J-A30045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SAMUEL DESIMONE AND MERRILEE ANN                IN THE SUPERIOR COURT OF
DESIMONE                                              PENNSYLVANIA

                         Appellees

                    v.

GEORGE H. KESSLER AND ANNE M.
KESSLER, HIS WIFE

                         Appellants                  No. 491 MDA 2016


             Appeal from the Order Entered February 29, 2016
           In the Court of Common Pleas of Lackawanna County
                      Civil Division at No: 2012-02113


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 21, 2017

      Appellants, George H. Kessler and Anne M. Kessler (“Kesslers”),

appeal from the February 29, 2016 order entered in the Court of Common

Pleas of Lackawanna County (“trial court”) granting a non-jury verdict in

favor of Samuel DeSimone and Merrilee Ann DeSimone (“DeSimones”),

regarding their action to quiet title, the Kessler’s ejectment claim, trespass

claim, and finding that the DeSimones have acquired an easement to use

the right of way on the Kesslers’ property. Upon review, we affirm.

      The trial court summarized the history of the matter as follows.

            This case stems from a property dispute amongst
      neighbors. [The DeSimones] and [the Kesslers] executed a
      Right of Way Agreement (hereinafter “the Agreement”) to which
      [the Kesslers] granted to the [DeSimones], their heirs,
      successors and assigns the right and privilege to utilize the right
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     of way up to [the DeSimones] current gravel driveway for access
     to [the DeSimones’] home located on their property.

           In their Complaint filed April 5, 2012, [the DeSimones]
     allege that they acquired an easement to and from the Right of
     Way described in the Agreement. [The DeSimones] argue that
     the [Kessler’s] limitation of [the DeSimones’] access to the Right
     of Way prevents [the DeSimones] from receiving fuel delivery
     and easy access to their property over the gravel driveway,
     which has been the common practice since 2001.

            [The DeSimones’] [c]omplaint makes two (2) claims
     against the [Kesslers] one for an action to quiet title, and the
     other for trespass. According to the [DeSimones], [the Kesslers]
     are now attempting to impose a further limitation for the use of
     the Right of Way. [The DeSimones] argue that the Agreement
     should be given the full force and effect of the law and the
     [DeSimones] should be allowed to exercise all rights to utilize
     the Right of Way to obtain access to and from their gravel
     driveway. Lastly, [the DeSimones] argue that as a result of the
     activities by [the Kesslers], a portion of [the DeSimones’] land
     has been damaged and they have been deprived of the use and
     enjoyment of their land.

           [The Kesslers] filed their Answer to Plaintiff’s’ Complaint on
     June 19, 2012 and asserted two (2) Counterclaims for ejectment
     and trespass. In their Counterclaims, [the Kesslers] allege that
     [the DeSimones’] construction of a sand mound for sewage
     treatment encroached upon the [Kesslers’] land and deprived the
     [Kesslers] of use and enjoyment of their land. [The Kesslers]
     further allege that the [DeSimones’] sand mound is “constructed
     in a [manner] which causes an unnatural drainage of water from
     the [DeSimones’] land and onto the [Kesslers’] land resulting in
     the accumulation of water . . . and additional loss of use of the
     [Kesslers’] land preventing them from mowing and maintaining
     the land.”

           On December 5, 2013, the Honorable Judge Thomas
     Munley entered an order appointing Thomas Helbig, Esquire as
     Special Trial Master to conduct a mediation conference on the
     matter.     Following an unsuccessful mediation, the case
     proceeded to trial de novo.

            The [trial court] presided over a two-day de novo non-jury
     trial that commenced on January 27, 2015. The record was left

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      open to allow the parties to submit proposed findings of fact and
      conclusions of law. All parties submitted a Joint Statement of
      Undisputed Facts on March 10, 2015.           [The DeSimones]
      submitted their Requested Findings of Fact and Conclusions of
      Law on March 13, 2015. [The Kesslers] submitted their version
      of the same on the same day.

Trial Court Opinion, 6/11/2015, at 1-3 (sic).

