J-A12008-17


                             2017 PA Super 410
THOMAS A. ROBINSON FAMILY LIMITED              IN THE SUPERIOR COURT OF
PARTNERSHIP, A PENNSYLVANIA                          PENNSYLVANIA
LIMITED PARTNERSHIP, AND T.A.
ROBINSON ASPHALT PAVING, INC., A
PENNSYLVANIA CORPORATION



                   v.

TED S. BIONI AND DOMINIC J. BIONI

                        Appellants                  No. 245 WDA 2016

              Appeal from the Order Entered January 20, 2016
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2014-2027

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY SOLANO, J.:                         FILED DECEMBER 27, 2017

      Appellants Ted and Dominic Bioni appeal from an order granting

permanent injunctive relief enforcing a prescriptive easement in favor of

Appellees Thomas A. Robinson Family Limited Partnership and T.A. Robinson

Asphalt Paving, Inc. (“the Robinsons”). After careful review, we deny the

Robinsons’ motion to quash the appeal for failure to file post-trial motions,

affirm the order of the trial court enjoining conduct by the Bionis that

interferes with the Robinsons’ prescriptive easement, and vacate the order

to the extent it enjoined conduct by the Bionis that interferes with a

purported prescriptive easement owned by the public.

      The Robinsons commenced this action by a complaint in equity that

sought to enjoin the Bionis from interfering with their ability to enter their

property from a public street (Federal Street) in Cecil Township, Washington
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County. The Robinsons have operated an asphalt business since 1994, and

store heavy equipment on their property. They also lease their property to

other commercial businesses that store commercial vehicles on the property.

Prior to their ownership and use of the property, it was owned by Angelo

Brunetti, who used it for the storage and hauling of coal by-product

materials. The Bionis own adjacent commercial property where they operate

an excavating and hauling business.

       The Robinsons access Federal Street by means of a strip of land (the

“cartway”), a portion of which abuts the Bionis’ property. The cartway, which

is sometimes referenced in the record as the “Federal Street Extension,” is

privately owned by the Robinsons, and, according to the Robinsons’ property

deed, it was originally nine feet wide. However, the Robinsons require a

larger width in order to accommodate their large vehicles and equipment.

The paved portion of the cartway now varies in places from nine to fifteen

feet in width, and a portion of the cartway next to the Bionis’ property is

fifteen feet wide. This width encroaches on the Bionis’ property by

approximately three feet. 1 The Robinsons contend that through years of

continuous use by themselves and their predecessor (Brunetti), they

acquired a prescriptive easement to use this additional width of the cartway.

The Bionis disagree and do not recognize the Robinsons’ right to use a

fifteen-foot-wide right-of-way.



____________________________________________
1 The widened cartway also encroaches a few feet into the residential
property on the opposite side of the cartway from the Bionis’ property.

                                           -2-
J-A12008-17


        In 2014, the Bionis erected a steel post at the edge of their property,

obstructing the Robinsons’ use of the portion of the cartway that encroaches

on the Bionis’ property. The Robinsons moved for a preliminary injunction to

have the post removed, and the trial court granted that relief by an order

dated April 11, 2014, which reads in relevant part:

              AND NOW, this 11th day of April, 2014, upon consideration
        of plaintiff Thomas A. Robinson Family Limited Partnership’s
        Motion for Preliminary Injunction, it is hereby ORDERED,
        ADJUDGED and DECREED that said motion is GRANTED, and a
        PRELIMINARY INJUNCTION is hereby entered, and defendant[s]
        Ted S. Bioni and Dominic J. Bioni and any other person or entity
        acting in active concert or participation with said defendant[s]
        are hereby ENJOINED from:

              A) Taking any action which would interfere with or prohibit
              Robinson from accessing the Subject Property from Federal
              Street across a portion of Bionis’ Property; and

              B) Taking any action that would interfere with or impede[]
              Robinson or its contractors, employees, and agents from
              accessing the Subject Property; and

              C) Bioni must remove the post that was installed on or
              about April 2, 2014, and is hereby prohibited from
              reinstalling any such barrier, post, or obstruction.

Order, 4/11/14, at 6.

        The trial court held hearings on the Robinsons’ request for a

permanent injunction on November 14, 2014, and January 26, 2015, during

which both sides offered testimony and exhibits. By an opinion and order

dated January 15, 2016,2 the trial court found in favor of the Robinsons and

against the Bionis, holding that the Robinsons held a prescriptive easement

over the disputed portion of the Bionis’ property along the cartway for
____________________________________________
2   The order was filed January 20, 2016.

