Frick Lender Associates v. Duquesne Light ( 2021 )

J-A24036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRICK LENDER ASSOCIATES, L.P., A : IN THE SUPERIOR COURT OF
PENNSYLVANIA LIMITED : PENNSYLVANIA
PARTNERSHIP :
:
Appellant :
:
v. :
:
DUQUESNE LIGHT COMPANY : No. 369 WDA 2020
Appeal from the Judgment Entered February 20, 2020
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD17-009014
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 10, 2021
Frick Lender Associates, L.P. (“Frick”), appeals from the Order granting
Duquesne Light Company’s (“Duquesne”) Motion for Summary Judgment.1
We affirm.
The trial court summarized the factual and procedural history of this
appeal as follows:
[Frick] and [Duquesne] have been in a dispute over the
maintenance of certain underground electrical vaults since 2016.
[Frick] is the owner of the Frick Building, located in downtown
Pittsburgh (the “City”)[,] and [Duquesne] provides electrical
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1 We note that the Order granting Duquesne’s Motion for Summary
Judgment disposes of all of the claims between all of the parties. See
McCutcheon v. Philadelphia Electric Co., 788 A.2d 345 (Pa. Super. 2002)
(stating that “[a]n appeal will lie only from a final order unless otherwise
permitted by statute or rule.”); Pa.R.A.P. 341(b)(1) (stating that “[a] final
order is any order that disposes of all claims and of all parties.”).
Accordingly, the Order is final and appealable.
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service to the building. [The electrical vaults house the
equipment that Duquesne uses to power the Frick Building.
Duquesne supplies, operates, and maintains the electrical
equipment.] The subject vaults are located under the sidewalk
on the side of the Frick Building that is bounded by Grant Street
[(the “Frick Building-Grant Street Sidewalk”)].
[Frick’s] predecessor built the vaults in or around 1958.
Certain work has been performed on the vaults over the years
by [Frick] and its predecessor. In 1984, the vault roof was
reinforced. The roof was altered again in 1987 due to the
installation of a handicap ramp.
On or about January 25, 2011, a portion of the covers of
the vaults collapsed. [Frick] made the necessary repairs to the
vaults. The underlying dispute arose over additional repairs that
were needed. In March [] 2016, [Duquesne] informed [Frick]
that it had concerns about the structural integrity of the vaults.
As a result, [Frick] hired Brace Engineering to perform an
inspection. [Duquesne’s] representatives then met with [Frick’s]
engineer. After examining the vaults, the engineer
recommended that the vaults either be repaired or replaced due
to poor and aging condition. [Duquesne] received structural
plans from Brace Engineering on January 17, 2017. Both parties
claimed the other is responsible for the repair costs. The parties
could not reach a resolution as to who own[s] the vaults and is
responsible for the costs.
On June 21, 2017, [Frick] filed its Complaint for
Declaratory Judgment and Injunctive Relief[,] asking the [trial
c]ourt to determine whether [Duquesne] is responsible for the
repair costs. [Duquesne] timely filed its Answer and New
Matter, asserting a failure to state a claim, course of dealings,
waiver, estoppel, adequate remedy at law[,] and the doctrine of
unclean hands[,] given [Frick’s] alleged long-standing failure to
make the necessary repairs.
On February 13, 2019, the parties entered into an
agreement to complete the repairs and share equally in the cost.
They further agreed that the party found responsible by the
[c]ourt would refund the opposing party its portion of the costs
paid upon entry of a final order. The parties also agreed to
postpone the trial[,] since there were no disputed issues of
material fact and only a single legal issue to be ruled upon by
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the court. Accordingly, both parties moved for summary
judgment.
After consideration of the parties’ briefs and oral
argument, the [trial c]ourt granted [Duquesne’s] Motion for
Summary Judgment and denied [Frick’s] Cross[-]Motion for
Summary Judgment.
Trial Court Opinion, 4/24/20, at 1-3 (heading and some paragraph breaks
omitted). Frick filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
On appeal, Frick raises the following questions for our review:
I. Did the trial court err in granting summary judgment for
[Duquesne,] as the undisputed facts demonstrate that [Frick]
has no legal ownership of the electrical vaults?
