J-A12019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

S & R COAL COMPANY,                       : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
RAUSCH CREEK LAND, L.P.,                  :
                                          :
                    Appellant             : No. 1589 MDA 2014

                 Appeal from the Order entered August 22, 2014,
                   Court of Common Pleas, Schuylkill County,
                         Civil Division at No. S-559-2012


S & R COAL COMPANY,                       : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellant             :
                                          :
            v.                            :
                                          :
RAUSCH CREEK LAND, L.P.,                  :
                                          :
                    Appellee              : No. 1688 MDA 2014

                 Appeal from the Order entered August 22, 2014,
                   Court of Common Pleas, Schuylkill County,
                         Civil Division at No. S-559-2012

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED MAY 15, 2015

      Rausch Creek Land, L.P. (“RCL”) appeals from the August 22, 2014

order entered by the Schuylkill County Court of Common Pleas (the “trial

court”).   Specifically, RCL appeals the trial court’s determination that the

phone and electrical lines for use by S & R Coal Company (“S & R”) must be

along the newly constructed roadway. S & R cross-appeals from the August
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22, 2014 order based upon the trial court’s denial of its request for costs,

expenses and attorneys’ fees. After careful review, we find no error by the

trial court in requiring the phone and electrical lines to be placed along the

newly constructed roadway, but that it erred by denying S & R’s request for

costs, expenses and attorneys’ fees.1



1
   On December 12, 2014, S & R filed a motion to strike certain documents
included by RCL in its reproduced record filed with this Court on appeal. In
particular, S & R contends it was improper for RCL to include RCL’s motion
for reconsideration, an application for stay of the trial court’s August 22,
2014 order filed before the trial court, the notes of testimony from the
October 30, 2014 proceeding regarding RCL’s motion for stay, the exhibits
entered at the October 30, 2014 proceeding, and an application for relief
related to the stay request before this Court. According to S & R, these
items were not available for the trial court’s consideration prior to its August
22, 2014 decision in the matter and thus not properly considered on appeal.
Rule 2152 of the Pennsylvania Rules of Appellate Procedure, which
addresses the contents of the reproduced record, provides, in relevant part:

            (a) General rule. The reproduced record shall
            contain:
            (1) The relevant docket entries and any relevant
            related matter (see Rule 2153 (docket entries and
            related matter)).
            (2) Any relevant portions of the pleadings, charge or
            findings or (see Rule 2175(b) (order and opinions)
            which provides for a cross reference note only to
            orders and opinions reproduced as part of the brief
            of appellant).
            (3) Any other parts of the record to which the parties
            wish to direct the particular attention of the appellate
            court.

Pa.R.A.P. 2152(a). All of the complained-of filings are included in the
certified record on appeal. Thus, pursuant to the above-quoted rule, we find
no error in RCL’s inclusion of these filings in its reproduced record. We
therefore deny S & R’s motion to strike.



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      The inception of this case dates back to March 15, 2012, at which time

S & R filed a complaint seeking an injunction to prohibit RCL from interfering

with S & R’s use of an easement (a road) over RCL’s property that RCL’s

predecessor in interest had granted to S & R’s predecessor in interest.

Thereafter, RCL filed a competing complaint for an injunction seeking to

terminate S & R’s use of the easement. Following hearings on both matters

before the trial court, the parties entered a stipulation on December 6, 2012,

entitled “Memorandum of Understanding with Regard to Settlement” (the

“Stipulation”), providing for a new easement for S & R’s use across RCL’s

land and for utilities – phone and electrical service – also to be located on

RCL’s land.   The Stipulation set forth various rights and responsibilities of

both parties as it related to the easements and a general description of what

the completed road would look like, but contemplated that the parties would

have a survey performed to determine its precise location. The Stipulation

further anticipated the completion of the bulldozing and excavation of the

road by December 6, 2013.

      On March 6, 2014, RCL filed a document in the trial court entitled,

“Petition for Rule to Show Cause Why an Easement in the Form Attached

Hereto Should Not Be Executed and Recorded as Contemplated Under the

Stipulation Approved and Entered as an Order of Court on December 7,

2012” (“RCL’s Petition”). Therein, RCL indicated that the location of the new

road was decided and agreed to by S & R but that RCL had not met the



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December 6, 2013 deadline for completion of construction, detailing the

efforts it had made leading up to the filing of RCL’s Petition. At the time of

the filing of RCL’s Petition, RCL also had not entered into agreements with

PP&L and Frontier (the electric and telephone companies) regarding the

placement of lines for S & R’s use. RCL requested that the trial court order

S & R to execute the draft easement, attached to RCL’s Petition as Exhibit L

(“draft easement”), “or in such form as the [trial c]ourt determines to be

reasonable according to the circumstances of this case.”         RCL’s Petition,

3/6/14, ¶ 23.