      The trial court issued an opinion on June 11, 2015, making findings of

fact, and entering a non-jury verdict for the DeSimones on all counts. On

June 19, 2015, the Kesslers filed a motion for post trial relief. On February

29, 2016, the trial court denied the Kesslers’ motion. The Kesslers filed a

timely notice of appeal on March 21, 2016.        The trial court did not direct

compliance with Pa.R.A.P. 1925(b); therefore the Kesslers did not file, nor

were they required to file a concise statement.

      On appeal, the Kesslers raise three issues which we quote verbatim.

      I.     Whether or not the trial court erred as a matter of law or
             by abuse of its discretion in its determination of the
             ownership of interests of [the DeSimones] and [the
             Kesslers.]

      II.    Whether or not the trial court erred as a matter of law or
             by abuse of its discretion in its determination that the
             right-of-way was ambiguous contrary to the clear evidence
             presented at trial.

      III.   Whether or not the trial court erred as a matter of law or
             by abuse of its discretion as to the clear meaning of the
             language of the right-of-way which states … “no additional
             rights for use of the Right of Way will be given by
             DeSimone to any third party without the prior written
             consent and approval of Kessler.”

Appellants’ Brief at 4.



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     The Kessler’s first challenge is to the interpretation of the Agreement

by the trial court and finding that it created an express easement.         The

Agreement between the parties contains the following language.

                               BACKGROUND

     A. DeMario is the fee simple owner of all that certain piece or
        parcel located at 107 Hidden Valley Drive, Clarks Summit,
        Pennsylvania 18411. Consisting of 3.595 acres, and depicted
        as Lot #1 and depicted on the Tax Assessors’ Map (“hereafter
        Lot 1”), all as more fully appears in Exhibit “A” attached
        hereto and incorporated by reference herein;

     B. Contemporaneously herewith, DeMario has executed a Deed
        thereby conveying all his right, title and interest in and to Lot
        #1 to Kessler[s];

     C. DeSimone[s] [are] the owner[s] of all that certain piece or
        parcel located at 102, Hidden Valley Drive, Clarks Summit,
        Pennsylvania 18411 and referenced as Lot #5 on Exhibit “A”
        (hereafter “Lot #5”);

     D. A 50 foot by 70 foot driveway is depicted on Exhibit “A” and
        owned by DeMario and ultimately Kessler[s] hereafter for
        access to Lot #1 and a portion is also used for access to Lot
        #5 (“Right of Way”)

     E. Thus far, DeMario has permitted DeSimone[s] and their
        invitees to utilize the Right of Way without any obligation or
        responsibility but all parties hereto, want to fully set forth
        their respective rights regarding said driveway as more
        particularly set forth herein.

        AND NOW, therefore in consideration of ONE ($1.00) DOLLAR
        and other good and valuable consideration, the sufficiency of
        which is hereby agreed to and for other good and valuable
        consideration, the parties hereto agree as follows.

     1. Kessler[s] as owner of Lot #1, their heirs, successors and
        assigns, hereby grants to DeSimone[s], their heirs,
        successors and assigns as owners of Lot #5 the right and
        privilege to utilize the Right of Way up to their current gravel
        driveway for access to Lot #5 and the width of this Right of

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          Way shall be no greater than the current width of their
          driveway serving Lot #5.

       2. The driveway has been constructed at the expense of DeMario
          and all maintenance/upkeep will be at the discretion of
          Kessler[s].

       3. The Right of Way shall, at all times, be owned by Kessler[s],
          their heirs, successors and assigns and shall be used by
          DeSimone[s], their heirs, successors and assigns only for
          access to Lot #5 as depicted on Exhibit “A” and as set forth
          above and no additional rights for use of the Right of Way will
          be given to DeSimone[s] to any third party without the prior
          written consent and approval of Kessler[s].

       4. Should the Right of Way ever cease to be used as a driveway
          for access to Lot #5, all rights shall revert to Kessler[s], their
          respective heirs, successors and assigns as owners of the
          property as if no access for Lot #5 was needed.

