J-E02006-16

                             2017 PA Super 27



FRANCESCA V. GURECKA,                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT W. CARROLL AND
HOLLY LACEY CARROLL,

                        Appellants                  No. 1301 WDA 2014


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

BEFORE:    GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., and OTT, J.

OPINION BY BENDER, P.J.E.:                       FILED FEBRUARY 3, 2017

     Robert W. Carroll and Holly Lacey Carroll (Appellants or the Carrolls)

appeal from the July 11, 2014 order that entered a permanent injunction

enjoining them from interfering with the repair and use of a sewer line

located on their property that services the nearby residence owned by

Francesca V. Gurecka (Appellee or Ms. Gurecka). We affirm.

     The trial court set forth the factual background of the case as follows:

           On October 31, 2011, [Appellee], Francesca Gurecka,
     entered into a written Standard Agreement for the sale of real
     estate with Rachel French and William Ommert, the purchasers,
     for the sale price of $390,000.00. The closing date was set for
     November 30, 2011. On or about November 18, 2011, it was
     discovered during a municipal dye test that the sewer line
     servicing the property had a blockage which required repair.
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            The plumber employed to make the repairs inserted a
      camera into the sewer line and discovered that the sewer line
      lateral proceeded to run downhill, under Forest Glen Drive and
      through the property of [the Carrolls]. The plumber started to
      perform excavation and repair of the sewer line on the Carroll
      property when Holly Lacey Carroll instructed the plumber to
      cease all work and immediately vacate her property.

            Common Pleas Court Judge Judith Friedman issued a
      preliminary injunction on December 2, 2011, authorizing the
      reasonable repairs of the sewer line pending further litigation
      and required [Ms.] Gurecka to post a $5,000.00 bond. Due to
      the future litigation surrounding the sewer line repair, the sales
      agreement       between    Francesca    Gurecka     and    Rachel
      French/William Ommert was terminated.

            Francesca Gurecka next sought a permanent injunction
      seeking to restrict the Carrolls from interfering with the repair or
      continued use of the sewer line. Francesca Gurecka maintains
      that she has a right to continued use and maintenance of the
      sewer due to an easement by implication, or implied easement.
      This case was assigned to this writer to decide whether a
      permanent injunction should issue, as a future sewer line
      blockage coupled with the Carrolls[’] refusal to allow
      maintenance of the line may render the property uninhabitable.

            The Carrolls maintain that they have had plans to
      reposition their driveway from the time of their purchase in
      March of 2011. The Carrolls further maintain that if the Gurecka
      line was to remain in the current location, any hopes of
      redesigning and repositioning their driveway would be
      impossible. The Carrolls assert that the sewer line encroaches
      13 feet into their 107 foot wide lot, rendering 12.15% of their
      property unusable.

Trial Court Opinion (TCO), 7/11/14, at 1-2.

      In response to an order issued by the trial court, the parties submitted

a joint stipulation of the undisputed facts, which was then adopted by the

trial court.   The following pertinent items are contained in the joint

statement:


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       1. [Appellee], Francesca V. Gurecka, is an individual residing
       at 603 Cherry Blossom Way, Bridgeville, Pennsylvania 15017
       and is the Trustee of the Alba N. Valli Irrevocable Trust,
       title[d] owner of real estate located at 8 Forest Glen Drive,
       Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania
       15228 (the “Property”).

       2. [Appellants], Robert W. Carroll and Holly Lacey Carroll are
       individuals residing at 13 Forest Glen Drive, Pittsburgh, Mt.
       Lebanon, Allegheny County, Pennsylvania 15228 ([the
       Carrolls’] Property.)

       3. On October 5, 1936, Orca Geyer (“Geyer”) acquired
       approximately 13 acres in Mt. Lebanon from Beverly Heights
       Company, by deed dated October 5, 1936, and recorded in
       the office of the Recorder of Deeds of Allegheny County in
       Deed Book Volume 2540, Page 204.

       4. Geyer thereafter developed Forest Glen, a subdivision,
       which was proposed in October 1948, and accepted by Mt.
       Lebanon and recorded January 17, 1949, in Plan Book Volume
       44, Pages 17, 18 and 19 (hereinafter “Forest Glen
       Subdivision”). Forest Glen Subdivision contained 25 lots.

       5. The Property is known and referred to as Lot 4 and part of
       Lot 5 in the Forest Glen Subdivision.

       6. [The Carrolls’] Property is known and referred to as Lot 18
       in the Forest Glen Subdivision.

