J-A19042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOWARD P. & CAROL N. ANGSTADT AND IN THE SUPERIOR COURT OF
GARY L. & SHERRE A. GAERTNER AND PENNSYLVANIA
THOMAS D. & MICHELLE M.
MCLAUGHLIN
v.
GARY J. AND MELISSA FADDIS AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
ISAAC J. BOOTH AND UNKNOWN HEIRS
AND/OR ADMINISTRATORS OF THE
ESTATE OF WILHELMINA SMEDLEY AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
JAMES DAY
APPEAL OF: GARY J. AND MELISSA
No. 2605 EDA 2015
FADDIS
Appeal from the Judgment Entered September 15, 2015
in the Court of Common Pleas of Delaware County Civil Division
at No(s): 2012-005034
HOWARD P. & CAROL N. ANGSTADT AND IN THE SUPERIOR COURT OF
GARY L. & SHERRE A. GAERTNER AND PENNSYLVANIA
THOMAS D. & MICHELLE M.
MCLAUGHLIN
v.
GARY J. AND MELISSA FADDIS AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
ISAAC J. BOOTH AND UNKNOWN HEIRS
AND/OR ADMINISTRATORS OF THE
ESTATE OF WILHELMINA SMEDLEY AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
JAMES DAY
J-A19042-16
APPEAL OF: HOWARD P. & CAROL N.
ANGSTADT AND GARY L. & SHERRE A. No. 2606 EDA 2015
GAERTNER
Appeal from the Judgment Entered September 15, 2015
in the Court of Common Pleas of Delaware County Civil Division
at No(s): 2012-005034
BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 28, 2016
Appellants/Cross-Appellees, Gary J. and Melissa Faddis (“Faddis”),
appeal from the judgment1 entered in the Delaware County Court of
Common Pleas finding that they had abandoned any express easement
and/or any other form of easement proving they had a right of ingress and
egress along Copes Lane. Appellees/Cross-Appellants, Howard P. & Carol N.
Angstadt (“Angstadt”), and Gary L. & Sherre A. Gaertner (“Gaertner”),
appeal from the judgment entered in the Delaware County Court of Common
Pleas denying their claims of adverse possession of the parcel known as
Copes Lane. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Although the parties filed their appeals after the denial of their post-trial
motions, which pre-dated the entry of judgment, the appeals were perfected
when judgment was entered on September 15, 2015. See Pa.R.A.P.
905(a)(5); Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d
511, 514-15 (Pa. Super. 1995) (en banc) (stating that appellate courts may
“regard as done that which ought to have been done”); see also Levitt v.
Patrick, 976 A.2d 581, 584 n.2 (Pa. Super. 2009) (stating that appeal
properly lies from the entry of judgment, not from order denying post-trial
motion).
-2-
J-A19042-16
We adopt the facts set forth by the trial court’s opinion. See Trial Ct.
Op., 10/21/15, at 7-11.2 The parties stipulated, inter alia, to the following:
15. The September 26, 1991 Faddis Deed does not make
any reference to Copes Lane.
16. On or about May 7, 2012, Gary J. Faddis and Melissa
Faddis recorded a Deed dated April 4, 2012 from
themselves to themselves . . . .
17. The May 7, 2012 deed added the following language
to their prior Deed: “Together with the right of ingress and
egress to and from said premises to Edgmont Road along
property of Wilhelmine Smedley AND Copes Lane as the
same is now used.”
* * *
20. The Faddis’ predecessor in title was Howard H. Faddis,
Jr. and Dorothy S. Faddis, his wife, who purchased the
property from John b. Hanley and Gertrude Hanley on
August 7, 1952 . . . .
21. That Deed contains the following statement: “Together
with the right of ingress and egress to and from said
premises to Edgmont Road along property of Wilhelmina
Smedley, as the same is now used.
* * *
2
We note the trial court opinion refers to the Agreed Stipulation of Facts
Between Counsel for Plaintiff and Counsel for Defendant. See R.R. at 67a-
73a. “The stipulation of facts is binding on both the parties and on this
court, and facts effectively stipulated are controlling and conclusive.”
Kennedy Boulevard Assoc. I, L.P. v. Tax Review Bd. of City of Phila.,
751 A.2d 719, 724 (Pa. Cmwlth. 2000) (quotation marks and citation
omitted). For the parties’ convenience, we refer to the reproduced record
where applicable.
-3-
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32. [Faddis] live in the property formerly belonging to
Howard H. Faddis, Jr. and Dorothy S. Faddis. The water
line servicing their property runs from old Middletown Road
down Cope[s] Lane to their property. The water line has
been in continuous use since at least December 4, 1956.
* * *
39. In 1994, [Faddis] installed 4’ high post and rail
fence along the rear and sides of their property.
40. The Faddis rear yard fence was installed pursuant to a
Building Permit which issued by Middletown township on
June 1, 1994 . . . .
41. The Faddis fence runs perpendicular to and crossed
over Copes Lane, ending at and abutting up to the
McLaughlin’s corner fence post. It was originally
installed without a gate.
42. In or about April of 2012, [Faddis] removed the
section of their post and rail fence which crossed Copes
Land and replaced it with a double gate.
R.R. at 69a-72a (emphases added).
The parties filed post-trial motions, which the court denied. These
appeals followed. The parties filed court-ordered Pa.R.A.P. 1925(b)
statements of errors complained of on appeal. The trial court filed a
responsive opinion.
Faddis raises the following issues for our review:
I. Did the [t]rial [c]ourt abuse its discretion and commit an
error of law in finding that . . . Faddis abandoned their
easement of ingress and egress over Copes Lane where in
the same decision the court found “[Faddis has] through
clear and concise evidence proven the actual, continuous,
exclusive, visible, notorious, distinct and hostile possession
of that portion of Copes Lane where their water line is
located since 1954. . .” because any use of their easement
-4-
J-A19042-16
of ingress and egress, even for the limited purpose of
utilities, as a matter of law, precludes a finding that they
abandoned their easement?
