Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass'n

J-A22035-18
2018 PA Super 281CARLINO EAST BRANDYWINE, L.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDYWINE VILLAGE :
ASSOCIATION AND ASSOCIATED :
WHOLESALERS, INC. ----------------- : No. 3388 EDA 2017
----------------------------------------- :
-------------------------- :
BRANDYWINE VILLAGE ASSOCIATES :
:
:
v. :
:
:
CARLINO EAST BRANDYWINE, L.P. :
AND CHRISTINA B. KETTLETY AND :
KATHERINE W. KETTLETY, CO- :
ADMINISTRATORS OF THE ESTATE :
OF FRANK WATTERS; AND :
CHRISTINA B. KETTLETY AND :
KATHERINE W. KETTLETY JOINTLY :
AS CO-EXECUTORS OF THE ESTATE :
OF BEATRICE S. WATTERS, DEC. :
:
:
APPEAL OF: BRANDYWINE VILLAGE :
ASSOCIATES :
Appeal from the Order Entered September 20, 2017
In the Court of Common Pleas of Chester County Civil Division at No(s):
2011-05037-MJ,
2011-05189-MJ
BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 16, 2018
Brandywine Village Associates (hereinafter “BVA”) appeals from the
Order entered in the Court of Common Pleas of Chester County on September
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A22035-18
20, 2017, granting the motion of Carlino East Brandywine, L.P., Christina B.
Kettlety, Katherine W. Kettlety, Co-Administrators of the Estate of Frank
Watters, and Christina B. Kettlety, Katherine W. Kettlety, Co-Executors of the
Estate of Beatrice S. Watters, Deceased (hereinafter collectively ”Carlino”)
seeking summary judgment and the dismissal of BVA’s Declaratory Judgment
action.1 Following our review, we affirm.
Various collateral disputes involving BVA and Carlino and/or other
entities have been appealed to and either decided by or are pending in both
____________________________________________
1 In its Action for Declaratory Judgment, BVA requested that the trial court
make certain declarations regarding various easements and rights-of-way that
Carlino’s predecessors-in-title had granted to BVA to install, maintain and use
a road for ingress and egress to BVA’s property, as well as award counsel fees,
interest and costs. See Action for Declaratory Judgment at ¶¶8, 99. The
Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, provides that courts of
record have the power to declare the rights, status, and other legal relations.
As our Supreme Court has observed:
Generally speaking, appellate courts have jurisdiction to entertain
appeals from final orders entered at the trial court level.
Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d 602,
608 (2013). Ordinarily, a final order disposes of all claims and of
all parties. Pa.R.A.P. 341(b)(1). However, Pa.R.A.P. 311(a)(8)
states that an “appeal may be taken as of right and without
reference to Pa.R.A.P. 341(c) from ... [a]n order that is made final
or appealable by statute or general rule, even though the order
does not dispose of all claims and of all parties.” Importantly,
Section 7532 of the [Declaratory Judgment Act] provides that
courts of record have the power to declare the rights, status, and
other legal relations and that “such declarations shall have the
force and effect of a final judgment or decree.” 42 Pa.C.S. § 7532.
Herein, the trial court’s September 20, 2017, Order effectively denied
BVA’s claim for declaratory relief. Thus, the Order is appealable. Id.
-2-
J-A22035-18
this Court and the Commonwealth Court.2 The instant appeal arises from two,
separate declaratory judgment complaints filed by BVA and Carlino against
____________________________________________
2 The Commonwealth Court rightly described one of these appeals as
“confusing.” See Brandywine Vill. Assocs. v. E. Brandywine Twp. Bd. of
Supervisors, No. 164 C.D. 2017, unpublished memorandum at 1 (Pa.
Commw. Filed Jan. 5, 2018). Also, in our unpublished memorandum decision
filed on October 20, 2014, wherein we concluded sua sponte that Carlino’s
petition for specific performance was interlocutory and, therefore, not
appealable, we noted that “multiple procedural irregularities, contradictory
trial court orders, and the absence of may documents from the certified record
have hampered our review of this case.” See Carlino E. Brandywine, L.P.
v. Brandywine Vill. Assocs., No. 2558 EDA 2013, unpublished
memorandum 1 (Pa.Super. filed Oct. 20, 2014).
-3-
J-A22035-18
each other.3 The relevant facts and procedural history which led to the trial
court’s September 20, 2017, Order as stated by the trial court are as follows:4
____________________________________________
3 We note with amusement that counsel for the parties stated the following on
the record:
[Counsel for Carlino]: I—I appreciate what Judge Nagle is doing
because we have all seen this so many times what the appellate
courts do. They sit there, and all of a sudden they say you guys
didn’t know what you were doing after you spent God knows how
much time doing it.
[Counsel for BVA]: They did it last time.
[Counsel for Carlino]: I –now I have something to agree with you
on.
N.T. Hearing, 3/12/15, at 37.
The fact that BVA has attached to its appellate brief trial court opinions
and an order which do not pertain to the order from which Appellant is now
appealing, but rather concern the July 18, 2017, Order denying the Land Use
Appeal and affirming the decision o the East Brandywine Township Board of
Supervisors, see “Appendix “B” and Appendix “C” to Brief for Appellant,
evinces that, these statements to the contrary, counsel are not infallible,
despite their familiarity with the case.
4 The Commonwealth Court’s most recent decision concerning BVA’s
preliminary objections in response to East Brandywine Township’s declaration
of taking provides a detailed recitation of facts and procedural history some
of which also is implicated herein. See Condemnation of Fee Simple Title
to 0.069 Acres of Vacant Land & Certain Easements Owned by
Brandywine Vill. Assocs., No. 1409 C.D. 2017, unpublished memorandum,
at 1-3 (Pa.Commw. filed July 2, 2018), reargument denied, (Aug. 14, 2018).
In that case, BVA, appealed the Order of the Court of Common Pleas of
Chester County overruling its preliminary objections in response to East
Brandywine Township’s declaration of taking to condemn the southeastern
edge of a 10.46 acre parcel of property for the construction of a connector
road to link the parcel with Route 322 (Horseshoe Pike), on which it fronts,
-4-
J-A22035-18
DECISION
[Carlino], defendants in [BVA’s] Declaratory Judgment
action, Docket No. 11-05189-MJ, seek summary judgment and
dismissal of BVA’s Complaint. [Carlino’s] summary judgment
motion (the “Motion”) was filed on October 29, 2015. BVA filed an
Answer on December 16, 2015.
Carlino filed a separate declaratory judgment action,
entitled Carlino East Brandywine L.P. v. Brandywine Village
Associates et al, Docket No. 2011-05037-MJ) on May 11, 2011.
To distinguish the cases, plaintiff in the latter action is identified
as “Carlino”. The actions were consolidated on September 22,
2011. In Carlino’s action, on April 30, 2015, BVA filed a “Brief on
the Declaratory Judgment Interpretation of its Easements”, to
which [ ] Carlino filed a “Response in Opposition”. The
consolidated cross declaratory judgment complaints and their
attached Exhibits are appropriate for our consideration respecting
the Carlino Defendant’s Motion. In its case, Carlino motioned for
summary judgment, which we denied on October 10, 2012.
