Railroad Recovery v. Mast, B.

J-A06044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAILROAD RECOVERY INC., A : IN THE SUPERIOR COURT OF
PENNSYLVANIA CORPORATION, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3717 EDA 2015
BRIAN MAST, AND SIXTH STREET :
MANAGEMENT CORP., A :
PENNSYLVANIA CORPORATION, AND :
JOHN GIUNUP, AND MICHAEL :
PETTACIO :
Appeal from the Judgment Entered November 24, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03647, July Term 2013
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017
Appellant, Railroad Recovery Incorporated, appeals from the judgment
entered November 24, 2015,1 in favor of Brian Mast, Sixth Street
Management Corporation, John Giunup, and Michael Pettacio (collectively,
“Appellees”), quieting title and granting ejectment over the right-of-way.
We affirm.
____________________________________________
1
Appellant purported to appeal from the September 11, 2014 order
compelling testimony of the principal of Railroad Recovery Inc. and granting
sanctions to Appellee; the October 7, 2014 order denying Appellant’s motion
for sanctions; and the November 24, 2015 order denying Appellant’s motion
for post-trial relief and entering judgment. However, of the aforementioned
orders, the instant appeal is only proper in the context of the final order of
November 24, 2017. See Pa.R.A.P. 341.
J-A06044-17
This appeal arises from a dispute over the ownership of a five-block
strip of land located between Rockland and Cayuga Streets in the City and
County of Philadelphia. The trial court outlined the relevant procedural
history as follows:
[Appellant] Railroad Recovery Inc. ([“Appellants”])
instituted this action against the [Appellees] on July 26, 2013,
seeking an ejectment of the [Appellees] (Counts I & II) from
(and a recovery of possession of) the disputed property.
[Appellant] also sought injunctive relief (Count II) and to recover
mesne profits and rent as a result of its alleged dispossession of
the disputed property (Count III).
[During discovery, the trial court compelled the deposition
of Appellant’s principal, Thomas Clauss by order dated
September 11, 2014, and awarded Appellees $350 in sanctions.
Appellant filed a motion for sanctions against Appellee, which
was denied on October 7, 2014.]
After an extended period of discovery, this matter was
scheduled for a non-jury trial between March 11, 2015[,] and
March 17, 2015. On March 13, 2015, following the close of
[Appellant’s] case, the [trial] court granted: (1) the [Appellees’]
motion for nonsuit of all counts against [Appellee] Brian Mast in
his individual capacity; (2) the [Appellees’] motion for nonsuit to
Count III of the [Appellant’s] amended complaint, which sought
mesne profits and rents; and (3) [Appellees] John Giunup's and
Michael Pettacio’s (collectively "Pettacio [Appellees]") motion to
amend their counterclaims to assert a claim for adverse
possession for the "Payload Property," an area within the
disputed property.
On July 20, 2015, [the trial court] found in favor of the
[Appellees] and quieted title of the disputed property in favor of
the [Appellees]. On November 24, 2015, [the trial court] heard
oral argument on the [Appellant’s] motions for post-trial relief,
which were denied that same day.
Trial Court Opinion, 5/16/2016, at 1-2 (unnecessary capitalization omitted).
-2-
J-A06044-17
In November 2015, Appellant timely filed a notice of appeal and filed a
court-ordered 1925(b) statement raising twenty-five issues. The trial court
filed a thoroughly responsive opinion in May 2016.
On appeal, the Appellant raises the following fifteen issues for our
review:
1. Is Appellant the real party in interest?
2. Did the trial court lack subject matter jurisdiction to quiet title
in Appellees, who failed to bring the real party in interest onto
the record?
3. Is Poor Boys’ prior judgment binding on Appellant?
4. Did the 1854 Dickenson Deed convey fee simple subject to
condition subsequent?
5. Did the possibility of reversion terminate?
6. Is the 1862 trustee deed [] the common source?
7. Did Appellees prove intent to warrant title?
8. Did Appellees prove intent to convey an easement?
9. Did Appellees prove an easement?
10. Does common carrier obligation affect property ownership?
11. Is an express easement distinguished by nonuse?
12. Are Appellees’ counterclaims time barred?
13. Was it error to allow oral amendments at trial?
14. Did Appellant establish a clear right to relief?
15. Was it an abuse of discretion to award sanctions without a
prior order?
-3-
J-A06044-17
Appellant’s Brief at 4-5 (some formatting added).
“In reviewing the ruling of the trial court in an action to quiet title, an
appellate court's review is limited to determining whether the findings of fact
are supported by competent evidence, whether an error of law has been
committed, and whether there has been a manifest abuse of discretion.”
Vernon Twp. Volunteer Fire Dep't, Inc. v. Connor, 855 A.2d 873, 879
(Pa. 2004) (citing Moore v. Duran, 687 A.2d 822, 827 (Pa. Super. 1996),
petition for allowance of appeal denied, 700 A.2d 442 (Pa. 1997)).
An appellate court will “respect the trial court's findings with regard to
credibility and weight of the evidence unless it can be shown that the lower
court's determination was manifestly erroneous, arbitrary and capricious or
flagrantly contrary to the evidence.” Gemini Equip. Co. v. Pennsy
Supply, Inc., 595 A.2d 1211, 1215 (Pa. Super. 1991).
On appeal, Appellant raises fifteen issues for our review. We have
reviewed the certified record, the briefs of the parties, the applicable law,
and the well-reasoned opinion authored by the Honorable Denis P. Cohen of
the Court of Common Pleas of Philadelphia County, filed May 16, 2016. We
conclude that Judge Cohen’s comprehensive opinion is dispositive of the
issues presented in this appeal. Accordingly, we adopt the opinion as our
own for purposes of further appellate review and affirm the judgment on
that basis.
Judgment affirmed.
-4-
J-A06044-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
-5-
Circulated 05/16/2017 02:46 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
Railroad Recovery Inc., July Term 2013
Plaintiff
v. No. 130703647
Brian Mast, Sixth Street Management
Corp., John Giunup, and Michael
Pettacio
r-, ":
c
Defendants
OPINION
A. PROCEDURAL HISTORY
(
Plaintiff Railroad Recovery Inc. ("Plaintiff') instituted this action against the;Defer!f.!ants
on July 26, 2013, seeking an ejectment of the Defendants (Counts I & II) from (and a recovery of
possession of) the disputed property. Plaintiff also sought injunctive relief (Count II) and to
recover mesne profits and rent as a result of its alleged dispossession of the disputed property
(Count III).
After an extended period of discovery, this matter was scheduled for a non-jury trial
between March 11, 2015 and March 17, 2015. On March 13, 2015, following the close of
Plaintiffs case, the Court granted: (1) the Defendants' Motion for Nonsuit of all counts against
Defendant Brian Mast in his individual capacity; (2) the Defendants' Motion for Nonsuit to
Count Ill of the Plaintiff's Amended Complaint, which sought mesne profits and rents; and (3)
Defendants John Giunup's and Michael Pettacio's (collectively "Pettacio Defendants") motion to
amend their counterclaims to assert a claim for adverse possession for the "Payload Property," an
area within the disputed property.
Railroad Recovery, lnc Vs Masi Etal-OPFLO
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On July 20, 2015, this Court found in favor of the Defendants and quieted title of the
disputed property in favor of the Defendants. On November 24, 2015, this Court heard oral
argument on the Plaintiffs Motions for Post-Trial Relief, which were denied that same day.
On November 29, 2015, Appellant filed his Notice of Appeal. On December 22, 2015.
Appellant filed a Statement of Matters, alleging the following errors on appeal:
1. The 9/11/2014 order by Judge Sarmina was abusive as there was no
prior order compelling depositions and defendants gave one days notice of
deposition.
