J-S04017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT A. MYRICK,                              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                    v.

SHIRLEY L. MACK, SANDRA ALTING AND
ROBERT L. DEEDS, JR.,

                          Appellees                 No. 713 MDA 2014


              Appeal from the Judgment entered May 14, 2014,
               in the Court of Common Pleas of Berks County,
                       Civil Division, at No(s): 08-691


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 09, 2015

      Robert A. Myrick, (“Appellant”), appeals from the judgment entered in

favor of Shirley L. Mack, Sandra Alting, and Robert L. Deeds, Jr.,

(collectively “Landowners”). We affirm.

      The   trial court   set forth the   following factual and    procedural

background relative to this action:

            [Appellant] is the owner of a property having
      approximately 10.698 acres and located in Robeson Township,
      Berks County, Pennsylvania that he purchased from James J.
      Hartman and John A. Hartman (“[Appellant’s] Tract #1”).
      [Appellant] is also the owner by the entireties with his wife, Amy
      M. Myrick, of two additional tracts of property totaling
      approximately 46 acres and located in Robeson Township, Berks
      County, Pennsylvania. These two tracts were purchased by
      [Appellant] and his wife from George L. Weiler and Carol J.
      Weiler (“Weiler Farm”).



*Retired Senior Judge assigned to Superior Court.
J-S04017-15


            [Landowners] are owners as tenants in common of
      property having approximately 11.197 acres and located in
      Robeson Township, Berks County, Pennsylvania (“[Landowners’]
      Property #1”). [Landowners] are also owners as tenants in
      common of property having approximately 34.435 acres and
      located in Robeson Township, Berks County, Pennsylvania
      (“[Landowners’] Property #2”).

            [Landowners’] Property #1 is next to and abuts
      [Landowners’] Property #2. [Landowners’] Property #1 and
      [Landowners’] Property #2 are collectively part of Willow Springs
      Phase IV, a 17 lot subdivision (“Willow Subdivision”).
      [Landowners’] Property #1 abuts and is directly next to
      [Appellant’s] Tract #1.       [Appellant] argues in the above
      docketed action that he has an implied easement from his
      property, [Appellant’s Tract] #1, which he individually owns,
      over [Landowners’] properties to Zion Road by reason of a
      common ownership of all the properties by Joseph Espenship in
      1836. This Court held a nonjury trial on the issue of whether
      [Appellant] has an implied easement over [Landowners’]
      properties and issued a Verdict on January 24, 2014, finding
      [Appellant] does not have an easement over [Landowners’]
      properties. On February 20, 2014, [Appellant] filed a Notice of
      Appeal of this Court's decision and subsequently, filed a Concise
      Statement of Errors Complained of on Appeal on March 17,
      2014. This appeal was premature as this Court had not ruled on
      [Appellant’s] post-trial motions. On April 9, 2014, this Court
      denied [Appellant’s] Motion for Post Trial Relief and [Appellant]
      then filed another Notice of Appeal of this Court's April, 9, 2014
      Order denying post trial relief. The Superior Court issued an
      Order on May 8, 2014 directing [A]ppellant to enter judgment
      and the notice of appeal previously filed to be treated as filed in
      this case after the date of entry of judgment. Judgment on this
      Court's verdict in favor of [Landowners] and against [Appellant]
      was entered on May 14, 2014.

Trial Court Opinion, 7/28/14, at 1-2.

      Appellant presents the following seven issues for our review:

      1. The Court erred in making no findings as to the existence of
      the dominant and servient tenement at the time of separation of
      title, nor on the necessity that existed at that time, nor that the
      Appellant’s property was landlocked and an implied easement

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J-S04017-15


     across the servient tenement property was necessary to the
     beneficial enjoyment of the Appellant’s property.

     2. The Judge's decision and verdict that there was no implied
     easement across [Landowners’] property was contrary to the
     weight and sufficiency of the evidence presented and proven at
     trial.

     3. The Judge's decision and verdict completely ignored the
     opinion of the expert witness that an easement by implication
     existed at the time of the severance of title, was for the benefit
     of the dominant tenant and burdened the servient tenant, that
     visible lanes showed passage from the dominant tenement
     across the servient tenement that were there for many years
     and the servient tenement should provide access to the
     dominant tenement.

