J-A19042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOWARD P. & CAROL N. ANGSTADT AND           IN THE SUPERIOR COURT OF
GARY L. & SHERRE A. GAERTNER AND                  PENNSYLVANIA
THOMAS D. & MICHELLE M.
MCLAUGHLIN

                 v.

GARY J. AND MELISSA FADDIS AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
ISAAC J. BOOTH AND UNKNOWN HEIRS
AND/OR ADMINISTRATORS OF THE
ESTATE OF WILHELMINA SMEDLEY AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
JAMES DAY

APPEAL OF: GARY J. AND MELISSA
                                                 No. 2605 EDA 2015
FADDIS


         Appeal from the Judgment Entered September 15, 2015
     in the Court of Common Pleas of Delaware County Civil Division
                         at No(s): 2012-005034

HOWARD P. & CAROL N. ANGSTADT AND           IN THE SUPERIOR COURT OF
GARY L. & SHERRE A. GAERTNER AND                  PENNSYLVANIA
THOMAS D. & MICHELLE M.
MCLAUGHLIN

                 v.

GARY J. AND MELISSA FADDIS AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
ISAAC J. BOOTH AND UNKNOWN HEIRS
AND/OR ADMINISTRATORS OF THE
ESTATE OF WILHELMINA SMEDLEY AND
UNKNOWN HEIRS AND/OR
ADMINISTRATORS OF THE ESTATE OF
JAMES DAY
J-A19042-16


APPEAL OF: HOWARD P. & CAROL N.
ANGSTADT AND GARY L. & SHERRE A.                      No. 2606 EDA 2015
GAERTNER


             Appeal from the Judgment Entered September 15, 2015
         in the Court of Common Pleas of Delaware County Civil Division
                             at No(s): 2012-005034

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 28, 2016

        Appellants/Cross-Appellees, Gary J. and Melissa Faddis (“Faddis”),

appeal from the judgment1 entered in the Delaware County Court of

Common Pleas finding that they had abandoned any express easement

and/or any other form of easement proving they had a right of ingress and

egress along Copes Lane. Appellees/Cross-Appellants, Howard P. & Carol N.

Angstadt (“Angstadt”), and Gary L. & Sherre A. Gaertner (“Gaertner”),

appeal from the judgment entered in the Delaware County Court of Common

Pleas denying their claims of adverse possession of the parcel known as

Copes Lane. We affirm.


*
    Former Justice specially assigned to the Superior Court.
1
  Although the parties filed their appeals after the denial of their post-trial
motions, which pre-dated the entry of judgment, the appeals were perfected
when judgment was entered on September 15, 2015.               See Pa.R.A.P.
905(a)(5); Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d
511, 514-15 (Pa. Super. 1995) (en banc) (stating that appellate courts may
“regard as done that which ought to have been done”); see also Levitt v.
Patrick, 976 A.2d 581, 584 n.2 (Pa. Super. 2009) (stating that appeal
properly lies from the entry of judgment, not from order denying post-trial
motion).




                                       -2-
J-A19042-16


      We adopt the facts set forth by the trial court’s opinion. See Trial Ct.

Op., 10/21/15, at 7-11.2 The parties stipulated, inter alia, to the following:

         15. The September 26, 1991 Faddis Deed does not make
         any reference to Copes Lane.

         16. On or about May 7, 2012, Gary J. Faddis and Melissa
         Faddis recorded a Deed dated April 4, 2012 from
         themselves to themselves . . . .

         17. The May 7, 2012 deed added the following language
         to their prior Deed: “Together with the right of ingress and
         egress to and from said premises to Edgmont Road along
         property of Wilhelmine Smedley AND Copes Lane as the
         same is now used.”

                                  *    *    *

         20. The Faddis’ predecessor in title was Howard H. Faddis,
         Jr. and Dorothy S. Faddis, his wife, who purchased the
         property from John b. Hanley and Gertrude Hanley on
         August 7, 1952 . . . .

         21. That Deed contains the following statement: “Together
         with the right of ingress and egress to and from said
         premises to Edgmont Road along property of Wilhelmina
         Smedley, as the same is now used.

                                  *    *    *


2
  We note the trial court opinion refers to the Agreed Stipulation of Facts
Between Counsel for Plaintiff and Counsel for Defendant. See R.R. at 67a-
73a. “The stipulation of facts is binding on both the parties and on this
court, and facts effectively stipulated are controlling and conclusive.”
Kennedy Boulevard Assoc. I, L.P. v. Tax Review Bd. of City of Phila.,
751 A.2d 719, 724 (Pa. Cmwlth. 2000) (quotation marks and citation
omitted). For the parties’ convenience, we refer to the reproduced record
where applicable.




                                      -3-
J-A19042-16


        32. [Faddis] live in the property formerly belonging to
        Howard H. Faddis, Jr. and Dorothy S. Faddis. The water
        line servicing their property runs from old Middletown Road
        down Cope[s] Lane to their property. The water line has
        been in continuous use since at least December 4, 1956.

                                 *    *    *

        39. In 1994, [Faddis] installed 4’ high post and rail
        fence along the rear and sides of their property.

        40. The Faddis rear yard fence was installed pursuant to a
        Building Permit which issued by Middletown township on
        June 1, 1994 . . . .

        41. The Faddis fence runs perpendicular to and crossed
        over Copes Lane, ending at and abutting up to the
        McLaughlin’s corner fence post.    It was originally
        installed without a gate.

        42. In or about April of 2012, [Faddis] removed the
        section of their post and rail fence which crossed Copes
        Land and replaced it with a double gate.

R.R. at 69a-72a (emphases added).

     The parties filed post-trial motions, which the court denied.       These

appeals followed.     The parties filed court-ordered Pa.R.A.P. 1925(b)

statements of errors complained of on appeal.         The trial court filed a

responsive opinion.

