J-S66038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ELMER LEE HILL,                                 IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JAMES D. CLAWSON AND NANCY
    CLAWSON, HIS WIFE,

                             Appellants                 No. 610 WDA 2017


                Appeal from the Judgment Entered April 13, 2017
                 in the Court of Common Pleas of Indiana County
                       Civil Division at No.: 50513 CD 2014


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 12, 2018

        Appellants, James D. and Nancy Clawson, appeal from the April 13, 2017

judgment, following a bench trial, finding against them and in favor of Appellee

Elmer Lee Hill in this action in equity. For the reasons discussed below, we

affirm.

        We take the underlying facts and procedural history from the trial court’s

prior opinions in this matter and our independent review of the certified

record.

               This matter came before the [trial c]ourt at a non-jury trial
        on October 24, 2016. The litigation arose from a dispute between
        owners of adjacent properties where a storm water and sewage
        pipeline serving [Appellee’s] parcel runs though [Appellants’]

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*   Retired Senior Judge assigned to the Superior Court.
J-S66038-17


       parcel. [Appellee] maintains that he has an irrevocable license to
       use the pipeline for drainage while [Appellants] argue that any
       license they provided was strictly to a prior owner and was non-
       transferrable. [Appellee sought] an [o]rder declaring that he
       ha[d] a permanent underground easement over [Appellants’] land
       for the discharge of effluent, storm, and drain water.

             The two parcels involved in this litigation originally were part
       of one larger tract of land owned by [Appellant] James D.
       Clawson’s grandparents, George N. Rose and Alma V. Rose
       (hereinafter “the Roses”).      In 1957, [Appellant] James D.
       Clawson’s parents, James C. Clawson and Janet R. Clawson,
       purchased a tract of land from the Roses and constructed a home.
       This home and tract of land is now owned by [Appellee].[1] In
       1979, [Appellants] also purchased a tract of land from the Roses
       and in 1980, built a home. This property adjoins [Appellee’s]
       property and is where [Appellants] currently reside.

              The pipeline at issue runs from [Appellee’s] home, across
       the rear portion of what is now [Appellants’] property, and
       discharges into a stream. The pipeline was originally constructed
       by [Appellant] James D. Clawson’s father when he built the
       dwelling now owned by [Appellee]. At trial, [Appellant] James D.
       Clawson stated that he previously moved the pipeline when he
       constructed his own home and at that time, it was tied into his
       French drains. Later, after [Appellants] experienced sewage
       backups in their own basement, the pipe was removed from the
       connection into their French drains and the elder Clawson installed
       a pipe running directly from his residence into the creek. That
       pipeline currently extends to the creek today. In the late 1990s,
       [Appellants] constructed a new garage and the pipeline was
       crushed when heavy trucks drove over it in the process. When
       that occurred, [Appellants] repaired the pipeline along with Robert
       Bell (hereinafter “Bell”), a prior owner of what is now [Appellee’s]
       property.

            The specific events leading to this legal action began in
       November 2013, when the pipeline became blocked and
       [Appellee] experienced flooding in the basement of his home. At
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1 At trial, Appellee testified that he purchased the residence as a potential
future home for his elderly father. (See N.T. Trial, 10/24/16, at 8). He stated
that he occasionally rented it out but that it was sitting vacant. (See id.).

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      that time, [Appellee] approached [Appellants] and requested
      access to their property so that the line could be repaired and
      [Appellants] refused. [Appellee’s] home continued to flood due to
      his lack of access to repair the pipeline, and he proceeded to file
      a complaint in equity, seeking a preliminary injunction. In an
      order dated April 2, 2014, [the trial c]ourt granted [Appellee’s]
      preliminary injunction and permitted him access to remove any
      blockage in the pipe and make necessary repairs.

             Following the preliminary injunction, the parties were able
      to temporarily set aside their differences and came to an
      agreement to make the repairs. The parties equally shared the
      costs for materials and labor to install new piping, and once the
      repairs were completed, [Appellee] ceased to have any flooding in
      his basement. Although the repairs to the pipe were made and
      alleviated the flooding, [Appellants] complain that [Appellee]
      failed to fully uphold his end of the bargain. According to
      [Appellants], they agreed to the placement of the new pipe on
      their property providing that [Appellee] would remove a light post
      and fence so that a new lateral for future access could be located
      on [Appellee’s] property. Although [Appellee] did not remove
      these items, [Appellants] claim that they proceeded nevertheless
      with the installation of the new pipe to comply with the [trial
      c]ourt’s Order.

            In May 2014, after the new pipe was installed, [Appellee]
      prepared a settlement agreement whereby [he] would have an
      easement running with the land with respect to the new pipeline
      along with the right of ingress and egress to and from
      [Appellants’] land for purposes of maintenance and repair. Under
      the proposed agreement, any rights of [Appellee] to the existing
      pipe that was no longer connected to the new pipeline would be
      terminated. [Appellants] have refused to sign the settlement
      agreement or any proposed amendments based on their stance
      that [Appellee] is not entitled to this relief.