II. Did the trial court err in granting summary judgment for
[Duquesne] by determining that the 1856 case of [Paul v.
Carver, 26 Pa. 223 (Pa. 1856),] is applicable to this matter?
III. Did the trial court err in determining that [Frick] would be
responsible for the maintenance of the electrical vaults even if
[Frick] owns to the center of Grant Street?
IV. Did the trial court err in finding that the lack of a “service
agreement[,”] and work allegedly performed by [Frick’s]
predecessor in title were determinative of [Frick’s] ownership of
the electrical vaults?
Brief for Appellant at 3.
Our standard and scope of review is well settled:
[S]ummary judgment is only appropriate in cases where there
are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. When considering a
motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most
favorable to the non-moving party and must resolve all doubts
as to the existence of a genuine issue of material fact against
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the moving party. An appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. Because the claim regarding whether there are
genuine issues of material fact is a question of law, our standard
of review is de novo and our scope of review is plenary.
Nicolaou v. Martin, 195 A.3d 880, 891-92 (Pa. 2018) (citations omitted).
We will consider Frick’s first two claims together, as they are related.
In its first claim, Frick argues that the electrical vaults are located outside of
the boundaries of its property and that Duquesne owns the property on
which the electrical vaults are located. See Brief for Appellant at 12-16.
Frick states that the deed to Frick’s property, Frick’s title policy, and a
survey that Frick had obtained all indicate that its property ends at the edge
of the Frick Building-Grant Street Sidewalk, and that the vaults are located
under the Frick Building-Grant Street Sidewalk. Id.2
In its second claim, Frick argues that the trial court erred in applying
our Supreme Court’s decision in Paul to the instant case. Brief for Appellant
at 17-21. Frick claims that the holding in Paul does not apply to the instant
case because (1) Paul only applies where a street has been vacated, and
Grant Street has not been vacated, id. at 17-18; (2) Frick’s deed contains a
more detailed description of the property boundaries than the deed in Paul,
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2 Frick also claims that Duquesne currently possesses the “right to occupy”
the property on which the vaults are located, by way of a City of Pittsburgh
Ordinance. Brief for Appellant at 15-16. We will address this claim with
Frick’s third claim, which makes the same argument.
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id. at 18-20; (3) the Paul Court differentiates its facts from a case where
the subject property is laid out in lots, and Frick’s property is laid out in lots.
Id. at 20. Frick also claims that the trial court erred in finding that Paul
created a legal presumption that a deed description specifying roads as the
property boundaries transfers ownership of the property to the middle of the
specified streets, and the party that opposes this presumption has the
burden to produce evidence to overcome said presumption. Id. at 21.
We begin with an analysis of our Supreme Court’s landmark Opinion in
Paul, regarding an ejectment dispute between Alexander B. Carver
(“Carver”) and James W. Paul (“Paul”). See Paul, 26 Pa. at 223. In 1827,
Tidmarsh Street was created in Moyamensing Township, Philadelphia
County. Id. Tidmarsh Street was generally oriented in an east to west
direction, and was approximately 50 feet wide. Id. Between 1827 and
1850, the property on the northern side of Tidmarsh Street, between 12th
and 13th Streets, was sold several times. Id. Relevantly, in 1836, “Mrs.
Brinton,”3 the wife of John H. Brinton, conveyed the property (hereinafter
the “Brinton Property”) to William Perry. Id. The deed (the “Brinton-Perry
Deed”) described the Brinton Property as “extending along the east side of
Thirteenth [S]treet one hundred and fifty-four feet more or less to Tidmarsh
[S]treet, thence south-easterly, along the northerly side of the said
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3 The Paul opinion does not provide Mrs. Brinton’s first name.
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Tidmarsh [S]treet, four hundred and one feet more or less to Twelfth
[S]treet.” Id. (emphasis in original; some quotation marks omitted). Perry
purchased the Brinton Property with a mortgage that was held by Mrs.
Brinton. Id.
