J. A20006/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

STEVEN L. PLASIC                 :           IN THE SUPERIOR COURT OF
                                 :                 PENNSYLVANIA
                v.               :
                                 :
JOHN D. BOTTIGLIER, KANDI L.     :
LAFFERTY, GARY T. DEIMLER,       :
NANCY L. DEIMLER, TERI A.        :
SUTHERLAND, AND JACK BERTOLETTE :
                                 :
APPEAL OF: JOHN D. BOTTIGLIER,   :
KANDI L. LAFFERTY, GARY DEIMLER, :                 No. 78 MDA 2019
NANCY DEIMLER, AND               :
JACK BERTOLETTE                  :


          Appeal from the Judgment Entered December 24, 2018,
             In the Court of Common Pleas of Dauphin County
                  Civil Division at No. 2013-CV-08615-QT


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 18, 2019

     John D. Bottiglier, Kandi L. Lafferty, Gary Deimler, Nancy Deimler, and

Jack Bertolette (collectively “appellants”) appeal from the December 24, 2018

judgment entered in the Court of Common Pleas of Dauphin County in favor
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of Steven L. Plasic (“Plasic”) and against appellants pursuant to the trial

court’s order entered December 6, 2018.1 We affirm.

      The trial court set forth its findings of fact as follows:

            What is known as Stone Glen Road is an unimproved
            private road between Stoney Creek Road and Hemlock
            Lane[,] which follows the course of an abandoned
            railway line once owned by the Reading Railroad
            Company in Middle Paxton Township, Dauphin
            County. The parties to the present matter are owners
            of land abutting or bisected by Stone Glen Road who
            share a common predecessor in title, Warren G.
            Stone. Stone had acquired the land at issue from
            Dauphin Consolidated Water Supply Company and
            subdivided and sold off the parcels at issue in the
            1950’s.     Each of the Deeds of the parties’
            predecessors in titled [sic] make reference to the bed
            of the old railroad as a right of way or a right to use
            “in common with either owners and occupiers of land
            adjourning [sic] said right of way”.

            More specifically, the Deed from Stone to [Plasic’s]
            predecessor in title, his parent[,] states:

                  Reserving unto the parties of the first part
                  [Stone] their heirs and assigns the
                  ingress, egress and regress over and upon

1We note that John D. Bottiglier and Kandi L. Lafferty are husband and wife
and are collectively referred to as “Bottiglier.”

     We note that Gary Deimler and Nancy Deimler are husband and wife
and are collectively referred to as “Deimler.”

       We note that Martha Mercurio, wife of appellant Bertolette, was not a
named defendant in the underlying quiet title action. However, Mercurio and
appellant Bertolette hold title to their property as tenants by the entirety. The
trial court held that Mercurio, “although not named as [a] defendant, would
be bound by [the trial c]ourt’s determination.” (Notes of testimony, 9/19/18
at 5.)

      We note that Teri A. Sutherland is not a party to this appeal.


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                the right of way thirty-three (33) feet
                wide in the location formerly occupied by
                the Reading Railroad Company to be used
                in common with the owners and occupiers
                of land adjoining the right of way. (Deed
                Book [Vol.] 102[,] page 183).

          Consistent with the reservation in [Plasic’s] claim of
          title is the following which appears in the claims of []
          Sutherland and Deimler:

                Together with the right to use of a
                twenty (20) feet driveway, formerly the
                road bed of the Reading Railroad
                Company, crossing within described
                premises, which is to be used in common
                for ingress, egress and regress with the
                owners or occupiers of land abutting
                therein. (Deed Book Vol. 41, page 33).

          These chains of title also include language by which []
          Sutherland and Deimler took title subject to ways and
          rights of record and visible upon the land.

          Similarly, [] Bertolette’s Deed contains the following:

                Together with the right to the use of the
                said old railroad bed in common with the
                prior owner for ingress, egress and
                regress to the several portions of the land
                of the prior owner as well as such land as
                he has formerly conveyed therefore. This
                provision being copied from deed of prior
                owner, and which provisions and right it is
                expressly meant to be conveyed together
                with the property hereinbefore described.
                (Deed Book [Vol.] 4188, page 234)[.]

          Also, of significant note, [] Bottiglier’s chain of title
          also includes a recorded survey (Deed Book
          [Vol.] 1215[,] Page 191) which shows at [sic]
          thirty-three (33) foot Dauphin Consolidated Water
          Supply Company right of way across his land and
          entering that of [Plasic] and [] Deimler.


