J-A22043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THADDEUS J. BARTKOWSKI, III &                 IN THE SUPERIOR COURT
    CRYSTAL ANNE CRAWFORD                                   OF
                                                       PENNSYLVANIA
                             Appellants

                        v.

    KENNETH RAMONDO & THERESE-
    CECILIA RAMONDO,

                             Appellees                No. 432 EDA 2017


              Appeal from the Judgment Entered January 27, 2017
                in the Court of Common Pleas of Chester County
                      Civil Division at No.: 2015-05842-RC



    THADDEUS J. BARTKOWSKI, III &                 IN THE SUPERIOR COURT
    CRYSTAL ANNE CRAWFORD                                   OF
                                                       PENNSYLVANIA
                             Appellees

                        v.

    KENNETH RAMONDO & THERESE-
    CECILIA RAMONDO,

                             Appellants               No. 521 EDA 2017


              Appeal from the Judgment Entered January 27, 2017
                in the Court of Common Pleas of Chester County
                         Civil Division at No.: 15-05842


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A22043-17


MEMORANDUM BY PLATT, J.:                                FILED JANUARY 22, 2018

        Thaddeus     J.   Bartkowski,    III   and   Crystal   Anne   Crawford   (the

Bartkowskis) and Kenneth Ramondo and Theresa-Cecelia Ramondo (the

Ramondos) have filed cross-appeals from the judgment1 entered by the trial

court in this matter on January 27, 2017. We vacate in part and affirm in

part.

        We take the following facts from our independent review of the certified

record, and the trial court opinion, which contains the stipulated record

submitted by the parties in lieu of a trial. (See Trial Court Opinion, 9/19/16,

at 1).    On July 16, 1991, the Ramondos purchased their property (the

Ramondo Property). “The Ramondo Property is a ‘flag lot,’ meaning there is

a [twenty-five] foot wide strip of land fronting Garrett Mill Road (the ‘pole’),

which extends approximately 600 feet [before] reaching the main portion of

the Ramondo Property (the ‘flag’). The Ramondo Property is approximately

5.62 acres.” (Id. at 2 ¶ 3). The Bartkowskis bought the partially adjacent

property (the Bartkowski Property) on December 11, 2012. “The Bartkowski

Property is also a ‘flag lot’ with a [twenty-five] foot wide pole.               The

Bartkowskis’ pole runs adjacent to the Ramondos’ pole [and the Bartkowski

Property] is approximately 5.25 acres.” (Id. at 3 ¶¶ 6-7).


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1 The parties purport to appeal from the trial court order denying their
respective post-trial motions. However, an appeal properly lies from the final
order. We have amended the caption accordingly.


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      The two properties once were owned by common grantors, Adrian and

Margaret Teaf (the Teafs). The Teafs filed a third revised subdivision plan on

August 9, 1967. The plan shows what would become the Bartkowski Property,

the Ramondo Property, and a third property owned by the Coulstons (the

Coulston Property). (See Revised Subdivision Plan, 8/09/67).

      On April 19, 1968, the Teafs conveyed what is now the Bartkowski

Property to the Herbert C. Mansmann and Margaret M. Mansmann (the

Mansmanns); and they built their home in 1969.           The Mansmanns and all

subsequent owners of the future Bartkowski Property shared a driveway with

the Coulstons. The Mansmanns still lived there when the Ramondos moved

in. At the time the Ramondos purchased the Property in 1991, it was a vacant

wooded lot.

      In April 1992, the Ramondos began construction of a home on their

Property. They had their neighbors, the Coulstons and the Mansmanns, walk

the property to see if they objected to the proposed placement of the

driveway, which was partially through the pole of the Bartkowski Property,

then owned by the Mansmanns. The Mansmanns said that they did not care

because they shared a driveway with the Coulstons on the other side of their

property, as all owners of the Bartkowski Property have done since that time.

The   Mansmanns     did   not   execute   and   record    a   formal   easement.

Subsequently, the Ramondos’ driveway (the Driveway) was installed.            It

“extends approximately halfway up the Bartkowskis’ pole before turning back


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into the Ramondos’ pole and ultimately toward the Ramondos’ home.” (Trial

Ct. Op., at 5 ¶ 30). The Driveway is constructed where it is “because of a

stream, flood plain, steep slope and utility pole, all of which were in place

when the Ramondos purchased their property.”         (Id. at 5 ¶ 33).    The

Ramondos have accessed their home via the Driveway since its completion in

1993.

