J-A30040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES D. CUMMINGS AND LISA A.                  IN THE SUPERIOR COURT OF
CUMMINGS, HIS WIFE                                     PENNSYLVANIA

                         Appellants

                    v.

SHERMAN A. SUTTON

                         Appellee                       No. 2 MDA 2016


            Appeal from the Judgment Entered January 19, 2016
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No: 12288-2012


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 09, 2017

      Appellants, Charles D. Cummings and Lisa A. Cummings, appeal from

the judgment entered January 19, 2016. We affirm.

      On August 6, 2012, Appellants commenced this action for declaratory

relief terminating an easement that runs between their property and that of

Appellee.   In the alternative, Appellants requested a permanent injunction

prohibiting Appellee from using the easement. The trial court conducted a

bench trial on November 6, 2015. On November 17, 2015, the trial court

entered an order denying relief. The trial court denied Appellants’ motion for

post-trial relief on December 1, 2015. The trial court’s order was reduced to

judgment on January 19, 2016. Appellants filed this timely appeal.

      The trial court issued the following findings of fact:
J-A30040-16


            The parties’ respective homes are situated in the
     Woodridge II Development. Significantly, the plot plan for the
     Woodridge II Development reflects the properties owned by each
     party, as well as the Easement (the “Plot Plan”). The parties
     each own their respective properties and neither party owns the
     Easement. Appellee and his family have called the land which
     comprises Woodridge II home since long before the
     Development came into existence. Prior to being developed as
     Woodridge II, the entire parcel was a farm owned by Appellee’s
     grandparents.    Appellee’s family then sold the property to
     Hillside Farms, which sold the entire property to Woodridge for
     development according to the recorded plot plan.

           While the Plot Plan clearly indicates the existence of the
     Easement, the deed to Appellants’ property also includes the
     following reference to the Easement: ‘Together with and subject
     to 40 feet wide [sic] unnamed alley along the southwesterly side
     of the property described above connecting Sutton Road to
     another 40 foot wide alley road along the rear and together with
     and subject to a 40 foot wide alley road along the rear line of the
     land described above. This description of the Easement is also in
     Appellee’s deed, as well as in various other deeds for properties
     in Woodridge II that enjoy the right of access to it.

           The Easement runs to the left of and behind Appellants’
     property. Appellants utilize a portion of the Easement to the left
     of their property as a driveway. The Easement is also adjacent
     to the rear portion of Appellee’s property. Appellee used the
     Easement to access his property for many years; however, such
     use was impeded about two years ago when Appellants blocked
     his access to it by placing large stones across it.

             During the bench trial, Appellants made various claims
     about Appellee’s alleged misuse of the Easement, including
     littering, driving recklessly, being a nuisance, causing damage,
     and blocking the Easement. Contrary to Appellants’ descriptions,
     the debris that Appellants alleged Appellee littered on their
     property and/or the Easement was either located on Appellee’s
     property, or was not otherwise deliberately scattered. Also,
     Appellee only once put a rut in the Easement because his truck
     started sinking into the ground somewhere above Appellants’
     driveway and through no fault of his own. It is clear from the
     totality of the testimony presented at the bench trial that
     Appellee uses the Easement a reasonable amount of time, as


                                    -2-
J-A30040-16


      needed, and in a reasonable manner. Finally, despite the fact
      that Appellee was not misusing the Easement, he voluntarily
      agreed, at the close of the bench trial, to continue to refrain
      from any action that may interfere with Appellants’ quiet
      enjoyment of the Easement.

Trial Court Opinion, 4/25/16, at 6-8 (record citations omitted).

      Appellants argue the trial court erred in failing to enter a judgment

terminating the easement. Appellants’ Brief at 5. In particular, Appellants

argue that Appellee’s use of the easement is no longer necessary to

Appellants due to improvement of public roads along Appellee’s property.

Appellants also argue that Appellee’s easement was merely a temporary

license.   Appellants’ Brief at 10.   We review the trial court’s decision in a

declaratory judgment action for abuse of discretion or error of law.      Erie

Ins. Grp. V. Catania, 95 A.3d 320, 322 (Pa. Super. 2014), appeal denied,

104 A.3d 4 (Pa. 2014).

      The record does not support Appellants’ argument. As the trial court

explains in its opinion, both parties enjoy the right to use the easement in

question in accordance with a plot plan and their respective deeds.       Trial

Court Opinion, 4/25/16, at 6-7.        Appellee’s easement did not arise by

necessity.    Appellants have produced no valid basis for extinguishing

Appellee’s easement. See, e.g., Riek v. Binnie, 507 A.2d 865 (Pa. Super.

