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                                2017 PA Super 27



FRANCESCA V. GURECKA                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

ROBERT W. CARROLL AND
HOLLY LACEY CARROLL

                         Appellants                   No. 1301 WDA 2014


                 Appeal from the Order Entered July 11, 2014
              In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 11-024656


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
        and OTT, J.

DISSENTING OPINION BY LAZARUS, J.:                 FILED FEBRUARY 3, 2017

      Because I do not believe that the Carrolls’ property is subject to an

“open, visible and permanent” easement, I respectfully dissent.

      The Majority agrees with the trial court and concludes that the

existence of the four manhole covers on the Carrolls’ property should have

alerted them to the presence of a network of sewer lines crossing under

their property, thus satisfying the tripartite test for the creation of an implied

easement set forth in Daddona v. Thorpe, 749 A.2d 475, 481 (Pa. Super.

2000). I do not believe that the record supports this conclusion.

      My review of the record indicates that Gurecka failed to establish that

manholes are commonly used at connection points between private sewer

pipes and municipal sewer lines. Gurecka has attached no affidavits to this
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effect to any of her pleadings, nor has she provided citation to Pennsylvania

case law or that of any other jurisdiction in support of this critical issue.

Accordingly, Gurecka has provided an insufficient basis on which the court

could find “the subject sewer, and for that matter, the network of sewers in

the area of the [Carrolls’] property to be open, visible and permanent.” Trial

Court Opinion, 7/11/14, at 8.

      On the record provided, I do not believe that Gurecka has established

a clear right to a permanent injunction based upon the existence of an

easement by implication.     See Buffalo Tp. v. Jones, 813 A.2d 659, 663

(Pa. 2002) (“In order to establish a claim for a permanent injunction, the

party must establish his or her clear right to relief.”).   Therefore, I would

reverse the order of the trial court.

      Judge Bowes joins this Dissenting Opinion.




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