     4. The Judge erred in considering that [Appellant’s] 10.667 acres
     had legal access to the public road via jointly held property of
     [Appellant] and Mrs. Myrick when their jointly held property was
     not the servient tenement (and was never part of the chain of
     the Espenship property prior to 1836) and erred by not allowing
     later additional evidence found of the Penn family real estate
     patent in the 1700s which verifies that the jointly held Myrick
     property was never part of the Espenship property.

     5. The Judge, as raised by Post Trial motion, should have had a
     view of the property to determine whether or not there were
     equitable principles that would allow the easement by
     implication.

     6. The Judge incorrectly ruled that proof of an implied easement
     created by severance of title was dependent on continuous use,
     and actual or constructive notice, rather than the test of
     "reasonable necessity."

     7. The Trial Judge erred in implicitly ruling that the Hartman
     (now [Appellant’s]) property was not landlocked because
     [Appellant] and Mrs. Myrick could grant an easement across
     their land to the public road, even though their jointly held
     property was not the servient tenement, and the implied
     easement was only particular to and ran with the land (the
     10.678 tract for its benefit) and burdened only the Deeds
     property.



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Appellant’s Brief at 3-5.      Appellant did not separate his argument into

separate sections corresponding to the seven issues he raises on appeal.

Therefore, since Appellant has discussed his issues in a singular fashion, we

shall likewise address them together.

      We recognize:

           [A]ppellate review of equity matters is limited to a
      determination of whether the chancellor committed an error of
      law or abused his discretion. The scope of review of a final
      decree in equity is limited and will not be disturbed unless it is
      unsupported by the evidence or demonstrably capricious.

Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000) (internal citation

omitted). Moreover,

             [The] 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 on appeal absent error of law or abuse
      of discretion. When this court reviews the findings of the trial
      judge, the evidence is viewed in the light most favorable to the
      victorious party below and all evidence and proper inferences
      favorable to that party must be taken as true and all unfavorable
      inferences rejected.

PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001)

(internal citation omitted).   Framing our analysis within the context of the

foregoing standards, and finding no trial court error of law or abuse of

discretion, we affirm the trial court’s judgment in favor of Landowners.




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      In a case where we found that an easement by implication at

severance of title did exist over an appellant-landowner’s property, we

explained the following relevant principles:

         In Burns Manufacturing v. Boehm, 467 Pa. 307, 313-14, 356
      A.2d 763, 767 (1976), our Supreme Court stated:

         It has long been held in this Commonwealth that although
         the language of a granting clause does not contain an
         express reservation of an easement in favor of the grantor,
         such an interest may be reserved by implication, and this
         is so notwithstanding that the easement is not essential for
         the beneficial use of the property. See, e.g., Tosh v.
         Witts, 381 Pa. 255, 258, 113 A.2d 226 (1955);
         Philadelphia Steel Abrasive Co. v. Gedicke Sons, 343 Pa.
         524, 528, 23 A.2d 490 (1942); Nauman v. Treen Box Co.,
         280 Pa. 97, 100, 124 A. 349 (1924); Liquid Carbonic Co.
         v. Wallace, 219 Pa. 457, 459, 68 A. 1021 (1908); Kieffer
         v. Imhoff, 26 Pa. 438, 443 (1856). See also Restatement
         of Property § 476 (1944); Powell on Real Property § 411
         (1975). The circumstances which will give rise to an
         impliedly reserved easement have been concisely put by
         Chief Justice Horace Stern speaking for the Court in Tosh
         v. Witts, supra:

         “[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 case may be, and this is irrespective of whether or not
         the easement constituted a necessary right of way.” Tosh
         v. Witts, supra, 381 Pa. at 258, 113 A.2d at 228.

      Burns, at 313, 356 A.2d at 767 (footnote omitted). In a
      footnote, our Supreme Court in Burns noted that easements by
      implied reservation…are based upon 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.” Id. [at
      313 n.4, 356 A.2d at 767 n. 4].

         In Mann-Hoff v. Boyer, 413 Pa.Super. 1, 604 A.2d 703
      (1992), this Court stated:

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       Although the [Supreme Court's discussion in Burns]
       conveys a brief summary of the concept of easement by
       implication, other Pennsylvania cases not cited by the trial
       court provide a much more detailed description of this
       concept. We find the following statement of the proper
       method of analyzing a claim of easement by implication
       particularly elucidating:

          In deciding whether an easement has been created by
          implication, the Pennsylvania courts have used two
          different tests, the traditional test and the Restatement
          test.

