J-A10022- 14

NON-PRE CE DENTIAL 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(s): 2012 -1959- CP

BEFORE: DONOHUE, ALLEN, and STABILE, JJ. DISSENTING MEMORANDUM BY ALLEN, J.: FILED AUGUST 25, 2014 I respectfully dissent from the Majority’s disposition va cating the trial court’s judgment entered in favor of Cleo R. and Glor ia D. Teel, husband and wife, (collectively “the Teels”), following the trial cou rt’s entry of nons uit in favor of the Teels. Instantly, the entry of the nonsuit against Appellan t effectively denied the equitable remedy Appellant sought, i.e., a perma nent injunction against the Teels. Therefore, in reviewing the trial court’s denial of injunctive re lief, an abuse of discretion standard applies, which precludes a n “inquir[y] into the merits of the controversy,” and only allows an exami nation of the record “to determine if there were any apparently reasonable grounds for theJ-A10022- 14

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actions of the court below. ” Erickman v. Erie Insurance Exchange, 21 A.3d 1203, 1206- 1207 (Pa. Super. 2011). “Only if it is plain that no grounds exist to support the decree or that the rule of law re lied upon was palpably erroneous or misapplied will we interfere with the de cision of the [trial court].” Id. My review of the record indicates that the trial court had “reasonable grounds” for entering the nonsuit, and there fore I would affirm. 1 In granting the nonsuit in favor of the Teels, the t rial court determined:

The crux of [Appellant’s] argument as it pertains to this particular issue is that the Pipeline Right- of -Way and Compressor Site Grant executed on October 6, 2007 (hereinafter "R ight- of

Way Agreement") and the Compressor Station Agreement executed on June 19, 2008 (hereinafter "Compressor Agreement") are controlling and merely require mutual consent that “shall not be unreasonably withheld.” Complaint, ¶29; see also Right- of -Way Agreement . It is [Appellant’s] contention that consent was, in fact, obtained from [the Teels]. [The Teels’] contention is simply that they never co nsented to construction of the discharge pipeline at issue in the instant matter. Answer and New Matter, ¶12. [The Teels] asse rt that they were "unilaterally sent a check for payment of the easement rights requested by [Appellant] but refused to accept the check and tried to return it."

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1 Contrary to the Majority’s assertion, a careful readin g of this dissenting memorandum reflects the recognition that a trial court’ s actions vis á vis injunctions and nonsuits are to be reviewed by our Cou rt under an abuse of discretion standard. This dissenting memorandum has nei ther ignored nor conflated this standard of review. Any assertions to t he contrary are inaccurate. After a careful scrutiny of the record, I respectfully disagree with the Majority’s disposition in this matter.J-A10022- 14

- 3 - Based on the testimony provided at trial, we are of t he opinion that [the Teels’] consent, as required by the R ight

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Way Agreement, was never obtained by [Appellant]. A t no point did [Appellant] or its witnesses provide this Court with proof that consent was obtained. Preliminarily, [Appellant] admitted that mutual conse nt was required in order to move forward with the discha rge pipeline. N.T., 07/10/13, p. 24, ¶9 -24; p. 97, ¶7-24. However, during the negotiations between the parties, [the Tee ls] were consistent in their refusal to allow construction of the d ischarge pipeline absent agreement on certain provisions, as evid enced by the following testimony provided by Ms. Cremer: Q: Did you have any knowledge whether the Teels want ed this pipeline to be built at all on their property? A: I believe they did say that they would prefer not to have any more pipelines on their property. Id ., at p. 50, ¶12-16. Q: Okay. How did that meeting end? What was the resul t of that meeting? A: Pretty much we were in agreement on the route, th at was not an issue. I said that we would go back and tak e a look at the provisions and figure out what we could do or not do and I told them that - - there was no way tha t we would be able to budge on the money and I asked them to seriously consider that during that period of time and - that was it. Id ., at p. 61, ¶1- 9. Q: I’m going to show you, Ms. Cremer, what we've mar ked as [Appellant’s] Exhibit Number 7. Do you recognize that document? A: Yes. Q: Okay. And what is that document? A: This is a - - letter from Mr. and Mrs. Teel sent to [Appellant] to the person who actually issued the check stating that they will not accept payment for the pip eline right- of -way, and that contrary to what we have said orJ-A10022- 14

