J-A30040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES D. CUMMINGS AND LISA A. IN THE SUPERIOR COURT OF
CUMMINGS, HIS WIFE PENNSYLVANIA
Appellants
v.
SHERMAN A. SUTTON
Appellee No. 2 MDA 2016
Appeal from the Judgment Entered January 19, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No: 12288-2012
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2017
Appellants, Charles D. Cummings and Lisa A. Cummings, appeal from
the judgment entered January 19, 2016. We affirm.
On August 6, 2012, Appellants commenced this action for declaratory
relief terminating an easement that runs between their property and that of
Appellee. In the alternative, Appellants requested a permanent injunction
prohibiting Appellee from using the easement. The trial court conducted a
bench trial on November 6, 2015. On November 17, 2015, the trial court
entered an order denying relief. The trial court denied Appellants’ motion for
post-trial relief on December 1, 2015. The trial court’s order was reduced to
judgment on January 19, 2016. Appellants filed this timely appeal.
The trial court issued the following findings of fact:
J-A30040-16
The parties’ respective homes are situated in the
Woodridge II Development. Significantly, the plot plan for the
Woodridge II Development reflects the properties owned by each
party, as well as the Easement (the “Plot Plan”). The parties
each own their respective properties and neither party owns the
Easement. Appellee and his family have called the land which
comprises Woodridge II home since long before the
Development came into existence. Prior to being developed as
Woodridge II, the entire parcel was a farm owned by Appellee’s
grandparents. Appellee’s family then sold the property to
Hillside Farms, which sold the entire property to Woodridge for
development according to the recorded plot plan.
While the Plot Plan clearly indicates the existence of the
Easement, the deed to Appellants’ property also includes the
following reference to the Easement: ‘Together with and subject
to 40 feet wide [sic] unnamed alley along the southwesterly side
of the property described above connecting Sutton Road to
another 40 foot wide alley road along the rear and together with
and subject to a 40 foot wide alley road along the rear line of the
land described above. This description of the Easement is also in
Appellee’s deed, as well as in various other deeds for properties
in Woodridge II that enjoy the right of access to it.
The Easement runs to the left of and behind Appellants’
property. Appellants utilize a portion of the Easement to the left
of their property as a driveway. The Easement is also adjacent
to the rear portion of Appellee’s property. Appellee used the
Easement to access his property for many years; however, such
use was impeded about two years ago when Appellants blocked
his access to it by placing large stones across it.
During the bench trial, Appellants made various claims
about Appellee’s alleged misuse of the Easement, including
littering, driving recklessly, being a nuisance, causing damage,
and blocking the Easement. Contrary to Appellants’ descriptions,
the debris that Appellants alleged Appellee littered on their
property and/or the Easement was either located on Appellee’s
property, or was not otherwise deliberately scattered. Also,
Appellee only once put a rut in the Easement because his truck
started sinking into the ground somewhere above Appellants’
driveway and through no fault of his own. It is clear from the
totality of the testimony presented at the bench trial that
Appellee uses the Easement a reasonable amount of time, as
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J-A30040-16
needed, and in a reasonable manner. Finally, despite the fact
that Appellee was not misusing the Easement, he voluntarily
agreed, at the close of the bench trial, to continue to refrain
from any action that may interfere with Appellants’ quiet
enjoyment of the Easement.
Trial Court Opinion, 4/25/16, at 6-8 (record citations omitted).
Appellants argue the trial court erred in failing to enter a judgment
terminating the easement. Appellants’ Brief at 5. In particular, Appellants
argue that Appellee’s use of the easement is no longer necessary to
Appellants due to improvement of public roads along Appellee’s property.
Appellants also argue that Appellee’s easement was merely a temporary
license. Appellants’ Brief at 10. We review the trial court’s decision in a
declaratory judgment action for abuse of discretion or error of law. Erie
Ins. Grp. V. Catania, 95 A.3d 320, 322 (Pa. Super. 2014), appeal denied,
104 A.3d 4 (Pa. 2014).
The record does not support Appellants’ argument. As the trial court
explains in its opinion, both parties enjoy the right to use the easement in
question in accordance with a plot plan and their respective deeds. Trial
Court Opinion, 4/25/16, at 6-7. Appellee’s easement did not arise by
necessity. Appellants have produced no valid basis for extinguishing
Appellee’s easement. See, e.g., Riek v. Binnie, 507 A.2d 865 (Pa. Super.
