J-S07032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MITZI ANNE WITTMAN AND WILLIAM         :    IN THE SUPERIOR COURT OF
 W. WITTMAN                             :         PENNSYLVANIA
                                        :
                   Appellants           :
                                        :
                                        :
              v.                        :
                                        :
                                        :    No. 895 MDA 2018
 JONATHAN BROWN, ASHLEY                 :
 BROWN, AND BROWN HILL TREE             :
 CO., INC.

             Appeal from the Judgment Entered May 24, 2018
   In the Court of Common Pleas of Susquehanna County Civil Division at
                           No(s): 2013-01131

 MITZI ANNE WITTMAN AND WILLIAM         :    IN THE SUPERIOR COURT OF
 W. WITTMAN                             :         PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 JONATHAN BROWN, ASHLEY                 :
 BROWN, AND BROWN HILL TREE             :    No. 965 MDA 2018
 CO., INC.                              :
                                        :
                   Appellants

             Appeal from the Judgment Entered May 24, 2018
   In the Court of Common Pleas of Susquehanna County Civil Division at
                           No(s): 2013-01131


BEFORE:    OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                      FILED MARCH 12, 2019

     Mitzi Anne and William W. Wittman (Wittman) and Jonathan and Ashley

Brown and Brown Hill Tree Co., Inc. (Brown) cross appeal from the declaratory


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07032-19


judgment entered by the Court of Common Pleas of Susquehanna County (trial

court). After careful review, we affirm.

      This case involves real property owned by Wittman over which Brown

has an easement. The dispute is over whether the easement is limited to

residential uses and, if it is, is Wittman, by his forbearance of commercial

uses, barred by laches from enforcing his easement and to what extent.

                                       I.

      We take the following pertinent facts and procedural history from our

independent review of the certified record. On November 19, 1976, Pen-Jer,

Inc. transferred a portion of its real property to Frederick L. and Elaine A.

Meder (Meder).    Pen-Jer filed a corrective deed (the Corrective Deed) on

January 31, 1977, “[t]he purpose of which [was] to place of record the correct

survey map, as well as the respective rights of the parties hereto, with

reference to the fifty (50) foot right-of-way.” (Corrective Deed, 1/31/77, at

2). The Corrective Deed provided, in pertinent part:

      EXCEPTING AND RESERVING unto Pen-Jer, Inc. . . . a right of
      ingress, egress and regress as a covenant running with the land
      above described, over and along a certain fifty (50) foot right-of-
      way situated on the Easterly side of the [Meder] parcel . . . as the
      same is depicted on a map of said survey, a true and correct copy
      of which is attached hereto and recorded herewith.             It is
      specifically understood that the said right-of-way is reserved for
      non-commercial, non-industrial use.

      TOGETHER WITH a right unto [Meder], their heirs, successors and
      assigns, of ingress, egress and regress . . . over and along a
      certain fifty (50) foot right-of-way which runs through the lands
      of Pen-Jer, Inc. . . . to the [Meder] parcel, described herein, as
      the same is depicted on the map attached hereto and recorded

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      herewith, said right-of-way to be used for residential purposes
      only. It is specifically understood that this exception and
      reservation shall not be for commercial or industrial use.

(Id.) (emphasis added). Wittman purchased the Meder property on May 25,

1999, subject to the same terms.

      Pen-Jer, Inc. conveyed the adjacent property which contained the above

described right-of-way to Robert and Judy Saylor (Saylor). In 2000, Saylor

constructed a commercial automotive repair building on the property and used

the right-of-way for access to this business. On December 18, 2003, with

knowledge that Saylor used the property for the automotive repair business,

Brown purchased the property and relocated the Brown Hill Tree Co. to that

location. The deed conveying the property stated that it concerned the same

land surveyed in 1977 and that the conveyance was

      UNDER AND SUBJECT to that certain fifty (50) foot right-of-way
      excepted and reserved by the Grantors—said right-of-way having
      previously been granted to [Meder] . . . as more specifically set
      forth in a deed dated January 31, 1977, and recorded in
      Susquehanna County Deed Book 371, page 1139.

(Brown deed, 12/18/03, at 2).

      In April 2012, Wittman complained about Brown’s commercial use of the

property for the first time. In October 2012, the parties, through counsel,

drafted a Right-of-Way Use Agreement but did not sign it. (See October 2012

Right-of-Way Use Agreement).       On September 9, 2013, Wittman filed a

complaint against Brown for declaratory judgment and to quiet title seeking

to limit Brown’s use of the easement to residential purposes only. Brown filed


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an answer to the complaint asserting several affirmative defenses, including

laches. At the time Wittman filed his complaint, Brown had begun to use the

easement for heavy commercial activities, including placing heavy machinery

and large piles of mulch on the easement’s border. By the time the matter

proceeded to the bench trial, Brown had stopped using the right-of-way for

heavy commercial use. He continued to use it for light commercial use as he

had since 2003, i.e., access by his employees and large trucks to and from

the commercial building and parking employee vehicles and commercial

equipment.