      S & R responded on March 21, 2014, filing an answer to RCL’s Petition

with new matter and counterclaim, requesting that the trial court deny RCL’s

Petition, order RCL to pay S & R’s costs, expenses, and counsel fees

associated with responding to RCL’s Petition (as provided for in the

Stipulation), and require RCL to comply with the Stipulation. Specifically, S

& R identified the following differences between the draft easement and the

Stipulation:

               32. The documents are significantly different with
               respect to the grade of the roadway, in that:
                  a. The Stipulation states “the cartway shall not at
               any point have a grade greater than 10%.”
               [Stipulation] P. 3;
               while
                  b. The easement R.C.L. seeks to impose states “to
               the greatest extent possible, the East/West Access
               Road shall not have grades of greater than ten
               percent (10%) that would make travel by tri-axle
               dump trucks or tractor and single dump trailer-



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          combinations      unreasonably   difficult.”   R.C.L.’s
          Petition, Ex. “L”, P. 4. …

          33. Another component relating to the grade of the
          road is also significantly different between the
          documents in that:
             a. The Stipulation states that “the C to F leg of
          the original Easement shall have no sharp turns and.
          shall not have a grade that is greater than five
          percent (5%) on any portion of the cartway erected
          thereon.” [Stipulation] P. 4;
             b. The easement which R.C.L. seeks to impose
          contains no such equivalent provision, and instead
          states that “to the greatest extent possible” the
          grade will not exceed ten percent. R.C.L.’s Petition,
          Ex. “L”, P.3;

          34. The documents are also significantly different
          with respect to agreed-upon turning radiuses, which
          are critical given the nature of S & R’s business, in
          that:
             a. The Stipulation states that “the width of the
          cartway turns and the easement may exceed thirty
          (30’) feet in width as may be reasonably necessary
          to facilitate adequate turning radius for large trucks
          and heavy equipment. [Stipulation] P. 3;
          while
             b. The easement R.C.L. seeks to impose states
          “the East/West Access Road shall be configured so
          that there are no turns of a radius that would make
          the East/West Access Road impassible by tri-axle
          dump trucks and tractor and single dump trailer
          combinations.” R.C.L.’s Petition, Ex. “L”, P. 3-4.

          35. Another major difference with respect to the
          documents pertains to utilities, and the costs to be
          paid with respect to installation of utility, in that:
             a. The Stipulation not only grants the utility
          easement, but states “all costs associated with this
          Utility Easement and the construction of the phone
          and electric lines shall be borne by R.C.L.”
          [Stipulation] P. 2;
          while



                                  -5-
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             b. The easement R.C.L. seeks to impose does not
          state that R.C.L. will pay for the costs associated
          with the construction of utilities, and further states
          that “S & R and R.C.L. agree that this stipulation and
          order described in the background section of this
          Agreement, above, ... shall be superseded by this
          Agreement...” R.C.L.’s Petition, Ex. “L”, P.11.

          36. The documents are also significantly different
          with respect to requirements of S & R to obtain
          insurance, in that:
              a. The Stipulation contains absolutely no provision
          whatsoever requiring S & R to maintain insurance,
          let alone to name R.C.L. or its affiliates as additional
          insureds. See generally [Stipulation];
          while
              b. The easement R.C.L. seeks to impose extensive
          insurance provisions spanning almost two full pages,
          requiring a multitude of insurance, including workers
          compensation, two million dollars in comprehensive
          general liability, at least one million dollars in
          automobile liability, and which further demands S &
          R to name various R.C.L. entities and affiliates as
          additional    insureds,    place     further  insurance
          requirements on tenants of S & R which use the S &
          R property, and which also impose insurance
          requirements on other persons and entities which
          utilize the East/West access road to get to and from
          the S & R property, and for S & R and such
          persons/entities to provide insurance certifications to
          R.C.L. R.C.L’s Petition, Ex. “L”, P. 8-10.

