Savasta, B. v. Proctor, Z. ( 2016 )

J-S45038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARBARA J. SAVASTA, AN ADULT IN THE SUPERIOR COURT OF
INDIVIDUAL PENNSYLVANIA
Appellee
v.
ZANE R. PROCTOR,
Appellant No. 1978 WDA 2015
Appeal from the Order November 16, 2015
in the Court of Common Pleas of Westmoreland County
Civil Division at No.: 5516 of 2014
BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 17, 2016
Appellant, Zane R. Proctor, appeals from the trial court’s November
16, 2015 order issuing a permanent injunction in favor of Appellee, Barbara
J. Savasta.1 Specifically, he contends that the trial court erred in concluding
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*
Retired Senior Judge assigned to the Superior Court.
1
This is an interlocutory appeal pursuant to Pennsylvania Rule of Appellate
Procedure 311(a)(4) which permits immediate appeal for “[a]n order that
grants or denies, modifies or refuses to modify, continues or refuses to
continue, or dissolves or refuses to dissolve an injunction[.]” Pa.R.A.P.
311(a)(4); see Pennsylvania Orthopaedic Soc. v. Indep. Blue Cross,
885 A.2d 542, 547 (Pa. Super. 2005), appeal denied, 895 A.2d 1262 (Pa.
2006) (“An order which grants a request to enjoin certain conduct, . . . is an
interlocutory matter specifically authorized for appeal as of right by Rule
311(a)(4).”).
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that an implied easement exists, permitting Appellee to use a gravel drive to
access her property. We affirm.
We take the factual and procedural history in this matter from the trial
court’s order and opinion of November 16, 2015 and our independent review
of the certified record.
The parties to this case, in addition to being neighbors, are
brother and sister. [Appellee] currently resides at 108 Yuma
Lane, New Stanton, Pennsylvania, and has lived at said address
since she acquired ownership of the property from her parents,
Mr. and Mrs. Eugene Proctor, on October 17, 2006. Said
property consists of Parcel B and Parcel E in the Proctor-Lazer
Sub-division Plan. Eight years later, [Appellant] similarly
acquired land, consisting of Parcel A in the same Sub-division
Plan from his father, Eugene Proctor, on August 8, 2014. The
Proctor-Lazar Sub-division Plan ([]Sub-division Plan[]) was
approved and recorded in the Office of the Recorder of Deeds in
Westmoreland County on July 12, 2006. At issue in this case is
the use of a right-of-way utilized by [Appellee] to access her
9.93-acre lot, identified as Parcel E in the [Sub-division Plan] in
Hempfield Township, which contains her residence. [Appellee]
identified said right-of-way on the recorded Sub-division Plan as
a gravel driveway that extends from Hautintaught Road, through
[Appellant’s] Parcel A, and eventually leads to her property on
Parcel E. [Appellee] constructed a home on Parcel E in 2006,
where she currently resides with her father and son. She
testified that since 2007, she has continuously used the existing
gravel right-of-way, which is identified on the existing Sub-
division Plan as “Exist. Gravel Drive,” as her sole means to
access her property from Hautintaught Road.
[Appellee] testified that since her brother, [Appellant],
acquired ownership of Parcel A, he has obstructed her use of the
right-of-way by placing barriers on said right-of-way and putting
in “speed bumps.” Additionally, [Appellee] testified that she had
blacktop placed on her driveway and a portion of the right-of-
way, which portion [Appellant] allegedly damaged with his skid
loader. [Appellee] testified that when she acquired Parcel E,
upon which her residence is located, she also acquired Parcel B
in order to have frontage on Browntown Road so that her
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property could never be considered landlocked, and so that she
had the option to construct a driveway in case she needed to at
some point. She further testified that she has not yet
constructed a driveway on Parcel B because she began
construction[,] but could not afford to complete it.
[Appellant] testified that the right-of-way which [Appellee]
described, and which is present on the Sub-division [P]lan, is a
gas well right-of-way only. [Appellant] indicated that the reason
he put “speed bumps,” by constructing “dips,” on the right-of-
way was in order to make [Appellee’s] son slow down when he
was driving along the right-of-way. He further acknowledged
that when he acquired ownership to his property he knew of the
existence of the plan and that parcels C, E and F were
encumbered by the right-of-way.
