Bartkowski, T. v. Ramondo, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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