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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ROGER SWINGLE, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTOR OF THE ESTATE : PENNSYLVANIA
OF REBECCA DEFREHN :
:
:
v. :
:
:
MORRIS WILLIAMS, DECEASED, OF : No. 152 EDA 2023
STERLING TOWNSHIP, AND HIS :
HEIRS AT LAW AND SUCH OTHER :
PERSON OR PERSONS CLAIMING BY, :
UNDER OR THROUGH HIM, SCOTT :
WILLIAMS AND DANIELLE C. :
WILLIAMS :
:
WARREN HALSEY, SCOTT A. :
WILLIAMS AND DANIELLE C. :
WILLIAMS :
:
:
v. :
:
:
ROGER SWINGLE, INDIVIDUALLY :
AND AS EXECUTOR OF THE ESTATE :
OF REBECCA DEFREHN, DECEASED, :
LITTS AND SONS STONE, CO., INC., :
GRASSIE AND SONS, INC., CHARLES :
SIMS, DOROTHY SIMS, CHARLES W. :
SIMS, JR., AND NANCY M. MEDALIS :
:
:
APPEAL OF: ROGER SWINGLE, :
INDIVIDUALLY AND AS EXECUTOR :
OF THE ESTATE OF REBECCA
DEFREHN
Appeal from the Judgment Entered March 29, 2023
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 2015-00362,
2016-00136
J-A17029-23
J-A17030-23
ROGER SWINGLE, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTOR OF THE ESTATE : PENNSYLVANIA
OF REBECCA DEFREHN :
:
:
v. :
:
:
MORRIS WILLIAMS, DECEASED, OF : No. 153 EDA 2023
STERLING TOWNSHIP, AND HIS :
HEIRS AT LAW AND SUCH OTHER :
PERSON OR PERSONS CLAIMING BY, :
UNDER OR THROUGH HIM, SCOTT :
WILLIAMS AND DANIELLE C. :
WILLIAMS :
:
:
WARREN HALSEY, SCOTT A. :
WILLIAMS AND DANIELLE C. :
WILLIAMS :
:
:
v. :
:
:
ROGER SWINGLE, INDIVIDUALLY :
AND AS EXECUTOR OF THE ESTATE :
OF REBECCA DEFREHN, DECEASED, :
LITTS AND SONS STONE, CO., INC., :
GRASSIE AND SONS, INC., CHARLES :
SIMS, DOROTHY SIMS, CHARLES W. :
SIMS, JR., AND NANCY M. MEDALIS :
:
:
APPEAL OF: LITTS AND SONS :
STONE, CO., INC. AND GRASSIE :
AND SONS, INC. :
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Appeal from the Judgment Entered March 29, 2023
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 2015-00362,
2016-00136
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 12, 2023
These closely-related appeals from the judgments entered in the above-
captioned cases involve the trial court’s decision, on remand from this Court,
to limit an easement granted regarding an access road to non-commercial use
(“the access road”). The trial court originally granted an easement to Roger
Swingle (“Swingle”), the Estate of Rebecca DeFrehn, Litts and Sons Stone Co.,
Inc. (“Litts”), Grassie and Sons, Inc. (“Grassie”), Charles Sims, Sr. and
Dorothy Sims, Charles W. Sims, Jr. and Nancy M. Medalis (collectively, “the
Swingle parties”), on property owned by Warren Halsey (“Halsey”), Morris
Williams, deceased and his heirs at law (“Morris”), Scott A. Williams (“Scott”),
and Daniele C. Williams (“Daniele”), and (collectively, “the Halsey parties”).1
We affirm.
In a 2022 memorandum decision, this Court provided the following
background concerning the easement that is the subject of this appeal:
This case concerns a complicated property dispute involving
neighboring properties. The subject of this dispute is what has
been described as a dirt road that runs behind the parties’
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* Retired Senior Judge assigned to the Superior Court.
1 The Appellants in 152 EDA 2023 are the Swingle parties; the Appellants in
153 EDA 2023 are Litts and Sons Stone Co., Inc. (“Litts”), and Grassie and
Sons, Inc. (“Grassie”) (collectively, the “Lessees”).
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properties (the “access road”). It appears that there is no way to
access the properties from the parallel public road except by the
disputed access road.
Over the years, the Swingle property was used as a dairy
farm, although the property contained a sparsely utilized quarry.
That changed in 2011, when Swingle leased the farm to [Litts]
and [Grassie] (“Lessees”), who began using the property as a
commercial quarry. Traffic increased exponentially and [the
Halsey parties] complained of noise and garbage build-up on their
properties.
[The Halsey parties] filed a complaint for declaratory relief,
claiming ownership of the access road. Swingle countered with
an action to quiet title, asserting ownership due to adverse
possession. These two actions were tried together . . .. [T]he
trial court . . . [found] [Swingle] had established a prescriptive
easement over the access road, but found Lessees had committed
trespass.
The trial court made the following relevant findings of fact:
****
21. In or about 1964 . . . one of [the Halsey parties’]
predecessors in title, agreed to allow access [from
their property] to the properties owned and used by
the predecessors in title of Swingle.
