J-S26003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DAWN ANN ROSANO                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MITCHELL WAGNER                            :
                                               :
                       Appellant               :   No. 3289 EDA 2018

             Appeal from the Judgment Entered December 11, 2018
             In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): C-48-CV-2017-08973


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 03, 2019

        Mitchell E. Wagner appeals from the judgment1 entered after the trial

court found that Appellee, Dawn Ann Rosano, had established her right to a

twenty-foot-wide easement by implication over a driveway situated on

Wagner’s property. We affirm.

        Wagner and Rosano own adjacent pieces of property. Rosano’s property

is accessed from Rutt Road (“Rutt Road property”), while Wagner’s property

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 “Orders denying post-trial motions … are not appealable. Rather, it is the
subsequent judgment that is the appealable order when a trial has occurred.”
Harvey v. Rouse Chamberlin Ltd., 901 A.2d 523, 525 n.1 (Pa. Super. 2006)
(citation omitted). Here, judgment was entered by praecipe on December 11,
2018; thus, Wagner’s notice of appeal was mislabeled. Despite this error, we
will address the appeal because judgment has been entered on the verdict.
See Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781
A.2d 1263, 1266 n.3 (Pa. Super. 2001). We have corrected the caption
accordingly.
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is accessed from Locke Heights Road (“Locke Heights property”). Wagner’s

parents acquired the Rutt Road property in 1950 and the Locke Heights

property in 1963. Wagner’s parents continually used a driveway located on

the Locke Heights property (“the Locke Heights driveway”) so that they could

park their car in a basement garage located at the rear of the Rutt Road

property. The Locke Heights property featured an automotive business still in

operation to this day.

      In 2008, Wagner’s mother bequeathed title to the Rutt Road property

to Wagner’s brother, and title to the Locke Heights property to Wagner.

Beginning in 2009, Wagner’s brother leased out the Rutt Road property. The

first lessee utilized the Locke Heights driveway to access the Rutt Road

property in the same way Wagner’s parents did.

      In 2015, Wagner’s brother leased the Rutt Road property to Rosano.

Rosano continued to use the Locke Heights driveway to access the garage on

the Rutt Road property.    Further, Wagner’s brother traversed the Locke

Heights driveway to access the Rutt Road property, when necessary.

      At some point after Rosano began to lease the Rutt Road property,

Wagner asked his brother to block off the driveway from the Rutt Road

property. However, Wagner’s brother refused.

      In 2016, Wagner’s brother sold the Rutt Road property to Rosano.

Sometime thereafter, Wagner placed a concrete blockade between the

driveway and the Rutt Road property.      While the concrete blockade was

eventually torn down, another blockade was eventually erected in its place.

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      Due to Wagner’s blockade, Rosano was forced to park her vehicle at the

front of the Rutt Road property. In doing so, her vehicle was hit several times

and would occasionally be buried by snow plowed from Rutt Road.

      In 2017, Rosano constructed a parking pad in the front of the Rutt Road

property. In addition, Rosano considered the possibility of building a driveway

on the property, apparently from a Rutt Road access point. However, she

concluded that given the existence of a large catch-basin on one side of the

property and a lack of space on the other side, it is not feasible for her to do

so. Accordingly, because access from the Locke Heights property is no longer

viable, Rosano does not have access to the garage in the rear of her property

and must either utilize Rutt Road or her parking pad for parking purposes.

See Decision of Trial Court, 9/6/18, 1-6.

      After a nonjury trial, the trial court issued a verdict and written decision

on September 6, 2018.      The court denied Wagner’s post-trial motion, and

Wagner filed this timely appeal.

      In his appeal, Wagner presents four issues:

      1. Did the trial court err in granting Rosano an easement by
         implication where Wagner’s parents alienated both properties
         without specifying in writing or orally which property would be
         subservient and which would be dominant?

      2. Did the trial court err when it granted Rosano an easement by
         implication when the evidence established that the use of the
         at-issue driveway was permissive, not of a continued nature,
         and there was no important or necessary reason for Rosano to
         obtain a right-of-way over Wagner’s property?




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      3. Did the trial court err when it granted Rosano an easement by
         implication where Rosano, prior to purchasing the land from
         Wagner’s brother, expressed the understanding that Wagner
         would not permit her to access the rear of her property,
         thereby waiving her right to claim an easement by implication?

      4. Is the finding of an easement by implication an abuse of
         discretion, given that said easement is not fixed, but is
         ambulatory, and further, the easement places an undue burden
         on Wagner, which should have been considered in the relevant
         balancing test?

See Wagner’s Brief, at 4.

      Preliminarily, we note our standard and scope of review in equity

actions:

      The trial judge, sitting in equity as a chancellor, is the ultimate
      fact-finder. The scope of review, therefore, is limited. The final
      decree will not be disturbed unless the chancellor committed an
      error of law or abused his or her discretion. The findings of fact
      made by the trial court will not be disturbed unless they are
      unsupported by competent evidence or are demonstrably
      capricious.

