McNulty et al v. Casero et al
Filing
192
MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 8/14/2020. (hmls, Deputy Clerk)
Case 1:16-cv-02426-SAG Document 192 Filed 08/14/20 Page 1 of 36
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN S. MCNULTY, et al.,
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Plaintiffs,
v.
ROBERT A. CASERO, JR., et al.,
Defendants.
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Civil Case No. SAG-16-2426
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MEMORANDUM OPINION
On May 11, 2020, with the Court’s leave, Plaintiffs John and Carolyn McNulty
(“Plaintiffs”) filed a Second Amended Complaint against Robert Casero and Catherine Mary
Hattenburg (“Defendants”). ECF 161; see ECF 160. The Second Amended Complaint seeks
declaratory and injunctive relief stemming from a property boundary dispute between Plaintiffs
and Defendants. ECF 161, ¶¶ 41-127. The discovery period has elapsed, and Plaintiffs have filed
two motions: a Motion for Summary Judgment, ECF 183; and a Motion to Partially Strike
Defendants’ Answer, ECF 184, 188. Defendants have opposed both motions, ECF 186, 189, and
Plaintiffs replied, ECF 190, 191. Defendants have requested a hearing. ECF 186. This Court
finds, however, that the factual and legal issues are adequately presented in the briefs, rendering a
hearing unnecessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, Plaintiffs’
Motion for Summary Judgment will be granted in part and denied in part, and the Motion to
Partially Strike Defendants’ Answer will be denied as moot.
I.
FACTUAL BACKGROUND
On November 7, 1991, Plaintiffs purchased a parcel of subdivided land from James
Cleveland Bates and Regina Bates in Fawn Township, York County, Pennsylvania. ECF 24-2 at
Case 1:16-cv-02426-SAG Document 192 Filed 08/14/20 Page 2 of 36
1.1 The southern boundary line of Plaintiffs’ property is measured in relation to the Mason Dixon
Line. Id. On April 26, 2010, Defendants purchased a parcel of land known as “2215 Salt Lake
Road,” in Harford County, Maryland, from Steven and Regina Segall. ECF 24-1. The northern
boundary line of Plaintiffs’ property is measured in relation to the Mason Dixon Line.
Id.
Plaintiffs’ southern property boundary is coterminous with Defendants’ northern property
boundary. E.g., ECF 186-29. Running east to west along that shared boundary line is Salt Lake
Road. Id.; see also ECF 186-31; ECF 186-24 (April, 2015 aerial photo of Plaintiffs’ and
Defendants’ property). The instant property dispute arose because Plaintiffs asserted that their
southern property line extended south of Salt Lake Road, but Defendants asserted that the parties’
shared property boundary (and, by extension, the Mason Dixon Line) laid within the bed of Salt
Lake Road. ECF 186-31; ECF 186-32.
Defendants’ predecessors-in-title, the Stegalls, maintained a home in a different location
than the home in which Defendants currently reside. ECF 186-22 (March, 2004 aerial photo,
showing the Stegalls’ home); ECF 186-24 (April, 2015 aerial photo, showing Defendants’ home
in a different location to the southwest). The Stegalls used a concrete driveway that directly
accessed Salt Lake Road. ECF 186-22; ECF 186-48 at 31:4-15 (C. McNulty Dep.). Plaintiffs and
the Stegalls discussed Plaintiffs’ view that the Stegalls’ driveway was on land encompassed by
Plaintiffs’ southern property boundary, but Mr. McNulty told Mr. Stegall that Mr. Stegall had
permission to use the driveway. ECF 183-5 at 107:18–111:1. Later, however, the house that the
Stegalls inhabited burned down. ECF 186-48 at 31:1–3.
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Upon a Motion for Summary Judgment, the Court may consider, in addition to those materials
cited, all “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
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Sometime after Defendants acquired the land, but prior to constructing their home, Dr.
Casero and Mr. McNulty discussed the location of their shared property boundary. ECF 186-27
at 35:15–36:6, 36:15–37:20. Mr. McNulty “claimed he owned property on the south side of Salt
Lake Road,” but Dr. Casero asserted that a survey he had showed that “the Maryland -Pennsylvania
border is in the road between our two properties.” Id. at 35:19-36:4. Even in the face of the survey
Dr. Casero had, Mr. McNulty “did not agree” with Dr. Casero’s assertion, and Dr. Casero likewise
disagreed with Mr. McNulty. Id. at 37:1–11. In Dr. Casero’s words, “that disagreement started
there and continues to this day.” Id. at 37:5–6.
No later than June 25, 2013, Defendants constructed a driveway on their property that
directly links their newly constructed house to Salt Lake Road. ECF 186-13 (June 25, 2013
inspection report from Harford County, Maryland Government inspector); ECF 186-24; ECF 18637 (street-level photo of Defendants’ driveway). Later, in April, 2014, and again in December,
2014, Defendants twice removed a fence that existed on lands lying south of Salt Lake Road. See,
e.g., ECF 183-5 at 124:19-125:13 (J. McNulty Dep.) (testifying that Mr. Casero came to him and
apologized for tearing down the fence in April, 2014); ECF 186-27 at 14:14-15:7, 16:15-21,
117:20-118:5 (Casero Dep.) (corroborating the April, 2014 incident; noting that the McNultys
thereafter placed a second, orange, temporary fence in its place; and admitting to tearing that
second fence down in December, 2014); ECF 186-35; ECF 186-36 (pictures of the old fence).
Then, on April 1, 2015, Defendants executed a Confirmatory Deed to themselves, indicating that
the northern border of their property “lies on and through” Salt Lake Road. ECF 18-4 at 1.
Plaintiffs filed suit against Defendants in this Court on June 28, 2016. ECF 1. Plaintiffs
asserted a host of tort claims, including trespass, continuing trespass, nuisance, continuing
nuisance, conversion, and slander of title, as well as claims to quiet title, for ejectment, and for a
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declaratory judgment. Id. ¶¶ 31-116. Plaintiffs sought compensatory damages, special damages,
punitive damages, attorneys’ fees, injunctive relief, and declaratory relief. Id.
On September 3, 2016, the parties submitted a Joint Status Report to the presiding judge,
United States District Judge J. Frederick Motz, requesting a scheduling conference and asking the
Court to “allow for an early motion for summary judgment, prior to discovery,” but indicating
Plaintiffs’ desire to file an Amended Complaint. ECF 7, ¶¶ 4-5. Judge Motz thereafter held a
scheduling conference and issued a Scheduling Order setting both a November 2, 2016 deadline
for Plaintiffs to amend their Complaint, and a November 16, 2016 deadline for Defendants to file
either a “motion to dismiss or an answer and motion for summary judgment.” ECF 9. Defendants
filed a “Motion to Dismiss Amended Complaint and/or for Summary Judgment” on November 15,
2016. ECF 14. Plaintiffs filed a Cross Motion for Summary Judgment on December 5, 2016.
ECF 17; ECF 18.
On January 5, 2017, Judge Motz issued a Memorandum Opinion (“the Opinion”) granting
Plaintiffs’ Cross-Motion for Summary Judgment, and denying Defendants’ Motion for Summary
Judgment, “on the issue of liability.” ECF 22-1 at 1. The Opinion addressed the parties’ arguments
as to the “proper placement of the Mason-Dixon line.” Id. at 1-2. After considering the case
Maryland v. West Virginia, 217 U.S. 1 (1910), Judge Motz concluded that the Caseros’ efforts to
distinguish it were not “meaningful.” Id. at 2. Judge Motz reasoned that “Maryland has recognized
the originally surveyed Mason-Dixon Line for over 250 years, and it has recognized that Salt Lake
Road falls within the jurisdiction of Pennsylvania.” Id. The Caseros moved for reconsideration
of Judge Motz’s Opinion, ECF 24, and to strike the Opinion, ECF 43. Judge Motz denied both
motions. ECF 27 (denying the Motion for Reconsideration); ECF 54 (denying the Motion to
Strike). The import of Judge Motz’s ruling, this Court has explained, is that “[t]he McNultys own
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the disputed portions of land that lie south of Salt Lake Road.” ECF 119 at 9. Mr. Thomas Farcht,
a licensed surveyor with over forty years of experience in his field, avers that, in accordance with
this ruling, Plaintiffs’ southern property boundary is
depicted with the bearing of S 89 degrees 49 minutes 01 seconds W from the
southeastern corner of the McNulty property and extends 434.72’ to the
southwestern property corner of the McNulty property, as is shown on Exhibit No.