      On February 8, 2018, after a bench trial, the trial court entered an order

finding in favor of Wittman and against Brown on the actions for declaratory

relief and to quiet title, declaring “that the subject easement is intended to

have a residential character.” (Order, 2/08/18, at 1 ¶ 1, 2). “As to [Brown’s]

affirmative defense of laches, the court [found] in favor of [Brown] and against

[Wittman] as it relates to [Brown’s] light commercial use of the subject

easement.” (Id. at 1 ¶ 3). The court found in favor of Wittman on Brown’s

remaining affirmative defenses, enjoined Brown from using the right-of-way

for heavy commercial purposes but allowed him to continue to utilize it for

“light commercial use in a manner consistent with its use from 2000 to 2012.”

(Id. at 2 ¶ 5; see id. at 1 ¶ 4). The court denied post-trial motions and the

parties cross-appealed. The parties and the court complied with Rule 1925.

See Pa.R.A.P. 1925.


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                                               II.

       On appeal, Brown claims that the court erred in finding that his deed

contained the same commercial restriction for the easement as the Wittman

deed and in denying his affirmative defenses other than laches.          Wittman

challenges the court’s decision finding in favor of Brown on the affirmative

defense of laches and declaring that he could continue to use the easement

for light commercial purposes. After thorough review, we conclude that the

parties’ issues lack merit.1

                                               A.

       For ease of disposition, we first review Brown’s claim that the court erred

in finding that the Brown deed contained the commercial restriction on the

easement.2 (See Brown’s Brief, at 25-27).


____________________________________________


1      When reviewing the decision of the trial court in a declaratory
       judgment action, our scope of review is narrow. Consequently,
       we are limited to determining whether the trial court’s findings are
       supported by substantial evidence, whether an error of law was
       committed or whether the trial court abused its discretion[.] . . .
       When this [C]ourt reviews the findings of the trial judge, the
       evidence is viewed in the light most favorable to the victorious
       party below and all evidence and proper inferences favorable to
       that party must be taken as true and all unfavorable inferences
       rejected.

PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001), appeal
denied, 796 A.2d 284 (Pa. 2002) (citations omitted).

2 “Whether a trial court properly interpreted a contract is a question of law
and our scope of review is plenary.” PARC Holdings, Inc., supra at 112
(citation omitted).


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      “The[] rules [of construction applicable to the grant of an easement]

provide that if the location, size or purpose of an easement is specified in the

grant, then the use of an easement is limited to the specifications.” PARC

Holdings, Inc., supra at 111 (citations omitted).           “[H]owever, [if] the

language of a granting deed is ambiguous regarding these matters, then the

intent of the parties as to the original purpose of a grant is a controlling factor

in determining the extent of an easement.” Id. (citation omitted).

      In this case, the trial court found that Brown’s commercial use “is not

consistent with the residential character of the easement, and that such

continued use would unreasonably interfere with Wittman’s enjoyment of the

easement.” (Trial Court Opinion, 2/08/18, at 10). We agree.

      The Corrective Deed from common grantor Pen-Jer, Inc., provided

Meder with an easement across Pen-Jer’s property for “ingress, egress and

regress” with the understanding that it “shall not be for commercial or

industrial use.” (Meder deed, at 2). Pen-Jer retained an easement “reserved

for non-commercial, non-industrial uses” to use that portion of the right-of-

way that extended over the Meder parcel for ingress and egress to its

property. (Id.). Reading those two paragraphs together, the language clearly

reflects an intent to maintain a residential character for the right-of-way over

both the Meder (Wittman) and Pen-Jer (Brown) properties.

      The Brown deed, in describing the right-of-way, expressly states that it

previously had been granted to Meder “as more specifically set forth in the


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deed dated January 31, 1977, and recorded in Susquehanna Deed Book 371,

page 1139.” (Brown deed, at 2). Although the Brown deed did not contain

the non-commercial use language on its face, it referenced the specific

language of the Corrective Deed, which did contain such restriction. Hence,

based on the foregoing, we conclude that the trial court properly found that

the deeds creating and transferring the right-of-way reflected an intent to

maintain its residential character, and that Brown’s deed incorporated that

language.3 Brown’s claim to the contrary lacks merit.4

                                               B.

       Having concluded that the trial court properly found that the easement

language precluded non-residential purposes, and that this was referenced in

and made a part of the Brown deed, we next address Wittman’s claim that the


____________________________________________


3 Our reasoning noting the Brown deed’s incorporation of the language of the
Corrective Deed differs slightly from that of the trial court. However, “we may
affirm the trial court’s order on any valid basis.” Plasticert, Inc. v.
Westfield Ins. Co., 923 A.2d 489, 492 (Pa. Super. 2007) (citation omitted).
Also, the trial court did refer to this language in its denial of Brown’s estoppel
claim and in its finding that Brown had a duty to investigate the nature and
scope of the easement based on it. (See Trial Ct. Op., at 13).

