IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fox Clearing, LLC, : : Appellant : : v. : No. 682 C.D. 2023 : Argued: November 7, 2024 Westtown Township, Paul B. Vanscovich, : Susan M. Vanscovich, Andrew Holstein, : Camille Holstein, John E. Gagliardi, : Joanna M. Gagliardi, James S. Lees, Jr., : Frances L. Lees, Shiloh Hill Associates, Inc. : Jerrod Hudson, Harbin Nataki, Hans Levert, : Josepha M. Levert, Justin Caranfa, Lori : Caranfa, Barry A. Borden, Deborah J. : Borden, Ronald N. Fox, Barbara P. Fox, : The Kahn Trust Dated February 25, 2010, : Wallace J. Kahn, Trustor and/or Trustee of : the Kahn Trust Dated February 25, 2010, : Charles R. Bolz, Marilyn J. Bolz, Michael : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Michael Tysowsky, Settlor, as Amended, : or His Successors in Trust, Suzanne P. : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Suzanne P. Tysowsky, Settlor, as Amended, : or Her Successors in Trust, Michael P. : Cazaubon, Pamela K. Cazaubon, Kurtis : L. Fletcher, Alaina J. Simons, Steven D. : Bernard, Jane Bernard, Robert H. Irvine, : Maryann B. Irvine, Mark Kaskey, Susan : Kaskey, Earl H. Brown, Dolores C. Brown, : Michael Slotznick, Vivian Toby Wolovitz, : and Joanne M. Henry : BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE WOJCIK FILED: December 9, 2024
Fox Clearing, LLC (Fox) appeals the order of the Chester County Court of Common Pleas (trial court) sustaining the preliminary objections (POs) in the nature of a demurrer of Paul B. Vanscovich, Susan M. Vanscovich (together, Vanscovichs), Andrew Holstein, and Camille Holstein (collectively, Neighbors) to Fox’s three-count First Amended Complaint.1 We affirm.
1 The trial court’s order also granted Fox leave to file a Second Amended Complaint within 20 days. See Reproduced Record (RR) at 248a. Generally, such orders sustaining POs and granting leave to file an amended complaint are not appealable as interlocutory orders. See, e.g., May v. Doe, 269 A.3d 1286, 1288 (Pa. Cmwlth.), appeal denied, 283 A.3d 173 (Pa. 2022) (“Here, the trial court sustained the preliminary objections, dismissed [the plaintiff’s c]omplaint, and granted him 30 days to file an amended complaint. Accordingly, the trial court’s order, which dismissed [the plaintiff’s c]omplaint, is interlocutory and not a final appealable order.”) (footnote omitted). However, on May 11, 2023, the Chester County Prothonotary entered final judgment against Fox based on Fox’s filing of a Praecipe to Enter Judgment Dismissing Complaint with Prejudice. See RR at 300a-02a. Accordingly, the trial court’s order sustaining the POs is final and appealable to this Court. See, e.g., May, 269 A.3d at 1288 n.7 (“[In] Hionis [v. Concord Township, 973 A.2d 1030, 1035-36 (Pa. Cmwlth. 2009), the] Court instructed that, in accordance with Ayre v. Mountaintop Area Joint Sanitary Authority, [427 A.2d 1294 (Pa. Cmwlth. 1981)], ‘a plaintiff who chooses not to file an amended complaint may appeal by filing a praecipe with the trial court to dismiss the original complaint with prejudice.’ [] ‘By filing a praecipe with the [trial] court to issue a final, appealable order, the litigant can obtain appellate review . . . .’ Id. at 1036.”).
2 As the trial court explained, “[t]his is a quiet title action in which [Fox] requests, inter alia, an order declaring it has a private easement over a fifty-foot (50’) Right of Way (ROW) in between its property at 1013 Shiloh Road, [Westtown Township (Township)], West Chester, PA (Fox Property) and Shiloh Hill Drive,[2] which in turn connects to Little Shiloh Road.” RR at 386a.3 On March 10, 2022, Fox filed its First Amended Complaint in which it alleged, in pertinent part:
15. For over a half a century, the ROW has been depicted on a litany of land development and subdivision plans submitted to the Township by various property owners (including some of the [named d]efendants and their predecessors in title) and approved by the Township.
16. Those plans have consistently depicted the ROW as a fifty-foot (50’)-wide roadway from Little Shiloh R[oad] all the way to the boundary line of the Fox Property.
17. As a matter of law, the depiction of the ROW as a roadway to the boundary line to the Fox Property creates an implied easement for, inter alia, the owner of the Fox Property to use the ROW for access. RR at 22a. On March 25, 2022, Neighbors filed the POs in the nature of a demurrer, asserting that, contrary to the allegations, Fox did not have any easement rights in the ROW. See id. at 156a-62a.
