Keegan Land Dev. Corp. v. Lagana, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEEGAN LAND DEVELOPMENT CORP. : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES LAGANA ; LAGANA
CONSTRUCTION SERV.; LAGANA
ENTERPRISES; JIM LAGANA : No. 880 MDA 2018
PLUMBING & HEATING CO.; LAGANA
SUPPLY CO., INC., HAZELTON CITY
WATER DEPARTMENT AND BARBARA
CARMADELLA,
APPEAL OF: JAMES LAGANA;
LAGANA CONSTRUCTION SERV.;
LAGANA ENTERPRISES; JIM LAGANA
PLUMBING & HEATING CO.; LAGANA
SUPPLY CO.,INC.
Appeal from the Order Entered April 27, 2018
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2006-2995
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 12, 2019
James Lagana, Lagana Construction Serv., Lagana Enterprises, Jim
Lagana Plumbing & Heating Co., and Lagana Supply Co., Inc. (collectively
"Lagana"), appeal the order entered April 27, 2018, in the Luzerne County
Court of Common Pleas, enjoining Lagana from any future obstruction of the
use of an easement by Keegan Land Development Corp. ("Keegan") without
its express consent. On appeal, Lagana argues the trial court erred in
determining: (1) the easement did not transfer to Lagana when he purchased
Retired Senior Judge assigned to the Superior Court.
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the property from the original grantees; (2) Lagana was not an assign of the
original grantees; and (3) Lagana was not entitled to summary judgment
when Keegan failed to describe the encroachment with the required degree of
specificity. For the reasons below, we affirm the order of the trial court, albeit
on a different basis, and remand for further proceedings.'
We have garnered the facts and procedural history underlying this
dispute from the trial court's opinion, Keegan's complaint, and the trial
transcript. See Trial Court Opinion, 4/27/2018, at 5-7; Complaint 8/17/2016,
at 1111 7-35; N.T., 10/25/2017, at 1-129. In June of 1965, Keegan purchased
a 48.51 acre parcel of land, located in Hazle and Butler Townships, Luzerne
County, from Arthur and Edna Hess. Most of the parcel is situated over a
mountainside. The western border of the property sits east of a pavement
now identified as Gabriel Street. Dominick and Ann Matonte owned the parcel
of land adjacent to that western boundary of the Keegan property.2 On
December 6, 1976, Keegan granted to the Matontes, as well as "their heirs
and assigns, the perpetual right-of-way and easement" over .303 acres of its
land for "ingress, egress, and regress." Grant of Right -of -Way, 12/6/1976.
The trial court described the easement as "twenty (20) feet by six -hundred
' "This Courtcan affirm the trial court on any valid basis." D.G. v. D.B., 91
A.3d 706, 712 n.3 (Pa. Super. 2014).
2The Matontes are the aunt and uncle of John Keegan, who is Vice President
and a shareholder of Keegan Land Development Corporation. See N.T.,
10/25/2017, at 10.
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sixty (660) feet along the western boundary of [Keegan's] parcel adjacent to
the parcel owned by [the Matontes]" and extending in "a northerly direction
from what is now the intersection of Center Street and Gabriel Street." Trial
Court Opinion, 4/27/2018, at 5. Although the easement was not paved when
it was granted, the Matontes subsequently improved the easement "into a
twenty (20) foot wide dirt road." Id. at 6.
On May 31, 1988, the Matontes deeded two parcels of land to Lagana,3
including the parcel bordering Keegan's property. There is no mention of the
easement in the deed. See id. Hazle Township later paved part of the
easement, which it is now identified as Gabriel Street, from the intersection
of Center Street to the intersection of Schan Street. Lagana subdivided his
property and constructed townhomes. He later paved the portion of Gabriel
Street from Schan Street to forty feet beyond North Butler Terrace to provide
access for the townhomes. See id.; N.T., 10/25/2017, at 83-88. It merits
mention that in subsequent deeds granted to the various Lagana enterprises,
and in a plot plan submitted to the Butler Township Zoning Commission, the
right-of-way was described as being 30 feet wide, rather than 20 feet wide.4
See Complaint, 8/17/2006, at 1111 18-21. Furthermore, in 2003, Lagana
3 The Matontes are also the aunt and uncle of James Lagana, who is the
President of the Lagana companies that are named in this appeal. Lagana and
Keegan are cousins. See N.T., 10/25/2017, at 75, 78.
4 At trial, Lagana admitted that was an error, and the easement was only 20
feet wide. See N.T., 10/25/2017, at 88-89.