2. Judge Fox allowed discovery court to be intentionally misled where an action
for mesne profits is intended to disgorge defendants of their ill-gotten profits
(good faith damages) or ill-gotten income (bad faith damages), so that the
10/7/2014 order should have enforced the prior orders for discovery.
3. Under the pronouncements of Supreme Court as of 1854 and currently, a
recorded indenture in fee simple subject to a condition subsequent is not an
easement, and Judge Cohen's finding of an easement is merely a cover-up for
the decision of another court involving other parties, where that court held a
deed existed but could not be located for the purposes of trial.
4. Without citation to authority, the trial court holding it lacked subject matter
jurisdiction to decide an action in ejectment for land in Philadelphia County is
erroneous.
5. Without citation to authority, the trial court disregarded precedent holding the
purpose of an ejectment action is opposed to determine the immediate rights
between plaintiff and defendant involved in that litigation. Sabella v.
Appalachian Development Corp., 2014 PA Super. 237, 103 A.3d 83 (2014).
6. The 1854 Dickinson Deed conveyed a fee simple subject to a condition
subsequent, as it provides for a possibility of a reverter; and uses the classic
language of that period for such a conveyance. John Bouvier's Law
Dictionary, 1856 Ed.
7. The findings and conclusions of the trial court confirm all of the referenced
indicia of a deed in fee simple subject to a condition subsequent are present;
that is: the presence of a habendum clause ("TO HA VE AND TO HOLD the
rights and premises aforesaid unto the said The North Pennsylvania Rail Road
Company, their successors and assigns forever, upon condition that the said
Company, its successors or assigns, shall make, maintain, keep and use upon
the aforesaid piece of land a Rail Road,") which does not conflict with the
grant ("the entire and exclusive use, right, liberty and privilege of using and
occupying and enjoying for Rail Road purposes") use of present tense of
words of conveyance ("doth Grant Bargain Sell Release and Confirm, unto the
said The North Pennsylvania Rail Road Company, their successors and
assigns"); and consideration paid in the amount of$9,356.67 in 1854 dollars
2
for a 9 acres and 57 perches strip of rail roadbed, which sum was more than
the nominal payment of $1 or $300, in the cases relied upon by the court.
8. The 1854 Dickinson Deed used words of a conditional fee (forever, upon
condition that the said Company, its successors or assigns, shall make,
maintain, keep and use upon the aforesaid piece of land a Rail Road, and if it
shall happen that the railroad * * * shall be removed or abandoned or the said
described piece of land shall cease to be used for Rail road purposes, then the
said strip of land shall revest in the said Sally Norris Dickinson, her heirs and
assigns, as of her and their first and former Estate, and she or they shall
thereupon repossess). Emrick v. Bethlehem Tp., 506 Pa. 372, 375, 485 A.2d
736, 737 (Pa. 1984).
9. The duty of defendants' predecessors in title was to "thereupon (immediately)
repossess" any interest they had in the disputed land by legal proceedings,
which the predecessors failed to do.
10. Defendants failed to prove Dickinson's last Will devised her remaining
interest in the conveyed strip of land to the adjacent owners; contradicting the
admission of their expert such proof was necessary to identify the interest of
defendants.
11. There is not clear and convincing evidence the drafters of the 1854 Dickinson
Deed intended a warranty clause was necessary as the Railroad Law of 1849
allowed the railroad to take land by eminent domain; or that Dickinson
intended to warrant she had title to the 9 acres conveyed, of her 221 acres of
North Philadelphia, spanning four boroughs, towns and townships, against
adverse possessors.
12. There is not clear and convincing evidence the drafters of the 1854 Dickinson
Deed intended to create an easement.
13. The findings and conclusions of the trial court con firm all of the referenced
indicia of an easement are lacking; that is: recitation of specific right to use
land for "using and taking earth, stones, and gravel from the land" (statement
of "the entire and exclusive use, right, liberty and privilege of using and
occupying and enjoying for Rail Road purposes" is consistent with the stated
condition subsequent the failure of which would create a right of reversion,
"forever, upon condition that the said Company, its successors or assigns,
shall make, maintain, keep and use upon the aforesaid piece of land a Rail
Road").
14. In 1984, a .6 mile strip of the former Bethlehem Branch did "cease to be used
for railroad purposes" by Conrail's affirmative act of filing "with [the]
Interstate Commerce Commission an application that would enable Conrail to
abandon its common carrier obligation on a portion of the Bethlehem
Branch."
15. The determination of the Interstate Commerce Commission, to allow the
railroad to abandon the line, does not affect the underlying property
ownership.
16. Mere nonuse by the railroad does not amount to abandonment. To establish
abandonment, the evidence must show that the easement holder intended to
give up its right to use the easement permanently. No single factor alone is
3
sufficient to establish the intent to abandon. Abandonment must be
determined based upon all of the surrounding circumstances. Buffalo Tp. v.
Jones, 571 Pa. 637, 646, 813 A.2d 659, 665 (Pa. 2002). The factors relied
upon by the trial court were disapproved by the Buffalo Tp. court.
1 7. Conrail took certain action that suggested an intention to abandon the railroad
line, such as filing a request to abandon rail service with the ICC and planning
for dismantling of the rails. However, Conrail took other steps evidencing the
contrary intent, such as sale of the .6 mile strip of rail roadbed to plaintiff,
which demonstrated Conrail's intent to retain dominion over the rail roadbed.
Further, Conrail sought to discontinue rail service over only a .6 mile length
of the Bethlehem Branch.
18. There is no evidence Conrail undertook external affirmative acts of physical
obstruction that carried out its intent to abandon its property interest in the
disputed land which rendered the use of the disputed land impossible or
created some physical obstruction in a manner that is inconsistent with its
further enjoyment. Hence, the rail roadbed has not been abandoned. To the
contrary, Conrail did sell the rail roadbed to plaintiff, who demolished the
bridge.
19. An easement, created by a deed, cannot be extinguished or affected by nonuse
or abandonment for railroad purposes unless it is shown by some positive,
adverse, and hostile interference by these defendants, who claim that the
easement has been extinguished, or the loss of title in some other way
recognized by law. No such situation is present.
20. There is no evidence, when, if at all, subsequent to the January 1988 "Lines
Cleared for Dismantling" memorandum [Ex. 029], the .6 strip of rail roadbed
sold to plaintiff was dismantled and tracks removed. Predecessor in title,
Conrail did not abandon its interest but maintained dominion where it
subsequently entered into agreement to sell the rail roadbed in 1990 [Ex.
DlB].
21. Defendants, John Gi unup and Michael Pettacio did not timely or at all
commence an action in ejectment for that portion of the disputed property in
possession of plaintiff.
22. Each of the counterclaims by defendants, Sixth Street Management Corp.,
John Giunup and Michael Pettacio are barred by the statute of limitations.
23. The trial court erred in granting to defendants, John Giunup and Michael
Pettacio leave to orally amend their counterclaims on the 3rd day of trial.
24. Trial court, finding plaintiff was not the real party in interest, Jacked
jurisdiction to quiet title in favor of defendants, who failed to bring real party
in interest onto the record.
25. To establish a claim for a permanent injunction, the party must establish his or
her clear right to relief. However, unlike a claim for a preliminary injunction,
the party need not establish either irreparable harm or need for immediate
relief and a court "may issue a final injunction if such relief is necessary to
prevent a legal wrong for which there is no adequate redress at law." Buffalo
Tp. v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663 (Pa. 2002).
