J-A07004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    VASILIOS D. KIRITSIS AND                   :     IN THE SUPERIOR COURT OF
    JENNIFER L. KIRITSIS                       :          PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :     No. 1339 MDA 2019
    YOCUM INSTITUTE FOR ARTS                   :
    EDUCATION, INC.                            :

              Appeal from the Judgment Entered August 28, 2019
     In the Court of Common Pleas of Berks County Civil Division at No(s):
                                  18-13200


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                           FILED: APRIL 14, 2020

       Appellants, Vasilios D. Kiritsis and Jennifer L. Kiritsis, appeal from the

judgment entered August 28, 2019, on behalf of Yocum Institute for Arts

Education, Inc. (“Yocum Institute”). 1 We affirm.

       The trial court summarized the factual and procedural history as follows:

       On July 3, 2018, [Appellants] filed a complaint and a motion for
       preliminary injunction against [Yocum Institute] seeking to
       establish an implied easement over [Yocum Institute’s] real
       properties at 2940 Penn Avenue and 3000 Penn Avenue ([“Yocum
       Institute’s] Property[”]). [Appellants] seek ingress [from] and

____________________________________________


1 The record demonstrates that Appellants appealed the order entered July
15, 2019, in which the trial court entered a verdict in favor of Yocum Institute
after a non-jury trial and dismissed Appellants’ complaint with prejudice. In
a per curiam order, this Court held that Appellants’ appeal was interlocutory
and directed Appellants to praecipe for entry of judgment. Judgment was
entered on August 28, 2019. Therefore, Appellants notice of appeal was filed
on August 28, 2019. See Pa.R.A.P. 905(a)(5).
J-A07004-20


       egress [to] their real property at 3020 Penn Avenue
       ([“Appellants’] Property[”]), including [access to] certain parking
       spaces on [Appellants’] Property, from [Yocum Institute’s]
       Property. In their motion for preliminary injunction, [Appellants]
       requested the removal of a curb that [Yocum Institute] had
       installed on [Yocum Institute’s] Property, along the property line
       with [Appellants’] Property, which prevents [Appellants] and their
       tenants from crossing over [Yocum Institute’s] Property to reach
       [Appellants’] Property.

Trial Court Opinion, 10/9/19, at 1-2.

       After conducting a hearing, the trial court entered an order stating that

Appellants’ motion for a preliminary injunction would be denied if Yocum

Institute, at its expense, submitted a plan by October 22, 2018, for

reconfiguration of access to and from and parking at Appellants’ property, and

completed and paid for the repainting of parking lines on Appellants’ property

by December 1, 2018. Yocum Institute submitted a plan for reconfiguration

of access and parking. Appellants rejected the reconfiguration plan and filed

a motion for reconsideration, arguing that Yocum Institute’s proposed

reconfiguration plan eliminated Americans with Disability Act2 required

parking on Appellants’ Property. Appellants further argued the reconfiguration

plan proposed an unsafe plan for entering their property from Penn Avenue

and exiting their property onto Penn Avenue. On December 14, 2018, the

trial court denied Appellants’ motion for reconsideration and ordered the case

to proceed to a non-jury trial.




____________________________________________


2   42 U.S.C.A. §§ 12101-12213.

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       After the conclusion of the April 2, 2019 non-jury trial, both parties

submitted proposed findings of fact and conclusions of law. The parties also

stipulated to the following findings of fact:

          1.     [Appellants] purchased the real property situate[d] at
                 3020 Penn Avenue, Township of Spring, County of Berks,
                 Commonwealth of Pennsylvania on November 16, 2007,
                 from Anthony and Sandra L. Forino [(collectively,
                 “Forino”)].

          2.     [Yocum Institute] purchased the real property situate[d]
                 at 2940 [Penn Avenue] and also 3000 Penn Avenue,
                 Township of Spring, County of Berks, Commonwealth of
                 Pennsylvania on July 28, 2017, from the Township of
                 Spring[].

          3.     [Forino] had granted and conveyed 2940 Penn Avenue
                 and 3000 Penn Avenue to the Township of Spring by
                 virtue of a Deed of Dedication in Lieu of Condemnation,
                 dated March [2]7, 2007.[3]

          4.     [Appellants’] Property and [Yocum Institute’s] Property
                 are contiguous.