2 being the same as the southern boundary of the McNulty property as depicted on
a plat entitled “Final Subdivision Plan James C. and Regina M. Bates, dated 27
December 1990” and being the same as the southern boundary of the McNulty
property as depicted on a plat entitled “Final Subdivision Plan for James C. Bates”
approved by the Township on 11 February 2012.
ECF 183-1, ¶ 14; see also ECF 183-2; 186-8 (the December 27, 1990 Bates Subdivision Plan).
On May 11, 2020, with this Court’s leave, Plaintiffs filed a Second Amended Complaint.
It asserts the following causes of action: (1) declaratory judgment, (2) ejectment, (3) quiet title, (4)
adverse possession (in the alternative), (5) trespass, (6) “continuing trespass (fence removal),” (7)
“continuing trespass (driveway),” (8) “continuing nuisance (fence removal),” (9) “continuing
nuisance (driveway),” and (10) slander of title. ECF 161, ¶¶ 41-127. Notably, Plaintiffs have
eliminated all claims for damages and attorneys’ fees; the only remedies sought are a declaratory
judgment settling the property dispute and an injunction that requires removal of Defendants’
driveway from Plaintiffs’ land. Id.
II.
LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The moving party bears the burden of
showing that there is no genuine dispute of material facts. See Casey v. Geek Squad, 823 F. Supp.
2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th
Cir. 1987)). If the moving party establishes that there is no evidence to support the non-moving
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party’s case, the burden then shifts to the non-moving party to proffer specific facts to show a
genuine issue exists for trial. Id. The non-moving party must provide enough admissible evidence
to “carry the burden of proof in [its] claim at trial.” Id. at 349 (quoting Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a scintilla of evidence in
support of the non-moving party’s position will be insufficient; there must be evidence on which
the jury could reasonably find in its favor. Id. at 348 (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986)).
Moreover, a genuine issue of material fact cannot rest on “mere
speculation, or building one inference upon another.” Id. at 349 (quoting Miskin v. Baxter
Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)).
Additionally, summary judgment shall be warranted if the non-moving party fails to
provide evidence that establishes an essential element of the case. Id. at 352. The non-moving
party “must produce competent evidence on each element of [its] claim.” Id. at 348-49 (quoting
Miskin, 107 F. Supp. 2d at 671). If the non-moving party fails to do so, “there can be no genuine
issue as to any material fact,” because the failure to prove an essential element of the case
“necessarily renders all other facts immaterial.” Id. at 352 (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Coleman v. United States, 369 F. App’x 459, 461 (4th Cir. 2010)
(unpublished)). In ruling on a motion for summary judgment, a court must view all the facts,
including reasonable inferences to be drawn from them, “in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
III.
ANALYSIS
The claims for relief asserted in Plaintiffs’ Second Amended Complaint, and addressed in
their Motion, are best analyzed in the context of the type of relief sought. Plaintiffs ultimately
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seek two forms of relief: (1) a declaratory judgment; and (2) two permanent injunctions. The
propriety of each form of relief, and the merits of the related claims for relief, are all considered
in turn.
A.
Declaratory Judgment, Ejectment, and Quiet Title Claims
First, Plaintiffs seek the entry of a declaratory judgment that, once and for all, settles the
boundary dispute between themselves and Defendants. ECF 161, ¶¶ 41-51. Plaintiffs also bring
a quiet title action, seeking a declaration “(i) that Plaintiffs own fee simple title to the disputed
portion of the McNulty Property south of Salt Lake Road, and (ii) that Defendants have no legal
or equitable interest in the disputed portion of the McNulty Property south of Salt Lake Road.” Id.
¶¶ 55-58. Relatedly, Plaintiffs bring an ejectment action to “recover possession of land” south of
Salt Lake Road “which is subject to an[] encroachment.” ECF 183 at 6.
Where an “actual controversy within its jurisdiction” exists, the federal Declaratory
Judgment Act provides that “any court of the United States . . . may declare the rights and other
legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (2018); see
also, e.g., Hogs & Heroes Found., Inc. v. Heroes, Inc., 202 F. Supp. 3d 490, 494 (D. Md. 2016).
Federal courts sitting in diversity may therefore enter declaratory judgments pursuant to § 2201 if
three conditions are met: (1) the complaint alleges an “actual controversy” between the parties “of
sufficient immediacy and reality to warrant issuance of a declaratory judgment”; (2) the court has
subject matter jurisdiction over the parties, independent of the request for declaratory relief ; and
(3) the court does not abuse its discretion in exercising jurisdiction. Volvo Constr. Equip. N. Am.,
Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir. 2004) (citations omitted). The Declaratory
Judgment Act does not require courts to issue declaratory relief; “[r]ather, a district court’s
decision to entertain a claim for declaratory relief is discretionary.” Aetna Cas. & Sur. Co. v. Ind-
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Com Elec. Co., 139 F.3d 419, 421 (4th Cir. 1998) (per curiam); see also Wilton v. Seven Falls Co.,
515 U.S. 277, 287 (1995).
At the same time, however, the Fourth Circuit has held that a district court must have “good
reason” to decline to entertain a declaratory judgment action.” Continental Cas. Co. v. Fuscardo,
35 F.3d 963, 965 (4th Cir. 1994) (quoting Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321, 324 (4th
Cir. 1937)). This is because the Declaratory Judgment Act must “be liberally exercised to
effectuate the purposes of the statute.” Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371,
375 (4th Cir. 1994). Thus, a court typically should “entertain a declaratory judgment action within
its jurisdiction when it finds that the declaratory relief sought (i) will serve a useful purpose in
clarifying and settling the legal relations in issue, and (ii) will terminate and afford relief from the
uncertainty, insecurity, and controversy giving rise to the proceeding.” Id. (quoting Quarles, 92
F.2d at 325). A declaratory judgement action is appropriate here to clarify who owns the disputed
tract of land on the parties’ property boundary. Disagreement over this legal question is at the
heart of all the subsequent disputes between the parties. A resolution will inform the parties of
their rights and obligations, and will avert future controversies.
Relatedly, Plaintiffs seek to eject Defendants from the disputed property and to quiet title
as to the property’s true ownership. The merits of actions for ejectment and quiet title are governed
by state law. See, e.g., Club Comache, Inc. v. Gov’t of Virgin Islands, 278 F.3d 250, 259 (3d Cir.
2002); Lomp v. U.S. Mortg. Fin. Corp., No. WMN-13-1099, 2013 WL 6528909, at *3 (D. Md.
Dec. 11, 2013). Pennsylvania Rule of Civil Procedure 1051 governs ejectment actions, and Rule
1061 governs quiet title actions. Pennsylvania courts maintain a rigid distinction between actions
to quiet title and actions for ejectment. See Siskos v. Britz, 567 Pa. 689, 699-702 (2002). As
relevant here, the Pennsylvania Supreme Court has held that “[w]hen an Action in Ejectment is
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maintained in conjunction with an Action to Quiet Title, the proper course of action is for the trial
court to proceed solely on the Action in Ejectment.” Id. Since an ejectment action is proper here
under Pennsylvania law – given that it is undisputed that Defendants are currently possessing at
least a portion of the one-tenth of an acre, by virtue of their infringing driveway – this Court will
consider the propriety of Plaintiffs’ requested relief under Pennsylvania Rule of Civil Procedure
1051.2 See, e.g., Brennan v. Shore Bros., Inc., 380 Pa. 283, 285 (1955) (“Ejectment is a possessory
action only, and can succeed only if the plaintiff is out of possession, and if he has a present right
to immediate possession.”).
Here, Plaintiffs’ right to relief under their declaratory relief and ejectment claims stems
from Judge Motz’s January 5, 2017 ruling on the parties’ first round of cross-motions for summary
judgment, finding that Plaintiffs’ prevailed “on the issue of liability.” ECF 22-1 at 1. As this
Court has repeatedly explained, this ruling meant that “[t]he McNultys own the disputed portions
of land that lie south of Salt Lake Road.” ECF 170 at 2 (emphasis omitted) (quoting ECF 119 at
8-9). Plaintiffs have provided uncontroverted testimony that, based on that decision, Plaintiffs’
southern boundary begins at the southeastern property corner, as depicted on a plat entitled “Final
Subdivision Plan James C. and Regina M. Bates, dated 27 December 1990,” runs west at a bearing
of south 89 degrees 49 minutes and 01 seconds for 434.72 feet to the southwestern property corner
of said property depicted on said plat. ECF 183-1, ¶ 14; ECF 183-3. Because the undisputed
evidence shows that Defendants are in possession of, and wrongfully claim title to, those same
lands, summary judgment on the declaratory relief and ejectment claims in Plaintiffs’ favor is
appropriate.
