Kiritsis v. & J. v. Yocum Instit. for Arts Edu. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VASILIOS D. KIRITSIS AND : IN THE SUPERIOR COURT OF
JENNIFER L. KIRITSIS : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1339 MDA 2019
YOCUM INSTITUTE FOR ARTS :
EDUCATION, INC. :
Appeal from the Judgment Entered August 28, 2019
In the Court of Common Pleas of Berks County Civil Division at No(s):
18-13200
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED: APRIL 14, 2020
Appellants, Vasilios D. Kiritsis and Jennifer L. Kiritsis, appeal from the
judgment entered August 28, 2019, on behalf of Yocum Institute for Arts
Education, Inc. (“Yocum Institute”). 1 We affirm.
The trial court summarized the factual and procedural history as follows:
On July 3, 2018, [Appellants] filed a complaint and a motion for
preliminary injunction against [Yocum Institute] seeking to
establish an implied easement over [Yocum Institute’s] real
properties at 2940 Penn Avenue and 3000 Penn Avenue ([“Yocum
Institute’s] Property[”]). [Appellants] seek ingress [from] and
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1 The record demonstrates that Appellants appealed the order entered July
15, 2019, in which the trial court entered a verdict in favor of Yocum Institute
after a non-jury trial and dismissed Appellants’ complaint with prejudice. In
a per curiam order, this Court held that Appellants’ appeal was interlocutory
and directed Appellants to praecipe for entry of judgment. Judgment was
entered on August 28, 2019. Therefore, Appellants notice of appeal was filed
on August 28, 2019. See Pa.R.A.P. 905(a)(5).
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egress [to] their real property at 3020 Penn Avenue
([“Appellants’] Property[”]), including [access to] certain parking
spaces on [Appellants’] Property, from [Yocum Institute’s]
Property. In their motion for preliminary injunction, [Appellants]
requested the removal of a curb that [Yocum Institute] had
installed on [Yocum Institute’s] Property, along the property line
with [Appellants’] Property, which prevents [Appellants] and their
tenants from crossing over [Yocum Institute’s] Property to reach
[Appellants’] Property.
Trial Court Opinion, 10/9/19, at 1-2.
After conducting a hearing, the trial court entered an order stating that
Appellants’ motion for a preliminary injunction would be denied if Yocum
Institute, at its expense, submitted a plan by October 22, 2018, for
reconfiguration of access to and from and parking at Appellants’ property, and
completed and paid for the repainting of parking lines on Appellants’ property
by December 1, 2018. Yocum Institute submitted a plan for reconfiguration
of access and parking. Appellants rejected the reconfiguration plan and filed
a motion for reconsideration, arguing that Yocum Institute’s proposed
reconfiguration plan eliminated Americans with Disability Act2 required
parking on Appellants’ Property. Appellants further argued the reconfiguration
plan proposed an unsafe plan for entering their property from Penn Avenue
and exiting their property onto Penn Avenue. On December 14, 2018, the
trial court denied Appellants’ motion for reconsideration and ordered the case
to proceed to a non-jury trial.
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2 42 U.S.C.A. §§ 12101-12213.
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After the conclusion of the April 2, 2019 non-jury trial, both parties
submitted proposed findings of fact and conclusions of law. The parties also
stipulated to the following findings of fact:
1. [Appellants] purchased the real property situate[d] at
3020 Penn Avenue, Township of Spring, County of Berks,
Commonwealth of Pennsylvania on November 16, 2007,
from Anthony and Sandra L. Forino [(collectively,
“Forino”)].
2. [Yocum Institute] purchased the real property situate[d]
at 2940 [Penn Avenue] and also 3000 Penn Avenue,
Township of Spring, County of Berks, Commonwealth of
Pennsylvania on July 28, 2017, from the Township of
Spring[].
3. [Forino] had granted and conveyed 2940 Penn Avenue
and 3000 Penn Avenue to the Township of Spring by
virtue of a Deed of Dedication in Lieu of Condemnation,
dated March [2]7, 2007.[3]
4. [Appellants’] Property and [Yocum Institute’s] Property
are contiguous.
