J-E01005-16

                              2016 PA Super 152

BLACKWOOD, INC.,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

READING BLUE MOUNTAIN & NORTHERN
RAILROAD COMPANY,

                         Appellee                    No. 1633 MDA 2014


               Appeal from the Order Entered August 29, 2014
              In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S-3238-08


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.

OPINION BY BOWES, J.:                                  FILED JULY 15, 2016

     Blackwood, Inc. (“Blackwood”) appeals from an August 29, 2014 order

entering summary judgment in favor of Reading Blue Mountain & Northern

Railroad Company (“Blue Mountain”) in this quiet title action and denying

Blackwood’s motion to amend its complaint.        We reverse the trial court’s

refusal to permit Blackwood to amend its complaint.

     On November 6, 2008, Blackwood instituted this lawsuit claiming title

to land underlying railroad tracks owned by Blue Mountain.         Preliminary

objections were sustained to the original complaint as well as to four

subsequent ones. Blackwood’s fifth amended complaint, which was filed on

January 4, 2011, survived Blue Mountain’s preliminary objections. Therein,

Blackwood averred it owned a 2,300 acre tract of land situated in Reilly
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Township that was dissected by railroad tracks running “East and West by

the rail line of the Reading Blue Mountain and Northern Railroad Company.”

Fifth Amended Complaint, 1/4/11, at ¶ 6. Based upon a title examination,

Blackwood claimed that there was no document of record conferring title to

the land under these tracks to Blue Mountain and that Blackwood thereby

owned it, as set forth in its chain of title outlined in the complaint.

        Blackwood averred that Blue Mountain was asserting ownership to the

real estate under its railroad tracks pursuant to two recorded deeds: 1) a

deed dated March 29, 1976, between grantors Andrew L. Lewis, Jr. and

Joseph A. Castle, as trustees in bankruptcy of Reading Company, to grantee

Consolidated Rail Corporation (“Conrail”), and 2) a deed dated December 14,

1990, wherein Conrail granted the same lands described in the March 29,

1976 deed to Blue Mountain. Reading Company, Blackwood averred, never

possessed title to the land and therefore did not transfer title to real estate

underneath the tracks to Conrail pursuant to the 1976 deed.               In its fifth

amended complaint, Blackwood set forth that Blue Mountain did not own any

land under any railroad tracks that Blue Mountain operated on Blackwood’s

land.

        After Blue Mountain responded, Blackwood filed a motion for summary

judgment, again asserting ownership of land under railroad tracks running

“generally East and West by the rail line of the Reading Blue Mountain and

Northern Railroad Company (the "Railroad").”          Plaintiff Blackwood, Inc.'s

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Motion For Summary Judgment Pursuant To Pa.R.C.P. 1035.1, et seq.,

8/26/13, at ¶ 6. Blue Mountain answered Blackwood’s motion for summary

judgment and filed a cross motion for summary judgment, as follows. Blue

Mountain     reported   that   it   actually   owned   three   railroad   tracks   on

Blackwood’s 2,300 acres rather than just the one running east and west,

which Blue Mountain noted was called both the Tremont Extension and the

West End Branch.        The other two lines were offshoots of the Tremont

Extension and were known as the Swatara Branch and the Middle Creek

Extension.     Blue Mountain’s cross motion for summary judgment claimed

ownership of the land under all three of its railroad lines on Blackwood’s

surrounding acreage.

         Blue Mountain established ownership by proving the following facts.

Mine Hill and Schuylkill Haven Railroad (“Mine Hill Railroad”) built all three

sets of tracks. Mine Hill Railroad was created by an Act of the Pennsylvania

General Assembly on March 24, 1828, which has not been repealed and will

be referred to as Act 96. Act 96 accorded Mine Hill Railroad the power to

take title to land in fee simple by eminent domain in order to build railroad

lines to mining operations in the area.         The Pennsylvania legislature later

enacted supplemental legislation authorizing Mine Hill to extend its existing

lines.    Mine Hill Railroad constructed the three rail routes at issue in this

litigation pursuant to these legislative acts authorizing Mine Hill Railroad to

exercise eminent domain powers.          Blue Mountain’s Motion for Cross Motion

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for Summary Judgment, 1/29/14, at ¶¶ 52-64, Exhibit F at ¶¶ 8-14. In

1845, Mine Hill constructed the seven-and-a-half-mile stretch of east-west

track, then known as the Tremont Extension. Id. Exhibit F at ¶¶ 13, 15. In

November 1850, Mine Hill built the three-mile branch line on the Tremont

Extension that ran north-northwest and became known as the Swatara

Branch. Id. Exhibit F at ¶ 17. In 1851, Mine Hill added another extension

running from the Swatara Branch in a westerly direction, which was labeled

the Middle Creek Extension. Id. Exhibit F at ¶ 18. Over time, the Tremont

Extension became known as the West End Branch.         Id. Exhibit F at ¶ 21.

