J-A34037-14

2015 PA Super 154

PA ENERGY VISION, LLC AND BLG 

LEASING, D/B/A HENRY STREET, A 

GENERAL PARTNERSHIP

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SOUTH AVIS REALTY, INC.

Appellee No. 336 MDA 2014

Appeal from the Judgment entered March 14, 2014

In the Court of Common Pleas of Clinton County

Civil Division at No: 1364-12

PA ENERGY VISION, LLC AND BLG

LEASING, D/B/A HENRY STREET, A 

GENERAL PARTNERSHIP

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SOUTH AVIS REALTY, INC.

Appellant No. 338 MDA 2014

Appeal from the Judgment entered March 14, 2014

In the Court of Common Pleas of Clinton County

Civil Division at No: 1364-12

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

OPINION BY STABILE, J.: FILED JULY 20, 2015

These cross-appeals arise out of an action initiated on November 16, 

2012 by Appellee/Cross-Appellant PA Energy Vision, LLC and BLG Leasing, 
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d/b/a Henry Street (Henry Street), requesting declaratory and injunctive 

relief against Appellant/Cross-Appellee, South Avis Realty Inc. (South Avis), 

regarding the use and maintenance of a railroad crossing. South Avis 

contends the trial court erred in entering a final decree prohibiting South 

Avis, or any of its successors and assigns, from interfering in any way with 

Henry Street’s use of the crossing known as “Crossing 2.” Henry Street 

contends the trial court erred in requiring it to pay the restoration costs of 

Crossing 2. Because we conclude the trial court erred in finding that Henry 

Street established a right to use the railroad crossing, we reverse the 

judgment entered on the final decree. Henry Street’s cross-appeal is denied 

as moot.

In 1994, South Avis, a Pennsylvania corporation, purchased the “Penn 

Central Mill Hall Branch a/k/a the Avis industrial track,” (the Avis line) from 

Consolidated Rail Corporation (Conrail). The Avis line is a 30-foot wide 

right-of-way that passes through a 26-acre parcel now owned by Henry 

Street, a Pennsylvania general partnership. The deed between Conrail and 

South Avis remised, released and quitclaimed1all right, title and interest of 

Conrail to the described “Premises.”

____________________________________________

1 The distinguishing feature of a “quitclaim deed” is that it is a conveyance of 

a grantor’s interest in a property, rather than of the property itself. See 

Greek Catholic Congregation of Borough of Olyphant v. Plummer, 32 

A.2d 299, 300 (Pa. 1943); see also Southall v. Humbert, 685 A.2d 574, 

580 (Pa. Super. 1996).
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As of 1994, three railroad crossings existed over the Avis line tracks. 

Crossing 1 was created by express grant in 1978 and is not at issue in this 

case. Crossing 3 was a temporary crossing established in the 1990s. It 

consisted merely of gravel dumped on the track bed. It, too, is not at issue 

here. The focus of this lawsuit is Crossing 2. Crossing 2 was 38 feet wide 

and has been in existence since about 1984. The crossing was constructed 

of amesite on the east side of the rails, stone in the middle, and chip and tar 

on the west side. Henry Street’s predecessor in interest, Excel Homes, used 

Crossing 2 to move 68-foot modular homes, forklifts, and other equipment 

across the Avis line tracks. 

In 2012, South Avis hired a contractor to repair the railroad line, which 

was in a state of disrepair and unsafe for train traffic. The contractor 

removed 115 feet of rails in order to replace the rail and the ties beneath 

them. The contractor also removed Crossings 2 and 3. There was some 

discussion regarding restoration of Crossing 2. According to the contractor, 

there are three ways to build a railroad crossing. The least expensive and 

least durable is a crossing made from loose gravel and cinders. The second 

is a timber panel and asphalt crossing. The most durable is a crossing made 

of precast concrete panels. 

