Affordable Outdoor, LLC v. Tri-Outdoor, Inc. ( 2019 )

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2019 PA Super 127AFFORDABLE OUTDOOR, LLC, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TRI-OUTDOOR, INC.,
Appellant No. 2388 EDA 2018
Appeal from the Judgment Entered July 23, 2018
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): CV-2017-C-3724
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
OPINION BY BENDER, P.J.E.: FILED APRIL 24, 2019
Appellant, Tri-Outdoor, Inc., appeals from the July 23, 2018 judgment
entered in favor of Appellee, Affordable Outdoor, LLC. We affirm.
This case arises out of a dispute over an advertising billboard between
two parties in the billboard business. On October 4, 2017, Affordable Outdoor
purchased property located at 4952 PA Route 378, Upper Saucon Township,
Pennsylvania (referred to herein as “the Property”), at a Judicial Tax Claim
Bureau sale for $30,150.38. At the time of the sale, Glenmore M. Matz owned
the Property.1 Two billboards are located on the Property, the larger of which
forms the basis of this litigation (referred to herein as “the Billboard”). Upon
purchasing the Property, Affordable Outdoor believed that it had also
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1Based on our review of the record, Glenmore M. Matz does not appear to be
affiliated with either Appellant or Affordable Outdoor.
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purchased the billboards thereon. However, Appellant had been advertising
on the Billboard and claimed to own it.
On November 30, 2017, Affordable Outdoor filed a complaint against
Appellant. Its complaint contained two counts: unjust enrichment (Count I)
and a demand for equitable relief (Count II). Specifically, in Count II,
Affordable Outdoor sought an order enjoining Appellant from entering upon
its real estate and prohibiting Appellant from altering, destroying, or removing
the Billboard located on the real estate.2 In Count II, Affordable Outdoor also
requested an order ruling that it is the lawful owner of the Billboard, and an
order requiring Appellant to provide an accounting of all income generated
from its use of the Property since October 5, 2017 (the day after Affordable
Outdoor’s purchase of the Property). In response, on January 3, 2018,
Appellant filed an answer, new matter, and counterclaim to Affordable
Outdoor’s complaint. In this filing, Appellant raised multiple counterclaims
against Affordable Outdoor, seeking declaratory relief, a prescriptive
easement, and a judgment against Affordable Outdoor for tortious
interference with contractual relations.
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2 In Affordable Outdoor’s complaint, it alleged that Appellant has “threatened
or implied that it intends to destroy or remove [the B]illboard. The [B]illboard
is allowed on [Affordable Outdoor’s] property because it was placed there prior
to the enactment of the U.S.T. Zoning Ordinance and PennDOT classification.”
Complaint, 11/30/2017, at ¶¶ 20-21 (emphasis in original). Thus, it explained
that “[s]hould [Appellant] remove or destroy [the B]illboard it is [Affordable
Outdoor’s] understanding that [it] would not be able to re-erect or repair the
[B]illboard as it is ‘grandfathered’ in under the prior PennDOT regulations and
[z]oning provisions.” Id. at ¶ 22.
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On February 13, 2018, this case proceeded to a non-jury trial. The trial
court found that Affordable Outdoor presented no evidence of unjust
enrichment at trial, as Appellant had not been receiving any rent from the
Billboard during the relevant time period. With regard to Affordable Outdoor’s
demand for equitable relief, the trial court reasoned that “[t]he tax sale was
a judicial sale so, when [Affordable Outdoor] purchased the Property at that
sale, it took an absolute title to the Property free and clear of any claims and
estates of any kind.” Trial Court Opinion (TCO), 3/9/2018, at 4. Additionally,
it explained that “the evidence indicates that the Billboard is cemented at least
three … feet into the ground. Chattels that are annexed to realty in such a
manner that they cannot be removed without materially damaging either the
realty or the chattels are always fixtures.” Id. (citation omitted). It
determined that the Billboard was a fixture and concluded that Affordable
Outdoor “is the owner of the Property and the Billboard annexed to said
Property, unless [Appellant] can prove a leasehold interest in the Billboard.”
Id.3
Ultimately, the trial court rejected Appellant’s argument that it owned
the Billboard as personal property through a lease agreement, assignment,
and bill of sale. It explained:
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3 According to the trial court, “[a] judicial sale of property does not extinguish
leasehold interests in the Property that exist at the time of the judicial sale.”
TCO at 4 (citation omitted). Thus, it discerned, “[i]f [Appellant] could prove
that a valid lease existed at the time of the [t]ax [s]ale, the leasehold interests
would not be extinguished by that sale.” Id.
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On March 1, 1952, Charles G. Stehly (“Stehly”) entered into an
alleged lease agreement with Mark Matz that purportedly leased
to Stehly “as much of the premises located at Route 12, 1 mile
north of Center Valley as may be necessary for the construction
of a ground advertising structures or displays … with the right to
maintain advertisements on said structures for a term of 3 years
from the first day of March 1952, at the yearly rent of $25.00…[.]”
However, no evidence was presented to prove the identity of the
owner of the Property at the time of this alleged lease agreement.
Therefore, [this court] cannot enforce the alleged lease
agreement. Further, the evidence indicates that [Appellant] failed
to abide by the terms of the alleged lease agreement by failing to
pay the required yearly rent under the alleged lease agreement
terms.