(Trial Court Opinion, 2/21/17, at 1-3).

      A bench trial took place on October 24, 2016. On February 21, 2017,

the trial court issued an opinion and order in favor of Appellee. The court

found that he was “entitled to an irrevocable license with respect to the


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existing pipeline over [Appellants’] tract of land and shall have the right of

ingress and egress to and from [Appellants’] land for the purpose of

maintenance and repair to the pipeline as necessary.”       (Trial Court Order,

2/27/17, at 1).

      On March 10, 2017, Appellants filed a post-trial motion. On March 31,

2017, the trial court issued an opinion and order denying Appellants’ post-trial

motion. On April 13, 2017, the court entered judgment in favor of Appellee.

The instant, timely appeal followed. On April 21, 2017, the trial court directed

Appellants to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). On May 10, 2017, Appellants filed a thirteen-issue Rule

1925(b) statement.     See id.   On June 15, 2017, the trial court issued an

opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellants raise the following issues for our review.

            1.    Whether the trial court erred in finding the existence
      of an irrevocable license when [Appellee] failed to produce clear
      and convincing evidence of detrimental reliance because
      [Appellee] admitted that he can eject water from his property via
      means other than the pipeline at issue, thereby allowing him to
      be restored to his original position[?]

             2.     Assuming arguendo that [Appellee] did prove the
      elements of an irrevocable license, [is Appellee] barred from
      equitable relief under the doctrine of unclean hands, as evidence
      of record shows that he knowingly utilized the pipeline at issue to
      illegal[ly] eject sewage and gray water into a nearby stream in
      violation of the laws of the Commonwealth[?]

(Appellants’ Brief, at 4).




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      In an appeal from a trial court’s verdict in a non-jury trial, our scope

and standard of review is as follows.

                  Our standard of review in non-jury trials is to
            assess whether the findings of facts by the trial court
            are supported by the record and whether the trial
            court erred in applying the law. Upon appellate review
            the appellate court must consider the evidence in the
            light most favorable to the verdict winner and reverse
            the trial court only where the findings are not
            supported by the evidence of record or are based on
            an error of law. Our scope of review regarding
            questions of law is plenary.

            Moreover, [t]he [trial] court’s findings are especially binding
      on appeal, where they are based upon the credibility of the
      witnesses, unless it appears that the court abused its discretion
      or that the court’s findings lack evidentiary support or that the
      court capriciously disbelieved the evidence.

Century Indemnity Co. v. OneBeacon Ins. Co., --- A.3d ---, 2017 WL

4639578, at *14 (Pa. Super. Filed Oct. 17, 2017) (citations and quotation

marks omitted).

      With respect to licenses, this Court has stated:

      Licenses are often compared to easements. In general, a license
      is a mere personal or revocable privilege to perform an act or
      series of acts on the land of another, which conveys no interest or
      estate. A license is distinguishable from an easement because it
      is usually created orally, is revocable at the will of the licensor,
      and is automatically revoked by the sale of the burdened property.
      However, a license may become irrevocable under the rules of
      estoppel and in those circumstances it is similar to an easement.

            The Pennsylvania Supreme Court adopted the equitable
      doctrine of irrevocable license in the mid-nineteenth century
      stating that a license to do something on the licensor’s land when
      followed by the expenditure of money on the faith of it, is
      irrevocable, and is to be treated as a binding contract. The Court
      subsequently explained that such a license,

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                  while not strictly an easement, is in the nature
           of one. It is really a permission or license, express or
           implied, to use the property of another in a particular
           manner, or for a particular purpose. Where this
           permission has led the party to whom it has been
           given, to treat his own property in a way in which he
           would not otherwise have treated it . . . it cannot be
           recalled to his detriment.

           Thus, the irrevocable license gives absolute rights, and
     protects the licensee in the enjoyment of those rights. Moreover,
     successors-in-title take subject to an irrevocable license if they
     had notice of the license before the purchase.

Morning Call, Inc. v. Bell Atl.-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.

Super. 2000) (citations, footnotes, and quotation marks omitted).

     In their first issue, Appellants argue that the trial court erred in finding

an irrevocable license because Appellee did not show clear and convincing

evidence of detrimental reliance because he had an alternate method of

ejecting storm water from his property. (See Appellants’ Brief, at 14-22).

However, Appellants have waived this claim.

     In the instant matter, Appellants did not raise this issue in their post-

trial motion, which only raised the issues that the trial court erred by not

applying the correct legal standard; if the court had applied the correct

standard, the evidence was insufficient to support the verdict; and that the

doctrine of clean hands barred recovery. (See Motion for Post-Trial Relief,

3/10/17, at 2-3).   It is settled that failure to raise an issue in a post-trial

motion constitutes waiver of that issue on appeal. See Keffer v. Bob Nolan’s

Auto Service, Inc., 59 A.3d 621, 650 (Pa. Super. 2012), appeal denied, 69

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A.3d 602 (Pa. 2013) (citation omitted).2       3   Thus, Appellants have waived their

first issue on appeal.

