J-S45038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA J. SAVASTA, AN ADULT                     IN THE SUPERIOR COURT OF
INDIVIDUAL                                             PENNSYLVANIA

                            Appellee

                       v.

ZANE R. PROCTOR,

                            Appellant                No. 1978 WDA 2015


                    Appeal from the Order November 16, 2015
             in the Court of Common Pleas of Westmoreland County
                       Civil Division at No.: 5516 of 2014


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 17, 2016

        Appellant, Zane R. Proctor, appeals from the trial court’s November

16, 2015 order issuing a permanent injunction in favor of Appellee, Barbara

J. Savasta.1 Specifically, he contends that the trial court erred in concluding



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  This is an interlocutory appeal pursuant to Pennsylvania Rule of Appellate
Procedure 311(a)(4) which permits immediate appeal for “[a]n order that
grants or denies, modifies or refuses to modify, continues or refuses to
continue, or dissolves or refuses to dissolve an injunction[.]” Pa.R.A.P.
311(a)(4); see Pennsylvania Orthopaedic Soc. v. Indep. Blue Cross,
885 A.2d 542, 547 (Pa. Super. 2005), appeal denied, 895 A.2d 1262 (Pa.
2006) (“An order which grants a request to enjoin certain conduct, . . . is an
interlocutory matter specifically authorized for appeal as of right by Rule
311(a)(4).”).
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that an implied easement exists, permitting Appellee to use a gravel drive to

access her property. We affirm.

      We take the factual and procedural history in this matter from the trial

court’s order and opinion of November 16, 2015 and our independent review

of the certified record.

             The parties to this case, in addition to being neighbors, are
      brother and sister. [Appellee] currently resides at 108 Yuma
      Lane, New Stanton, Pennsylvania, and has lived at said address
      since she acquired ownership of the property from her parents,
      Mr. and Mrs. Eugene Proctor, on October 17, 2006.              Said
      property consists of Parcel B and Parcel E in the Proctor-Lazer
      Sub-division Plan.      Eight years later, [Appellant] similarly
      acquired land, consisting of Parcel A in the same Sub-division
      Plan from his father, Eugene Proctor, on August 8, 2014. The
      Proctor-Lazar Sub-division Plan ([]Sub-division Plan[]) was
      approved and recorded in the Office of the Recorder of Deeds in
      Westmoreland County on July 12, 2006. At issue in this case is
      the use of a right-of-way utilized by [Appellee] to access her
      9.93-acre lot, identified as Parcel E in the [Sub-division Plan] in
      Hempfield Township, which contains her residence. [Appellee]
      identified said right-of-way on the recorded Sub-division Plan as
      a gravel driveway that extends from Hautintaught Road, through
      [Appellant’s] Parcel A, and eventually leads to her property on
      Parcel E. [Appellee] constructed a home on Parcel E in 2006,
      where she currently resides with her father and son. She
      testified that since 2007, she has continuously used the existing
      gravel right-of-way, which is identified on the existing Sub-
      division Plan as “Exist. Gravel Drive,” as her sole means to
      access her property from Hautintaught Road.

            [Appellee] testified that since her brother, [Appellant],
      acquired ownership of Parcel A, he has obstructed her use of the
      right-of-way by placing barriers on said right-of-way and putting
      in “speed bumps.” Additionally, [Appellee] testified that she had
      blacktop placed on her driveway and a portion of the right-of-
      way, which portion [Appellant] allegedly damaged with his skid
      loader. [Appellee] testified that when she acquired Parcel E,
      upon which her residence is located, she also acquired Parcel B
      in order to have frontage on Browntown Road so that her

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      property could never be considered landlocked, and so that she
      had the option to construct a driveway in case she needed to at
      some point.      She further testified that she has not yet
      constructed a driveway on Parcel B because she began
      construction[,] but could not afford to complete it.

            [Appellant] testified that the right-of-way which [Appellee]
      described, and which is present on the Sub-division [P]lan, is a
      gas well right-of-way only. [Appellant] indicated that the reason
      he put “speed bumps,” by constructing “dips,” on the right-of-
      way was in order to make [Appellee’s] son slow down when he
      was driving along the right-of-way. He further acknowledged
      that when he acquired ownership to his property he knew of the
      existence of the plan and that parcels C, E and F were
      encumbered by the right-of-way.

