J-A03037-19

                             2019 PA Super 82

ROBERT     CUNNINGHAM,             GINA :       IN THE SUPERIOR COURT OF
GODFREY, AND MOSHE MARVIT               :             PENNSYLVANIA
                                        :
                     v.                 :
                                        :
BETH CRONIN                             :
                                        :
APPEAL OF: MOSHE MARVIT                 :    No. 1078 WDA 2018

               Appeal from the Judgment Entered June 28, 2018
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): G.D. 16-13900

ROBERT     CUNNINGHAM,             GINA :       IN THE SUPERIOR COURT OF
GODFREY, AND MOSHIE MARVIT              :             PENNSYLVANIA
                                        :
                     v.                 :
                                        :
BETH CRONIN                             :
                                        :
APPEAL OF: GINA GODFREY                 :    No. 1079 WDA 2018

               Appeal from the Judgment Entered June 28, 2018
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): G.D. 16-13900

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                      FILED MARCH 20, 2019

     Moshe Marvit and Gina Godfrey (collectively, Appellants) appeal from

the judgment entered on June 28, 2018, against them and in favor of Beth

Cronin. Upon review, we reverse.




* Retired Senior Judge assigned to the Superior Court.
J-A03037-19


      We provide the following background. In the 1930s, John C. Coyne and

Mary Coyne developed an area in the Greenfield section of Pittsburgh between

Lydia and Winterburn Streets. The area is called the Coyne Plan and consisted

of 2½ acres subdivided into 28 lots. Running through these lots was a street,

Coyne Terrace, a 40-foot wide private road.     In addition, the Coyne Plan

included a 10-foot wide alleyway and greenway with concrete steps off

Winterburn Street (the Lot).

      On August 11, 1948, Coyne Terrace was opened as a public street, and

the Lot remained private. On October 26, 1999, Godfrey purchased a home

in the Coyne Plan. On February 18, 2013, Marvit purchased a home in the

Coyne Plan.

      In March of 2009, Allegheny County assigned a lot and block number to

the Lot (Lot & Block No. 54-R-92), and registered this now-taxable Lot to the

Coynes. The Lot was assigned an assessed value of $1,600. Because taxes

were not paid on the Lot, on October 25, 2013, the City of Pittsburgh sold the

Lot to Cronin at a Treasurer’s Sale for $742. Cronin also owned a home in the

Coyne Plan.   According to Appellants, beginning in July 2015, Cronin has

blocked Appellants’ access to the Lot.

      On July 28, 2016, Appellants1 filed a petition in the Court of Common

Pleas of Allegheny County asserting rights to the Lot via an easement by




1Robert Cunningham joined Appellants in filing this petition; however, he is
not participating in this appeal.
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J-A03037-19


implication. The matter was submitted on briefs at a non-jury trial, with all

parties filing proposed facts and conclusions of law.

      Appellants contended that “the conveyance of real estate that

references a map or plan containing streets, ways, parks, open spaces, and

the like, creates an easement to all properties within the plan to use the street

and other spaces.” Appellants’ Facts and Conclusions of Law, 5/21/2018, at

4-5 (citing Restatement 3d of Property: Servitudes § 2.13).           Thus, they

claimed that because the Lot was referenced in the Coyne Plan, and they

owned homes in the Coyne Plan, they were entitled to use of the Lot. Cronin

contested this position, claiming that Appellants had not produced “any

purchaser deeds, and therefore, it cannot be said whether the Coynes ever

dedicated an easement to anyone.” Cronin’s Response, 6/20/2018, at 3

(numbering supplied). In addition, Cronin claimed that even if there were an

easement, “it has not been established that there was ever an acceptance of

the dedication [of that easement] within twenty-one years.” Id. Appellants

responded that they had indeed attached the deeds to their briefs.2 Response,

6/27/2018, at 1.




2 A review of the certified record reveals that Appellants attached to their Facts
and Conclusions of Law a map of the Coyne Plan from the Allegheny County
Department of Real Estate, which shows the Lot. Appellants’ Facts and
Conclusions of Law, 5/21/2018, at Exhibit 1. Also included is a deed to
Godfrey, which shows that she purchased lot 28 in the Coyne Plan and a deed
to Marvit, which shows that he purchased lot 23 in the Coyne Plan. Id. at
Exhibits 3 and 4.


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J-A03037-19


      On June 28, 2018, the trial court entered judgment in favor of Cronin

and against Appellants. The trial court denied Appellants’ timely-filed post-

trial motions; Appellants timely filed a notice of appeal; and both Appellants

and the trial court complied with Pa.R.A.P. 1925.3

      Our standard of review in a non-jury trial is well established:

            We must determine whether the findings of the trial
            court are supported by competent evidence and
            whether the trial judge committed error in the
            application of law. Additionally, findings of the trial
            judge in a non-jury case must be given the same
            weight and effect on appeal as a verdict of a jury and
            will not be disturbed absent error of law or abuse of
            discretion.

Yablonski v. Keevican Weiss Bauerle & Hirsch LLC, 197 A.3d 1234, 1238

(Pa. Super. 2018) (quoting Davis ex rel. Davis v. Gov’t Employees Ins.