History of the Case:
At issue in these declaratory judgment actions is the
construction of a 1994 Cross Easement Agreement (the
“Agreement”) between BVA and the late Frank and Beatrice
Watters, who originally owned land on Horseshoe Pike (SR322) in
East Brandywine Township, Chester County, subsequently divided
into contiguous parcels of 11.535 acres and 10.645 acres. The
Watters conveyed the 11.535 acres parcel to BVA on June 24,
1994, and contemporaneously entered into the Agreement with
the Watters, pursuant to which the parties granted and conveyed
to each other certain cross easements to facilitate development of
the parcels. As alleged in BVA’s May 16, 2011[,] Complaint, under
the Agreement’s terms, the Watters granted BVA the following
easements over the Watters’ retained 10.645 acre parcel,
described in BVA’s Declaratory Judgment Complaint as: (1) a
“perpetual easement” on the Watters’ Parcel, 0.460 one-hundreds
of an acre in area, “in common with” the Watters’ Parcel” providing
____________________________________________
and North Guthriesville Road. The Commonwealth Court ultimately affirmed
the trial court’s Order overruling BVA’s preliminary objections.
-5-
J-A22035-18
access, egress and ingress to BVA’s parcel; (2) a 2.282 acre
sanitary sewer easement pursuant to which sewage from BVA’s
parcel would be treated and disposed of in an on-site package
treatment plant located on the Watters’ Parcel; and (3) an
irrevocable stormwater basin and drainage easement 0.540 one-
hundreds of an acre in area, intended to accommodate the
acceptance of surface stormwater originating on BVA’s parcel. BVA
Complaint, Exhibit “A”. The approved subdivision plan for the
Brandywine Village shopping center shows that the stormwater
basin was also designed to accept directed water runoff from
BVA’s access private road from Horseshoe Pike to its shopping
center. BVA’s April 30, 2015 Brief on the Declaratory Judgment
Interpretation of its Easements, Exhibit “C”.
Pursuant to a development plan approved by East
Brandywine Township, in 1995 BVA constructed the Brandywine
East Towne Center on its parcel, consisting of a food market,
various ancillary stores, a bank and a Burger King. Pursuant to the
Cross Easement Agreement, BVA constructed the following
facilities on the Watters’ Parcel to service its shopping center: (1)
an on-site package sewage treatment plant; (2) a 45 feet wide
access road providing access to its shopping center over the
Watters’ Parcel, and (3) a drainage basin encompassing 0.054
one-hundreds of an acre and assorted spillways to accepts surface
water drainage from BVA’s access driveway and, allegedly, from
its Towne Center shopping center. BVA’s Complaint, pp.32-42 &
Exhibits “D” & “E”. The Cross Easement Agreement also obligated
the Watters to grant such other easements as might be necessary
to “facilitate the proper construction and development of the
buildings and improvements shown on the Plan” (BVA’s approved
Plan). No such easements are identified in BVA’s Complaint and
none have been implemented.
Carlino acquired an equitable interest in the remaining
Watters’ Parcel from their Estates, and submitted a preliminary
land development plan to the Township on May 27, 2010. The
lengthy history of Carlino’s efforts to secure land development
approval is discussed herein where necessary to an understanding
of the instant controversy. The Township Supervisors conditionally
approved the latter preliminary plan on April 8, 2011[,] and
Carlino accepted the conditions imposed, and on July 20, 2011[,]
entered into a development agreement with the Supervisors
memorializing various undertakings to which Carlino and the
Township agreed. Among them, the Supervisors required Carlino
to construct a road for public use on and through both the Watters’
Parcel and a contiguous property now owned by the L&R
-6-
J-A22035-18
Partnership to link Horseshoe Pike and nearby Guthriesville Road.
L&R is not a party to the declaratory judgment actions. Carlino
then submitted a final land development plan, which was
approved by the Supervisors on August 4, 2011[,] (the “2011
Approval”). We granted BVA’s appeal and overruled the Board’s
decision for reasons not pertinent to the instant case; however,
after several iterations of the plan, the Supervisors ultimately
conditionally approved Carlino’s revised preliminary plan on April
20, 2016, BVA and L&R appealed, and we affirmed the Board on
July 18, 2017. Chester County Docket No. 2016-04843. The Board
has subsequently approved Carlino’s final plan, and BVA’s appeal
from that approval is now pending in this court before the
undersigned.
As noted, from the inception of Carlino’s land development
applications, the Supervisors insisted that a public road, identified
on Carlino’s plans as Brandywine Village Drive, be constructed by
Carlino through the Watters’ Parcel to connect Route 322 and
nearby North Guthriesville Road (the “Connector Road”). The
Supervisors’ intention to connect the latter roadways preceded
Carlino’s land development application. While the Supervisors
have subsequently taken the position that, in lieu of constructing
the road, Carlino could pay upwards of $2 million dollars to finance
the Township’s construction of the road, the fact remains the
Connector Road was going to happen. In the development
agreement accompanying the Carlino’s land development plan
approval, the Supervisors agreed, if necessary, to condemn BVA’s
access and stormwater drainage/detention basin easements at
issue to facilitate construction of the Connector Road by exercising
its power of eminent domain at Carlino’s sole cost and expense.
Carlino has agreed to construct the Connector Road and dedicate
it to the Township upon completion of its construction. Carlino’s
Response in Opposition, Exhibit “G”.
From the inception of its shopping center, BVA has had
access to its shopping center from SR322 (Horseshoe Pike) over
a paved private road located on the Watters’ Parcel within the
access easement granted to BVA in the Cross Easement
Agreement; however, under Carlino’s approved development
plans, BVA’s access easement will be replaced by relocating such
access over and through the Connector Road, to be constructed
on the East side of the Watters’ Parcel. BVA contends that such
disruption of its existing access would require a modification of
the access easement itself, which is prohibited by the terms of the
Cross Easement Agreement and by applicable law. While it is
correct that the Cross Easement Agreement describes the access
-7-
J-A22035-18
easement as “perpetual”, the easement has been condemned by
the Township. Under Carlino’s approved development plan, BVA
will have continued and unimpeded access to its property over the
present access road pending construction of the Connector Road
and, thereafter over the Connector Road. BVA’s contention has
been rendered moot by the Township’s condemnation of BVA’s
access easement. As now configured, the proposed Connector
Road also extends over a portion of the existing detention basin
on the Watters’ Parcel, which accepts surface water drainage from
BVA’s existing private road. Carlino argues that BVA has
abandoned the detention basin and drainage easement by grading
BVA’s Towne Center to divert surface water drainage away from
the Watters’ Parcel to underground stormwater management
facilities located on BVA’s property. The described detention basin
located with BVA’s second easement will be eliminated by
construction of the Connector Road, a fact BVA admits. BVA
Complaint, p. 11, paragraph 69. BVA raises several arguments in
opposition to Carlino’s abandonment argument, addressed
hereinafter. We find the issue is moot, considering the Township’s
condemnation of the detention basin and drainage easement.