4
B. FACTS
I. The Parties and the Disputed Property
This dispute arises out of the ownership of a portion of a strip of land that extends across
five city blocks from Cayuga Street to Rockland Street in Philadelphia along a former Northern
Pennsylvania Railroad roadbed. (Findings of Fact and Conclusions of Law, 2). Defendant Sixth
Street Management Corporation ("Defendant Sixth Street") owns property located at 4455 North
6th Street (the "Sixth Street Property"). (N.T. 3/13/15 at 161). Pettacio Defendants own
adjacent property at 4525 North 6th Street (the "Payload Property"), on which they operate a
waste disposal business called Payload Disposal. Plaintiff is a Pennsylvania corporation formed
by Mr. Thomas Clauss. (N.T. 3/17/15 at 37-38). Mr. Clauss is the Plaintiffs president, sole
officer, and sole shareholder. (N.T. 03/16/15 at 133-34). Mr. Clauss formed Railroad Recovery
to hold to the title to the disputed property in this case. (Id. at 134). Plaintiff claims title, by way
of chain of title dating back to a January 12, 1854 deed executed by Ms. Sally Norris Dickinson
(the "Dickinson Deed"), to a strip of land that now runs through the rear of the Sixth Street
Property and the Payload Property. (Findings of Fact and Conclusions of Law, 2-3).
The disputed area within the Sixth Street Property encompasses a total area of 6,703.2
square feet or .1539 acres. (Id. at 3). The disputed area within the Sixth Street Property runs
through the middle of an existing gravel and dirt area and is partially bordered by: (a) on the
southern boundary by an aluminum fence gate, and (b) on the eastern boundary by a chain-link
fence and pvc pipe fence. (Id.). The disputed area within the Payload Property encompasses a
total area of 10,641.7 square feet or .2443 acres. (Id.). The disputed area within the Payload
Property runs through two existing one story office buildings, one abandoned railway scale
station, and existing gravel and paved concrete areas of the Payload Property. (Id.).
5
II. The Plaintiff's Asserted Chain ofTule
In 1854, Ms. Dickinson conveyed an interest in her property to the North Pennsylvania
Railroad Company by way of deed in exchange for $9,356.67. (N.T. 3/16/15 at 96). In total, the
Dickinson Deed conveyed 9 acres and 57 perches of land, which is equivalent to 9.35625 acres,
407,558.25 square feet, or approximately .0146 square miles. The Dickinson Deed's grant
clause describes the strip of land to be conveyed as follows:
[D]oth Grant Bargain Sell Release and Confirm unto the Said North
Pennsylvania Rail Road Company their Successors and assigns the Entire and
Exclusive use Right liberty and privilege of using occupying and Enjoying for
Rail Road purposes All that Strip or piece of land part of the lands and Estate
of the Said Sally Norris Dickinson Extending from Nicetown lane to
Wingohocking Creek in the township of the Northern Liberties and County of
Philadelphia containing nine acres and fifty Seven perches as the Said Strip or
piece of land is delineated and laid down in the map or plan thereof here unto
annexed which is to be taken as part of this indenture and of keeping using
and maintaining thereon the Rail Road of the Said party ....
(findings of Fact and Conclusions of Law, 4); (Plf. Exhs 1-2); (Def. Exh. 80).
Furthermore, the 1854 Dickinson Deed's habendum clause details that North
Pennsylvania Railroad Company, its successors, and assigns had:
[a]t all times hereafter forever together with the incidents easements and
appurtenances thereunto belonging To have and to hold the Rights and
premises aforesaid ... forever upon condition that that Said Company its
Successors or Assigns Shall make maintain keep and use upon the aforesaid
piece of Land a Rail Road and if it Shall happen that the Rail Road
Contemplated to be now Shortly Constructed on and over the Said Described
Strip or piece of Land or any Renewals or Reconstructions thereof shall be
Removed or abandoned or the Said described piece of land Shall cease to be
used for Rail Road purposes then the Said Strip of land Shall revert in the Said
Sally Norris Dickinson her heirs and assigns as of her and their first and
former Estate and She or they shall thereupon Repossess and Enjoy the Same
as if this Present Indenture had never been made ....
(Findings of Fact and Conclusions of Law, 4 ); (Plf. Exhs 1-2); (Def. Exh 80).
6
By way of deed dated March 29, 1976 and recorded May 11, 1979, the North
Pennsylvania Railroad Company conveyed its interest under the Dickinson Deed to Consolidated
Rail Corporation ("Conrail"). (Findings of Fact and Conclusions of Law, 4); (Plf. Exhs 3, 10).
The conveyance to North Pennsylvania Railroad Company was mandated by an Order of the
Special Regional Rail Reorganization Court. (Findings of Fact and Conclusions of Law, 5); (Plf.
Exh 10). The Special Court approved the final System Plan of the United States Railway
Association and awarded the North Pennsylvania Rail Road Company lands to Conrail.
(Findings of Fact and Conclusions of Law, 5); (Plf. Exh 10). In early 1984, the ICC authorized
Conrail to abandon the disputed property. (Findings of Fact and Conclusions of Law, 5); (Plf.
Exh 14). Conrail effectuated the abandonment of the disputed property by removing the railway,
thus relieving itself of any obligations to provide rail services over the disputed property.
(Findings of Fact and Conclusions of Law, 6). At the time of its filing for abandonment of the
disputed property, Conrail conducted de minimis rail business on the property. (Id. at 6).
On November 2, 1994, Plaintiff purchased the disputed property from Conrail for
$18,000. (N.T. 3117115). In conjunction with this purchase, Conrail delivered a quitclaim deed
to the Plaintiff, dated November 2, 1994 (" 1994 Quitclaim Deed"). (N.T. 3/16/15 at 141 ). The
Plaintiff failed to record the 1994 Quitclaim Deed. (Id at 164). Mr. Clauss' s attempt to record
the 1994 Quitclaim Deed with Chase Abstract Title Company ("Chase") failed due to the lack of
an address or legal description in the deed. (Id. at 163-64). Mr. Clauss did not contact Conrail
to attempt to correct the recording problem. (Id.).
Eighteen years later, on January 25, 2012, Conrail delivered to the Plaintiff, upon the
Plaintiffs request, a "Quitclaim Deed of Confirmation" (the "2012 Confirmation Deed").
(Findings of Fact and Conclusions of Law, 7). Conrail was asked to prepare the deed because
7
Plaintiff has entered into a transaction to sell the disputed property to Mr. Linda Miller and the
deal was held up because the 1994 Quitclaim Deed was not recorded and, at that point, Plaintiff
was unable to locate the 1994 Quitclaim Deed. (Id.).
111. The Plainiiff's Sale of the Disputed Property to Ms. Miller
On February 16, 1998, the Plaintiff entered into an agreement to sell, via an installment
contract, all of the land it had previously purchased from Conrail to Ms. Linda Miller.1 (N.T.
3/16/15 at 138-40). Ms. Miller fully performed her purchase obligations under the installment
contract in 1999 or 2000. (N.T. 3/16/15 at 138-56); (N.T. 3/17/15 at 38, 41-46, 48). However,
no formal closing was ever conducted. (N. T. 3/16/15 at 141 ). Instead, Plaintiff delivered the
1994 Quitclaim deed received from Conrail to Ms. Miller, in the belief that doing so was
sufficient to convey title of the railroad property to Ms. Miller. (Id at 141-46).
Since 2000, Ms. Miller and her husband, Mr. Mike McNally, have had full possession of
the property. (Id at 152-5 3, 162 ). During that time, Mr. McNally operated a scrap yard on the
disputed property and filled the disputed property with auto debris and trash. (N. T. 3/13/15 at
173-74); (N.T. 3/16/15 at 119, 153, 153, 164-64). Plaintiff did not pay taxes on the property at
this time, despite receiving a tax bill in 2013. (N.T. 3/16/15 at 150-51).
