J-A34038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MOTT CEMETERY ASSOCIATION                      IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

EDWARD KALINOWSKI

                         Appellant                  No. 707 MDA 2014


              Appeal from the Judgment entered May 28, 2014
              In the Court of Common Pleas of Bradford County
                      Civil Division at No: 2011 CV 0409


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MAY 27, 2015

     Mott Cemetery Association (MCA) owns a cemetery in Leroy Township,

Bradford County.        Edward Kalinowski owns land that surrounds the

cemetery. The deed from Kalinowski’s predecessor in interest to MCA (the

1917 Deed) allowed MCA to take up to two additional acres of the

surrounding land for cemetery purposes. In this case, the trial court granted

relief to MCA, allowing it to enforce that provision and to enjoin Kalinowski

from using its access right-of-way from the public road to the cemetery. On

appeal, Kalinowski contends the deed allowed MCA to take only one acre of

his land, and that he has an easement over the access way leading from the

public road to MCA’s cemetery. We affirm.

     In 1917, Thomas and Mina Mott deeded one acre of their land to MCA

for use as a cemetery. At the time, the Motts owned the land surrounding
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the cemetery. At issue is a provision of the 1917 Deed from the Motts to the

MCA, which provides as follows:

      The privilege is also granted by [the Motts] to the DIRECTORS
      OF THE [MCA] the right to take when they think necessary one
      Acre more of land and also the second acre when needed for
      [c]emetery purposes adjoining Cemetery plot as the Directors
      may so desire. By paying One H[u]ndred Dollars for each acre
      of land taken to THOMAS Mott his heirs[,] assigns[,] executors[,]
      administrators[,] or whosoever should hold the title of the Land
      adjoining the above mention[ed] Cemetery plot. The [Motts]
      give[] and grant[] unto [MCA] the right to build and maintain a
      suitable road leading from [the] main road to the Cemetery[.]
      The [Motts] reserve[] the right to use said road at any and all
      times[.]

1917 Deed.

      Thomas and Mina Mott’s ancestors began to bury family members in

the cemetery in the 1850s.         Currently, the cemetery is a one-acre,

rectangular parcel surrounded by Kalinowski’s 40-acre parcel. Kalinowski’s

parcel was part of Thomas and Mina Mott’s land not deeded to MCA in 1917.

At some time in the 1950s or 60s, the Mott family sold the enclosing plot to

unrelated buyers. Not all of the deeds showing subsequent transfers are of

record, but the parties stipulated that Kalinowski is Thomas and Mina Mott’s

successor in interest to the enclosing parcel of land.

      The chain of title has carried down the existence of the access way,

and Kalinowski’s deed includes the following clause:

      EXCEPTING AND RESERVING, however, from the herein
      described premises, all that certain lot, piece or parcel of land
      known and described as “Mott Cemetery”, together with a right-
      of-way over the State Highway, bounding the hereinbefore
      described premises on the south. Said right-of-way to be used


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      for the purpose of gaining ingress, egress, and regress in and to
      said cemetery by all means of locomotion as to continue as it
      presently exists.

Peppers to Kalinowski Deed, 9/12/2005. The access way extends from the

southern end of the cemetery over Kalinowski’s land to a state route known

as Southside Road.    The 1917 Deed does not describe the right-of-way’s

dimensions. According to the survey entered into evidence at trial, it is 465′

long. The access way is a slightly improved cart path through a hay field. It

divides in two Kalinowski’s property on the south side of the cemetery.

Kalinowski and his tenant farmers travel over the access way to reach his

field, and in the past their machinery has damaged parts of the roadway.

Kalinowski never asked permission to use the access way, because he

thought he had the right to do so.      One of Kalinowski’s predecessors in

interest, Larry Jennings, was a close friend of the Mott family. He also never

asked permission to use the access way.

      Seeking to purchase the two additional acres, MCA tendered $200.00

to Kalinowski, who refused to sell.       MCA then sued, seeking specific

performance of the 1917 Deed.      MCA further sought to enjoin Kalinowski

from using the access way.    Kalinowski answered and counterclaimed.      In

relevant part, he argued MCA could take only one acre and that he had the

right to use the access way.     Following a non-jury trial, the trial court

entered judgment in favor of MCA.     It ordered the conveyance of the two




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acres and enjoined Kalinowski from using the access way.        After the trial

court denied Kalinowski’s post-trial motion, this appeal followed.1

       Kalinowski presents two issues for our review:

       1. Whether the lower court erred in determining that the
          language of the deed in question gave [MCA] the right to take
          two (2) acres of [Kalinowski’s] property without the necessity
          of demonstrating the need for the second acre.

       2. Whether the lower court erred in failing to find [Kalinwoski]
          acquired an easement by prescription.

Appellant’s Brief at 4.

       On review of cases arising from a trial court’s decision made after a

non-jury trial, we must “determine whether the findings of the trial court are

supported by competent evidence and whether the trial court committed

error in any application of the law.” Stephen v. Waldron Elec. Heating &

Cooling, LLC, 100 A.3d 660, 664-65 (Pa. Super. 2014). We accord the trial

court’s factual findings the same weight as a jury verdict, meaning that we

may reject them only if unsupported by competent evidence.             Id.   In

contrast, we review de novo the trial court’s legal conclusions. Id.

       Both assignments of error require us to construe the 1917 Deed.

When construing a deed,
____________________________________________


1
  Kalinowski improperly appealed from the denial of post-trial motions, a
non-appealable, interlocutory order. See Prime Medica Assocs. v. Valley
Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). We ordered
him to praecipe for entry of judgment, which he did, thus perfecting our
jurisdiction. See Pa.R.A.P. 905(a).