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granted the Hazelton Water Authority a perpetual easement and right-of-way
in the 20 -foot easement to provide water service to the townhome
developments. See id. at Exhibit G, Grant of Perpetual Easement and Right -
Of -Way, 2/13/2003. The water authority later installed water lines under
Gabriel Street and repaved the land. See Trial Court Opinion, 4/27/2018, at
7. "A manhole was [also] built into the paved easement now identified as
Gabriel Street to allow Keegan [] access should it choose to develop the parcel
that it owns." Id.
Keegan initiated this action by writ of summons filed on March 13, 2006.
On August 17, 2006, Keegan filed a complaint in ejectment, seeking an order
directing Lagana to remove the paved portion of the easement, as well as
landscaping and parking spaces obstructing the right-of-way.5 See
Complaint, 8/17/2006, at 9. It also sought an order enjoining Lagana from
"any future obstruction ... of Keegan's use of the easement over the Keegan's
parcel." Id. The case finally proceeded to a non -jury trial on October 25,
2017. On April 26, 2018, the trial court entered a decision in favor of Keegan.
Specifically, the court concluded: (1) it could "generally geographically place
the adjacent Keegan Parcel and Matonte Parcel" and the parties do not dispute
5The Complaint also named the water authority and an individual residing at
421 North Butler Terrace as defendants. However, neither of these
defendants are still a part of this action.
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the easement "is located on Keegan's land[;]"6 (2) the easement was not
described or incorporated in the deed Lagana received from the Matontes;7
(3) Lagana is not an heir of the Matontes and was not an assign of the
easennent;8 (4) because "Lagana held no rights to the [e]asement," its actions
in paving Gabriel Street and granting a sub -easement to the water authority
were "improper[;]"9 however, (5) because Keegan failed to produce a survey
establishing how much, if any, Lagana encroached onto Keegan's property
beyond the easement, it could not determine damages.1° Consequently, the
court entered the following order:
AND NOW, this 26th day of April, 2018, it is hereby ORDERED and
DECREED as follows:
1. The Court hereby ENJOINS any future obstruction by the
Lagana Defendants of Keegan's use of the Easement over
the Keegan Parcel without Keegan's express consent.
2. A hearing to determine the valuation of damages in this
matter is hereby scheduled to occur [] August 1, 2018 at
9:00 a.m. ...
Order, 4/26/2018.
6 Trial Court Opinion, 4/27/2018, at 9-10.
See id. at 11.
8 See id. at 11-12.
9 Id. at 12.
1° See id. at 13.
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Lagana filed a motion for clarification and/or reconsideration on May 3,
2018, and a supplemental thereto on May 8, 2018. However, before the trial
court ruled on his motion, Lagana filed a notice of appeal on May 25, 2018.11
The court later denied the motion on May 29, 2018.
Before we may address the substantive issues on appeal, we must first
consider whether the order before us is appealable. "Although no party has
challenged our jurisdiction on such grounds, we may always review our
jurisdiction sua sponte." See Barak v. Karolizki, 196 A.3d 208, 215 (Pa.
Super. 2018).
Generally, an appeal lies only from a final order. See id. See also
Pa.R.A.P. 341(b)(1) (a final order "disposes of all claims and of all parties").
The order at issue is not final because it scheduled a valuation of damages
hearing for a future date. Nevertheless, we find the court's April 26, 2018,
order is appealable pursuant to Pa.R.A.P 311. Rule 311 allows a party to
appeal certain otherwise interlocutory orders as of right, including orders
involving injunctions. See Pa.R.A.P. 311(a)(4). Specifically, the rule
provides:
(4) Injunctions. --An order that grants or denies, modifies or
refuses to modify, continues or refuses to continue, or dissolves
or refuses to dissolve an injunction unless the order was entered:
11 trial court ordered Lagana to file a concise statement
On June 21, 2018, the
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Lagana
complied with the court's directive, and filed a concise statement on July 12,
2018.
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(ii) After a trial but before entry of the final order. Such
order is immediately appealable, however, if the order
enjoins conduct previously permitted or mandated or
permits or mandates conduct not previously mandated or
permitted, and is effective before entry of the final order.
Pa.R.A.P. 311(a)(4)(ii). Because we conclude the court's April 26,2018, order
"enjoin[ed] conduct previously permitted" as set forth in Rule 311(a)(4)(ii), it
was immediately appealable as of right. Accordingly, we proceed to review
the issues raised by Lagana on appeal.
Preliminarily, we note that when considering a decision by a trial court
sitting without a jury our scope of review is
limited to a determination of whether the findings of the trial
court are supported by competent evidence and whether the
trial court committed error in the application of law.
