J-S04017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT A. MYRICK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHIRLEY L. MACK, SANDRA ALTING AND
ROBERT L. DEEDS, JR.,
Appellees No. 713 MDA 2014
Appeal from the Judgment entered May 14, 2014,
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 08-691
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 09, 2015
Robert A. Myrick, (“Appellant”), appeals from the judgment entered in
favor of Shirley L. Mack, Sandra Alting, and Robert L. Deeds, Jr.,
(collectively “Landowners”). We affirm.
The trial court set forth the following factual and procedural
background relative to this action:
[Appellant] is the owner of a property having
approximately 10.698 acres and located in Robeson Township,
Berks County, Pennsylvania that he purchased from James J.
Hartman and John A. Hartman (“[Appellant’s] Tract #1”).
[Appellant] is also the owner by the entireties with his wife, Amy
M. Myrick, of two additional tracts of property totaling
approximately 46 acres and located in Robeson Township, Berks
County, Pennsylvania. These two tracts were purchased by
[Appellant] and his wife from George L. Weiler and Carol J.
Weiler (“Weiler Farm”).
*Retired Senior Judge assigned to Superior Court.
J-S04017-15
[Landowners] are owners as tenants in common of
property having approximately 11.197 acres and located in
Robeson Township, Berks County, Pennsylvania (“[Landowners’]
Property #1”). [Landowners] are also owners as tenants in
common of property having approximately 34.435 acres and
located in Robeson Township, Berks County, Pennsylvania
(“[Landowners’] Property #2”).
[Landowners’] Property #1 is next to and abuts
[Landowners’] Property #2. [Landowners’] Property #1 and
[Landowners’] Property #2 are collectively part of Willow Springs
Phase IV, a 17 lot subdivision (“Willow Subdivision”).
[Landowners’] Property #1 abuts and is directly next to
[Appellant’s] Tract #1. [Appellant] argues in the above
docketed action that he has an implied easement from his
property, [Appellant’s Tract] #1, which he individually owns,
over [Landowners’] properties to Zion Road by reason of a
common ownership of all the properties by Joseph Espenship in
1836. This Court held a nonjury trial on the issue of whether
[Appellant] has an implied easement over [Landowners’]
properties and issued a Verdict on January 24, 2014, finding
[Appellant] does not have an easement over [Landowners’]
properties. On February 20, 2014, [Appellant] filed a Notice of
Appeal of this Court's decision and subsequently, filed a Concise
Statement of Errors Complained of on Appeal on March 17,
2014. This appeal was premature as this Court had not ruled on
[Appellant’s] post-trial motions. On April 9, 2014, this Court
denied [Appellant’s] Motion for Post Trial Relief and [Appellant]
then filed another Notice of Appeal of this Court's April, 9, 2014
Order denying post trial relief. The Superior Court issued an
Order on May 8, 2014 directing [A]ppellant to enter judgment
and the notice of appeal previously filed to be treated as filed in
this case after the date of entry of judgment. Judgment on this
Court's verdict in favor of [Landowners] and against [Appellant]
was entered on May 14, 2014.
Trial Court Opinion, 7/28/14, at 1-2.
Appellant presents the following seven issues for our review:
1. The Court erred in making no findings as to the existence of
the dominant and servient tenement at the time of separation of
title, nor on the necessity that existed at that time, nor that the
Appellant’s property was landlocked and an implied easement
-2-
J-S04017-15
across the servient tenement property was necessary to the
beneficial enjoyment of the Appellant’s property.
2. The Judge's decision and verdict that there was no implied
easement across [Landowners’] property was contrary to the
weight and sufficiency of the evidence presented and proven at
trial.
3. The Judge's decision and verdict completely ignored the
opinion of the expert witness that an easement by implication
existed at the time of the severance of title, was for the benefit
of the dominant tenant and burdened the servient tenant, that
visible lanes showed passage from the dominant tenement
across the servient tenement that were there for many years
and the servient tenement should provide access to the
dominant tenement.
4. The Judge erred in considering that [Appellant’s] 10.667 acres
had legal access to the public road via jointly held property of
[Appellant] and Mrs. Myrick when their jointly held property was
not the servient tenement (and was never part of the chain of
the Espenship property prior to 1836) and erred by not allowing
later additional evidence found of the Penn family real estate
patent in the 1700s which verifies that the jointly held Myrick
property was never part of the Espenship property.
