J-A30011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN W. NEVILLE JR.,                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT LARDIERE, ADMINISTRATOR OF
THE ESTATE OF MICHELE S. LARDIERE,
FORMERLY MICHELE S. LYNN

                            Appellant              No. 330 MDA 2016


               Appeal from the Judgment Entered March 28, 2016
                In the Court of Common Pleas of Fulton County
                        Civil Division at No(s): 2013-303


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                           FILED APRIL 25, 2017

       Robert Lardiere, Administrator of the Estate of Michele S. Lardiere,

formerly Michele S. Lynn, contests the equity court’s finding that Appellee

John W. Neville, Jr. enjoys an express 12-foot easement that traverses

Appellant’s property. We affirm.

       Mr. Neville instituted this equity action seeking injunctive and

declaratory relief against Michele S. Lynn.1   Both parties lived on West


____________________________________________


1
  Ms. Lynn married after this action was brought, and became known as
Michele S. Lardiere.    On February 24, 2016, a notice of death and
substitution of personal representative was filed of record in this action.
That document indicated that Ms. Lynn/Mrs. Lardiere died and that her
(Footnote Continued Next Page)
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Tannery Road, Wells Township. Mr. Neville averred that he enjoyed the use

of two express easements, a 15-foot right of way between two lots owned by

Ms. Lynn and a 12-foot easement on the northern portion of one of her lots.

In this lawsuit, Mr. Neville asked for a ruling that he could utilize the two

roadways.

      In order to access his garage, Mr. Neville is required to traverse West

Tannery Road, turn onto a clearly marked 15-foot alley between Ms. Lynn’s

lots and travel north, and then turn east and travel on a 12-foot easement

located on the northern portion of the lot that contains Ms. Lynn’s house. In

his complaint, Mr. Neville averred that Ms. Lynn blocked the two easements

so he could not use them and informed him that he did not have the right to

use them. Mr. Neville, whose garage is on the top of a steep incline behind

his home, had no other access to that structure. The following illustrates the

situation:




                       _______________________
(Footnote Continued)

administrator was to be substituted as a party to this action in her stead.
For ease, we will refer to the appealing party as Ms. Lynn.



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        Ms. Lynn filed preliminary objections raising a claim that Mr. Neville

failed to join indispensable parties to this action.    Those objections were

denied, Ms. Lynn answered the complaint, and the matter proceeded to a

nonjury trial.    The lots owned by Mr. Neville and Ms. Lynn are part of a

subdivision plan created by a common owner, W.H. Baumgardner, but that

subdivision was not recorded.        Ms. Lynn’s house is on Lot 4 of the

subdivision.     The deed to Ms. Lynn indicated that she purchased two lots.

These lots, as indicated in the above schematic, were separated by a 15-foot

alley, which served as the boundary for each of her two lots. Thus, Ms. Lynn

did not own the 15-foot alley running north to south.           Additionally, Ms.

Lynn’s deed, as well as every deed in her chain of title, provided, “The 15

foot alley on the West side [of Lot 4] and the 12 foot alley on the North side

are open and public alleys for use of all concerned.” Plaintiff’s Exhibits F, G,

H, I.   In light of this language, Ms. Lynn abandoned her position that Mr.

Neville could not utilize the 15-foot alley between her lots.

        The deed to Ms. Lynn, as well as those in her chain of title, also

indicated in general language that the northern boundary of Lot 4 was the

12-foot alley on land owned by Michael and Brenda Worthing in the above

survey.    In the metes and bounds description, the deed outlined that the

northern boundary to Lot 4 was along the 12-foot alley “thence N. 27-12




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[degrees] E 176 feet, less a 12 foot alley or to a 12 foot alley.” Exhibit

E, Deed to Ms. Lynn, 9/11/00 (emphasis added).2

       The 12-foot easement running east and west that Mr. Neville must

travel to get to his garage crossed the northern portion of Lot 4 owned by

Ms. Lynn. The 12-foot alley on the Worthing property that is the northern

boundary of Ms. Lynn’s Lot 4 does not accord Mr. Neville access to the

garage.

       Garey Sprowl formerly owned Mr. Neville’s land, and served as a

witness at trial. Mr. Sprowl, who lived on the land in question from 1946 to

1965, indicated that he was familiar with the 15-foot alley and 12-foot

easement used to gain access to the garage. He reported that the garage

door opened onto a 12-foot easement that began on his property and then

crossed over the northern portion of Lot 4.      This easement was separate

from and south of the 12-foot alley on the Worthings’ lot.      The 12-foot

easement traversing Lot 4 was the pathway actually used to reach the

garage the entire time that Mr. Sprowl owned the land, and the former

owners of Lot 4 never contested his right to cross their land to reach the

garage.