Findings of the trial judge in a non -jury case must be given
the same weight and effect on appeal as a verdict of a jury
and will not be disturbed on appeal absent error of law or
abuse of discretion. When this Court reviews the findings of
the trial judge, the evidence is viewed in the light most
favorable to the victorious party below and all evidence and
proper inferences favorable to that party must be taken as
true and all unfavorable inferences rejected.
Since this is an action in ejectment, plaintiffs carried the burden
of establishing [their case] by a preponderance of the evidence....
Croyle v. Dellape, 832 A.2d 466, 470-471 (Pa. Super. 2003) (citations
omitted). Furthermore, we note that:
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,
'Contracts must receive a reasonable interpretation, according to
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the intention of the parties at the time of executing them, if that
intention can be ascertained from their language...."
Southall v. Humbert, 685 A.2d 574, 577 (Pa. Super. 1996) (quotation
omitted).
In his first issue, Lagana argues the trial court erred when it determined
the right-of-way Keegan granted to the Matontes was an easement in gross
as opposed to an easement appurtenant. See Lagana's Brief at 11.
The Pennsylvania Supreme Court has described an easement in gross
as follows:
An easement in gross is defined as a mere personal interest in the
real estate of another. The principal distinction between it and an
easement appurtenant is found in the fact that in the first there
is, and in the second there is not, a dominant tenement. The
easement is in gross, and personal to the grantee, because it is
not appurtenant to other premises. The great weight of the
authorities supports the doctrine that easements in gross,
properly so called because of their personal character, are not
assignable or inheritable, nor can they be made so by any terms
in the grant [].
Lindenmuth v. Safe Harbor Water Power Corp., 163 A. 159, 160 (Pa.
1932). "An easement in gross is a mere personal interest in, or right to use,
the land of another." Loughran v. Matylewicz, 81 A.2d 879, 881 (Pa. 1951).
See also 7 Summ. Pa. Jur. 2d Property § 18:3 (2d ed. 2019) ("An 'easement
in gross' is an easement with a servient estate but no dominant estate [and]
is a mere personal interest in, or a right to use, the land or water of another.")
(footnote omitted).
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Conversely, a prerequisite to the creation of an easement appurtenant
is the "[e]xistence of a servient tenement for the beneficial use of a dominant
tenement[.]" Brady v. Yodanza, 425 A.2d 726, 727 (Pa. 1981).
In determining whether a particular easement created by grant is
or is not appurtenant to land, two matters must be considered-
the nature of the right and the intention of the parties. In the first
place, it is a rule that nothing can be appurtenant unless it agrees
in nature and quality with the thing to which it is claimed to be
appurtenant. ... In addition, the easement must bear some
relation to the use of the dominant estate. A right not connected
with the enjoyment or use of a parcel of land granted cannot be
annexed as an incident to that land, so as to become appurtenant
to it.
Lindenmuth, supra, 163 A. at 161. Moreover, "[m]any cases recognize that
where an easement is annexed as an appurtenance to land ... it passes with a
transfer of land although not specifically mentioned in the instrument of
transfer." Brady, supra, 425 A.2d at 728.
Here, the grant of right-of-way executed by Keegan in favor of the
Matontes described a .303 acre parcel of Keegan's land (20 feet by 660 feet)
that bordered the Matontes' property. The document stated that, in
consideration for one dollar, Keegan
does grant to DOMINICK MATONTE and ANN MATONTE, his wife,
their heirs and assigns, the perpetual right-of-way and easement
at any and all times hereafter to ingress, egress and regress over
[a specific] parcel of land situate in Hazle and Butler Townships,
including the right to make passable said right-of-way[.]
Grant of Right -Of -Way, 12/6/1976.
The trial court did not explicitly determine whether the easement was in
gross or appurtenant to the property. However, our review of its opinion
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reveals the court found the easement was intended only for the benefit of the
Matontes, and did not pass with the land; in other words, the right-of-way at
issue was an easement in gross. Indeed, the court determined "Keegan
granted the Matontes, their heirs and assigns, rights of ingress, egress and
regress over the [e]asement." Trial Court Opinion, 4/27/2018, at 10.
However, it found the easement was not described in the deed transferring
the land to Lagana, nor did the Matontes specifically convey an assignment of
the easement to him. See id. at 11-12. Furthermore, it is undisputed Lagana
is not an heir of the Matontes. See id. at 12. Based upon these findings, the
court concluded the easement was personal to the Matontes (in gross), and
did not pass with the land when it was sold to Lagana (appurtenant). We
agree with Lagana that this conclusion was in error.
