J-A30027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLENN R. NOBLIT AND MARILYN M.                IN THE SUPERIOR COURT OF
NOBLIT,                                             PENNSYLVANIA

                         Appellants

                    v.

RANDY L. WOLFE AND JANET A.
GREENE,

                         Appellees                  No. 606 MDA 2016


                Appeal from the Order Entered March 10, 2016
               In the Court of Common Pleas of Dauphin County
                   Civil Division at No(s): 2015-CV-04168-CV


BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 14, 2017

      Appellants, Glenn R. Noblit and Marilyn M. Noblit, appeal from the

order entered on March 10, 2016, which sustained the preliminary objections

filed by Randy L. Wolfe (hereinafter “Defendant Wolfe”) and Janet A. Greene

(hereinafter    “Defendant     Greene”)   (hereinafter,   collectively   “the

Defendants”), and dismissed Appellants’ complaint with prejudice.        We

vacate and remand.

      Appellants instituted the current action on May 28, 2015, by filing a

complaint for a permanent injunction against the Defendants. Specifically,

Appellants requested that the trial court issue a permanent injunction

against the Defendants and enjoin the Defendants from interfering with
J-A30027-16



Appellants’ ownership interest in a private road (hereinafter “the Private

Road”). Appellants’ Complaint, 5/28/15, at 1.

     Within the complaint, Appellants averred that they own the Private

Road. Id. at ¶ 5. Moreover, Appellants alleged that, for over two years, the

Defendants have engaged in a course of conduct that has interfered with

Appellants’ quiet use and enjoyment of the Private Road.        According to

Appellants, this course of conduct has included harassing, intimidating, and

offensive actions, made by the Defendants and directed towards Appellants,

Appellants’ relatives, and Appellants’ invitees. See id. at 1-9. As Appellants

averred, these actions included:

        (1) “On or about the week before Thanksgiving 2012, the
        invitees of [Appellants], their son and grandchildren, were
        to place ‘No Trespassing’ signs regarding hunters,
        whereupon they were stopped by [the Defendants] and
        were told they were not allowed on the very ‘Private Road’
        they had full legal right to”;

        (2) “On or about the week after Thanksgiving, 2013, while
        [Appellants’] son[] was traveling on [Appellants’] Private
        Road, Defendant Greene came screaming out and []
        attempted to stop [Appellants’ son] from proceeding”;

        (3) In 2015, the Defendants “continued to call and harass”
        Appellants’ surveyor, Anthony Trost [(hereinafter “Surveyor
        Trost”)], regarding the placement of “flags and markings
        [on] the [Private Road] in order to determine areas of the
        on-going trespass of Defendant Wolfe’s trees, limbs[,] and
        branches”;

        (4) “On or about April 3, 2015, [Appellant Glenn Noblit and
        Appellants’] grandchildren[] were on the Private Road
        [when] . . . Defendant Greene accosted them, screaming
        they are not allowed to walk on [Appellants’] Private Road”;


                                    -2-
J-A30027-16


        (5) “Additionally, on April 3, 2015, . . . while [Appellant
        Glenn Noblit] had his tools to connect the markers of
        Surveyor Trost, and [was] . . . using a chalk line string to
        connect the stakes to show what trees [were] to be
        removed, [the] Defendants approached the grandchildren,
        yelling and screaming, ‘You [can’t] f___ing do this.’ ‘That
        you don’t have a license to do this.’ When son Austin[] put
        a string on a pin, Defendant Wolfe accused him of running
        away from what he destroyed and Defendant Greene got
        into [Appellant Glenn Noblit’s] face and yelling, ‘You son of
        bitch, you are not allowed to touch the stakes’”;

        (6) “Also on or about April 3, 2015 . . . , Defendant Greene
        . . . called [Appellant Glenn Noblit] a ‘son of a bitch,’ ‘f___
        you’[,] tore down the string, tangled it and threw it across
        the right-of-way. . . .       [Defendant] Greene said to
        [Appellant Glenn Noblit], ‘I will spit all over you, if I f___in
        want to.’ At this point, Defendant Wolfe turned his backside
        toward [Appellant Glenn Noblit], yelling ‘I use you to wipe
        my God damn ass.’ . . . The grandchildren stepped back
        from him and [one grandchild] hid behind the car door
        stating ‘he was scared.’ A State Policeman appeared, stated
        this was a civil matter and had to go to another call. As the
        officer left, [Defendant Greene said to Appellant Glenn
        Noblit] ‘You are going to take all the paint off the trees you
        marked on the right of way. You are going to scrub the
        paint off these trees’”;

