Olszewski, J. v. Parry, I. ( 2022 )

J-A18008-22
2022 PA Super 165JOHN M. OLSZEWSKI, AN ADULT IN THE SUPERIOR COURT
INDIVIDUAL OF PENNSYLVANIA
Appellee
v.
IDA M. PARRY, KATHYRYN ALMA
DUMBAULD, DONNA MAY STEELE,
STEPHEN W. CARHART, VIRGINIA L.
CARHART, JASON CORFIELD, CARRIE
MCKENZIE AND TIMOFEY PINKEVICH
APPEAL OF IDA M. PARRY, KATHYRYN
ALMA DUMBAULD, DONNA MAY STEELE,
STEPHEN W. CARHART, VIRGINIA L.
CARHART
No. 1348 WDA 2021
Appeal from the Order Entered November 3, 2021
In the Court of Common Pleas of Beaver County
Civil Division at No: 10935-2018
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
OPINION BY STABILE, J.: FILED: SEPTEMBER 28, 2022
Appellants, Ida M. Parry, Kathyryn Alma Dumbauld, Donna May Steele,
Stephen W. Carhart and Virginia L. Carhart, appeal from an order (1) awarding
Appellee John M. Olszewski an easement by necessity over a road known as
Steele Drive, which runs over lands owned by Appellants, and (2) directing
Appellant Parry to remove a fence from her land blocking access to Steele
Drive. We affirm.
J-A18008-22
The parent tract of land in this case, which encompasses all relevant
parcels, was 170.18 acres of land. In 1882, the parent tract was divided to
create a 50-acre parcel, which is now known as Lot 177. The 1882 deed
mentioned a 20-foot easement from Lot 177, but this language was not
present in subsequent deeds.
The remaining 120 acres changed ownership multiple times throughout
the years. In 1897, Robert McKnight purchased the 120-acre tract. In 1908,
McKnight and his wife conveyed 61.5 of the 120 acres to William Ault. Through
a series of conveyances between 1935 and 1939, Ault and his wife, Susan,
subdivided the 61.5-acre tract into four lots of land: an 11-acre tract (known
today as Lot 173), a 10-acre tract (known today as Lot 174), a 10-acre tract
(known today as Lot 175) and a 30.5-acre tract. In 1973, the 30.5-acre tract
was subdivided further by successor in title Eleanor Maxwell, who divided the
tract into two equal lots, Lots 176 and 176.1. Maxwell’s deed for Lot 176.1
reserved an easement to allow Lot 176’s owners to cross Lot 176.1 to access
Steele Drive, the sole means of access to the only public highway, McKenzie
Road.
Today, Appellee owns Lots 176 and 176.1. Appellants own lots 173,
174 and 175 to the north of Appellee’s lots. Steele Drive, a 20-foot wide
private roadway, runs along the eastern edge of Lots 173, 174, and 175, and
connects with McKenzie Road.
Appellee initiated this action on July 30, 2018, after Appellant Parry
erected a gate that prevented Appellee from using Steele Drive to access Lots
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176 and 176.1. In his third amended complaint, Appellee demanded the right
to use Steele Drive to access Lots 176 and 176.1. Following discovery, the
parties filed cross-motions for summary judgment. Appellee’s motion
requested, inter alia, an easement by necessity over Steele Drive.
On May 26, 2021, the trial court issued a memorandum opinion and
order granting partial summary judgment to Appellee. The court held that
Appellee established an easement by necessity over Steele Drive, because
Lots 176 and 176.1 both became landlocked when Appellee’s predecessor in
title, the Aults, subdivided a larger tract of land into what is today known as
Lots 173—176.1.
The court observed that it was only possible for Appellee to access
McKenzie Road, a public road, by crossing property owned by a neighbor,
Theresa Hradecky. Memorandum Opinion, 5/26/21, at 6. Hradecky gave
uncontradicted testimony, however, that use of her land was both permissive
and temporary. Hradecky Dep., 12/23/20, at 21-22, 32-33. Consistent with
this testimony, the court determined that Appellee’s current path of ingress
and egress to his property “was by cross[ing] the neighboring Hradecky
property. However, this right to cross is only permissive and was made with
the intent of it being temporary.” Memorandum Opinion at 6 n.1.