5. The Judge, as raised by Post Trial motion, should have had a
view of the property to determine whether or not there were
equitable principles that would allow the easement by
implication.
6. The Judge incorrectly ruled that proof of an implied easement
created by severance of title was dependent on continuous use,
and actual or constructive notice, rather than the test of
"reasonable necessity."
7. The Trial Judge erred in implicitly ruling that the Hartman
(now [Appellant’s]) property was not landlocked because
[Appellant] and Mrs. Myrick could grant an easement across
their land to the public road, even though their jointly held
property was not the servient tenement, and the implied
easement was only particular to and ran with the land (the
10.678 tract for its benefit) and burdened only the Deeds
property.
-3-
J-S04017-15
Appellant’s Brief at 3-5. Appellant did not separate his argument into
separate sections corresponding to the seven issues he raises on appeal.
Therefore, since Appellant has discussed his issues in a singular fashion, we
shall likewise address them together.
We recognize:
[A]ppellate review of equity matters is limited to a
determination of whether the chancellor committed an error of
law or abused his discretion. The scope of review of a final
decree in equity is limited and will not be disturbed unless it is
unsupported by the evidence or demonstrably capricious.
Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000) (internal citation
omitted). Moreover,
[The] findings of the trial judge in a non-jury case must be
given the same weight and effect on appeal as a verdict of a jury
and will not be disturbed on appeal absent error of law or abuse
of discretion. When this court reviews the findings of the trial
judge, the evidence is viewed in the light most favorable to the
victorious party below and all evidence and proper inferences
favorable to that party must be taken as true and all unfavorable
inferences rejected.
PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001)
(internal citation omitted). Framing our analysis within the context of the
foregoing standards, and finding no trial court error of law or abuse of
discretion, we affirm the trial court’s judgment in favor of Landowners.
-4-
J-S04017-15
In a case where we found that an easement by implication at
severance of title did exist over an appellant-landowner’s property, we
explained the following relevant principles:
In Burns Manufacturing v. Boehm, 467 Pa. 307, 313-14, 356
A.2d 763, 767 (1976), our Supreme Court stated:
It has long been held in this Commonwealth that although
the language of a granting clause does not contain an
express reservation of an easement in favor of the grantor,
such an interest may be reserved by implication, and this
is so notwithstanding that the easement is not essential for
the beneficial use of the property. See, e.g., Tosh v.
Witts, 381 Pa. 255, 258, 113 A.2d 226 (1955);
Philadelphia Steel Abrasive Co. v. Gedicke Sons, 343 Pa.
524, 528, 23 A.2d 490 (1942); Nauman v. Treen Box Co.,
280 Pa. 97, 100, 124 A. 349 (1924); Liquid Carbonic Co.
v. Wallace, 219 Pa. 457, 459, 68 A. 1021 (1908); Kieffer
v. Imhoff, 26 Pa. 438, 443 (1856). See also Restatement
of Property § 476 (1944); Powell on Real Property § 411
(1975). The circumstances which will give rise to an
impliedly reserved easement have been concisely put by
Chief Justice Horace Stern speaking for the Court in Tosh
v. Witts, supra:
“[W]here an owner of land subjects part of it to an open,
visible, permanent and continuous servitude or easement
in favor of another part and then aliens either, the
purchaser takes subject to the burden [or] the benefit as
the case may be, and this is irrespective of whether or not
the easement constituted a necessary right of way.” Tosh
v. Witts, supra, 381 Pa. at 258, 113 A.2d at 228.
Burns, at 313, 356 A.2d at 767 (footnote omitted). In a
footnote, our Supreme Court in Burns noted that easements by
implied reservation…are based upon the theory that “continuous
use of a permanent right-of-way gives rise to the implication
that the parties intended that such use would continue,
notwithstanding the absence of necessity for the use.” Id. [at
313 n.4, 356 A.2d at 767 n. 4].
In Mann-Hoff v. Boyer, 413 Pa.Super. 1, 604 A.2d 703
(1992), this Court stated:
-5-
J-S04017-15
Although the [Supreme Court's discussion in Burns]
conveys a brief summary of the concept of easement by
implication, other Pennsylvania cases not cited by the trial
court provide a much more detailed description of this
concept. We find the following statement of the proper
method of analyzing a claim of easement by implication
particularly elucidating:
In deciding whether an easement has been created by
implication, the Pennsylvania courts have used two
different tests, the traditional test and the Restatement
test.
