Plasic, S. v. Bottiglier, J. ( 2019 )

J. A20006/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
STEVEN L. PLASIC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN D. BOTTIGLIER, KANDI L. :
LAFFERTY, GARY T. DEIMLER, :
NANCY L. DEIMLER, TERI A. :
SUTHERLAND, AND JACK BERTOLETTE :
:
APPEAL OF: JOHN D. BOTTIGLIER, :
KANDI L. LAFFERTY, GARY DEIMLER, : No. 78 MDA 2019
NANCY DEIMLER, AND :
JACK BERTOLETTE :
Appeal from the Judgment Entered December 24, 2018,
In the Court of Common Pleas of Dauphin County
Civil Division at No. 2013-CV-08615-QT
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 18, 2019
John D. Bottiglier, Kandi L. Lafferty, Gary Deimler, Nancy Deimler, and
Jack Bertolette (collectively “appellants”) appeal from the December 24, 2018
judgment entered in the Court of Common Pleas of Dauphin County in favor
J. A20006/19
of Steven L. Plasic (“Plasic”) and against appellants pursuant to the trial
court’s order entered December 6, 2018.1 We affirm.
The trial court set forth its findings of fact as follows:
What is known as Stone Glen Road is an unimproved
private road between Stoney Creek Road and Hemlock
Lane[,] which follows the course of an abandoned
railway line once owned by the Reading Railroad
Company in Middle Paxton Township, Dauphin
County. The parties to the present matter are owners
of land abutting or bisected by Stone Glen Road who
share a common predecessor in title, Warren G.
Stone. Stone had acquired the land at issue from
Dauphin Consolidated Water Supply Company and
subdivided and sold off the parcels at issue in the
1950’s. Each of the Deeds of the parties’
predecessors in titled [sic] make reference to the bed
of the old railroad as a right of way or a right to use
“in common with either owners and occupiers of land
adjourning [sic] said right of way”.
More specifically, the Deed from Stone to [Plasic’s]
predecessor in title, his parent[,] states:
Reserving unto the parties of the first part
[Stone] their heirs and assigns the
ingress, egress and regress over and upon
1We note that John D. Bottiglier and Kandi L. Lafferty are husband and wife
and are collectively referred to as “Bottiglier.”
We note that Gary Deimler and Nancy Deimler are husband and wife
and are collectively referred to as “Deimler.”
We note that Martha Mercurio, wife of appellant Bertolette, was not a
named defendant in the underlying quiet title action. However, Mercurio and
appellant Bertolette hold title to their property as tenants by the entirety. The
trial court held that Mercurio, “although not named as [a] defendant, would
be bound by [the trial c]ourt’s determination.” (Notes of testimony, 9/19/18
at 5.)
We note that Teri A. Sutherland is not a party to this appeal.
-2-
J. A20006/19
the right of way thirty-three (33) feet
wide in the location formerly occupied by
the Reading Railroad Company to be used
in common with the owners and occupiers
of land adjoining the right of way. (Deed
Book [Vol.] 102[,] page 183).
Consistent with the reservation in [Plasic’s] claim of
title is the following which appears in the claims of []
Sutherland and Deimler:
Together with the right to use of a
twenty (20) feet driveway, formerly the
road bed of the Reading Railroad
Company, crossing within described
premises, which is to be used in common
for ingress, egress and regress with the
owners or occupiers of land abutting
therein. (Deed Book Vol. 41, page 33).
These chains of title also include language by which []
Sutherland and Deimler took title subject to ways and
rights of record and visible upon the land.
Similarly, [] Bertolette’s Deed contains the following:
Together with the right to the use of the
said old railroad bed in common with the
prior owner for ingress, egress and
regress to the several portions of the land
of the prior owner as well as such land as
he has formerly conveyed therefore. This
provision being copied from deed of prior
owner, and which provisions and right it is
expressly meant to be conveyed together
with the property hereinbefore described.
(Deed Book [Vol.] 4188, page 234)[.]
Also, of significant note, [] Bottiglier’s chain of title
also includes a recorded survey (Deed Book
[Vol.] 1215[,] Page 191) which shows at [sic]
thirty-three (33) foot Dauphin Consolidated Water
Supply Company right of way across his land and
entering that of [Plasic] and [] Deimler.