Griffith v. Kirsch, 886 A.2d 249, 253 (Pa. Super. 2005) (citation omitted).

      Here, all four of Wagner’s issues on appeal challenge the trial court’s

determination that the Locke Heights property was subject to an easement by

implication in favor of the Rutt Road property.

      It has long been held in this Commonwealth that although the
      language of a granting clause does not contain an express
      reservation of an easement in favor of the grantor, such an
      interest may be reserved by implication, and this is so
      notwithstanding that the easement is not essential for the
      beneficial use of the property.

Daddona v. Thorpe, 749 A.2d 475, 480 (Pa. Super. 2000) (citation omitted).




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        The circumstances which will give rise to an impliedly reserved
        easement [are]: where an owner of land subjects part of it to an
        open, visible, permanent and continuous servitude or easement in
        favor of another part and then aliens either, the purchaser takes
        subject to the burden of the benefit as the case may be, and this
        is irrespective of whether or not the easement constituted a
        necessary right of way.

Id., at 481 (citation omitted) (formatting altered).

        As such, “[a]n easement by implication can be found to exist where the

intent of the parties is demonstrated by the terms of the grant, the property’s

surroundings and any other res gestae of the transaction.”        Phillippi v.

Knotter, 748 A.2d 757, 761 (Pa. Super. 2000) (citation omitted).            “Two

different tests have been utilized in this Commonwealth to determine whether

an easement has been created by implication: the traditional test and the

Restatement of Property test.” Id. (citation omitted). As to the traditional

test:

        Three things are regarded as essential to create an easement by
        implication on the severance of the unity of ownership in an
        estate; first, a separation of title; second, that, before the
        separation takes place, the use which gives rise to the easement,
        shall have been so long continued, and so obvious or manifest, as
        to show that it was meant to be permanent; and third, that the
        easement shall be necessary to the beneficial enjoyment of the
        land granted or retained. To these three, another essential
        element is sometimes added, that the servitude shall be
        continuous and self-acting, as distinguished from discontinuous
        and used only from time to time.

Daddona, 749 A.2d at 481 (citations omitted). The requirement of a showing

of necessity does not require a showing of absolute necessity, but rather only

calls for a showing that the claimed easement is convenient or beneficial to


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the property which would benefit from the easement.            See Possessky v.

Diem, 655 A.2d 1004, 1009 n. 2 (Pa. Super. 1995).

      Conversely, the Restatement test “emphasizes a balancing approach,

designed to ascertain the actual or implied intention of the parties. No single

factor under the Restatement approach is dispositive. Thus, the Restatement

approach and the more restrictive tests … co-exist in Pennsylvania.”          Id.

(citation omitted) (alteration in original).     The Restatement’s Section 476

utilizes the following factors to determine if an easement by implication exists:

      (a)   whether the claimant is the conveyor or the conveyee,

      (b)   the terms of the conveyance,

      (c)   the consideration given for the conveyance,

      (d)   whether the     claim   is    made   against   a   simultaneous
            conveyance,

      (e)   the extent of necessity of the easement to the claimant,

      (f)   whether reciprocal benefits result to the conveyor and the
            conveyee,

      (g)   how the land was used prior to its conveyance, and

      (h)   the extent to which the prior use was or might have been
            known to the parties.

See Phillippi, 748 A.2d at 762. Moreover, we have indicated that “the extent

to which an easement is necessary under the circumstances is a factor heavily

weighed in determining whether an easement should be implied.”                Id.

(citations and quotation marks omitted).




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      Here, the trial court utilized the traditional test to establish the existence

of an easement by implication. It found that “a separation of title occurred

when [Wagner’s mother] bequeathed the [Rutt Road property] to [Wagner’s

brother] and the [Locke Heights property] to [Wagner],” Decision of Trial

Court, 9/6/18, at 8, which satisfied the traditional test’s first element.

      As to the second element, the trial court found that Wagner’s parents,

from the moment they acquired the Rutt Road property until title was

separated, “continuously, obviously, and manifestly used the [d]riveway to

access the Rutt Road [p]roperty’s garage.” Id. This use predated Wagner’s

parents’ acquisition of the Locke Heights property in the 1960s. See N.T.,

6/13/18, at 12-13 (identifying that in the 1950s, Wagner’s parents would use

the Locke Heights property’s access point “to gain access to the rear” of the

Rutt Road property without problem).

      On the third element, the court found that Rosano’s use of the driveway

“is necessary to her beneficial enjoyment of the [Rutt Road property], as the

[d]riveway leads to an enclosed garage on the property.” Decision of Trial

Court, at 8-9. Although it conceded that Rosano’s parking pad provides her

with the ability to park on her property, depriving Rosano of the driveway

means that she has no vehicular access to her enclosed garage. See id.