          The traditional test has been described as follows:
          “Three things are regarded as essential to create an
          easement by implication on the severance of the unity
          of ownership in an estate; first, a separation of title;
          second, that, before the separation takes place, the use
          which gives rise to the easement, shall have been so
          long continued, and so obvious or manifest, as to show
          that it was meant to be permanent; and third, that the
          easement shall be necessary to the beneficial
          enjoyment of the land granted or retained. To these
          three, another essential element is sometimes added,-
          that the servitude shall be continuous and self-acting,
          as distinguished from discontinuous and used only from
          time to time.”

       [Becker v. Rittenhouse], [297 Pa. 317] at 345, 147 A. [51]
       at 53. See also DePietro v. Triano, 167 Pa.Super. 29, 31-
       32, 74 A.2d 710-11 (1950).

          The view expressed in the RESTATEMENT OF PROPERTY
       § 474 [sic] and expressly adopted in Pennsylvania in
       Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976),
       “emphasizes a balancing approach, designed to ascertain
       the actual or implied intention of the parties. No single
       factor under the Restatement approach is dispositive.
       Thus, the Restatement approach and the more restrictive
       tests ... co-exist in Pennsylvania.” Id. at 5 n. 2, 359 A.2d
       at 400 n. 2. See also Lerner v. Poulos, 412 Pa. 388, 194
       A.2d 874 (1963); Schwoyer v. Smith, 388 Pa. 637, 131
       A.2d 385 (1957); Spaeder v. Tabak, 170 Pa.Super. 392,
       85 A.2d 654 (1952).

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J-S04017-15



     Mann-Hoff, 604 A.2d at 706-07. See also Possessky v. Diem,
     440 Pa.Super. 387, 655 A.2d 1004 (1995). In a footnote, the
     Mann-Hoff court further noted that the discussion in Burns did
     not require that the proponent of an easement by implication
     show that the claimed easement was “necessary”. Id. at 708 n.
     4.

                                   ***

          Our Supreme Court’s most recent discussion of easements
     by implication at severance of title appears in Bucciarelli v.
     DeLisa, 547 Pa. 431, 691 A.2d 446 (1997). []

                                   ***

            Our Supreme Court granted allowance of appeal to
     determine whether an easement by implication was created at
     the time of severance of title and whether DeLisa had actual
     notice of the existence of the right of way over the property
     when he purchased it. Answering the second issue first, the high
     court, while agreeing that the trial court did not specifically find
     facts to support its conclusion that an easement by implication at
     severance of title was created, nevertheless held that the trial
     court had made sufficient factual findings to support its
     conclusion that DeLisa had actual notice of the existence and use
     of Cottage Road prior to his purchase of the twenty-acre tract
     from Raymond.

          Our Supreme Court found this prior use important to the
     determination of whether an implied easement was created
     because:

        The effect of the prior use as a circumstance in implying,
        upon a severance of possession by conveyance, an
        easement results from an inference as to the intention of
        the parties. To draw such an inference the prior use must
        have been known to the parties at the time of the
        conveyance, or, at least, have been within the possibility
        of their knowledge at that time. 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

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J-S04017-15


       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....

     Bucciarelli, at 436, 691 A.2d at 448 (quoting Restatement of
     Property, § 476, Comment j). In a footnote, the high court
     noted that while it “has never specifically adopted Restatement
     of Property § 476 and we decline to do so now, for § 476 is
     merely a list of frequently encountered considerations as to
     whether an easement by implication at severance of title was
     created. Courts may, nevertheless, find the section useful and
     persuasive in analyzing cases like this.” Id. at 437 n. 1, 691
     A.2d at 448 n. 1.