          37. In addition to the foregoing, yet another
          fundamental difference between the documents
          involves the maintenance obligations as to the
          easement route, in that:
             a. The Stipulation does not impose any ongoing
          maintenance obligations upon S & R, and simply
          requires S & R to provide crushed stone during the
          construction phase of the easement, to be placed
          upon the cartway by S & R to S & R’s satisfaction.
          [Stipulation] P. 3 & 4;
          while



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             b. The proposed easement agreement imposes
          the additional burden upon S & R to maintain the
          easement;
             c. In the easement (Exhibit “L”) R.C.L. seeks to
          impose    an extensive       maintenance     provision,
          requiring S & R to not only maintain the road, but to
          place additional crushed stone for paving, as well as
          perform snow removal, deicing, and all related costs
          and expenses necessary to keep the road in a
          usable-condition, with the only exception being for
          maintenance needed due to the use of parties other
          than S & R. R.C.L’s Petition, Ex. “L”, P. 6. The effect
          of which is to provide R.C.L with a roadway and to
          require that it be maintained without R.C.L. having
          any responsibility to maintain the roadway or to
          correct damage to that roadway which it causes,
          regardless of whether S & R uses or continues to use
          the roadway;
             d. For a matter of clarity, this maintenance
          provision is especially burdensome upon S & R, as it
          would require S & R to not only keep the road
          serviceable from wear and tear from the S & R use,
          but also assume the risk of and abate road damage
          caused by others, including R.C.L.

                               *    *    *
          40. Other major differences between the documents
          at issue involve the requirements of S & R with
          regard to the bonded haul road:
             a. The Stipulation requires that “S & R shall take
          no action to vacate or abandon the existing
          easement across the property of Timber Coal
          Company and commonly referred to by the parties is
          the bonded haul road.” [Stipulation] P.6;
             b. The equivalent provision the proposed
          easement imposes a duty upon S & R as follows: “at
          no time shall the use of the then existing location of
          the bonded haul road be abandoned or terminated
          until work on its succeeding location has been
          completed.” See R.C.L.’s Petition, Ex. “L”, P.7.
             c. The effect of the new and added language in
          the proposed easement is to compel S & R to
          perform construction on an easement in the event



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          the other party using the easement wishes to
          relocate it or cause it damage. This effectively
          requires S & R to police the actions of others with
          regard to the easement, a duty which was not
          imposed by the Stipulation.

          41. The proposed [e]asement [a]greement also
          differs from the Stipulation as follows:
              a. The Stipulation requires that the construction
          and installation of both the electric utility and
          telephone lines be completed before R.C.L. is able to
          remove the existing roadway. [Stipulation] P.5 iii D,
          E;
              b. The proposed easement does not provide for
          the connection of the telephone and electric
          easement prior to the excavation of the haul road.
          R.C.L.’s Petition Ex. “L”, P.10.

          42. Another major difference between these
          documents involves the termination of S & R’s ability
          to use the property:
             a. The Stipulation does not contain any provision
          terminating S & R’s right and, in fact, states that S &
          R shall “at all times” have access both for electric
          and telephone lines, as well as to its property over
          and across R.C.L.’s property. [Stipulation] P.6 iii F;
             b. The proposed easement in paragraphs 7, 15
          and 16 of the proposed easement provide express
          language which results in the termination of S & R’s
          easement. R.C.L.’s Petition, Ex. “L”, P.5, 10, 11.

          43. With respect to the requirement of R.C.L. to
          provide title insurance for the original easement to S
          & R the following provisions are applicable:
             a. The Stipulation provides: “Title to the
          easement shall be good and marketable title, and
          R.C.L. shall provide a title insurance policy insuring
          the same with a value of $500,000.00.” [Stipulation]
          P.3;
             b. There is no comparable provision in the
          proposed [e]asement [a]greement. R.C.L.’s Petition,
          Ex. “L”, P.11.