5. [Yocum Institute] is a non-profit organization that,
among other things, operates an art institute and
preschool/kindergarten at the Yocum [Institute’s]
Property.
6. [Appellants] lease commercial office space at
[Appellants’] Property.
7. [Appellants] owned and occupied [Appellants’ Property]
for nine years prior to [Yocum Institute] receiving
conveyance of the deed from the Township of Spring.
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3 Although Appellants and Yocum Institute stipulated that the deed conveying
the Yocum Institute’s property from Forino to the Township of Spring was
dated March 17, 2007, a review of the record demonstrates that the deed was
dated March 27, 2007. See Notes of Testimony, 4/2/19, at Plaintiff’s Exhibit
No. 4.
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8. [Yocum Institute] developed [Yocum Institute’s]
Property consistent with plans approved by appropriate
governmental bodies and agencies required by law,
including the Township of Spring and Pennsylvania
Department of Transportation.
9. [Appellants’] Property has an entrance that provides a
means of ingress [from] and egress [to] Penn Avenue for
[Appellants] and their commercial tenants.
10. [Yocum Institute’s] Property has two separate means of
access to Penn Avenue. One is a two-way access
providing ingress [from] and egress [to] Penn Avenue on
the eastern side of the Yocum Property and there is a
one-way exit to Penn Avenue on the western most side
of [Yocum Institute’s] Property.
11. [Yocum Institute] located on [Yocum Institute’s]
Property has a one-way flow of traffic that travels along
a portion of the eastern side of [Yocum Institute’s]
building, the entire rear of the building and along the
entire western side of the building, which leads to the
one-way exit from [Yocum Institute’s] Property to Penn
Avenue.
12. On the western side of [Yocum Institute’s] building is a
drop-off point for preschool and kindergarten children
attending Yocum [Institute]. There are two lanes of
traffic at the drop[-]off point. One lane is a by-pass lane
for traffic exiting [Yocum Institute’s] Property and the
other lane is used to drop off children at Yocum
[Institute].
13. [Yocum Institute] installed a cement curb along a portion
of the property line between [Yocum Institute’s] Property
and [Appellants’] Property.
14. [Yocum Institute’s reconfiguration] plans call for an
easement over a portion of the western side of its
property to [Appellants’ Property] to assist with the
ingress and egress of vehicles [entering and exiting
Appellants’] Property. [Yocum Institute] offered this
easement[,] as planned, but [Appellants] have rejected
that it is acceptable.
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15. [Appellants] and their tenants had used [Yocum
Institute’s] Property for access to and from Penn Avenue
and to park in some of [Appellants’] parking spaces on
[Appellants’ Property] before the curb was installed.
16. There is no easement, recorded right-of-way, written
agreement or other writing that provides [Appellants]
access over [Yocum Institute’s] Property to [Appellants’]
Property.
17. [Appellants] did not obtain nor seek permission from the
Township of Spring, during [the Township’s] ownership
of [Yocum Institute’s] Property, to use [Yocum
Institute’s] Property for access to Penn Avenue and
[Appellants’] Property.
Stipulated Findings of Fact, 5/31/19, at unnumbered pages 1-2.
On July 15, 2019, the trial court entered a verdict in favor of Yocum
Institute and dismissed Appellants’ complaint with prejudice. Appellants filed
a motion for post-trial relief that the trial court subsequently denied.
Appellants filed a praecipe for entry of judgment. Judgment was entered for
Yocum Institute on August 28, 2019. This appeal followed.4
Appellants raise the following questions for our review:
[1.] Whether the trial court abused its discretion by failing to
make factual findings on critical, unrefuted evidence?
[2.] Whether the trial court erred as a matter of law by failing to
find the existence of an easement by implication?
[3.] Whether the trial court erred by applying the affirmative
defense of laches despite the fact that [Yocum Institute]
waived this affirmative defense?
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4 The trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days.
Appellants timely complied. The trial court subsequently filed its Rule 1925(a)
opinion.
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Appellants’ Brief at 4 (extraneous capitalization omitted).