Throughout this litigation and in the corresponding land
development cases, BVA has vigorously contended that Carlino’s
proposed commercial development of its property unlawfully
interferes with and impairs the contractual and vested property
rights to which it is entitled by virtue of the 1994 Cross Easement
Agreement. Thus it is that BVA filed the instant declaratory
judgment complaint in response to Carlino’s initial land
development application “to prevent Defendant’s unwarranted
interference with the operation and maintenance of the easements
granted to Plaintiff across property owned by the Defendants…”.
BVA’s Complaint, p. 3, paragraph 11. BVA has subsequently
argued that its position is bolstered by an earlier June 13, 1990
easement agreement with the Watters, which we conclude is
superseded by the 1994 Agreement; however, BVA’s complaint
fails to seek our construction of the earlier easement agreement.
The relief BVA seeks in its declaratory judgment complaint
includes declarations that the Cross Easement Agreement is
irrevocable and cannot by modified without its consent; that only
the existing access drive located with the access easement may
be modified, and then only with BVA’s consent; and that the said
Agreement precludes Carlino from implementing a development
plan that modifies or interferes with BVA’s easements. BVA’s
Complaint, p. 15.
-8-
J-A22035-18
In order to sustain an action under the Declaratory
Judgment Act, a plaintiff must demonstrate an “actual
controversy” indicating imminent and inevitable litigation, and a
direct, substantial and present interest. Avrich by Avrich v.
General Accident Ins., 36 Pa. Super. 248, 251, 532 A.2d 882, 884
(1987). Because an action for declaratory judgment cannot be
sustained until these elements can be shown exist, it follows that
a cause of action for declaratory judgment does not arise until
such “actual controversy” exists. Petition of Malick, 133 Pa.Super.
53, 58-60, 1 A.2d 550, 553-54 (1938). The prime purpose of the
Declaratory Judgment Act is to speedily determine issues that
“would….be delayed, to the possible injury of those interested if
they were compelled to wait the ordinary course of judicial
proceedings.” Osram Sylvania Products, Inc. V. Comsub
Commodities Inc., 845 A.2d 846(Pa. Super. 2004), citing Gambo
v. South Side Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925,
927 (1940).
After BVA filed its complaint, two events intervened, which
have direct bearing on BVA’s right to declaratory relief. First,
under the terms of the Cross Easement Agreement, BVA is
required to connect its shopping center to the public sewer system
when public sewer becomes available to serve BVA’s shopping
center. On January 11, 2013[,] Carlino filed a Petition at the
instant consolidated docket seeking Specific Performance of the
mandatory connection provision of the Cross Easement
Agreement. By Opinion and Order issued on August 15, 2013, we
enforced those provisions that mandated BVA’s connection of its
property to the East Brandywine Municipal Authority’s public
sewer system. Carlino’s Response in Opposition, Exhibit “E”. After
much delay in doing so, BVA has connected its shopping center to
the public sewer system, has disconnected said property from the
on-site septic system constructed on the Watters’ Parcel, and has
dismantled and decommissioned its on-site system, all pursuant
to PADEP regulations. Carlino’s Response in Opposition, Exhibit
“H”.
Second, on November 17, 2014, East Brandywine Township
filed a Declaration of Taking in which it condemned BVA’s access
easement and its stormwater basin and drainage easement
granted to BVA by the Cross Easement Agreement, discussed
more fully herein below. BVA filed preliminary objections, and
following multiple hearings the objections were overruled on
September 7, 2017. On March 4, 2015, Carlino filed a
memorandum to the consolidated captioned docket, contending
that the latter events rendered BVA’s declaratory judgment action
-9-
J-A22035-18
moot. We declined to act on Carlino’s Motion or on BVA’s
declaratory judgment complaint, considering BVA’s pending
preliminary objections to the Declaration of Taking, more
specifically described in our findings of fact below. N.T. 3/12/15
Hearing, pp. 18 et seq.
Subsequently, in its Declaratory Judgement Brief filed on
April 30, 2015[,] and its Answer to Carlino’s summary judgment
motion, BVA opined that its ownership of the easements remained
unaffected by both the Township’s taking of its easements and the
connection of its Towne Center shopping center to the Township
Municipal Authority’s public sewer system. We discuss and dispose
of these contentions herein below. On May 18, 2015, Carlino filed
of record its “Response in Opposition to BVA’s Declaratory
Judgment Brief[”] (“Carlino’s Oppositional Response”). Attached
to both documents are multiple exhibits from which the parities
advance their respective positions. Among these are copies of the
Cross Easement Agreement and the Township’s Declaration of
Taking, which include metes and bounds descriptions of the
easements taken, together with graphic plans of the areas taken,
and other plans and documents discussed below. Accordingly, the
record in the instant case contains all of the evidence required to
allow us to decide the instant summary judgment motion.
We conducted a conference with counsel and the parties on
September 16, 2015[,] during which we asked the parties to
identify any additional witness testimony or documents they
believed are required before this court has a complete record from
which to make a decision on the instant Motion. Neither party
identified any such additional evidence. Accordingly, we conclude
that the Motion is now ripe for decision.
Trial Court Decision, filed 9/20/17, at 1-9.
In its September 20, 2017, Decision, the trial court made numerous
findings of fact. Based upon those findings and its accompanying reasoning
in support thereof, the trial court entered its Order granting Carlino’s motion
for summary judgment and dismissing BVA’s Action for Declaratory Judgment.
Trial Court Decision, filed 9/20/17, at 10-16, 23.
On October 16, 2017, BVA filed a notice of appeal with this Court. The
trial court ordered BVA to file a concise statement of errors complained of on
- 10 -
J-A22035-18
appeal within twenty days on October 19, 2017, and BVA did so on November
6, 2017. That statement spans four pages and raises six issues; while the
first two issues include four subparts, the fourth issue contains eight subparts,
each of which asserts a separate allegation of error as follows:
1. The trial court committed an abuse of discretion and or error
of law by striking evidence and/or failing to consider evidence
under the following circumstances:
a. in striking the Affidavit of John Cropper in its Order of
April 19, 2016.
b. in striking BVA’s Praecipe to incorporate testimony and
in granting Carlino a partial [s]ummary judgment in its
Order of February 12, 2016.
c. in its Order of May 2, 2016[,] denying BVA’s Motion for
Reconsideration of its February 12, 2016[,] Order.
d. failing to find that the Cross Easement Agreement binds
Carlino to provide for access for pedestrians and includes
the right to curbing and signage.