According to the contractor, a gravel crossing did not meet railroad 

standards. The cost of building a timber panel crossing was between $7,000 

and $8,000, but the contractor recommended a precast concrete panel 

design after learning that Crossing 2 was likely to handle heavy truck traffic. 
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Ultimately, South Avis directed the contractor not to restore Crossing 

2, because of a dispute between South Avis and Henry Street over 

restoration payment. See Trial Court Order, 12/4/12, at 1-2 (noting that 

South Avis directed its contractor not to restore Crossing 2 after Henry 

Street “impose[d] questionable limitations” on South Avis’s ability to access 

Henry Street’s property to complete the restoration). Construction exposed 

and raised the railroad tracks preventing Henry Street from using Crossing 

2.

Henry Street sued South Avis, advancing several legal theories 

supporting its right to use Crossing 2. It also filed a petition for a 

preliminary injunction. After hearing, the trial court entered an “interim 

order” directing South Avis to restore Crossing 2 and for each party to pay 

one-half of the restoration costs. After a stay was denied, the contractor 

installed a 20-foot-wide precast concrete panel crossing costing $28,940.2

Following a full hearing on the merits, on January 8, 2014, the trial 

court ruled the 1994 deed from Conrail to South Avis created a right in 

Henry Street to continue to use Crossing 2. The trial court enjoined South 

Avis from interfering with Henry Street’s use of Crossing 2, but ordered 

Henry Street to pay the full cost of restoring Crossing 2. South Avis and 

____________________________________________

2 South Avis filed an appeal from the order granting a preliminary injunction, 

docketed in this Court at No. 87 MDA 2013, but we quashed the appeal as 

moot after the contractor restored Crossing 2. 
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Henry Street filed post-trial motions. The trial court denied both motions, 

and this appeal and cross-appeal followed.3 The trial court ordered both 

parties to file concise statements of errors complained of on appeal. The 

trial court did not issue a responsive opinion, but rather relied on its prior 

orders.4

We first consider South Avis’s appeal. South Avis presents two 

questions for our review:

1. Did the trial court properly grant the extraordinary relief of a 

permanent injunction, despite Henry Street’s failure to satisfy 

the three prerequisites to a permanent injunction?

2. Did the trial court properly grant preliminary injunctive relief, 

where Henry Street failed to meet its burden of proving all 

the prerequisites for a preliminary injunction?

Appellant/Cross-Appellee’s Brief at 5. We address the questions presented 

in reverse order.

____________________________________________

3 Both parties filed appeals from the denial of their post-trial motions. The 

orders denying post-trial relief are interlocutory, as an appeal of a final order 

in a civil case lies from the entry of judgment. See Prime Medica Assocs. 

v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). 

After docketing of the parties’ appeals, we ordered the parties to praecipe 

the trial court for entry of judgment. The parties did so, thus perfecting 

these appeals. See Pa.R.A.P. 905(a). 

4 Neither party has provided this Court with copies of their concise 

statements or the trial court’s opinion. We remind the parties that the Rules 

of Appellate Procedure require these items to be attached to the appellant’s 

and cross-appellant’s briefs. Pa.R.A.P. 2111(a)(11), (b) and (d). 
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South Avis argues the trial court erred in granting a preliminary 

injunction. This issue, however, is now moot because the trial court issued a 

final, permanent injunction. The issuance of a permanent injunction 

supersedes a preliminary injunction. Den-Tal-Ez, Inc. v. Siemens Capital 

Corp., 566 A.2d 1214, 1217 n.1 (Pa. Super. 1989) (en banc). “Where a 

preliminary injunction is in force, the issuance of a permanent injunction 

terminates the preliminary injunction.” Izenson v. Izenson, 418 A.2d 445, 

446 (Pa. Super. 1980) (per curiam) (internal citation omitted). In Izenson, 

for example, we dismissed an appeal from an order granting a preliminary 

injunction, because the trial court granted final injunctive relief during the 

appeal’s pendency, and the appellants failed to appeal the order granting the 

permanent injunction. Id. Here, the trial court rendered a decision on the 

merits and issued a permanent injunction. Any issues regarding the

granting of a preliminary injunction cannot now be considered in this appeal. 

