                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2007

TX E Transmission v. Perano
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1720




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"TX E Transmission v. Perano" (2007). 2007 Decisions. Paper 1255.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1255


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                  Case No: 05-1720

                        TEXAS EASTERN TRANSMISSION, LP

                                          v.

                          FRANK T. PERANO, t/d/b/a GSP
                        Management; RHG PROPERTIES, LLC,

                                               Appellants


                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              District Court No. 04-CV-3915
                  District Judge: The Honorable Mary A. McLaughlin


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  April 11, 2007

             Before: SMITH, NYGAARD, and HANSEN, Circuit Judges*

                                (Filed: April 19, 2007)


                                      OPINION


SMITH, Circuit Judge.




      *
       The Honorable David R. Hansen, Senior United States Circuit Judge for the Court
of Appeals for the Eighth Circuit, sitting by designation.

                                          1
       Frank T. Perano, doing business as GSP Management, and RHG Properties, LLC

(hereafter referred to collectively as Perano), appeals the District Court’s order granting a

preliminary injunction in favor of Texas Eastern Transmission, LP. “[T]he standard

governing our review is that accorded to grants or denials of preliminary injunctions, i.e.,

whether the district court abused its discretion, committed an obvious error in applying

the law, or made a clear mistake in considering the proof.” In re Assets of Martin, 1 F.3d

1351, 1357 (3d Cir. 1993) (citation omitted). We exercise plenary review with regard to

questions of law, and conduct clear error review as to the factual determinations. Id. For

the reasons set forth below, we will affirm.

       Perano purchased real estate in Honey Brook Township, Chester County,

Pennsylvania, which was subject to an easement held by Texas Eastern for the operation

of two parallel natural gas pipelines. A mobile home park is situated on the real estate.

During an aerial inspection of its right-of-way, Texas Eastern observed activity at one of

the mobile home sites which encroached further into its easement. As a result, Texas

Eastern notified Perano by letter that he was prohibited from installing any additional

trailers or structures within 25 feet of either of the two pipelines, and that digging within

25 feet of the pipelines was prohibited by state and federal regulations. Perano installed a

new, larger mobile home, however, situated five feet closer to the pipeline, leaving a

distance of only ten feet between the edge of the home and the 20 inch gas pipeline.

Texas Eastern initiated a civil action. It moved for a preliminary injunction which would



                                               2
require the removal of the mobile home and would enjoin further interference with its

easement.

       After a hearing, the District Court granted the preliminary injunction. It

concluded, inter alia, that Texas Eastern had demonstrated a likelihood of success in

establishing that the width of the right of way, which was not specified in the easement,

was 25 feet from either pipeline, and that Texas Eastern had demonstrated irreparable

harm if injunctive relief was denied. The Court enjoined Perano from interfering with

Texas Eastern’s ability to operate the two pipelines, prohibited any excavation or digging

without first notifying Texas Eastern, and ordered the removal of the mobile home.

Perano appealed.1

       Perano asserts that the District Court erred by granting the preliminary injunction.

He contends that the District Court erred in its determination that 25 feet on either side of

the pipeline was the reasonable and necessary width of the easement. Perano also

challenges the District’s Court’s determination that Texas Eastern demonstrated

irreparable harm.

       Perano’s arguments lack merit. The District Court correctly applied Pennsylvania

law, which instructs that when the width of an easement is not specified in the grant, “the

grantee is given such rights as are necessary for the reasonable and proper enjoyment of



       1
        The District Court exercised diversity jurisdiction. 28 U.S.C. § 1332. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1292(a).

                                              3
the thing granted.” Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657 A.2d 920,

924 (Pa. 1995). Consistent with Zettlemoyer, and based on the testimony of Texas

Eastern’s employees, the District Court did not err by finding that 25 feet on either side of

the pipelines was the reasonable and necessary width for the right of way.

       Nor can we fault the District Court for rejecting Perano’s argument that Texas

Eastern’s past use of only 10 or 15 feet of the easement demonstrated that the reasonable

and necessary width of the entire easement was only 25 feet in toto. Zettlemoyer instructs

that the width of an unrestricted grant of an easement cannot be diminished because the

grantee fails to immediately use the easement to the fullest extent possible. 657 A.2d at

926.

       Finally, Perano’s contention that the District Court erred by concluding that Texas

Eastern had met its burden of demonstrating irreparable harm is without merit. The

District Court, relying on the testimony of Texas Eastern’s employees, concluded that the

safety concerns posed by a cluttered right of way constituted irreparable harm. There is

no basis for disturbing this determination.

       We will affirm the order of the District Court granting Texas Eastern’s motion for

a preliminary injunction.
