             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rachel Carson Trails Conservancy,      :
Inc.,                                  :
                  Petitioner           :
                                       :   No. 77 M.D. 2018
            v.                         :
                                       :   Argued: October 17, 2018
The Department of Conservation and     :
Natural Resources of the               :
Commonwealth of Pennsylvania,          :
William Bohlander and Barbara          :
Bohlander, Thomas A. Foreman,          :
Curtis K. Marando and Theresea L.      :
Marando, Peter McKay and Gretchen      :
McKay, Susan McMurray Living           :
Trust, David A. Miller, Jonathan C.    :
Miller, Vaughn P. Miller and Kim       :
Miller, Carol Riffer, and Ruth Trent   :
and George E. Trent,                   :
                    Respondents        :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE ELLEN CEISLER, Judge



OPINION BY
JUDGE McCULLOUGH                                        FILED: December 31, 2018

            Before this Court are the preliminary objections filed by the Department
of Conservation and Natural Resources of Pennsylvania (DCNR) and collectively by
William Bohlander and Barbara Bohlander; Thomas A. Foreman; Curtis K. Marando
and Theresea L. Marando; Peter McKay and Gretchen McKay; Susan McMurray
Living Trust; David A. Miller; Jonathan C. Miller; Vaughn P. Miller and Kim Miller;
Carol Riffer; and Ruth Trent and George E. Trent (hereafter “Private Landowners”) to
Rachel Carson Trails Conservancy, Inc.’s (Conservancy) Amended Petition for Review
in the nature of a complaint in equity for a declaratory judgment and injunctive relief
filed in this Court’s original jurisdiction. For the reasons that follow, we sustain the
preliminary objections, in part, and transfer the matter to the Court of Common Pleas
of Clarion County.


                                            Background
               The Conservancy brings an action pursuant to the Declaratory Judgments
Act, 42 Pa.C.S. §§7531-7541,1 seeking a declaration that a public prescriptive
easement exists across 12 parcels of land in Clarion County owned by DCNR and the
Private Landowners. According to the Amended Petition for Review (Amended
Petition), the Conservancy is a Pennsylvania non-profit corporation that is “a
volunteer-based organization dedicated to the development, protection, and promotion
of hiking, biking, and walking trails throughout western Pennsylvania.” (Amended
Petition ¶3.) Although the Conservancy was initially founded in 1992 as the Harmony
Trails Council, in 2004 it became steward of both the Rachel Carson Trail and Baker
Trail and adopted its current name. Id. The Conservancy alleges that DCNR and the


      1
          Section 7532 of the Declaratory Judgments Act, 42 Pa.C.S. §7532, provides as follows:

               Courts of record, within their respective jurisdictions, shall have power
               to declare rights, status, and other legal relations whether or not further
               relief is or could be claimed. No action or proceeding shall be open to
               objection on the ground that a declaratory judgment or decree is prayed
               for. The declaration may be either affirmative or negative in form and
               effect, and such declarations shall have the force and effect of a final
               judgment or decree.

Id.


                                                   2
Private Landowners all own property in Clarion County, Farmington Township along
River Lane, between the start of River Lane at its intersection with Gravel Lick Road
and its terminus at the entrance to Cook Forest State Park. Id. ¶4.
             The Conservancy avers that the Baker Trail is a 133-mile hiking and
backpacking trail located north of Pittsburgh. Id. ¶25. In Clarion County, one portion
of the Baker Trail follows the River Lane roadway for one-half mile across private and
Commonwealth-owned property. Id. ¶26. According to the Amended Petition, the
portion of the Baker Trail that follows River Lane is important to the overall trail
because it provides hikers with scenic views of the Clarion River and it makes
additional portions of the trail, leading into and out of Cook Forest State Park, readily
and easily accessible to the public-at-large for hiking. Id.
             The Conservancy asserts that the Baker Trail was first marked, or
“blazed,” by the Western Pennsylvania Chapter of the American Youth Hostel (AYH)
in the 1950s. Id. ¶28. The Baker Trail has also been recognized on hiking maps and
in hiking guidebooks since then. Id. ¶30. Since the 1950s, trail markers or blazes have
been continuously maintained by volunteers along the River Lane section of the Baker
Trail. Id. ¶31. The hiking trail following River Lane has also been used since the
1950s for its scenic views of the Clarion River and provides access to additional trails
in Cook Forest State Park. Id. ¶33.
             The Conservancy alleges that there has been continuous, uninterrupted,
and historic use of the River Lane hiking trail for at least 21 years. Id. ¶34. According
to the Petition, a 1950 issue of “Hosteling” magazine described the Baker Trail and
included a hand-drawn map of the section of the Baker Trail that follows River Lane.
Id. ¶35. Roger Mazzarella has hiked the Baker Trail, including the River Lane section,
as a member of the general public, at least once a year since the 1960s. Id. ¶36. Further,
Glenn Oster maintained the Baker Trail from the late 1950s until 1990 as Baker Trail
Manager. Id. ¶37. During this time, Oster viewed the River Lane section of the Baker