                                           -3-
J-A12008-17


access to the Robinsons’ property. The court enjoined the Bionis from

interfering with that access. The trial court’s order reads:

            AND NOW, this 15th day of January, 2016, upon careful
      consideration of the evidence and testimony presented, and
      upon review of the briefs filed on behalf of Plaintiffs and
      Defendants, it is hereby ORDERED, ADJUDGED and DECREED
      that Plaintiffs’ Motion for a Permanent Injunction is GRANTED,
      and Defendants are hereby PERMANENTLY ENJOINED from:

            A) Taking any action which would interfere with or prohibit
            Plaintiffs or the public from accessing the subject Property,
            ingress or egress, from Federal Street across a portion of
            Defendants’ property;

            B) Installing or constructing any pole, marker or other
            obstacle which would impede or interfere with Plaintiffs’
            access, or its contractors, employees, agents, business
            invitees, tenants or the public to the subject Property.

             By way of further order, the trial court hereby ORDERS
      that the bond posted by Plaintiffs pursuant to the court’s order of
      April 11, 2014 is hereby released; and

            The trial court awards court costs in favor of Plaintiffs and
      against Defendants.

Opinion and Order, 1/15/16, at 6. Significantly, unlike the preliminary

injunction, the permanent injunction prohibited the Bionis from interfering

with access to the disputed portion of the cartway not only by the

Robinsons, but also by “the public.” In its Conclusions of Law, the court held

that the evidence not only proved that the Robinsons had acquired a

prescriptive easement across the Bionis’ property, but also that “the public

and Cecil Township” had done the same. See id. at 5 (Legal Conclusions 1-

2).

      The Bionis did not seek post-trial relief pursuant to Rule 227.1 of the

Rules of Civil Procedure. Rather, on February 16, 2016, they filed a direct
                                      -4-
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appeal to this Court in which they raise the following six issues:

      1. Is a Trial Court Order granting a permanent injunction, which
      alters the status quo, immediately appealable as a matter of
      right pursuant to Pa.R.A.P. 311(4)?

      2. Did the Trial Court Abuse its Discretion in making findings of
      fact which are not supported by substantial evidence of record?

      3. Did the Trial Court abuse its discretion and/or err as a matter
      of law in concluding that the Robinsons demonstrated by “clear
      and positive proof” the existence of a prescriptive easement
      acquired in their favor over and across the Bionis’ property
      based on the adverse, open, notorious, continuous and
      uninterrupted use by the Robinsons and their predecessors in
      title for over twenty-one years?

      4. Did the Trial Court abuse its discretion and/or err as a matter
      of law in determining that the evidence adduced at trial
      demonstrated by “clear and positive proof” the existence of a
      prescriptive easement in favor of the public and Cecil Township
      over and across Defendant’s property along “Federal Street
      Extension” based on the adverse, open, notorious, continuous
      and uninterrupted use by the public and the Township for over
      twenty-one years?

      5. Did the Trial Court abuse its discretion and/or err as a matter
      of law in failing to identify the period of prescription, as well as
      the specific location and size of the alleged prescriptive
      easement?

      6. Did the Trial Court abuse its discretion and/or err as a matter
      of law in determining the existence of a prescriptive easement
      where no evidence of record demonstrates that the Robinsons’
      predecessors in interest ever used the Bionis’ property adversely
      and/or whether by words or action ever asserted a prescriptive
      easement claim over said property?

Bionis’ Brief at 5-6 (suggested answers omitted).

      On March 18, 2016, we issued an order requiring the Bionis to show

cause why their appeal should not be dismissed for failure to file a post-trial

motion pursuant to Rule 227.1. On March 21, 2016, the Robinsons filed a

motion to quash the appeal based on the Bionis’ failure to comply with Rule
                                     -5-
J-A12008-17


227.1. See Mot. To Quash, 3/21/16. On April 6, 2016, we issued a per

curiam order dismissing the appeal sua sponte, and dismissing the

Robinsons’ motion to quash as moot. On April 7, 2016, the Bionis filed an

application for reconsideration of our April 6, 2016 order, in which they

contended that they were not required to file a post-trial motion because

they had filed an interlocutory appeal from an order granting an injunction

pursuant to Rule 311(a)(4) of the Rules of Appellate Procedure. On April 27,

2016, we issued a per curiam order that granted reconsideration, vacated

our April 6, 2016 order dismissing the appeal, discharged our March 16,

2016 order to show cause, and deferred the Robinsons’ motion to quash to

the Court’s merits panel.

      Our standard of review over the order under appeal is as follows:

      The grant or denial of a permanent injunction is a question of
      law. Regarding the trial court's legal determination, our standard
      of review is de novo, and our scope of review is plenary. As in all
      equity matters, however, we must accept the trial court's factual
      findings and give them the weight of a jury verdict where they
      are supported by competent evidence.