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Given this, the Court’s Order will reflect the dismissal of Plaintiffs’ quiet title claim as moot.
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Defendants’ fifty-page opposition is almost entirely dedicated to relitigating the merits of
Judge Motz’s decision. Since this case was transferred to this docket in September, 2019, this
Court has continued to adhere to Judge Motz’s decision as governing the proceedings in this case,
as shown most recently in this Court’s Letter Order denying Defendants’ Motion for Clarification
of Judge Motz’s Ruling, see ECF 170. This continued adherence is not for arbitrary or nefarious
reasons, but instead stems from this Court’s respect for the longstanding “law of the case” doctrine.
Under that doctrine, “when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” TFWS, Inc. v. Franchot, 572 F.3d
186, 191 (4th Cir. 2009) (quoting United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)).
“The doctrine was developed to provide judicial efficiency and consistency; without it a court
would be asked to continuously reconsider legal conclusions it had already made at every step of
the litigation.” In re Schweiger, 587 B.R. 469, 474 (Bankr. D. Md. 2018); see also, e.g.,
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (observing that the doctrine
“promotes the finality and efficiency of the judicial process by ‘protecting against the agitation of
settled issues’”). The Court is certainly sympathetic to the fact that Defendants disagree with
Judge Motz’s ruling. But their recursive attempts to obtain reconsideration of that ruling only
serve to undercut the efficacy of this doctrine. When this litigation came to this Court, there were
a total of ten motions (between two separately filed cases) for adjudication, almost all of which
stemmed, in some fashion, from Defendants’ continued objections to Judge Motz’s ruling.
Nonetheless, this Court’s focus remains on adjudicating the few issues left between the parties,
and in that vein, the Court proceeds to Plaintiffs’ remaining claims for injunctive relief.
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B.
Claims for Injunctive Relief
Plaintiffs’ Motion addresses two additional categories of tort claims contained in the
Second Amended Complaint: those related to Defendants’ actions in tearing down a fence on
Plaintiffs’ land, ECF 183-10 at 7, 9-10, and those related to the presence of Defendants’ driveway
on Plaintiffs’ land, id. at 8-9. As explained below, Plaintiffs are entitled to an injunction requiring
the Defendants to remove their driveway from Plaintiffs’ land , but are not entitled to a “restraining
injunction.” See id. at 10.
1.
Choice of Law
In their briefs, both parties cite to both Maryland and Pennsylvania law to argue the merits
of Plaintiffs’ claims. With respect to tort claims, Maryland courts typically follow the lex doci
delicti rule. Erie Ins. Exchange v. Heffernan, 399 Md. 598, 620 (2007). This rule requires courts
to apply the tort law of “the state where the wrong occurs.” Hauch v. Connor, 295 Md. 120, 123
(1983). Thus, “where the events giving rise to a tort action occur in more than one State,”
Maryland courts must “apply the law of the State where the injury – the last event required to
constitute the tort – occurred.” Lab. Corp. of Am. v. Hood, 395 Md. 608, 615 (2006). Here, since
the Court has determined that the disputed lands belong to Plaintiffs, and lie in Pennsylvania,
Pennsylvania substantive law governs.
The parties disagree as to which law governs the Court’s issuance of a permanent
injunction. Plaintiffs assert that they are entitled to a permanent injunction under Maryland,
Pennsylvania, or federal law, without specifically advocating for the application of any one of the
three. ECF 183-10 at 11-16.
Defendants counter that the standard elucidated in eBay v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006), governs. ECF 186 at 39-40. The Fourth Circuit
has explained, however, that in a diversity action, federal courts should apply substantive state law
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principles governing the issuance of permanent injunctive relief. See Lord & Taylor, LLC v. White
Flint, L.P., 780 F.3d 211, 215 (4th Cir. 2015) (citing Capital Tool & Mfg. Co., Inc. v.
Maschinenfabrik Herkules, 837 F.2d 171, 172 (4th Cir. 1988); 11A Charles A. Wright & Arthur
R. Miller, Federal Practice & Procedure § 2943 (3d ed. 2014)); see also Redner’s Mkts., Inc. v.
Joppatowne G.P. Ltd. P’ship, No. RDB-11-1864, 2013 WL 2903285, at *3-4 (D. Md. June 13,
2013) (concluding that post-eBay precedent did not compel the application of the eBay framework
to requests for permanent injunctive relief in diversity cases), aff’d, 594 F. App’x 798, 802 (4th
Cir. 2014) (per curiam) (“[W]e . . . affirm on the reasoning of the district court as stated in its June
13, 2013 memorandum opinion . . . .”). Accordingly, this Court will apply Pennsylvania law to
Plaintiffs’ permanent injunction request.
2.
Permanent Injunction Standards
To obtain a permanent injunction under Pennsylvania law, a plaintiff “must establish that
his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be
compensated by damages, and that greater injury will result from refusing rather than granting the
relief requested.” Kuznik v. Westmoreland Cty. Bd. of Comm’rs, 588 Pa. 95, 117 (2006) (quoting
Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Commw. Ct. 2003)). Unlike a preliminary
injunction, however, the plaintiff “need not establish either irreparable harm or immediate relief[,]
and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for
which there is no adequate redress at law.” Youst v. Keck’s Food Serv., Inc., 94 A.3d 1057, 1078
(Pa. Super. Ct. 2014) (quoting J.C. Ehrlich Co. v. Martin, 979 A.2d 862, 864 (Pa. Super. Ct.
2009)).
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3.
Claims Related to Defendants’ Fence Removal
Counts VI, IX, and XI assert, respectively, that Defendants committed a trespass,
continuing trespass, and a continuing nuisance by twice removing a fence that was situated on
Plaintiffs’ land. ECF 161, ¶¶ 69-74; id. ¶¶ 75-82; id. ¶¶ 104-12. One of the few points that the
parties have agreed upon in this matter is the fact that the Defendants did twice remove a fence
that, based upon Judge Motz’s ruling regarding the parties’ respective property boundaries, existed
on the McNultys’ land. See, e.g., ECF 183-5 at 124:19–125:13 (J. McNulty Dep.) (testifying that
Mr. Casero came to him and apologized for tearing down the fence in April, 2014); ECF 186-27
at 14:14–15:7, 16:15–21, 117:20–118:5 (Casero Dep.) (corroborating the April, 2014 incident;
noting that the McNultys thereafter placed a second, orange, temporary fence in its place; and
admitting to tearing that second fence down in December, 2014); ECF 186-35 to -36 (pictures of
the old fence).
However, even if the agreed facts do show that Defendants trespassed on Plaintiffs’ land,
injunctive relief is not appropriate. See Kramer v. Slattery, 260 Pa. 234, 238 (1918) (“Equity will
not restrain by injunction the commission of a mere, ordinary, or naked trespass . . . .”) Whether
these actions further constitute a continuing trespass or continuing nuisance, summary judgment
is inappropriate because Plaintiffs have failed to produce sufficient evidence showing their
entitlement to the injunctive relief sought. Plaintiffs ask the Court to enter an injunction that
restrains Defendants from “entering upon the property of the Plaintiffs, or interfering with the
Plaintiffs’ use and enjoyment of their Property.” ECF 183-11, ¶ 4. Plaintiffs argue that “[g]iven
the history of disputes between the parties, ranging from construction of the driveway to tearing
down fences,” an injunction is necessary “to prevent future disputes.” ECF 183-10 at 1213. This
Court disagrees.
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Plaintiffs correctly assert that permanent injunctions shall issue “if such relief is necessary
to prevent a legal wrong for which there is no adequate redress at law.” Youst, 94 A.3d at 1078;
ECF 183-10 at 11. However, here, it is not clear that Plaintiffs are facing any future invasion of
or interference with their property. Plaintiffs have not presented any evidence that Defendants
intend to violate the property boundary adjudicated by this Court in the future. Defendants tore
down the previous fences based on their belief that the fence was on their property. See ECF 18627 at 14:14–15:7 (Casero Dep.) (explaining that he believed the fence was on his land, and noting,
“I told Mr. McNulty that if I was in the wrong, I would be more than happy to replace the fence”).
