J-A10022- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 WILLIAMS FIELD SERVICES COMPANY, LLC, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellant

v.

CLEO R. TEEL AND GLORIA D. TEEL, HUSBAND AND WIFE

Appellees No. 1475 MDA 2013

Appeal from the Judgment Entered August 8 , 2013 In the Court of Common Pleas of Susquehanna County

Civil Division at No: 2012-1959- CP BEFORE: DONOHUE, ALLEN, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014 Appellant, Williams Field Services Company, Inc., app eals from the August 8, 2013 judgment entered in favor of Appelle es, Cleo R. and Gloria

D. Teel. We vacate and remand. This litigation arises from a Pipeline Right- of -Way and Compressor Site Grant agr eement (the “Right

- of

- Way”) providing for pipelines to be laid and a compressor station to be built on Appellee’s 586 -acre property in Susquehanna County. Appellees executed the Right of Way in 2007 with Cabot Oil & Gas Corporation (“Cabot”), Appellant’s predecessor- in -interest.J-A10022- 14

- 2 -

In addition, in 2008, Appellees and Cabot executed a Compressor Station Agreement (the “Compressor Station Agreement) providin g further details concerning the compressor station to be built. The Right

- of -Way gave Cabot the right to construct and maintain pipelines on Appellees’ proper ty. The Right- of

- Way provided that the location of any pipeline would be “subject to mutual consent [...], it being understood that such consent shall not be unreasonably withheld.” Right

- of -Way, 10/6/07. The Right of Way also provided for Appellees to receive twenty dollars “per l ineal rod for each rod of pipe laid” on Appellees’ property. Id. In 2010, Cabot assigned its rights in the Right- of -Way and Compressor Station Agreement to Appellant. In 2011, Appellant engaged Appellees in discussions about the location of a new pipeline, specifi cally a discharge line, to be constructed on Appellees’ property pursuant to the Right

- of -Way. N.T. Trial, 7/10/13, at 86-87. Appellees, however, declin ed to consent to the construction of a new pipeline in accordance with the Ri ght of Way. In response, instead of standing on rights acquired under th e Right of Way, Appellant thereafter approached Appellees with a prop osal for a new rightof

- way agreement (the “Proposed Agreement”). Id. at 88. The Proposed Agreement would, among other things, gov ern the location of a discharge line and provide Appellees mor e financial compensation than the Right- of -Way. Id. at 48-49, 52-54. Appellant believed the parties verbally agreed to a location f or the discharge line. Id.J-A10022- 14

- 3 -

at 54, 103. Nonetheless, the parties never executed th e Proposed Agreement because they could not agree on compensation. Id. Appellant offered testimony that one of its goals in pursing th e Proposed Agreement was to arrive at a mutually acceptable location for th e discharge line, regardless of whether the parties executed the proposed agreement or proceeded under the existing Right of Way. Id. at 37. When it became evident that agreement on the Proposed Agreement wou ld not be had, Appellant undertook to commence construction of the discha rge line under the terms of the executed Right of Way. Id. at 62, 68- 69; Plaintiff’s Exhibit 6. Appellant tendered compensation pursuant to the Ri ght of Way, in response to which Appellees denied any agreement as to l ocation of the discharge line and declined the compensation. Id. at 63; Plaintiff’s Exhibit 7. When Appellant’s personnel arrived on Appellees’ p roperty to begin preparations for the discharge line, Appellees ejected t hem. Id. at 68-69,

135 -37. Following its ejection from Appellees’ land, Appellant commenced this action on October 23, 2012 seeking permanent injunctive relief. The complaint upon which the Appellant proceeded to trial sought to enforce rights Appellant possessed under the executed Right of W ay and Compressor Station Agreements. The parties proceeded to a non-ju ry trial on July 10, 2013. At the conclusion of Appellant’s evidence, Appell ees moved for a compulsory nonsuit. Appellees argued that the partie s had not reachedJ-A10022- 14

