J-A06044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RAILROAD RECOVERY INC., A                  :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA CORPORATION,                  :        PENNSYLVANIA
                                               :
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :   No. 3717 EDA 2015
    BRIAN MAST, AND SIXTH STREET               :
    MANAGEMENT CORP., A                        :
    PENNSYLVANIA CORPORATION, AND              :
    JOHN GIUNUP, AND MICHAEL                   :
    PETTACIO                                   :

             Appeal from the Judgment Entered November 24, 2015
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 03647, July Term 2013


BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                  FILED JUNE 13, 2017

       Appellant, Railroad Recovery Incorporated, appeals from the judgment

entered November 24, 2015,1 in favor of Brian Mast, Sixth Street

Management Corporation, John Giunup, and Michael Pettacio (collectively,

“Appellees”), quieting title and granting ejectment over the right-of-way.

We affirm.
____________________________________________


1
   Appellant purported to appeal from the September 11, 2014 order
compelling testimony of the principal of Railroad Recovery Inc. and granting
sanctions to Appellee; the October 7, 2014 order denying Appellant’s motion
for sanctions; and the November 24, 2015 order denying Appellant’s motion
for post-trial relief and entering judgment. However, of the aforementioned
orders, the instant appeal is only proper in the context of the final order of
November 24, 2017. See Pa.R.A.P. 341.
J-A06044-17



      This appeal arises from a dispute over the ownership of a five-block

strip of land located between Rockland and Cayuga Streets in the City and

County of Philadelphia.    The trial court outlined the relevant procedural

history as follows:

             [Appellant] Railroad Recovery Inc. ([“Appellants”])
      instituted this action against the [Appellees] on July 26, 2013,
      seeking an ejectment of the [Appellees] (Counts I & II) from
      (and a recovery of possession of) the disputed property.
      [Appellant] also sought injunctive relief (Count II) and to recover
      mesne profits and rent as a result of its alleged dispossession of
      the disputed property (Count III).

            [During discovery, the trial court compelled the deposition
      of Appellant’s principal, Thomas Clauss by order dated
      September 11, 2014, and awarded Appellees $350 in sanctions.
      Appellant filed a motion for sanctions against Appellee, which
      was denied on October 7, 2014.]

            After an extended period of discovery, this matter was
      scheduled for a non-jury trial between March 11, 2015[,] and
      March 17, 2015. On March 13, 2015, following the close of
      [Appellant’s] case, the [trial] court granted: (1) the [Appellees’]
      motion for nonsuit of all counts against [Appellee] Brian Mast in
      his individual capacity; (2) the [Appellees’] motion for nonsuit to
      Count III of the [Appellant’s] amended complaint, which sought
      mesne profits and rents; and (3) [Appellees] John Giunup's and
      Michael Pettacio’s (collectively "Pettacio [Appellees]") motion to
      amend their counterclaims to assert a claim for adverse
      possession for the "Payload Property," an area within the
      disputed property.

            On July 20, 2015, [the trial court] found in favor of the
      [Appellees] and quieted title of the disputed property in favor of
      the [Appellees]. On November 24, 2015, [the trial court] heard
      oral argument on the [Appellant’s] motions for post-trial relief,
      which were denied that same day.

Trial Court Opinion, 5/16/2016, at 1-2 (unnecessary capitalization omitted).



                                     -2-
J-A06044-17



     In November 2015, Appellant timely filed a notice of appeal and filed a

court-ordered 1925(b) statement raising twenty-five issues. The trial court

filed a thoroughly responsive opinion in May 2016.

     On appeal, the Appellant raises the following fifteen issues for our

review:

     1. Is Appellant the real party in interest?

     2. Did the trial court lack subject matter jurisdiction to quiet title
        in Appellees, who failed to bring the real party in interest onto
        the record?

     3. Is Poor Boys’ prior judgment binding on Appellant?

     4. Did the 1854 Dickenson Deed convey fee simple subject to
        condition subsequent?

     5. Did the possibility of reversion terminate?

     6. Is the 1862 trustee deed [] the common source?

     7. Did Appellees prove intent to warrant title?

     8. Did Appellees prove intent to convey an easement?

     9. Did Appellees prove an easement?

     10.   Does common carrier obligation affect property ownership?

     11.   Is an express easement distinguished by nonuse?

     12.   Are Appellees’ counterclaims time barred?

     13.   Was it error to allow oral amendments at trial?

     14.   Did Appellant establish a clear right to relief?

     15. Was it an abuse of discretion to award sanctions without a
        prior order?


                                     -3-
J-A06044-17


Appellant’s Brief at 4-5 (some formatting added).

      “In reviewing the ruling of the trial court in an action to quiet title, an

appellate court's review is limited to determining whether the findings of fact

are supported by competent evidence, whether an error of law has been

committed, and whether there has been a manifest abuse of discretion.”

Vernon Twp. Volunteer Fire Dep't, Inc. v. Connor, 855 A.2d 873, 879

(Pa. 2004) (citing Moore v. Duran, 687 A.2d 822, 827 (Pa. Super. 1996),

petition for allowance of appeal denied, 700 A.2d 442 (Pa. 1997)).

      An appellate court will “respect the trial court's findings with regard to

credibility and weight of the evidence unless it can be shown that the lower

court's determination was manifestly erroneous, arbitrary and capricious or

flagrantly contrary to the evidence.”       Gemini Equip. Co. v. Pennsy

Supply, Inc., 595 A.2d 1211, 1215 (Pa. Super. 1991).

      On appeal, Appellant raises fifteen issues for our review.       We have

reviewed the certified record, the briefs of the parties, the applicable law,

and the well-reasoned opinion authored by the Honorable Denis P. Cohen of

the Court of Common Pleas of Philadelphia County, filed May 16, 2016. We

conclude that Judge Cohen’s comprehensive opinion is dispositive of the

issues presented in this appeal.    Accordingly, we adopt the opinion as our

own for purposes of further appellate review and affirm the judgment on

that basis.

      Judgment affirmed.


                                      -4-
J-A06044-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




                          -5-
                                                                                          Circulated 05/16/2017 02:46 PM




         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


Railroad Recovery Inc.,                                   July Term 2013

                                Plaintiff
v.                                                        No. 130703647

Brian Mast, Sixth Street Management
Corp., John Giunup, and Michael
Pettacio
                                                                                                               r-, ":
                                                                                                               c
                                Defendants



                                                  OPINION

     A. PROCEDURAL HISTORY
                                                                                                      (

        Plaintiff Railroad Recovery Inc. ("Plaintiff') instituted this action against the;Defer!f.!ants

on July 26, 2013,   seeking an ejectment of the Defendants (Counts I & II) from (and a recovery of

possession of) the disputed property.       Plaintiff also sought injunctive relief (Count II) and to

recover mesne profits and rent as a result of its alleged dispossession of the disputed property

(Count III).

        After an extended period of discovery, this matter was scheduled for a non-jury trial

between March 11, 2015 and March 17, 2015. On March 13, 2015,                  following the close of

Plaintiffs case, the Court granted: (1) the Defendants' Motion for Nonsuit of all counts against

Defendant Brian Mast in his individual capacity; (2) the Defendants' Motion for Nonsuit to

Count Ill of the Plaintiff's Amended Complaint,        which sought mesne profits and rents; and (3)

Defendants John Giunup's and Michael Pettacio's          (collectively   "Pettacio Defendants") motion to

amend their counterclaims to assert a claim for adverse possession for the "Payload Property," an

area within the disputed property.

                                                                   Railroad Recovery, lnc Vs Masi Etal-OPFLO




                                                                              \\\I\\ II 1m11 \\ 1111
                                                                    I\1\11\ I13070364700161
       On July 20, 2015, this Court found in favor of the Defendants and quieted title of the

disputed property in favor of the Defendants. On November 24, 2015, this Court heard oral

argument on the Plaintiffs Motions for Post-Trial Relief, which were denied that same day.

       On November 29, 2015, Appellant filed his Notice of Appeal. On December 22, 2015.

