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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT J. LEIBENSPERGER, JR. AND DEBORAH LEIBENSPERGER,

Appellants

v. PPL SERVICES CORP. (AS AMENDED TO PPL ELECTRIC UTILITIES CORP.) : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1665 MDA 2017 Appeal from the Order Entered October 5, 2017 in the Court of Common Pleas of Schuylkill County, Civil Division at No(s): S

- 1321

- 2017
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 03, 2018
Robert J. Leibensperger, Jr. (“Robert”) , and Deborah Leibensperger
( collectively “the Leibenspergers”) appeal from the Order susta ining the
Preliminary Objection s filed by PPL S ervices Corp. (“PPL”) , and dismissing the
Leibenspergers’ Action for Declaratory Relief , with prejudice . We affirm.
The Leibenspergers own a parcel of land (“subject property”) in

S chuylkill County, Pennsylvania, that is subject to an express easement ow ned
by PPL, an electric company that operates electric lines on property adjacent
to the subject property

. The easement was originally granted in a December
21, 1964 deed between the Panther Valley Water Company and Pennsylvania
Power & Light Company, PPL ’s predecessor , which granted Pennsylvania
Power & Light Company,
its successors, assigns and lessees, the right to construct, operate and maintain, and from time to time (limited to the extent thatJ

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presently designated clearing widths will permit) to reco nstruct its electric lines, including such poles, towers, cables and wires above and under the surface of the ground, fixtures and apparatus as may be from time to time necessary for the convenient transaction of the business of the said [Pennsylvania Powe r & Light Company] ; its successors, assigns and lessees, upon, across, over, under and along the cleared areas as set forth and shown on the plan hereto attached and made a part hereof and located in Packer Township, Carbon County, and Rush and Rahn Townships, Schuykill Cou nty, Pennsylvania, and upon, across, over, under and along the existing roads, streets and highways belonging to [the Panther Valley Water Company] adjoining the said cleared areas, including the right of ingress and egress to and from the said lines at al l times for any of the purposes aforesaid

.... Deed, 12/21/64, at 1 (pages renumbered and emphasis added).
Robert acquired the subject property in an April 22, 1988 deed from
Blue Ridge Real Estate Company, and subsequently transferred ownership to

himself and his wife, jointly. 1 The April 22, 1988 deed states that the subject
property was “under and subject to a permanent easement agreement dated
December 21, 1964, by and between Panther Valley Water Company and
Pennsylvania Power and Light Company , for t ransmission and distribution lines
and other facilities, said Agreement having been assigned to Blue Ridge Real
Estate Company.” Deed, 4/22/ 88 , at 2 (pages renumbered).
On July 13, 2017, the Leibenspergers fi led an Action for D eclaratory

R elief , requestin g that the trial court “resolve the issue over the construction

of the [e] asement and declare their right to be free of [PPL’s] ingress and

_________________ __________ ______ ____ _______

1 The record does not contain copies of the deed transferring ownership of the subject property between Panther Valley Water Company and Blue Ridge Real Estate Company.J

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egress over the [s]ubject [p]roperty.” Action for Declaratory Relief , at 2
(pages unnumbered). T he Leibenspergers specifically alleged that PPL’s
easement is invalid, or alternatively, that PPL should be barred from using the

easement because PPL has access to its transmission facilities directly from a
public highway. PPL filed Preliminary O bjection s in the nature o f a demurrer , alleging that the easement is not ambiguous, and alternatively, that even if it
is ambiguous, the Leibenspergers still have no basis for relief

. The
Leibenspergers filed an Answer. T he trial court sustained PPL’s Preliminary

O bjection s and dismissed the Leibensperger’s Action with prejudice. The
Leibenspergers filed a timely Notice of Appeal, and a court

- ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. The Leibenspergers’ issues on appeal are as follows:
1. Whether the trial court committed an error of law in concluding that the Leibenspergers’ Action for Declaratory Relief did not state a claim on which relief could be granted?

