J-A27017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT P. RIZZARDI                     :    IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                  Appellee             :
                                       :
             v.                        :
                                       :
                                       :
RANDAL E. SPICER                       :
                                       :
                  Appellant                No. 309 WDA 2017

                Appeal from the Order November 30, 2016
  In the Court of Common Pleas of Warren County Civil Division at No(s):
                          No. A.D. 672 of 2013


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

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 08, 2017

     Randal E. Spicer (“Spicer”) appeals from the order that granted his

motion for a compulsory nonsuit but allowed Robert P. Rizzardi (“Rizzardi”)

to access his property by crossing Spicer’s property (“the Spicer Farm”).

We affirm.

     We glean the following facts from the certified record:       In 2003,

Rizzardi bought   a   thirty-seven-and-one-half-acre   landlocked parcel   in

Warren County.     From 2003 to 2011, Rizzardi regularly accessed his

property by driving along a tractor path through the Spicer Farm with

permission from Spicer’s predecessor-in-title and father, Francis Spicer. In

2011, approximately six months after Spicer’s father deeded Spicer the farm

in 2010, Spicer withdrew permission for Rizzardi to use the tractor path

because his use of the tractor path had damaged it and the Spicer Farm.
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      Rizzardi filed an action against Spicer, setting forth claims for quiet

title, ejectment, and easement by prescription. Rizzardi claimed a right to

use the tractor path on two documents: (1) the deed from Francis Spicer to

Spicer, which expressly subjects the Spicer Farm to “all presently valid and

existing   rights   of   way,   easements,   restrictions,   covenants,   leases,

servitudes, exceptions, reservations, interest and rights of others, including

rights for utility and transmission lines, that appear of record or that are

apparent upon inspection of the above described premises.”            Amended

Complaint, 7/15/14, at Exhibit A; and (2) Pine Township Ordinance 2-1961,

which gives “landowners adjoining the vacated portion of [Township Road

627] … the right of access over the vacated portion thereof to their

respective lands.” Id. at Exhibit B. In answering the complaint, Spicer did

not dispute that Rizzardi had the right to use a township road abandoned in

1961, but he claimed the tractor path was not the abandoned road. Answer,

9/15/14, at ¶ 9; New Matter, 9/15/15, at ¶¶ 3, 21.

      The case proceeded to a two-day bench trial in August 2016.            The

evidence indicated that two, sometimes co-linear township roads crossed the

Spicer Farm.    Elk Township opened a road in December 1848 (Green Line

Road, Road Docket 2, 408) and vacated a road in March 1849 (Red Line

Road, Road Docket 2, page 417). Additionally, the border between Elk and

Pine Grove Townships was moved to the east in 1858, thus relocating

Rizzardi’s parcel from Elk Township to Pine Grove Township. By Ordinance


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2-1961, Pine Grove Township vacated the Green Line Road (Road Docket 5,

page 85) on January 21, 1961.       While Rizzardi’s expert opined that the

readily apparent tractor path was the Red Line Road, Spicer’s expert opined

that the tractor path was neither the Green Line Road nor the Red Line

Road. According to Spicer, for approximately seven hundred feet beyond his

driveway, the tractor path and the abandoned township road were co-linear;

thereafter, the Red Line Road continued north to the New York border, and

the tractor path continued northeast between the Red Line Road and the

Green Line Road.

     Relying on the Private Road Act of 1929, 36 Pa.C.S. §§ 2731–2891

(“PRA”), the trial court agreed with Rizzardi that the tractor path was “more

likely than not” the Red Line Road.     Trial Court Opinion, 10/3/16, at 3.

Because the Red Line Road predated the PRA, the trial court did not consider

the tractor path a private road subject to use by Rizzardi.       Contrarily,

because the Green Line Road post-dated the PRA, the trial court considered

it a private road and usable by Rizzardi.   Rizzardi testified that he would

maintain the Green Line Road, and Spicer testified that he would accept the

use of the Green Line Road, but stated that he would prefer Rizzardi gain

entry to his property from the eastern side. The trial court entered an order

granting Rizzardi the right to use the Green Line Road to access his property

without requiring access from a specific direction. Order, 10/3/16.




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      Both parties filed post-trial motions, which the trial court denied on

January 17, 2017.      Spicer filed the instant appeal, and he, along with the

trial court, complied with Pa.R.A.P. 1925.

      On appeal, Spicer states the following questions for our consideration:

      1. Did the Trial Court err in permitting [Rizzardi] to open a
         private road when such cause of action was not raised in
         [Rizzardi’s] complaint?

      2. Did the Trial Court err in permitting [Rizzardi] to maintain a
         private road with no showing whatsoever that the private
         road had as its primary and paramount purpose the benefit of
         the public rather than the private use of [Rizzardi]?


      3. Did the Trial Court err in affording relief under the Private
         Road Act when none of the prerequisites of opening a private
         road required by the statute, 36 P.S. § 2732(ff) were required
         of [Rizzardi]?

Spicer’s Brief at 4.

      In an appeal from a trial court sitting in equity, our standard of review

is rigorous: “A chancellor’s findings of fact will not be disturbed absent an

abuse of discretion, a capricious disbelief of the evidence, or a lack of

evidentiary support on the record for the findings. A chancellor’s conclusions

of law are subject to stricter scrutiny.”    Lilly v. Markvan, 763 A.2d 370,

372 (Pa. 2000) (citation omitted).     An abuse of discretion occurs when a

judgment is “manifestly unreasonable.” Id.

