IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

DAVID LAUDERMILCH; ERIC 

ROD; and JOHN T. WOLFE, 

 Plaintiffs, 

 v. 

730 TEXAS TIMBERLANDS, II, 

LTD.; and GREENWOOD 

RESOURCES, INC., 

 Defendants. 

 No. 4:22-CV-00423 

 (Chief Judge Brann) 

 

 

MEMORANDUM OPINION 

AUGUST 17, 2022 

For more than forty years, select property owners in Potter County, 

Pennsylvania have granted owners of the 1,450 acres of working timberland 

adjacent to their land a “right-of-way” over their properties to access the 

timberland, which is otherwise landlocked. In exchange, the owners of the 

timberland assumed all responsibility for maintenance of the right-of-way. But the 

current owners of the individual properties believe that Defendants 730 Texas 

Timberlands, II, Ltd. and GreenWood Resources, Inc.—the owner of the 

timberland and the corporation contracted to manage it—failed to adequately 

maintain the right-of-way, causing it to fall into disrepair. Accordingly, the 

property owners sued, seeking a declaratory judgment and alleging breach of 

contract. 

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Before the Court now is the property owners’ motion for a preliminary 

injunction: they ask the Court to enjoin the Defendants from using the right-of-way 

during the pendency of this case. But the property owners have not established 

either of the two preliminary factors required to justify preliminary relief—a 

reasonable probability of success on the merits and irreparable harm absent the 

injunction. Accordingly, the motion is denied. 

I. BACKGROUND 

A. Factual Background 

Plaintiffs David Laudermilch, Eric Rod, and John T. Wolfe own separate 

parcels of land in Bingham Township, Potter County, Pennsylvania.1

 The 

Plaintiffs’ properties abut a 1,450-acre plot of working timberland that Defendant 

730 Texas owns as an investment property.2

 According to 730 Texas, the 

timberland is completely landlocked—it cannot be accessed by public road.3

 Per 

agreement with 730 Texas, Defendant GreenWood manages the timberland.4

The parties are successors in interest to a right-of-way agreement dated April 

30, 1969 (the “ROW Agreement”), which provides the Defendants with a right-ofway to use subject portions of Cinder Hill Road—a private, gravel road on the 

Plaintiffs’ properties—to access the timberland.5

 In addition, the ROW Agreement 

1

 Doc. 1 ¶¶ 14–16. 

2

 Doc. 12 ¶ 2; Doc. 13 ¶ 2. 

3

 Id. 4

 Id. 5

 Doc. 1 ¶¶ 2, 25; Doc. 12 ¶¶ 2, 25; Doc. 13 ¶¶ 2, 25; see also Doc. 4-1, Ex. 1 (ROW Agreement). 

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imposes on 730 Texas full responsibility for maintenance of the subject portions of 

Cinder Hill Road.6

According to the Plaintiffs, due to 730 Texas’s use of the right-of-way, 

Cinder Hill Road has “significantly deteriorated over time and is currently in dire 

need of repair.”7

 The Plaintiffs allege that for at least the past five years, they have 

“repeatedly informed [the] Defendants that their subject portions of Cinder Hill 

Road were in disrepair and required significant maintenance,” but the Defendants 

“have ignored [the] Plaintiffs’ inquiries.”8

 

The Defendants dispute this, asserting that they have always fulfilled their 

obligations under the ROW Agreement.9

 According to the Defendants, Plaintiff 

Rod first raised concerns regarding the condition of the right-of-way in October 

2020.10 Rod met with GreenWood’s U.S. Northeast Manager, Todd Sparks, and a 

contractor to discuss road repair and maintenance of Rod’s subject portion of 

Cinder Hill Road.11 Sparks informed Rod that to complete the needed repairs, the 

roadway would need to be widened.12

6

 Doc. 4-1, Ex. 1 (ROW Agreement) at 1 (“It is understood and agreed that all responsibilities 

of maintenance of the said right-of-way shall be the responsibility of [730 Texas].”). 

7

 Doc. 1 ¶ 31. 

8

 Id. ¶¶ 6, 41. 

9

 Doc. 12 ¶¶ 31, 57; Doc. 13 ¶¶ 31, 57. 