Joint Exhibit 5. The Kesslers’ argument is neither supported by the record

nor developed with case law.1 “An easement is defined as: ‘[a]n interest in

land owned by another person, consisting in the right to use or control the

land, or an area above or below it, for a specific limited purpose.’” Stanton

v. Lackawanna Energy, Ltd., 886 A.2d 667, 676 (Pa. 2005) (citing Black’s

Law Dictionary, 8th ed. (2004), at 1108). “A right of way is an easement,

which may be created by an express, grant.” Amerikohl Mining Co., Inc.

v. Peoples Natural Gas Co., 860 A.2d 547, 550 (Pa. Super. 2004) (citation

omitted).     It is abundantly clear that the parties’ December 7, 2004

____________________________________________


1
  To the extent that the Kesslers’ claim is a challenge to the factual findings
made by the trial court, it is waived as it was not raised in the questions
presented. See Pa.R.A.P. 2116(a); see also Krebs v. United Refining Co.
of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006).



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agreement is a written instrument conveying a right of way; therefore, it is

an express easement.    The trial court did not abuse its discretion when it

found the agreement was an easement. The Kesslers’ first argument fails.

      The Kesslers’ next two arguments are intertwined as the Kesslers

argue that the trial court erred when it determined that the right of way was

ambiguous and how it applied to third parties.

      To ascertain the nature of the easement created by an express
      grant we determine the intention of the parties ascertained from
      the language of the instrument. Such intention is determined by
      a fair interpretation and construction of the grant and may be
      shown by the words employed construed with reference to the
      attending circumstances known to the parties at the time the
      grant was made.

Amerikohl Mining Co., Inc., 860 A.2d at 550 (quoting Merrill v. Mfgrs.

Light and Heat Co., 185 A.2d 573 (Pa. 1962)).        Moreover, “[i]t is well-

established that the same rules of construction that apply to contracts are

applicable in the construction of easements.” McNaughton Properties, LP

v. Barr, 981 A.2d 222, 227 (Pa. Super. 2009).

      When the terms of an express grant of an easement are general,
      ambiguous, and not defined by reference to the circumstances
      known to the parties at the time of the grant, the express
      easement is to be construed in favor of the grantee, and the
      easement may be used in any manner that is reasonable.

Lease v. Doll, 403 A.2d 558, 562 (Pa. 1979) (citations omitted).

      In the matter sub judice the trial court found that the background

section of the Agreement is unambiguous and clearly states the intent of the

parties.   We agree.   See Amerikohl Mining Co., Inc., 860 A.2d at 550


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(citation omitted). Moreover, the trial court found that the grant section of

the Agreement was ambiguous and stated in general terms. We agree. See

Lease, 403 A.2d at 562 (citations omitted). The grant uses general terms

and describes the width of the Right of Way as “no greater than the current

width of their driveway serving Lot #5.”

      The Kesslers’ are attempting to challenge the weight of the evidence

regarding the width of the Right of Way.

      Appellate review of a weight claim is a review of the [trial
      court’s] exercise of discretion, not of the underlying question of
      whether the verdict is against the weight of the evidence.
      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the
      verdict is against the weight of the evidence. One of the least
      assailable reasons for granting or denying a new trial is the
      lower court’s conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice.

Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (quoting In re Estate of

Smaling, 80 A.3d 485, 490 (Pa. Super. 2013)). Furthermore, “a fact-finder

is permitted to accept all, part, or none of the testimony, and it is within the

fact-finder’s exclusive province to resolve conflicts in that testimony.”   Id.

(citing Samuel-Bassett v. Kia Motors America., Inc., 34 A.3d 1, 39 (Pa.

2011)).

      In the matter sub judice, the trial court denied the Kessler’s weight of

the evidence claim. The trial court made the finding that




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      Surveyor John M. Hennemuth, PLS determined that at the time
      the parties entered into the Agreement, the entrance to the
      Right of Way was 21’ feet wide. N.T., 1/27/15, at 110; see also
      [DeSimones’] Ex. 2. Following [Appellant] George Kessler’s
      construction of the ditch filled with riprap and the two (2) iron
      poles, John M. Hennemuth, PLS determined that the entrance to
      the Right of Way was reduced to 15.54’ feet. N.T. 1/27/15, at
      111; see also [DeSimones’] Ex. 2.1

               [1] While Kevin M. Karsnak determined the entrance
               of the Right of Way to be a greater width of 16.4’
               feet, [the trial court] conclude[s] that John M.
               Hennemuth’s testimony and survey map are more
               credible because of his educational background and
               superior experience in surveying.

