Blackwood, Inc. v. Reading Blue Mt.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2015
• Docket: 1633 MDA 2014
• Status: Unpublished

Opinion

J-A12017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BLACKWOOD, INC., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

READING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY,

Appellee No. 1633 MDA 2014

Appeal from the Order Entered August 29, 2014 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-3238-08

BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2015

Blackwood, Inc. (“Blackwood”) appeals from an August 29, 2014 order

entering summary judgment in favor of Reading Blue Mountain & Northern

Railroad Company (“Blue Mountain”) in this quiet title action. We affirm the

trial court’s determination that there is no genuine issue of material fact that

Blackwood does not own title to the land that it is claiming in this action and

therefore affirm the grant of summary judgment in favor of Blue Mountain.

We reverse the trial court’s refusal to permit Blackwood to amend its

complaint to raise a new cause of action, i.e., the right to a private railroad

crossing.

On November 6, 2008, Blackwood instituted this quiet title action.

Preliminary objections were granted to the original complaint as well as four J-A12017-15

subsequent ones. Blackwood’s fifth amended complaint, which was filed on

January 4, 2011, survived Blue Mountain’s preliminary objections. In its fifth

amended complaint, Blackwood averred the following. Blackwood “is the

landowner of a tract situate in Reilly Township consisting of approximately

2,300 acres as described in a deed of record in Deed Book Volume 0550 at

Page 0306, a copy of which is attached hereto and marked Exhibit A.” Fifth

Amended Complaint, 1/4/11, at ¶ 5. Blackwood’s tract “is dissected

longitudinally, generally East and West by the rail line of the Reading Blue

Mountain and Northern Railroad Company.” Id. at 6. Based upon a title

examination performed by A. Matthew Dudish, whose affidavit was attached

to the fifth amended complaint, Blackwood claimed that it had title to that

rail line, as set forth in a chain of title outlined in the complaint. Mr. Dudish

examined the deeds of record in Schuylkill County and found no exceptions,

easements, or other interests in land granted by Blackwood or its

predecessors in title to Blue Mountain or its predecessor in title.

Blackwood claimed that Blue Mountain was asserting title to the land

underneath the east/west railroad track under two recorded deeds: 1) a

deed dated March 29, 1976 between Andrew L. Lewis, Jr. and Joseph A.

Castle, as trustees in bankruptcy and grantors of the property of Reading

Company, to Consolidated Rail Corporation (“Conrail”), as grantee; 2) a

deed dated December 14, 1990, wherein Conrail granted the same lands

described in the March 29, 1976 deed to Blue Mountain. Blackwood

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maintained that Reading Company never had title to the land under

Blackwood’s property, and that Conrail, likewise, did not have title to that

property. Mr. Dudish’s affidavit asserted that he concluded that Blue

Mountain did not own any land under any railroad tracks that Blue Mountain

operated on Blackwood’s land.

Blackwood filed a motion for summary judgment, again asserting

ownership of land under railroad tracks running “longitudinally generally East

and West by the rail line of the Reading Blue Mountain and Northern Railroad

Company (the "Railroad").” Plaintiff Blackwood, Inc.'s Motion For Summary

Judgment Pursuant To Pa.R.C.P. 1035.1, et seq., 8/26/13, at ¶ 6.

Blackwood repeated the averments in the complaint that Blue Mountain was

asserting title over the land by virtue of the 1976 and 1990 deeds and that

the grantors in those deeds, Reading Company and Conrail, did not have

record title to the land under the track that dissected Blackwood’s property.

Blackwood’s summary judgment request rested on the affidavit of Mr.

Dudish, who concluded:

In-sum, my examination revealed that: (a) the deeds set forth in the chain of title confer ownership in the Plaintiff; Blackwood; (2) there are no recorded deeds regarding the Plaintiff Blackwood's property which confer any ownership interest and/or other rights to the Mine Hill Railroad [the railroad that built the tracks] and/or any of its successors in interest, including the Defendant railroad; and (3) no deeds have been recorded in the Office of Recorder of Deeds in Schuylkill County, which deeds confer ownership to the Defendant railroad in any parcels or tracks located on the Plaintiff, Blackwood's property.

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Affidavit, A. Matthew Dudish, 9/14/10, at ¶ 13.

Blue Mountain responded to this motion for summary judgment and

filed a cross motion for summary judgment. Blue Mountain more specifically

described its railroad tracks that were located on Blackwood’s 2,300 acres,

indicating that there were three tracks and not just the track running east

and west mentioned in Blackwood’s complaint and motion for summary

judgment. Specifically, the Tremont Extension a/k/a the West End Branch

longitudinally dissected Blackwood’s land. Two other tracks ran from the

Tremont Extension, known as the Swatara Branch and the Middle Creek

Extension. Blue Mountain’s cross motion for summary judgment claimed

ownership of the land under all three railroad lines on Blackwood’s

surrounding acreage.

The Tremont Extension, the Swatara Branch, and the Middle Creek

Extension were built by the Mine Hill and Schuylkill Haven Railroad (“Mine

Hill Railroad”). Mine Hill Railroad was established by an act of the

Pennsylvania General Assembly on March 24, 1828, referred to as Act 96 by

the parties. This Act accorded Mine Hill Railroad the power to take title to

land in fee simple by eminent domain. The Pennsylvania legislature later

enacted various supplemental legislation authorizing Mine Hill to extend

existing lines and add branch lines.

Mine Hill Railroad first built a line, which is not at issue herein, that led

north from the town of Schuylkill Haven along the Schuylkill River to a town

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then known as Mine Hill. That railroad line became operational in 1831,

transporting coal from mines to boats in a canal on the river. In 1829, the

Mine Hill Railroad constructed a branch called the West West Branch from its

main rail line. The West West Branch ran in a westerly direction starting

from Westwood, a town about mid-way between Mine Hill and Schuylkill

Haven, and the West West branch ends at Silverton, which is now known as

Llewellyn.

The three railroad tracks in question, the Tremont Extension, the

Swatara Branch, and the Middle Creek Extension, were built after local

landowners asked Mine Hill Railroad to build lines to a recently-opened coal

field in the Swatara area. Blue Mountain attached the affidavit of Richard B.