     Faddis raises the following issues for our review:

        I. Did the [t]rial [c]ourt abuse its discretion and commit an
        error of law in finding that . . . Faddis abandoned their
        easement of ingress and egress over Copes Lane where in
        the same decision the court found “[Faddis has] through
        clear and concise evidence proven the actual, continuous,
        exclusive, visible, notorious, distinct and hostile possession
        of that portion of Copes Lane where their water line is
        located since 1954. . .” because any use of their easement


                                     -4-
J-A19042-16


          of ingress and egress, even for the limited purpose of
          utilities, as a matter of law, precludes a finding that they
          abandoned their easement?

          II. Did the trial court commit an error of law or an abuse of
          discretion in determining that [Appellees] McLaughlin had
          established, by clear and convincing evidence, adverse
          possession of the area of Copes Lane located within their
          fence where the court did not follow the controlling
          precedent announced in the Superior Court’s decision in
          Flannery v. Stump[, 786 A.2d 255 (Pa. Super. 2001)]
          which precludes a finding of hostile possession on facts
          identical to the facts in this case?

Faddis’ Brief at 4-5.

       Faddis contends that any use of the easement of ingress and egress,

even for the limited purpose of utilities, precludes a finding that they

abandoned their easement. Id. at 19. Faddis avers “evidence of intent of

the easement holder to abandon the easement is the key to the analysis of

easement abandonment.”        Id. at 23-24.    They claim “[s]ince the [t]rial

[c]ourt found that . . . Faddis had made continuous use of their easement of

ingress and egress for utilities, it abused its discretion and committed an

error of law by holding in the same decision they abandoned the very same

easement.”     Id. at 25.   The trial court erred in “finding that . . . Faddis

abandoned their easement of ingress and egress and in the same decision

declaring they had established a prescriptive utility easement.” 3 Id. Faddis

is denied relief.


3
    We note




                                      -5-
J-A19042-16


     Our review is governed by the following principles:

           Our scope of review is limited. We are bound by
        findings of fact which are supported by the record, but not
        the trial court’s conclusions of law. We must have due
        regard for the trial court’s superior vantage and its
        prerogatives to access credibility and to believe all, part, or
        none of the evidence presented. Finally, we may not
        reverse absent a clear abuse of discretion or an error of
        law.

Waltimyer, 556 A.2d at 913.

     In Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002), our Pennsylvania

Supreme Court held that

        [i]n evaluating whether the user abandoned the property,
        the court must consider whether there was an intention to
        abandon the property interest, together with external acts
        by which such intention is carried into effect. In order to
        establish the abandonment of a right-of-way, the evidence
        must show that the easement holder intended to give up
        its right to use the easement permanently. Such conduct
        must consist of some affirmative act on his part which
        renders use of the easement impossible, or of some
        physical obstruction of it by him in a manner that is
        inconsistent with its further enjoyment.

                                 *    *    *



        An easement or right-of-way by prescription arises by
        adverse, open, continuous, notorious, and uninterrupted
        use of the land for twenty-one years. The scope of the use
        during the prescriptive period determines the scope of the
        easement or right-of-way obtained, except with respect to
        a reasonable evolution of the use which is not unduly
        burdensome.

Waltimyer v. Smith, 556 A.2d 912, 913-14 (Pa. Super. 1989).




                                     -6-
J-A19042-16


           In sum, many different factors can be considered when
        making a determination of abandonment. Moreover, no
        single factor alone is sufficient to establish the intent to
        abandon. Abandonment must be determined based upon
        all of the circumstances surrounding the alleged
        abandonment.

Id. at 664–65 (quotation marks and citations omitted).

     Instantly, the trial court

        found that Angstadt, Gaertner and McLaughlin proved
        through clear and convincing evidence that Faddis erected
        a post and rail fence surrounding the rear yard of the
        Faddis property and across their point of access to Copes
        Lane in 1994. The Faddis’s post and rail fence did not
        include a gate at their point of access to Copes Lane, and
        Copes Lane became over-grown at the point of access to
        the Faddis property. The construction of this fence
        rendered the use of the easement impossible and was
        inconsistent with its further enjoyment. The record clearly
        indicates that this fence and overgrowth limited ingress
        and egress to Copes Lane from the Faddis property. It
        was only following the Gaertner zoning hearing in January
        2012 that Faddis prepared and filed the 2012 Faddis
        corrective Deed, cleared over-growth using a chemical
        agent, installed a gate in their fence at the access point to
        Copes Lane, and began pedestrian and motor vehicle use
        of Copes Lane to access the public roadway.

                                  *    *    *

           On the claim of Angstadt, Gaertner and McLaughlin
        against Faddis and based upon the asserted right to a
        prescriptive easement along Copes Lane for the placement
        underground, maintenance, repair and replacement of a
        lateral water line servicing the Faddis property by
        connecting to the main public water service line located in
        and along south Old Middletown Road, Middletown
        Township, Delaware County, Pennsylvania, this [c]ourt
        found in favor of Faddis confirming the prescriptive
        easement for a public water line and against Angstadt,
        Gaertner and McLaughlin and each of the remaining
        defendants, Unknown Heirs and/or Administrators of the


                                      -7-
J-A19042-16


        Estate of Isaac J. Booth, Unknown Heirs and/or
        Administrators of the Estate of Wilhelmina Smedley, and
        Unknown Heirs and/or Administrators of the Estate of
        James Day.

           On the claim of Angstadt, Gaertner and McLaughlin
        against Faddis that Faddis abandoned any express
        easement granted by the 1952 Faddis Deed, the 1991
        Faddis Deed and/or the 2012 Faddis Corrective Deed,
        and/or any other form of easement Faddis claims provide a
        right of ingress and egress along Copes Lane, this [c]ourt
        found in favor [of] Angstadt, Gaertner and McLaughlin and
        the remaining defendants, Unknown Heirs and/or
        Administrators of the Estate of Isaac J. Booth, Unknown
        Heirs and/or Administrators of the Estate of Wilhelmina
        Smedley, and Unknown Heirs and/or Administrators of the
        Estate of James Day.

Trial Ct. Op. at 15-17 (emphasis added and footnote omitted).

