J-A09002-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MICHAEL C. ANDERSON : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TAMMY D. BRAWAND AND TERRY J. : BRAWAND IN THEIR CAPACITIES AS : EXECUTRICES OF THE ESTATE OF : No. 950 WDA 2024 WILLIAM H. BRAWAND : : Appellants : : : : : v. : : : COUNTY OF ELK :
Appeal from the Order Dated July 12, 2024 In the Court of Common Pleas of Elk County Civil Division at No(s): 2024-205
BEFORE: KUNSELMAN, J., NICHOLS, J., and LANE, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: June 10, 2025
Tammy Brawand and Terry Brawand, in their capacity as executrices of
the Estate of William Brawand, appeal from the order granting a preliminary
injunction against them and in favor of Michael Anderson. The Brawand Estate
argues that the trial court abused its discretion by granting the preliminary
injunction and by receiving expert testimony. Because the record contains
apparently reasonable grounds for the preliminary injunction and the trial
court did not abuse its discretion in accepting the expert testimony, we affirm. J-A09002-25
On April 5, 2024, Anderson filed a five-count complaint in ejectment
against the Brawand Estate. He filed a petition for a preliminary injunction
the same day. The County of Elk, Pennsylvania, petitioned to intervene on
April 17, 2024; the parties stipulated to the intervention. The Brawand Estate
filed preliminary objections to the complaint and an answer to the preliminary
injunction petition on April 29, 2024. The trial court heard the preliminary
injunction matter on July 11 and 12, 2024.
We recount only the facts necessary to resolve the issues on appeal.
Anderson owns the surface of approximately 100 to 106 acres of land in Elk
County. The Brawand Estate owns a tract immediately to the west.
Anderson’s predecessor provided a subsurface oil and gas lease to the
Brawand Estate’s predecessor. The Brawand Estate now claims it has
assumed the oil and gas lease below Anderson’s land, and it operates three
wells there. The wells are accessible by a dirt or gravel road which, combined
with Anderson’s driveway, known as “Blackberry Lane,” forms a large loop
around Anderson’s house. The Brawands refer to this gravel road as the “lease
road.”
In 2022, Anderson allowed Elk County to place a temporary emergency
communications tower on Anderson’s property. The county, through Centre
Communications, placed the tower on a spot beside the gravel road.
Witnesses testified that the tower facilitates communication between
emergency responders in the mountainous terrain. To remain operational,
the tower requires regular maintenance and service.
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The current dispute between the parties arose when the Brawands
placed three barriers around the road connecting their wells. One blocks the
road proceeding counterclockwise (turning right from Blackberry Lane), while
the second and third are on either side of the tower proceeding clockwise
(turning left). The second barrier (“G-2”) is a locked gate, which prevents
vehicular traffic, but not foot traffic, from reaching the tower. The Brawand
Estate claims the barriers are necessary because it is concerned that
interference by trespassers could damage their wells, lines, and roads. The
Brawands observed that Anderson allows off-road vehicles on his property.
Anderson filed this action seeking, in part, removal of the barriers. At
the hearing on the preliminary injunction, Anderson presented testimony from
Samuel Harvey, whose education and experience are in the field of
“conventional shallow” oil and gas operations. Over the objection of the
Brawand Estate, Harvey was qualified as an expert and opined that the gates
were not necessary for operating oil and gas wells. Regarding the potential
harm to the Brawand Estate if the barriers were removed, Harvey assessed
the value of the three wells on Anderson’s property as less than $10,000.00.
In addition to their dispute about the barriers and the tower, the parties
dispute ownership of a piece of land that surveyor Todd Hendricks labeled the
“zone of encroachment.” This zone includes part of Rasselas Road, which
provides the only access to Blackberry Lane. Because the mail truck was
turning around in this zone, the Brawands asked that the postal service not
deliver mail to Anderson’s mailbox along Rasselas Road. Anderson agreed
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with the postmaster to temporarily receive his mail at the post office eight
miles away. The Brawands removed three of Anderson’s signs, including a
“162 Blackberry Road” sign. In this lawsuit, Anderson seeks to restore the
signs and access to his mailbox. He testified that an injunction is necessary
because the location of his house would not be obvious in an emergency.