        On August 16, 2003, the Mansmanns conveyed the Bartkowski property

to F. Ramondo, Inc. (See Deed from the Mansmanns to F. Ramondo, Inc.,

8/16/03, at unnumbered pages 1-2).        Frank Ramondo is president of the

corporation, and Kenneth Ramondo, Appellant herein, is vice-president. F.

Ramondo, Inc. conveyed the property to the Biancos on May 2, 2007. (See

Deed from F. Ramondo, Inc. to the Biancos, 5/02/07, at unnumbered page

1).     Frank Ramondo was the signatory on the transfer.        (See id. at

unnumbered page 3). The Biancos conveyed the property to the Bartkowskis

on December 11, 2012.

        When the Bartkowskis purchased their Property, they were aware that

the Ramondos used the Driveway to access their home. They also knew that

their predecessor owner had used the Coulstons’ driveway to access the




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Bartkowski Property, and that they had an easement over the Coulston

driveway allowing them to use it to access their home.2

       In the summer of 2013, the Bartkowskis approached the Ramondos

about the Driveway’s encroachment on their Property. On June 30, 2015, the

Bartkowskis’ attorney sent the Ramondos a cease and desist letter. Daniel

Malloy, the Ramondos’ civil engineer, authored a report in which he opined

“that due to the amount of regulatory relief and permitting that would be

required to overcome Township and [Department of Environmental Protection

(DEP)] restrictions . . . construction of a new driveway within the Ramondos’

pole is all but impossible [and] the cost . . . is prohibitive.” (Id. at 9 ¶ 63

(record citation omitted)). The Bartkowskis’ civil engineer, Denny L. Howell,

P.E., issued a rebuttal report in which he concluded that the engineering and

zoning requirements to relocate the Driveway are feasible.3

____________________________________________


2 On July 27, 2005, the Coulstons executed an easement granting shared use
of their driveway to F. Ramondo, Inc., and its successor and assigns, and
recorded the easement on May 22, 2007.

3 In 2015, the Bartkowskis submitted plans to the Township for renovations
to their home, including the installation of a new driveway onto and over the
Driveway. Township Engineer Michael Conrad issued a review letter on July
17, 2015, in which he noted that section 119-31 of the Township code requires
abutting flag lots to use a common driveway and, therefore, the Bartkowskis
would need to submit an easement and maintenance agreement with the
Ramondos for construction of a new driveway. In response, the Bartkowskis
submitted revised plans on August 27, 2015, which contained general note 10
indicating shared access of a common driveway to be used by the Bartkowskis
and the Ramondos. A supplemental review letter dated September 10, 2015
acknowledged the general note 10, and again stated that shared driveway



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J-A22043-17


       On July 16, 2015, the Bartkowskis filed an action in ejectment and

trespass against the Ramondos, alleging that the Ramondos improperly

constructed the driveway on the Bartkowski Property to access their home.

On July 31, 2015, the Ramondos filed a counterclaim against the Bartkowskis,

alleging that, even if they are not record owners of the disputed area, they

have acquired ownership by adverse possession (count I), the doctrine of

consentable lines (count II), or have an easement by prescription (count III),

necessity (count IV), or implication (count V). The parties agreed to forego a

trial, and instead submitted a stipulated record and memoranda of law to the

trial court. On September 19, 2016, the court found in favor of the Ramondos

on count V, easement by implication, and against them on their other counts.

Based on this finding, it found against the Bartkowskis on their action in

ejectment and trespass. Both parties filed post-trial motions that the court

denied. The Bartkowskis appealed and the Ramondos cross-appealed.4

       The Bartkowskis raise two questions for the Court’s review.

       1.   Whether there was sufficient evidence of record to support
       an easement by implication, inasmuch as there was not, in fact, a
____________________________________________


access would be required to conform with section 119-31 of the Township
code.

4 Pursuant to the trial court’s orders, the Bartkowskis and Ramondos filed
timely statements of errors complained of on appeal on February 21, 2017.
See Pa.R.A.P. 1925(b). The court filed an opinion on February 22, 2017, in
which it relies on the reasons stated in its January 4, 2017 order denying the
parties’ post-trial motions and its September 19, 2016 opinion. See Pa.R.A.P.
1925(a).


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J-A22043-17


       common grantor of the Bartkowski and Ramondo parcels at the
       time that the Ramondos’ trespass over the Bartkowski parcel, viz.
       the Driveway, was installed or at any time thereafter?

       2.     Whether there was sufficient evidence of record to support
       an easement by implication, inasmuch as there was not, in fact,
       sufficient necessity to support the Ramondos’ trespass, viz. the
       Driveway, since the evidence of record demonstrates that the
       Ramondos have road-access?

(The Bartkowskis’ Brief, at 4).