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     a court’s primary object must be to ascertain and effectuate
     what the parties themselves intended. The traditional rules of
     construction to determine that intention involve the following
     principles.   First, the nature and quantity of the interest
     conveyed must be ascertained from the deed itself and cannot
     be orally shown in the absence of fraud, accident or mistake.
     We seek to ascertain not what the parties may have intended by
     the language but what is the meaning of the words they used.
     Effect must be given to all the language of the instrument, and
     no part shall be rejected if it can be given a meaning. If a doubt
     arises concerning the interpretation of the instrument, it will be
     resolved against the party who prepared it . . . . To ascertain
     the intention of the parties, the language of a deed should be
     interpreted in the light of the subject matter, the apparent object
     or purpose of the parties and the conditions existing when it was
     executed.

Pa. Servs. Corp. v. Tex. E. Transmission, LP, 98 A.3d 624, 630 (Pa.

Super. 2014) (quoting Consolidation Coal Co. v. White, 875 A.2d 318,

326 (Pa. Super. 2005)). Whether a deed is ambiguous is a question of law

for the court. Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169 (Pa. Super.

1995). Furthermore, in interpreting an unambiguous deed, a court is limited

to the deed itself, and cannot consider parol evidence. Id.

     Kalinowski concedes he must transfer one acre to MCA, based on the

1917 Deed language allowing MCA to take one acre “when it may so desire.”

He argues that MCA must show that it needs the second acre for the

cemetery before MCA can take it from him. Pointing to available cemetery

plots, he argues MCA cannot meet that standard.           We disagree with

Kalinowski’s construction of the 1917 Deed.

     Kalinowski’s focus in reading the relevant clause is too narrow.      He

does not consider the clause in context.      The operative language is “The



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privilege is also granted by [the Motts] to the DIRECTORS OF THE [MCA] the

right to take when they think necessary one acre more of land and also

the second acre when needed for Cemetery purposes adjoining Cemetery

plot as the Directors may so desire.” 1917 Deed (emphases added). In

context, the plain, unambiguous meaning of this clause gives MCA a right to

take up to two additional acres. The only limitation on that right is that it

must be “for cemetery purposes.” No party disputes that MCA, which exists

only to oversee the cemetery, will use the additional land to expand the

cemetery and build a parking lot.   Nothing in the 1917 Deed requires, as

Kalinowski argues, MCA to demonstrate that it needs the second acre

because the existing cemetery is full.      Rather, MCA is unambiguously

granted the right, when its directors so desire and when they think

necessary, to acquire up to two additional acres for use by MCA. The trial

court correctly found that, as a matter of law, the above-quoted provision of

the 1917 Deed is unambiguous.

     We next address Kalinowski’s second argument, that he has a

prescriptive easement to travel over the right-of-way. We are constrained

to find that Kalinowski has waived this argument for lack of development.

     “A prescriptive easement is created by (1) adverse, (2) open, (3)

notorious, (4) continuous and uninterrupted use for a period of twenty-one

(21) years.”   Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987).

Moreover, the party asserting the easement must demonstrate “clear and

positive” proof.   Id.   Permissive use defeats a claim of a prescriptive

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easement. Morning Call, Inc. v. Bell Atl.-Pa., Inc., 761 A.2d 139, 143

(Pa. Super. 2000). However, absence of objection by the landowner is not

equivalent to a grant of permission precluding acquisition of title to an

easement by prescription.    Kaufer v. Beccaris, 584 A.2d 357, 359 (Pa.

Super. 1991).

     An appellant must provide legal authority to support his or her claims.

Pa.R.A.P. 2119(a) and (b).      “‘The Rules of Appellate Procedure state

unequivocally that each question an appellant raises is to be supported by

discussion and analysis of pertinent authority.’ Failure to do so constitutes

waiver of the claim.” Giant Food Stores, LLC v. THF Silver Spring Dev.,

L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (quoting Estate of Haiko v.

McGinley, 799 A.2d 155, 161 (Pa. Super. 2002) (citing Pa.R.A.P. 2119(b)).

     Kalinowski did not set forth the test for creation of a prescriptive

easement or explain how he meets it.         Indeed, he cites no pertinent

authority in support of his argument.       Instead, he advances only the

irrelevant claim that the provision concerning the access way in the 1917

Deed is an exception running with the land, and not a reservation personal

to Thomas and Mina Mott.      This argument is puzzling, because it is self-

defeating. If Kalinowski is correct that the 1917 Deed contains an exception

granting him the right to use the access way, his use is under color of title,




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i.e., not adverse.       Use under legal right cannot be prescriptive. 2   See

Flannery v. Stump, 786 A.2d 255, 260 (Pa. Super. 2001) (holding tenant

farmer’s use of land was not adverse during the period of the tenancy).

       We have thoroughly reviewed the parties’ briefs and the record, and

Kalinowski’s assignments of error do not entitle him to relief. Accordingly,

we affirm the trial court’s judgment.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




____________________________________________


2
  We will not address Kalinowski’s exception/reservation argument, which he
did not include as a separate question presented in his brief or in his concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b)(4);
2116, 2119.

      Additionally, upon our review of Kalinowski’s prescriptive easement
claim, it is unclear who owns the land over which the access way runs. The
terms of the 1917 Deed appear to grant MCA an easement over the Mott’s
remaining lands now owned by Kalinowski. Thus, on the record before the
Court, it appears that Kalinowski owns the land under the access way.
However, this claim was not raised in the trial court and it has not been
raised on appeal. Therefore, we express no opinion as to the ultimate merits
of such an argument.



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