- 4 -

mutual consent for location of the discharge line and th erefore, Appellant did not meet its burden of proof. Id. at 139-40. In response, Appellant argued it was entitled to relief, since Appellees could not unr easonably withhold

consent. Id. at 140. The trial court agreed it had to make a determinatio n as to whether consent was unreasonably withheld. Id. at 141. It also

stated that it felt the location selected was the best lo cation anyone could have, as it was direct, along the road, and did not bo ther anyone too much, and that the location selected was a reasonable right- of -way area. Id. at

139 -41. Nonetheless, without any further explanation, t he trial court granted Appellees’ motion for compulsory nonsuit reason ing that Appellant had not proven its case to merit the granting of a pe rmanent injunction.

Post-trial motions to remove the nonsuit were filed b y Appellant and denied by the trial court. In its 1925(a) opinion, t he trial court explained that the Appellees’ consent was required under the Righ t of Way and never was obtained by Appellant. Trial Court Opinion, 10/ 1/13, at 3. It further explained that while Appellant argues that consent as to location was obtained, that hardly satisfied the consent requirement considering Appellees had issues with monetary compensation, among o ther things, and that other witnesses stated there were outstanding provi sions presented by Appellant that had yet to be finalized. Id. at 4- 5. The latter was an obvious reference to the terms not yet agreed to under the Pr oposed Agreement.J-A10022- 14

- 5 -

Judgment in favor of Appellees was entered on August 8 , 2013, and this timely appeal followed. Appellant raises three issues on appeal: (1) the trial court erred in entering the nonsuit; (2) the tr ial court erred in considering inadmissible parol evidence; and (3) the tri al court erred in declining to hold a hearing on Appellant’s po st

- trial motion. Appellant’s Brief at 5. We will confine our analysis to the first issue, which we consider dispositive. Rule 230.1 of the Pennsylvania Rules of Civil Procedur e governs entry of nonsuit. The Rule permits entry of nonsuit on any cause of action for which the plaintiff, at the close of the plaintiff’s case, has failed to establish a right to relief. Pa.R.C.P. 230.1(a)(1). The trial court, in ruling on a motion for nonsuit, considers only the plaintiff’s evidence and any evidence favorable to the plaintiff introduced by the defend ant. Pa.R.C.P. 230.1(a)(2).

The motion for compulsory non-suit allows a defendant t o test the sufficiency of the plaintiff’s evidence and ma y be entered only in cases where it is clear that the plaintiff has n ot provided sufficient evidence to establish all the elements necessary to maintain a cause of action. In making its determinatio n, the trial court must give the plaintiff the benefit of all reas onable inferences arising from the evidence present and must re solve any conflict in favor of the plaintiff. Bugosh v. Allen Refractories Co. , 932 A.2d 901, 913 (Pa. Super. 2007) (citations omitted). We review the trial court’s deni al of a motion to remove a nonsuit for abuse of discretion or error of law. Dietzel v. Gurman , 806 A.2d 1264, 1268 (Pa. Super. 2002). We must resolve all evidentiaryJ-A10022- 14

- 6 -

conflicts in favor of the party against whom the trial court entered the

nonsuit. Shay v. Flight C Helicopter Servs. , 822 A.2d 1, 13 (Pa. Super. 2003). 1 “ A compulsory non-suit is proper only where the facts and

circumstances compel the conclusion that the defendants are not liable upon the cause of action pleaded by the plaintiff.” Mahan v. Am-Gard,