10 Doc. 12 ¶ 6; Doc. 13 ¶ 6. 

11 Doc. 1 ¶¶ 33–35; Doc. 12 ¶¶ 33–35; Doc. 13 ¶¶ 33–35. 

12 Doc. 1 ¶ 36; Doc. 12 ¶ 36; Doc. 13 ¶ 36. 

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Following this meeting, Rod removed trees on his property located alongside 

Cinder Hill Road and loosened the corresponding frontage and roadway (the 

parties dispute whether Rod did this at Sparks’s direction or on his own volition).13

GreenWood’s contractor then repaired the damaged portion of the road on Rod’s 

property.14 In the Plaintiffs’ telling, this constituted a “temporary repair,” after 

which Sparks “represented to Mr. Rod that he would return in April 2021 to 

rebuild the subject portion of Cinder Hill Road and install a permanent drainage 

system.”15 Conversely, the Defendants contend that GreenWood and its contractor 

“completed [the] required maintenance on the [right-of-way] by widening it, 

raising it, and crowning it,”16 and deny representing to Rod that they would return 

in April 2021 to rebuild the roadway and install a new drainage system.17

Since GreenWood completed the December 2020 roadway repairs, there has 

been no further maintenance work on the road and the Defendants’ use of the rightof-way has been minimal. GreenWood intended to survey the portion of the Cinder 

Hill Road covered by the right-of-way in the summer of 2021 and assess whether 

further maintenance was required.18 Indeed, Sparks lined up a contractor for the 

expected work.19 But after he received pointed comments from Rod—in an 

13 Id. 14 Doc. 1 ¶ 38; Doc. 12 ¶ 38; Doc. 13 ¶ 38. 

15 Doc. 1 ¶ 38. 

16 Doc. 18 at 5. 

17 Doc. 12 ¶ 38; Doc. 13 ¶ 38; see also Doc. 18 at 5. 

18 Doc. 24. 

19 Id. 

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expletive-laden voicemail, Rod threatened to seek criminal prosecutions against 

anyone affiliated with the Defendants who entered his property—Sparks called off 

the prospective project.20 

 Further, in 2021, only one heavy vehicle associated with the Defendants’ 

business operations traversed the right-of-way.21 And to date, no heavy vehicles 

operating on the Defendants’ behalf have accessed the right-of-way in 2022.22

Based on recent construction on Plaintiff Laudermilch’s property, it seems that 

over the past two years, most heavy vehicle traffic across the right-of-way has been 

for the Plaintiffs’ benefit, independent of the Defendants’ business operations.23 

B. Procedural History 

On March 21, 2022, the Plaintiffs initiated the instant action, seeking a 

declaratory judgment and bringing a claim for breach of contract.24 Specifically, 

the Plaintiffs request a declaration from the Court that (a) “the Defendants are 

responsible for the maintenance of the Plaintiffs’ subject portions of Cinder Hill 

Road under the ROW Agreement (i.e., the right-of-way identified in the ROW 

Agreement),” and (b) “the Defendants’ failure to adequately repair and maintain 

the Plaintiffs’ subject portions of Cinder Hill Road constitutes a breach of the 

20 Id. 21 Doc. 18 at 5; see also Doc. 24. 

22 Id. The Defendants noted that in preparation for an expected sale in late 2022 or 2023, “a trailer 

will be used [at some point this year] to transport a piece of equipment to and from the 

Timberland.” Doc. 18 at 5. 

23 Doc. 24. 

24 Doc. 1. 

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ROW Agreement.”25 Additionally, the Plaintiffs assert that the Defendants “failed 

to comply with their roadway maintenance obligations to the Plaintiffs under the 

ROW Agreement, and multiple oral promises to the Plaintiffs, by failing to 

adequately repair and maintain the Plaintiffs’ subject portions of Cinder Hill 

Road.”26

The following day, the Plaintiffs filed a motion for preliminary injunction, 

asking the Court to enjoin the Defendants “from accessing and using certain 

portions of Cinder Hill Road . . . as identified in the [ROW Agreement].”27 After 

the Defendants filed their answers to the Complaint,28 they submitted their 

opposition to the Plaintiffs’ preliminary injunction motion.29 The Court held a 

hearing on the motion on August 2, 2022.30 Accordingly, the Plaintiffs’ motion is 

now ripe for disposition. 

II. LAW 

Federal Rule of Civil Procedure 65 governs the granting of injunctive relief 

such as temporary restraining orders and preliminary injunctions. By design, this 

relief is extraordinary in nature and available only in limited circumstances.31 The 

25 Id. ¶ 51 (cleaned up). 

26 Id. ¶ 57 (cleaned up). 27 Doc. 3; see also Doc. 4 (Plaintiffs’ Mem. of Law in Support of Their Motion for Preliminary 

Injunction). 