      And, as to the occasionally included fourth element, the court found that

the driveway’s use “has been continuous and self-acting, as opposed to

discontinuous or used only on occasion.” Id.


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      The court did not consider the Restatement test in its analysis, finding

such an inquiry would “not be useful” here. Id., at 10; see also Bucciarelli

v. DeLisa, 691 A.2d 446, 448 n.1 (Pa. 1997) (our Supreme Court declining

to specifically adopt Property Restatement Section 476, but merely using it as

“useful and persuasive” for analysis purposes). The court stated that “at the

time of the separation of title, it was apparent that [Wagner’s mother]

intended to convey a permanent easement over the [d]riveway to [Wagner’s

brother] and his successors.” Decision of Trial Court, at 10.

      First, Wagner argues that an easement by implication should not have

been granted, given that Wagner’s mother did not specify in writing or orally

which property would be subservient and which would be dominant.           See

Wagner’s Brief, at 16.    Wagner cites to Maioriello v. Arlotta, for the

proposition that if both lots are conveyed by a common owner at the same

time, it is impossible to imply that the common owner was making one

property servient to the other. See 73 A.2d 374, 375 (Pa. 1950).

      However, the Court in Maioriello did not explicitly apply this rule.

Rather, it found that the record contained no evidence of whether an easement

existed. See id., at 375-376. Therefore, Mairoriello must be viewed as an

application of the general rule that the intention of the parties, as

demonstrated by circumstances, is the primary concern.          The Mairoriello

Court merely found that the simultaneous conveyances did not support the

creation of an implied easement.


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      While the trial court did not address the Restatement test, we note that

the   Restatement   test   does   not   support   Appellant’s   proposition   that

Mairoriello bans implied easements where a common owner conveyed the

subject properties simultaneously. Our Supreme Court has declined to

specifically adopt Section 476, instead finding it to be persuasive. However,

we have utilized the Restatement test in many instances.              See, e.g.,

Phillippi, 748 A.2d at 762-63. Moreover, we have indicated that “[n]o single

factor under the Restatement approach is dispositive.” Id., at 762 (citation

omitted). Hence, because Section 476(d), one of the eight factors, asks us to

consider if the claim is made against a simultaneous conveyance, it is not, by

itself, fatal to Rosano’s case that Wagner and his brother received their

properties simultaneously. In fact,

      [i]t is … important to consider whether [an easement] is claimed
      against a simultaneous conveyee. Where the claim is thus made,
      the implication is stronger than where the claim is made against
      the conveyor himself. It is reasonable to infer that a conveyor who
      has divided his land among simultaneous conveyees intends that
      very considerable privileges of use shall exist between them.
      Commonly, in such cases, the conveyance constitutes a family
      distribution, and, where this is true, the probability of a desire
      that existing conveniences shall continue to be operative is
      greater than the probability that a conveyor would desire
      them continued as against himself. In such cases, the fact that
      the conveyance is wholly gratuitous is of relatively little
      significance.

Restatement (First) of Property § 476 (1944), Comment (emphasis added).




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      Accordingly, Wagner’s argument is without merit. The operative test is

whether the circumstances support an inference that Wagner’s mother

intended to reserve an easement over the Locke Heights property. Despite

the language in Maioriello cited by Wagner, an easement can be implied

under the circumstances of this case. Therefore, Wagner is due no relief on

this issue.

      Second, Wagner contends that use of the driveway on his property was

permissive, not of a continued nature, and that no important reason exists for

Rosano to use the driveway. See Wagner’s Brief, at 19. Wagner claims that

the Rutt Road property and the Locke Heights property “were not part of a

common tract.”    Id.   Further, Wagner states that an easement “is not

necessary to the beneficial enjoyment of” Rosano’s Rutt Road property. Id.,

at 22. And finally, Wagner avers that it would be possible for a driveway to

be constructed from Rutt Road to the garage behind Rosano’s house, thus

obviating the need for access to Wagner’s property. See id.

      As stated, supra, we will not disturb the trial court’s findings of fact

unless such findings are unsupported by competent evidence or are

demonstrably capricious. See Griffith, 886 A.2d at 253.

      Wagner does not describe how use of the driveway was only permissive

and does not identify how prior use of the driveway to access the Rutt Road

garage was not continuous. Instead, he only illuminates the possibility that




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Rosano could construct her own driveway from Rutt Road to give herself

access to the garage on her property.

      Absolute necessity is not a requirement for the finding of an easement

by implication; rather the easement need only be convenient or beneficial to

the dominant estate. See Possessky, 655 A.2d at 1009 n. 2. The trial court

found that an easement by implication allowed Rosano convenient and

beneficial access to her garage, see Decision of Trial Court, at 9, and we

discern no fault in this finding, as it is supported by competent evidence. See,

e.g., N.T., at 61 (stating that Wagner’s actions in blocking the driveway where

it met the Rutt Road property prevented Rosano from access to her garage).

