J-S22038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HAROLD HOCH AND ROBIN HOCH                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENT M. WARTZENLUFT AND                    :
    SHERRY YOH                                 :
                                               :   No. 1857 MDA 2019
                       Appellants              :

              Appeal from the Judgment Entered February 20, 2020
      In the Court of Common Pleas of Berks County Civil Division at No(s):
                                  17-17230


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

JUDGMENT ORDER BY COLINS, J.:                             FILED JUNE 05, 2020

        Appellants, Kent M. Wartzenluft and Sherry Yoh, appeal from the

judgment entered on February 20, 2020, against them and in favor of

Appellees, Harold Hoch and Robin Hoch, perfecting the order dated

October 9, 2019. We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case.         See Trial Court Opinion, dated

October 8, 2019, at 1-3. Therefore, we have no reason to restate them at

length here. For the convenience of the reader, we briefly note that Appellees

claimed that Appellants had no right to use a portion of their property known

as “the Farmer’s Lane,” because Appellants’ predecessor-in-interest had

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22038-20


signed a Termination          Agreement relinquishing any rights in the Farmer’s

Lane.       Appellants countered that they had a prescriptive easement in the

Farmer’s Lane.          During the non-jury trial, Appellant Wartzenluft gave the

following testimony:

        Q     Did [Donald Fish, the previous owner of Appellees’ property]
        ever tell you don’t drive on my property?

        A       No. . . .

        Q     Did Mr. Fish ever give you expressed permission to use that
        driveway?

        A       Yeah.

        Q       He gave you expressed permission to use it?

        THE COURT:           He told you [that] you could use the driveway?

        THE WITNESS:         Yes.

N.T. at 74. On October 8, 2019, the trial court entered an order holding that

Appellants had not established a prescriptive easement across the Farmer’s

Lane. On November 6, 2019, Appellants filed this timely appeal.1

        Appellants now present the following issues for our review:

        1.    Did the [trial c]ourt err as a matter of law and fact in finding
        that the use of the Farmer’s Lane by the Appellants was not
        adverse, open, notorious, continuous and uninterrupted, when the
        credible evidence of record, which includes the testimony of the
        Appellee, established that [Appellants] and their family had used
        the Farmer’s Lane to access their property for farming and had
        used the Farmer’s Lane all year round, both day and night, using

____________________________________________


1 On November 29, 2019, Appellants filed their statement of errors complained
of on appeal. On December 17, 2019, the trial court entered a statement that
its opinion dated October 8, 2019, would serve as its opinion pursuant to
Pa.R.A.P. 1925(a). On February 20, 2020, Appellants filed a praecipe to enter
judgment in order to facilitate and to perfect their appeal.

                                           -2-
J-S22038-20


      large pieces of farming equipment for a period of well over thirty
      (30) years?

      2.    Did the [trial c]ourt err as a matter of law and fact in finding
      that the Termination Agreement extinguished the rights of the
      Appellants when the credible evidence of record established that
      at the time the Agreement executed the Appellees were not even
      aware of the issue with the Farmer’s Lane and it was only
      discovered later during a survey conducted after the Appellees[]
      purchased the property and such the Farmer’s Lane was not
      contemplated as part of the Termination Agreement?

Appellant’s Brief at 4.

      Our standard for reviewing non-jury verdicts is as follows:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are supported
      by competent evidence and whether the trial court committed
      error in any application of the law. The findings of fact of the trial
      judge must be given the same weight and effect on appeal as the
      verdict of a jury. We consider the evidence in a light most
      favorable to the verdict winner. We will reverse the trial court
      only if its findings of fact are not supported by competent evidence
      in the record or if its findings are premised on an error of law.

Ferraro v. Temple University, 185 A.3d 396, 401 (Pa. Super. 2018)

(citation omitted) (some formatting).

      Appellants argue that they sustained their burden of proof with respect

to their claim of a prescriptive easement across the Farmer’s Lane. Appellants’

Brief at 9-16.

      Whether a party has “acquired a prescriptive easement [is] a question

of fact for the trial court sitting as factfinder.” Burkett v. Smyder, 535 A.2d

671, 673 (Pa. Super. 1988). “[O]ne may acquire a prescriptive easement

through someone else’s property by proving (1) adverse, (2) open, (3)

notorious, (4) continuous and uninterrupted use [of the easement] for a period


                                      -3-
J-S22038-20


of 21 years.”     Williams v. Taylor, 188 A.3d 447, 451 (Pa. Super. 2018)

(emphasis added) (citation and internal brackets and quotation marks

omitted).

       Wartzenluft testified that the previous owner of Appellees’ property gave

him and his family permission to drive on the Farmer’s Lane. N.T. at 74. A

prescriptive easement requires adverse use. As Appellants had permission to

use the Farmer’s Lane, id., their use cannot have been adverse for the 21-

year statutory period. Since Appellants’ use was not adverse, the trial court

did not err when it found that they did not have a prescriptive easement. Trial

Court Opinion, dated October 8, 2019, at 5; Williams, 188 A.3d at 451.2

       Judgment affirmed.




____________________________________________


2 Appellants additionally argued that the trial court erred when it “determined
that the Termination Agreement worked to extinguish any prescriptive
easement that the Appellants might have had relative to the Farmer’s Lane[,]”
because neither Appellants nor their family ever changed their use of Farmer’s
Lane following the execution of the Termination Agreement. Appellants’ Brief
at 17. “Appellants contend that regardless of the Termination Agreement their
ongoing open, notorious and adverse use of the Farmer’s Lane which remained
unchanged subsequent to the signing of the Agreement sufficiently establishes
the prescriptive easement.” Id. at 17-18.

However, as we conclude that Appellants failed to satisfy the “adverse use”
element of a prescriptive easement, we need not address any of the remaining
elements of a prescriptive easement, Williams, 188 A.3d at 451, and,
consequently, we need not reach Appellants’ second challenge, as it concerns
whether Appellants’ use of the Farmers’ Lane was continuous and
uninterrupted. See Appellants’ Brief at 17-18.

                                           -4-
J-S22038-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/05/2020




                          -5-