2. The [c]ourt erred as a matter of law in:
a. that the evidence presented by [BVA] significantly
overcame any basic presumption in favor of Carlino and
upon which judgment could be entered for Carlino.
b. failing to uphold the requirement of the third “WHEREAS”
clause of this recorded agreement that expressly states
that planning would be for the “proper and uniform”
development of the entire 20 acres.
c. Granting Carlino’s summary judgment motion because
there were genuine issues of material fact outstanding as
[BVA] presented substantial evidence of [Carlino’s]
violation of its ongoing Easement obligations pursuant to
the Cross Easement Agreement including its Storm water
basin easement, drainage easement and access
easements which the [c]ourt refused to adjudicate.
d. Awarding Carlino Attorney’s fees and refusing [BVA’s]
request for Attorney’s fees.
3. The [c]ourt erred as a matter of law and committed an
abuse of discretion in waiting six years to decide the claims of
[BVA] and then asserting they were moot due to the decision
in the Declaration of Taking case.
4. The [c]ourt erred factually and as a matter of law in:
- 11 -
J-A22035-18
a. finding that BVA violated the Cross Easement
Agreement’s condition subsequent, as there was no
available publicly operated sewer system in East
Brandywine Township.
b. finding that the Cross Easement Agreement required
Brandywine to decommission and remove the POTW from
the Watters’ property.
c. asserting it had jurisdiction to alter a DEP Permit terms
and conditions.
d. failing to find that the Cross Easement Agreement bound
Carlino to maintain BVA’s easements and does not allow
BVA to modify, terminate or alter Carlino’s easements as
described therein without [Carlino’s] consent[.]
e. failing to find that Carlino and the Township acted
conspiratorially to the detriment of [BVA] by planning a
development in direct violation of Carlino’s easement
agreements encouraged and approved by the Township
with knowledge aforethought.
f. failing to find that the contractual agreement between
Carlino and the Township executed August 20, 2014
(“Memorandum of Understanding”) was an illegal
contract that openly violated Carlino’s easement
obligations.
g. failing to find that Carlino violated the Cross Easement
Agreement by proposing to alter the access drive with
[BVA’s] consent.
h. Failing to find that [BVA] continued to possess post
Condemnation, its easements as a license from the
Township and by failing to adjudge Carlino’s violation of
those easements.
5. The [c]ourt erred factually and as a matter of law in failing
to find that Carlino was bound by the Covenants granted to
BVA by the June 13, 1990[,] Agreement which the [c]ourt knew
were of record in the Brandywine 1994 Recorded plan.
6. The trial court capriciously disregarded the evidence.
Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925 at
1-3.
In its brief, BVA presents six issues for this Court’s review:
- 12 -
J-A22035-18
A. Whether the Lower Court’s Order on the Motion for Specific
Performance and rewriting the Cross Easement Agreement to
require Brandywine to decommission the onsite POTW[5] was
contrary to law?
B. Whether the Lower Court erred by granting Carlino’s
Summary Judgment Motion when there were genuine issues of
material fact outstanding?
C. Whether the Lower Court committed an abuse of discretion
and or error of law by imposing legal fees and costs on BVA
pursuant to 42 PA.C.S.A. 2403(7)?
D. Whether the Lower Court committed an abuse of discretion
and or error of law by Affidavit of John R. Cropper, the Praecipe
to incorporate and [Appellant’s] New Matter in answer to Carlino’s
Summary Judgment Motion? [sic]
E. Whether the Lower Court committed an abuse of discretion
and or error of law by failing to find that the contractual
agreement between Carlino and the Township executed August
20, 2014 (“Memorandum of Understanding”) was an illegal
contract that openly violated Carlino’s easement obligations?
F. Whether the Lower Court erred as a matter of law and
committed an abuse of discretion in waiting six years to decide
the claims of BVA and then asserting they were moot due to the
decision in the Declaration of Taking case?
Brief for Appellant at 3-4.
This Court’s standard of review of a trial court's decision in a declaratory
judgment action is narrow. Because declaratory judgment actions arise in
equity, we will set aside the judgment of the trial court only where it is not
supported by adequate evidence. The test is not whether we would have
____________________________________________
5 We assume BVA is referring to publicly-owned wastewater treatment works.
- 13 -
J-A22035-18
reached the same result on the evidence presented, but whether the trial
court's conclusion reasonably can be drawn from the evidence. See
Nationwide Mut. Ins. Co. v. Cummings, 652 A.2d 1338, 1340–41 (Pa.
Super. 1994).
Our standard of review of a challenge to an order granting summary
judgment is as follows:
We may reverse if there has been an error of law or an
abuse of discretion. Our standard of review is de novo, and our
scope plenary. We must view the record in the light most favorable
to the nonmoving party and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Furthermore, [in] evaluating the trial court's
decision to enter summary judgment, we focus on the legal
standard articulated in the summary judgment rule. The rule
states that where there is no genuine issue of material fact and
the moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law.
Gubbiotti v. Santey, 52 A.3d 272, 273 (Pa.Super. 2012) (citations omitted).
Prior to addressing the merits of BVA’s claims, we are compelled to
comment upon the nineteen combined allegations of trial court error it
presents in its Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925. In Jones v. Jones, 878 A.2d 86 (Pa.Super. 2005), and
Kanter v. Epstein, 866 A.2d 394 (Pa.Super. 2004), appeal denied, 584 Pa.
678, 880 A.2d 1239 (2005), cert. denied, Spector, Gadon & Rosen, P.C. v.
- 14 -
J-A22035-18
Kanter, 546 U.S. 1092, 126 S.Ct. 1048, 163 L.Ed.2d 858 (2006), this Court
held that where an appellant's concise statement raises an unduly large
number of issues (29 in Jones, 104 in Kanter), the purpose of Pa.R.A.P.1925
to identify the issues on appeal so that the trial court may address each in an
opinion if its reasoning does not already appear of record is effectively
subverted.
Notwithstanding, this Court also has recognized that a concise
statement which at first blush appears to contain an unduly large number of
issues may, upon further study, raise fewer, overlapping claims of error.
Morris v. DiPaolo, 930 A.2d 500 (Pa.Super. 2007). In Morris, the appellant
presented 29 issues in his concise statement; however, this Court found that
the statement actually raised less numerous questions for review. Finding
that the appellant had not intentionally subverted Pa.R.A.P.1925, we
proceeded to address the merits of the appellant’s claims. We find that the
instant situation is more akin to Morris than to Jones and Kanter; therefore,
we decline to find waiver on the basis of the volume of issues BVA raised in
its concise statement and proceed to address the issues BVA included in its
appellate brief.6
____________________________________________
6 Nevertheless, we note that “selecting the few most important issues
succinctly stated presents the greatest likelihood of success.”
Commonwealth v. Ellis, 534 Pa. 176, 183, 626 A.2d 1137, 1140 (1993).