       The Ramondos raise two questions for our review.5

       1.   Whether the [t]rial [c]ourt erred by failing to find an
       easement by necessity for the use of the [D]riveway on the
       Bartkowskis’ [P]roperty, considering there are no other feasible
       means for the Ramondos to ingress and egress their [P]roperty[?]

       2.     Whether the [t]rial [c]ourt erred by holding there was
       insufficient evidence to grant title of the [D]riveway to the
       Ramondos via the doctrine of consentable line[?]

(The Ramondos’ Brief, at 2).

       In their first issue, the Bartkowskis challenge the sufficiency of the

evidence to support a finding of an easement by implication where “[t]here

was no common grantor of the Bartkowski and Ramondo parcels at the time

the [D]riveway was installed or at any time thereafter.” (The Bartkowskis’

Brief, at 19; see id. at 20-22).

       Our standard of review of this issue is well-settled:



____________________________________________


5 The Ramondos present three questions in their brief, but the first merely is
a counterstatement of the Bartkowskis’ first question. Therefore, we have not
included it here, and have renumbered the two remaining questions
accordingly.

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J-A22043-17


            The trial judge, sitting in equity as a chancellor, is the
      ultimate fact-finder. The scope of review, therefore, is limited.
      The final decree will not be disturbed unless the chancellor
      committed an error of law or abused his or her discretion. The
      findings of fact made by the trial court will not be disturbed unless
      they are unsupported by competent evidence or are demonstrably
      capricious.

Daddona v. Thorpe, 749 A.2d 475, 480 (Pa. Super. 2000), appeal denied,

761 A.2d 550 (Pa. 2000) (citation omitted).

             It has long been held in this Commonwealth that although
      the language of a granting clause does not contain an express
      reservation of an easement in favor of the grantor, such an
      interest may be reserved by implication, and this is so
      notwithstanding that the easement is not essential for the
      beneficial use of the property. The circumstances which will give
      rise to an impliedly reserved easement [are]:

                [W]here an owner of land subjects part of it to an
          open, visible, permanent and continuous servitude or
          easement in favor of another part and then aliens either,
          the purchaser takes subject to the burden [or] the benefit
          as the case may be, and this is irrespective of whether or
          not the easement constituted a necessary right of way.

Id. at 480-81 (citations and quotation marks omitted).

      In determining whether an easement by implication exists, we apply the

following test:

      Three things are regarded as essential to create an easement by
      implication on the severance of the unity of ownership in an
      estate; first, a separation of title; second, that, before the
      separation takes place, the use which gives rise to the
      easement, shall have been so long continued, and so obvious or
      manifest, as to show that it was meant to be permanent; and
      third, that the easement shall be necessary to the beneficial
      enjoyment of the land granted or retained. To these three,
      another essential element is sometimes added,-that the servitude
      shall be continuous and self-acting, as distinguished from
      discontinuous and used only from time to time.

                                      -8-
J-A22043-17



Id. at 481 (citations and quotation marks omitted; emphasis added).6

       In this case, the trial court found that the Teafs had unity of ownership

in 1967 when they subdivided their property, creating, inter alia, the Ramondo

and Bartkowski parcels. The properties were wooded lots at that time, with

no driveways installed or intended. (See Trial Ct. Op., at 20). The trial court

further found:

             The second “severance” occurred after 2003, when the
       Mansmanns sold [the Bartkowski] [P]roperty to the Ramondo
       family and the deed was recorded in the name of F. Ramondo,
       Inc.[] [Appellant] Kenneth Ramondo testified that he serves as
       the Vice President of F. Ramondo, Inc.[] During the time the
       Ramondo family owned the Ramondo Property and later the
       Bartkowski Property, the [D]riveway had been in existence for
       over twelve (12) years. The Ramondos then continued to use,
       and allowed the use, of the driveway for the next four (4) years.
       The Ramondo family later severed the property by selling the
       Bartkowski Property to the Biancos in 2007. It was at this time
       that severance of title from a common grantor occurred and an
       easement by implication arose.

(Id. at 20-21).



____________________________________________


6 Although there was conflicting case law on the test for an easement by
implication prior to 2000, in Daddona, this Court expressly held that, based
on the Pennsylvania Supreme Court’s holding in Bucciarelli v. DeLisa, 691
A.2d 446 (Pa. 1997), “any such conflict found within the case law in this area
no longer exists[,]” and the traditional test for easement by implication is to
be used, although the factors of the Restatement of Property § 476 may be
considered. Daddona, supra at 485; see also Gurecka v. Carroll, 155
A.3d 1071, 1077 n.1 (Pa. Super. 2017) (en banc), appeal denied, 2017 WL
3128883 (Pa. filed July 24, 2017). We note that, here, based on our
disposition, we could not even reach the factors set forth in section 476 where
the Driveway did not exist “[w]hen land in one ownership [was] divided into
separately owned parts by a conveyance[.]” Restatement of Property § 474.

