J-A07019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANCESCA V. GURECKA                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT W. CARROLL AND
HOLLY LACEY CARROLL

                        Appellants                 No. 1301 WDA 2014


                Appeal from the Order Entered July 11, 2014
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 11-024656


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2015


     I must respectfully dissent.    The Majority correctly states the issue,

i.e., whether an easement by implication was created in 1956.       The trial

court correctly answers the question stating “[T]he array of manholes in the

rear of the [Carrolls’] property does place the [the Carrolls] on notice of a

network of sewer lines coming onto and crossing their property.” Trial Court

Opinion (TCO), 7/11/14, at 8.

     Manholes appearing on the lower portions of one’s property can only

mean one thing; sewer lines are running across the property. Manholes are

not placed on property indiscriminately and for decoration purposes. They

are placed there to give access to sewer line connections.     One does not

need an affidavit or citation to the law to establish this fact. It is common
J-A07019-15


knowledge to any property owner living in the hills of western Pennsylvania.

The Honorable Michael A. Della Vecchia of Allegheny County, who viewed the

property, recognized this fact and based his ruling on it.

      The Majority did not visit the subject property and now second guesses

Judge Della Vecchia’s finding after he visited the property. Based upon this

visit, Judge Della Vecchia found “the subject sewer, and for that matter the

network of sewers in the area of the Defendants’ property to be open, visible

and permanent.” TCO, at 8. Gurecka did not need to provide more.

      Accordingly, I must dissent because the Majority is essentially

reweighing the trial court’s finding without having ever visited the subject

property.




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