28 Doc. 12; Doc. 13. 

29 Doc. 18. 

30 Doc. 23; Doc. 24. 

31 See AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426–27 (3d Cir. 1994), 

cert. denied, 514 U.S. 1103 (1995). 

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United States Court of Appeals for the Third Circuit has outlined four factors that a 

court ruling on a request for injunctive relief must consider: (1) whether the 

movant has shown a reasonable probability of success on the merits; (2) whether 

the movant will be irreparably injured by denial of the relief; (3) whether granting 

preliminary relief will result in even greater harm to the nonmoving party; and 

(4) whether granting the preliminary relief will be in the public interest.32 

In Reilly v. City of Harrisburg, the Third Circuit clarified the burden on a 

party seeking a preliminary injunction.33 The Third Circuit specified that a party 

requesting preliminary relief must first demonstrate the following: (1) “it can win 

on the merits (which requires a showing significantly better than negligible but not 

necessarily more likely than not),” and (2) “it is more likely than not to suffer 

irreparable harm in the absence of preliminary relief.”34 The Third Circuit 

continued that “[i]f these gateway factors are met, a court then considers the 

remaining two factors and determines in its sound discretion if all four factors, 

taken together, balance in favor of granting the requested preliminary relief.”35 

32 Talbert v. Corizon Medical, 605 F. App’x. 86, 87 (3d Cir. 2015). 

33 858 F.3d 173 (3d Cir. 2017). 

34 Id. at 179. 

35 Id. Citing the United States Court of Appeals for the Second Circuit’s 1995 ruling in Tom 

Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995), the 

Defendants differentiate so-called “prohibitory injunctions,” which seek only to preserve the 

status quo, and “mandatory injunctions,” which “seek to alter the status quo by commanding 

some positive act” and therefore require an “enhanced” showing of both the likelihood of 

success on the merits and irreparable harm. Doc. 18 at 9–10. Although this distinction is wellgrounded in the case law, it is of no consequence here: contrary to the Defendants’ contention, 

the preliminary injunction the Plaintiffs seek—preventing the Defendants from accessing and 

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III. ANALYSIS 

A. Likelihood of Success on the Merits 

The Plaintiffs argue that they are likely to succeed on both their declaratory 

judgment and breach of contract claims because the ROW Agreement obligates the 

Defendants to maintain the portions of Cinder Hill Road on the Plaintiffs’ 

properties, and the Defendants have failed to do so.36 In response, the Defendants 

acknowledge that 730 Texas has “all responsibilities for maintenance” of the rightof-way but argue they have satisfied their obligations by “performing [the] 

required maintenance of the [right-of-way], most recently in December of 2020.”37

Because the Defendants admit that under the ROW Agreement, “730 Texas 

is responsible for the maintenance of the [right-of-way],”38 the only question 

before the Court is whether the Plaintiffs have shown a reasonable probability of 

success on the merits for its breach of contract claim.39 To maintain a claim for 

breach of contract, a plaintiff must establish three things: “(1) the existence of a 

contract, including its essential terms; (2) a breach of the contract; and (3) resultant 

using the portion of Cinder Hill Road covered by the ROW Agreement, see Doc. 3—is not a 

mandatory injunction as it does not compel any action by the Defendants. 

36 Doc. 4 at 9–11. 

37 Doc. 18 at 10. 

38 Doc. 12 ¶ 51; Doc. 13 ¶ 51. 

39 As discussed, for Count I (declaratory judgment), the Plaintiffs request a declaration that 

(a) the Defendants “are responsible for the maintenance of [the] Plaintiffs’ subject portions of 

Cinder Hill Road under the ROW Agreement,” and (b) the Defendants’ “failure to adequately 

repair and maintain [the] subject portions of Cinder Hill Road constitutes a breach of the ROW 

Agreement.” Doc. 1 ¶ 51. Per the Defendants’ answers, the initial request is not in dispute. The 

second request simply duplicates an element of the Plaintiffs’ breach of contract claim, and, as 

such, the Court addresses this issue only as part of the breach of contract analysis. 