          5.     [Yocum Institute] is a non-profit organization that,
                 among other things, operates an art institute and
                 preschool/kindergarten at the Yocum [Institute’s]
                 Property.

          6.     [Appellants]    lease commercial     office   space   at
                 [Appellants’] Property.

          7.     [Appellants] owned and occupied [Appellants’ Property]
                 for nine years prior to [Yocum Institute] receiving
                 conveyance of the deed from the Township of Spring.


____________________________________________


3 Although Appellants and Yocum Institute stipulated that the deed conveying
the Yocum Institute’s property from Forino to the Township of Spring was
dated March 17, 2007, a review of the record demonstrates that the deed was
dated March 27, 2007. See Notes of Testimony, 4/2/19, at Plaintiff’s Exhibit
No. 4.

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J-A07004-20


       8.     [Yocum Institute] developed [Yocum Institute’s]
              Property consistent with plans approved by appropriate
              governmental bodies and agencies required by law,
              including the Township of Spring and Pennsylvania
              Department of Transportation.

       9.     [Appellants’] Property has an entrance that provides a
              means of ingress [from] and egress [to] Penn Avenue for
              [Appellants] and their commercial tenants.

       10.    [Yocum Institute’s] Property has two separate means of
              access to Penn Avenue. One is a two-way access
              providing ingress [from] and egress [to] Penn Avenue on
              the eastern side of the Yocum Property and there is a
              one-way exit to Penn Avenue on the western most side
              of [Yocum Institute’s] Property.

       11.    [Yocum Institute] located on [Yocum Institute’s]
              Property has a one-way flow of traffic that travels along
              a portion of the eastern side of [Yocum Institute’s]
              building, the entire rear of the building and along the
              entire western side of the building, which leads to the
              one-way exit from [Yocum Institute’s] Property to Penn
              Avenue.

       12.    On the western side of [Yocum Institute’s] building is a
              drop-off point for preschool and kindergarten children
              attending Yocum [Institute]. There are two lanes of
              traffic at the drop[-]off point. One lane is a by-pass lane
              for traffic exiting [Yocum Institute’s] Property and the
              other lane is used to drop off children at Yocum
              [Institute].

       13.    [Yocum Institute] installed a cement curb along a portion
              of the property line between [Yocum Institute’s] Property
              and [Appellants’] Property.

       14.    [Yocum Institute’s reconfiguration] plans call for an
              easement over a portion of the western side of its
              property to [Appellants’ Property] to assist with the
              ingress and egress of vehicles [entering and exiting
              Appellants’] Property. [Yocum Institute] offered this
              easement[,] as planned, but [Appellants] have rejected
              that it is acceptable.



                                    -4-
J-A07004-20


          15.    [Appellants] and their tenants had used [Yocum
                 Institute’s] Property for access to and from Penn Avenue
                 and to park in some of [Appellants’] parking spaces on
                 [Appellants’ Property] before the curb was installed.

          16.    There is no easement, recorded right-of-way, written
                 agreement or other writing that provides [Appellants]
                 access over [Yocum Institute’s] Property to [Appellants’]
                 Property.

          17.    [Appellants] did not obtain nor seek permission from the
                 Township of Spring, during [the Township’s] ownership
                 of [Yocum Institute’s] Property, to use [Yocum
                 Institute’s] Property for access to Penn Avenue and
                 [Appellants’] Property.

Stipulated Findings of Fact, 5/31/19, at unnumbered pages 1-2.

       On July 15, 2019, the trial court entered a verdict in favor of Yocum

Institute and dismissed Appellants’ complaint with prejudice. Appellants filed

a motion for post-trial relief that the trial court subsequently denied.

Appellants filed a praecipe for entry of judgment. Judgment was entered for

Yocum Institute on August 28, 2019. This appeal followed.4

       Appellants raise the following questions for our review:

       [1.]   Whether the trial court abused its discretion by failing to
              make factual findings on critical, unrefuted evidence?

       [2.]   Whether the trial court erred as a matter of law by failing to
              find the existence of an easement by implication?

       [3.]   Whether the trial court erred by applying the affirmative
              defense of laches despite the fact that [Yocum Institute]
              waived this affirmative defense?

____________________________________________


4 The trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days.
Appellants timely complied. The trial court subsequently filed its Rule 1925(a)
opinion.

