DANIEL I. HERMAN AND LOUISE GEER HERMAN, HUSBAND AND WIFE v. RICHARD P. MOSS AND CYNTHIA R. MOSS, HUSBAND AND WIFE
No. 1429 WDA 2024
IN THE SUPERIOR COURT OF PENNSYLVANIA
October 2, 2025
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
J-A17042-25
In the Court of Common Pleas of Lawrence County Civil Division at No(s): 10985 of 2021
BEFORE: McLAUGHLIN, J., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.:
FILED: October 2, 2025
Richard P. Moss and Cynthia R. Moss, husband and wife (collectively “the Mosses“), appeal from the order entered on October 25, 2024, in the Court of Common Pleas of Lawrence County, which granted injunctive relief to Daniel I. Herman and Louise Geer Herman, husband and wife (collectively “the Hermans“), in this trespass action. After careful review, we vacate the order and remand for further proceedings.
On December 22, 2021, the Hermans commenced this action with the filing of a single-count complaint for trespass against the Mosses. Therein, the Hermans stated that they own approximately 23.5 acres of land situated in Neshannock Township, Lawrence County, Pennsylvania, pursuant to a deed dated December 28, 1993. Complaint, 12/22/21, at ¶ 3. According to the Hermans, their property includes a 50-foot strip of land or private road
The Hermans essentially claimed that the Mosses have trespassed on their private property — specifically, on the 50-foot strip of land, i.e., Ellgass Lane — and that they continue to do so, causing significant and irreversible damage. See id. at ¶¶ 17, 19-20, 24 (describing the damage caused to the Hermans’ property as a result of the Mosses’ actions in trespass). Accordingly, they sought a permanent injunction enjoining the Mosses from entering onto their property and from altering, changing, or modifying their property in any way, in addition to monetary damages in the amount of $38,400.00. Id. at ¶ 28.
On the same date that the Hermans filed their complaint, they also presented a petition seeking preliminary injunctive relief. See Petition, 12/22/21, at 1-4. In their petition, the Hermans averred that, despite numerous written and verbal warnings that they have no legal right to enter
Based on the Hermans’ representations, the trial court granted their ex parte request for preliminary injunctive relief and scheduled a hearing on the matter, pursuant to
The trial court subsequently conducted multiple hearings on the Hermans’ request for injunctive relief, beginning on March 11, 2022, and concluding on January 10, 2024. During those hearings, the Hermans called the following witnesses: John Taylor, a licensed professional surveyor; Joseph Gierlach, the director of public works for Neshannock Township; Donald Magno, a neighboring property owner; Ronald Wethli, a private investigator; Susan Wethli, wife of Ronald Wethli; Anthony Antonelli, a licensed general contractor; Samual Kamin, a licensed real estate attorney; Louise Geer Herman; and Richard Moss. See TCO at 4; N.T., 3/11/22, at 9-10; N.T., 6/30/22, at 4, 18-19, 43, 49-50; N.T., 7/1/22, at 8; N.T., 10/4/22, at 52-54;
On October 25, 2024, the trial court entered an order declaring:
[The Hermans] have met their burden of proof for injunctive relief in this matter, and the [Mosses] shall forthwith have no right, title or interest in the 50[-foot] strip of property owned by the [Hermans], including but not limited to any easement, and that the prior easement which existed, has been extinguished by adverse possession of the same by the [Hermans] due to their construction of the sewer line transversing their 50[-]foot strip of property to the Neshannock Township Sewer Department tap-in.
Order, 10/25/24, at 1 (single page). The trial court explained its decision at length in an accompanying opinion. See TCO at 4-22. In sum, it found that the Mosses successfully proved they had an easement by necessity2 over the
The Mosses filed a timely notice of appeal on November 18, 2024, followed by a timely, court-ordered
- May a court of common pleas enter permanent injunctive relief as the result of a petition for preliminary injunction and hearings thereon, absent an agreement or stipulation of the parties and with no trial on the merits?
- May a court of common pleas broadly fashion injunctive relief that permanently decide[s] issues of title to real property, and permanently enjoins title to real property?