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damages.”40 The Supreme Court of Pennsylvania has held that “it is axiomatic that 

a contract may be manifest orally, in writing, or as an inference from the acts and 

conduct of the parties.”41

Here, the Plaintiffs contend that the Defendants failure “to adequately repair 

and maintain [the] Plaintiffs’ subject portions of Cinder Hill Road” constitutes a 

breach of their “roadway maintenance obligations” under (a) the ROW Agreement, 

and (b) the “oral promises” GreenWood allegedly made to Rod regarding 

construction that would start in April 2021.42 It is unclear from their pleadings 

whether the Plaintiffs consider the alleged oral promises to Rod distinct from the 

ROW Agreement—and, therefore, independently enforceable—or simply 

derivative of the existing ROW Agreement. But at the July 2022 hearing, 

Plaintiffs’ counsel asserted that the ROW Agreement and alleged oral promises 

should be considered independent of one another.43 As such, the Court addresses 

the ROW Agreement and oral promises separately. 

1. The ROW Agreement 

As discussed, the ROW Agreement provides that “all responsibilities of 

maintenance of the said right-of-way shall be the responsibility of [730 Texas].”44

40 Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 

137 A.3d 1247, 1258 (Pa. 2016). 

41 Id. 42 Doc. 1 ¶¶ 57, 60. 

43 Doc. 24. 

44 Doc. 4-1, Ex. 1 (ROW Agreement) at 1. 

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The parties agree that that they are all bound by this agreement, and that this 

provision imposes on the Defendants all responsibilities for maintenance of the 

right-of-way.45 The dispute here is whether the Defendants satisfied their 

obligations to maintain the right-of-way or breached the contract. 

The Plaintiffs argue that the Defendants “continually fail to satisfy their road 

maintenance obligations, despite repeated requests for roadway maintenance by 

[the] Plaintiffs.”46 Based on the testimony and arguments at the August 2022 

hearing, it seems the Plaintiffs believe that the Defendants breached the ROW 

Agreement in two respects: (1) they failed to perform routine maintenance, thus 

allowing general road degradation over time; and (2) they refused to build the 

specific drainage system Rod requested. The Court disagrees.47

First, during the August 2022 hearing, Rod testified that due to the 

Defendants’ failure to maintain the right-of-way, the portion of Cinder Hill Road 

that runs across his property physically sank by nearly two feet, creating a drop-off 

from his driveway to the road that consistently damaged cars exiting his property.48

But this account does not square with either the photographic evidence or the 

Defendants’ unchallenged account of their use and repair of the roadway over the 

45 See Doc. 4 at 9–11, accord Doc. 18 at 10. 

46 Doc. 4 at 9–10; see also Doc. 1 ¶ 32 (“Plaintiffs, on repeated occasions, advised 730 Texas or 

GreenWood (as the 730 Texas Property manager) that their subject portions of Cinder Hill 

Road required repair and that roadway deterioration had caused ancillary damage to Plaintiffs’ 

respective properties.”). 

47 Doc. 24. 

48 Id. 

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past five years. The Defendants presented photos of the Rod property portion of 

Cinder Hill Road—taken in December 2019 and May 2022—and none of the 

photos depicts the two-feet road depression Rod described.49 Further, 

GreenWood’s U.S. Northeast Manager, Sparks, testified that since 2017, the 

Defendants have completed only two large timber sales (i.e., work necessitating 

heavy vehicle traffic on the roadway).50 Following both sales, the Defendants 

performed maintenance on the roadway, grading and reshaping the road service, 

re-establishing the drainage ditches, and installing new pipes.51 Based on this 

evidence, the Court finds that the Plaintiffs have not demonstrated a reasonable 

probability of success on their claim that the Defendants breached their contractual 

obligations under the ROW Agreement by failing to perform the required routine 

maintenance. 

Second, the Plaintiffs argue that the ROW Agreement’s maintenance 

provision obligates the Defendants to construct a “permanent drainage system.”52

At the August 2022 hearing, Rod testified that he proposed the installation of an 

underground drainage pipe (with a catch basin or rock quarry to direct the water 

runoff) that would ultimately connect to the township’s drainage network.53 The 

49 See Doc 26, Ex. Z (Photographs taken during DEC 2019 roadway maintenance); Doc. 26, Ex. 

GG (Photographs of and along right-of-way taken by Todd Sparks on 23 May 2022). 