Appellant filed a Statement of Matters, alleging the following errors on appeal:

               1. The 9/11/2014 order by Judge Sarmina was abusive as there was no
                  prior order compelling depositions and defendants gave one days notice of
                  deposition.
               2. Judge Fox allowed discovery court to be intentionally misled where an action
                  for mesne profits is intended to disgorge defendants of their ill-gotten profits
                  (good faith damages) or ill-gotten income (bad faith damages), so that the
                   10/7/2014 order should have enforced the prior orders for discovery.
               3. Under the pronouncements of Supreme Court as of 1854 and currently, a
                  recorded indenture in fee simple subject to a condition subsequent is not an
                  easement, and Judge Cohen's finding of an easement is merely a cover-up for
                  the decision of another court involving other parties, where that court held a
                  deed existed but could not be located for the purposes of trial.
               4. Without citation to authority, the trial court holding it lacked subject matter
                  jurisdiction to decide an action in ejectment for land in Philadelphia County is
                  erroneous.
               5. Without citation to authority, the trial court disregarded precedent holding the
                  purpose of an ejectment action is opposed to determine the immediate rights
                  between plaintiff and defendant involved in that litigation. Sabella v.
                  Appalachian Development Corp., 2014 PA Super. 237, 103 A.3d 83 (2014).
               6. The 1854 Dickinson Deed conveyed a fee simple subject to a condition
                  subsequent, as it provides for a possibility of a reverter; and uses the classic
                  language of that period for such a conveyance. John Bouvier's Law
                  Dictionary, 1856 Ed.
               7. The findings and conclusions of the trial court confirm all of the referenced
                  indicia of a deed in fee simple subject to a condition subsequent are present;
                  that is: the presence of a habendum clause ("TO HA VE AND TO HOLD the
                  rights and premises aforesaid unto the said The North Pennsylvania Rail Road
                  Company, their successors and assigns forever, upon condition that the said
                  Company, its successors or assigns, shall make, maintain, keep and use upon
                  the aforesaid piece of land a Rail Road,") which does not conflict with the
                  grant ("the entire and exclusive use, right, liberty and privilege of using and
                  occupying and enjoying for Rail Road purposes") use of present tense of
                  words of conveyance ("doth Grant Bargain Sell Release and Confirm, unto the
                  said The North Pennsylvania Rail Road Company, their successors and
                  assigns"); and consideration paid in the amount of$9,356.67 in 1854 dollars



                                                 2
     for a 9 acres and 57 perches strip of rail roadbed, which sum was more than
     the nominal payment of $1 or $300, in the cases relied upon by the court.
8. The 1854 Dickinson Deed used words of a conditional fee (forever, upon
     condition that the said Company, its successors or assigns, shall make,
     maintain, keep and use upon the aforesaid piece of land a Rail Road, and if it
     shall happen that the railroad * * * shall be removed or abandoned or the said
     described piece of land shall cease to be used for Rail road purposes, then the
     said strip of land shall revest in the said Sally Norris Dickinson, her heirs and
     assigns, as of her and their first and former Estate, and she or they shall
     thereupon repossess). Emrick v. Bethlehem Tp., 506 Pa. 372, 375, 485 A.2d
     736, 737 (Pa. 1984).
9. The duty of defendants' predecessors in title was to "thereupon (immediately)
     repossess" any interest they had in the disputed land by legal proceedings,
     which the predecessors failed to do.
10. Defendants failed to prove Dickinson's last Will devised her remaining
     interest in the conveyed strip of land to the adjacent owners; contradicting the
     admission of their expert such proof was necessary to identify the interest of
     defendants.
11. There is not clear and convincing evidence the drafters of the 1854 Dickinson
     Deed intended a warranty clause was necessary as the Railroad Law of 1849
     allowed the railroad to take land by eminent domain; or that Dickinson
     intended to warrant she had title to the 9 acres conveyed, of her 221 acres of
     North Philadelphia, spanning four boroughs, towns and townships, against
     adverse possessors.
 12. There is not clear and convincing evidence the drafters of the 1854 Dickinson
     Deed intended to create an easement.
 13. The findings and conclusions of the trial court con firm all of the referenced
      indicia of an easement are lacking; that is: recitation of specific right to use
      land for "using and taking earth, stones, and gravel from the land" (statement
      of "the entire and exclusive use, right, liberty and privilege of using and
      occupying and enjoying for Rail Road purposes" is consistent with the stated
      condition subsequent the failure of which would create a right of reversion,
      "forever, upon condition that the said Company, its successors or assigns,
      shall make, maintain, keep and use upon the aforesaid piece of land a Rail
      Road").
 14. In 1984, a .6 mile strip of the former Bethlehem Branch did "cease to be used
      for railroad purposes" by Conrail's affirmative act of filing "with [the]
      Interstate Commerce Commission an application that would enable Conrail to
      abandon its common carrier obligation on a portion of the Bethlehem
      Branch."
 15. The determination of the Interstate Commerce Commission, to allow the
      railroad to abandon the line, does not affect the underlying property
      ownership.
 16. Mere nonuse by the railroad does not amount to abandonment. To establish
      abandonment, the evidence must show that the easement holder intended to
      give up its right to use the easement permanently. No single factor alone is


                                   3
     sufficient to establish the intent to abandon. Abandonment must be
     determined based upon all of the surrounding circumstances.       Buffalo Tp. v.
     Jones, 571 Pa. 637, 646, 813 A.2d 659, 665 (Pa. 2002). The factors relied
     upon by the trial court were disapproved by the Buffalo Tp. court.
1 7. Conrail took certain action that suggested an intention to abandon the railroad
     line, such as filing a request to abandon rail service with the ICC and planning
     for dismantling of the rails. However, Conrail took other steps evidencing the
     contrary intent, such as sale of the .6 mile strip of rail roadbed to plaintiff,
    which demonstrated Conrail's intent to retain dominion over the rail roadbed.
    Further, Conrail sought to discontinue rail service over only a .6 mile length
    of the Bethlehem Branch.
18. There is no evidence Conrail undertook external affirmative acts of physical
    obstruction that carried out its intent to abandon its property interest in the
    disputed land which rendered the use of the disputed land impossible or
    created some physical obstruction in a manner that is inconsistent with its
    further enjoyment. Hence, the rail roadbed has not been abandoned. To the
    contrary, Conrail did sell the rail roadbed to plaintiff, who demolished the
    bridge.
19. An easement, created by a deed, cannot be extinguished or affected by nonuse
    or abandonment for railroad purposes unless it is shown by some positive,
    adverse, and hostile interference by these defendants, who claim that the
    easement has been extinguished, or the loss of title in some other way
    recognized by law. No such situation is present.
20. There is no evidence, when, if at all, subsequent to the January 1988 "Lines
    Cleared for Dismantling" memorandum [Ex. 029], the .6 strip of rail roadbed
    sold to plaintiff was dismantled and tracks removed. Predecessor in title,
    Conrail did not abandon its interest but maintained dominion where it
    subsequently entered into agreement to sell the rail roadbed in 1990 [Ex.
    DlB].
21. Defendants, John Gi unup and Michael Pettacio did not timely or at all
    commence an action in ejectment for that portion of the disputed property in
    possession of plaintiff.
22. Each of the counterclaims by defendants, Sixth Street Management Corp.,
    John Giunup and Michael Pettacio are barred by the statute of limitations.
23. The trial court erred in granting to defendants, John Giunup and Michael
    Pettacio leave to orally amend their counterclaims on the 3rd day of trial.
24. Trial court, finding plaintiff was not the real party in interest, Jacked
    jurisdiction to quiet title in favor of defendants, who failed to bring real party
    in interest onto the record.
25. To establish a claim for a permanent injunction, the party must establish his or
    her clear right to relief. However, unlike a claim for a preliminary injunction,
    the party need not establish either irreparable harm or need for immediate
    relief and a court "may issue a final injunction if such relief is necessary to
    prevent a legal wrong for which there is no adequate redress at law." Buffalo
    Tp. v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663 (Pa. 2002).