1986); Vinso v. Mingo, 57 A.2d 583 (Pa. Super. 1948). Furthermore, the

trial court found no support for Appellants’ assertions of Appellee’s misuse of

the easement.     Having reviewed the record, the applicable law, and the



                                      -3-
J-A30040-16


parties’ briefs, we affirm the judgment in favor of Appellee based on the trial

court’s April 25, 2016 opinion. We direct that a copy of that opinion be filed

along with this memorandum.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




                                     -4-
                                                              Circulated 01/30/2017 03:31 PM
                                                         )

Charles D. Cummings and           In the Court of Common Pleas
Lisa A. Cummings, his wife,            of Luzerne County

                  Appellants

                                            CIVIL ACTION - LAW
     vs.
Sherman A. Sutton,

                  Appellee                   No. 12288 of 2012

                               OPINION

Procedural History

     On August 6, 2012, Appellants filed a Complaint in Law and

Equity in the Luzerne County Court of Common Pleas related to the

use by their neighbor, Appellee, of an easement that runs along both

                                      II
parties' respective properties (the        Easement"). In the Complaint,

Appellants sought relief in the form of a declaratory         judgment        to

terminate the Easement due to misuse and/or lack of necessity, legal

damages        due to misuse of the Easement, and            a permanent

injunction. A bench trial commenced in the matter on November 6,

2015 (the Bench Trial"). On November 17, 2015, this Court entered an
          II




Order holding that the Easement is a private road easement over the

property for access by landowners. The November 17, 2015 Order also
    outlined conditions, agreed to by Appellee, providing for the quiet

    enjoyment of the Easement by all entitled thereto.

         On November 30, 2015, Appellants filed a Motion for Post Trial

    Relief that raised the same arguments made during the Bench Trial. By

    Order dated December l . 2015, this Court denied Appellants' Motion

    for Post Trial Relief. On December 30, 2015, Appellants prematurely

filed a Notice          of Appeal to the Pennsylvania Superior Court.'

Subsequently, on January 19, 2016, Appellants filed a Praecipe to

    Enter Final Judgment on Docket.                The Luzerne County Prothonotary

entered Final Judgment on January 19, 2016.

         On January 19, 2016, Appellants filed their Concise Statement of

Errors Complained           of on Appeal, identifying the following issues for

appeal:

      1. The trial court erred by failing to direct the entry of judgment in

        favor of Appellants.

      2. In the alternative, the trial court erred by failing to modify the

         November 17, 2015 decision to hold in favor of Appellants.


I An order denying a post trial motion is not immediately appealable; rather, an appeal lies from
the subsequent entry of a judgment when trial has occurred. Seamates lnt'I. Inc. v. Speedy lnt'I,
Ltd., 2016 WL 379312, *l, fn. l (Pa. Super. 2016); Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523,
525 (Pa. Super. 2006).


                                               2
3. The trial court abused its discretion      by refusing to grant a

   declaratory judgment to terminate         the paper alley due to

   misuse or lack of necessity, and, for a permanent          injunction

   requiring Appellee to stop using the Easement.

4. The trial court erred by failing to find that Appellee's testimony

   lacked credibility.

5. The trial court erred by failing to hold that Appellee did not prove

  by substantial, competent evidence that he was legally entitled

  to the use and/or possession of the land in dispute.

6. The trial court erred by failing to hold that substantial, competent

  evidence proved that Appellants were entitled to the entry of a

  declaratory judgment to terminate          the paper alley due to

  misuse or due to lack of necessity, and, for a permanent

  injunction.

7. The trial court erred by failing to find Appellants'       testimony

  credible and dispositive to the issues in this matter relating to their

  request for the entry of a declaratory judgment to terminate the

  paper alley due to misuse or lack of necessity and for a

  permanent injunction.


                                3
   8. The trial court erred by holding that substantial, competent

         testimony was presented at trial that would permit the court to

         find sufficient facts existed to deny Appellants' requests for the

         entry of a declaratory judgment to terminate the paper alley

         due to misuse or lack of necessity and for a permanent

         injunction.

   9. The trial court erred as a matter of law by denying Appellants'

         request for a declaratory judgment to terminate the paper alley

         due to misuse or lack of necessity and for a permanent injunction

         requiring Appellee to cease and desist using the Easement.

   10.        The trial court's decision was against the weight of the

         evidence as to Appellants' requests for declaratory judgment to

         terminate the paper alley due to misuse or lack of necessity and

         for a permanent    injunction requiring Appellee to cease and

         desist using the Easement.