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          44.    Another     major     difference between    the
          documents at issue involves the use of the proposed
          easement by Russell White:
             a. The Stipulation states the [S & R] shall not
          authorize the use of the easement by Russell White,
          Whitey Wash Enterprises or any of his or its
          employees,      heirs,     successors   or   assigns.”
          [Stipulation] P.6;
             b. The proposed easement expands the
          prohibition to any business in which Russell White or
          Ronald White has an interest and prohibits such
          parties’ presence on the easement;
             c. The proposed easement further provides for the
          forfeiture of S & R’s rights under the easement in the
          event that any person described in the proposed
          easement is found to be present on the easement.
          R.C.L.’s Petition, Ex. “L”, P. 5, 6;
             d. This proposed provision in the easement
          effectively requires S & R to place a guard at the
          entrance of the proposed easement and to perform
          the background check on any and all persons who
          enter the easement area.

          45. Another major difference between these
          documents at issue involves attorneys’ fees for a
          breach of the agreements, in that:
             a. The Stipulation states that “if there is a breach
          of this agreement by any party, the prevailing party
          in any litigation to enforce these provisions, shall be
          entitled to recover all costs, expenses and attorneys’
          fees incurred in such litigation.” [Stipulation] P. 3;
          while
             b. There is no equivalent provision on litigation
          costs in the easement which R.C.L. seeks to impose,
          but that easement does contain a provision
          superseding the terms of the Stipulation which would
          nullify the provision pertaining to attorneys’ fees in
          the event of breach. See generally, [Stipulation] P.
          3.

                               *    *    *




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            49. The Stipulation does not contain any provision
            relating to an indemnification by either party of the
            other party in this proceeding. However, Exhibit “L”
            to [RCL’s] Petition contains[,] at paragraph 13[,] a
            completely    new     provision   with   respect   to
            indemnification of R.C.L. by S & R.

Counterclaim, 3/21/14, ¶¶ 32-49 (emphasis in the original).

      The trial court held hearings on April 30, May 28 and June 11, 2014.

Both parties presented testimony and evidence in support of their respective

positions. Following its receipt and review of proposed findings of fact and

conclusions of law and memoranda filed by both sides, the trial court issued

an opinion and order on August 22, 2014. The trial court ordered RCL to

grant PP&L and Frontier Communication an easement for the placement of

utility lines along the newly constructed roadway and to pay for the cost of

the electric and telephone lines; denied S & R’s request for counsel fees; and

approved the easement agreement drafted by S & R and submitted with its

proposed order of court. The easement agreement provides as follows:

               1. [RCL] does hereby grant and convey unto the
            [S & R], its successors and assigns, an easement
            over and across the property of the [RCL] for
            purposes of ingress, egress and regress access, and
            the placement of utilities, which easement shall be
            generally thirty (30) feet in width and shall be
            located as more specifically shown in red on the
            attached exhibit.

               2. [S & R] accepts the general path of this
            easement as set forth on Exhibit “B” and agrees that
            the grade of the constructed roadway is acceptable.




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                  3. The [e]asement may be expanded to greater
               than 30 feet wide as required by Paragraph I (D) of
               the [Stipulation] to accommodate large trucks and
               heavy equipment.

                  4. All other duties, obligations, requirements of
               the parties as set forth in the [Stipulation] are
               hereby affirmed, acknowledged, and incorporated
               herein by reference.

Easement Agreement.

        On September 10, 2014, RCL filed a motion for clarification or

reconsideration, requesting “an order confirming that relocating electric and

phone utilities” to a location other than adjacent to the newly constructed

road “would be consistent with the [trial court’s] August 22, 2014 [o]rder,”

or for the trial court reconsider its prior decision and to enter an order

permitting the same. Motion for Clarification or Reconsideration, 9/10/14, at

4. S & R filed an answer on September 16, 2014 opposing RCL’s request.

Also on September 16, 2014, RCL filed its own motion for reconsideration of

the trial court’s denial of its request for counsel fees.        On September 17,

2014,    the    trial   court   entered   an   order   denying   RCL’s   motion   for

reconsideration.        There is no order in the record indicating that the trial

court ruled upon S & R’s motion for reconsideration.

        RCL filed a timely notice of appeal on September 19, 2014, and

thereafter, S & R filed a timely notice of cross-appeal. Both parties complied

with the trial court’s orders requiring the filing of concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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      On September 22, 2014, RCL filed an application for stay pending the

disposition of its appeal. S & R filed an answer and new matter, requesting

that the trial court dismiss RCL’s application for stay, or, in the alternative, if

the trial court was to grant the request for stay, that the trial court require

RCL to post security in the amount of $1,000,000 with the prothonotary of

the trial court. The trial court held a hearing on October 14, 2014, and on

October 30, 2014, the trial court entered an order staying the August 22,

2014 order pending disposition of the instant appeal, and requiring RCL to

deposit with the trial court prothonotary security in the amount of $510,000

as a condition of the stay. On December 1, 2014, RCL filed a request for

relief from the requirement that it post security as a condition of the stay,

which this Court denied on December 12, 2014.

