J-S19014-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

FORREST J. DEITZLER, ELAINE H. 

DEITZLER, AND TIMOTHY 

DEITZLER,

v.

KENNETH J. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1571 MDA 2023

Appeal from the Order Entered October 31, 2023

In the Court of Common Pleas of Schuylkill County Civil Division at 

No(s): S-803-2023

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 13, 2024

Appellant, Kenneth J. Smith, appeals from the order entered by the 

Schuylkill County Court of Common Pleas on October 31, 2023, granting 

preliminary injunctions sought by Appellees, Forrest J. Deitzler, Elaine H. 

Deitzler, and Timothy Deitzler, to enforce a 2016 agreement regarding an 

easement. In the agreement, Appellees granted Appellant an easement on 

an “unpaved road” located on their property. Easement Agreement, 6/29/16, 

at 1. In the instant litigation, however, Appellant, argued that the unpaved 

road is on his property, not Appellees’ property, and that the easement is 

elsewhere on Appellees’ property. Appellant contended that since the 

unpaved road was on his property, he had the right to utilize the unpaved 

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* Retired Senior Judge assigned to the Superior Court.
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road in ways that obstructed Appellees’ use of it. The trial court rejected 

Appellant’s argument and entered a preliminary injunction prohibiting 

Appellant from obstructing Appellees’ use of the unpaved road. The trial court 

also granted Appellees’ request for attorneys’ fees. We affirm the portion of 

the trial court’s order granting the preliminary injunction and quash the appeal 

of the portion of the order granting Appellees’ attorney fees because Appellant 

does not have the right to file an interlocutory appeal of that portion of the 

order. 

We glean the following facts and procedural history from the trial court’s 

opinion and the certified record. The case involves an ongoing property 

dispute between Appellant and Appellees, who own adjacent properties in

Orwigsburg, Schuylkill County. The properties were previously unified in the 

hands of an ancestor of Appellant and Appellee Elaine Deitzler, who are 

cousins. It appears that when Appellant’s and Appellee’s fathers divided the 

properties, they did not obtain a formal survey to identify the boundary line 

between the properties but rather “pinned it themselves[,]” resulting in what 

the trial court aptly described as a “mess” from being “[a] penny wise[] and 

a pound foolish.” N.T., 7/25/23, at 92.

The parties’ current dispute involves the location of an easement and 

whether it follows the unpaved road near the border between Appellant’s and 

Appellees’ properties, which both parties have used to access their respective 

properties. In particular, both parties agree that the easement borders 

Appellees’ western property line but disagree regarding the exact location of 
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the property line. The location of the line determines whether the unpaved 

road is on Appellant’s or Appellees’ property. 

The trial court noted that it had presided over a prior property dispute 

between the parties that resulted in a 2016 settlement agreement, in which 

Appellees’ granted Appellant a non-exclusive easement to use the unpaved 

road along the western boundary of Appellees’ property (“Settlement 

Agreement”). Specifically, the Settlement Agreement stated that Appellant 

claimed “the right to use a certain Driveway (as defined in [Appellant’s]

Complaint) located on [Appellees’] Property to access [Appellant’s] 

Property[.]” Settlement Agreement, 6/29/16, at 1. 

The referenced complaint appears to be one filed by Appellant on 

September 24, 2014. While Appellant’s 2014 complaint did not define 

“Driveway[,]” it did define “Access Road” as follows: “Because [Appellant’s] 

Property is otherwise landlocked, the only available means of ingress, egress 

and regress upon [Appellant’s] Property is an unpaved road which begins at 

Pine Tree Lane, a public road, and bisects [Appellant’s] Property and 

[Appellees’] Property (hereinafter the ‘Access Road’).” Compl., 9/24/14, at 

¶ 8; see also N.T. at 15-16. The Settlement Agreement stated that Appellees

granted Appellant “an Easement for the use of the Driveway in the form 

marked as Exhibit ‘A’ attached hereto and incorporated herein by reference.”

Settlement Agreement at ¶ 1. 