After the hearing, the trial court granted Anderson’s motion for a
preliminary injunction against the Brawand Estate. It entered a four-part
order, essentially removing the gate leading to the tower, restoring access to
Anderson’s mailbox, allowing the signage, and requiring Anderson to post a
bond. Specifically, the order provides:
1. That the defendant is barred from placing a gate or locking a gate leading to the temporary radio tower, described in testimony as, “G-2”, or otherwise preventing access by landowner Michael Anderson, the County of Elk, Centre Communications or their subcontractors to the location of the communications tower for both operation of the tower or maintenance of the tower.
2. That the defendant is barred from interfering with the United States Postal Service’s delivery and receipt of mail by landowner Michael Anderson at the existing mailbox or any other mailbox placed in the same location along Rasselas Road.
3. That the defendants are barred from removing or interfering with the posting of a sign, not to exceed three square feet in surface area, indicating the address of the Anderson tract as “162 Blackberry Lane” along Rasselas Road.
4. Plaintiff shall be required to post a bond with the Court in the amount of $2000 to protect against any damage to the road surface or gas lines.
Order, 7/16/24, at 1.
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The Brawand Estate timely appealed. The Brawand Estate and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.1
The Brawand Estate presents two questions for review:
1. Did the trial court abuse its discretion in granting Anderson’s Petition for Temporary Injunction due to the fact that evidence presented by Anderson failed to satisfy one or more of the six legal elements necessary for the entry of a preliminary injunction, including, but not limited to: (1) establishing the injunction was necessary to prevent an irreparable harm that could not be compensated adequately by damages; (2) greater injury would result from refusing the injunction than granting it, and the issuance of an injunction would not substantially harm other interested parties; and (3) Anderson had a clear right to relief and was likely to prevail on the merits at trial?
2. Did the trial court abuse its discretion in allowing expert testimony and expert reports into the record over the timely objections of the Brawands’ counsel to said expert’s qualifications and subsequently relying on said expert opinions and reports in granting Anderson’s Petition?
See The Brawand Estate’s Brief at 4.
Preliminary Injunction – Tower Access
In their first issue, the Brawand Estate argues the trial court abused its
discretion by granting the preliminary injunction. They challenge the trial
court’s determination that Anderson met five of the six prerequisites to
warrant preliminary relief with respect to the gate on the road to the tower.
Appellate review of a preliminary injunction is “highly deferential” to the
trial court. CKHS, Inc. v. Prospect Med. Holdings, Inc., 329 A.3d 1204,
____________________________________________
1 Preliminarily, we note that we have jurisdiction to address these claims, as
an appeal may be taken as of right from an order granting an injunction. Pa.R.A.P. 311(a)(4).
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1211–12 (Pa. 2025) (citing Hicks v. Am. Nat. Gas Co., 57 A. 55, 55–56 (Pa.
1904)). In determining whether the trial court abused its discretion by
granting or denying a preliminary injunction, we “examine the record to
determine if there were any apparently reasonable grounds for the action of
the court below.” Porter v. Chevron Appalachia, LLC, 204 A.3d 411, 416
(Pa. Super. 2019) (citing Warehime v. Warehime, 860 A.2d 41, 61 (Pa.
2004)). Our scope of review is plenary. Id.
Pennsylvania law requires six “essential prerequisites” for a trial court
to grant a preliminary injunction. Summit Town Centre, Inc. v. Shoe Show
of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003).
First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Second, the party must show 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. Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking an injunction must show 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. Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity. Sixth and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest.
Id. (citations omitted).
We address each prerequisite in turn.
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1. An injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages.
As a threshold, a party moving for a preliminary injunction must show
“actual proof of irreparable harm.” CKHS, Inc., 328 A.3d at 1215 (quoting
New Castle Orthopedic Assocs. v. Burns, 392 A.2d 1383, 1387 (Pa.
1978)). The harm must be immediate, i.e., there must be a likelihood of an
injury before a court can fully adjudicate the merits. Panther Valley
Television Co. v. Summit Hill, 94 A.2d 735, 737 (Pa. 1953). Harm is
irreparable if it “will cause damage which can be estimated only by conjecture
and not by an accurate pecuniary standard.” CKHS, Inc., 328 A.3d at 1215
CKHS, Inc. is instructive. There, the plaintiffs sought to prevent the
defendants from transitioning a hospital from an emergency and acute care
hospital into a behavioral health facility. Id. at 1207–08. At a hearing on the
plaintiff’s petition for preliminary injunctive relief, the county public health
director testified that in her experience, the removal of a health care access
point from a community almost always negatively impacts its health
outcomes. Id. at 1208. However, she admitted she did not conduct studies,
collect data, or obtain a copy of the defendants’ transition plan. Id. at 1209.