Additionally, the Court has significant concerns that an injunction, worded as broadly as Plaintiffs
propose, would run afoul of Federal Rule of Civil Procedure 65(d)(1)(C), which requires
injunctions to “describe in reasonable detail . . . the act or acts restrained or required.” See also
Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013).
In sum, Plaintiffs have failed to demonstrate their entitlement to an injunction enjoining
Defendants from entering Plaintiff’s property as a result of the alleged trespass and nuisance claims
vis-à-vis the fence removal. Therefore, summary judgment is inappropriate, and judgment will be
entered in Defendants’ favor.3
4.
Trespass Claim Involving Defendants’ Driveway
Count X alleges that the presence of Defendants’ driveway on Plaintiffs’ land constitutes
a continuing trespass. ECF 161, ¶¶ 82-85, 101-03. As explained below, Plaintiffs succeed on the
Of course, entering judgment in Defendants’ favor results only as a procedural consequence.
Nothing in the Court’s ruling should be taken as condoning Defendants’ actions, especially in light
of the Court’s reaffirmation of the location of parties’ respective property boundaries, and how
that relates to the location of the two prior fences.
3
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merits of this claim and are entitled to a permanent injunction requiring Defendants to remove the
trespassing portion of their driveway.
i.
There Is No Genuine Dispute of Material Fact Regarding the
Continuing Trespass of Defendants’ Driveway
Under Pennsylvania law, a plaintiff need only demonstrate that the defendant intended to
commit “physical entry upon the surface of the [plaintiff’s] land” to establish liability for trespass.
Jones v. Wagner, 425 Pa. Super. 102, 109 (1993) (quoting W. Page Keeton, Prosser & Keeton on
Torts (5th ed. 1984)). The defendant must simply intend to be on the land in question; there is no
requirement that he specifically intend to be on another’s land. Kopka v. Bell Tel. Co. of Am., 371
Pa. 444, 450 (1952) (quoting Restatement (First) of Torts § 163 (Am. Law. Inst. 1934)). Finally,
the plaintiff need not allege any harm to his land, for the harm “is not to the physical wellbeing of
the land, but to the landowner’s right to peaceably enjoy full, exclusive use of his property.” Jones,
425 Pa. Super. at 102.
Pennsylvania courts adopt the First Restatement’s approach to the continuing trespass
doctrine. See, e.g., Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 328 (1964); Allegheny
County v. Merrit Constr. Co., 309 Pa. Super. 1, 4 (1982). A continuing trespass exists where a
defendant fails to “remove from land in the possession of another a structure, chattel or other thing
which he has tortiously erected or placed on the land.” Merrit Constr., 309 Pa. Super. at 4 (quoting
Restatement (First) of Torts § 161 cmt. b)). The Pennsylvania Supreme Court cautions courts to
distinguish a continuing trespass from a trespass causing permanent change to the plaintiff’s land:
“The latter, while resulting in a continuing harm, does not subject the trespasser to liability for a
continuing trespass.” Sustrik, 431 Pa. at 328 (citing Restatement (First) of Torts § 162 cmt. d).
Here, the undisputed evidence shows that fifty-nine square feet of Defendants’ driveway
encroach on Plaintiffs’ land. Plaintiffs have provided an affidavit from Mr. Thomas Farcht, a
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licensed, registered surveyor with over forty years of experience in the field of surveying. ECF
183-1, ¶ 6. Mr. Farcht avers that, after having inspected Defendants’ driveway and the location of
Plaintiff’s southern property boundary, he determined that Defendants’ driveway extends onto
Plaintiff’s land “by 3 feet at the Western edge of the driveway’s macadam paving and 2 1/2 feet at
the Eastern edge of the driveway’s macadam paving,” resulting in a total encroachment of
“approximately 59 square feet.” Id. ¶ 17. While the evidence Defendants have provided may tend
to demonstrate that this encroachment was made on the good -faith advice of counsel, see generally
ECF 186-25 (Affidavit of Michael Birch, Esq.), all that is relevant here is that Defendants intended
to place their driveway on that portion of land, see Kopka, 371 Pa. at 450. Indeed, the evidence
Defendants have provided confirms that the location of the driveway, in relation to the location of
Plaintiffs’ southern property boundary, is not in dispute. See, e.g., ECF 186-15 (work order from
the Harford County Government, ordering Defendants to pave the driveway at issue); ECF 18637 (picture of the driveway, with Plaintiffs’ southern boundary marked in pink); ECF 186-47, ¶ 8
(Casero Aff.) (verifying that ECF 186-37 accurately depicts Defendants’ driveway).
The undisputed evidence also demonstrates that Defendants’ driveway trespasses in a
continuing manner. As the Superior Court of Pennsylvania has explained, a defendant’s failure
“to remove from the land in the possession of another a structure, chattel, or other thing which he
has tortiously erected or placed on the land constitutes a continuing trespass for the entire time
during which the thing is wrongfully on the land.” Jones, 425 Pa. Super. at 111 (quoting
Restatement (Second) of Torts § 161 cmt. b). Here, Defendants readily admit that they built the
infringing driveway on or before June 25, 2013. ECF 186-47, ¶ 3; see also ECF 186-12 (Harford
County Government inspection certificate of Defendants’ construction of the driveway at issue).
Moreover, Mr. Farcht has averred that the driveway has not permanently damaged Plaintiffs’ land.
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ECF 183-1, ¶ 18. Instead, Mr. Farcht states that the driveway is “easily removable,” and that
removal can be accomplished in about one day’s work, at a cost of $2770. Id. Defendants have
provided no evidence to the contrary. Because Defendants’ driveway has continuously trespassed
on Plaintiffs’ land since June, 2013, and the land is not permanently damaged as a result, this Court
finds, as a matter of law, that Defendants’ driveway constitutes a continuing trespass.
ii.
Defendants Do Not Have a Prescriptive Easement
Following the Second Restatement closely, the Jones v. Wagner court noted that one cannot
be liable for continuing trespass if he has gained an easement by prescription over the land at issue.
425 Pa. Super at 111 n.3 (discussing Restatement (Second) of Torts § 161 cmt. d). Indeed, in their
Answer, Defendants have asserted that they are entitled to a prescriptive easement, see ECF 162,
Affirm. Defense No. 18, an assertion which Plaintiffs now seek to strike, see ECF 188 at 3.
“A prescriptive easement is a right to use another’s property which is not inconsistent with
the owner's rights and which is acquired by a use that is open, notorious, and uninterrupted for a
period of 21 years.” McNaughton Props., LP v. Barr, 981 A.2d 222, 225 n.2 (Pa. Super. Ct. 2009)
(citing Waltimyer v. Smith, 383 Pa. Super. 291, 296 (1989)). Notably, the party’s use of the
claimed easement must be adverse for the entire twenty-one years. See Waltimyer, 383 Pa. Super.
at 295 (“A use based upon permission cannot ripen into a prescriptive right unless the owner of
the land is given clear notice that the character of the use has changed from a permissive use to an
adverse use, and the adverse use then continues for the full prescriptive period.”). If adverse use
is demonstrated for the entire twenty-one year period, then the prescriptive easement that results
goes only so far as “[t]he scope of the use during prescriptive period . . . except with respect to a
reasonable evolution of the use which is not unduly burdensome” on the landowner against whom
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the prescriptive easement is imposed. Id. at 294 (citing Hash v. Sofinowski, 337 Pa. Super. 451,
444-45 (1985)).
Here, Defendants fail to create a genuine issue of material fact as to their entitlement to a
prescriptive easement. Defendants have only owned their land since April, 2010. ECF 186-11.
Thus, to satisfy the twenty-one-year period required to obtain a prescriptive easement, Defendants
must rely on a period of adverse use by their predecessors-in-title, the Stegalls.
At his deposition, Mr. McNulty testified that the Stegalls used a concrete driveway that
also infringed on the McNultys’ land, but Mr. McNulty assented to the Stegalls’ use of that
driveway, notwithstanding the infringement, from the time the Stegalls first moved in:
MR. COLLINS:
Tell me the facts of this alleged easement that you granted
[to the Stegalls].
MS. MILLER:
Objection. Calls for a legal conclusion.
MR. MCNULTY:
I would just call it an agreement. And it was based on a
verbal conversation that we had at the edge of the road. I
mean, right after he moved in. As a matter of fact, it seems
to me I was driving that big tractor we discussed up the hill
maintaining the edge of the road.