II. Did the trial court commit an error of law or an abuse of
discretion in determining that [Appellees] McLaughlin had
established, by clear and convincing evidence, adverse
possession of the area of Copes Lane located within their
fence where the court did not follow the controlling
precedent announced in the Superior Court’s decision in
Flannery v. Stump[, 786 A.2d 255 (Pa. Super. 2001)]
which precludes a finding of hostile possession on facts
identical to the facts in this case?
Faddis’ Brief at 4-5.
Faddis contends that any use of the easement of ingress and egress,
even for the limited purpose of utilities, precludes a finding that they
abandoned their easement. Id. at 19. Faddis avers “evidence of intent of
the easement holder to abandon the easement is the key to the analysis of
easement abandonment.” Id. at 23-24. They claim “[s]ince the [t]rial
[c]ourt found that . . . Faddis had made continuous use of their easement of
ingress and egress for utilities, it abused its discretion and committed an
error of law by holding in the same decision they abandoned the very same
easement.” Id. at 25. The trial court erred in “finding that . . . Faddis
abandoned their easement of ingress and egress and in the same decision
declaring they had established a prescriptive utility easement.” 3 Id. Faddis
is denied relief.
3
We note
-5-
J-A19042-16
Our review is governed by the following principles:
Our scope of review is limited. We are bound by
findings of fact which are supported by the record, but not
the trial court’s conclusions of law. We must have due
regard for the trial court’s superior vantage and its
prerogatives to access credibility and to believe all, part, or
none of the evidence presented. Finally, we may not
reverse absent a clear abuse of discretion or an error of
law.
Waltimyer, 556 A.2d at 913.
In Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002), our Pennsylvania
Supreme Court held that
[i]n evaluating whether the user abandoned the property,
the court must consider whether there was an intention to
abandon the property interest, together with external acts
by which such intention is carried into effect. In order to
establish the abandonment of a right-of-way, the evidence
must show that the easement holder intended to give up
its right to use the easement permanently. Such conduct
must consist of some affirmative act on his part which
renders use of the easement impossible, or of some
physical obstruction of it by him in a manner that is
inconsistent with its further enjoyment.
* * *
An easement or right-of-way by prescription arises by
adverse, open, continuous, notorious, and uninterrupted
use of the land for twenty-one years. The scope of the use
during the prescriptive period determines the scope of the
easement or right-of-way obtained, except with respect to
a reasonable evolution of the use which is not unduly
burdensome.
Waltimyer v. Smith, 556 A.2d 912, 913-14 (Pa. Super. 1989).
-6-
J-A19042-16
In sum, many different factors can be considered when
making a determination of abandonment. Moreover, no
single factor alone is sufficient to establish the intent to
abandon. Abandonment must be determined based upon
all of the circumstances surrounding the alleged
abandonment.
Id. at 664–65 (quotation marks and citations omitted).
Instantly, the trial court
found that Angstadt, Gaertner and McLaughlin proved
through clear and convincing evidence that Faddis erected
a post and rail fence surrounding the rear yard of the
Faddis property and across their point of access to Copes
Lane in 1994. The Faddis’s post and rail fence did not
include a gate at their point of access to Copes Lane, and
Copes Lane became over-grown at the point of access to
the Faddis property. The construction of this fence
rendered the use of the easement impossible and was
inconsistent with its further enjoyment. The record clearly
indicates that this fence and overgrowth limited ingress
and egress to Copes Lane from the Faddis property. It
was only following the Gaertner zoning hearing in January
2012 that Faddis prepared and filed the 2012 Faddis
corrective Deed, cleared over-growth using a chemical
agent, installed a gate in their fence at the access point to
Copes Lane, and began pedestrian and motor vehicle use
of Copes Lane to access the public roadway.
* * *
On the claim of Angstadt, Gaertner and McLaughlin
against Faddis and based upon the asserted right to a
prescriptive easement along Copes Lane for the placement
underground, maintenance, repair and replacement of a
lateral water line servicing the Faddis property by
connecting to the main public water service line located in
and along south Old Middletown Road, Middletown
Township, Delaware County, Pennsylvania, this [c]ourt
found in favor of Faddis confirming the prescriptive
easement for a public water line and against Angstadt,
Gaertner and McLaughlin and each of the remaining
defendants, Unknown Heirs and/or Administrators of the
-7-
J-A19042-16
Estate of Isaac J. Booth, Unknown Heirs and/or
Administrators of the Estate of Wilhelmina Smedley, and
Unknown Heirs and/or Administrators of the Estate of
James Day.
On the claim of Angstadt, Gaertner and McLaughlin
against Faddis that Faddis abandoned any express
easement granted by the 1952 Faddis Deed, the 1991
Faddis Deed and/or the 2012 Faddis Corrective Deed,
and/or any other form of easement Faddis claims provide a
right of ingress and egress along Copes Lane, this [c]ourt
found in favor [of] Angstadt, Gaertner and McLaughlin and
the remaining defendants, Unknown Heirs and/or
Administrators of the Estate of Isaac J. Booth, Unknown
Heirs and/or Administrators of the Estate of Wilhelmina
Smedley, and Unknown Heirs and/or Administrators of the
Estate of James Day.
Trial Ct. Op. at 15-17 (emphasis added and footnote omitted).