In matters of equity, our standard of review is as follows:
Appellate review of equity matters is limited to a determination of
whether the [trial court, as ultimate fact-finder,] committed an
error of law or abused [its] discretion. The scope of review of a
final decree in equity is limited and will not be disturbed unless it
is unsupported by the evidence or demonstrably capricious.
Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000) (citation omitted),
appeal denied, 760 A.2d 855 (Pa. 2000).
We first address Appellants’ claim that the trial court erred as a matter
of law in failing to find the existence of an easement by implication, as we find
this issue to be dispositive of the instant appeal. In determining whether an
easement by implication exists, our Supreme Court in Bucciarelli v. DeLisa,
691 A.2d 446, 448 (Pa. 1997) held that an easement by implication exists
where an easement was intended at severance and the person against whom
the easement is asserted had notice, actual or constructive, that such an
easement existed. Bucciarelli, 691 A.2d at 450. In explaining the traditional
test to determine if an easement by implication exists at severance of title,
our Supreme Court stated,
It has long been held in this Commonwealth that although the
language of a granting clause does not contain an express
reservation of an easement in favor of the grantor, such an
interest may be reserved by implication, and this is so
notwithstanding that the easement is not essential for the
beneficial use of the property.
“Where 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
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takes subject to the burden or the benefit as the case may
be, and this [is] irrespective of whether or not the easement
constituted a necessary right of way.”
Id. at 448 (ellipsis and original brackets omitted), quoting Burns Mfg. v.
Boehm, 356 A.2d 763, 767 (Pa. 1976), citing Tosh v. Witts, 113 A.2d 226,
228 (Pa. 1955).5 “An easement by implication could have arisen only at the
time at which ownership of the two parcels in question first became
separated.” Phillippi, 748 A.2d at 762 (citation omitted). “‘[P]ermanent’ or
‘continuous’ simply means that the use involved shall not have been
occasional, accidental or temporary [but, rather,] of such a character as to
enable the claimant to rely reasonably upon the continuance of such use.”
Bucciarelli, 691 A.2d at 449 (citation omitted). The Bucciarelli Court stated
that one of several factors to consider in determining whether an easement
by implication exists was
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5 We recognize that this Court in rendering its decision in Daddona v. Thorpe,
749 A.2d 475 (Pa. Super. 2000), which was published one day after the
decision in Phillippi, supra, identified three elements required to create an
easement by implication: “first, a separation of title; second, that, before the
separation takes place, the use which gives rise to the easement, shall have
been so long continued, and so obvious or manifest, as to show that it was
meant to be permanent; and third, that the easement shall be necessary to
the beneficial enjoyment of the land granted or retained.” See Daddona,
749 A.2d at 481. This Court in Phillippi, supra, however, did not identify
the third element as an essential element to establish an easement by
implication pursuant to the test set forth by our Supreme Court in Bucciarelli,
supra, although the third element may be considered. See Phillippi, 748
A.2d at 762 (stating, “the extent to which an easement is necessary under the
circumstances is a factor heavily weighed in determining whether an easement
should be implied”). To the extent that a conflict exists between the decisions
in Daddona, supra, and Phillippi, supra, we find the two-part test set forth
by our Supreme Court in Bucciarelli, supra, controlling.
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[t]he effect of the prior use as a circumstance in implying, upon a
severance of possession by conveyance, an easement [resulting]
from an inference as to the intention of the parties. To draw such
an inference[,] the prior use must have been known to the parties
at the time of the conveyance, or, at least, have been within the
possibility of their knowledge at that time. 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. at 448, citing RESTATEMENT (FIRST) OF PROPERTY § 476, Comment j (1944).
Although our Supreme Court never adopted Section 476 of the Restatement
(First) of Property, the Bucciarelli Court stated that courts may find the
factors for consideration identified in Section 476 “useful and persuasive in
analyzing cases.” Bucciarelli, 691 A.2d at 448 n.1. Section 476 of the
Restatement (First) of Property lists the following factors “as important in
determining whether an easement by implication exists:”
(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous
conveyance,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and the
conveyee,
(g) the manner on which the land was used prior to its
conveyance, and
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(h) the extent to which the manner of prior use was or might have
been known to the parties.
Phillippi, 748 A.2d at 762 (citation omitted); see also RESTATEMENT (FIRST) OF
PROPERTY § 476 (1944).