[Appellant] asserts that, on March 25, 1993, [Appellant] and
Stehly Signs entered into an agreement whereby [Appellant]
would be able to access, maintain, and use the Billboard (“Alleged
Agreement”). The Alleged Agreement is signed by Otho James,
President, Treasurer, and Secretary of Stehly Signs, and William
P. Bakos, President, Treasurer, and Secretary of [Appellant.] No
evidence was presented to show that Stehly Signs had any
interest in the Property at the time of the Alleged Agreement.
Therefore, we cannot conclude that Stehly Signs transferred any
property interest to [Appellant] through the Alleged Agreement.
Similarly, the [c]ourt cannot conclude that the 2001 Bill of Sale
that Stehly Signs executed, purportedly transferring certain of
Stehly Signs[’s] assets to [Appellant], conveyed the Billboard
because no evidence was presented to establish that Stehly Signs
had any interest in the Billboard at the time of the 2001 Bill of
Sale. Therefore, [this court] cannot conclude that Stehly Signs
transferred any property interest to [Appellant] through the Bill of
Sale.
Id. at 4-5 (internal citations omitted). Accordingly, the trial court found that
Appellant “did not possess a valid lease at the time of the [t]ax [s]ale and,
thus, had no leasehold property interest in the Billboard at the time of the
[t]ax [s]ale.” Id. at 6. After making that finding, it then went on to reject
Appellant’s claim that it had acquired a prescriptive easement over the
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Property because Mr. Bakos — the sole owner of Appellant — testified that he
thought Appellant had permission to access the Billboard. Id. at 7. Therefore,
the trial court concluded that Appellant “lacked the hostile intent necessary
for the use to be adverse.” Id.
Following the nonjury trial, on March 9, 2018, the trial court entered the
following order:
AND NOW, this 9th day of March, 2018, upon consideration of
[Affordable Outdoor’s] Complaint filed November 30, 2017,
[Appellant’s] Answer, New Matter And Counterclaim to [Affordable
Outdoor’s] Complaint filed January 3, 2018, after Non-Jury Trial,
and for the reasons set forth in the accompanying Opinion;
IT IS ORDERED as follows:
1. On Count I, the [c]ourt finds in favor of [Appellant] and
against … Affordable Outdoor … in no amount; and
2. On Count II, the [c]ourt finds in favor of … Affordable
Outdoor … and against [Appellant] in that … Affordable
Outdoor … is declared the lawful owner of the [Property] and
all billboards and other fixtures located thereon and
[Appellant] is enjoined from entering upon the Property and
from altering, destroying or removing any billboards or
other fixtures located on the Property.
Trial Court Order, 3/9/2018, at 1 (unnumbered).4
On March 22, 2018, Appellant filed a timely post-trial motion, which the
trial court denied on June 5, 2018. On July 23, 2018, Appellant praeciped to
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4 According to the docket, Pa.R.C.P. 236 notice of this order was not sent to
the parties until March 12, 2018. See Pa.R.A.P. 108(b) (“The date of entry of
an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall
be the day on which the clerk makes the notation in the docket that notice of
entry of the order has been given as required by [Pa.R.C.P.] 236(b).”);
Pa.R.C.P. 236(b) (requiring the prothonotary to note in the docket the giving
of the notice).
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enter judgment in favor of Affordable Outdoor and against Appellant in no
amount. Subsequently, on August 16, 2018, Appellant filed a notice of appeal
from the July 23, 2018 judgment. The trial court did not instruct Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
and it did not do so.
On September 20, 2018, the trial court issued its Rule 1925(a) opinion.
In its opinion, the trial court encouraged us to quash this appeal as untimely.
It explained, in relevant part:
In declaratory judgments, the Superior Court of Pennsylvania has
held that the “judgment” for purposes of appeal is the initial order
declaring rights as to which post-trial motions are filed, not a
subsequent entry of judgment on praecipe. Peters v. Nat.
Interstate Ins. Co., 108 A.3d 38 (Pa. Super. 2014). Further,
the Superior Court of Pennsylvania has held that “where [a] trial
court issues a declaratory judgment after trial, the ‘judgment’
issued in the original order is the only ‘judgment’ that need be
entered, even though post-trial motions must be filed in order to
preserve any issues for appellate review; therefore, in declaratory
judgment actions, the order disposing of post-trial motions is the
appealable event, not the entry of judgment.” Jones v.
Prudential Property & Casualty Ins. Co., 856 A.2d 838, 840
n.1 (Pa. Super. 2004).
Here, even though [Affordable Outdoor’s] [c]omplaint was not
titled as a complaint or petition for declaratory judgment and did
not, in its wherefore clause, state that it was seeking a declaratory
judgment, [Affordable Outdoor] in fact was seeking a declaratory
judgment. [Affordable Outdoor’s] [c]omplaint requested this
[c]ourt to issue a ruling that [Affordable Outdoor] is the lawful
owner of the [B]illboard and enjoining [Appellant] from entering
[Affordable Outdoor’s] real estate and from altering, destroying or
removing the [B]illboard located on [Affordable Outdoor’s] real
estate. This is a declaratory judgment and, thus, this [c]ourt’s
June 5, 2018 Order denying [Appellant’s] Motion for Post[-]Trial
Relief is the appealable event and not [Appellant’s] Praecipe to
Enter Judgment After Verdict filed July 23, 2018.