Portions of the West End Branch, Swatara Branch, and Middle Creek

Extension were laid over the 2,300 acres now owned by Blackwood.           Id.

Exhibit F at ¶¶ 13-18.

      Mine Hill Railroad owned and operated these three lines continuously

until May 1864, when they were leased to the Philadelphia and Reading

Railroad. Id. Exhibit F at ¶ 20.     In 1924, the Philadelphia and Reading

Railroad became known as the Reading Company.          Id.   In October 1951,

Reading Company purchased all of the remaining shares of Mine Hill Railroad

stock in private hands and merged Mine Hill Railroad into Reading Company.

Id. Exhibit F at ¶ 24. Thus, Reading Company became the owner of all of

Mine Hill Railroad’s tracks in October 1951.      Under the aforementioned

deeds described by Blackwood in its fifth amended complaint, Reading

Company sold its railroad tracks to Conrail in 1976, and Conrail, in turn, sold

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these three rail lines in 1990 to Blue Mountain. Id. Exhibit F at ¶ 29. The

lines have been in constant use by these various railroads from 1951 until

the present day.

      On May 16, 2014, approximately one week before the date scheduled

for oral argument on the cross-motions for summary judgment, Blackwood

filed a motion requesting leave to amend its fifth amended complaint.      It

asked to assert, in the event that the trial court granted Blue Mountain’s

cross motion for summary judgment, a right to between three and five

private crossings, depending on whether a public crossing still existed, over

Blue Mountain’s rail lines. By order dated August 29, 2014, the trial court

denied Blackwood’s motion for summary judgment, granted Blue Mountain’s

cross motion for summary judgment, and denied Blackwood’s motion for

leave to amend the fifth amended complaint.

      On September 26, 2014, Blackwood filed a timely notice of appeal.

Before a three-judge panel of this Court, Blackwood raised two challenges.

Blackwood’s first issue was that the trial court incorrectly determined that

Blue Mountain had title to the land under its three railroad tracks. It also

argued that it should have been accorded the right to amend its complaint to

assert a statutory right to private crossings over the rail lines.

      Regarding its first position, Blackwood contended that Blue Mountain

proffered no evidence that Mine Hill Railroad ever complied with the

requirements of Act 96 to obtain ownership by eminent domain of the land

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beneath the three railroad tracks.     We rejected that position based upon

established legal principle that, after a lapse of twenty years, a railroad may

base its claim to title on the presumption that “the land was paid for, or that

there was some form of written grant which has since become lost.” Coxe

v. Lehigh Valley R.R. Co., 158 A.2d 782, 786 (Pa. 1960); see also

Brankin v. Phila., Newtown & N.Y. R.R. Co., 133 A. 563, 564 (Pa. 1926)

(“[T]here is, nevertheless, the presumption, after 20 years from the time the

right to the damages accrued, that they have been paid.”). We thus ruled

that Blue Mountain established that there was no genuine issue of material

fact that, as of 1976, Reading Company was the legal title holder to the land

underlying all three branches at issue and transferred that ownership to

Conrail, which deeded it to Blue Mountain.          The panel also ruled that

Blackwood should have been accorded the right to amend its complaint to

assert a claim that it had a right to one private crossing over the tracks.

      Re-argument was granted by the court en banc, and Blackwood now

raises one position, having abandoned its claim to ownership of the land:

             Whether the trial court abused its discretion in denying
      Blackwood's motion to amend its pleadings so that, in the event
      the trial court ruled in favor of the railroad on its counterclaim to
      quiet title, Blackwood could have its claim for the statutory right
      to private crossings over the rail lines adjudicated?

Appellant’s Substitute Brief on Re-argument at 4.

      Under Pa.R.C.P. 1033, a party can amend his pleading either with the

consent of the other party or with the court’s permission. “Leave to amend

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lies within the sound discretion of the trial court and the right to amend

should be liberally granted at any stage of the proceedings unless there is an

error of law or resulting prejudice to an adverse party.” Hill v. Ofalt, 85

A.3d 540, 557 (Pa.Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d

1331, 1338 (Pa. 1996)). Under the pertinent rule:

        A party, either by filed consent of the adverse party or by
     leave of court, may at any time change the form of action, add a
     person as a party, correct the name of a party, or otherwise
     amend the pleading.           The amended pleading may aver
     transactions or occurrences which have happened before or after
     the filing of the original pleading, even though they give rise to a
     new cause of action or defense. An amendment may be made to
     conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033.   However, amendment is not permitted to present a new

cause of action where the statute of limitations has expired. See Phillips v.