2. Whether the trial court committed an abuse of discretion in dismissing the Leibenspergers’ Action for Declaratory Relief with prejudice?
Brief for Appellant s at 4 (some capitalization omitted).

An appeal from an order granting preliminary objections in the nature of a demurrer is subject to plenary review. In determining whether the trial court properly sustained preliminary objections, the appellate court must examine only the averments in the complaint, together with the documents and exhibits attached thereto, and the impetus of our inquiry is to determine the legal suf ficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse th e trial court’ s decision regarding preliminary objections only where there has been an error of law or abuse of discretion.J

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Finally, preliminary objections in the nature of a demurrer require the court to resolve issues solely on the basis of the pleadings, and no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented.
McNaughton Prop s . , LP v. Barr , 981 A.2d 222, 224 (Pa. Super. 2009)
(citations omitted).
The Leibenspergers allege that the language granting the easement is

vague in that it does not specify an exact location where “ingress and egress”
is permitted. See Brief for A ppellant s at 10 , 14

- 15

. The Leibenspergers argue that where an easement is vague, the easement holder’s use of the easement
is limited to “any manner that is reasonable.” See id. (citing Lease v. Doll , 403 A.2d 558 (Pa. 1979) )

. According to the Leibenspergers, all use of the

easement at issue is unreasonable , because PPL has alternate access to their

pow er lines via a route that does no t require use of the subject property. See
Brief for Appellant s at 11

- 13.

“A n easement is a r ight in the owner of one parcel of land by reason of
such ownership to use the land of another for a special p urpose not

inconsistent with a general property in the owner.” Clements v. Sannuti , 51
A.2d 697, 698 (Pa. 1947) (emphasis and citation omitted). “[A]n easement
is an abstract property interest that is legally protected.” Forest Glen Condo.
Ass’n v. Forest Green Commons Ltd. P’ship , 900 A.2d 859, 864 (Pa.
Super. 2006) (citation omitted). An express easement is created by explicit

reservation in a grant of land. See Piper v. Mowris , 351 A.2d 635, 638 ( Pa.
1976)

.J

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In interpreting an express easement , [i] t is well established that the same rules of construction that apply to contracts are applicable in the construction of easement grants.

... In asc ertaining the scope of an easement, the intention of the parties must be advanced. Such intention of the parties is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the at tending circumstances known to the parties at the time the grant was made. Where the grant of an easement is unrestricted, the grantee is given such rights as are necessary for the reasonable and proper enjoyment of the thing granted.

... Thus, our cases t ell us that when the grant of an easement is ambiguous [,] w e must determine if the grantee’ s asserted use is a reasonable and necessary use in relation to the original purpose of the grant and within the intention of the original parties to the grant.
Zettlemoyer v. Transcon. Gas Pipeline Corp. , 657 A.2d 920, 924 (Pa.
1995) (quotation marks, brackets, and citations omitted).
Further, “ t erminating an easement is not a simple matter.... [A]n
easement may terminate either through the operation of the lim itations of its
creation or by extinguishment.” Forest Glen , 900 A.2d at 864

. Alternatively,
[i] n order to establish the abandonment of a right

- of

- way, the evidence must show that the easement holder intended to give up its right to use the easement permanently. Such conduct must consist of some affirmative act on his part which renders use of the e asement impossible, or of some physical obstruction of it by him in a manner that is inconsiste nt with its further enjoyment.
Moody v. Allegheny Valley Land Tr. , 930 A.2d 505, 514 ( Pa. Super. 2007)
(citation omitted)

. Here, the Leibenspergers have not a llege d that the easement has been
extinguished, or that PPL abandoned the easement , or committed some actJ

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that would render use of the easement impossible. Instead, they simply
assert that the holding in Lease provides a basis for termination of the PPL

e asement.