The court directed Appellant Parry to remove the gate so that Appellee
could use his easement over Steele Drive. The court denied summary
judgment to Appellee with respect to his request that the parties share equally
in all costs associated with maintaining Steele Drive, because the court found
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there were genuine issues of material fact regarding the parties’ respective
use of Steele Drive. The court denied the motions for summary judgment by
Appellants Corfield and McKenzie.
On June 7, 2021, Appellants filed a motion for stay and to add
indispensable parties, which the trial court treated as a motion for
reconsideration of its May 26, 2021 order. On June 23, 2021, the court
reaffirmed its decision that the elements for an easement by necessity were
present.
In November 2021, the court conducted a nonjury trial on the issues of
location and maintenance of the easement over Steele Drive. On November
3, 2021, the court held, inter alia, that Appellee had:
[s]ustained his burden of proof of a 20-foot easement, presently
known as Steele Drive, to commence at the northeast corner of
his property, known as Lot 176.1 in Hanover Township, Beaver
County, Pennsylvania, and to continue across the northeast
border of each of Lot 175 [], Lot 174 [], Lot 173 [], and Lot 163.4
[] until its intersection with McKenzie Road, a public roadway. This
20-foot easement was initially established by deed in 1882 in a
170 acre plot of land, which at that time included all of the above-
referenced lots/properties, and was referenced in some, but not
all, later deeds. It was also noted as Steel Drive on some maps
in evidence. This determination is based upon the testimony of
[Appellee’s] expert, Gary Shefler, who[m] the Court found to be
credible, as well as the testimony of other witnesses. [Appellants’]
own expert, Amy Hopkins, testified to a location of the easement
consistent with the testimony of [Appellee’s] expert.
Order, 11/3/21, at 2.
On November 12, 2021, without filing post-trial motions, Appellants filed
a notice of appeal to this Court from the May 26, 2021 opinion and order, the
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June 23, 2021 order, and the November 3, 2021 order. On November 16,
2021, the court entered an order that Appellants’ notice of appeal should be
stricken because of Appellants’ failure to file post-trial motions.
On February 1, 2022, Appellee filed an application in this Court to quash
the appeal due to Appellants’ failure to file post-trial motions. On March 17,
2022, this Court granted Appellee’s application “only to the extent that the
portion of the appeal from the [November 3, 2021 order] is quashed due to
Appellants’ waiver of issues for failure of Appellants to file post-trial motions
after entry of the non-jury decision of the trial court.” Order, 3/17/22, at 1.
We denied the remainder of Appellee’s application without prejudice to raise
the issue again in his appellate brief. Id.1
Appellants raise a single issue on appeal:
Did the Trial Court err as a matter of law and/or abuse its
discretion by concluding in summary judgment that an easement
by necessity existed, thereby granting in part summary judgment
in favor [of Appellee], allowing him the right to use Steele Drive
as an easement by necessity, and requiring Appellants to remove
the gate on Steele Drive[?]
Appellants’ Brief at 8.
Preliminarily, Appellee argues that Appellants waived their objection to
the court’s May 26, 2021 partial summary judgment order by failing to file
post-trial motions before taking this appeal. We decline to find waiver.
____________________________________________
1 We further directed Appellants to reduce the November 3, 2021 order to
judgment. On March 22, 2022, Appellants filed a praecipe to enter judgment
on this order.
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The law is clear that post-trial motions may not be filed pursuant to an
order deciding a motion for summary judgment. Pa.R.Civ.P. 227.1(c), Note;
DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 365 (Pa. Super.
2003). Furthermore, when the court grants a pretrial motion for summary
judgment, but other claims go to trial, the party that lost the summary
judgment motion is not required to file post-trial motions objecting to the
summary judgment order. B.K. v. Chambersburg Hosp., 834 A.2d 1178,
1180-81 (Pa. Super. 2003) (where court granted summary judgment to one
defendant prior to trial, and case proceeded to trial against other defendant,
plaintiff was not required to file post-trial motions objecting to summary
judgment order to preserve challenge to summary judgment for appeal).
B.K. is directly on point with the present case. The court entered
summary judgment against Appellants as to the existence of the easement by
necessity. The case proceeded to trial to determine the location of the
easement and other matters unrelated to its existence. The only issue raised
in this appeal is the existence of the easement, an issue decided in the
summary judgment order. Thus, it was not necessary for Appellants to file
post-trial motions to preserve this issue for appeal.
