J-S11002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CHESTER GRODACK, JR. AND MARY         : IN THE SUPERIOR COURT OF
    CLARE WAGNER, TRUSTEE OF THE          :       PENNSYLVANIA
    MARY CLARE WAGNER TRUST OF            :
    MAY 7, 2003                           :
                                          :
             v.                           :
                                          :
    ARIEL LAND OWNERS,                    :
    INCORPORATED                          :  No. 2590 EDA 2018
                                          :
                       Appellant          :
                                          :
                                          :
    ARIEL LAND OWNERS,                    :
    INCORPORATED                          :
                                          :
                       Appellant          :
                                          :
             v.                           :
                                          :
    MARY CLARE WAGNER AND CHESTER         :
    GRODACK, JR.                          :

              Appeal from the Judgment Entered October 2, 2018
     In the Court of Common Pleas of Wayne County Civil Division at No(s):
                              285 – Civil – 2015
                               44 – Civil - 1996


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 06, 2019

       Ariel Land Owners, Incorporated (“Ariel”) appeals from the judgment

entered on October 2, 2018, which incorporated the July 10, 2018 order and

opinion granting Mary Clare Wagner and Chester Grodack, Jr.1 (collectively

“the Grodacks”) declaratory judgment as to the Grodacks’ rights to access and

1Mary Clare Wagner and Chester Grodack, Jr. are brother and sister. N.T.,
5/30/18, at 62.
J-S11002-19



use the body of water at issue, Lake Ariel.       The order also denied Ariel’s

petition for contempt and required the Grodacks to pay Ariel any required dues

from 2015 through the present and abide by Ariel’s rules when using Lake

Ariel. The Grodacks have filed a cross appeal. After careful review, we affirm

the trial court’s judgment.

      The trial court set forth the following findings of fact:

      1. [The Grodacks] are the owners of a certain property located in
      Lake Township, Wayne County, Pennsylvania, and described in a
      1951 deed, which is recorded in Wayne County Record Book 999
      at page 195 and also in Wayne County Record Book 2250 at page
      205 (hereinafter “the Grodack Property”).

      2. The Grodack Property is also known as 195 East Shore Drive,
      Lake Ariel Township, Wayne County, Pennsylvania.

      3. [Ariel] is the owner of certain and various properties located in
      Lake Ariel Township, Wayne County, Pennsylvania, by deed dated
      1964, which are described in Wayne County Deed Book 221 at
      page 292.

      4. [Ariel’s] properties include the land at the bottom of Lake Ariel.

      5. [Ariel’s] ownership, maintenance, control and upkeep of its
      subject property and the waters of Lake Ariel has been maintained
      and directed by [Ariel’s] Board of Directors, the same being
      compromised [sic] of twelve (12) members.

      6. The Grodacks instituted this action by filing a Complaint on May
      21, 2015 seeking declaratory and injunctive relief confirming their
      right to access and [utilize] the waters of Lake Ariel.

      7. [Ariel] countered the Grodacks’ Complaint with [a] New Matter
      and Counterclaim asserting that the issue of the Grodacks’ lake
      rights was adjudicated by the Court in 1997.

      8. Following limited discovery in the matter, it was tried before
      this [c]ourt on May 30, 2018.


                                      -2-
J-S11002-19


     9. Amidst the proceedings of this matter, the Grodacks placed a
     dock and boat on the waters of Lake Ariel in May of 2017 resulting
     in [Ariel filing] a Petition for Contempt under the 1996 Court
     matter (hereinafter “the 1996 litigation”). The contempt [petition]
     was also heard on May 30, 2018.

     10. Prior to the bench trial in this matter, counsel for the parties
     filed the following stipulated and undisputed facts, and as such,
     this [c]ourt shall adopt the same:

           a. [Ariel] is a duly formed corporation existing under
           and by virtue of the corporation law of the
           Commonwealth of Pennsylvania.

           b. Ariel is the owner of certain property located in Lake
           Township, Wayne County, Pennsylvania, more fully
           described in Wayne County Deed Book 221 at Page
           292 (hereinafter “the Ariel Property”).

           c. Ariel acquired the Ariel Property from A.J. Schrader
           et ux et al by virtue of the aforesaid deed.

           d. The Ariel Property includes substantially all of the
           land beneath Lake Ariel, a 150 acre lake located in the
           village of Lake Ariel, Lake Township, Wayne County,
           Pennsylvania.

           e. Ariel claims the right to control the use and
           enjoyment of Lake Ariel.

           f. Ariel maintains Lake Ariel.

           g. The Grodack Family [has] been the owner[] of two
           adjacent parcels of land located at 93-95 East Shore
           Drive, Lake Ariel, dating back to 1951. Plaintiff Mary
           Clare Wagner, trustee of the Mary Clare Wagner Trust
           of May 7, 2003, and Plaintiff Chester Grodack, Jr. are
           currently the titled owners of the property by virtue of
           the deeds from their deceased mother, more
           particularly described in Wayne County Record Book
           999 at page 195, and also in Wayne County record
           book 2250, page 205.