Den-Tal-Ez, supra; Izenson, supra. 

South Avis’ remaining issue challenges the propriety of the trial court 

enjoining it from interfering with Henry Street’s use of Crossing 2. In the 

trial court, Henry Street argued it had the right to use Crossing 2 (1) under 

the Railroad Act of 1849 (Railroad Act);5(2) by adverse possession; and (3) 

by laches, estoppel, and waiver. The trial court rejected those arguments, 

____________________________________________

5 Act of Feb. 19, 1849, P.L. 79, No. 76 (repealed 1978). 
J-A34037-14

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but concluded that the 1994 deed from Conrail to South Avis granted Henry 

Street an “equitable right” to use Crossing 2. On appeal, South Avis argues 

the trial court erred in granting final injunctive relief because no legal theory 

supports the relief granted. We agree with South Avis that Henry Street 

failed to prove a legal entitlement to use Crossing 2. 

The standard for granting a permanent injunction is well-settled. 

To be entitled to a permanent injunction, a party must establish 

a clear right to relief, and must have no adequate remedy at 

law, i.e., damages will not compensate for the injury. Unlike a 

preliminary injunction, a permanent injunction does not require 

proof of immediate irreparable harm.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal 

Practical Knowledge, 102 A.3d 501, 505-06 (Pa. Super. 2014) (internal 

citations omitted). “The grant or denial of a permanent injunction is a 

question of law.” Id. South Avis challenges the trial court’s legal conclusion 

that Henry Street is entitled to injunctive relief, and does not dispute any 

factual findings. Therefore, our standard of review is de novo, and our 

scope of review is plenary. See id.

We first conclude the long-repealed Railroad Act does not apply to 

Crossing 2. Section 12 of the Railroad Act granted property owners the right 

to cross over or under a railroad that severed their property.6 See Estate 

____________________________________________

6 The original language is as follows: 

Whenever, in the construction of such road or roads, it shall be 

necessary to cross or intersect any established road or way, it 

shall be the duty . . . of such company to make or cause to be 

(Footnote Continued Next Page)
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of Spickler v. Lancaster Bd. of Comm’rs, 577 A.2d 923, 924 (Pa. Super. 

1990) (quoting Sonnen v. Reading Co., 43 Pa. D. & C.2d 737, 743 (C.P. 

Lebanon 1967)). In addition, “once a property owner acquired a private 

crossing over the right-of-way under the Act[] of 1849, he cannot [sic] be 

divested of this right by the subsequent location of a public road across the 

property which would supply a less convenient alternate crossing route.” Id.

(emphasis added). The Railroad Act was one of many laws repealed by the 

(Footnote Continued) _______________________

made a good and sufficient causeway or causeways, whenever 

the same may be necessary to enable the occupant or occupants 

of said lands to cross or pass over the same, with wagons, carts 

and implements of husbandry, as occasion may require, and the 

said causeway or causeways, when so made, shall be maintained 

and kept in good repair by such company; and if the said 

company shall neglect or refuse, on request, to make such 

causeway or causeways, or when made, to keep the same in 

good order, the said company shall be liable to pay any person 

aggrieved thereby, all damages sustained by such person in 

consequence of such neglect or refusal; such damages to be 

assessed and ascertained in the same manner as provided in the 

last section for the assessment of damages: Provided, [t]hat the 

said company shall, in no case, be required to make or cause to 

be made more than one causeway through such plantation or lot 

of land, for the accommodation of any one person owning or 

possessing land through which the said railroad may pass; and 

where any public road shall cross such railroad, the person 

owning or possessing land through which the said public road 

may pass, shall not be entitled to require the company to erect 

or keep in repair any causeway or bridge for the accommodation 

of the occupant of said land.

Act of Feb. 19, 1849, P.L. 79, No. 76 § 12. Section 12 of the Railroad Act 

was formerly included in Purdon’s unofficial codification of Pennsylvania’s 

laws at 15 P.S. § 4101.
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Act of July 1, 1978, P.L. 596, No. 116 § 2, which created the Public Utility 

Code (Code). Its replacement, 66 Pa.C.S.A. § 2702, requires railroads to 

seek permission from the Public Utility Commission before removing grade 

crossings. The Code does not apply here, however, because South Avis is 

not a public utility.