       7. A right of way for public sewer lines runs behind Lots 12,
       13, 14, 15, 16, 17, 18, 19 and 21 in the Forest Glen
       Subdivision. These lots would be considered to be on the
       “low side” of Forest Glen Drive.

       8. Lots 1, 2, 3, 4, 5 and 6, 7, 8, 9, 10 and 11 are on the
       opposite side of Forest Glen Drive and therefore on the
       opposite side of the public right of way. These lots would be
       considered on the “high side” of Forest Glen Drive.

       9. [Ms. Gurecka’s] “high side” lot had no direct access to the
       public sewer therefore, Geyer, as developer, between 1949
       and 1956, constructed a sewer line which went through the
       [the Carrolls’] “low side” lot and connected to the manhole
       which is in the public right of way.



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       10. The sewer line at issue which runs through [the Carrolls’]
       Property is located approximately 13 feet from the boundary
       line with Lot No. 17.

       11. Geyer lived in the Property for a period of time between
       the 1940s and 1969. Geyer granted and conveyed Lot 18
       (the Carrolls’ lot) to S. Boyd Challinor and Ruth G. Challinor,
       by deed dated October 2, 1956, and recorded in the Office of
       the Recorder of Deeds of Allegheny County in Deed Book
       Volume 3529, Page 489 (the “Challinor Deed”).

       12. The Challinor Deed does not contain an express easement
       for the existing sewer line from the Property through and
       across the Carrolls’ property to the public sewer line.

       13. Forest Glen Subdivision does not contain an express
       easement for the sewer line from [Gurecka’s] property
       through the [Carrolls’] property.

       14. Geyer granted and conveyed the [high-side] property to
       Aris V.C. Valli and Alba N. Valli by deed dated July 28, 1969
       and recorded in the Office of the Recorder of Deeds of
       Allegheny County in Deed Book Volume 4763, Page 249.

       15. Aris V.C. Valli died August 26, 1976, thereby vesting full
       title in fee simple through survivorship in his wife Alba N.
       Valli. Alba N. Valli thereafter transferred the property in trust
       naming her daughter Francesca V. Gurecka as Trustee.

       16. Challinor conveyed Lot 18 to the [Carrolls] by deed dated
       March 24, 2011, and recorded in deed book volume 14535
       page 310. The Challinor Deed does not contain any reference
       to the sewer line running through the [Carrolls’] property.

       17. There are four visible manholes located on the [Carrolls’]
       Property; two located at the back of the property across the
       creek and two located on this side of the creek; one on the
       bottom left and one to the bottom right (Identified as
       Manholes #1 and #2 respectively).

       18. [Manhole] #1 and [manhole] #2 are located within the
       sanitary sewer right of way which traverses the [Carrolls’]
       property.

       19. [Ms. Gurecka’s] sewer line runs right into public manhole
       #2 while the [Carrolls’] sewer line doesn’t connect to a public


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            manhole but taps into the public sanitary sewer line which
            traverses [the Carrolls’] property.

                                      ...

            21. [Ms. Gurecka] discovered the existence of the sewer line
            during a home inspection in November 2012.

TCO at 3-5.

      Based on the stipulated facts, the briefs of the parties and a visit to

the subject property, the trial court issued an opinion and order on July 11,

2014, making permanent the preliminary injunction entered on December 2,

2011. Thus, the Carrolls were enjoined from interfering with the repair and

continued use and maintenance of the sewer that traversed their property.

Following the filing of an appeal by the Carrolls and after oral argument, a

panel of this Court reversed the trial court’s order.       However, after Ms.

Gurecka filed an application for reargument en banc that was granted on

November 16, 2015, this Court heard the matter again and it is now ripe for

decision.

      In their brief, the Carrolls state the issues they raise as follows:

      [1.] Whether the court below committed error of law by holding
      that there was an implied easement merely because the sewer
      line in question had been in existence for fifty years although
      wholly unknown to the [Carrolls] and their predecessor
      landowners and where [Ms. Gurecka] cannot establish that her
      property would be rendered uninhabitable as she can readily tap
      into the public sewer line through an express right of way that is
      also downhill of her property and also across Forest Glen Road?

      [2.] Whether the trial court committed an error of law in
      determining that the “open and visible” prong of the test for an
      implied easement was satisfied in the case where the existence
      of the sewer line was unknown to either of the current property
      owners, it was wholly undocumented in any deed or plan of

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      lots[,] and[] had no physical features of its own above visible
      ground but the [t]rial [c]ourt held that [] fact merely because
      the municipal sewer main, which is depicted on the Forest Glen
      Plan of lots, traverses the rear of the [Carrolls’] lot and that the
      four physical sewer access manhole covers are visible on the
      [Carrolls’] lot [that] the [Carrolls were] provided legal notice that
      an individual sewer line serving another property was present
      approximately parallel to the boundary of an adjacent property?