The trial court granted a preliminary injunction, but the Commonwealth
Court reversed. Id. at 1209–11. Our sister court reasoned that the plaintiffs
failed to introduce “concrete evidence” of irreparable harm beyond mere
“speculation and hypothesis.” Id. at 1210.
The Supreme Court of Pennsylvania reversed the Commonwealth
Court’s order. Noting the “highly deferential” standard of review, the high
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court disavowed a “concrete evidence” requirement. Id. at 1215–20. Rather,
an appellate court must affirm a preliminary injunction if any apparently
reasonable grounds support the trial court’s findings. The public health
director’s opinion provided such a basis. Id. at 1216.
Here, the trial court reasoned that the tower contributes to the health
and safety of the residents and emergency responders in the area, particularly
in Jones Township, but the locked gate prevented important maintenance as
needed.
The testimony of Mr. Thor Lehman, of the Wilcox Volunteer Fire Company, established without question that the fire and ambulance services to the residents of the Jones Township area is directly and adversely impacted by the loss or unavailability of the subject tower. It is essential to the safety of the responders and to the availability of essential services to the rural residents, including, candidly, the [Brawands], who reside in Jones Township. Without the functioning radio tower, as established by Lehman, there are vast areas of Jones Township where vital communications would be lost.
The testimony of Karl Hosterman and Michael McAllister established that this sophisticated, modern equipment requires regular maintenance and service to ensure its continued operation. That service requires vehicle access to the site for maintenance equipment and parts. Workers cannot simply walk into the site.
The locked gate prevents this vital access and threatens the health and safety of the selfless volunteers, but also the rural residents in need of emergency services.
Trial Court Opinion, 10/7/24, at 2.
The testimony the trial court referenced provided apparently reasonable
grounds to determine that a preliminary injunction was needed to prevent the
loss of the tower from lack of maintenance or emergency access. The harm
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was (and is) immediate because the tower could have problems before the
trial court reaches a full adjudication of the merits. The harm was irreparable
because any damage from the failure of the tower could be estimated only by
conjecture. As in CKHS, Inc., the witnesses’ opinions on the potential for a
risk to public safety were an apparently reasonable basis for the trial court’s
finding as to the first prerequisite for a preliminary injunction.
2. Greater injury would result from refusing an injunction than from granting it, and an injunction will not substantially harm other interested parties in the proceedings.
The second prerequisite for a preliminary injunction requires the trial
court to “weigh[] and balance[] the rights” of the parties against the injury
that they could suffer due to injunctive relief. Ambrogi v. Reber, 932 A.2d
969, 977–78 (Pa. Super. 2007).
Here, the Brawand estate argues that trespassers going past the gate
would harm the pipelines and infrastructure necessary to heat the Brawands’
homes, whereas the only harm in keeping the gate locked is speculative.
We find that the trial court had an apparently reasonable basis to weigh
the relative harm in favor of Anderson. The articulated harm of a tower failure
caused by lack of access covers a broad group of responders and residents of
Jones Township. Conversely, the potential harm to the Brawand Estate if the
unlocked gate causes others to interfere with oil and gas equipment can be
measured against the bond the trial court required from Anderson. Notably,
the preliminary injunction does not require the Brawands to open the other
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gates on the property; the distance between the gates labeled as G-2 and G-
3 covers a relatively short portion of the road.
3. A preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.
“The status quo to be maintained by a preliminary injunction is the legal
status that preceded the pending controversy.” PennEnergy Res., LLC v.
MDS Energy Development, LLC, 325 A.3d 756, 771 (Pa. Super. 2024)
(quoting The York Group, Inc. v. Yorktowne Caskets, Inc., 924 A.2d
1234, 1244 (Pa. Super. 2007)).
The Brawand Estate argues that the true “wrongful” conduct was not
their locking the gate but rather Anderson’s unilaterally allowing Elk County
to install the tower. For purposes of the preliminary injunction analysis,
however, it was reasonable for the trial court to maintain the relative status
of the parties to before the Brawands prevented Elk County or anyone else
from accessing the portion of Anderson’s surface property by vehicle.