The Railroad Act has continued viability, but only for rights vesting 

before the repeal date. For example, in Estate of Spickler, the railroad 

crossing at issue existed before the Railroad Act’s repeal date. Estate of 

Spickler, 577 A.2d at 925 n.1. We therefore held, in a divided decision, 

that the crossing-owner’s rights had vested. Id. at 925 & n.1; see also 1 

Pa.C.S.A. § 1976(a) (providing that “any repeal of any civil provisions of a 

statute shall not affect or impair any act done, or right existing or accrued, 

or affect any civil action pending to enforce any right under the authority of 

the statute repealed”). In contrast, here Henry Street failed to show that 

Crossing 2 existed before 1978. Crossing 2 existed, at the earliest, as of 

1984. Because the evidence shows that Crossing 2 was established after the 

Railroad Act was repealed, Henry Street and its predecessors in interest 

have no vested right to use Crossing 2 under the Railroad Act.

Nonetheless, Henry Street urges this Court to adopt the repealed 

Railroad Act as part of the common law. Appellee/Cross-Appellant’s Brief at 

16. It cites no law supporting this Court’s authority to take such a measure. 

In essence, Henry Street would have this Court contravene the General 

Assembly’s repeal of a statute. Given Henry Street’s failure to develop this 
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argument and to provide any authority for us to do so, we decline Henry 

Street’s invitation to adopt the repealed Railroad Act as part of the common 

law.

Henry Street also is not entitled to use Crossing 2 under an easement 

by prescription theory. “It is well-settled that a prescriptive easement is 

created by (1) adverse, (2) open, (3) notorious, (4) continuous and 

uninterrupted use for a period of 21 years.” See Burkett v. Smyder, 535 

A.2d 671, 673 (Pa. Super. 1988). Importantly, one cannot acquire by 

adverse possession land within a railroad right-of-way. A. D. Graham & 

Co. v. Pa. Tpk. Comm’n, 33 A.2d 22, 31 (Pa. 1943). This is so, because 

“‘[t]he right of way of a railroad company, whatever its established width, as 

soon as acquired is impressed with a public use; it constitutes a public 

highway. The railroad company holds it in trust for the people of the 

[C]ommonwealth.’” Conwell v. Phila. & Reading Ry. Co., 88 A. 417, 418 

(Pa. 1913) (quoting Del., Lackawanna & W. R.R. Co. v. Tobyhanna Co., 

77 A. 811, 813 (Pa. 1910)). The law thus creates a fiction that the 

Commonwealth owns railroad rights-of-way. Under the doctrine of nullum 

tempus occurrit regi (no time runs against the King), one cannot acquire 

property from the Commonwealth by adverse possession. See 

Williamstown Borough Author. v. Cooper, 591 A.2d 711, 715 (Pa. 

Super. 1991) (“Even privately owned property which has been dedicated to 
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public use cannot thereafter be claimed by adverse possession.”), appeal 

granted, 602 A.2d 861 (Pa. 1992).

7

 Moreover, as to railroads, “[t]he public 

use [of the right-of-way] arises as soon as it is acquired, and it continues 

at all time during the life of the franchise against which no prescription 

runs.” A. D. Graham, 33 A.2d at 31 (emphasis added).

Up until 1994, Conrail—a railroad—owned the Avis line. Therefore, 

prior to 1994, Henry Street cannot claim adverse use of Crossing 2. Land 

within a railroad right-of-way cannot be claimed by prescription. 

Furthermore, Henry Street cannot tack any time before 1994 to meet the 21 

years required for continuous and uninterrupted use to establish a 

prescriptive easement. So long as Conrail owned the Avis line, Henry Street 

and its predecessors could not claim prescriptive use of any crossing over 

the railroad. Therefore, Henry Street’s prescriptive easement claim fails.