- Will an underground sewer line installed by fee owners of real property upon an appurtenant access easement, where the sewer line is unknown for the requisite statutory period by the owners of the easement, be deemed to be such an obstruction of the appurtenant easement so as to cause its loss by adverse possession, where there is also no other conduct, obstruction, or act by the fee owners, inconsistent with the easement appurtenant that is visible, continuous, hostile[,] exclusive or adverse and occurring for the requisite period of twenty-one (21) years?
- Does a court of common pleas possess subject matter jurisdiction when it determines and declares easement rights of the parties to the subject litigation over real property owned by a non-party that has not appeared before the court and over which there is no personal jurisdiction in the matter?
Before addressing the merits of the Mosses’ claims, we consider the Hermans’ assertion that this appeal should be quashed, because the appealability of an order implicates this Court‘s jurisdiction. See Knopick v. Boyle, 189 A.3d 432, 436 (Pa. Super. 2018).
In their brief, the Hermans argue that the Mosses failed to file post-verdict motions pursuant to
The Mosses contend, rather, that the October 25, 2024 order is an interlocutory order appealable as of right under
Regardless of whether the October 25, 2024 order constitutes a preliminary or permanent injunction — a question which is central to this appeal — we agree with the Mosses that it is appealable pursuant to Rule 311(a)(4). While this rule was originally designed to permit immediate appeals from preliminary injunctions, a party may also invoke Rule 311(a)(4) to appeal from a final injunction entered in a case in which claims for damages remain pending. See Thomas A. Robinson Family Ltd. P’ship v. Bioni, 178 A.3d 839, 846 (Pa. Super. 2017) (citations omitted); see also id. (explaining that “because the unresolved damages claims prevented the injunction from being a final order under [
Turning to the merits of the Mosses’ claims, we note that, “in general, appellate courts review a trial court order refusing or granting a preliminary injunction for an abuse of discretion.” Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003).4 Pursuant to this standard of review,
we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the trial court.
Id. (citations and internal brackets omitted).
In ruling on a preliminary injunction request, a trial court has “apparently reasonable grounds” for granting such relief “if it properly finds that all of the essential prerequisites are satisfied.” Synthes USA Sales, LLC v. Harrison, 83 A.3d 242, 249 (Pa. Super. 2013) (citations omitted).
There are six essential prerequisites that a party must establish prior to obtaining preliminary injunctive relief. The party must show: 1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; 2) that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings; 3) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; 4) that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits; 5) that the inunction it seeks is reasonably suited to abate the offending activity; and 6) that a preliminary injunction will not adversely affect the public interest. The burden is on the party who requested preliminary injunctive relief.
Warehime, ... 860 A.2d at 46-47 (citation omitted). A decision addressing a request for a preliminary injunction thus requires extensive fact-finding by the trial court because the moving party must establish it is likely to prevail on the merits. See Summit, 828 A.2d at 1001.... Simply, the moving party must establish a prima facie right to relief. If the moving party‘s right to relief is unclear, then a preliminary injunction should not issue.
Id. at 249-50 (internal quotation marks, footnote, and some citations omitted); see also Cnty. of Allegheny v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988) (“For a preliminary injunction to issue, every one of the prerequisites must be established; if the petitioner fails to establish any one of them, there is no need to address the others.“).
In their first claim, the Mosses essentially argue that the trial court erred by entering a permanent injunction divesting their right, title, and interest in the 50-foot strip of land, i.e., Ellgass Lane, and determining that any easement enjoyed by the Mosses has been extinguished by adverse possession, because the proceedings before the court were for preliminary injunctive relief. See Mosses’ Brief at 17, 22-23; see also id. at 20-21 (asserting that
In considering the Mosses’ argument, we remain mindful that the purpose of a preliminary injunction is “to preserve the status quo and prevent imminent and irreparable harm which might occur before the merits of the case can be heard and determined.” Soja v. Factoryville Sportsmen‘s Club, 522 A.2d 1129, 1131 (Pa. Super. 1987). The status quo should be preserved by restoring the last peaceable, noncontested status which preceded the controversy. Id. (citation omitted). We are also cognizant that a preliminary injunction is considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought. Id. (citation omitted).