4  We also note that, “[o]rdinarily, when a tract of land is subject to an
easement, the servient owner may make any use of the land that does not
unreasonably interfere with the use and enjoyment of the easement.”
Ephrata Area School Dist. v. County of Lancaster, 938 A.2d 264, 267-68
(Pa. 2007). Here, it is undisputed that Brown utilized Wittman’s easement on
its property for commercial purposes. We agree with the trial court that this
“continued use would unreasonably interfere with the Wittman’s enjoyment of
the easement[,]” in violation of Brown’s duty as the servient property owner.
(Trial Ct. Op., at 10).


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court erred in applying Brown’s affirmative defense of laches to allow the

easement to be used for light commercial use.

      “[L]aches is . . . principally a question of the inequity of permitting [a]

claim to be enforced[.]”   Sernovits v. Dershaw, 127 A.3d 783, 788 (Pa.

Super. 2014) (citation omitted). “[It] is an equitable bar to the prosecution

of stale claims and is the practical application of the maxim[:] those who

sleep on their rights must awaken to the consequence that they have

disappeared.”   In re Estate of Moskowitz, 115 A.3d 372, 379 n.6 (Pa.

Super. 2015), appeal denied, 130 A.3d 1291 (Pa. 2015) (citation and internal

quotation marks omitted). In other words:

      Laches bars relief when the complaining party is guilty of want of
      due diligence in failing to promptly institute the action to the
      prejudice of another. Thus, in order to prevail on an assertion of
      laches, respondents must establish: a) a delay arising from
      petitioner’s failure to exercise due diligence; and, b) prejudice to
      the respondents resulting from the delay.

Id. at 380 (citation omitted). “Laches arises when a party’s position or rights

are so prejudiced by length of time and inexcusable delay, plus attendant facts

and circumstances, that it would be an injustice to permit presently the

assertion of a claim against him.” Id. (citation and internal quotation marks

omitted). “[T]he party asserting laches as a defense must present evidence

demonstrating prejudice from the lapse of time. Such evidence may include

establishing that . . . the defendant has changed his position in anticipation

that the opposing party has waived his claims.” Id. (citation omitted).

      In the instant matter, the trial court found:

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      Brown has demonstrated that substantial delay occurred in
      connection with Wittman’s enforcement of the residential
      character of the easement. Approximately 12 years lapsed prior
      to Wittman taking any action to restrict the use of the easement
      to residential purposes only. The record also established Brown
      was prejudiced by Wittman’s delay. Brown knew Saylor used the
      property to operate an Auto Body Repair garage and that the
      easement was utilized to allow access to the commercial garage.
      Brown would not have purchased the real property but for his
      knowledge that Saylor had been operating a commercial
      enterprise at this location for several years without interference
      from Wittman. Thus, Wittman’s failure to seek enforcement of the
      residential character of the easement resulted in prejudice to
      Brown.     For these reasons, Brown has met his burden of
      demonstrating that the doctrine of laches bars Wittman’s attempt
      to enforce the easement as it relates to Brown’s light commercial
      use of [the] easement.[a]

            [a]As to “light commercial use” of the easement, such
            use relates to the need for Brown, Brown’s employees,
            Brown’s customers[,] and Brown’s commercial
            vehicles to gain access to the commercial garage, the
            need to utilize portions of the easement for employee
            parking and/or equipment storage, and the use of
            portions of the easement for small mulch piles that do
            not become to obtrusive. . . . Saylor and Brown
            utilized [the easement for “light commercial use”]
            prior to 2012. . . .

(Trial Ct. Op., at 11-12) (one citation omitted).

      We discern no abuse of discretion.            As long ago stated by the

Pennsylvania Supreme Court:

      If the one in possession of land acts from an honest conviction
      that his legal position is sound, and this belief is based in large
      part on his adversary’s conduct, which leads him to the opinion
      his title is well founded, and on the faith of which he expends large
      sums of money, the duty of the rival claimant to assert his title
      promptly is imperative.




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Gailey v. Wilkinsburg Real Estate & Trust Co., 129 A. 445, 449 (Pa.

1925).

       Here, contrary to Wittman’s claims that Brown did not change his

position based on Wittman’s failure to act, in 2000, Saylor constructed a

commercial automotive repair building on the property and used the right-of-

way for access to this business without objection. In 2003, Brown purchased

the property and expended the sums to move his business, Brown Hill Tree

Co., Inc., to the subject property based on his belief that the ability to operate

a business on the land would continue after his purchase.         Thereafter, he

financed the business and undertook the actions necessary to run the Brown

Hill Tree Company from that location until 2012 when Wittman complained for

the first time when he began to use the property for heavy commercial use.

Where Wittman “[slept] on [his] rights [to enforce the easement’s terms by

allowing a light commercial use, he] must awaken to the consequence that

they have disappeared.”         In re Estate of Moskowitz, supra at 379 n.6

(citation and internal quotation marks omitted).5 We find no error in the trial

court’s finding that Brown could continue to use the easement for light

commercial purposes only based on Wittman acceding to such use from the

time Saylor built his garage until 2012 when he first objected to it.


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5 Because they do not affect our disposition, we need not review Brown’s
remaining issues challenging the court’s failure to apply his other affirmative
defenses. The trial court provides a thorough and correct review of these
theories in its opinion. (See Trial Ct. Op., at 13-16).

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2019




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