Inc. , 841 A.2d 1052, 1058 (Pa. Super. 2003) (emphasis ad ded), appeal

denied , 858 A.2d 110 (Pa. 2004). 2

1 Concerning the grant or denial of a permanent injunct ion, we must determine whether the trial court committed an error of law in finding the plaintiff established (or failed to establish) a clear r ight to relief. Buffalo Twp. v. Jones , 813 A.2d 659, 664 n.4 (Pa. 2002), cert. denied , 540 U.S. 821 (2003). Our standard of review for a question of law is de novo. Id. To justify the award of a permanent injunction, the p arty seeking relief “must establi sh that his right to relief is clear, that an injuncti on is necessary to avoid an injury that cannot be compensated by dama ges, and that greater injury will result from refusing rather than granting the relief requested.” Kuznik v. Westmoreland Cnty. Bd. of Comm’rs , 902 A.2d 476, 489 (Pa. 2006). We observe that Appellant did not file an action seeki ng specific performance of the Right of Way. Showings necessary to receive the remedy of specific performance are similar, but not identical, to those re quired for a permanent injunction. “ Specific performance is an equitable remedy that permit s the court to compel performance of a contract when there exi sts in the contract an agreement between the parties as to the nature of the performance.” Lackner v. Glosser , 892 A.2d 21, 31 (Pa. Super. 2006). “ Specific performance should only be granted where the facts clear ly establish the plaintiff’s right thereto, where no adequate remedy at law exists, and where justice requires it.” Id.

2 We believe the Dissenting Judge has not applied the co rrect standard of review. The case cited in the Dissenting Memorandum, Eckman v. Erie Ins. Exch. , 21 A.3d 1203 (Pa. Super. 2011), does not involve e ntry of nonsuit. Rather, that case is simply an appeal from t he denial of a motion for preliminary injunction. Id. at 1205. In stating her conclusion that “the trial court had ‘reasonable grounds’ for entering the nonsuit,” we believe theJ-A10022- 14

- 7 -

Instantly, the trial court entered a nonsuit against Appellant because it believed the parties never reached mutual consent as to the location of the discharge line and that other provisions had yet to be finalized. Therefore, according to the trial court, Appellant had no chance of obtaining relief. We disagree. Our review of the record confirms that Appellant had t he right, pursuant to the Right- of

- Way, to construct pipelines on Appellees’ land subject only to a) App ellees’ consent to the location, which Appellees could not unreasonably withhold, and b) payment of certain compensation as required under the Right of Way. Right- of -Way, 10/6/07. Although the parties could not agree on compensation under the Propo sed Agreement,

Dissent has conflated two standards of review. Dissenting Memorandum, at 2. The “reasonable grounds” language governs our review of entry or denial of a preliminary injunction. Eckman , 21 A.3d at 1206. In reviewing entry of a nonsuit, as set forth in Dietzel , we review the trial court’s decision for abuse of discretion or error of law. As explained infra , we conclude the latter occurred in this case. Further, the correct standard of review requires us to r esolve evidentiary conflicts and draw all reasonable inferences in favor of the losing party, per Bugosh and Shay . In reasoning that “[t]he testimony at trial did not establish that Appellant’s right to build a new dischar ge pipeline on the Teels’ property was ‘clear’ and ‘free from doubt[,]’” t he Dissenting Judge has answered a question that is simply not before us. Dissen ting Memorandum, at 5. Rather, we must discern whether Appellant produ ced sufficient evidence to obtain relief, resolving evidentiary confl icts and drawing reasonable inferences in Appellant’s favor. Indeed, t he trial court’s ruling is sustainable only if the instant facts and circumstances “comp el the conclusion” that a nonsuit was appropriate. Mahan , 841 A.2d at 1058. We believe the Dissent has placed on Appellant a far great er burden than is applicable here.J-A10022- 14

