J-A26022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RONALD HAZELTON AND KAREN                 :   IN THE SUPERIOR COURT OF
SHESKO                                    :        PENNSYLVANIA
                                          :
                  Appellants              :
                                          :
                                          :
            v.                            :
                                          :
                                          :   No. 61 WDA 2016
RALPH HAZELTON, JANET WATSON,             :
DENNIS HAZELTON AND MICHAEL               :
BRINK                                     :

           Appeal from the Judgment Entered February 3, 2016
            In the Court of Common Pleas of Clearfield County
                  Civil Division at No(s): 2014-1407-CD


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                            FILED DECEMBER 9, 2016

     Ronald Hazelton and Karen Shesko (Appellants) appeal from the

judgment entered on February 3, 2016, which denied their Complaint for

Declaratory Judgment and granted Appellees’ counterclaim. We affirm.

     The relevant facts are as follows:

           A parcel of land in Chest Township, Clearfield County,
     Pennsylvania, consisting of approximately 82 acres has been
     owned by members of the Hazelton family for more than one
     hundred years. This parcel of land, upon which a farmhouse
     sets [sic], is commonly known by the parties and referred to
     herein as the Hazelton Farm.

     For most of that time, land on the property was cultivated and
     farmed; with the exception of the years 1997 through 2011
     when 24.7 acres were enrolled in the federal Conservation
     Reserve Enhancement Program (CREP).           The continuing,
     unanimous consent of all owners was required for the land to
     remain enrolled in the CREP program. However, upon acquiring
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     their interest in Hazelton Farm in 2010, [Appellants] and Donald
     Hazelton (a non-party to the present action) refused to consent
     to the Farm’s continued enrollment in the CREP program.
     Consequently, the Hazelton Farm was dis-enrolled from the
     CREP program.

     Shortly after the acreage was dis-enrolled from the CREP
     program, Dennis Hazelton, and other [Appellees] in the present
     action, chose to have the acreage returned to its original use.
     Accordingly, they arranged for a third party farmer, [Appellee]
     Michael Brink, to cultivate and farm approximately 20 acres in
     the northwest portion of the Hazelton Farm.

     The Hazelton Farm was originally more than 100 acres.
     However, due to disputes regarding the use and control of the
     farm among various co-tenants a partition action was
     commenced by Ralph Hazelton in April of 2010. This partition
     action resulted in the original Hazelton Farm being partitioned
     with Ronald Hazelton, Karen Shesko, the [Appellants] in the
     present case, as well as Donald Hazelton, a non-party to the
     present action, receiving an in[-]kind portion of the original
     Hazelton Farm. The portion amounted to just over 23 acres.

     The remaining balance of the Hazelton Farm, consisting of a
     farm house and just over 82 acres, which is the property subject
     to the present [appeal], was conveyed by the Master in Partition
     by a deed dated July 26, 2013 to the following individuals as
     tenants in common in the following approximate fractional
     shares:

       a. Dennis R. Hazelton, [Appellee] in the present action
       (40%)

       b. Ralph N. Hazelton, [Appellee] in the present action
       (20%)

       c. Mildred E. Park, Non-party to the present action (20%)

       d. Beverly J. Hazelton, Non-party to the present action
       (5%)

       e. Daniel R. Hazelton, Non-party to the present action
       (5%)

       f. Janet R. Watson, [Appellee] in the present action (5%)

       g. Paul N. Hazelton, Non-party to the present action (5%)

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     Almost immediately following the conveyance by the Master in
     Partition in which the [Appellants] in the present case were
     awarded an in[-]kind portion of approximately 23 acres of the
     original 100 [plus] acre Hazelton farm, the [Appellants] in the
     present case, together with Donald Hazelton, who is a non-party
     to the present action, purchased an interest in the remaining 82
     acres of the Hazelton Farm from Mildred E. Park through a quit-
     claim deed.

     Following the partition action, the 82 acre portion of the
     Hazelton Farm was left without access to a public road.
     [Appellee] Dennis Hazelton constructed a dirt access road from
     the farmhouse to Ponish Road, a township road, to allow access
     to the Hazelton Farm via public roadway. Dennis Hazelton also
     constructed various other private roads and reopened existing
     roads that had become unpassable on the Hazelton Farm. One
     of these roads led to [Appellants’] 23 acre property that was
     partitioned off from the original Hazelton Farm. [Appellants] had
     a mound of dirt and stone bulldozed across this road, on the
     jointly owned property, to obstruct entry to their separately
     owned property.