Liberty Place Retail Associates, L.P. v. Israelite Sch. of Universal

Practical Knowledge, 102 A.3d 501, 506 (Pa. Super. 2014) (citations

omitted).

            Jurisdiction and Failure To File Post-Trial Motion
                (Bionis’ Issue 1; Robinsons’ Motion to Quash)

      The referral to this panel of the Robinsons’ motion to quash this appeal

charges us with deciding whether the Bionis waived their appellate rights by

failing to file a post-trial motion under Rule 227.1 of the Rules of Appellate

Procedure. Our scope of review is plenary regarding this question of law.
                                     -6-
J-A12008-17


See Chalkey v. Roush, 805 A.2d 491, 498 (Pa. 2002). The Bionis contend

that they were not required to file a post-trial motion because the

permanent injunction from which they appeal is interlocutory and Appellate

Rule 311(a)(4) entitles them to appeal immediately from that injunction

without complying with Rule 227.1. They present their theory of jurisdiction

under Rule 311 as the first of their appellate issues. On this issue too, our

review is plenary. See Robert Half Int'l, Inc. v. Marlton Techs., Inc.,

902 A.2d 519, 524 (Pa. Super. 2006) (en banc).

      Rule 227.1(c) provides: “Post-trial motions shall be filed within ten

days after . . . the filing of the decision in the case of a trial without jury.”

Pa.R.Civ.P. 227.1(c)(2) (emphasis added). In Chalkey, the Supreme Court

emphasized that this rule applies to equity cases. The Court explained that

in 1984, it “adopted Rule 227.1 through 227.4 to establish uniform

procedures for post-trial relief in actions at law and equity.” Under the new

scheme —

      a party must file post-trial motions at the conclusion of a trial in
      any type of action in order to preserve claims that the party
      wishes to raise on appeal. In other words, a trial court's order at
      the conclusion of a trial, whether the action is one at law or in
      equity, simply cannot become final for purposes of filing an
      appeal until the court decides any timely post-trial motions. See
      Pa.R.C.P. 227.1(a).
                                     ...

      With this unequivocal rule, there is no danger that parties will be
      confused as to whether they should file post-trial motions or
      proceed directly to an appeal from an order entered by a trial
      court in an action in equity.




                                      -7-
J-A12008-17


805 A.2d at 494-96 (emphasis in original).3

       Under Rule 227.1, a party that has received a trial court’s decision

after a non-jury trial may move to have the trial court “direct the entry of

judgment in favor of any party.” Pa.R.Civ.P. 227.1(a)(2). In connection with

that request, or in the alternative, it can seek to have the judgment changed

or modified, or can ask for a new trial. See id. R. 227.1(a)(1)&(4), (e). In

any event, it is the judgment resulting from that motion that will constitute

the appealable “final order” in the case. Int'l Ass'n of Theatrical Stage

Employees, Local Union No. 3 v. Mid-Atlantic Promotions, Inc., 856

A.2d 102, 104 n.2 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa.

2005). The losing party then will be able to appeal from that order under

Rule 341 of the Rules of Appellate Procedure, which affords a right of appeal

“from any final order of a . . . trial court.” Pa.R.A.P. 341(a). 4 Because the

Bionis failed to follow this course, the Robinsons contend that they forfeited

their right to obtain appellate relief. In an opinion filed pursuant to Rule

1925(a) of the Rules of Appellate Procedure, the trial court agreed. See Trial


____________________________________________
3 Although there have been some amendments since Chalkey was decided
in 2002, the material provisions of Rule 227.1 have not significantly
changed.
4 Thus, the filing of a post-trial motion serves two critical functions in
appellate practice. First, it preserves issues for appellate review, as
“[g]rounds not specified [in a post-trial motion] are deemed waived.”
Pa.R.Civ.P. 227.1(b)(2); Diamond Reo Truck Co. v. Mid-Pacific Indus.,
Inc., 806 A.2d 423, 427-31 (Pa. Super. 2002). Second, it satisfies an
essential procedural prerequisite to obtaining an appealable final judgment.
Because post-trial motions must be filed within ten days after a decision in a
non-jury trial, Pa.R.Civ.P. 227.1(c), the failure to meet this deadline will
preclude entry of any final order and foreclose appellate review.

                                           -8-
J-A12008-17


Ct. Op. at 7.

      The Bionis’ response is that Appellate Rule 311(a)(4) provided them

with an alternate route to appellate review in this case. Rule 311 is entitled,

“Interlocutory Appeals as of Right.” Rule 311(a)(4) states:

      (a) General Rule. An appeal may be taken as of right and
      without reference to Pa.R.A.P. 341(c) from:
                                     ...