      We begin by addressing RCL’s appeal, wherein RCL presents the

following issues for our review:

         A. Whether the trial court committed an error of law
            and abused its discretion in ordering RCL to execute
            and record an easement that located electric and
            phone utility lines along the newly constructed
            roadway and further directing RCL to grant PP&L and
            Frontier Communications an easement along said
            newly constructed roadway for electric and phone
            lines[?]

         B. Whether the trial court committed an error of law
            and abused its discretion in ignoring the provisions of
            the [S]tipulation and order that allow RCL to relocate
            electric and phone lines that service the S & R
            property to a location or locations other than
            adjacent to the newly constructed roadway[?]



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RCL’s Brief at 6.

      We review a trial court’s decision following a bench trial according to

the following standard:

            Our review in a non-jury case is limited to whether
            the findings of the trial court are supported by
            competent evidence and whether the trial court
            committed error in the application of law. We must
            grant the court’s findings of fact the same weight
            and effect as the verdict of a jury and, accordingly,
            may disturb the non-jury verdict only if the court’s
            findings are unsupported by competent evidence or
            the court committed legal error that affected the
            outcome of the trial. It is not the role of an appellate
            court to pass on the credibility of witnesses; hence
            we will not substitute our judgment for that of the
            factfinder. Thus, the test we apply is not whether we
            would have reached the same result on the evidence
            presented, but rather, after due consideration of the
            evidence which the trial court found credible,
            whether the trial court could have reasonably
            reached its conclusion.

Agostinelli v. Edwards, 98 A.3d 695, 704 (Pa. Super. 2014) (citation

omitted).

      The interrelated questions raised on appeal question the trial court’s

interpretation of the parties’ agreement. “Since contract interpretation is a

question of law, our review of the trial court’s decision is de novo and our

scope is plenary.”   Bair v. Manor Care of Elizabethtown, PA, LLC, 108

A.3d 94, 96 (Pa. Super. 2015) (citation and quotation marks omitted). The

goal of contract interpretation is to “ascertain the intent of the parties.”

Lenau v. Co-eXprise, Inc., 102 A.3d 423, 429 (Pa. Super. 2014)



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            In the cases of a written contract, the intent of the
            parties is the writing itself. If left undefined, the
            words of a contract are to be given their ordinary
            meaning. When the terms of a contract are clear and
            unambiguous, the intent of the parties is to be
            ascertained from the document itself. When,
            however, an ambiguity exists, parol evidence is
            admissible to explain or clarify or resolve the
            ambiguity, irrespective of whether the ambiguity is
            patent, created by the language of the instrument,
            or latent, created by extrinsic or collateral
            circumstances.

Id. at 429-30 (internal citations omitted).       Language in a contract is

“ambiguous” “if it is reasonably susceptible of different constructions and

capable of being understood in more than one sense.” Id. at 430. (citation

omitted). Furthermore, “contractual clauses must be construed, whenever

possible, in a manner that effectuates all of the clauses being considered. It

is fundamental that one part of a contract cannot be so interpreted as to

annul another part and that writings which comprise an agreement must be

interpreted as a whole.”      Id. (internal citations and quotation marks

omitted).

      With this legal predicate in mind, we address RCL’s first issue raised on

appeal. RCL contends that the trial court erred by requiring RCL to locate

the utility lines for S & R’s phone and electric service along the newly

constructed roadway. RCL’s Brief at 15. RCL asserts that this requirement

is at odds with the language contained in the Stipulation, which permitted

RCL to negotiate the location of the utility lines with the electric and phone




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companies – PP&L and Frontier – without limitation. Id. at 15-16. RCL also

points to a statement made by its counsel at the December 6, 2012

proceeding, whereby RCL’s counsel indicated that it was the parties’

intention that placement of the utility lines along the newly constructed road

would only occur if RCL was unable to work out arrangements with PP&L and

Frontier for the placement of the lines elsewhere on RCL’s property. Id. at

17-18, 23-26. RCL further cites to testimony provided at the hearings on

RCL’s Petition in support of this position. See id. at 19-22.

