidence, and that

numerous possible factors evidencing intent must be considered.” Moody,

930 A.2d at 514 (citation, quotation marks, and emphasis omitted).

      On May 25, 1931, when Monessen conveyed the strip of land to Pitt-

WV, thereby dividing its property, it reserved an easement for a railroad

bridge over the Pitt-WV property. The deed stated the following:

      Excepting and reserving unto [Monessen], its successors and
      assigns, however, the permanent right and easement for the
      construction, maintenance, repair, renewal and operation of its
      railroad tracks and facilities supported by an adequate railroad
      bridge as now constructed over and across the property
      hereinabove granted, together with the right to support said
      crossing or bridge by the four pedestals and columns now
      located and constructed on the above described property.

Deed, 5/25/31, at 5 (unnumbered).

      On September 4, 1980, Monessen filed an application with the PUC for

authorization to abandon its railroad tracks located in Rostraver Township,


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and cease operation as a common carrier.         Monessen Sw. Ry. Co. v.

Pennsylvania Pub. Util. Comm’n, 474 A.2d 1203, 1205 (Pa. Cmwlth.

1984), aff’d, 493 A.2d 666 (Pa. 1985).      The PUC denied the application;

however, the Commonwealth Court reversed the PUC’s denial and granted

Monessen’s application.    Monessen Sw. Ry. Co., 474 A.2d at 1206.         In

1990, Monessen sold its interest in the property, both the northern and

southern portions, and the railroad bridge connecting the properties, to the

Canestrales.

     On July 11, 1997, the Canestrales sold the southern portion of the

property, including the parcel accessing the railroad bridge, to Keystone. In

a deposition, Keystone’s corporate designee, Scott Turer (“Turer”), stated

that any railroad tracks that led up to and crossed the bridge had been

removed by the time Keystone purchased the property. N.T., 9/4/13, at 33-

34; see also id. at 26-27 (wherein Turer stated that Keystone did not know

the last time the bridge had been used by a railroad car or train engine); id.

at 32 (wherein Turer admitted that Three Rivers used a separate railroad on

Keystone’s property).     Turer acknowledged that Keystone never used the

bridge, and did not have permission to enter the property on the northern

side of the bridge.   Id. at 20, 49.    Turer further indicated that Keystone

never inspected the bridge to determine whether it required maintenance or

whether railroad tracks could be placed on it.      Id. at 20-23.   Keystone

discovered the removal of the bridge in January 2009. Id. at 18.



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      Here, Monessen’s actions of filing an application with the PUC to

remove the railroad tracks in Rostraver Township and cessation of its

common carrier operations,4 and its removal of the railroad tracks on the

bridge and on either side of the bridge, supported a finding that

demonstrated that it had abandoned the railroad bridge. See Buffalo Twp.

v. Jones, 813 A.2d 659, 664 (Pa. 2002) (stating that “[i]n evaluating

whether the user abandoned the property, the court must consider whether

there was an intention to abandon the property interest, together with

external acts by which such intention is carried into effect.”); Moody, 930

A.2d at 515 (stating that “the filing of a certificate of abandonment with the

… PUC demonstrated intent to abandon, but cautioned that in order to justify

a finding of abandonment, the filing of the certificate must be coupled with

external acts in furtherance of abandonment.”) (citation and emphasis

omitted); see also Thompson v. Maryland and Pennsylvania R.R. Pres.

Soc’y, 612 A.2d 450, 453 (Pa. Super. 1992) (noting that the removal of

railroad tracks evidenced an external act to abandon the easement).

Indeed, the fact that no trains have run over the railroad bridge for

numerous years further confirms abandonment.        Moreover, Monessen did

not reserve the right to re-enter the railroad bridge or resume service;

4
  Keystone argues that the PUC proceedings were limited to Monessen’s
cessation of its operations as a common carrier, not to an abandonment of
the railroad or right of way. Brief for Appellant at 20. Keystone’s argument
is contravened by Monessen’s Application, which sought to abandon all
railway tracks in Rostraver Township and cease operation as a common
carrier.