The traditional test has been described as follows:
“Three things are regarded as essential to create an
easement by implication on the severance of the unity
of ownership in an estate; first, a separation of title;
second, that, before the separation takes place, the use
which gives rise to the easement, shall have been so
long continued, and so obvious or manifest, as to show
that it was meant to be permanent; and third, that the
easement shall be necessary to the beneficial
enjoyment of the land granted or retained. To these
three, another essential element is sometimes added,-
that the servitude shall be continuous and self-acting,
as distinguished from discontinuous and used only from
time to time.”
[Becker v. Rittenhouse], [297 Pa. 317] at 345, 147 A. [51]
at 53. See also DePietro v. Triano, 167 Pa.Super. 29, 31-
32, 74 A.2d 710-11 (1950).
The view expressed in the RESTATEMENT OF PROPERTY
§ 474 [sic] and expressly adopted in Pennsylvania in
Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976),
“emphasizes a balancing approach, designed to ascertain
the actual or implied intention of the parties. No single
factor under the Restatement approach is dispositive.
Thus, the Restatement approach and the more restrictive
tests ... co-exist in Pennsylvania.” Id. at 5 n. 2, 359 A.2d
at 400 n. 2. See also Lerner v. Poulos, 412 Pa. 388, 194
A.2d 874 (1963); Schwoyer v. Smith, 388 Pa. 637, 131
A.2d 385 (1957); Spaeder v. Tabak, 170 Pa.Super. 392,
85 A.2d 654 (1952).
-6-
J-S04017-15
Mann-Hoff, 604 A.2d at 706-07. See also Possessky v. Diem,
440 Pa.Super. 387, 655 A.2d 1004 (1995). In a footnote, the
Mann-Hoff court further noted that the discussion in Burns did
not require that the proponent of an easement by implication
show that the claimed easement was “necessary”. Id. at 708 n.
4.
***
Our Supreme Court’s most recent discussion of easements
by implication at severance of title appears in Bucciarelli v.
DeLisa, 547 Pa. 431, 691 A.2d 446 (1997). []
***
Our Supreme Court granted allowance of appeal to
determine whether an easement by implication was created at
the time of severance of title and whether DeLisa had actual
notice of the existence of the right of way over the property
when he purchased it. Answering the second issue first, the high
court, while agreeing that the trial court did not specifically find
facts to support its conclusion that an easement by implication at
severance of title was created, nevertheless held that the trial
court had made sufficient factual findings to support its
conclusion that DeLisa had actual notice of the existence and use
of Cottage Road prior to his purchase of the twenty-acre tract
from Raymond.
Our Supreme Court found this prior use important to the
determination of whether an implied easement was created
because:
The effect of the prior use as a circumstance in implying,
upon a severance of possession by conveyance, an
easement results from an inference as to the intention of
the parties. To draw such an inference the prior use must
have been known to the parties at the time of the
conveyance, or, at least, have been within the possibility
of their knowledge at that time. Each party to a
conveyance is bound not merely to what he intended, but
also to what he might reasonably have foreseen the other
party to the conveyance expected. Parties to a conveyance
may, therefore, be assumed to intend the continuance of
uses known to them which are in considerable degree
necessary to the continued usefulness of the land. Also
-7-
J-S04017-15
they will be assumed to know and to contemplate the
continuance of reasonably necessary uses which have so
altered the premises as to make them apparent upon
reasonably prudent investigation....
Bucciarelli, at 436, 691 A.2d at 448 (quoting Restatement of
Property, § 476, Comment j). In a footnote, the high court
noted that while it “has never specifically adopted Restatement
of Property § 476 and we decline to do so now, for § 476 is
merely a list of frequently encountered considerations as to
whether an easement by implication at severance of title was
created. Courts may, nevertheless, find the section useful and
persuasive in analyzing cases like this.” Id. at 437 n. 1, 691
A.2d at 448 n. 1.
