Zieglar, V. v. Reuss, G. (memorandum)
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J-A16035-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 VIRGINIA M. ZIEGLAR AND LAWRENCE B. GOLDER, Her Husband, Appellants v. GEORGE F. REUSS AND MARTHA H. REUSS, His Wife, Appellees : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1588 WDA 2013 Appeal from the Judgment entered on November 4, 2013 in the Court of Common Pleas of Westmoreland County, Civil Division, No. 6529 of 2099 BEFORE: DONOHUE, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 20, 2014 1 entered against them and in favor of George F. Reus 1 2013, which denied their Post-Trial Motion. An appeal from an order denying post-trial motions is interlocutory and not appealable. See, e.g., , 81 A.3d 981, 983 n.3 (Pa. Super. 2013). However, Plaintiffs filed a praecipe to enter judgment on November 4, 2013, and the prothonotary entered Judgment against them. The entry of judgment perfects our jurisdiction, and we may proceed to consider the appeal on its merits. See id.; see also Pa.R.A.P. 905(a)(5). November 4, 2013 Judgment. J-A16035-14 The trial court set forth the relevant facts underlying this appeal in its including a description of the property in question (hereinafter referred to as .2 See Trial Court Opinion, 5/15/13, at 1-3. We See id. In July 2009, Plaintiffs filed a Complaint, and, subsequently, an Amended Complaint in November 2011, claiming ownership of the Disputed Property by adverse possession and prescriptive easement. In February 2012, Defendants filed an Answer, which included a Counterclaim in Ejectment against Plaintiffs, requesting that the trial court order Plaintiffs to remove the deck and shed that encroached upon the 15-foot alleyway portion of the Disputed Property. The matter proceeded to a non-jury trial, after which the trial court entered an Order on May 15, 2013, ruling that Plaintiffs do not have any 2 The .60-acre Disputed Property consists of an area that is largely gate. The Disputed Property is additionally comprised of a small strip of cleared land abutting the northern boundary of Lot 5, and a cleared, unpaved, 15-foot wide alleyway (hereinafter referred to -foot See Amended Complaint, 11/7/11, Exhibit D. We have included a copy of Memorandum. Plaintiffs had encroached upon the Disputed Property by constructing a wooden deck and maintaining a storage shed on the 15-foot alleyway. See id. -2- J-A16035-14 interest in the Disputed Property by way of either adverse possession or prescriptive Virginia [] and Lawrence [] have a personal license to use the portion of the [D]isputed [P]roperty in the manner it had been used for years by Virginia and Lawrence, as well as their predecessors in title. This license is explicitly personal to Virginia [] and Lawrence [] only. It is further Ordered that the license granted cannot be revoked by George and Martha during their period of ownership. However, when the land is conveyed by George or Martha, or the survivor of them, for valuable consideration, to a bona fide purchaser, the license will terminate. It is further Ordered that the area of the license is confined to the pathway[,] as it now exists[,] and the area of [the Disputed P]roperty that has been cleared and used by Virginia and Lawrence to the east and north of Lot 5[,] and includes the improvements located thereon. Order, 5/15/13. In July 2013, Plaintiffs filed a Motion for Post-Trial Relief. On Septembe 3 Post- and (3) restating Plaintiffs a personal license to continue their encroachment upon the 15-foot alleyway. Plaintiffs filed a Notice of Appeal from the September 3, 2013 Order, and the prothonotary subsequently entered Judgment against Plaintiffs. Plaintiffs present the following issues for our review: I. 3 Whether it was [] err[or] for the Trial Court to hold that [Plaintiffs] did not satisfy the requirements of adverse possession and prescriptive easement with regard to Defendants have not appealed from the denial of their Counterclaim. -3- J-A16035-14 the [D]isputed [P]roperty[,] including the [15-foot] alleyway? II. Whether the Trial Court erred as a matter of law in its definition of prescriptive easement in requiring both adverse and hostile use? III. Whether the Trial Court erred in failing to resolve the the [15-foot] alleyway and the applicable law as being different and separate from the other property in dispute in finding that there was not adverse possession or prescriptive easement with regard to the [15-foot] alleyway? Brief for Plaintiffs at 6. Plaintiffs first argue that the trial court erred in holding that they had failed to establish the requirements of adverse possession or prescriptive easement of the Disputed Property, including the 15-foot alleyway. Id. at 18- erty prescription. Id. at 18-19; see also Trial Court Opinion, 5/15/13, at 5-11. aintiffs at 18. Plaintiffs further point out that they cleared, maintained and mowed the 15-foot alleyway, and that the deck 15-foot alleyway. Id. at 18, 19. Our standard of review is as follows: When reviewing the results of a non-jury trial, we give great deference to the factual findings of the trial court. We -4- J-A16035-14 competent evidence in the record and is free from legal error. For discretionary questions, we review for an abuse of that discretion. For pure questions of law, our review is de novo. Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008) (citations omitted). set forth its rationale and discussed the applicable law, and correctly determined that Plaintiffs had failed to establish adverse possession or a prescriptive easement of the Disputed Property. See Trial Court Opinion, 5/15/13, at 3-14.4 is supported by the law and competent evidence of record. We discern no ng, and we therefore See id. Plaintiffs also argue, in their first issue, that [t]he Trial Court [] erred in holding that adverse possession or prescriptive easement could not be established due to permissive use granted by [George] to a former tenant of Lot [] 5 ]. First, the permissive use involved only a permissive license between Eugene [] and [George, i.e., for use of the pathway,] and could not transfer to [Plaintiffs]. Moreover, Eugene [] did not have any property 4 The trial court also properly concluded that, under the doctrine of equitable estoppel, Plaintiffs had a personal license to use and encroach upon the 15foot alleyway, and to continue to use (1) the area of the Disputed Property that has been cleared and maintained by Plaintiffs; and (2) the pathway. See Trial Court Opinion, 5/15/13, at 14-15. 5 Virginia. Katherine is the original titleholder of Lot 5, and predecessor-intitle to Plaintiffs. -5- J-A16035-14 interest or right to bind either the original property owner or [Plaintiffs]. Brief for Plaintiffs at 16 (footnote added). We conclude that this claim lacks merit, as the trial court expressly found that George had not only given Eugene permission to use the pathway, but had also given permission to Katherine. See Trial Court Opinion, 5/15/13, at 3, 5. The trial court additionally found that George had given a key to the gate located at the beginning of the pathway to both Eugene and Katherine, and that both of them had used the pathway. See id. merit. Plaintiffs next argue that the trial court erred as a matter of law in determining that a claimant is required to prove both adverse and hostile use to establish a prescriptive easement, and assert that they satisfied their burden by proving that their use of the Disputed Property was adverse. Brief for Plaintiffs at 16, 22-23; see also Trial Court Opinion, 5/15/13, at 13-14 (wherein the trial court judge stated, inter alia term adverse subsumes the term hostility. In order to be adverse[,] the not entitle Plaintiffs to relief. Even assuming, arguendo, that hostile use is not a separate, necessary requirement, the trial court properly determined that Plaintiffs had failed to establish that their use of the Disputed Property was adverse, and, therefore, Plaintiffs failed to prove a prima facie claim. -6- J-A16035-14 Finally, Plaintiffs assert that the trial court committed reversible error, and violated Pa.R.C.P. 1038(b),6 by failing to resolve the issues raised in Matter filed in response thereto. Brief for Plaintiffs at 24-25. We disagree. Initially, we observe that Plaintiffs fail to acknowledge that the trial requested the trial court to order Plaintiffs to remove the wooden deck and storage shed that encroached upon the 15-foot alleyway. 9/3/13. See Order, Moreover, claim] is [their] dissatisfaction that the Trial Court awarded them a personal license to use the [15-foot] alley[]way[,] rather than ownership by adverse argument in connection with this claim urges that this panel hold that the trial court erred in failing to award Plaintiffs title to the 15-foot alleyway under the doctrines of adverse possession or prescriptive easement. See id. at 25-27. We have already addressed this claim above, and concluded that 6 Rule 1038(b) provides, in relevant part, that in a nondecision of the trial judge may consist only of general findings as to all -7- J-A16035-14 it lacks merit, and there is thus no reason to address it again here.7 Judgment affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/20/2014 7 We observe that, in its Opinion, the trial court acknowledged and discussed -foot alleyway, and their construction and maintenance of improvements situated thereon. See Trial Court Opinion, 5/15/13, at 4, 9on appeal, the trial court considered the 15-foot alleyway in determining that Plaintiffs had failed to meet the requirements of adverse possession or prescriptive easement regarding all of the Disputed Property, including the 15-foot alleyway. -8-
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