Although the Deed of Howard H. Faddis Jr. and Dorothy S. Faddis
contained the right of ingress and egress to Copes Lane, the installation of
the post and rail fence by Faddis along the Faddis property in 1994 blocked
the access to and from the Faddis property to Copes Lane. This physical
obstruction rendered the use of the easement impossible and, therefore,
Faddis effectively abandoned the easement. See Buffalo Twp., 813 A.2d at
664-65. We discern no abuse of discretion or error of law. See Smith, 556
A.2d at 913.
Next, Faddis contends the trial court erred in finding that McLaughlin
had established adverse possession of the area of Copes Lane located within
the McLaughlin’s fence and ignoring controlling precedent in Flannery,
supra. Faddis Brief at 28. Faddis claims that because McLaughlin thought
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J-A19042-16
the fence was on his own property until 1995, he did not meet the
requirements for adverse possession. Id. at 33. We disagree.
The elements necessary to establish adverse possession
are as follows:
Adverse possession is an extraordinary doctrine
which permits one to achieve ownership of another’s
property by operation of law. Accordingly, the grant
of this extraordinary privilege should be based upon
clear evidence. Edmondson v. Dolinich, [ ] 453
A.2d 611, 614 (Pa. Super. 1982) (“It is a serious
matter indeed to take away another’s property. That
is why the law imposes such strict requirements of
proof on one who claims title by adverse
possession.”) One who claims title by adverse
possession must prove actual, continuous, exclusive,
visible, notorious, distinct and hostile possession of
the land for twenty-one years. Each of these
elements must exist; otherwise, the possession will
not confer title.
Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774
(Pa. Super. 2008) (quoting Flannery[, 786 A.2d at 258]
(certain citations omitted), [ ]).
Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010).4
“While the word ‘hostile’ has been held not to mean ill will or hostility,
it does imply the intent to hold title against the record title holder.” Tioga
Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 3 (Pa. 1988) (citation
omitted). Furthermore, “[i]n Schlagel v. Lombardi, [ ] 486 A.2d 491
([Pa. Super.] 1984), [the] Superior Court observed that possession may
4
We note that “[a] prescriptive easement differs from land acquired by
adverse possession, because an adverse possessor acquires the land in fee,
whereas the prescriptive easement holder is only entitled to an easement-
like use.” Soderberg v. Weisel, 687 A.2d 839, 843 (Pa. Super. 1997).
-9-
J-A19042-16
be hostile even if the claimant knows of no other claim and falsely
believes that he owned the land in question[.]” Id. (emphases added).
Instantly, the trial court opined:
McLaughlin was successful in proving adverse possession
of the specific area of Copes Lane inside the rear yard
fence on the McLaughlin property. McLaughlin since 1989
held the portion of Copes Lane inside a fence line
exclusively for themselves and believed that land to be
their property. In 1995, during the process of replacing
the fence, McLaughlin learned they did not hold title to the
Copes Lane portion of their rear yard, but nevertheless,
they directed the contractor to place the new fence in the
same location as the original fence. This conduct
demonstrates their contention that they have exercised
actual, continuous, exclusive, visible, notorious, distinct
and hostile possession of that portion of Copes Lane for
twenty-one years.
Trial Ct. Op. at 13.
Even though McLaughlin falsely believed he owned the land in
question, possession may be hostile. See Tioga Coal Co., 546 A.2d at 3.
Thus, the elements of adverse possession have been established. See
Showalter, 9 A.3d at 235. We find no abuse of discretion by the trial court.
See Waltimyer, 556 A.2d at 913.
Angstadt and Gaertner raise the following issues for our review:
[1.] Did the [t]rial [c]ourt commit error of law and abused
[sic] its discretion by failing to determine the easement
language in the Angstatdts’ Deed regarding Copes Lane
had a sunset provision and the grantors in their chain of
title have not used Copes Lane for over half a century,
therefore the Angstadts’ use was not permissive?
[2.] Did the [t]rial [c]ourt commit error of law and abuse
its discretion by failing to grant [Angstadt] title by adverse
- 10 -
J-A19042-16
possession of the portion of Copes Lane which they had
maintained since 1964?
[3.] Did the [t]rial [c]ourt commit error of law and abuse
its discretion by failing to grant [Gaertner] title by adverse
possession of the portion of Copes Lane they had
maintained and used since 1987 by relying on Mr.
Gaertner’s failure to assert ownership before a Zoning
Hearing Board?
[4.] Did the [t]rial [c]ourt commit error of law and abuse
its discretion in failing to find the “1991 Faddis Deed” did
not convey a right of ingress and egress along Copes
Lane?
[5.] Did the [t]rial [c]ourt commit error of law and abuse
its discretion by failing to find the “2012 Faddis corrective
Deed” was a nullity as it relates to conveyance of any title
or right of ingress and egress along Copes Lane to and
from South Old Middletown Road?
Angstadt-Gaertner’s Brief at 19.5
We address the first two issues together because they are interrelated.
Angstadt contends the trial court erred in determining that the Angstadt
deed contains an express easement to Copes Lane based upon the following
language: “TOGETHER with the right and use of the LANE leading from Old
Middletown Road (formerly Edgmont Great Road) to Herman Cope’s property
so far as the right, title and use of the same remains in the Grantors.” Id.
at 30. They claim their permissive use changed to hostile use. Id. They
argue they satisfied the elements of adverse possession by maintaining the
5
For ease of disposition, we have numbered the issues.
- 11 -
J-A19042-16
property, which “included cutting grass, raking leaves, cleaning up trash,
limbs and branches.” Id. at 32 (citations omitted). We find no relief is due.
In Waltimyer, this Court opined:
A use based upon permission cannot ripen into a
prescriptive right unless the owner of the land is given
clear notice that the character of the use has changed from
a permissive use to an adverse use, and the adverse use
then continues for the full prescriptive period.