1986); Vinso v. Mingo, 57 A.2d 583 (Pa. Super. 1948). Furthermore, the
trial court found no support for Appellants’ assertions of Appellee’s misuse of
the easement. Having reviewed the record, the applicable law, and the
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J-A30040-16
parties’ briefs, we affirm the judgment in favor of Appellee based on the trial
court’s April 25, 2016 opinion. We direct that a copy of that opinion be filed
along with this memorandum.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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Circulated 01/30/2017 03:31 PM
)
Charles D. Cummings and In the Court of Common Pleas
Lisa A. Cummings, his wife, of Luzerne County
Appellants
CIVIL ACTION - LAW
vs.
Sherman A. Sutton,
Appellee No. 12288 of 2012
OPINION
Procedural History
On August 6, 2012, Appellants filed a Complaint in Law and
Equity in the Luzerne County Court of Common Pleas related to the
use by their neighbor, Appellee, of an easement that runs along both
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parties' respective properties (the Easement"). In the Complaint,
Appellants sought relief in the form of a declaratory judgment to
terminate the Easement due to misuse and/or lack of necessity, legal
damages due to misuse of the Easement, and a permanent
injunction. A bench trial commenced in the matter on November 6,
2015 (the Bench Trial"). On November 17, 2015, this Court entered an
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Order holding that the Easement is a private road easement over the
property for access by landowners. The November 17, 2015 Order also
outlined conditions, agreed to by Appellee, providing for the quiet
enjoyment of the Easement by all entitled thereto.
On November 30, 2015, Appellants filed a Motion for Post Trial
Relief that raised the same arguments made during the Bench Trial. By
Order dated December l . 2015, this Court denied Appellants' Motion
for Post Trial Relief. On December 30, 2015, Appellants prematurely
filed a Notice of Appeal to the Pennsylvania Superior Court.'
Subsequently, on January 19, 2016, Appellants filed a Praecipe to
Enter Final Judgment on Docket. The Luzerne County Prothonotary
entered Final Judgment on January 19, 2016.
On January 19, 2016, Appellants filed their Concise Statement of
Errors Complained of on Appeal, identifying the following issues for
appeal:
1. The trial court erred by failing to direct the entry of judgment in
favor of Appellants.
2. In the alternative, the trial court erred by failing to modify the
November 17, 2015 decision to hold in favor of Appellants.
I An order denying a post trial motion is not immediately appealable; rather, an appeal lies from
the subsequent entry of a judgment when trial has occurred. Seamates lnt'I. Inc. v. Speedy lnt'I,
Ltd., 2016 WL 379312, *l, fn. l (Pa. Super. 2016); Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523,
525 (Pa. Super. 2006).
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3. The trial court abused its discretion by refusing to grant a
declaratory judgment to terminate the paper alley due to
misuse or lack of necessity, and, for a permanent injunction
requiring Appellee to stop using the Easement.
4. The trial court erred by failing to find that Appellee's testimony
lacked credibility.
5. The trial court erred by failing to hold that Appellee did not prove
by substantial, competent evidence that he was legally entitled
to the use and/or possession of the land in dispute.
6. The trial court erred by failing to hold that substantial, competent
evidence proved that Appellants were entitled to the entry of a
declaratory judgment to terminate the paper alley due to
misuse or due to lack of necessity, and, for a permanent
injunction.
7. The trial court erred by failing to find Appellants' testimony
credible and dispositive to the issues in this matter relating to their
request for the entry of a declaratory judgment to terminate the
paper alley due to misuse or lack of necessity and for a
permanent injunction.
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8. The trial court erred by holding that substantial, competent
testimony was presented at trial that would permit the court to
find sufficient facts existed to deny Appellants' requests for the
entry of a declaratory judgment to terminate the paper alley
due to misuse or lack of necessity and for a permanent
injunction.
9. The trial court erred as a matter of law by denying Appellants'
request for a declaratory judgment to terminate the paper alley
due to misuse or lack of necessity and for a permanent injunction
requiring Appellee to cease and desist using the Easement.
10. The trial court's decision was against the weight of the
evidence as to Appellants' requests for declaratory judgment to
terminate the paper alley due to misuse or lack of necessity and
for a permanent injunction requiring Appellee to cease and
desist using the Easement.