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      While we agree that there was a unity of ownership by the Teafs when

they subdivided their property and created the Bartkowski and Ramondo

Properties in 1967, we are constrained to disagree with the trial court’s finding

that there was a second severance when F. Ramondo, Inc. sold the Bartkowski

Property to the Biancos.

      It is well-settled that “[a] corporation is a separate, fictional legal person

distinct from its shareholders or employees.”          Missett v. Hub Intern.

Pennsylvania, LLC, 6 A.3d 530, 535 (Pa. Super. 2010) (citation omitted).

This is so, “irrespective of . . . the persons who own its stock.” Id. (citation

omitted).

      In this case, although Appellant Kenneth Ramondo is the vice-president

of F. Ramondo, Inc., he and the corporation are separate entities. See id.

The August 16, 2003 deed from the Mansmanns identifies only F. Ramondo,

Inc. as the grantee, and the deed to the Biancos identifies the corporation as

grantor, and is signed by Frank Ramondo. In other words, F. Ramondo, Inc.

owned and then sold the Bartkowski Property and Kenneth and Therese-

Cecilia Ramondo held title to the separate, previously-severed Ramondo

Property. See id. Accordingly, we are constrained to conclude that the trial

court erred when it found that one entity held both properties in unity and

then severed them to sell one of the parcels. Based on the title history of the

two properties, the last time they were held in unity was in 1967 when they

were part of the Teafs’ parcel, which did not contain the Driveway.


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J-A22043-17


       Therefore, the second prong of the test for an easement by implication

is not met where, “before the separation [took] place, the use which gives

rise to the easement, [was not] so long continued, and so obvious or manifest,

as to show that it was meant to be permanent[.]” Daddona, supra at 481

(citation omitted; emphasis added). Hence, we are constrained to conclude

that the trial court committed an error of law when it found that the Ramondos

established an easement by implication. See id. at 480.7

       We now turn to the Ramondos’ issues. In their first claim, they maintain

that “the trial court erred by failing to find an easement by necessity because

the Ramondo Driveway is the only access point from [their] home to the public

roadway, and moving the Driveway to the Ramondo Property is not feasible.”

(The Ramondos’ Brief, at 10 (unnecessary capitalization omitted); see id. at

11-14). We disagree.

            The three fundamental requirements for an easement by
       necessity to arise are the following:

            1) The titles to the alleged dominant and servient properties
       must have been held by one person[;]

            2) This unity of title must have been severed by a
       conveyance of one of the tracts[;]

             3) The easement must be necessary in order for the owner
       of the dominant tenement to use his land, with the necessity
____________________________________________


7 Because we conclude that the second prong of the test for an easement by
implication was not met, we need not reach the Bartkowskis’ second
argument, in which they maintain that the trial court erred in finding that the
Driveway met the necessity prong of the implied easement analysis. (See
The Bartkowskis’ Brief, at 22-26).

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J-A22043-17


       existing both at the time of the severance of title and at the
       time of the exercise of the easement.

            An easement by necessity is always of strict necessity. An
       easement by necessity never exists as a mere matter of
       convenience. . . .

Youst v. Keck’s Food Service, Inc., 94 A.3d 1057, 1075 (Pa. Super. 2014)

(citations omitted; emphases added).

       In this case, the trial court found:

       . . . [T]he [P]roperty owned by the Ramondos is not landlocked.
       Although the creation of a new driveway or access point for the
       Ramondos may be inconvenient and costly for them, the
       [P]roperty does not fit the requirement of strict necessity that
       must be present for a finding of an easement by necessity.
       Furthermore, although the Ramondos believe that approval from
       the Township to relocate the [D]riveway may be difficult, the
       evidence did not demonstrate impossibility and thus necessity.

(Trial Ct. Op., at 18).

       We agree with the analysis of the trial court.8 Mr. Malloy, the Ramondos’

civil engineer, opined that construction of a driveway on the Ramondo

Property would be costly and “all but impossible,” but not that it could not be

done. (Trial Ct. Op., at 9 ¶ 63). Mr. Howell, the Bartkowskis’ civil engineer,

concluded that the construction of the driveway is feasible, and that it would

cost approximately $75,000.00.