                                     -3-
J-S11002-19


          h. The Grodack Property consists of two (2) adjacent
          parcels located at 93-95 East Shore Drive, Lake Ariel,
          Pennsylvania, 18436.

          i. The Grodack Property was previously in the
          ownership of Chester J. Grodack and Helen M.
          Grodack, parents of Plaintiffs Chester Grodack, Jr. and
          Mary Clare Wagner by virtue of a deed dated October
          2, 1951, from James F. Snelson, deed dated October
          2, 1951, recorded in Wayne County Deed Book 178,
          page 168 and a deed from James F. Snelson to Helen
          M. Grodack dated June 12, 1952, and recorded in
          Wayne County Deed Book 181, page 18.

          j. Chester J. Grodack and Helen Grodack conveyed
          parcel 1 to their son Robert V. Grodack and his wife
          Elaine Grodack by deed dated August 5, 1977,
          recorded in Wayne County deed book 339, page 8[,]
          and eventually through Sheriff sale proceedings[,] the
          property was conveyed back to Chester J. Grodack
          and Helen M. Grodack by Sheriff’s deed dated July 19,
          1984, recorded in Wayne County Deed Book 417,
          page 893. Chester Grodack and Helen Grodack
          conveyed Parcel 2 in 1955 to John and Irene Lesso
          who later … reconveyed the property back to Chester
          Grodack and Helen Grodack … by deed dated July 8,
          1964, and recorded in Wayne County Deed Book 220,
          page 313.

          k. Subsequently, Chester J. Grodack died on
          November 9, 1990, and title to Parcels 1 and 2 vested
          solely in his wife Helen M. Grodack who in turn
          conveyed title to Parcel 1 and 2 to her children, the
          Plaintiffs herein, Mary Clare Wagner and Chester
          Grodack, Jr., by deed dated December 16, 1994,
          which deed is recorded in Wayne County record book
          999, at page 195.

          l. Helen M. Grodack was the grantor in the
          aforedescribed deed recorded at Wayne County
          Record Book 999 at Page 195.

          m. The Grodack Property remains in the tenure of the
          Mary Clare Wagner Trust (hereinafter “the Trust”) as

                                   -4-
J-S11002-19


          a one-half interest owner and Chester Grodack, Jr. as
          a one-half interest owner.

          n. The interest of the [Grodacks] in the Parcels in
          question is set forth in the aforementioned deeds and
          chain of title to the two Parcels in question.

          o. Neither of the current deeds of the [Grodacks]
          contain[s] specific language granting Lake rights in or
          to the waters of Lake Ariel.

          p. The Grodacks have used the waters of Lake Ariel
          for recreational purposes in all seasons from 1951
          continuing forward without permission of Ariel.

          q. The Grodack Property is currently occupied by
          Shane Grodack, son of Plaintiff Chester J. Grodack,
          Jr., and nephew of Mary Clare Wagner.

          r. [The] Grodacks and Ariel were previously involved
          in litigation in the Court of Common Pleas of Wayne
          County, Pennsylvania, in matters filed to number 44-
          CIVIL-1996 and 419-CIVIL-2011.

          s. Both matters filed to number 44-CIVIL-1996 and
          419-CIVIL-2011 were initiated by Ariel in the form of
          Actions in Ejectment and Trespass.

          t. The 1996 litigation was concluded by way of this
          [c]ourt’s grant of Ariel’s Motion for Summary
          Judgment, same having been entered by the [c]ourt
          on January 9, 1997. The litigation at 419-CIVIL-2011
          was concluded during the pleading stage by Ariel Land
          Owners filing a Praecipe to Discontinue which was filed
          of record.

          u. In [the 1996 litigation], the [c]ourt ordered that
          Ariel be awarded possession of the real property
          consisting of that area of the water of Lake Ariel
          currently occupied by the dock depicted in Exhibit D
          of the [Grodacks’] complaint described in paragraph 7
          and 8 of the [Grodacks’] Complaint. Furthermore, this
          [c]ourt also ordered that [the Grodacks] shall remove


                                   -5-
J-S11002-19


          the dock in accordance with the [c]ourt’s Order of
          January 9, 1997.

          v. [The Grodacks] sought no post-trial relief or
          reconsideration nor filed any appeal relative to the
          grant of Ariel’s Motion for Summary Judgment, but
          [the Grodacks] did remove the dilapidated dock in
          accordance with the [c]ourt’s Order of January 9,
          1997.

          w. Chester Grodack, Jr. has indicated at his deposition
          of March 23, 2016 that there was no specific mention
          of lake rights in either of the [Grodacks’] current
          Deeds but he did indicate that previous Deeds from
          prior owners do have lake rights.

          x. The Grodack property runs on approximate
          perpendicular lines from East Shore Drive toward Lake
          Ariel “... to a point on the high water mark of a body
          of water known as Lake Ariel ...” ... “and hence along
          said high water mark ...”

          y. The “Lake Rights Value” appraisal performed by
          Gerald E. Romanik upon agreement of the parties
          revealed a value of $41,000.00.