50 Doc. 24. 

51 Id. 52 Doc. 1 ¶ 38 (emphasis omitted). 

53 Doc. 24. 

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Defendants have not constructed this type of drainage system—instead, the 

Defendants simply re-established the ditches on either side of the roadway54—

which the Plaintiffs believe constitutes a breach of the ROW Agreement. 

But as the Defendants note, the ROW Agreement imposes on them “all 

responsibilities of maintenance of the . . . right-of-way,”55 and “maintenance,” 

commonly understood, means to “keep up” or “preserve.”56 According to the 

Defendants, this requirement creates “no obligation to improve” the right-of way.57

The Court agrees. By all accounts, the relevant portion of Cinder Hill Road is, and 

always has been, a dirt road. The only drainage elements in place have been the 

ditches; there has never been a permanent underground drainage system. Rod may 

believe such a system advisable, but that does not mean that the maintenance 

obligations in the ROW Agreement require the Defendants to install one. Indeed, 

the Court believes they do not. 

2. The “Oral Promises” 

Separately, the Plaintiffs argue that GreenWood “represented to Mr. Rod 

that [it] would return in April 2021 to rebuild the subject portion of Cinder Hill 

Road and install a permanent drainage system,”58 thereby creating a separate 

54 Id. 55 Doc. 4-1, Ex. 1 (ROW Agreement) at 1 (emphasis added). 

56 Doc. 18 at 11 (citing Webster’s New Twentieth Century Dictionary of the English Language, 

Unabridged, (2d Ed. 1968)). 

57 Id. 58 Doc. 1 ¶ 38 (emphasis omitted). 

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enforceable promise to construct Rod’s desired drainage system.59 But even if the 

Court were to accept that GreenWood made this commitment,60 they have not 

shown that they offered any consideration in exchange, rendering the commitment 

unenforceable. 

Under Pennsylvania law, “[t]o be enforceable, a contract must be between 

parties who have manifested an intention to be bound by the terms of the 

agreement; have terms that are sufficiently definite to be specifically enforced; and 

be supported by consideration on both sides of the contract—that is, bargained-for 

exchange and either a benefit upon the promisor or a detriment to the promisee.”61

These elements apply to both written and oral contracts.62 

Here, the Plaintiffs have not presented any evidence demonstrating a 

mutuality of consideration. According to the Plaintiffs, in late 2020, GreenWood’s 

U.S. Northeast Manager, Sparks, “informed Mr. Rod that to repair the deteriorated 

portions of Cinder Hill Road property, the road first needed to be widened, and that 

to do so, Mr. Rod had to remove trees from his property.”63 Rod then “removed the 

59 Doc. 24. 

60 The Defendants acknowledge Rod’s request “that an underground drainage system be installed 

to better manage the water runoff from the [right-of-way],” but they argue that they “never 

agreed to that request and have never promised to install it.” Doc. 18 at 10. Regardless, at this 

stage, the Plaintiffs need not show by a preponderance of evidence that the Defendants made 

this commitment; they need only demonstrate a reasonable probability that this commitment 

was made. Reilly, 858 F.3d at 179. 

61 Ohama v. Markowitz, 434 F. Supp. 3d 303, 311–12 (E.D. Pa. 2020) (citing Channel Home 

Centers, Division of Grace Retail Corp. v. Grossman, 795 F.2d 291, 298–99 (3d Cir. 1986)). 

62 Id. at 312 n.5. 

63 Doc. 4 at 6. 

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at-issue trees from [his] property,” and Sparks’s contractor “completed a temporary 

repair and patch of the damaged . . . portion of Cinder Hill Road [and] installed a 

temporary drainage pipe.”64 It was at this point, the Plaintiffs assert, that either 

Sparks or his contractor “represented to Mr. Rod that he would return in April 

2021 to rebuild the subject portion of Cinder Hill Road and install a permanent 

drainage system.”65 The Plaintiffs do not allege, and offer no evidence establishing, 

that they promised the Defendants anything in exchange for the commitment to 

install a permanent drainage system. There are likewise no allegations or evidence 

that the Plaintiffs took any detrimental actions in reliance on this alleged 

commitment—the only potentially detrimental actions (Rod’s tree removal) 

occurred before Sparks or his contractor allegedly made the promise. 

Absent evidence that the Plaintiffs, in exchange for the Defendants’ alleged 

commitment to install a permanent drainage system, offered the Defendants’ a 

benefit in return or assumed a detriment in reliance thereon, the Plaintiffs cannot 

show that this alleged commitment was enforceable independent of the ROW 

Agreement.66 And absent that, the Plaintiffs cannot establish a reasonable 

probability of success for a breach of contract claim based solely on the alleged 

oral promise.