   Prior to elaborating    on the reasoning which supports this Court's

decision to deny relief to Appellants, it is helpful to clarify the issues

presented       for review: whether       the trial court erred by granting

judgment in favor of Appellee; whether the trial court erred in its


                                      4
witness credibility      determinations;     whether   the   evidence              was

sufficient to establish that Appellee should be precluded from use of

the Easement; and, whether the trial court's holding was against the

weight of the evidence.

    In a bench trial, the trial court acts as the factfinder and may

believe all, part or none of the evidence. Ruthrauff, Inc. v. Ravin, Inc.,

914 A.2d 880, 887 (Pa. Super. 2006). Because issues of credibility are

for the trial court to determine,          the appellate courts are     11
                                                                             •••   not

permitted to reexamine the weight and credibility determinations or

substitute [their] judgment for that of the factfinder."        lst_ "As the

factfinder who personally heard the witnesses testify, the trial judge is

'in the sole position to observe the demeanor          of the witnesses and

assess their credibility."'   Czarkowski v. Jennings, 34 Pa. D.&C. 5th 303

(Pa. Comm. Pl. 2013) (quoting Hirsch v. EPL Technologies, Inc., 910 A.2d

84, 88 (Pa. Super. 2006), opp. denied, 591 Pa. 727, 920 A.2d 833 (Pa.

2007)). The factual findings set forth below are those which this Court

has deemed credible and relevant.




                                      5
Findings of Fact

     The parties' respective homes are situated in the Woodridge II

Development.       (N.T., p. 6-7.) Significantly,   the plot plan for the

Woodridge     II Development     reflects the properties owned by each

party, as well as the Easement (the "Plot Plan"). (N.T., p. 6-7.) The

parties each own their respective properties and neither party owns

the Easement. (N.T., p. 4, 9.) Appellee and his family have called the

land which comprises Woodridge           II home since long before the

Development     came into existence. (N.T., p. 87-89.) Prior to being

developed as Woodridge II, the entire parcel was a farm owned by

Appellee's grandparents. (N.T., p. 87.) Appellee's family then sold the

property to Hillside Farms, which sold the entire property to Woodridge

for development according to the recorded plot plan. (N.T., 88-89.)

     While the Plot Plan clearly indicates          the existence   of the

Easement, the deed to Appellants'            property   also includes the

following reference to the Easement: "Ioqether with and subject to 40

feet wide [sic] unnamed        alley along the southwesterly side of the

property described above connecting Sutton Road to another 40 foot

wide alley road along the rear and together with and subject to a 40


                                     6
foot wide alley road along the rear line of the land described above."

(N.T., p. 12.) This description of the Easement is also in Appellee's deed,

as well as in various other deeds for properties in Woodridge II that

enjoy the right of access to it. (N.T., p. 31, 36.)

      The Easement runs to the left of and behind                   Appellants'

property. (N.T., p. 13.) Appellants utilize a portion of the Easement to

the left of their property as a driveway. (N.T., p. 17.) The Easement is

also adjacent to the rear portion of Appellee's property. (N.T., p. 30.)

Appellee used the Easement to access his property for many years;

however,    such use was impeded           about two years ago when

Appellants blocked his access to it by placing large stones across it.

(N.T., p. 37-38, 91-92.)

      During the Bench Trial, Appellants made various claims about

Appellee's alleged misuse of the Easement, including littering, driving

recklessly, being a nuisance, causing damage,              and blocking the

Easement. (N.T., p. 21-29, 48-71, 79-84.) Contrary             to Appellants'

descriptions, the debris that Appellants alleged Appellee littered on

their property and/or the Easement was either located on Appellee's

property, or was not otherwise deliberately           scattered.   (N.T., p. 93.)


                                    7
Also, Appellee only once put a rut in the Easement because his truck

started     sinking into the ground               somewhere          above Appellant's

driveway and through no fault of his own. (N.T., p. 94-96.) It is clear

from the totality of the testimony presented at the Bench Trial that

Appellee       uses the Easement a reasonable                      amount      of time, as

needed, and in a reasonable manner. Finally, despite the fact that

Appellee was not misusing the Easement, he voluntarily agreed, at the

close of the Bench Trial, to continue to refrain from any action that

may interfere with Appellants' quiet enjoyment of the Easement. (N.T.,

p. l 06.)

Discussion

       Relevant Pennsylvania precedent directs the entry of judgment

rn favor      of Appellee         because        an easement             was created           by

irnplicotlone      through      its description        in the       Plot Plan and          the

corresponding          landowners'          deeds.          In   Vinso    v.   Mingo,      the

Pennsylvania Superior Court explained,                 11
                                                            [w] here a street called for a

boundary in a deed is not a highway nor dedicated to public use, the



2This Court's Order dated November 17, 2015 mistakenly identifies the Easement as "express,"
rather than implied; however, such mistake is not dispositive in this matter.