****
24. In the deed described [above] the access route
is described as being twenty feet . . . wide.
****
27. Over the years, the Swingles made use of the
existing private driveway to get out to [the access
road] and all of their use was for ingress and egress
to their property.
28. In 2011, the Swingle parent tract began being
used as a quarry, causing heavy equipment,
machinery, and trucks to access the Swingle site.
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Thus, the use of the driveway changed substantially
over the years from 2011 to the present time.[2]
29. The increased use of the access road has
resulted in dust and noise coming onto the [the Halsey
parties’] properties.
Halsey v. Swingle, 283 A.3d 337 (Pa. Super. 2022), unpublished
memorandum at *1-4 (capitalization changed).
On appeal, this Court affirmed the trial court’s grant of a twenty-foot
prescriptive easement over the access road to the Swingle parties because the
evidence showed that Swingle and his predecessors had maintained the
access road for fifty-nine years, made open, hostile, and notorious use of it,
and were never told not to use it. See Halsey, 283 A.3d 337, unpublished
memorandum at *6-7. This Court held, however, that the trial court erred by
permitting “increased commercial use” of the access road in 2011, when the
Swingles leased their property to Lessee quarry operators; in this Court’s
view, although the increased use of the prescriptive easement may be
permissible where it is a “natural evolution,” a shift from residential use to
commercial use is generally not a permissible increase. See id. at *7, citing
McGavitt v. Guttman Realty Co., 909 A.2d 1, 5 (Pa. Super. 2006). This
Court thus “reverse[d] the trial court’s order to the extent it grants a
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2 Although the trial court previously found the use of the access road changed
substantially after 2011, it did not impose any limitation on the uses of the
prescriptive easement. See Trial Court Opinion, 1/29/19, at 6, 10.
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prescriptive easement for purposes of commercial use,” and remanded “for
proceedings not inconsistent” with its holdings. See id. at *8.
On remand, the trial court issued an amended order that retained the
portions of the original order granting a prescriptive easement but struck all
references to commercial activities. See Amended Order, 10/19/22. The
Halsey parties filed a motion for “post-trial relief” requesting, inter alia, that
the trial court expressly limit the prescriptive easement over the access road
to residential use. See Motion for Post-Trial Relief, 10/28/22. The Swingle
parties filed an opposing memorandum of law asserting that some commercial
use had been made of the Swingle property and the access road since 1959.
See Swingles’ Memorandum, 12/6/22.3
The court heard oral argument in December 2022. The Swingle parties
argued that Lessee Litts had done some quarrying on Swingle’s property
before Lessee Grassie took over in 2011; the Halsey parties argued that the
evidence of prior quarrying was disputed at trial and that it filed its complaint
in 2015, which proved that no twenty-one-year period of open and notorious
use of the road existed that could have established a prescriptive easement
for quarrying. See N.T., 12/6/22, at 2-17. The trial court entered another
amended order recognizing the prescriptive easement but stating the right of
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3 Lessees also filed a memorandum of law requesting that quarry operations
be permitted as they existed prior to 2015 (when the complaint was filed).
See Lessee’s Memo, 12/19/22.
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way over the access road was for residential use only and commercial use was
banned. See Amended Order, 12/19/22 (the “December 2022 amended
order”). The Swingle parties filed a timely motion for reconsideration. See
Motion for Reconsideration, 12/27/22. Lessees filed a motion for
reconsideration and “to request additional testimony.” See Lessee’s Motion,
12/29/22. The court denied the Swingle parties’ motion for reconsideration
and Lessees’ motion. See Order, 1/6/23. The Swingle parties and Lessees
appealed. The Swingle parties, Lessees, and the trial court complied with
Pa.R.A.P. 1925 in appealing from the December 2022 amended order and
judgments were subsequently entered.4
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4 This Court issued rules to show cause why these appeals should not be
quashed noting the December 2022 amended order appeared to be
interlocutory, directed counsel to praecipe for the entry of judgments, and
discussed the possible need to file separate notices of appeal at each trial
court docket pursuant to Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018), overruled in part, Commonwealth v. Young, 265 A.3d 462, 477 (Pa.
2021). Although the trial court did not formally consolidate the two cases, it
inextricably intertwined the two cases when issuing its verdicts and orders.
We note that in May 2023, Pa.R.A.P. 311, 313, 314, 341, 512, 902, and 904
were amended with immediate effect in response to Walker, Young, and
their progeny. Given the procedural confusion in this case and the
amendment of the Rules of Appellate Procedure, we conclude there was a
breakdown in the operations of the courts excusing the need to file separate
notices of appeal at both court dockets and will consider the merits of the
appeals.
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The briefs filed by the Swingle parties’ and Lessees’ present virtually
identical issues for review:5
1. Whether[6] the lower court erred when it determined that the
prescriptive easement for accessing [Swingle’s] property
precludes all commercial usage to the pre-existing quarries as
opposed to the heavy commercial usage instituted in the year
2011 and thereafter?
2. Whether the lower court erred by not scheduling a hearing for
additional testimony to determine the “commercial usage” prior to
Year 2011 pursuant to this Court’s [remand] directive?