JV Litigation Following the Plaintiff's Sale of the Disputed Property lo M,;;. Miller
In 2008, Defendant Sixth Street filed an action seeking ej ectment of Ms. Miller from the
Sixth Street Property portion of the disputed property. (Findings of Fact and Conclusions of
Law, 9). The Honorable Gary S. Glazer, Judge of the Court of Common Pleas of Philadelphia
I
Per the installment contract, the Plaintiff agreed to sell all of its Conrail railroad property for $20,000. with
$ I 0,000 cash owed on the date of execution of the installment contract, and the remaining $10,000 owed via five
monthly installments of $2,000 beginning on June I, 1998. (Findings of Fact and Conclusions of Law, 8). Upon
payment by Ms. Miller of the entire $20,000, and upon full compliance with the provisions set forth in the contract,
the Plaintiff agreed"( 1) to execute and deliver [to Ms. Miller] a deed for [the railroad premises]." (Id).
8
County, conducted a non-jury trial for that case in August of 2009. (Id). Ms. Miller's defense
was that the land she purchased via the 1998 installment contract from Plaintiff contained an
easement to use Defendant Sixth Street's property. (Id.). Judge Glazer found in favor of
Defendant Sixth Street, stating specifically in his conclusions of law that Ms. Miller "does not
have a right to use the 'alleged easement."' (Def Tr. Exh. 19 at 3-4). On October 8, 2009,
Judge Glazer further ordered Ms. Miller to "discontinue [her] use of [Defendant Sixth Street's]
property and remove all [of her] property from [Defendant Sixth Street's] premises within thirty
days." (Id. at 1).
In 2011, Ms. Miller sued the Plaintiff in federal and state court because the Plaintiff
failed to execute and deliver a deed to her as provided by the 1998 installment contract. (N .T.
3/3/16/15 at 147-48); (N.T. 3/17 /15 at 48); (Findings of Fact and Conclusions of Law, 9). Ms.
Miller and the Plaintiff settled those cases and thereafter entered into an agreement wherein the
Plaintiff promised to prosecute the instant case. (N. T. 3/17 /15 at 48).
V Defendants' Asserted Chain of Title to the Sixth Street and Payload Properties
The Defendants' chain of title begins with an 1862 deed executed by the trustees of Ms.
Dickinson to the Defendants' predecessor-in-title, Gustavus G. Logan ("Logan-Dickinson
Deed"). (Findings of Fact and Conclusions of Law, 10). The Dickinson-Logan provides that the
property extended to the middle line of the North Pennsylvania Rail Road and that the land
conveyed "include[es] the portion occupied by the [North Pennsylvania] Rail Road." (Def. Tr.
Exhs 76. 86). The deed provided that the conveyed property extended to the "center line" or
"middle lime" of the (now former) North Pennsylvania Railroad. (Findings of Fact and
Conclusions of Law, 10).
9
Defendant Sixth Street purchased the Sixth Street Property from the estate of Edward Rabon
on November 20, 2003 for $25,000. (N.T. 3/13/15 at 161). The deed conveying the Sixth Street
Property to Defendant Sixth Street ("Sixth Street Deed") is a warranty deed. (Def. Tr. Exh. 54 ).
The legal description contained in the Sixth Street Deed provides that the property extends from
"the southeasterly side of 6th Street ... from the Southwesterly side of Annsbury Street ... to a
point in the middle line of the North Pennsylvania Railroad." (Id.).
The Pettacio Defendants purchased the Payload Property for $180,000 on March 18,
2004 from Luis A. Colon. (Def Tr. Exh. 45). This deed states that the Payload Property extends
from "a point at the intersection of the Southwesterly side of Annsbury Street with the
Southeasterly side of 6111 Street; thence along the said side of 61h Street South ... to the center line
of the North Pennsylvania Railroad." (Id.).
C. DISCUSSION
I Deposition Order
Plaintiff first alleges that this Court erred by issuing an order compelling the deposition
of Thomas Clauss, Jr. after the discovery deadline had elapsed. Specifically, Plaintiff alleges
that Plaintiff was given only one day's notice prior to the deposition.
The Pennsylvania Rules of Civil Procedure do not establish a timetable for depositions,
as these matters come within the sole discretion of the trial court. See Wertz v. Kephart, 542
A.2d IO 1 9, 1021 (Pa. Super. 1988); Lombardo v. DeMarco, 50 A.2d 1256, 1259 (Pa. Super.
1985). Furthermore, the Rules do not contain any formal requirements for a time interval
between the notice and the scheduled deposition, but merely state that "reasonable notice" must
be given to all parties. Pa. R. Civ. P. 4007.1 (a). The trial court's discretion to admit or exclude a
10
deposition during trial will not be disturbed absent abuse. Wertz, 542 A.2d at 1021; see
Egelkamp v. Egelkamp, 524 A.2d 501, 504 (Pa. Super. 1987).
In the instant case, the Plaintiffs failure to make Mr. Clauss available for deposition
testimony necessitated Judge Sarrnina' s September 11, 2014 Order compelling the deposition
testimony. The Defendants originally notified the Plaintiff of a scheduled deposition for Mr.
Clauss, and a corporate designee of the Plaintiff, on August 15, 2014. (Def Mot. To Compel, l;
Exh. A). The depositions were scheduled for August, 27, 2014 at 10:00 A.M., with a
rescheduling date of August 28. On August 26, 2014, the afternoon prior to the deposition,
Plaintiff unilaterally cancelled the deposition due to alleged issues with exhibits identified at a
prior deposition. (Id at 2). Plaintiff refused to make Mr. Clauss available for deposition for the
rescheduling date of August 28, 2014. (Id).
Due to Plaintiffs lack of cooperation in making Mr. Clauss available, the Defendants
sought, and obtained, Judge Sarmina's Order to compel the testimony on September 11, 2014.
(Ct. Order to Compel 9/11/14). The Order required the deposition to be held sometime between
September 15, 2014 and September 17, 2014. (Id.).
Plaintiff have failed to allege any prejudice that resulted from the Order that would have
made the notice unreasonable. See Pa. R. Civ. P. 4007. l (a). Plaintiff had over a week to prepare
for the initial deposition of Mr. Clauss scheduled for August 27, 2014. (See Def. Mot. To
Compel, l ; Exh. A). The Plaintiffs unilateral decision to postpone the deposition, with less than
a day prior to the scheduled time, afforded Plaintiff further opportunity to prepare. (See id at 2).
Furthermore, Judge Sarmina's Order compelling the deposition set the earliest possible date for
said deposition four days away. (See Ct. Order to Compel 9/11/14). Thus, from the time
Plaintiff was notified of the Defendants' intent to depose Mr. Clauss, to the earliest date set by
II
the Order compelling the deposition, Plaintiff had thirty-one (31) days to prepare for the
deposition. Furthermore, the delays and problems with the deposition were created by the
Plaintiff and their failure to make Mr. Clauss available at the agreed upon times. Therefore,
Plaintiffs argument that Judge Sarmina's Order was an abuse of discretion, and that the notice
given to Plaintiff was unreasonable, is without merit.
II Discovery Hearing Request Denial
The trial court's order denying a motion to compel discovery is reviewed under the abuse
of discretion standard. Commonwealth v. Widmer, 744 a.2D 745, 753 (Pa. 2000). The term
'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate
conclusion, within the framework of the law, and is not exercised for the purpose of giving effect
to the will of the judge. Id. Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary actions. Id. Discretion is abused
when the course pursued represents not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will. Id.
Plaintiff claims that this Court erred by denying Plaintiffs request for a discovery
hearing regarding the Defendants' alleged failure to produce requested tax returns. While
generally broad and liberal discovery is encouraged, the policy favoring generous discovery must
be balanced against other public policies. Hyman Companies, Inc. v. Brozost, No. CIV. A. 97-
269, 1997 WL 535180, at *3 (E.D. Pa. Aug. 8, 1997). For example, public policy considers tax
returns as confidential communications between the taxpayer and the government and thus
favors their nondisclosure. Id. Pennsylvania courts have outlined a two-part test to determine
the discoverability of tax returns. See id.; Horwath v. Brownmiller, 51 Pa. D. & C.4th 33, 42-45
12
(Ct. Com. Pl. 2001). The party seeking discovery must demonstrate: (1) relevance; and (2) a
compelling need for such documentation because the information is not available elsewhere.