Waltimyer, 556 A.2d at 914. “Where the possession, at its inception, is
permissive, . . . (adverse possession) will not begin to run against the real
owner [u]ntil there has been some subsequent act of disseizin or open
disavowal of the true owner’s title . . . .” Roman v. Roman, 401 A.2d 361,
363 (Pa. 1979) (citation omitted).
The trial court opined:
Angstadt failed to prove by clear and convincing evidence
actual, continuous, exclusive, visible, notorious, distinct
and hostile possession over any portion of Copes Lane.
Rather, the 1964 Angstadt Deed includes the grant of an
express easement to Angstadt for ingress and egress along
Copes Lane. Therefore, Angstadts’ possession of Copes
Lane is permissive.
Trial Ct. Op. at 12-13.
The record doesn’t establish a subsequent act that would convert
Angstadt’s permissive use of Copes Lane into adverse possession. See
Roman, 401 A.2d at 363; Waltimyer, 556 A.2d at 914. We discern no
abuse of discretion by the trial court. See id. at 913.
- 12 -
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Lastly, we address the Gaertner claim that the trial court erred in
failing to grant them title by adverse possession of the portion of Copes Lane
that they had maintained and used since 1987 by relying upon Gaertner’s
failure to assert ownership before a Zoning Hearing Board. Angstadt-
Gaertner’s Brief at 35. Gaertner contends that “he cut grass, trimmed
branches, raked leaves and maintained the grounds as his own.” Id.
(citation omitted). He erected a shed and maintained a garden and a
woodpile on Copes Lane. Id. (citation omitted). Gaertner argues that “[t]he
[t]rial [c]ourt committed reversible error by failing to consider and
determine that [Gaertner] exercised open, continuous, notorious, visible
exclusive and hostile possession over the portion of Copes Lane they
maintained for over 21 years . . . .” Id.
At the hearing on March 26, 2015, Gaertner testified as follows on
cross examination.
[Counsel for Faddis]: You told the Zoning Hearing Board
[in January 2012] that you did not own Copes Lane. Is
that correct?
A: That’s correct.
Q: And you did not include any of Copes Lane when made
your ground calculations for your setbacks. Is that
correct?
A: That’s correct. In fact, I said at the Zoning Board
meeting that if I did owe [sic] Copes Lane, I would not
have to be before them.
Q: And that was─
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J-A19042-16
A: Or half of Copes Lane, I wouldn’t have had to have
been before them.
Q: And that’s the truth. If you had half of Copes Lane, you
wouldn’t have needed that variance?
A: That’s correct.
* * *
Q: You never blocked Copes Lane or fenced it or tried
to prevent anyone else from going─using Copes
Lane. Is that correct?
A: That’s correct.
Q: So other than seasonally picking up a few fallen
branches and cutting some grass, you did nothing to
announce to the rest of the world that you were
claiming Copes Lane as your property. Is that correct?
A: That’s correct.
R.R. at 210a-11a (emphases added).
The trial court opined:
Since Gaertner admitted at the January 2012
Middletown Township Zoning Hearing no ownership or any
portion of Copes Lane, Gaertner cannot prove the
elements of adverse possession through sufficient
evidence. Gaertner also failed to establish exclusive
possession of any portion of Copes Lane.
Trial Ct. Op. at 13.
Gaertner has not proven actual, continuous, exclusive, visible,
notorious, distinct and hostile possession of Copes Lane for twenty-one
years. See Showalter, 9 A.3d at 235. Therefore, Gaertner cannot claim
- 14 -
J-A19042-16
title by adverse possession. See id. We find no abuse of discretion by the
trial court. See Waltimyer, 556 A.2d at 913.6
Accordingly, for all of the foregoing reasons, the judgment is affirmed.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
6
Given our resolution of the first issue raised by Faddis on appeal, we need
not address the fourth and fifth issues raised by Angstadt and Gaertner.
- 15 -
Circulated 09/30/2016 12:50 PM
IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
HOW ARD P. & CAROL N. ANGSTADT : NO. 2012-005034
and
GARY L. & SHERRE A. GAERTNER
and
THOMAS D. & MICHELLE M.
McLAUGHLIN
v.
GARY J. & MELISSA FADDIS
and
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE EST ATE
OF ISAAC J. BOOTH
and
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE EST ATE
OF WILHELMINA SMEDLEY
and
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE
OF JAMES DAY
Timothy F. Sullivan, Esquire
Joseph B. Van Wyk, Esquire
GREEN, J. FILED: October 21, 2015
OPINION
The parties each appealed the Trial Court's June 8, 2015 Decision following a
three day bench trial.' Post-trial motions were denied by Orders dated July 15, 2015.
The plaintiffs in the underlying matter, Howard P. Angstadt and Carol N. Angstadt,
Gary L. Gaertner and Sherre A. Gaertner, and Thomas Daniel McLaughlin and
Michelle Marie McLaughlin filed a Statement of Matters of Complained of on
Appeal on September 18, 2015 and raise the following issues for appellate review:
1. The Honorable Court committed an error of law and an abuse of discretion
in failing to find that the "1991 Faddis Deed" did not convey a right of ingress
and egress along Copes Lane to and from South Old Middletown Road. An
easement for ingress and egress along Copes Lane was not necessary for the
use and enjoyment of the Faddis property. The testimony of all the Plaintiffs
was that the Fadddises [sic] did not use Copes Lane to get to and from their
property to South Old Middletown Road by vehicle, motorcycle or walking for
decades prior to the initiation of this litigation.