           Our Supreme Court then quoted the language of Burns,
     supra, and determined that all of the requirements of an
     easement by implication at severance of title were present in
     Bucciarelli. With regard to the parties' intent, the high court
     found that Mrs. Keene and Raymond clearly intended the
     easement to continue.      In support of this conclusion, the
     Bucciarelli court noted that not only did Raymond assist his
     mother in creating the subdivision plan, but he also allowed the
     owners of the lakeside lots to use Cottage Road during the time
     period in which he owned the twenty-acre tract. The Bucciarelli
     court then considered whether the use of Cottage Road was
     open, visible, permanent and continuous. Relying primarily upon
     photographic evidence of record, as well as the testimony of
     DeLisa's neighbor who testified that he could see the road from
     his nearby property, the high court concluded that use of the
     easement was open, visible and permanent.

           With regard to the requirement that the use be continuous,
     the court first noted the testimony of various witnesses that
     indicated that Cottage Road had been used as early as 1976, as
     well as DeLisa's own testimony that he had seen cars use the
     road over the last ten years to get to the lakeside cottages. The
     high court referenced a treatise for the proposition that:

       The requirement that the quasi-easement must have been
       “permanent” or “continuous” simply means that the use
       involved shall not have been occasional, accidental or
       temporary. This means the use shall have been of such a
       character as to enable the claimant to rely reasonably
       upon the continuance of such use.... It is submitted that ...


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        any well-defined route should be held to satisfy the
        “permanent” or “continuous” prerequisite for implication.

     Bucciarelli, at 439, 691 A.2d at 449-450 (citing 4 Powell on Real
     Property § 34.08[2][c] (1996)). The Bucciarelli court stated its
     agreement with this analysis of the continuous requirement and
     held that the road at issue in the case before it, a single lane dirt
     road that was approximately twenty feet wide and had been in
     existence for at least twenty years, was well-defined and
     permanent, and that the evidence, therefore, was sufficient to
     support a finding of continuousness.

           Summarizing     its   conclusions,   the    Bucciarelli   court
     concluded that:

        The requirements stated above have as their purpose the
        creation of a test to determine whether an easement was
        intended at severance and whether the person against
        whom the easement is asserted had notice, actual or
        constructive, that such an easement existed. In this case,
        the trial court found that DeLisa had actual notice and the
        record supports this finding. Additionally, the evidence
        supports a finding that the grantor, Mrs. Keene, intended
        to create an easement at severance of the title and that
        the grantee, her son, was aware of this intent and, after
        the conveyance, acted in accord with the existence of the
        easement.

        Thus, since the evidence supports a finding of intention to
        create the easement and a finding that DeLisa purchased
        the land knowing of the existence of the easement, an
        easement by implication at severance was created and is
        binding against DeLisa.

     Bucciarelli, at 439-40, 691 A.2d at 450. Thus, our Supreme
     Court reversed this Court's disposition and reinstated the order
     of the trial court that permanently enjoined DeLisa from
     interfering with the use of Cottage Road by the owners of the
     lakeside properties.

Daddona v. Thorpe, et al., 749 A.2d 475, 480-484 (Pa. Super. 2000).




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      Here, in granting judgment in favor of Landowners and against

Appellant, the trial court explained:

            This Court held a trial and has concluded that the
      circumstances for the finding of an implied easement in favor of
      [Appellant] do not exist beyond the common ownership of the
      properties in 1836. Joseph Espenship owned a 120 acre farm in
      1836 that included the current [Appellant’s] Tract #1 and
      [Landowners’] Properties #1 and #2.           Joseph Espenship
      subdivided and sold the property on or about April 1, 1836 to
      several different owners.      The properties that were sold
      underwent several sales and were in different ways recombined
      over the course of years to the present day. At present, there
      are no improvements in place on [Appellant’s] Property #1 and
      [Landowners’] Properties #1 and #2. The properties are all
      wooded lots. Proving the intent of the original owner is nearly
      impossible and no credible evidence was presented at trial
      proving any intent.

             [Appellant] contends there was a visible path that
      traversed [Landowners’] property, the servient tenement, that
      provided access to [Appellant’s Tract] #1, both at severance of
      title and currently. Whether there was any defined driveway,
      road or other access between the properties prior to the time of
      the severance in 1836 is unknown. There is no reference in the
      deeds for [Landowners’] Properties #1 and #2. [Landowners]
      credibly stated they had no knowledge of any defined driveway,
      road or otherwise for access from [Appellant’s Tract] #1 over
      and through [Landowners’ Properties] #1 and #2. This Court
      finds credible [Landowners’] argument that [Appellant] has other
      means of accessing his property by use of other connecting
      properties in which he has an ownership interest.            It was
      established that throughout the course of this litigation,
      [Appellant] has requested an easement at several locations.
      This lends credibility to the argument that no fixed, visible, open,
      and continuously used easement exists.