Horwath, 51 Pa. D. & C. at 44.
In the instant case, Plaintiffs made no efforts to demonstrate either of the two prongs and
therefore were not entitled to court action enforcing discovery requests for tax returns. See id
In their request for discovery sanctions, Plaintiff merely stated that, although the documents were
brought at a deposition, they were never produced. (Plf. Mot. for Sanctions 9/16/14). Plaintiffs
failed to even attempt to demonstrate that they were entitled to the discovery of these sensitive
documents and thus this Court did not err in denying their motion. See Horwath, 51 Pa. D. & C.
at 44.
Furthermore, the Plaintiffs suffered no prejudice from the denial of the motion for
sanctions. The Plaintiff alleges in its Statement of Errors that the requested documents would
have informed the Plaintiff as to the Defendants' income for the purposes of ascertaining mesne
profits. However, given the Court's ruling that the Plaintiff did not have a right to possess the
disputed property, the question of mesne profits became unnecessary to address. Thus, any
prejudice the Plaintiff may have suffered in relation to discovery related the mesne profits issue
was rendered moot by the Court's final ruling.
!II. Subject Matter Jurisdiction
A. This Court Did Not Err in Concluding That It Lacked Jurisdiction Due to the Plaintiffs
Lack of Standing
This Court did not err in concluding that Plaintiff lacked standing to maintain its actions
for ejectment and injunctive relief against the Defendants because the Plaintiff sold and
relinquished any interest to the to the disputed property that it may have had to Ms. Miller in
13
2000. Due to the Plaintiff's lack of standing, this Court correctly determined that it did not have
jurisdiction to proceed on the merits of this action.
Pennsylvania Rule of Civil Procedure 2002 provides that "[A]ll actions shall be
prosecuted by and in the name of the real party in interest, without distinction between contracts
under seal and parol contracts.'? Pennsylvania courts have defined the word "real party in
interest" as "the person who has the power to discharge the claim upon which suit is brought and
to control the prosecution of the action brought to enforce rights arising under the claims." See,
e.g., Clark v. Cambria County Ed. Of Assessment Appeals, 747 A.2d 1242, 1246 n.9 (Pa.
Cmnwlth. 2000). A plaintiff who is not the real party in interest has no standing to maintain the
action. Id., citing Sierra Club v. Hartman, 605 A.2d 309 (Pa. 1992) ("A person cannot invoke
the jurisdiction of a court to enforce private rights, or to maintain a civil action for the
enforcement of such rights, unless that person has some real interest in the cause of action, or a
legal right title, or interest in the subject matter of the controversy.").
Pennsylvania law provides that an installment sale agreement should be treated as a
mortgage. Stillwater Lakes Civic Assoc. v. Krawitz, 772 A.2d 118, 121 (Pa. Cmnwlth 2001).
The moment an installment sale agreement is executed and delivered, the owner of the land sells
his equitable title to the realty to the purchaser. Id.; Yannopoulos v. Sophos, 365 A.2d I 3 I 2,
1314 (Pa. Super 1976). At that point, "the land so contracted cease[s] to be real estate in [the
seller's] hands," Foster v. Harris, 10 Pa. 457, 459 (Pa. 1849), and "the seller retains legal title
only as a security against the purchase price." Pose! v. Redevelopment Authority ofCity of
Philadelphia, 456 A.2d 243, 246 n.4 (Pa. Cmnwlth 1983).
2
The rule also provides three exceptions, all of which are inapplicable in the instant case.
14
Legal title-the seller's last remaining interest in the property-is retained by the seller
only unti I the buyer satisfies the terms of the installment contract (i.e. until the buyer pays the
outstanding balance of the mortgage.). Stillwater, 772 A.2d at 121; Yannopoulos, 365 A.2d at
1314. Accordingly, under Pennsylvania law, the seller has no interest in the property once the
buyer performs her purchase obligations set forth in the installment contract.3 A transfer of a
deed is effective to convey real property so long as ( l ) the grantor has donative intent and (2)
there is an actual or constructive delivery of the deed to the grantee. Fiore v. Fiore, 174 A.2d
858, 859 (Pa. 1961).
In the instant case, according to Mr. Enright, Conrail believed that the 1994 Quitclaim
Deed effectively conveyed its interest in the disputed property to the Plaintiff. (Enright Tr. at
83). Furthermore, as evidenced by Mr. Clauss's attempt to record the 1994 Quitclaim Deed with
Chase, Conrail delivered the 1994 Quitclaim Deed to the Plaintiff in 1994. (N.T. 03/16/15 at
163). As such, it is without doubt that Conrail conveyed its interest in the disputed property to
the Plaintiff via the 1994 Quitclaim Deed on November 2, 1994. (Def. Tr. Exh 2).4
On February 16, 1998, the Plaintiff entered into an installment contract with Ms. Linda
Miller. (Def. Tr. Exh 4). In exchange for the sum of $20,000, the Plaintiff agreed to sell and
convey to Ms. Miller "All That Certain premises" "Beginning at approximately Mile Post 4.2,
being the southern line of Cayuga Street and extending thence in a general northerly direction to
approximately Mile Post 4.8, being the northerly line of Rockland Street." (Id. 1 1 ); (Exh. A
attached to Def. Tr. Exh 4 1 2). As defined by the installment contract, the land sold was a
.1On the contrary, once the terms of the installment contract are completed, the seller is bound to execute and deliver
a deed to the buyer and, in the event of a seller's death before the deed is executed, the seller's heirs are bound to
execute and deliver such a deed. Fosler v. Harris, 10 Pa. 457, 459 (Pa. 1849).
~ The fact that Mr. Clauss was unable to record the deed does not change this Court's conclusion that Conrail's interest
in disputed property was conveyed to the Plaintiff in 1994. Fiore v. Fiore, ! 74 A.2d 858, 859 (Pa. ! 961) ("The
recording of the deed [is] not essential to its validity or the transition of the title.")
15
"portion of the same premises which the North Pennsylvania Railroad Company ... issued
pursuant to the Regional Rail Reorganization Act of 1973 ... which Conveyance Document was
recorded on May 11, 1979 ... Document No. D-1948-202." (Exh. A attached to Def. Tr. Exh 4
~ 2).
The land identified in the installment contract constituted the sale of all of the land which
the Plaintiff received via quitclaim deed from Conrail in 1994, including all ofthe disputed
property at issue in this case. (Def. Tr. Exhs 2-3). Indeed, both the 1994 Quitclaim Deed and
the 2012 Confirmation Deed described that the entirety of the property conveyed by Conrail to
the Plaintiff was: "Beginning at approximately Mile Post 4.2, being the southerly line of Cayuga
Street and extending thence in a general northerly direction to approximately Mile Post 4.8,
being the northerly line of Rockland Street, the place of ending." (Def. Tr. Exh 2 at 2) (2012
Confirmation Deed); (Def. Tr. Exh 3 at 2) ( 1994 Quitclaim Deed). As described by the 1994
Quitclaim Deed, the land conveyed was "a portion of the same premises which the North
Pennsylvania Railroad Company ... issued pursuant to the Regional Rail Reorganization Act of
1973 ... which Conveyance document was recorded on May 11, 1979 ... Document No. D-
1948-202." (Def. Tr. Exh 3). Per the terms of the installment contract entered into between the
Plaintiff and Ms. Miller, the Plaintiff agreed, upon payment of $20,000 by Ms. Miller, to
"execute and deliver to [Ms. Miller] a deed for said premises." (Def. Tr. Exh 4 ~ (c)).