                                            3
Trail as open for public use and personally hiked that section of the trail a half dozen
times. Id. Jim Ritchie took over Oster’s position in 1990. Id. ¶38. From 1990 until
2002, Ritchie led members of the public and volunteers on recreational hikes and
maintenance days along the River Lane section of the trail at least once a year. Id.
Additionally, from 2004 until the present, Dewaine Beard has personally hiked the
River Lane section of the trail on a regular basis and organized annual outings that
bring together volunteers and members of the public-at-large to hike and conduct
maintenance of the River Lane portion of the trail. Id. ¶39. The Amended Petition also
asserts that one of the Private Landowners, George Trent, has owned property along
River Lane from 1988 until the present, and that during that time he has observed
members of the public, including Conservancy members, using River Lane for hiking.
Id. ¶40.
               The Conservancy avers that when the Western Pennsylvania Chapter of
the AYH disbanded in 2003, the Conservancy took over stewardship of the Baker Trail.
Id. ¶42. The Conservancy “currently stewards the trail with assistance from volunteers,
public agencies, municipalities, and Private Landowners, all for the benefit of the
public.” Id.
               However, the Conservancy alleges that since 2011, several of the Private
Landowners have attempted to prohibit the public’s use of the River Lane section of
the hiking trail. Id. ¶43. In particular, in 2011, trail users began reporting to the
Conservancy that “they were confronted, intimidated, yelled at, or generally forced into
leaving the trail along River Lane.” Id.
               Thereafter, in 2014, the Conservancy filed an action against the Private
Landowners in the Court of Common Pleas of Clarion County seeking a declaration
that a public prescriptive easement exists over the River Lane section of the Baker
Trail. The Private Landowners filed preliminary objections, on the ground that the
Conservancy had failed to join DCNR, which the Private Landowners argued was an

                                            4
indispensable party. The Court of Common Pleas of Clarion County determined
DCNR was an indispensable party and sustained the preliminary objections. Because
it determined that DCNR was an indispensable party, the Court of Common Pleas of
Clarion County also concluded that original jurisdiction was vested with the
Commonwealth Court.
            The Conservancy subsequently sought clarity from DCNR regarding its
position vis-à-vis the properties along River Lane. Id. ¶47. According to the Amended
Petition, DCNR informed the Conservancy that “if a court determines that a public
easement exists for trail use of River Lane, DCNR would not oppose such use on its
owned and controlled land.” Id. The Conservancy then filed the instant action against
DCNR and the Private Landowners in this Court’s original jurisdiction.
            The Amended Petition avers that the public has adversely used the River
Lane section of the Baker Trail since the 1950s and that the public’s use has been open
and notorious as evidenced by the publication of the trail in hiking guides and maps,
and maintenance of blazes along the trail. Id. ¶¶51-52. The Conservancy also avers
that the public’s use has been continuous and uninterrupted for at least 21 years. Id.
¶52. Thus, the Conservancy asserts that the allegations in the Amended Petition
establish the requisite elements of a public prescriptive easement for the hiking trail
that runs along River Lane. Id. ¶53. The Conservancy requests that we declare the
existence of a public easement across both DCNR and the Private Landowners’ land,
which would enable the public to use River Lane for continued public pedestrian trail
access. Id. ¶A. The Conservancy also requests that we grant injunctive relief against
all Respondents “thereby allowing [the Conservancy] and members of the public to
continue to utilize the public easement along River Lane for public pedestrian trail
access.” Id. ¶B.