Prior to elaborating on the reasoning which supports this Court's
decision to deny relief to Appellants, it is helpful to clarify the issues
presented for review: whether the trial court erred by granting
judgment in favor of Appellee; whether the trial court erred in its
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witness credibility determinations; whether the evidence was
sufficient to establish that Appellee should be precluded from use of
the Easement; and, whether the trial court's holding was against the
weight of the evidence.
In a bench trial, the trial court acts as the factfinder and may
believe all, part or none of the evidence. Ruthrauff, Inc. v. Ravin, Inc.,
914 A.2d 880, 887 (Pa. Super. 2006). Because issues of credibility are
for the trial court to determine, the appellate courts are 11
••• not
permitted to reexamine the weight and credibility determinations or
substitute [their] judgment for that of the factfinder." lst_ "As the
factfinder who personally heard the witnesses testify, the trial judge is
'in the sole position to observe the demeanor of the witnesses and
assess their credibility."' Czarkowski v. Jennings, 34 Pa. D.&C. 5th 303
(Pa. Comm. Pl. 2013) (quoting Hirsch v. EPL Technologies, Inc., 910 A.2d
84, 88 (Pa. Super. 2006), opp. denied, 591 Pa. 727, 920 A.2d 833 (Pa.
2007)). The factual findings set forth below are those which this Court
has deemed credible and relevant.
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Findings of Fact
The parties' respective homes are situated in the Woodridge II
Development. (N.T., p. 6-7.) Significantly, the plot plan for the
Woodridge II Development reflects the properties owned by each
party, as well as the Easement (the "Plot Plan"). (N.T., p. 6-7.) The
parties each own their respective properties and neither party owns
the Easement. (N.T., p. 4, 9.) Appellee and his family have called the
land which comprises Woodridge II home since long before the
Development came into existence. (N.T., p. 87-89.) Prior to being
developed as Woodridge II, the entire parcel was a farm owned by
Appellee's grandparents. (N.T., p. 87.) Appellee's family then sold the
property to Hillside Farms, which sold the entire property to Woodridge
for development according to the recorded plot plan. (N.T., 88-89.)
While the Plot Plan clearly indicates the existence of the
Easement, the deed to Appellants' property also includes the
following reference to the Easement: "Ioqether with and subject to 40
feet wide [sic] unnamed alley along the southwesterly side of the
property described above connecting Sutton Road to another 40 foot
wide alley road along the rear and together with and subject to a 40
6
foot wide alley road along the rear line of the land described above."
(N.T., p. 12.) This description of the Easement is also in Appellee's deed,
as well as in various other deeds for properties in Woodridge II that
enjoy the right of access to it. (N.T., p. 31, 36.)
The Easement runs to the left of and behind Appellants'
property. (N.T., p. 13.) Appellants utilize a portion of the Easement to
the left of their property as a driveway. (N.T., p. 17.) The Easement is
also adjacent to the rear portion of Appellee's property. (N.T., p. 30.)
Appellee used the Easement to access his property for many years;
however, such use was impeded about two years ago when
Appellants blocked his access to it by placing large stones across it.
(N.T., p. 37-38, 91-92.)
During the Bench Trial, Appellants made various claims about
Appellee's alleged misuse of the Easement, including littering, driving
recklessly, being a nuisance, causing damage, and blocking the
Easement. (N.T., p. 21-29, 48-71, 79-84.) Contrary to Appellants'
descriptions, the debris that Appellants alleged Appellee littered on
their property and/or the Easement was either located on Appellee's
property, or was not otherwise deliberately scattered. (N.T., p. 93.)
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Also, Appellee only once put a rut in the Easement because his truck
started sinking into the ground somewhere above Appellant's
driveway and through no fault of his own. (N.T., p. 94-96.) It is clear
from the totality of the testimony presented at the Bench Trial that
Appellee uses the Easement a reasonable amount of time, as
needed, and in a reasonable manner. Finally, despite the fact that
Appellee was not misusing the Easement, he voluntarily agreed, at the
close of the Bench Trial, to continue to refrain from any action that
may interfere with Appellants' quiet enjoyment of the Easement. (N.T.,
p. l 06.)
Discussion
Relevant Pennsylvania precedent directs the entry of judgment
rn favor of Appellee because an easement was created by
irnplicotlone through its description in the Plot Plan and the
corresponding landowners' deeds. In Vinso v. Mingo, the
Pennsylvania Superior Court explained, 11
[w] here a street called for a
boundary in a deed is not a highway nor dedicated to public use, the
2This Court's Order dated November 17, 2015 mistakenly identifies the Easement as "express,"
rather than implied; however, such mistake is not dispositive in this matter.