2. The Honorable Court committed an error of law and an abuse of discretion
in failing to find that the "2012 Faddis Corrective Deed" from themselves to
themselves was a nullity as it relates to the language inserted conveying a right
of ingress and egress along Copes Lane to and from South Old Middletown
Road. Defendant, Gary Faddis, testified that in 1991 he and his wife bought
out his brother and his sister. His brother and his sister were alive on the date
of the trial and Mr. Faddis' brother and sister did not execute the Deed of
Correction. At a minimum, for the 2012 Faddis Deed of Correction to have been
valid, it needed to be signed by the original granters.
I
Cross Appeals 2605 EDA 2015 and 2606 EDA 2015 have been consolidated.
2
3. The Honorable Court committed an error of law and an abuse of discretion
in failing to find that the easement language in the Angstadt Deed had a sunset
provision: "Together with the right and use of the land ... so far as the right,
title and use of the same remains in the Grantors".
4. The Honorable Court committed an error of law and an abuse of discretion
in failing to find that the Angstadts' grantors and all the grantors in their chain
of title have not used Copes Lane for over a half century.
5. The Honorable Court committed an error of law and an abuse of discretion
in failing to grant the Angstadts adverse possession of the portion of Copes
Lane which they had maintained since on or about 1964. The Angstadts proved
by a clear and convincing evidence that they had actual, continuous, exclusive,
visible, notorious and distinct possession of a portion of Copes Lane. When all
other elements of adverse of possession are met, hostility can be implied to
establish adverse possession.
6. The Honorable Court committed an error of law and an abuse of discretion
in failing to grant the Gaertners adverse possession of the portion of Copes Lane
which they had maintained and used for a garden, a wood pile, a shed and
storage of trash cans and ladders since on or about 1987.
7. The Honorable Court committed an error of law and an abuse of discretion
in finding that the failure of Plaintiff Gaertner to assert ownership of a portion
of Copes Lane in a zoning case for a dimensional variance defeats the
Gaertners' claim for adverse possession. The Court seems to imply Plaintiff
Gaertners would have been able to minimize or eliminate the need for a
variance. There was also testimony in the record that the Zoning Hearing Board
did not want to hear testimony about Copes Lane. NT Page 118.
8. The Honorable Court committed an error of law and an abuse of discretion
in finding that the "Angstadts" possession of Copes Lane is permissive."
Counsel believe the Court is relying upon the easement language in the
Angstadt Deed. The strip of lane at issue is an orphaned strip of land that is not
contained in any of the deeds of the four abutting property owners, i.e.,
Angstadt, Faddis, McLaughlin and Gaertner, The unknown heirs of
Defendants, Day, Smedley and Booth are not defending the Plaintiffs' claims
of ownership of portions of Copes Lane abutting their properties by adverse
possession.
3
9. The Honorable Court committed an error of law and an abuse of discretion
in finding that the Angstadts' possession of Copes Lane is permissive.
The defendants in the underlying matter, Gary J. Faddis and Melissa Faddis,
also filed a Statement of Matters of Complained of on Appeal on September 8, 2015
and raise the following issues for appellate review:
1. The Honorable Court committed an error of law and an abuse of discretion
in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
Lane located within their fence. The uncontroverted facts in this case establish
that the McLaughlins did not know their fence encroached on Copes Lane until
they replaced it in 1995. That was 17 years prior to the filing of this law suit
and 4 years short of the statutorily required 21 years. The Honorable Court
committed an error of law and an abuse of discretion by not applying the
controlling precedent announced in the Superior Court' s decision in Flannery
v. Stump, 803 A.2d 735 (Pa. 2002) which precluded the finding of hostile
possession of facts identical to the facts of this case.
2. The Honorable Court committed an error of law and an abuse of discretion
in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
Lane located within their fence. The uncontroverted facts in this case establish
that the McLaughlins never told anyone they could not use Copes Lane and
quietly allowed the use of Copes Lane by the neighborhood as part of a
neighborly accommodation thus precluding this Court's finding of exclusive,
notorious, distinct and hostile possession of the land for 21 years.
3. The Honorable Court committed an error of law and an abuse of discretion
in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
Lane located within their fence in that the facts of this case are insufficient to
support this Court's finding.
4. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane where the uncontroverted facts in this case establish that the
Faddis have an express easement granted in the chain of title to their property
4
dating back to 1851 granting a right of ingress and egress to their property from
Old Middletown Road over Copes Lane.
5. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane by not giving effect to the express language contained in the
Faddis Deed of Correction,
6. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane by failing to apply controlling legal precedent that mere non-
use of an express easement by its own owner, no matter how long continued,
does not manifest an intent to abandon the easement.
7. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane based on the Court's finding the Defendants, Faddis installed
a fence across their back yard in June of 1994 and installed a double gate in that
fence by April of 2012, 18 years later, where the fence was in place of less than
21 years.
8. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane where the uncontroverted facts in this case establish that
Defendants, Faddis never intended to abandon the easement and continued to
use it for ingress and egress to get to Old Middletown Road as did the Faddis
children to get to school for 13 years prior to the filing of the law suit. The
Honorable Court committed an error of law and an abuse of discretion by not
applying the controlling legal precedent that the key to analysis of easement
abandonment is the intent of easement holder. Said uncontroverted facts of
record preclude this Honorable court from finding Defendants, Faddis
demonstrated an unequivocal, purposeful intent to forever close off the future
use of their easement of Ingress and Egress over Copes Lane.
9. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane where this Honorable Court in the same Order and Decision
found "The Defendants Faddis have through clear and concise evidence proven
the actual, continuous, exclusive, visible, notorious, distinct and hostile
possession of that portion of Copes Lane where their water line is located since
5
1954, being a period in excess of twenty-one years." The Court's finding that
the Defendants, Faddis established a prescriptive easement by "the actual,
continuous, exclusive, visible, notorious, distinct and hostile possession of that
portion of Copes Lane" for their water line as a matter oflaw precludes a finding
that the Defendants Faddis abandoned their easement of Ingress and Egress.
