J-A22035-18

                             2018 PA Super 281

 CARLINO EAST BRANDYWINE, L.P.             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRANDYWINE VILLAGE                        :
 ASSOCIATION AND ASSOCIATED                :
 WHOLESALERS, INC. ----------------- :         No. 3388 EDA 2017
 ----------------------------------------- :
 --------------------------                :
 BRANDYWINE VILLAGE ASSOCIATES :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 CARLINO EAST BRANDYWINE, L.P.             :
 AND CHRISTINA B. KETTLETY AND             :
 KATHERINE W. KETTLETY, CO-                :
 ADMINISTRATORS OF THE ESTATE              :
 OF FRANK WATTERS; AND                     :
 CHRISTINA B. KETTLETY AND                 :
 KATHERINE W. KETTLETY JOINTLY             :
 AS CO-EXECUTORS OF THE ESTATE             :
 OF BEATRICE S. WATTERS, DEC.              :
                                           :
                                           :
 APPEAL OF: BRANDYWINE VILLAGE             :
 ASSOCIATES                                :

            Appeal from the Order Entered September 20, 2017
  In the Court of Common Pleas of Chester County Civil Division at No(s):
                             2011-05037-MJ,
                             2011-05189-MJ


BEFORE:   BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                       FILED OCTOBER 16, 2018

     Brandywine Village Associates (hereinafter “BVA”) appeals from the

Order entered in the Court of Common Pleas of Chester County on September


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A22035-18



20, 2017, granting the motion of Carlino East Brandywine, L.P., Christina B.

Kettlety, Katherine W. Kettlety, Co-Administrators of the Estate of Frank

Watters, and Christina B. Kettlety, Katherine W. Kettlety, Co-Executors of the

Estate of Beatrice S. Watters, Deceased (hereinafter collectively ”Carlino”)

seeking summary judgment and the dismissal of BVA’s Declaratory Judgment

action.1 Following our review, we affirm.

       Various collateral disputes involving BVA and Carlino and/or other

entities have been appealed to and either decided by or are pending in both

____________________________________________


1 In its Action for Declaratory Judgment, BVA requested that the trial court
make certain declarations regarding various easements and rights-of-way that
Carlino’s predecessors-in-title had granted to BVA to install, maintain and use
a road for ingress and egress to BVA’s property, as well as award counsel fees,
interest and costs. See Action for Declaratory Judgment at ¶¶8, 99. The
Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, provides that courts of
record have the power to declare the rights, status, and other legal relations.
As our Supreme Court has observed:

       Generally speaking, appellate courts have jurisdiction to entertain
       appeals from final orders entered at the trial court level.
       Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d 602,
       608 (2013). Ordinarily, a final order disposes of all claims and of
       all parties. Pa.R.A.P. 341(b)(1). However, Pa.R.A.P. 311(a)(8)
       states that an “appeal may be taken as of right and without
       reference to Pa.R.A.P. 341(c) from ... [a]n order that is made final
       or appealable by statute or general rule, even though the order
       does not dispose of all claims and of all parties.” Importantly,
       Section 7532 of the [Declaratory Judgment Act] provides that
       courts of record have the power to declare the rights, status, and
       other legal relations and that “such declarations shall have the
       force and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.

     Herein, the trial court’s September 20, 2017, Order effectively denied
BVA’s claim for declaratory relief. Thus, the Order is appealable. Id.



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this Court and the Commonwealth Court.2 The instant appeal arises from two,

separate declaratory judgment complaints filed by BVA and Carlino against




____________________________________________


2   The Commonwealth Court rightly described one of these appeals as
“confusing.” See Brandywine Vill. Assocs. v. E. Brandywine Twp. Bd. of
Supervisors, No. 164 C.D. 2017, unpublished memorandum at 1 (Pa.
Commw. Filed Jan. 5, 2018). Also, in our unpublished memorandum decision
filed on October 20, 2014, wherein we concluded sua sponte that Carlino’s
petition for specific performance was interlocutory and, therefore, not
appealable, we noted that “multiple procedural irregularities, contradictory
trial court orders, and the absence of may documents from the certified record
have hampered our review of this case.” See Carlino E. Brandywine, L.P.
v. Brandywine Vill. Assocs., No. 2558 EDA 2013, unpublished
memorandum 1 (Pa.Super. filed Oct. 20, 2014).



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each other.3 The relevant facts and procedural history which led to the trial

court’s September 20, 2017, Order as stated by the trial court are as follows:4

____________________________________________


3 We note with amusement that counsel for the parties stated the following on
the record:

       [Counsel for Carlino]: I—I appreciate what Judge Nagle is doing
       because we have all seen this so many times what the appellate
       courts do. They sit there, and all of a sudden they say you guys
       didn’t know what you were doing after you spent God knows how
       much time doing it.

       [Counsel for BVA]: They did it last time.

       [Counsel for Carlino]: I –now I have something to agree with you
       on.

N.T. Hearing, 3/12/15, at 37.

      The fact that BVA has attached to its appellate brief trial court opinions
and an order which do not pertain to the order from which Appellant is now
appealing, but rather concern the July 18, 2017, Order denying the Land Use
Appeal and affirming the decision o the East Brandywine Township Board of
Supervisors, see “Appendix “B” and Appendix “C” to Brief for Appellant,
evinces that, these statements to the contrary, counsel are not infallible,
despite their familiarity with the case.

4  The Commonwealth Court’s most recent decision concerning BVA’s
preliminary objections in response to East Brandywine Township’s declaration
of taking provides a detailed recitation of facts and procedural history some
of which also is implicated herein. See Condemnation of Fee Simple Title
to 0.069 Acres of Vacant Land & Certain Easements Owned by
Brandywine Vill. Assocs., No. 1409 C.D. 2017, unpublished memorandum,
at 1-3 (Pa.Commw. filed July 2, 2018), reargument denied, (Aug. 14, 2018).
In that case, BVA, appealed the Order of the Court of Common Pleas of
Chester County overruling its preliminary objections in response to East
Brandywine Township’s declaration of taking to condemn the southeastern
edge of a 10.46 acre parcel of property for the construction of a connector
road to link the parcel with Route 322 (Horseshoe Pike), on which it fronts,



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       DECISION

              [Carlino], defendants in [BVA’s] Declaratory Judgment
       action, Docket No. 11-05189-MJ, seek summary judgment and
       dismissal of BVA’s Complaint. [Carlino’s] summary judgment
       motion (the “Motion”) was filed on October 29, 2015. BVA filed an
       Answer on December 16, 2015.
              Carlino filed a separate declaratory judgment action,
       entitled Carlino East Brandywine L.P. v. Brandywine Village
       Associates et al, Docket No. 2011-05037-MJ) on May 11, 2011.
       To distinguish the cases, plaintiff in the latter action is identified
       as “Carlino”. The actions were consolidated on September 22,
       2011. In Carlino’s action, on April 30, 2015, BVA filed a “Brief on
       the Declaratory Judgment Interpretation of its Easements”, to
       which [ ] Carlino filed a “Response in Opposition”. The
       consolidated cross declaratory judgment complaints and their
       attached Exhibits are appropriate for our consideration respecting
       the Carlino Defendant’s Motion. In its case, Carlino motioned for
       summary judgment, which we denied on October 10, 2012.