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Pa.R.A.P. 903(a) requires that a [n]otice of [a]ppeal mandated by
Pa.R.A.P. 902 must be filed within thirty … days after the entry of
the [o]rder from which the appeal is taken. [Appellant’s] Notice
of Appeal was filed August 16, 2018, seventy-two … days after the
entry of the [o]rder from which the appeal must be taken and,
therefore, [Appellant’s] Notice of Appeal should be quashed as
untimely.
Rule 1925(a) Opinion, 9/20/2018, at 2-3.
In light of the foregoing, Appellant raises the following issues for our
review:
1. Whether the appeal is timely as the underlying claims
brought before this Court ... included counts of unjust
enrichment, demand for equitable relief and counterclaims
including counterclaim declaratory judgment, prescriptive
easement, and tortious interference with contractual
relations and were judgment [sic].
2. Whether the trial court erred and abused its discretion in
entering an order of court against the weight of the evidence
and lacking sufficient evidence to support the court’s
decision where … [Appellant] proved an enforceable
prescriptive easement and proved ownership of the
Billboard?
Appellant’s Brief at 6.
We first address the timeliness of Appellant’s appeal. It is well-
established that “timeliness is jurisdictional, as an untimely appeal divests this
Court of jurisdiction to hear the merits of the case.” Sass v. AmTrust Bank,
74 A.3d 1054, 1063 (Pa. Super. 2013) (citation omitted).5 As set forth above,
because the trial court granted declaratory relief, it determined that Appellant
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5 Thus, even if the trial court had not raised the timeliness of Appellant’s
appeal, we could have assessed its timeliness sua sponte. See
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (“We
lack jurisdiction to consider untimely appeals, and we may raise such
jurisdictional issues sua sponte.”) (citation omitted).
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needed to appeal from the trial court’s June 5, 2018 order denying Appellant’s
post-trial motion — instead of Appellant’s July 23, 2018 praecipe to enter
judgment — and, therefore, Appellant’s August 16, 2018 notice of appeal was
untimely filed. Appellant, on the other hand, argues that its appeal was timely
filed because the parties’ “claims for relief included claims other than
declaratory judgment[,]” and “[t]he appeal was filed within thirty days of a
final judgment.” Appellant’s Brief at 10.
In order to assess the timeliness of Appellant’s appeal, we must look
closely at the complicated jurisprudence surrounding declaratory judgments.6
To begin, Section 7532 of the Declaratory Judgment Act provides, in pertinent
part, the following:
Courts of record, within their respective jurisdictions, shall have
power to declare rights, status, and other legal relations whether
or not further relief is or could be claimed. No action or proceeding
shall be open to objection on the ground that a declaratory
judgment or decree is prayed for. The declaration may be either
affirmative or negative in form and effect, and such declarations
shall have the force and effect of a final judgment or
decree.
42 Pa.C.S. § 7532 (emphasis added). Based on this language, our Supreme
Court has stated that “[t]here can be no disputing that Section 7532 defines
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6 This jurisprudence is especially convoluted in the pre-trial context. However,
given the procedural posture of the case at bar, we focus our attention on the
treatment of declaratory judgments in the post-trial context. For a thorough
and well-written summary of declaratory judgment jurisprudence for both
contexts, see Leonard R. Blazick, Declaratory Judgment Orders: Appealability,
88 Pa. B.A. Q. 90 (April 2017).
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any order in a declaratory judgment action that either affirmatively or
negatively declares ‘rights, status, and other legal relations’ as a final order.”
See Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813, 817 (Pa. 2000).7
Subsequently, in Motorists Mutual Ins. Co. v. Pinkerton, 830 A.2d
958 (Pa. 2003), our Supreme Court determined that this Court had “erred in
quashing as untimely an appeal from a declaratory judgment order entered
after trial based on the fact that the appellant filed post-trial motions instead
of immediately appealing the order.” Id. at 959. It concluded that parties
must file post-trial motions following post-trial declaratory judgment orders,
explaining:
[W]e do not believe that the Declaratory Judgment Act demands
a different result insofar as it states that orders declaring the
rights of parties “shall have the force and effect of a final judgment
or decree.” 42 Pa.C.S. § 7532. While we have held that such
language functions to render pre-trial orders declaring the rights
of the parties to be immediately appealable, … we cannot agree
with the Superior Court that this language should also be
interpreted to undermine the uniform procedures that this Court
has devised with respect to post-trial proceedings. The venerable
purpose of the post-trial motion procedure is to permit the trial
court to correct its own errors before appellate review is
commenced. Allowing parties to bypass such procedures in
declaratory judgment actions would deprive the trial court of this
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7 But see Pennsylvania Manufacturers’ Assoc. Ins. Co. v. Johnson
Matthey, Inc., 188 A.3d 396, 400 (Pa. 2018) (limiting Wickett’s breadth
and quashing an appeal taken pursuant to Pa.R.A.P. 311(a)(8) where “the
court’s order does not resolve the parties’ competing claims for declaratory
relief; rather, it merely narrows the dispute”); see also Pa.R.A.P. 311(a)(8)
(“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.”).
