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PA Energy Vision, LLC v. South Avis Realty, Inc.

Superior Court of Pennsylvania

July 20, 2015

PA ENERGY VISION, LLC AND BLG LEASING, D/B/A HENRY STREET, A GENERAL PARTNERSHIP, Appellant
v.
SOUTH AVIS REALTY, INC., Appellee; PA ENERGY VISION, LLC AND BLG LEASING, D/B/A HENRY STREET, A GENERAL PARTNERSHIP, Appellee
v.
SOUTH AVIS REALTY, INC., Appellant

Argued, December 10, 2014

Page 1009

[Copyrighted Material Omitted]

Page 1010

Appeal from the Judgment of the Court of Common Pleas, Clinton County, Civil Division, No. 1364-12. Before WILLIAMSON, J.

Joseph D. Smith, Williamsport, for South Avis.

Lee H. Roberts, Lock Haven, for PA Energy Vision and BLG Leasing.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

Page 1011

OPINION

STABILE, J.

These cross-appeals arise out of an action initiated on November 16, 2012 by Appellee/Cross-Appellant PA Energy Vision, LLC and BLG Leasing, d/b/a Henry Street (Henry Street), requesting declaratory and injunctive relief against Appellant/Cross-Appellee, South Avis Realty Inc. (South Avis), regarding the use and maintenance of a railroad crossing. South Avis contends the trial court erred in entering a final decree prohibiting South Avis, or any of its successors and assigns, from interfering in any way with Henry Street's use of the crossing known as " Crossing 2." Henry Street contends the trial court erred in requiring it to pay the restoration costs of Crossing 2. Because we conclude the trial court erred in finding that Henry Street established a right to use the railroad crossing, we reverse the judgment entered on the final decree. Henry Street's cross-appeal is denied as moot.

In 1994, South Avis, a Pennsylvania corporation, purchased the " Penn Central Mill Hall Branch a/k/a the Avis industrial track," (the Avis line) from Consolidated Rail Corporation (Conrail). The Avis line is a 30-foot wide right-of-way that passes through a 26-acre parcel now owned by Henry Street, a Pennsylvania general partnership. The deed between Conrail and South Avis remised, released and quitclaimed[1] all right, title and interest of Conrail to the described " Premises."

As of 1994, three railroad crossings existed over the Avis line tracks. Crossing 1 was created by express grant in 1978 and is not at issue in this case. Crossing 3 was a temporary crossing established in the 1990s. It consisted merely of gravel dumped on the track bed. It, too, is not at issue here. The focus of this lawsuit is Crossing 2. Crossing 2 was 38 feet wide and has been in existence since about 1984. The crossing was constructed of amesite on the east side of the rails, stone in the middle, and chip and tar on the west side. Henry Street's predecessor in interest, Excel Homes, used Crossing 2 to move 68-foot modular homes, forklifts, and other equipment across the Avis line tracks.

In 2012, South Avis hired a contractor to repair the railroad line, which was in a state of disrepair and unsafe for train traffic. The contractor removed 115 feet of rails in order to replace the rail and the ties beneath them. The contractor also removed Crossings 2 and 3. There was some discussion regarding restoration of Crossing 2. According to the contractor, there are three ways to build a railroad crossing. The least expensive and least durable is a crossing made from loose gravel and cinders. The second is a timber panel and asphalt crossing. The most durable is a crossing made of precast concrete panels.

According to the contractor, a gravel crossing did not meet railroad standards. The cost of building a timber panel crossing was between $7,000 and $8,000, but the contractor recommended a precast concrete panel design after learning that Crossing 2 was likely to handle heavy truck traffic.

Page 1012

Ultimately, South Avis directed the contractor not to restore Crossing 2, because of a dispute between South Avis and Henry Street over restoration payment. See Trial Court Order, 12/4/12, at 1-2 (noting that South Avis directed its contractor not to restore Crossing 2 after Henry Street " impose[d] questionable limitations" on South Avis's ability to access Henry Street's property to complete the restoration). ...


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