J-A28032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J&D BROTHERS, INC.,                              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

OSCAR J. CRIST, DOROTHY G. CRIST,
WILLIAM SIMON, CAROLYN SIMON,
STEVEN SCHNEIDER, CHERYL S.
SCHNEIDER,

                            Appellees                  No. 562 EDA 2016


                     Appeal from the Order February 12, 2016
                 in the Court of Common Pleas of Lehigh County
                        Civil Division at No.: 2013-C-0310


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 26, 2017

          Appellant, J&D Brothers, Inc., appeals from the order entered in this

case on February 12, 2016, following this Court’s November 4, 2015 remand

of it. For the reasons discussed below, we affirm.

          In our previous decision in this matter, we adopted the trial court’s

underlying findings of fact.       (See J&D Brothers Inc. v. Finnegan, 1014

EDA 2015, unpublished memorandum at *2 (Pa. Super. filed November 4,

2015); Trial Court Opinion, 11/06/14, at 2-5).        We take the procedural

history in this matter from this Court’s prior decision.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           Appellant filed a declaratory judgment action to determine
     whether an easement existed with regard to Beacon Road. A
     non-jury trial was held on July 15, 2014. The trial court entered
     judgment on November 6, 2014, finding, inter alia, that
     Appellant possessed a prescriptive easement over Beacon Road
     as it transverses over Appellant’s properties. The court found
     that Appellant “as owner of the dominant estate, has the right to
     unobstructed use of Beacon Road for any purpose related to the
     communications tower on [Appellant’s] property or for
     recreational activity up to two times per month.” Appellant filed
     post[-]trial motions on November 17, 2014. Appellees filed
     post[-]trial motions on December [1], 2014. The trial court
     entered a clarification order on March 13, 2015 which provided
     that Appellant had unobstructed and unlimited use of Beacon
     Road for the purposes of maintaining the road, for a reasonable
     amount of time for recreational use, and for two days per month
     for any purpose related to the communications tower.

(J&D Brothers Inc., supra at * 2 (record citations omitted)).

     On appeal, Appellant argued that the trial court had wrongly

constrained its “unobstructed use of the subject easement to an unlimited

number of times two days per month for any purpose related to the

communications tower[.]” (Id. at *3). After a thorough review, this Court

found Appellant was entitled to “limited relief.”   (Id. at *6) (emphasis

added). We stated:

     . . . the trial court abused its discretion in entering an order
     which restricted the use of the prescriptive easement to two
     days per month in light of its finding that Appellant leased the
     communications tower to AT&T for telephone, cellular and
     emergency communications services. The prescriptive easement
     had been used for modifications of the communications tower,
     following Hurricane Sandy and for emergency repairs. AT&T had
     not been limited in its access to the property via Beacon Road
     during the prescriptive period.        Denying access to the
     prescriptive easement for emergency repairs and to effect
     changes to comply with the law would be unreasonable. We


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      reverse and remand for entry of an order consistent with this
      memorandum.

(Id. at **8-9) (record citations and case citations omitted).

      On December 23, 2015, the trial court issued an order directing both

parties to submit proposed orders consistent with this Court’s opinion. (See

Order, 12/23/15, at unnumbered page 1). This Court is unable to determine

from the record whether the parties complied. On February 12, 2016, the

trial court issued an order, which stated, in pertinent part:

      [Appellant], as owner of the dominant estate, has the right to
      unobstructed use of Beacon Road for purposes related to the
      communications tower on [Appellant’s] property a reasonable
      number of times two days per month. This limitation shall not
      apply in the event that emergency repairs are required or to
      effect changes in the communications tower made necessary by
      changes in the law[,] which cannot be accomplished within the
      two days per month.

(Order, 2/12/16, at unnumbered pages 1-2 ¶ 3) (emphasis added).

      On February 19, 2016, Appellant filed the instant, timely appeal. On

March 3, 2016, the trial court directed Appellant to file a concise statement

of errors complained of on appeal. See Pa.R.A.P. 1925(b). On March 31,

2016, Appellant filed a timely Rule 1925(b) statement. See id. On April 20,

2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      1. [Did] the trial court err[] when it limited Appellant, its agents
      and/or its[] lessees unobstructed use of the subject easement to
      a reasonable number of times two days per month for any
      purpose related to the communications tower located on
      Appellant’s property[?]