       History of the Case:

             At issue in these declaratory judgment actions is the
       construction of a 1994 Cross Easement Agreement (the
       “Agreement”) between BVA and the late Frank and Beatrice
       Watters, who originally owned land on Horseshoe Pike (SR322) in
       East Brandywine Township, Chester County, subsequently divided
       into contiguous parcels of 11.535 acres and 10.645 acres. The
       Watters conveyed the 11.535 acres parcel to BVA on June 24,
       1994, and contemporaneously entered into the Agreement with
       the Watters, pursuant to which the parties granted and conveyed
       to each other certain cross easements to facilitate development of
       the parcels. As alleged in BVA’s May 16, 2011[,] Complaint, under
       the Agreement’s terms, the Watters granted BVA the following
       easements over the Watters’ retained 10.645 acre parcel,
       described in BVA’s Declaratory Judgment Complaint as: (1) a
       “perpetual easement” on the Watters’ Parcel, 0.460 one-hundreds
       of an acre in area, “in common with” the Watters’ Parcel” providing
____________________________________________


and North Guthriesville Road. The Commonwealth Court ultimately affirmed
the trial court’s Order overruling BVA’s preliminary objections.



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     access, egress and ingress to BVA’s parcel; (2) a 2.282 acre
     sanitary sewer easement pursuant to which sewage from BVA’s
     parcel would be treated and disposed of in an on-site package
     treatment plant located on the Watters’ Parcel; and (3) an
     irrevocable stormwater basin and drainage easement 0.540 one-
     hundreds of an acre in area, intended to accommodate the
     acceptance of surface stormwater originating on BVA’s parcel. BVA
     Complaint, Exhibit “A”. The approved subdivision plan for the
     Brandywine Village shopping center shows that the stormwater
     basin was also designed to accept directed water runoff from
     BVA’s access private road from Horseshoe Pike to its shopping
     center. BVA’s April 30, 2015 Brief on the Declaratory Judgment
     Interpretation of its Easements, Exhibit “C”.
             Pursuant to a development plan approved by East
     Brandywine Township, in 1995 BVA constructed the Brandywine
     East Towne Center on its parcel, consisting of a food market,
     various ancillary stores, a bank and a Burger King. Pursuant to the
     Cross Easement Agreement, BVA constructed the following
     facilities on the Watters’ Parcel to service its shopping center: (1)
     an on-site package sewage treatment plant; (2) a 45 feet wide
     access road providing access to its shopping center over the
     Watters’ Parcel, and (3) a drainage basin encompassing 0.054
     one-hundreds of an acre and assorted spillways to accepts surface
     water drainage from BVA’s access driveway and, allegedly, from
     its Towne Center shopping center. BVA’s Complaint, pp.32-42 &
     Exhibits “D” & “E”. The Cross Easement Agreement also obligated
     the Watters to grant such other easements as might be necessary
     to “facilitate the proper construction and development of the
     buildings and improvements shown on the Plan” (BVA’s approved
     Plan). No such easements are identified in BVA’s Complaint and
     none have been implemented.
             Carlino acquired an equitable interest in the remaining
     Watters’ Parcel from their Estates, and submitted a preliminary
     land development plan to the Township on May 27, 2010. The
     lengthy history of Carlino’s efforts to secure land development
     approval is discussed herein where necessary to an understanding
     of the instant controversy. The Township Supervisors conditionally
     approved the latter preliminary plan on April 8, 2011[,] and
     Carlino accepted the conditions imposed, and on July 20, 2011[,]
     entered into a development agreement with the Supervisors
     memorializing various undertakings to which Carlino and the
     Township agreed. Among them, the Supervisors required Carlino
     to construct a road for public use on and through both the Watters’
     Parcel and a contiguous property now owned by the L&R

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J-A22035-18


     Partnership to link Horseshoe Pike and nearby Guthriesville Road.
     L&R is not a party to the declaratory judgment actions. Carlino
     then submitted a final land development plan, which was
     approved by the Supervisors on August 4, 2011[,] (the “2011
     Approval”). We granted BVA’s appeal and overruled the Board’s
     decision for reasons not pertinent to the instant case; however,
     after several iterations of the plan, the Supervisors ultimately
     conditionally approved Carlino’s revised preliminary plan on April
     20, 2016, BVA and L&R appealed, and we affirmed the Board on
     July 18, 2017. Chester County Docket No. 2016-04843. The Board
     has subsequently approved Carlino’s final plan, and BVA’s appeal
     from that approval is now pending in this court before the
     undersigned.
            As noted, from the inception of Carlino’s land development
     applications, the Supervisors insisted that a public road, identified
     on Carlino’s plans as Brandywine Village Drive, be constructed by
     Carlino through the Watters’ Parcel to connect Route 322 and
     nearby North Guthriesville Road (the “Connector Road”). The
     Supervisors’ intention to connect the latter roadways preceded
     Carlino’s land development application. While the Supervisors
     have subsequently taken the position that, in lieu of constructing
     the road, Carlino could pay upwards of $2 million dollars to finance
     the Township’s construction of the road, the fact remains the
     Connector Road was going to happen. In the development
     agreement accompanying the Carlino’s land development plan
     approval, the Supervisors agreed, if necessary, to condemn BVA’s
     access and stormwater drainage/detention basin easements at
     issue to facilitate construction of the Connector Road by exercising
     its power of eminent domain at Carlino’s sole cost and expense.
     Carlino has agreed to construct the Connector Road and dedicate
     it to the Township upon completion of its construction. Carlino’s
     Response in Opposition, Exhibit “G”.
            From the inception of its shopping center, BVA has had
     access to its shopping center from SR322 (Horseshoe Pike) over
     a paved private road located on the Watters’ Parcel within the
     access easement granted to BVA in the Cross Easement
     Agreement; however, under Carlino’s approved development
     plans, BVA’s access easement will be replaced by relocating such
     access over and through the Connector Road, to be constructed
     on the East side of the Watters’ Parcel. BVA contends that such
     disruption of its existing access would require a modification of
     the access easement itself, which is prohibited by the terms of the
     Cross Easement Agreement and by applicable law. While it is
     correct that the Cross Easement Agreement describes the access