     In September of 2014, at the time the [Appellants] filed their
     complaint in the case at bar, the Hazelton Farm was owned by
     the following individuals as tenants in common in the following
     approximate fractional shares:

       a. Dennis Hazelton, [Appellee] (40%)

       b. Ralph Hazelton, [Appellee] (20%)

       c. Ronald Hazelton [Appellant] (6.67%)

       d. Karen Shesko [Appellant] (6.67%)

       e. Donald Hazelton, Non-party (6.66%)

       f. Janet Watson, [Appellee] (5%)

       g. Beverly J. Hazelton, Non-party (5%)

       h. Daniel R. Hazelton, Non-party (5%)
                                             1
       i. Paul N. Hazelton, Non-party (5%)

     By oral agreement[s] in 2012 and 2013 and memorialized in
     writing in 2014 and 2015, [Appellee], Michael Brink (Brink), who
     is a local farmer living in Irvona, Pennsylvania, was given

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     permission by the Hazelton [Appellees] to farm approximately 20
     acres in the northwest portion of Hazelton Farm.             This
     agreement, herein after referred to as the Land Use Agreement,
     did not involve any portion of the [Appellants’] 23 acre parcel of
     land that was once part of the original Hazelton Farm. Indeed,
     Mr. Brink has never engaged in any farming activity of any kind
     on the [Appellants’] 23 acre parcel. Rather, the Land Use
     Agreement gave Mr. Brink the right to farm approximately 20
     acres of the northwest portion of the 82 acre Hazelton Farm. In
     the spring of 2012, Brink began farming activities on portions of
     the Hazelton Farm pursuant to the oral land use agreement that
     he entered into with the Hazelton [Appellees] as well as non-
     party owners Daniel Hazelton and Paul Hazelton.

     Witnesses for [Appellees], included Mr. Brink and Mike Kunsman,
     who testified as a farming expert, credibly testified at trial as to
     the many improvements Mr. Brink’s farming activities were
     having on the cultivated acreage and the Hazelton Farm as a
     whole. Rather than being overgrown and untended, or left
     fallow, Mr. Brink’s farming activity afforded a benefit to the soil
     by contributing to the soil’s nutrient balance and reducing weed
     and pest infestations, as well as leaving a certain amount of his
     corn crop in place to hold deer and game in the vicinity off the
     Hazelton Farm. Mr. Brink’s use of the plan complied with the
     “Conservation Plan” prepared for the acreage by the United
     States Department of Agriculture Natural Resource Conservation
     Service.



     1
       Subsequent to the filing of the [Appellant’s] complaint, Dennis
     Hazelton ([Appellee]) has acquired the interest of Ralph Hazelton
     ([Appellee]) leaving Dennis Hazelton with a 60% interest in the
     Hazelton Farm.       Similarly, Janet R. Watson ([Appellee])
     purchased Beverly J. Hazelton’s (non-party) interest resulting in
     Janet R. Watson owning a 10% interest in the Hazelton Farm
     which Janet R. Watson concurrently conveyed to herself and her
     husband Jay A. Watson (non-party).

Trial Court Opinion, 12/16/15 at 1-7 (citations and footnotes omitted).




                                    -4-
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        In September 18, 2014, Appellant’s sought a declaratory judgment

that the Land Use Agreement for the year 2014 is null and void. Appellees

filed a counterclaim asking the court to direct Appellants to remove the dirt

and stone obstructing one of the private roads on the 82 acre portion of the

Hazelton Farm and remediate the area to its original condition.    Appellant

filed an Amended Complaint for Declaratory Judgment on November 3,

2014.     Appellee responded in a timely fashion to Appellants’ declaratory

judgment action. On December 16, 2015, following a hearing, the trial court

entered an order and opinion denying Appellants’ petition for Declaratory

Judgment and granting Appellees’ counter claim, ordering Appellants to

remove, at their sole expense, any and all blockages that Appellants

constructed or caused to be constructed on roads located on the commonly

owned property.       On December 28, 2015, Appellant filed a motion for

reconsideration of the court’s December 16, 2015, order, which was denied

by the trial court.

        On January 8, 2016, Appellants filed the instant appeal. On January

18, 2016, the trial court directed Appellants to file a Pa.R.A.P. 1925(b)

statement.     On February 3, 2016, Appellees filed a Praecipe to enter

Judgment on Court’s December 16, 2015 opinion and order. Appellants filed

their timely 1925(b) statement on February 5, 2016, and the trial court

issued a no further opinion letter.