Appellants’ brief at 4.

      Initially, we note our standard and scope of review in equity actions:

      The trial judge, sitting in equity as a chancellor, is the ultimate
      fact-finder. The scope of review, therefore, is limited. The final
      decree will not be disturbed unless the chancellor committed an
      error of law or abused his or her discretion. The findings of fact
      made by the trial court will not be disturbed unless they are
      unsupported by competent evidence or are demonstrably
      capricious.

Griffith v. Kirsch, 886 A.2d 249, 253 (Pa. Super. 2005) (quoting Daddona

v. Thorpe, 749 A.2d 475, 480 (Pa. Super. 2000) (quotation marks and

citation omitted)).   Moreover, when we review a “trial court’s grant of a

permanent injunction, pursuant to agreed-upon facts, … we must determine

whether the trial court committed an error of law, for which our standard of

review is de novo and our scope of review is plenary.” Watts v. Manheim

Twp. School Dist., 121 A.3d 964, 972 (Pa. 2015) (citing Buffalo Twp. v.

Jones, 813 A.2d 659, 663-64 (Pa. 2002)). Moreover,

      [i]n order 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 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 Twp., 813 A.2d at 663.

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     Specifically, in relation to the subject of an easement by implication,

this Court in Daddona, explained that

     [i]t has long been held in this Commonwealth that although the
     language of a granting clause does not contain an express
     reservation of an easement in favor of the grantor, such an
     interest may be reserved by implication, and this is so
     notwithstanding that the easement is not essential for the
     beneficial use of the property. See, e.g., Tosh v. Witts, 381
     Pa. 255, 258, 113 A.2d 226 (1955); Philadelphia Steel
     Abrasive Co. v. Gedicke Sons, 343 Pa. 524, 528, 23 A.2d 490
     (1942); Nauman v. Treen Box Co., 280 Pa. 97, 100, 124 A.
     349 (1924); Liquid Carbonic Co. v. Wallace, 219 Pa. 457,
     459, 68 A. 1021 (1908); Kieffer v. Imhoff, 26 Pa. 438, 443
     (1856). See also Restatement of Property § 476 (1944); Powell
     on Real Property § 411 (1975). The circumstances which will
     give rise to an impliedly reserved easement have been concisely
     put by Chief Justice Horace Stern speaking for the Court in Tosh
     v. Witts, supra:

           “Where an owner of land subjects part of it to an
           open, visible, permanent and continuous servitude or
           easement in favor of another part and then aliens
           either, the purchaser takes subject to the burden of
           the benefit as the case may be, and this is
           irrespective of whether or not the easement
           constituted a necessary right of way.”      Tosh v.
           Witts, supra, 381 Pa. at 258, 113 A.2d at 228.


Daddona, 749 A.2d at 480 (quoting Burns Manufacturing v. Boehm, 356

A.2d 763, 767 (Pa. 1976)).

     The Daddona case further provided a discussion setting forth the

method of analyzing a claim of easement by implication, stating:

     Although the [Supreme Court's discussion in Burns] conveys a
     brief summary of the concept of easement by implication, other
     Pennsylvania cases … provide a much more detailed description
     of this concept. We find the following statement of the proper


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     method of analyzing a claim of easement by implication
     particularly elucidating:

          In deciding whether an easement has been created
          by implication, the Pennsylvania courts have used
          two different tests, the traditional test and the
          Restatement test.

          The traditional test has been described as follows:
          “Three things are regarded as essential to create an
          easement by implication on the severance of the
          unity of ownership in an estate; first, a separation of
          title; second, that, before the separation takes place,
          the use which gives rise to the easement, shall have
          been so long continued, and so obvious or manifest,
          as to show that it was meant to be permanent; and
          third, that the easement shall be necessary to the
          beneficial enjoyment of the land granted or retained.
          To these three, another essential element is
          sometimes added,—that the servitude shall be
          continuous and self-acting, as distinguished from
          discontinuous and used only from time to time.”

          [Becker v. Rittenhouse], [297 Pa. 317] at 325,
          147 A. [51] at 53 [(Pa. 1929)]. See also DePietro
          v. Triano, 167 Pa. Super. 29, 31-32, 74 A.2d 710 at
          710-11 (1950).