Additionally, Mr. Clauss, the Plaintiffs president and sole officer/shareholder, admitted,
via his deposition and trial testimony: ( l) that he entered into an agreement, on behalf of the
Plaintiff, to sell the subject property to Ms. Miller in February of 1998, (2) that Ms. Miller fully
performed her purchase obligations (including the full payment of $20,000) under the installment
contract in 1999 or 2000, (3) that the Plaintiff provided Ms. Miller the Conrail deed (which the
16
Plaintiff received when it purchased the property from Conrail) because he thought such an act
sufficiently conveyed the property to Ms. Miller, and (4) that after he sold the property to Ms.
Miller. Ms. Miller and her husband Mr. McN ally took possession of the property. (N. T.
03/16/15 at 13 8-15 6); (N. T. 03/17 /15 at 3 8, 41--46, 48). As such, because Ms. Miller satisfied
the terms of the installment contract, since at least 2000, the Plaintiff has had no legal or
equitable interest whatsoever in the disputed property and does not have standing to maintain the
instant action concerning such property. For these reasons, this Court correctly concluded that
the Plaintiff lacked standing to bring these actions and, thus, this Court lacked jurisdiction to
address the Plaintiffs claims. See Clark, 747 A.2d at 1246 n.9.
B. The Court Did Not Err in Determining the Defendants' Counterclaim to Quiet Title
In a quiet title action, the only relevant inquiry is whether the claimants can establish the
right to immediate exclusive possession. Plauchak v. Boling, 653 A.2d 671, 675 (Pa. Super.
1995), citing Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super. 1991). In an action to quiet title,
the claimants "can recover only on the strength of [their] own title and not upon the weakness of
the [opposing party's] title. Plauchack, 653 A,2d at 675 n.3; Montrenes v. Montrenes, 513 A.2d
983, 984 (Pa. Super. 1986).
In the instant case, the Court did not err in rendering a decision in favor of the Defendants
in their counterclaim to quiet title because the Defendants proved by a preponderance of the
evidence, the boundaries of the land for which they maintained paramount title. See Plauchak,
653 A.2d at 675. The Defendants established a clear chain of title dating back to the original
Dickinson Deed which provides that the Sixth Street Property and the Payload Property extend to
the "middle line" or "center line" of the North Pennsylvania Railroad, including the area
occupied by the railroad. (Def Tr. Exh. 54 ). The chain of title tracks through Defendant Sixth
17
Street purchasing the Sixth Street Property from the estate of Edward Rabon and the Pettacio
Defendants purchasing the Payload Property from Luis A. Colon. (N.T. 3/13/15 at 161)' (Def.
Tr. Exh. 45). Moreover, as discussed infra, because Conrail extinguished its interest in the
disputed property in 1988, the Defendants have shown that they own their respective portions of
the disputed property in fee simple. See Dellach v. DeNinno, 862 A.2d 117, 118 (Pa. Super.
2004). Finally, the Plaintiffs claim that their own failure to prove standing precludes the
Defendants from seeking a counterclaim fails because the Defendants have established their title
and thus succeed, regardless of the weaknesses of the Plaintiffs case. See Plauchack, 653 A,2d
at 675 n.3.
Plaintiff contends that this Court erred by ruling on the Defendants' counterclaims
because Ms. Miller was not a party to this action. A party is indispensable only when his or her
rights are so connected with the claims of the litigants that no decree can be made without
impairing those rights. See Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988). "[I]f, [however],
the merits of a case can be determined without prejudice to the rights of the absent party, the
court may proceed." Id.
In the instant case, The Plaintiff claims that Ms. Miller was an indispensable party to the
action due to her claimed interest in the land. However, Ms. Miller did not have a legally
cognizable claim to the disputed property. This Court had ruled in a prior case that Ms. Miller
did not have a right to use the alleged easement. (Def. Tr. Exh. 19 at 6). Thus, at the time of this
trial. Ms. Miller no longer had an interest in the disputed property so as to be considered an
indispensable party. See Sprague v. Casey, 550 A.2d at 189.
Additionally, Ms. Miller suffered no prejudice resulting from the Court's determination
of the Defendants' counterclaims. Plaintiff litigated this case on Plaintiffs behalf, and at her
18
request. (N.T. 3/17/15 at 48). Furthermore, Plaintiff was represented by Ms. Miller's own
attorney, Mr. Anthony Quinn. (N.T. 3/16/15 at 147). Thus, any interest Ms. Miller may have
had in the disputed property was thoroughly defended by Plaintiff in the instant case and she
suffered no prejudice by her decision to allow them to litigate the issue for her.
JV The Plaintiff's Ejectment Action
The Plaintiff claims that the Court erred in concluding that Plaintiff failed to meet their
burden in its ejectment action against the Defendants. When reviewing a trial court's decision in
a quiet title or ejectment action, the court's findings need only be supported by competent
evidence. See Dellach, 862 A.2d at 118; Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super.1998).
The trial court's decision will not be reversed absent an error of law or capricious disregard of the
evidence. Corbin, 716 A.2d at 617. In the instant case, this Court's conclusion that the 1854
Dickinson Deed conveyed an easement interest in the disputed property and that the Plaintiff's
predecessor-in-interest had extinguished that easement in 1988 was well supported by the
competent evidence introduced at trial. Thus, the Plaintiff's claim that this Court erred in its
conclusions of law is without merit. See Dellach, 862 A.2d at 118; Corbin, 716 A.2d at 617.
A. The Court's Conclusion That the 1854 Dickinson Deed Conveyed a Railroad Right-
of-Way/ Easement Interest in the Disputed Property Was Supported by Competent
Evidence
In interpreting the 1854 Dickinson Deed, the Court's primary object is to ascertain and
effectuate the intent of the parties at the time of transaction. Mackall v. Fleegle, 801 A.2d 577,
581 (Pa. Super 2002). The traditional rules of construction that guide the Court's determination
of that intention are:
( 1) the nature and quantity of the interest conveyed must be ascertained from
the instrument itself and cannot be orally shown in the absence of fraud,
19
accident or mistake and we seek to ascertain not what the parties may have
intended by the language but what is the meaning of the words ... ; (2) effect
must be given to all the language of the instrument and no part shall be
rejected if it can be given a meaning ... ; (3) if a doubt arises concerning the
interpretation of the instrument it will be resolved against the party who
prepared it ... ; ( 4) unless contrary to the plain meaning of the instrument. an
interpretation given it by the parties themselves will be favored ... ; (5) 'to
ascertain the intention of the parties, the language of a deed should be
interpreted in the light of the subject matter, the apparent object or purpose of
the parties and the conditions existing when it was executed.'
Id, citing Lawson v. Simonsen, 517 A.2d 155, 158 (Pa. 1980).
In deciding whether the 1854 Dickinson Deed created a railroad right-of-way/easement
or a fee simple, this Court examined a number of factors that Pennsylvania courts have relied
upon in making this determination. Factors which are indicative of an intent to convey a railroad
right-of-way/easement rather than a fee interest include: (1) the lack of a warranty clause in the
deed; (2) the recitation of specific rights granted to the railroad by the deed, such as the right to
"use" the land for "construction, repair and use" because such language would be surplusage if
the interest conveyed was a fee; and (3) the inclusion in the deed of a clause which releases the
railroad from liability for damages resulting from the railroad's use of the land or rising from the
location, construction and operation of the railroad.5 See Lawson, 517 A.2d at 158; Brookbank v.