     Although the Deed of Howard H. Faddis Jr. and Dorothy S. Faddis

contained the right of ingress and egress to Copes Lane, the installation of

the post and rail fence by Faddis along the Faddis property in 1994 blocked

the access to and from the Faddis property to Copes Lane.       This physical

obstruction rendered the use of the easement impossible and, therefore,

Faddis effectively abandoned the easement. See Buffalo Twp., 813 A.2d at

664-65. We discern no abuse of discretion or error of law. See Smith, 556

A.2d at 913.

     Next, Faddis contends the trial court erred in finding that McLaughlin

had established adverse possession of the area of Copes Lane located within

the McLaughlin’s fence and ignoring controlling precedent in Flannery,

supra. Faddis Brief at 28. Faddis claims that because McLaughlin thought



                                   -8-
J-A19042-16


the fence was on his own property until 1995, he did not meet the

requirements for adverse possession. Id. at 33. We disagree.

        The elements necessary to establish adverse possession
        are as follows:

            Adverse possession is an extraordinary doctrine
            which permits one to achieve ownership of another’s
            property by operation of law. Accordingly, the grant
            of this extraordinary privilege should be based upon
            clear evidence. Edmondson v. Dolinich, [ ] 453
            A.2d 611, 614 (Pa. Super. 1982) (“It is a serious
            matter indeed to take away another’s property. That
            is why the law imposes such strict requirements of
            proof on one who claims title by adverse
            possession.”)     One who claims title by adverse
            possession must prove actual, continuous, exclusive,
            visible, notorious, distinct and hostile possession of
            the land for twenty-one years.         Each of these
            elements must exist; otherwise, the possession will
            not confer title.

        Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774
        (Pa. Super. 2008) (quoting Flannery[, 786 A.2d at 258]
        (certain citations omitted), [ ]).

Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010).4

      “While the word ‘hostile’ has been held not to mean ill will or hostility,

it does imply the intent to hold title against the record title holder.” Tioga

Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 3 (Pa. 1988) (citation

omitted).   Furthermore, “[i]n Schlagel v. Lombardi, [ ] 486 A.2d 491

([Pa. Super.] 1984), [the] Superior Court observed that possession may

4
   We note that “[a] prescriptive easement differs from land acquired by
adverse possession, because an adverse possessor acquires the land in fee,
whereas the prescriptive easement holder is only entitled to an easement-
like use.” Soderberg v. Weisel, 687 A.2d 839, 843 (Pa. Super. 1997).



                                     -9-
J-A19042-16


be hostile even if the claimant knows of no other claim and falsely

believes that he owned the land in question[.]” Id. (emphases added).

      Instantly, the trial court opined:

         McLaughlin was successful in proving adverse possession
         of the specific area of Copes Lane inside the rear yard
         fence on the McLaughlin property. McLaughlin since 1989
         held the portion of Copes Lane inside a fence line
         exclusively for themselves and believed that land to be
         their property. In 1995, during the process of replacing
         the fence, McLaughlin learned they did not hold title to the
         Copes Lane portion of their rear yard, but nevertheless,
         they directed the contractor to place the new fence in the
         same location as the original fence.         This conduct
         demonstrates their contention that they have exercised
         actual, continuous, exclusive, visible, notorious, distinct
         and hostile possession of that portion of Copes Lane for
         twenty-one years.

Trial Ct. Op. at 13.

      Even though McLaughlin falsely believed he owned the land in

question, possession may be hostile. See Tioga Coal Co., 546 A.2d at 3.

Thus, the elements of adverse possession have been established.           See

Showalter, 9 A.3d at 235. We find no abuse of discretion by the trial court.

See Waltimyer, 556 A.2d at 913.

      Angstadt and Gaertner raise the following issues for our review:

         [1.] Did the [t]rial [c]ourt commit error of law and abused
         [sic] its discretion by failing to determine the easement
         language in the Angstatdts’ Deed regarding Copes Lane
         had a sunset provision and the grantors in their chain of
         title have not used Copes Lane for over half a century,
         therefore the Angstadts’ use was not permissive?

         [2.] Did the [t]rial [c]ourt commit error of law and abuse
         its discretion by failing to grant [Angstadt] title by adverse


                                     - 10 -
J-A19042-16


           possession of the portion of Copes Lane which they had
           maintained since 1964?

           [3.] Did the [t]rial [c]ourt commit error of law and abuse
           its discretion by failing to grant [Gaertner] title by adverse
           possession of the portion of Copes Lane they had
           maintained and used since 1987 by relying on Mr.
           Gaertner’s failure to assert ownership before a Zoning
           Hearing Board?

           [4.] Did the [t]rial [c]ourt commit error of law and abuse
           its discretion in failing to find the “1991 Faddis Deed” did
           not convey a right of ingress and egress along Copes
           Lane?

           [5.] Did the [t]rial [c]ourt commit error of law and abuse
           its discretion by failing to find the “2012 Faddis corrective
           Deed” was a nullity as it relates to conveyance of any title
           or right of ingress and egress along Copes Lane to and
           from South Old Middletown Road?

Angstadt-Gaertner’s Brief at 19.5

        We address the first two issues together because they are interrelated.

Angstadt contends the trial court erred in determining that the Angstadt

deed contains an express easement to Copes Lane based upon the following

language: “TOGETHER with the right and use of the LANE leading from Old

Middletown Road (formerly Edgmont Great Road) to Herman Cope’s property

so far as the right, title and use of the same remains in the Grantors.” Id.

at 30. They claim their permissive use changed to hostile use. Id. They

argue they satisfied the elements of adverse possession by maintaining the




5
    For ease of disposition, we have numbered the issues.



                                       - 11 -
J-A19042-16


property, which “included cutting grass, raking leaves, cleaning up trash,

limbs and branches.” Id. at 32 (citations omitted). We find no relief is due.

      In Waltimyer, this Court opined:

         A use based upon permission cannot ripen into a
         prescriptive right unless the owner of the land is given
         clear notice that the character of the use has changed from
         a permissive use to an adverse use, and the adverse use
         then continues for the full prescriptive period.