- 4 - what you had said, that they have not consented to the location of the proposed pipeline, however, they still do remain interested in discussing [Appellant’s] desire to install an additional pipeline. Id ., at p. 63, ¶11-24. Q: So there was no final agreement reached at the meeting on April 4th. A: No. Id . at p. 78, ¶ 19- 11. It is clear from the aforementioned testimony, along with other testimony provided at various stages of trial, th at consent was never fully obtained. [Appellant] may argue tha t consent to location was obtained, but that hardly satisfies the c onsent requirement, considering the fact that [the Teels] had issue with monetary compensation, among other provisions. Each of [ Appellant’s] witnesses stated that an agreement as to lo cation was obtained. However, each witness also stated that the re were outstanding provisions presented by [the Teels] tha t had yet to be finalized. Assuming for a moment that an a greement as to location was, in fact, obtained, we fail to see h ow agreeing on one (1) or a few issues, but failing to agree on th e rest, constitutes consent as to the whole. Based on the foregoing, it is clear that [Appellant] failed to meet its burden of proof regarding mutual consent. Be cause no agreement was present between the parties, [Appellant] was not entitled to permanent injunction, rendering a nonsui t in favor of [the Teels] appropriate. Trial Court Opinion, 10/1/13, at 3-5. My examinati on of the record comport s with the trial court’s conclusion that Appellant did not meet its burden of showing it was entitled to a permanent injunction aga inst the Teels, such that a nonsuit was appropriate. An injunction is a court order that prohibits or comman ds virtually any type of action. It is an extraordinary remedy that sh ould be issued withJ-A10022- 14

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caution and “only where the rights and equity of the plaintiff are clear and free from doubt, and where the harm to be remedied is great and irreparable.” Bi

g Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 (Pa. Cmwlth. 2008) ( quoting 15 Standard Pennsylvania Practice 2d, § 83:2 (2005)). The requirements for per manent injunctive relief are well settled: a clear right to relief; an urgent necessity to avoid an injury that cannot be compensated in damages; and a fi nding that greater injury will result from refusing, rather than grantin g, the relief requested. Id

. Even where the essential prerequisites of an injunction are satisfied, the court must narrowly tailor its remedy to abate the inj ury. Id. at 1144

– 1145 ( citing John G. Bryant Co., Inc. v. Sling Testing & Repair, In c., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977)).

The power to grant or refuse injunctive relief “rests in the sound discretion of the court under the circumstances and t he facts of the partic ular case.” Rick v. Cramp, 357 Pa. 83, 91, 53 A.2d 84, 88 (1947) . “The court which is to exercise the discretion is the trial court and not the appellate cour t. The action of the court may be reviewed on appeal for err or in case of a c lear abuse of discretion, but not otherwise.” Id. at 91, 53 A.2d at 89. Woodward Township v. Zerbe , 6 A.3d 651, 658 (Pa. Commwlth. 2010). The testimony adduced at trial did not establish that Appellant’s right to build a new discharge pipeline on the Teels’ property was “clear” and “free from doubt.” See Trial Court Opinion, 10/1/13, At 3-5. Significantl y, Appellant’s brief concedes that the Teels did not consent to the new pipeline. Specifically, while Appellant argues that the Tee ls’ consent was unnecessary,J-A10022- 14

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Appellant’s brief states that “[u]pon approaching the T eels regarding the placement of the discharge line on their property unde r the existing agreements that [Appellant] acquired from Cabot, the Teels told [Appellant] that the y did not want any additional pipelines on their lan d...” Appellant’s Brief at 7. Appellant further acknowledged, “after se veral months of meetings, telephone calls, and correspondence between the Teels and representatives of [Appellant], a new agreement rega rding compensation and other terms for a pipeline agreement could not be reached among the parties.” Id. at 8. Furthermore, the record reviewed in toto does not evince “an urgent necessity to avoid an injury that cannot be compensated i n damages.” Big Bass Lake, 950 A.2d at 1144 (internal citation omitted). Appel lant is not without recourse at law. Appellant can initiate a civi l action for damages against the Teels for a breach of contract alleging tha t the Teels unreasonably withheld their consent to the construction of the new pipeline. Finally, I am not persuaded by my review of the recor d that Appellant has demonstrated how a “greater injury will result fro m refusing, rather than granting, the relief requested.” See Big Bass Lake, supra . Therefore, I woul d affirm the trial court’s grant of nonsuit. Wyland v. West Shore School District, 52 A.3d 572, 582-583 (Pa. Commwlth. 2012) citing Cnty. of Allegheny v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988) (emphasis in original) ( “[Our] Supr eme Court consistently holds that ‘for a preliminary injunction to issue, every one of [the] prerequisites [to theJ-A10022- 14

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granting of an injunction] must be established; if the petitioner fails to establish any one of them, there is no need to address the others. ’”).