     11. This [c]ourt further adopts all of the documents and exhibits
     that were attached to the parties’ May 16, 2018 Stipulation of
     Authenticity and Admissibility of Documents.

     12. During trial, the Grodacks presented the testimony of Chester
     Grodack, Jr., Mary Clare Wagner, Shane Grodack and the expert
     testimony of Attorney Anthony Waldron and William Schoenagel.

     13. Ariel Land Owners presented the testimony of Ariel Land
     Owners Board member, Theodore Malakin, and the expert
     testimony of Alfred J. Howell.

     14. Upon review of the deeds at issue the November 9, 1883 Deed
     [hereinafter “the 1883 Deed”] from Jones to Swingle, which is
     recorded in the Wayne County Recorder of Deeds Office in Deed
     Book 63, page 572 contained a reservation of lake rights. The
     1883 Deed contains a reservation of rights to the waters of Lake
     Ariel as follows:

                                   -6-
J-S11002-19



           “The parties of the first part also reserve for
           themselves, their heirs and assigns, the right to go
           with their cattle and stock to the said pond at such
           other points along the pond as they may choose ...
           the parties of the first part also reserve for
           themselves, their heirs and assigns to float timber
           taken from their lands across said pond or haul it on
           the ice to such place as they may wish...”

     See, Exhibit 19F.

     15. In 1883, the Joneses owned over 500 acres of land at Lake
     Ariel which included the area where the Grodack Property is
     presently located.

     16. The lake rights reserved in the Jones chain of title was never
     surrendered or relinquished.

     17. Chester Grodak, Mary Clare Wagner and Shane Grodack
     testified that the Grodacks have used the waters of Lake Ariel for
     recreational purposes in all seasons from 1951 continuing forward
     without the permission of [Ariel].

     18. The testimony of surveyor William F. Schoenagel (hereinafter
     “Mr. Schoenagel”) confirms and establishes the high water mark
     at Lake Ariel as 1425.9 feet and that presently the water level of
     Lake Ariel extends above the high water mark and onto the
     Grodack Property .10’ above the high water mark.

     19. Mr. Schoenagel surveyor’s map, together with his testimony,
     establishes that the former dock on the Grodack Property that was
     the subject of the [1996 litigation] is positioned near the dividing
     line between Lots 1 and 2.

     20. A review of the January 1997 Court Order does not contain
     language dealing with a claim of lake rights by either party. The
     January 1997 Order of Court gave [Ariel] possession of the real
     property under the former Grodack dock. The January 1997 Order
     did not establish or extinguish any matters related to title or
     access to the lake as to either the Grodacks or [Ariel].

     21. The January 1997 Order did not contain any language
     determinative of the Grodacks’ lake rights.

                                    -7-
J-S11002-19



      22. Shane Grodack testified that in 2017 he utilized his motor boat
      and placed a floating dock in the waters of Lake Ariel in 2017 and
      did so without the knowledge, authority or consent of Chester
      Grodack or Mary Clare Wagner.

Opinion, 7/12/18, at 3–11.

      As noted supra, a bench trial occurred on May 30, 2018.          The court

granted the Grodacks’ request for declaratory relief, finding that the Grodacks

established their right to use and access the waters of Lake Ariel.        Order,

7/12/18, at 1. The court also found that the Grodacks were subject to Ariel’s

rules and regulations regarding use of Lake Ariel and monies or dues required

from Ariel for the years 2015 forward must be paid within sixty days of the

date of the order. Id. Finally, in that same order, the trial court denied Ariel’s

motion for contempt. Id. at 2.

      Ariel filed a timely post-trial motion on July 20, 2018, which the trial

court denied on July 31, 2018. The Grodacks filed a pro se post-trial motion

on July 30, 2018, but neglected to deliver a copy of it to the trial court. Ariel

filed a timely notice of appeal on August 24, 2018.2       The Grodacks filed a

timely notice of cross appeal on September 7, 2018. The trial court ordered


2 On September 28, 2018, this Court, via a per curiam order, directed, inter
alia, Ariel to show cause why this case should be transferred to the
Commonwealth Court because Ariel may be a not-for-profit corporation. Ariel
responded with documentation proving their status as a for-profit corporation.
This Court discharged the rule and allowed the appeal to proceed. Order,
10/16/18. In the September 28, 2018 order, this Court also noted that a final
judgment had not been entered as required by Pa.R.A.P. 301 and directed
Ariel to praecipe the trial court Prothonotary to enter judgment. Ariel did so
on October 2, 2018.