            Witness for [Appellant], Michael Follandor, President of Ark
      Resources, LP, testified that in 2002 he signed an oil and gas
      lease with Eugene Proctor, father to the parties to this action, in
      order to acquire the mineral rights to his land. In order to get to
      the well sites, Mr. Follandor testified that he had an agreement
      that his company would use the existing driveway past Eugene
      Proctor’s house, which turned into the gravel road, and followed
      said road to the first well they drilled. He further testified that
      when [Appellee] constructed her residence, she built an
      extension off of the existing gravel road in order to reach her
      dwelling.

             Witness for [Appellant], Leonard Dellera, Chief of Planning
      and Zoning for Hempfield Township, also testified at the
      Evidentiary Hearing. Prior to his current position, Mr. Dellera
      was the Zoning Officer and Building Inspector in Hempfield
      Township, and he held said position when the Sub-division Plan
      at issue was approved in 2006. He testified that it is a zoning
      requirement that each lot have access to a public roadway, and,
      as Browntown Road is a public roadway, and Hautintaught Road
      is not, [Appellee] was required to purchase Lot B in order to own
      Lot E, so that she would have frontage on a public road.

(Trial Court Opinion, 11/16/15, at 2-4) (record citations omitted).

      On November 5, 2014, Appellee filed a complaint and request for a

preliminary and permanent injunction. On that same day, the court issued a



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preliminary injunction ordering Appellant to cease blocking Appellant’s

access to her home via the existing right-of-way. On November 10, 2014,

the court conducted an evidentiary hearing on Appellee’s request for a

permanent injunction. After the hearing, the court issued an order providing

that the preliminary injunction remain in effect and directing, among other

things, Appellant to remove blocks and fill in dips from the right-of-way and

cease obstructing Appellee’s access.           (See Order, 11/13/14, at 1-2).   The

court scheduled another evidentiary hearing for February 26, 2015.

       After a continuation of the February 26, 2015 hearing, because of

settlement discussions between the parties, the court conducted a second

evidentiary hearing on July 29, 2015, during which Appellant and Appellee

testified, as well as Appellant’s witnesses, Mr. Fallador and Mr. Dellera. The

court issued its order and opinion on November 16, 2015, concluding that an

implied easement existed for Appellee to access her property via the gravel

drive, and granting a permanent injunction in favor of Appellee. This timely

appeal followed.2




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2
  Appellant filed his notice of appeal on December 7, 2015. The trial court
did not order Appellant to file a concise statement of matters complained of
on appeal. It filed an order on December 22, 2015, referring to its order
and opinion entered November 16, 2015 to support its reasons. See
Pa.R.A.P. 1925.



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      Appellant raises one issue on appeal: “Whether the trial court erred in

granting a permanent injunction to Appellee on the basis of an implied

easement?” (Appellant’s Brief, at 4) (most capitalization omitted).

      Our standard of review of a trial court granting a permanent injunction

is well settled.      “[W]hen reviewing the grant or denial of a final or

permanent injunction, an appellate court’s review is limited to determining

whether the trial court committed an error of law.” Buffalo Twp. v. Jones,

813 A.2d 659, 663-64 (Pa. 2002), cert. denied, 540 U.S. 821 (2003)

(footnote omitted).

      Ultimately, the grant or denial of a permanent injunction will
      turn on whether the [trial] court properly found that the party
      seeking the injunction established a clear right to relief as a
      matter of law. This inquiry involves a legal determination by the
      [trial] court. Accordingly, we think it proper that appellate
      review in these cases is whether the lower court committed an
      error of law in granting or denying the permanent injunction.
      Our standard of review for a question of law is de novo. Our
      scope of review is plenary.

Id. at 664 n.4 (citations omitted).

      An easement by implication can be found to exist where the
      intent of the parties is demonstrated by the terms of the grant,
      the property’s surroundings and any other res gestae of the
      transaction.     Two different tests have been utilized in this
      Commonwealth to determine whether an easement has been
      created by implication: the traditional test and the Restatement
      of Property test. The Pennsylvania Supreme Court defined the
      traditional test as follows:

                                  *    *    *

            [W]here an owner of land subjects part of it to an open,
         visible, permanent and continuous servitude or easement
         in favor of another part and then aliens either, the
         purchaser takes subject to the burden or the benefit as the

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        case may be, and this irrespective of whether or not the
        easement constituted a necessary right of way.