                                          5
                                           Discussion
               DCNR has preliminarily objected to the Amended Petition on the
following grounds: (1) legal insufficiency because the alleged easement is statutorily
foreclosed due to passing through an unenclosed woodland; (2) legal insufficiency
because prescriptive easements cannot be obtained on Commonwealth property; (3)
legal insufficiency in that the Amended Petition lacks any allegation that the use of
River Lane was adverse, which is necessary to establish a prescriptive easement; and
(4) lack of subject matter jurisdiction because proper jurisdiction lies with the State
Board of Property. The Private Landowners preliminarily object on the following
grounds: (1) legal insufficiency in that “easements in gross” may not be established by
prescription, but rather, only in writing; (2) legal insufficiency because the
Conservancy lacks standing and, as a private organization, cannot bring a prescriptive
easement claim on behalf of the “public”; and (3) the Amended Petition is insufficiently
specific.2


       A. The Legal Sufficiency of the Conservancy’s Claim Against DCNR
               We first address3 whether the Conservancy is barred from obtaining a
prescriptive easement against DCNR, thereby making the Amended Petition legally
insufficient. DCNR argues that the law governing prescriptive easement claims is


       2
         The Private Landowners also objected on the ground that the 21-year statute of limitations
for claiming property by prescription is tolled because DCNR owns a portion of River Lane and,
therefore, the statute of limitations is also tolled for the land owned by the Private Landowners.
However, in light of DCNR’s position that this action should be transferred to the State Board of
Property, the Private Landowners have withdrawn this preliminary objection.

       3
          When ruling on “preliminary objections we must consider as true all well-[pled] allegations
in the [petition for review] and all reasonable inferences that may be drawn from those allegations.”
City of Lebanon v. Commonwealth, 912 A.2d 338, 340 n.6 (Pa. Cmwlth. 2006). Further,
“[p]reliminary objections may be sustained only in cases where it is clear and without doubt that the
facts pleaded are legally insufficient to establish a right to relief.” Id.


                                                 6
analogous to adverse possession claims.        DCNR contends that because adverse
possession claims cannot be maintained against the Commonwealth, neither can
prescriptive easement claims and, therefore, the Conservancy’s claim that a
prescriptive easement exists over two DCNR-owned properties is legally insufficient.
             In response, the Conservancy does not dispute that a prescriptive easement
cannot be obtained on land owned by DCNR. However, the Conservancy argues that
the preliminary objection should be overruled because DCNR has indicated it would
not oppose a public trail across its parcels of land on River Lane if this Court finds a
public prescriptive easement against the Private Landowners.         The Conservancy
contends that DCNR is an indispensable party to the action because DCNR owns two
parcels of land on River Lane on either side of the Private Landowners’ land. Because
DCNR owns these two parcels of land, the Conservancy asserts that the public could
not have lawful access to the entirety of River Lane, as necessary to make it a public
trail, unless DCNR is a party to this lawsuit. Due to DCNR’s alleged acquiescence to
a public trail on its two parcels of land, the Conservancy admits that this Court does
not need to find a prescriptive easement over DCNR’s land to grant the Conservancy
the relief it seeks. The Conservancy also contends that it joined DCNR as a party to
this lawsuit in response to the Court of Common Pleas of Clarion County dismissing
the Conservancy’s complaint after determining the Conservancy had failed to join
DCNR as an indispensable party to the lawsuit.