This is because “[l]egal contentions, like the currency, depreciate through
over-issue. The mind of an appellate judge is habitually receptive to the
- 15 -
J-A22035-18
BVA initially argues that the trial court’s Order on “the Motion for Specific
Performance” allegedly “rewr[ote] the Cross Easement Agreement to require
BVA to decommission the onsite POTW”; however, BVA did not raise this
specific claim in its Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925, as no mention was made therein to a motion for specific
performance or to the trial court’s actively “rewriting” the Cross Easement
Agreement; therefore, it is waived. See Zehner v. Zehner 2018 WL 4178143at *6 (Pa.Super. Aug. 31, 2018) (citing Pa.R.A.P. 302(a) (stating that an issue
cannot be raised for the first time on appeal)); see also, Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); “[A]
theory of error different from that presented to the trial jurist is waived on
appeal, even if both theories support the same basic allegation of error which
gives rise to the claim for relief.” Tong-Summerford v. Abington Mem'l
Hosp., 190 A.3d 631, 649 (Pa.Super. 2018) (citation omitted).
____________________________________________
suggestion that a lower court committed an error. But receptiveness declines
as the number of assigned errors increases. Multiplicity hints at lack of
confidence in any one[.]” Commonwealth v. Robinson, 581 Pa. 154, 187
n. 28, 864 A.2d 460, 480 n.28 (2004) (quoting Robert H. Jackson, J.,
“Advocacy Before the United States Supreme Court,” 25 Temple L.Q. 115, 119
(1951)). See also, Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs
and Oral Argument,” 129 (2d ed. 2003) (“When I read an appellant's brief
that contains more than six points, a presumption arises that there is no merit
to any of them.”) (emphasis in original).
- 16 -
J-A22035-18
BVA next generally maintains there were outstanding genuine issues
of material fact which prevented the grant of summary judgment. In this
regard, the only genuine issue of material fact BVA specifically referenced in
its Rule 1925(b) statement was the allegedly substantial evidence it had
presented concerning Carlino’s “ongoing Easement obligations pursuant to the
Cross Easement Agreement including its Storm water basin easement,
drainage easement and access easements.” See Statement of Errors
Complained of on Appeal Pursuant to Pa.R.A.P. 1925 at ¶ 2 (c). Because only
claims properly presented before the trial court are preserved for appeal, we
consider only this specifically-referenced evidence. See Tong-Summerford,
supra.
In analyzing this claim, we agree with the trial court’s conclusion that
“it is not the essential facts that are in dispute, but, rather, the parties’
respective competing interpretations of what is in large part a documents
case.” Trial Court Decision, filed 9/22/17, at 22. Indeed, at the status
conference held on March 12, 2015, BVA provided no additional
documentation pertaining to the aforesaid easements and instead requested
declaratory judgment based on the record:
[Counsel for BVA]: Well, if Your Honor determines—and
Your Honor certainly has the right to do it, and I would understand
if you did do it. If Your Honor determines that the issue with
regard to the sewer easement and all aspects thereof is resolved—
and I would respectfully suggest to Your Honor it should be,
because Your Honor included this issue of the removal of the plant
in your order. And that had never been argued or, in my opinion,
it had never been argued or briefed or dealt with, and I think that’s
- 17 -
J-A22035-18
a significant issue that needs to be addressed. That aside, the
only other easements would be the question of the—of the access
easement, the water easement, which have not been addressed
by Your Honor, and the reserve sewer area. And they’re argument
issues before Your Honor. There is no briefing—maybe a brief,
but there is no discovery needed. They can be disposed of quickly.
THE COURT: Well—
[Counsel for Carlino]: And the declaratory judgment
action then is done.
***
[Counsel for Carlino]: Well, I think that it—I think, Your
Honor, that we both briefed it. I don’t think there are any factual
issues whatsoever. There is no testimony. You’ve got the
condemnation documents. It’s an issue—it’s a matter of law. We
now have sat here and argued it.
THE COURT: I appreciate that. I’m just asking counsel
–before maladies of litigation and such, I want to make sure that
I’ve given every opportunity for the presentation of anything that
you want before I rule. That’s all I’m talking about.
[Counsel for BVA]: I understand. Your Honor could issue
a ruling saying that [Counsel for Carlino] is right and that because
of the condemnation the issues with regard to the easements is—
are moot Your Honor, therefore, is not going to rule on them.
And you could issue a ruling saying that the sewer easement in
toto is disposed of by your prior ruling, and then what will be will
be.
I would respectfully suggest to Your Honor that’s not the
proper course, that declaratory judgment action needs to be
argued before Your Honor and/or briefed. Those particular issues
as I recall them—we’re going back years, And I didn’t look through
my file, Your Honor—were not briefed. There were—there was the
complaint file, declaratory –judgment complaint by both of us. I
don’t think those questions were ever briefed directly.
***
N.T. 3/12/15, at 31, 33-34.
In its September 20, 2017, Decision, the trial court dedicated an entire
portion of its discussion to the “Extinguishment of Easements.” See Trial
Court Decision, 9/20/17, at 16-21. Therein, the trial court referenced
- 18 -
J-A22035-18
documentation in the record in support of its findings that easements for both
access and stormwater discharge to the detention basin had been
extinguished by the condemnation, that the condemnation extinguished BVA’s
rights to drain stormwater on the Watters’ Parcel, and that “having
condemned the subject easements, the corresponding covenants, which
provide no greater rights than do the easements, were also extinguished.”
Upon our review of the record evidence, including the Sewer System
Easement, Access Easement, and the Stormwater Basin and Drainage
Easement as well as the documentation pertaining to BVA’s declaratory
judgment complaint and Carlino’s corresponding motion for summary
judgment, and applying the appropriate standard of review, we discern no
error; thus, this claim fails.
BVA’s third issue alleges the trial court erred and/or abused its
discretion when it awarded Carlino attorney’s fees. BVA does not challenge
the amount of the award, but it reasons the award of attorney’s fees was
improper in light of the trial court’s finding that while BVA was in technical,
non-compliance with its September 22, 2015, Order, the trial court did not
find BVA to be in contempt for failing to connect to the publicly-owned sewer
line in a timely manner. BVA further contends the trial court failed to consider
properly BVA’s reasons for failing to comply with the deadlines the trial court
had set forth in its orders. Brief for Appellant at 36-38.
This Court has explained:
- 19 -
J-A22035-18
[w]e have a limited power of review of court awarded fees. As the
Supreme Court has so frequently stated, the responsibility for
setting such fees lies primarily with the trial court and we have
the power to reverse its exercise of discretion only where there is
plain error. Plain error is found where the award is based either
on factual findings for which there is no evidentiary support or on
legal factors other than those that are relevant to such an award.
The rationale behind this limited scope of review is sound. It is the
trial court that has the best opportunity to judge the attorney’s
skills, the effort that was required and actually put forth in the
matter at hand, and the value of that effort at the time and place
involved.
Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1108–09 (Pa.Super. 1990)
(citations omitted).
In its Order entered on February 22, 2017, the trial court denied
Carlino’s motion seeking monetary sanctions and directed that pursuant to 42
Pa.C.S.A. § 2503(7),7 BVA shall reimburse Carlino $57,042.00 “for its counsel
fees and costs incurred in seeking compliance with the Court’s Orders
identified in the Footnote below.” See Order of Court, filed 2/22/17, at 1-2.8
____________________________________________
7 That statutory provision provides that a participant shall be entitled to a
reasonable counsel fee as part of the taxable costs of the matter where he or
she “is awarded counsel fees as a sanction against another participant for
dilatory, obdurate or vexatious conduct during the pendency of a matter.” 42
Pa.C.S.A. § 2503(7).