Our Supreme Court then quoted the language of Burns,
supra, and determined that all of the requirements of an
easement by implication at severance of title were present in
Bucciarelli. With regard to the parties' intent, the high court
found that Mrs. Keene and Raymond clearly intended the
easement to continue. In support of this conclusion, the
Bucciarelli court noted that not only did Raymond assist his
mother in creating the subdivision plan, but he also allowed the
owners of the lakeside lots to use Cottage Road during the time
period in which he owned the twenty-acre tract. The Bucciarelli
court then considered whether the use of Cottage Road was
open, visible, permanent and continuous. Relying primarily upon
photographic evidence of record, as well as the testimony of
DeLisa's neighbor who testified that he could see the road from
his nearby property, the high court concluded that use of the
easement was open, visible and permanent.
With regard to the requirement that the use be continuous,
the court first noted the testimony of various witnesses that
indicated that Cottage Road had been used as early as 1976, as
well as DeLisa's own testimony that he had seen cars use the
road over the last ten years to get to the lakeside cottages. The
high court referenced a treatise for the proposition that:
The requirement that the quasi-easement must have been
“permanent” or “continuous” simply means that the use
involved shall not have been occasional, accidental or
temporary. This means the use shall have been of such a
character as to enable the claimant to rely reasonably
upon the continuance of such use.... It is submitted that ...
-8-
J-S04017-15
any well-defined route should be held to satisfy the
“permanent” or “continuous” prerequisite for implication.
Bucciarelli, at 439, 691 A.2d at 449-450 (citing 4 Powell on Real
Property § 34.08[2][c] (1996)). The Bucciarelli court stated its
agreement with this analysis of the continuous requirement and
held that the road at issue in the case before it, a single lane dirt
road that was approximately twenty feet wide and had been in
existence for at least twenty years, was well-defined and
permanent, and that the evidence, therefore, was sufficient to
support a finding of continuousness.
Summarizing its conclusions, the Bucciarelli court
concluded that:
The requirements stated above have as their purpose the
creation of a test to determine whether an easement was
intended at severance and whether the person against
whom the easement is asserted had notice, actual or
constructive, that such an easement existed. In this case,
the trial court found that DeLisa had actual notice and the
record supports this finding. Additionally, the evidence
supports a finding that the grantor, Mrs. Keene, intended
to create an easement at severance of the title and that
the grantee, her son, was aware of this intent and, after
the conveyance, acted in accord with the existence of the
easement.
Thus, since the evidence supports a finding of intention to
create the easement and a finding that DeLisa purchased
the land knowing of the existence of the easement, an
easement by implication at severance was created and is
binding against DeLisa.
Bucciarelli, at 439-40, 691 A.2d at 450. Thus, our Supreme
Court reversed this Court's disposition and reinstated the order
of the trial court that permanently enjoined DeLisa from
interfering with the use of Cottage Road by the owners of the
lakeside properties.
Daddona v. Thorpe, et al., 749 A.2d 475, 480-484 (Pa. Super. 2000).
-9-
J-S04017-15
Here, in granting judgment in favor of Landowners and against
Appellant, the trial court explained:
This Court held a trial and has concluded that the
circumstances for the finding of an implied easement in favor of
[Appellant] do not exist beyond the common ownership of the
properties in 1836. Joseph Espenship owned a 120 acre farm in
1836 that included the current [Appellant’s] Tract #1 and
[Landowners’] Properties #1 and #2. Joseph Espenship
subdivided and sold the property on or about April 1, 1836 to
several different owners. The properties that were sold
underwent several sales and were in different ways recombined
over the course of years to the present day. At present, there
are no improvements in place on [Appellant’s] Property #1 and
[Landowners’] Properties #1 and #2. The properties are all
wooded lots. Proving the intent of the original owner is nearly
impossible and no credible evidence was presented at trial
proving any intent.
[Appellant] contends there was a visible path that
traversed [Landowners’] property, the servient tenement, that
provided access to [Appellant’s Tract] #1, both at severance of
title and currently. Whether there was any defined driveway,
road or other access between the properties prior to the time of
the severance in 1836 is unknown. There is no reference in the
deeds for [Landowners’] Properties #1 and #2. [Landowners]
credibly stated they had no knowledge of any defined driveway,
road or otherwise for access from [Appellant’s Tract] #1 over
and through [Landowners’ Properties] #1 and #2. This Court
finds credible [Landowners’] argument that [Appellant] has other
means of accessing his property by use of other connecting
properties in which he has an ownership interest. It was
established that throughout the course of this litigation,
[Appellant] has requested an easement at several locations.
