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HomeMy WebLinkAbout2008-7475 Civil TOD AND LISA SHEDLOSKY, : IN THE COURT OF COMMON PLEAS OF HUSBAND AND WIFE, : CUMBERLAND COUNTY, PENNSYLVANIA INDIVIDUALLY AND ON BEHALF OF : ALL OTHER PERSONS AND ENTITIES : SIMILARLY SITUATED, : PLAINTIFFS : : V. : : PENNSYLVANIA ELECTRIC : COMPANY, : DEFENDANT : 08-7475 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., May 12, 2009:-- On December 24, 2008, plaintiffs “Tod and Lisa Shedlosky, husband and wife and individually, and on behalf of all other persons and entities similarly situated,” filed a complaint against defendant Pennsylvania Electric Company. Since November, 2005, plaintiffs have owned real property at the corner of Walnut Bottom Road and Airport Road in Shippensburg, Cumberland County. On July 1, 1960, defendant entered into a Right-of-Way Agreement with the previous owners Frank Hollar and Janet Hollar. Pursuant to the Agreement, and for a one time payment of $26, defendant installed a section of a 3-phase 23,000 volt distribution line across the Hollars’ property to service another property - The News Chronicle. The Agreement 08-7475 CIVIL TERM provides: “Permission is also granted to install stub pole and anchor on south side of US11 near the A.T.& T. Co cable. If future conditions require, upon proper request of Grantors, Grantee shall move said poles and anchors to a location agreeable to Grantors.” Plaintiffs herein subdivided their property and entered into an agreement with Rutters Farm Store to purchase a part thereof on which to locate a store. Plaintiffs were required to obtain a highway occupancy permit from the Pennsylvania Department of Transportation to accommodate a road expansion for the project. The road expansion required the relocation of defendant’s electric facilities. Plaintiffs submitted a Facilities Relocation Request to defendant. Defendant refused to relocate the electric facilities without payment of $53,284.92, an amount that was based on its tariff. Plaintiffs paid defendant that amount under protest and without waiver or limitation of its right to seek appropriate redress. Claiming a breach of contract, plaintiffs aver: Under the Right-of-Way Agreement, [defendant] cannot charge the cost of facilities relocation to the [plaintiffs] when the request is required by conditions at the property that have arisen since the execution of the Agreement. Plaintiffs instituted an action against defendant before the Pennsylvania Public Utility Commission. The Commission concluded that it did not have jurisdiction to determine allocation of the relocation costs because that requires interpreting the provisions of the Right-of-Way Agreement which takes precedent over the tariff for which jurisdiction lies in a court of common pleas. The Commission did, as a matter of judicial economy, find that $53,284.92 was an appropriate charge under defendant’s -2- 08-7475 CIVIL TERM tariff. Defendant filed preliminary objections to plaintiffs’ complaint which was briefed and argued on April 29, 2009. Initially it seeks a demurrer, maintaining that the Filed Tariff Doctrine bars plaintiffs’ claim in that the Filed Tariff is legally binding and governs the rate pertaining to relocation of the electric facilities, the Public Utility Commission has already decided that under the tariff it appropriately charged plaintiffs the costs of relocation, and the decision that the charge was appropriate under the tariff is not subject to collateral attack. The Public Utility Commission did not decide that defendant appropriately charged plaintiffs the cost of relocation. To the contrary, the Commission refused to make such a determination on the basis that jurisdiction to determine allocation of the relocation cost under the provisions of the Right-of-Way Agreement lies in a court of common pleas. The Commission, as a matter of judicial economy in case a court of common pleas would decide that the matter should be adjudicated before it, determined that $53,284.92 was an appropriate charge under defendant’s tariff. Accordingly, the issue of the allocation of costs is properly before this court. The demurrer to plaintiffs’ complaint based upon the proceedings before the Public Utility Commission will be denied. Defendant further demurrers to plaintiffs’ complaint maintaining that the Right-of- Way Agreement does not impose on it the cost of the relocation of the electric facilities that plaintiffs’ requested, that Pennsylvania law governing easements precludes plaintiffs’ claims, and plaintiffs have not pled facts which would permit the court to add a -3- 08-7475 CIVIL TERM term to the Right-of-Way Agreement. Defendant cites three Pennsylvania cases for the proposition that, “When an easement agreement is silent as to who bears the cost of a relocation or change in facilities, Pennsylvania courts impose the costs on the party Minard Run Oil Co. v. Pennzoil who requested and will benefit from the change.” In Co., 419 Pa. 334 (1965),Minard sold a pipeline company an easement through its property