     Our Supreme Court further stated:

           Easements by implied reservation . . . are based on the
        theory that continuous use of a permanent right-of-way
        gives rise to the implication that the parties intended that
        such use would continue, notwithstanding the absence of
        necessity for the use.

Phillippi v. Knotter, 748 A.2d 757, 761-62 (Pa. Super. 2000), appeal

denied, 760 A.2d 855 (Pa. 2000) (citations and quotation marks omitted).

In determining whether implied easements exist, our Court has drawn an

inference that, upon severance of possession with a known prior use, the

parties would intend that use to continue. See Bucciarelli v. DeLisa, 691

A.2d 446, 448 (Pa. 1997).

     Each party to a conveyance is bound not merely to what he
     intended, but also to what he might reasonably have foreseen
     the other party to the conveyance expected.       Parties to a
     conveyance may, therefore, be assumed to intend the
     continuance of uses known to them which are in considerable
     degree necessary to the continued usefulness of the land. Also
     they will be assumed to know and to contemplate the
     continuance of reasonably necessary uses which have so altered
     the premises as to make them apparent upon reasonably
     prudent investigation.

Id. (quoting Restatement of Property, § 476).

     Here, after an evidentiary hearing on Appellee’s request for a

permanent injunction, the trial court found:

     [I]t is apparent to this [c]ourt that the original grantors in the
     present matter, Mr. and Mrs. Eugene Proctor, intended for the
     [fifteen]-foot gravel road to be used as an easement for access
     to [Appellee’s] Parcel E, as said road appears on their recorded
     Sub-division [P]lan, and as said grantors, owners of the servient
     property at that time, allowed [Appellee] to use the gravel road

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      to access her land after said land was conveyed to her in 2006.
      Accordingly, [Appellee’s] use of the gravel road has been open,
      visible, permanent, and continuous since she acquired her
      property in 2006. The pictures admitted as exhibits by [the trial
      c]ourt show that there is a clearly defined visible road on
      [Appellant’s] property leading to [Appellee’s] property. The Sub-
      division Plan shows that, at this time, said road is the only way
      to access [Appellee’s] land, and the testimony reflects that
      [Appellee] has been accessing her property regularly by way of
      said easement since her purchase in 2006. Additionally, Leonard
      Dellera, the Chief of Planning and Zoning for Hempfield Township
      at the time the Sub-division Plan was approved, testified that
      even though [Appellee] was required to purchase Parcel B to
      have frontage on Browntown Road, she was not required to put
      a driveway on said Parcel, as it was required for purposes of
      frontage, rather than for access to Parcel E.

(Trial Ct. Op., at 7-8) (record citation omitted).

      Upon review of the certified record, we conclude that Appellee

established a clear right to an implied easement permitting her to continue

using the existing gravel drive to access her property as a matter of law.

See Buffalo Twp., supra at 664 n.4.             Testimony at the permanent

injunction hearing established that, prior to conveying Parcel E to Appellee,

Mr. and Mrs. Proctor owned both Parcel E and Parcel F, and the existing

gravel drive shown on the Sub-division Plan was used to access Parcel E.

(See N.T. Hearing, 11/10/14, at 12, 37; N.T. Hearing, 7/29/15, at 125).

Furthermore, when Appellant purchased Parcel F, he was aware that it was

encumbered by an easement right-of-way, and Appellee continued to use

the existing gravel drive, in an open and visible manner, to access her land.

(See N.T. Hearing, 11/10/14, at 41-43; N.T. Hearing, 7/29/15, at 71-72).

In addition, Appellant conceded that, when he lived with Appellee at her



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home on Parcel E for a couple of weeks prior to purchasing his property, he

himself used the existing gravel drive to access Parcel E. (See N.T. Hearing,

11/10/14, at 42-43, 45).

     Accordingly, we conclude that Appellee has established that, under the

traditional test, an easement by implication existed when Appellant

purchased his property, and that pursuant to the easement she is entitled to

continuance of her reasonably necessary use of the gravel drive to access

Parcel E.   See Bucciarelli, supra at 448; Phillippi, supra at 761-62.

Thus, the court did not err in granting a permanent injunction in Appellee’s

favor on the basis of such implied easement. See Buffalo Twp., supra at

663-64. Appellant’s issue does not merit relief.

     Order affirmed.

     Judge Dubow joins the Memorandum.

     Judge Olson files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2016




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