      The relevant language of the Stipulation states the following:

         I. General Requirements.

            A. RCL shall grant an easement to [S7R] over and
            across the portions of land owned by [RCL]. This
            easement will be for ingress, egress and regress
            access, and phone and electrical utilities, which
            easement shall be 30 feet in width and shall
            generally follow and be part of the easement
            described in Paragraph III(C) and I(D) hereof.

            B. RCL shall grant PP&L and any phone company
            providing service to S & R and easement on the
            property of RCL, which easement shall be for the
            placement of power lines to be constructed by PP&L,
            and phone lines to be installed by the phone
            company, and RCL will cooperate and assist in
            obtaining approval from PP&L to place the power
            lines and phone lines. The easement shall be in a
            form as required by PP&L and the phone
            company, and as is acceptable to RCL, PP&L,
            and the phone company. …

                                  *     *      *




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            D. RCL shall grant an easement for ingress,
            egress and regress, as well as location of
            electric and phone utilities for business
            purposes thirty (30) feet in width connecting
            the lands of S & R to Main Street (Route 4011)
            generally through points A to B, B to C, and C to
            F[.] …

                                  *     *      *

         III. Phase II

            C. The easement leg from Point A to Point B, Point B
            to Point C, and Point C to Point F is intended to be a
            permanent easement by the parties and to be a
            permanent source of access for S & R, provided that
            if RCL wishes to relocate the easement and the
            roadway located thereon, RCL shall relocate the
            roadway and easement and phone and
            electrical utilities, and shall bear all costs
            associated with the relocation of such easement and
            phone and electrical utilities[.]

                                  *     *      *

            F. It is the intention of the parties that S & R shall at
            all times have electrical and phone utility services to
            its property, and access over and across the property
            of RCL, which access, electrical and phone utility
            service shall be uninterrupted and generally
            consistent with the quality of the access and utility
            services existing at the time of this agreement.

Stipulation, 12/7/12, ¶¶ I(A), (B), (D), III(C), (F) (emphasis added).

      The above-quoted language is clear and unambiguous.               All of the

provisions concerning the location of the utility lines state that they will be




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located along the newly constructed road.2 The language of paragraph I(B)

concerning the grant of a separate easement to PP&L and Frontier for the

placement of utility lines on RCL’s property addresses only the form, not the

location, of the easement. See id., ¶ I(B). It does not itself permit RCL to

place the utility lines at any location on its property agreed to by PP&L and

Frontier, as RCL suggests.    Rather, reading the relevant language of the

Stipulation together, as we are required to do, the Stipulation provides for

the placement of utility lines for S & R along the thirty-foot stretch of road

that RCL constructed for S & R’s use.

      Because the language of the Stipulation is clear and unambiguous, it is

improper for the trial court or this Court to look to testimony provided at any

of the proceedings to determine the intention of the parties with respect to

the intended location of the utility lines. See Lenau, 102 A.3d at 429-30.

As the trial court committed no error in its application of the law, this issue

does not afford RCL relief. See Agostinelli, 98 A.3d at 704.

      RCL further claims error in that the trial court’s order prohibits RCL

from relocating the utility lines that service S & R to locations other than

along the newly constructed road, as the Stipulation expressly permits RCL

to do so.   Our review of the trial court’s order, however, reveals no such


2
   RCL does not contest the trial court’s decision to enforce the terms of the
stipulation as opposed to its draft easement. It is nonetheless worth noting
that in its draft easement, RCL included a provision that required the
location of the utility lines to be “along the edge of the [newly constructed
road.]” RCL’s Petition, 3/6/14, at Exhibit L, ¶ 3.