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J-A07004-20



Appellants’ Brief at 4 (extraneous capitalization omitted).

      In matters of equity, our standard of review is as follows:

      Appellate review of equity matters is limited to a determination of
      whether the [trial court, as ultimate fact-finder,] committed an
      error of law or abused [its] discretion. The scope of review of a
      final decree in equity is limited and will not be disturbed unless it
      is unsupported by the evidence or demonstrably capricious.

Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000) (citation omitted),

appeal denied, 760 A.2d 855 (Pa. 2000).

      We first address Appellants’ claim that the trial court erred as a matter

of law in failing to find the existence of an easement by implication, as we find

this issue to be dispositive of the instant appeal. In determining whether an

easement by implication exists, our Supreme Court in Bucciarelli v. DeLisa,

691 A.2d 446, 448 (Pa. 1997) held that an easement by implication exists

where an easement was intended at severance and the person against whom

the easement is asserted had notice, actual or constructive, that such an

easement existed. Bucciarelli, 691 A.2d at 450. In explaining the traditional

test to determine if an easement by implication exists at severance of title,

our Supreme Court stated,

      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.

         “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

                                      -6-
J-A07004-20


          takes subject to the burden or 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 448 (ellipsis and original brackets omitted), quoting Burns Mfg. v.

Boehm, 356 A.2d 763, 767 (Pa. 1976), citing Tosh v. Witts, 113 A.2d 226,

228 (Pa. 1955).5 “An easement by implication could have arisen only at the

time at which ownership of the two parcels in question first became

separated.” Phillippi, 748 A.2d at 762 (citation omitted). “‘[P]ermanent’ or

‘continuous’ simply means that the use involved shall not have been

occasional, accidental or temporary [but, rather,] of such a character as to

enable the claimant to rely reasonably upon the continuance of such use.”

Bucciarelli, 691 A.2d at 449 (citation omitted). The Bucciarelli Court stated

that one of several factors to consider in determining whether an easement

by implication exists was

____________________________________________


5 We recognize that this Court in rendering its decision in Daddona v. Thorpe,
749 A.2d 475 (Pa. Super. 2000), which was published one day after the
decision in Phillippi, supra, identified three elements required to create an
easement by implication: “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.” See Daddona,
749 A.2d at 481. This Court in Phillippi, supra, however, did not identify
the third element as an essential element to establish an easement by
implication pursuant to the test set forth by our Supreme Court in Bucciarelli,
supra, although the third element may be considered. See Phillippi, 748
A.2d at 762 (stating, “the extent to which an easement is necessary under the
circumstances is a factor heavily weighed in determining whether an easement
should be implied”). To the extent that a conflict exists between the decisions
in Daddona, supra, and Phillippi, supra, we find the two-part test set forth
by our Supreme Court in Bucciarelli, supra, controlling.

                                           -7-
J-A07004-20


      [t]he effect of the prior use as a circumstance in implying, upon a
      severance of possession by conveyance, an easement [resulting]
      from an inference as to the intention of the parties. To draw such
      an inference[,] the prior use must have been known to the parties
      at the time of the conveyance, or, at least, have been within the
      possibility of their knowledge at that time. Each party to a
      conveyance is bound not merely to what he intended, but also to
      what he might reasonably have foreseen the other party to the
      conveyance expected. Parties to a conveyance may, therefore,
      be assumed to intend the continuance of uses known to them
      which are in considerable degree necessary to the continued
      usefulness of the land. Also they will be assumed to know and to
      contemplate the continuance of reasonably necessary uses which
      have so altered the premises as to make them apparent upon
      reasonably prudent investigation.

Id. at 448, citing RESTATEMENT (FIRST)   OF   PROPERTY § 476, Comment j (1944).

Although our Supreme Court never adopted Section 476 of the Restatement

(First) of Property, the Bucciarelli Court stated that courts may find the

factors for consideration identified in Section 476 “useful and persuasive in

analyzing cases.”   Bucciarelli, 691 A.2d at 448 n.1.        Section 476 of the

Restatement (First) of Property lists the following factors “as important in

determining whether 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 it,

      (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) the manner on which the land was used prior to its
      conveyance, and

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J-A07004-20


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

Phillippi, 748 A.2d at 762 (citation omitted); see also RESTATEMENT (FIRST) OF

PROPERTY § 476 (1944).