Exhibit A appears to reference the Easement Agreement, which specified 

that Appellant “utilizes a certain unpaved road of [Appellees], being 
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approximately twenty (20) feet wide and extending approximately three 

hundred twelve (312) feet; more or less, along the Western boundary of the 

[Appellees’] Property, to access [Appellant’s] Property (hereinafter referred to 

as the ‘Easement’)” (emphasis added). Easement Agreement at 1. Appellees 

agreed to grant Appellant “a perpetual nonexclusive Easement[,]” as 

described above, with “the right of ingress and egress over, across and 

through that portion of [Appellees’] Property.” Id. at ¶ 2. Attached to the 

agreements was a tax map upon which was a hand-drawn easement of 312 

feet extending straight from the termination of what appears to be the

township road of Pine Tree Lane.

The Settlement Agreement additionally included a broad release for the 

parties and all successors, inter alia, from “all [] actions . . . from the 

beginning of time to the date of this instrument, including, but not limited to 

any and all claims, demands, or actions pertaining to . . . the use of the 

Driveway[.]” Settlement Agreement at ¶ 5. The agreement further provided 

for the imposition of attorney fees on a breaching party. Id. at ¶ 6.

At some later point, Appellant began to obstruct Appellees’ use of the 

unpaved road by tilling and planting on a portion of the road, posting no 

trespassing signs, and calling law enforcement regarding Appellees’ use of the 

road. Appellant claimed that he had the right to engage in these activities

because the unpaved road was on his property rather than being an easement 

across Appellees’ property. To support his position, Appellant relied upon a 

March 10, 2023 survey performed by Kevin L. Bensinger, which placed the 
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property lines such that the unpaved road was on Appellant’s property and 

located an easement elsewhere on Appellees’ property, specifically along the

line that the survey designated as Appellees’ western property line. 

On May 8, 2023, Appellees filed a complaint alleging that Appellant was

violating the Settlement Agreement by obstructing their use of the unpaved 

road. Appellees sought preliminary injunctions to address Appellant’s alleged

violations of the Settlement Agreement. 

On July 25, 2023, the court held a hearing to address the preliminary 

injunction request at which Appellee Forrest Deitzler, Appellant, and Mr. 

Bensinger testified. Of most significance, Mr. Bensinger admitted that the

parties agreed in the 2016 Settlement Agreement that the easement was on 

the unpaved road. N.T. at 74. 

Mr. Bensinger, however, opined that the parties in 2016 “had no idea 

where the boundary was[.]” Id. at 72. After determining that that the 

unpaved road was on Appellant’s side of the property boundary, Mr. Bensinger

reasoned that “as a surveyor,” he could not place the easement intended for 

Appellant’s benefit along the unpaved road as it was on Appellant’s own 

property. Id. Instead, he drew the “easement” as a 312-foot by 20-foot 

rectangle on Appellees’ side of the property boundary. Id. at 73-74.

On October 31, 2023, the trial court granted Appellees’ request for 

preliminary injunctions, finding that the easement was on the unpaved road. 

The trial court ordered Appellant: (1) “to immediately cease any obstructions 

of the [e]asement that is the subject of the Settlement Agreement;” (2) “to 
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immediately restore the [e]asement to its state as existed at the time of the 

Settlement Agreement within 10 days; (3) “to provide [Appellees] with free 

and unobstructed means of ingress, egress and regress over and through the 

[e]asement[.]” Order, 10/31/23, at ¶¶ 1-3. The court additionally imposed

sanctions against Appellant in the amount of Appellees’ reasonable attorneys’

fees. Id. at ¶ 5. The court held that the order would be effective upon 

Appellees’ presentment of a $1,000 bond. Id. at ¶ 6.

Appellant filed a notice of appeal on November 14, 2023 and timely filed 

a Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial 

court relied upon its October 31, 2023 opinion granting the preliminary 

injunction without specifically addressing Appellant’s questions. Pa.R.A.P. 

1925(a) Order, 1/11/24. 

Before this Court, Appellant presents the following questions:

A. Whether the trial court committed an error of law, abused its 

discretion or otherwise ruled improperly in finding “this matter 

was previously settled by way of the June 29, 2016 [Settlement] 

Agreement”? 