    1. Public Prescriptive Easement Claims against Commonwealth Parties

             It is well-settled that “a prescriptive easement is acquired by analogy to
the acquisition of title to land through adverse possession for twenty-one years.”
Morning Call, Inc. v. Bell Atlantic-Pennsylvania Inc., 761 A.2d 139, 143 (Pa. Super.
2000). A prescriptive easement arises where the use of an easement “has been adverse,



                                           7
open, notorious and uninterrupted for twenty-one years.” Id. However, “a claim of
title by adverse possession does not lie against Commonwealth property.”
Department of Transportation v. J.W. Bishop & Company, Inc., 439 A.2d 101, 103 (Pa.
1981) (emphasis added); see also City of Philadelphia v. Galdo, 181 A.3d 1289, 1292
(Pa. Cmwlth. 2018) (same); Williamstown Borough Authority v. Cooper, 591 A.2d 711,
715 (Pa. Super. 1991) (same). In fact, the General Assembly has codified the general
preclusion of claims of adverse possession against the Commonwealth as follows:
             Nothing contained in this act shall be construed to give any
             title to any lands by a claim of title adverse to that of the
             Commonwealth of Pennsylvania, and no claim of title
             adverse to the Commonwealth of Pennsylvania shall be made
             or recorded under the provisions of this act.

Act of May 31, 1901, P.L. 352, 68 P.S. §88.
             Because claims of adverse possession do not lie against the
Commonwealth and the establishment of prescriptive easements is analogous to the
establishment of title to land by adverse possession, we conclude that prescriptive
easements cannot be maintained against Commonwealth property.                Thus, the
Conservancy fails to state a prescriptive easement claim against DCNR. Before
dismissing the Conservancy’s claim against DCNR outright, however, we must first
analyze whether DCNR is to any extent an indispensable party requiring continued
joinder to this action, as alleged by the Conservancy.


                              2. Indispensable Parties
             “A party is generally regarded to be 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.’” HYK Construction Company, Inc., v. Smithfield Township, 8
A.3d 1009, 1015 (Pa. Cmwlth. 2010) (quoting City of Philadelphia v. Commonwealth,
838 A.2d 566, 581 (Pa. 2003)). Thus, the main inquiry for determining whether a party

                                           8
is indispensable involves whether justice can be accomplished in the absence of the
party. Id.; see also Perkasie Borough Authority v. Hilltown Township Water and Sewer
Authority, 819 A.2d 597, 600 (Pa. Cmwlth. 2003) (holding that “an indispensable party
is one whose rights are so connected with the claims of the litigants that no relief can
be granted without infringing upon those rights”). The relevant analysis of whether a
party is indispensable requires an examination of the following four factors:
             1. Do absent parties have a right or 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?

HYK Construction Company, 8 A.3d at 1015. When undertaking this inquiry, the
nature of the particular claim and the type of relief sought should be considered. Id.
             In easement cases, our Supreme Court has held that the fee simple owner
of the servient tenement, i.e., the estate of land that is burdened by the easement, is an
indispensable party because “[t]he right to the use and enjoyment of his property will
be adversely affected by any litigation involving the easement.”            Columbia Gas
Transmission Corp. v. Diamond Fuel Company, 346 A.2d 788, 789 (Pa. 1975).
Likewise, when there is a dispute regarding “the existence of an easement, all owners
of servient tenements have a material interest in the controversy and should be joined
as defendants, even though such an owner may have had no part in the interference




                                             9
with, or obstruction of the alleged easement.” Barren v. Dubas, 441 A.2d 1315, 1316
(Pa. Super. 1982).4
               Further, with regard to cases involving the Commonwealth, “[a]
Commonwealth party may be declared an indispensable party when meaningful relief
cannot conceivably be afforded without the Commonwealth party’s direct involvement
in the action.” Ballroom, LLC v. Commonwealth, 984 A.2d 582, 588 (Pa. Cmwlth.
2009).      However, where a petitioner “seeks absolutely no relief” from the
Commonwealth party, and the Commonwealth party’s involvement is only “minimal,”
we have held it is not an indispensable party. See Perkasie Borough Authority, 819
A.2d at 600, 602 (holding that in dispute involving agreement between township and
water authority, the Pennsylvania Department of Environmental Protection was not an
indispensable party where there was no claim raised against it and its involvement in
implementation of agreement was “minimal”); see also E-Z Parks, Inc. v. Philadelphia
Parking Authority, 521 A.2d 71, 74 (Pa. Cmwlth. 1987) (holding that “the




