DeSimone v. Kessler

47 Pa. D. & C.5th 525
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJune 11, 2015
DocketNo. 2012-CV-2113
StatusPublished

This text of 47 Pa. D. & C.5th 525 (DeSimone v. Kessler) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeSimone v. Kessler, 47 Pa. D. & C.5th 525 (Pa. Super. Ct. 2015).

Opinion

MINORA, J.,

I. INTRODUCTION

This case stems from a property dispute amongst neighbors. Samuel DeSimone and Merrilee Ann DeSimone (hereinafter “plaintiffs”) and George H. Kessler and Anne M. Kessler (hereinafter “defendants”) executed a right of way agreement (hereinafter “the agreement”) to which defendants granted to the plaintiffs, their heirs, successors and assigns the right and privilege to utilize the right of way up to plaintiffs’ current gravel driveway for access to plaintiffs’ home located on their property.

In their complaint filed April 5, 2012, plaintiffs allege that they acquired an easement to and from the right of way described in the agreement. See plaintiffs’ complaint, at 6. Plaintiffs argue that the defendants’ limitation of plaintiffs’ access to the right of way prevents plaintiffs from receiving fuel deliveries and easy access to their property over the gravel driveway, which has been the common practice since 2001. Id, at 5.

Plaintiffs’ complaint makes two (2) claims against the defendants, one for an action to quiet title, and the other for trespass. According to the plaintiffs, defendants are now attempting to impose a further limitation for the use of the right of way. Plaintiffs argue that the agreement should be given the full force and effect of the law, and plaintiffs should be allowed to exercise all rights to utilize the right of way to obtain access to and from their gravel driveway. Id, at 5-6. Lastly, plaintiffs argue that as a result [528]*528of the activities by defendants, a portion of plaintiffs’ land has been damaged and they have been deprived of the use and enjoyment of their land. Id, at 8.

Defendants filed their answer to plaintiffs’ complaint on June 19, 2012 and asserted two (2) counterclaims for ejectment and trespass. In their counterclaims, defendants allege that plaintiffs’ construction of a sand mound for sewage treatment encroached upon the defendants’ land and deprived the defendants of use and enjoyment of their land. See answer of defendants and counterclaim, at 3-4. Defendants further allege that the plaintiffs sand mound is “constructed in a [manner] which causes an unnatural drainage of water from the plaintiffs’ land onto the defendants’ land resulting in the accumulation of water ... and additional loss of use of the defendants’ land preventing them from mowing and maintaining the land.” Id., at 4.

On December 5, 2013, the Honorable Judge Thomas Munley entered an order appointing Thomas Helbig, Esquire as special trial master to conduct a mediation conference on the matter. Following an unsuccessful mediation, the case proceeded to trial de novo.

The undersigned presided over a two-day de novo non-jury trial that commenced on January 27, 2015. The record was left open to allow the parties to submit proposed findings of fact and conclusions of law. All parties submitted a joint statement of undisputed facts on March 10, 2015. Plaintiffs submitted their requested findings of fact and conclusions of law on March 13,2015. Defendants submitted their version of the same on the same day. We now consider the matter ripe for disposition and the rendering of a non-jury opinion as per Pa.R.C.P. 1038.

[529]*529II. FINDINGS OF FACT

The findings of fact in this case as determined by the court are supported by the credible, probative, and relevant evidence established during the trial and accepted as true by the court:

1. The plaintiffs are both adult and competent individuals who own the property located at 102 Hidden Valley Drive, Clarks Summit, Lackawanna County, Pennsylvania, 18411.

2. The defendants are both adult and competent individuals who own the property located at 107 Hidden Valley Drive, Clarks Summit, Lackawanna County, Pennsylvania, 18411.

3. On October 26, 1989, Anthony P. DeAngelo filed the Hidden Valley Subdivision Map in the Lackawanna County Recorder of Deeds Map Book 6A at Page 1085.

4. A deed dated November 9, 1993 from Richard and Laurie Hrobuchak to Dr. Ralph DeMario was recorded in Deed Book 1453, Page 563. See Joint Statement of Undisputed Facts, at Fact 1.

5. Plaintiffs acquired title to Lot #5 of Hidden Valley Estates Newton Township, PA by virtue of a Deed filed on page 785 of Record Book 344 on November 20, 2000. Id., at Fact 2.

6. Defendants acquired title to their property from Dr. Ralph DeMario on November 30, 2004, which is filed as Instrument No. 2004-43785. Id., at Fact 3.

7. Defendants’ property abuts the plaintiffs’ property and consists of approximately 3.595 acres. Id.

8. Plaintiffs’ November 20, 2000 deed included a [530]*530provision that stated that the parcel was subject to a fifty (50) feet wide easement for access, ingress, egress, and regress for open space lands of Hidden Valley Estates and said easement being fifty (50) feet wide and lying adjacent to the sideline common to Lot #5 and Lot #6. See Joint Exhibit 1.

9. Plaintiffs built their home on Lot #5 in 2001 and moved in that year. N.T. 1/27/15, at 18.

10. Plaintiffs had a sand mound and drain field for sewage treatment constructed in 2001 under the supervision of Ozbert Patton, the former Sewage Enforcement Officer for Newton Township. N.T. 1/28/15, at 114.

11. Plaintiffs constructed two (2) driveways that provided access to their home. The first is a paved driveway that provides access directly from Hidden Valley Drive to the garage on the upper level of the home. The second is a gravel driveway that is reached by driving a short distance over the paved driveway in what is the 50’ x 170’ long right of way owned by defendants. N.T. 1/27/15, at 18-21.

12. Plaintiffs believed they owned the land over which the 50’ x 170’ wide easement was located. Id., at 21,24.

13. The 5 0 ’ x 170 ’ driveway was used without restriction by plaintiffs, their relatives, friends, neighbors, delivery people, workers and anybody else driving or walking to plaintiffs’ home. Id., at 21-23.

14. Plaintiffs learned that they did not own the 50’ x 170’ piece of land in 2004 when Dr. Ralph DeMario decided to sell his home to defendants. Id., at 25-27.

15. Plaintiffs decided to accommodate Dr. Ralph DeMario and convey the 50’ x 170’ piece of land to defendants by a quit claim deed subject to the fact plaintiffs [531]*531could continue to use the same access to and from the gravel driveway as they utilized before. Id., at 27-32; See also Joint Statement of Undisputed Facts, at Fact 4.

16. At the request of the defendants, on December 7, 2004, the parties and Dr. Ralph DeMario executed the agreement. See Joint Statement of Undisputed Facts, at Fact 5.

17. James Tressler, Esquire prepared the agreement in representation of Dr. Ralph DeMario. At the time, plaintiffs were represented by David Bianco, Esquire. Defendants were unrepresented by an attorney. N.T. 1/27/15, at 27-28; N.T. 1/28/15, at 8.

18. In the agreement, Dr. Ralph DeMario executed a deed conveying all his rights, title and interest in 102 Hidden Valley Drive, Clarks Summit, Pennsylvania, 18411 to Defendants. See Joint Exhibit 5.

19.

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Bluebook (online)
47 Pa. D. & C.5th 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desimone-v-kessler-pactcompllackaw-2015.