Lock, 86 A.3d 906 (Pa.Super. 2014).

     Generally, an abuse of discretion occurs if a complaint is dismissed

without leave to amend.     Hill, supra.   “There may, of course, be cases

where it is clear that amendment is impossible and where to extend leave to

amend would be futile. However, the right to amend should not be withheld

where there is some reasonable possibility that amendment can be

accomplished successfully.” Id. at 557 (citation and emphasis omitted).

     The trial court ruled that Act 96 applies only to private crossings

rendered necessary when it was enacted.      It also held that the statute of

limitations on the cause of action had expired since Act 96 imposed a six-



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month limitation on asserting such a claim.     Finally, the trial court opined

that the late amendment was prejudicial to Blue Mountain.        We therefore

examine whether: 1) Act 96 permits Blackwood to plead a cause of action

for private crossings; 2 Act 96 contains a six-month time bar for presenting

such a claim; and 3) the trial court correctly concluded that Blue Mountain

would have been prejudiced by the amendment.

      We first examine the provision of Act 96 upon which Blackwood relies,

§ 18, providing (emphases added):

             Sect. 18 And be it further enacted by the authority
      aforesaid, That for the accommodation of all persons owning or
      possessing land through which the said rail road may or shall
      pass, and to prevent inconveniences to such person in crossing
      or passing the same, it shall be the duty of the said company
      when required, to make, or cause to be made, a good and
      sufficient causeway or causeways, wherever the same shall
      be necessary, to enable the occupant or occupants of said
      lands, to cross or pass over or under the same with wagons,
      carts, and implements of husbandry, as the occasion may
      require: Provided, That the said company shall in no case be
      required to make , or cause to be made, more than one
      such causeway through each plantation or lot of land, for the
      accommodation of any one person owning or possessing land
      through which the said rail road may or shall pass, and where
      any public road shall cross said rail road, the person
      owning or possessing land through which the said road
      shall pass, shall not be entitled to make such requisition
      on said company . . . .


      Act 96 of the Session of 1827-1828, enacted March 14, 1828.          The

statute has not been repealed. It thus creates a cause of action for a private

crossing.   In light of the history of this lawsuit, we carefully set forth the



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parameters of such an action by examining the above-emphasized language.

First, Act 96 plainly states that a private crossing must be constructed by the

railroad only if it is necessary. Hence, in order to prevail, Blackwood must

prove that a private crossing is necessary within the meaning of Act 96.

      The second emphasized portion of Act 96 is clear and unequivocal. As

the entity owning land through which the tracks pass, Blackwood can obtain

only one private crossing. Blackwood’s position in its request to amend was

that it was entitled to between three and five private crossings.          This

assertion is wholly unsupported by the terms of Act 96.        That enactment

provides that a railroad is required to build no more than one private

crossing for the accommodation of any one person owning land over which

the railroad tracks traverse. Blackwood’s fifth amended complaint pertained

solely to the Tremont Extension a/k/a the West End Branch, which dissects

its property into northern and southern sections. Blackwood, as the owner

of land over which the railroad tracks in question traverse, is permitted to

amend the complaint to assert its potential entitlement to a single private

crossing.

      Finally, under the third emphasized portion of § 18, a landowner can

obtain a private crossing only if there is not a public crossing on its land. In

its request to amend its fifth amended complaint, Blackwood outlined that

there might be a public crossing on its land over the railroad tracks.

Blackwood’s Motion for Leave to Amend its Fifth Amended Complaint,

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5/16/14, at ¶ 18 (emphasis added) (“Section 18 of the Act of 1828 requires

[Blue Mountain] to afford Blackwood a minimum of three (3) private

crossings, and potentially five (5) private crossings, depending upon

whether or not Public Crossing DOT #592007F still exists.”).

Blackwood can prevail on its claim to a private crossing, under the express

language of § 18, only if there is no public crossing on its land.         In

conclusion, Blackwood can assert a cause of action for one private crossing,

seeking to establish that there is no public crossing, and that such private

crossing is necessary, as envisioned by Act 96.