MR. COLLINS:
And what happened?
MR. MCNULTY:
He just – that’s a good question. As far as I recollect – this
is just going – because this was – when did Steve [Stegall]
purchase that property? After Edith died. The driveway was
there, but she never used it because she couldn’t drive.
So let’s see. After she passed away, Steve bought the
property. We had the discussion. And he was – well, he was
actually admiring my tractor just because it’s a large tractor.
And he made several comments about maintaining the edge
of the road there. And [he] asked me about where he was
parking.
MR. COLLINS:
And you said?
MR. MCNULTY:
And I said that it was perfectly fine with me.
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MR. COLLINS:
For him to what?
MR. MCNULTY:
Park on that spot.
MR. COLLINS:
Where was that spot?
MR. MCNULTY:
Right at the edge of the road right where he was parked.
MR. COLLINS:
Okay.
MR. MCNULTY:
And it was basically just a pile of gravel that allowed him to
walk to the house. I mean, it was only feet off the road. 15
feet maybe. 20.
MR. COLLINS:
Okay. And did you discuss where the property line was?
MR. MCNULTY:
He acknowledged that the road was – I don’t want to say he
said the road was in Pennsylvania. But he liked that I would
trim along the edge of the road. Put it that way. . . .
MR. COLLINS:
Okay. Did you ever tell him that he could not have access
to Salt Lake Road?
MR. MCNULTY:
I did not.
MR. COLLINS:
Why not?
MR. MCNULTY:
Why would I?
MR. COLLINS:
Cause [sic] he would be trespassing on your property if he
did, right?
MR. MCNULTY:
He didn’t claim to own any of it.
MR. COLLINS:
Okay. But he would be trespassing on your property to
gain access to Salt Lake Road according to you, right?
MR. MCNULTY:
That’s true, he would have.
MR. COLLINS:
Did you tell him that?
MR. MCNULTY:
I didn’t tell him he was trespassing. I told him it was
okay that he could use that space. I didn’t – I don’t want
to say I didn’t care. He didn’t try to take the property away
from me.
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ECF 183-5 at 107:18–111:1 (emphasis added).
Defendants have proffered no facts to rebut Mr. McNulty’s testimony. This undisputed
testimony, even when read in a light most favorable to Defendants, leads to the inescapable
conclusion that Defendants have no prescriptive easement where their driveway currently lies. As
an initial matter, as previously noted, the driveway or parking area the Stegalls used was in a
different location than the one currently used by Defendants. Compare ECF 186-23 (aerial
photograph of Defendants’ property in April, 2008, showing the location of the old driveway),
with ECF 186-24 (aerial photograph of Defendants’ property in 2015, showing (a) the location of
the new, infringing driveway, and (b) grass overgrowing the area where the driveway used to be).
Even (tenuously) assuming arguendo that Defendants’ construction of the new, infringing
driveway is a reasonable evolution of the Stegalls’ prior use, the Stegalls’ use of the driveway was
not adverse to Plaintiffs because Plaintiffs expressly assented to it.
In Waltimyer v. Smith, the Superior Court of Pennsylvania explained that where a
landowner grants another permission to use his land for a specific purpose, a personal, revocable
license is created. 383 Pa. Super. at 296. As to that licensee, the court explained, his use of the
true owner’s land remains permissive, unless and until he gives the true owner notice that he is
adversely using the land. Id. Successors-in-interest to the licensee, however, do not inherit the
permissive nature of their predecessor’s use. Id. As the court explained, “the license created by
the original grant of permission terminates by operation of law upon alienation,” thereby allowing
the successor-in-interest to immediately begin an adverse period of use of the true owner’s land.
Id. The court noted, however, that the successor-in-interest could not tack on his predecessor’s
period of permissive use to his period of adverse use, “unless, and only to the extent that, the prior
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permissive use had been transformed into an adverse use by appropriate notice to the owner of the
land.” Id. at 296 n.1.
As noted, the undisputed facts show that the Stegalls had Plaintiffs’ permission to use the
then-existing driveway. Defendants proffer no evidence to create a genuine issue of material fact
that, at some point in time, the Stegalls’ use of the driveway became adverse. Without any
evidence of an adverse use by the Stegalls, all the Defendants have is their own seven-year period
of adverse use (or three-year period, when measured from the time the driveway was built to the
time Plaintiffs initiated this suit). See ECF 186-12. This falls well short of the required twentyone-year period required under Pennsylvania law. Accordingly, as a matter of law, Defendants
fail to establish their entitlement to a prescriptive easement. See Waltimyer, 383 Pa Super. at 29496.
iii.
Defendants Are Not Entitled to an Easement by Necessity
Defendants also appear to argue in their Opposition to Plaintiffs’ Motion to Strike that, as
asserted in the Answer to the Second Amended Complaint, they are entitled to an easement by
necessity, ECF 189 at 6-8, and therefore are not trespassing. This argument, however, does not
appear in Defendants’ opposition to Plaintiffs’ Motion for Summary Judgment. See generally ECF
186. It may be that Defendants’ failure to raise the argument in opposition to the Motion for
Summary Judgment means that the issue is not properly before the Court. See Ross, 759 F.2d at
364 (“[W]hen a motion for summary judgment is made and supported as provided in Rule 6, the
nonmoving party must produce ‘specific facts showing that there is a genuine issue for trial,’ rather
than resting upon the bald assertions of his pleadings.” (quoting Fed. R. Civ. P. 56(e))).
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Even assuming an easement by necessity contention is properly before the Court,
Defendants’ case for one is fatally flawed. Pennsylvania courts have set forth three “fundamental
requirements” for an easement by necessity:
(1) The titles to the alleged dominant and servient properties must have been held
by one person.
(2) This unity of title must have been severed by a conveyance of one of the tracts.
(3) The easement must be necessary in order for the owner of the dominant
tenement to use his land, with the necessity existing both at the time of the
severance of title and at the time of the exercise of the easement.
Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. Ct. 2000). Defendants’ claim fails at the first
step of the inquiry. The chains of title for both Plaintiffs’ and Defendants’ properties, submitted
by the Defendants, fail to demonstrate that Plaintiffs’ and Defendants’ parcels were ever
commonly owned by a single grantor. See ECF 186-2 to -11. Defendants’ attempt to obtain an
easement by necessity by operation of Judge Motz’s ruling, see ECF 189 at 6-8, is meritless.
Without prior common ownership, Defendants are not entitled to an easement by necessity, as a
matter of law. Phillippi, 748 A.2d at 760; see also Bodman v. Bodman, 456 Pa. 4412, 414 (1974)
(“An easement by necessity may be created when after severance from adjoining property, a piece
of land is without access to a public highway.” (emphasis added)).
Thus, Defendants have placed their driveway on Plaintiffs’ property and do not have an
easement to do so. Therefore, there is no material issue of fact concerning the continuing trespass
of Defendants’ driveway, and Plaintiffs are entitled to judgment as a matter of law.
iv.
Pennsylvania Law Entitles Plaintiffs to Pursue Equitable Relief
to Abate a Continuing Trespass
Defendants conclusorily assert, in their Opposition, that Plaintiffs are not suffering any
“irreparable injury,” and that they have failed to show that their legal remedies are inadequate.
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ECF 186 at 40. Both contentions fail. First, as noted above, Pennsylvania law does not require a
plaintiff to prove irreparable harm when seeking a permanent injunction. Youst, 94 A.3d at 1078.
In fact, “[i]t is not suggested anywhere that a showing of harm is a prerequisite to recovering in
trespass.” Jones, 425 Pa. Super. at 111.
In any event, “[i]t is hornbook law that a Court of Equity possesses jurisdiction to enjoin
repeated trespasses on land.” Gardner v. County of Allegheny, 382 Pa. 88, 102 (1955); see also,
e.g., Tri-Cities Water Co. v. City of Monessen, 313 Pa. 83, 85 (1933) (“There is no doubt equity
has power to grant a restraining order preventing actual or threatened trespasses of a continuing
and permanent character.” (citation omitted)); Keppel v. Lehigh Coal & Navigation Co., 200 Pa.