8 The Declaratory Judgments Act does not expressly authorize the award of
counsel fees, and counsel fees have been awarded as supplemental relief
pursuant to the Act under limited circumstances. Mosaica Acad. Charter
Sch. v. Com. Dep't of Educ., 572 Pa. 191, 208–09, 813 A.2d 813, 824
(2002). However, the trial court did not base its award on the Declaratory
Judgments Act. Thus, we do not examine the propriety of the award
thereunder.
- 20 -
J-A22035-18
BVA’s contentions to the contrary, in its lengthy footnote, the trial court
explained that it had been compelled to enter its prior Orders of August 15,
2013, September 3, 2014, and September 22, 2015, as a result of BVA’s
failure to take such steps as were necessary to effect the sewer connection.
2/22/17, at 3 ¶ 2. The court further stated the credible preponderance of the
evidence revealed during the hearings conducted on October 24-25, 2016,
established that by May 26, 2016, BVA had connected each structure but for
two in its shopping center to the municipal public sewer system by May 26,
2016. It further found the delay of the last two connections until June 20,
2016, was the result of the contractors’ negligence. Id. at ¶¶ 7-8.
Notwithstanding, the court further indicated that the testimony of Allen
Bixler, called by BVA to establish a defense to its alleged contempt of the trial
court’s February 19, 2016, Order “was wholly inadequate to overcome
[Carlino’s] evidence respecting the circumstances occasioning delay and the
dates on which the work was actually completed.” Id. at 5, ¶9. The trial
court proceeded to analyze Carlino’s claim for attorney’s fees pursuant to 42
Pa.C.S.A. ¶ 2503(a)(7) and in doing so found the testimony of Fred Ebert,
P.E., a professional engineer called by Carlino to testify on October 24, 2016,
to be “especially significant” to its finding that BVA’s conduct had been “a
willful violation of [its] Orders and obdurate and vexatious in character.” Id.
at 8, ¶ 18. Specifically, the trial court asserted:
Mr. Ebert described the governmental approvals that
were necessary to permit [BVA] to construct the sewer line and
- 21 -
J-A22035-18
connect to the public sewer system, the timelines that are
reasonably required in the normal course of business to secure
those approvals, and the preparations necessary to have been
made beforehand by any applicant, including [BVA], to avoid
unnecessary delays. Such include timely preparation of the
required sewer connection plan, anticipated revisions to the plan
often sought by municipal officials, timely preparation of
easement descriptions for the sewer lines, payment of connection
fees and like considerations attendant to every such connection.
It remains the applicant’s obligation to insure prompt and timely
preparation and completion of these items in meeting required
deadlines imposed by the [c]ourt.
Mr. Ebert opined that had [BVA] proceeded with due
anticipation of issues that commonly arise in most cases involving
sewer approvals for connection to a public sewer system,
preparation of plans and documents attendant thereto, and
prompt attention to required details, the connection of [BVA’]s
Shopping Center to public sewer could and would have been
completed within the timelines set by the Court. Transcript,
10/24/16, pp. 20 et seq. In other words, the required sewer
connection should have been completed long before it was,
without the necessity of repeated contempt citations and
[Carlino’s] incurrence of fees and costs in the enforcement of the
[c]ourt’s Orders. Indeed, Mr. Ebert’s testimony evidences the
accuracy of our prior conclusions, expressed in our Orders of
September 3, 2014[,] and February 10, 2016, that over the
course of time during which [BVA] has been subject to those
Orders, its conduct has been intentionally dilatory, obdurate and
vexatious, warranting the award of counsel fees and costs.
Order of Court, 2/22/17, at 2, n.1 ¶ 18.
The trial court ultimately concluded Carlino’s invoices totaling
$57,042.00 for counsel fees incurred, fees paid to professional witnesses
called to testify, and costs associated with the contempt petitions and court
hearings related thereto, to be reasonable and awarded that sum as a
sanction.
- 22 -
J-A22035-18
This Court has held that an award of counsel fees may be a sanction
following a finding of contempt, or may be awarded to a party pursuant to 42
Pa.C.S.A. § 2503(7). Thus, an award of counsel fees under 42 Pa.C.S.A. §
2503 is distinct from a finding of civil contempt that might include sanctions
in the form of counsel fees. Wood v. Geisenhemer–Shaulis, 827 A.2d 1204,
1207 (Pa.Super. 2003). Following our review of the record and relevant notes
of testimony, we find support for the trial court’s award. Appellant essentially
askes this Court to substitute its judgment by altering the award, which we
cannot do absent an abuse of discretion. Boehm v. Riversource Life Ins.
Co., 117 A.3d 308, 335 (Pa.Super. 2015) (citation omitted). Thus, no relief is
due on this claim.
In its fourth argument, BVA posits the trial court erred by striking the
Cropper affidavit, its praecipe to incorporate the entire record from its appeal
of Carlino’s approved 2014 preliminary plan, and its New Matter filed in
response to Carlino’s motion for summary judgment. The trial court explained
its decisions in this regard as follows:
No.1.a. Order of April 19, 2016[,] striking John R.
Cropper’s affidavit, filed on January 6, 2016[,] in support [BVA’s]
summary judgment motion. Cropper is a principal of [BVA]. The
thrust of the affidavit was to add weight to [BVA’s] contention that
when the late Frank E. Watters and Beatrice S. Watters sold John
Cropper’s father the Brandywine parcel in 1994, the parties had
the intention to cooperatively develop both parcels, which would
include perpetuation of the on-site sewer system and access road
located within the easements provided for in the Cross Easement
Agreement for the benefit of both parcels. At that time, there was
no plan of development of the Watters’ Parcel, so that any such
presumed intention was precatory only, and not binding on the
- 23 -
J-A22035-18
Watters. Aside from the fact that Cropper’s affidavit was self-
serving, its contents added no factual underpinning to [BVA’s]
case, since the Agreement contains a specific provision concerning
the parties[’] cooperation as it relates to “the purposes of the
easements” and to the granting of “such additional easements as
may be required to facilitate” the implementation of [BVA’s] 1994
subdivision and land development plan for development of [BVA’s]
shopping center, identified in the First paragraph of the
Agreement’s recital. Cross Easement Agreement, paragraph
#11.E. Brandywine has consistently argued that it enjoys vested
rights in the Cross Easement Agreement and that precludes
Carlino’s development plan for the Watters’ Parcel. That the
easements are not immutable is borne out, among other
provisions of the Agreement, by its terms that address the on-site
sewer facilities located on the Watters’ Parcel that, until recently,
served [BVA’s] property. Those terms required [BVA] to connect
its shopping center to the Township’s public sewer system when
public facilities become available. Cross Easement Agreement,
paragraphs 9 & 11. It was clear to this court that there is no
provision in the Agreement that requires Carlino’s development of
the Watters’ Parcel in any manner contemplated or dictated by
[BVA].