                                  4
    B. FACTS

    I.      The Parties and the Disputed Property

         This dispute arises out of the ownership of a portion of a strip of land that extends across

five city blocks from Cayuga Street to Rockland Street in Philadelphia along a former Northern

Pennsylvania Railroad roadbed. (Findings of Fact and Conclusions of Law, 2). Defendant Sixth

Street Management Corporation ("Defendant Sixth Street") owns property located at 4455 North

6th Street (the "Sixth Street Property"). (N.T. 3/13/15 at 161). Pettacio Defendants own

adjacent property at 4525 North 6th Street (the "Payload Property"), on which they operate a

waste disposal business called Payload Disposal. Plaintiff is a Pennsylvania corporation formed

by Mr. Thomas Clauss. (N.T. 3/17/15 at 37-38). Mr. Clauss is the Plaintiffs president, sole

officer, and sole shareholder.   (N.T. 03/16/15 at 133-34). Mr. Clauss formed Railroad Recovery

to hold to the title to the disputed property in this case. (Id. at 134). Plaintiff claims title, by way

of chain of title dating back to a January 12, 1854 deed executed by Ms. Sally Norris Dickinson

(the "Dickinson Deed"), to a strip of land that now runs through the rear of the Sixth Street

Property and the Payload Property. (Findings of Fact and Conclusions of Law, 2-3).

         The disputed area within the Sixth Street Property encompasses a total area of 6,703.2

square feet or .1539 acres. (Id. at 3). The disputed area within the Sixth Street Property runs

through the middle of an existing gravel and dirt area and is partially bordered by: (a) on the

southern boundary by an aluminum fence gate, and (b) on the eastern boundary by a chain-link

fence and pvc pipe fence. (Id.). The disputed area within the Payload Property encompasses a

total area of 10,641.7 square feet or .2443 acres. (Id.). The disputed area within the Payload

Property runs through two existing one story office buildings, one abandoned railway scale

station, and existing gravel and paved concrete areas of the Payload Property. (Id.).



                                                   5
   II.     The Plaintiff's Asserted Chain ofTule

   In 1854, Ms. Dickinson conveyed an interest in her property to the North Pennsylvania

Railroad Company by way of deed in exchange for $9,356.67. (N.T. 3/16/15 at 96). In total, the

Dickinson Deed conveyed 9 acres and 57 perches of land, which is equivalent to 9.35625 acres,

407,558.25 square feet, or approximately .0146 square miles. The Dickinson Deed's grant

clause describes the strip of land to be conveyed as follows:

           [D]oth Grant Bargain Sell Release and Confirm unto the Said North
           Pennsylvania Rail Road Company their Successors and assigns the Entire and
           Exclusive use Right liberty and privilege of using occupying and Enjoying for
           Rail Road purposes All that Strip or piece of land part of the lands and Estate
           of the Said Sally Norris Dickinson Extending from Nicetown lane to
           Wingohocking Creek in the township of the Northern Liberties and County of
           Philadelphia containing nine acres and fifty Seven perches as the Said Strip or
           piece of land is delineated and laid down in the map or plan thereof here unto
           annexed which is to be taken as part of this indenture and of keeping using
           and maintaining thereon the Rail Road of the Said party ....

(findings of Fact and Conclusions of Law, 4); (Plf. Exhs 1-2); (Def. Exh. 80).

Furthermore, the 1854 Dickinson Deed's habendum clause details that North

Pennsylvania Railroad Company, its successors, and assigns had:

            [a]t all times hereafter forever together with the incidents easements and
            appurtenances thereunto belonging To have and to hold the Rights and
            premises aforesaid ... forever upon condition that that Said Company its
            Successors or Assigns Shall make maintain keep and use upon the aforesaid
            piece of Land a Rail Road and if it Shall happen that the Rail Road
            Contemplated to be now Shortly Constructed on and over the Said Described
            Strip or piece of Land or any Renewals or Reconstructions thereof shall be
            Removed or abandoned or the Said described piece of land Shall cease to be
            used for Rail Road purposes then the Said Strip of land Shall revert in the Said
            Sally Norris Dickinson her heirs and assigns as of her and their first and
            former Estate and She or they shall thereupon Repossess and Enjoy the Same
            as if this Present Indenture had never been made ....

    (Findings of Fact and Conclusions of Law, 4 ); (Plf. Exhs 1-2); (Def. Exh 80).




                                                   6
       By way of deed dated March 29, 1976 and recorded May 11, 1979, the North

Pennsylvania Railroad Company conveyed its interest under the Dickinson Deed to Consolidated

Rail Corporation ("Conrail").   (Findings of Fact and Conclusions of Law, 4); (Plf. Exhs 3, 10).

The conveyance to North Pennsylvania Railroad Company was mandated by an Order of the

Special Regional Rail Reorganization Court. (Findings of Fact and Conclusions of Law, 5); (Plf.

Exh 10). The Special Court approved the final System Plan of the United States Railway

Association and awarded the North Pennsylvania Rail Road Company lands to Conrail.

(Findings of Fact and Conclusions of Law, 5); (Plf. Exh 10). In early 1984, the ICC authorized

Conrail to abandon the disputed property. (Findings of Fact and Conclusions of Law, 5); (Plf.

Exh 14). Conrail effectuated the abandonment of the disputed property by removing the railway,

thus relieving itself of any obligations to provide rail services over the disputed property.

(Findings of Fact and Conclusions of Law, 6). At the time of its filing for abandonment of the

disputed property, Conrail conducted de minimis rail business on the property. (Id. at 6).

       On November 2, 1994, Plaintiff purchased the disputed property from Conrail for

$18,000. (N.T. 3117115). In conjunction with this purchase, Conrail delivered a quitclaim deed

to the Plaintiff, dated November 2, 1994 (" 1994 Quitclaim Deed"). (N.T. 3/16/15 at 141 ). The

Plaintiff failed to record the 1994 Quitclaim Deed. (Id at 164). Mr. Clauss' s attempt to record

the 1994 Quitclaim Deed with Chase Abstract Title Company ("Chase") failed due to the lack of

an address or legal description in the deed. (Id. at 163-64). Mr. Clauss did not contact Conrail

to attempt to correct the recording problem. (Id.).

       Eighteen years later, on January 25, 2012, Conrail delivered to the Plaintiff, upon the

Plaintiffs request, a "Quitclaim Deed of Confirmation" (the "2012 Confirmation Deed").

(Findings of Fact and Conclusions of Law, 7). Conrail was asked to prepare the deed because



                                                  7
Plaintiff has entered into a transaction           to sell the disputed property        to Mr. Linda Miller and the

deal was held up because the 1994 Quitclaim                   Deed was not recorded        and, at that point, Plaintiff

was unable to locate the 1994 Quitclaim               Deed.     (Id.).

       111.      The Plainiiff's Sale of the Disputed Property to Ms. Miller

       On February 16, 1998, the Plaintiff entered into an agreement to sell, via an installment

contract, all of the land it had previously purchased from Conrail to Ms. Linda Miller.1 (N.T.

3/16/15 at 138-40). Ms. Miller fully performed her purchase obligations under the installment

contract in 1999 or 2000. (N.T. 3/16/15 at 138-56); (N.T. 3/17/15 at 38, 41-46, 48). However,

no formal closing was ever conducted.                (N. T. 3/16/15 at 141 ). Instead, Plaintiff delivered the

    1994 Quitclaim deed received from Conrail to Ms. Miller, in the belief that doing so was

sufficient to convey title of the railroad property to Ms. Miller. (Id at 141-46).

              Since 2000, Ms. Miller and her husband, Mr. Mike McNally, have had full possession of

the property. (Id at 152-5 3, 162 ). During that time, Mr. McNally operated a scrap yard on the

disputed property and filled the disputed property with auto debris and trash. (N. T. 3/13/15 at

    173-74); (N.T. 3/16/15 at 119, 153, 153, 164-64). Plaintiff did not pay taxes on the property at

this time, despite receiving a tax bill in 2013. (N.T. 3/16/15 at 150-51).