      (4) Injunctions.––An order that grants or denies, modifies or
      refuses to modify, continues or refuses to continue, or dissolves
      or refuses to dissolve an injunction unless the order was
      entered:

         (i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a) [sections of
         the Divorce Code]; or

         (ii) After a trial but before entry of the final order. Such order
         is immediately appealable, however, if the order enjoins
         conduct previously permitted or mandated or permits or
         mandates conduct not previously mandated or permitted, and
         is effective before entry of the final order.

Pa.R.A.P. 311(a)(4). According to the Bionis, the permanent injunction

issued by the trial court falls under Rule 311(a)(4)(ii) because it was

effective before a final judgment was entered (that is, while it was

interlocutory) and it changed the status quo that existed under the

preliminary injunction by making the easement rights over the Bionis’

property extend to the general public. Bionis’ Brief at 26-27. Therefore,

according to the Bionis, they were entitled to appeal immediately from the

interlocutory permanent injunction, without any need to file a post-trial




                                      -9-
J-A12008-17


motion first.5 After careful consideration, we agree.

       Rule 311(a)(4) was originally designed to permit immediate appeals

from preliminary injunctions. See G.R. Darlington, et al., PENNSYLVANIA

APPELLATE PRACTICE § 311:45, at 579-81 (2016) (“The Rule traditionally has

been interpreted to apply to preliminary injunctions [and] is based on

statutes and decisional law that pertain to the granting, continuing,

modifying, refusing or dissolving of preliminary injunctions” (footnotes

omitted)). In Wynnewood Development, Inc. v. Bank and Trust Co. of

Old York Road, 711 A.2d 1003, 1005 (Pa. 1998), the Supreme Court held

that the rule also applies to an order dismissing a request for equitable relief

that was not otherwise appealable as a final order because other claims for

damages remained undecided.6 The Court explained:

       [T]he plain meaning of the words contained in Rule 311(a)(4) is
       that an order refusing a request for an injunction is an
       interlocutory order appealable as of right unless the order
       involves an injunction issued pursuant to two explicit provisions
       of the Divorce Code or the order is in the form of a decree nisi.
       Here, the denial of Wynnewood’s prayer for injunctive relief was
       neither made under the Divorce Code nor entered as a decree
       nisi. Thus, Rule 311(a)(4) mandates a finding that the trial
       court's order granting Old York Road’s motion for summary
       judgment and dismissing Wynnewood’s prayer for injunctive
       relief and specific performance was an interlocutory order
       appealable as of right.
____________________________________________
5 See Pa.R.A.P. 311, Note (“If an order falls under Pa.R.A.P. 311, an
immediate appeal may be taken as of right simply by filing a notice of
appeal. The procedures set forth in Pa.R.A.P. 341(c) and 1311
[(Interlocutory Appeals by Permission)] do not apply to an appeal under
Pa.R.A.P. 311.” (emphasis added)).
6 Under Appellate Rule 341(b)(1), unless an order disposes of all claims
against all parties, it is not a final order for purposes of an appeal under that
rule.


                                          - 10 -
J-A12008-17



Id. (footnotes omitted). 7 Following Wynnewood, in Nevyas v. Morgan,

921 A.2d 8 (Pa. Super. 2007), we held that a party could invoke Rule

311(a)(4) to appeal from a final injunction entered in a case in which claims

for damages remained pending. We explained that because the unresolved

damages claims prevented the injunction from being a final order under

Appellate Rule 341, the injunction was interlocutory and appealable under

Rule 311. Id. at 12-13; accord Altoona Reg'l Health Sys. v. Schutt, 100

A.3d 260, 264-65 (Pa. Super. 2014) (appeal of final injunction proper under

Rule 311(a)(4) although counterclaim remained undecided).        In addition,

and particularly relevant here, we held that in this situation, a post-trial

motion need not be filed, stating, “it is improper to file a motion for post-

trial relief when appealing pursuant to Rule 311.” Nevyas, 921 A.2d at 13.

       The injunction at issue here is a permanent injunction, not a

preliminary one. And unlike the permanent injunction at issue in Nevyas,

this final injunction was not issued in a case that is interlocutory because

non-equitable claims remained undecided. The permanent injunction entered

by the trial court resolved all of the claims presented by the Robinsons

against the Bionis, and there are no other claims against any parties that
____________________________________________
7 A decree nisi was a provisional decree that would be made absolute on
motion (the equivalent to an injunctive decree under the current rule when a
post-trial motion has not yet been filed). After the Wynnewood decision,
rules changes in 2003 did away with decrees nisi, and Rule 311(a)(4) was
amended in 2009 to reflect that change by removing that term from Rule
311(a)(4). Pa.R.A.P. 311, Note. As discussed in the text, the provisions of
Rule 311(a)(4)(ii) now deal with the concerns addressed by the prior rules
regarding decrees nisi.