3. Whether without definition as to what vehicles and/or vehicle
usage constitutes “commercial traffic” there is uncertainty as to
what constitutes allowable vehicles for various activities upon
[Swingle’s] property, including accessing the buildings (garage),
field, woods and a longstanding quarry?
Swingle Parties’ Brief, 152 EDA 2023, at 7-8 (some capitalization changed);
Lessees’ Brief, 153 EDA 2023, at 8-9.
The briefs filed on behalf of the Swingle parties and Lessees argue only
that the lower court failed to “delineate” Lessees’ heavy truck usage ”from its
own use to access the farm with a pre-existing stone quarry.” Swingle
Parties’ Brief at 13; see also Lessee’s Brief at 13. They argue they are
entitled to some commercial use of the access road.
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5 The texts of the arguments in the two briefs differ slightly as discussed
below.
6In Lessees’ Brief at 153 EDA 2023, the word “Where” is used instead of
“Whether,” otherwise the question is identical.
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As an initial matter, the Court must determine the holding of our 2022
decision and the scope of our remand to the trial court. Pennsylvania Rule of
Appellate Procedure 2591, entitled Proceedings on Remand, provides in
relevant part “the court . . . shall proceed in accordance with the judgment
or other order of the appellate court.” Pa.R.A.P. 2591(a). Settled case law
indicates that upon remand a trial court is limited to the scope of the remand
order. See Ratner v. Iron Stone Real Estate Fund, I, L.P., 266 A.3d 68,
73 (Pa. Super. 2021), quoting Commonwealth v. Sepulveda, 144 A.3d
1270, 1280 n.19 (Pa. 2014) (citation omitted) (stating that “it has long been
the law in Pennsylvania that following remand, a lower court is permitted to
proceed only in accordance with the remand order . . . . [W]here a case is
remanded for a specific and limited purpose, issues not encompassed within
the remand order may not be decided on remand”).
Our 2022 decision remanding this case instructed:
[I]n the instant case, we conclude that the Lessees’ increased
commercial use of the Access Road cannot be considered the
“normal evolution” of the use. Accordingly, we reverse the trial
court’s order to the extent that it grants a prescriptive easement
for purposes of commercial use.
Order affirmed in part, reversed in part, and case remanded for
proceedings not inconsistent with this memorandum.
Halsey, 283 A.3d 337, unpublished memorandum at *8.
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In its 1925(a) opinion, the trial court states, inter alia, that the issue in
this appeal is the portion of its December 2022 amended order banning
commercial traffic on the access road and the court understood that this Court
remanded the case for it “to fashion an amended order without . . . permitting
the commercial use of the property, that is, the active use of the Swingle
property for quarry operations.” Trial Court’s Statement of Reasons, filed
3/3/23, at 4-5. The trial court declined to amend its order barring commercial
use of the access road. See id. at 4-7.
We find no error in the trial court’s conclusion that the Swingle parties’
request to permit commercial use of the access road was resolved by our 2022
decision and that further litigation of commercial use of the easement over
the access road was outside the scope of the remand, and therefore beyond
the trial court’s purview on remand. See Pa.R.A.P. 2591(a); see also
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Ratner, 266 A.3d at 73.7 We thus decline to grant relief on the Swingle
parties’ and Lessee’s claims.8
Lessees’ separately-filed brief differs from the Swingle parties’ brief only
in its additional assertion that the trial court recognized some type of prior
commercial use of the access road, and that more testimony was required to
determine the baseline “commercial activity” versus a “Natural Resource Use,
as defined in the Sterling Township [Z]oning Ordinance.” Lessees’ Brief at 16.
Lessees did not make any claim concerning a zoning ordinance below and may
not do so for the first time on appeal. See Pa.R.A.P. 302(a). Accordingly,
Lessees present no preserved claim challenging the trial court’s decision. We
therefore affirm the judgments of the trial court.
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7 Even were we permitted to review the Swingle parties’ claim, relief would
not issue. The trial court stated Swingle’s testimony failed to state the
frequency with which the quarry was used, and there was testimony that other
residents of the road were not aware of any quarry operations on the Swingle
property until the late 1990s or early 2000s. Therefore, the use of the road
for “quarrying” was not open or notorious for any 21-year period.” Trial
Court’s Statement of Reasons, filed 3/3/23, at 5 (also stating “the use of the
road by quarrying was not open and notorious for any 21-year period”). The
court also found no need to explain that use of the access road by milk trucks,
hay wagons, and similar vehicles “do not impose an unreasonable burden . . .
unlike the burden caused by the use of heavy equipment, machinery and
trucks . . . to conduct quarry operations.” Id. at 6 n. 7.
8 The Swingle parties’ and Lessees’ briefs do not provide argument supported
by citations to the record and case law concerning their other claims.
Accordingly, we decline to address those claims. See Pa.R.A.P. 2119(a)-(c);
see also Rogers v. Thomas, 291 A.3d 865, 881 (Pa. Super. 2023) (en banc)
(stating that an appellate court will not scour the record and “act as appellant’s
counsel” (internal citation omitted)).
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Judgments affirmed.
Date: 12/12/2023
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