Ioanilli, D. v. Carnovale, N.

• Court: Superior Court of Pennsylvania
• Decided: September 12, 2023
• Docket: 1213 WDA 2022
• Status: Unpublished

Opinion

J-A15043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

DAVID J. IOANILLI, CATHY ANN : IN THE SUPERIOR COURT OF IOANILLI, ROBERT BOYLE, JR., AND : PENNSYLVANIA GWENDOLYN L. BOYLE : : : v. : : : NICHOLAS CARNOVALE : No. 1213 WDA 2022 : Appellant :

Appeal from the Judgment Entered December 22, 2022 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 10473 of 2020

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: September 12, 2023

Nicholas Carnovale (Carnovale) appeals from a judgment of the Court

of Common Pleas of Lawrence County (trial court) finding that David J. Ioanilli

and Cathy Ann Ioanilli (the Ioanillis), owners of the property at 1773 Dutch

Ridge Road, and Robert Boyle, Jr. and Gwendolyn J. Boyle (the Boyles),

owners of the property denominated 1753 Dutch Ridge Road, both in Wayne

Township, Lawrence County, Pennsylvania, have an easement in a 50-foot

strip of land that lies between their properties to which Carnovale claims

ownership. Because the trial court correctly found that they had easement

interest in that strip of land, we affirm.

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* Retired Senior Judge assigned to the Superior Court. J-A15043-23

The salient facts are not in dispute. The Ioanillis and the Boyles’ lots

were created on December 29, 1995, when Richard Eyles, Marie Eyles and

George O. Sewall III (Subdividers) recorded the Dutch Ridge Manor Plan of

Lots Phase I that subdivided a large parcel of property that they owned into

eight lots fronting on Dutch Ridge Road. On the recorded subdivision plan

between Lots Four and Five was a 50-foot strip of land that was “reserved for

future use,” with markings on the Phase I Plan indicating that it would be used

as access to the rest of the property that Subdividers owned. On the same

date Subdividers recorded the Phase I Plan, they recorded a Declaration of

Covenants and Use Restrictions. Paragraph 8 of that document specifically

declares future development of the subdivision, i.e., Phases II and III, “shall

be considered as a single Plan.” (Trial Exhibit 6A).

In 1996, the loanillis purchased Lot Four and the Boyles purchased Lot

Five and built their homes. The loanillis’ deed references the 50-foot strip as

“reserved for future use” while the Boyle deed described it as a “50-foot right-

of-way.” A brochure prepared by Century 21, the agency selling the lots in

the subdivision, stated that the 50-foot strip was a right-of-way. Both parties

purchased their vacant lots from the Subdividers with the understanding that

each was to be a corner lot. Their respective deeds, among other things,

provide that the conveyance is “UNDER and SUBJECT to restrictions as appear

of record . . .” (R. 176a & 181a (emphasis in original)).

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When the Ioanillis built their home, the garage entrance faced the 50-

foot strip of land which is used to access Dutch Ridge Road. The Boyles

constructed a swimming pool at the rear of their property and use the right-

of-way to access and fill the pool as well as to service their mound/sewage

disposal system located at the rear of their property. (R. 80a).

In 2000, the Subdividers added to the Plan by subdividing 44.42 acres

of their property into Dutch Ridge Manor Plan of Lots Phases II and III. It was

a 17-lot subdivision laid out around a cul-de-sac that marked the 50-foot strip

of land on the recorded Phase I subdivision Plan as “reserved for future use,”

now as “Scenic Drive 50’ R/W.” The right-of-way provides access to the cul-

de-sac from Dutch Ridge Road. A note contained on the recorded Phase II

and III Subdivision Plan provides that the Subdividers “do hereby dedicate the

streets, rights of ways and all improvements shown hereon to the public

forever.” No lot from these two phases was ever sold.

In 2019, Carnovale purchased all the land in the Dutch Ridge Manor Plan

of Lots Phases II and III. His deed states that his land is taken “under and

subject to the declaration for Covenants for Phase 2 and Phase 3 Dutch Ridge

Manor Plan of Lots.” Carnovale subsequently conveyed a sanitary easement

to Mark Camerot by instrument dated September 11, 2019 (two days before

he owned the property) and recorded on September 18, 2019 (five days after

he owned the property) in the “Scenic Drive 50’ right of way” identified on the

survey map for the Camerot Deed I Plan. (Trial Exhibit 17).

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Subsequent to his purchase, because each lot was being taxed as a

separate parcel, Carnovale filed with Wayne Township a new Plan of

Subdivision that made his property a single lot. After Wayne Township gave

its approval, the Dutch Ridge Manor Plan of Lots Phases II and III was vacated

and the new single lot plan was recorded. There was, however, a specific

reservation in the new plan that the 50-foot right-of-way was not vacated.