                                      -8-
J-S11002-19


Ariel and the Grodacks to file concise statements of matters complained of on

appeal, pursuant to Pa.R.A.P. 1925. Orders, 9/5/18 and 9/17/18. On October

12, 2018, the trial court found that because the Grodacks failed to file a post-

trial motion, all of their issues on appeal had been waived. Order, 10/12/18,

at 1–2. Although it is unclear from the record, it appears that the Grodacks

delivered a copy of their post-trial motion to the trial court after the October

12, 2018 order was entered.       The trial court then filed a second order on

October 26, 2018, in which it found that the Grodacks’ post-trial motion was

untimely and denied it for that reason.

      Ariel presents the following questions for our review:

      1.   Whether the Trial Court erred as a matter of law and/or
           abused its discretion in granting [the Grodacks’] request for
           Declaratory Judgment granting [the Grodacks] lake rights in
           and to the waters of Lake Ariel?

      2.   Whether the Trial Court erred denying [Ariel’s] Petition for
           Contempt?

Ariel’s Brief at 4. The Grodacks filed a cross-appeal in the instant case and

present the following question for our review:

            Whether the Trial Court abused its discretion in ordering [the
            Grodacks] to pay all dues and/or monies required from
            [Ariel] for the years 2015 through the present and going
            forward into the future?

Grodacks’ Brief at 1.

      We will address Ariel’s allegations of error first. Our standard of review

of a trial court’s disposition of declaratory review is as follows:




                                       -9-
J-S11002-19


      Our standard of review in a declaratory judgment action is limited
      to determining whether the trial court clearly abused its discretion
      or committed an error of law. We may not substitute our judgment
      for that of the trial court if the court’s determination is supported
      by the evidence.

      Additionally, [w]e will review the decision of the lower court as we
      would a decree in equity and set aside the factual conclusions of
      that court only where they are not supported by adequate
      evidence. The application of the law, however, is always subject
      to our review.

Pocono Summit Realty, LLC v. Ahmad Amer, LLC, 52 A.3d 261, 265 (Pa.

Super. 2012) (citations and quotation marks omitted).

      In support of its argument that the trial court erred when it granted the

Grodacks’ declaratory judgment action, Ariel makes several intermixed

arguments.3 Specifically, Ariel argues the trial court erred when it found the

Grodacks had acquired a prescriptive easement to use Lake Ariel. Ariel’s Brief

at 12. Ariel avers the Grodacks are unable to show that they have used Lake

Ariel for a period in excess of twenty-one years because the trial court granted

Ariel’s motion for summary judgment in the 1996 litigation, which Ariel alleges

involved similar lake rights. Id. at 19. Ariel also posits that there is nothing

in the chain of title that would give the Grodacks’ rights to Lake Ariel and that

to the extent the 1883 Deed created any right to use Lake Ariel for watering

cattle, floating timber, or taking ice, those rights were at most an easement

in gross, which Ariel argues is not assignable nor inheritable. Id. at 14, 16,


3 We note that Ariel’s concise statement of matters complained of on appeal
contained no less than twenty-six allegations of trial court error. Ariel’s
Concise Statement of Matters Complained of on Appeal, 9/17/18.

                                     - 10 -
J-S11002-19


18. Finally, Ariel argues that the Grodacks’ instant action is barred by the

1997 Order, the doctrines of law of the case, the coordinate jurisdiction rule,

and res judicata. Id. at 21.

      Upon review, we conclude that the trial court did not err when it granted

the Grodacks’ motion for declaratory judgment. As the trial court properly

found, the Grodacks established a prescriptive easement to swim and use Lake

Ariel for other recreational purposes. In its opinion, the trial court found that

the Grodacks had established a prescriptive easement due to their adverse,

open, notorious, continuous and uninterrupted use of Lake Ariel for a period

in excess of twenty-one years. Trial Court Opinion, 7/12/18, at 11. The trial

court relied upon the testimony of Chester Grodack, Mary Clare Grodack, and

Shane Grodack, as well as paragraph fifteen in the parties’ Stipulation of

Agreed Upon Facts, “wherein it was stipulated by the parties that the Grodacks

have continually utilized the waters of Lake Ariel from 1951 to the present.”

Id.

      In order to obtain a prescriptive easement, a party must do more than

merely use the land for a period of twenty-one years.        That use must be

“adverse, open, notorious, continuous and uninterrupted for 21 years.”

Shaffer v. Baylor’s Lake Assoc., 141 A.2d 583, 585 (Pa. 1958). As the trial

court properly found, there was an abundance of testimony from the Grodacks

relating to their use of the lake. Moreover, the parties stipulated that such

use was continual from 1951 to the present and without Ariel’s permission.