       JV        Litigation Following the Plaintiff's Sale of the Disputed Property lo M,;;. Miller

       In 2008, Defendant Sixth Street filed an action seeking ej ectment of Ms. Miller from the

Sixth Street Property portion of the disputed property. (Findings of Fact and Conclusions of

Law, 9). The Honorable Gary S. Glazer, Judge of the Court of Common Pleas of Philadelphia




I
    Per the installment contract, the Plaintiff agreed to sell all of its Conrail railroad property for $20,000. with
$ I 0,000 cash owed on the date of execution of the installment contract, and the remaining $10,000 owed via five
monthly installments of $2,000 beginning on June I, 1998. (Findings of Fact and Conclusions of Law, 8). Upon
payment by Ms. Miller of the entire $20,000, and upon full compliance with the provisions set forth in the contract,
the Plaintiff agreed"( 1) to execute and deliver [to Ms. Miller] a deed for [the railroad premises]." (Id).

                                                                8
County, conducted    a non-jury   trial for that case in August of 2009.   (Id). Ms. Miller's defense

was that the land she purchased via the 1998 installment contract from Plaintiff contained an

easement to use Defendant Sixth Street's property. (Id.). Judge Glazer found in favor of

Defendant Sixth Street, stating specifically in his conclusions of law that Ms. Miller "does not

have a right to use the 'alleged easement."' (Def Tr. Exh. 19 at 3-4). On October 8, 2009,

Judge Glazer further ordered Ms. Miller to "discontinue [her] use of [Defendant Sixth Street's]

property and remove all [of her] property from [Defendant Sixth Street's] premises within thirty

days." (Id. at 1).

        In 2011, Ms. Miller sued the Plaintiff in federal and state court because the Plaintiff

failed to execute and deliver a deed to her as provided by the 1998 installment contract. (N .T.

3/3/16/15   at 147-48); (N.T. 3/17 /15 at 48); (Findings of Fact and Conclusions of Law, 9). Ms.

Miller and the Plaintiff settled those cases and thereafter entered into an agreement wherein the

Plaintiff promised to prosecute the instant case. (N. T. 3/17 /15 at 48).

    V        Defendants' Asserted Chain of Title to the Sixth Street and Payload Properties

    The Defendants' chain of title begins with an 1862 deed executed by the trustees of Ms.

Dickinson to the Defendants' predecessor-in-title,       Gustavus G. Logan ("Logan-Dickinson

Deed"). (Findings of Fact and Conclusions of Law, 10). The Dickinson-Logan provides that the

property extended to the middle line of the North Pennsylvania Rail Road and that the land

conveyed "include[es] the portion occupied by the [North Pennsylvania] Rail Road." (Def. Tr.

Exhs 76. 86). The deed provided that the conveyed property extended to the "center line" or

"middle lime" of the (now former) North Pennsylvania Railroad. (Findings of Fact and

Conclusions of Law, 10).




                                                     9
    Defendant Sixth Street purchased the Sixth Street Property from the estate of Edward Rabon

on November 20, 2003 for $25,000. (N.T. 3/13/15 at 161). The deed conveying the Sixth Street

Property to Defendant Sixth Street ("Sixth Street Deed") is a warranty deed. (Def. Tr. Exh. 54 ).

The legal description contained in the Sixth Street Deed provides that the property extends from

"the southeasterly side of   6th   Street ... from the Southwesterly side of Annsbury Street ... to a

point in the middle line of the North Pennsylvania Railroad." (Id.).

        The Pettacio Defendants purchased the Payload Property for $180,000 on March 18,

2004 from Luis A. Colon. (Def Tr. Exh. 45). This deed states that the Payload Property extends

from "a point at the intersection of the Southwesterly side of Annsbury Street with the

Southeasterly side of 6111 Street; thence along the said side of 61h Street South ... to the center line

of the North Pennsylvania Railroad." (Id.).




C. DISCUSSION

I Deposition Order

        Plaintiff first alleges that this Court erred by issuing an order compelling the deposition

of Thomas Clauss, Jr. after the discovery deadline had elapsed. Specifically, Plaintiff alleges

that Plaintiff was given only one day's notice prior to the deposition.

       The Pennsylvania Rules of Civil Procedure do not establish a timetable for depositions,

as these matters come within the sole discretion of the trial court. See Wertz v. Kephart, 542

A.2d IO 1 9, 1021 (Pa. Super. 1988); Lombardo v. DeMarco, 50 A.2d 1256, 1259 (Pa. Super.

1985). Furthermore, the Rules do not contain any formal requirements for a time interval

between the notice and the scheduled deposition, but merely state that "reasonable notice" must

be given to all parties. Pa. R. Civ. P. 4007.1 (a). The trial court's discretion to admit or exclude a



                                                     10
deposition during trial will not be disturbed absent abuse. Wertz, 542 A.2d at 1021; see

Egelkamp v. Egelkamp, 524 A.2d 501, 504 (Pa. Super. 1987).

       In the instant case, the Plaintiffs failure to make Mr. Clauss available for deposition

testimony necessitated Judge Sarrnina' s September 11, 2014 Order compelling the deposition

testimony. The Defendants originally notified the Plaintiff of a scheduled deposition for Mr.

Clauss, and a corporate designee of the Plaintiff, on August 15, 2014. (Def Mot. To Compel, l;

Exh. A). The depositions were scheduled for August, 27, 2014 at 10:00 A.M., with a

rescheduling date of August 28. On August 26, 2014, the afternoon prior to the deposition,

Plaintiff unilaterally cancelled the deposition due to alleged issues with exhibits identified at a

prior deposition. (Id at 2). Plaintiff refused to make Mr. Clauss available for deposition for the

rescheduling date of August 28, 2014. (Id).

       Due to Plaintiffs lack of cooperation in making Mr. Clauss available, the Defendants

sought, and obtained, Judge Sarmina's Order to compel the testimony on September 11, 2014.

(Ct. Order to Compel 9/11/14). The Order required the deposition to be held sometime between

September 15, 2014 and September 17, 2014. (Id.).

       Plaintiff have failed to allege any prejudice that resulted from the Order that would have

made the notice unreasonable.   See Pa. R. Civ. P. 4007. l (a). Plaintiff had over a week to prepare

for the initial deposition of Mr. Clauss scheduled for August 27, 2014. (See Def. Mot. To

Compel, l ; Exh. A). The Plaintiffs unilateral decision to postpone the deposition, with less than

a day prior to the scheduled time, afforded Plaintiff further opportunity to prepare. (See id at 2).

Furthermore, Judge Sarmina's Order compelling the deposition set the earliest possible date for

said deposition four days away. (See Ct. Order to Compel 9/11/14). Thus, from the time

Plaintiff was notified of the Defendants' intent to depose Mr. Clauss, to the earliest date set by



                                                 II
the Order compelling the deposition, Plaintiff had thirty-one (31) days to prepare for the

deposition. Furthermore, the delays and problems with the deposition were created by the

Plaintiff and their failure to make Mr. Clauss available at the agreed upon times. Therefore,

Plaintiffs argument that Judge Sarmina's Order was an abuse of discretion, and that the notice

given to Plaintiff was unreasonable, is without merit.

II Discovery Hearing Request Denial

        The trial court's order denying a motion to compel discovery is reviewed under the abuse

of discretion standard. Commonwealth v. Widmer, 744 a.2D 745, 753 (Pa. 2000). The term

'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate

conclusion, within the framework of the law, and is not exercised for the purpose of giving effect

to the will of the judge. Id. Discretion must be exercised on the foundation of reason, as

opposed to prejudice, personal motivations, caprice or arbitrary actions. Id. Discretion is abused

when the course pursued represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record shows that the

action is a result of partiality, prejudice, bias or ill will. Id.