No. 1.b. Order of February 12, 2016. [BVA] filed three
documents in response to Carlino’s summary judgment motion
(“SJM”). First, on the presumptive authority of Pa.R.C.P. 1019(g),
a praecipe directing the Prothonotary to incorporate into the
declaratory judgment action the record from [BVA’s] 2015 appeal
of Carlino’s 2014 preliminary land development plan, ChesCo
Docket No. 2015-1448-MJ; second, and Answer to the SJM that
raised “New Matter, allegedly pursuant to Pa.R.C.P. 1035.3(b);
and third, a brief in support. The New Matter alleged the
intentional violation of the Cross Easement Agreement by Carlino
and the Township in the former’s submission of land development
plans and the latter’s approval of those plans that ignored the
Agreement. [BVA] has consistently advanced that same on-going
allegation in the land use proceedings before the Township
Supervisors and the appeals therefrom, and sought introduction
in the declaratory judgment actions of the records made before
the Supervisors. We have previously ruled in the zoning appeals
that disputes over easement rights are not the proper subject of
a zoning or land development proceeding, but rather must be
decided in a separate court action. [citations omitted].
Among its further contentions, [BVA] has argued,
incorrectly, that our September 21, 2011[,] Order consolidated
- 24 -
J-A22035-18
not only the cross-declaratory judgment actions, but also a land
use appeal then pending, thereby allowing it to make the zoning
record a part of [BVA’s] declaratory judgment action. Order dated
9/21/2011. The latter Order, however, consolidated only the
declaratory judgment actions “for all purposes”. The zoning
appeal was consolidated only for administrative purposes, such as
administrative conferences and oral argument. All of the facts
germane to the Cross Easement Agreement were present in the
record when [BVA] sought to include the zoning appeal record and
other New Matter allegations, which had nothing to do with the
court’s interpretation of the Cross Easement Agreement sought in
the declaratory judgment actions. . . .
Supplemental 1925 Opinion, filed 11/20/17, at 5-7.
Upon our review, we discern no error. First, the Cropper Affidavit is
stamped as having been filed on January 6, 2016, after BVA had filed its
response to Carlino’s Motion for Summary Judgment. In its motion to strike
the affidavit, Carlino argued the 1993 Agreement of Sale between BVA and
the Watters constituted an integrated document and, therefore, the affidavit
was inadmissible, extrinsic evidence under the parol evidence rule. The trial
court’s Order striking the affidavit was proper. See Yocca v. Pittsburgh
Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 436 (2004) (holding, inter
alia, stadium builder licenses represented the parties’ entire contract; thus,
the parol evidence rule barred the admission of the stadium builder licenses
brochure).
In addition, its May 2, 2016, Order reveals the trial court considered
documents from the land use appeal which BVA had attached to its Motion for
Summary Judgment and further provided BVA with an opportunity to
specifically identify other parts of the record it deemed to be germane to the
- 25 -
J-A22035-18
court’s consideration of BVA’s response to the Motion for Summary Judgment.
Specifically, the trial court stated:
We have no intention of combing through a lengthy zoning
record to decipher what may be relevant evidence that creates an
issue of fact relevant and material to the rights and liabilities of
the parties under the Cross Easement Agreement. [BVA] admits
its praecipe to incorporate the entire record may be “seen as
excessive”. See Motion for Reconsideration, para. 11. It clearly
is excessive. It appears that [BVA] has attached parts of the
Supervisor’s hearing record to its Answer to Carlino’s SJM. See
Exhibits A & B. If there are other parts of the land use appeal
record to which [BVA] wishes to direct the court’s attention that
are claimed by it to create a genuine issue of fact relevant and
material to the defense of the Carlino Defendants’ SJM it may do
so by affidavit. This means exact specification of relevant pages
of identified witnesses’ testimony, exhibits and parts of plans that
are claimed to be relevant. See Boulton v. Starck, 369 Pa. 45, 85
A.2d 17 (1951). The Carlino Defendants may appropriately
respond by tiled objection.
Order of Court, filed 5/2/18, at 3 n.1 Our review of the record has failed to
reveal any indication that BVA thereafter specifically identified portions of the
zoning record for the trial court’s consideration in response to Carlino’s
summary judgment motion.
Finally, as the trial court notes, it did not strike BVA’s new matter in its
entirety. To the contrary, the court granted Carlino’s motion to strike new
matter only to the extent that it asserted new cause of action in violation of
Pa.R.C.P. 1033.9 Thus, this claim fails.
____________________________________________
9 This Rule provides, in relevant part:
- 26 -
J-A22035-18
BVA next argues the trial court abused its discretion in failing to find
the August 20, 2014, contract between Carlino and the Township was illegal
and in violation of Carlino’s easement obligations. In its appellate brief,
Carlino asks this Court to find this claim waived for BVA’s failure to raise it
before the trial court. Brief of Appellee at 60.
On May 9, 2018, Carlino filed with this Court its “Motion to Strike
[BVA’s] Reproduced Record and Appeal” wherein it requested that we, inter
alia, strike certain documents BVA has included in the Reproduced Record
associated with this appeal. These documents were not filed in the trial court
docket in BVA’s declaratory judgment action, nor did BVA request the trial
court to consider them in Answer to Carlino’s summary judgment motion. In
addition, as Carlino points out, although it included the six Exhibits in its
Reproduced Record, BVA did not enumerate these documents on its
Designation of Contents of Reproduced Record which it served on Carlino on
February 12, 2018. Rather, these documents apparently were part of a
____________________________________________
a) A party, either by filed consent of the adverse party or by leave
of court, may at any time change the form of action, add a person
as a party, correct the name of a party, or otherwise amend the
pleading. The amended pleading may aver transactions or
occurrences which have happened before or after the filing of the
original pleading, even though they give rise to a new cause of
action or defense. An amendment may be made to conform the
pleading to the evidence offered or admitted.
Pa.R.C.P. No. 1033(a).
- 27 -
J-A22035-18
separate condemnation proceeding to which Carlino is not a party that recently
was decided in the Township’s favor by the Commonwealth Court. See Motion
at 2-3; Condemnation of Fee Simple Title to 0.069 Acres of Vacant Land and
Certain Easements No. 1409 C.D. 2017, unpublished memorandum
(Cmwlth.Ct. filed July 2, 2018), reargument denied, Aug. 14, 2018).10 While
it attached a copy of the Memorandum of Understanding to its brief filed in
the declaratory judgment action on April 30 2015, BVA did not ask that the
trial court to declare the Memorandum void. As a result, the trial court did
not have an opportunity to consider this aspect of BVA’s claim prior to the
time its notice of appeal was filed.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Our review of the record
reveals that BVA raised the instant claim for the first time in its Rule 1925
concise statement. See Statement of Errors Complained of on Appeal
Pursuant to Pa.R.A.P. 1925, filed 11/6/17, at ¶4(f). However, “[a]n issue
raised for the first time in a concise statement is waived. Beemac Trucking,
LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa.Super. 2016) (citation
omitted). Further, “appellate courts normally do not consider matters outside
the record or matters that involve a consideration of facts not in evidence.