-3-
J. A20006/19
[] Bertolette’s chain of title includes a Deed from
Stone which includes a course “to the Old Reading
Railroad Bed” there “along the south side of said
Reading Railroad bed”. (Reference number
20090036997)[.] The Deed out of Stone to []
Bertolette’s predecessor in title also states:
The Grantee herein shall have the
privilege of using, together with adjoining
property owners, a sixteen (16) feet right
of way over and across the lands of
Warren S. Stone, et ux.
In the many years that preceded this dispute the
parties and their predecessors in title mutually used
and individually maintained Stone Glen Road. By
Agreement, in November of 2001[, Plasic,] Bottiglier
and Lafferty and other landowners along Stone Glen
Road to the west of [Plasic’s] property agreed to
maintain a clear roadway, in common, for ingress and
egress (Deed Book [Vol.] 4188, page 252). Neither
[] Sutherland, Deimler and Bertolette, whose property
is to the east of [Plasic’s] property, nor their
predecessors in title were a part[y] to the Agreement.
In relatively recent history[, appellants and
Sutherland] and their predecessors in title have
sought to discourage non-residents from using Stone
Glen Road and to regulate traffic by placing logs along
the side of the roadbed, a pole in the middle of the
roadbed and a fence or chain across the roadbed. It
is for these reasons [Plasic] has brought this action.
By his Complaint[, Plasic] seeks to quiet title to
traverse Stone Glen Road by right of way [and]
further seeking to permanently enjoin [appellants and
Sutherland] from interfering with his right to travel
Stone Glen Road. [Appellants and Sutherland] have
opposed [Plasic’s] action claiming that he does not
have an express easement over their property. The
-4-
J. A20006/19
[trial c]ourt agrees with Bertolette but disagrees with
[the] remaining [appellants and Sutherland].[2]
The course of the old railroad bed, now known as
Stone Glen Road is apparent upon inspection of the
land and is not in dispute. While the width varies,
16 feet[ – ]Bertolette, 20 feet[ – ]Sutherland, 33 feet[
– Plasic] and by no measure in the instance of []
Bottiglier and Lafferty, as determined by the Deeds,
the course has remained unchanged.
Trial court opinion and order, 12/6/18 at 1-4.3
The record reflects that on October 1, 2013, Plasic filed a quiet title
action against appellants, as well as Teri A. Sutherland and Bryan D. Mumma.4
On September 19, 2018, a non-jury trial was held. At the conclusion of Plasic’s
case-in-chief, appellants moved for a non-suit. The trial court took the motion
under advisement. At the conclusion of the non-jury trial, appellants renewed
their motion for a non-suit. The trial court continued to take the motion under
advisement.
On December 6, 2018, the trial court entered its opinion and order
finding in favor of Plasic and enjoining appellants and Sutherland from
2 We note that the trial court agreed that Plasic’s quiet title action did not
involve the portion of the railroad bed now referred to as Hemlock Lane, which
transects Bertolette’s property. (Notes of testimony, 9/19/18 at 126.) The
trial court limited its “examination to the status of the railroad bed . . . in
Stone Glen Road west of its intersection of Hemlock [Lane].” (Id.)
3The trial court’s opinion and order does not contain pagination; for ease of
our discussion, we have assigned each page a corresponding number.
4 We note that the complaint misidentified Mumma as “Brian D. Mumma.” The
trial court dismissed Mumma from this cause of action without prejudice at
the start of the non-jury trial. (Id. at 4.)
-5-
J. A20006/19
interfering with Plasic’s peaceful use “in the bed of the old railroad now known
as Stone Glen Road” as it crosses each party’s property for purposes of ingress
and egress in common with appellants and Sutherland. (Id. at 4.) On
December 17, 2018, appellants filed an untimely motion for post-trial relief.5
The trial court denied the post-trial motion on December 18, 2019. On
December 24, 2018, judgment was entered in accordance with the trial court’s
opinion and order dated December 6, 2018.
On January 7, 2019, appellants filed a timely notice of appeal.6 The trial
court ordered appellants to file a concise statement of errors complained of
5 We note that the record contains an original motion for post-trial relief that
was time-stamped as entered on December 18, 2018. The record also
contains a copy of the motion for post-trial relief that was time-stamped as
entered on December 17, 2018. The motion for post-trial relief was untimely
because it was not filed within ten days of the trial court’s decision in the
non-jury trial. See Pa.R.Civ.P. 227.1(c)(2) (stating, “Post-trial motions shall
be filed within ten days after . . . (2) notice of nonsuit or the filing of the
decision in the case of a trial without jury.”). Although the motion for post-trial
relief was untimely, the trial court, nonetheless, entertained the motion and
denied it on substantive grounds.