              Additionally, [Appellant’s] expert testified that there is no
      express easement in favor of [Appellant’s Tract] #1 in the chain
      of title for the collective properties. [Appellant] himself admitted
      at trial that he has not used [Landowners’] properties for access
      to [Appellant’s Tract] #1.          This Court finds credible the
      testimony that [Appellant] has two possible points of access to

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      [Appellant’s Tract] #1 through the use of properties he jointly
      owns with his wife. [Appellant] argues that the other access
      points are not viable because of the length of the driveways that
      would be needed and the cost to construct them. Put simply,
      [Appellant] attempts to use the difference in ownership of his
      properties to advance the argument that [Appellant’s Tract] #1
      is landlocked and any access they would have through their
      Weiler Farm property would cease to exist if [Appellant] and his
      wife decided to sell the Weiler Farm property. This Court does
      not find this argument convincing because [Appellant’s] expert
      testified at trial that any access over the Weiler Farm property
      could be expressly reserved as an easement if the Weiler Farm
      property was ever sold.

            [Appellant] has not used [Landowners’] property at
      anytime to gain access to Zion Road since [Appellant’s]
      ownership began in 2006. Furthermore, no one has used any
      means of access through [Landowners’] property since 1990,
      when [Landowners’] took ownership of their property.          No
      credible evidence was presented at trial proving that
      [Landowners] had any kind of actual or constructive notice of an
      easement over their properties to [Appellant’s Tract] #1.

             As counsel for [Landowners] cites, “[w]here an alleged
      easement is not the subject of a deed, grant or conveyance, duly
      recorded, and is not open, apparent, or visible, it cannot be
      enforced against subsequent innocent purchasers of the servient
      tract unless it is proven and established that the purchasers had
      actual notice that the property was subject to the servitude.”
      Fidelity-Philadelphia Trust Co., 67 Pa. D.&C. at 360.

            This Court is persuaded by [Landowners’] assertion that
      they were innocent purchasers of property against which
      [Appellant] wants to fix an easement even though there is a lack
      of credible evidence that anything physically exists in that
      regard. The tendency of the courts is to discourage implied
      grants of easements, since the obvious result, especially in
      urban communities, is to fetter estates and retard building and
      improvements, and is in violation of the policy of the recording
      acts. Becker v. Rittenhouse, 297 Pa. 317, 325-326, 147 A. 51,
      21 (1929). [Landowners] did not close an existing driveway or
      long existing road used for access to [Appellant’s Tract] #1. []

Trial Court Opinion, 7/28/14, at 4-6.


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      Based on our review of the record, and consonant with Daddona and

the relevant authorities cited therein, we affirm the trial court’s judgment in

favor of Landowners and against Appellant because Appellant is not entitled

to an easement. We recognize that, as noted in Daddona, it would not be

dispositive of this appeal whether the easement is “essential to the beneficial

use of the property,” or even a “necessary right-of-way.”       Daddona, 749

A.2d at 480 citing Burns, 356 A.2d at 767.      By contrast, significant to our

disposition are the credibility determinations and factual findings of the trial

court, which are not contradicted by our review of the record, regarding the

use of the purported easement. In Daddona, we reiterated that “the use

which gives rise to the easement, shall have been so long[,] continued, and

so obvious or manifest, as to show that it was meant to be permanent …

[and that] another essential element is sometimes added, that the servitude

shall be continuous and self-acting, as distinguished from discontinuous and

used only from time to time.” Daddona, supra, at 481 citing inter alia

Becker, 147 A. at 53.     Further, the Daddona Court, citing Bucciarelli,

explained that the requirement of “‘permanent’ or ‘continous’ [use] simply

means that the use involved shall not have been occasional, accidental, or

temporary.”   Daddona, 749 A.2d at 484 citing Bucciarelli 691 A.2d at

449-450.