Henry Street’s “claims” of laches, waiver, and detrimental reliance are 

likewise unavailing for the same reason its claim for a prescriptive easement 

fails. These defenses rise no higher and are deserving of no greater 

protection than its claim based upon a prescriptive easement that would not 

permit one to take property from a government entity. See Williamstown 

Borough Authority, 591 A.2d at 715 (holding that the doctrine of laches 

cannot succeed where the analogous claim of adverse possession fails); 

____________________________________________

7 As of the date of this writing, there is no reported decision by our Supreme 

Court in Williamstown Borough Authority.
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Glenn Hope Borough v. Kitko, 621 A.2d 1043, 1046 (Pa. Super. 1993) 

(holding that estoppel, like laches, cannot succeed against a government 

entity where a claim of adverse possession would fail). 

Henry Street further claims in its brief it is entitled to relief as a thirdparty beneficiary of the 1994 deed from Conrail to South Avis. We again 

disagree.

In order for a third party beneficiary to have standing to recover 

on a contract, both contracting parties must have expressed an 

intention that the third party be a beneficiary, and that intention 

must have affirmatively appeared in the contract itself. 

Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992). 

Furthermore,

to be a third party beneficiary entitled to recover on a 

contract it is not enough that it be intended by one of the 

parties to the contract and the third person that the 

latter should be a beneficiary, but both parties to the 

contract must so intend and must indicate that intention 

in the contract; in other words, a promisor cannot be held 

liable to an alleged beneficiary of a contract unless the 

latter was within his contemplation at the time the contract 

was entered into and such liability was intentionally 

assumed by him in his undertaking.

Kirschner v. K & L Gates LLP, 46 A.3d 737, 762 (Pa. Super. 2012) 

(quoting Spires v. Hanover Fire Ins. Co., 70 A.2d 828, 830-31 (Pa. 1950) 

(emphases in original), overruled in part by, Guy v. Liederbach, 459 A.2d 

744 (Pa. 1983)) (parallel citations omitted). 

The 1994 deed was a grant from Conrail to South Avis. The deed does 

not name or mention Henry Street’s predecessor in interest. In addition, the 

deed does not manifest an express intent by Conrail and South Avis to 

create third-party beneficiaries. At best, Henry Street’s predecessor is an 
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incidental beneficiary. Henry Street’s attempt to rely upon the “subject to” 

language in the deed as support for third party beneficiary status is 

unavailing. The subject to provision in the Conrail deed provides as follows:

UNDER and SUBJECT, however, to (1) whatever rights the public 

may have to the use of any roads, alleys, bridges or streets 

crossing the Premises, (2) any streams, rivers, creeks and water 

ways passing under, across or through the Premises, and (3) 

any easement or agreements of record or otherwise affecting the 

Premises, and to the state of facts which a personal inspection or 

accurate survey would disclose, and to any pipes, wires, poles, 

cables, culverts, drainage courses or systems and their 

appurtenances now existing and remaining in, on, under, over, 

across and through the Premises, together with the right to 

maintain repair, renew, replace, use and remove same. 

Deed from Conrail to South Avis, 9/29/94, at 3. Nowhere does this 

language grant Henry Street a property right in Crossing 2. The purpose of 

this clause is to note specifically any encumbrances, limitations or 

reservations that might affect the interest conveyed by Conrail. Clause (1) 

informs South Avis that it took the Avis line subject to whatever crossings 

the public may have over it. Crossing 2 is not a public crossing. It is 

located entirely within Henry Street’s property. Moreover, clause (1) does 

not create the right to establish crossings. Clause (2) is not applicable.

Clause (3) has three components, none of which vests rights in 

Crossing 2 to Henry Street. First, title is subject to easements or 

agreements of record, i.e., Crossing 1, affecting the deeded property. The 

record does not reflect that Crossing 2 either is a recorded easement or 

exists by virtue of any other publically recorded agreement. Second, clause 
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(3) subjects title “to the state of facts which a personal inspection or 

accurate survey would disclose.” This language serves to protect Conrail 

against claims that the interest it transferred is clouded by certain 

encumbrances not otherwise expressly disclosed by Conrail in the deed. 