Frey to its cross motion for summary judgment. Mr. Frey established his

knowledge of the relevant railroad history and indicated that Mine Hill

constructed the rail routes at issue in this litigation pursuant to the

legislative acts authorizing Mine Hill Railroad to exercise eminent domain

powers. Blue Mountain’s Motion for Cross Motion for Summary Judgment,

1/29/14, ¶¶ 52-64, Exhibit F ¶¶ 8-14. Mr. Frey reported that, in 1845, Mine

Hill constructed the seven-and-a-half-mile stretch of east-west track known

as the “Tremont Extension.” Id., Exhibit F ¶¶ 13, 15. The Tremont

Extension began in Silverton (now Llewellyn), and ended to the west in

Tremont. In November 1850, Mine Hill constructed a three-mile branch line

on the Tremont Extension that ran north-northwest and was known as the

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“Swatara Branch.” Id., Exhibit F ¶ 17. The Swatara Branch started at

Swatara Junction, which is slightly to the east of Tremont. In 1851, Mine

Hill added another branch line running off the Swatara Branch in a westerly

direction, known as the “Middle Creek Extension.” Id., Exhibit F ¶ 18. Over

time, the Tremont Extension became known as the “West End Branch.” Id.,

Exhibit F ¶ 21. Portions of the West End Branch, Swatara Branch, and

Middle Creek Extension traverse the property now owned by Blackwood.

Id., Exhibit F ¶¶ 13-18; Blackwood’s Answer to Blue Mountain’s Cross

Motion for Summary Judgment, 4/14/14, ¶ 63.

Mine Hill owned and operated these three lines until May 1864, when

they were leased to the Philadelphia and Reading Railroad, which continued

to operate them until 1924. Blue Mountain’s Cross Motion for Summary

Judgment, 1/29/2014, Exhibit F ¶ 20. In 1924, the Philadelphia and Reading

Railroad became known as the Reading Company. Id. Reading Company

utilized these three lines until April 1976. In October 1951, Reading

Company purchased all of the remaining shares of Mine Hill Railroad stock in

private hands and merged Mine Hill Railroad into Reading Company. Id.,

Exhibit F ¶ 24. Thus, Reading Company became the owner of all of Mine Hill

Railroad’s tracks as of October 1951.

In 1976, Reading Company sold its railroad tracks to Conrail. Mr.

Frey’s affidavit states that Reading Company transferred the West End

Branch, the Swatara Branch, and Middle Creek Extension in the 1976 deed

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to Conrail. Id., Exhibit F ¶ 27. The 1976 deed did not identify these three

rail lines by name, but instead transferred them to Conrail by reference to

line codes 0350 and 0383 as designated by the United States Railway

Association. Id.

Finally, Mr. Frey also indicated that, in December 1990, Conrail sold

these three rail lines (again described by reference to line codes 0350 and

0383) to Blue Mountain. Id., Exhibit F ¶ 29. Accordingly, Mr. Frey

concluded that ownership of the land beneath the rail lines traversing

Blackwood’s property (the Tremont Extension a/k/a West End Branch, the

Swatara Branch, and the Middle Creek Extension), was originally obtained by

eminent domain by Mine Hill Railroad pursuant to Act 96, procured by

Reading Company by merger with Mine Hill Railroad, deeded by Reading

Company to Conrail in 1976, and then sold by Conrail to Blue Mountain in

December 1990. Id., Exhibit F ¶¶ 30-32. Based upon these uncontested

facts, Blue Mountain asserted that it owned the land underneath the

Tremont Extension, the Swatara Branch, and the Middle Creek Extension.

On May 16, 2014, approximately one week before the date scheduled

for oral argument on the summary judgment motions, Blackwood filed a

motion requesting leave to amend its fifth amended complaint to assert,

pursuant to Act 96, a right to between three and five private crossings over

Blue Mountain’s rail lines in the event the trial court granted Blue Mountain’s

cross motion for summary judgment. By order dated August 29, 2014, the

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trial court issued an order and opinion denying Blackwood’s motion for

summary judgment, granting Blue Mountain’s cross motion for summary

judgment, and denying Blackwood’s motion for leave to amend the fifth

amended complaint.

On September 26, 2014, Blackwood filed a timely notice of appeal. On

appeal, Blackwood raises two issues for our consideration and

determination:

I. Whether the trial court erred in denying Blackwood’s motion for summary judgment and granting [Blue Mountain]’s cross motion for summary judgment in the quiet title action?

II. Whether the trial court abused its discretion in denying Blackwood’s motion to amend its pleadings so that, in the event the trial court ruled in favor of [Blue Mountain] on its counterclaim to quiet title, Blackwood could have its claim for the statutory right to private crossings over the rail lines adjudicated?

Blackwood’s Brief at 4.

For its first issue on appeal, Blackwood challenges the trial court’s

decision to deny its motion for summary judgment and grant Blue

Mountain’s cross motion for summary judgment. The standard of review for

an order granting a motion for summary judgment is as follows:

A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the

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summary judgment rule. Pa.R.C.P. 1035.2. 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 non-moving 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 it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62

(Pa.Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

The following principles apply in a quiet title action. “[W]hen

reviewing a decision in a quiet title action, we must determine whether the

trial court’s findings are supported by competent evidence,” Herr v. Herr,

957 A.2d 1280, 1285 (Pa.Super. 2008), and we will not reverse “in the

absence of an error of law or a capricious disregard of evidence.”

Montrenes v. Montrenes, 513 A.2d 983, 984 (Pa.Super. 1986). The

burden of proof in an action to quiet title is on the plaintiff, Cox’s, Inc. v.

Snodgrass, 92 A.2d 540, 541-42 (Pa. 1952), who may recover only on the

strength of his or her own title and not upon the weakness of the

defendant’s title. Albert v. Lehigh Coal & Navigation Co., 246 A.2d 840,

843 (Pa. 1968); Carratelli v. Castrodale, 137 A.2d 805, 806 (Pa.Super.