Benedum-Trees Oil c«. 131 A.2d 103, 110 (Pa. 1957); see also Mackall v. Fleegle, 801 A.2d
577, 582 (Pa. Super 2002) (discussing Lawson and Brookbank). Meanwhile, factors which are
indicative of an intent to convey a fee rather an easement/right-of-way include: ( 1) the presence
of a habendurn clause in the deed, so long as interpreting the habendum clause to mean the
5
This last factor is inapplicable here because the 1854 Dickinson Deed did not grant the railroad a release from
liability. Of course, conveyances of an easement often do not release the grantee from liability. See Stanton v.
Lackawanna Energy Ltd., 886 A .2d 667, 677 (Pa. 2005) (noting that an "an easement holder is subject to the same
liability as any other possessor of the premises" and detailing numerous cases where the easement holder was subject
to liability resulting from the easement holder's use of the land.). As such, while presence of a release is indicative
of intent, the absence of a release of liability in the document is not indicative one way or the other of the parties'
intent to convey an easement/right-of-way or a fee.
20
parties conveyed a fee does not conflict with the parties intention as set forth in the granting
clause; and (2) the use of the present tense of the words "grant, bargain, sell, release, and
confirm" to convey an interest to the "grantee, his heirs, or assigns" because such language
indicates that the grantor is engaging in a present transfer of her estate in fee, so long as other
parts of the deed do not elucidate the intention of the parties to convey a lesser interest. See
Brookbank, 131 A.2d at 159-61. Additionally, the amount of consideration paid for the interest
is also indicative of the parties' intent where there is evidence of the value of the land at the time
of the conveyance. Id. Under this factor, a large amount of consideration paid in comparison to
the value of the land indicates an intent to convey a fee, and a small amount indicates an intent to
convey an easement/right-of-way. Lawson, 417 A.2d at 159 (consideration of $1 in exchange
for a strip of land 6 miles long and 66 feet wide was insufficient in 1881 to convey a fee
interest).
In the instant case, considering these factors, the weight of the evidence supported the
conclusion that the 1854 Dickinson Deed conveyed an easement/right-of-way. First, the I 854
Dickinson Deed contains no clause requiring Ms. Dickinson to warrant title. As in Lawson,
Brookbank, and Mackall, the Court agrees that it is unlikely that North Pennsylvania Railroad
intended to receive a fee interest from Ms. Dickinson without requiring such a clause. Lawson,
4 I 7 A.2d at 159; Brookbank, 131 A.2d at 11 O; Mackall, 801 A.2d at 582.
Second, the 1854 Dickinson Deed granting clause recites specific and limited rights
granted to North Pennsylvania Railroad. The granting clause states that Ms. Dickinson "doth
Grant Bargain Sell Release and Confirm unto the Said North Pennsylvania Railroad Company
their Successors and assigns the Exclusive use Right liberty and privilege of using occupying and
Enjoyingfor Railroad purposes All that Strip or piece of land [ concerning the disputed property]
21
... which is to be taken as part of this indenture and of keeping using and maintaining thereon
the Rail Road of the Said party." (Plf. Exh 1 ); (Def. Exh 80). This language is not appreciably
different than the language in the 1852 instrument conveying a railroad right-of-way discussed in
Quarry Office Park Assoc. v. Philadelphia Elec. Co., 576 A.2d 358, 362~63 (Pa. Super 1990)6,
and, as the Brookbank Court noted, would be mere "surplusage" if the parties intended to convey
a fee interest. Brookbank, 131 A.2d at 110. Considering that the 1854 Dickinson Deed was
drafted at or near the same time that the Quarry instrument was drafted, the words "Exclusive
use Right liberty and privilege of using occupying and Enjoyingfor Railroad purposes" and
"keeping using and maintaining thereon the Rail Road of the Said party" can therefore be given
the effect and meaning that the parties intended to convey a railroad right-of-way/easement.
Third, while it is true that the 1854 Dickinson Deed contains a habendum clause, the
presence of such a clause is not sufficient to find that that the parties intended to convey a fee.
See e.g., Moody v. Allegheny Valley Land Trust, 976 A.2d 484, 491 (Pa. 2009) ("Fundamentally.
the deed and its habendum clause create an easement to allow travel through the servient
estates."); Hassler v. Mummert, 364 A.2d 402, 404 (Pa. Super 1976) ("It is the type of easement
that by its very nature tends to be appurtenant, and the use of words of inheritance in the
habendum and warranty clauses removes any doubt that it was intended to be so."). Moreover,
the presence of a habendum clause is not necessarily indicative of the parties' intent when it
conflicts with the granting clause. In Fleck v. Universal-Cyclops Steel Corp., the Supreme Court
held the interest conveyed was an easement/right-of-way even though the deed conveying the
6 The 1852 instrument in Quarry stated that the grantor "by these presents do grant, bargain, sell, convey and confirm
unto the said the Chester Valley Rail Road Company, their successors and assigns, the right, liberty, and privilege of
entering upon and occupying the land belonging to me ... and also the right of using, occupying. and enjoying the
said land perpetually, for all the uses and purposes convenient or necessary for a Rail Road." Quarry, 576 A.2d at
431-32 (emphasis added).
22
property to the railroad contained a habendum clause. 156 A.2d at 834 (Pa. 1959). In that case,
the habendum clause in the deed contained the following language, "to have and to hold the said
strip of land and the said rights and privileges and uses so long as the same be required for the
uses and purposes of said railroad." Though the Fleck court recognized that such language
"generally indicates a base fee [ also known as a fee simple determinable], sometimes it is used in
connection with a fee simple," and "sometimes it is used to describe an easement." Id.; see
BLACK'S LAW DICTIONARY (10th Ed. 2014) (defining "base fee" as a fee simple determinable or
"[a] fee that has some qualification connected to it and that terminates whenever the qualification
terminates"). Importantly, according to Fleck, where the habendum clause conflicts with the
granting clause in the deed, the granting clause prevails. Fleck, 15 A.2d at 652. As such, the
presence of a habendum clause in the document is a necessary, but not sufficient, condition to
find the parties intended to convey a fee.
In the instant case, the language in the habendum clause is entirely consistent with the
intent expressed in the granting clause elucidating that Ms. Dickinson conveyed only a railroad
right-of-way/easement. The habendum clause in the 1854 Dickinson Deed states that North
Pennsylvania Railroad and its successors-in-interest "hold the Rights and premises aforesaid ...
forever upon condition that" that said company and its successors-in-interest "Shall make
maintain keep and use" a railroad, "and if it shall happen that the Rail Road Contemplated ...
over the Said Described Strip or piece of Land ... shall be removed or abandoned or ... cease to
be used for Rail Road Purposes then the Said Strip of land shall revest" in Ms. Dickinson, her
heirs, and assigns "and she or they "shall thereupon repossess and enjoy the same premises as if
this Present Indenture had never been made." (Def. Exh 80) (emphasis added). The operative
language in the habendum clause is clear that if the land is "abandoned" or "cease[ s] to be used
23
for Rail Road Purposes," then that land "shall revest" (i.e. give Ms. Dickinson and her heirs clear
title, or "title anew"), 7 and that Ms. Dickinson and her heirs shall thereupon (i.e. "immediately")
repossess (i.e. "regain possession of') the disputed property. Such operative language (upon
abandonment of the property the grantor or her successors get new title and recommences
her/their full possession of the land) is identical in effect and in kind to a common law
abandonment of a railroad right-of-way/easement. See Buffalo Tp. v. Jones, 813 A.2d 659, 664,
664 (Pa. 2002) (holding that an abandonment of a right-of-way reverts the property interest to the
grantor or the granter's successors and that such a reversion is "the residue of an estate left to the
granter, to commence in possession after the determination of some particular estate granted out
by him.") (internal citations and quotations omitted); id at 664 n.6, quoting BLACK'S LA w
DICTIONARY 405 (5th Ed. 1979) (Determination is defined as "[tlhe ending or expiration of an
estate or interest in property.").