Here, Appellants argue the trial court ignored “critical, unrefuted
evidence” in its factual findings and, as a result, erred when it failed to find
that Appellants established an easement by implication. Appellants’ Brief at
10-18. Specifically, Appellants contend, inter alia, that Forino’s site map,
attached as an exhibit to the March 27, 2007 deed between Forino and the
Township of Spring, showed parking spaces on Appellants’ Property that could
only be accessed and utilized by traversing Yocum Institute’s Property. Id. at
10-11. Appellants argue that the site plan and the location of the parking
spaces, accessible only by means of traversing Yocum Institute’s Property,
demonstrated the use of Yocum Institute’s Property prior to the severance of
title. Id. 12-18. Appellants aver that this use of Yocum Institute’s Property
to gain access to the parking spaces was continuous, both before and after
the severance, and, thus, established an easement by implication. Id.
Yocum Institute contends the Township of Spring, its predecessor in
title, did not have actual or constructive notice of the easement by implication
at the time of severance. Yocum Institute’s Brief at 12. Yocum Institute
argues the use of its property to access Appellants’ Property at the time of
severance was “casual and did not follow a definite, certain, well-defined
route.” Id. Yocum Institute avers, “[a]t severance of title, there was no
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permanent nor obvious servitude existing upon [Yocum Institute’s] Property
for the enjoyment of [Appellants’] Property.” Id.
The trial court, in finding that Appellants failed to demonstrate an
easement by implication, held there was “no evidence of an open, continuous
and permanent use of an easement” across Yocum Institute’s property at the
time of the severance. Trial Court Opinion, 10/9/19, at 10-11. The trial court
stated,
[t]here was no specific path that vehicles used to transverse
[Yocum Institute’s Property.] It is immaterial that [Forino]
allowed it because [he] owned both parcels. No one from [the]
Township [of Spring] testified that the Township was aware of
such use of [Yocum Institute’s] Property by tenants of
[Appellants’] Property. In fact, the testimony contradicts this
knowledge because [the] Township [of Spring] approved [Yocum
Institute’s] land development plan.
[The trial] court realized that [Appellants] sought an easement by
implication and not one of necessity; however, Section 476(e) of
the Restatement [(First)] of Property designates as one of the
factors in determining the existence of an easement by
implication, the extent of necessity of the easement to the
claimant. [The trial] court made a finding of fact, [which] has not
been disputed, that [Appellants] have an entrance and exit on
their [p]roperty that provides ingress [from] and egress [to] Penn
Avenue for themselves and their commercial tenants.
Thus, in the instant case, [Appellants] failed to demonstrate the
existence of an easement by implication under the traditional test
that requires claimants to prove that at the time of the original
severance, there was an open, visible, and continuous and
permanent use of an alleged easement. [Appellants’’] and [Yocum
Institute’s] Properties were never severed and remained separate
parcels of land that were bought and sold separately. When
[]Forino owned both properties, he could do as he pleased with
the two properties. There was never an identified easement.
Drivers of vehicles simply drove over [Yocum Institute’s] Property
anywhere they pleased. After [Appellants’ Property and Yocum
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Institute’s Property] were sold separately, [the] Township [of
Spring] had no notice that people were trespassing through its
property.
Id. at 11.
An easement by implication in the instant case could only have arisen
at severance of Forino’s ownership of the two properties. Therefore, our
primary focus is on the transfer of Yocum Institute’s Property from Forino to
the Township of Spring on March 27, 2007. See Phillippi, 748 A.2d at 762.
Appellants argue that the site map that was attached as an exhibit to
the March 27, 2007 deed transferring the Yocum Institute’s Property from
Forino to the Township of Spring, a portion of which is reproduced below,
demonstrates that an easement of implication existed at the time of
severance. Appellants’ Brief at 11, 15-18.; see also N.T., 4/2/19, at Plaintiff’s
Exhibit No. 4 (Page 12 of 18).