Most importantly, appellate courts do not act as fact finders, since to do so
____________________________________________
10 Carlino points out the sticker placed on each document bears the
designation “Conees” which seemingly refers to BVA as the condemnees.
- 28 -
J-A22035-18
would require an assessment of the credibility of the testimony and that is
clearly not our function.” Commonwealth v. Kennedy, 2016 WL 634849,
at *3 (Pa.Super. Feb. 17, 2016) (citing Commonwealth v. Grant, 813 A.2d
726, 733–34 (Pa. 2002) (case citations and internal quotation marks
omitted)). In light of the foregoing, we find this issue to be waived and,
accordingly, grant Carlino’s Motion to Strike the documents included in BVA’s
Reproduced Record at pages 1241a through 1331a.
BVA’s final claim alleges the trial court erred and abused its discretion
in delaying its decision in BVA’s declaratory judgment action until after the
decision in the condemnation case, at which time it asserted BVA’s claims
were moot. Brief for Appellant at 64. BVA posits that “[i]t would appear that
the [c]ourt intentionally delayed decision to surmount [BVA’s] argument in its
Answer to [Carlino’s] summary judgment motion that [BVA] continues to own
those easements and Carlino’s continued planning is, therefore, in derogation
of [BVA’s] rights.” Id. at 60.
The trial court explained why BVA’s contention is incorrect as follows:
No. 3. [BVA] claims that I abused my discretion in waiting
six years to decide the parties’ respective claims, and then
asserting they were moot as a result of the condemnation. That
statement is incorrect. The sewer easement, a principal subject
of the declaratory judgment actions, was resolved by my order for
specific performance described in my September 20, 2017[,]
Opinion, while the driveway access and stormwater management
easements were directly impacted by the Township’s Declaration
of Taking discussed more fully in my September 20, 2017[,]
Opinion. [BVA] was required by the Cross Easement Agreement
to connect its shopping center to the Municipal Authority’s public
sewerage system when those facilities were extended by the
- 29 -
J-A22035-18
Municipal Authority into the area where [BVA’s] shopping center
is located. The Pennsylvania Department of Environmental
Protection (“PADEP”) approved the municipal system’s extension,
which triggered [BVA’s] connection obligation. Following inception
of these actions, the pleading stage persisted through the end of
2012, during which Carlino moved for summary judgment in its
declaratory judgment complaint, which I denied. Evidentiary
hearings followed. On January 11, 2013, Carlino filed a Petition
seeking specific performance of the Agreement, the provisions of
which required [BVA] to connect is property to the Township
Municipal Authority’s public sewer system and abandon the on-
site septic system located within the sewer easement on the
Watters’ parcel that served [BVA’s] shopping center. [BVA] fought
this requirement tooth and nail, which led Carlino to file contempt
motions against [BVA], in turn requiring this court to conduct
evidentiary hearings. Ultimately, I entered an Order on August 8,
2013[,]requiring [BVA] to physically connect its shopping center
to the Municipal Authority’s public sewer system. [BVA] appealed
to Superior Court of September 10, 2013. Superior Court Docket
No. 2558 EDA 2013. On December 9, 2014[,] the Superior Court
returned the appeal to this court, concluding that, contrary to
[BVA’s] contention, the lower court’s August 8, 2013[,] Order was
not a final order.[11] In the interim, Carlino filed additional
____________________________________________
11 This unpublished memorandum decision, referenced above, was, in fact,
filed on October 20, 2014. Therein, this Court determined it lacked jurisdiction
to hear the appeal. In doing so, we reasoned as follows:
Although this case began as two declaratory judgment
actions, Carlino later filed a second amended complaint including
non-declaratory judgment claims: ejectment, an injunction, and
damages for breach of contract. The order appealed from in this
case granted specific performance, in response to a petition for
specific performance. It did not declare rights under the
Declaratory Judgments Act, even though Carlino improperly
requested declaratory relief and specific performance in a single
count of its second amended complaint. Moreover, specific
performance and declaratory relief are distinct remedies with
distinct purposes.
Carlino filed a petition for specific performance seeking relief
on only one count of a multi-count complaint. In response, the
trial court granted specific performance- not declaratory relief.
- 30 -
J-A22035-18
contempt petitions against [BVA] seeking counsel fees arising
from [BVA’s] persistent refusal to connect to the public sewer
system. On September 22, 2015, [BVA] still not having timely
complied with our August 8, 2013, Order, we conducted an
administrative conference, which culminated in our Order of
September 22, 2015, that established a new schedule with which
[BVA] was required to comply in connecting its shopping center to
the public sewage system. This was followed by a further motion
filed by Carlino on January 7, 2016[,] seeking again to hold [BVA]
in contempt and for the imposition of sanctions, in which Carlino
alleged [BVA] had refused to complete connection to the public
sewer system and was intentionally “dragging its feet.” [BVA]
encountered construction difficulties in complying, but ultimately,
connected, and undertook removal of the on-site septic system
and its decommissioning pursuant to [PaDEP] regulations.
As discussed above, during the foregoing proceedings,
[BVA] filed preliminary objections to the Township’s November 17,
2014[,] Declaration of Taking, which condemned the access and
drainage easements provided for in the Cross Easement
Agreement. Multiple hearings were required to complete
testimony before a decision could be made on those objections by
another judge of this court on September 7, 2017. In terms of
the declaratory judgment actions, a decision by this court as to
the Township’s condemnation of [BVA’s] access easement would
not have foreclosed [BVA’s] right to file preliminary objections to
the taking. Consequently, I deferred to Judge Griffith on that
issue, and awaited his determination of that action before issuing
the instant decision.
Supplemental 1925 Opinion, filed 11/20/17, at 10-13 (some brackets in
original).
____________________________________________
Because the trial court’s order granting specific performance is a
partial adjudication, it is interlocutory and not appealable.
Carlino E. Brandywine, L.P. v. Brandywine Vill. Assocs., No. 2558 EDA
2013, unpublished memorandum at 4 (Pa.Super. filed Oct. 20, 2014)
(footnotes omitted).
- 31 -
J-A22035-18
In light of the longevity and complexity of the proceedings giving rise
to the declaratory judgment actions and the trial court’s September 20, 2017,
decision thereon, we find no merit to BVA’s claim the trial court intentionally
delayed its decision. As the above summary of the activity in the trial court
evinces, the court entered orders pertaining to the myriad pleadings filed by
the parties as their dispute progressed over the course of numerous years.
Applying the proper standard of review, we discern no error.
Order affirmed. Carlino’s Motion to Strike [BVA’s] Reproduced Record
is granted. Jurisdiction is relinquished.
Judge Nichols joins the Opinion.
P.J.E. Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/18
- 32 -