          The view expressed in the RESTATEMENT OF
          PROPERTY § 474 [sic] and expressly adopted in
          Pennsylvania in Thomas v. Deliere, 241 Pa. Super.
          1, 359 A.2d 398 (1976), “emphasizes a balancing
          approach, designed to ascertain the actual or implied
          intention of the parties. No single factor under the
          Restatement approach is dispositive.       Thus, the
          Restatement approach and the more restrictive tests
          … co-exist in Pennsylvania.” Id. at 5 n.2, 359 A.2d
          at 400 n.2. See also Lerner v. Poulos, 412 Pa.
          388, 194 A.2d 874 (1963); Schwoyer v. Smith,
          388 Pa. 637, 131 A.2d 385 (1957); Spaeder v.
          Tabak, 170 Pa. Super. 392, 85 A.2d 654 (1952).

     Mann-Hoff [v. Boyer], 604 A.2d [703,] 706-07 [(Pa. Super.
     1992)].

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Daddona, 749 A.2d at 481-82 (emphasis added).

        The Daddona Court also discussed our Supreme Court’s decision in

Bucciarelli v. DeLisa, 691 A.2d 446 (Pa. 1997), a case in which a mother

conveyed a twenty-acre parcel of lakeside land to her son.         The mother

retained ownership of other lakeside property that she subdivided into four

lots.   The plan indicated access to the four properties was by way of an

existing road that traversed the property the mother had conveyed to her

son.    The mother then sold the four lots.      Subsequently, the son sold the

twenty-acre parcel to a neighbor who had lived for ten years across the lake

within sight of the subdivision. Neither the mother’s deed to the son nor the

son’s deed to the neighbor indicated that an easement was reserved. After

purchase, the neighbor blocked the road, and the owners of the lakeside lots

sought injunctive relief against the neighbor.

        The trial court held that the neighbor had constructive notice of the

easement based on the subdivision plan and the planning commission’s

records. The trial court also found that the neighbor had actual notice of the

right of way on the theory that the recorded subdivision plan created an

easement by implication.     This Court rejected the lower court’s conclusion

that the subdivision plan constituted constructive notice of the easement in

that the son’s land was not part of the subdivision.           This Court also

concluded that the lower court had not made findings that would support an

easement by implication at the time of severance of title when the mother


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sold the property to her son. Moreover, this Court concluded that there was

insufficient evidence to support the traditional or the Restatement test.

Lastly, this Court found insufficient evidence about the use of the easement

prior to the sale of the property to the son that would permit an analysis of

the factors concerning the creation of the easement by implication.

      The Daddona opinion then discussed our Supreme Court’s decision in

Bucciarelli that reversed this Court’s disposition and reinstated the trial

court’s order enjoining the neighbor from interfering with the lot owners’ use

of the road.   Pertinent to the issues before us presently, we set forth the

following excerpt from the Daddona opinion, discussing the Bucciarelli

decision:

      Our Supreme Court granted allowance of appeal to determine
      whether an easement by implication was created at the time of
      severance of title and whether [the neighbor] had actual notice
      of the existence of the right of way over the property when he
      purchased it. Answering the second issue first, the high court,
      while agreeing that the trial court did not specifically find facts to
      support its conclusion that an easement by implication at
      severance of title was created, nevertheless held that the trial
      court had made sufficient factual findings to support its
      conclusion that [the neighbor] had actual notice of the existence
      and use of [the road] prior to his purchase of the twenty-acre
      tract from [the son].

      Our Supreme Court found this prior use important to the
      determination of whether an implied easement was created
      because:

            The effect of the prior use as a circumstance in
            implying, upon a severance of possession by
            conveyance, an easement results from an inference
            as to the intention of the parties. To draw such an
            inference the prior use must have been known to the

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              parties at the time of the conveyance, or, at least,
              have been within the possibility of their knowledge at
              that time. Each party to a conveyance is bound not
              merely to what he intended, but also to what he
              might reasonably have foreseen the other party to
              the conveyance expected. Parties to a conveyance
              may, therefore, be assumed to intend the
              continuance of uses known to them which are in
              considerable degree necessary to the continued
              usefulness of the land. Also they will be assumed to
              know and to contemplate the continuance of
              reasonably necessary uses which have so altered the
              premises as to make them apparent upon reasonably
              prudent investigation . . . .

       Bucciarelli, at 436, 691 A.2d at 448 (quoting Restatement of
       Property, § 476, Comment j). In a footnote, the high court
       noted that while it “has never specifically adopted Restatement
       of Property § 476 and we decline to do so now, for § 476 is
       merely a list of frequently encountered considerations as to
       whether an easement by implication at severance of title was
       created. Courts may, nevertheless, find the section useful and
       persuasive in analyzing cases like this.” Id. at 437 n.1, 691
       A.2d at 448 n.1.