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          [] Bertolette’s chain of title includes a Deed from
          Stone which includes a course “to the Old Reading
          Railroad Bed” there “along the south side of said
          Reading Railroad bed”.            (Reference number
          20090036997)[.]      The Deed out of Stone to []
          Bertolette’s predecessor in title also states:

                The Grantee herein shall have the
                privilege of using, together with adjoining
                property owners, a sixteen (16) feet right
                of way over and across the lands of
                Warren S. Stone, et ux.

          In the many years that preceded this dispute the
          parties and their predecessors in title mutually used
          and individually maintained Stone Glen Road. By
          Agreement, in November of 2001[, Plasic,] Bottiglier
          and Lafferty and other landowners along Stone Glen
          Road to the west of [Plasic’s] property agreed to
          maintain a clear roadway, in common, for ingress and
          egress (Deed Book [Vol.] 4188, page 252). Neither
          [] Sutherland, Deimler and Bertolette, whose property
          is to the east of [Plasic’s] property, nor their
          predecessors in title were a part[y] to the Agreement.

          In relatively recent history[, appellants and
          Sutherland] and their predecessors in title have
          sought to discourage non-residents from using Stone
          Glen Road and to regulate traffic by placing logs along
          the side of the roadbed, a pole in the middle of the
          roadbed and a fence or chain across the roadbed. It
          is for these reasons [Plasic] has brought this action.

          By his Complaint[, Plasic] seeks to quiet title to
          traverse Stone Glen Road by right of way [and]
          further seeking to permanently enjoin [appellants and
          Sutherland] from interfering with his right to travel
          Stone Glen Road. [Appellants and Sutherland] have
          opposed [Plasic’s] action claiming that he does not
          have an express easement over their property. The




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            [trial c]ourt agrees with Bertolette but disagrees with
            [the] remaining [appellants and Sutherland].[2]

            The course of the old railroad bed, now known as
            Stone Glen Road is apparent upon inspection of the
            land and is not in dispute. While the width varies,
            16 feet[ – ]Bertolette, 20 feet[ – ]Sutherland, 33 feet[
            – Plasic] and by no measure in the instance of []
            Bottiglier and Lafferty, as determined by the Deeds,
            the course has remained unchanged.

Trial court opinion and order, 12/6/18 at 1-4.3

      The record reflects that on October 1, 2013, Plasic filed a quiet title

action against appellants, as well as Teri A. Sutherland and Bryan D. Mumma.4

On September 19, 2018, a non-jury trial was held. At the conclusion of Plasic’s

case-in-chief, appellants moved for a non-suit. The trial court took the motion

under advisement. At the conclusion of the non-jury trial, appellants renewed

their motion for a non-suit. The trial court continued to take the motion under

advisement.

      On December 6, 2018, the trial court entered its opinion and order

finding in favor of Plasic and enjoining appellants and Sutherland from


2 We note that the trial court agreed that Plasic’s quiet title action did not
involve the portion of the railroad bed now referred to as Hemlock Lane, which
transects Bertolette’s property. (Notes of testimony, 9/19/18 at 126.) The
trial court limited its “examination to the status of the railroad bed . . . in
Stone Glen Road west of its intersection of Hemlock [Lane].” (Id.)

3The trial court’s opinion and order does not contain pagination; for ease of
our discussion, we have assigned each page a corresponding number.

4 We note that the complaint misidentified Mumma as “Brian D. Mumma.” The
trial court dismissed Mumma from this cause of action without prejudice at
the start of the non-jury trial. (Id. at 4.)


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interfering with Plasic’s peaceful use “in the bed of the old railroad now known

as Stone Glen Road” as it crosses each party’s property for purposes of ingress

and egress in common with appellants and Sutherland.             (Id. at 4.)   On

December 17, 2018, appellants filed an untimely motion for post-trial relief.5

The trial court denied the post-trial motion on December 18, 2019.             On

December 24, 2018, judgment was entered in accordance with the trial court’s

opinion and order dated December 6, 2018.

      On January 7, 2019, appellants filed a timely notice of appeal.6 The trial

court ordered appellants to file a concise statement of errors complained of




5 We note that the record contains an original motion for post-trial relief that
was time-stamped as entered on December 18, 2018. The record also
contains a copy of the motion for post-trial relief that was time-stamped as
entered on December 17, 2018. The motion for post-trial relief was untimely
because it was not filed within ten days of the trial court’s decision in the
non-jury trial. See Pa.R.Civ.P. 227.1(c)(2) (stating, “Post-trial motions shall
be filed within ten days after . . . (2) notice of nonsuit or the filing of the
decision in the case of a trial without jury.”). Although the motion for post-trial
relief was untimely, the trial court, nonetheless, entertained the motion and
denied it on substantive grounds.