      We cannot agree with the trial court’s position that the right to a

private crossing under the still-extant statute must be ascertained under the

circumstances existing when the railroad tracks were built.       Under this

reasoning, if a public crossing on a landowner’s property was in existence

when the tracks were built, the landowner would have had no right to a

private crossing. If the public crossing were then removed, the landowner

might be entitled to a private crossing under a necessity standard if the lack

of a public crossing denied the landowner access to his property due to the

existence of the railroad tracks. Under this scenario, a cause of action for a

private crossing would arise when the public crossing became unavailable to

the landowner.

      We now address the statute of limitations issue.        Blue Mountain

asserts that there is a six-month statute of limitations based upon § 19 of

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Act 96, which states (emphases added): “That no suit or action shall be

brought or prosecuted by any person or persons for penalties incurred

under this act, unless said suit or action, shall be commenced within six

months next after the offence shall have been committed, or the cause of

action shall have accrued.” The Act itself imposes certain penalties. See Act

96 §§ 7, 17, 24.      We concur with Blackwood that this language clearly

applies only to penalties incurred under the Act. A right to a private crossing

is not a penalty, and § 19 is inapplicable to the right to bring a cause of

action for a private crossing created in § 18. See 1 Pa.C.S. § 1929 (“The

provision in any statute for a penalty or forfeiture for its violation shall not

be construed to deprive an injured person of the right to recover from the

offender damages sustained by reason of the violation of such statute.”).

      Nevertheless, the fact that the legislative provision itself does not

contain a statute of limitations for a cause of action for a private crossing

does not mean there is no applicable statute of limitations. It appears that,

in the absence of another pertinent statute of limitations, 42 Pa.C.S. §

5527(b) would apply.        Section 5527(b) states: “Any civil action or

proceeding which is neither subject to another limitation specified in this

subchapter nor excluded from the application of a period of limitation by

section 5531 (relating to no limitation) must be commenced within six

years.”   42 Pa.C.S. § 5527(b).      Cf. Estate of Spickler v. County of

Lancaster Bd. of Com'rs, 577 A.2d 923 (Pa.Super. 1990) (no public

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crossing ever existed on railroad tracks that dissected property).       Simply

put, there is no authority in this jurisdiction for the proposition that a cause

of action created by statute has no applicable statute of limitations.     This

result would be contrary to logic and fairness.

      Thus, in order to successfully assert its claim to a private crossing,

Blackwood must establish that it sought to amend the complaint within the

applicable statutory period after its right arose. As noted, in its request to

amend the fifth amended complaint, Blackwood averred that there was a

public crossing on its land.   If that crossing still exists, Blackwood has no

right to a private one at all. However, if that public crossing is no longer in

operation, then Blackwood’s cause of action under Act 96 was triggered

when it was removed. Blackwood must be given the opportunity to establish

that its request to obtain a private crossing was timely asserted.

      The trial court herein also denied amendment based upon a finding

that Blue Mountain would have been prejudiced by the amendment since it

was sought just before argument on the motion for summary judgment. In

Capobianchi v. BIC Corp., 666 A.2d 344 (Pa.Super. 1995), we noted that

prejudice sufficient to deny amendment of the pleadings “must be more than

a mere detriment to the other party[.]” Id. at 346. Furthermore, the “fact

that the adverse party has expended time and effort in preparing to try a

case against the amending party is not such prejudice as to justify denying

the amending party leave to amend[.]”         Id. (citation omitted).   Indeed,

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“Denial of a petition to amend, based on nothing more than unreasonable

delay, is an abuse of discretion.” Id. at 347 (citation omitted).

      In the instant matter, the trial court’s finding of prejudice was

premised upon the fact that amendment was sought just as the case was

going to be decided by summary judgment as to title to the property under

the railroad tracks. Delay in seeking amendment, standing alone, does not

warrant denial of amendment.      Id.   Hence, the trial court committed an

abuse of discretion in concluding that amendment should not be granted due

to prejudice.

      In summary, we grant Blackwood the right to amend its fifth amended

complaint to assert a claim to a single private crossing. The trial court must

decide the applicable statute of limitations and whether Blackwood’s cause of

action was timely asserted. If the claim is timely and viable due to the lack

of a public crossing, the trial court must then determine whether a private

crossing is necessary within the meaning of § 18 of Act 96.

      We thus affirm the August 29, 2014 order to the extent that it granted

Blue Mountain’s motion for summary judgment. We reverse the order to the

extent that it denied Blackwood the right to amend its complaint.




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     Application to strike reply brief is denied. Order affirmed in part and

reversed in part. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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