        Plaintiff claims that this Court erred by denying Plaintiffs request for a discovery

hearing regarding the Defendants' alleged failure to produce requested tax returns. While

generally broad and liberal discovery is encouraged, the policy favoring generous discovery must

be balanced against other public policies. Hyman Companies, Inc. v. Brozost, No. CIV. A. 97-

269, 1997 WL 535180, at *3 (E.D. Pa. Aug. 8, 1997). For example, public policy considers tax

returns as confidential communications between the taxpayer and the government and thus

favors their nondisclosure.    Id. Pennsylvania courts have outlined a two-part test to determine

the discoverability of tax returns. See id.; Horwath v. Brownmiller, 51 Pa. D. & C.4th 33, 42-45



                                                     12
(Ct. Com. Pl. 2001). The party seeking discovery must demonstrate: (1) relevance; and (2) a

compelling need for such documentation because the information is not available elsewhere.

Horwath, 51 Pa. D. & C. at 44.

         In the instant case, Plaintiffs made no efforts to demonstrate either of the two prongs and

therefore were not entitled to court action enforcing discovery requests for tax returns. See id

In their request for discovery sanctions, Plaintiff merely stated that, although the documents were

brought at a deposition, they were never produced. (Plf. Mot. for Sanctions 9/16/14). Plaintiffs

failed to even attempt to demonstrate that they were entitled to the discovery of these sensitive

documents and thus this Court did not err in denying their motion. See Horwath, 51 Pa. D. & C.

at 44.

         Furthermore, the Plaintiffs suffered no prejudice from the denial of the motion for

sanctions. The Plaintiff alleges in its Statement of Errors that the requested documents would

have informed the Plaintiff as to the Defendants' income for the purposes of ascertaining mesne

profits. However, given the Court's ruling that the Plaintiff did not have a right to possess the

disputed property, the question of mesne profits became unnecessary to address. Thus, any

prejudice the Plaintiff may have suffered in relation to discovery related the mesne profits issue

was rendered moot by the Court's final ruling.

!II. Subject Matter Jurisdiction

    A. This Court Did Not Err in Concluding That It Lacked Jurisdiction Due to the Plaintiffs

         Lack of Standing

         This Court did not err in concluding that Plaintiff lacked standing to maintain its actions

for ejectment and injunctive relief against the Defendants because the Plaintiff sold and

relinquished any interest to the to the disputed property that it may have had to Ms. Miller in



                                                  13
2000. Due to the Plaintiff's lack of standing, this Court correctly determined that it did not have

jurisdiction to proceed on the merits of this action.

           Pennsylvania Rule of Civil Procedure 2002 provides that "[A]ll actions shall be

prosecuted by and in the name of the real party in interest, without distinction between contracts

under seal and parol contracts.'? Pennsylvania courts have defined the word "real party in

interest" as "the person who has the power to discharge the claim upon which suit is brought and

to control the prosecution of the action brought to enforce rights arising under the claims." See,

e.g., Clark v. Cambria County Ed. Of Assessment Appeals, 747 A.2d 1242, 1246 n.9 (Pa.

Cmnwlth. 2000). A plaintiff who is not the real party in interest has no standing to maintain the

action. Id., citing Sierra Club v. Hartman, 605 A.2d 309 (Pa. 1992) ("A person cannot invoke

the jurisdiction of a court to enforce private rights, or to maintain a civil action for the

enforcement of such rights, unless that person has some real interest in the cause of action, or a

legal right title, or interest in the subject matter of the controversy.").

          Pennsylvania law provides that an installment sale agreement should be treated as a

mortgage. Stillwater Lakes Civic Assoc. v. Krawitz, 772 A.2d 118, 121 (Pa. Cmnwlth 2001).

The moment an installment sale agreement is executed and delivered, the owner of the land sells

his equitable title to the realty to the purchaser. Id.; Yannopoulos v. Sophos, 365 A.2d I 3 I 2,

1314 (Pa. Super 1976). At that point, "the land so contracted cease[s] to be real estate in [the

seller's] hands," Foster v. Harris, 10 Pa. 457, 459 (Pa. 1849), and "the seller retains legal title

only as a security against the purchase price."              Pose! v. Redevelopment Authority ofCity of

Philadelphia, 456 A.2d 243, 246 n.4 (Pa. Cmnwlth 1983).




2
    The rule also provides three exceptions, all of which are inapplicable in the instant case.

                                                             14
       Legal title-the     seller's last remaining interest in the property-is           retained by the seller

only unti I the buyer satisfies the terms of the installment contract (i.e. until the buyer pays the

outstanding balance of the mortgage.). Stillwater, 772 A.2d at 121; Yannopoulos, 365 A.2d at

1314. Accordingly, under Pennsylvania law, the seller has no interest in the property once the

buyer performs her purchase obligations set forth in the installment contract.3 A transfer of a

deed is effective to convey real property so long as ( l ) the grantor has donative intent and (2)

there is an actual or constructive delivery of the deed to the grantee. Fiore v. Fiore, 174 A.2d

858, 859 (Pa. 1961).

       In the instant case, according to Mr. Enright, Conrail believed that the 1994 Quitclaim

Deed effectively conveyed its interest in the disputed property to the Plaintiff. (Enright Tr. at

83). Furthermore, as evidenced by Mr. Clauss's attempt to record the 1994 Quitclaim Deed with

Chase, Conrail delivered the 1994 Quitclaim Deed to the Plaintiff in 1994. (N.T. 03/16/15 at

163). As such, it is without doubt that Conrail conveyed its interest in the disputed property to

the Plaintiff via the 1994 Quitclaim Deed on November 2, 1994. (Def. Tr. Exh 2).4

       On February 16, 1998, the Plaintiff entered into an installment contract with Ms. Linda

Miller. (Def. Tr. Exh 4). In exchange for the sum of $20,000, the Plaintiff agreed to sell and

convey to Ms. Miller "All That Certain premises" "Beginning at approximately Mile Post 4.2,

being the southern line of Cayuga Street and extending thence in a general northerly direction to

approximately Mile Post 4.8, being the northerly line of Rockland Street." (Id.                   1 1 ); (Exh. A
attached to Def. Tr. Exh 4 1 2). As defined by the installment contract, the land sold was a



.1On the contrary, once the terms of the installment contract are completed, the seller is bound to execute and deliver
a deed to the buyer and, in the event of a seller's death before the deed is executed, the seller's heirs are bound to
execute and deliver such a deed. Fosler v. Harris, 10 Pa. 457, 459 (Pa. 1849).
~ The fact that Mr. Clauss was unable to record the deed does not change this Court's conclusion that Conrail's interest
in disputed property was conveyed to the Plaintiff in 1994. Fiore v. Fiore, ! 74 A.2d 858, 859 (Pa. ! 961) ("The
recording of the deed [is] not essential to its validity or the transition of the title.")

                                                           15
"portion of the same premises which the North Pennsylvania Railroad Company ... issued

pursuant to the Regional Rail Reorganization Act of 1973 ... which Conveyance Document was

recorded on May 11, 1979 ... Document No. D-1948-202."           (Exh. A attached to Def. Tr. Exh 4

~ 2).

        The land identified in the installment contract constituted the sale of all of the land which

the Plaintiff received via quitclaim deed from Conrail in 1994, including all ofthe disputed

property at issue in this case. (Def. Tr. Exhs 2-3). Indeed, both the 1994 Quitclaim Deed and

the 2012 Confirmation Deed described that the entirety of the property conveyed by Conrail to

the Plaintiff was: "Beginning at approximately Mile Post 4.2, being the southerly line of Cayuga

Street and extending thence in a general northerly direction to approximately Mile Post 4.8,

being the northerly line of Rockland Street, the place of ending." (Def. Tr. Exh 2 at 2) (2012

Confirmation Deed); (Def. Tr. Exh 3 at 2) ( 1994 Quitclaim Deed). As described by the 1994

Quitclaim Deed, the land conveyed was "a portion of the same premises which the North

Pennsylvania Railroad Company ... issued pursuant to the Regional Rail Reorganization Act of

1973 ... which Conveyance document was recorded on May 11, 1979 ... Document No. D-

1948-202." (Def. Tr. Exh 3). Per the terms of the installment contract entered into between the

Plaintiff and Ms. Miller, the Plaintiff agreed, upon payment of $20,000 by Ms. Miller, to

"execute and deliver to [Ms. Miller] a deed for said premises."     (Def. Tr. Exh 4 ~ (c)).