649, 652 (1901) (“It is not to be doubted that an injunction is the appropriate remedy for the
prevention of trespasses and nuisances which, by reason of the persistency with which they are
repeated, threaten to become of a permanent nature.”). Indeed, in an analogous case dealing with
tree branches that protruded onto an adjacent neighbor’s property, thereby constituting a trespass,
the Superior Court of Pennsylvania concluded that Pennsylvania law allows the aggrieved
landowner “on a trespass theory, [to] see equitable relief compelling the trespassing neighbor to
remove the trees to the extent of the encroachment and seek appropriate incidental and
consequential damages.” Jones, 425 Pa. Super. at 112. The court explained that aggrieved
landowners must be allowed to use “every available remedial avenue in an effort to protect the
incidents of land ownership,” including the pursuit of equitable relief. Id. at 111-12. “Anything
less,” the court observed, “is a travesty.” Id. at 112.
In Dodson v. Brown, the Superior Court held that it is no defense to a claim for an injunction
that the landowner may be compensated in damages:
The appellant's title is clear. The occupation of the strip of land by the appellee is
an actual appropriation of the appellant's ground, and if continued will ripen into a
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complete title. . . . There is left in it no option but to enforce the law. The question
of expense or damage cannot be considered. The aggrieved property owner's right
is absolute. However hard his acts might be regarded, he asks the court for the
enforcement of a legal right of a positive character with respect to land which it is
conceded was wrongfully taken from him. He is entitled to a decree. The rule in
such case is founded on sound reason. If damages may be substituted for the land,
it will amount to an open invitation to those so inclined to follow a similar course
and thus secure valuable property rights. The amount of land involved does not
change the situation. Here is a wrongful invasion of a positive right to real property.
The court should not be asked to declare in each instance what amount of land
should be settled for in damages and what should come under the rule.
70 Pa. Super. 359, 360-61 (1918). Even over one hundred years later, this reasoning applies with
equal force in this case. Damages alone are inadequate to protect Plaintiffs’ property rights, and
Pennsylvania law is clear that they may seek an injunction to vindicate those rights.
v.
Any Hardship that Defendants Suffer from an Injunction Is
Legally Irrelevant
Next, Defendants argue that the Court must consider the “balance of hardships,” and that
under that inquiry, “it is clear that allowing the McNultys to build a fence at the end of the Caseros’
driveway, or otherwise prohibit the Caseros from using their driveway, would cause far more harm
to the Caseros than the benefit, if any, accorded to the McNultys.” ECF 186 at 40; see also id. at
42-45. Defendants urge that “[t]he absurdity of this situation cannot be ignored.” Id. at 50. Even
reading the undisputed facts in Defendants’ favor, their argument fails as a matter of law.
Simply put, in a case like this, Pennsylvania courts sitting in equity find the balance of the
hardships irrelevant. One of the earliest, yet most poignant, examples comes from the 1892
decision of the Supreme Court of Pennsylvania in Walters v. McElroy, 151 Pa. 549, 554 (1892).
In Walters, the plaintiff sued individuals involved with a mining company for trespassing on his
land. Id.at 554. The defendants “had entered and made a drift through and under his land into the
coal in adjoining lands, and laid down a tramway therein,” and were also “carrying coal from the
adjoining lands through and over his land, depositing thereon dirt and debris from mines in
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adjoining lands, and draining water from the said mines upon his land.” Id. The plaintiff’s
complaint was dismissed in the lower courts. Id. at 558.
On appeal, the Pennsylvania Supreme Court reversed that dismissal, and ordered that a
“perpetual injunction” be issued in the plaintiff’s favor, finding that the plaintiff was “clearly
entitled” to it. Id. at 554, 558. As relevant here, the defendants argued that an injunction should
not be issued, because their mining operations would be “paralyzed” by the injunction, as
compared to the minor cost to the plaintiff. Id. at 557. The Pennsylvania Supreme Court rejected
this argument:
And as to the principle invoked, that a chancellor will refuse to enjoin when greater
injury will result from granting than from refusing an injunction, it is enough to
observe that it has no application where the act complained of is in itself, as well as
in its incidents, tortious. In such case it cannot be said that injury would result from
an injunction, for no man can complain that he is injured by being prevented from
doing, to the hurt of another, that which he has no right to do. Nor can it make the
slightest difference that the plaintiff's property is of insignificant value to him, as
compared with the advantages that would accrue to the defendants from its
occupation.
Id. at 557-58.
Time and again, Pennsylvania courts have upheld this notion, and have refused to consider
the balance of the hardships in continuing trespass cases. See, e.g., Greyhound Lines, Inc. v. Peter
Pan Bus Lines, Inc., 845 F. Supp. 295, 302 (E.D. Pa. 1994) (“There is no contention by the
defendant, nor could there be, that the defendant would be harmed by an injunction to a greater
extent than the plaintiff would be were the injunction not issued. [There is] no right to benefit
from illegal trespass.”); Stuart v. Gimbel Bros., 285 Pa. 102, 106-07 (1926); Sullivan v. Jones &
Laughlin Steel Co., 208 Pa. 540, 554-55 (1904) (quoting extensively from Walters, 151 Pa. at 55758, and observing, “There can be no balancing of conveniences when such balancing involves the
preservation of an established right . . . .”); Evans v. Reading Chem. Fertilizing Co., 28 A. 702,
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709, 711 (Pa. 1894) (per curiam) (summarily affirming the lower court, which observed that no
case “can be authority for the proposition that equity, a case for its cognizance being otherwise
made out, will refuse to protect a man in the possession and enjoyment of his property because
that right is less valuable to him than the power to destroy it may be to his neighbor or to the
public”); cf. Bartokowski v. Ramondo, 219 A.3d 1083, 1095 (Pa. 2019) (“All property owners are
presumptively entitled to the quiet use and enjoyment of their entire properties; such right s are
inherent to our understanding of property ownership.”).
While not cited by Defendants, there appear to be some cases in which Pennsylvania courts
consider the hardships that an injunction will impose on a trespassing defendant. In Moyerman v.
Glanzberg, for instance, the Pennsylvania Supreme Court upheld a chancellor’s refusal to issue an
injunction, even though the defendant’s dwelling encroached by fourteen inches onto the plaintiff’s
driveway, because “the encroachment was the result of an unintentional mistake rather than a
willful and intentional trespass.” 391 Pa. 387, 394-95 (1958). In the original subdivision plan
approved by the Township Commissioners, the lot in question had a frontage of 105.38 feet. Id.
at 394. Plaintiffs, the Moyermans, had owned both this lot and the adjoining property. Id. They
decided, without notice to or approval of the Township Commissioners, to convey only a portion
of the original lot, with a frontage of only 80.38 feet, to the Glanzbergs. Id. The Glanzbergs (who
were apparently acting as straw parties for the defendant, Goodman) conveyed the land to
Goodman. Id. at 389. Goodman, however, was given a plan which showed the lot conveyed to
him with the original frontage of 105.38 feet. Id. at 394. He applied for and was granted a building
permit which conformed to these dimensions. Id. Goodman subsequently built a dwelling that
encroached on the plaintiffs’ property by 14 inches. Id. Under these circumstances, where
Goodman had no knowledge of the mistake leading to the trespass, the Pennsylvania Supreme
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Court explained that the hardships he would incur – having to tear down a dwelling that was
substantially complete – outweighed the harm that the Moyermans would suffer, despite their
superior title. Id. at 392-95. The court noted, however, that had Goodman’s trespass been “tortious
or in bad faith,” or if Goodman had “intentionally take[n] a chance” that the property was not his
own, then the trial court should not have hesitated to grant injunctive relief. Id. at 393 (quoting
Ventresca v. Ventresca, 182 Pa. Super. 248, 253 (1956)).
Moyerman, however, is inapposite here, because there is no evidence sufficient to create a
genuine dispute as to Defendants’ state of mind. Unlike the defendant in Moyerman, who had no
reason to know of his title defect when applying for his building permit, Dr. Casero’s own
testimony indicates that before he and Ms. Hattenburg built the driveway at issue, they were aware
that Plaintiffs strongly disagreed with their interpretation of the parties’ shared property boundary,
and that Plaintiffs had a survey to support their position. ECF 186-27 at 35:15-36:6, 36:15-37:20.
Notwithstanding this, Defendants chose to build their driveway in its current location in June,
2013. ECF 186-13. While Defendants do provide evidence that might suggest that their position
regarding the position of their northern property border was not unreasonable, see ECF 186-25
(Birch Aff.), Dr. Casero admitted that he did not consult any attorney regarding this matter until
the “spring of 2014” – after Defendants had already once removed a fence from the disputed
portions of the land south of Salt Lake Road, ECF 186-27 at 13:4-13, 14:4-16:9, and long after the
driveway was erected, see ECF 186-13. In other words, Defendants exercised two significant acts
of domain over the disputed lands, before ever consulting with a lawyer to confirm that their
actions were justified.