Waltimyer, 556 A.2d at 914.       “Where the possession, at its inception, is

permissive, . . . (adverse possession) will not begin to run against the real

owner [u]ntil there has been some subsequent act of disseizin or open

disavowal of the true owner’s title . . . .” Roman v. Roman, 401 A.2d 361,

363 (Pa. 1979) (citation omitted).

      The trial court opined:

         Angstadt failed to prove by clear and convincing evidence
         actual, continuous, exclusive, visible, notorious, distinct
         and hostile possession over any portion of Copes Lane.
         Rather, the 1964 Angstadt Deed includes the grant of an
         express easement to Angstadt for ingress and egress along
         Copes Lane. Therefore, Angstadts’ possession of Copes
         Lane is permissive.

Trial Ct. Op. at 12-13.

      The record doesn’t establish a subsequent act that would convert

Angstadt’s permissive use of Copes Lane into adverse possession.         See

Roman, 401 A.2d at 363; Waltimyer, 556 A.2d at 914.           We discern no

abuse of discretion by the trial court. See id. at 913.




                                     - 12 -
J-A19042-16


      Lastly, we address the Gaertner claim that the trial court erred in

failing to grant them title by adverse possession of the portion of Copes Lane

that they had maintained and used since 1987 by relying upon Gaertner’s

failure to assert ownership before a Zoning Hearing Board.          Angstadt-

Gaertner’s Brief at 35.       Gaertner contends that “he cut grass, trimmed

branches, raked leaves and maintained the grounds as his own.”            Id.

(citation omitted).   He erected a shed and maintained a garden and a

woodpile on Copes Lane. Id. (citation omitted). Gaertner argues that “[t]he

[t]rial [c]ourt committed reversible error by failing to consider and

determine that [Gaertner] exercised open, continuous, notorious, visible

exclusive and hostile possession over the portion of Copes Lane they

maintained for over 21 years . . . .” Id.

      At the hearing on March 26, 2015, Gaertner testified as follows on

cross examination.

         [Counsel for Faddis]: You told the Zoning Hearing Board
         [in January 2012] that you did not own Copes Lane. Is
         that correct?

         A: That’s correct.

         Q: And you did not include any of Copes Lane when made
         your ground calculations for your setbacks.     Is that
         correct?

         A: That’s correct. In fact, I said at the Zoning Board
         meeting that if I did owe [sic] Copes Lane, I would not
         have to be before them.

         Q: And that was─



                                      - 13 -
J-A19042-16


         A: Or half of Copes Lane, I wouldn’t have had to have
         been before them.

         Q: And that’s the truth. If you had half of Copes Lane, you
         wouldn’t have needed that variance?

         A: That’s correct.

                                   *     *      *

         Q: You never blocked Copes Lane or fenced it or tried
         to prevent anyone else from going─using Copes
         Lane. Is that correct?

         A: That’s correct.

         Q: So other than seasonally picking up a few fallen
         branches and cutting some grass, you did nothing to
         announce to the rest of the world that you were
         claiming Copes Lane as your property. Is that correct?

         A: That’s correct.

R.R. at 210a-11a (emphases added).

      The trial court opined:

            Since Gaertner admitted at the January 2012
         Middletown Township Zoning Hearing no ownership or any
         portion of Copes Lane, Gaertner cannot prove the
         elements of adverse possession through sufficient
         evidence.   Gaertner also failed to establish exclusive
         possession of any portion of Copes Lane.

Trial Ct. Op. at 13.

      Gaertner   has not      proven actual,        continuous, exclusive, visible,

notorious, distinct and hostile possession of Copes Lane for twenty-one

years. See Showalter, 9 A.3d at 235. Therefore, Gaertner cannot claim




                                       - 14 -
J-A19042-16


title by adverse possession. See id. We find no abuse of discretion by the

trial court. See Waltimyer, 556 A.2d at 913.6

     Accordingly, for all of the foregoing reasons, the judgment is affirmed.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/28/2016




6
 Given our resolution of the first issue raised by Faddis on appeal, we need
not address the fourth and fifth issues raised by Angstadt and Gaertner.



                                   - 15 -
                                                Circulated 09/30/2016 12:50 PM




       IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY,
                          PENNSYLVANIA
                        CIVIL ACTION - LAW

 HOW ARD P. & CAROL N. ANGSTADT   :      NO. 2012-005034

             and

 GARY L. & SHERRE A. GAERTNER

            and

 THOMAS D. & MICHELLE M.
 McLAUGHLIN

             v.

 GARY J. & MELISSA FADDIS

            and

 UNKNOWN HEIRS AND/OR
 ADMINISTRATORS OF THE EST ATE
 OF ISAAC J. BOOTH

            and

 UNKNOWN HEIRS AND/OR
 ADMINISTRATORS OF THE EST ATE
 OF WILHELMINA SMEDLEY

            and

 UNKNOWN HEIRS AND/OR
 ADMINISTRATORS OF THE ESTATE
 OF JAMES DAY

Timothy F. Sullivan, Esquire
Joseph B. Van Wyk, Esquire
    GREEN, J.                                           FILED: October 21, 2015


                                          OPINION


         The parties each appealed the Trial Court's June 8, 2015 Decision following a

    three day bench trial.' Post-trial motions were denied by Orders dated July 15, 2015.

    The plaintiffs in the underlying matter, Howard P. Angstadt and Carol N. Angstadt,

    Gary L. Gaertner and Sherre A. Gaertner, and Thomas Daniel McLaughlin and

    Michelle Marie McLaughlin filed a Statement of Matters of Complained of on

    Appeal on September 18, 2015 and raise the following issues for appellate review:

     1. The Honorable Court committed an error of law and an abuse of discretion
     in failing to find that the "1991 Faddis Deed" did not convey a right of ingress
     and egress along Copes Lane to and from South Old Middletown Road. An
     easement for ingress and egress along Copes Lane was not necessary for the
     use and enjoyment of the Faddis property. The testimony of all the Plaintiffs
     was that the Fadddises [sic] did not use Copes Lane to get to and from their
     property to South Old Middletown Road by vehicle, motorcycle or walking for
     decades prior to the initiation of this litigation.

