Vetere et al v. Holbert
MEMORANDUM (Order to follow as separate docket entry) re 33 MOTION for Preliminary Injunction filed by Barry Vetere Signed by Honorable Malachy E Mannion on 10/31/13. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BARRY VETERE and PAMELA
CIVIL ACTION NO. 3:12-1824
KUNI M. HOLBERT,
Presently before the court is the plaintiffs’ motion for a preliminary
injunction pursuant to Fed. R. Civ. P. 65. (Doc. No. 33).
Given the nature of this motion, the court will only address the
necessary facts. This case is essentially a land dispute between neighbors.
The plaintiffs, Barry and Pamela Vetere, brought suit against the defendant,
Kuni M. Holbert, over a parcel of the land (“the disputed property”) that abuts
both parties’ properties. (Doc. No. 1). All of the land was once part of a single
plot that was sold out in parcels starting in 1917, when the defendant’s
predecessor-in-title purchased part of the land. (Id., ¶8). In 1919, a second
parcel was sold to the plaintiff’s predecessor-in-title. (Id., ¶9) The 1919 deed
contained a right of way, allowing travel from what is known as “the farm road”
to the property over the adjacent lot, which is now the defendant’s land. (Id.)
The defendant came into possession of his property in 1964. (Id., ¶9). The
1964 deed contained a provision maintaining a right of way over his property
for parcels not abutting the farm road. (Id.). In 1991, the plaintiffs purchased
their property from the decedents of the 1919 purchaser. (Id., ¶10).
A brief description of the properties will be helpful to clarify the issues.
The plaintiffs’ property fronts Lake Shehawken on the southern end and the
disputed property on the northern end. (Doc. No. 12, Exh. D). The disputed
property is a narrow strip of land that divides the plaintiffs’ property from the
defendant’s property. (Id.). The disputed property does not actually abut the
farm road, as the defendant’s land extends over and along both sides of the
farm road. (Id.).
For many years, the parties had no quarrels and plaintiffs crossed both
the defendant’s land and the disputed property to gain access to their plot.
Recently, plaintiffs allege that the defendant has built a fence on the disputed
property, partially obstructing their right of way and also encroaching on their
property. (Doc. No. 34). The plaintiffs further claim that the defendant has
erected “no trespassing” signs on the disputed property, has parked a pick-up
truck near the new fence making access to the plaintiffs’ property somewhat
more difficult, and has told plaintiffs’ contractors not to park on the disputed
property. (Id.). As a result, the plaintiffs’ caretaker was unable to park in the
area on at least one occasion. (Id.). Plaintiffs also allege that their plumber
and emergency vehicles will be unable to access the land. (Id.). The parties
have attached several photographs depicting the fence and the no
trespassing signs. (Doc. No. 12, Exh. G, H; Doc. No. 38, Att. 3).
II. PROCEDURAL HISTORY
This case commenced on September 11, 2012, when the plaintiffs filed
their complaint. (Doc. No. 1). The complaint alleges six causes of action: (1)
breach of deeded easement; (2) action to quiet title by adverse possession;
(3) action to quiet title by prescriptive easement; (4) action to quiet title
through easement by necessity; (5) trespass upon easement; and (6)
nuisance. (Id.). The defendant filed his answer on October 17, 2012, making
counterclaims of ejectment and trespass against the plaintiffs. (Doc. No. 8).
The plaintiffs’ instant motion for a preliminary injunction was filed on May 22,
2013, (Doc. No. 33), and they filed a brief in support on June 4, 2012. (Doc.
No. 34). The defendant filed his brief in opposition on June 18, 2013. (Doc.
No. 38). The case is now ripe for the court’s decision.
III. STANDARD OF REVIEW
“The purpose of a preliminary injunction is to prevent irreparable injury
or gross injustice by preserving the status quo as it exists or as it previously
existed before the acts complained of in the complaint.” Ambrogi v. Reber,
932 A.2d 969, 974 (Pa. Super. 2007). A preliminary injunction is an
“extraordinary” remedy “that should not be issued unless the moving party’s
right to relief is clear and the wrong to be remedied is manifest.” Id. (citing
Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000)).