Trial Court Opinion, 6/11/15, at 14. Upon review, we find that the trial court

did not abuse its discretion when it denied the Kessler’s challenge to the

weight of the evidence regarding the width of the Right of Way. The trial

court found the testimony of John M. Hennemuth, PLS, as well as the survey

map he provided, more credible than the testimony of Kevin M. Karsnak. As

credibility is a determination exclusively for the fact-finder, the Kesslers’

claim fails.

      The      Kesslers’   next   claim   is   a   challenge   to   the   trial   court’s

determination that third parties may use the Right-of-Way. The agreement

states that

      3. The Right of Way shall, at all times, be owned by Kessler[s]
      their heirs, successors and assigns and shall be used by
      DeSimone[s], their heirs, successors and assigns only for access
      to Lot #5 as depicted on Exhibit “A” and as set forth above and
      no additional rights for use of the Right of Way will be given by
      DeSimone[s] to any third party without the prior written consent
      and approval of Kessler[s].



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Joint Exhibit 5 (emphasis added). The trial court found that

            [w]hen the parties entered into the Agreement, [Appellant]
     George Kessler testified that he was aware that Dr. Ralph
     DeMario allowed [Appellees] to have third parties access
     [Appellees’] property over the paved driveway. N.T., 1/27/15,
     at 138-139. [Appellee] Sam DeSimone testified that the paved
     driveway was used, without restriction, by [Appellees], their
     relatives, friends, neighbors, delivery people, workers and
     anybody else visiting [Appellees’] home. Id. at 21-23. Because
     [Appellants] were aware of [Appellees’] prior use of the Right of
     Way prior to the execution of the written Agreement coupled
     with the [Appellees’] ordinary and reasonable use, [the trial
     court] conclude[s] that [Appellees] are entitled to exercise all
     prior rights and privileges in the utilization of the Right of Way
     without the limitations attempting to be unilaterally imposed by
     [Appellants]. The typical parties permitted to use the Right of
     Way include, without limitation, [Appellees], their relatives,
     friends, neighbors, invitees, delivery trucks (such as septic tank
     services, fuel, US postal Service and UPS), workers (such as
     landscapers and contractors), and any third party visiting
     [Appellees] home or property at [Appellees’] invitation and with
     [Appellees’] consent.

Trial Court Opinion, 6/11/15, at 13.   Moreover, the trial court determined

that “in order to read this clause consistent with the ambiguous granting

language, [the trial court] conclude[s] that [the DeSimones] are not

attempting to grant third parties any additional rights.”          Trial Court

Opinion, 6/11/15, at 14 (emphasis added).      Upon review, we agree.      As

discussed above, the Agreement contains general and ambiguous language

in the grant; therefore, the easement is to be construed in favor of the

grantee and in a reasonable manner. The trial court’s interpretation that the

easement permits third parties to continue to use the right of way to visit

Appellee’s home is a reasonable interpretation of the Agreement.


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      Insofar as the Kesslers’ third claim is a challenge to the weight of the

evidence, we find that this claim lacks merit. The Kesslers’ assert that the

trial court abused its discretion for failing to consider the testimony of

Attorney James Tressler and the location of the iron poles, swale, survey

pins, and landscaping on the property. The trial court was free to believe

all, none, or some of the testimony and found the testimony of John M.

Hennemuth, PLS credible along with the survey map he used. See Haan,

103 A.3d at 70; see also Trial Court Opinion, 6/11/15, at 16; DeSimones’

Exhibit 1. Therefore, we find that the trial court did not abuse its discretion

when it denied the Kesslers’ challenge to the weight of the evidence. The

Kesslers’ claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017




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