1. Whether the trial court committed an error of law, abused 

its discretion or otherwise ruled improperly when it first 

correctly ruled in accordance with the principles of contract 

law that “the parties agreed to be bound by the drawings 

attached to the Settlement Agreement” and that “the court 

will continue to uphold the terms the parties had agreed 

to[,”] but then contradictorily determined that instead of 

following a straight line across the western boundary of 

[Appellees’] property, as clearly described and graphically 

depicted in the said Settlement Agreement, [Appellant’s]

Easement somehow crosses over [Appellees’] boundary and 

into [Appellant’s] own property?
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2. Whether, in so doing, the trial court committed an error 

of law, abused its discretion or otherwise ruled improperly 

by entering an order of court which would effectively sua 

sponte convey a substantial portion of [Appellant’s] real 

property to [Appellees’], without justification and without

compensation? 

B. Whether the trial court committed an error of law, abused its 

discretion or otherwise ruled improperly in ordering [Appellant] to

“immediately cease any obstructions of the Easement that is the 

subject of the settlement agreement without specifically finding 

that [Appellant] ever actually placed any “obstructions” in and 

upon the Easement, and without identifying those alleged 

“obstructions” with sufficient particularity? 

1. Whether the trial court committed an error of law, abused 

its discretion or otherwise ruled improperly in finding, by

necessary implication, that [Appellant] conducted 

agricultural activities or otherwise placed “obstructions” in 

and upon the Easement, contrary to the overwhelming

weight and sufficiency of the expert testimony and evidence 

proffered by [Appellant]?

2. Whether the trial court committed an error of law, abused 

its discretion or otherwise ruled improperly by entering an

order of court with which compliance is impossible?

C. Whether the trial court committed an error of law, abused its 

discretion or otherwise ruled improperly by generally assessing 

sanctions against [Appellant] in an unspecified, unliquidated

amount without justification, and without citing any specific legal 

basis for its authority to do so?

D. Whether the trial court committed an error of law, abused its 

discretion or otherwise ruled improperly by granting a preliminary

injunction in favor of a named party plaintiff, Timothy Deitzler, 

who lacked standing in the matter? 

Appellant’s Br. at 14-16 (some capitalization altered).

An order granting a preliminary injunction is appealable as of right 

pursuant to Pa.R.A.P. 311(a)(4). We review “an order granting or denying a 

preliminary injunction for an abuse of discretion.” SEIU Healthcare
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Pennsylvania v. Commonwealth, 104 A.3d 495, 501 (Pa. 2014). In 

applying this “highly deferential standard of review,” we do not consider the 

merits of the underlying action but instead review the record to determine if 

the trial court had “apparently reasonable grounds” for its action. Id. (citation 

omitted).

To grant a preliminary injunction, a trial court must determine that the 

party seeking the injunction established the following “six essential 

prerequisites[:]”

(1) the injunction is necessary to prevent immediate and 

irreparable harm that cannot be compensated adequately by 

damages; 

(2) greater injury would result from refusing the injunction than 

from granting it, and, concomitantly, the issuance of an injunction 

will not substantially harm other interested parties in the 

proceedings; 

(3) the preliminary injunction will properly restore the parties to 

their status as it existed immediately prior to the alleged wrongful 

conduct; 

(4) the party seeking injunctive relief has a clear right to relief and 

is likely to prevail on the merits; 

(5) the injunction is reasonably suited to abate the offending 

activity; and, 

(6) the preliminary injunction will not adversely affect the public 

interest.

Id. at 501–02. 

A.

In questions A and B, Appellant in essence challenges the trial court’s 

determination that the parties agreed in the Settlement Agreement that the 
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easement was on the unpaved road. Appellant’s Br. at 41-55. Appellant 

instead argues that the unpaved road is on his property and the “easement”

set forth in the Settlement Agreement is elsewhere on Appellees’ property as 

designated in Mr. Bensinger’s survey. Id. at 46-48. Appellant concludes that 

he cannot comply with the order requiring him to remove obstructions from

the “easement” because he did obstruct the “easement.” Id. at 55-61. 

Appellant further argues that since Appellees’ counsel drafted the Settlement 

Agreement, any ambiguity must be construed in his favor and against 

Appellees. Id. at 52-53. Upon careful review of the record, we conclude that 

the trial court did not abuse its discretion but rather had reasonable grounds 

for granting the preliminary injunctions.

Specifically, the record supports the trial court’s decision to grant 

preliminary injunctions to maintain the status quo of the terms of the

Settlement Agreement, which the parties intended would “settle this dispute 

once and for all[.]” Trial Ct. Op., 10/31/23, at 6. The record supports the 

trial court’s finding that the parties identified the easement as the unpaved 

road and not the location designated in Mr. Bensinger’s survey. Id. at 6, 4. 