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J-A22035-18


     easement as “perpetual”, the easement has been condemned by
     the Township. Under Carlino’s approved development plan, BVA
     will have continued and unimpeded access to its property over the
     present access road pending construction of the Connector Road
     and, thereafter over the Connector Road. BVA’s contention has
     been rendered moot by the Township’s condemnation of BVA’s
     access easement. As now configured, the proposed Connector
     Road also extends over a portion of the existing detention basin
     on the Watters’ Parcel, which accepts surface water drainage from
     BVA’s existing private road. Carlino argues that BVA has
     abandoned the detention basin and drainage easement by grading
     BVA’s Towne Center to divert surface water drainage away from
     the Watters’ Parcel to underground stormwater management
     facilities located on BVA’s property. The described detention basin
     located with BVA’s second easement will be eliminated by
     construction of the Connector Road, a fact BVA admits. BVA
     Complaint, p. 11, paragraph 69. BVA raises several arguments in
     opposition to Carlino’s abandonment argument, addressed
     hereinafter. We find the issue is moot, considering the Township’s
     condemnation of the detention basin and drainage easement.
             Throughout this litigation and in the corresponding land
     development cases, BVA has vigorously contended that Carlino’s
     proposed commercial development of its property unlawfully
     interferes with and impairs the contractual and vested property
     rights to which it is entitled by virtue of the 1994 Cross Easement
     Agreement. Thus it is that BVA filed the instant declaratory
     judgment complaint in response to Carlino’s initial land
     development application “to prevent Defendant’s unwarranted
     interference with the operation and maintenance of the easements
     granted to Plaintiff across property owned by the Defendants…”.
     BVA’s Complaint, p. 3, paragraph 11. BVA has subsequently
     argued that its position is bolstered by an earlier June 13, 1990
     easement agreement with the Watters, which we conclude is
     superseded by the 1994 Agreement; however, BVA’s complaint
     fails to seek our construction of the earlier easement agreement.
             The relief BVA seeks in its declaratory judgment complaint
     includes declarations that the Cross Easement Agreement is
     irrevocable and cannot by modified without its consent; that only
     the existing access drive located with the access easement may
     be modified, and then only with BVA’s consent; and that the said
     Agreement precludes Carlino from implementing a development
     plan that modifies or interferes with BVA’s easements. BVA’s
     Complaint, p. 15.


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            In order to sustain an action under the Declaratory
     Judgment Act, a plaintiff must demonstrate an “actual
     controversy” indicating imminent and inevitable litigation, and a
     direct, substantial and present interest. Avrich by Avrich v.
     General Accident Ins., 36 Pa. Super. 248, 251, 532 A.2d 882, 884
     (1987). Because an action for declaratory judgment cannot be
     sustained until these elements can be shown exist, it follows that
     a cause of action for declaratory judgment does not arise until
     such “actual controversy” exists. Petition of Malick, 133 Pa.Super.
     53, 58-60, 1 A.2d 550, 553-54 (1938). The prime purpose of the
     Declaratory Judgment Act is to speedily determine issues that
     “would….be delayed, to the possible injury of those interested if
     they were compelled to wait the ordinary course of judicial
     proceedings.” Osram Sylvania Products, Inc. V. Comsub
     Commodities Inc., 845 A.2d 846(Pa. Super. 2004), citing Gambo
     v. South Side Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925,
     927 (1940).
            After BVA filed its complaint, two events intervened, which
     have direct bearing on BVA’s right to declaratory relief. First,
     under the terms of the Cross Easement Agreement, BVA is
     required to connect its shopping center to the public sewer system
     when public sewer becomes available to serve BVA’s shopping
     center. On January 11, 2013[,] Carlino filed a Petition at the
     instant consolidated docket seeking Specific Performance of the
     mandatory connection provision of the Cross Easement
     Agreement. By Opinion and Order issued on August 15, 2013, we
     enforced those provisions that mandated BVA’s connection of its
     property to the East Brandywine Municipal Authority’s public
     sewer system. Carlino’s Response in Opposition, Exhibit “E”. After
     much delay in doing so, BVA has connected its shopping center to
     the public sewer system, has disconnected said property from the
     on-site septic system constructed on the Watters’ Parcel, and has
     dismantled and decommissioned its on-site system, all pursuant
     to PADEP regulations. Carlino’s Response in Opposition, Exhibit
     “H”.
            Second, on November 17, 2014, East Brandywine Township
     filed a Declaration of Taking in which it condemned BVA’s access
     easement and its stormwater basin and drainage easement
     granted to BVA by the Cross Easement Agreement, discussed
     more fully herein below. BVA filed preliminary objections, and
     following multiple hearings the objections were overruled on
     September 7, 2017. On March 4, 2015, Carlino filed a
     memorandum to the consolidated captioned docket, contending
     that the latter events rendered BVA’s declaratory judgment action

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      moot. We declined to act on Carlino’s Motion or on BVA’s
      declaratory judgment complaint, considering BVA’s pending
      preliminary objections to the Declaration of Taking, more
      specifically described in our findings of fact below. N.T. 3/12/15
      Hearing, pp. 18 et seq.
             Subsequently, in its Declaratory Judgement Brief filed on
      April 30, 2015[,] and its Answer to Carlino’s summary judgment
      motion, BVA opined that its ownership of the easements remained
      unaffected by both the Township’s taking of its easements and the
      connection of its Towne Center shopping center to the Township
      Municipal Authority’s public sewer system. We discuss and dispose
      of these contentions herein below. On May 18, 2015, Carlino filed
      of record its “Response in Opposition to BVA’s Declaratory
      Judgment Brief[”] (“Carlino’s Oppositional Response”). Attached
      to both documents are multiple exhibits from which the parities
      advance their respective positions. Among these are copies of the
      Cross Easement Agreement and the Township’s Declaration of
      Taking, which include metes and bounds descriptions of the
      easements taken, together with graphic plans of the areas taken,
      and other plans and documents discussed below. Accordingly, the
      record in the instant case contains all of the evidence required to
      allow us to decide the instant summary judgment motion.
             We conducted a conference with counsel and the parties on
      September 16, 2015[,] during which we asked the parties to
      identify any additional witness testimony or documents they
      believed are required before this court has a complete record from
      which to make a decision on the instant Motion. Neither party
      identified any such additional evidence. Accordingly, we conclude
      that the Motion is now ripe for decision.

Trial Court Decision, filed 9/20/17, at 1-9.

      In its September 20, 2017, Decision, the trial court made numerous

findings of fact. Based upon those findings and its accompanying reasoning

in support thereof, the trial court entered its Order granting Carlino’s motion

for summary judgment and dismissing BVA’s Action for Declaratory Judgment.

Trial Court Decision, filed 9/20/17, at 10-16, 23.

      On October 16, 2017, BVA filed a notice of appeal with this Court. The

trial court ordered BVA to file a concise statement of errors complained of on

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appeal within twenty days on October 19, 2017, and BVA did so on November

6, 2017. That statement spans four pages and raises six issues; while the

first two issues include four subparts, the fourth issue contains eight subparts,

each of which asserts a separate allegation of error as follows:

      1.     The trial court committed an abuse of discretion and or error
      of law by striking evidence and/or failing to consider evidence
      under the following circumstances:
             a. in striking the Affidavit of John Cropper in its Order of
                April 19, 2016.
             b. in striking BVA’s Praecipe to incorporate testimony and
                in granting Carlino a partial [s]ummary judgment in its
                Order of February 12, 2016.
             c. in its Order of May 2, 2016[,] denying BVA’s Motion for
                Reconsideration of its February 12, 2016[,] Order.
             d. failing to find that the Cross Easement Agreement binds
                Carlino to provide for access for pedestrians and includes
                the right to curbing and signage.
      2.     The [c]ourt erred as a matter of law in:
             a. that the evidence presented by [BVA] significantly
                overcame any basic presumption in favor of Carlino and
                upon which judgment could be entered for Carlino.
             b. failing to uphold the requirement of the third “WHEREAS”
                clause of this recorded agreement that expressly states
                that planning would be for the “proper and uniform”
                development of the entire 20 acres.
             c. Granting Carlino’s summary judgment motion because
                there were genuine issues of material fact outstanding as
                [BVA] presented substantial evidence of [Carlino’s]
                violation of its ongoing Easement obligations pursuant to
                the Cross Easement Agreement including its Storm water
                basin easement, drainage easement and access
                easements which the [c]ourt refused to adjudicate.
             d. Awarding Carlino Attorney’s fees and refusing [BVA’s]
                request for Attorney’s fees.
      3.     The [c]ourt erred as a matter of law and committed an
         abuse of discretion in waiting six years to decide the claims of
         [BVA] and then asserting they were moot due to the decision
         in the Declaration of Taking case.
      4.     The [c]ourt erred factually and as a matter of law in:


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             a. finding that BVA violated the Cross Easement
                Agreement’s condition subsequent, as there was no
                available publicly operated sewer system in East
                Brandywine Township.
             b. finding that the Cross Easement Agreement required
                Brandywine to decommission and remove the POTW from
                the Watters’ property.
             c. asserting it had jurisdiction to alter a DEP Permit terms
                and conditions.
             d. failing to find that the Cross Easement Agreement bound
                Carlino to maintain BVA’s easements and does not allow
                BVA to modify, terminate or alter Carlino’s easements as
                described therein without [Carlino’s] consent[.]
             e. failing to find that Carlino and the Township acted
                conspiratorially to the detriment of [BVA] by planning a
                development in direct violation of Carlino’s easement
                agreements encouraged and approved by the Township
                with knowledge aforethought.
             f. failing to find that the contractual agreement between
                Carlino and the Township executed August 20, 2014
                (“Memorandum of Understanding”) was an illegal
                contract that openly violated Carlino’s easement
                obligations.
             g. failing to find that Carlino violated the Cross Easement
                Agreement by proposing to alter the access drive with
                [BVA’s] consent.
             h. Failing to find that [BVA] continued to possess post
                Condemnation, its easements as a license from the
                Township and by failing to adjudge Carlino’s violation of
                those easements.
       5.    The [c]ourt erred factually and as a matter of law in failing
          to find that Carlino was bound by the Covenants granted to
          BVA by the June 13, 1990[,] Agreement which the [c]ourt knew
          were of record in the Brandywine 1994 Recorded plan.
       6.     The trial court capriciously disregarded the evidence.

Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925 at

1-3.

       In its brief, BVA presents six issues for this Court’s review:




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        A.    Whether the Lower Court’s Order on the Motion for Specific
        Performance and rewriting the Cross Easement Agreement to
        require Brandywine to decommission the onsite POTW[5] was
        contrary to law?

        B.   Whether the Lower Court erred by granting Carlino’s
        Summary Judgment Motion when there were genuine issues of
        material fact outstanding?

        C.   Whether the Lower Court committed an abuse of discretion
        and or error of law by imposing legal fees and costs on BVA
        pursuant to 42 PA.C.S.A. 2403(7)?


        D.    Whether the Lower Court committed an abuse of discretion
        and or error of law by Affidavit of John R. Cropper, the Praecipe
        to incorporate and [Appellant’s] New Matter in answer to Carlino’s
        Summary Judgment Motion? [sic]

        E.    Whether the Lower Court committed an abuse of discretion
        and or error of law by failing to find that the contractual
        agreement between Carlino and the Township executed August
        20, 2014 (“Memorandum of Understanding”) was an illegal
        contract that openly violated Carlino’s easement obligations?


        F.    Whether the Lower Court erred as a matter of law and
        committed an abuse of discretion in waiting six years to decide
        the claims of BVA and then asserting they were moot due to the
        decision in the Declaration of Taking case?


Brief for Appellant at 3-4.

        This Court’s standard of review of a trial court's decision in a declaratory

judgment action is narrow. Because declaratory judgment actions arise in

equity, we will set aside the judgment of the trial court only where it is not

supported by adequate evidence. The test is not whether we would have

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5   We assume BVA is referring to publicly-owned wastewater treatment works.

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reached the same result on the evidence presented, but whether the trial

court's conclusion reasonably can be drawn from the evidence. See

Nationwide Mut. Ins. Co. v. Cummings, 652 A.2d 1338, 1340–41 (Pa.

Super. 1994).

     Our standard of review of a challenge to an order granting summary

judgment is as follows:

           We may reverse if there has been an error of law or an
     abuse of discretion. Our standard of review is de novo, and our
     scope plenary. We must view the record in the light most favorable
     to the nonmoving party and all doubts as to the existence of a
     genuine issue of material fact must be resolved against the
     moving party. Furthermore, [in] evaluating the trial court's
     decision to enter summary judgment, we focus on the legal
     standard articulated in the summary judgment rule. The rule
     states that where there is no genuine issue of material fact and
     the moving party is entitled to relief as a matter of law, summary
     judgment may be entered. Where the nonmoving party bears the
     burden of proof on an issue, he may not merely rely on his
     pleadings or answers in order to survive summary judgment.
     Failure of a non-moving party to adduce sufficient evidence on an
     issue essential to his case and on which he bears the burden of
     proof establishes the entitlement of the moving party to judgment
     as a matter of law.

Gubbiotti v. Santey, 52 A.3d 272, 273 (Pa.Super. 2012) (citations omitted).

     Prior to addressing the merits of BVA’s claims, we are compelled to

comment upon the nineteen combined allegations of trial court error it

presents in its Statement of Errors Complained of on Appeal Pursuant to

Pa.R.A.P. 1925.   In Jones v. Jones, 878 A.2d 86 (Pa.Super. 2005), and

Kanter v. Epstein, 866 A.2d 394 (Pa.Super. 2004), appeal denied, 584 Pa.

678, 880 A.2d 1239 (2005), cert. denied, Spector, Gadon & Rosen, P.C. v.


                                   - 14 -
J-A22035-18


Kanter, 546 U.S. 1092, 126 S.Ct. 1048, 163 L.Ed.2d 858 (2006), this Court

held that where an appellant's concise statement raises an unduly large

number of issues (29 in Jones, 104 in Kanter), the purpose of Pa.R.A.P.1925

to identify the issues on appeal so that the trial court may address each in an

opinion if its reasoning does not already appear of record is effectively

subverted.

       Notwithstanding, this Court also has recognized that a concise

statement which at first blush appears to contain an unduly large number of

issues may, upon further study, raise fewer, overlapping claims of error.

Morris v. DiPaolo, 930 A.2d 500 (Pa.Super. 2007). In Morris, the appellant

presented 29 issues in his concise statement; however, this Court found that

the statement actually raised less numerous questions for review. Finding

that the appellant had not intentionally subverted Pa.R.A.P.1925, we

proceeded to address the merits of the appellant’s claims. We find that the

instant situation is more akin to Morris than to Jones and Kanter; therefore,

we decline to find waiver on the basis of the volume of issues BVA raised in

its concise statement and proceed to address the issues BVA included in its

appellate brief.6

____________________________________________


6 Nevertheless, we note that “selecting the few most important issues
succinctly  stated   presents the      greatest   likelihood of success.”
Commonwealth v. Ellis, 534 Pa. 176, 183, 626 A.2d 1137, 1140 (1993).
This is because “[l]egal contentions, like the currency, depreciate through
over-issue. The mind of an appellate judge is habitually receptive to the



                                          - 15 -
J-A22035-18


       BVA initially argues that the trial court’s Order on “the Motion for Specific

Performance” allegedly “rewr[ote] the Cross Easement Agreement to require

BVA to decommission the onsite POTW”; however, BVA did not raise this

specific claim in its Statement of Errors Complained of on Appeal Pursuant to

Pa.R.A.P. 1925, as no mention was made therein to a motion for specific

performance or to the trial court’s actively “rewriting” the Cross Easement

Agreement; therefore, it is waived. See Zehner v. Zehner 2018 WL 4178143

at *6 (Pa.Super. Aug. 31, 2018) (citing Pa.R.A.P. 302(a) (stating that an issue

cannot be raised for the first time on appeal)); see also, Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”); “[A]

theory of error different from that presented to the trial jurist is waived on

appeal, even if both theories support the same basic allegation of error which

gives rise to the claim for relief.” Tong-Summerford v. Abington Mem'l

Hosp., 190 A.3d 631, 649 (Pa.Super. 2018) (citation omitted).