4. Anderson is likely to prevail on the merits.
The Brawand Estate argues that Anderson is not likely to prevail on his
ejectment action, as his ownership is limited to the surface. The oil and gas
lease is the dominant estate; as a practical matter, the subsurface owner must
“go upon the surface” to access the lower strata. Belden & Blake Corp. v.
Commonwealth, Dep’t of Conservation & Nat. Res., 969 A.2d 528, 563
(Pa. 2009) (ultimately quoting Chartiers Block Coal Co. v. Mellon, 25 A.
597, 598 (Pa. 1893)). The Brawand Estate contends that it has the right to
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“use the surface so far as may be necessary to carry on the work of [extracting
oil and gas], even to the exclusion of the owner of the soil.” Commonwealth,
Pa. Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1106 (Pa. Cmwlth.
2014) (quoting Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 511 (Pa.
Super. 2013)). They reason that the language of the oil and gas lease at issue
provides the right to control the “lease roads” and therefore to exclude
Anderson. Finally, the Brawands argue that Anderson cannot challenge their
claim to the lease because he has no interest in the subsurface ownership.
We conclude that the trial court had apparently reasonable grounds to
find that Anderson would likely prevail on the merits. The rights of subsurface
owners are “to be exercised with due regard to the owner of the surface.”
Chartiers, 25 A. at 598. Thus, an oil and gas lessee may not “choose
locations for the drilling of wells in utter disregard of the rights of the
landowner.” Gillespie v. Am. Zinc & Chem. Co., 93 A. 272, 274 (Pa. 1915).
The original lease from Anderson’s predecessor granted certain rights:
the exclusive right of drilling and operating [on his tract], for and producing oil and gas, and all rights necessary, convenient and incident thereto; such in part as the right to construct and maintain buildings, telegraph, telephone and pipe lines leading from adjoining lands on and across this leasehold and other lands of the Lessor, and similar rights for roadways and the right to use water, oil and gas, from the premises for operating purposes . . ..
First party waives all right to claim or hold any of the property or improvements placed or erected in or upon said land by the Lessee, as fixtures or as part of the realty . . . .
Brawand Estate’s Exhibit 3, admitted July 11, 2024 (emphasis added).
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It is not clear from the cases or the quoted language of the lease that
the Brawand Estate enjoys the right to install a locked gate to effectively block
all vehicular traffic past Anderson’s driveway. While a subsurface owner may
use the surface to exclude a surface owner, this right extends only “so far as
may be necessary” to access the underground resources. Seneca Res., 84
A.3d at 1106. Here, Samuel Harvey opined that the gates installed around
the tower had no function regarding oil and gas surface operations. Gate G-
2 specifically “certainly doesn’t” protect any oil and gas operations. N.T.,
7/11/24, at 62. This is an apparently reasonable basis for the trial court to
find, for purposes of the preliminary injunction, that Anderson is likely to
succeed on the merits. Finally, regarding standing, a surface owner “has a
right to demand proof of authority to enter upon his property.” August
Petroleum Co. 77B v. Casciola, 449 A.2d 735, 739 (Pa. Super. 1982).
5. The injunction is reasonably suited to abate the offending activity.
The Brawand Estate argues that requiring the gate to remain unlocked
exceeds what is necessary to allow access to the tower. Terry Brawand
testified to the estate’s willingness to provide a key to other interested parties.
The trial court had apparently reasonable grounds to determine the gate
provision of its preliminary injunction was reasonably suited to abate the lack
of access to the tower. Notably, the only gate the trial court ordered to remain
unlocked was the gate labeled as G-2. It appears from the map prepared by
Samuel Harvey that the only additional access from unlocking gate G-2 will
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be to gate G-3—precisely the stretch of road necessary to go from Anderson’s
driveway to the tower. Furthermore, the injunction requires Anderson to post
bond to protect against any potential harm to the Brawand Estate’s interest
in the road surface or gas lines. Thus, the injunction was reasonably tailored.
6. A preliminary injunction will not adversely affect the public interest.
The Brawand Estate does not contest the final prerequisite for a
preliminary injunction. This is for good reason, as access to the tower helps
facilitate emergency care. Because apparently reasonable grounds support
the trial court’s order that the gate remain unlocked, we affirm the first part
of the preliminary injunction.