____________________________________________


2
  Both easements identified in this document are referred to as “alleys.” In
order to clarify this issue, we will refer to the northernmost easement
located on the Worthing’s property as an “alley,” and the roadway crossing
Lot 4 and used to gain access to the garage as an “easement.”



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     Since the garage cannot be reached by using the 12-foot alley that is

the northern boundary of Lot 4, the equity court concluded that there were

two 12-foot express easements, the one used by Mr. Sprowl and the alley

that was the northern boundary. It based this determination upon: 1) the

emphasized language in Ms. Lynn’s deed; 2) Mr. Sprowl’s testimony that he

used an easement to gain access to his garage and that easement crossed

the northern portion of Lot 4; 3) a document prepared by the Pennsylvania

Department of Transportation; and 3) the court’s personal view of Lot 4,

which demonstrated that there was a visible road leading to the garage that

crossed over the northern portion of Lot 4 and that was evident when Ms.

Lynn bought her property in 2000.   Trial Court Opinion, 9/29/15, at 5.

     The equity court thereafter rendered the following verdict:

     [T]he Court having conducted a view of the real estate at issue
     on June 24, 2015 and conducted a bench trial following the
     view, at which testimony was presented and deeds of record
     and various plans and surveys were received into evidence; and
     the Court having read and reviewed the proposed findings of
     fact and briefs of counsel for the parties;

     IT IS HEREBY ORDERED that Defendant, Michele S. Lynn, now
     Michele Laurdiere, is hereby permanently enjoined from
     interfering or obstructing in any way the 15 foot alleyway on the
     West side of Tract No. 1 at Deed Book 190, page 414, and the
     12 foot alley which traverses over the North portion of
     Defendant's real estate and referred to in Deed Book 190, page
     414.

     The Court finds that Plaintiff has a private easement to use the
     15 foot alleyway on the West side of the Defendant's real estate
     and the 12 foot alleyway over the most northern portion of



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      Defendant's real estate to access the rear of Plaintiff's real
      estate described at Record Book 550, page 16.

      The court will go to the premises on October 20, 2015, at 9:00
      p.m., and will mark out the exact location of the two (2) alleys
      on the ground and any markers so established shall not be
      destroyed or disturbed by either party or any other person
      acting at their direction or on their behalf.

Order of Court, 9/28/15, at 1-2. The court then marked an easement over

the northern portion of Lot 4, as follows:




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      Ms. Lynn filed a post-trial motion contesting the equity court’s

decision; said motion was denied. Judgment was entered on the verdict in

favor of Mr. Neville, and this appeal followed. These issues are presented

for our review:

      [1.] Whether the trial court erred by failing to dismiss the
      Complaint for failure to join certain indispensable parties.

      [2.] Whether the trial court erred and/or abused its discretion by
      changing the location of the 12-foot easement by creating a
      second 12-foot easement.

      [3.] Whether the trial court erred and/or abused its discretion by
      basing its conclusion on testimony that would support a
      prescriptive easement, a theory not pled in the complaint or
      advanced at trial.

      [4.] Whether the trial court erred and/or abused its discretion in
      denying Appellant's request for a new trial based upon the
      creation of a second 12–foot easement.

      [5.] Whether the trial court erred and/or abused its discretion in
      denying, in part, Appellant's request to supplement the record.

Appellant’s brief at 12.

      Initially, we outlined our standard of review:

      When reviewing the findings of a court in equity, an appellate
      court's review “is limited to a determination of whether the
      chancellor committed an error of law or abused his discretion. A
      final decree in equity will not be disturbed unless it is
      unsupported by the evidence or demonstrably capricious.”
      Kepple v. Fairman Drilling Co., 615 A.2d 1298, 1302 (Pa.
      1992)(internal quotation marks omitted). Although facts found
      by the chancellor, when supported by competent evidence in the
      record, are binding, no such deference is required for
      conclusions of law, which we review de novo. Id.

T.W. Phillips Gas and Oil Co. v. Jedlicka, 42 A.3d 261, 267 (Pa. 2012).

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       Ms. Lynn first avers that two indispensable parties were improperly

omitted as defendants herein: 1) New Enterprise Electric Co-Operative, Inc.,

the owner of a utility pole that is within the 15-foot easement; and 2)

Michael and Brenda Worthing, who own the property that borders the

parties’ real estate on the north.3        If a party fails to join an indispensable

party, the court lacks jurisdiction over the matter. Orman v. Mortg. I.T.,

118 A.3d 403 (Pa.Super. 2015); Pa.R.C.P. 1032(b) (“Whenever it appears

by suggestion of the parties or otherwise that . . . there has been a failure to

join an indispensable party, the court shall order that . . . the indispensable

party be joined, but if that is not possible, then it shall dismiss the action.”).