6 In a per curiam order, this court directed appellants to show cause why the
instant appeal should not be dismissed as premature on the grounds that the
post-trial motion was still pending and judgment had not been entered.
(Per curiam order, 2/15/19.) In response, appellants stated that upon
discovering that the trial court order denying the post-trial motion had been
entered on the wrong docket, appellants corrected the error. Appellants
provided this court with a revised docket statement showing that the post-trial
motion had been denied on December 18, 2018, and judgment was entered
on December 24, 2018. This court discharged its rule to show cause and
referred the matter to the merits panel. Upon review of the record, we find
that the appeal is properly before this court.
-6-
J. A20006/19
on appeal pursuant to Pa.R.A.P. 1925(b). Appellants timely complied. The
trial court subsequently filed its Rule 1925(a) opinion.
Appellants raise the following issue for our review: “Whether the trial
court erred in finding as a matter of law that [Plasic] has an express easement
over appellants’ property[?]” (Appellants’ brief at 2 (unnecessary
capitalization omitted).)
In reviewing the ruling of the trial court in an action
to quiet title, an appellate court’s review is limited to
determining whether the findings of fact are
supported by competent evidence, whether an error
of law has been committed, and whether there has
been a manifest abuse of discretion.
Vernon Township Volunteer Fire Dep’t, Inc. v. Conner, 855 A.2d 873,
879 (Pa. 2004) (citation omitted). “An appellate court may not substitute its
judgment for that of the trial court if the determination of the trial court is
supported by competent evidence.” Id. (citation omitted).
Here, appellants argue the trial court erred in determining that Plasic
had an express easement across their properties. (Appellants’ brief at 5.)
Appellants contend that Stone reserved an express easement in the deed to
Plasic’s predecessor-in-title, his parents, that was only for the benefit of Stone
and was not meant to benefit Plasic. (Id.)
“[T]he same rules of construction apply to deeds granting easements as
to contracts generally.” Southall v. Humbert, 685 A.2d 574, 577 (Pa.Super.
1996) (citation omitted).
-7-
J. A20006/19
In construing a deed or a contract, certain general
principles must be kept in mind. First, it is the
intention of the parties at the time of entering in
thereto that governs, and such intention is to be
gathered from a reading of the entire contract. In
addition, [c]ontracts must receive a reasonable
interpretation, according to the intention of the parties
at the time of executing them, if that intention can be
ascertained from their language.
Id. citing Wilkes-Barre Twp. Sch. Dist. v. Corgan, 170 A.2d 97, 98 (Pa.
1961).
Creation of an easement appurtenant is accomplished
by reserving unto the grantor an easement or right of
way over the land conveyed, said right of way being
intended to benefit other lands retained by the
grantor. This reservation is conceptually fused with
the land it benefits and passes with the land if there
is a subsequent conveyance. An expressly created
easement appurtenant can conceivably last forever.
....
[W]here an easement is annexed as an appurtenance
to land by an express or implied grant or reservation
. . . it passes with a transfer of the land although not
specifically mentioned in the instrument of
transfer. . . . Unless the common grantors limit or
make personal the right of way, it is an appurtenance
to the land it benefits.
Brady v. Yodanza, 425 A.2d 726, 727-728 (Pa. 1981) (citations and
footnotes omitted). Reciprocal appurtenant easements exist when “each
parcel conveyed from the original tract serves as a servient estate for the
beneficial use of the remaining property of that common tract formerly owned
by [] their common grantor.” Southall, 685 A.2d at 578 (citation omitted).
-8-
J. A20006/19
An assignor is defined as “a person who assigns or
transfers property to another.” The term “assigns” is
defined as follows:
Those to whom property is, will, or may
be assigned. Used e.g. in the phrase, in
deeds, “heirs, administrators, and assigns
to denote the assignable nature of the
interest or right created.” It generally
comprehends all those who take either
immediately or remotely from or under
the assignor, whether by conveyance,
devise, descent, or act of law.
Id. at 579 (brackets omitted, emphasis added), citing Black’s Law Dictionary
109 (5th ed. 1979).