                                          - 11 -
J-A12008-17


remain to be resolved. This case therefore does not fall under our past

precedents. The only reason the Bionis can claim that the permanent

injunction at issue here is an interlocutory order under Rule 311 is that they

did not do what is necessary to make it a final order — that is, they did not

file a Rule 227.1(a) motion that would result in entry of a final judgment on

the permanent injunction.

       Rule 311(a)(4)(ii) deals with this situation by stating that a permanent

injunction like this one normally is not appealable under that rule. It says,

“An appeal may be taken as of right . . . from . . . [a]n order that grants . . .

an injunction unless the order was entered . . . [a]fter a trial but before

entry of the final order.” Pa.R.A.P. 311(a)(4)(ii) (emphasis added). The

original version of this provision was added to Rule 311 in 1996 to overrule

caselaw that had interpreted Rule 311 to permit immediate appeals from

provisional injunctive decrees (decrees nisi) without having them reduced to

judgment.8 It was amended in 2009 to eliminate references to “decrees nisi”

but maintain the same result. See Pa.R.A.P. 311, Note (explaining 2009

amendment and stating, “Because decrees nisi were in general not

appealable to the extent they were not effective immediately upon entry,

____________________________________________
8 The original language of this provision stated, “A decree nisi granting or
denying an injunction is not appealable as of right under this rule . . . .” 26
Pa. Bull. 1985 (Apr. 27, 1996). In promulgating the amendment, the
Supreme Court explained in an Official Note: “The 1996 amendment to
paragraph (a)(4) reconciled two conflicting lines of cases by adopting the
position that generally an appeal may not be taken from a decree nisi
granting or denying a permanent injunction. . . . To the extent that [five
listed decisions] permit an immediate appeal from a decree nisi granting or
denying prospective injunctive relief, they are overruled.” Id. at 1986.

                                          - 12 -
J-A12008-17


this principle has been expressly incorporated into the body of the rule as

applicable to any injunction”). The rule thus prevents use of Rule 311 as a

backdoor means of bypassing the post-trial motion and final judgment

requirements applicable to most appeals.

       But Rule 311(a)(4)(ii) contains an exception:

       Such order is immediately appealable, however, if the order
       enjoins conduct previously permitted or mandated or permits or
       mandates conduct not previously mandated or permitted, and is
       effective before entry of the final order.

Under this provision, an appeal may be taken from an order that (because a

final judgment has not yet been entered) is not otherwise appealable under

Rule 311(a)(4)(ii) if (1) the order enjoins conduct previously allowed or

allows conduct previously prohibited, and (2) the injunction takes effect

before entry of a final judgment. We have found no controlling caselaw

applying this exception, 9 but its clear purpose is to permit an immediate


____________________________________________
9 A similar, but slightly different, version of the exception was added to Rule
311 at the time of the 1996 amendments. It stated that there could be no
appeal from a decree nisi “unless the decree nisi (i) grants an injunction
effective upon the entry of a decree nisi or (ii) dissolves a previously granted
preliminary injunction effective upon the entry of a decree nisi.” 26 Pa. Bull.
at 1985. According to the Supreme Court’s 1996 Official Note, “[I]f the
decree nisi grants or denies permanent injunctive relief to become effective
when the decree nisi is made final, no appeal is possible. If, however, the
decree nisi provides for permanent injunctive relief upon entry of the decree
nisi, or strikes a previously granted preliminary injunction upon entry of the
decree nisi, the decree nisi is appealable pursuant to phrase (a)(4)(i) or (ii).”
Id. at 1986. In Vonada v. Long, 852 A.2d 331, 336 n.8 (Pa. Super. 2004),
we stated in dicta that the 1996 exception would apply to a decree nisi that
“had the immediate effect of changing the status quo.” We held, however,
that the injunction entered in that case was not a decree nisi because its
language was immediately effective, see id. at 336 & n.7, and a post-trial
motion was not required because the injunction was entered in a non-
evidentiary proceeding, rather than a trial, see id. at 332 & n.2, 336-37.
(Footnote Continued Next Page)
                                          - 13 -
J-A12008-17


appeal if an immediately-effective permanent injunction makes such a

change to the status quo that the aggrieved party needs quick appellate

recourse without incurring delays from post-trial proceedings in the trial

court.10 The exception is designed to provide the putative appellant with the

option11 to file for immediate review of a “new” injunction entered after trial,

notwithstanding that final judgment has not been entered.