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The record demonstrates that at the preliminary injunction hearing,
Forino testified that his tenants at Appellants’ Property would occasionally
access the parking on Appellants’ Property by crossing Yocum Institute’s
Property.6 N.T., 7/17/18, at 21. Forino did not believe that there were any
painted lines or a specific line of travel across Yocum Institute’s Property but,
rather, it was like a shopping center parking lot where drivers could cross the
parking lot using any path to get to the parking spots. Id. Forino stated that
he believed the parking spaces depicted in the site map, reproduced herein,
were consistent with the parking spaces that existed when he owned both
properties. Id. at 14. However, he was uncertain who painted the parking
space lines or when they were painted. Id. at 15. Appellants did not offer
the testimony of anyone from the Township of Spring at either the preliminary
injunction hearing or the non-jury trial who could testify about what the
Township of Spring knew or did not know about the use of the Yocum
Institute’s Property as a means of access to the parking on Appellants’
Property. See N.T., 7/17/18; see also N.T., 4/2/19. Appellants and Yocum
Institute stipulated that Appellants’ Property has its own point of ingress from
and egress to Penn Avenue. Stipulated Findings of Fact, 5/31/19, at
unnumbered page 2 ¶9.
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6This use of Yocum Institute’s Property by Forino’s tenants at the time Forino
owned both properties was presumptively permissive. See Possessky v.
Diem, 655 A.2d 1004, 1009 (Pa. Super. 1995).
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Based upon the record before us, the record supports the trial court’s
finding that the Township of Spring was unaware of the informal use of Yocum
Institute’s Property by Forino’s tenants to access parking on Appellants’
Property at the time of severance. Appellants failed to demonstrate that the
Township of Spring had actual or constructive notice of the permitted use, sub
judice, by Forino, as owner of both properties, at the time of severance.
Appellants presented no evidence of an open, visible, continuous, and
permanent use of Yocum Institute’s Property in order to give rise to actual
notice by the Township of Spring at the time of severance. Furthermore,
absent evidence of factors that would have led the Township of Spring to know
of the use or expected continuation of use after severance, such as a specific
path cars took across Yocum Institute’s Property, there was no evidence that
would give rise to the Township of Spring’s constructive notice of the use at
the time of severance.
Appellants are asking this Court to find that the site map, without any
supporting testimony, demonstrated that the Township of Spring, upon
looking at the parking spaces depicted thereon, would have had constructive
notice of the permitted use by the prior owner and the intent that this use was
to continue after severance. Even if this inference could be drawn from
simply looking at the site map and amounted to constructive notice, there is
no evidence of a defined path of use across Yocum Institute’s Property that
was intended to be an easement by implication at the time of severance.
Appellants are asking for an easement by implication over all of Yocum
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Institute’s Property, a request for which there is no record evidence to
support. The site map, alone, fails to demonstrate that the Township of Spring
knew or might reasonably have known about the use of Yocum Institute’s
Property for access to Appellants’ Property at the time of severance since
Appellants’ Property had its own means of ingress from and egress to Penn
Avenue.7
Order affirmed.8
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7 In a letter to the Township of Spring Planning Commission Members dated
September 5, 2017, the Director of Engineering and Planning, James I. Moll,
after a review of the Yocum Institute’s Preliminary/Final Land Development
Plans, offered for consideration by the Planning Commission that
The parking spaces for [Appellants’ Property] to the west of
[Yocum Institute’s Property] are oriented in such a way that
requires vehicles to cross the subject property to access them.
[Yocum Institute’s] plans for the access drive and “pick-up” area
for the pre-school will prohibit such access. [The Township of
Spring Engineering and Planning] recommend[s] that this issue
be discussed with [Appellants].
N.T., 4/2/19, at Defendant’s Exhibit No. 5. This letter, while acknowledging
the orientation of Appellants’ parking spaces as they existed in September
2017 and the potential issues Yocum Institute’s development plans posed to
accessibility of those parking spaces, does not demonstrate constructive
notice by the Township of Spring at the time of severance in March 2007.
Appellant offered no testimony from someone connected with the Township of
Spring that would have knowledge of what the Township knew or should have
known about the use of the Yocum Institute’s Property at the time of
severance in March 2007.
8 In light of our finding of record support for judgment in favor of Yocum
Institute, we need not address Appellants’ remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2020
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