for a six inch pipeline. A road crossed over the pipeline at two different places. Plaintiff sought to further extend a road over the pipeline and because the nature of the terrain it was necessary to sink the pipeline to a greater depth. Pennzoil, the current owner of the easement, refused to further sink the pipeline. Plaintiff filed a suit in equity to compel the work. The trial court ordered defendants to sink the pipeline to accommodate the needs of plaintiff’s road and placed the costs of the operation on the plaintiff. Plaintiff appealed and the order was upheld. Minard is not authority for the position stated by defendant in the present case because Minard did not involve the interpretation of any contract between the plaintiff and defendant as to who would bear the cost of changing the location of an easement. Gateway Motels, Inc. v. Duquesne Light Co., In 347 Pa. Super. 619 (1985), the Duquesne Light Company appealed from a judgment which ordered it to relocate its electrical transmission system, at its own expense, on property owned by the plaintiff. Plaintiffs’ predecessor in title gave defendant an express easement to install an overhead electrical transmission system on its property. The Agreement provides: In the event the said Grantors [Monzos] should change the present -4- 08-7475 CIVIL TERM grade of the land where the poles supporting said transmission system are erected by filling around said poles, the said Grantee [Duquesne], at its expense, shall raise said poles as many times as may, in the judgment of said Grantee, be necessary to provide adequate clearance for the operation of said transmission system. In the years following the creation of the easement changes were made in the surface of the property by a land-filling operation designed to raise the elevation of the land. From time to time, Duquesne raised its poles pursuant to the agreement. Gateway Motel, Inc., who acquired the property from the former owners demanded that Duquesne, at its own expense, either relocate above ground or place underground the transmission line. Duquesne refused and Gateway filed a complaint in equity. The trial court held that the easement agreement required the relocation of the transmission lines and that the relocation was at the expense of Duquesne. On appeal, the Superior Court of Pennsylvania noted: Although it could be concluded that the parties may have contemplated that the land was subject to future change, the only relocation suggested in the clear language of the agreement is that the supporting poles could be raised by Duquesne, as necessary, to provide for adequate clearance in the event that the easement grantors changed the grade of the land. There is no other language in the agreement that touches upon the subject of a possible movement of the transmission line. In particular, there is certainly no mention of any intent or contemplation by the parties that the system be moved underground or that it be relocated to any place on the property other than the area specifically delineated on the drawing which was made a part of the agreement. The Superior Court reversed the judgment of the lower court concluding: In order to ascertain the nature of an easement created by an express grant, the intention of the parties must be determined, if possible, from the language of the instrument of conveyance. Merrill v. Manufacturers Light and Heat Company, 404 Pa. 68, 185 A.2d 573 -5- 08-7475 CIVIL TERM (1962). We conclude that the language employed in the agreement under consideration in the instant case may not be construed to require the Appellant to relocate the transmission lines in issue, at its own expense, at the demand of the Appellee. The Appellee’s request for relief should have been denied. Gateway, The facts in the present case, unlike those in are that the Right-of- Way Agreement does touch on the subject of a possible movement of defendant’s transmission line by stating: “If future conditions require, upon proper request of Grantors, Grantee shall move said poles and anchors to a location agreeable to Grantors.” Defendant has moved the electric facilities. The issue is over who pays the Gateway cost of the Grantee performing its duty under the contract. is not authority that supports defendant’s position. Soderberg v. Weisel, In 687 A.2d 839 (Pa. Super. 