       In their second issue, Appellants contend that Appellee “is barred from

equitable relief” because he has unclean hands. (Appellants’ Brief, at 23).



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2 Moreover, even if we were to review the merits of Appellants’ first issue, our
review of the record reveals ample support for the trial court’s factual and
legal finding that Appellee was entitled to an irrevocable license. In its
opinions of February 21, 2017, March 31, 2017, and June 17, 2017, the trial
court thoroughly discusses its holdings which are supported by the record.
(See Trial Ct. Op., 2/21/17, at 4) (finding that: (1) license originated prior to
construction of Appellants’ home; (2) Appellee and his predecessors relied on
license by making improvements to property and expending resources on
repair and relocation of pipe; (3) finding credible Appellee’s testimony that he
was aware of existence of license prior to purchasing property; and (4) license
was already established at time Bell purchased property and Bell was aware
of its existence prior to his ownership); (see also Trial Court Opinion,
3/31/17, at 3-4) (finding that: (1) Both Appellee and Bell were aware of
existence of pipeline prior to purchasing property; (2) their testimony was
credible; (3) Appellee is agreeable to putting in new septic system which would
resolve part of drainage problem; and (3) system of ejecting storm water on
to public roadway is temporary solution); (Trial Court Opinion, 6/17/17, at 2-
3) ((1) finding credible testimony of Appellee and Bell that they were aware
of pipeline’s existence prior to purchasing property, made repairs to pipeline,
and would be detrimentally affected if access ceased; and (2) Appellee cannot
be restored to his original position absent access to pipeline). Accordingly,
had we reached the merits of Appellants’ first issue, we would have affirmed.

3  We note that we would be justified in finding that Appellants have not
preserved any issues for our review because their thirteen-issue, vague and
repetitive 1925(b) statement does not comply with Rule 1925(b)(4)(ii) and
(iv). See Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004), appeal
denied, 880 A.2d 1239 (Pa. 2005), cert. denied, 546 U.S. 1092 (2006)
(waiving prolix Rule 1925(b) statement where court determined that
presentation of “outrageous number of issues” was deliberate attempt to
circumvent purpose of Rule 1925); see also Jiricko v. Geico Ins. Co., 947
A.2d 206, 210 (Pa. Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008).


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Specifically, Appellants argue that Appellee has engaged in illegal conduct

because the pipeline spills sewage and grey water in to a stream. (See id. at

23-26). We disagree.

      Our Supreme Court has stated:

      [A] court may deprive a party of equitable relief where, to the
      detriment of the other party, the party applying for such relief is
      guilty of bad conduct relating to the matter at issue. The doctrine
      of unclean hands requires that one seeking equity act fairly and
      without fraud or deceit as to the controversy in issue.

Terraciano v. DOT, 753 A.2d 233, 237-38 (Pa. 2000) (citations omitted).

Moreover, the burden of proving unclean hands is on Appellants.             See

Montgomery Bros., Inc. v. Montgomery, 112 A. 474, 475 (Pa. 1921).

      Here, there is nothing in the record that shows that Appellee was guilty

of any bad conduct, failed to act fairly, or acted fraudulently or deceitfully.

The record demonstrates that the pipeline began as a drain onto property that

Appellant, James D. Clawson’s, father used as a leach field for his septic

system, prior to Appellants building their home on the field. (See Answer and

New Matter, 4/02/14, at unnumbered pages 2 and 4; N.T. Trial 10/24/16, at

59-60, 70-74, 76-78, 91-95, 106-07). Further, Appellants themselves helped

construct the pipeline, despite their knowledge that it drained sewage into the

stream.   (See Answer and New Matter, supra at 2 and 4; see N.T. Trial,

supra at 59-60, 70-74, 76-78, 91-95, 106-07). Appellants did not complain

about this issue until they filed their answer and new matter in 2014.




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      Appellants failed to point to any evidence of record that shows that

Appellee was aware that the pipeline caused raw sewage to drain into the

stream prior to his ownership of the property; rather, the record reflects the

opposite.   (See, e.g., N.T. Trial, at 27, 102-03).     The most the record

establishes is that, when Appellant, James D. Clawson, and Appellee repaired

the pipeline after the issuance of an injunction in this matter, they saw old

sewage in it. (See id. at 86-87).

      Moreover, as discussed supra the property in question is vacant and

has been for the majority of Appellee’s period of ownership. (See id. at 101).

At trial, Spurgeon Shilling from the Indiana County Sewage Enforcement

Agency testified that local authorities were aware of the situation and have no

current issues with it. (See id. at 98, 101-03). Thus, Appellants have simply

failed to meet their burden to prove that Appellee acted with unclean hands.

See Terraciano, supra at 237-38; Montgomery Bros., supra at 475.

Appellants’ second issue is without merit.

      Accordingly, for the reasons discussed above, we affirm the judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018

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