      Spicer first complains that the trial court granted relief not requested

in Rizzardi’s complaint.   Spicer’s Brief at 9.   According to Spicer, Rizzardi

filed counts for quiet title, adverse possession, and ejectment, seeking


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judgment in his favor and possession of the tractor path. However, Spicer

continues, the entry of compulsory nonsuit on all three counts resulted in

the denial of Rizzardi’s requested relief.   Id.   Thus, Spicer challenges the

trial court’s grant of relief based on its sua sponte application of the PRA as

exceeding the relief requested. Id. at 10–13.

      The trial court explained its decision as follows:

      [I]n the context of claims in equity, courts may grant any relief
      that conforms to the case made by the pleadings, although it is
      not exactly the relief which has been specifically requested.
      Makozy v. Makozy, [874 A.2d 1160 (Pa. Super. 2005]. The only
      limitation is that the relief granted must be responsive to the
      general nature of the relief requested by [Rizzardi]. Id. Stated
      differently, a court may grant any relief that is consistent with
      the theory and purpose of the action. Lower Frederick Twp. [v].
      Clemmer, 518 Pa. 313, 543 A.2d 502 (1988). Also, a court may
      grant broader relief than that specifically requested, so long as
      that relief is consistent with the case pleaded and proven.
      Karpienak v. Lowe, 2000 Pa.Super. 51.

             In the case sub judice, the general nature of the relief
      sought by [Rizzardi] was that [Rizzardi] required a means of
      accessing his landlocked property. The [trial c]ourt granted such
      relief to [Rizzardi] by opening a private road that allowed
      [Rizzardi] to access his property. Although the private road
      opened by the [trial c]ourt was not in all respects the road that
      [Rizzardi] wanted as it was not the tractor path he had
      previously used, the road opened by the [trial c]ourt was
      consistent with [Rizzardi’s] claim and his goals. As such, and in
      light of the case law cited above, the [trial c]ourt did not err by
      granting relief that was not specifically requested.

Trial Court Rule 1925(a) Opinion, 5/10/17, at 1–2.

      Our Supreme Court held in Lower Frederick Twp. that “[a] prayer

for general relief is as broad as the equitable powers of the court.    Under

such a prayer a chancellor in equity may grant any relief that is consistent

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with the theory and purpose of the action.”     Lower Frederick Twp., 543

A.2d at 512; see also William Penn School Dist. V. Pennsylvania Dept.

of Education, 170 A.3d 414 (Pa. 2017) (quoting Lower Frederick Twp.).

However, “while a chancellor in equity may fashion a remedy that is

narrower than the relief requested, he or she may not grant relief that

exceeds the relief requested.”     North Mountain Water Supply Co. v.

Troxell, 81 A. 157 (Pa. 1911)).

      Here, the theory and purpose of Rizzardi’s action were to continue

access to his landlocked property based on the Spicer Farm deed and Pine

Township Ordinance 2-1961.       The trial court accomplished the purpose of

continued access to Rizzardi’s property by applying the PRA.

      However, upon review, we conclude that the trial court erred in

applying the PRA as the basis for equitable relief.     The PRA authorizes a

landowner to petition for the use of, or the creation of, a private road across

another’s land to access his property.     In re Opening Private Road for

Benefit of O’Reilly, 5 A.3d 246, 284 (Pa. 2010).           As the trial court

acknowledged, though, Rizzardi “did not come before the [trial c]ourt as a

petitioner under the PRA.” Trial Court Rule 1925(a) Opinion, 5/10/17, at 3.

Thus, the trial court granted relief on a theory that was neither pled nor

proven. Consequently, Spicer had neither notice nor opportunity to defend

against a PRA-based grant of relief. Moreover, this case does not involve a




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taking of private property, and neither Rizzardi nor the trial court complied

with the requirements for proceeding under the PRA.

       Nevertheless, although we agree with Spicer that the trial court erred

in applying the PRA, we exercise our authority to affirm the trial court’s

award of relief on a different basis. See Wakeley v. M.J. Brunner, Inc.,

147 A.3d 1, 5 (Pa. Super. 2016), appeal denied, 145 A.3d 728 (Pa. 2016)

(“[I]t is well settled that if the court’s decision is correct, we may affirm on

any ground.”). Spicer challenged the trial court’s application of the PRA as

the basis for granting Rizzardi relief; he did not challenge the grant of relief

itself, i.e., allowing Rizzardi to access his property by crossing the Spicer

Farm. Indeed, when asked by the trial judge if Rizzardi could “build a green

road” through “the lower quadrant of” the Spicer Farm to reach his property,

Spicer responded: “If he wants to foot that expenses” and “[a]s long as he

follows all the USDA and EPA rules.” N.T. Vol. 2, 8/11/16, at 378.1

       Spicer’s first claim of error does not warrant relief. Furthermore, given

our holding that the trial court erred in applying the PRA to the case at hand,

we need not address Spicer’s second and third issues.2

____________________________________________


1  We express our appreciation to the court stenographer who incorporated
the trial exhibits within the notes of testimony, thus making our review more
efficient.

2 In his second issue, Spicer challenges the trial court’s application of the
PRA because Rizzardi failed to establish that the public was the primary and
paramount beneficiary of his crossing the Spicer Farm. Spicer’s Brief at 14–
(Footnote Continued Next Page)


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J-A27017-17


      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




(Footnote Continued) _______________________

17 (citing In re Opening Private Road for Benefit of O’Reilly, 5 A.3d
246 (Pa. 2010), which held that the opening of a private road must have a
public purpose, which exists where the public is the “primary and paramount
beneficiary of the taking”). In his third issue, Spicer challenges the trial
court’s application of the PRA because Rizzardi and the trial court failed to
comply with the PRA’s specific statutory provisions. Id. at 18–20.



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