8
grantee does not take title in fee to the center of it, but by implication
acquires an easement, or right of way over the lands. There is in such
a case, an implied covenant that there is a way corresponding with
the one described in the deed, that so far as the grantor is concerned
it shall be continued, and that the grantee, his heirs and assigns, shall
have the benefit of it." Vinso v. Mingo, 162 Pa. Super. 285, 288, 57 A.2d
583, 584 (Pa. Super. 1948.); See also Auman v. Grimes, 364 Pa. Super.
243, 246, 527 A.2d 1045, 1046-1047 (Pa. Super. 1987); McAndrew v.
Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (Pa. 1972).
Accordingly, Appellee enjoys a private, permanent right to use
the Easement that cannot be terminated by Appellants. In Riek v.
Binnie, the Pennsylvania Superior Court addressed an issue similar to
the instant matter, holding that the private right to use an easement
created by implication could not be extinguished by another party
who enjoys the same right. Riek v. Binnie, 352 Pa. Super. 246, 507 A.2d
865 (Pa. Super. 1986). In Riek, Plaintiffs instituted an action for a
declaratory judgment regarding the rights of Defendants to use a
private alley for ingress and egress, specifically, seeking to preclude
such use by Defendants. kl at 248, 866. The alley in question was
9
located in the middle of two properties owned by Plaintiffs and
Defendants' property was located at the end of the alley. ~ The
lower court held that Defendants had only a permissive right to use
the alley if they did not interfere with Plaintiffs' use and that such
permissive right may be terminated by Plaintiffs. ~ The Riek Court
reversed the lower court, finding that Defendants had a private right
of use of the alley, for ingress and egress, which could not be
extinguished by any action by Plaintiffs. ~
To support its holding, the Riek Court highlighted that both
Plaintiffs' and Defendants' properties, as well as the alley, were
acquired as part of a 75 acre parcel of land for which a recorded plot
plan outlined all of the streets, alleys, and individual lots.~ at 249, 866.
Both parties acquired their respective properties through
conveyances which continued to use the alley as a boundary in the
deed descriptions. ~ The Riek Court noted that, although the
passage of time and lack of use had extinguished any public rights to
use the alley, " ... the purely private rights of easement of individual
property owners in the plan of lots to use the alley or way [were] not
extinquished.t'{d, at 249, 867.
10
Similar to Riek, the instant matter involves an original parcel of
land from which a recorded plot plan was developed that
designated the lots owned by each party, as well as those owned by
others, and the Easement. (N.T., p. 6-7, 88-89.) This fact was never in
dispute during the Bench Trial. Indeed, the parties jointly entered the
Plot Plan as an exhibit and stipulated that neither party owns the
Easement. (N.T., p. 4, 6-7, 9.) Further, the Easement is described as a
boundary line in Appellants' deed, as well as in other ownersdeeds.
including that of Appellee. {N.T., p. 12, 31, 36.) Pursuant to the
precedent established by Riek and Appellants1 own evidence,
Appellees enjoy a private right to the Easement which may not be
extinguished by Appellants.
Second, even assuming, arguendo, that the misuse or
misfeasance which Appellants allege could terminate the Easement,
this Court finds credible Appellee's testimony that reflects his
reasonable use of the Easement. "ln Pennsylvania, 1the law is settled
that those who have the same rights over an easement must exercise
those rights fairly and reasonably so as not to interfere with the fair and
reasonable exercise of the same rights by others who possess them.:"
11
Czarkowski v. Jennings, 34 Pa. D.&C. 5th 303 (Pa. Comm. PL
2013)(quoting Puleo v. Bearoff, 376 Pa. 489, 492, 103 A.2d 759, 761 (Pa.
1954)). Although this Court does not hold that Appellee interfered with
the fair and reasonable exercise of Appellants' rights to the Easement,
due to the concerns of Appellants and the agreement of Appellee,
the November 17, 2015 Order precludes Appellee from taking any of
the disruptive actions on the Easement which Appellants alleged
during the Bench Trial. However, if any party in this matter interfered
with another's use of the Easement, it was Appellants when they
blocked Appellee's access to the Easement. (N.T., p. 37-38, 91-92.)
Thus, the November 17, 2015 Order also directs that neither party may
block the right of way so as to interfere with the access or use of the
Easement as set forth in the recorded plans.
(END OF OPINION)
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