10.The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane in that the facts of this case are insufficient to support this
Court's finding.
6
Howard P. Angstadt and Carol N. Angstadt (hereinafter "Angstadt"), reside at
490 South Old Middletown Road, Media, Pennsylvania, having purchased their
property on October 22, 1964. (03/15/15 N.T., p: 34.) The deed (the "1964 Angstadt
Deed") describes the Angstadt property as being" ... on the northerly side of and in line
with the northerly side of Copes Lane." P-5. Gary L. Gaertner and Sherre A. Gaertner
(hereinafter "Gaertner") reside at 496 South Old Middletown Road, Media,
Pennsylvania, having purchased their property on August 21, 1987. (03/26/14 N.T.,
p.4). The deed (the" 1987 Gaertner Deed") describes the Gaertner property as" ... by a
private lane of lands now or late of Herman Cope." P-6. Thomas Daniel McLaughlin
and Michelle Marie McLaughlin (hereinafter "McLaughlin") reside at 500 South Old
Middletown Road, Media, Pennsylvania, having purchased their property on October
27, 1989. (N.T. 3/26/15, p.70). The deed (the "1989 McLaughlin Deed") describes the
McLaughlin property as " ... to an existing pipe on the Southwesterly side of Copes
Lane, thence extending on the said side of Copes Lane." P-6.
Gary J. Faddis and Melissa Faddis (hereinafter "Faddis"), reside at 445 South
New Middletown Road, Media, Pennsylvania, having acquired their property by deed
from Howard H Faddis, III, and Dorothy Faddis, Co-Executors of the Estate of Howard
H. Faddis, Deceased, and Dorothy S. Faddis, individually on September 26, 1991 (the
"1991 Faddis Deed"). CT-I, Stipulation of Facts, ,rI3. Howard N. Faddis and Dorothy
Faddis were the parents of Gary J. Faddis, and Howard N. Faddis and Dorothy Faddis
7
purchased the Faddis property on August 7, 1952, under a deed (the "1952 Faddis
Deed") which included the following language: " ... Together with the right of ingress
and egress to and from said premises to Edgmont Road along property of Wilhelmina
Smedley, as the same is now used." CT-1, Stipulation ofFacts, ,r 21. This recital in the
1952 Faddis Deed concerning the "right of ingress and egress" is a reference to a private
lane approximately fourteen feet wide and four hundred forty-seven feet long
connecting the rear of the Faddis property to South Old Middletown Road. The 1991
Faddis Deed does not contain the recital referenced above from the 1952 Faddis Deed.
On May 7, 2012, Faddis recorded an instrument intended as a deed of correction
(the "2012 Faddis Corrective Deed") which specifically added the right of ingress and
egress recital appearing in the 1952 Faddis Deed to the conveyance described in the
1991 Faddis Deed. P/D-5; CT-1, Stipulation of Facts, ,r 16-18. This private lane is
known locally as "Copes Lane" and has been referenced by this name since
approximately March 25, 1913, when Herman Cope and Edith W. Cope acquired title
to a forty acre parcel from Abraham Brighton. The private lane predates the Brighton
to Cope conveyance and is referenced in every deed in the chain-of-title dating back to
1851. (03/25/15 N.T., p. 19). The present title holders to the parcel known as Copes
Lane are the unknown heirs and/or administrators of the Estate of Isaac J. Booth,
Deceased, or the unknown heirs and/or administrators of the Estate of Wilhemina
8
Smedley, Deceased, or the unknown heirs and/or administrators of the Estate of James
Day, Deceased. CT-1, Stipulation of Facts,~~ 15, 16 and 17.
Since approximately December 4, 1956, the water line providing public water
service to the home occupied by Faddis has been located under Copes Lane connecting
the main public water line located under South Old Middletown Road to the Faddis
home. CT-1, Stipulation of Facts,~ 32. There is no express easement for water utilities
servicing the Faddis property in any recorded deed in the Copes Lane chain-of-title.
There is an AQUA Pennsylvania, Inc., plan of September 27, 2011, which identifies the
water main and the lateral water line locations servicing the Faddis property. P/D-12.
The 1964 Angstadt Deed contains the following language which appears in
several preceding deeds of conveyance in the chain-of-title for the Angstadt property:
" ... Together with the right and use of the lane leading from Old Middletown Road
(formerly Edgmont Great Road) to Herman Cope's property so far as the right, title and
use of the same remains in the grantors". CT-1, Stipulation of Facts, ,r 4. The 1987
Gaertner Deed is silent with respect to a right granted to Gaertner to use Copes Lane.
CT-1, Stipulation of Facts~ 8.
The 1989 McLaughlin Deed is silent with respect to a right granted to Defendants
McLaughlin to use Copes Lane. CT-1, Stipulation of Facts ,I 12. Throughout the time
Angstadt, Gaertner and McLaughlin have been neighbors they have each engaged in
maintenance activity servicing Copes Lane. These activities include grass cutting,
9
clearing brush, removing tree and shrub limbs, and each autumn, removing fallen
leaves. (03/25/15 N.T., pp. 6, 37, 72). In 1989, when McLaughlin purchased the
McLaughlin property, a fence surrounding the rear yard encroached significantly into
Copes Lane. (03/25/15 N.T., p.61); CT-1, Stipulation of Pact ,r 36. By the conclusion
of 1995, McLaughlin replaced the dilapidated post and rail fence surrounding the rear
yard with a similar post and rail fence. (03/25/15 N.T., p. 71). In the process of
replacing the fence, McLaughlin learned for the first time the rear yard fence
encroached on Copes Lane. Nevertheless, McLaughlin authorized the fence contractor
to position the new post and rail fence where the dilapidated and encroaching fence had
stood. (03/26/15 N.T., pp. 61 & 71).