- 8 -

nothing of record suggests that the payment tendered by Appellant under the Right of Way was not in accord with the terms of t hat agreement. 3 As these were the only two conditions to be satisfied prior to Appellant being able to exercise its right to install a new pipeline un der the Right of Way, the only issue that had to be resolved by the trial court was whether consent by Appellees was unreasonably withheld under the Right of Way. As for consent, the record reflects that Appellees insisted upon satisfaction of no less than 28 conditions before they wo uld give consent to a location for the new pipeline. Plaintiff’s Trial Ex hibit 8. All but one of these conditions is not to be found in the Right of Way. Th e one to be found in the Right of Way is condition 15 relating to location, whi ch in fact comports with Appellant’s desire to locate its new pipeline in the ri ght of way parallel to Button Road. N.T. Trial, 7/10/13, at 66; Plainti ff’s Exhibit 8. As there were only two conditions to be satisfied prior to installatio n of a new pipeline, the only one in dispute being mutual consent as to location not to be unreasonably withheld, we believe the trial court err ed in granting Appellees’ motion for compulsory nonsuit on the basis that agreem ent on monetary compensation and other terms yet to be finalized had n ot occurred between the parties.

3 The record reflects that by check dated June 6, 2012, Appellant tendered payment of $8,000 to Appellees pursuant to the Right of Way. By letter dated June 14, 2012, the Appellees returned this paym ent indicating that they had not agreed to a location, but that they rem ained interested in discussing Appellant’s desire to install an additional p ipeline on their property. Plaintiff’s Trial Exhibit 7.J-A10022- 14

- 9 -

The terms not yet finalized pertained to the Proposed Agreement, which was not the basis for App ellant’s suit for permanent injunctive relief. These additional terms were irrelevant to Appellant’ s claims under the Right of Way. The only issue that had to be resolved by the trial court was whether Appellees acted unreasonably in not consenting t o the proposed location of the pipeline. The reasonableness, or lack t hereof, of Appellees’ refusal to consent is a question of law to be answered pu rsuant to the terms of the Right of Way. 4 Though the trial court ultimately did not directly answer this question, the court telegraphed its belief t he location selected was the best possible location. Appellant was entitled to the benefit of all its evid ence and all favorable inferences therefrom in defense of the Appel lees’ motion for compulsory nonsuit. Appe llant’s evidence established that the parties arrived at a mutually agreeable location for the disch arge line, and that Appellees refused to permit Appellant to install the discharge line in accordance with the Right of Way. 5 The trial court erred by not affording

4 The Dissent emphasizes Appellee’s ref usal to give consent, but she does not address the possibility, based on the plain languag e of the Right of Way, that Appellant can obtain relief by virtue of Appell ee’s unreasonable refusal to consent. Dissenting Memorandum, at 5.

5 We do not underst and the basis for Dissenting Judge’s conclusion that Appellant has an adequate remedy at law. See Dissenting Memorandum, at 6. The compressor station built pursuant to the Compresso r Station Agreement was useful only to the extent that Appellan t could run pipelines to and from it. Equitable enforcement of a contract a ffecting an interest in real estate is appropriate unless money damages are rea dily ascertainable.J-A10022- 14

- 10 -

Appellant the benefit of that evidence, and further by conflating the conditions precedent to Appellant’s right to locate its p ipeline under the Right of Way with terms not agreed upon under the Pr oposed Agreement that were irrelevant to Appellan t’s rights under the Right of Way. Clearly, at a minimum, Appellant produced sufficient evidence to pr eclude the granting of a compulsory nonsuit in favor of Appellees. The tri al court erred by not applying the law applicable to entry of a nonsuit. 6 We therefore vacate the judgment and remand for further proceedings. Judgment vacated. Case remanded. Jurisdiction relinq uished. Allen, J., filed a dissenting memorandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2014

See Petry v. Tanglwood Lakes, Inc. , 522 A.2d 1053, 1055-57 (Pa. 1987). We discern no basis upon which to ascertain an amount of money damages stemming from Appellant’s inability to use the compressor station as contemplated in the Compressor Station Agreement and t he Right of Way.

6 We address here only the basis given by the trial court for the granting of the nonsuit. The trial court’s decision only went so far as to address the contractual terms of what it thought controlled the out come in this case. It did not address the other criteria for the granting of permanent injunctive relief. Accordingly, we leave those considerations for p roceedings upon remand.