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critical gatekeeping function, while doing little to expedite
appellate review. In addition, excepting declaratory judgment
orders from the plain language of [Pa.R.C.P.] 227.1[8] would
unnecessarily complicate application of that rule and result in
further confusion among litigants and the lower courts.
Accordingly, we hold that post-trial declaratory judgment orders,
just like other post-trial orders, are subject to the post-trial motion
procedures in Rule 227.1.
Id. at 964 (internal citation and footnote omitted).
Later, in Jones, this Court reviewed a case where the appellants filed a
declaratory judgment action against an insurance company after the company
had rejected the appellants’ claim for underinsured motorist benefits following
a car accident. Jones, 856 A.2d at 840. The appellants requested that the
trial court: declare that underinsured motorist coverage existed for them
under their insurance policy; reform the insurance policy to include such
coverage; and order that the parties be compelled to arbitrate their dispute in
accordance with the policy as reformed. See id. at 841. The case proceeded
to a non-jury trial, and the trial court found in favor of the insurance company
on December 12, 2002. Id. at 840. The appellants filed timely post-trial
motions, which the trial court denied over nine months later. Id. Twenty
days after the trial court denied their post-trial motions, the appellants filed a
timely notice of appeal. Id. at 840-41. This Court then directed the appellants
to file a praecipe to enter judgment, and they did so. Id. at 841. In our
subsequent opinion, we noted that our direction to the appellants to file a
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8 Rule 227.1 governs post-trial relief.
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praecipe for the entry of judgment was “erroneous[,]” see id. at 841 n.2, and
stated:
[The a]ppellants’ appeal is timely. In equity cases, a party has
ten days from a trial court’s adjudication to file post-trial motions.
Generally, if the trial court fails to rule on the post-trial motions
within 120 days, a party may elect to praecipe for the entry of
judgment. However, the present case is a declaratory judgment
action, and the trial court’s pronouncement on December 12,
2002,[ when it found in favor of the insurance company following
the non-jury trial,] was a “judgment.” Therefore, it was
unnecessary to praecipe for the entry of judgment in this case.
See 42 Pa.C.S.[] § 7532. Nevertheless, in order to render the
trial court’s December 12, 2002 judgment final for appeal
purposes, [the a]ppellants had an obligation to file post-trial
motions. See … Pinkerton, … 830 A.2d … 963 …. The trial court
failed to decide [the a]ppellants’ post-trial motions within 120
days, but the trial court’s delay did not cause [the a]ppellants’
appeal to be filed out of time. We reach this conclusion because,
unlike the criminal rules which require post-sentence motions to
be filed within 120 days or be deemed denied by operation of law,
the civil rules do not provide a mechanism for post-trial motions
to be deemed denied by operation of law after the passage of 120
days. Rather, the civil rules permit, but do not require, a party to
praecipe for entry of judgment to move the case forward where
the trial court does not decide post-trial motions within 120 days.
In this case, a praecipe would not be appropriate because, as we
have found, “judgment” was already entered. Thus, it is of no
moment that the trial court decided [the a]ppellants’ post-trial
motions more than 120 days after the date the post-trial motions
were filed.
Id. at 840 n.1 (some internal citations omitted).9
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9 Our sister court has relied on the reasoning set forth in Jones. See
Riverside School Dist. v. Career Tech. Center, 104 A.3d 73, 74 n.1 (Pa.
Cmwlth. 2014) (observing that the trial court’s order granting declaratory
relief was a judgment and therefore the trial court’s subsequent entry of
judgment was unnecessary) (citing Jones, 856 A.2d at 840 n.1).
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Thereafter, in Crystal Lake Camps v. Alford, 923 A.2d 482 (Pa. Super.
2007), this Court challenged the propriety and reach of Jones. In Crystal
Lake, a camp commenced an action against the defendant requesting, inter
alia, a declaratory judgment decreeing that it was the rightful owner of a
property, and an order striking a lis pendens filed by the defendant against
the property. Id. at 484-85. The defendant counterclaimed and sought,
among other things, a declaratory judgment stating that his rights to the
disputed property were superior to the camp’s rights. Id. at 485. Following
a non-jury trial, the trial court rendered a verdict on November 18, 2005, in
favor of the camp and directed that “[u]pon entry of the judgment … the lis
pendens indexed against the property shall be stricken.” Id. (citation
omitted). Within ten days of the verdict, the defendant filed a motion for
reconsideration, which the trial court denied. Id. Days later, the camp filed
a praecipe to enter judgment, which the prothonotary entered on December
9, 2005. Id. Over a month later, the defendant filed a motion to strike the
December 9, 2005 judgment. The trial court granted the motion to strike,
explaining that it “did not strike [the] November 18, 2005 [o]pinion and
[v]erdict but instead struck the [p]rothonotary’s December 9, 200[5] entry of
said verdict because, by virtue of the Declaratory Judgment Act, the verdict
did not need to be entered in order to be considered final.” Id. at 486.
On appeal, the Crystal Lake panel concluded that the camp “properly
praeciped for the entry of the judgment and [the trial court’s] decision to strike
the judgment is in direct contravention to the plain language of Pa.R.C.P.