64 Id. (citing Doc. 1 ¶¶ 36–37). 

65 Id. (citing Doc. 1 ¶ 38). 

66 See Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. 1993) (“It is axiomatic that before 

a contract may be found, all of the essential elements of a contract must exist, e.g., 

consideration.”). 

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B. Irreparable Harm 

Even if the Plaintiffs could establish a reasonable probability of success on 

the merits, their motion for preliminary injunctive relief would nevertheless fail 

because they have not shown that they are “more likely than not to suffer 

irreparable harm in the absence of preliminary relief.”67 The Third Circuit has 

explained that a preliminary injunction is proper only when the plaintiff 

“demonstrates a significant risk that he or she will experience harm that cannot 

adequately be compensated after the fact by monetary damages.”68 According to 

the Third Circuit, “the availability of adequate monetary damages belies a claim of 

irreparable injury”69 because “[t]he requisite feared injury or harm must be 

irreparable—not merely serious or substantial.” 70

Here, the Plaintiffs argue that absent injunctive relief, they will be 

irreparably harmed because the Defendants’ “continued use of the subject right-ofway—without completing the necessary maintenance—will further deteriorate and 

damage the road thus making the roadway dangerous and unusable.”71 The Court 

finds this argument unpersuasive. 

67 Reilly, 858 F.3d at 179. 

68 Adams v. Freedom Forge Corp., 204 F.3d 475, 484–85 (3d Cir. 2000). 

69 Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (internal 

quotation marks and brackets omitted). 

70 ECRI v. McGraw-Hill, 809 F.2d 223, 226 (3d Cir. 1987) (internal quotation marks omitted). 

71 Doc. 4 at 12–13. 

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As a preliminary matter, prevailing legal precedent establishes that a 

deprivation of a property right does not constitute irreparable harm per se. In 

Consolidated Eagle, Ltd. v. BL GP, LLC, the Pennsylvania Superior Court 

affirmed a trial court’s denial of the plaintiff’s motion for preliminary injunction, 

holding that the trial court did not err in finding that the plaintiff failed to establish 

irreparable harm absent preliminary relief.72 Relevant here, both the trial court and 

the Superior Court rejected the plaintiff’s argument that “it is longstanding law of 

Pennsylvania that any trespass to, or deprivation of, a real property interest 

constitutes immediate irreparable harm per se and does not require any further 

showing.”73 The Superior Court held instead that to obtain injunctive relief, the 

plaintiff needed to present evidence establishing irreparable harm, but the plaintiff 

failed to do so.74 This ruling accords with two separate opinions by my colleague 

Judge Malachy E. Mannion declining to order injunctive relief because the alleged 

injuries (deprivations of property rights) were compensable with monetary 

damages.75

72 2019 WL 6330587, at *9 (Pa. Super. Nov. 26, 2019). 

73 Id. at *5 (internal quotation marks, brackets, and emphasis omitted). 

74 Id. at *5–6. 

75 See Reisinger v. Cronauer, 2019 WL 3302242, at *3–4 (M.D. Pa. July 23, 2019) (Mannion, 

J.) (denying the plaintiff’s motion for preliminary injunction to prevent the defendant from 

“taking possession of his house” because, among other things, the “plaintiff has not shown 

immediate irreparable harm since monetary damages would be adequate to compensate him”); 

Gangoo v. Federal Home Loan Mortgage Co., 2017 WL 679972, at *5–6 (M.D. Pa. Feb. 21, 

2017) (Mannion, J.) (denying the plaintiff’s motion for injunctive relief barring his eviction 

from his property because, among other things, the “plaintiff has not shown immediate 

irreparable harm since monetary damages would be adequate to compensate him”). 

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Accordingly, the Plaintiffs’ motion for a preliminary injunction succeeds 

only if they make the factual showing required to establish that they will suffer 

irreparable harm absent immediate court intervention. When considering an 

interference with the real property of another, a determination of irreparable harm 

“flows from the owner’s inability to make better use of the site, or the owner’s lack 

of control over features, fixtures, and equipment located on the site.”76 Therefore, 

to establish that the alleged interference with real property constitutes an 

irreparable harm, the Plaintiffs must show that they can “no longer make 

productive use of [their] property.”77

Here, the Plaintiffs do not argue that the Defendants’ continued use of the 

right-of-way prevents them from accessing their property. Instead, the Plaintiffs 

claim, without explanation or factual support, that the Defendants’ activities on 

Cinder Hill Road will make “the roadway dangerous and unusable for [the] 

Plaintiffs.”78 But that won’t do. 