Daddona, 749 A.2d at 483 (emphasis added).1

       After explaining the law guiding a court’s determination relating to

easements by implication, the trial court recognized that it must focus on

“the time of severance from the common owner … that [in this case] would
____________________________________________


1
   We note that this Court’s decision in Mann-Hoff states that the
Restatement of Property § 476 was expressly adopted in this Court’s
Thomas case. However, in Daddona, we recognized that our Supreme
Court refused to adopt the provision in the Restatement as was expressed in
footnote 1 of the Bucciarelli opinion. From these statements, it is obvious
that so long as the traditional three-pronged test is met, we need not apply
the Restatement, although we may consider the Restatement in analyzing a
case before us.




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be the conveyance of the Carroll Property from Orca Geyer to [the

Challinors] on October 2, 1956.” TCO at 7. Specifically recognizing that no

express written easement was contained in the deed, the trial court noted

that it must apply the three-pronged test, which it did, stating:

      In this writer's opinion, the subject sewer line was installed for
      the benefit of [Ms. Gurecka’s] property at a time when both
      properties had common ownership. It is further found that the
      use of the sewer line has been continuous for at least fifty (50)
      years. Lastly, the array of manholes in the rear of [the Carrolls’]
      property does place the [Carrolls] on notice of a network of
      sewer lines coming onto and crossing their property.          The
      subject sewer line runs into manhole #2 (see joint stipulated fact
      set forth above). Accordingly, this writer finds the subject
      sewer, and for that matter, the network of sewers in the area of
      the [Carrolls’] property to be open, visible and permanent.

TCO at 8.

      In the case presently before us, it is evident that the deed received by

the Challinors, the predecessors-in-title to the property bought by the

Carrolls, did not contain an express reservation of a sewer easement.

Likewise, the Carrolls’ deed from the Challinors did not contain such a

reservation. See S. Boyd Challinor’s Affidavit, 1/10/11 (stating that he and

his wife “were not informed, and had no knowledge of a private sewer line

from the [h]ouse occupying Lot No. 4”). However, relying on the facts found

by the trial court that are supported by the evidence in the record, we

conclude that Ms. Gurecka carried her burden of proving that an implied

easement was in existence and that the injunction she sought was

appropriately entered.



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      Specifically, in applying the traditional test, we recognize that there is

no question that title to the property was severed when the Challinors

bought the property now owned by the Carrolls. Additionally, the fact that

before the property was sold to the Challinors, the sewer was in existence

and was obviously meant to be permanent and necessary to the beneficial

enjoyment of Ms. Gurecka’s property. Moreover, the use of the sewer was

continuous and self-acting; it was not used only from time to time.        See

Daddona, 749 A.2d at 481 (citing Mann-Hoff, 604 A.2d at 707).

      Thus, the central question is whether the Carrolls’ property is subject

to an open, visible and permanent easement, i.e., whether the Carrolls had

notice of the existence of the sewer line running under their property. The

trial court found that they did in that the four manhole covers on the

property should have at a minimum alerted them to “the presence of a

network of sewer lines.”     TCO at 7.        See Daddona, 749 A.2d at 483

(quoting Bucciarelli, 691 A.2d at 448) (stating “they will be assumed to

know and to contemplate the continuance of reasonably necessary uses

which have so altered the premises as to make them apparent upon

reasonably prudent investigation”) (emphasis added). Cf. Motel 6 v. Pfile,

718 F.2d 80 (3rd Cir. 1983) (recognizing that the open and visible

requirement for an implied easement for sewer lines can exist even if the

underground pipes are not “visible” in the literal sense).




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      As in Daddona, where our Supreme Court “held that the trial court

had made sufficient factual findings to support its conclusion that [the

neighbor] had actual notice of the existence and use of [the road] prior to

his purchase of the twenty-acre tract from [the son],” we likewise conclude

that sufficient factual findings were made that supported the court’s

conclusion that the sewer easement was open, visible and permanent.

      Accordingly, we conclude that an implied easement had been created

and that it is binding as to the Carrolls. Therefore, the trial court did not err

in granting the permanent injunction.

      Order affirmed.

      President Judge Gantman, President Judge Emeritus Ford Elliott and

Judges Panella, Shogan, Olson, Ott join this opinion.

      Judge Lazarus files a dissenting opinion in which Judge Bowes joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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