J-A17033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARLINO EAST BRANDYWINE, L.P.,                 IN THE SUPERIOR COURT OF
CHRISTINA B. WATTERS AND                             PENNSYLVANIA
KATHERINE W. KETTLEY, CO-
ADMINISTRATORS OF THE ESTATE OF
FRANK WATTERS; AND CHRISTINA B.
WATTERS AND KATHERINE W. KETTLEY,
CO-ADMINISTRATORS OF THE ESTATE
OF BEATRICE S. WATTERS, DECEASED

                            Appellees

                       v.

BRANDYWINE VILLAGE ASSOCIATES
AND ASSOCIATES WHOLESALERS, INC.,

                            Appellant
                                                    No. 2558 EDA 2013
APPEAL OF: BRANDYWINE VILLAGE
ASSOCIATES


                 Appeal from the Order entered August 19, 2013
                In the Court of Common Pleas of Chester County
                       Civil Division at No: 2011-05037-MJ


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 20, 2014

       Brandywine Village Associates (BVA) appeals from an order1 that

granted the petition of Appellee, Carlino East Brandywine, L.P. (Carlino), for

specific performance. The order required BVA to adhere to the terms of a
____________________________________________


1
  The order appealed contains three dates: the date the judge signed it, the
date the prothonotary received it, and the date the prothonotary sent it to
the parties. The final date is the date of entry for purposes of appeal.
Pa.R.A.P. 108(a)(1); Pa.R.C.P. No. 236(a)(2).
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1994 Cross Easement Agreement (Agreement), connect its property to a

public sewer, and disconnect from the private sewer system it maintained on

Carlino’s property as permitted by the Agreement. We conclude sua sponte

that the trial court’s order is interlocutory and therefore not appealable.

Accordingly, we quash this appeal for lack of jurisdiction.

       At the outset, multiple procedural irregularities, contradictory trial

court orders, and the absence of many documents from the certified record

have hampered our review of this case.           This case originally involved two

separate declaratory judgment actions filed by Carlino and BVA against each

other. On September 28, 2011, the trial court issued an order completely

merging the two declaratory judgment actions.               The trial court also

consolidated the combined declaratory judgment actions with a land use

appeal for administrative purposes only. Though not referenced in the trial

court’s September 28, 2011 order, the land use appeal was actually two

consolidated land use appeals. The September 28, 2011 order directed the

parties to file all documents at one of the land use appeal dockets. After this

appeal was filed, the trial court certified to this Court only the record of the

declaratory judgment action—and not the record of the land use appeals.

After the September 28, 2011 order, several documents were cross-filed to

the declaratory judgment action, but many apparently were not.2                On

____________________________________________


2
  For example, Carlino requested leave of court to file a first amended
complaint. The first amended complaint is not in the certified record.
(Footnote Continued Next Page)


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September 20, 2012, the trial court issued a second consolidation order

that—with no reference to the September 28, 2011 order or the land use

appeal—directed that all documents be filed to the declaratory judgment

docket. Fortunately, the petition giving rise to the order appealed from and

all related documents were filed to the declaratory judgment action docket.

      BVA and Carlino own side-by-side parcels of land abutting the

Horseshoe Pike (U.S. Route 322) in East Brandywine Township, Chester

County.    To the east of BVA’s eleven-acre property is North Guthriesville

Road. Carlino’s ten-acre property is immediately to the northwest of BVA’s

parcel. The two parcels were once owned by Frank and Beatrice Watters,

who are now deceased.3           BVA bought its property from them in 1994 and

built a shopping center, Cropper’s Food Market, one year later. Associated

Wholesalers Inc., BVA’s tenant, operates Cropper’s Food Market. Carlino’s

land is not yet developed.

      When the Watters sold BVA its land, the parties entered into the

Agreement on June 24, 1994. The Agreement included several easements

over the Watters’ (now Carlino’s) land for the benefit of BVA’s land.     The
                       _______________________
(Footnote Continued)

Additionally, on October 12, 2012, the trial court denied a motion for
summary judgment filed by Carlino. The trial court’s order references the
motion, various responses and replies, and supplemental exhibits. None of
these documents are in the certified record.
3
 Carlino is the equitable owner. The Watters’ estates, represented by their
executrices, are the legal owners. For convenience, we will refer to Carlino
as the owner.



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first, a Sewer System Easement, granted BVA the right to install and operate

a private sewage treatment plant on Carlino’s land. Agreement ¶ A.         The

second, an Access Easement, granted BVA the right to construct and use a

driveway to allow ingress and egress from BVA’s property to the Horseshoe

Pike.     Id. ¶ B.   The third, a Stormwater Basin and Drainage Easement,

allowed the construction of a retention basin to drain storm water from

BVA’s property and the access driveway. Id. ¶ C.