                                    - 17 -
J-A12019-15


prohibition.    To the contrary, the trial court’s order requires RCL to grant

PP&L and Frontier an easement for the placement of utility lines along the

newly constructed road and pay for the cost of construction related thereto,

and further states that terms of the Stipulation remain in effect. See Trial

Court Order, 8/22/14; Easement Agreement.             The Stipulation expressly

provides for the relocation of the utilities if necessary:

               The easement leg from Point A to Point B, Point B to
               Point C, and Point C to Point F is intended to be a
               permanent easement by the parties and to be a
               permanent source of access for S & R, provided that
               if RCL wishes to relocate the easement and the
               roadway located thereon, RCL shall relocate the
               roadway and easement and phone and electrical
               utilities, and shall bear all costs associated with the
               relocation of such easement and phone and electrical
               utilities, including the excavation and construction of
               the roadway and the stone necessary for its
               construction shall be paid solely by RCL, and the
               relocation of such easement and roadway and phone
               and electric utilities shall be performed and
               completed prior to the removal of the roadway as
               currently provided for herein. It is not intended at
               this time that RCL will require the relocation of the
               roadway and the easement at any time in the
               reasonably foreseeable future (10-20 years);
               however, RCL may, because of its mining plans or
               other development plans for its lands, relocate the
               easement for the roadway providing access to Route
               4011 for S & R and phone and electric utilities,
               provided the new easement has good and
               marketable title and the construction of the roadway
               and electric and phone utilities is substantially in
               conformity with the elevations, grades and widths
               and condition of the roadway and electric and phone
               utility service as existed at the time of the requested
               relocation. The parties agree at the time of any
               relocation to execute and record all commercially



                                       - 18 -
J-A12019-15


            reasonable documents necessary to relocate the
            easement phone and electric utilities and terminate
            the rights as to their prior location.

Stipulation, 12/7/12, ¶ III(C).

      The trial court’s order did nothing to alter this provision in the

Stipulation. As such, RCL’s contrary claim is entirely without merit.

      We now turn to S & R’s cross-appeal, wherein S & R raises the

following issues for our review:

         A. Whether the [t]rial [c]ourt committed an error of law
            in failing to find that RCL had breached the
            Stipulation and [o]rder of [c]ourt of December 6,
            2012 by failing to enforce the provisions of that
            document which enable the prevailing party, here S
            & R, to recover all costs, expenses and attorneys[’]
            fees incurred in litigating matters pursuant to that
            Stipulation and [o]rder which the [t]rial [c]ourt
            found to be a contract between the parties[?]

         B. Whether the [t]rial [c]ourt committed an abuse of
            discretion when it failed to find that RCL breached
            the Stipulation and [o]rder which constituted a
            contract between the parties and that S & R, as the
            prevailing party in the matter before the [t]rial
            [c]ourt, was entitled to recover its costs, expenses
            and attorneys[’] fees incurred in this litigation from
            RCL[?]

         C. Whether the [t]rial [c]ourt committed an error of law
            in failing to find that RCL’s actions in repudiating the
            Stipulation or [o]rder constituted a breach of the
            Stipulation and [o]rder when that factual conclusion
            is supported by both the record evidence in this
            matter and the factual findings of the [t]rial
            [c]ourt[?]

S & R’s Brief at 4-5 (citations to the reproduced record omitted).




                                     - 19 -
J-A12019-15


        S & R asserts that by filing RCL’s Petition and the draft easement, RCL

committed an anticipatory breach of the Stipulation, as the terms of the

draft   easement    were   vastly   different   and,   in   some   circumstances,

contradictory to the terms of the Stipulation. Id. at 23-26. In its claim for

attorney’s fees, S & R relies upon the final paragraph of the Stipulation,

which states:     “If there is a breach of this agreement by any party, the

prevailing party in any litigation to enforce these provisions[] shall be

entitled to recover all costs, expenses, and attorneys[’] fees incurred in such

litigation.” Stipulation, 12/7/12, ¶ IV.

        The trial court found that the draft easement filed by RCL included

terms not called for in the Stipulation, and that it attempted to make

“significant changes” to the terms of the agreement.         Trial Court Opinion,

8/22/14, at 9.     The trial court stated that the draft easement was RCL’s

attempt to “renegotiat[e]” the Stipulation because “RCL was not satisfied

with the deal it had made,” attempting to “place[] additional requirements

on S & R and fewer obligations on RCL.” Id. at 10. The trial court further

found “that the Stipulation was to be the final settlement agreement and

must be abided by except where the change is by mutual agreement of the

parties under [p]aragraph III G of the Stipulation[3] which allows further



3
  Paragraph III(G) of the Stipulation states: “The parties agree to execute
such further documents and take such further actions as are necessary or
convenient to the implementation of this [Stipulation], and the recording of
the easements described herein.” Stipulation, 12/7/12, ¶ III(G).