1958). The plaintiff first has the burden of proving a prima facie title, proof

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of which is sufficient until a better title is shown by the defendant. If the

plaintiff makes out a prima facie claim of title, the burden shifts to the

defendant to go forward with evidence to establish his own title to defeat the

plaintiff’s apparent ownership. Golden v. Ross, 186 A. 249, 249 (Pa.Super.

1936); Babcock Lumber Co. v. Faust, 39 A.2d 298, 301 (Pa.Super. 1944).

Blackwood’s first issue on appeal contests the trial court’s

determination that Blue Mountain has title to the land under the three rail

lines. In its opinion, the trial court indicated that Blackwood met its initial

burden to set forth a prima facie title to the entirety of its 2,300-acre parcel

of land, and that as a result, it was necessary for Blue Mountain to establish

superior title. Trial Court Opinion, 8/29/2014, at 10. The trial court also

recognized that Blue Mountain’s claim to title “cannot be established based

upon a search of the Recorder of Deeds alone,” id., as there are no recorded

deeds evidencing ownership until the 1976 deed from Reading to Conrail.

On appeal, Blackwood raises two substantive challenges to the trial

court’s grant of summary judgment on Blue Mountain’s claim of title. First,

Blackwood contends that Blue Mountain has proffered no evidence that Mine

Hill Railroad ever complied with the requirements of Act 96 to obtain

ownership of the land beneath the three rail lines in question by eminent

domain. Since Mine Hill Railroad never owned the land, Blackwood

continues, Blue Mountain’s predecessors in interest had no ownership

interest to convey to Conrail, and thus, Conrail had no interest to convey to

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Blue Mountain. Second, Blackwood avers that even if Mine Hill Railroad

obtained title by eminent domain, the trial court erred in ruling that the

1976 and 1990 deeds conveyed any interest in the property to Conrail or

Blue Mountain, as these deeds do not contain any reference to, or

description of, the land beneath the rail lines on Blackwood’s property.

To develop transportation systems in the nineteenth century, the

Pennsylvania legislature enacted a wide variety of land grant legislation,

creating railroad and turnpike corporations as well as aqueduct, road,

bridge, and canal authorities. See generally Peter Karsten, Supervising the

“Spoiled Children of Legislation”: Judicial Judgments Involving Quasi-Public

Corporations in the Nineteenth Century U.S., 41 Am. J. Legal Hist. 315, 315

(1997). In creating these new legal entities, the legislature gave them, inter

alia, the ability to raise funds through stock and bond subscriptions, and

eminent domain powers to take private property through some system of

arbitrated compensation. Id. With respect to the eminent domain powers

granted to railroad corporations, land grant legislation generally set forth a

three-step process:

The successive steps contemplated … as necessary to vest a title to the road-way in the corporation, are these: First. A preliminary entry on the lands of private owners for the purpose of exploration. This is made by engineers and surveyors, who run and mark one or more experimental lines, and who report their work, with such maps and profiles as may be necessary to present it properly to the company that employs them. Second. A selection and adoption of a line, or one of the lines, so run, as and for the location of the proposed railroads. This is done by

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the corporation, and it requires the action in some form of the board of directors. This makes what was before experimental and open a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates to the use of the corporation. Third. Payment to the owner for what is taken and the consequences of the taking, or security that it shall be made, when the amount due him is legally ascertained. The title of the owner is not divested until the last of these steps has been taken.

Williamsport & N. B. R. Co. v. Phila. & E. R. Co., 21 A. 645, 646 (Pa.

1891).

Act 96 was one such instance of land grant legislation. It created the

Mine Hill Railroad and gave it the ability to raise capital. Act 96, §§ 1-12.

Act 96 also gave Mine Hill Railroad the power to exercise eminent domain

pursuant to the above-described three-step process. With respect to the

first two steps of the process, § 14 of Act 96 gave Mine Hill Railroad

representatives the right to enter onto private property for the purpose of

determining an appropriate route.1 Section 13 instructed Mine Hill Railroad’s

president and board of directors, after adopting a specific route, to provide

public notice of its precise location by the filing of a map in the office of

Pennsylvania’s Secretary of State:

SECT. 13. And be it further enacted by the authority aforesaid, That the president, directors and company of the said rail road ____________________________________________ 1 Section 14 further provides that “it shall be lawful for the president, directors and company of the said rail road company, and their agents and all persons employed by or under them for the purpose contemplated in this act, to enter upon any land which they shall deem necessary for laying out said road.” Act 96, § 14.

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company shall have the power to survey, lay down, ascertain, mark and fix such route as [it] shall deem expedient for said rail road, beginning at or near Schuylkill Haven, in the county of Schuylkill, as near as the ground will admit, to the Mine Hill, having due regard to the situation and nature of the ground, and of the buildings thereon, the public convenience and the interest of the stockholders, and so as to do the least damage to private property, and the said road shall not be more than five rods wide, and shall not pass through any burying ground nor place of public worship, or any dwelling house without the consent of the owner thereof, nor shall it pass through any out buildings of the value of three hundred dollars without such consent; and the said president, directors and company, shall within six months after ascertaining the route of the said rail road, cause an accurate survey of the lines of the said road to be made, a map or plot of which survey they shall cause to be filed in the secretary’s office of this state, which map or plot or a certified copy thereof shall be sufficient evidence of the course of the said road, which may then be opened and all the expenses incurred thereby shall be defrayed by said company: Provided, that the said rail road shall be made double, so as to accommodate the trade ascending as well as descending the same.

Id. § 13. With respect to the third step of the process, § 15 authorized

corporate representatives to negotiate and contract for the purchase of real

property along the chosen route, id. § 15, and § 16 granted Mine Hill

Railroad the power of eminent domain if the landowners refused to

voluntarily contract at an agreed-upon price, including a multi-step process

to determine just compensation due and payable to the landowner. Section

16 made clear, however, that absent the consent of the landowner, Mine Hill

Railroad had no right to use of the property until just compensation was

paid:

Provided, that the payment of damages aforesaid, for land through which the said road may be laid, shall be made before

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the said company, or any person under their direction, or in their employ, shall be authorised to enter upon and break ground in the premises, except for the purposes of surveying and laying out said road, unless the consent of the owner of such land be first obtained.