                                             8
grantee does not take title in fee to the center of it, but by implication

acquires an easement, or right of way over the lands. There is in such

a case, an implied covenant that there is a way corresponding with

the one described in the deed, that so far as the grantor is concerned

it shall be continued, and that the grantee, his heirs and assigns, shall

have the benefit of it." Vinso v. Mingo, 162 Pa. Super. 285, 288, 57 A.2d

583, 584 (Pa. Super. 1948.); See also Auman v. Grimes, 364 Pa. Super.

243, 246, 527 A.2d 1045, 1046-1047 (Pa. Super. 1987); McAndrew           v.

Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (Pa. 1972).

     Accordingly, Appellee enjoys a private, permanent right to use

the Easement that cannot be terminated          by Appellants. In Riek v.

Binnie, the Pennsylvania Superior Court addressed an issue similar to

the instant matter, holding that the private right to use an easement

created by implication could not be extinguished by another party

who enjoys the same right. Riek v. Binnie, 352 Pa. Super. 246, 507 A.2d

865 (Pa. Super. 1986). In Riek, Plaintiffs instituted an action for a

declaratory judgment regarding the rights of Defendants to use a

private alley for ingress and egress, specifically, seeking to preclude

such use by Defendants.     kl   at 248, 866. The alley in question was


                                   9
located     in the middle of two properties owned by Plaintiffs and

Defendants'         property was located at the end of the alley. ~             The

lower court held that Defendants had only a permissive right to use

the alley if they did not interfere with Plaintiffs' use and that such

permissive right may be terminated               by Plaintiffs. ~   The Riek Court

reversed the lower court, finding that Defendants had a private right

of use of the alley, for ingress and egress, which could not be

extinguished by any action by Plaintiffs. ~

       To support its holding, the Riek Court highlighted                 that both

Plaintiffs' and Defendants'            properties, as well as the alley, were

acquired as part of a 75 acre parcel of land for which a recorded plot

plan outlined all of the streets, alleys, and individual lots.~ at 249, 866.

Both      parties     acquired     their       respective    properties    through

conveyances which continued to use the alley as a boundary in the

deed descriptions. ~           The Riek Court noted that, although              the

passage of time and lack of use had extinguished any public rights to

use the alley, " ... the purely private rights of easement of individual

property owners in the plan of lots to use the alley or way [were] not

extinquished.t'{d,      at 249, 867.


                                          10
       Similar to Riek, the instant matter involves an original parcel of

land    from which       a recorded         plot   plan was developed         that

designated the lots owned by each party, as well as those owned by

others, and the Easement. (N.T., p. 6-7, 88-89.) This fact was never in

dispute during the Bench Trial. Indeed, the parties jointly entered the

Plot Plan as an exhibit and stipulated that neither party owns the

Easement. (N.T., p. 4, 6-7, 9.) Further, the Easement is described as a

boundary line in Appellants' deed, as well as in other ownersdeeds.

including    that of Appellee.    {N.T., p. 12, 31, 36.) Pursuant to the

precedent established        by Riek and           Appellants1    own evidence,

Appellees enjoy a private right to the Easement which may not be

extinguished by Appellants.

       Second,    even     assuming,        arguendo,     that    the   misuse or

misfeasance which Appellants allege could terminate the Easement,

this Court    finds credible     Appellee's        testimony     that reflects his

reasonable use of the Easement. "ln Pennsylvania, 1the law is settled

that those who have the same rights over an easement must exercise

those rights fairly and reasonably so as not to interfere with the fair and

reasonable exercise of the same rights by others who possess them.:"


                                       11
Czarkowski v. Jennings, 34 Pa. D.&C. 5th 303 (Pa. Comm.               PL

2013)(quoting Puleo v. Bearoff, 376 Pa. 489, 492, 103 A.2d 759, 761 (Pa.

1954)). Although this Court does not hold that Appellee interfered with

the fair and reasonable exercise of Appellants' rights to the Easement,

due to the concerns of Appellants and the agreement of Appellee,

the November 17, 2015 Order precludes Appellee from taking any of

the disruptive actions on the Easement which Appellants alleged

during the Bench Trial. However, if any party in this matter interfered

with another's use of the Easement, it was Appellants when they

blocked Appellee's access to the Easement. (N.T., p. 37-38, 91-92.)

Thus, the November 17, 2015 Order also directs that neither party may

block the right of way so as to interfere with the access or use of the

Easement as set forth in the recorded plans.

                          (END OF OPINION)




                                  12