     2. The Honorable Court committed an error of law and an abuse of discretion
     in failing to find that the "2012 Faddis Corrective Deed" from themselves to
     themselves was a nullity as it relates to the language inserted conveying a right
     of ingress and egress along Copes Lane to and from South Old Middletown
     Road. Defendant, Gary Faddis, testified that in 1991 he and his wife bought
     out his brother and his sister. His brother and his sister were alive on the date
     of the trial and Mr. Faddis' brother and sister did not execute the Deed of
     Correction. At a minimum, for the 2012 Faddis Deed of Correction to have been
     valid, it needed to be signed by the original granters.



I
    Cross Appeals 2605 EDA 2015 and 2606 EDA 2015 have been consolidated.
                                             2
 3. The Honorable Court committed an error of law and an abuse of discretion
 in failing to find that the easement language in the Angstadt Deed had a sunset
 provision: "Together with the right and use of the land ... so far as the right,
 title and use of the same remains in the Grantors".

 4. The Honorable Court committed an error of law and an abuse of discretion
 in failing to find that the Angstadts' grantors and all the grantors in their chain
 of title have not used Copes Lane for over a half century.

5. The Honorable Court committed an error of law and an abuse of discretion
in failing to grant the Angstadts adverse possession of the portion of Copes
Lane which they had maintained since on or about 1964. The Angstadts proved
by a clear and convincing evidence that they had actual, continuous, exclusive,
visible, notorious and distinct possession of a portion of Copes Lane. When all
other elements of adverse of possession are met, hostility can be implied to
establish adverse possession.

6. The Honorable Court committed an error of law and an abuse of discretion
in failing to grant the Gaertners adverse possession of the portion of Copes Lane
which they had maintained and used for a garden, a wood pile, a shed and
storage of trash cans and ladders since on or about 1987.

7. The Honorable Court committed an error of law and an abuse of discretion
in finding that the failure of Plaintiff Gaertner to assert ownership of a portion
of Copes Lane in a zoning case for a dimensional variance defeats the
Gaertners' claim for adverse possession. The Court seems to imply Plaintiff
Gaertners would have been able to minimize or eliminate the need for a
variance. There was also testimony in the record that the Zoning Hearing Board
did not want to hear testimony about Copes Lane. NT Page 118.

8. The Honorable Court committed an error of law and an abuse of discretion
in finding that the "Angstadts" possession of Copes Lane is permissive."
Counsel believe the Court is relying upon the easement language in the
Angstadt Deed. The strip of lane at issue is an orphaned strip of land that is not
contained in any of the deeds of the four abutting property owners, i.e.,
Angstadt, Faddis, McLaughlin and Gaertner,            The unknown heirs of
Defendants, Day, Smedley and Booth are not defending the Plaintiffs' claims
of ownership of portions of Copes Lane abutting their properties by adverse
possession.

                                         3
   9. The Honorable Court committed an error of law and an abuse of discretion
   in finding that the Angstadts' possession of Copes Lane is permissive.


      The defendants in the underlying matter, Gary J. Faddis and Melissa Faddis,

also filed a Statement of Matters of Complained of on Appeal on September 8, 2015

and raise the following issues for appellate review:


   1. The Honorable Court committed an error of law and an abuse of discretion
  in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
  Lane located within their fence. The uncontroverted facts in this case establish
  that the McLaughlins did not know their fence encroached on Copes Lane until
  they replaced it in 1995. That was 17 years prior to the filing of this law suit
  and 4 years short of the statutorily required 21 years. The Honorable Court
  committed an error of law and an abuse of discretion by not applying the
  controlling precedent announced in the Superior Court' s decision in Flannery
  v. Stump, 803 A.2d 735 (Pa. 2002) which precluded the finding of hostile
  possession of facts identical to the facts of this case.

  2. The Honorable Court committed an error of law and an abuse of discretion
  in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
  Lane located within their fence. The uncontroverted facts in this case establish
  that the McLaughlins never told anyone they could not use Copes Lane and
  quietly allowed the use of Copes Lane by the neighborhood as part of a
  neighborly accommodation thus precluding this Court's finding of exclusive,
  notorious, distinct and hostile possession of the land for 21 years.

  3. The Honorable Court committed an error of law and an abuse of discretion
  in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes
  Lane located within their fence in that the facts of this case are insufficient to
  support this Court's finding.

  4. The Honorable Court committed an error of law and an abuse of discretion
  in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
  over Copes Lane where the uncontroverted facts in this case establish that the
  Faddis have an express easement granted in the chain of title to their property

                                          4
 dating back to 1851 granting a right of ingress and egress to their property from
 Old Middletown Road over Copes Lane.

5. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane by not giving effect to the express language contained in the
Faddis Deed of Correction,

6. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane by failing to apply controlling legal precedent that mere non-
use of an express easement by its own owner, no matter how long continued,
does not manifest an intent to abandon the easement.

7. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane based on the Court's finding the Defendants, Faddis installed
a fence across their back yard in June of 1994 and installed a double gate in that
fence by April of 2012, 18 years later, where the fence was in place of less than
21 years.

8. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane where the uncontroverted facts in this case establish that
Defendants, Faddis never intended to abandon the easement and continued to
use it for ingress and egress to get to Old Middletown Road as did the Faddis
children to get to school for 13 years prior to the filing of the law suit. The
Honorable Court committed an error of law and an abuse of discretion by not
applying the controlling legal precedent that the key to analysis of easement
abandonment is the intent of easement holder. Said uncontroverted facts of
record preclude this Honorable court from finding Defendants, Faddis
demonstrated an unequivocal, purposeful intent to forever close off the future
use of their easement of Ingress and Egress over Copes Lane.