Id. at § 16.

Blackwood contends that Blue Mountain, in connection with its cross

motion for summary judgment, offered no evidence that Mine Hill Railroad

took any actions in compliance with these sections of Act 96. Blackwood

thus argues that the trial court erred in concluding that Mine Hill Railroad

ever obtained ownership of the property beneath the three rail lines

presently on Blackwood’s property. Blackwood asserts that its evidence,

including searches of public and private records, demonstrates the absence

of any of the following relevant documentation:

(i) any deeds of record reflecting title to the Subject Property in any railroad prior to the Reading Company[;] (ii) any recorded releases from owners of property who were predecessors of Blackwood conveying property or property rights or acknowledging payment from any predecessor of [Blue Mountain] pertaining to the Subject Property; (iii) any formal corporate action by the governing board of any predecessor to [Blue Mountain] describing the Subject Property or property to be taken under the Act of 1828; (iv) any plan of the Subject Property of record in the real estate records of Schuylkill County, or (iv) any map of the Subject Property recorded in the Pennsylvania Secretary of State’s office. No such documents exist.

Appellant’s Brief at 28-29. As a result, Blackwood asserts that genuine

issues of material fact remain for resolution.

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However, Pennsylvania appellate courts have recognized an

evidentiary presumption in favor of railroads. In particular, after a lapse of

twenty years, a railroad may base its claim to title on the presumption that

“the land was paid for, or that there was some form of written grant which

has since become lost.” Coxe v. Lehigh Valley R.R. Co., 158 A.2d 782,

786 (Pa. 1960); see also Brankin v. Phila., Newtown & N.Y. R.R. Co.,

133 A. 563, 564 (Pa. 1926) (“[T]here is, nevertheless, the presumption,

after 20 years from the time the right to the damages accrued, that they

have been paid.”). This twenty-year presumption is rebuttable, and the

party against whom the presumption is applied may rebut it with evidence

that payment for or grant of the land never occurred. Coxe, supra.

“Whether the facts and evidence relied upon to rebut the presumptions are

true, is a question of fact for the jury; but whether, if true, they are

sufficient to rebut the presumption, is a question of law for the court.” Id.

Our Supreme Court most recently applied this presumption in Coxe, a

case with certain factual similarities to the present one. In Coxe, the

railroad constructed double track rail lines in 1884, and in connection with a

dispute over coal rights more than seventy years later, the plaintiff claimed

that the railroad had done so “without right or paying compensation

therefor,” pointing out that there was no evidence of payment or any deed

or other writing giving the railroad title to the disputed surface rights to the

land. Id. at 784-87, 789. Our Supreme Court affirmed both the trial court’s

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application of the twenty-year presumption in favor of the railroad and its

ruling that exhibits offered by the plaintiff, most of which reflected only the

absence of any paper title to the property, failed to rebut the presumption.

Id. at 787-89. In so ruling, our Supreme Court made clear that the

presumption may not be rebutted merely by highlighting the absence of

evidence of payment, and instead held that rebuttal requires affirmative

proof that the railroad did not pay just compensation or acquire some other

form of grant for title to the property. Id.

In the present case, the trial court applied the evidentiary presumption

in favor of Blue Mountain and ruled that Blackwood “has not provided

sufficient and competent evidence that the railroad did not compensate the

landowners for taking the land through eminent domain[.]” Trial Court

Opinion, 8/29/2014, at 14. Blackwood now contends that the trial court

erred in failing to recognize the evidence it presented that shows

the non-existence of (a) any grant or deed, (b) evidence of payment, as the same should have been evidenced by the recording of releases, but there are none recorded in this matter . . ., (c) a properly recorded map depicting the line of the route across Blackwood’s property, and (d) any corporate documentation describing the property to be taken by eminent domain power.

Appellant’s Brief at 26 (emphasis in original).

With respect to (a) and (b), the recognition that there are no filed

grants, deeds, or evidence of payment does not rebut the presumption. As

indicated, the Supreme Court in Coxe rejected any suggestion that the

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presumption could be rebutted by testimony and exhibits showing the

absence of any documentation confirming the railroad’s title to the surface

rights to the land in question. The Supreme Court in Coxe found that this

evidence “adds nothing to the case,” as the “only important thing is that it

shows no paper title, but that is already conceded.” Coxe, 158 A.2d at 788.

Similarly in this case, the absence of filed grants, deeds, or evidence of

payment proves only that Blue Mountain cannot produce documentation to

demonstrate Mine Hill Railroad’s exercise of its eminent domain powers.

Because of the presumption, however, the evidentiary burden has shifted

from Blue Mountain to Blackwood, and the lack of documentation proving

Mine Hill’s acquisition of title by eminent domain is not a sufficient rebuttal

to create a genuine issue of material fact.

The apparent non-existence of a filed map or corporate resolution

depicting the lines or adopting the location of the rail lines also does not

rebut the presumption. Where a railroad claims title by the exercise of

eminent domain, the Coxe evidentiary presumption is a presumption of

payment of just compensation. Id. at 786. The presumption does not

extend to other steps in the eminent domain process. See generally

Williamsport & N. B. R. Co., supra at 646 (setting forth the three-step

process for the exercise of eminent domain in land grant legislation).

Blackwood alternatively argues that the absence of either a corporate

resolution by Mine Hill adopting the present rail line or a map filed with the

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secretary of state’s office depicting the current line as required by § 13 of

Act 96 is proof that Mine Hill Railroad failed to comply with the prerequisites

for the exercise of eminent domain pursuant to Act 96.2 Blackwood’s brief at

23. Blackwood asserts that “a corporation cannot exercise the power to

appropriate land until it has fixed the location of its line . . . as a property

owner’s right to damages from the specific appropriation of real property at

issue in any given matter does not arise until the appropriation has been

fixed.” Id. (citing, e.g., Foley v. Beech Creek Extension R.R. Co., 129 A.

845, 846 (Pa. 1925) (“the enabling acts delegating the power or authority to

exercise the right of eminent domain are to be strictly construed”)).