First, it is unclear whether the Defendants’ access to the right-of-way poses 

any risk of damage to the road. According to the Defendants, aside from a trailer to 

haul a piece of equipment to and from the Timberlands to perform work required 

in advance of a planned sale in 2023, no heavy trucks will be operated on the right76 7-Eleven Inc. v. Upadhyaya, 926 F. Supp. 2d 614, 631 (E.D. Pa. 2013) (citation omitted). 

77 Id. 78 Doc. 4 at 13. 

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of-way in connection with the Defendants’ business until at least 2023.79 Instead, 

“[the] Defendants, their agents, contractors, and prospective bidders will traverse 

the [right-of-way] in passenger vehicles and pickups just as will [the] Plaintiffs and 

their invitees.”80 As the Defendants argue, the Plaintiffs “have not demonstrated 

and cannot demonstrate any risk of irreparable harm resulting from continued use 

of the [right-of-way] by passenger vehicles and pickups.”81

Second, to the extent the Defendants’ use of the right-of-way does pose a 

risk of damage to the road, the Plaintiffs have not shown that the likely damage 

will prevent them from “mak[ing] productive use of [their] property.”82 By the 

Plaintiffs’ admission, they have “on repeated occasions”—dating back to 2020 at 

the latest—“advised 730 Texas or GreenWood (as the 730 Texas Property 

manager) that their subject portions of Cinder Hill Road required repair.”83 If the 

Defendants’ alleged failure to repair the road as requested was significantly 

impinging on the Plaintiffs’ use of their property, they presumably would have no 

difficulty presenting evidence showing how, exactly, they have been affected. 

They have failed to do so. 

Indeed, at the August 2022 hearing, Plaintiff Laudermilch acknowledged 

that he recently constructed a new building on his property—a pole barn 

79 Doc. 18 at 12. 

80 Id. 81 Id. 82 7-Eleven, 926 F. Supp. 2d at 631. 

83 Doc. 1 ¶ 32. 

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containing a small residential space (equipped with a kitchenet and a bathroom) 

and a garage.84 Laudermilch testified that for the construction of this building, 

heavy vehicles, including a cement mixer, entered his property from Cinder Hill 

Road (i.e., via the roadway covered by the ROW Agreement).85 This testimony 

raises serious questions about whether the subject portion of Cinder Hill Road is in 

as bad a condition as the Plaintiffs claim. But more to the point, it repudiates the 

Plaintiffs’ argument that injunctive relief is necessary to avoid irreparable harm: 

because the Plaintiffs have been able to complete large-scale construction projects 

on their properties (which necessarily involves heavy vehicle traffic across the 

subject portion of Cinder Hill Road), they have not proven by a preponderance of 

the evidence that the Defendants’ continued access to the right-of-way prevents the 

Plaintiffs from making productive use of their properties.86 

IV. CONCLUSION 

To obtain injunctive relief, the Plaintiffs must demonstrate both a reasonable 

probability that their claims will succeed and that they will more likely than not 

suffer irreparable harm absent court intervention. They have shown neither.87

Accordingly, the Plaintiffs’ motion for a preliminary injunction is denied. 

84 Doc. 24. 

85 Id. 86 See 7-Eleven, 926 F. Supp. 2d at 631. 

87 Separately, in the Court’s estimation, it seems that an injunction preventing the Defendants 

from accessing the right-of-way would be counterproductive for all parties involved. The 

Plaintiffs want the roadway repaired so they can continue accessing their properties without 

difficulty. The Defendants want to perform the necessary roadway maintenance so they can 

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20 

An appropriate Order follows. 

 BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

complete a prospective sale in 2023. Although the parties disagree about what maintenance is 

required, there is no dispute that some maintenance serves all their interests. A preliminary 

injunction preventing the Defendants from accessing (and, thus, performing maintenance on) 

the right-of-way would result in further degradation of the roadway without moving the parties 

closer to a reasonable resolution of this seemingly resolvable dispute. 

Case 4:22-cv-00423-MWB Document 27 Filed 08/17/22 Page 20 of 20