J-A09023-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DARRYL M. KOCH AND KIM T. NOLL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
ANDREW T. COSCIA AND : No. 1220 WDA 2017
KATHLEEN M. COSCIA
Appeal from the Order Entered August 18, 2017
in the Court of Common Pleas of McKean County Civil Division at No(s):
557-CD-2014
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2018
As I believe the Majority’s construction of the 1976 Stipulation is
contrary to the well-established rule that contracts should be interpreted to
effectuate all clauses, I respectfully dissent.
The conditions of the stipulation between Appellees and Appellant’s
predecessor, Mr. Graziano, are as follows in their entirety.
1. That August B. Graziano, his heirs, successors and
assigns in common with all others having the like right have full
and free right and liberty at all times hereafter to pass and repass
along a presently existing right-of-way across Richard J. Coscia
and Marjorie E. Coscia’s lands leading from Newell Creek Road to
lands presently owned by Paul Appleby; said right-of-way having
been reserved by Paul G. Appleby et ux in deed dated July 12,
1975 and recorded in McKean County Deed Book Vol. 493 at page
657.
2. August B. Graziano agrees for himself, his heirs,
successors and assigns that he will not use the presently
existing right-of-way for any commercial development such as but
not limited to gas or oil exploration or removal, gravel removal,
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logging, or coal trucking but will use a right-of-way to be granted
exclusively for that purpose by Richard J. Coscia and Marjorie E.
Coscia.
3. Richard J. Coscia and Marjorie E. Coscia agree for
themselves, their heirs, successors and assigns to designate a
roadway around the western perimeter of their farm field for use
of August B. Graziano, his heirs, successors or assigns for
such heavy duty commercial truck use that would be readily
accessible to August B. Graziano, his heirs, successors and
assigns and with a minimum of damage to grantors at the time
that August B. Graziano, his heirs, successors or assigns
should so desire to conduct such commercial trucking from the
Graziano property. The roadway so designed for commercial truck
use shall be used for both ingress from Newell Creek Road to lands
presently owned by August B. Graziano as well as regress from
the Graziano lands to Newell Creek Road for said commercial
trucking operations. Said roadway shall be twelve (12) feet wide.
4. August B. Graziano agrees for himself, his heirs,
successors and assigns that both of the aforementioned rights
of way shall be used exclusively for ingress and regress to
the premises conveyed to August B. Graziano et ux by deed
dated November 10, 1960 and recorded in McKean County Deed
Book Vol. 395 at page 725 from Newell Creek Road and that said
rights of way will not be assigned, transferred, or conveyed
to any other person.
5. August B. Graziano agrees for himself, his heirs,
successors and assigns that he will fully and completely
compensate Richard J. Coscia and Marjorie E. Coscia, their heirs,
successors and assigns for all unreasonable damage caused to
their farm field by the commercial trucking operation. Said
unreasonable damages shall include, but not be limited to, any
intentional, reckless, malicious, or negligent damage not
necessary for the free and unobstructed use of the right of way
hereinbefore granted for commercial trucking purposes.
6. August B. Graziano agrees for himself, his heirs,
successors and assigns that no repairs or alterations shall be
done to raid rights of way without the permission of the grantors
herein, their heirs, successors, or assigns.
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1976 Stipulation (emphases added).
The Majority concludes that the last-highlighted portion of Paragraph 4
constitutes “clear and unambiguous language” that means “Mr. Graziano
relinquished his right to assign, transfer, or convey his right to use the Valley
Drive Right of Way to any other person.” Majority Memorandum at 11. The
Majority reasons that this last clause is specific to the issue of whether Mr.
Graziano had the right to convey his right to use the right of way, and
therefore negates all of the other references to Mr. Graziano’s heirs,
successors, and assigns. Id.
The Majority’s interpretation is contrary to well-settled principles of
contract construction. “It is axiomatic that contractual clauses must be
construed, whenever possible, in a manner that effectuates all of the clauses
being considered.” Welteroth v. Harvey, 912 A.2d 863, 866 (Pa.Super.
2006). “A court may not disregard a provision in a contract if a reasonable
meaning may be ascertained therefrom . . . each and every part of it must be
taken into consideration and given effect, if possible, and the intention of the
parties must be ascertained from the entire instrument.” Newman Dev. Grp.
of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 654
(Pa.Super. 2014) (en banc) (internal quotation marks and citation omitted).
Of specific import to the present case, the rules of construction provide
that a court should not interpret one part of a contract to annul another part.
W. Dev. Grp., Ltd. v. Horizon Fin., F.A., 592 A.2d 72, 75 (Pa.Super. 1991).
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Rather, “Clauses of a contract . . . which seem to conflict will be construed, if
possible, as consistent with one another.” In re Binenstock’s Trust, 190
A.2d 288, 293 (Pa. 1963).
The clear and unambiguous language of the 1976 Stipulation indicates
that Mr. Graziano’s rights and responsibilities regarding the Valley Drive right
of way applied not only to him, but to “his heirs, successors, and assigns.”
1976 Stipulation at ¶¶ 2, 3, 4, 5, and 6 (emphasis added). There is no
question that the Majority’s interpretation annuls these clauses rather than
attempts to construe them in harmony with the final portion of Paragraph 4.
The repeated references to Mr. Graziano’s “heirs, successors, and assigns” are
utterly negated by the Majority’s construction.
I find it unreasonable to conclude that the parties intended for Mr.
Graziano to have no right to pass his interest on to any person under any
circumstances in light of the numerous indications that the agreement applied
to Mr. “Graziano, his heirs, successors or assigns.” If the parties’ intent was
to limit the agreement to Mr. Graziano alone, and none of his successors-in-
interest, there was simply no reason to include “his heirs, successors or
assigns” in the agreement anywhere.
I believe that proper application of the rules of construction to the 1976
Stipulation, giving effect to the plain meaning of all clauses in the context of
the agreement as a whole, requires the following interpretation: the heirs,
successors, and assigns to Mr. Graziano’s interest in the property have the
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right to utilize the right of way for ingress and egress to that property, but
Graziano had no ability to convey rights to utilize the Valley Drive Right of
Way to any person other than his successor-in-interest to the property.
This interpretation effectuates the plain meaning of the language of all
portions of the agreement, as well as the stated intent that Mr. Graziano and
his successors would have the right to use the right of way to access their
property, but that Mr. Graziano lacked the ability to grant use of the right of
way to third parties who did not succeed to his interest in the land. To rule
otherwise is to hold that the parties’ intended their repeated reference to Mr.
Graziano’s heirs, successors, and assigns to be utterly meaningless.
Therefore, I respectfully dissent.
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Koch, D. v. Coscia, A.
Combined Opinion