        Appellants raise seven issues on appeal:




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   1. Whether the lower court committed a clear error in ruling that
      Plaintiff-Appellants failed to establish the existence of a case or
      controversy with respect to the 2012 through 2015 oral and
      written land use agreements entered into by and between
      Defendant-Appellees, Ralph Hazelton, Janet Watson, and Dennis
      Hazelton (hereinafter referred to as the “Hazelton Appellees”)
      and Defendant-Appellee, Michael Brink (hereinafter referred to
      as “Appellee Brink”) regarding the use and control of the parties’
      jointly owned property by Appellee Brink.

   2. Whether the lower court committed clear error in ruling that no
      case or controversy exists with regard to the Hazelton Appellees
      unilaterally entering into future land use agreements with third
      party, non-owners of the parties’ jointly owned property,
      including Appellee Brink.

   3. Whether the lower court committed clear error in ruling that,
      pursuant to Pennsylvania law, and under the circumstances
      presented in the instant matter, the Hazelton Appellees are/were
      permitted to bind their cotenants to contracts concerning the use
      and control of the commonly held property.

   4. Whether the lower court committed clear error in ruling that
      Plaintiff–Appellants failed to establish that they communicated
      their opposition to the Land Use Agreements to the Hazelton
      Appellees.

   5. Whether the lower court committed clear error in ruling that
      Plaintiff-Appellants acquiesced in or agreed to the farming
      activities that took place (and continue to take place) on the
      parties’ jointly owned property.

   6. Whether the lower court committed clear error in ruling that a
      dirt and stone pile unlawfully obstructs a private access road
      and/or the Hazelton Appellees’ full access to the parties’ jointly
      owned property.

   7. Whether the lower court committed clear error in ordering and
      directing Plaintiff-Appellants to remove the dirt and stone pile, at
      their own expense, from the parties’ jointly owned property.

Appellants’ Brief at 4-5.




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      This action arose when Appellants filed a declaratory judgment against

Appellees, asserting that Appellees interfered with their right to the 82 acre

property, of which Appellants collectively own an approximately 13.34%

share as tenants in common. The trial court held that there was no case or

controversy, and judgment was entered in favor of Appellee.        Appellants’

first five issues on appeal center on whether the trial court erred in denying

Appellants’ petition for Declaratory Judgment.

      The Declaratory Judgment Act enables courts “to declare rights,

status, and other legal relations whether or not further relief is or could be

claimed.   42 Pa.C.S.A. § 7532.     Our review of appeals from declaratory

judgements is narrow.    See Universal Health Servs., Inc. v. Pa. Prop.

and Cas. Ins. Guar. Ass’n, 884 A.2d 889, 892 (Pa. Super. 2005).            In

reviewing a declaratory judgment action, we are limited to determining

whether the trial court clearly abused its discretion or committed an error of

law. Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004). However,

we exercise plenary review over the trial court’s legal conclusions.

Universal Health Servs., 884 A.2d at 892.

      To bring a declaratory judgment action, there must exist an
      actual controversy, as declaratory judgment is not appropriate to
      determine rights in anticipation of events which may never
      occur, it is an appropriate remedy only where a case presents
      antagonistic claims indicating imminent and inevitable litigation.




                                    -7-
J-A26022-16



Selective Way Ins. Co. v. Hosp. Grp. Servs., Inc. 119 A.3d 1035, 1046

(Pa. Super. 2015) (quoting Bromwell v. Mich. Mut. Ins. Co., 716 A.2d

667, 670 (Pa. Super. 1998)).

        We have held that declaratory judgment will not be rendered to
        decide future rights in anticipation of an event which may never
        happen and that a petition for declaratory judgment is properly
        dismissed where the proceeding may prove to be merely
        academic.

McCandless Twp. V. Wylie, 100 A.2d 560, 592 (Pa. 1953).

        Instantly, the trial court correctly determined that Appellant failed to

establish an actual case or controversy. An actual case or controversy must

exist at all stages of the judicial process, or a case will be dismissed as

moot.     Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012).          Here,

Appellants’ claim centers on the oral and written Land Use Agreements from

2012 through 2015. As noted by the trial court, at the time of trial, farming

season had concluded, and the issue was moot. See Trial Court Opinion at

9.

        This Court will only decide questions that have been rendered moot

when one or more of the following exceptions apply: 1) the case involves a

question of great importance, 2) the question presented is capable of

repetition and apt to elude appellate review, or 3) a party to the controversy

will suffer some detriment due to the decision of the trial court. First Union

Nat’l. Bank v. F. A. Realty Inv’r Corp., 812 A.2d 719, 724 (Pa. Super.

2000).