The present case, however, does not involve a property owner’s right

to damages in eminent domain proceedings. In the current quiet title

action, the issue of Mine Hill Railroad’s compliance (or lack thereof) with the

corporate resolution/map filing requirements of § 13 of Act 96 is irrelevant

for the following reasons. As quoted hereinabove from our Supreme Court’s

1891 decision in the Williamsport & N. B. R. Co. case, the second step of

the eminent domain process is for the railroad corporation to formally adopt

a specific route for the new rail line by “an action in some form” by its board

of directors. Williamsport & N. B. R. Co., supra at 646. As described in §

____________________________________________ 2 In particular, Blackwood relies upon a certification from the Pennsylvania Department of State confirming that it has no route map on file from Mine Hill.

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13 of Act 96, this second step required the filing of a map “in the secretary’s

office of this state, which map or plot or a certified copy thereof shall be

sufficient evidence of the course of the said road.” Act 96, § 13.

The requirement of a corporate act designating the specific route of a

rail line to be acquired by eminent domain has been referred to as the act of

“location.” Id. Pennsylvania courts have identified two purposes for the

requirement of the act of location. First, it immediately provides the railroad

corporation with title as against all third parties and other corporations,

precluding these other entities, including rival railroad corporations, from

making competing claims on the property. See, e.g., Underwood v.

Pennsylvania M. & S. R.R. Co., 99 A. 64, 65 (Pa. 1916). Second, it

provides conditional title as against the property owners along the route,

which ripens into absolute title upon the payment of just compensation.

Id.; Williamsport & N. B. R. Co., supra at 646. As “conditional title,” the

act of location “merely amounts to a notice to him that the company intends

to condemn the land, and that any act done by him subsequent thereto

affecting the property and inconsistent with the use for which the

condemnation proceedings are contemplated must be done at his risk.”

Underwood, 99 A. at 65. The act of location does not divest the property

owner of actual title, as title instead passes to the railroad by eminent

domain only when just compensation is paid. Id.; Williamsport & N. B. R.

Co., supra at 646.

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In an action by a property owner against a railroad corporation for

damages, or by a rival railroad on a competing claim for title, whether the

railroad corporation at issue properly completed the act of location would be

an important issue. In the present quiet title case, however, whether Mine

Hill Railroad obtained title to the land beneath the rail lines in question by

eminent domain from the property owners at the time of their construction

depends exclusively on whether Mine Hill Railroad paid just compensation as

provided by Act 96. As discussed supra, absent rebutting evidence from

Blackwood, the twenty-year evidentiary presumption resolves the issue of

payment. Mine Hill Railroad’s compliance with the location requirements in

§ 13 of Act 96 is, for present purposes, irrelevant.

For these reasons, we conclude that the trial court did not err in its

grant of summary judgment to Blue Mountain on the issue of Mine Hill

Railroad’s acquisition of title by eminent domain pursuant to Act 96. Thus,

we hold that Blue Mountain established that there was no genuine issue of

material fact that Mine Hill Railroad was the legal owner of the land under

the three railroad tracks now located on Blackwood’s acreage.

Concomitantly, Reading Company, after it merged with Mine Hill Railroad in

1951, became the legal owner of the Tremont Extension a/k/a the West End

Branch as well as the Swatara Branch and the Middle Creek Extension.

This conclusion brings us to Blackwood’s challenges to the 1976 and

1990 deeds. First, however, we question whether Blackwood has the right

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to contest whether the 1976 and 1990 deeds passed ownership of the land

beneath these three rail lines from Mine Hill Railroad’s successors in interest,

Reading Company, to Conrail and from Conrail to Blue Mountain.

Blue Mountain established that there was no genuine issue of material

fact that, as of 1976, Reading Company was the legal title holder to all three

branches at issue herein. Assuming, for the sake of argument, that the

1976 and 1990 deeds did not pass title to the Tremont Extension, the

Swatara Branch, and the Middle Creek Extension, that does not mean that

Blackwood owns the land under the railroad tracks. Any conclusion that the

1976 and 1990 deeds did not operate to convey these railroad tracks merely

means that the tracks were not conveyed by Reading Company and Conrail,

and that either Reading Company or Conrail continues to own them.

Since Reading Company owned and operated all three branches

located on Blackwood’s property, Blackwood’s ownership of the bed under

the three railroad tracks located on its land is entirely dependent upon

whether the tracks were abandoned. Dellach v. DeNinno, 862 A.2d 117,

118 (Pa.Super. 2004) (“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.”). Reading Company

never abandoned these tracks, having operated its trains on the lines until it

sold its tracks to Conrail, which also continually used the lines. Likewise,

Blue Mountain never ceased utilization of any of the three tracks in question

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after it obtained the railroad tracks in 1990. No railroad filed an intent to

abandon the tracks. In fact, Blackwood has never even asserted that any

railroad abandoned these three tracks.

Blackwood only proved that it owned the 2,300 acres upon which the

railroad tracks were located. Blue Mountain came forward with evidence

that Blackwood did not own the land under any of the three tracks at issue

herein because Reading Company acquired title to them. Blackwood did not

obtain title through Reading Company, and Blackwood made no claim that

any tract was abandoned. Thus, Blackwood can obtain no relief in this quiet

title action even if the 1976 and 1990 deeds are construed so as to fail to

transfer title to the Tremont Extension, the Swatara Branch, and the Middle

Creek Extension. Assuming that to be true, Blackwood is not the owner of

the land underneath the three railroad tracks.

Nevertheless, we agree with Blue Mountain’s position that it did

acquire title to the land under the Tremont Extension, the Swatara Branch,

and the Middle Creek Extension pursuant to the 1976 and 1990 deeds.

Blackwood argues that the two deeds, which utilize line codes developed by

the United States Railway Association to describe the property conveyed, do

not specifically identify Blackwood’s land. Blackwood’s brief at 30-34, 36-

38. Blackwood asserts that the inadequacies in the 1976 and 1990 deeds

leave for resolution a genuine issue of material fact as to whether title to the

real property at issue has been conveyed to Blue Mountain. Id.