        Additionally, Mr. Clauss, the Plaintiffs president and sole officer/shareholder,      admitted,

via his deposition and trial testimony: ( l) that he entered into an agreement, on behalf of the

Plaintiff, to sell the subject property to Ms. Miller in February of 1998, (2) that Ms. Miller fully

performed her purchase obligations (including the full payment of $20,000) under the installment

contract in 1999 or 2000, (3) that the Plaintiff provided Ms. Miller the Conrail deed (which the



                                                   16
Plaintiff received when it purchased the property from Conrail) because he thought such an act

sufficiently conveyed the property to Ms. Miller, and (4) that after he sold the property to Ms.

Miller. Ms. Miller and her husband Mr. McN ally took possession of the property. (N. T.

03/16/15 at 13 8-15 6); (N. T. 03/17 /15 at 3 8, 41--46, 48). As such, because Ms. Miller satisfied

the terms of the installment contract, since at least 2000, the Plaintiff has had no legal or

equitable interest whatsoever in the disputed property and does not have standing to maintain the

instant action concerning such property. For these reasons, this Court correctly concluded that

the Plaintiff lacked standing to bring these actions and, thus, this Court lacked jurisdiction to

address the Plaintiffs claims. See Clark, 747 A.2d at 1246 n.9.

    B. The Court Did Not Err in Determining the Defendants' Counterclaim to Quiet Title

    In a quiet title action, the only relevant inquiry is whether the claimants can establish the

right to immediate exclusive possession. Plauchak v. Boling, 653 A.2d 671, 675 (Pa. Super.

1995), citing Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super. 1991). In an action to quiet title,

the claimants "can recover only on the strength of [their] own title and not upon the weakness of

the [opposing party's] title. Plauchack, 653 A,2d at 675 n.3; Montrenes v. Montrenes, 513 A.2d

983, 984 (Pa. Super. 1986).

        In the instant case, the Court did not err in rendering a decision in favor of the Defendants

in their counterclaim to quiet title because the Defendants proved by a preponderance of the

evidence, the boundaries of the land for which they maintained paramount title. See Plauchak,

653 A.2d at 675. The Defendants established a clear chain of title dating back to the original

Dickinson Deed which provides that the Sixth Street Property and the Payload Property extend to

the "middle line" or "center line" of the North Pennsylvania Railroad, including the area

occupied by the railroad. (Def Tr. Exh. 54 ). The chain of title tracks through Defendant Sixth



                                                   17
Street purchasing the Sixth Street Property from the estate of Edward Rabon and the Pettacio

Defendants purchasing the Payload Property from Luis A. Colon. (N.T. 3/13/15 at 161)' (Def.

Tr. Exh. 45). Moreover, as discussed infra, because Conrail extinguished its interest in the

disputed property in 1988, the Defendants have shown that they own their respective portions of

the disputed property in fee simple. See Dellach v. DeNinno, 862 A.2d 117, 118 (Pa. Super.

2004). Finally, the Plaintiffs claim that their own failure to prove standing precludes the

Defendants from seeking a counterclaim fails because the Defendants have established their title

and thus succeed, regardless of the weaknesses of the Plaintiffs case. See Plauchack, 653 A,2d

at 675 n.3.

        Plaintiff contends that this Court erred by ruling on the Defendants' counterclaims

because Ms. Miller was not a party to this action. A party is indispensable only when his or her

rights are so connected with the claims of the litigants that no decree can be made without

impairing those rights. See Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988). "[I]f, [however],

the merits of a case can be determined without prejudice to the rights of the absent party, the

court may proceed." Id.

        In the instant case, The Plaintiff claims that Ms. Miller was an indispensable party to the

action due to her claimed interest in the land. However, Ms. Miller did not have a legally

cognizable claim to the disputed property. This Court had ruled in a prior case that Ms. Miller

did not have a right to use the alleged easement. (Def. Tr. Exh. 19 at 6). Thus, at the time of this

trial. Ms. Miller no longer had an interest in the disputed property so as to be considered an

indispensable party. See Sprague v. Casey, 550 A.2d at 189.

        Additionally, Ms. Miller suffered no prejudice resulting from the Court's determination

of the Defendants' counterclaims.   Plaintiff litigated this case on Plaintiffs behalf, and at her



                                                 18
request. (N.T. 3/17/15 at 48). Furthermore, Plaintiff was represented by Ms. Miller's own

attorney, Mr. Anthony Quinn. (N.T. 3/16/15 at 147). Thus, any interest Ms. Miller may have

had in the disputed property was thoroughly defended by Plaintiff in the instant case and she

suffered no prejudice by her decision to allow them to litigate the issue for her.

JV The Plaintiff's Ejectment Action

       The Plaintiff claims that the Court erred in concluding that Plaintiff failed to meet their

burden in its ejectment action against the Defendants.   When reviewing a trial court's decision in

a quiet title or ejectment action, the court's findings need only be supported by competent

evidence. See Dellach, 862 A.2d at 118; Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super.1998).

The trial court's decision will not be reversed absent an error of law or capricious disregard of the

evidence. Corbin, 716 A.2d at 617. In the instant case, this Court's conclusion that the 1854

Dickinson Deed conveyed an easement interest in the disputed property and that the Plaintiff's

predecessor-in-interest   had extinguished that easement in 1988 was well supported by the

competent evidence introduced at trial. Thus, the Plaintiff's claim that this Court erred in its

conclusions of law is without merit. See Dellach, 862 A.2d at 118; Corbin, 716 A.2d at 617.

        A. The Court's Conclusion That the 1854 Dickinson Deed Conveyed a Railroad Right-

            of-Way/ Easement Interest in the Disputed Property Was Supported by Competent

            Evidence

        In interpreting the 1854 Dickinson Deed, the Court's primary object is to ascertain and

effectuate the intent of the parties at the time of transaction. Mackall v. Fleegle, 801 A.2d 577,

581 (Pa. Super 2002). The traditional rules of construction that guide the Court's determination

of that intention are:

            ( 1) the nature and quantity of the interest conveyed must be ascertained from
            the instrument itself and cannot be orally shown in the absence of fraud,


                                                  19
             accident or mistake and we seek to ascertain not what the parties may have
             intended by the language but what is the meaning of the words ... ; (2) effect
             must be given to all the language of the instrument and no part shall be
             rejected if it can be given a meaning ... ; (3) if a doubt arises concerning the
             interpretation of the instrument it will be resolved against the party who
             prepared it ... ; ( 4) unless contrary to the plain meaning of the instrument. an
             interpretation given it by the parties themselves will be favored ... ; (5) 'to
             ascertain the intention of the parties, the language of a deed should be
             interpreted in the light of the subject matter, the apparent object or purpose of
             the parties and the conditions existing when it was executed.'

                 Id, citing Lawson v. Simonsen, 517 A.2d 155, 158 (Pa. 1980).

        In deciding whether the 1854 Dickinson Deed created a railroad right-of-way/easement

or a fee simple, this Court examined a number of factors that Pennsylvania courts have relied

upon in making this determination.          Factors which are indicative of an intent to convey a railroad

right-of-way/easement rather than a fee interest include: (1) the lack of a warranty clause in the

deed; (2) the recitation of specific rights granted to the railroad by the deed, such as the right to

"use" the land for "construction, repair and use" because such language would be surplusage if

the interest conveyed was a fee; and (3) the inclusion in the deed of a clause which releases the

railroad from liability for damages resulting from the railroad's use of the land or rising from the

location, construction and operation of the railroad.5 See Lawson, 517 A.2d at 158; Brookbank v.