                                     - 11 -
J-S11002-19


Stipulation of Agreed Upon Facts, 5/16/18, at ¶ 15. In its brief, Ariel boldly

claims that “none of the ingredients” required for a prescriptive easement was

established, but fails to set forth any analysis of the factors. Ariel’s Brief at

20. In addition, Ariel also argues that if the Grodacks had established any

adverse possession rights, those rights were extinguished by the 1996

litigation. Ariel fails to cite any case law in support of this contention, and we

could find the argument waived. See Harris v. Toy “R” Us-Penn, Inc., 880

A.2d 1270, 1279 (Pa. Super. 2005) (“We have repeatedly held that failure to

develop an argument with citation to, and analysis of, relevant authority

waives that issue on review.”).     However, for reasons discussed infra, we

conclude that this alternative argument regarding the 1996 litigation fails.

      Ariel also argues that the trial court erred in finding that the Grodacks

had an easement appurtenant.       Ariel’s Brief at 17–18.     As the trial court

correctly found, an easement appurtenant “is a liberty privilege or advantage

that the owner of one piece of land has in the land of another.” Trial Court

Opinion, 7/12/18, at 12 (citing Eprhata Area School District v. County of

Lancaster, 886 A.2d 1169 (Pa. Cmmlth. 2005)). An easement appurtenant

benefits land and the right attaches to the land; in contrast, the beneficiary of

an easement in gross is an individual and the right attaches to that individual.

Lindemuth v. Safe Harbor Water Power Co., 163 A. 159, 160 (Pa. 1932).

“The right to enjoyment of an easement … that can be held only by the owner

or occupier of a particular unit or parcel, is an appurtenant benefit.”      See


                                      - 12 -
J-S11002-19


Restatement (Third) of Property: Servitudes § 1.5(1) (2000). Moreover, “the

easement must bear some relation to the use of the dominant estate. A right

not connected with the enjoyment or use of a parcel of land granted cannot

be annexed as an incident to that land, so as to become appurtenant to it.”

Hassler v. Mummert, 364 A.2d 402, 404 (Pa. Super. 1976) (citation

omitted).   The benefit runs with the land, and once an individual transfers

ownership of the dominant estate, the transferor retains none of the benefit.

See Restatement (Third) of Property: Servitudes §§ 1.1(1)(a); 1.5(1) (2000).

Conversely, with an easement in gross, the benefit is not tied to ownership or

occupancy of a certain parcel of land. See Restatement (Third) of Property:

Servitudes § 1.5(2) (2000).

      As the trial court noted, the 1883 Deed conveyed a portion of the land

owned by the heirs of Joel Jones to Simon Swingle.         Trial Court Opinion,

7/12/18, at 13. The Joneses conveyed only a portion of their land to Swingle

and reserved broad lake and other rights so as to benefit their remaining land.

Id.   The trial court found that those rights were not extinguished or

surrendered, and the land that benefitted from the reservation of rights

included the land that eventually was acquired by the Grodacks. Id. The

relevant language in the 1883 Deed is as follows:

      The parties of the first part also reserve for themselves their
      heirs and assigns the right to go with their cattle and stock to
      the said pond for water at such other points along said pond as
      they may choose but in so doing they are not to obstruct any road
      or way that may be built along said pond by said second party his
      heirs or assigns. The said parties of the first part also reserve the

                                     - 13 -
J-S11002-19


      right for themselves their heirs and assigns to float timber
      taken from their lands across said pond or haul it on the ice to
      such place as they may wish but in so doing no damage is to be
      done to fences. Also the right to cut and take from said ponds so
      much ice as they or of them need for private use.

1883 Deed, at 2 (emphases added).

      Ariel argues that the trial court erred when it found the above language

created an easement appurtenant, instead asserting that at most, the

easement created is an easement in gross, which is personal in nature and

not assignable.   Ariel’s Brief at 16–19.     Although Ariel cites hornbook law

discussing the difference between an easement appurtenant and an easement

in gross, Ariel does not support this general discussion with citation to relevant

case law, relying instead on rhetorical questions and dramatic flourish.

       In Maranatha Settlement Assoc. v. Evans, 122 A.2d 679 (Pa. 1956),

our Supreme Court was asked to determine whether bathing rights in a pool

constituted an easement in gross or an easement appurtenant. In that case,

a tract of land was divided into building lots, which were sold to individuals.

Id. at 680. The company selling the lots constructed a swimming pool on the

tract of land, and the deeds to the lots of land contained the following

language: “The Grantee and his immediate family only shall enjoy the free

use of the swimming pool.” Id. Ultimately, the unsold lots were conveyed to

another company, and that company sought to prevent the current owners of

the conveyed lots from using the pool, arguing that the easement at issue was

an easement in gross or a license, which was not transferable. Id. In finding


                                     - 14 -
J-S11002-19


an easement appurtenant, the Court noted that it would be “utterly

impossible” to believe the parties intended the privilege of using the pool to

be a license or easement in gross because:

      a purchaser might remain the owner merely for a very short time
      and then deed the title to an assignee, in which case, if the
      plaintiff’s position were correct, he would still have the right to
      bathe in the pools as possessing an easement in gross, but on the
      other hand, the new owner of property and all subsequent owners
      would have no right to the bathing privilege at all.