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We begin with the 1976 deed, which provides that Reading Company

conveyed to Conrail all of its “right, title and interest in such rail properties,

free and clear of any liens or encumbrances,” including:

A. All of Grantors right, title and interest, legal and equitable, in and to the real property located in the County of Schuylkill, Commonwealth of Pennsylvania as described in Exhibit A.

1976 Deed, 3/29/76, at 1. Exhibit A contains descriptions of the rail lines

conveyed, using the line code for each such line. The descriptions identified

by the parties as relevant to the present inquiry are as follows:

[Line Code 0350:]

Situate in the County of Schuylkill, Commonwealth of Pennsylvania, and being the Reading’s line of Railroad known as the West End Branch and being all the real property in the County lying in, under, above, along, contiguous to, adjacent to or connecting to such line.

Such line originates in the County near Westwood, connecting to another line of railroad known as West End Branch, passes through Tremont, and Good Spring and terminates in the County near Keffers.

The line of railroad described herein is identified as Line Code 0350 in the records of the United States Railway Association.

* * *

[Line Code 0383:]

Situate in the County of Schuylkill, Commonwealth of Pennsylvania, and being the Reading Company’s line of railroad known as the Swatara Colliery Branch and being all the real property in the County lying in, under, above, along, contiguous to, adjacent to or connecting to such line.

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Such line originates in the County near Swatara Junction in Reilly, connecting to another line of railroad known as the Reading West End Branch, and terminates in the County in Reilly after 1.8 miles.

The line of railroad described herein is identified as Line Code 0383 in the records of the United States Railway Association.

Blackwood’s Answer to Blue Mountain’s Cross Motion for Summary

Judgment, 4/14/14, at Exhibit A.

The 1990 Deed sets forth the following conveyance from Conrail to

Blue Mountain:

ALL THAT CERTAIN PROPERTY OF THE Grantor, together with all of the improvements thereon, being those portions of Grantors lines of railroad known as the Reading Cluster, situate in Berks, Carbon, Columbia, Northumberland and Schuylkill Counties, Pennsylvania … described in Exhibits “A” and generally indicated in Exhibit “B” hereof.

Id. As in the 1976 Deed, Exhibit A to the 1990 Deed conveys the real

property beneath the rail lines identified by line codes 0350 and 0383 as

follows:

ALL THAT CERTAIN property of the Grantor, being a portion of the line of railroad known as the West End Branch (aka Good Spring Industrial Track) and identified as Line Code 0350 in the Recorder’s Office of Schuylkill County, Pennsylvania in Book1262 at page 433, situate in the County of Schuylkill and Commonwealth of Pennsylvania; the BEGINNING and ENDING being indicated on Grantor’s Case Plan No. 69801, sheets 15 of 28 and 16 of 28, which is attached hereto and made a part hereof as Exhibit “B”[.]

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ALL THAT CERTAIN property of the Grantor, being a portion of the line of railroad known as the Swatara Colliery Branch (aka Swatara Industrial Track) and identified as Line Code 0383 in the Recorder’s Office of Schuylkill County, Pennsylvania in Book 1262 at page 438, situate in the Township of Reilly, County of Schuylkill and Commonwealth of Pennsylvania; the BEGINNING and ENDING being indicated on Grantor’s Case Plan No. 69801, sheets 18 of 28 and 19 of 28, which is attached hereto and made a part hereof as Exhibit “B”[.]

Id. Exhibit B. Exhibit B to the 1990 Deed contains maps depicting the

beginning and end of each rail line conveyed, including the four maps

relating to line codes 0350 and 0383.

Based upon our careful review of the certified record on appeal,

including in particular the above descriptions and maps, line code 0350

adequately describes the Tremont Branch a/k/a the West End Branch, and

line code 0383 adequately describes the Swatara Branch. While it is true, as

Blackwood asserts, that the line code descriptions of these two lines only

identify the beginnings and ends of the lines without specific reference to

those portions of the lines on Blackwood’s property, Blackwood has not

submitted any evidence to create a genuine issue of material fact.

Blackwood admits that portions of the Tremont Extension and Swatara

Branches traverse its property. Blackwood’s Answer to Blue Mountain’s

Cross Motion for Summary Judgment, 4/14/14, ¶ 63. Mr. Frey’s affidavit

provides that these two lines have been in continuous operation for more

than 150 years, and neither party has submitted any evidence that the

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location of these lines has ever changed. Blue Mountain’s Motion for Cross

Motion for Summary Judgment, 1/29/14, Exhibit F ¶ 31. As a result, we

conclude that the 1976 and 1990 deeds clearly conveyed the real property

beneath the Tremont Extension and Swatara Branches, including those

portions located on Blackwood’s 2300-acre tract, to Blue Mountain.3

We also hold the 1976 and 1990 deeds were sufficient to convey the

Middle Creek Extension to Blue Mountain. In 1973, the United States

____________________________________________ 3 Blackwood also argues that the trial court erred in granting summary judgment in favor of Blue Mountain because a genuine issue of material fact still exists regarding the nature of the property interest that Blue Mountain owns (a railroad right of way or an easement). We disagree. Pennsylvania courts have consistently held that when exercising eminent domain, railroads acquire a “railroad right of way,” namely “a right to exclusive possession, to fence in, to build over, the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it, within the limits of railroad uses, as absolutely and as uncontrolled as an owner in fee.” Pa. Schuylkill Valley R.R. Co. v. Reading Paper Mills, 24 A. 205, 205 (Pa. 1892); see also Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 112 (Pa. 1957); Lacy v. E. Broad Top R.R. & Coal Co., 77 A.2d 706, 708 (Pa.Super. 1951).

Contrary to Blackwood’s contention, Mackall v. Fleegle, 801 A.2d 577 (Pa.Super. 2002), does not suggest a contrary result. Mackall involved a disputed interpretation of the language in a documented quitclaim transfer of real property by two private citizens to a railroad company. Id. at 581- 82. Based upon the contents of the transferring document, we concluded that it conveyed an easement over real property rather than a fee simple interest. Id. at 582. Although the 1976 and 1990 deeds likewise involve quitclaim transfers, no similar issue exists in this case. Mine Hill Railroad obtained a railroad right of way by eminent domain, and the 1976 and 1990 deeds both transfer all of the property interests owned by the grantor to the grantee. As such, Blue Mountain now owns a railroad right of way to the real property beneath the Tremont Extension and Swatara Branches.