2 As the trial court explained, “Fox set forth claims for County I – Quiet Title (Easement by Express Grant) and Count II – Quiet Title (Easement by Implication)[, and . . . a claim for Count III – Injunctive Relief asking the [trial] court to order the Vanscovichs to remove a fence they erected across the ROW.” RR at 386a, id. at n.2. The named defendants in the First Amended Complaint were Neighbors and the Township, as well as a number of additional adjacent landowners. However, by order dated June 6, 2024, we precluded the additional adjacent landowners from filing briefs or participating in oral argument in this appeal.
3 As the trial court noted, “[t]he Fox Property is approximately 65 acres, and Fox intends to develop it for residential purposes.” RR at 386a n.1. 3 Ultimately, after considering the First Amended Complaint, the POs, and the parties’ briefs and oral arguments, the trial court “conclude[d] that Fox’s First Amended Complaint fails to contain allegations sufficient to establish a prima facie claim for an express or implied easement [] within the scope of Estojak [v. Mazsa, 562 A.2d 271 (Pa. 1989)].” RR at 390a. As a result, the trial court issued the instant order sustaining the POs. See id. at 384a.
On June 1, 2023, Fox then filed this appeal of the trial court’s order.4 On appeal,5 the sole claim raised by Fox is that the trial court erred in sustaining the POs because the Fox Property was not within the subdivision plans creating the ROW and, therefore, could not enforce any easement rights in the ROW.
However, after reviewing the record, Fox’s brief and oral argument, and the relevant case law, we conclude that the appellate claims have been ably resolved in the thorough and well-reasoned opinion of Judge Bret M. Binder. Accordingly, we affirm the trial court’s order on the basis of his opinion in the matter
4 Initially, on January 30, 2023, Fox filed a notice of appeal from the trial court’s December 29, 2022 order sustaining the POs, which was docketed in this Court at No. 73 C.D. 2023. However, on May 5, 2023, Fox discontinued that appeal and, as outlined above, on May 11, 2023, the Chester County Prothonotary entered final judgment against Fox based on Fox’s filing of the Praecipe to Enter Judgment Dismissing Complaint with Prejudice, see RR at 300a-02a, thereby perfecting the instant final, appealable order.
5 Our standard of review of the trial court’s order sustaining preliminary objections in the nature of a demurrer is de novo, and our scope of review is plenary. RT Partners, LP v. Allegheny County Office of Property Assessment, 307 A.3d 801, 805 n.6 (Pa. Cmwlth. 2023) (citation omitted).
4 of Fox Clearing, LLC v. Westtown Township. (C.P. Chest., No. 2022-00576-RC, filed July 6, 2023). RR at 384a-90a.6
MICHAEL H. WOJCIK, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fox Clearing, LLC, : : Appellant : : v. : No. 682 C.D. 2023 : Argued: November 7, 2024 Westtown Township, Paul B. Vanscovich, : Susan M. Vanscovich, Andrew Holstein, : Camille Holstein, John E. Gagliardi, : Joanna M. Gagliardi, James S. Lees, Jr., : Frances L. Lees, Shiloh Hill Associates, Inc. : Jerrod Hudson, Harbin Nataki, Hans Levert, : Josepha M. Levert, Justin Caranfa, Lori : Caranfa, Barry A. Borden, Deborah J. : Borden, Ronald N. Fox, Barbara P. Fox, : The Kahn Trust Dated February 25, 2010, : Wallace J. Kahn, Trustor and/or Trustee of : the Kahn Trust Dated February 25, 2010, : Charles R. Bolz, Marilyn J. Bolz, Michael : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Michael Tysowsky, Settlor, as Amended, : or His Successors in Trust, Suzanne P. : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Suzanne P. Tysowsky, Settlor, as Amended, : or Her Successors in Trust, Michael P. : Cazaubon, Pamela K. Cazaubon, Kurtis : L. Fletcher, Alaina J. Simons, Steven D. : Bernard, Jane Bernard, Robert H. Irvine, : Maryann B. Irvine, Mark Kaskey, Susan : Kaskey, Earl H. Brown, Dolores C. Brown, : Michael Slotznick, Vivian Toby Wolovitz, : and Joanne M. Henry : BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE WOJCIK FILED: December 9, 2024
Fox Clearing, LLC (Fox) appeals the order of the Chester County Court of Common Pleas (trial court) sustaining the preliminary objections (POs) in the nature of a demurrer of Paul B. Vanscovich, Susan M. Vanscovich (together, Vanscovichs), Andrew Holstein, and Camille Holstein (collectively, Neighbors) to Fox’s three-count First Amended Complaint.1 We affirm.