        (7) “On or about . . . April 29, 2015, [Appellant Glenn
        Noblit] and a [Pennsylvania Power and Light (hereinafter
        “PPL”)] serviceman [were] discussing connecting electricity
        [when] Defendant Wolfe [told Appellant Glenn Noblit] ‘To
        get back in his vehicle and not to walk on the right-of-way
        because he was not allowed to be out of his vehicle on the
        right-of-way[’]. . . . Additionally, Defendant Wolfe told the
        PPL serviceman, “I am not going to tell you one more time,
        to get in your vehicle and get out of here.’ At this point,
        Defendant Greene came out of the house yelling[,] ‘You are
        not allowed to stand on the right-of-way and you are not
        allowed here.’”

Id. at ¶ 6 (some internal capitalization omitted).




                                     -3-
J-A30027-16



      Although Appellants’ complaint is not a perfect pleading and does not

rise to the pinnacle of clarity, Appellants requested in the complaint that the

trial court “abate this on-going conduct by the Defendants” and “issu[e] a

permanent injunction against [the] Defendants from barring and preventing,

in any manner, the blocking, obstructing[,] or intimidating harassment by

any means against [Appellants’] ownership of [the] Private Road.” Id. at 1

and “Wherefore” Clause.

      On June 22, 2015, the Defendants filed preliminary objections in the

nature of a demurrer to Appellants’ complaint.        Within the Defendants’

preliminary objections, the Defendants claimed that, as a matter of law,

Appellants were not entitled to a permanent injunction because “[a]ll of the

harms described in the complaint can be compensated by damages, and are

therefore not appropriate grounds for injunctive relief.”     The Defendants’

Preliminary Objections, 6/22/15, at ¶ 3.

      On March 10, 2016, the trial court sustained the Defendants’

preliminary objections and dismissed Appellants’ complaint with prejudice.

Trial Court Order, 3/10/16, at 1. Within the trial court’s later-filed opinion,

the trial court explained the reasoning behind its order:

        In their complaint, Appellants allege three specific instances
        which they submit warrant issuance of an injunction. The
        first describes an instance in 2012 in which invitees of
        Appellants, as well [as] Appellants’ son and grandchildren,
        were told by [the Defendants] that they were not allowed
        on the [Private Road]. Second, in 2013, Appellants’ son
        was traveling on the [Private Road] when [Defendant]
        Greene “came screaming out” and attempted to stop him


                                     -4-
J-A30027-16


          from proceeding down the road.         Finally, in 2014,
          [Defendant] Wolfe filed a motion to terminate Appellants’
          rights in the [Private Road].

          As we held in [the] March 10, 2016 order, and as we hold
          now, none of these incidents warrant the issuance of an
          injunction. Appellants fail to demonstrate how the harm
          alleged cannot be compensated by monetary damages.
          Should [the Defendants] be found civilly or criminally liable
          for their interference with Appellants’ ownership of the road,
          such liability could be accurately measured and awarded to
          Appellants.

          Similarly, Appellants’ [claim that the trial court erred when
          it dismissed their complaint without granting them leave to
          amend] is without merit. Where a trial court sustains
          preliminary objections on their merits, it is generally an
          abuse of discretion to dismiss a complaint without leave to
          amend. However, leave to amend is not required where it
          is clear that amendment is impossible or where granting
          leave to amend would be futile. Such is the case here.
          Assuming Appellants were granted leave to amend their
          complaint, it would not have altered the outcome. The only
          remedy sought by Appellants was issuance of an injunction.
          Even an amended complaint would not have justified such
          relief.

Trial Court Opinion, 5/27/15, at 2-3 (internal citations and some internal

capitalization omitted).

      Appellants filed a timely notice of appeal and now raise two claims on

appeal:

          1. Whether the [trial] court erred by sustaining [the
          Defendants’] preliminary objections in the nature of a
          demurrer, where [Appellants] properly and sufficiently
          pleaded unlawful interference with their right to use and
          enjoy their private road and requested an injunction to
          enjoin the interference?

          2. Whether the [trial] court erred and abused its discretion
          by dismissing [Appellants’] complaint with prejudice and


                                      -5-
J-A30027-16


        without leave to amend, where the complaint sought
        injunctive relief that is expressly permitted by Pennsylvania
        law, and where the [trial] court recognized the availability
        of a remedy for the conduct described in the complaint?

Appellants’ Brief at 4 (some internal capitalization omitted).