Co., 775 A.2d 871, 873 (Pa. Super. 2001) (citations omitted)).

      According to the trial court, because the deeds did not contain “a

reservation or reference to dedication or easement in [the Lot]” by the Coynes,

Appellants did not have an easement in the Lot.           Trial Court Opinion,

9/25/2018, at 5. Moreover, the trial court concluded that even if there were

an easement, once the Coynes failed to pay their taxes and the lot was sold,

any prior easement was extinguished. Id.




3  In addition to briefs on appeal by Appellants and Cronin, the City of
Pittsburgh has filed an amicus curiae brief supporting Appellants’ position.


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J-A03037-19


      Here, Appellants claimed that they were entitled to an implied

easement, a legal theory that contemplates the fact that there is no express

dedication. They claim instead that “[w]hen … lots are sold according to a

subdivision plan on which a street has been plotted by the grantor, the

purchasers acquire property rights in the use of the street.” Appellants’ Brief

at 9 (quoting Kao v. Haldeman, 728 A.2d 345, 347 (Pa. 1999)). According

to Appellants, their purchasing of lots in the Coyne Plan included an easement

for the Lot.

      In considering whether Appellants established an implied easement in

the Lot, we are guided by this Court’s decision in Potis v. Coon, 496 A.2d

1188 (Pa. Super. 1985). In Potis, the appellants claimed their rights to an

implied easement based upon references to maps; appellees asserted that the

appellants did not satisfy the requirements of an easement by implication4 and

therefore the appellants were not entitled to an easement. This Court offered

the following.

      We find that neither position is entirely correct. An easement by
      reference to a map or plat[] is not an express easement but,
      rather, an easement by implication. However, the criteria
      enumerated [supra] do not apply to an easement by reference to
      a map or plat[], which is a particular type of implied easement
      controlled by its own principles. Instead, we look to the following


4Typically, an easement by implication is established “where an owner of land
subjects part of it to an open, visible, permanent and continuous servitude or
easement in favor of another part[y].” Tosh v. Witts, 113 A.2d 226, 228 (Pa.
1955). If an owner “then aliens either, the purchaser takes subject to the
burden or the benefit as the case may be, and this irrespective of whether or
not the easement constituted a necessary right of way.” Id.
                                     -5-
J-A03037-19


     well established principles concerning an easement by reference
     to a map or plat[]:

           It is well settled that the grantee of a lot, which is sold
           according to a plan of lots on which streets or alleys
           not previously opened or projected as a public street
           are plotted out by the grantor, acquires an easement
           over those streets and alleys as a private right of
           property arising out of the grant, of which he cannot
           be deprived without compensation[.]

     Cox’s Inc. v. Snodgrass, [] 92 A.2d 540, 541 ([Pa.] 1952).
     References to a plan contained in deeds make the plan a part of
     the deed or conveyance and constitute a dedication of the streets,
     alleys and ways shown on the plan, to the use of the purchasers
     as public ways[.] ... Where a street called for a boundary in a deed
     is not a highway nor dedicated to public use, the grantee does not
     take title in fee to the center of it, but by implication acquires an
     easement, or right of way, over the lands. There is in such a case,
     an implied covenant that there is a way corresponding with the
     one described in the deed, that so far as the grantor is concerned
     it shall be continued and that the grantee, his heirs and assigns,
     shall have the benefit of it.

Potis, 496 A.2d at 1191-93 (some citations and quotation marks omitted).

     Thus, in Potis, this Court turned to an examination of the deeds and

plan to determine whether the appellants “acquired an easement over the

unopened road by reference to such maps.” Id. at 1193. We will do the same.

     In this case, a review of the deeds reveals reference to the Coyne Plan,

and indicates that Appellants’ lots were sold in accordance with that plan.

Thus, we conclude that Appellants indeed have an easement in the Lot.

However, we must still determine whether the tax sale extinguished the

easement, as suggested by the trial court. See Trial Court Opinion,




                                      -6-
J-A03037-19


9/25/2018, at 5 (“If there had ever been an easement for the Coyne [Plan]

residents over [] Cronin’s property, it was extinguished by the [tax] sale.”).

      The law in this Commonwealth is longstanding.

      [I]f land is sold for taxes, an easement, servitude, or interest in
      the nature of an easement is not destroyed, but the purchaser
      takes subject thereto. It is the estate and interest *** [of] the
      real owner or owners of the land sold which passes by the sale,
      and not some other estate or interest which the real owner or
      owners did not have. The default of the real owner or owners was
      the failure to pay taxes on the land, which they owned and which
      was subject to the right of way; the title which the purchaser
      acquired was the title of that real owner or owners[.]

Tide-Water Pipe Co. v. Bell, 124 A. 351, 355 (Pa. 1924) (internal quotation

marks omitted).

      Here, Cronin purchased the land at the tax sale and received the same

title as the Coynes.      As discussed supra, the Coynes’ title included an

easement over the Lot for the homes sold in accordance with the Coyne Plan.

Thus, the trial court erred in concluding that the tax sale extinguished this

easement.

      Judgement reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019



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