Finally, the amount of stated consideration in the 1854 Dickinson Deed, $9,356.67, did
not provide a reasonable basis for the Court to conclude that there was intent to convey a fee
simple. The reason for this is because the Court was presented no evidence as to the value of the
entire 9 .3 5625 acres of land conveyed in 18 54, meaning any such conclusion as to the parties'
intent would be based solely on conjecture or surmise. See Brookbank, 131 A.2d at 159 ("In the
absence of any evidence as to value of this strip of land in 1903, a finding that the consideration
was inadequate for conveyance of a fee simple title would be based on conjecture and surmise.
On this record the stated consideration is not reflective of the parties' intent.").
7 See BLACK'S LAW DICTIONARY (IO'" ed. 2014) (defining "revest" as "To clothe or vest again or anew, as with
rank, authority, or ownership "); id. (defining "clear title" as a title "free
from any encumbrances [such as an easement], burdens, or other limitations").
24
Thus, given the evidence presented at trial and the factors enumerated by Pennsylvania
Superior Court, this Court did not err in holding that the 1854 Dickinson Deed conveyed a
railroad right-of-way/easement.
B. The Court Did Not Err in Concluding that the Plaintiffs Predecessor-In-Interest,
Conrail, Extinguished the Railroad Right-of-Way/Easement Over the Disputed
Property
Plaintiff further disputes this Court's determination that Plaintiffs predecessor-in-
interest, Conrail, extinguished its interest in the disputed property through abandonment. "When
a railroad abandons an easement, the right-of-way is extinguished and the land is owned in fee
simple by the owner or owners of the land on either side of the right-of-way." Dellach, 862 A.2d
at 118. In order to find that a right-of-way has been abandoned, there must be a: (1) intent to
abandon; and (2) external acts by which the intention is carried out. Thompson v. Maryland &
Penn. Railroad Preservation Soc., 612 A.2d 450, 453 (Pa. Super. 1992). Mere non use does not
amount to abandonment. Buffalo, 813 A.2d at 665. Instead, the conduct of the Plaintiff or its
predecessor Conrail "must have some affirmative act on his part which renders use of the
easement impossible, or of some physical obstruction of it by him in a manner that is
inconsistent with its further enjoyment. Id., quoting Thompson, 612 A.2d at 453 (emphasis in
original).
In the instant case, Conrail exhibited an intent to abandon the disputed property when it
submitted an application for abandonment of the Bethlehem Branch to the ICC on May 18, 1984.
(Plf. Exh 11); (Enright Tr. at 22, 84); see Buffalo, 813 A.2d at 665 ("The filing of a certificate of
abandonment with the ICC or PUC demonstrate[ s] intent to abandon."). Thereafter, Conrail took
up the rails over the disputed property, rendering the rail completely out of service by 1988.
25
(Enright Tr. at 87-90). Conrail's intent to abandon was therefore also accompanied by external
affirmative acts of physical obstruction that carried out its intention. Accordingly, in 1988,
Conrail extinguished any interest it or its successors, including the Plaintiff, had in the disputed
property, causing the Defendants' predecessors-in-title to own the property in fee simple.
DeNinno, 862 A.2d at 118. The Plaintiffs ejectment action therefore fails because it did not
prove by a preponderance of the evidence that it ever had a right to possess the disputed property
or paramount title over the disputed property. Billig v. Skvaria, 853 A.2d 1042, 1049-50 (Pa.
Super 2004 ).
C. This Court Did Not Err In Concluding that the Plaintiff Failed to Meet Its Burden
Permanent Injunctive Relief
"In order to establish a claim for a permanent injunction, the party must establish his or
her clear right to relief." Buffalo, 813 A.2d at 660. The Court "may issue a final injunction if
such relief is necessary to prevent a legal wrong for which there is no adequate redress at law."
Id. In this case, for the reasons discussed above, the Plaintiff failed to establish its clear right to
relief and thus its argument to the contrary is without merit.
V The Defendants' Counterclaims
A. This Court Did Not Abuse Its Discretion m Permitting Defendants to Amend Their
Counterclaims
The Court did not abuse its discretion in permitting the Defendants to amend their
counterclaim during trial to assert a claim for ejectment as to a portion of the disputed property.
Pennsylvania courts consistently hold that "amendments to pleadings are permitted at any time,
including before, during, and after trial. See, e.g., Horowitz v. Universal Underwriters Ins., 580
A.2d 395, 398 (Pa. Super. 1990); Winterhalter v. West Penn Power Co., 512 A.2d 1187, 1189
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(Pa. Super. 1986) ("Courts have allowed amendments at any time, as provided by the specific
language of this statute.); Biglan v. Biglan, 479 A.2d 1021, 1025 ("As can be seen from the clear
language of this rule, no limit is imposed on the time when an amendment may be made."). The
fundamental purpose of this rule is to prevent cases from turning on purely technical defects.
Biglan. 479 A.2d at 1025. In Sutton v. Miller, the Pennsylvania Superior Court allowed an
amendment from a quiet title action to an ejectment action after the appeal, because the change
was "mere formalism." 592 A.2d 83, 86-87 (Pa. Super. 1991 ).
In the instant case, the granting of an amendment was proper because Plaintiff was not
prejudiced. Whether framed as an action to quiet title or for ejectment, Plaintiff was on notice
that Defendant sought to prove title to the disputed property. Thus, Plaintiff had sufficient
information as to prepare for trial, given the strong similarity between the two causes of action.
See id. (describing the similarity between actions to quiet title and ejectment). The only effect
this amendment had on the case was to prevent it from turning on a mere technical issue because
the Plaintiff's privies happened to be in possession of a portion of the disputed property, making
ej ectment the proper cause of action. See Big/an, 4 79 A.2d at 1025. Thus, the Court did not
abuse its discretion in allowing for an amendment of the Defendants' counterclaim, even on the
third day of trial, where such amendment had no effect on Plaintiffs trial strategy and merely
prevented the case from turning on a formalistic technical issue. See Sutton, 592 A.2d at 87.
B. The Defendants' Counterclaims Were Not Barred By The Statute of Limitations
Plaintiff claims that the Defendants' counterclaims should have been defeated by the running
of the statute of limitations set by 42 Pa.C.S.A. § 5530. However, § 5530 governs the statute of
limitations governing the acquisition of title. Tioga Coal Co. v. Supermarkets Gen. Corp., 433
A.2d 483, 489 (Pa. Super. 1981 ). Thus, to avail themselves of §5530, a party must also make out
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the elements of their acquisition of the title. See id. In making out a claim for adverse
possession, a party must show an: (I) actual, (2) visible, (3) notorious, (4) exclusive and distinct,
(5) hostile, and (6) continuous use (7) for twenty-one years. Dunlap v. Larkin, 493 A.2d 750,
756 (Pa. Super. 1985). In order to make out a claim for an easement, a party must prove that, for
a period of 21 years, the use of the property was all of the following: (1) adverse; (2) open; (3)
notorious; and (4) continuous and uninterrupted. Odelle's, Inc. v. Com .. Dep't ofConservation &
Nat. Res .. Bureau of State Parks, 699 A.2d 775, 784 (Cmwlth 1997).
In the instant case, Plaintiffs did not even attempt to make an argument that they had cut off
the Defendants' ownership of the property through an adverse means of title acquisition. In fact,
the Defendants produced evidence to the contrary when Defendant Giunup testified that the
Defendants, rather than the Plaintiff, had been in continuous use of the property since they
purchased it in 2004. (N.T. 3/15/15 at 117-18). Thus, the Plaintiffs argument that the
Defendants' counterclaim fails due to the statute of limitations is without merit.
D. CONCLUSION
For the foregoing reasons, the decision of this Court should be affirmed.
BY THE COURT:
Dated: May 13, 2016 DENIS P. COHEN, J.
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