By the conclusion of 1994, Faddis installed a four foot high post and rail fence
along the rear and each side property line of the Faddis property. (N.T. 3/25/15, p. 53).
This fence is erected perpendicular to and completely across Copes Lane ending at a
point abutting the corner fence post on the McLaughlin fence. There was no gate
installed in the fence where the fence crosses and blocks access to and from the Faddis
property and Copes Lane. P-19. This fence erected by Faddis was installed pursuant
to a building permit issued by Middletown Township, Delaware County, on June 1,
1994. DF-35.
In January 2012, Gaertner filed an application for a zoning permit with
Middletown Township, Delaware County and a public hearing was convened by the
10
Township Zoning Hearing Board to consider the Gaertner's zonmg application.
Apparently the zoning relief requested by Gaertner included relief from the rear yard
setback requirements under the Township Zoning Code. (03/26/15 N.T., p.12). During
the zoning hearing, there was evidence presented and public discussion regarding the
rights and responsibilities of various named property owners, including Faddis, to the
potential use and enjoyment of Copes Lane. Id. Mr. and Mrs. Faddis were present
during the Gaertner's zoning hearing. (N.T. 3/26/15, p. 28). During the months
following the zoning hearing, Faddis installed a gate in the post and rail fence across
Copes Lane, and began regular use of Copes Lane for ingress and egress to their
dwelling and South Old Middletown Road. (03/25/15 N.T., pp. 54, 61-64, 73), P-13,
P-14, P-15 and P-18.
In May 2012, Faddis recorded the 2012 Faddis Corrective Deed. CT-1,
Stipulation of Facts ,, 16-18. In May and June 2012, Mrs. Faddis operated a
motorcycle along Copes Lane from the rear yard of the Faddis property to South Old
Middletown Road and returned from the public road to her dwelling by way of Copes
Lane. (03/25/15 N.T., pp. 61-62); P-14 andP-18. Shortly thereafter, Angstadt, Gaertner
and McLaughlin filed the underlying civil action.
ADVERSE POSSESSION
Angstadt, Gaertner and McLaughlin each claim title to the parcel known as Copes
Lane, a private road located in Middletown Township, Delaware County, Pennsylvania
11
by virtue of their adverse possession of the parcel. Adverse possession of land is an
extraordinary legal doctrine which, when found, conveys a party ownership in real
property titled to another by operation of law, rather than by grant of a deed. For this
reason, a decision based upon this extraordinary remedy must be supported by clear
and convincing evidence. Recreation Land Corporation, et al. v. Hartzfeld, 947 A.2d
771, 774 (Pa. Super. 2008). The burden of proof in this civil action was upon
Angstadt, Gaertner and McLaughlin to prove by clear and convincing evidence they
each held "... actual, continuous, exclusive, visible, notorious, distinct and hostile
possession of the land for twenty-one years", Id. Angstadt, Gaertner and McLaughlin
were required to prove each of these elements of adverse possession exist to confer
title by adverse possession. Recreation Land Corporation, supra, citing Flanne1y v,
Stump, 786 A.2d 255, 258 (Pa. Super. 2001). Angstadt, Gaertner and McLaughlin
were charged with proving that they, each as an adverse possessor of the parcel known
as Copes Lane, must intend to hold the parcel of land for themselves as demonstrated
by their acts. See, Fred E. Young, Inc. v. Brush Mountain Ass'n., 697 A.2d 984, 990
(Pa. Super. 1997).
Angstadt failed to prove by clear and convincing evidence actual, continuous,
exclusive, visible, notorious, distinct and hostile possession over any portion of Copes
Lane. Rather, the 1964 Angstadt Deed includes the grant of an express easement to
12
Angstadt for ingress and egress along Copes Lane. Therefore, Angstadts' possession
of Copes Lane is permissive.
Since Gaertner admitted at the January 2012 Middletown Township Zoning
Hearing no ownership of any portion of Copes Lane, Gaertner cannot prove the
elements of adverse possession through sufficient evidence. Gaertner also failed to
establish exclusive possession of any portion of Copes Lane.
Finally, McLaughlin was successful in proving adverse possession of the specific
area of Copes Lane inside the rear yard fence on the McLaughlin property.
McLaughlin since 1989 held the portion of Copes Lane inside a fence line exclusively
for themselves and believed that land to be their property. In 1995, during the process
of replacing that fence, McLaughlin learned they did not hold title to the Copes Lane
portion of their rear yard, but nevertheless, they directed the contractor to place the
new fence in the same location as the original fence. This conduct demonstrates their
contention that they have exercised actual, continuous, exclusive, visible, notorious,
distinct and hostile possession of that portion of Copes Lane for twenty-one years. See
Recreation Land Corp. at 774-775.
EASEMENT BY PRESCRIPTION
Faddis proved the water line utility easement by prescription along the length and
width of Copes Lane as identified on plans and detailed drawings maintained by Aqua
Pennsylvania, Inc. A prescriptive easement is created by (1) adverse, (2) open, (3)
13
notorious, (4) continuous and unintenupted use for a period of twenty-one (21) years.
Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987); see also McNaughton Props.,
LP v. Barr, 981 A.2d 222, 225 n. 2 (Pa. Super. 2009). Moreover, the party asserting
the easement must demonstrate "clear and positive" proof. Walley, 520 A.2d at 889;
see also Pittsburgh & Lake Erie R.R. Co. v. Township of Stowe, 374 Pa. 54, 96 A.2d
892, 894 (1953) ("[A prescriptive easement] will be upheld only if there is clear and
positive proof of its existence].]"), The landowner has the burden of proving consent,
but only after the alleged easement holder proves the use was adverse, open, notorious,
and continuous for 21 uninterrupted years. Walley, 520 A.2d at 889; Vill. of Four
Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa. Super.