Since Appellant acknowledged that he had tilled and engaged in other 

agricultural activities on the unpaved road, the trial court properly ordered 

Appellant to remedy the obstructions. Id. at 4. The court also concluded that 

Appellees’ “preliminary injunction request essentially require[d Appellant] to 

adhere to the terms he had already agreed to” in the Settlement Agreement.

Id. at 6.
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Addressing the six prerequisites for preliminary injunctions, the court 

concluded that the first prerequisite was met because “[t]o not implement the 

preliminary injunction would be to disregard the parties’ prior agreement and 

settlement that dealt with this exact issue and that cannot be monetarily 

compensated with damages.” Id. at 6. The court found the second 

requirement met because it concluded that greater injury would result from 

not issuing the order, in that “issuance of th[e] preliminary injunction will not 

cause any harm to any interested parties in the proceedings as this is 

specifically what the parties had agreed to previously.” Id. at 6-7. Turning 

to the third requirement, the court found that the “preliminary injunction will 

properly restore the parties to their status as per the Settlement Agreement.” 

Id. at 7. On the fourth element, the court opined that Appellees had a clear 

right to relief on the merits given that “this precise issue . . . was addressed 

via the Settlement Agreement in 2016.” Id. The court found that the 

requested injunctions, which sought to enforce the terms of the prior 

agreement were “reasonably suited to abate the offending activity” as 

required for the fifth element. Id. Finally, the court concluded that because 

the injunction involved a private matter between the two parties, it did “not 

involve the public interest whatsoever.” Id.

We conclude that the record, and specifically the Settlement Agreement,

supports the trial court’s determinations. While the Settlement Agreement

lacks drafting precision, the agreement clearly and unambiguously defines the 

location of the easement as the unpaved road. The trial court properly 
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rejected Mr. Bensinger’s theory that the location of the easement was 

elsewhere on Appellees’ property. 

Furthermore, since the Settlement Agreement clearly and 

unambiguously defines the location of the easement as the unpaved road, we 

reject Appellant’s argument that we must interpret the Settlement Agreement 

in his favor because Appellees drafted it. Accordingly, we affirm the grant of 

preliminary injunctions to restore the parties to the status quo that the parties 

agreed to in the Settlement Agreement.

B.

Appellant next challenges the award of attorney fees. Appellant’s Br. at 

61-66. We quash this aspect of the appeal as interlocutory and unappealable. 

The award of attorney fees is not appealable as a final order under Pa.R.A.P. 

341 because it did not “dispose[] of all parties and all claims.” See Brawley 

Distrib. Co. v. Heartland Properties, 712 A.2d 331, 332 (Pa. Super. 1998)

(per curiam). The award of attorney fees in this case also does not fit within

any category of interlocutory appeals as of right under Pa.R.A.P. 311 nor as a 

collateral order under Pa.R.A.P. 313. See id. (quashing appeal of pre-trial 

order granting attorney fees, holding that it was not an interlocutory order 

appealable under Pa.R.A.P. 311 nor a collateral order under Pa.R.A.P. 313 as 

the right would not be “irretrievably lost if review is postponed until final 

judgment”). Accordingly, we only have jurisdiction to review this issue when 

the trial court has issued a final order.

C.
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Finally, Appellant contends that Appellee Timothy Deitzler (“Timothy”) 

lacks standing in the current matter. Appellant’s Br. at 66-69. The trial court, 

however, did not address the issue of Timothy’s standing in deciding 

Appellees’ motion for preliminary injunction. We observe, instead, that 

Appellant challenged Timothy’s standing in his Answer, New Matter and 

Counterclaims which remained pending before the trial court as of the filing of 

Appellant’s notice of appeal. Answer, New Matter and Counterclaims, 6/9/23, 

at ¶ 5. As the trial court has yet to opine on Timothy’s standing, we have no 

determination to review. Thus, the issue warrants no relief at this time. 

Accordingly, we affirm the trial court’s grant of preliminary injunctions 

to Appellees, quash the appeal as to attorney fees, and remand for further 

proceedings.

Order affirmed in part; appeal quashed in part. Case remanded. 

Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/13/2024