The case then proceeds for a final hearing on the merits. “This final disposition is independent of the court‘s prior determination as to the plaintiff‘s right to preliminary relief.” Soja, 522 A.2d at 1131. For instance, “[t]he request for a preliminary injunction turns on the presence of imminent, irreparable harm. However, even if such a threat is not present, the plaintiff may still be entitled to prevail on the merits of his claim and obtain a final injunction.” Id. at 1133. Thus, it is evident that separate standards govern a request for a preliminary injunction and a request for permanent injunctive relief. The right to preliminary relief is based on the imminence of irreparable harm, whereas a permanent injunction is warranted to prevent a legal wrong for which there is no adequate redress at law. Id. at 1131; see also WellSpan Health v. Bayliss, 869 A.2d 990, 995 (Pa. Super. 2005) (“[I]n contrast to a preliminary injunction, a permanent injunction does not require a showing of irreparable harm or the need for immediate relief. Rather, the plaintiff must show that an actual and substantial injury has occurred and/or is threatened in the future.“) (citations omitted).
Consequently, Pennsylvania appellate courts have consistently held that “it is improper for the trial judge to treat a hearing on an application for a
Certainly, it is unfair for a court to determine an action based upon a different legal standard than that by which the litigants believed themselves to have been governed. It is also unfair to reach a final decision after a preliminary proceeding. A litigant may not prepare as completely as he would [have] had he realized that he was not going to receive a second chance to present his case.
Soja, 522 A.2d at 1133; see also Warehime, 860 A.2d at 46 (“The mere holding of hearings with regard to a motion for a preliminary injunction does not somehow morph that motion into a request for a permanent injunction.“); Berger By and Through Berger v. West Jefferson Hill Sch. Dist., 669 A.2d 1084, 1086 (Pa. Cmwlth. 1995) (explaining that, unless the parties stipulate to the contrary, a court may not integrate proceedings involving a preliminary injunction and a request for a final injunction, because each of these proceedings is governed by separate and distinct standards).
Applying the foregoing principles and rules of procedure to the case sub judice, it is apparent that the multiple evidentiary hearings held below, as well as the oral argument on June 24, 2024, were pertaining to the Hermans’ request for a preliminary injunction. Rule 1531 requires a hearing on the continuance of an ex parte preliminary injunction and, after such hearing,
Based on our review of the record, it is also evident that the parties were proceeding with the understanding that the issue before the trial court was the Hermans’ request for a preliminary injunction. For instance, the Hermans’ memorandum filed prior to oral argument is replete with evidence that they were arguing for preliminary injunctive relief pending the outcome of their underlying trespass action. See, e.g., Hermans’ Memorandum of Law at 22 (listing the six essential prerequisites for obtaining a preliminary injunction); id. at 23 (stating that the Hermans are “seeking a preliminary injunction“); id. at 37 (noting that in order to sustain a preliminary injunction,
During oral argument, the Hermans’ counsel stated to the court:
And, remember, this isn‘t about the ultimate issue in this case. This is about whether or not we need an injunction to stop any further proceedings while we litigate the underlying case.... And we haven‘t litigated the issue with regards to – in trial, whether or not there is an easement.
N.T., 6/24/24, at 36-37 (emphasis added). In closing, he argued:
So it is the position of the [Hermans] that the court should grant the injunctive relief which is the subject of these hearings, that there will be immediate and irreparable harm, irreparable harm to this property if he‘s allowed to proceed because he will destroy a sewer line to a house, he will create all kinds of other problems with regards to flooding in the area for the other people involved, and he doesn‘t have an easement; it‘s been extinguished. So I believe that we have met our burden to prove that injunctive relief is appropriate by a preponderance of the evidence.
Id. at 48-49 (emphasis added); see also WellSpan Health, 869 A.2d at 995 (noting that a permanent injunction does not require a showing of irreparable harm or the need for immediate relief); Soja, 522 A.2d at 1131 (“The request for a preliminary injunction turns on the presence of imminent, irreparable harm.“).
- Is the injunction necessary to prevent irreparable harm to the [Hermans]?
- Will the injunction restore the parties to their status quo as it existed before the alleged wrongful acts of the [Mosses]?
- Will greater injury result from a refusal to grant the injunction than granting the injunction?
- Is the movant[‘]s right to injunctive relief clear?