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227.4.[10]” Id. It distinguished this case from the situation in Jones, noting
that the defendant here did not file a post-trial motion that was later denied
by the trial court, and observing that the trial court expressly conditioned its
verdict to take effect upon entry of the judgment. Id. at 487-88. Further, it
opined:
Our decision today follows and effectuates our Supreme Court’s
holding in Pinkerton. In an effort to create uniform procedures
for post-trial practice in both actions at law and equity, the Court
in Pinkerton held that “post-trial declaratory judgment orders,
just like other post-trial orders, are subject to the post-trial motion
procedures in Rule 227.1.” 830 A.2d at 964. In reaching this
conclusion, the Court emphasized that the Declaratory Judgment
Act should not “be interpreted to undermine the uniform
procedures that [the Supreme Court of Pennsylvania] has devised
with respect to post-trial proceedings.” Id. Pinkerton ultimately
evinces the Supreme Court’s intent that post-trial practice be
dictated primarily by the manner in which a case is disposed, not
merely by the form of the action. Hence, declaratory judgment
actions, like all others, are subject to post-trial practice when
resolved after trial, while actions resolved by peremptory
remedies are not. The plain language of [Rule] 227.4 makes it
clear that the Rule’s post-trial procedure is inexorably intertwined
with post-trial motion practice under [Rule] 227.1. Therefore, by
subjecting declaratory judgment actions to the post-trial practice
of [Rule] 227.4, our decision today is in accord with Pinkerton’s
primary purpose of achieving procedural uniformity between
actions at law and equity. To the extent that this Opinion can be
read to be in conflict with Jones, we conclude that Pinkerton,
considered together with Rules 227.4 and 227.1, is controlling
authority on the matter and compels the result that we reach
today.
Id. at 488-89 (some internal citations omitted).
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10 Pa.R.C.P. 227.4 addresses the entry of judgment upon praecipe of a party.
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Despite the Crystal Lake panel’s departure from Jones, subsequently
in Peters, this Court reasserted the principle set forth in Jones — that is, in
a declaratory judgment action, an appeal after the disposition of post-trial
motions is properly taken from the order of declaratory judgment and,
therefore, a party does not need to praecipe for entry of judgment on the
docket. Peters, 108 A.3d at 41 n.2.11
After reviewing the case law, it becomes evident that a waiver trap has
formed here. Typically, “[a]n appeal from an order denying post-trial motions
is interlocutory. Thus, it follows that an appeal to this Court can only lie from
judgments entered subsequent to the trial court’s disposition of any post-
verdict motions, not from the order denying post-trial motions.” Johnston
the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super.
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11 To briefly elaborate, in Peters, a truck driver filed a complaint against the
appellants seeking a declaratory judgment of insurance coverage. Peters,
108 A.3d at 41. After a non-jury trial, the trial court found in favor of the
truck driver. Id. The appellants then filed a motion for post-trial relief, which
the trial court denied. Id. at 42. They then timely appealed from the trial
court’s order denying its post-trial motion. Id. We discerned:
[The a]ppellants purport to appeal from the order of December
23, 2013, denying their post-trial motion. A party must file post-
trial motions to preserve the claims the party wishes to raise on
appeal. See … Pinkerton, … 830 A.2d … 964 …. However, an
appeal after disposition of the required post-trial motion is
properly taken from the order of declaratory judgment, which is
the final order. See 42 Pa.C.S. § 7532 (“[S]uch declarations shall
have the force and effect of a final judgment or decree.”).
Peters, 108 A.3d at 41 n.2.
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1995) (citations omitted). However, Jones and Peters represent that it is
unnecessary to praecipe for the entry of judgment following the disposition of
post-trial motions in declaratory judgment actions and, therefore, the denial
of the post-trial motion is the event that triggers the 30-day appeal period
under Pa.R.A.P. 903.12 While Appellant acknowledges Jones and Peters, it
argues that the trial court’s decision in the case at bar was “not limited solely
to an issuance of a declaratory judgment[,]” but also rejected Affordable
Outdoor’s unjust enrichment claim, enjoined Appellant from entering the
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12 Others have also deemed this inconsistency a waiver trap:
In all cases in which post-trial relief must be sought pursuant to
[Rule] 227.1, with the exception of declaratory judgments, the
appealable event is not the order disposing of post-trial relief, but
is the entry of the judgment on the verdict. In declaratory
judgments, the Superior Court has held that the “judgment” for
purposes of appeal is the initial order declaring rights as to which
post-trial motions are filed, such that the appeal is triggered by
the order denying post-trial motions, not a subsequent entry of
judgment on praecipe. The Commonwealth Court has adopted the
Superior Court’s holding in the context of a non-jury trial
culminating in the grant of declaratory judgment.
Thus, in cases other than declaratory judgment action, where
post-trial motions are required, the parties usually control the
occurrence of the appealable event, not the court. There is no
requirement that the praecipe be filed at any particular time.
DARLINGTON, MCKEON, SCHUCKERS, BROWN & CAWLEY, 20 WEST’S PA.
PRAC., APPELLATE PRACTICE § 301:8 (2018) (footnotes omitted;
unnumbered). Consequently, this discrepancy “creates a trap for counsel who
reasonably assume that the appeal-triggering event where post-trial motions
are required is the counsel-controlled entry of judgment on the original
verdict.” Id. at n.6.