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rather, Monessen divested its ownership of the two parcels of land to the

Canestrales.     Cf. Buffalo Twp., 813 A.2d at 665-66 (noting that Conrail

expressly retained the right to re-enter the “land for future railroad use in

the deed,” which demonstrated an intent to retain an interest in the

easement).5

      Contrary to Keystone’s argument that the easement could be utilized

without the railroad, the record reflects that the easement was specifically

limited to use as a bridge for a railroad, and does not include any other uses

for the bridge.     See Deed, 5/25/31, at 5 (unnumbered) (stating that

“[e]xcepting and reserving unto [Monessen], its successors and assigns,

however,   the    permanent   right   and   easement   for   the   construction,

maintenance, repair, renewal and operation of its railroad tracks and

facilities supported by an adequate railroad bridge ….”); see also PARC

Holdings, Inc., 785 A.2d at 111 (stating that if the purpose of the

easement is specified in the granting instrument, the easement is limited to

those uses). Thus, because the easement was given for a specific purpose,

i.e., a railroad bridge, it terminated as soon as the use for that purpose was

5
  We note that there is “strong federal and Pennsylvania legislative policy to
preserve railroad rights-of-way by allowing interim recreational use, most
notably as articulated in the National Trails System Act….” Moody, 930
A.2d at 512; see also 16 U.S.C.A. § 1241–51. This preservation of the
right of way, known as “railbanking,” allowed for the protection of rail
corridors and the future reactivation of rail service. Buffalo Twp., 813 A.2d
at 666-67. The interim use of the easement under these circumstances
would constitute a “discontinuance” and not an abandonment. Id. at 666.
Here, there was no evidence, and relevantly, no material issue of fact, that
the railroad bridge had been railbanked for an interim use.


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abandoned. Based upon the foregoing, we conclude that the trial court did

not err as a matter of law or make improper factual determinations when it

held that (1) Monessen had abandoned its railroad bridge; (2) as a result of

Monessen’s     abandonment,      the   railroad   bridge   right-of-way   was

extinguished; (3) the Canestrales did not transfer a valid right-of-way to

Keystone; and (4) Keystone had no enforceable rights with regard to the

abandoned easement.

      We will address Keystone’s next two claims together.      In its second

claim, Keystone contends that the trial court erred in granting summary

judgment on its trespass claim based on the court’s finding that Keystone

had not pled that the Canestrales had trespassed on Keystone’s land. Brief

for Appellant at 24; see also id. at 24-25 (wherein Keystone states that the

trial court found that Keystone’s Complaint alleges only that the Canestrales

had trespassed on the railroad bridge). Keystone argues that in light of the

trial court’s error, the case must be reversed and remanded for further

proceedings on its trespass claim. Id. at 25.

      In its third claim, Keystone contends that the trial court erred in

finding that its averments for damages based on the trespass action were

not viable.   Id. at 25, 29.   Keystone argues that the Canestrales’ liability

arose when they entered Keystone’s land without invitation or consent. Id.

at 26-27.     Keystone asserts that the damages for this action include

restoring the property and bridge to its former condition. Id. at 27-28; see



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also id. at 28 (wherein Keystone claims that “[a]lthough some of [the]

allegations of damages address the cost to replace the [b]ridge, these are

damages that are recoverable because of the trespass to the land itself.”).

      “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 without a privilege to do so.”    Kennedy v. Consol Energy Inc.,

116 A.3d 626, 636 (Pa. Super. 2015); see also Florig v. Estate of O’Hara,

912 A.2d 318, 327 n.13 (Pa. Super. 2006) (stating that “[t]o maintain

trespass, there must be in the plaintiff either actual possession or the right

to immediate possession flowing from the right of property; and he must

have been deprived of it by the tortious act of another.”) (citation omitted).

In determining the proper measure of damages for an injury to land, we

note the following:

      Assuming the land is reparable, the measure of damage is the
      lesser of: (1) the cost to repair, or (2) the market value of the
      damaged property (before it suffered the damage, of course). If
      the land is not reparable, the measure of damage is the decline
      in market value as a result of the harm.