Here, the easement was adjacent to a dominant (Matonte) and servient
(Keegan) estate. Although the agreement named the Matontes, their heirs
and assigns, as the grantees, it provided for "the perpetual right-of-way and
easement at any and all times hereafter to ingress, egress and regress"
over a defined parcel of land. Grant of Right -of -Way, 12/6/1976 (emphasis
supplied). The description of the easement specifically referenced that it ran
"along the lands of Dominic Matonte[.]" Id. There is nothing in the language
of the right-of-way that indicates it was intended to be for the sole personal
use of the Matontes, and not attached to the land.
We note, however, John Keegan did testify the "right-of-way" was not
granted out of necessity, because the Matontes had access to their property
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on the west side of their parcel. See N.T., 10/25/2017, at 17. Rather, he
claimed "[i]t was just meant to be a right-of-way of convenience" so the
Matontes could "access their property" on the eastern side. Id. at 20.
Regardless, the right-of-way, as granted, did not provide for the private or
exclusive use of the Matontes. Indeed, the language in the grant creating a
"perpetual right-of-way and easement at any and all times hereafter" supports
the assertion that the easement was created in perpetuity attached to the
land. Grant of Right -of -Way, 12/6/1976.
A comparison of the facts in the Miller v. Lutheran Conference &
Camp Ass'n, 200 A. 646 (Pa. 1938), which concerned an easement in gross,
is instructive. In that case, Frank Miller and his brother Rufus Miller owned
lands on Tunkhannock Creek. They, along with other landowners, created
Pocono Spring Water Ice Company ("the corporation"). The corporation
erected a dam on the Creek, which then formed Lake Naomi. See id. at 647-
648. The organizers leased their land along the newly formed lake to the
corporation for "exclusive use of the water and its privileges[,]" that is, for
"pleasure, boating, skating, fishing and the cutting, storing and selling of ice."
Id. at 648. Thereafter, the corporation granted to Frank Miller, "his heirs and
assigns forever, the exclusive right to fish and boat in all the waters of said
corporation at Naomi." Id. Frank Miller later granted to his brother, Rufus
Miller, a one-fourth interest in the fishing, boating and bathing privileges. He
did this in conjunction with the creation of a business partnership, which the
brothers used to operate and maintain bath and boat houses along the lake.
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See id. After Rufus Miller's death, the partnership was terminated, and each
of the brothers (or their heirs) granted licenses to others for the use of the
lake. At issue was a license Rufus Miller's estate ("the estate") granted to
Lutheran Conference and Camp Association, which owned land abutting the
lake, to give its members permission to boat, bathe and fish in the lake. See
id. Frank Miller and his wife, Katherine, sought an injunction to prevent the
Association from trespassing, and in particular bathing, in the lake.
While the issues on appeal concerned whether the original easement
included bathing rights and whether the rights granted in the easement were
divisible,12 for our purposes, we note the Court found the rights obtained by
Frank Miller from the corporation were granted as an easement in gross. See
id. at 650. The Court explained: "[T]hese rights, not having been granted in
connection with, or to be attached to, the ownership of any land, were not
easements appurtenant but in gross." Id. Indeed, Frank Miller obtained from
the corporation the exclusive right to fish and boat in the lake. However, he
did not obtain those rights because he had an abutting property; he obtained
the rights to operate a boating and bathing business on the lake. Conversely,
in the present case, the Matontes obtained a right-of-way from Keegan for the
12 We note the Court ultimately held Frank Miller obtained bathing rights by
prescription, and the easement in gross he obtained from the corporation was
assignable. See Miller, supra, 200 A. at 650-651. However, the Court also
held that while Frank Miller could assign part of his interest to Rufus Miller,
neither had the authority to sub -license their rights: "[T]hey should be utilized
in common and not by two owners severally, [as] this was evidently the
intention of the brothers." Id.
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sole purpose of eastern access to their property. Unlike in Miller, the
easement herein was granted "in connection with" and "attached to" the
Matontes' ownership of abutting land. Miller, supra, 200 A. at 650.
Accordingly, we agree the trial court erred in determining the right-of-way
constituted an easement in gross, personal only to the Matontes.
In his second issue, Lagana contends that because the right-of-way was
an easement appurtenant, "it passed by operation of law to [him] as
purchaser[] of the dominant estate." Lagana's Brief at 14. Again, we agree.
The trial court concluded "Lagana held no rights to the [e]asement"
because he was not an heir or assign of the Matontes, and the easement was
not incorporated in the deed conveyed by the Matontes to Lagana. Trial Court
Opinion, 4/27/2018, at 10-12. However, that conclusion was dependent upon
the court's finding that the right-of-way granted by Keegan was personal to
the Matontes, i.e., an easement in gross. We have found that determination
to be incorrect. Moreover, as noted above, an easement appurtenant "passes
with a transfer of land although not specifically mentioned in the instrument
of transfer." Brady, supra, 425 A.d at 728. Accordingly, we conclude Lagana
obtained the right to use the easement when he purchased the Matontes'
property.