       A party is considered indispensable “when his or her rights are so

connected with the claims of the litigants that no decree can be made

without impairing those rights.” Orman, supra at 406 (citation omitted). If

a person’s rights would not be impaired by a decision or if no redress is

sought against that person, the person it not an indispensable party.           Id.

These factors are to be weighed in making a ruling as to whether a person is

an indispensable party:


____________________________________________


3
  We note that Ms. Lynn raised this question in preliminary objections, and
the court deferred ruling on whether the electric company and/or the
Worthings would have to be joined herein until the evidence indicated
whether they had a right or interest in this lawsuit that might be affected by
its resolution.



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      1. Do absent parties have a right or an interest related to the
      claim?

      2. If so, what is the nature of that right or interest?

      3. Is that right or interest essential to the merits of the issue?

      4. Can justice be afforded without violating the due process
      rights of absent parties?

Id. at 407.

      In the present case, Mr. Neville reported that he can utilize the

north/south 15-foot alley despite the presence of the utility pole, which he

can readily avoid while traveling that roadway. Thus, the owner of the utility

pole’s rights and interests were unaffected by the decision rendered herein,

and no redress was being sought against such owner.

      As to the Worthings, the ruling in question likewise had no impact on

their property rights to any extent and no relief was accorded against them.

While the Worthings have constructed a fence on the 12-foot alley that

borders the parties’ property to the north, that fence can remain intact since

Mr. Neville will not and actually cannot utilize the alley on the Worthings’

land to travel to his garage.       The equity court ruled that the 12-foot

easement needed by Mr. Neville to access his garage was one traversing Lot

4.   Hence, neither the Worthings nor the New Enterprise Electric Co-

Operative, Inc. was an indispensable party in this lawsuit.       We reject Ms.

Lynn’s first allegation of error.




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       Ms. Lynn’s second position is that the trial court erred “by changing

the location of the 12-foot easement, by creating a second 12-foot

easement.” Appellant’s brief at 21.       In the present case, the equity court

ruled that Mr. Neville enjoyed the right to use a 12-foot easement visibly

traversing the northern portion of Ms. Lynn’s land.      It concluded that this

“right of Mr. John W. Neville, Jr. to utilize the alleyway as described is one

that   is   granted   through    the     express   language     of   the   deed

description[.]” Trial Court Opinion, 9/29/15, at 9 (emphasis added).

       It is settled that “the same rules of construction that apply to contracts

are applicable in the construction of [express] easements.” McNaughton

Properties, LP v. Barr, 981 A.2d 222, 227 (Pa.Super. 2009). Thus, “when

“ascertaining the scope of an easement, the intention of the parties must be

advanced.” Id. The parties’ intention “is determined by a fair interpretation

and construction of the grant and may be shown by the words employed

construed with reference to the attending circumstances known to the

parties at the time the grant was made.” Id. If “an easement is ambiguous,

the grantee shall have ‘reasonable and necessary use’ of the right of way

within the purpose of the easement and the intentions of the original parties

to the grant.” Id. (citation omitted).

       We cannot agree with Ms. Lynn’s claim that the equity court created a

second 12-foot easement out of whole cloth. The existence of both a 12-

foot alley north of the real estate owned by the parties as well as a 12-foot

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easement traversing the northern portion of Lot 4 is supported both by the

wording of Ms. Lynn’s own deed and the attendant circumstances. Lot 4 is

described generally as being bounded on “the North by a 12-foot alley,”

which is the alley north of Lot 4 on the Worthings’ land. Exhibit E, Deed to

Ms. Lynn, 9/11/00. However, the specific metes and bounds description of

Lot 4 is as follow:

      BEGINNING at a point;

      thence S 61° E 60 feet to the southeast corner of Lot (5);

      thence N 27- 1/2 °'E 176 feet, less a 12 -foot alley or to a 12
      –foot alley;

      thence N 60 -1/4° N 60 feet to a 15 -foot alley and East corner
      of lands formerly of N.H, Horton, but does not include the 15 –
      foot alley;

      thence by said 15 -foot alley, S 27 -1/2° H approximately 177
      feet to the Township Road leading through the Village of Wells
      Tannery, the place of beginning.
      ....

      The 15 -foot alley on the west side and the 12 -foot alley on the
      north side are open and public alleys for use of all concerned.

Id. (emphasis added).

      The   emphasized    language    containing   the   metes     and   bounds

description of Lot 4 clearly states that the northern boundary of Lot 4 is the

12-foot alley on the Worthings’ land minus another 12-foot easement on

the northern part of Lot 4. Thus, the deed itself indicates that there are two

12-foot easements.    The equity court concluded that this language in the



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deed established that Ms. Lynn’s Lot was “both bounded by a 12 foot alley

and was subject to a 12 foot alley.”      Trial Court Opinion, 9/29/15, at 8

(emphasis in original). This conclusion is fully supported by the wording of

the deed in question.