(R. 123).

Shortly after purchasing the property, Carnovale erected a fence and

placed other obstacles that precluded the loanillis and the Boyles from using

the 50-foot right-of-way to access their property. The loanillis and the Boyles

then brought an action for declaratory judgment and injunctive relief (Action)

seeking a declaration that they had an easement over the right-of-way as well

as injunctive relief seeking removal of the fence and other obstacles blocking

their access. In making their claim for declaratory relief, they argued that

they had an easement on several alternative bases: they had an “easement

of access”1 because the 50-feet easement was in the subdivision filings; and

1 An easement of access exists “when lots are sold as part of a recorded subdivision plan on which a street has been plotted by the grantor, the purchasers acquire property rights in the use of the street.” Starling v. Lake Meade Property Owners Ass’n, Inc. (Starling II), 162 A.3d 327, 337–38 (Pa. 2017) (citations and internal quotation marks omitted). “Specifically, all purchasers of property in a subdivision acquire an easement over all platted roads in the subdivision plan.” Starling v. Lake Meade Property Owners Ass’n, Inc. (Starling I), 121 A.3d 1021, 1028 (Pa. Super. 2015), rev’d on other grounds, Starling II, 162 A.3d 327.

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if they did not have an easement of access they had “an easement by

necessity”2 because of the difficulty they would have in accessing and enjoying

their properties without use of the 50-foot strip as well as a prescriptive

easement3 because they had been using the easement for 21 years.

Carnovale then filed preliminary objections in the nature of a demurrer

contending that the loanillis and the Boyles failed to set forth a cause of action,

as well as that their Action was procedurally defective because it did not plead

its claims for relief in separate counts as required by Rule of Civil Procedure

1020(a).4 While the trial court overruled the demurrer, it granted the

procedural preliminary objection with leave to amend. After the Action was

amended, Carnovale filed an answer and new matter claiming that:

2 An easement by necessity over the land of another is always of strict necessity but does not require a party to prove utter impossibility of alternative access. See Bartkowski v. Ramondo, 219 A.3d 1083, 1092-96 (Pa. 2019). “Where it is manifestly impracticable, even though theoretically possible, to create ingress and egress across one’s own property, the landowner may establish that a right-of-way over a neighboring property is ‘strictly necessary’ in the legal sense.” Id. at 1094.

3 “A prescriptive easement is created by (1) adverse, (2) open, (3) notorious,

(4) continuous and uninterrupted use for a period of twenty-one (21) years. . . . Permissive use defeats a claim of a prescriptive easement.” Village of Four Seasons Ass’n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa. Super. 2014) (citations and quotation marks omitted).

4 The Rule provides that “[t]he plaintiff may state in the complaint more than

one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.” Pa. R.C.P. 1020(a).

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• there was no easement of access because after the Ioanillis and Boyles purchased their properties based on Dutch Ridge Manor Plan No. 1, the subsequent Dutch Ridge Manor Plan Nos. 2 & 3 had designated the 50’ strip of land as a “Scenic Drive,” notwithstanding the fact that those Plans were never developed and were vacated by Wayne Township.

• there could be no prescriptive easement because the easement sought ran through unenclosed woodlands.5

• they have failed to establish an easement of necessity as a matter of law because both properties front on Dutch Ridge Road and they cannot claim the right to use Carnovale’s property just because they decided it was more convenient to utilize the right- of-way rather than traversing over their own properties.

The parties ultimately proceeded to a bench trial and offered testimony

and exhibits regarding the subdivision and deed status and their use of the

50-foot right-of-way. The trial court held that the loanillis and the Boyles had

established that they had an easement in the 50-foot parcel under various

theories and granted the requested injunction ordering Carnovale to remove

the fence and other obstacles. In the accompanying memorandum, which

thoroughly discussed the law regarding each basis on which the loanillis and

the Boyles advanced that they had an easement, it found that:

5 An easement by prescription cannot be obtained if it located in unenclosed

woodlands:

No right of way shall be hereafter acquired by user, where such way passes through uninclosed [sic] woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.

68 P.S. § 411.

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• the loanillis and the Boyles had an easement of access over the 50-foot strip of land, which was created as a “paper street” and labeled a “reservation for future use” in the Phase I Plan of Lots, because it was intended to be a road upon which further subdivisions would be accessed and the subsequent vacation Phases II and III did not alter that easement.

• there was a prescriptive easement because the loanillis and the Boyles had continuously used the right-of-way to access their properties for 21 years and the unenclosed woodlands doctrine did not preclude the easement because the 50-foot parcel consisted of grass and sparse shrubbery.

• the Boyles established an easement of necessity to maintain their sand mound/sewage disposal system and pool and related facilities and alternate access was impractical because vehicular traffic could damage the underground pipes and inhibit their use in an appropriate manner.