1 The trial court’s order also granted Fox leave to file a Second Amended Complaint within 20 days. See Reproduced Record (RR) at 248a. Generally, such orders sustaining POs and granting leave to file an amended complaint are not appealable as interlocutory orders. See, e.g., May v. Doe, 269 A.3d 1286, 1288 (Pa. Cmwlth.), appeal denied, 283 A.3d 173 (Pa. 2022) (“Here, the trial court sustained the preliminary objections, dismissed [the plaintiff’s c]omplaint, and granted him 30 days to file an amended complaint. Accordingly, the trial court’s order, which dismissed [the plaintiff’s c]omplaint, is interlocutory and not a final appealable order.”) (footnote omitted). However, on May 11, 2023, the Chester County Prothonotary entered final judgment against Fox based on Fox’s filing of a Praecipe to Enter Judgment Dismissing Complaint with Prejudice. See RR at 300a-02a. Accordingly, the trial court’s order sustaining the POs is final and appealable to this Court. See, e.g., May, 269 A.3d at 1288 n.7 (“[In] Hionis [v. Concord Township, 973 A.2d 1030, 1035-36 (Pa. Cmwlth. 2009), the] Court instructed that, in accordance with Ayre v. Mountaintop Area Joint Sanitary Authority, [427 A.2d 1294 (Pa. Cmwlth. 1981)], ‘a plaintiff who chooses not to file an amended complaint may appeal by filing a praecipe with the trial court to dismiss the original complaint with prejudice.’ [] ‘By filing a praecipe with the [trial] court to issue a final, appealable order, the litigant can obtain appellate review . . . .’ Id. at 1036.”).
2 As the trial court explained, “[t]his is a quiet title action in which [Fox] requests, inter alia, an order declaring it has a private easement over a fifty-foot (50’) Right of Way (ROW) in between its property at 1013 Shiloh Road, [Westtown Township (Township)], West Chester, PA (Fox Property) and Shiloh Hill Drive,[2] which in turn connects to Little Shiloh Road.” RR at 386a.3 On March 10, 2022, Fox filed its First Amended Complaint in which it alleged, in pertinent part:
15. For over a half a century, the ROW has been depicted on a litany of land development and subdivision plans submitted to the Township by various property owners (including some of the [named d]efendants and their predecessors in title) and approved by the Township.
16. Those plans have consistently depicted the ROW as a fifty-foot (50’)-wide roadway from Little Shiloh R[oad] all the way to the boundary line of the Fox Property.
17. As a matter of law, the depiction of the ROW as a roadway to the boundary line to the Fox Property creates an implied easement for, inter alia, the owner of the Fox Property to use the ROW for access. RR at 22a. On March 25, 2022, Neighbors filed the POs in the nature of a demurrer, asserting that, contrary to the allegations, Fox did not have any easement rights in the ROW. See id. at 156a-62a.
2 As the trial court explained, “Fox set forth claims for County I – Quiet Title (Easement by Express Grant) and Count II – Quiet Title (Easement by Implication)[, and . . . a claim for Count III – Injunctive Relief asking the [trial] court to order the Vanscovichs to remove a fence they erected across the ROW.” RR at 386a, id. at n.2. The named defendants in the First Amended Complaint were Neighbors and the Township, as well as a number of additional adjacent landowners. However, by order dated June 6, 2024, we precluded the additional adjacent landowners from filing briefs or participating in oral argument in this appeal.
3 As the trial court noted, “[t]he Fox Property is approximately 65 acres, and Fox intends to develop it for residential purposes.” RR at 386a n.1. 3 Ultimately, after considering the First Amended Complaint, the POs, and the parties’ briefs and oral arguments, the trial court “conclude[d] that Fox’s First Amended Complaint fails to contain allegations sufficient to establish a prima facie claim for an express or implied easement [] within the scope of Estojak [v. Mazsa, 562 A.2d 271 (Pa. 1989)].” RR at 390a. As a result, the trial court issued the instant order sustaining the POs. See id. at 384a.
On June 1, 2023, Fox then filed this appeal of the trial court’s order.4 On appeal,5 the sole claim raised by Fox is that the trial court erred in sustaining the POs because the Fox Property was not within the subdivision plans creating the ROW and, therefore, could not enforce any easement rights in the ROW.
However, after reviewing the record, Fox’s brief and oral argument, and the relevant case law, we conclude that the appellate claims have been ably resolved in the thorough and well-reasoned opinion of Judge Bret M. Binder. Accordingly, we affirm the trial court’s order on the basis of his opinion in the matter
4 Initially, on January 30, 2023, Fox filed a notice of appeal from the trial court’s December 29, 2022 order sustaining the POs, which was docketed in this Court at No. 73 C.D. 2023. However, on May 5, 2023, Fox discontinued that appeal and, as outlined above, on May 11, 2023, the Chester County Prothonotary entered final judgment against Fox based on Fox’s filing of the Praecipe to Enter Judgment Dismissing Complaint with Prejudice, see RR at 300a-02a, thereby perfecting the instant final, appealable order.