Id. at 4; see also id. at 20-22 (explaining the trial court‘s analysis of these four factors). Notably absent from the trial court‘s analysis are the questions regarding whether the injunction sought “is reasonably suited to abate the offending activity,” and whether a preliminary injunction will “adversely affect the public interest[,]” which are prerequisites to granting a preliminary
Additionally, the trial court‘s October 25, 2024 order broadly declared that the Mosses “shall forthwith have no right, title or interest in the 50[-]foot strip of property owned by the [Hermans,]” and that an easement had existed, but that said easement had been distinguished by adverse possession. Order, 10/25/24, at 1 (single page). These declarations are permanent in nature and go to the merits of the underlying trespass action. See Oberholzer v. Galapo, 274 A.3d 738, 746 (Pa. Super. 2022) (“A permanent injunction is a permanent order requiring an individual or entity to comply with mandatory conditions imposed by the court.“); Naus, 441 A.2d at 212 (determining that the trial court‘s order constituted a permanent injunction where the relief granted went beyond merely preserving the status quo). The law is clear that, absent a stipulation by the parties to treat the preliminary injunction proceedings as a final hearing on the merits and basis for a permanent injunction, such relief is improper. See Santoro, supra; Soja, supra; Naus, supra; see also Big Bass Lake Cmty. Assʼn v. Warren, 950 A.2d 1137, 1148-49 (Pa. Cmwlth. 2008) (determining that where the parties’ discussion on the record regarding the scope of the hearing did not memorialize an agreement between the parties to make the preliminary injunction hearing the final hearing on the merits, the trial court erred in granting a permanent injunction).
[THE MOSSES’ COUNSEL]: Mr. Herman does have a declaratory judgment action that is filed. It‘s like ... it‘s right behind this because when he wasn‘t getting anywhere with this case he immediately filed that.
[THE COURT]: Is that a separate case number?
[THE MOSSES’ COUNSEL]: Yes. Yes, a separate case number. And I felt that I could get all the testimony in in one fell swoop and save my client the continued jumping over the hoops to get to this issue.
So I think that we can get to this issue, and I asked for equity because I think the court can make a decision and not grant the injunction and to give an opinion that there is a valid easement that has not been terminated by adverse possession.
Hermans’ Brief at 18-19 (cleaned up); see also N.T., 6/24/24, at 55.
At best, the foregoing statement merely reflects a desire on the part of the Mosses’ counsel to treat the hearing as a final hearing on the merits. The Hermans fail to point to any evidence that they agreed to the same. See Commonwealth v. Beshore, 916 A.2d 1128 (Pa. Super. 2007) (noting that it is not our job to scour the record to find evidence to support an argument). In fact, the Hermans addressed the above comments made by Mosses’ counsel in a reply brief that they filed after the oral argument. Therein, the Hermans stated that during the June 24, 2024 hearing, the Mosses’ counsel “requested for the first time that the court ... make a final judgment on the complaint in
These hearings were held relative to injunctive relief. The [Hermans] did not present[,] nor w[ere they] put on notice[,] that all the necessary proof to prove the actual action would be presented before [the trial] court. The record does not reflect why the [Hermans] would assume otherwise. More importantly[,] discovery was never had in this matter and there are questions which could be further resolved with regards to the issues before this honorable court with discovery. ... [T]here was no bench trial in this matter[,] ... discovery was not accomplished[,] and the [Hermans] would be gravely prejudiced if the court at this late stage where hearings were conducted on injunctive relief made final determinations on all of the issues set forth before the court.
Id. at 11-12 (cleaned up); see also id. at 13 (acknowledging that there were numerous hearings in this matter, but stating that the testimony presented at those hearings was solely for the purpose of an injunction); id. (requesting that the court grant the injunctive relief sought by the Hermans); Petition at 4 (seeking a preliminary injunction prohibiting the Mosses from entering onto the Hermans’ property and from doing anything to change or alter said property). Thus, we deem the Hermans’ argument regarding the existence of a stipulation disingenuous.
We recognize that the trial court was required to determine if the Hermans produced substantial, credible evidence in support of their trespass claim, because it could only grant them preliminary injunctive relief if it was satisfied that they have a clear right to relief. See Santoro, 781 A.2d at
Accordingly, we conclude that the trial court improperly granted permanent injunctive relief on a preliminary injunction petition. See Santoro, supra; Soja, supra.; see also Pa. Interscholastic Athletic Ass‘n, 463 A.2d at 1200 (concluding that the trial court‘s order granting a permanent injunction following its entry of an ex parte preliminary injunction was not authorized by
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
DATE: 10/02/2025