Preliminary Injunction – Boundary Line
The Brawand Estate also challenges the second and third parts of the
preliminary injunction, which prohibit interference with Anderson’s mail
service and address sign along Rasselas Road. They argue that Anderson
failed to prove his ownership over the “zone of encroachment,” the area
claimed by both Anderson and the Brawand Estate. Specifically, the Brawand
Estate cites the following exchange as evidence that Anderson’s surveyor Todd
Hendricks surveyed the property according to Anderson’s preferred outcome
rather than the deeded language:
Q. Okay. Now Mr. Hendricks, you noted that you were measuring out an encroachment by the Brawands. What is the encroachment by the Brawands that you’re referencing?
A. Well, I was instructed by [Anderson’s attorney] to show something on the map that we -- this is what we determined --
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we weren’t sure what they were claiming, so we indicated a portion of the property off the east end that we felt might indicate what they were claiming or encroaching upon.
N.T., 7/11/24, at 35–36. The Brawand Estate observes that the “zone of
encroachment” would result in Anderson’s tract covering approximately 106
acres rather than the 100 acres indicated in the prior deeds of record.
We find that Todd Hendricks’ survey provided apparently reasonable
grounds for the trial court to determine that Anderson owns the surface of the
“zone of encroachment.” The quoted testimony above reflects that Hendricks’
uncertainty was about the claim of the Brawand Estate, not of Anderson. As
Hendricks testified, he found an original monument (iron pipe) at all four
corners of the area he drew as Anderson’s property. Furthermore, he noted
that acreage is the least important consideration in identifying property lines.
It was reasonable for the trial court to rely on Hendricks’ testimony in granting
the preliminary injunction as to the property dispute, and allowing the signage
and access to the mailbox.2
In sum, apparently reasonable grounds support the trial court’s
conclusion that Anderson is entitled to a preliminary injunction regarding the
2 Additionally, apparently reasonable grounds support the other prerequisites
for a preliminary injunction. The deprivation of an interest in real property is an irreparable harm, as “each parcel of real estate is unique.” Fraport Pittsburgh, Inc. v. Allegheny Cnty. Airport Auth., 296 A.3d 9, 18 (Pa. Super. 2023) (citing Peters v. Davis, 231 A.2d 748, 752 (Pa. 1967)). Anderson testified that he has to make a 16-mile round trip to the post office rather than use his mailbox. He has concerns about the lack of his street address sign in an emergency. The injunction is appropriately tailored to preserve Anderson’s ability to receive mail and emergency services pending a full resolution on the merits.
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gate, the mailbox, and the signage. Therefore, the Brawand Estate’s first
claim fails.
Expert Testimony
Second, the Brawand Estate argues the trial court abused its discretion
in accepting and relying on the testimony of Samuel Harvey, who provided an
opinion that the gates were not relevant to operating oil and gas wells and
who assessed the value of the three wells on Anderson’s property as less than
$10,000.00. The Brawand Estate asserts that Harvey’s experience with
shallow oil and gas wells did not provide him with specialized skill, training, or
expertise in the security of conventional oil and gas wells. They also challenge
Harvey’s failure to cite industry standards or methodology in reaching his
conclusions.
We review a trial court’s evidentiary rulings, including the admission of
expert testimony, for an abuse of discretion. Talmadge v. Ervin, 236 A.3d
1154, 1161 (Pa. Super. 2020) (citation omitted). Pennsylvania’s standard for
qualifying an expert witness is liberal: “whether the witness has any
reasonable pretension to specialized knowledge on the subject under
investigation. If he does, he may testify and the weight to be given to such
testimony is for the trier of fact to determine.” Miller v. Brass Rail Tavern,
Inc., 664 A.2d 525, 528 (Pa. 1995). A witness may thus be qualified as an
expert if the witness’ knowledge exceeds “the ordinary range of training,
knowledge, intelligence or experience.” Wright v. Residence Inn by
Marriott, Inc., 207 A.3d 970, 975–76 (Pa. Super. 2019); see Pa.R.E. 702.
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Here, the trial court did not abuse its discretion by qualifying Harvey as
an expert in “the operation and the placement and the protection and the
security of existing oil and gas wells.” N.T., 7/11/24, at 52. Harvey has two
degrees in geosciences and decades of experience with “conventional shallow”
oil and gas operations. Anderson’s Exhibit E, admitted 7/11/24. As Harvey
explained, this expertise concerns the type of wells located in northwestern
Pennsylvania. N.T., 7/11/24, at 53. He visited the property and provided
opinions based on that visit. We discern no abuse of discretion in the trial
court accepting this expert testimony.
Order affirmed.
DATE: 06/10/2025
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