This language places a grantee on notice that, in addition to other 

encumbrances expressly called out in the deed, the Premises also is subject 

to other claims that an accurate survey or a visible inspection of the 

property might reveal. In this case, while the use of Crossing 2 was not 

expressly noted under the Conrail deed, it was visible upon an inspection of 

the property. This in of itself, however, does not create a vested right in 

Henry Street to Crossing 2. The visual presence of Crossing 2 merely places 

the grantee (and presumably all subsequent grantees barring no changes in 

the exception language) on notice that its interest in the Premises is subject 

to other interests, if any, that exist by virtue of Crossing 2 being on the 

Premises. Hence, Henry Street can claim no vested right in Crossing 2 

merely by virtue of the physical presence of Crossing 2 upon the Premises. 

The final proviso under clause (3), which permits a grantee to maintain, 

repair, renew, replace, use and remove any pipes wires, poles, cables, 

culverts, drainage courses or systems and their appurtenances, does not 

apply to Crossing 2. 

The trial court purported to find an “equitable right” in Henry Street to 

use Crossing 2 based on the language of the 1994 deed alone. See Trial 

Court Final Decree, 1/8/14, at 3. The trial court, however, cited no authority 
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for such a nebulous standard. Indeed, the law is otherwise, in that a court 

generally cannot use equity to resolve disputes over legal title to property. 

Ohringer Home Furniture Co. v. Hollingsworth, 100 A.2d 62, 64 (Pa. 

1953). “It has long been settled that equity is not the proper form of action 

to seek a determination of legal title to real property interests unless there is 

substantial agreement between the parties as to ownership.” Trimble 

Servs., Inc. v. Franchise Realty Interstate Corp., 285 A.2d 113, 117 

(Pa. 1971). And while a court may grant equitable relief regarding property 

rights in an appropriate case, see id.; see also Williams v. Bridy, 136 

A.2d 832, 836 (Pa. 1957) (“[I]f the kernel of the controversy is the 

legal title to land, then equity cannot be invoked; but, where the 

question of the legal title is incidental and subordinate to other elements 

which call for the exercise of equitable remedies, equity will take and retain 

jurisdiction . . . .”) (internal quotation omitted) (emphasis in original), a 

court cannot determine title to property using unnamed, undefined 

“equitable rights.” In Williams, for example, a chancellor entered a 

preliminary injunction that prohibited the defendant from entering onto a 

tract of land and removing material from a culm bank. Williams, 136 A.2d 

at 834. The crux of the controversy was ownership of the land and culm 

bank. Id. at 835-36. On appeal, our Supreme Court reversed, because the 

plaintiff failed to establish legal title in the land or culm bank: 

The issuance of even a preliminary injunction under the instant 

circumstances is in derogation of the long recognized rule in our 

Commonwealth that equity will not grant injunctive relief unless 
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title is clearly established. . . . [A]bsent proof of a clear legal 

title injunctive relief cannot be granted, and the record shows 

no such proof.

Id. at 837-38 (emphases in original). The trial court here similarly erred in 

granting equitable relief without first identifying a valid source of Henry 

Street’s legal right to relief. 

In light of the foregoing whereby we have reversed the trial court’s 

judgment granting equitable relief to Henry Street, we need not address 

Henry Street’s cross-appeal that the trial court erred in imposing upon Henry 

Street the full costs of repair of Crossing 2. Because we reverse the trial 

court’s judgment, it follows also that the granting of relief imposing costs of 

restoration as a part of that judgement is a nullity. Cf. Holt v. Navarro, 

932 A.2d 915, 920 (Pa. Super. 2007) (declining to address appellant’s 

remittitur argument, because this Court reversed the judgment entered in 

appellee’s favor and remanded for entry of judgment n.o.v. in appellant’s 

favor).

Judgment reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015