At minimum, these undisputed facts demonstrate that Defendants knew that the land upon
which they sought to place a driveway was in dispute in June, 2013, but they took a chance, and
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decided to move forward with the construction. Under these facts, injunctive relief is warranted,
regardless of any harm imposed on Defendants. See Baugh v. Bergdoll, 227 Pa. 420, 422-23
(1910) (reversing lower court decision not to grant an injunction where the defendant’s six-inch
encroachment arguably did not interfere with plaintiff’s use and noting “[t]he obvious effect of the
decree entered, if permitted to stand, would be to compel the appellants to submit to a divestiture
of title simply for the accommodation of the appellees, and accept in return whatever amount a
jury might determine to be compensatory damages”).
Based on this conclusion, the Court need not determine whether a genuine issue of fact
exists as to Defendants’ ability to access Salt Lake Road without their current, infringing driveway.
However, two observations are noteworthy.
First, Defendants have contended, both in their Opposition and in this litigation generally,
that enjoining them from using their current driveway would landlock them, because it is not clear
that Harford County Government officials would allow them to build a bridge over the stream that
exists on their property. See, e.g., ECF 186 at 50 (“If the McNulty[s’] interpretation of Judge
Motz’s order is upheld, the Caseros stand to lose reasonable access to their land. They may have
to relocate their driveway across a flood plain and, possibly, build a bridge across a stream (Ex.
13; 14). It is not at all clear that Harford County will allow them to undertake such a modification
of their driveway (Ex. 14).”). The referenced exhibits provide speculative support for this notion,
at best. Exhibit 13 (docketed as ECF 186-15) is a one-page plat showing Defendants’ Stormwater
Management Plan. Exhibit 14 (docketed as ECF 186-16) is a stormwater management inspection
conducted by Harford County, ordering Defendants to pave their driveway (which used to be in
gravel form) due to the runoff of gravel caused by storms. In no way does either exhibit create a
genuine issue of fact as to Harford County’s approval, or disapproval, of a bridge built across the
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stream on Defendants’ property. See Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 364 (4th
Cir. 1985) (explaining that the party opposing summary judgment “must produce ‘specific facts’
showing that there is a genuine issue for trial,” because “[g]enuineness means that the evidence
must create fair doubt; wholly speculative assertions will not suffice” (emphasis added)).
Second, it does not appear to the Court that Defendants’ only option for accessing Salt
Lake Road is to build a bridge over a stream in a wooded area on their property that has allegedly
been designated as a “flood plain.” E.g., ECF 186-47, ¶ 5. The Court has reviewed the videos that
Defendants have submitted, exhibits 49 and 50 to their Opposition. Both of those videos are walkthroughs of Salt Lake Road, where Defendants’ northern property boundary and Plaintiffs’
southern property boundary meet. As the videographer walks from west to east, one can see the
pink, dotted line demarcating the location of Plaintiffs’ southern property boundary, as determined
in Part III.A., supra. Notably, it appears that the pink dotted line intersects with Salt Lake Road
at or around the area in which the Stegalls’ old driveway used to be. If this is the case – that the
old driveway is totally within Defendants’ northern property boundary – then it does not seem that
Defendants would have difficulty accessing Salt Lake Road using that location. In fact, in a prior
status hearing in this case before United States District Judge George L. Russell, III, Plaintiffs’
counsel represented to the Court, and to Defendants, that their view was that the old driveway (or,
as counsel described it, a “cement parking pad”) did not, in fact, infringe on Plaintiffs’ property:
MS. MILLER:
There was an existing driveway on a portion of [the property
on which the Stegalls’ home resided] that led to Salt Lake
Road that did not encroach upon the McNultys’ property.
THE COURT:
Oh, so there was a driveway that didn’t encroach upon the
McNultys’ property, gotcha.
MS. MILLER:
That’s correct.
...
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MS. MILLER:
What [Defense] Counsel is talking about is there was a small
parking pad, a cement parking pad on the end of the Caseros’
property next to Salt Lake Road. It was not a driveway, it
was a pad. And the McNultys gave the previous owners
license to use that pad. Now that pad has long been grown
over and as never at issue or an option for the Caseros. . . .
THE COURT:
Is that parking pad an option now?
MS. MILLER:
The parking pad has been long grown over.
THE COURT:
You could take a weed whacker, whatever, knock things
down; is there a problem with the use of the parking pad?
MS. MILLER:
Two years ago, it could have been an option.
ECF 92 at 24:1–6, 26:16–27:6.
After clarifying his thought process, Judge Russell asked
Plaintiffs’ counsel if Plaintiffs would be amenable to allowing Defendant to use the old parking
“pad,” if the infringing driveway was removed. Id. at 27:17–20. Counsel responded, “The
McNultys have always been receptive to a solution like that. Always.” Id. at 27:22–23.
These observations notwithstanding, on the current record, Pennsylvania law bars
consideration of the hardships that a defendant may suffer from the entry of an injunction that
requires him to remove a trespassing structure. As such, Plaintiffs have satisfied the mandatory
prerequisites for the issuance of a permanent injunction under Pennsylvania law.
vi.
The Existence of a Public Right-of-Way over Salt Lake Road
Does Not Preclude Plaintiffs from Obtaining Relief
Next, Defendants rely on Section 2307 of the Second Class Township Code, 53 Pa. Cons.
Stat. § 67307, for the proposition that Plaintiffs are not entitled to their requested injunctive relief.
ECF 186 at 33-36. Citing no case law, they argue that Section 2307’s creation of a thirty-three
foot right-of-way over all public roads means that Plaintiffs cannot exclude anyone from exercising
dominion or control over any lands within those thirty-three feet, even if the Township has not
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utilized that entire thirty-three feet for the public’s use. Id. Even with the benefit of all favorable
factual inferences, Defendants’ argument fails.
Pennsylvania law affords three methods for the establishment of a public road. See Steward
v. Watkins, 427 Pa. 557, 558-59 (1967). As relevant here, Section 2307 of the Second Class
Township Code is one of those methods. It provides:
Every road which has been used for public travel and maintained and kept in repair
by the township for a period of at least twenty-one years is a public road having a
right-of-way of thirty-three feet even though there is no public record of the laying
out or dedication for public use of the road.
53 Pa. Cons. Stat. § 67307(a). Still, even if Salt Lake Road is conclusively a public road, the rightof-way does not extinguish all of Plaintiffs’ rights regarding that portion of their property.
Though not binding on any court, the decision of the Commonwealth Court of
Pennsylvania in Einhaus v. Fawn Township is persuasive. In that case, Fawn Township and one
of its residents, Einhaus, disagreed as to the width of the right-of-way that was established for Salt
Lake Road. No. 642 C.D.2015, 2016 WL 3196696, at *1 (Pa. Commw. Ct. June 9, 2016).
Although not made specifically clear in the court’s opinion, it appears that Einhaus used self-help
measures, including “placing an iron rebar pipe within the right of way,” to prevent Fawn
Township from taking actions in relation to Salt Lake Road on portions of his land that fell outside
of the 25-foot right of way noted in the 1974 subdivision plan. Id. at *2.
On appeal, the Commonwealth Court was not concerned with whether Salt Lake Road was
a public road; that notion, the court found, was “confirmed . . . long ago.” Id. at *2 n.5. Instead,
the court considered whether the lower court properly held that Fawn Township did not trespass
on Einhaus’s land. Id. at *2-3. The court affirmed the lower court’s holding. Id. at *3. It explained
that Section 2307 authorized the Township to widen Salt Lake Road to provide for a thirty-threefoot right of way. Id. Because the Township properly acted within its eminent domain authority
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to appropriate Einhaus’s private property to “establish[] and maintain[] a public road with a right
of way of 33 feet,” the Township could not be liable for trespass. Id.
The court rejected, however, the Township’s argument that it already owned the land
encompassed by the thirty-three-foot right-of-way by operation of Section 2307. Id. at *2. The
court explained:
While the General Assembly may by statute determine the width of public roads
throughout the Commonwealth, the General Assembly may not take private land
by legislative fiat; the Township's argument to the contrary is simply erroneous and
runs afoul of fundamental constitutional principles. Section 2307 of the Code is
addressed to second class townships tasked with establishing and maintaining
public roads. Section 2307 of the Code mandates the duty second class townships
have to provide a 33 foot right of way for the public traveling on public roads and
in doing so, grants second class townships the authority to perform the acts
necessary to carry out this duty. Section 2307 of the Code does not extinguish the
rights of private landowners.