      Here, we do not find that Appellant’s request for an easement meets

the use element.      Appellant “has not used [Landowners'] property at

anytime to gain access to Zion Road since [Appellant’s] ownership began in

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2006.     Furthermore, no one has used any means of access through

[Landowners’] property since 1990, when [Landowners] took ownership of

their property.” Trial Court Opinion, 7/28/14, at 5-6. Further, the trial court

did not find “credible evidence … proving that [Landowners] had any kind of

actual or constructive notice of an easement over their properties to

[Appellant’s Tract] #1.” Id. at 6 (emphasis added).

        In addition, Appellant’s request for an easement does not meet the

intent element to establish his entitlement to the easement. In contrast to

Bucciarelli, where the party contesting the easement had specifically

allowed the land to be used by the property owners seeking the easement,

Landowners have never expressly agreed to allow Appellant such use of their

land, despite discussions regarding Appellant’s requests for an easement.

See Bucciarelli, 691 A.2d at 438. Therefore, consonant with the foregoing

authorities, we affirm the trial court’s judgment in Landowners’ favor and

against Appellant.

        We further find Appellant’s remaining claims of trial court error are

without merit. Appellant’s sufficiency challenge is waived because he failed

to seek a directed verdict at trial. See N.T., 12/16/13, at 41; 54; see also

Haan v. Wells, 103 A.3d 60, 68 (Pa. Super. 2014) (internal citation

omitted) (“Hence, it is clear that, in order to preserve a challenge to the

sufficiency of the evidence, [appellants] first were required in this non-jury

trial to move … for a … directed verdict.       [Appellants] did not do so.




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Consequently, any of [appellants’] challenges purporting to challenge the

sufficiency of the evidence … are waived.”).

        As to Appellant’s weight challenge, we deny the same, and recognize:

        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, supra, at 70. Our denial of Appellant’s weight claim acknowledges

the trial court’s role as the fact-finder in this non-jury trial, and the

deference to which the trial court is entitled.           Brown v. Progressive

Insurance Co., 860 A.2d 493, 497 (Pa. Super. 2004) (internal citation

omitted) (“Concerning questions of credibility and weight accorded evidence

at trial, we will not substitute our judgment for that of the finder of fact.”).

        Moreover, the trial court’s determination not to view the property is

akin to the admission of evidence, which the trial court had the discretion to

decline to perform, and which we find no basis to disturb. See American

Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa. Super. 2005).

        Our review of the record further refutes Appellant’s contention that the

trial   court   “completely    ignored   the   opinion   of   the   expert   witness.”

Appellant’s Brief at 4.       Appellant’s claim that the trial court ignored expert

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testimony is belied by the trial court’s reference in its opinion to Appellant’s

expert’s testimony.   See Trial Court Opinion, 7/28/14, at 5 (“[Appellant’s]

expert testified that there is no express easement in favor of [Appellant’s

Tract] #1 in the chain of title for the collective properties.”).      Further,

Appellant discounts that the trial court, as the fact finder in this non-jury

case, “is entitled to reject any and all evidence…” Neison v. Heimes, 653

A.2d 634, 636-37 (Pa. 1995) (internal citations omitted); see Randt v.

Abex Corp., 671 A.2d 228, 234 (Pa. Super. 1996) (internal citations

omitted) (“A [fact- finder] is entitled to believe all, part, or none of the

evidence presented.     A [fact-finder] can believe any part of a witness'

testimony that they choose, and may disregard any portion of the testimony

that they disbelieve. Credibility determinations are for the [fact-finder]. A

new trial should not be granted on a mere conflict in the testimony.”).

      Finally, we reject Appellant’s argument that the trial court erred “by

not allowing later additional evidence found of the Penn family real estate

patent in the 1700s which verifies that the jointly held [Appellant] property

was never part of the Espenship property.”            Appellant’s Brief at 4.

Appellant’s assignment of trial court error is without merit as “[a]dmission of

evidence is within the sound discretion of the trial court and we review the

trial court’s determinations regarding the admissibility of evidence for an

abuse of discretion,” which the record does not reflect in this case.

American Future Systems, 872 A.2d at 1212 (Pa. Super. 2005).




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J-S04017-15



     In sum, we do not find any error of law or abuse of discretion in the

trial court’s determination that Appellant is not entitled to an implied

easement at severance of title over Landowners’ properties. We thus affirm

the trial court’s judgment against Appellant and in favor of Landowners.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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