         This appeal principally concerns the Sewer System Easement, which

permitted BVA to build a sewage treatment plant on Carlino’s land to handle

the sewage from BVA’s property, and provided for the sharing of operating

costs.     The Agreement also provided the Sewer System Easement would

terminate if a publicly operated sewer system became available to service

BVA’s property.

         Carlino’s second amended complaint contains the following counts: (I)

injunction and ejectment; (II) continuing trespass; (III) breach of contract;

and (IV) “declaratory judgment/specific performance re: sewer cross

easement.”       BVA filed preliminary objections to the second amended

complaint. While the preliminary objections were pending, Carlino filed a

“Petition for Specific Performance” of the Agreement regarding the Sewer

System Easement.4         The trial court issued a rule to show cause, to which

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4
 We are unsure how the trial court had authority to entertain a petition that
sought entry of partial judgment before the pleadings were closed. Cf.
(Footnote Continued Next Page)


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BVA filed an answer. The parties took depositions and filed memoranda in

support of their respective positions. After hearing oral argument, the trial

court granted Carlino’s petition by entering the following order:

      AND NOW, this 15th day of August, 2013, upon consideration of
      [Carlino’s] Petition for Specific Performance of Easement
      Agreement[,] [Carlino’s] Memorandum of Law in support of
      [Carlino’s] Petition, the exhibits and deposition testimony of the
      Township Sewer Engineer Joseph Boldaz and Engineer Adam
      Brower[,] and all responses thereto [sic], it is hereby ORDERED
      and DECREED that:

          1. [Carlino’s] Petition for Specific       Performance     of
             Easement Agreement is GRANTED.

          2. [BVA] is ORDERED to comply with the Sewer Easement
             Agreement under Section A11 of the Cross Easement
             Agreement and to Accomplish all the following:

             a. Prepare all plans necessary for installing a sewer line
                to connect the Brandywine Village shopping center
                property to the East Brandywine Township Municipal
                Authority’s public sewer system within sixty (60)
                days from the date of this Order.

             b. File all necessary applications to obtain the
                necessary governmental permits and approvals
                required to connect the Brandywine Village Property
                to the Authority’s public sewer system within thirty
                (30) days thereafter.

             c. Prosecute all applications for permits and any other
                approvals diligently.

             d. Upon physical connection of its property to the
                Authority’s sewer system, and issuance by the
                       _______________________
(Footnote Continued)

Pa.R.C.P. 1035.2 (requiring summary judgment requests to be made by
motion after the relevant pleadings are closed). However, BVA did not
object to any procedural irregularities.



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                 Township and/or Authority, as applicable, of the
                 permits and approvals to discharge sewage from its
                 property to the said sewer system, within 30 days
                 thereafter, [BVA] shall disconnect its property from
                 the    on-site   wastewater    facilities,  including
                 conveyance and disposal systems, located on the
                 Watters’ property, and decommission said system,
                 but in no event more than 180 days after said
                 permits, including governmental permits, if any,
                 required to authorize such decommissioning and
                 abandonment, are issued.

              e. Cooperate with [Carlino], if necessary in their [sic]
                 efforts to secure the necessary approvals to connect
                 the Watters[’] Property to the Authority’s public
                 sewer system.

              f. Cease all interference with [Carlino’s] and the
                 Township’s efforts to secure the necessary approvals
                 to connect the Watters’ Property to the Authority’s
                 public sewer system.

          3. It is further ORDERED that this Court shall retain
             jurisdiction over this mater for purposes of enforcing
             the Easement Agreement.

Order, 8/19/13. This appeal followed.5

       Before we reach the merits of this appeal, we must consider whether

we have appellate jurisdiction.            “[S]ince we lack jurisdiction over an

unappealable order it is incumbent on us to determine, sua sponte when

necessary, whether the appeal is taken from an appealable order.” Gunn v.

Auto. Ins. Co. of Hartford, Conn., 971 A.2d 505, 508 (Pa. Super. 2009)

(quotation omitted); see also Bailey v. RAS Autobody, Inc., 85 A.3d
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5
 BVA also filed a petition for reconsideration. The trial court denied BVA’s
petition and stated in passing that the order granting specific performance
was a “final order.”



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J-A17033-14



1064, 1067-68 (Pa. Super. 2014) (noting that this Court can inquire, “at any

time, sua sponte, whether an order is appealable”).