      The permanent injunction entered by the trial court fits within this

exception. The order states that on “this 15th day of January, 2016, . . . it is

hereby ORDERED, ADJUDGED and DECREED that . . . Defendants are hereby

PERMANENTLY ENJOINED from” taking any of the specified actions in the

decree. The order thus takes immediate effect, and is not contingent upon

entry of a final judgment. And the terms of the injunction are different from

those under the trial court’s preliminary injunction, in that it enjoins the

Bionis from interfering with access by the public (not just the Robinsons or


(Footnote Continued) _______________________
Although we characterized the Vonada injunction as “interlocutory but
appealable as of right under Pa. R.A.P. 311(a)(4),” id. at 337, we also said
the court entered a “final decree,” id. at 336 n.7, and did not explain why
Rule 341 therefore would not apply.
10 Other   rules similarly permit bypass of time-consuming post-trial
procedures in exigent circumstances requiring speedy appellate action. See,
e.g., Pa.R.Civ.P. 1531(f)(2) (making Rule 227.1 inapplicable to injunction
actions involving freedom of expression). One of the cases cited by the
Bionis, O.D. Anderson, Inc. v. Cricks, 815 A.2d 1063, 1067 (Pa. Super.
2003), applied Rule 1531(f)(2), but that rule is not at issue here.
11 Filing an immediate appeal from an injunction under Rule 311(a)(4) is not
mandatory, and an appellant may elect instead to engage in normal post-
trial procedures and then appeal from a final judgment. See Pa.R.A.P.
311(g). An appellant might wish to follow that course if the grounds for
appeal include matters that would call for exercise of discretion by the trial
court, such as ordering a new trial based on the weight of the evidence.

                                         - 14 -
J-A12008-17


their business affiliates) to the disputed portion of their property. It thus

changes the status quo by prohibiting conduct by the Bionis that previously

was not enjoined. For these reasons, the permanent injunction qualifies as

an interlocutory order immediately appealable as of right pursuant to Rule

311(a)(4)(ii). As such, it was appealable by filing a notice of appeal, without

the need for post-trial motions under Rule 227.1. Pa.R.A.P. 311, Note (“If an

order falls under Pa.R.A.P. 311, an immediate appeal may be taken as of

right simply by filing a notice of appeal”); Nevyas, 921 A.2d at 13 (“it is

improper to file a motion for post-trial relief when appealing pursuant to

Rule 311”).

       Accordingly, we hold that the Bionis’ appeal is properly before us and

that they did not waive their appellate rights by failing to file a motion under

Rule 227.1.

               Propriety of the Trial Court’s Factual Findings
                               (Bionis’ Issue 2)

       The Bionis argue that several of the trial court’s findings were not

supported by the record. See Bionis’ Brief at 27-37. However, several of the

factual findings of which the Bionis complain have no bearing on the

conclusion in the case, and therefore we decline to review them. 12

____________________________________________
12 For example, the Bionis take issue with the trial court’s categorization of
the cartway as the “Federal Street Extension,” and the Robinsons’ property
as “on” Federal Street, rather than 110 feet north of the terminus of Federal
Street (although the Bionis admit that the Robinsons’ private cartway
terminates on Federal Street). These statements by the court have no
significant bearing on the case. The Bionis also complain of the trial court’s
findings that there is no other reasonable means of ingress and egress to the
property except by the cartway to Federal Street, and that the previous
(Footnote Continued Next Page)
                                          - 15 -
J-A12008-17


      The Bionis take issue with the court’s findings that the cartway is 15-

feet wide. This finding is supported by the evidence of record. The registered

land surveyor presented by the Robinsons, Dennis Dull, testified that the

paved portion of the cartway that abuts the Bionis’ property was fifteen feet

wide in 2014. See N.T. at 65. Thomas Robinson also testified that the

cartway was between 12 and 15 feet in width. Id. at 23. The court was free

to accept this testimony, and to reject any testimony to the contrary.

      The Bionis also complain about findings that the previous owner of the

Robinson property, Angelo Brunetti, used large tri-axle dump trucks on the

cartway from 1979 until 1994. They note that Brunetti testified that during

the last two years of his ownership, the only company to access his property

(JonRobin Coal) used an entrance other than the cartway. However, those

last two years do not defeat the trial court’s factual finding that Brunetti’s

use of the cartway was “continuous and uninterrupted,” for, as the trial court

stated,

      In establishing a prescriptive easement, constant use need not
      be demonstrated in order to establish the continuity of the use.
      Rather, continuity is established if the evidence shows a settled
      course of conduct indicating an attitude of mind on the part of
      the user or users that the use is the exercise of a property right.




