Duquesne Light Co. v. Longue Vue Club

• Decision Date: 15 January 2013
• Citation: 63 A.3d 270,2013 PA Super 8
• Parties: DUQUESNE LIGHT COMPANY, Appellee v. LONGUE VUE CLUB, Appellant.
• Court: Pennsylvania Superior Court

63 A.3d 270

2013 PA Super 8

DUQUESNE LIGHT COMPANY, Appellee

v.LONGUE VUE CLUB, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 2, 2012.

Filed Jan. 15, 2013.

Kenneth J. Yarsky, II, Pittsburgh, for appellant.

Russell J. Ober, Jr., Pittsburgh, for appellee.

BEFORE: BENDER, DONOHUE, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

Longue Vue Club (Longue Vue), Appellant, appeals from the June 13, 2012, order granting a preliminary injunction ¹ on behalf of Appellee Duquesne Light Company (Duquesne Light). We affirm.

The trial court has ably summarized the relevant factual and procedural history of this case.

On September 20, 1920, by a deed issued from Mutual Life Insurance Company of New York, Longue Vue took title of a piece of real property (hereinafter “Parcel 1”) in Penn Township, which is now known as Penn Hills Township. The deed was recorded in the office of the Allegheny County Recorder of Deeds at Deed Book Volume 2105, page 161. On December 2, 1949, by a deed issued from Fidelity Trust Company, et al., Executors, Longue Vue took title to an adjacent piece of real property (hereinafter “Parcel 2”) in Penn Hills Township. The deed was recorded in the office of Allegheny County Recorder of Deeds at Deed Book Volume 3075, page 383. These pieces of land (hereinafter collectively “Longue Vue property”) are now home to the Longue Vue Club, [a] historic club offering a golf course, a clubhouse, outdoor space, and various other amenities and leisure activities. The Club enjoys prized views of the Allegheny River from its clubhouse (the “Pink Terrace”), golf course, and shooting range.

On September 19, 1949, Longue Vue granted Duquesne Light an easement over and across Parcel 1 via an Indenture recorded in the office of the Allegheny County Recorder of Deeds at Deed Book Volume 3055, Page 622. In relevant part, the Easement Agreement with regards to Parcel 1 provides:

... a perpetual easement and right of way fifty (50) feet in width, with the additional right to erect and maintain the necessary anchors and appurtenances in connection therewith outside the limits of said right of way, upon, over, under and across that certain tract of land situate in the Township of Penn, Allegheny County, Pennsylvania, which the Mutual Life Insurance Company of New York by its deed dated September 20, 1920, and of record in the Recorder's Office of Allegheny County, Pa., in Deed Book Vol. 2105, page 161, granted and conveyed unto Longuevue [ sic ], party of the first part hereto;

for a transmission system for the conveyance, distribution and use of electric current, consisting of wires, cables and crossarms, supported on poles, H-frames, steel towers or columns, and anchors, guys and other fixtures and apparatus which [Duquesne Light], its successors or assigns, may deem necessary or proper for use in connection with said transmission system, with the right, privilege and authority to erect, construct, use operate, maintain, repair, renew and finally remove the same, and to enter upon said tract of land at any time for said purposes, together with the further right to trim or remove any trees, shrubbery or obstructions which at any time [Duquesne Light], its successor or assigns, may deem necessary to prevent interference or threatened interference with the construction, maintenance, repair, renewal, use or operation of said transmission system, and with the further additional right to install and maintain electric conductors underneath the surface of the ground in the vicinity of said poles, “H” frames, steel towers or columns, for the purpose of providing grounding protection for said electric transmission system, if now or at some future time [Duquesne Light], its successors or assigns, desire so to do.

The said Duquesne Light Company, its successors and assigns, shall have the right at any time to replace one kind of construction with another, and the erection of one kind of support shall not preclude the erection of another.