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premises and altering, destroying, or removing the Billboard, and effectively
denied Appellant’s counterclaims for a prescriptive easement and tortious
interference with contractual relations. See Appellant’s Reply Brief at 2; see
also Appellant’s Brief at 11-12. Thus, Appellant suggests that it needed to
praecipe for entry of judgment in light of the other claims, and maintains its
appeal was timely. See Appellant’s Brief at 10.13
While it appears that Jones and Peters may bind us, in 2015, the
Pennsylvania Supreme Court amended Pa.R.A.P. 341, which defines final
orders. Presently, Rule 341 states, in relevant part, the following:
(a) General Rule.--[A]n appeal may be taken as of right from
any final order of a government unit or trial court.
(b) Definition of Final Order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c) of this
rule.[14]
Pa.R.A.P. 341(a), (b). Prior to the amendment in 2015, Rule 341(b)(2) had
provided that a final order includes any order that “is expressly defined as a
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13 In response, Affordable Outdoor persuasively ascertains that Jones was not
limited to a declaratory judgment action. Affordable Outdoor’s Brief at 15. In
that case, Affordable Outdoor points out that the appellants also sought “to
reform the underlying insurance policy due to mistake. The trial court ruled
that the [appellants] were estopped from asserting mistake. This issue was
included as an additional issue on appeal.” Id.
14Paragraph (c) sets forth, among other things, that a “trial court … may enter
a final order as to one or more but fewer than all of the claims and parties
only upon an express determination that an immediate appeal would facilitate
resolution of the entire case.” Pa.R.A.P. 341(c).
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final order by statute[.]” Pa.R.A.P. 341(b)(2) (rescinded in 2015). As Section
7532 of the Declaratory Judgment Act states that “such declarations shall have
the force and effect of a final judgment or decree[,]” see 42 Pa.C.S. § 7532,
they were appealable under Rule 341(b)(2), notwithstanding that other claims
and parties remained at issue. In rescinding Rule 341(b)(2), the note to the
rule explains:
Rescission of subparagraph (b)(2)--The 2015 rescission of
subparagraph (b)(2) eliminated a potential waiver trap created by
legislative use of the adjective “final” to describe orders that were
procedurally interlocutory but nonetheless designated as
appealable as of right. Failure to appeal immediately an
interlocutory order deemed final by statute waived the right to
challenge the order on appeal from the final judgment. Rescinding
subparagraph (b)(2) eliminated this potential waiver of the right
to appeal. If an order designated as appealable by a statute
disposes of all claims and of all parties, it is appealable as
a final order pursuant to Pa.R.A.P. 341. If the order does
not meet that standard, then it is interlocutory regardless
of the statutory description. Pa.R.A.P. 311(a)(8) provides for
appeal as of right from an order that is made final or appealable
by statute or general rule, even though the order does not dispose
of all claims or of all parties and, thus, is interlocutory; Pa.R.A.P.
311(g) addresses waiver if no appeal is taken immediately from
such interlocutory order.
One of the further effects of the rescission of subparagraph (b)(2)
is to change the basis for appealability of orders that do not end
the case but grant or deny a declaratory judgment. See …
Wickett, 763 A.2d [at] 818…; Pa. Bankers Ass’n v. Pa. Dep’t.
of Banking, 948 A.2d 790, 798 (Pa. 2008). The effect of the
rescission is to eliminate waiver for failure to take an immediate
appeal from such an order. A party aggrieved by an interlocutory
order granting or denying a declaratory judgment, where the
order satisfies the criteria for “finality” under Pennsylvania
Bankers Association, may elect to proceed under [Rule]
311(a)(8) or wait until the end of the case and proceed under
subparagraph (b)(1) of this rule.
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Pa.R.A.P. 341, Note (emphasis added).
With that background, we decline to quash this appeal as untimely.
Initially, we point out that Jones and Peters pre-date the amendment to Rule
341, which eliminated characterizing an order as final because a statute
expressly defines it as such.15 Rule 341, however, continues to define a final
order as one that “disposes of all claims and of all parties.” Pa.R.A.P.
341(b)(1). Here, because there were non-declaratory relief claims that would
not be rendered final until a praecipe for entry of judgment was entered, see
Johnston, supra, Appellant’s praecipe for entry of judgment was not
erroneous or unnecessary, and therefore its subsequent appeal therefrom was
timely. Further, this disposition conforms to the efforts made in Pinkerton
and Crystal Lake to create a uniform procedure for civil actions, lessens the
reach of any waiver trap, and complies with the definition of a final order under
Rule 341(b)(1).
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15 Our Supreme Court has stated that Rule 311(a)(8) has “replaced” Rule
341(b)(2). Pennsylvania Manufacturers’ Assoc. Ins. Co., 188 A.3d at 399
n.4; see also Pa.R.A.P. 311(a)(8) (permitting an appeal to be taken as of
right 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”).