Appellee insists that Appellants were required to file post-trial motions
because the court ruled on the existence of the easement during trial, not just
its location. In support of this claim, Appellee cites a phrase from the trial
court’s November 3, 2021 order that Appellee “[s]ustained his burden of proof
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of a 20-foot easement, presently known as Steele Drive . . .” Order, 11/3/21.
In our view, Appellee lifts this phrase out of context. The sentence containing
this phrase states that Appellee
[s]ustained his burden of proof of a 20-foot easement, presently
known as Steele Drive, to commence at the northeast corner of
his property, known as Lot 176.1 in Hanover Township, Beaver
County, Pennsylvania, and to continue across the northeast
border of each of Lot 175 [], Lot 174 [], Lot 173 [], and Lot 163.4
[] until its intersection with McKenzie Road, a public roadway.
Id. This sentence concerns the location of the easement (a trial issue), not
its existence (the summary judgment issue). Since nothing in the November
3, 2021 order concerned the existence of the easement, B.K. controls, and
Appellants were not required to file post-trial motions in order to preserve the
existence issue for appeal.
Appellee also argues that post-trial motions were necessary because the
parties introduced new evidence and testimony during trial. Appellee’s Brief
at 16 (citing G&G Investors, LLC v. Phillips Simmons Real Estate
Holdings, LLC, 183 A.3d 472, 477 (Pa. Super. 2018)). The only new
evidence introduced during trial, however, concerned the location of the
easement, not its existence. Thus, once again, Appellants were not required
to file post-trial motions.
Because waiver does not apply, we turn to the substance of Appellant’s
appeal, a challenge to the order of summary judgment in Appellee’s favor as
to the existence of an easement by necessity.
In reviewing a trial court's grant of summary judgment:
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[W]e apply the same standard as the trial court, reviewing all the
evidence of record to determine whether there exists a genuine
issue of material fact. We view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary judgment
be entered. All doubts as to the existence of a genuine issue of a
material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [a] cause of action.
Summary judgment is proper if, after the completion of discovery
relevant to the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the cause
of action or defense, which could be established by additional
discovery or expert report and the moving party is entitled to
judgment as a matter of law, summary judgment is appropriate.
Thus, a record that supports summary judgment either (1) shows
the material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action or
defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
True Railroad Realty, Inc. v. McNees, Wallace & Nurick, LLC, 275 A.3d
490. 494 (Pa. Super. 2022).
The three fundamental requirements for an easement by necessity are:
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; and 3) the
easement must be necessary in order for the owner of the
dominant tenement to use his land, with the necessity existing
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both at the time of the severance of title and at the time of the
exercise of the easement.
Bartkowski v. Ramondo, 219 A.3d 1083, 1092 (Pa. 2019). “A right of way
from necessity over the land of another ... is always of strict necessity.” Id.Thus, a right of way never exists “when a man can get to his own property
through his own land,” and “[c]onvenience is no foundation for the claim.” Id.“Strict necessity,” however, does not require a party to prove “utter
impossibility of alternative access.” Id. at 1096. “Where it is manifestly
impracticable, even though theoretically possible, to create ingress and egress
across one's own property, the landowner may establish that a right of way
over a neighboring property is ‘strictly necessary’ in the legal sense.” Id. at
1094. “Determining whether a landowner has established necessity is a fact-
intensive question, which defies a one-size-fits-all, bright-line standard.” Id.
at 1096. “The central inquiry is whether, absent the recognition of an
easement, the proposed dominant estate will be left without a means of
ingress and egress, rendering the property inaccessible and, thus, unusable.”
Id. When property conveyed is situated in a manner such that access to it
from a public road cannot be had except by passing over the remaining land
of the grantor, the grantee is entitled to an easement by necessity over the
land of the grantor. Price v. Musselman, 493 A.2d 1389, 1392 (Pa. Super.
1985).
In this case, the evidence satisfies the first easement by necessity
element, because the titles to the dominant and servient properties were both
held by a common grantor, McKnight. In 1897, McKnight obtained title to the
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120-acre tract, which encompassed the 61.5-acre tract that was later
subdivided into Lots 173, 174, 175, 176, and 176.1. Since the 61.5-acre tract
was carved out of the larger 120-acre tract, unity of ownership existed as to
both the dominant and servient estates.