* * *

On October 24, 1949, prior to the deeding of Parcel 2 to Longue Vue, Fidelity Trust Company granted Duquesne Light an easement over and across Parcel 2 via an Indenture recorded in the office of the Allegheny County Recorder of Deeds at Deed Book Volume 3072, Page 64. In relevant part, the Easement Agreement with [regard] to Parcel 2 provides:

... a perpetual easement and right of way fifty (50) feet in width upon, over, and across that certain tract of land situate in Penn Township, Allegheny County, Pennsylvania, which Isabel Wallace et al. by their deed dated June 17, 1926, and of record in the Recorder's Office of Allegheny County, Pennsylvania, in Deed Book Vol. 2277, page 566, granted and conveyed unto Edmund W. Mudge; for a transmission system for the conveyance, distribution and use of electric current, consisting of cables and wires and other fixtures and apparatus which the said Grantee may deem necessary or proper for use in connection with said transmission system, with the right, privilege and authority to erect, construct, use, operate, maintain, repair, renew and finally remove the same, and to enter upon said tract of land at any time for said purposes, together with the further right to trim or remove any trees, shrubs or obstructions which at any time the said Grantee may deem necessary to prevent interference or threatened interference with the construction, maintenance, repair, renewal, use or operation of said transmission system.

The said easement and right of way across the land hereinbefore described shall extend across the westerly end of said land from land now or formerly of Longvue Club to land now or formerly of Catherine M. Battaglia. The center line thereof shall be located substantially as shown by the red line on print of Duquesne Light Company drawing No.LL–3832, attached hereto and made a part hereof. No supporting structures shall be erected on said land.

The easements over and across Parcel 1 and Parcel 2 (hereinafter “the Easements”), have been used, since 1949, as a location for a part of a 69kV [kilovolt] electrical transmission line.

In 2009, realizing that an upgrade to the line was necessary to meet electricity demand in the region, as well as to make sure that the electricity being provided was reliable, Duquesne Light began seeking the necessary Pennsylvania Public Utility Commission (hereinafter “PUC”) approvals in order to upgrade the 69kV line to a 345kV line. During the PUC approval process, numerous notices were sent to Longue Vue, inviting the club, as the holder of affected property, to participate in the process, attend a hearing, and voice any concerns it might have. Longue Vue did not participate in the PUC approval process, which was completed when the upgrade was approved by PUC on February 10, 2011.

Duquesne Light determined that it would be necessary to construct temporary access roads to reach the Easements and complete the upgrade project. Duquesne Light also determined that it would need to perform core boring and drilling tests in the Easements prior to beginning the upgrade, and informed Longue Vue of the commencement of its preliminary work in December of 2010. However, when Duquesne Light's contractors began constructing a temporary access road on December 9, 2010, the contractors were asked to leave by Longue Vue employees. On December 27, 2010, Longue Vue notified Duquesne Light that Longue Vue believed that Duquesne Light did not have the right to access any portion of the Longue Vue property outside of that expressly granted by the Easement Agreements.

Longue Vue and Duquesne Light held a number of meetings in early 2011, affording both parties the opportunity to express concerns about the upgrade project. At these meetings, Longue Vue expressed concerns about the taller (approximately 150 feet) poles being installed, and the impact that poles would have on Longue Vue's historic view. Additionally, the parties explored and discussed alternative construction methods and equipment that could potentially be used for the completion of the project. Between May of 2011 and February of 2012, the parties continued to meet to try to resolve their differences and discuss alternatives. On February 28, 2012, Duquesne Light's Vice President of Operations informed Longue Vue's President that Duquesne Light had determined that the original design for the portion of the 345kV line located within the Easements was the best option. On March 16, 2012, Duquesne Light's President and CEO informed Longue Vue that contractors would begin to work on the upgrade project on March 23, 2012. Complaint ¶ 22. However, when the contractors arrived on March 23, 2012, representatives of Longue Vue denied them access to the property.

* * *

On March 27, 2012, [Duquesne Light] filed a [complaint for declaratory judgment and a] Motion for Preliminary Injunction against [Longue Vue] pursuant to Easement Agreements signed by [Longue Vue] in 1949.... Duquesne Light [requested] a preliminary injunction against Longue Vue preventing Longue Vue from interfering in any way with Duquesne Light's use of the Easements in any manner that is reasonable and necessary for the conveyance, distribution and use of electric current. Duquesne Light also [sought] to prevent Longue Vue from taking any action that would interfere with or impede Duquesne Light from constructing access roads across the Longue Vue property, operating the skeet shooting range on the Longue Vue property during construction work on the Easements, and taking any action that would interfere with or impede Duquesne Light from entering upon the Longue Vue property for any purpose relating to the electrical transmission system.

The taking of testimony and the introduction of documentary evidence occurred during multiple days of hearing on Duquesne Light's Motion for Preliminary Injunction before [the trial court].

[On June 13, 2012, u]pon consideration of the testimony and evidence...