____________________________________________


suggestion that a lower court committed an error. But receptiveness declines
as the number of assigned errors increases. Multiplicity hints at lack of
confidence in any one[.]” Commonwealth v. Robinson, 581 Pa. 154, 187
n. 28, 864 A.2d 460, 480 n.28 (2004) (quoting Robert H. Jackson, J.,
“Advocacy Before the United States Supreme Court,” 25 Temple L.Q. 115, 119
(1951)). See also, Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs
and Oral Argument,” 129 (2d ed. 2003) (“When I read an appellant's brief
that contains more than six points, a presumption arises that there is no merit
to any of them.”) (emphasis in original).



                                          - 16 -
J-A22035-18


         BVA next generally maintains there were outstanding genuine issues

of material fact which prevented the grant of summary judgment. In this

regard, the only genuine issue of material fact BVA specifically referenced in

its Rule 1925(b) statement was the allegedly substantial evidence it had

presented concerning Carlino’s “ongoing Easement obligations pursuant to the

Cross Easement Agreement including its Storm water basin easement,

drainage easement and access easements.”                See Statement of Errors

Complained of on Appeal Pursuant to Pa.R.A.P. 1925 at ¶ 2 (c). Because only

claims properly presented before the trial court are preserved for appeal, we

consider only this specifically-referenced evidence. See Tong-Summerford,

supra.

         In analyzing this claim, we agree with the trial court’s conclusion that

“it is not the essential facts that are in dispute, but, rather, the parties’

respective competing interpretations of what is in large part a documents

case.”    Trial Court Decision, filed 9/22/17, at 22.      Indeed, at the status

conference    held   on   March   12,     2015,   BVA    provided   no   additional

documentation pertaining to the aforesaid easements and instead requested

declaratory judgment based on the record:

             [Counsel for BVA]: Well, if Your Honor determines—and
     Your Honor certainly has the right to do it, and I would understand
     if you did do it. If Your Honor determines that the issue with
     regard to the sewer easement and all aspects thereof is resolved—
     and I would respectfully suggest to Your Honor it should be,
     because Your Honor included this issue of the removal of the plant
     in your order. And that had never been argued or, in my opinion,
     it had never been argued or briefed or dealt with, and I think that’s

                                        - 17 -
J-A22035-18


     a significant issue that needs to be addressed. That aside, the
     only other easements would be the question of the—of the access
     easement, the water easement, which have not been addressed
     by Your Honor, and the reserve sewer area. And they’re argument
     issues before Your Honor. There is no briefing—maybe a brief,
     but there is no discovery needed. They can be disposed of quickly.
               THE COURT: Well—
               [Counsel for Carlino]: And the declaratory judgment
     action then is done.

                                      ***
               [Counsel for Carlino]: Well, I think that it—I think, Your
     Honor, that we both briefed it. I don’t think there are any factual
     issues whatsoever. There is no testimony. You’ve got the
     condemnation documents. It’s an issue—it’s a matter of law. We
     now have sat here and argued it.
               THE COURT: I appreciate that. I’m just asking counsel
     –before maladies of litigation and such, I want to make sure that
     I’ve given every opportunity for the presentation of anything that
     you want before I rule. That’s all I’m talking about.
               [Counsel for BVA]: I understand. Your Honor could issue
     a ruling saying that [Counsel for Carlino] is right and that because
     of the condemnation the issues with regard to the easements is—
     are moot Your Honor, therefore, is not going to rule on them.
     And you could issue a ruling saying that the sewer easement in
     toto is disposed of by your prior ruling, and then what will be will
     be.
               I would respectfully suggest to Your Honor that’s not the
     proper course, that declaratory judgment action needs to be
     argued before Your Honor and/or briefed. Those particular issues
     as I recall them—we’re going back years, And I didn’t look through
     my file, Your Honor—were not briefed. There were—there was the
     complaint file, declaratory –judgment complaint by both of us. I
     don’t think those questions were ever briefed directly.
                                      ***

N.T. 3/12/15, at 31, 33-34.

      In its September 20, 2017, Decision, the trial court dedicated an entire

portion of its discussion to the “Extinguishment of Easements.”      See Trial

Court Decision, 9/20/17, at 16-21.      Therein, the trial court referenced


                                    - 18 -
J-A22035-18


documentation in the record in support of its findings that easements for both

access and stormwater discharge         to the detention     basin had been

extinguished by the condemnation, that the condemnation extinguished BVA’s

rights to drain stormwater on the Watters’ Parcel, and that “having

condemned the subject easements, the corresponding covenants, which

provide no greater rights than do the easements, were also extinguished.”

Upon our review of the record evidence, including the Sewer System

Easement, Access Easement, and the Stormwater Basin and Drainage

Easement as well as the documentation pertaining to BVA’s declaratory

judgment complaint and Carlino’s corresponding motion for summary

judgment, and applying the appropriate standard of review, we discern no

error; thus, this claim fails.

      BVA’s third issue alleges the trial court erred and/or abused its

discretion when it awarded Carlino attorney’s fees. BVA does not challenge

the amount of the award, but it reasons the award of attorney’s fees was

improper in light of the trial court’s finding that while BVA was in technical,

non-compliance with its September 22, 2015, Order, the trial court did not

find BVA to be in contempt for failing to connect to the publicly-owned sewer

line in a timely manner. BVA further contends the trial court failed to consider

properly BVA’s reasons for failing to comply with the deadlines the trial court

had set forth in its orders. Brief for Appellant at 36-38.

      This Court has explained:


                                     - 19 -
J-A22035-18


       [w]e have a limited power of review of court awarded fees. As the
       Supreme Court has so frequently stated, the responsibility for
       setting such fees lies primarily with the trial court and we have
       the power to reverse its exercise of discretion only where there is
       plain error. Plain error is found where the award is based either
       on factual findings for which there is no evidentiary support or on
       legal factors other than those that are relevant to such an award.
       The rationale behind this limited scope of review is sound. It is the
       trial court that has the best opportunity to judge the attorney’s
       skills, the effort that was required and actually put forth in the
       matter at hand, and the value of that effort at the time and place
       involved.

Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1108–09 (Pa.Super. 1990)

(citations omitted).