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government passed the Regional Rail Reorganization Act, 45 U.S.C. §§ 701,

et seq. In § 701, Congress articulated the following pertinent findings.

Essential rail service in the northeastern United States was being provided

by insolvent railroads undergoing reorganization under the Bankruptcy Act.

Rail service was being threatened with cessation or curtailment because the

trustees of the bankrupt railroads were unable to formulate acceptable

reorganization plans. The rail lines, which were built for public use, were

deteriorated and in need of rehabilitation and modernization. There was a

public need for adequate rail service in the northeastern region in the areas

of commerce, national defense, the environment, passenger service, mail,

and freight and for the use of private citizens and state and local

governments. That public need required the Federal Government to take

action.

Among the articulated purposes of the Regional Rail Reorganization

Act were: 1) to identify all rail service systems in the northeast region that

could not adequately meet the stated public needs; 2) to reorganize those

railroads into an “economically viable system capable of providing adequate

and efficient rail service to the region;” and 2) to establish Conrail. 45

U.S.C. § 701(b)(2), (b)(5).

Reading Company was one of the northeastern private railroads in

bankruptcy, having entered bankruptcy re-organization in 1971. In the

Matter of Reading Co., 838 F.2d 686 (3rd Cir. 1988). All of Reading

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Company’s lines were transferred to Conrail pursuant to the Regional Rail

Reorganization Act, and, thereafter, Reading Company ceased to function as

a railroad. Id. The deed from Reading Company transferring its railroads

to Conrail was executed in 1976. Conrail consistently used the Tremont

Extension, the Swatara Branch, and the Middle Creek Extension from 1976

to 1990. On December 15, 1990, Conrail sold its railroad tracks located in

Schuylkill County to Appellee. Appellee utilized all the pertinent rail lines,

including the Middle Creek Extension, without interruption until this lawsuit

was filed.

As we outlined in Ralston v. Ralston, 55 A.3d 736, 742 (Pa.Super.

2012) (emphasis added), when this Court interprets a deed, our

primary object must be to ascertain and effectuate what the parties themselves intended. The traditional rules of construction to determine that intention involve the following principles. First, the nature and quantity of the interest conveyed must be ascertained from the deed itself and cannot be orally shown in the absence of fraud, accident or mistake. We seek to ascertain not what the parties may have intended by the language but what is the meaning of the words they used. Effect must be given to all the language of the instrument, and no part shall be rejected if it can be given a meaning. If a doubt arises concerning the interpretation of the instrument, it will be resolved against the party who prepared it. 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.

Reading Company’s March 29, 1976 deed to Conrail conveyed, “All of

Grantors right, title and interest, legal and equitable, in and to the real

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property located in the County of Schuylkill, Commonwealth of Pennsylvania

as described in Exhibit A.” Exhibit A describes the line codes for the

Tremont Extension and the Swatara Branch.

We interpret a deed’s language in the light of the subject matter, the

apparent objective of the deed, and the conditions existing when it was

executed. The Tremont Extension, the Swatara Branch, and the Middle

Creek Extension were contemporaneously constructed to access coal in the

Swatara area and were small lines that were all arms of the West West

Branch of the Mine Hill and Schuylkill Haven Railroad line. The language in

the 1976 deed demonstrates that Reading Company was transferring its rail

lines in Schuylkill County and the line numbers for the Tremont Extension

and the Swatara Branch were specifically referenced. Middle Creek

Extension is an arm of the Swatara Branch.

The impetus behind the deed was to transfer railroad lines from a

bankrupt private railroad to a larger railroad created by the federal

government under a federal reorganization act. This act promoted a variety

of significant public needs. The Third Circuit Court of Appeals has stated

that Conrail assumed control over all the Reading Company tracks pursuant

to Reading Company’s bankruptcy re-organization. In the Matter of

Reading Co., supra.

Thus, the deed’s subject matter, the deed’s objective, the

circumstances surrounding the deed’s execution, and legal authority all

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establish that the 1976 deed transferred Reading Company’s Middle Creek

Extension, together with the Tremont Extension and the Swatara Branch, to

Conrail. Reading Company’s intent to transfer the Mill Creek Extension to

Conrail is further reinforced by the fact that Conrail thereafter continuously

operated its trains on the Middle Creek Extension. Lupyan v. Lupyan, 397

A.2d 1220, 1224 (Pa.Super. 1979) (“the conduct of the parties subsequent

to the execution of the deed is relevant” in construing its terms).

The December 1, 1990 deed from Conrail to Blue Mountain likewise

granted to Appellee “ALL THAT CERTAIN PROPERTY OF THE Grantor,

together with all of the improvements thereon, being those portions of

Grantors lines of railroad known as the Reading Cluster, situate in Berks,

Carbon, Columbia, Northumberland and Schuylkill Counties, Pennsylvania.”

The trial court noted that the Reading Cluster of Conrail’s lines included all

the Schuylkill County lines in question. Again, the line codes mentioned in

the exhibit to the 1990 deed reference both the Tremont Extension and the

Swatara Branch, from which the Middle Creek Extension extends. Blue

Mountain thereafter utilized the Middle Creek Extension. For the reasons

outlined regarding the 1976 deed, the 1990 deed likewise conveyed the

Middle Creek Extension to Appellee, which utilizes that extension sixteen

times a month for the public needs. Hence, the deeds in question operated

to convey all the railroad tracks currently on Blackwood’s surrounding

property to Blue Mountain.

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Blackwood’s remaining contention is that the trial court improperly

refused to grant it leave to amend its complaint in order to assert that it is

entitled to a private railroad crossing.

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. 1033. We have observed that, “Leave to amend lies within the

sound discretion of the trial court and the right to amend should be liberally

granted at any stage of the proceedings unless there is an error of law or

resulting prejudice to an adverse party.” Morrison Informatics, Inc. v.

Members 1st Credit Union, 97 A.3d 1233, 1240 (Pa.Super. 2014) (citation

omitted).