Thus, our Supreme Court has said that — when all claims and all parties are
not disposed of — an appeal may be taken from an order declaring the rights
of the parties if the order in question “resolves the entirety of the parties’
eligibility for declaratory relief….” Id. at 400. Thus, in the case sub judice,
Appellant had the option of either immediately appealing the order granting
declaratory relief, as it entirely resolved the parties’ claims for declaratory
relief, or waiting until all claims and all parties were disposed of, which
required it to praecipe for the entry of judgment in light of the other, non-
declaratory relief claims addressed in the trial court’s order.
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In sum, we hold that a party is not required to appeal within 30 days
from an order denying post-trial motions where that order disposes of both
declaratory judgment, and non-declaratory judgment, claims. We therefore
decline to quash Appellant’s appeal, and proceed to the merits.
In its second issue, Appellant raises “[w]hether the trial court erred and
abused its discretion in entering an order of court against the weight of the
evidence and lacking sufficient evidence to support the court’s decision where
[Appellant] proved an enforceable prescriptive easement and proved
ownership of the Billboard[.]” Appellant’s Brief at 6. Although framed as one
issue, this statement lumps together several distinct questions. Nevertheless,
upon our review of its brief, the crux of Appellant’s argument seems to be that
the trial court wrongly determined that it did not establish a prescriptive
easement onto the Property to access the Billboard.
We apply the following standard of review:
When reviewing the results of a non-jury trial, we give great
deference to the factual findings of the trial court. We must
determine whether the trial court’s verdict is supported by
competent evidence in the record and is free from legal error. For
discretionary questions, we review for an abuse of that discretion.
For pure questions of law, our review is de novo.
Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008)
(internal citations omitted).
With respect to prescriptive easements, this Court has explained:
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. Moreover, the party asserting the
easement must demonstrate clear and positive proof. Permissive
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use defeats a claim of a prescriptive easement. The landowner
has the burden of proving consent, but only after the alleged
easement holder proves the use was adverse, open, notorious,
and continuous for 21 uninterrupted years.
Village of Four Seasons Ass’n, Inc. v. Elk Mountain Ski Resort, Inc.,
103 A.3d 814, 822 (Pa. Super. 2014) (internal citations and quotation marks
omitted).
In denying Appellant’s prescriptive easement claim, the trial court
explained:
The use of the Property appears to be open, notorious, continuous
and uninterrupted. The issue lies with whether the use of the
Property was adverse. Before the title of a landowner may be
encumbered by an easement, the [c]ourt must be presented with
clear proof that the prescriptive rights have been established by a
user with hostile intent and not through indulgence, permission or
mutual accommodation. Stevenson v. Williams, … 145 A.2d
734, 736-37 ([Pa. Super.] 1958). Here, [Appellant] thought it
had permission to access the Billboard through an alleged lease
and assignment that it thought was valid. The fact that
[Appellant] thought there was a valid lease for access to the
Billboard is inconsistent with [Appellant’s] having hostile intent.
Although the [c]ourt has held that [Appellant] did not have an
enforceable lease and assignment, [Appellant] believed that it did.
Thus, [Appellant] lacked the hostile intent necessary for the use
to be adverse. Therefore, [the trial court] hold[s] that [Appellant]
did not acquire a prescriptive easement for access to the Property
to use and maintain the Billboard.
TCO at 6-7.
Appellant attacks both the trial court’s application of the law and its
finding that Appellant did not prove all of the elements of a prescriptive
easement. Regarding the law, Appellant claims that the trial court is “looking
solely to [Appellant’s] state of mind which is not required for a prescriptive
easement” and that “[t]he hostility required by the [trial] [c]ourt is not a
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defined element of a prescriptive easement in the cited precedent.”
Appellant’s Brief at 18. It argues that Appellant’s sole owner “testified about
an initial belief of a [l]ease and a failed attempt to make a payment towards
the [l]ease.” Id. at 19 (footnote omitted). However, it says “[n]o further
attempts for payment were made. Payment was never accepted by the
landowner. [Appellant] did not seek permission for its continued entry on the
land. [Appellant] continued to operate its business on the property without
any financial benefit to the landowner.” Id.16 Given that evidence, it says
that “[th]e record before the [t]rial [c]ourt provided [a] sufficient basis for
finding … a prescriptive easement….” Id. at 21.
No relief is due. Appellant had the burden of proving a prescriptive
easement by clear and positive proof. Here, Appellant’s sole owner — Mr.
Bakos — provided the following testimony on cross-examination:
[Affordable Outdoor’s Attorney:] You have a lease on this property
and this is it, correct?
[Mr. Bakos:] That would be the existing lease, yes.
[Affordable Outdoor’s Attorney:] And that’s still in effect, you
said?
____________________________________________
16 Appellant also asserts that “[t]he record … reveals that a prior lease may
have existed between [Appellant’s] predecessor and landowner.” Appellant’s
Brief at 15. It argues that the predecessor’s lease “does not negate
[Appellant’s] notorious use and intent.” Id. at 17 (relying on Waltimyer v.
Smith, 556 A.2d 912 (Pa. Super. 1989)). However, the trial court did not
base its decision on the fact that a lease may have existed in the past between
Appellant’s predecessor and the landowner; instead, it focused its analysis on
the testimony of Appellant’s sole owner that he believed he currently had a
lease to enter the property. See TCO at 6-7, supra. We discuss this
testimony further below.
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[Mr. Bakos:] I reckon, yeah.