Id. at 681. The Court found an easement appurtenant despite the fact that

there was no “heirs and assigns” language after the word “Grantee.” Id. In

determining the nature of the easement, the Maranatha Court looked to the

“intent of the parties as determined by a fair interpretation of the language

employed and consideration of all the attendant circumstances.” Id. at 680–

681. See also Hassler, 364 A.2d at 404 (same).

      In the instant case, a review of the language used by the parties, as

well as consideration of the attendant circumstances, support the trial court’s

finding that the Grodacks possess an easement appurtenant. First, we note

that the 1883 Deed specifically states that the rights retained by the Joneses

reserved those rights for their heirs and assigns.    Second, the land of the

Joneses, which was eventually acquired by the Grodacks, was the dominant

parcel because it benefitted from rights retained by the Joneses after they

conveyed a portion of their land to Swingle. The land conveyed to Swingle

constitutes the servient or burdened parcel. Moreover, viewing the easement

as an easement in gross would result in the illogicial situation similar to that

                                     - 15 -
J-S11002-19


discussed in Maranatha: after conveying their remaining land to another, the

Joneses could access Lake Ariel for various purposes, even if they no longer

owned the dominant property.       Similarly, the new owners of the property

would not be able to access Lake Ariel, despite owning the property abutting

the lake. Given the above, we find the trial court did not err when it found an

easement appurtenant.

      Next, Ariel argues that the trial court erred when it granted the

Grodacks’ request for declaratory relief because the action was barred by the

1997 Order, the law-of-the-case doctrine, the coordinate-jurisdiction rule, and

res judicata. Ariel’s Brief at 23, 28. The law-of-the-case doctrine “refers to a

family of rules which embody the concept that a court involved in the later

phases of a litigated matter should not reopen questions decided by another

judge of that same court or by a higher court in the earlier phases of the

matter.” Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).

      Among the related but distinct rules which make up the law of the
      case doctrine are that: (1) upon remand for further proceedings,
      a trial court may not alter the resolution of a legal question
      previously decided by the appellate court in the matter; (2) upon
      a second appeal, an appellate court may not alter the resolution
      of a legal question previously decided by the same appellate court;
      and (3) upon transfer of a matter between trial judges of
      coordinate jurisdiction, the transferee trial court may not alter the
      resolution of a legal question previously decided by the transferor
      trial court.

Id.

      In support of this argument, Ariel posits that the coordinate-jurisdiction

rule, which is within the ambit of the law-of-the-case-doctrine, should apply

                                     - 16 -
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because the matter at issue has already been adjudicated. Ariel’s Brief at 28.

“Generally, the coordinate jurisdiction rule commands that upon transfer of a

matter between trial judges of coordinate jurisdiction, a transferee trial judge

may not alter resolution of a legal question previously decided by the

transferor trial judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003).

Although Ariel acknowledges that the law-of-the-case doctrine “is more

typically attached to an appellate decision remanded to a lower court, in the

event that a Trial Court decision has not been appealed and its decision

standing as a final determination in a matter (such as the 1997 Opinion), it

should apply here.” Ariel’s Brief at 30. Ariel offers no citation to relevant

authority in support of its claim that the law-of-the-case or the coordinate-

jurisdiction rule should apply in the instant matter, which involved two

separate actions and did not involve the transfer of any matter between

courts. Moreover, the 1996 litigation related to the removal of the dock and

did not grant or extinguish any title or ownership related to the water of Lake

Ariel. Indeed, the order granting Ariel’s motion for summary judgment (“the

1997 Order”) states, “[Ariel is] awarded possession of the real property

consisting of that area of the water of Lake Ariel currently occupied by the

dock,” and the court ordered the Grodacks to remove the dock before June 1,

1997.   Order, 1/9/97.   The 1997 Order does not establish or extinguish any

lake rights; thus, the law-of-the-case doctrine is not applicable in the instant

case.


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      Ariel also argues that res judicata should have barred the instant

action.4

      Pursuant to the doctrine of res judicata, a final judgment on the
      merits by a court of competent jurisdiction will bar any future suit
      between the parties or their privies in connection with the same
      cause of action. The purposes behind the doctrine, which bars the
      relitigation of issues that either were raised or could have been
      raised in the prior proceeding is to conserve limited judicial
      resources, establish certainty and respect for court judgments and
      protect the party relying upon the judgment from vexatious
      litigation.

