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Gurecka v. Carroll

Superior Court of Pennsylvania

February 3, 2017

FRANCESCA V. GURECKA, Appellee
v.
ROBERT W. CARROLL AND HOLLY LACEY CARROLL, Appellants

         Appeal from the Order Entered July 11, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 11-024656

          BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., and OTT, J.

          OPINION

          BENDER, P.J.E.

         Robert W. Carroll and Holly Lacey Carroll (Appellants or the Carrolls) appeal from the July 11, 2014 order that entered a permanent injunction enjoining them from interfering with the repair and use of a sewer line located on their property that services the nearby residence owned by Francesca V. Gurecka (Appellee or Ms. Gurecka). We affirm.

The trial court set forth the factual background of the case as follows:
On October 31, 2011, [Appellee], Francesca Gurecka, entered into a written Standard Agreement for the sale of real estate with Rachel French and William Ommert, the purchasers, for the sale price of $390, 000.00. The closing date was set for November 30, 2011. On or about November 18, 2011, it was discovered during a municipal dye test that the sewer line servicing the property had a blockage which required repair.
The plumber employed to make the repairs inserted a camera into the sewer line and discovered that the sewer line lateral proceeded to run downhill, under Forest Glen Drive and through the property of [the Carrolls]. The plumber started to perform excavation and repair of the sewer line on the Carroll property when Holly Lacey Carroll instructed the plumber to cease all work and immediately vacate her property.
Common Pleas Court Judge Judith Friedman issued a preliminary injunction on December 2, 2011, authorizing the reasonable repairs of the sewer line pending further litigation and required [Ms.] Gurecka to post a $5, 000.00 bond. Due to the future litigation surrounding the sewer line repair, the sales agreement between Francesca Gurecka and Rachel
French/William Ommert was terminated. Francesca Gurecka next sought a permanent injunction seeking to restrict the Carrolls from interfering with the repair or continued use of the sewer line. Francesca Gurecka maintains that she has a right to continued use and maintenance of the sewer due to an easement by implication, or implied easement. This case was assigned to this writer to decide whether a permanent injunction should issue, as a future sewer line blockage coupled with the Carrolls['] refusal to allow maintenance of the line may render the property uninhabitable.
The Carrolls maintain that they have had plans to reposition their driveway from the time of their purchase in March of 2011. The Carrolls further maintain that if the Gurecka line was to remain in the current location, any hopes of redesigning and repositioning their driveway would be impossible. The Carrolls assert that the sewer line encroaches 13 feet into their 107 foot wide lot, rendering 12.15% of their property unusable.

Trial Court Opinion (TCO), 7/11/14, at 1-2.

         In response to an order issued by the trial court, the parties submitted a joint stipulation of the undisputed facts, which was then adopted by the trial court. The following pertinent items are contained in the joint statement:

1. [Appellee], Francesca V. Gurecka, is an individual residing at 603 Cherry Blossom Way, Bridgeville, Pennsylvania 15017 and is the Trustee of the Alba N. Valli Irrevocable Trust, title[d] owner of real estate located at 8 Forest Glen Drive, Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania 15228 (the "Property").
2. [Appellants], Robert W. Carroll and Holly Lacey Carroll are individuals residing at 13 Forest Glen Drive, Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania 15228 ([the Carrolls'] Property.)
3. On October 5, 1936, Orca Geyer ("Geyer") acquired approximately 13 acres in Mt. Lebanon from Beverly Heights Company, by deed dated October 5, 1936, and recorded in the office of the Recorder of Deeds of Allegheny County in Deed Book Volume 2540, Page 204.
4. Geyer thereafter developed Forest Glen, a subdivision, which was proposed in October 1948, and accepted by Mt. Lebanon and recorded January 17, 1949, in Plan Book Volume 44, Pages 17, 18 and 19 (hereinafter "Forest Glen Subdivision"). Forest Glen Subdivision contained 25 lots.
5. The Property is known and referred to as Lot 4 and part of Lot 5 in the Forest Glen Subdivision.
6. [The Carrolls'] Property is known and referred to as Lot 18 in the Forest Glen Subdivision.
7. A right of way for public sewer lines runs behind Lots 12, 13, 14, 15, 16, 17, 18, 19 and 21 in the Forest Glen Subdivision. These lots would be considered to be on the "low side" of Forest Glen Drive.
8. Lots 1, 2, 3, 4, 5 and 6, 7, 8, 9, 10 and 11 are on the opposite side of Forest Glen Drive and therefore on the opposite side of the public right of way. These lots would be considered on the "high side" of Forest Glen Drive.
9. [Ms. Gurecka's] "high side" lot had no direct access to the public sewer therefore, Geyer, as developer, between 1949 and 1956, constructed a sewer line which went through the [the Carrolls'] "low side" lot and connected to the manhole which is in the public right of way.
10. The sewer line at issue which runs through [the Carrolls'] Property is located approximately 13 feet from the boundary line with Lot No. 17.
11. Geyer lived in the Property for a period of time between the 1940s and 1969. Geyer granted and conveyed Lot 18 (the Carrolls' lot) to S. Boyd Challinor and Ruth G. Challinor, by deed dated October 2, 1956, and recorded in the Office of the Recorder of Deeds of Allegheny County in Deed Book Volume 3529, Page 489 (the "Challinor Deed").
12.The Challinor Deed does not contain an express easement for the existing sewer line from the Property through and across the ...

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