[Affordable Outdoor’s Attorney:] Okay. You reckon. And you’ve
made no payments since 1994, I guess. You said you did it for a
year and then stopped paying?
[Mr. Bakos:] Correct.
[Affordable Outdoor’s Attorney:] So no payments have been made
on the lease since 1994?
[Mr. Bakos:] Correct.
[Affordable Outdoor’s Attorney:] Is that why you believed your
men could keep coming onto the property, because you had a
lease; correct?
[Mr. Bakos:] Correct.
[Affordable Outdoor’s Attorney:] Okay.
[Mr. Bakos:] It was my billboard, so we’re servicing it.
[Affordable Outdoor’s Attorney:] Your billboard on a property that
you’re leasing and your men come on pursuant to the lease;
correct?
[Mr. Bakos:] Correct.
N.T. Trial, 2/13/2018, at 91-92.
Although the trial court determined that the lease was not valid or
enforceable, Mr. Bakos testified that Appellant has a lease, or at least some
kind of agreement, to enter the Property. In other words, pursuant to this
agreement, Mr. Bakos advanced that his use of the land was, and continues
to be, permissive. Moreover, Mr. Bakos said that “[i]f I stopped paying a lease
and someone asked me to leave, yes, that would be fine.” Id. at 88.
However, he explained that “[n]o one ever asked me about money. I didn’t
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ask about a lease. I had a lease.” Id.17 Mr. Bakos’s testimony belies
Appellant’s contention that its use of the land was adverse because its owner
asserted that it has some sort of permission to be there.18 Further, Mr.
Bakos’s attempt to make payments goes against a finding of adversity.
Therefore, Appellant did not clearly and positively prove hostile intent and a
lack of indulgence, permission or mutual accommodation.
Moreover, while the trial court states that Mr. Bakos’s belief goes to the
adverse element, it also undercuts the element of continuity. Affordable
Outdoor cites to Keefer v. Jones, 359 A.2d 735 (Pa. 1976), which states that
“the evidence need not show a constant use in order to establish continuity;
rather, continuity is established if the evidence shows a settled course of
conduct indicating an attitude of mind on the part of the user or users that
the use is the exercise of a property right.” Id. at 737 (citations omitted);
see also Affordable Outdoor’s Brief at 17. In addition, Affordable Outdoor
references Walley v. Iraca, 520 A.2d 886 (Pa. Super. 1987), where this
Court determined that continuity was not established where the landowners
presented evidence that the appellant asserting the prescriptive easement had
asked for permission to use their property. See id. at 889-90. We opined
that, “[c]learly, any request for permission to use the road … would be
____________________________________________
17 Mr. Bakos explained that he sent a check during his first year on the
Property to Mark Matz, the lessor in the original lease agreement, but it was
never cashed. See id. at 89-90.
18 Appellant does not argue that any indulgence, permission or mutual
accommodation must be legally binding and enforceable.
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inconsistent with [the appellant’s] assertions on the stand that he had acted
under claim of right during the prescriptive period.” Id. at 890; see also
Stevenson, 145 A.2d at 736 (determining no prescriptive easement existed
where neighbors, inter alia, had agreed to divide the costs of blacktopping a
common driveway). Further, in Kaufer v. Beccaris, 584 A.2d 357 (Pa.
Super. 1991), in concluding that the appellant had established a prescriptive
easement, we noted that there was no evidence that the appellant had ever
requested permission from the landowner to use the rear of his land. Id. at
359; see also Waltimyer, 556 A.2d at 913-15 (affirming a prescriptive
easement existed, where various users had used a common driveway without
“requesting or receiving” permission to do so). In the case at bar, Mr. Bakos
testified that he had sent checks to the landowner — which we view as akin
to requesting permission — and said he would leave if someone asked him to
because he stopped making lease payments. N.T. Trial at 87-90. This
testimony does not establish “a settled course of conduct indicating an attitude
of mind on the part of the user or users that the use is the exercise of a
property right.” See Keefer, supra. Accordingly, we do not determine that
the trial court erred or abused its discretion in ascertaining that Appellant did
not establish a prescriptive easement for access to the Property to use and
maintain the Billboard.19
____________________________________________
19To the degree that Appellant makes a weight of the evidence argument
pertaining to the prescriptive easement, we deem it waived for lack of
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Finally, to the extent Appellant raises arguments related to its ownership
of the Billboard and the sufficiency of corporate documents produced at trial,
we deem such arguments waived for lack of development. See In re S.T.S.,
Jr., 76 A.3d at 42. Appellant devotes roughly one page to these arguments,
provides no analysis for them, and cites no legal authority in support. See
Appellant’s Brief at 21-22. Therefore, in light of the foregoing, we affirm the
trial court’s judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
____________________________________________
development. See In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013)
(“[M]ere issue spotting without analysis or legal citation to support an
assertion precludes our appellate review of a matter.”) (citations omitted).
Nevertheless, even if not waived, we would not grant Appellant relief on this
basis, given that it did not present sufficient evidence to establish the
prescriptive easement in the first place. See Haan v. Wells, 103 A.3d 60,
70 (Pa. Super. 2014) (noting that the trial court may award relief for weight
of the evidence claims “only when the … verdict is so contrary to the evidence
as to shock one’s sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion”) (citations
omitted).
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