9. The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane where this Honorable Court in the same Order and Decision
found "The Defendants Faddis have through clear and concise evidence proven
the actual, continuous, exclusive, visible, notorious, distinct and hostile
possession of that portion of Copes Lane where their water line is located since
                                        5
 1954, being a period in excess of twenty-one years." The Court's finding that
the Defendants, Faddis established a prescriptive easement by "the actual,
continuous, exclusive, visible, notorious, distinct and hostile possession of that
portion of Copes Lane" for their water line as a matter oflaw precludes a finding
that the Defendants Faddis abandoned their easement of Ingress and Egress.

10.The Honorable Court committed an error of law and an abuse of discretion
in finding Defendants, Faddis abandoned their Easement of Ingress and Egress
over Copes Lane in that the facts of this case are insufficient to support this
Court's finding.




                                       6
       Howard P. Angstadt and Carol N. Angstadt (hereinafter "Angstadt"), reside at

 490 South Old Middletown Road, Media, Pennsylvania,            having purchased their

 property on October 22, 1964. (03/15/15 N.T., p: 34.) The deed (the "1964 Angstadt

Deed") describes the Angstadt property as being" ... on the northerly side of and in line

with the northerly side of Copes Lane." P-5. Gary L. Gaertner and Sherre A. Gaertner

(hereinafter   "Gaertner")   reside at 496 South Old Middletown          Road, Media,

Pennsylvania, having purchased their property on August 21, 1987. (03/26/14 N.T.,

p.4). The deed (the" 1987 Gaertner Deed") describes the Gaertner property as" ... by a

private lane of lands now or late of Herman Cope." P-6. Thomas Daniel McLaughlin

and Michelle Marie McLaughlin (hereinafter "McLaughlin") reside at 500 South Old

Middletown Road, Media, Pennsylvania, having purchased their property on October

27, 1989. (N.T. 3/26/15, p.70). The deed (the "1989 McLaughlin Deed") describes the

McLaughlin property as " ... to an existing pipe on the Southwesterly side of Copes

Lane, thence extending on the said side of Copes Lane." P-6.

      Gary J. Faddis and Melissa Faddis (hereinafter "Faddis"), reside at 445 South

New Middletown Road, Media, Pennsylvania, having acquired their property by deed

from Howard H Faddis, III, and Dorothy Faddis, Co-Executors of the Estate of Howard

H. Faddis, Deceased, and Dorothy S. Faddis, individually on September 26, 1991 (the

"1991 Faddis Deed"). CT-I, Stipulation of Facts, ,rI3. Howard N. Faddis and Dorothy

Faddis were the parents of Gary J. Faddis, and Howard N. Faddis and Dorothy Faddis

                                          7
 purchased the Faddis property on August 7, 1952, under a deed (the "1952 Faddis

 Deed") which included the following language: " ... Together with the right of ingress

 and egress to and from said premises to Edgmont Road along property of Wilhelmina

 Smedley, as the same is now used." CT-1, Stipulation ofFacts,     ,r 21.   This recital in the

 1952 Faddis Deed concerning the "right of ingress and egress" is a reference to a private

lane approximately     fourteen feet wide and four hundred forty-seven              feet long

connecting the rear of the Faddis property to South Old Middletown Road. The 1991

Faddis Deed does not contain the recital referenced above from the 1952 Faddis Deed.

       On May 7, 2012, Faddis recorded an instrument intended as a deed of correction

(the "2012 Faddis Corrective Deed") which specifically added the right of ingress and

egress recital appearing in the 1952 Faddis Deed to the conveyance described in the

1991 Faddis Deed. P/D-5; CT-1, Stipulation of Facts,      ,r   16-18. This private lane is

known locally as "Copes Lane" and has been referenced                by this name since

approximately March 25, 1913, when Herman Cope and Edith W. Cope acquired title

to a forty acre parcel from Abraham Brighton. The private lane predates the Brighton

to Cope conveyance and is referenced in every deed in the chain-of-title dating back to

1851. (03/25/15 N.T., p. 19). The present title holders to the parcel known as Copes

Lane are the unknown heirs and/or administrators of the Estate of Isaac J. Booth,

Deceased, or the unknown heirs and/or administrators of the Estate of Wilhemina




                                           8
Smedley, Deceased, or the unknown heirs and/or administrators of the Estate of James

Day, Deceased. CT-1, Stipulation of Facts,~~ 15, 16 and 17.

       Since approximately December 4, 1956, the water line providing public water

service to the home occupied by Faddis has been located under Copes Lane connecting

the main public water line located under South Old Middletown Road to the Faddis

home. CT-1, Stipulation of Facts,~ 32. There is no express easement for water utilities

servicing the Faddis property in any recorded deed in the Copes Lane chain-of-title.

There is an AQUA Pennsylvania, Inc., plan of September 27, 2011, which identifies the

water main and the lateral water line locations servicing the Faddis property. P/D-12.

      The 1964 Angstadt Deed contains the following language which appears in

several preceding deeds of conveyance in the chain-of-title for the Angstadt property:

" ... Together with the right and use of the lane leading from Old Middletown Road

(formerly Edgmont Great Road) to Herman Cope's property so far as the right, title and

use of the same remains in the grantors". CT-1, Stipulation of Facts,   ,r 4.   The 1987

Gaertner Deed is silent with respect to a right granted to Gaertner to use Copes Lane.

CT-1, Stipulation of Facts~ 8.

      The 1989 McLaughlin Deed is silent with respect to a right granted to Defendants

McLaughlin to use Copes Lane. CT-1, Stipulation of Facts ,I 12. Throughout the time

Angstadt, Gaertner and McLaughlin have been neighbors they have each engaged in

maintenance activity servicing Copes Lane.     These activities include grass cutting,

                                          9
 clearing brush, removing tree and shrub limbs, and each autumn, removing fallen

 leaves.   (03/25/15 N.T., pp. 6, 37, 72).        In 1989, when McLaughlin purchased the

 McLaughlin property, a fence surrounding the rear yard encroached significantly into

 Copes Lane. (03/25/15 N.T., p.61); CT-1, Stipulation of Pact     ,r 36.   By the conclusion

 of 1995, McLaughlin replaced the dilapidated post and rail fence surrounding the rear

yard with a similar post and rail fence. (03/25/15 N.T., p. 71).           In the process of

replacing the fence, McLaughlin learned for the first time the rear yard fence

encroached on Copes Lane. Nevertheless, McLaughlin authorized the fence contractor

to position the new post and rail fence where the dilapidated and encroaching fence had

stood. (03/26/15 N.T., pp. 61 & 71).