1997), the issue was whether a court, through the use of its equitable powers, may compel the relocation of a prescriptive easement. The Superior Court noted that prescriptive easements are quite different from express grant easements and that express grant easements, once Soderberg acquired, are much more difficult to alter. In , the Superior Court concluded that a court may compel the relocation of a prescriptive easement if that relocation would not substantially interfere with the easement holder’s use and enjoyment of the right of way and it advances the interest of justice. It upheld the order of the trial court directing the relocation of the easement but reversed the order which provided that the costs for doing so would be divided equally between the parties. The Court stated: We can see no reason, logical or otherwise, to justify the Weisels’ -6- 08-7475 CIVIL TERM contribution to the relocation of the easement that benefits solely the Soderbergs. Thus, Soderberg did not involve the interpretation of a contract granting an express easement which contains language contemplating possible movement of the easement in the future. Therefore, it does not support defendant’s position that Pennsylvania law governing easements precludes plaintiffs’ claims. Finally in seeking a demurrer defendant maintains that the Right-of-Way Agreement does not impose on it the cost of the relocation plaintiffs’ requested and that plaintiffs have not pled facts which would permit the court to add a term to the Hart v. Arnold, Agreement. In 884 A.2d 316 (Pa. Super. 2005), the Superior Court of Pennsylvania stated: To successfully maintain a cause of action for breach of contract the plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages. Gorski v. Smith, 812 A.2d 683 (Pa.Super.2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (citing Corestate Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999)). The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties. The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself. The whole instrument must be taken together in arriving at contractual intent. Courts do not assume that a contract’s language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777 “In A.2d 418, 429 (2001) (internal citations and quotation marks omitted). ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.” Espenshade v. -7- 08-7475 CIVIL TERM Further, “specific, Espenshade, 729 A.2d 1239, 1243 (Pa.Super.1999). express written language is not necessary for a particular contractual intent to exist in an agreement. Rather, it is common for the intent of contracting parties to be inherent in the totality of their contract.”“In the absence of Murphy, supra at 596, 777 A.2d at 432. an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.” Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 546 A.2d 676, 679 (1988) (describing what is known as “The meaning of an unambiguous “doctrine of necessary implication”). written instrument presents a question of law for resolution by the court.” Murphy, supra at 591, 777 A.2d at 430. (Emphasis added.) Slater v. Pearle Vision Center, Inc., In 376 Pa. Super. 580 (1988), the Superior Court stated: where it is clear that an obligation is within the Thus, contemplation of the parties at the time of contracting or is necessary to carry out their intentions, the court will imply it . Gallagher v. Upper Darby Township, 114 Pa.Commw. 463, 539 A.2d 463, This is true even where the contract itself is not 467 (1988). ambiguous.Frickert v. Deiter Bros. Fuel Co., Inc., Id.; [ 464 Pa. 596 (1975)]. Since the doctrine of necessary implication serves not to instruct the court as to which of two possible interpretations of a contract should be adopted, but rather to allow the court to enforce the clear intentions of the parties and avoid injustice, the court does not need to find an ambiguity before it will employ the doctrine. (Emphasis added.) The interpretation of the Right-of-Way Agreement between plaintiffs and defendant is a matter of law to be determined by this court. The contract provides that “if future conditions require it, upon proper request of the Grantors, Grantee shall move -8- 08-7475 CIVIL TERM said poles and anchors to a location agreeable to Grantors.” Defendant did move its electrical facilities at the request of grantors for such a purpose. Plaintiffs have adequately pleaded a cause of action for breach of contract in seeking a refund of the amount they were forced to pay to defendant to perform that work. For the foregoing reasons, the following order is entered. ORDER OF COURT IT IS ORDERED AND NOW, this day of May, 2009, that the preliminary objections ARE DISMISSED. of defendant to plaintiffs’ complaint, By the Court, Edgar B. Bayley, J. Robert B. Hoffman, Esquire th 213 Market Street, 8 Floor Harrisburg, PA 17101 For Plaintiffs Patricia M. Hamill, Esquire th 1515 Market Street, 16 Floor Philadelphia, PA 19102 Delano M. Lantz, Esquire 4 North Hanover Street Carlisle, PA 17013 For Defendant :sal -9- TOD AND LISA SHEDLOSKY, : IN THE COURT OF COMMON PLEAS OF HUSBAND AND WIFE, : CUMBERLAND COUNTY, PENNSYLVANIA INDIVIDUALLY AND ON BEHALF OF : ALL OTHER PERSONS AND ENTITIES : SIMILARLY SITUATED, : PLAINTIFFS : : V. : : PENNSYLVANIA ELECTRIC : COMPANY, : DEFENDANT : 08-7475 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED AND NOW, this day of May, 2009, that the preliminary objections ARE DISMISSED. of defendant to plaintiffs’ complaint, By the Court, Edgar B. Bayley, J. Robert B. Hoffman, Esquire th 213 Market Street, 8 Floor Harrisburg, PA 17101 For Plaintiffs Patricia M. Hamill, Esquire th 1515 Market Street, 16 Floor Philadelphia, PA 19102 Delano M. Lantz, Esquire 4 North Hanover Street Carlisle, PA 17013 08-7475 CIVIL TERM For Defendant :sal -2-