In his third issue, Lagana asserts the trial court erred in refusing to grant
summary judgment or dismiss the action when Keegan failed to "describe the
encroachment with the required degree of specificity." Lagana's Brief at 17.
By way of background, Lagana filed a motion for summary judgment on
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October 10, 2017, two weeks before trial. He asserted that Keegan's
allegations of encroachment were based upon a purported 30 -foot wide
easement Lagana granted to the water authority, when the easement at issue
was only 20 feet wide. See Lagana's Motion for Summary Judgment,
10/10/2017, at ¶ 10. Lagana insisted Keegan failed to provide an "adequate
description" of the alleged 10 -foot encroachment. Id. at ¶ 21. The trial court
denied the motion without opinion on October 17, 2017.
We find no error or abuse of discretion on the part of the trial court.
Indeed, summary judgment is appropriate only "when the record clearly
shows that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law." Krepps v. Snyder, 112
A.3d 1246, 1258 (Pa. Super. 2015) (quotation omitted), appeal denied, 125
A.3d 778 (Pa. 2015). Here, the pretrial record did not "clearly" show that
Keegan could not establish the 10 -foot encroachment during trial.
As for the second part of Lagana's claim, we also do not find Keegan's
failure to establish the 10 -foot encroachment constituted a basis for dismissal
of its entire claim. We note the trial court did find "Keegan fail[ed] to produce
a survey establishing precisely how much, if any, pavement encroaches onto
the Keegan [p]arcel beyond the [e]asement's boundaries." Trial Court
Opinion, 2/27/2018, at 13. Moreover, the court's opinion suggests that
Keegan may present evidence of this encroachment at the future damages
hearing. To the extent the court's decision allowed Keegan to have "another
bite of the apple" to demonstrate the 10 -foot encroachment by survey, we
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find the court erred. Nonetheless, as will be discussed infra, the court may
grant other relief.
Despite the fact we find several of the trial court's rulings to have been
in error, we affirm the order on appeal. Lagana's right to make use of the
easement was still subject to the terms of the easement itself. The easement
provided the grantees with the right to "ingress, egress and regress" over the
specified parcel of land, "including the right to make passable said right-of-
way." Grant of Right -of -Way, 12/6/1976. Furthermore, it is well -settled that
"the owner of land, who grants a right of way over it, conveys nothing but the
right of passage, and reserves all incidents of ownership not granted." Dyba
v. Borowitz, 7 A.2d 500, 501 (Pa. Super. 1939). Accordingly, as much as
Keegan could not interfere with Lagana's right-of-way, Lagana could not make
use of the easement for any purposes not explicitly granted in the right-of-
way.
As noted above, the 10 -foot encroachment constituted only part of
Keegan's claim. In its complaint, Keegan sought an order directing Lagana
to, inter a/ia: (1) "remove the paved portion of the paved road along the
common boundary of the two parcels;" (2) "remove landscaping and parking
spaces on the right-of-way, currently obstructing the right of way;" and (3)
"remove the encroachment of large rocks, fill and/or debris from Keegan's
land." Complaint, 8/17/2006, at 9. To the extent these actions interfered
with Keegan's use of the parcel, and/or exceeded the rights granted in the
right-of-way, Keegan may be entitled to damages and/or equitable relief, such
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as the removal of the obstructions. We leave this determination to the trial
court upon remand.
Accordingly, we affirm the order on appeal, which, in essence, simply
enforced the terms of the easement. Indeed, the order enjoined Lagana from
any "future obstruction ... of Keegan's use over the [e]asement ... without
Keegan's express consent." Order, 4/26/2018. Although the court concluded
Lagana had no right to use the easement, it did not include that specific finding
in its final order.13 Because the court did not determine what damages, if any,
Keegan was entitled to as a result of Lagana's obstruction of the right-of-way,
we remand this case for a damages hearing.1-4
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
13Indeed, the order, as filed, did not enjoin Lagana from using the right-of-
way.
14We note the trial court found Lagana's paving of the easement was improper
because it had concluded Lagana did not have any rights in the easement. As
noted above, we found that determination to be in error. Moreover, because
the specific language in the easement included "the right to make passable
said right-of-way," we find Lagana's paving of the easement, now known as
Gabriel Street, to be permissible under the specific terms of the right-of-way.
Grant of Right -of -Way, 12/6/1976 (emphasis supplied).
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 08/12/2019
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