• the Ioanillis had established an easement by necessity because constructing an alternate driveway to their garage would be difficult and require a very sharp and concise turn from the Ioanilli property into the garage itself.

Carnovale timely appealed and he and the trial court complied with Rule

1925. See Pa.R.A.P. 1925(a)-(b).

On appeal, Carnovale raises the same contentions that he raised below,

claiming that that the trial court erred by finding that there was an easement

of access, a prescriptive easement and an easement of necessity. Because

we find it determinative, we need to only address directly whether the trial

court correctly found that there was an easement of access.

As the trial court stated, the law in this area is settled. When property

is subdivided into an official plan, two distinct easement rights are created:

one of a private character, for the landowners of the subdivision, and one of

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a public nature, which anyone can use and enjoy. Mannherz v. Edgely

Developers, Inc., 52 Pa. D.&C. 2d 510, 516 (Pa. Com. Pl. Bucks, Oct. 24,

1969). “[W]hen lots are sold as part of a recorded subdivision plan on which

a street has been plotted by the grantor, the purchasers acquire property

rights in the use of the street.” Starling v. Lake Meade Property Owners

Ass’n, Inc. (Starling II), 162 A.3d 327, 337-38 (Pa. 2017) (citation

omitted).

Unlike those of a public nature, those private easements over “paper

streets,” i.e., those streets which were recorded and dedicated but never

opened by the municipality, are “private contractual rights resulting as a legal

consequence from the implied covenants under which the grantees purchased,

and as such are not affected by the failure of the municipalities to act upon

the dedication.” Rahn v. Hess, 106 A.2d 461, 464 (Pa. 1954). Specifically,

all purchasers of property in a subdivision acquire an easement over all platted

roads in the subdivision plan. Starling v. Lake Meade Property Owners

Association, Inc. (Starling I), 121 A.3d 1021, 1028 (Pa. Super. 2015),

rev’d on other grounds, Starling II, supra.

When lots are sold according to a subdivision plan on which a street has

been plotted by the grantor, the purchasers acquire property rights in the use

of the street. “Such a right is sometimes called an ‘easement of access’ which

means the right of ingress and egress to and from the premises of the lot

owners. It is a property right appurtenant to the land which cannot be

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impaired or taken away without compensation.” Chambersburg Shoe Mfg.

Co. v. Cumberland Valley R.R., 87 A. 968, 970 (Pa. 1913).

In this case, the trial court recognized the notation on the Dutch Ridge

Manor Plan Phase I that the 50-foot strip is “reserved for future use” was

insufficient to establish that it was being dedicated as a street. However, the

Boyles’ deed shows that the 50-foot strip was a right-of-way, the Phase I

subdivision has markings denoting its future use as a right-of-way, and

Subdividers’ marketing material shows that it was intended to be a right-of-

way. All of this evidence established that the parcel was intended to be used

as a road. More importantly, in Dutch Ridge Manor Plan Phases II & III, the

50-foot parcel was labeled as “Scenic Drive 50’ R/W” to be used as part of the

street system for access to Dutch Ridge Road. There is also a note on the

Plan that the Subdividers “do hereby dedicate the streets, rights of ways and

all improvements shown hereon to the public forever.”

Nevertheless, Carnovale claims that the loanillis and the Boyles do not

have an easement of access because they purchased their properties based

on Dutch Ridge Manor Plan Phase I. Because the Dutch Ridge Manor Plan Nos.

II & III were recorded years after the loanillis and the Boyles bought their lots,

were never developed and were vacated by Wayne Township, Carnovale

argues that the subsequent plans did not create any right in the 50-foot strip

of land for the Ioanillis and the Boyles.

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This argument ignores that the Subdividers recorded a Declaration of

Covenants and Use Restrictions concurrently with Phase I of the Plan which

provides in Paragraph 8 that any addition to the Plan shall be considered as a

single plan. In essence, by making it a single plan, the loanillis and the Boyles

had an easement of access in the roads in the entire Dutch Manor Plan of Lots,

including those Phases subsequent to their deeds.

As to Carnovale’s argument that Phases II & III were vacated, that

vacation only relinquishes the public rights to the street and does not affect

any private rights. Chambersburg Shoe Mfg. Co., supra. In any event,

when those Phases were vacated, Wayne Township did not vacate the

dedication of the subject 50-foot parcel. Accordingly, the trial court properly

held that the loanillis and the Boyles had easement by access in the 50-foot

strip of land between their properties.

The trial court also properly granted injunctive relief restricting

Carnovale from obstructing the right-of-way in any manner because once it

was found that easement existed, the loanillis and the Boyles’ rights as

easement holders entitle them to use the easement for all ordinary purposes

in a reasonable manner. Lease v. Doll, 403 A.2d 558, 564 (Pa. 1979).

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/2023

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