McArdle v. Tronetti, 627 A.2d 1219, 1222 (Pa. Super. 1993) (citations

omitted). In order for res judicata to apply, there must be concurrence of the

following four conditions between the present and prior actions: “1) identity

of issues; 2) identity of causes of action; 3) identity of parties or their privies;

and 4) identity of the quality or capacity of the parties suing or being sued.”

Id. As the trial court cogently pointed out, nothing in the pleadings or the

motion for summary judgment in the 1996 litigation sought a determination

as to title or ownership in the waters of Lake Ariel and the trial court’s order

in the 1996 litigation did not address the same. In contrast, in the instant

matter, the Grodacks specifically asked the trial court to declare that they had

established a prescriptive easement to recreational lake rights. Complaint,

5/21/15, at 7. The identity between the causes of action in the instant case

and the 1996 litigation are not the same, and thus, res judicata does not apply


4 This portion of Ariel’s brief appears to have been drafted for the trial court,
as the brief states that Grodack “has effectively asked this Honorable Court to
‘reverse’ its 1997 decision.” Ariel’s Brief at 30.

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to bar the suit. To the extent Ariel is arguing that the trial court erred in not

finding that the suit was barred by res judicata, Ariel is due no relief on that

ground.

      Ariel next argues that the trial court erred when it denied Ariel’s petition

for contempt. Ariel’s Brief at 34.

      Our standard of review from an order denying a petition for civil
      contempt is as follows. This Court will reverse a trial court’s order
      denying a civil contempt petition only upon a showing that the
      trial court misapplied the law or exercised its discretion in a
      manner lacking reason. Harcar v. Harcar, 982 A.2d 1230, 1234
      (Pa. Super. 2009) (citations omitted). In proceedings for civil
      contempt of court, the general rule is that the burden of proof
      rests with the complaining party to demonstrate that the
      defendant is in noncompliance with a court order. Lachat v.
      Hinchcliffe, 769 A.2d 481, 489 (Pa. Super. 2001) (citations
      omitted). To sustain a finding of civil contempt, the complainant
      must prove, by a preponderance of the evidence, that: (1) the
      contemnor had notice of the specific order or decree which he is
      alleged to have disobeyed; (2) the act constituting the
      contemnor’s violation was volitional; and (3) the contemnor acted
      with wrongful intent. Id.

MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012).

Moreover, we note that “each court is the exclusive judge of contempt against

its process, and on appeal its actions will be reversed only when a plain abuse

of discretion occurs.” Sutch v. Roxborough Memorial Hosp., 142 A.3d 38,

67 (Pa. Super. 2016) (quoting Mrozek v. James, 780 A.2d 670, 673 (Pa.

Super. 2001)).

      In support of its appeal, Ariel argues the 1997 Order required the

Grodacks to remove a dock placed in Lake Ariel.        Ariel’s Brief at 34.   The

original dock was removed, but during the pendency of this litigation, Shane

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Grodack, the current occupant of the Grodack home, placed a new dock in the

waters of Lake Ariel. Id. at 35. Ariel argues that despite the fact that neither

Chester Grodack, Jr. nor Mary Clare Wagner, the named parties in this action,

was responsible for replacing the dock, they should be held in contempt

because they “could compel compliance of all family members with [the 1997

Order].” Id. at 37.

      In its opinion, the trial court found “the testimony of Mary Clare Wagner

and Chester Grodack established that neither of them authorized, had

knowledge or consented to the placement of the floating dock in the waters of

Lake Ariel.”   Trial Court Opinion, 6/12/18, at 15. The trial court found that

Shane Grodack testified that he was the individual that placed the dock on

Lake Ariel, and therefore, neither Mary Clare Wagner nor Chester Grodack

“engaged in any conduct that constitute a willful violation of the 1997 Court

Order.” Id.

      In support of its argument that the trial court erred, Ariel cites to

Commonwealth v. Michel, 522 A.2d 90 (Pa. Super. 1987).5                 Michel does

not provide support for Ariel’s argument; rather, it supports the trial court’s

decision to deny the contempt petition. In Michel, this Court reversed the




5 Ariel’s brief on appeal also includes a discussion of the amount of counsel
fees Ariel believes it is entitled to, which were incurred as a result of its petition
for contempt. It appears this portion of Ariel’s brief was originally filed with
the trial court. Nevertheless, because we find the trial court did not err in
denying the petition for contempt, we will not address this alleged error by
the trial court.

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J-S11002-19


trial court’s finding of contempt against a sheriff.    Id. at 91.   Prior to the

finding of contempt, the trial court had informed the sheriff that he would be

held in contempt if his deputies did not timely bring defendants to the court.