       In its Order entered on February 22, 2017, the trial court denied

Carlino’s motion seeking monetary sanctions and directed that pursuant to 42

Pa.C.S.A. § 2503(7),7 BVA shall reimburse Carlino $57,042.00 “for its counsel

fees and costs incurred in seeking compliance with the Court’s Orders

identified in the Footnote below.” See Order of Court, filed 2/22/17, at 1-2.8



____________________________________________


7 That statutory provision provides that a participant shall be entitled to a
reasonable counsel fee as part of the taxable costs of the matter where he or
she “is awarded counsel fees as a sanction against another participant for
dilatory, obdurate or vexatious conduct during the pendency of a matter.” 42
Pa.C.S.A. § 2503(7).
8 The Declaratory Judgments Act does not expressly authorize the award of
counsel fees, and counsel fees have been awarded as supplemental relief
pursuant to the Act under limited circumstances. Mosaica Acad. Charter
Sch. v. Com. Dep't of Educ., 572 Pa. 191, 208–09, 813 A.2d 813, 824
(2002). However, the trial court did not base its award on the Declaratory
Judgments Act. Thus, we do not examine the propriety of the award
thereunder.


                                          - 20 -
J-A22035-18


BVA’s contentions to the contrary, in its lengthy footnote, the trial court

explained that it had been compelled to enter its prior Orders of August 15,

2013, September 3, 2014, and September 22, 2015, as a result of BVA’s

failure to take such steps as were necessary to effect the sewer connection.

2/22/17, at 3 ¶ 2. The court further stated the credible preponderance of the

evidence revealed during the hearings conducted on October 24-25, 2016,

established that by May 26, 2016, BVA had connected each structure but for

two in its shopping center to the municipal public sewer system by May 26,

2016. It further found the delay of the last two connections until June 20,

2016, was the result of the contractors’ negligence. Id. at ¶¶ 7-8.

       Notwithstanding, the court further indicated that the testimony of Allen

Bixler, called by BVA to establish a defense to its alleged contempt of the trial

court’s February 19, 2016, Order “was wholly inadequate to overcome

[Carlino’s] evidence respecting the circumstances occasioning delay and the

dates on which the work was actually completed.” Id. at 5, ¶9. The trial

court proceeded to analyze Carlino’s claim for attorney’s fees pursuant to 42

Pa.C.S.A. ¶ 2503(a)(7) and in doing so found the testimony of Fred Ebert,

P.E., a professional engineer called by Carlino to testify on October 24, 2016,

to be “especially significant” to its finding that BVA’s conduct had been “a

willful violation of [its] Orders and obdurate and vexatious in character.” Id.

at 8, ¶ 18. Specifically, the trial court asserted:

             Mr. Ebert described the governmental approvals that
      were necessary to permit [BVA] to construct the sewer line and

                                     - 21 -
J-A22035-18


     connect to the public sewer system, the timelines that are
     reasonably required in the normal course of business to secure
     those approvals, and the preparations necessary to have been
     made beforehand by any applicant, including [BVA], to avoid
     unnecessary delays. Such include timely preparation of the
     required sewer connection plan, anticipated revisions to the plan
     often sought by municipal officials, timely preparation of
     easement descriptions for the sewer lines, payment of connection
     fees and like considerations attendant to every such connection.
     It remains the applicant’s obligation to insure prompt and timely
     preparation and completion of these items in meeting required
     deadlines imposed by the [c]ourt.
              Mr. Ebert opined that had [BVA] proceeded with due
     anticipation of issues that commonly arise in most cases involving
     sewer approvals for connection to a public sewer system,
     preparation of plans and documents attendant thereto, and
     prompt attention to required details, the connection of [BVA’]s
     Shopping Center to public sewer could and would have been
     completed within the timelines set by the Court. Transcript,
     10/24/16, pp. 20 et seq. In other words, the required sewer
     connection should have been completed long before it was,
     without the necessity of repeated contempt citations and
     [Carlino’s] incurrence of fees and costs in the enforcement of the
     [c]ourt’s Orders. Indeed, Mr. Ebert’s testimony evidences the
     accuracy of our prior conclusions, expressed in our Orders of
     September 3, 2014[,] and February 10, 2016, that over the
     course of time during which [BVA] has been subject to those
     Orders, its conduct has been intentionally dilatory, obdurate and
     vexatious, warranting the award of counsel fees and costs.

Order of Court, 2/22/17, at 2, n.1 ¶ 18.

      The   trial   court   ultimately    concluded   Carlino’s   invoices   totaling

$57,042.00 for counsel fees incurred, fees paid to professional witnesses

called to testify, and costs associated with the contempt petitions and court

hearings related thereto, to be reasonable and awarded that sum as a

sanction.




                                         - 22 -
J-A22035-18


       This Court has held that an award of counsel fees may be a sanction

following a finding of contempt, or may be awarded to a party pursuant to 42

Pa.C.S.A. § 2503(7). Thus, an award of counsel fees under 42 Pa.C.S.A. §

2503 is distinct from a finding of civil contempt that might include sanctions

in the form of counsel fees. Wood v. Geisenhemer–Shaulis, 827 A.2d 1204,

1207 (Pa.Super. 2003). Following our review of the record and relevant notes

of testimony, we find support for the trial court’s award. Appellant essentially

askes this Court to substitute its judgment by altering the award, which we

cannot do absent an abuse of discretion.       Boehm v. Riversource Life Ins.

Co., 117 A.3d 308, 335 (Pa.Super. 2015) (citation omitted). Thus, no relief is

due on this claim.

       In its fourth argument, BVA posits the trial court erred by striking the

Cropper affidavit, its praecipe to incorporate the entire record from its appeal

of Carlino’s approved 2014 preliminary plan, and its New Matter filed in

response to Carlino’s motion for summary judgment. The trial court explained

its decisions in this regard as follows:

             No.1.a. Order of April 19, 2016[,] striking John R.
      Cropper’s affidavit, filed on January 6, 2016[,] in support [BVA’s]
      summary judgment motion. Cropper is a principal of [BVA]. The
      thrust of the affidavit was to add weight to [BVA’s] contention that
      when the late Frank E. Watters and Beatrice S. Watters sold John
      Cropper’s father the Brandywine parcel in 1994, the parties had
      the intention to cooperatively develop both parcels, which would
      include perpetuation of the on-site sewer system and access road
      located within the easements provided for in the Cross Easement
      Agreement for the benefit of both parcels. At that time, there was
      no plan of development of the Watters’ Parcel, so that any such
      presumed intention was precatory only, and not binding on the