      Here, Appellants argue the trial court ignored “critical, unrefuted

evidence” in its factual findings and, as a result, erred when it failed to find

that Appellants established an easement by implication. Appellants’ Brief at

10-18.    Specifically, Appellants contend, inter alia, that Forino’s site map,

attached as an exhibit to the March 27, 2007 deed between Forino and the

Township of Spring, showed parking spaces on Appellants’ Property that could

only be accessed and utilized by traversing Yocum Institute’s Property. Id. at

10-11. Appellants argue that the site plan and the location of the parking

spaces, accessible only by means of traversing Yocum Institute’s Property,

demonstrated the use of Yocum Institute’s Property prior to the severance of

title. Id. 12-18. Appellants aver that this use of Yocum Institute’s Property

to gain access to the parking spaces was continuous, both before and after

the severance, and, thus, established an easement by implication. Id.

      Yocum Institute contends the Township of Spring, its predecessor in

title, did not have actual or constructive notice of the easement by implication

at the time of severance.    Yocum Institute’s Brief at 12.    Yocum Institute

argues the use of its property to access Appellants’ Property at the time of

severance was “casual and did not follow a definite, certain, well-defined

route.”   Id.   Yocum Institute avers, “[a]t severance of title, there was no



                                     -9-
J-A07004-20



permanent nor obvious servitude existing upon [Yocum Institute’s] Property

for the enjoyment of [Appellants’] Property.” Id.

      The trial court, in finding that Appellants failed to demonstrate an

easement by implication, held there was “no evidence of an open, continuous

and permanent use of an easement” across Yocum Institute’s property at the

time of the severance. Trial Court Opinion, 10/9/19, at 10-11. The trial court

stated,

      [t]here was no specific path that vehicles used to transverse
      [Yocum Institute’s Property.] It is immaterial that [Forino]
      allowed it because [he] owned both parcels. No one from [the]
      Township [of Spring] testified that the Township was aware of
      such use of [Yocum Institute’s] Property by tenants of
      [Appellants’] Property. In fact, the testimony contradicts this
      knowledge because [the] Township [of Spring] approved [Yocum
      Institute’s] land development plan.

      [The trial] court realized that [Appellants] sought an easement by
      implication and not one of necessity; however, Section 476(e) of
      the Restatement [(First)] of Property designates as one of the
      factors in determining the existence of an easement by
      implication, the extent of necessity of the easement to the
      claimant. [The trial] court made a finding of fact, [which] has not
      been disputed, that [Appellants] have an entrance and exit on
      their [p]roperty that provides ingress [from] and egress [to] Penn
      Avenue for themselves and their commercial tenants.

      Thus, in the instant case, [Appellants] failed to demonstrate the
      existence of an easement by implication under the traditional test
      that requires claimants to prove that at the time of the original
      severance, there was an open, visible, and continuous and
      permanent use of an alleged easement. [Appellants’’] and [Yocum
      Institute’s] Properties were never severed and remained separate
      parcels of land that were bought and sold separately. When
      []Forino owned both properties, he could do as he pleased with
      the two properties. There was never an identified easement.
      Drivers of vehicles simply drove over [Yocum Institute’s] Property
      anywhere they pleased. After [Appellants’ Property and Yocum


                                    - 10 -
J-A07004-20


      Institute’s Property] were sold separately, [the] Township [of
      Spring] had no notice that people were trespassing through its
      property.

Id. at 11.

      An easement by implication in the instant case could only have arisen

at severance of Forino’s ownership of the two properties.        Therefore, our

primary focus is on the transfer of Yocum Institute’s Property from Forino to

the Township of Spring on March 27, 2007. See Phillippi, 748 A.2d at 762.

      Appellants argue that the site map that was attached as an exhibit to

the March 27, 2007 deed transferring the Yocum Institute’s Property from

Forino to the Township of Spring, a portion of which is reproduced below,

demonstrates that an easement of implication existed at the time of

severance. Appellants’ Brief at 11, 15-18.; see also N.T., 4/2/19, at Plaintiff’s

Exhibit No. 4 (Page 12 of 18).