                                      - 20 -
J-A12019-15


action to implement the [Stipulation] as opposed to the execution of a new

agreement that has fundamental differences.”           Id. (footnote added).

Nonetheless, the trial court determined that the underlying proceedings were

“not the result of a breach of the Stipulation, but involve[d] a modification of

the original [Stipulation],” and that S & R therefore was not entitled to

counsel fees. Id. at 11.

      “[T]o constitute anticipatory breach under Pennsylvania law there

must be “an absolute and unequivocal refusal to perform or a distinct and

positive statement of an inability to do so.”      2401 Pennsylvania Ave.

Corp. v. Fed'n of Jewish Agencies of Greater Philadelphia, 489 A.2d

733, 736 (Pa. 1985) (quoting McClelland v. New Amsterdam Casualty

Co., 185 A. 198 (Pa. 1936) (Per Curiam)).           Our Supreme Court has

“adamantly [] reinforced the clear predicates of repudiation … reject[ing]

any argument suggesting a dilution of our long recognized standard of an

‘absolute and unequivocal refusal to perform.’”     Harrison v. Cabot Oil &

Gas Corp., 110, A.3d 178, 185 (Pa. 2015) (citing 2401 Pennsylvania Ave.

Corp., 489 A.2d at 737).

      As stated above, the draft easement attached to RCL’s petition

included language and obligations not contemplated or included in the

Stipulation.   The record supports the trial court’s finding that these

differences were significant, placing additional burdens on S & R and

alleviating many of those originally placed upon RCL and bestowing upon



                                     - 21 -
J-A12019-15


RCL additional benefits not originally contemplated or provided for in the

Stipulation. See supra, pp. 4-10. We observe that as of June 11, 2014,

the final day of litigation in this matter, RCL had completed the construction

of the road, at which time the grading and width of the road was in large

part in conformity with the Stipulation. See N.T., 6/11/14, at 44 (S & R’s

corporate representative testifying that, with the exception of “one bad

turn,” he had no complaints about the road).        However, RCL continued to

make demands for the inclusion of terms not called for in the Stipulation,

attempting to alter the terms of the agreement.            Specifically, in the

easement agreement RCL attached to its proposed findings of fact and

conclusions of law, RCL included terms that differed substantially from the

Stipulation, including:

      • Changing in the location of the placement of the utility lines;

      • adding additional prohibitions as to who may use the easement;

      • providing for RCL’s entitlement to costs, expenses and attorneys’
        fees if prohibited persons are found to be using the newly
        constructed road fourteen days after S & R is notified of the
        prohibited persons’ use;

      • imposing additional maintenance requirements for S & R related to
        the newly constructed road;

      • requiring only    RCL’s   prior   written   approval   to   relocate   the
        easement;

      • including extensive indemnity and insurance requirements;

      • prohibiting the use by anyone of the newly constructed road
        without first providing proof of insurance to RCL;



                                    - 22 -
J-A12019-15



      • permitting the recovery of costs, expenses and attorneys’ fees not
        just for breach of the agreement, but in any action to enforce the
        easement agreement; and

      • the easement agreement would supersede the Stipulation.

See Proposed Findings of Fact, Conclusions of Law, and Argument in

Support of the March 6, 2014 Petition of [RCL], 7/17/14, at Exhibit A, ¶¶ 2-

4, 7, 9-11, 13, 18.

      As stated above, the trial court found that the parties intended “that

the Stipulation was to be the final settlement agreement.”          Trial Court

Opinion, 8/22/14, at 10. Through its actions, RCL has demonstrated a clear

and unequivocal refusal to perform pursuant to the final settlement

agreement, and therefore, has anticipatorily breached the Stipulation. See

2401 Pennsylvania Ave Corp., 489 A.2d at 736. We therefore reverse the

trial court’s denial of S & R’s request for costs, expenses and attorneys’ fees

as provided for by the Stipulation.

      In summary, we agree with the trial court’s interpretation of the

Stipulation and find no error in its order requiring placement of the utility

lines along the newly constructed road. We reverse the trial court’s denial of

counsel fees to S & R, as RCL anticipatorily breached the Stipulation and S &

R was the prevailing party in the litigation, entitling S & R to costs, expenses

and attorneys’ fees pursuant to the Stipulation.




                                      - 23 -
J-A12019-15


      Order affirmed in part and reversed in part. Case remanded. Motion

to Strike denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015




                                    - 24 -