The evidence also satisfies the second easement by necessity element,
because unities of title were severed by McKnight when he subdivided the
61.5-acre tract from the 120-acre tract in his 1908 deed to Ault.
The evidence also satisifies the third and final element of necessity,
because the necessity to use the easement existed at the time of severance
of title in 1908 and continues to exist to this day. At the time McKnight
subdivided the 120-acre tract, the only means of accessing McKenzie Road,
the nearest public highway, was by and through the 20-foot right-of-way
known today as Steele Drive. The 61.5-acre tract that McKnight conveyed to
Ault was landlocked and had no means of access to McKenzie Road or any
other public highway except by this right of way.
Appellants argue that the 61.5-acre tract continuously had access to
another public highway, Petrilla Drive, through a farm lane running through
other lands owned by the Aults (modern-day Lot 177). Appellants’ Brief at
41-42. In support of this theory, Appellants cite to a 1995 deed in the chain
of title for Lot 177, which includes the following language:
Also an easement of right of way over, across, and along the farm
lane presently connecting [Lot 177] with Hanover Township Road
No. 454... This conveyance is being made in recognition of the
fact that said farm lane has been used continuously by the
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Grantees herein and their predecessors in title for a period well in
excess of thirty-five (35) years.
Appellee’s Third Amended Complaint, Exhibit 2. We disagree. The grantees
in the 1995 deed merely stated that they used the farm lane for over 35 years,
i.e., before 1960. McKnight, however, subdivided the 120-acre in 1908, 52
years before 1960. The 1995 deed does not establish that the Aults had
access to Lot 177 via the farm lane at any point in time between 1908 and
1960. This fifty-two year gap defeats Appellants’ claim that the 61.5 acre
tract had continuous access to Petrilla Drive.
The necessity created in 1908 continues to this day, because Lots 176
and 176.1 are still landlocked and without legal access to a public highway. It
is of no consequence that the 61.5-acre tract was subdivided further into Lots
173, 174, 175, 176 and 176.1. As with any other easement, an easement by
necessity passes by conveyance of the estate to which it is appurtenant.
Lauderbach Zerby Co. v. Lewis, 129 A. 83, 84 (Pa. 1925); Rusciolelli v.
Smith, 171 A.2d 802, 806 (Pa. Super. 1961) (“an easement appurtenant is
assignable and divisible as the dominant tenement may be divided and
transferred and the owner of any part of the dominant tenement may claim
the easement so far as it is applicable to his part of the property, provided the
easement can be enjoyed as to the separate parcels without any additional
burden upon the servient tenement”). Furthermore, an easement by
necessity continues in perpetuity for as long as the necessity exists. Youst
v. Keck’s Food Service, 94 A.3d 1057, 1075 (Pa. Super. 2014). The trial
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court correctly found that an easement by necessity arose over Steele Drive
in 1908 as to the entirety of the 61.5-acre tract conveyed by McKnight to Ault.
This easement passed with each subsequent division of this tract because the
necessity continued to exist for each subdivision.
Further evidence of continued necessity relative to Lots 176 and 176.1
arises from the deeds in the chain of title. In 1973, Eleanor Maxwell
subdivided 30.5 acres of land into Lots 176 and 176.1. The deed for Lot 176.1
reserved an easement for the benefit of Lot 176 to allow its owners to cross
Lot 176.1 to access Steele Drive, which provided the only means of access to
McKenzie Road, the only public highway. Maxwell's express easement
demonstrates that Steele Drive was the only means of access to McKenzie
Road for Lots 176 and 176.1.
Today, both Lots 176 and 176.1 remain landlocked. Neither abuts a
public road, and there is no express easement in the record providing either
lot with permanent legal access. The trial court correctly observed that
Appellee’s right to cross Hradecky’s property is permissive only and was
intended to be a temporary privilege.
For these reasons, the trial court correctly held that Appellee satisfied
all three elements establishing an easement by necessity. We affirm the order
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granting partial summary judgment to Appellee on the easement by necessity
issue and directing Appellant Parry to remove the fence from her land.2
Order granting partial summary judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
____________________________________________
2As noted above, the remainder of the appeal was quashed in our March 17,
2022 order.
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