This lends credibility to the argument that no fixed, visible, open,
and continuously used easement exists.
Additionally, [Appellant’s] expert testified that there is no
express easement in favor of [Appellant’s Tract] #1 in the chain
of title for the collective properties. [Appellant] himself admitted
at trial that he has not used [Landowners’] properties for access
to [Appellant’s Tract] #1. This Court finds credible the
testimony that [Appellant] has two possible points of access to
- 10 -
J-S04017-15
[Appellant’s Tract] #1 through the use of properties he jointly
owns with his wife. [Appellant] argues that the other access
points are not viable because of the length of the driveways that
would be needed and the cost to construct them. Put simply,
[Appellant] attempts to use the difference in ownership of his
properties to advance the argument that [Appellant’s Tract] #1
is landlocked and any access they would have through their
Weiler Farm property would cease to exist if [Appellant] and his
wife decided to sell the Weiler Farm property. This Court does
not find this argument convincing because [Appellant’s] expert
testified at trial that any access over the Weiler Farm property
could be expressly reserved as an easement if the Weiler Farm
property was ever sold.
[Appellant] has not used [Landowners’] property at
anytime to gain access to Zion Road since [Appellant’s]
ownership began in 2006. Furthermore, no one has used any
means of access through [Landowners’] property since 1990,
when [Landowners’] took ownership of their property. No
credible evidence was presented at trial proving that
[Landowners] had any kind of actual or constructive notice of an
easement over their properties to [Appellant’s Tract] #1.
As counsel for [Landowners] cites, “[w]here an alleged
easement is not the subject of a deed, grant or conveyance, duly
recorded, and is not open, apparent, or visible, it cannot be
enforced against subsequent innocent purchasers of the servient
tract unless it is proven and established that the purchasers had
actual notice that the property was subject to the servitude.”
Fidelity-Philadelphia Trust Co., 67 Pa. D.&C. at 360.
This Court is persuaded by [Landowners’] assertion that
they were innocent purchasers of property against which
[Appellant] wants to fix an easement even though there is a lack
of credible evidence that anything physically exists in that
regard. The tendency of the courts is to discourage implied
grants of easements, since the obvious result, especially in
urban communities, is to fetter estates and retard building and
improvements, and is in violation of the policy of the recording
acts. Becker v. Rittenhouse, 297 Pa. 317, 325-326, 147 A. 51,
21 (1929). [Landowners] did not close an existing driveway or
long existing road used for access to [Appellant’s Tract] #1. []
Trial Court Opinion, 7/28/14, at 4-6.
- 11 -
J-S04017-15
Based on our review of the record, and consonant with Daddona and
the relevant authorities cited therein, we affirm the trial court’s judgment in
favor of Landowners and against Appellant because Appellant is not entitled
to an easement. We recognize that, as noted in Daddona, it would not be
dispositive of this appeal whether the easement is “essential to the beneficial
use of the property,” or even a “necessary right-of-way.” Daddona, 749
A.2d at 480 citing Burns, 356 A.2d at 767. By contrast, significant to our
disposition are the credibility determinations and factual findings of the trial
court, which are not contradicted by our review of the record, regarding the
use of the purported easement. In Daddona, we reiterated that “the use
which gives rise to the easement, shall have been so long[,] continued, and
so obvious or manifest, as to show that it was meant to be permanent …
[and that] another essential element is sometimes added, that the servitude
shall be continuous and self-acting, as distinguished from discontinuous and
used only from time to time.” Daddona, supra, at 481 citing inter alia
Becker, 147 A. at 53. Further, the Daddona Court, citing Bucciarelli,
explained that the requirement of “‘permanent’ or ‘continous’ [use] simply
means that the use involved shall not have been occasional, accidental, or
temporary.” Daddona, 749 A.2d at 484 citing Bucciarelli 691 A.2d at
449-450.
Here, we do not find that Appellant’s request for an easement meets
the use element. Appellant “has not used [Landowners'] property at
anytime to gain access to Zion Road since [Appellant’s] ownership began in
- 12 -
J-S04017-15
2006. Furthermore, no one has used any means of access through
[Landowners’] property since 1990, when [Landowners] took ownership of
their property.” Trial Court Opinion, 7/28/14, at 5-6. Further, the trial court
did not find “credible evidence … proving that [Landowners] had any kind of
actual or constructive notice of an easement over their properties to
[Appellant’s Tract] #1.” Id. at 6 (emphasis added).