       By the conclusion of 1994, Faddis installed a four foot high post and rail fence

along the rear and each side property line of the Faddis property. (N.T. 3/25/15, p. 53).

This fence is erected perpendicular to and completely across Copes Lane ending at a

point abutting the corner fence post on the McLaughlin fence.          There was no gate

installed in the fence where the fence crosses and blocks access to and from the Faddis

property and Copes Lane. P-19. This fence erected by Faddis was installed pursuant

to a building permit issued by Middletown Township, Delaware County, on June 1,

1994. DF-35.

      In January 2012, Gaertner filed an application for a zoning permit with

Middletown Township, Delaware County and a public hearing was convened by the

                                             10
Township Zoning Hearing Board to consider the Gaertner's           zonmg application.

Apparently the zoning relief requested by Gaertner included relief from the rear yard

setback requirements under the Township Zoning Code. (03/26/15 N.T., p.12). During

the zoning hearing, there was evidence presented and public discussion regarding the

rights and responsibilities of various named property owners, including Faddis, to the

potential use and enjoyment of Copes Lane. Id. Mr. and Mrs. Faddis were present

during the Gaertner's zoning hearing. (N.T. 3/26/15, p. 28). During the months

following the zoning hearing, Faddis installed a gate in the post and rail fence across

Copes Lane, and began regular use of Copes Lane for ingress and egress to their

dwelling and South Old Middletown Road. (03/25/15 N.T., pp. 54, 61-64, 73), P-13,

P-14, P-15 and P-18.

      In May 2012, Faddis recorded the 2012 Faddis Corrective Deed.             CT-1,

Stipulation of Facts ,, 16-18.     In May and June 2012, Mrs. Faddis operated a

motorcycle along Copes Lane from the rear yard of the Faddis property to South Old

Middletown Road and returned from the public road to her dwelling by way of Copes

Lane. (03/25/15 N.T., pp. 61-62); P-14 andP-18. Shortly thereafter, Angstadt, Gaertner

and McLaughlin filed the underlying civil action.


ADVERSE POSSESSION

      Angstadt, Gaertner and McLaughlin each claim title to the parcel known as Copes

Lane, a private road located in Middletown Township, Delaware County, Pennsylvania
                                         11
by virtue of their adverse possession of the parcel. Adverse possession of land is an

extraordinary legal doctrine which, when found, conveys a party ownership in real

property titled to another by operation of law, rather than by grant of a deed. For this

reason, a decision based upon this extraordinary remedy must be supported by clear

and convincing evidence. Recreation Land Corporation, et al. v. Hartzfeld, 947 A.2d

771, 774 (Pa. Super. 2008).      The burden of proof in this civil action was      upon

Angstadt, Gaertner and McLaughlin to prove by clear and convincing evidence they

each held "... actual, continuous, exclusive, visible, notorious, distinct and hostile

possession of the land for twenty-one years", Id. Angstadt, Gaertner and McLaughlin

were required to prove each of these elements of adverse possession exist to confer

title by adverse possession.   Recreation Land Corporation, supra, citing Flanne1y v,

Stump, 786 A.2d 255, 258 (Pa. Super. 2001). Angstadt, Gaertner and McLaughlin

were charged with proving that they, each as an adverse possessor of the parcel known

as Copes Lane, must intend to hold the parcel of land for themselves as demonstrated

by their acts. See, Fred E. Young, Inc. v. Brush Mountain Ass'n., 697 A.2d 984, 990

(Pa. Super. 1997).

     Angstadt failed to prove by clear and convincing evidence actual, continuous,

exclusive, visible, notorious, distinct and hostile possession over any portion of Copes

Lane. Rather, the 1964 Angstadt Deed includes the grant of an express easement to




                                         12
 Angstadt for ingress and egress along Copes Lane. Therefore, Angstadts' possession

 of Copes Lane is permissive.

      Since Gaertner        admitted    at the January    2012 Middletown            Township     Zoning

Hearing      no ownership     of any portion      of Copes Lane, Gaertner             cannot prove the

elements of adverse possession            through sufficient   evidence.     Gaertner also failed to

establish exclusive possession         of any portion of Copes Lane.

      Finally, McLaughlin       was successful in proving adverse possession              of the specific

area of Copes        Lane    inside     the rear yard    fence      on the McLaughlin           property.

McLaughlin       since 1989 held the portion of Copes Lane inside a fence line exclusively

for themselves     and believed that land to be their property.         In 1995, during the process

of replacing that fence, McLaughlin           learned they did not hold title to the Copes Lane

portion of their rear yard, but nevertheless,          they directed the contractor         to place the

new fence in the same location as the original fence. This conduct demonstrates                      their

contention    that they have exercised        actual, continuous,     exclusive,     visible, notorious,

distinct and hostile possession        of that portion of Copes Lane for twenty-one years. See

Recreation Land Corp. at 774-775.

EASEMENT         BY PRESCRIPTION

     Faddis proved the water line utility easement by prescription                 along the length and

width of Copes Lane as identified on plans and detailed drawings maintained                     by Aqua

Pennsylvania,     Inc.   A prescriptive     easement    is created by (1) adverse, (2) open, (3)


                                                  13
 notorious, (4) continuous and unintenupted use for a period of twenty-one (21) years.

 Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987); see also McNaughton Props.,

LP v. Barr, 981 A.2d 222, 225 n. 2 (Pa. Super. 2009). Moreover, the party asserting

the easement must demonstrate "clear and positive" proof. Walley, 520 A.2d at 889;

see also Pittsburgh & Lake Erie R.R. Co. v. Township of Stowe, 374 Pa. 54, 96 A.2d

892, 894 (1953) ("[A prescriptive easement] will be upheld only if there is clear and

positive proof of its existence].]"), The landowner has the burden of proving consent,

but only after the alleged easement holder proves the use was adverse, open, notorious,

and continuous for 21 uninterrupted years. Walley, 520 A.2d at 889; Vill. of Four

Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa. Super.

2014), reargument denied Dec. 29, 2014.

     Faddis, through clear and concise evidence proved the actual, continuous,

exclusive, visible, notorious, distinct and hostile possession of that portion of Copes

Lane where the water line is located since 1954, being a period in excess of twenty-

one years.



ABANDONMENT OF EASEMENT

     Angstadt, Gaertner and McLaughlin each claim Faddis abandoned the easement

of ingress and egress along Copes Lane to and from South Old Middletown Road.

Under Pennsylvania law, abandonment of an easement is proven through conduct of

                                         14
    the holder of the easement which manifests intent on the part of the easement holder

    to relinquish permanently his right to use of the easement across the adjoining or

    servient parcel of land. Sabados v. Kiraly, 393 A.2d 486, 487-88 (Pa. Super. 1978)

    citing Hatcher v. Chesner, 221 A.2d 305 (Pa. 1966).               Pennsylvania courts have

    explained that an easement may not be considered abandoned unless there is a showing

    of an intent to abandon, coupled with either (1) adverse possession by the owner of the

    servient tenement; or (2) affirmative acts by the owner of the easement that renders the

use of the easement impossible; or (3) obstruction of the easement by the owner of the

easement that is inconsistent with its further enjoyment. Ruffalo v. Walters, 348 A.2d

740, 741 (Pa. 1975); Forest Glen Condo. Ass'n v. Forest Green Common Ltd. P'ship,

900 A.2d 859, 864 (Pa. Super. 2006). Angstadt, Gaertner and McLaughlin must prove

this abandonment by clear and convincing evidence.2

         This Court found that Angstadt, Gaertner and McLaughlin proved through clear

and convincing evidence that Faddis erected a post and rail fence surrounding the rear

yard of the Faddis property and across their point of access to Copes Lane in 1994.



2
  Faddis contends that a period of twenty one years is required to establish abandonment. However,
once there is a showing of an intent to abandon, an easement may be considered abandoned if any
of the following are established by clear and convincing evidence: (1) adverse possession by the
owner of the servient tenement; or (2) affirmative acts by the owner of the easement that renders
the use of the easement impossible; or (3) obstruction of the easement by the owner of the easement
that is inconsistent with its further enjoyment. See Piper v. Mowris, 351 A.2d 635, 640 (Pa. 1976);
Ruffalo v. Walters, 465 Pa. 236, 238-39, 348 A.2d 740, 741 (1975); Forest Glen Condo. Ass'n v.
Forest Green Common Ltd. P1ship, 900 A.2d 859, 864 (Pa. Super. 2006). This Court found that
conditions (2) and (3) were present negating any claim of continued abandonment for a period of
twenty one years.
                                                15
  The Faddis's post and rail fence did not include a gate at their point of access to Copes

  Lane, and Copes Lane became over-grown at the point of access to the Faddis property.

 The construction of this fence rendered the use of the easement impossible and was

 inconsistent with its further enjoyment. The record clearly indicates that this fence and

 overgrowth limited ingress and egress to Copes Lane from the Faddis property. It was

 only following the Gaertner zoning hearing in January 2012 that Faddis prepared and

 filed the 2012 Faddis Corrective Deed, cleared over-growth using a chemical agent,

 installed a gate in their fence at the access point to Copes Lane, and began pedestrian

 and motor vehicle use of Copes Lane to access the public roadway.

       Based on the foregoing, on the claims of adverse possession this Court found in

favor of all named defendants and against Angstadt and Gaertner. However, on

McLaughlin's claim for adverse possession of that specified portion of the parcel known

as Copes Lane located inside the fence erected in the rear yard of the McLaughlin

property and encroaching on Copes Lane since at least 1989, the Trial Court found in

favor of McLaughlin confirming the title by adverse possession and against each of the

named defendants.

      On the claim of Angstadt, Gaertner and McLaughlin against Faddis and based upon

the asserted right to a prescriptive easement along Copes Lane for the placement

underground, maintenance, repair and replacement of a lateral water line servicing the

Faddis property by connecting to the main public water service line located in and along

                                           16
South Old Middletown Road, Middletown Township, Delaware County, Pennsylvania,

this Court found in favor of Faddis confirming the prescriptive easement for a public

water line and against Angstadt, Gaertner and McLaughlin and each of the remaining

defendants, Unknown Heirs and/or Administrators of the Estate of Isaac J. Booth,

Unknown Heirs and/or Administrators            of the Estate of Wilhelmina Smedley, and

Unknown Heirs and/or Administrators of the Estate of James Day.

       On the claim of Angstadt, Gaertner and McLaughlin against Faddis that Faddis

abandoned any express easement granted by the 1952 Faddis Deed,                 the 1991 Faddis

Deed and/or the 2012 Faddis Corrective Deed, and/or any other form of easement Faddis

claims provide a right of ingress and egress along Copes Lane, this Court found in favor

Angstadt, Gaertner and McLaughlin and the remaining defendants Unknown Heirs and/or

Administrators of the Estate of Isaac J. Booth, Unknown Heirs and/or Administrators of

the Estate of Wilhelmina Smedley, and Unknown Heirs and/or Administrators of the

Estate of James Day and against Faddis.3




3
  This Court having decided each of the claims, defenses and new matter preserved for Decision,
the temporary injunction entered on July 2, 2012 was extinguished and dissolved and Count II -
Injunction of the Complaint was dismissed as moot.
                                              17
     For the aforementioned reasons, the Trial Court respectfully requests that its

decision be AFFIRMED.




                                              · G. MICHAEL G                    J.



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