Witness for [Appellant], Michael Follandor, President of Ark
Resources, LP, testified that in 2002 he signed an oil and gas
lease with Eugene Proctor, father to the parties to this action, in
order to acquire the mineral rights to his land. In order to get to
the well sites, Mr. Follandor testified that he had an agreement
that his company would use the existing driveway past Eugene
Proctor’s house, which turned into the gravel road, and followed
said road to the first well they drilled. He further testified that
when [Appellee] constructed her residence, she built an
extension off of the existing gravel road in order to reach her
dwelling.
Witness for [Appellant], Leonard Dellera, Chief of Planning
and Zoning for Hempfield Township, also testified at the
Evidentiary Hearing. Prior to his current position, Mr. Dellera
was the Zoning Officer and Building Inspector in Hempfield
Township, and he held said position when the Sub-division Plan
at issue was approved in 2006. He testified that it is a zoning
requirement that each lot have access to a public roadway, and,
as Browntown Road is a public roadway, and Hautintaught Road
is not, [Appellee] was required to purchase Lot B in order to own
Lot E, so that she would have frontage on a public road.
(Trial Court Opinion, 11/16/15, at 2-4) (record citations omitted).
On November 5, 2014, Appellee filed a complaint and request for a
preliminary and permanent injunction. On that same day, the court issued a
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preliminary injunction ordering Appellant to cease blocking Appellant’s
access to her home via the existing right-of-way. On November 10, 2014,
the court conducted an evidentiary hearing on Appellee’s request for a
permanent injunction. After the hearing, the court issued an order providing
that the preliminary injunction remain in effect and directing, among other
things, Appellant to remove blocks and fill in dips from the right-of-way and
cease obstructing Appellee’s access. (See Order, 11/13/14, at 1-2). The
court scheduled another evidentiary hearing for February 26, 2015.
After a continuation of the February 26, 2015 hearing, because of
settlement discussions between the parties, the court conducted a second
evidentiary hearing on July 29, 2015, during which Appellant and Appellee
testified, as well as Appellant’s witnesses, Mr. Fallador and Mr. Dellera. The
court issued its order and opinion on November 16, 2015, concluding that an
implied easement existed for Appellee to access her property via the gravel
drive, and granting a permanent injunction in favor of Appellee. This timely
appeal followed.2
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2
Appellant filed his notice of appeal on December 7, 2015. The trial court
did not order Appellant to file a concise statement of matters complained of
on appeal. It filed an order on December 22, 2015, referring to its order
and opinion entered November 16, 2015 to support its reasons. See
Pa.R.A.P. 1925.
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Appellant raises one issue on appeal: “Whether the trial court erred in
granting a permanent injunction to Appellee on the basis of an implied
easement?” (Appellant’s Brief, at 4) (most capitalization omitted).
Our standard of review of a trial court granting a permanent injunction
is well settled. “[W]hen reviewing the grant or denial of a final or
permanent injunction, an appellate court’s review is limited to determining
whether the trial court committed an error of law.” Buffalo Twp. v. Jones,
813 A.2d 659, 663-64 (Pa. 2002), cert. denied, 540 U.S. 821 (2003)
(footnote omitted).
Ultimately, the grant or denial of a permanent injunction will
turn on whether the [trial] court properly found that the party
seeking the injunction established a clear right to relief as a
matter of law. This inquiry involves a legal determination by the
[trial] court. Accordingly, we think it proper that appellate
review in these cases is whether the lower court committed an
error of law in granting or denying the permanent injunction.
Our standard of review for a question of law is de novo. Our
scope of review is plenary.
Id. at 664 n.4 (citations omitted).
An easement by implication can be found to exist where the
intent of the parties is demonstrated by the terms of the grant,
the property’s surroundings and any other res gestae of the
transaction. Two different tests have been utilized in this
Commonwealth to determine whether an easement has been
created by implication: the traditional test and the Restatement
of Property test. The Pennsylvania Supreme Court defined the
traditional test as follows:
* * *
[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
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case may be, and this irrespective of whether or not the
easement constituted a necessary right of way.