In addition, Appellant’s request for an easement does not meet the
intent element to establish his entitlement to the easement. In contrast to
Bucciarelli, where the party contesting the easement had specifically
allowed the land to be used by the property owners seeking the easement,
Landowners have never expressly agreed to allow Appellant such use of their
land, despite discussions regarding Appellant’s requests for an easement.
See Bucciarelli, 691 A.2d at 438. Therefore, consonant with the foregoing
authorities, we affirm the trial court’s judgment in Landowners’ favor and
against Appellant.
We further find Appellant’s remaining claims of trial court error are
without merit. Appellant’s sufficiency challenge is waived because he failed
to seek a directed verdict at trial. See N.T., 12/16/13, at 41; 54; see also
Haan v. Wells, 103 A.3d 60, 68 (Pa. Super. 2014) (internal citation
omitted) (“Hence, it is clear that, in order to preserve a challenge to the
sufficiency of the evidence, [appellants] first were required in this non-jury
trial to move … for a … directed verdict. [Appellants] did not do so.
- 13 -
J-S04017-15
Consequently, any of [appellants’] challenges purporting to challenge the
sufficiency of the evidence … are waived.”).
As to Appellant’s weight challenge, we deny the same, and recognize:
Appellate review of a weight claim is a review of the [trial
court's] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination that the
verdict is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the
lower court's conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be
granted in the interest of justice.
Haan, supra, at 70. Our denial of Appellant’s weight claim acknowledges
the trial court’s role as the fact-finder in this non-jury trial, and the
deference to which the trial court is entitled. Brown v. Progressive
Insurance Co., 860 A.2d 493, 497 (Pa. Super. 2004) (internal citation
omitted) (“Concerning questions of credibility and weight accorded evidence
at trial, we will not substitute our judgment for that of the finder of fact.”).
Moreover, the trial court’s determination not to view the property is
akin to the admission of evidence, which the trial court had the discretion to
decline to perform, and which we find no basis to disturb. See American
Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa. Super. 2005).
Our review of the record further refutes Appellant’s contention that the
trial court “completely ignored the opinion of the expert witness.”
Appellant’s Brief at 4. Appellant’s claim that the trial court ignored expert
- 14 -
J-S04017-15
testimony is belied by the trial court’s reference in its opinion to Appellant’s
expert’s testimony. See Trial Court Opinion, 7/28/14, at 5 (“[Appellant’s]
expert testified that there is no express easement in favor of [Appellant’s
Tract] #1 in the chain of title for the collective properties.”). Further,
Appellant discounts that the trial court, as the fact finder in this non-jury
case, “is entitled to reject any and all evidence…” Neison v. Heimes, 653
A.2d 634, 636-37 (Pa. 1995) (internal citations omitted); see Randt v.
Abex Corp., 671 A.2d 228, 234 (Pa. Super. 1996) (internal citations
omitted) (“A [fact- finder] is entitled to believe all, part, or none of the
evidence presented. A [fact-finder] can believe any part of a witness'
testimony that they choose, and may disregard any portion of the testimony
that they disbelieve. Credibility determinations are for the [fact-finder]. A
new trial should not be granted on a mere conflict in the testimony.”).
Finally, we reject Appellant’s argument that the trial court erred “by
not allowing later additional evidence found of the Penn family real estate
patent in the 1700s which verifies that the jointly held [Appellant] property
was never part of the Espenship property.” Appellant’s Brief at 4.
Appellant’s assignment of trial court error is without merit as “[a]dmission of
evidence is within the sound discretion of the trial court and we review the
trial court’s determinations regarding the admissibility of evidence for an
abuse of discretion,” which the record does not reflect in this case.
American Future Systems, 872 A.2d at 1212 (Pa. Super. 2005).
- 15 -
J-S04017-15
In sum, we do not find any error of law or abuse of discretion in the
trial court’s determination that Appellant is not entitled to an implied
easement at severance of title over Landowners’ properties. We thus affirm
the trial court’s judgment against Appellant and in favor of Landowners.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
- 16 -