Benedum-Trees Oil       c«. 131 A.2d      103, 110 (Pa. 1957); see also Mackall v. Fleegle, 801 A.2d

577, 582 (Pa. Super 2002) (discussing Lawson and Brookbank). Meanwhile, factors which are

indicative of an intent to convey a fee rather an easement/right-of-way include: ( 1) the presence

of a habendurn clause in the deed, so long as interpreting the habendum clause to mean the



5
  This last factor is inapplicable here because the 1854 Dickinson Deed did not grant the railroad a release from
liability. Of course, conveyances of an easement often do not release the grantee from liability. See Stanton v.
Lackawanna Energy Ltd., 886 A .2d 667, 677 (Pa. 2005) (noting that an "an easement holder is subject to the same
liability as any other possessor of the premises" and detailing numerous cases where the easement holder was subject
to liability resulting from the easement holder's use of the land.). As such, while presence of a release is indicative
of intent, the absence of a release of liability in the document is not indicative one way or the other of the parties'
intent to convey an easement/right-of-way or a fee.

                                                          20
parties conveyed a fee does not conflict with the parties intention as set forth in the granting

clause; and (2) the use of the present tense of the words "grant, bargain, sell, release, and

confirm" to convey an interest to the "grantee, his heirs, or assigns" because such language

indicates that the grantor is engaging in a present transfer of her estate in fee, so long as other

parts of the deed do not elucidate the intention of the parties to convey a lesser interest. See

Brookbank, 131 A.2d at 159-61. Additionally, the amount of consideration paid for the interest

is also indicative of the parties' intent where there is evidence of the value of the land at the time

of the conveyance. Id. Under this factor, a large amount of consideration paid in comparison to

the value of the land indicates an intent to convey a fee, and a small amount indicates an intent to

convey an easement/right-of-way.     Lawson, 417 A.2d at 159 (consideration of $1 in exchange

for a strip of land 6 miles long and 66 feet wide was insufficient in 1881 to convey a fee

interest).

         In the instant case, considering these factors, the weight of the evidence supported the

conclusion that the 1854 Dickinson Deed conveyed an easement/right-of-way.           First, the I 854

Dickinson Deed contains no clause requiring Ms. Dickinson to warrant title. As in Lawson,

Brookbank, and Mackall, the Court agrees that it is unlikely that North Pennsylvania Railroad

intended to receive a fee interest from Ms. Dickinson without requiring such a clause. Lawson,

4 I 7 A.2d at 159; Brookbank, 131 A.2d at 11 O; Mackall, 801 A.2d at 582.

         Second, the 1854 Dickinson Deed granting clause recites specific and limited rights

granted to North Pennsylvania Railroad. The granting clause states that Ms. Dickinson "doth

Grant Bargain Sell Release and Confirm unto the Said North Pennsylvania Railroad Company

their Successors and assigns the Exclusive use Right liberty and privilege of using occupying and

 Enjoyingfor Railroad purposes All that Strip or piece of land [ concerning the disputed property]



                                                   21
... which is to be taken as part of this indenture and of keeping using and maintaining thereon

the Rail Road   of the Said   party."   (Plf. Exh 1 ); (Def. Exh 80). This language is not appreciably

different than the language in the 1852 instrument conveying a railroad right-of-way discussed in

Quarry Office Park Assoc. v. Philadelphia Elec. Co., 576 A.2d 358, 362~63 (Pa. Super 1990)6,

and, as the Brookbank Court noted, would be mere "surplusage" if the parties intended to convey

a fee interest. Brookbank, 131 A.2d at 110. Considering that the 1854 Dickinson Deed was

drafted at or near the same time that the Quarry instrument was drafted, the words "Exclusive

use Right liberty and privilege of using occupying and Enjoyingfor Railroad purposes" and

"keeping using and maintaining thereon the Rail Road of the Said party" can therefore be given

the effect and meaning that the parties intended to convey a railroad right-of-way/easement.

        Third, while it is true that the 1854 Dickinson Deed contains a habendum clause, the

presence of such a clause is not sufficient to find that that the parties intended to convey a fee.

See e.g., Moody v. Allegheny Valley Land Trust, 976 A.2d 484, 491 (Pa. 2009) ("Fundamentally.

the deed and its habendum clause create an easement to allow travel through the servient

estates."); Hassler v. Mummert, 364 A.2d 402, 404 (Pa. Super 1976) ("It is the type of easement

that by its very nature tends to be appurtenant, and the use of words of inheritance in the

habendum and warranty clauses removes any doubt that it was intended to be so."). Moreover,

the presence of a habendum clause is not necessarily indicative of the parties' intent when it

conflicts with the granting clause. In Fleck v. Universal-Cyclops Steel Corp., the Supreme Court

held the interest conveyed was an easement/right-of-way even though the deed conveying the




6 The 1852 instrument in Quarry stated that the grantor "by these presents do grant, bargain, sell, convey and confirm
unto the said the Chester Valley Rail Road Company, their successors and assigns, the right, liberty, and privilege of
entering upon and occupying the land belonging to me ... and also the right of using, occupying. and enjoying the
said land perpetually, for all the uses and purposes convenient or necessary for a Rail Road." Quarry, 576 A.2d at
431-32 (emphasis added).

                                                         22
property to the railroad contained a habendum clause. 156 A.2d at 834 (Pa. 1959). In that case,

the habendum clause in the deed contained the following language, "to have and to hold the said

strip of land and the said rights and privileges and uses so long as the same be required for the

uses and purposes of said railroad." Though the Fleck court recognized that such language

"generally indicates a base fee [ also known as a fee simple determinable], sometimes it is used in

connection with a fee simple," and "sometimes it is used to describe an easement." Id.; see

BLACK'S LAW     DICTIONARY (10th Ed. 2014) (defining "base fee" as a fee simple determinable or

"[a] fee that has some qualification connected to it and that terminates whenever the qualification

terminates").   Importantly, according to Fleck, where the habendum clause conflicts with the

granting clause in the deed, the granting clause prevails. Fleck, 15 A.2d at 652. As such, the

presence of a habendum clause in the document is a necessary, but not sufficient, condition to

find the parties intended to convey a fee.

        In the instant case, the language in the habendum clause is entirely consistent with the

intent expressed in the granting clause elucidating that Ms. Dickinson conveyed only a railroad

right-of-way/easement.    The habendum clause in the 1854 Dickinson Deed states that North

Pennsylvania Railroad and its successors-in-interest   "hold the Rights and premises aforesaid ...

forever upon condition that" that said company and its successors-in-interest   "Shall make

maintain keep and use" a railroad, "and if it shall happen that the Rail Road Contemplated ...

over the Said Described Strip or piece of Land ... shall be removed or abandoned or ... cease to

be used for Rail Road Purposes then the Said Strip of land shall revest" in Ms. Dickinson, her

heirs, and assigns "and she or they "shall thereupon repossess and enjoy the same premises as if

this Present Indenture had never been made." (Def. Exh 80) (emphasis added). The operative

 language in the habendum clause is clear that if the land is "abandoned" or "cease[ s] to be used



                                                 23
for Rail Road Purposes,"         then that land "shall revest" (i.e. give Ms. Dickinson and her heirs clear

title, or "title anew"),   7   and that Ms. Dickinson and her heirs shall thereupon (i.e. "immediately")

repossess (i.e. "regain possession of') the disputed property. Such operative language (upon

abandonment of the property the grantor or her successors get new title and recommences

her/their full possession of the land) is identical in effect and in kind to a common law

abandonment of a railroad right-of-way/easement. See Buffalo Tp. v. Jones, 813 A.2d 659, 664,

664 (Pa. 2002) (holding that an abandonment of a right-of-way reverts the property interest to the

grantor or the granter's successors and that such a reversion is "the residue of an estate left to the

granter, to commence in possession after the determination of some particular estate granted out

by him.") (internal citations and quotations omitted); id at 664 n.6, quoting BLACK'S LA w

DICTIONARY      405 (5th Ed. 1979) (Determination is defined as "[tlhe ending or expiration of an

estate or interest in property.").