Herein, amendment was denied on two bases: that the amendment

asserted a new cause of action for which the statute of limitations had

expired, and that Blue Mountain would have been prejudiced by the

amendment requested just prior to oral argument on the cross motions for

summary judgment.

As to the statute of limitations issue, Blackwood has cited a case that

supports its position that a statute of limitations might be inapplicable in this

matter. In Estate of Spickler v. County of Lancaster Bd. of Com'rs,

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577 A.2d 923 (Pa.Super. 1990), this Court construed a railroad act as

creating a vested right to one private crossing over a railroad track that

dissects a landowner’s property if the landowner has no access to a public

railroad crossing. The plaintiff therein brought a quiet title action claiming

title to an easement running across property that was a former railroad bed.

The railroad obtained the railroad bed by eminent domain in 1881, and the

tracks it built bisected property owned by Brandt into northern and southern

portions, but a railroad crossing was not built for Brandt.

Instead, Brandt used a right-of-way running along the northern part of

the railroad tracks to access the northern portion of his property, which

Brandt sold to Gibble. Gibble conveyed that parcel to Groff, from whom

Spickler purchased that land. The deeds to Gibble and Groff mentioned the

easement running along the northern boundary of the tracks. The deed

from Groff to Spickler, however, referenced an easement acquired in 1909.

The easement ran across the railroad tracks and led to the southern part of

Brandt’s land.

The railroad tracks were eventually sold to Lancaster County, which

removed the tracks and created a hiking trail. Plaintiff, Spickler’s estate,

sought to enforce an easement over the railroad bed. We held that the

plaintiff owned an easement “by operation of the Railroad Act of 1849,” even

though that Act was repealed when the case was decided. Id. at 923. That

Act stated:

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Whenever, in the construction of such road or roads railroads, it shall be necessary to cross or intersect an established road or way, it shall be the duty of the ... said company [railroad company], so to construct the said road railroad across such established road or way, as not to impede the passage or transportation of persons or property along the same; and that, for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make or cause to be made a good and sufficient causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of said lands to cross and pass over the same. . Id. at 924 (quoting 15 P.S. § 4101 (repealed)).

This Court concluded that the Railroad Act of 1849 accorded a

landowner a “right to have an access way across the right-of-way/railroad

when it divides the portion of land in two.” Spickler, supra at 924. The

right was characterized as a vested interest created by the Railroad Act of

1849 that could not be extinguished by the Commonwealth or divested by

the existence of a public road on the land where the road provided less

convenient property access than a railroad crossing. The Spickler panel

ruled that it is only “in those cases where a public route crossing the railroad

right-of-way is in existence that a property owner cannot compel a railroad

to furnish an additional private causeway crossing.” Id. We continued that

the vested property right to a private railroad crossing was originally owned

by Brandt and that the property right was then conveyed by Brandt to the

subsequent owners of the northern portion of Brandt’s property.

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The Railroad Act of 1849 was similar to the Act at issue herein.

Specifically, § 18 of Act 96 provides:

That for the accommodation of all persons owning or possessing land through which the said rail road may or shall pass, and to prevent inconveniences to such person in crossing or passing the same, it shall be the duty of the said company . . . to make . . . a good and sufficient causeway or causeways, wherever the same may be necessary, to enable the occupant or occupants of said lands, to cross or pass over or under the same with wagons, carts, and implements of husbandry as the occasion may require.

Section 18 continues, “Provided, That the said company shall in no case be

required to make, or cause to be made, more than one such causeway

through each plantation or lot of land, for the accommodation of any one

person owning or possessing land through which the said rail road may or

shall pass[.]”

Thus, Blackwood may have a vested property right under Act 96 to

seek a single private crossing over the Tremont Extension. Act 96 provides

that a cause of action arising under its provisions must be brought within six

months; however, in Spickler, we construed a similar right created in a

railroad act as a vested property right that was devised with the land, that

could not be extinguished by the Commonwealth, and that was enforceable

over 100 years after the railroad tracks in question were constructed. In

light of this authority, Blackwood should be afforded the opportunity to

litigate whether it is entitled to one private crossing.

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The trial court herein also denied amendment based upon a finding

that Appellee would have been prejudiced by the amendment since it was

sought just before argument on the motion for summary judgment. 4 In

Capobianchi v. BIC Corp., 666 A.2d 344 (Pa.Super. 1995), we noted that

prejudice sufficient to deny amendment of the pleadings “must be more than

a mere detriment to the other party[.]” Id. at 346. Furthermore, the “fact

that the adverse party has expended time and effort in preparing to try a

case against the amending party is not such prejudice as to justify denying

the amending party leave to amend[.]” Id. (citation omitted). Indeed,

“Denial of a petition to amend, based on nothing more than unreasonable

delay, is an abuse of discretion.” Id. at 347 (citation omitted).

In the instant matter, the trial court’s finding of prejudice was

premised upon the fact that amendment was sought just as the case was

____________________________________________ 4 Blue Mountain claims that the cause of action for a private railroad crossing is not a new one, as follows. Blackwood knew about Blue Mountain’s position that it owned the land and was provided a copy of Act 96 well before Blackwood sought amendment. Blue Mountain suggests that, from its inception, this case really was about Blackwood’s desire to seek private crossings.

The fifth amended complaint filed herein was to quiet title. Blackwood’s position was that Blue Mountain claimed to own but did not own the land under its tracks. While Blackwood may have known of Blue Mountain’s legal authority for its position that it did own the land under the tracks, the cause of action for a private crossing nevertheless is distinct from the cause of action claiming ownership of the property under the tracks. The fact that Blackwood was aware of a potential cause of action for a private crossing before it sought amendment is not grounds for denying amendment.

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going to be decided by summary judgment as to title to the property under

the railroad tracks. Delay in seeking amendment, standing alone, does not

warrant denial of amendment. Additionally, the amendment sought was

unquestionably a new form of relief.

For the foregoing reasons, we affirm in part and reverse in part. Case

remanded. Jurisdiction relinquished.

Judge Allen joins this memorandum.

Judge Donohue files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/2015

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