In 1847, the commissioners of Moyamensing obtained a court
judgment against Perry, and acquired the Brinton Property in satisfaction of
the judgment. Id. at 223-24. Instead of describing the Brinton Property as
running “along the northerly side” of Tidmarsh Street, as described in the
Brinton-Perry Deed, this deed described the Brinton Property as “beginning
at the south-west corner of Christian and Twelfth [S]treets, and extending
southward, along the west side of Twelfth [S]treet, 248 feet 3½ inches, to
the centre of old Tidmarsh [S]treet (vacated or about to be vacated), thence
extending westward, along the centre of old Tidmarsh [S]treet aforesaid,
402 feet to Thirteenth [S]treet.’” Id. at 224 (emphasis in original).
Moyamensing Township conveyed the Brinton Property to Sam R. Blair, who
later conveyed it to “Rockhill.” Id. After Tidmarsh Street was vacated in
1850, Rockhill entered upon the Brinton Property, including the 25 foot by
402 foot strip that had previously made up the northern half of Tidmarsh
Street, between 12th and 13th Streets (the “disputed parcel”). Id. At some
point thereafter, Rockhill sold the disputed parcel to Paul. Id.
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In 1853, Mrs. Brinton executed a levari facias4 on the Brinton Property,
and sold it to Carver. Id. at 223. Carver filed an ejectment action against
Paul, alleging that he obtained title to the disputed parcel by way of his 1853
purchase of the Brinton Property. Id. at 224. A jury found in favor of
Carver, and Paul appealed to our Supreme Court. Id.
Our Supreme Court’s analysis in Paul was limited to whether Carver’s
deed to the Brinton Property, the Brinton-Perry Deed, included the disputed
parcel.5 See id. at 224-27. The issue was whether the language that
described the property boundary as “along the northerly side of the said
Tidmarsh [S]treet” also included the disputed parcel, which spanned from
the edge of the northerly side of Tidmarsh Street to the center of Tidmarsh
Street. Id. Our Supreme Court found in favor of Carver, holding that the
Brinton-Perry Deed included the disputed parcel. Id. at 223. The Court
stated that
[w]here a public street or highway is called for as a boundary or
monument in a deed, it is used as an entirety to the centre of it,
and to that extent the fee passes. In such cases, it will require
an express exception in the deed, or some clear and unequivocal
declaration, or certain and immemorial usage, to limit the title of
the grantee to the edge of the street. And although the
measurement of the distance set forth in the conveyance, brings
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4 Levari facias is defined as “[a] writ of execution ordering a sheriff to seize a
judgment debtor’s goods and income from lands until the judgment debt is
satisfied.” Levari Facias, BLACK’S LAW DICTIONARY (11th ed. 2019).
5The Court does not address the remainder of the Brinton Property, i.e., the
portion of the property that was located to the north of the disputed parcel.
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the line only to the side of the street, this is not sufficient to
control the rule of law which carries the title to the centre of it.
Paul, 26 Pa. at 223 (paragraph breaks omitted). Notably, the Paul Court
held that the description used in the Brinton-Perry Deed, which included
courses and distances, and references to the surrounding streets, was not a
clear and unequivocal declaration that the property ended at the edge of
Tidmarsh Street. Id.; accord Cox v. Freedley, 33 Pa. 124, 127 (1859);
Spackman v. Steidel, 88 Pa. 453, 458 (1879); Transue v. Sell, 105 Pa.
604, 609 (1884); Neely v. City of Phila., 61 A. 1096, 1098 (Pa. 1905);
Willock v. Beaver Valley R. Co., 72 A. 237, 238 (Pa. 1909); Saccone v.
W. End Tr. Co., 73 A. 971, 972 (Pa. 1909); Oliver v. Ormsby, 73 A. 973,
975 (Pa. 1909); Rahn v. Hess, 106 A.2d 461, 464 (Pa. 1954). Moreover,
Paul and its progeny do not state that a property owner only takes
ownership of the property underlying a street after the street is vacated.