                                      - 23 -
J-A22035-18


     Watters. Aside from the fact that Cropper’s affidavit was self-
     serving, its contents added no factual underpinning to [BVA’s]
     case, since the Agreement contains a specific provision concerning
     the parties[’] cooperation as it relates to “the purposes of the
     easements” and to the granting of “such additional easements as
     may be required to facilitate” the implementation of [BVA’s] 1994
     subdivision and land development plan for development of [BVA’s]
     shopping center, identified in the First paragraph of the
     Agreement’s recital.      Cross Easement Agreement, paragraph
     #11.E. Brandywine has consistently argued that it enjoys vested
     rights in the Cross Easement Agreement and that precludes
     Carlino’s development plan for the Watters’ Parcel. That the
     easements are not immutable is borne out, among other
     provisions of the Agreement, by its terms that address the on-site
     sewer facilities located on the Watters’ Parcel that, until recently,
     served [BVA’s] property. Those terms required [BVA] to connect
     its shopping center to the Township’s public sewer system when
     public facilities become available. Cross Easement Agreement,
     paragraphs 9 & 11. It was clear to this court that there is no
     provision in the Agreement that requires Carlino’s development of
     the Watters’ Parcel in any manner contemplated or dictated by
     [BVA].
              No. 1.b. Order of February 12, 2016. [BVA] filed three
     documents in response to Carlino’s summary judgment motion
     (“SJM”). First, on the presumptive authority of Pa.R.C.P. 1019(g),
     a praecipe directing the Prothonotary to incorporate into the
     declaratory judgment action the record from [BVA’s] 2015 appeal
     of Carlino’s 2014 preliminary land development plan, ChesCo
     Docket No. 2015-1448-MJ; second, and Answer to the SJM that
     raised “New Matter, allegedly pursuant to Pa.R.C.P. 1035.3(b);
     and third, a brief in support. The New Matter alleged the
     intentional violation of the Cross Easement Agreement by Carlino
     and the Township in the former’s submission of land development
     plans and the latter’s approval of those plans that ignored the
     Agreement. [BVA] has consistently advanced that same on-going
     allegation in the land use proceedings before the Township
     Supervisors and the appeals therefrom, and sought introduction
     in the declaratory judgment actions of the records made before
     the Supervisors. We have previously ruled in the zoning appeals
     that disputes over easement rights are not the proper subject of
     a zoning or land development proceeding, but rather must be
     decided in a separate court action. [citations omitted].
            Among its further contentions, [BVA] has argued,
     incorrectly, that our September 21, 2011[,] Order consolidated

                                    - 24 -
J-A22035-18


      not only the cross-declaratory judgment actions, but also a land
      use appeal then pending, thereby allowing it to make the zoning
      record a part of [BVA’s] declaratory judgment action. Order dated
      9/21/2011. The latter Order, however, consolidated only the
      declaratory judgment actions “for all purposes”. The zoning
      appeal was consolidated only for administrative purposes, such as
      administrative conferences and oral argument. All of the facts
      germane to the Cross Easement Agreement were present in the
      record when [BVA] sought to include the zoning appeal record and
      other New Matter allegations, which had nothing to do with the
      court’s interpretation of the Cross Easement Agreement sought in
      the declaratory judgment actions. . . .

Supplemental 1925 Opinion, filed 11/20/17, at 5-7.

      Upon our review, we discern no error. First, the Cropper Affidavit is

stamped as having been filed on January 6, 2016, after BVA had filed its

response to Carlino’s Motion for Summary Judgment. In its motion to strike

the affidavit, Carlino argued the 1993 Agreement of Sale between BVA and

the Watters constituted an integrated document and, therefore, the affidavit

was inadmissible, extrinsic evidence under the parol evidence rule.   The trial

court’s Order striking the affidavit was proper.   See Yocca v. Pittsburgh

Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 436 (2004) (holding, inter

alia, stadium builder licenses represented the parties’ entire contract; thus,

the parol evidence rule barred the admission of the stadium builder licenses

brochure).

      In addition, its May 2, 2016, Order reveals the trial court considered

documents from the land use appeal which BVA had attached to its Motion for

Summary Judgment and further provided BVA with an opportunity to

specifically identify other parts of the record it deemed to be germane to the

                                    - 25 -
J-A22035-18


court’s consideration of BVA’s response to the Motion for Summary Judgment.

Specifically, the trial court stated:

               We have no intention of combing through a lengthy zoning
        record to decipher what may be relevant evidence that creates an
        issue of fact relevant and material to the rights and liabilities of
        the parties under the Cross Easement Agreement. [BVA] admits
        its praecipe to incorporate the entire record may be “seen as
        excessive”. See Motion for Reconsideration, para. 11. It clearly
        is excessive. It appears that [BVA] has attached parts of the
        Supervisor’s hearing record to its Answer to Carlino’s SJM. See
        Exhibits A & B. If there are other parts of the land use appeal
        record to which [BVA] wishes to direct the court’s attention that
        are claimed by it to create a genuine issue of fact relevant and
        material to the defense of the Carlino Defendants’ SJM it may do
        so by affidavit. This means exact specification of relevant pages
        of identified witnesses’ testimony, exhibits and parts of plans that
        are claimed to be relevant. See Boulton v. Starck, 369 Pa. 45, 85
        A.2d 17 (1951). The Carlino Defendants may appropriately
        respond by tiled objection.

Order of Court, filed 5/2/18, at 3 n.1         Our review of the record has failed to

reveal any indication that BVA thereafter specifically identified portions of the

zoning record for the trial court’s consideration in response to Carlino’s

summary judgment motion.

        Finally, as the trial court notes, it did not strike BVA’s new matter in its

entirety. To the contrary, the court granted Carlino’s motion to strike new

matter only to the extent that it asserted new cause of action in violation of

Pa.R.C.P. 1033.9 Thus, this claim fails.


____________________________________________


9   This Rule provides, in relevant part:




                                          - 26 -
J-A22035-18


        BVA next argues the trial court abused its discretion in failing to find

the August 20, 2014, contract between Carlino and the Township was illegal

and in violation of Carlino’s easement obligations.       In its appellate brief,

Carlino asks this Court to find this claim waived for BVA’s failure to raise it

before the trial court. Brief of Appellee at 60.

        On May 9, 2018, Carlino filed with this Court its “Motion to Strike

[BVA’s] Reproduced Record and Appeal” wherein it requested that we, inter

alia, strike certain documents BVA has included in the Reproduced Record

associated with this appeal. These documents were not filed in the trial court

docket in BVA’s declaratory judgment action, nor did BVA request the trial

court to consider them in Answer to Carlino’s summary judgment motion. In

addition, as Carlino points out, although it included the six Exhibits in its

Reproduced Record, BVA did not enumerate these documents on its

Designation of Contents of Reproduced Record which it served on Carlino on

February 12, 2018.        Rather, these documents apparently were part of a

____________________________________________


       a) A party, either by filed consent of the adverse party or by leave
       of court, may at any time change the form of action, add a person
       as a party, correct the name of a party, or otherwise amend the
       pleading. The amended pleading may aver transactions or
       occurrences which have happened before or after the filing of the
       original pleading, even though they give rise to a new cause of
       action or defense. An amendment may be made to conform the
       pleading to the evidence offered or admitted.

Pa.R.C.P. No. 1033(a).




                                          - 27 -
J-A22035-18


separate condemnation proceeding to which Carlino is not a party that recently

was decided in the Township’s favor by the Commonwealth Court. See Motion

at 2-3; Condemnation of Fee Simple Title to 0.069 Acres of Vacant Land and

Certain    Easements      No.   1409     C.D.   2017,   unpublished   memorandum

(Cmwlth.Ct. filed July 2, 2018), reargument denied, Aug. 14, 2018).10 While

it attached a copy of the Memorandum of Understanding to its brief filed in

the declaratory judgment action on April 30 2015, BVA did not ask that the

trial court to declare the Memorandum void. As a result, the trial court did

not have an opportunity to consider this aspect of BVA’s claim prior to the

time its notice of appeal was filed.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a).         Our review of the record

reveals that BVA raised the instant claim for the first time in its Rule 1925

concise statement.        See Statement of Errors Complained of on Appeal

Pursuant to Pa.R.A.P. 1925, filed 11/6/17, at ¶4(f).         However, “[a]n issue

raised for the first time in a concise statement is waived. Beemac Trucking,

LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa.Super. 2016) (citation

omitted). Further, “appellate courts normally do not consider matters outside

the record or matters that involve a consideration of facts not in evidence.