       4
          In Columbia Gas Transmission Corp., Columbia Gas was the owner of a disputed
maintenance and repair right-of-way that measured fifty feet in width. 346 A.2d at 789. Columbia
Gas ordered appellants Diamond Fuel Company and William M. Fiore Trucking and Contracting
Company to cease future dumping of fill material at the site and to remove any excess fill in the right-
of-way. Id. Our Supreme Court concluded that neither appellant was the owner in the fee of the
servient tenement across which the disputed easement existed; instead, the owner of the fee simple
title was William M. Fiore individually, who was not a party to the action. Id. Our Supreme Court
held that William M. Fiore, as fee simple owner of the servient tenement, was an indispensable party
and, therefore, needed to be joined to the action. Id. at 789.

        In Barren, the Barrens filed a complaint in equity alleging that they had obtained a prescriptive
easement to an alleyway that crossed their adjoining parcel of land and sought to compel the
appellants to restore access to the alleyway and prohibit appellants from interfering with the Barrens’
use of the land. 441 A.2d at 1315. However, the appellants contended they had conveyed a portion
of the servient tenement to the Gillotts, who were not parties to the action. Id. at 1316. The Superior
Court held that “[b]ecause the Gillotts, fee owners of a servient tenement, [were] indispensable
parties, and [had] not been joined as defendants, the lower court lacked jurisdiction.” Id. at 1317.


                                                  10
Commonwealth need not be joined as an indispensable party where its interests or
rights are only tangentially involved in the litigation”).
             Here, although the Conservancy’s Amended Petition includes prescriptive
easement claims with regard to the two parcels of land owned by DCNR, because a
prescriptive easement cannot be obtained against DCNR on those parcels, see J.W.
Bishop & Company, 439 A.2d at 103; 68 P.S. §88, there is no possibility that DCNR’s
rights would be impaired or infringed upon if the Conservancy were to obtain a
prescriptive easement claim against the Private Landowners. Since the Conservancy
is legally unable to obtain a prescriptive easement against DCNR, and DCNR is not a
servient tenement to any prospective easement, this case differs from both Columbia
Gas Transmission Corp. and Barren. Because DCNR would not be negatively affected
by a finding of a prescriptive easement on the Private Landowners’ land, it cannot be
deemed an indispensable party based on any infringement of its rights.
             While the Conservancy acknowledges in its brief that it cannot bring a
prescriptive easement claim against a Commonwealth party, it argues that DCNR is
indispensable because DCNR owns two parcels of land on either side of the Private
Landowners’ land and the public will not be able to access the River Lane hiking trail
without traversing across DCNR’s land. The Conservancy also argues that DCNR is
indispensable because it has allegedly indicated, in a letter, that it will not oppose the
use of its own land for the hiking trail in the event the Conservancy obtains a
prescriptive easement for a hiking trail across the Private Landowners’ land. However,
because a prescriptive easement can never be established on DCNR’s land, we
conclude that DCNR’s ownership of the two adjacent parcels and alleged agreement to
permit a hiking trail on same is too “tangential” and “minimal” of an involvement to
make it an indispensable party to this matter. Given that DCNR is not an indispensable




                                            11
party and its involvement is not required to afford meaningful relief, we sustain
DCNR’s preliminary objection to the Amended Petition.5
                           3. Lack of Subject Matter Jurisdiction
                Section 761(a) of the Pennsylvania Judicial Code, 42 Pa.C.S. §761(a),
provides, “[t]he Commonwealth Court shall have original jurisdiction of all civil
actions or proceedings: (1) Against the Commonwealth government . . . .” Id.
However, for this Court to have original jurisdiction over a suit against the
Commonwealth and other parties, the Commonwealth party must be an indispensable
party. Ballroom, LLC, 984 A.2d at 588; City of Lebanon, 912 A.2d at 341; Perkasie,
819 A.2d at 600. Since we conclude that DCNR is not an indispensable party and
dismiss the claim against it, we are divested of jurisdiction and must transfer this matter
to the court with proper jurisdiction, i.e., the Court of Common Pleas of Clarion
County, pursuant to section 5103(a) of the Pennsylvania Judicial Code, 42 Pa. C.S.
§5103(a).6 See City of Lebanon, 912 A.2d at 341; Rastall v. DeBouse, 736 A.2d 756,



       5
          Because we sustain DCNR’s preliminary objection that the Conservancy is barred from
obtaining a prescriptive easement against the Commonwealth, therefore making the Amended
Petition legally insufficient with respect to DCNR, we do not address DCNR’s other preliminary
objections.