6 In a per curiam order, this court directed appellants to show cause why the
instant appeal should not be dismissed as premature on the grounds that the
post-trial motion was still pending and judgment had not been entered.
(Per curiam order, 2/15/19.) In response, appellants stated that upon
discovering that the trial court order denying the post-trial motion had been
entered on the wrong docket, appellants corrected the error. Appellants
provided this court with a revised docket statement showing that the post-trial
motion had been denied on December 18, 2018, and judgment was entered
on December 24, 2018. This court discharged its rule to show cause and
referred the matter to the merits panel. Upon review of the record, we find
that the appeal is properly before this court.


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on appeal pursuant to Pa.R.A.P. 1925(b). Appellants timely complied. The

trial court subsequently filed its Rule 1925(a) opinion.

       Appellants raise the following issue for our review: “Whether the trial

court erred in finding as a matter of law that [Plasic] has an express easement

over   appellants’   property[?]”     (Appellants’   brief   at   2   (unnecessary

capitalization omitted).)

            In reviewing the ruling of the trial court in an action
            to quiet title, an appellate court’s review is limited to
            determining whether the findings of fact are
            supported by competent evidence, whether an error
            of law has been committed, and whether there has
            been a manifest abuse of discretion.

Vernon Township Volunteer Fire Dep’t, Inc. v. Conner, 855 A.2d 873,

879 (Pa. 2004) (citation omitted). “An appellate court may not substitute its

judgment for that of the trial court if the determination of the trial court is

supported by competent evidence.” Id. (citation omitted).

       Here, appellants argue the trial court erred in determining that Plasic

had an express easement across their properties. (Appellants’ brief at 5.)

Appellants contend that Stone reserved an express easement in the deed to

Plasic’s predecessor-in-title, his parents, that was only for the benefit of Stone

and was not meant to benefit Plasic. (Id.)

       “[T]he same rules of construction apply to deeds granting easements as

to contracts generally.” Southall v. Humbert, 685 A.2d 574, 577 (Pa.Super.

1996) (citation omitted).




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           In construing a deed or a contract, certain general
           principles must be kept in mind. First, it is the
           intention of the parties at the time of entering in
           thereto that governs, and such intention is to be
           gathered from a reading of the entire contract. In
           addition, [c]ontracts must receive a reasonable
           interpretation, according to the intention of the parties
           at the time of executing them, if that intention can be
           ascertained from their language.

Id. citing Wilkes-Barre Twp. Sch. Dist. v. Corgan, 170 A.2d 97, 98 (Pa.

1961).

           Creation of an easement appurtenant is accomplished
           by reserving unto the grantor an easement or right of
           way over the land conveyed, said right of way being
           intended to benefit other lands retained by the
           grantor. This reservation is conceptually fused with
           the land it benefits and passes with the land if there
           is a subsequent conveyance. An expressly created
           easement appurtenant can conceivably last forever.

           ....

           [W]here an easement is annexed as an appurtenance
           to land by an express or implied grant or reservation
           . . . it passes with a transfer of the land although not
           specifically mentioned in the instrument of
           transfer. . . . Unless the common grantors limit or
           make personal the right of way, it is an appurtenance
           to the land it benefits.

Brady v. Yodanza, 425 A.2d 726, 727-728 (Pa. 1981) (citations and

footnotes omitted).   Reciprocal appurtenant easements exist when “each

parcel conveyed from the original tract serves as a servient estate for the

beneficial use of the remaining property of that common tract formerly owned

by [] their common grantor.” Southall, 685 A.2d at 578 (citation omitted).




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            An assignor is defined as “a person who assigns or
            transfers property to another.” The term “assigns” is
            defined as follows:

                  Those to whom property is, will, or may
                  be assigned. Used e.g. in the phrase, in
                  deeds, “heirs, administrators, and assigns
                  to denote the assignable nature of the
                  interest or right created.” It generally
                  comprehends all those who take either
                  immediately or remotely from or under
                  the assignor, whether by conveyance,
                  devise, descent, or act of law.

Id. at 579 (brackets omitted, emphasis added), citing Black’s Law Dictionary

109 (5th ed. 1979).