Id. at 92. A deputy was late bringing a defendant to the court room, and the

trial court found the sheriff in contempt.    Id.    In reversing the contempt

order, this Court noted:

      Initially, we must say that the holding of an individual in contempt
      for the actions of a third party would appear inappropriate and,
      therefore, unsupportable unless the individual consciously
      directed the third party to act as he did and possessed such
      authority over the third party that he could compel compliance
      with the directive. Perhaps then the act of a third party could be
      imputed to the directing party. However, even then it would be
      necessary to find wrongful intent. In the present case, the actions
      of appellant cannot be found either volitional or committed with
      wrongful intent. Consequently, the four necessary factors for
      finding an individual in contempt are not met. Sheriff Michel had
      no knowledge of his deputy’s failure to take the criminal
      defendant to the courtroom, took no steps to prevent the
      defendant’s appearance nor is there evidence of any intent
      to not present the defendant to the court on time.

Id. at 93. (emphasis added).

      In the instant case, we find that the trial court did not err when it denied

Ariel’s contempt petition for the same reasons outlined in Michel. Neither

Chester Grodack nor Mary Clare Wagner was aware that the floating dock had

been placed in Lake Ariel, neither took any steps to have the floating dock

placed in Lake Ariel, nor was there any evidence of intent to do so. N.T.,

6/30/18, at 70, 79, 87, and 94. Moreover, Shane Grodack testified that he

placed the dock in the water and did so without permission of either Chester


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Grodack or Mary Clare Wagner. Id. at 101. There was no error on the part

of the trial court.

      As explained supra, the Grodacks have also filed a cross appeal arguing

that the trial court abused its discretion when it required them to pay all dues

and/or monies required by Ariel for the years 2015 and beyond. Grodacks’

Brief at 1. In support of this issue, the Grodacks argue that the trial court

erred because there are no findings of fact nor conclusions of law that support

this award of fees. Id. at 9. Moreover, the Grodacks aver that Ariel did not

seek any dues or monies to be paid in its answer, new matter, or counterclaim.

Id.   Before we reach the merits of the Grodacks’ appeal, we must determine

whether they properly preserved any appellate issues because they failed to

timely deliver a copy of their post-trial motions to the trial court.6

      It is well established in this Commonwealth that a failure to file post-

trial motions will result in a waiver of claims on appeal. L.B. Foster Co. v.

Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998).           Pursuant to Pa.R.C.P.

227.1, a party must file post-trial motions within ten days after the verdict, or

if a party filed a post-trial motion, the other party has ten days within which

to file its post-trial motion. Pa.R.C.P. 227.1 (c). Pursuant to Rule 227.1, the

party filing a post-trial motion, “shall serve a copy promptly upon every other

party to the action and deliver a copy to the trial judge.” Pa.R.C.P. 227.1(f).


6  Despite the trial court’s finding that the Grodacks failed to preserve any
issues due to their untimely filed post-trial motion, the Grodacks do not
address this issue in their appellate brief filed with this Court.

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J-S11002-19


In the instant case, Ariel timely filed its post-trial motion on July 20, 2018.

On July 30, 2018, the Grodacks, acting pro se, served a copy of their post-

trial motion on Ariel, but failed to deliver a copy to the trial court. Motion of

Plaintiffs for Post-Trial Relief, 7/30/18.

      Because the Grodacks failed to deliver a copy of their post-trial motion

to the trial court, the trial court was unaware it was filed until after its October

12, 2018 order, wherein the court found that the Grodacks failed to preserve

any issues for appeal because they failed to file a post-trial motion.       Order,

10/12/18, at 1–2 (citing Warfield v. Shermer, 910 A.2d 734, 737 (Pa. Super.

2006); L.B. Foster Co., 710 A.2d at 55. At some point in the intervening two

weeks, the Grodacks delivered a copy of their post-trial motion to the trial

court, and on October 26, 2018, the trial court denied it as untimely.       Order,

10/26/18.

      It is well established in this Commonwealth that “if an issue has not

been raised in a post-trial motion, it is waived for appeal purposes.” L.B.

Foster Co., 710 A.2d at 55. Indeed, the failure to file a post-trial motion

results in waiver because “no issues have been reserved for appellate review.”

Diamond Reo Truck Co. v. Mid-Pacific Industries, Inc., 806 A.2d 423,

429 (Pa. Super. 2002).      Where post-trial motions have been filed but are

deemed untimely by the trial court, the court may rule on the merits. Kennel

v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002). If, however, the trial court

declines to rule on the merits of the issues waived in an untimely post-trial


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motion, “those issues are waived and not preserved for purposes of appellate

review.” Id. Post-trial motions “serve an important function in adjucatory

process in that they afford the trial court in the first instance the opportunity

to correct asserted error.” Diamond Reo Truck Co., 806 A.2d at 423 (quoting

Commonwealth v. Picker, 439 A.2d 162, 164 (Pa. Super. 1981).                    The

Grodacks failed to deliver a copy of the their post-trial motion to the trial court,

and we conclude, as the trial court did, that the Grodacks failed to preserve

any issues on appeal.

      For all the foregoing reasons, the judgment of the trial court is affirmed.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




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