       6
           Section 5103(a) of the Judicial Code, 42 Pa.C.S. §5103(a), provides, in relevant part, as
follows:

                a) General rule.--If an appeal or other matter is taken to or brought in
                a court or magisterial district of this Commonwealth which does not
                have jurisdiction of the appeal or other matter, the court or magisterial
                district judge shall not quash such appeal or dismiss the matter, but
                shall transfer the record thereof to the proper tribunal of this
                Commonwealth, where the appeal or other matter shall be treated as if
                originally filed in the transferee tribunal on the date when the appeal or
                other matter was first filed in a court or magisterial district of this
                Commonwealth.



                                                   12
759 (Pa. Cmwlth. 1999); Local 302, International Association of Firefighters v. City
of Allentown, 423 A.2d 1119, 1122 (Pa. Cmwlth. 1980).


                                           Conclusion
               Because we sustain DCNR’s preliminary objection and, consequently,
lack jurisdiction, we transfer this matter and the Private Landowners’ preliminary
objections to the Court of Common Pleas of Clarion County.7




                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       7
          In their briefs in support of preliminary objections, the Private Landowners raise a number
of arguments, including that the Conservancy is not the “real party in interest,” because only a
governmental entity, such as DCNR, may claim a prescriptive easement on behalf of the public.
(Private Landowners’ Reply Brief at 4.) The Private Landowners contend that only a governmental
entity can own public property and that, therefore, the Commonwealth is the only party that is legally
entitled to bring an action for a public prescriptive easement. The parties refer to Wampler v. Shenk,
172 A.2d 313 (Pa. 1961), where our Supreme Court held that “[u]ndoubtedly the public can acquire
an easement by prescription.” Id. at 316; see also Gehres v. Falls Township, 948 A.2d 249, 251 (Pa.
Cmwlth. 2008) (holding that the “public may acquire a prescriptive easement”); Southeastern
Pennsylvania Transportation Authority v. Pennsylvania Public Utility Commission, 505 A.2d 1046,
1048-50 (Pa. Cmwlth. 1986) (discussing law of public prescriptive easements). However, this
argument really pertains to standing and, as such, must be addressed by the Court of Common Pleas
of Clarion County following our transfer of this action. As such, we do not address the issue of
whether the Conservancy has standing in this matter. Because we are transferring the Private
Landowners’ preliminary objections to the Court of Common Pleas of Clarion County, it is not
necessary for us to address the other outstanding issues raised in the Private Landowners’ preliminary
objections.


                                                 13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rachel Carson Trails Conservancy,      :
Inc.,                                  :
                  Petitioner           :
                                       :    No. 77 M.D. 2018
            v.                         :
                                       :
The Department of Conservation and     :
Natural Resources of the               :
Commonwealth of Pennsylvania,          :
William Bohlander and Barbara          :
Bohlander, Thomas A. Foreman,          :
Curtis K. Marando and Theresea L.      :
Marando, Peter McKay and Gretchen      :
McKay, Susan McMurray Living           :
Trust, David A. Miller, Jonathan C.    :
Miller, Vaughn P. Miller and Kim       :
Miller, Carol Riffer, and Ruth Trent   :
and George E. Trent,                   :
                    Respondents        :



                                    ORDER


            AND NOW, this 31st day of December, 2018, the Department of
Conservation and Natural Resources’ preliminary objection is sustained.      The
Department of Conservation and Natural Resources is dismissed as a respondent,
and this matter, and the preliminary objections of the remaining respondents, are
transferred to the Court of Common Pleas of Clarion County.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