                                      -8-
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       In reviewing of the record, there is no indication that Appellees’

entered into a Land Use Agreement with Appellee Brinks or any other

individuals for future farming seasons.          The Court cannot declare rights of

the parties with respect to Land Use Agreements that do not exist.             The

instant case does not present a question of great importance, nor is it apt to

elude appellate review.           If Appellees’ enter into a future Land Use

Agreement, Appellants may seek emergency injunctive relief.             See, e.g.,

Roth v. Columbia Distrib. Co. of Allentown, 89 A.2d 825, 829 (1952)

(granting preliminary injunction until such time as a final hearing occurs).

As there is currently no Land Use Agreement, Appellants will not suffer a

detriment due to the decision of the trial court. Thus, the trial court properly

denied declaratory relief.       Orfield , 52 A.3d at 277; First Union Nat’l.

Bank, 812 A.2d at 724.

       Appellants also sought an order prohibiting Appellees from entering

into future land use agreements.           We agree with the trial court; such an

order is inappropriate. Essentially, Appellants want a permanent injunction

prohibiting farming on the property without Appellants’ permission. 1



____________________________________________


1
  Here, Appellants seek permanent injunctive relief. Separate standards
govern a request for a preliminary injunction and a request for permanent
injunctive relief. The purpose of a preliminary injunction is to maintain the
status quo until the parties’ rights can be considered and determined after a
full hearing for a permanent injunction. Buck Hill Falls Co v. Clifford
Press, 791 A.2d 392, 396 (Pa. Super. 2002).



                                           -9-
J-A26022-16


      An injunction is a court order that can prohibit or command
      virtually any type of action. It is an extraordinary remedy that
      should be issued with caution and “only where the rights and
      equity of the plaintiff are clear and free from doubt, and where
      the harm to be remedied is great and irreparable.” The required
      elements of injunctive relief are: a clear right to relief; an urgent
      necessity to avoid an injury that cannot be compensated in
      damages; and a finding that greater injury will result from
      refusing rather than granting, the relief requested. Even where
      the essential prerequisites of an injunction are satisfied, the
      court must narrowly tailor its remedy to abate the injury.

Big Bass Lake Cmty. Ass’n v. Warren, 950 A.2d 1137, 1144 (Pa.

Commw. Ct. 2008) (citations omitted). In reviewing the grant or denial of a

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

whether the trial court committed an error of law. Buffalo Tp. V. Jones,

813 A.2d 659, 663 (Pa. 2002) (citing Boyle v. Pa. Interscholastic

Athletic Ass’n Inc., 676 A.2d 695, 699 (Pa. Commw. 1996)).

      Here, Appellants failed to establish a clear right to relief.           While

Appellants are tenants in common and have a right to possession and

enjoyment of the entire jointly owned property, we agree with the trial court

that “it is highly inequitable that minority owners of a farm veto the majority

owner’s productive use of the land in order for the land to become fallow and

uncultivated”.   Trial Court Opinion, 12/16/16 at 12.     In similar situations,

other jurisdictions have held that “[a] nonleasing tenant in common who

does not personally wish to cultivate the property may not prevent a

cotenant’s lessee from doing so.” 86 C.J.S. Tenancy in Common § 141

(citing Stinson v. Marston, 169 S. 436 (La. 1936)). Furthermore, at the



                                     - 10 -
J-A26022-16



time Appellants bought back into the property, it was already being

cultivated and farmed by Appellee Brink.

      Appellants also failed to meet the second requirement for injunctive

relief. They have failed to demonstrate an urgent necessity or injury that

cannot be compensated in damages.        Finally, as there are no future Land

Use Agreements, Appellants failed to establish that greater injury will result

from refusing rather than granting relief.

      Appellants’ remaining two claims assert that the trial court erred in

ordering Appellants to remove a dirt and stone pile obstructing a road on the

Hazelton property at Appellants’ expense. The estimated size of the pile is

six to seven feet in height, ten to twelve feet in width, and approximately

one hundred feet in length. Notes of Testimony (N.T.), 9/14/15 at 192. As

previously, stated tenants in common have a right to the possession and

enjoyment of the entire jointly owned property. While the farming of twenty

acres of land provides a benefit to the property, blocking the road does not.

The dirt and stone barrier made the land unusable to the Appellees. Based

on the evidence in the record Appellants have reduced the use the common

acreage. Given that Appellants’ caused the blockage, the burden is on them

to remove the dirt and stone pile from the commonly owned land. Based on

the foregoing, we discern no abuse of discretion or error of law.

      Judgment affirmed.




                                    - 11 -
J-A26022-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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