Slappo v. J’s Dev. Assocs., Inc., 791 A.2d 409, 415 (Pa. Super. 2002)

(citations omitted).

      Relevantly, Keystone’s Complaint states the following:

      19. Unbeknownst to [Keystone], sometime in the year 2008, the
      [Canestrales] and their duly authorized agents, servants,
      workmen and employees or their duly authorized contractors
      purposefully, intentionally and tort[i]ously trespassed upon
      [Keystone’s] lands and razed the railroad bridge over the [Pitt-



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      WV] tracks and appropriated unto themselves the structural
      components of the railroad bridge.

Complaint, 1/30/09, at 4.         The remaining averments in Keystone’s

Complaint relate exclusively to the removal of the railroad bridge.       See,

e.g., id. at 1-5.     Keystone alleges that “[t]he razing of the bridge was

without the consent of [Keystone], was clearly in violation of the

appurtenant rights vested in [Keystone] by virtue of the … deed and its

appurtenances and constituted an intentional and tort[i]ous interference with

the rights of [Keystone].” Id. at 4. Keystone further alleges that it never

abandoned its right to use the railroad bridge; that the Canestrales’ action of

removing the bridge deprived it of ownership of its land; and that Keystone’s

property rights were damaged due to the removal of the railroad bridge. Id.

at 4, 5. Keystone averred that due to the removal of the bridge, it suffered

damages including the cost of construction of a replacement bridge, the loss

of opportunity with regard to the industrial uses on the Canestrales’

property, the diminution of its property value, and delay in the use of the

bridge. Id. at 4-5.

      Here, Keystone’s single and generic reference to trespass on its

“lands,” without further explanation, was insufficient to overcome the grant

of summary judgment as to its claim of a trespass on the tract of land that

was connected to the bridge. Indeed, the entirety of the Complaint relates

to the removal of the railroad bridge, and Keystone does not present any

evidence that the Canestrales actually entered their property to remove the


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railroad bridge.   See Trial Court Opinion, 2/11/15, at 6; Thompson, 95

A.3d at 904 (stating that “[f]ailure of a non-moving party to adduce

sufficient evidence on an issue essential to his case and on which it bears

the burden of proof establishes the entitlement of the moving party to

judgment as a matter of law.”) (brackets omitted). Furthermore, Keystone

has neglected to present any evidence of actual harm caused by the

Canestrales with regard to its property. See Thompson, 95 A.3d at 904.

Instead, in its Complaint, Keystone’s damages relate exclusively to the

removal and loss of the railroad bridge, rather than any damages due to the

alleged trespass on its tract of land. See Trial Court Opinion, 2/11/15, at 6.

Moreover, as noted above, Keystone is not entitled to relief on its trespass

action related to the railroad bridge due to Monessen’s abandonment of the

railroad bridge.   Because the railroad bridge was abandoned, and because

Keystone has failed to allege an actionable trespass by the Canestrales as to

its property, we conclude that Keystone’s second and third claims are

without merit.

      In its final claim, Keystone contends that the trial court erred in relying

upon facts cited in opinions related to Monessen’s PUC filings to determine

abandonment of the railroad bridge. Brief for Appellant at 29, 30. Keystone

argues that Pennsylvania law does not permit a trial court to rely on opinions

in unrelated cases when ruling on a case. Id. at 29. Keystone asserts that




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the trial court’s action allowed the Canestrales to avoid presenting any

evidence regarding abandonment. Id. at 31.

     As noted above, in determining whether a railroad bridge has been

abandoned, courts may consider whether a certificate of abandonment has

been filed with the PUC. See Buffalo Twp., 813 A.2d at 665; Moody, 930

A.2d at 515.   In this case, the trial court considered the existence and

outcome of the PUC proceedings, but not the “facts as stated within.” Trial

Court Opinion, 2/11/15, at 4. Keystone has not demonstrated that the trial

court made any impermissible findings and thus, its final claim is without

merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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