                                     - 11 -
J-A07004-20



       The record demonstrates that at the preliminary injunction hearing,

Forino testified that his tenants at Appellants’ Property would occasionally

access the parking on Appellants’ Property by crossing Yocum Institute’s

Property.6 N.T., 7/17/18, at 21. Forino did not believe that there were any

painted lines or a specific line of travel across Yocum Institute’s Property but,

rather, it was like a shopping center parking lot where drivers could cross the

parking lot using any path to get to the parking spots. Id. Forino stated that

he believed the parking spaces depicted in the site map, reproduced herein,

were consistent with the parking spaces that existed when he owned both

properties. Id. at 14. However, he was uncertain who painted the parking

space lines or when they were painted. Id. at 15. Appellants did not offer

the testimony of anyone from the Township of Spring at either the preliminary

injunction hearing or the non-jury trial who could testify about what the

Township of Spring knew or did not know about the use of the Yocum

Institute’s Property as a means of access to the parking on Appellants’

Property. See N.T., 7/17/18; see also N.T., 4/2/19. Appellants and Yocum

Institute stipulated that Appellants’ Property has its own point of ingress from

and egress to Penn Avenue.              Stipulated Findings of Fact, 5/31/19, at

unnumbered page 2 ¶9.




____________________________________________


6This use of Yocum Institute’s Property by Forino’s tenants at the time Forino
owned both properties was presumptively permissive. See Possessky v.
Diem, 655 A.2d 1004, 1009 (Pa. Super. 1995).

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J-A07004-20



      Based upon the record before us, the record supports the trial court’s

finding that the Township of Spring was unaware of the informal use of Yocum

Institute’s Property by Forino’s tenants to access parking on Appellants’

Property at the time of severance. Appellants failed to demonstrate that the

Township of Spring had actual or constructive notice of the permitted use, sub

judice, by Forino, as owner of both properties, at the time of severance.

Appellants presented no evidence of an open, visible, continuous, and

permanent use of Yocum Institute’s Property in order to give rise to actual

notice by the Township of Spring at the time of severance.       Furthermore,

absent evidence of factors that would have led the Township of Spring to know

of the use or expected continuation of use after severance, such as a specific

path cars took across Yocum Institute’s Property, there was no evidence that

would give rise to the Township of Spring’s constructive notice of the use at

the time of severance.

      Appellants are asking this Court to find that the site map, without any

supporting testimony, demonstrated that the Township of Spring, upon

looking at the parking spaces depicted thereon, would have had constructive

notice of the permitted use by the prior owner and the intent that this use was

to continue after severance.     Even if this inference could be drawn from

simply looking at the site map and amounted to constructive notice, there is

no evidence of a defined path of use across Yocum Institute’s Property that

was intended to be an easement by implication at the time of severance.

Appellants are asking for an easement by implication over all of Yocum

                                    - 13 -
J-A07004-20



Institute’s Property, a request for which there is no record evidence to

support. The site map, alone, fails to demonstrate that the Township of Spring

knew or might reasonably have known about the use of Yocum Institute’s

Property for access to Appellants’ Property at the time of severance since

Appellants’ Property had its own means of ingress from and egress to Penn

Avenue.7

       Order affirmed.8




____________________________________________


7 In a letter to the Township of Spring Planning Commission Members dated
September 5, 2017, the Director of Engineering and Planning, James I. Moll,
after a review of the Yocum Institute’s Preliminary/Final Land Development
Plans, offered for consideration by the Planning Commission that

       The parking spaces for [Appellants’ Property] to the west of
       [Yocum Institute’s Property] are oriented in such a way that
       requires vehicles to cross the subject property to access them.
       [Yocum Institute’s] plans for the access drive and “pick-up” area
       for the pre-school will prohibit such access. [The Township of
       Spring Engineering and Planning] recommend[s] that this issue
       be discussed with [Appellants].

N.T., 4/2/19, at Defendant’s Exhibit No. 5. This letter, while acknowledging
the orientation of Appellants’ parking spaces as they existed in September
2017 and the potential issues Yocum Institute’s development plans posed to
accessibility of those parking spaces, does not demonstrate constructive
notice by the Township of Spring at the time of severance in March 2007.
Appellant offered no testimony from someone connected with the Township of
Spring that would have knowledge of what the Township knew or should have
known about the use of the Yocum Institute’s Property at the time of
severance in March 2007.

8 In light of our finding of record support for judgment in favor of Yocum
Institute, we need not address Appellants’ remaining issues.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/14/2020




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