         Finally, the amount of stated consideration in the 1854 Dickinson Deed, $9,356.67, did

not provide a reasonable basis for the Court to conclude that there was intent to convey a fee

simple. The reason for this is because the Court was presented no evidence as to the value of the

entire 9 .3 5625 acres of land conveyed in 18 54, meaning any such conclusion as to the parties'

intent would be based solely on conjecture or surmise. See Brookbank, 131 A.2d at 159 ("In the

absence of any evidence as to value of this strip of land in 1903, a finding that the consideration

was inadequate for conveyance of a fee simple title would be based on conjecture and surmise.

On this record the stated consideration is not reflective of the parties' intent.").




 7 See BLACK'S LAW DICTIONARY (IO'" ed. 2014) (defining "revest" as "To clothe or vest again or anew, as with
 rank, authority, or ownership <revesting the former owner with title>"); id. (defining "clear title" as a title "free
 from any encumbrances [such as an easement], burdens, or other limitations").

                                                            24
       Thus, given the evidence presented at trial and the factors enumerated by Pennsylvania

Superior Court, this Court did not err in holding that the 1854 Dickinson Deed conveyed a

railroad right-of-way/easement.

       B. The Court Did Not Err in Concluding that the Plaintiffs Predecessor-In-Interest,

             Conrail, Extinguished the Railroad Right-of-Way/Easement      Over the Disputed

             Property

        Plaintiff further disputes this Court's determination that Plaintiffs predecessor-in-

interest, Conrail, extinguished its interest in the disputed property through abandonment.      "When

a railroad abandons an easement, the right-of-way is extinguished and the land is owned in fee

simple by the owner or owners of the land on either side of the right-of-way." Dellach, 862 A.2d

at 118. In order to find that a right-of-way has been abandoned, there must be a: (1) intent to

abandon; and (2) external acts by which the intention is carried out. Thompson v. Maryland &

Penn. Railroad Preservation Soc., 612 A.2d 450, 453 (Pa. Super. 1992). Mere non use does not

amount to abandonment.     Buffalo, 813 A.2d at 665. Instead, the conduct of the Plaintiff or its

predecessor Conrail "must have some affirmative act on his part which renders use of the

easement impossible, or of some physical obstruction of it by him in a manner that is

inconsistent with its further enjoyment. Id., quoting Thompson, 612 A.2d at 453 (emphasis in

original).

        In the instant case, Conrail exhibited an intent to abandon the disputed property when it

submitted an application for abandonment of the Bethlehem Branch to the ICC on May 18, 1984.

(Plf. Exh 11); (Enright Tr. at 22, 84); see Buffalo, 813 A.2d at 665 ("The filing of a certificate of

abandonment with the ICC or PUC demonstrate[ s] intent to abandon.").        Thereafter, Conrail took

up the rails over the disputed property, rendering the rail completely out of service by 1988.



                                                  25
(Enright Tr. at 87-90). Conrail's intent to abandon was therefore also accompanied by external

affirmative acts of physical obstruction that carried out its intention. Accordingly, in 1988,

Conrail extinguished any interest it or its successors, including the Plaintiff, had in the disputed

property, causing the Defendants' predecessors-in-title to own the property in fee simple.

DeNinno, 862 A.2d at 118. The Plaintiffs ejectment action therefore fails because it did not

prove by a preponderance of the evidence that it ever had a right to possess the disputed property

or paramount title over the disputed property. Billig v. Skvaria, 853 A.2d 1042, 1049-50 (Pa.

Super 2004 ).

        C. This Court Did Not Err In Concluding that the Plaintiff Failed to Meet Its Burden

            Permanent Injunctive Relief

        "In order to establish a claim for a permanent injunction, the party must establish his or

her clear right to relief." Buffalo, 813 A.2d at 660. The Court "may issue a final injunction if

such relief is necessary to prevent a legal wrong for which there is no adequate redress at law."

Id. In this case, for the reasons discussed above, the Plaintiff failed to establish its clear right to

relief and thus its argument to the contrary is without merit.

 V The Defendants' Counterclaims

    A. This Court Did Not Abuse Its Discretion m Permitting Defendants to Amend Their

         Counterclaims

    The Court did not abuse its discretion in permitting the Defendants to amend their

 counterclaim during trial to assert a claim for ejectment as to a portion of the disputed property.

 Pennsylvania courts consistently hold that "amendments to pleadings are permitted at any time,

 including before, during, and after trial. See, e.g., Horowitz v. Universal Underwriters Ins., 580

 A.2d 395, 398 (Pa. Super. 1990); Winterhalter v. West Penn Power Co., 512 A.2d 1187, 1189



                                                   26
(Pa. Super. 1986) ("Courts have allowed amendments at any time, as provided by the specific

language of this statute.); Biglan v. Biglan, 479 A.2d 1021, 1025 ("As can be seen from the clear

language of this rule, no limit is imposed on the time when an amendment may be made."). The

fundamental purpose of this rule is to prevent cases from turning on purely technical defects.

Biglan. 479 A.2d at 1025. In Sutton v. Miller, the Pennsylvania Superior Court allowed an

amendment from a quiet title action to an ejectment action after the appeal, because the change

was "mere formalism." 592 A.2d 83, 86-87 (Pa. Super. 1991 ).

       In the instant case, the granting of an amendment was proper because Plaintiff was not

prejudiced. Whether framed as an action to quiet title or for ejectment, Plaintiff was on notice

that Defendant sought to prove title to the disputed property. Thus, Plaintiff had sufficient

information as to prepare for trial, given the strong similarity between the two causes of action.

See id. (describing the similarity between actions to quiet title and ejectment).   The only effect

this amendment had on the case was to prevent it from turning on a mere technical issue because

the Plaintiff's privies happened to be in possession of a portion of the disputed property, making

ej ectment the proper cause of action. See Big/an, 4 79 A.2d at 1025. Thus, the Court did not

abuse its discretion in allowing for an amendment of the Defendants' counterclaim, even on the

third day of trial, where such amendment had no effect on Plaintiffs trial strategy and merely

prevented the case from turning on a formalistic technical issue. See Sutton, 592 A.2d at 87.

    B. The Defendants' Counterclaims Were Not Barred By The Statute of Limitations

    Plaintiff claims that the Defendants' counterclaims should have been defeated by the running

of the statute of limitations set by 42 Pa.C.S.A. § 5530. However, § 5530 governs the statute of

limitations governing the acquisition of title. Tioga Coal Co. v. Supermarkets Gen. Corp., 433

A.2d 483, 489 (Pa. Super. 1981 ). Thus, to avail themselves of §5530, a party must also make out



                                                  27
the elements of their acquisition of the title. See id. In making out a claim for adverse

possession, a party must show an: (I) actual, (2) visible, (3) notorious, (4) exclusive and distinct,

(5) hostile, and (6) continuous use (7) for twenty-one years. Dunlap v. Larkin, 493 A.2d 750,

756 (Pa. Super. 1985). In order to make out a claim for an easement, a party must prove that, for

a period of 21 years, the use of the property was all of the following: (1) adverse; (2) open; (3)

notorious; and (4) continuous and uninterrupted. Odelle's, Inc. v. Com .. Dep't ofConservation &

Nat. Res .. Bureau of State Parks, 699 A.2d 775, 784 (Cmwlth 1997).

    In the instant case, Plaintiffs did not even attempt to make an argument that they had cut off

the Defendants' ownership of the property through an adverse means of title acquisition. In fact,

the Defendants produced evidence to the contrary when Defendant Giunup testified that the

Defendants, rather than the Plaintiff, had been in continuous use of the property since they

purchased it in 2004. (N.T. 3/15/15 at 117-18).    Thus, the Plaintiffs argument that the

Defendants' counterclaim fails due to the statute of limitations is without merit.

D. CONCLUSION

       For the foregoing reasons, the decision of this Court should be affirmed.




                                                       BY THE COURT:




Dated: May 13, 2016                                    DENIS P. COHEN, J.




                                                  28