Id. (emphasis added). Thus, the court passed no judgment on any possible remedy Einhaus may
have elected to pursue under Pennsylvania’s Eminent Domain Code. Id. In a subsequent decision,
the Commonwealth Court relied on Einhaus for the notion that a landowner may pursue a remedy
under Pennsylvania’s Eminent Domain Code, because a township’s acquisition of a public road
existing on private property might constitute a de facto condemnation. Dysert v. Robinson
Township, Washington County, No. 260 C.D. 2019, 2020 WL 1130764, at *4-5 (Pa. Commw. Ct.
Mar. 9, 2020).
While there are no eminent domain issues presented in this case, the logic of Einhaus and
Dysert apply with the same import here. According to Mr. Birch, Defendants’ former lawyer, “the
one-tenth of an acre identified by Mr. Farcht” as being Plaintiffs’ land below Salt Lake Road “is
all within that [thirty-three foot] right of way and is subject to being paved.” ECF 186-25, ¶ 15.
Based on this, Defendants argue that Plaintiffs “have no right to expect that the portion of the
Caseros’ driveway that allegedly falls on their land would not be paved or used by the public.”
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ECF 186 at 36. This is the functional equivalent of Fawn Township’s argument in Einhaus, which
the court rejected, that Section 2307 automatically grants the Township full title to the entire thirtythree-foot swath of land along which a public road runs. See 2016 WL 3196696, at *2. Again,
“Section 2307 of the Code does not extinguish the rights of private landowners.” Id. Even granting
Defendants the reasonable inference that all of Plaintiffs’ land south of Salt Lake Road falls within
the right-of-way, and may be paved at some time, it remains Plaintiffs’ land, unless and until Fawn
Township exercises its eminent domain powers to widen Salt Lake Road. See id. at *2-3. As such,
Plaintiffs may exercise the full bundle of rights that comes with ownership of that one-tenth of an
acre, including excluding others from trespassing on it. Thus, Section 2307 does not bar Plaintiffs’
instant claim for injunctive relief.
vii.
Plaintiffs’ Request for Injunctive Relief Is Not Barred by Laches
Finally, Defendants assert that Plaintiffs’ claims requesting an injunction requiring
Defendants to remove their driveway are barred by the doctrine of laches. ECF 186 at 42. In
general terms, the doctrine of laches precludes a plaintiff from obtaining equitable relief where his
failure to timely file suit prejudices the defendant. Commonwealth ex rel. Pa. Attorney Gen.
Corbett v. Griffin, 596 Pa. 549, 563 (2008); see also Siegel v. Engstrom, 427 Pa. 381, 386 (1967)).
Pennsylvania courts will apply the doctrine of laches where there is (1) “a lack of due diligence on
the part of the plaintiff in failing to proceed with reasonable promptitude,” (2) no “compelling
reason” for plaintiff’s delay in bringing suit, and (3) “actual prejudice to the defendant” caused by
the delay. Captline v. County of Allegheny, 553 Pa. 92, 95 (1998) (quoting Jacobs v. Halloran,
551 Pa. 350, 358 (1998)). Laches is an affirmative defense, and therefore “the burden of proof is
on the defendant . . . to demonstrate unreasonable delay and prejudice. Griffin, 596 Pa. at 563.
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Defendants argue that Plaintiffs’ delay in initiating suit was unreasonable, given that
Defendants’ driveway was installed, at latest, on June 25, 2013. ECF 186 at 42. The instant suit,
however, was filed on June 28, 2016. Id. Because the “most analogous statute of limitations” in
Maryland is three years, Defendants argue, this Court “must dismiss the case.” Id. Contrary to
Defendant’s assertion, “the doctrine of laches does not depend on a mechanical passage of time.”
In re Estate of Moskowitz, 115 A.3d 372, 380 (Pa. Super. Ct. 2015).
To begin, Defendants, without explanation, ignore the first suit the McNultys filed in the
United States District Court of the Middle District of Pennsylvania in June, 2015. See McNulty v.
Casero, No. 1:2015cv01263 (M.D. Pa. filed June 29, 2015). 4 Accordingly, the relevant time
period is only two, not three, years. Moreover, the expiration of a statute of limitations is not the
sine qua non of a laches defense under Pennsylvania law. While laches generally “follows the
statute of limitations,” those statutes “are not controlling in equity, but only provide guidance in
determining the reasonableness of any delay.” United Nat’l Ins. Co. v. J.H. France Refractories
Co., 542 Pa. 432, 440 (1995) (internal quotations omitted) (quoting Silver v. Korr, 392 Pa. 26, 30
(1958) and Kay v. Kay, 460 Pa. 680, 685 (1975)).
Even assuming a two-year delay is somehow unreasonable, Defendants have not argued
that they have been prejudiced by this delay, let alone produced enough evidence to create a
genuine issue of material fact. See ECF 186 at 42. The type of evidence sufficient to establish
prejudice includes “establishing that a witness has died or become unavailable, that substantiating
At the summary judgment stage, the Court may consider matters over which it may take judicial
notice. Wheelabrator Balt., L.P. v. Mayor & City Council of Baltimore, No. GLR-19-1264, 2020
WL 1491409, at *5 (D. Md. Mar. 27, 2020); see Fed. R. Evid. 201. “The most frequent use of
judicial notice . . . is in noticing the content of court records.” Colonial Penn. Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989) (quoting 21 C. Wright & K. Graham, Federal Practice and
Procedure: Evidence § 5106 at 505 (1977)).
4
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records were lost or destroyed, or that the defendant has changed his position in anticipation that
the opposing party has waived his claims.” Commonwealth ex rel. Baldwin v. Richard, 561 Pa.
489, 496 (2000). Defendants have produced nothing to show that any witnesses or evidence has
been lost. Moreover, there is no evidence that Defendants reasonably could have believed that
Plaintiffs were going to waive their claims during the two-year period before suit. Dr. Casero
testified that the parties have openly disagreed on the proper location of their shared boundary line
since before the Defendants constructed their current home and driveway, and do so “to this day.”
ECF 186-27 at 36:18 to 37:20. In any event, there is no evidence that Defendants changed their
position during this two-year period, vis-à-vis the driveway. See A.M.M. v. Pa. State Police, 194
A.3d 1114, 1118 (Pa. Super. Ct. 2018) (“[T]he sort of prejudice required to raise the defense of
laches is some changed condition of the parties which occurs during the period of, and in reliance
on, the delay.” (alteration in original) (emphasis added) (quoting Sprague v. Casey, 520 Pa. 38, 46
(1988)). The only actions Defendants ever took during that period were keeping the driveway
maintained, and paving it at the direction of the Harford County Government. See ECF 186-16.
Neither of these actions, however, relied on Plaintiffs’ delay in initiating suit. Accordingly,
Defendants’ laches defense fails as a matter of law.
In sum, Plaintiffs have produced sufficient evidence to demonstrate their entitlement to an
injunction requiring Defendants to remove the infringing portion of their driveway. Defendants,
in their opposition, fail to produce sufficient evidence to create any genuine disputes of material
fact regarding Plaintiffs’ requested relief and fail to show they could prevail on any affirmative
defense. Therefore, summary judgment will be entered in Plaintiffs’ favor, in accordance with the
analysis above.
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C.
Plaintiffs’ Motion to Partially Strike Defendants’ Answer is Moot
Plaintiffs moved to strike three affirmative defenses: (1) that Defendants are entitled to an
easement by prescription; (2) that Defendants are entitled to an easement by necessity; and (3) that
Defendants are entitled to gain access to Salt Lake Road pursuant to Code Section 2307. ECF 188
at 1-4. Because, as described above, Defendants have failed to create genuine fact issues as to
their entitlement to any of these defenses, Plaintiffs’ motion to strike will be denied as moot.
IV.
CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment, ECF 183, is
GRANTED IN PART and DENIED IN PART. Plaintiffs’ Partial Motion to Strike Affirmative
Defenses, ECF 184, is DENIED AS MOOT. A separate Order follows, which will include
scheduling of a telephonic hearing to discuss remaining steps in this litigation, including the timing
and contents of the appropriate injunction, and the appropriate disposition of the remaining causes
of action.
Dated: August 14, 2020
/s/
Stephanie A. Gallagher
United States District Judge
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