5 Our standard of review of the trial court’s order sustaining preliminary objections in the nature of a demurrer is de novo, and our scope of review is plenary. RT Partners, LP v. Allegheny County Office of Property Assessment, 307 A.3d 801, 805 n.6 (Pa. Cmwlth. 2023) (citation omitted).
4 of Fox Clearing, LLC v. Westtown Township. (C.P. Chest., No. 2022-00576-RC, filed July 6, 2023). RR at 384a-90a.6
MICHAEL H. WOJCIK, Judge
6 See also Estojak, 562 A.2d at 274 (“[W]here a municipality fails to accept or open a dedicated street in a plan within [20 ]years, the owners of property within the plan or subdivision retain private rights of easement by implication over the unopened streets.”) (citations omitted); National Christian Conference Center v. Schuylkill Township, 597 A.2d 248, 250 (Pa. Cmwlth. 1991) (“The Center cannot claim an easement by implication where neither it nor its predecessor in interest were parties to the creation of the subdivision nor purchasers of lots in [the subdivision].”); Flint Hill Partnership v. London Britain Township (Pa. Cmwlth., No. 1575 C.D. 2002, filed August 1, 2003), slip op. at 8 (“The Partnership does not contend it has an easement by prescription as there had been no use of the [p]roperty for twenty-one years. The Partnership does not assert an easement by necessity. Also, the Partnership does not plead an easement by implication because it was not a party to the creation of the subdivision or a purchaser of a lot in the subdivision. National Christian [Conference Center], 597 A.2d at 250.”); see also Landis v. Wilt, 222 A.3d 28, 37 (Pa. Super. 2019) (“Although not fully square with the facts of the case sub judice, the principles of Nord [v. Devault Contracting Company, Inc., 334 A.2d 276 (Pa. 1975),] demonstrate that neither the [condominium a]ssociation nor the residents of the [] condominiums had any reason to expect that they were entitled to use the unopened portion of [the street] referenced in the [neighboring subdivision’s] plan. The [a]ssociation offered no evidence at trial that it acquired its land through a conveyance that made reference to [the street] or the [] subdivision plan. The trial court duly held that the [a]ssociation did not purchase property subject to the [] subdivision plan. Indeed, at trial, the [a]ssociation made a point of establishing that its lands are outside of the [] subdivision.”) (citations omitted); Lerch v. Unemployment Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018) (“In general, Superior Court decisions are not binding on this Court, but they offer persuasive precedent where they address analogous issues.”) (citation omitted); Pa.R.A.P. 126(b)(1)-(2) (“As used in this rule, ‘non- precedential decision’ refers to . . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. Non-precedential decisions . . . may be cited for their persuasive value.”). 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fox Clearing, LLC, : : Appellant : : v. : No. 682 C.D. 2023 : Westtown Township, Paul B. Vanscovich, : Susan M. Vanscovich, Andrew Holstein, : Camille Holstein, John E. Gagliardi, : Joanna M. Gagliardi, James S. Lees, Jr., : Frances L. Lees, Shiloh Hill Associates, Inc. : Jerrod Hudson, Harbin Nataki, Hans Levert, : Josepha M. Levert, Justin Caranfa, Lori : Caranfa, Barry A. Borden, Deborah J. : Borden, Ronald N. Fox, Barbara P. Fox, : The Kahn Trust Dated February 25, 2010, : Wallace J. Kahn, Trustor and/or Trustee of : the Kahn Trust Dated February 25, 2010, : Charles R. Bolz, Marilyn J. Bolz, Michael : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Michael Tysowsky, Settlor, as Amended, : or His Successors in Trust, Suzanne P. : Tysowsky, Trustee Under a Revocable : Trust Agreement Dated April 5, 2000, with : Suzanne P. Tysowsky, Settlor, as Amended, : or Her Successors in Trust, Michael P. : Cazaubon, Pamela K. Cazaubon, Kurtis : L. Fletcher, Alaina J. Simons, Steven D. : Bernard, Jane Bernard, Robert H. Irvine, : Maryann B. Irvine, Mark Kaskey, Susan : Kaskey, Earl H. Brown, Dolores C. Brown, : Michael Slotznick, Vivian Toby Wolovitz, : and Joanne M. Henry : ORDER
AND NOW, this 9th day of December, 2024, the order of the Chester County Court of Common Pleas dated May 11, 2023, is AFFIRMED.
__________________________________ MICHAEL H. WOJCIK, Judge