      In addition, the trial court apparently considered Rosano’s testimony to

be credible when she stated that she could not construct a driveway on her

property. See Decision of Trial Court, at 5. Thus, regardless of Wagner’s

position that it is physically possible for a driveway to be constructed on the

Rutt Road property, a stance only supported by three sentences within his

brief, absent a demonstrably capricious factual finding, we are not at liberty

to disturb the trial court’s findings. Accordingly, Wagner’s claim fails.

      Third, Wagner suggests that Rosano’s apparent acknowledgement that

she would not be permitted to use Wagner’s driveway constitutes waiver of

her right to obtain an easement by implication. However, Wagner has not

cited to any authority to support this proposition, nor has Wagner cited to the

record to support his contention that Rosano took title to the Rutt Road


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property under the expectation that she would not have access to the Locke

Heights driveway. “[W]here an appellate brief fails to provide any discussion

of a claim with citation to relevant authority or fails to develop the issue in

any other meaningful fashion capable of review, that claim is waived. “

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations

omitted); see also Pa. R.A.P. 2119(a) (establishing that each point in an

argument must be “followed by such discussion and citation of authorities as

are deemed pertinent”). “It is not the obligation of this Court … to formulate

[a]ppellant’s arguments for him.” Johnson, 985 A.2d at 924.

      Wagner fails to cite any legal authority for his proposition that Rosano

“accepted the situation as it was, and … is not entitled to assert a claim to an

easement that is other than an express written grant, by necessity, or by

[prescription].” Appellant’s Brief, at 23.    Wagner has therefore waived this

argument.

      Even if it had been properly presented, the record does not support

Wagner’s factual contentions. In the body of Wagner’s argument, he contends

that Rosano had acknowledged that she “could be denied access” and was

aware of the “possibility of denial of access” upon acquiring title to the Rutt

Road property. Wagner’s Brief, at 23. However, the conditional nature of

those phrases defeats Wagner’s argument that Rosano knew she would be

absolutely prohibited from using the Locke Heights driveway.




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         Moreover, at trial, Rosano testified that she was not informed that she

would not have access to the Locke Road property until Wagner’s attorney

notified her some time after she had acquired the Rutt Road property. See

N.T., at 65-66; see also N.T., at 37 (Wagner’s brother indicating that he did

not represent to Rosano that he had been asked by Wagner to cut off access

to the Rutt Road property via the Locke Heights property).           Accordingly,

Wagner’s third argument merits no relief in any event.

         Fourth, Wagner asserts that the trial court abused its discretion because

the implied easement over the Locke Heights property is not fixed but is

ambulatory. He further contends the easement places an undue burden on

him.

         Wagner states that because repaired cars are continually parked in

random locations throughout the Locke Heights property, the easement has

no defined boundaries and therefore varies based on the day and location of

those vehicles. The trial court’s verdict indicates that Rosano “has a twenty-

foot-wide easement by implication over the driveway situated on [Wagner’s]

property for the purpose of accessing the garage in the rear of [Rosano’s]

property.” Verdict, 9/6/18, at 1. If we were confined to reviewing the verdict

alone, Wagner’s issue might have arguable merit. However, a review of the

record reveals that the location of the easement is easily ascertainable and

fixed.




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      Wagner’s brother testified that, when his parents owned both the Rutt

Road and the Locke Heights property, the Rutt Road garage was accessed

“[o]ff of Locke Heights Road, along the south of the … Rutt Road property,

and then [one would] make a right up into the driveway.” N.T., at 12. A

gravel drive situated along the north of the Locke Heights property provided

“access to all of the properties along its northerly border.” N.T., at 19.

      And while Wagner parks cars near or on this route, “anybody going [in]

and out goes around them.” Id., at 20. The gravel drive has been used as

driveway access since 1950. See id., at 25-26. Given the exact same or at

least fundamentally similar use of the Locke Heights gravel drive undertaken

by Wagner’s parents, Wagner’s brother, the tenant prior to Rosano, and

Rosano herself, it cannot be said that the easement by implication as defined

by the trial court is ambulatory. The parties have a general understanding of

the access point and path of travel so that Rosano can unambiguously access

the garage at the back of the Rutt Road property.

      Wagner also, in one sentence, contends that the damage to himself

greatly outweighs any benefit obtained by Rosano as a result of this easement

by implication. Wagner does not outline what damages he has incurred nor

does he cite to anything of record to support his proposition. Wagner has

failed to develop this issue, and as such, he has waived it. See Johnson, 985

A.2d at 924.

      As we find none of Wagner’s issues to have merit, we affirm.


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     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/19




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