J-A09023-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DARRYL M. KOCH AND KIM T. NOLL             :      IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     Appellants            :
                                           :
                                           :
                v.                         :
                                           :
                                           :
ANDREW T. COSCIA AND                       :      No. 1220 WDA 2017
KATHLEEN M. COSCIA

              Appeal from the Order Entered August 18, 2017
  in the Court of Common Pleas of McKean County Civil Division at No(s):
                              557-CD-2014

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

DISSENTING MEMORANDUM BY BOWES, J.:                FILED NOVEMBER 21, 2018

      As I believe the Majority’s construction of the 1976 Stipulation is

contrary to the well-established rule that contracts should be interpreted to

effectuate all clauses, I respectfully dissent.

      The conditions of the stipulation between Appellees and Appellant’s

predecessor, Mr. Graziano, are as follows in their entirety.

      1.    That August B. Graziano, his heirs, successors and
      assigns in common with all others having the like right have full
      and free right and liberty at all times hereafter to pass and repass
      along a presently existing right-of-way across Richard J. Coscia
      and Marjorie E. Coscia’s lands leading from Newell Creek Road to
      lands presently owned by Paul Appleby; said right-of-way having
      been reserved by Paul G. Appleby et ux in deed dated July 12,
      1975 and recorded in McKean County Deed Book Vol. 493 at page
      657.

      2.     August B. Graziano agrees for himself, his heirs,
      successors and assigns that he will not use the presently
      existing right-of-way for any commercial development such as but
      not limited to gas or oil exploration or removal, gravel removal,
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     logging, or coal trucking but will use a right-of-way to be granted
     exclusively for that purpose by Richard J. Coscia and Marjorie E.
     Coscia.

     3.    Richard J. Coscia and Marjorie E. Coscia agree for
     themselves, their heirs, successors and assigns to designate a
     roadway around the western perimeter of their farm field for use
     of August B. Graziano, his heirs, successors or assigns for
     such heavy duty commercial truck use that would be readily
     accessible to August B. Graziano, his heirs, successors and
     assigns and with a minimum of damage to grantors at the time
     that August B. Graziano, his heirs, successors or assigns
     should so desire to conduct such commercial trucking from the
     Graziano property. The roadway so designed for commercial truck
     use shall be used for both ingress from Newell Creek Road to lands
     presently owned by August B. Graziano as well as regress from
     the Graziano lands to Newell Creek Road for said commercial
     trucking operations. Said roadway shall be twelve (12) feet wide.

     4.    August B. Graziano agrees for himself, his heirs,
     successors and assigns that both of the aforementioned rights
     of way shall be used exclusively for ingress and regress to
     the premises conveyed to August B. Graziano et ux by deed
     dated November 10, 1960 and recorded in McKean County Deed
     Book Vol. 395 at page 725 from Newell Creek Road and that said
     rights of way will not be assigned, transferred, or conveyed
     to any other person.

     5.    August B. Graziano agrees for himself, his heirs,
     successors and assigns that he will fully and completely
     compensate Richard J. Coscia and Marjorie E. Coscia, their heirs,
     successors and assigns for all unreasonable damage caused to
     their farm field by the commercial trucking operation. Said
     unreasonable damages shall include, but not be limited to, any
     intentional, reckless, malicious, or negligent damage not
     necessary for the free and unobstructed use of the right of way
     hereinbefore granted for commercial trucking purposes.

     6.    August B. Graziano agrees for himself, his heirs,
     successors and assigns that no repairs or alterations shall be
     done to raid rights of way without the permission of the grantors
     herein, their heirs, successors, or assigns.




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1976 Stipulation (emphases added).

      The Majority concludes that the last-highlighted portion of Paragraph 4

constitutes “clear and unambiguous language” that means “Mr. Graziano

relinquished his right to assign, transfer, or convey his right to use the Valley

Drive Right of Way to any other person.” Majority Memorandum at 11. The

Majority reasons that this last clause is specific to the issue of whether Mr.

Graziano had the right to convey his right to use the right of way, and

therefore negates all of the other references to Mr. Graziano’s heirs,

successors, and assigns. Id.

      The Majority’s interpretation is contrary to well-settled principles of

contract construction.    “It is axiomatic that contractual clauses must be

construed, whenever possible, in a manner that effectuates all of the clauses

being considered.”    Welteroth v. Harvey, 912 A.2d 863, 866 (Pa.Super.

2006). “A court may not disregard a provision in a contract if a reasonable

meaning may be ascertained therefrom . . . each and every part of it must be

taken into consideration and given effect, if possible, and the intention of the

parties must be ascertained from the entire instrument.” Newman Dev. Grp.

of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 654

(Pa.Super. 2014) (en banc) (internal quotation marks and citation omitted).

      Of specific import to the present case, the rules of construction provide

that a court should not interpret one part of a contract to annul another part.

W. Dev. Grp., Ltd. v. Horizon Fin., F.A., 592 A.2d 72, 75 (Pa.Super. 1991).


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Rather, “Clauses of a contract . . . which seem to conflict will be construed, if

possible, as consistent with one another.” In re Binenstock’s Trust, 190

A.2d 288, 293 (Pa. 1963).

      The clear and unambiguous language of the 1976 Stipulation indicates

that Mr. Graziano’s rights and responsibilities regarding the Valley Drive right

of way applied not only to him, but to “his heirs, successors, and assigns.”

1976 Stipulation at ¶¶ 2, 3, 4, 5, and 6 (emphasis added).          There is no

question that the Majority’s interpretation annuls these clauses rather than

attempts to construe them in harmony with the final portion of Paragraph 4.

The repeated references to Mr. Graziano’s “heirs, successors, and assigns” are

utterly negated by the Majority’s construction.

      I find it unreasonable to conclude that the parties intended for Mr.

Graziano to have no right to pass his interest on to any person under any

circumstances in light of the numerous indications that the agreement applied

to Mr. “Graziano, his heirs, successors or assigns.” If the parties’ intent was

to limit the agreement to Mr. Graziano alone, and none of his successors-in-

interest, there was simply no reason to include “his heirs, successors or

assigns” in the agreement anywhere.

      I believe that proper application of the rules of construction to the 1976

Stipulation, giving effect to the plain meaning of all clauses in the context of

the agreement as a whole, requires the following interpretation: the heirs,

successors, and assigns to Mr. Graziano’s interest in the property have the


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right to utilize the right of way for ingress and egress to that property, but

Graziano had no ability to convey rights to utilize the Valley Drive Right of

Way to any person other than his successor-in-interest to the property.

      This interpretation effectuates the plain meaning of the language of all

portions of the agreement, as well as the stated intent that Mr. Graziano and

his successors would have the right to use the right of way to access their

property, but that Mr. Graziano lacked the ability to grant use of the right of

way to third parties who did not succeed to his interest in the land. To rule

otherwise is to hold that the parties’ intended their repeated reference to Mr.

Graziano’s heirs, successors, and assigns to be utterly meaningless.

      Therefore, I respectfully dissent.




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