In Lease , the Lease family and Doll family owned adjoining parcels of

land. Lease , 403 A.2d at 560. The sole means of access from a public road
to the Leases’ property was an easement over the Doll’s property

. Id. The

easement was expressly reserved by a prior owner of both parcels in a
transaction separating the two properties

. Id. The language of that
easement, in pertinent part, read as follows:

A right

- of

- way is granted ... leading from the southeast corner southward on the west side of t he stream of water from the said corner to the public road. That the grantees and their successors may at all times have the right to use same as an outlet from the premises hereby conveyed to the public road.
The right of way follows the stream which mar ks its eastern boundary and extends from the public road to the southern b order of the Leases’ property. The ground immediately adjacent to the stream is soft and damp and, on occasion, is impassable by a motor vehicle.

Id. (quotation marks omitted). Wh en the easement was originally granted in
1952, it was used solely for traffic by foot, primarily because the property

owner at that time did not own a motor vehicle. Id. at 561. Shortly after
purchasing the property in 1971, t he Leases sought to use th e easement to travel by vehicle to the public road

. Id. However, when they attempted to
prepare the easement for vehicular travel, the Dolls built a fence on their
property that “effectively limited the right of way to a footpath

. ” Id. TheJ

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Leases filed a C omplaint in equity against the Dolls , seeking to enjoin them from preventing access to the Leases’ property , via motor vehicle travel , pursuant to the easement

. Id. at 560. T he C ourt concluded that the language
setting forth the easement was ambiguous as to width and held that where an
express easement is ambiguous, it is to be construed (1) in favor of the
grant ee, and (2) to allow any “ reasonable use .” Id. at 563

. The C ourt found

that use of the easement for motor vehicle travel was reasonable , because
access to the public road was the contemplated purpose of the easement. Id.

at 564.
Here, t he Leibenspergers argue that Lease empowers a trial court to

declare all use of a n ambiguous express easement unreasonable. However,

the issue in Lease wa s the scope of the easement , i.e. , what use of the

easement was reasonable. Id. at 561. The Lease C ourt did not state , explicitly or implicitly, that a court may declare all use of an express easement

unreasonable. Therefore, the holding in Lease is inapplicable

. See
McNaughton Props
. , supra ; Forest Glen , supra

. Moreover, the right of “ingress and egress ” in PPL’s easement “ to and
from the [electric] lines at all times ” is clear and unambiguous. See PARC
Holdings, Inc. v. Killian , 785 A.2d 106, 115 (Pa. Super. 2001) (stating that

t he grant of a right to “ingress and egress” is a type of easement, which may
be “specifically defined as the entrance and exit of people, or people and
vehicles, or more generally defined as access to the dominant estat e.” ).J

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Indeed, the easement specifically stated that it was granted for the purposes

of “ construct [ing], operat[ing]

... maintain [ing] , and

... reconstruct [ing] [the]

electric lines .” Deed, 12/21/64, at 1 (pages renumbered ). Thus, the terms

were defined with relation to the circumstances known to the parties at the
time of the grant. See Lease , 403 A.2d at 562. As Lease is inapplicable,
and PPL’s easement is unambiguous, we cannot grant the Leibenspergers’

Relief on their first claim.

In their second issue , the Leibenspergers allege that the trial court

committed an abuse of discretion in dismissing their action with prejudice

. See Brief for Appellant s at 13. The Leibenspergers argue that if they were
granted leave to amend their action, they could establish a factual record
showing that all use of the easement by PPL would be unreasonable. See id.

at 14.
Pennsylvania Rule of Civil Procedure 1033 , wh ich governs the
amendment of pleadings , states, in relevant part , as follows :

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to
c onform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033

.

Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend. There may, of course, beJ

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cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. However, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amen ded pleading.

Hill v. Ofalt , 85 A.3d 540, 557 ( Pa. Super. 2014) (citation and emphasis
omitted).
Here, the Leibenspergers baldly seek to amend their action in order to
plead additional facts that would s upport their contention that all use of the

easement is un reasonable. I n light of the unambiguous language in the
easement, however, n o amount of additional facts would permit the recovery
requested by the Leibenspergers

. Therefore, amendment of their action will

not cure this fatal defect. See id. Accordingly, the trial court did not abus e

its discretion in d ismissing the Leibeinspergers’ A ction for Declaratory Relief
with prejudice

. Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 08/03/2018