Here, a review of the record demonstrates that Stone was the common
grantor of all of the properties involved in the instant matter. (Plaintiff’s
Exhibits A-F.) In 1948, Stone conveyed to Bertolette’s predecessor-in-title
the property identified as Parcels 5 and 6 at trial. (Plaintiff’s Exhibit F, Deed
Vol. 32 at Pages 413-415; see also defendant’s Exhibit 1.) In that
conveyance, Stone granted Bertolette’s predecessor-in-title “the privilege of
using, together with adjoining property owners, a sixteen (16) feet right
of way over and across the lands of [Stone].” (Plaintiff’s Exhibit F, Deed
Vol. 32 at Page 413 (emphasis added).)
In 1951, Stone conveyed the property identified as Parcel 1 at trial to
Bottiglier’s predecessor-in-title reserving for himself an easement appurtenant
and granting Bottiglier’s predecessor-in-title the same across the “old railroad
bed.” (Defendant’s Exhibit 1, see also plaintiff’s Exhibit B, Deed Vol. 35 at
-9-
J. A20006/19
Pages 544-547.) The grant of the easement appurtenant stated specifically,
“Together with the right to the use of the said old railroad bed in common
with party of the first part[, (Stone),] for ingress, egress and regress to the
several portions of the land of the party of the first part[, (Stone)], as well
as such land as he has formerly conveyed therefrom.” (Plaintiff’s
Exhibit B, Deed Vol. 35 at Page 545 (emphasis added).)
In 1956, Stone conveyed the property that was later sub-divided into
Parcels 3 and 4, as identified at trial, to Deimler’s and Sutherland’s
predecessor-in-title.7 (Defendant’s Exhibit 1; see also plaintiff’s Exhibit D,
Deed Vol. 41 at Page 33; plaintiff’s Exhibit C, Deed Vol. 41 at Pages 33-35.)
In that deed, Stone again reserved for himself an easement appurtenant and
granted Deimler’s and Sutherland’s predecessor-in-title the same; the specific
language of the deed stated, “Together with the right to the use of a twenty
(20) feet driveway, formerly the road bed of the Reading Railroad Company,
crossing the within described premises, which is to be used in common for
ingress, egress and regress with the owners or the occupiers of land
abutting thereon.” (Plaintiff’s Exhibit D, Deed Vol. 41 at Page 33; plaintiff’s
Exhibit C, Deed Vol. 41 at Page 33 (emphasis added).)
Finally, in 1957, Stone conveyed to Plasic’s predecessor-in-title Parcel 2,
as identified at trial, “[r]eserving unto the parties of the first part [(Stone)],
their heirs and assigns, the right of ingress, egress and regress over and
7 Both Deimler and Sutherland had the same predecessor-in-title, E.M. Harter.
- 10 -
J. A20006/19
upon the right of way thirty-three (33) feet wide in the location formerly
occupied by the Reading Railroad Company to be used in common with
other owners and occupiers of land adjoining said right of way.”
(Defendant’s Exhibit 1; see also plaintiff’s Exhibit A, Deed Vol. 42 at
Pages 23-25 (emphasis added).)
The record reveals that by including similar language in each deed of
the predecessors-in-title whose property abutted or was bisected by the
former railroad bed, Stone created reciprocal easements appurtenant or
common rights-of-way for ingress, egress and regress over each owner’s
property for the benefit of all the other owners. Southall, 685 A.2d at 578
(noting, “The choice of identical terms to describe both easements indicates a
purpose to establish identical and reciprocal rights.”). Moreover, the specific
language in the easement conveyed by Stone to Plasic’s predecessor-in-title,
created a reciprocal easement appurtenant for the benefit of Stone’s assigns,
which included Plasic’s predecessor-in-title and which passed with the land for
the benefit of Plasic. Id. at 579 (stating, “The assignee stands in the same
shoes as the assignor.” (brackets omitted)).
A review of the record supports the trial court’s findings of fact and we
discern no error of law or abuse of discretion in the trial court’s conclusion
that “the language in the original deeds from Stone to [appellants, Sutherland]
and [Plasic’s] predecessor[s] in title reserved to [Plasic], his successors in
title, [Sutherland] and [appellants], a right of way in common, in the bed of
- 11 -
J. A20006/19
the old railroad now known as Stone Glen Road.” (Trial court opinion and
order, 12/6/18 at 4.) Therefore, appellants claim is without merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2019
- 12 -