____________________________________________


8  We also observe that, as discussed in detail when addressing the
Bartkowskis’ first issue, at the time that the Teafs severed their property into
the Ramondo and Bartkowski Properties, the land was wooded and
undeveloped. Therefore, the necessity for the Driveway did not exist at the
time of severance. See Youst, supra at 1075.

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     Hence, because a new driveway is possible, even if difficult and

expensive, the trial court properly denied the Ramondos’ claim for an

easement by necessity.     See Youst, supra at 1075 (citations omitted);

Daddona, supra at 480. The Ramondos’ first issue lacks merit.

     In their second challenge, the Ramondos argue that the trial court erred

by failing to grant them title to the Driveway pursuant to the doctrine of

consentable line and acquiescence where they “claimed and occupied the land

on their side of the Driveway’s edge as their own . . . for over twenty-one

years.”   (The Ramondos’ Brief, at 14 (unnecessary capitalization omitted);

see id. at 15-17). We disagree.

             The establishment of a boundary line by acquiescence for
     the statutory period of twenty-one years has long been recognized
     in Pennsylvania. Two elements are prerequisites: 1) each party
     must have claimed and occupied the land on his side of the line
     as his own; and 2) such occupation must have continued for the
     statutory period of twenty-one years. As recognized by the
     Superior Court and the common pleas court, the doctrine
     functions as a rule of repose to quiet title and discourage vexatious
     litigation.

            Although the elements are simply stated, courts have had
     difficulty tracing the theoretical underpinnings of the acquiescence
     precept. In Pennsylvania, courts frequently have distinguished the
     doctrine from adverse possession, and in recent cases have
     categorized it, under the umbrella of “consentable boundaries,”
     with a separate theory premised on dispute and compromise. An
     examination of the decisional law demonstrates, however, that
     the doctrinal roots of acquiescence are grounded in adverse
     possession theory; indeed, occupancy with open manifestations of
     ownership throughout the statutory period will generally satisfy
     the traditional elements of adverse possession.            Decisions
     involving acquiescence are frequently distinguishable from
     adverse possession cases only in that possession in the former


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      are often based on a mistake as to the location of property
      lines.

Zeglin v. Gahagen, 812 A.2d 558, 561-62 (Pa. 2002) (citations and

footnotes omitted; emphasis added). “The question of where a boundary line

actually is located is a question for the trier of fact. Where, as here, the trial

court sat as the fact-finder, we will not reverse on appeal unless the court’s

findings are not supported by credible evidence.” Schimp v. Allaman, 659

A.2d 1032, 1034 (Pa. Super. 1995) (citations omitted).

      Here, the trial court found:

            The unique facts in this case make it distinguishable from
      the traditional “boundary” cases. There has been no evidence
      offered sufficient to prove that the Ramondo Driveway acted as
      the boundary for the properties in dispute here–the Ramondos
      and Bartkowskis. It is not the traditional case of two adjacent
      landowners mistakenly marking the boundary between their
      properties.    Here, the visually adjacent landowners to the
      Ramondos are the Coulstons, not the Bartkowskis. The creation
      of the Ramondo Driveway was not intended to mark a boundary
      or serve as one; it simply runs through a “pole.” The Ramondo
      Driveway is not alongside a boundary line, but within one.

            The evidence demonstrated that when Mr. Ramondo built
      the [D]riveway he was not marking a boundary line or building
      along what he thought was a boundary line. Rather, he simply
      sought a convenient location to place his [D]riveway, which would
      thereafter serve as his right of way. Although the Ramondo
      Driveway now encroaches within a “pole” that does not belong to
      him, it does not mark a boundary line with the Bartkowskis.
      Rather, it acts as an entrance within the Bartkowski Property.

            Finally, although Mr. Ramondo demonstrated that he cares
      for the driveway, he does not do so to the exclusion of others or
      with a claim to ownership of the land. He does so with the belief
      that [] he had the permission of those he needed to ask first.

(Trial Ct. Op., at 15-16).

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      We discern no abuse of discretion in the trial court’s analysis.

Accordingly, we conclude that the credible evidence supports its finding that

the Driveway did not serve as a boundary line, and it properly denied the

Ramondos’ action for title of the Driveway pursuant to acquiescence or the

doctrine of consentable lines. See Zeglin, supra at 562; Daddona, supra

at 480; Schimp, supra at 1034.

      Based on the foregoing analysis, we vacate the trial court’s judgment to

the extent it found that the Ramondos established an easement by implication,

and remand for consideration of the Bartkowskis’ claims for ejectment and

trespass. We affirm in all other respects.

      Judgment vacated in part and affirmed in part.        Case remanded.

Jurisdiction relinquished.

      Judge Lazarus joins the Memorandum.

      Judge Bowes files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/18




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