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      2. [Did] the trial court err[] when it limited Appellant, its agents
      and/or its lessees unobstructed use of the subject easement
      despite holding that it had not been limited in its access to the
      property during the prescriptive period[?]

      3. [Did] the trial court err[] when it limited Appellant, its agents
      and/or its lessees unobstructed use of the subject easement to a
      “reasonable number of times two days per month”, contrary to
      the status quo which has always been 24/7 access for anything
      and everything related to the communications tower enjoyed by
      Appellant, its agents and/or lessees during the prescriptive
      period; creating limitations to access that never existed[?]

      4. [Did] the trial court err[] when it limited Appellant, its agents
      and/or its lessees unobstructed use of the subject easement to
      “a reasonable number of times two days per month, except in
      the event that emergency repairs are required or to effect
      changes in the communications tower made necessary by
      changes [in] the law”[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

      Because Appellant’s four issues are closely related, we address them

together. In essence, Appellant complains that the trial court improperly

interpreted the scope of our remand order, and its February 12, 2016 order

improperly limited Appellant’s access to the communications tower.           (See

Appellant’s Brief, at 11).    The issue of whether a trial court properly

interpreted the scope of a remand order is a matter of law. See In re

Lokuta, 11 A.3d 427, 438 (Pa. 2011), cert. denied, 132 S. Ct. 242 (2011).

Here, as in all appeals raising matters of law “our standard of review is de

novo, and our scope of review is plenary.” Schwartz v. Rockey, 932 A.2d

885, 891 (Pa. 2007).




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J-A28032-16


      When a case is remanded, “a trial court has an obligation to comply

scrupulously, meticulously, and completely with an order of [the appellate

court] remanding a case to the trial court.” Commonwealth v. Williams,

877 A.2d 471, 474 (Pa. Super. 2005), appeal denied, 895 A.2d 1261 (Pa.

2006) (citation omitted). The trial court is required to “strictly comply with

the mandate of the appellate court.”        Id. at 474-75 (citation omitted).

Issues not included in the mandate cannot be considered by the trial court.

See id. at 475.

      Here, Appellant complains that the remand order wrongly limited its

unobstructed use of the communications tower to two days per month, even

though it had not been previously limited in its use of the property, thus the

order raised limitations that had not previously existed.       (See Appellant’s

Brief, at 4). This is virtually identical to the claim Appellant made in the first

appeal. (See J&D Brothers Inc., supra at *3).

      In our previous memorandum, the sole concern we expressed with the

trial court’s decision was the need to access the tower for emergency repairs

and to effect changes to comply with the law. (See id. at **8-9). For this

reason, we noted that our remand was “limited,” and we remanded for the

narrow purpose of the entry of an order that addressed our concerns. (Id.

at *6, *9).   Thus, the scope of the remand only allowed the trial court to

address the issues of emergency repair and access to comply with changes

of law.   (See id.).   The trial court issued an order in compliance with the


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J-A28032-16


remand, stating that the restrictions did not apply to cases of emergency

repairs or to situations where alterations in the tower were necessary

because of changes of law. (See Order, 2/12/16, at unnumbered pages 1-2

¶ 3). Therefore, the trial court properly limited its order to the issues we

highlighted   and    appropriately   addressed    our    concerns.       See

Commonwealth v. Tick, Inc., 246 A.2d 424, 426 (Pa. 1968) (“It was the

duty of the court below, on remand, to comply strictly with our mandate and

such compliance required the court to proceed in a manner consistent with

the views expressed in our opinion[.]”) (citation omitted); Williams, supra

at 474-75. Appellant’s general attack on the portions of the April 12, 2016

order, which were identical to those we found acceptable in the March 13,

2015 order, are simply beyond the scope of the remand and cannot be

reviewed in this appeal. See Commonwealth v. Lawson, 789 A.2d 252,

253 (Pa. Super. 2001) (“where a case is remanded to resolve a limited

issue, only matters related to the issue on remand may be appealed.”)

(citation omitted). Thus Appellant’s claims, which do not challenge the trial

court’s handling of the emergency repairs and change of law issues, are not

properly before us. See id.

     Order affirmed.




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J-A28032-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




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