Most importantly, appellate courts do not act as fact finders, since to do so


____________________________________________


10 Carlino points out the sticker placed on each document bears the
designation “Conees” which seemingly refers to BVA as the condemnees.

                                          - 28 -
J-A22035-18


would require an assessment of the credibility of the testimony and that is

clearly not our function.” Commonwealth v. Kennedy, 2016 WL 634849,

at *3 (Pa.Super. Feb. 17, 2016) (citing Commonwealth v. Grant, 813 A.2d

726, 733–34 (Pa. 2002) (case citations and internal quotation marks

omitted)). In light of the foregoing, we find this issue to be waived and,

accordingly, grant Carlino’s Motion to Strike the documents included in BVA’s

Reproduced Record at pages 1241a through 1331a.

       BVA’s final claim alleges the trial court erred and abused its discretion

in delaying its decision in BVA’s declaratory judgment action until after the

decision in the condemnation case, at which time it asserted BVA’s claims

were moot. Brief for Appellant at 64. BVA posits that “[i]t would appear that

the [c]ourt intentionally delayed decision to surmount [BVA’s] argument in its

Answer to [Carlino’s] summary judgment motion that [BVA] continues to own

those easements and Carlino’s continued planning is, therefore, in derogation

of [BVA’s] rights.” Id. at 60.

       The trial court explained why BVA’s contention is incorrect as follows:

               No. 3. [BVA] claims that I abused my discretion in waiting
      six years to decide the parties’ respective claims, and then
      asserting they were moot as a result of the condemnation. That
      statement is incorrect. The sewer easement, a principal subject
      of the declaratory judgment actions, was resolved by my order for
      specific performance described in my September 20, 2017[,]
      Opinion, while the driveway access and stormwater management
      easements were directly impacted by the Township’s Declaration
      of Taking discussed more fully in my September 20, 2017[,]
      Opinion. [BVA] was required by the Cross Easement Agreement
      to connect its shopping center to the Municipal Authority’s public
      sewerage system when those facilities were extended by the

                                    - 29 -
J-A22035-18


       Municipal Authority into the area where [BVA’s] shopping center
       is located. The Pennsylvania Department of Environmental
       Protection (“PADEP”) approved the municipal system’s extension,
       which triggered [BVA’s] connection obligation. Following inception
       of these actions, the pleading stage persisted through the end of
       2012, during which Carlino moved for summary judgment in its
       declaratory judgment complaint, which I denied. Evidentiary
       hearings followed. On January 11, 2013, Carlino filed a Petition
       seeking specific performance of the Agreement, the provisions of
       which required [BVA] to connect is property to the Township
       Municipal Authority’s public sewer system and abandon the on-
       site septic system located within the sewer easement on the
       Watters’ parcel that served [BVA’s] shopping center. [BVA] fought
       this requirement tooth and nail, which led Carlino to file contempt
       motions against [BVA], in turn requiring this court to conduct
       evidentiary hearings. Ultimately, I entered an Order on August 8,
       2013[,]requiring [BVA] to physically connect its shopping center
       to the Municipal Authority’s public sewer system. [BVA] appealed
       to Superior Court of September 10, 2013. Superior Court Docket
       No. 2558 EDA 2013. On December 9, 2014[,] the Superior Court
       returned the appeal to this court, concluding that, contrary to
       [BVA’s] contention, the lower court’s August 8, 2013[,] Order was
       not a final order.[11] In the interim, Carlino filed additional
____________________________________________


11  This unpublished memorandum decision, referenced above, was, in fact,
filed on October 20, 2014. Therein, this Court determined it lacked jurisdiction
to hear the appeal. In doing so, we reasoned as follows:

              Although this case began as two declaratory judgment
       actions, Carlino later filed a second amended complaint including
       non-declaratory judgment claims: ejectment, an injunction, and
       damages for breach of contract. The order appealed from in this
       case granted specific performance, in response to a petition for
       specific performance.         It did not declare rights under the
       Declaratory Judgments Act, even though Carlino improperly
       requested declaratory relief and specific performance in a single
       count of its second amended complaint. Moreover, specific
       performance and declaratory relief are distinct remedies with
       distinct purposes.
              Carlino filed a petition for specific performance seeking relief
       on only one count of a multi-count complaint. In response, the
       trial court granted specific performance- not declaratory relief.



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J-A22035-18


       contempt petitions against [BVA] seeking counsel fees arising
       from [BVA’s] persistent refusal to connect to the public sewer
       system. On September 22, 2015, [BVA] still not having timely
       complied with our August 8, 2013, Order, we conducted an
       administrative conference, which culminated in our Order of
       September 22, 2015, that established a new schedule with which
       [BVA] was required to comply in connecting its shopping center to
       the public sewage system. This was followed by a further motion
       filed by Carlino on January 7, 2016[,] seeking again to hold [BVA]
       in contempt and for the imposition of sanctions, in which Carlino
       alleged [BVA] had refused to complete connection to the public
       sewer system and was intentionally “dragging its feet.” [BVA]
       encountered construction difficulties in complying, but ultimately,
       connected, and undertook removal of the on-site septic system
       and its decommissioning pursuant to [PaDEP] regulations.
                 As discussed above, during the foregoing proceedings,
       [BVA] filed preliminary objections to the Township’s November 17,
       2014[,] Declaration of Taking, which condemned the access and
       drainage easements provided for in the Cross Easement
       Agreement. Multiple hearings were required to complete
       testimony before a decision could be made on those objections by
       another judge of this court on September 7, 2017. In terms of
       the declaratory judgment actions, a decision by this court as to
       the Township’s condemnation of [BVA’s] access easement would
       not have foreclosed [BVA’s] right to file preliminary objections to
       the taking. Consequently, I deferred to Judge Griffith on that
       issue, and awaited his determination of that action before issuing
       the instant decision.

Supplemental 1925 Opinion, filed 11/20/17, at 10-13 (some brackets in

original).




____________________________________________


       Because the trial court’s order granting specific performance is a
       partial adjudication, it is interlocutory and not appealable.

Carlino E. Brandywine, L.P. v. Brandywine Vill. Assocs., No. 2558 EDA
2013, unpublished memorandum at 4 (Pa.Super. filed Oct. 20, 2014)
(footnotes omitted).


                                          - 31 -
J-A22035-18


       In light of the longevity and complexity of the proceedings giving rise

to the declaratory judgment actions and the trial court’s September 20, 2017,

decision thereon, we find no merit to BVA’s claim the trial court intentionally

delayed its decision. As the above summary of the activity in the trial court

evinces, the court entered orders pertaining to the myriad pleadings filed by

the parties as their dispute progressed over the course of numerous years.

Applying the proper standard of review, we discern no error.

      Order affirmed. Carlino’s Motion to Strike [BVA’s] Reproduced Record

is granted. Jurisdiction is relinquished.

      Judge Nichols joins the Opinion.

      P.J.E. Bender concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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