      Here, a review of the record demonstrates that Stone was the common

grantor of all of the properties involved in the instant matter.      (Plaintiff’s

Exhibits A-F.) In 1948, Stone conveyed to Bertolette’s predecessor-in-title

the property identified as Parcels 5 and 6 at trial. (Plaintiff’s Exhibit F, Deed

Vol. 32 at Pages 413-415; see also defendant’s Exhibit 1.)              In that

conveyance, Stone granted Bertolette’s predecessor-in-title “the privilege of

using, together with adjoining property owners, a sixteen (16) feet right

of way over and across the lands of [Stone].”       (Plaintiff’s Exhibit F, Deed

Vol. 32 at Page 413 (emphasis added).)

      In 1951, Stone conveyed the property identified as Parcel 1 at trial to

Bottiglier’s predecessor-in-title reserving for himself an easement appurtenant

and granting Bottiglier’s predecessor-in-title the same across the “old railroad

bed.” (Defendant’s Exhibit 1, see also plaintiff’s Exhibit B, Deed Vol. 35 at



                                      -9-
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Pages 544-547.) The grant of the easement appurtenant stated specifically,

“Together with the right to the use of the said old railroad bed in common

with party of the first part[, (Stone),] for ingress, egress and regress to the

several portions of the land of the party of the first part[, (Stone)], as well

as such land as he has formerly conveyed therefrom.”                    (Plaintiff’s

Exhibit B, Deed Vol. 35 at Page 545 (emphasis added).)

        In 1956, Stone conveyed the property that was later sub-divided into

Parcels 3 and 4, as identified at trial, to Deimler’s and Sutherland’s

predecessor-in-title.7 (Defendant’s Exhibit 1; see also plaintiff’s Exhibit D,

Deed Vol. 41 at Page 33; plaintiff’s Exhibit C, Deed Vol. 41 at Pages 33-35.)

In that deed, Stone again reserved for himself an easement appurtenant and

granted Deimler’s and Sutherland’s predecessor-in-title the same; the specific

language of the deed stated, “Together with the right to the use of a twenty

(20) feet driveway, formerly the road bed of the Reading Railroad Company,

crossing the within described premises, which is to be used in common for

ingress, egress and regress with the owners or the occupiers of land

abutting thereon.” (Plaintiff’s Exhibit D, Deed Vol. 41 at Page 33; plaintiff’s

Exhibit C, Deed Vol. 41 at Page 33 (emphasis added).)

        Finally, in 1957, Stone conveyed to Plasic’s predecessor-in-title Parcel 2,

as identified at trial, “[r]eserving unto the parties of the first part [(Stone)],

their heirs and assigns, the right of ingress, egress and regress over and


7   Both Deimler and Sutherland had the same predecessor-in-title, E.M. Harter.


                                       - 10 -
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upon the right of way thirty-three (33) feet wide in the location formerly

occupied by the Reading Railroad Company to be used in common with

other owners and occupiers of land adjoining said right of way.”

(Defendant’s Exhibit 1; see also plaintiff’s Exhibit A, Deed Vol. 42 at

Pages 23-25 (emphasis added).)

      The record reveals that by including similar language in each deed of

the predecessors-in-title whose property abutted or was bisected by the

former railroad bed, Stone created reciprocal easements appurtenant or

common rights-of-way for ingress, egress and regress over each owner’s

property for the benefit of all the other owners. Southall, 685 A.2d at 578

(noting, “The choice of identical terms to describe both easements indicates a

purpose to establish identical and reciprocal rights.”). Moreover, the specific

language in the easement conveyed by Stone to Plasic’s predecessor-in-title,

created a reciprocal easement appurtenant for the benefit of Stone’s assigns,

which included Plasic’s predecessor-in-title and which passed with the land for

the benefit of Plasic. Id. at 579 (stating, “The assignee stands in the same

shoes as the assignor.” (brackets omitted)).

      A review of the record supports the trial court’s findings of fact and we

discern no error of law or abuse of discretion in the trial court’s conclusion

that “the language in the original deeds from Stone to [appellants, Sutherland]

and [Plasic’s] predecessor[s] in title reserved to [Plasic], his successors in

title, [Sutherland] and [appellants], a right of way in common, in the bed of



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the old railroad now known as Stone Glen Road.” (Trial court opinion and

order, 12/6/18 at 4.) Therefore, appellants claim is without merit.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2019




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