2014), reargument denied Dec. 29, 2014.
Faddis, through clear and concise evidence proved the actual, continuous,
exclusive, visible, notorious, distinct and hostile possession of that portion of Copes
Lane where the water line is located since 1954, being a period in excess of twenty-
one years.
ABANDONMENT OF EASEMENT
Angstadt, Gaertner and McLaughlin each claim Faddis abandoned the easement
of ingress and egress along Copes Lane to and from South Old Middletown Road.
Under Pennsylvania law, abandonment of an easement is proven through conduct of
14
the holder of the easement which manifests intent on the part of the easement holder
to relinquish permanently his right to use of the easement across the adjoining or
servient parcel of land. Sabados v. Kiraly, 393 A.2d 486, 487-88 (Pa. Super. 1978)
citing Hatcher v. Chesner, 221 A.2d 305 (Pa. 1966). Pennsylvania courts have
explained that an easement may not be considered abandoned unless there is a showing
of an intent to abandon, coupled with either (1) adverse possession by the owner of the
servient tenement; or (2) affirmative acts by the owner of the easement that renders the
use of the easement impossible; or (3) obstruction of the easement by the owner of the
easement that is inconsistent with its further enjoyment. Ruffalo v. Walters, 348 A.2d
740, 741 (Pa. 1975); Forest Glen Condo. Ass'n v. Forest Green Common Ltd. P'ship,
900 A.2d 859, 864 (Pa. Super. 2006). Angstadt, Gaertner and McLaughlin must prove
this abandonment by clear and convincing evidence.2
This Court found that Angstadt, Gaertner and McLaughlin proved through clear
and convincing evidence that Faddis erected a post and rail fence surrounding the rear
yard of the Faddis property and across their point of access to Copes Lane in 1994.
2
Faddis contends that a period of twenty one years is required to establish abandonment. However,
once there is a showing of an intent to abandon, an easement may be considered abandoned if any
of the following are established by clear and convincing evidence: (1) adverse possession by the
owner of the servient tenement; or (2) affirmative acts by the owner of the easement that renders
the use of the easement impossible; or (3) obstruction of the easement by the owner of the easement
that is inconsistent with its further enjoyment. See Piper v. Mowris, 351 A.2d 635, 640 (Pa. 1976);
Ruffalo v. Walters, 465 Pa. 236, 238-39, 348 A.2d 740, 741 (1975); Forest Glen Condo. Ass'n v.
Forest Green Common Ltd. P1ship, 900 A.2d 859, 864 (Pa. Super. 2006). This Court found that
conditions (2) and (3) were present negating any claim of continued abandonment for a period of
twenty one years.
15
The Faddis's post and rail fence did not include a gate at their point of access to Copes
Lane, and Copes Lane became over-grown at the point of access to the Faddis property.
The construction of this fence rendered the use of the easement impossible and was
inconsistent with its further enjoyment. The record clearly indicates that this fence and
overgrowth limited ingress and egress to Copes Lane from the Faddis property. It was
only following the Gaertner zoning hearing in January 2012 that Faddis prepared and
filed the 2012 Faddis Corrective Deed, cleared over-growth using a chemical agent,
installed a gate in their fence at the access point to Copes Lane, and began pedestrian
and motor vehicle use of Copes Lane to access the public roadway.
Based on the foregoing, on the claims of adverse possession this Court found in
favor of all named defendants and against Angstadt and Gaertner. However, on
McLaughlin's claim for adverse possession of that specified portion of the parcel known
as Copes Lane located inside the fence erected in the rear yard of the McLaughlin
property and encroaching on Copes Lane since at least 1989, the Trial Court found in
favor of McLaughlin confirming the title by adverse possession and against each of the
named defendants.
On the claim of Angstadt, Gaertner and McLaughlin against Faddis and based upon
the asserted right to a prescriptive easement along Copes Lane for the placement
underground, maintenance, repair and replacement of a lateral water line servicing the
Faddis property by connecting to the main public water service line located in and along
16
South Old Middletown Road, Middletown Township, Delaware County, Pennsylvania,
this Court found in favor of Faddis confirming the prescriptive easement for a public
water line and against Angstadt, Gaertner and McLaughlin and each of the remaining
defendants, Unknown Heirs and/or Administrators of the Estate of Isaac J. Booth,
Unknown Heirs and/or Administrators of the Estate of Wilhelmina Smedley, and
Unknown Heirs and/or Administrators of the Estate of James Day.
On the claim of Angstadt, Gaertner and McLaughlin against Faddis that Faddis
abandoned any express easement granted by the 1952 Faddis Deed, the 1991 Faddis
Deed and/or the 2012 Faddis Corrective Deed, and/or any other form of easement Faddis
claims provide a right of ingress and egress along Copes Lane, this Court found in favor
Angstadt, Gaertner and McLaughlin and the remaining defendants Unknown Heirs and/or
Administrators of the Estate of Isaac J. Booth, Unknown Heirs and/or Administrators of
the Estate of Wilhelmina Smedley, and Unknown Heirs and/or Administrators of the
Estate of James Day and against Faddis.3
3
This Court having decided each of the claims, defenses and new matter preserved for Decision,
the temporary injunction entered on July 2, 2012 was extinguished and dissolved and Count II -
Injunction of the Complaint was dismissed as moot.
17
For the aforementioned reasons, the Trial Court respectfully requests that its
decision be AFFIRMED.
· G. MICHAEL G J.
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18