(Footnote Continued) _______________________
owner of the Robinsons’ property, Angelo Brunetti, also accessed the
property solely through use of the cartway. These findings by the trial court
are irrelevant. The relief requested by the Robinsons and granted by the
court was restricted to an easement by prescription, and not an easement
by necessity. Whether there were other means of access to the property was
therefore not an element of the action and not before the court. See Boyd
v. Teeple, 331 A.2d 433, 434 (Pa. 1975).

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J-A12008-17


See Trial Ct. Op. at 10 (quoting Newell Rod & Gun Club, Inc. v. Bauer,

597 A.2d 667, 670 (Pa. Super. 1991) (quotation marks and citations

omitted)). 13 Here, Mr. Brunetti testified to a course of conduct during his

ownership of the property that established his attitude toward use of a

fifteen-foot-wide cartway, and the trial court credited his testimony over the

contradictory testimony presented by the Bionis.

        We agree with the Bionis that, depending on how it is interpreted, the

trial court’s finding that the Bionis “admitted that the access to the

[p]roperty in question has remain[ed] unchanged [since 1980]” may be

inconsistent with details in the record. Ted Bioni testified that there was a

change in 1997, when the Robinsons moved their gate to align with the

cartway, 14 at which point they began to use larger vehicles and more

frequently encroached on the Bionis’ territory. See N.T. at 124-25, 143-44.

However, throughout the period since 1980, access to the property via the

cartway has generally remained the same, and we do not agree that

relocation of the gate has any significant bearing on the resolution of the

case.




____________________________________________
13Newell also states that use establishing a prescriptive easement need not
be “actual,” nor “exclusive and distinct.” 597 A.2d at 670.
14 Previously, accessing the Robinsons’ property via Federal Street involved
travelling down the cartway, taking a sharp right turn at the fence at the end
of the cartway, and then taking a sharp left turn into the property through a
gate. Now the gate is aligned with the cartway, and no sharp turns need be
made to enter the property from the cartway.

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J-A12008-17


        Holding That Robinsons Have a Prescriptive Easement
                      (Bionis’ Issues 3, 5, and 6)

      The trial court held that the Robinsons own a prescriptive easement on

the disputed portion of the Bionis’ property. “A prescriptive easement is

created by (1) adverse, (2) open, (3) notorious, (4) continuous and

uninterrupted use for a period of twenty-one (21) years.” Vill. of Four

Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814,

822 (Pa. Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015). The

Bionis contend that the Robinsons failed to satisfy each element necessary

for proof of a prescriptive easement because they failed to establish the

extent to which the cartway encroached on their property for 21 years.

Because the Robinsons owned their property for only 20 years when they

filed this lawsuit, the Bionis contend that the Robinsons can prove the

easement only if they can show adverse use of the disputed parcel by Mr.

Brunetti before the Robinson’s began their own use. The Bionis complain

that Mr. Brunetti never testified that his use of the cartway had encroached

upon the Bionis’ property, and that the court could not infer the used width

of the cartway during that time by the size of the vehicles accessing Mr.

Brunetti’s property because Mr. Brunetti never testified as to the width of

those vehicles. See Bionis’ Brief at 39-41, 45-48.

      The Bionis rely on Hash v. Sofinowski, 487 A.2d 32 (Pa. Super.

1985), which states, “the scope of such an easement must necessarily be a

function of the continued, adverse use by which it was generated and is thus

limited to [the use] of the prescriptive period.” Id. at 34. In that case, the


                                    - 18 -
J-A12008-17


continuous use (since 1924) of a road for the transportation of agricultural

equipment had created a prescriptive easement. However, we held that

testimony that modern farm equipment was eighteen feet wide was an

insufficient basis on which to establish that the easement had a width of

eighteen feet during the prescriptive period. This Court acknowledged the

principal that the use of a prescriptive easement, once established, may

reasonably    increase   according   to   normal   evolution;   however,    we

distinguished an increase in the degree of use of an easement (that is, the

frequency and number of motor vehicles traversing it) from an increase in

the size of the easement from that which had been established during the

prescriptive period. We held that “the width of a prescriptive easement must

be established by the extent of actual use during the prescriptive period”

and remanded to the trial court to make a factual determination as to the

width of the easement during the 21-years at issue.