      Only certain orders are appealable: (1) final orders, Pa.R.A.P. 341; (2)

interlocutory orders as of right, Pa.R.A.P. 311; (3) interlocutory orders by

permission, Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(c); and (4) collateral

orders, Pa.R.A.P. 313. Bailey, 85 A.3d at 1068 (quotation omitted). Final

orders include some orders in declaratory judgment actions, which the

Declaratory Judgments Act defines as final.           Pa.R.A.P. 341(b)(2); 42

Pa.C.S.A. § 7532; compare Nationwide Mut. Ins. Co. v. Wickett, 763

A.2d 813, 817 (Pa. 2000) (holding that “an order in a declaratory judgment

action that either affirmatively or negatively declares the rights and duties of

the parties constitutes a final order”), with U.S. Orgs. for Bankruptcy

Alternatives, Inc. v. Dep’t of Banking, 26 A.3d 474, 478 (Pa. 2011)

(holding that an order disposing of only some claims for declaratory relief is

interlocutory and not final), and Pa. Banker’s Ass’n v. Pa. Dep’t of

Banking, 948 A.2d 790, 800 (Pa. 2008) (same).                  This court lacks

jurisdiction over appeals taken from interlocutory, non-appealable orders.

Motley Crew, LLC v. Bonner Chevrolet Co., 93 A.3d 474, 476 (Pa. Super.

2014).

      Orders granting relief on some—but not all—claims are not final

orders, unless a statute defines, or the trial court certifies the order as final.

See Pa.R.A.P. 341(b); Druot v. Coulter, 946 A.2d 708, 709-10 (Pa. Super.

2008) (per curiam) (quashing appeal from summary judgment order that did

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J-A17033-14



not address defendants’ counterclaims); Moore Motors, Inc. v. Beaudry,

775 A.2d 869, 869-70 (Pa. Super. 2001) (per curiam) (same).

       We hold that the order appealed from is interlocutory and non-

appealable. Although this case began as two declaratory judgment actions,

Carlino later filed a second amended complaint including non-declaratory

judgment claims: ejectment, an injunction, and damages for breach of

contract.      The    order    appealed        from   in   this   case   granted   specific

performance, in response to a petition for specific performance. It did not

declare rights under the Declaratory Judgments Act, even though Carlino

improperly requested declaratory relief and specific performance in a single

count of its second amended complaint.6                Moreover, specific performance

and declaratory relief are distinct remedies with distinct purposes.7



____________________________________________


6
  A party requesting declaratory relief as ancillary relief must plead that
request in a separate count of the complaint. Pa.R.C.P. Nos. 1020, 1602.
7
  “Specific performance is an equitable remedy that permits the court ‘to
compel performance of a contract when there exists in the contract an
agreement between the parties as to the nature of the performance.’”
Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006) (quoting Geisinger
Clinic v. Di Cuccio, 606 A.2d 509, 521 (Pa. Super. 1992)) (emphasis
removed). It is designed for situations where money damages would
insufficiently remedy a breach of contract. Id. In contrast, declaratory
judgment orders “declare rights, status, and other legal relations whether or
not further relief is or could be claimed.” 42 Pa.C.S.A. § 7532. The
Declaratory Judgments Act was designed to prevent objections that
declaratory relief represents an advisory opinion. Wickett, 763 A.2d at 819
(Saylor, J., dissenting).



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       Carlino filed a petition for specific performance seeking relief on only

one count of a multi-count complaint. In response, the trial court granted

specific performance—not declaratory relief. Because the trial court’s order

granting specific performance is a partial adjudication, it is interlocutory and

not appealable.8 Therefore, this Court lacks jurisdiction to hear this appeal.

       Appeal quashed.




____________________________________________


8
  To the extent that the order can be viewed as a declaratory judgment, we
note that the law is unsettled as to whether it is appealable. The Supreme
Court’s Wickett line of cases stands for the proposition that an order in a
declaratory judgment action is final unless it grants only partial
declaratory relief. See Bankruptcy Alternatives, 26 A.3d at 478. In
another line of cases, this Court has held that an order granting ancillary
declaratory relief in a civil action is not final if non-declaratory judgment
claims remain pending in the trial court. See Bombar v. W. Am. Ins. Co.,
932 A.2d 78, 85-86 (Pa. Super. 2007); Moore Motors, 775 A.2d at 869-70;
Cresswell v. Pa. Nat’l Mut. Cas. Ins. Co., 820 A.2d 172, 176 n.2 (Pa.
Super. 2003); Bolmgren v. State Farm Fire and Casualty Co., 758 A.2d
689, 691 (Pa. Super. 2000).        But see Pa. Servs. Corp. v. Tex. E.
Transmission, LP, --- A.3d ---, 2014 PA Super 164, 2014 WL 3721418, at
*1-2 & n.1, 2014 Pa. Super. LEXIS 2317, at 1-3 & n.1 (filed July 29, 2014)
(addressing the merits of an appeal from a declaratory judgment order
where non-declaratory judgment claims remained pending). We need not
now reconcile these cases, because the order in this case granted specific
performance—not declaratory relief.

In addition, to the extent that the trial court ordered BVA to perform
contractual obligations, the order is not an injunction appealable under Rule
311(a)(4). The trial court did not address Carlino’s claim for an injunction,
which is contained in a separate count of the second amended complaint.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2014




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