Our Supreme Court further stated:
Easements by implied reservation . . . are based on the
theory that continuous use of a permanent right-of-way
gives rise to the implication that the parties intended that
such use would continue, notwithstanding the absence of
necessity for the use.
Phillippi v. Knotter, 748 A.2d 757, 761-62 (Pa. Super. 2000), appeal
denied, 760 A.2d 855 (Pa. 2000) (citations and quotation marks omitted).
In determining whether implied easements exist, our Court has drawn an
inference that, upon severance of possession with a known prior use, the
parties would intend that use to continue. See Bucciarelli v. DeLisa, 691
A.2d 446, 448 (Pa. 1997).
Each party to a conveyance is bound not merely to what he
intended, but also to what he might reasonably have foreseen
the other party to the conveyance expected. Parties to a
conveyance may, therefore, be assumed to intend the
continuance of uses known to them which are in considerable
degree necessary to the continued usefulness of the land. Also
they will be assumed to know and to contemplate the
continuance of reasonably necessary uses which have so altered
the premises as to make them apparent upon reasonably
prudent investigation.
Id. (quoting Restatement of Property, § 476).
Here, after an evidentiary hearing on Appellee’s request for a
permanent injunction, the trial court found:
[I]t is apparent to this [c]ourt that the original grantors in the
present matter, Mr. and Mrs. Eugene Proctor, intended for the
[fifteen]-foot gravel road to be used as an easement for access
to [Appellee’s] Parcel E, as said road appears on their recorded
Sub-division [P]lan, and as said grantors, owners of the servient
property at that time, allowed [Appellee] to use the gravel road
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to access her land after said land was conveyed to her in 2006.
Accordingly, [Appellee’s] use of the gravel road has been open,
visible, permanent, and continuous since she acquired her
property in 2006. The pictures admitted as exhibits by [the trial
c]ourt show that there is a clearly defined visible road on
[Appellant’s] property leading to [Appellee’s] property. The Sub-
division Plan shows that, at this time, said road is the only way
to access [Appellee’s] land, and the testimony reflects that
[Appellee] has been accessing her property regularly by way of
said easement since her purchase in 2006. Additionally, Leonard
Dellera, the Chief of Planning and Zoning for Hempfield Township
at the time the Sub-division Plan was approved, testified that
even though [Appellee] was required to purchase Parcel B to
have frontage on Browntown Road, she was not required to put
a driveway on said Parcel, as it was required for purposes of
frontage, rather than for access to Parcel E.
(Trial Ct. Op., at 7-8) (record citation omitted).
Upon review of the certified record, we conclude that Appellee
established a clear right to an implied easement permitting her to continue
using the existing gravel drive to access her property as a matter of law.
See Buffalo Twp., supra at 664 n.4. Testimony at the permanent
injunction hearing established that, prior to conveying Parcel E to Appellee,
Mr. and Mrs. Proctor owned both Parcel E and Parcel F, and the existing
gravel drive shown on the Sub-division Plan was used to access Parcel E.
(See N.T. Hearing, 11/10/14, at 12, 37; N.T. Hearing, 7/29/15, at 125).
Furthermore, when Appellant purchased Parcel F, he was aware that it was
encumbered by an easement right-of-way, and Appellee continued to use
the existing gravel drive, in an open and visible manner, to access her land.
(See N.T. Hearing, 11/10/14, at 41-43; N.T. Hearing, 7/29/15, at 71-72).
In addition, Appellant conceded that, when he lived with Appellee at her
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home on Parcel E for a couple of weeks prior to purchasing his property, he
himself used the existing gravel drive to access Parcel E. (See N.T. Hearing,
11/10/14, at 42-43, 45).
Accordingly, we conclude that Appellee has established that, under the
traditional test, an easement by implication existed when Appellant
purchased his property, and that pursuant to the easement she is entitled to
continuance of her reasonably necessary use of the gravel drive to access
Parcel E. See Bucciarelli, supra at 448; Phillippi, supra at 761-62.
Thus, the court did not err in granting a permanent injunction in Appellee’s
favor on the basis of such implied easement. See Buffalo Twp., supra at
663-64. Appellant’s issue does not merit relief.
Order affirmed.
Judge Dubow joins the Memorandum.
Judge Olson files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2016
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