Id.Here, Frick’s deed describes its property boundaries, in relevant part,
as follows:
Beginning at the point formed by the intersection of the
southwesterly line of Fifth Avenue (60.07 feet wide) and the
Northwesterly line of Grant Street (80.109 feet wide); thence
along the Northwesterly line of Grant Street, South 30˚ 56’ 40”
West, a distance of 226.12 feet to a point….
Deed, 3/24/05 (emphasis added).
Similar to Paul, Frick’s deed calls for its property to extend “along” a
street—specifically, Grant Street—and describes the courses and distances of
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the boundary lines with reference to the surrounding streets. See Paul, 26
Pa. at 223; Deed 3/24/05. We conclude that the evidence, viewed in a light
most favorable to Frick as the non-moving party, establishes that Frick’s
property line extends to the center of Grant Street, and therefore, Frick
owns the property on which the electrical vaults are located. See Paul,
supra. Accordingly, Frick’s first two claims fail.
In its third claim, Frick argues that even if its property line extends to
the center of Grant Street, Duquesne is still responsible for repair of the
electrical vaults. See Brief for Appellant at 22-24. Frick claims that the
electrical vaults fall within the boundaries of an 80 foot right-of-way, which
includes Grant Street and the Frick Building-Grant Street Sidewalk (the
“Grant Street right-of-way”). Id. at 15-17; 22-24. Frick states that a City
of Pittsburgh Ordinance, created in 1904 by S.C. Bill Number 126, provides
Duquesne with the legal right to occupy the Grant Street right-of-way. Id.
“Like statutes, the primary objective of interpreting ordinances is to
determine the intent of the legislative body that enacted the ordinance.
Where the words in an ordinance are free from all ambiguity, the letter of
the ordinance may not be disregarded under the pretext of pursuing its
spirit.” Bailey v. Zoning Bd. of Adjustment of City of Phila., 801 A.2d
492, 502 (Pa. 2002) (citations omitted).
Here, Pittsburgh City Ordinance S.C. Bill No. 126 describes
Duquesne’s property rights as
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the right to enter upon the streets, alleys and highways of the
City of Pittsburgh, for the purpose of erecting, constructing,
laying, maintaining, operating, and using its wires, cables, and
conductors upon, through, along, under and over said streets,
alleys, and highways.
PITTSBURGH, PA., S.C. BILL NO. 126 (1904), https://archive.org/details/Pgh
municipalrecord1904/page/n201/mode/2up (emphasis added).
The plain language of the Ordinance grants Duquesne the right to
enter the property for specific purposes. See id. The Ordinance does not
provide Duquesne with ownership of the property, or the responsibility to
maintain the property. Id. The only maintenance responsibility the
Ordinance imposes upon Duquesne is the duty to maintain “its wires, cables,
and conductors” that are located within the right-of-way. Id. Frick has not
alleged that the electrical vaults are “wires,” “cables,” or “conductors.” We
conclude that Pittsburgh City Ordinance S.C. Bill No. 126 does not grant
Duquesne ownership of, nor the responsibility to maintain, the electrical
vaults. See Bailey, supra. Accordingly, Frick’s third claim fails.
In its fourth claim, Frick argues that Duquesne has not produced any
evidence to prove that Frick is responsible for maintenance of the electrical
vaults. See Brief for Appellant at 24-26.
Here, as we have determined that Frick owns the property on which
the vaults are located, Duquesne would only be responsible for maintaining
the vaults if it has assumed or been assigned ownership of, or responsibility
to maintain, the vaults. The only evidence submitted by Frick, on these
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grounds, is the City of Pittsburgh Ordinance. Because we have determined
that the City of Pittsburgh Ordinance does not assign ownership of, or the
responsibility to maintain, the electrical vaults, this claim fails.
Accordingly, because the evidence, viewed in a light most favorable to
Frick as the non-moving party, establishes that Frick owns the property on
which the vaults are located, and that Duquesne was not assigned ownership
of or responsibility to maintain the vaults, we conclude that the trial court
did not abuse its discretion in granting Duquesne’s Motion for Summary
Judgment. See Nicolaou, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2021
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