“The burden is on the party seeking injunctive relief to establish the
essential prerequisites necessary for the grant of such relief.” Free Speech,
LLC v. Philadelphia, 884 A.2d 966, 970 (Pa. Comm. Ct. 2005). The moving
party must demonstrate six elements to meet the high burden required for the
issuance of a preliminary injunction. Summit Towne Centre, Inc. v. Shoe
Show of Rocky Mountain, Inc., 828 A.2d 995, 1001 (Pa. 2003). The moving
party must show: (1) “immediate and irreparable harm that cannot be
adequately compensated by damages;” (2) that greater injury would result
from not granting the injunction and the issuance will not substantially harm
other interested parties; (3) the injunction will restore the “status quo” as it
existed before the harm; (4) that the party has an actionable claim, a clear
right to recovery, and a meritorious case; (5) that the injunction is “reasonably
suited to abade the offending party;” and (6) that the injunction will not
adversely affect public interests. Id. (citations omitted). Missing any one of the
elements is fatal and will preclude the court from issuing an injunction. Id.
(citing Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277,
1281-82 (Pa. 1992)).
Turning to the first element, Pennsylvania courts have held that the
initial “immediate and irreparable harm” requirement is satisfied when the
serious and significant injury cannot be compensated by money damages.
Citizens Bank of Pennsylvania v. Myers, 872 A.2d 827, 836 (Pa. Super.
2005). In Myers, the Pennsylvania Superior Court determined that an
injunction was warranted when the nearly insolvent defendants had accounts
that held the money stolen from the plaintiff. Id. In affirming the injunction, the
court determined “there is a reasonable likelihood that absent an injunction,
the assets will simply disappear or be dissipated,” thereby causing immediate
harm to the plaintiff’s right to recovery. Id. In Duquesne Light Co. v. Longue
Vue Club, the same court affirmed a preliminary injunction requiring a country
club to grant a power company access to the club’s property to replace power
lines. 63 A.3d 270, 277 (Pa. Super. 2013). The electric company noted that
the lines were in serious need of replacement and could overload in the event
of a line failure. Id. at 276-77. The credible, but not yet realized threat of a
significant and costly power failure was sufficient to meet the “immediate and
irreparable harm” requirement. Id. at 277. Finally, in Keen v. Philadelphia, the
Pennsylvania Commonwealth Court dissolved a preliminary injunction,
determining that plaintiff’s withholding of a police officer’s salary pending an
investigation was insufficient to satisfy the immediate and irreparable harm
standard. 555 A.2d 962, 965 (Pa. Comm. Ct. 1989). The plaintiff had a right
to pursue “reinstatement, back pay, and damages” at the close of the pending
As the Myers, Duquesne, and Keen cases all demonstrate, the harm
must be of a unique nature that would cause damages that are nearly
impossible to calculate or remedy. The plaintiffs argue the defendant’s actions
have caused them injury and that “an assessment of damages is difficult if not
impossible.” (Doc. No. 33). There is no allegation that the plaintiff’s have been
fully ejected from their property, only that access is less convenient now that
a fence has been erected. (Id.). The photographs submitted by the plaintiffs
show vehicles can access the property, (Doc. No. 12; Exh. C), and the
defendant’s photos show that large vehicles, such as a tanker truck and fire
truck, can maneuver through the area. (Doc. No. 38, Att. 3). Further, any
additional costs from requiring contractors or employees to engage in
supplemental labor can be remedied through money damages. See Keen,
555 A.2d at 645. This is not a case where the injunction would prevent the
potential failure of a power grid or avert the loss of stolen funds, both
extremely serious losses. Granting the injunction to remedy what is essentially
an increased level of inconvenience would not prevent “irreparable injury or
gross injustice.” Reber, 932 A.2d at 974.
Therefore, the plaintiffs have failed to meet their burden of showing
immediate and irreparable harm. As that element is necessary and essential,
the injunction must be denied.
For the foregoing reasons, the plaintiffs motion for a preliminary
injunction is DENIED. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: October 31, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-1824-02.wpd
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