      Here, the trial court held that the Robinsons —

      established that for over 21 years, the property was used by
      industrial equipment, vehicles and tri-axles trucks which, due to
      their width, required encroachment onto [the Bionis’] property
      along the edge of the roadway, thus giving rise to the
      prescriptive easement. Unlike the scenario of Hash, there was
      no change in the nature of the use of the easement or the nature
      or width of the vehicles and equipment used during the
      prescriptive period of over 21 years. This case did require a
      comparison of the current use of the easement to that by which
      the prescriptive easement was created. It was the current and
      historic use of additional width of the roadway along [the Bionis’]
      property for over 21 years which established the prescriptive
      easement.

Trial Ct. Op. at 12.



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J-A12008-17


       We conclude that the trial court did not violate our holding in Hash. In

Hash, the trial court failed to establish the width of the easement during the

prescriptive period, and was operating under the mistaken belief that the

width of the easement could have evolved within the prescriptive period

itself. Here, the trial court did not determine the width based only on recent

use coming towards the end of, or after, the conclusion of the prescriptive

period. Instead, the court made a factual finding as to the width of the

cartway over the duration of the entire period. Although Mr. Brunetti did not

testify as to the width of the cartway between 1979 and 1994, 15 the use of

the roadway by Mr. Brunetti’s business associates corresponded to the use

by the Robinsons,16 and this evidence therefore does not contradict the trial

court’s factual finding that the easement was fifteen feet wide during the

entire prescriptive period. The trial court therefore did not err in granting an

easement of that size to the Robinsons.




____________________________________________
15In fact, Mr. Brunetti testified that he himself did not drive trucks, and did
not know the width of the cartway. See N.T. at 52-53.
16 Thomas Robinson testified that he has continually used the cartway over
the Bionis’ property to provide access for “large construction equipment,
dozers, graders, excavators, backhoes, . . . dump trucks, pickup trucks,
[and] trailers.” N.T. at 10, 24. Similarly, Angelo Brunetti testified that,
between 1979 and sale of the property to Robinson, he used the cartway for
“[b]ulldozers, rubber tires, tri axle [trucks], pickup trucks, [and] one ton[
trucks].” Id. at 50, 52. Donald Genuso, the Township Supervisor, testified
that over the past 18 years he has known the cartway to be used by “tri-
axle trucks, pickup trucks, . . . what they call lowboys, which would have
maybe an asphalt paver and a roller on them . . . [and] tractor trailer[s].”
Id. at 100.

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J-A12008-17


            Holding That the Public Has a Prescriptive Easement
                              (Bionis’ Issue 4)

      Finally, we address the trial court’s holding that not only the Robinsons

have a prescriptive easement in the disputed property, but that Cecil

Township and the public also have such an easement. See generally

Southeastern Pennsylvania Transp. Auth. v. Pennsylvania Pub. Util.

Comm'n, 505 A.2d 1046, 1049 (Pa. Cmwlth. 1986) (discussing the

requirements for establishment of a public prescriptive easement).

      The Robinsons never sought a holding that there is a public easement.

See Amended Complaint, 8/4/14. And neither the township nor any other

public body ever intervened in the case to make a claim that such an

easement exists. In fact, the Township Supervisor (who had previously been

the Public Works Director), Donald Genuso, testified that although the

Township had milled, paved, and partially curbed the cartway at least twice

in the ten years prior to trial, see N.T. at 96-99, 104-05, the cartway is

considered by Cecil Township to be private property. See id. at 109-110. In

addition, our review of the record reveals a dearth of facts in support of a

prescriptive public easement. There was little testimony regarding who used

the cartway other than the parties to this dispute and the neighboring

property owners. See Southeastern Pennsylvania Transp. Auth., 505

A.2d at 1049 (noting that “public use” supporting a public prescriptive

easement is not supported by the occasional trespass, and that such use

must be “by the public in general, as against a limited segment of the

public”).


                                    - 21 -
J-A12008-17


      While “[a]n equity court may . . . grant broader relief than that

specifically requested when there is a prayer for general relief[,]. . . that

relief must be consistent with and agreeable to the case pleaded and

proven.” Karpieniak v. Lowe, 747 A.2d 928, 931 (Pa. Super. 2000)

(citations omitted) (vacating decree granting easement “when no such relief

was requested either in the complaint or at trial and no easement was

included in the court’s original decree”). No claim to a public prescriptive

easement was made in this case. Nor have the Robinsons opted on appeal to

argue in defense of a public easement or the trial court’s authority to grant

one. We therefore vacate the portion of the injunction which grants the

general public the right to traverse the Bionis’ property.

      We affirm the order of the trial court as it relates to the Robinsons and

vacate the portion of the trial court’s order granting rights to the general

public.

      Motion to quash denied. Order affirmed in part and vacated in part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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