      We have stated:

        A preliminary objection in the nature of a demurrer is
        properly [sustained] where the contested pleading is legally
        insufficient.   Preliminary objections in the nature of a
        demurrer require the court to resolve the issues solely on
        the basis of the pleadings; no testimony or other evidence
        outside of the complaint may be considered to dispose of
        the legal issues presented by the demurrer. All material
        facts set forth in the pleading and all inferences reasonably
        deducible therefrom must be admitted as true.

        In determining whether the trial court properly sustained
        preliminary objections, the appellate court must examine
        the averments in the complaint, together with the
        documents and exhibits attached thereto, in order to
        evaluate the sufficiency of the facts averred. The impetus
        of our inquiry is to determine the legal sufficiency of the
        complaint and whether the pleading would permit recovery
        if ultimately proven. This Court will reverse the trial court’s
        decision regarding preliminary objections only where there
        has been an error of law or abuse of discretion. When
        sustaining the [preliminary objections] will result in the
        denial of claim or a dismissal of suit, [the preliminary
        objections may be sustained] only where the case [is] free
        and clear of doubt.

Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009)

(internal citations, quotations, and corrections omitted).

      “In order to obtain permanent injunctive relief, a party must establish

the following elements relative to their claims: (1) the right to relief is clear,

(2) the injunction is necessary to avoid an injury that cannot be

compensated by damages, and (3) that greater injury will result if the court

                                      -6-
J-A30027-16



does not grant the injunction than if it does.” Mazin v. Bureau of Prof’l &

Occupational Affairs, 950 A.2d 382, 389 (Pa. Cmwlth. 2008); Kuznik v.

Westmoreland Cty. Bd. of Comm’rs, 902 A.2d 476, 489 (Pa. 2006).

“Unlike a preliminary injunction, a permanent injunction does not require

proof of immediate irreparable harm.” Liberty Place Retail Assocs., L.P.

v. Israelite Sch. of Universal Practical Knowledge, 102 A.3d 501, 506

(Pa. Super. 2014).        Moreover, with respect to property interests, our

Supreme Court has held:

        Injury to property, with reference to its reasonable and
        ordinary use, by continuous hurtful acts, constitutes a
        nuisance undoubtedly, and may properly be the subject of
        equity jurisdiction, not only to redress the injured party by
        restraining the injurious acts, but in some cases by
        compelling the wrongdoer to make amends for the injury
        done. . . . It is well settled that a series of acts although
        criminal will not prevent equity from restraining them if the
        remedy at law is inadequate.

Ashinsky v. Levenson, 100 A. 491, 492 (Pa. 1917) (internal quotations

and citations omitted).

      In this case, the trial court held that Appellants’ complaint does not

state a claim for permanent injunctive relief because an award of monetary

damages can compensate Appellants for all of their harm.          Trial Court

Opinion, 5/27/15, at 2-3. On appeal, Appellants argue that the trial court’s

conclusion is erroneous because the law does not provide an adequate

remedy for the Defendants’ continued harassment and interference with

Appellants’ use and enjoyment of their private property.     Appellants note



                                     -7-
J-A30027-16



that they seek “to enjoin the pattern of obstruction and harassment [and] to

preserve [Appellants’] right to use and enjoy the private road.” Appellants’

Brief at 10-11. We agree with Appellants. We thus respectfully vacate the

trial court’s order.

      Read fairly, Appellants’ complaint avers that the Defendants have

engaged in a continuous and continuing course of conduct that has

prevented and is preventing Appellants from the use and enjoyment of

their Private Road.    Further, Appellants have averred that the Defendants’

years’ long scheme has included harassing, intimidating, and offensive

actions against Appellants, Appellants’ relatives, and Appellants’ invitees.

Monetary relief simply cannot adequately compensate Appellants for these

injuries or for the deprivation of the use and enjoyment of their property.

To paraphrase the Pennsylvania Supreme Court:

         Unless a [court] protects [Appellants], it is clear that
         [Appellants] will be deprived of the use and enjoyment of
         [their] property. In such case, there is no adequate remedy
         [in] law for the unlawful acts of the [Defendants] which
         have been constantly recurring and threatening to continue,
         and equity clearly has jurisdiction . . . [to] enter such
         decree as will effectively protect [Appellants] in the use and
         enjoyment of [their] property.

See Ashinsky, 100 A. at 492.

      Therefore, we conclude that Appellants properly pleaded that “the

injunction is necessary to avoid an injury that cannot be compensated by

damages.” Mazin, 950 A.2d at 389. We respectfully conclude that the trial




                                     -8-
J-A30027-16



court erred when it sustained the Defendants’ preliminary objection in the

nature of a demurrer.1

        Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




____________________________________________


1
    As a result of our disposition, Appellants’ second claim on appeal is moot.



                                           -9-