      The equity court additionally examined the attendant circumstances to

support its decision that Mr. Neville had an express easement over the

northern portion of Lot 4.   Specifically, the court “acknowledged that [Mr.

Neville’s] predecessor in title had the right to traverse the 15 foot alley and

to then bear [east] and drive over the 12 foot alley over [Ms. Lynn’s]

property to access a garage” on Mr. Neville’s land.         Id. (emphasis in

original).

      The equity court also relied upon a Pennsylvania Department of

Transportation drawing of the area from 1968, which showed “both the 15

foot alley plus a natural curve and bend of a 12 foot alley which traverses”

Ms. Lynn’s Lot 4. Id.; Exhibit Q. Finally, the court observed that, when Ms.

Lynn “acquired the property, the 15 foot alley was of obvious record on the

ground, as well as the 12 foot alley to the rear which traversed over her

property.” Id.

      Thus, the decision of the equity court rested upon the language in the

deed to Ms. Lynn and the attendant circumstances.         It therefore did not

commit an error of law in finding an express easement existed over Ms.

Lynn’s land. The decree is supported by the evidence and not demonstrably

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capricious.   Hence, we reject the position that the equity court erred in

concluding that there was an express 12-foot easement crossing over Lot 4.

      Ms. Lynn’s third contention is that the equity court erred because its

decision was based upon the theory that Mr. Neville had a “prescriptive

easement, a theory not pled in the complaint or advanced at trial.”

Appellant’s brief at 26. While the equity court herein did mention that the

12-foot easement used to access Mr. Neville’s garage had been in use since

1946, it did not premise its finding that Mr. Neville had an easement upon

the existence of a prescriptive easement.     The equity court’s opinion, as

quoted above, articulates that it found the existence of an express easement

traversing Ms. Lynn’s Lot 4, due to the language in the metes and bounds

description of Lot 4 and other circumstances. Hence, we discount Ms. Lynn’s

theory that the equity court found that Mr. Neville’s easement was a

prescriptive easement.

      In her fourth issue, Ms. Lynn suggests that the equity court

erroneously denied her request for a new trial so that she could address the

equity court’s novel, sua sponte conclusion that a 12-foot easement was

located on her property.

            Our review of the trial court's denial of a new trial is
      limited to determining whether the trial court acted capriciously,
      abused its discretion, or committed an error of law that
      controlled the outcome of the case. In making this
      determination, we must consider whether, viewing the evidence
      in the light most favorable to the verdict winner, a new trial
      would produce a different verdict. Consequently, if there is any

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      support in the record for the trial court's decision to deny a new
      trial, that decision must be affirmed.

Grossi v. Travelers Pers. Ins. Co., 79 A.3d 1141, 1148 (Pa.Super. 2013).

      We cannot agree that the equity court’s ruling herein was either novel

or raised sua sponte.     Mr. Neville’s position from the inception of these

proceedings was that he had a 12-foot easement over Lot 4 to access his

garage. The easement that existed on Ms. Lynn’s land and proceeded to Mr.

Neville’s garage traversed the northern portion of Ms. Lynn’s property and it

was not the 12-foot alley located on the Worthings’ land.          Indeed, Mr.

Neville could not access his garage from the 12-foot alley, and it was for that

reason that the Worthings were not joined as parties.

      Ms. Lynn cannot claim that she was surprised by the equity court’s

ruling since the existence of a 12-foot easement over her property was at

issue from the onset of these proceedings. We therefore conclude that the

equity court did not act capriciously, abuse its discretion, or commit an error

of law in denying her a new trial on this ground.

      Ms. Lynn’s final position is that the court erred in partially denying her

post-trial request to supplement the record.        The equity court allowed

certain of her supplemental exhibits to be admitted so that it could

determine the parameters of the 12-foot easement, but refused to consider

deeds to lots located to the east of Mr. Neville’s land. “[I]n order for a trial

court's ruling on an evidentiary matter to constitute reversible error



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requiring the grant of a new trial, the ruling must be both legally erroneous

and harmful to the complaining party.” Parr v. Ford Motor Co., 109 A.3d

682, 697 (Pa.Super. 2014).

     In this portion of her brief, Ms. Lynn provides no authority to support a

conclusion that it was legally erroneous for the trial court to refuse to

consider evidence not presented during the course of trial and that the

opposing party had no opportunity to refute or otherwise challenge.

Additionally, Ms. Lynn fails to articulate in her brief how the ruling was

harmful to her. The equity court’s finding regarding the 12-foot easement

crossing Lot 4 was premised upon language in Ms. Lynn’s deed, the use of

the easement over the years, and the fact that the easement was visible on

her property. Deeds pertaining to lots to the east of Mr. Neville’s property

have no bearing on any of these factors, and Ms. Lynn does not articulate in

her appellate brief how these deeds could have affected the verdict in

question.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017

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