Kushner v. Butler County Airport Authority

764 A.2d 600, 2000 Pa. Super. 386, 2000 Pa. Super. LEXIS 4103
CourtSuperior Court of Pennsylvania
DecidedDecember 13, 2000
StatusPublished
Cited by1 cases

This text of 764 A.2d 600 (Kushner v. Butler County Airport Authority) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kushner v. Butler County Airport Authority, 764 A.2d 600, 2000 Pa. Super. 386, 2000 Pa. Super. LEXIS 4103 (Pa. Ct. App. 2000).

Opinion

HESTER, Judge:

¶ 1 Raymond D. and Denise F. Kushner, William J. and Marilyn D. Kumpf, Mary H. Waite, William R. and Rita M. Schaffer, Robert J. and Janet J. Ashcraft, and William G. and Joan Kunz, appeal from the November 24, 1999 order entered in the Butler County Court of Common Pleas. Since, upon remand, the trial court has failed to heed our directive and implement the guidelines of the Federal Aviation Administration (“FAA”) with regard to gate clearance and has failed to facilitate the property owners’ use of the gateway by requiring its electrification, we are constrained to reverse.

¶ 2 This is the second appeal in continuing litigation that began ten years ago between the Butler County Airport Authority (“Authority”) and the adjacent property owners, referred to as Appellants herein. At one time, all the parties’ land was held in common ownership, and the original owner operated a small, private airport on part of the land. That original owner sold single lots of land to Appellants for single family residences and retained the remainder of the land for use as an airport. The original owner dedicated a fifty-foot strip of land on the parcel as a taxi-strip to be used by adjacent property owners to access the runway. Thereafter, the Authority acquired the land burdened with the easement and continued to operate the airport. In an earlier memorandum filed by this Court on November 16, 1993, we recited the following relevant facts.

This case involves a property dispute between Appellants Raymond D. Kush-ner, et al., and the Butler County Airport Authority (“Authority”). Appellants live on property bordering the Butler County Airport. They own pri[602]*602vate airplanes, which they keep in private hangars just as one would keep an auto in a garage. The Authority granted to Appellants an easement to use a grassy 50-foot wide path, characterized as a “taxi-strip,” located on airport property. To access the airport runway, Appellants drive their planes from the hangar, down the easement, and onto a paved path which in turn leads to the runway itself.
Appellants and the Authority entered into litigation which need not be recounted here. To terminate this litigation, the parties entered into a consent agreement dated February 18, 1992, which reads in relevant part as follows:
4. If a perimeter fence is erected by the Defendant which would traverse the Plaintiffs’ right of way, Defendant must install and maintain a gate of sufficient width at the place of the current easement, to accommodate Plaintiffs’ full use of their entire easement. The gate must he equal to or better than the minimum standards or recommendations of the Federal Aviation Administration or Pennsylvania Bureau of Aviation, or their successors. Defendant will consult with Plaintiffs’ representative prior to the design of the gate in question.
If the Plaintiffs desire to improve upon the gate selected by Defendant, any design must be approved by Defendant (which approval will not be unreasonably withheld) and the entire expense borne by the Plaintiffs.
The Defendant shall have the responsibility for the design of the gate installed.
After entering into the consent decree, the Authority constructed a manual sliding gate across the easement. The gate opens only to the edges of the 50-foot-wide easement itself. The Authority also constructed a perimeter fence roughly parallel to the easement, and set back approximately 10 to 12 feet from one edge of the easement.1
Briefly stated, Appellants argue that the Authority violated the consent agreement by constructing the gate and fence where it did. Specifically, Appellants contend that Federal Aviation Administration (FAA) guidelines apply to the gate and fence, and that those guidelines require 44.5 feet of object-free clearance on either side of the center line of the easement, or 89 feet in total. (R.R. 271a) The gate, even when fully open, provides only 25 feet of clearance on either side of the center line of the easement. The fence, located 10 to 12 feet from the center line of the easement, provides only 35 to 37 feet of clearance on one side of the easement. The lack of clearance concerns Appellants in part because they are entitled to keep “Group One” airplanes on their property, which have a maximum wingspan of 49 feet. An airplane of this size would have only six inches of clearance on either side of the gate. Appellants do not currently own planes of this size.
Believing that the Authority had violated the consent decree, Appellants filed a Petition for Contempt. The trial court held a non-jury hearing on this [603]*603matter, and denied the petition. The court concluded that FAA clearance regulations do not apply because the easement is not an FAA-regulated “taxiway.” (Trial Court opinion, 8/22/97, at 2.)
On October 30, 1997, the court awarded the Authority approximately $5,000.00 in attorneys’ fees and costs on the ground that “[Appellants] were attempting to violate the Order by claiming expanded right of way by their erroneous interpretation of the language of the Order.” (Trial Court Opinion, 10/30/97 at 1-2). [Appellants filed an appeal.]

Kushner, et al. v. Butler County Airport Authority, 734 A.2d 445 (Pa.Super.1998) (unpublished memorandum) (emphasis in original).

¶ 3 In that appeal, we construed the consent order in the same light as we would any other contract. We ascertained the intent of the language and looked to the plain meaning of the words in the written agreement. See Dieter v. Fidclcor, Inc., 441 Pa.Super. 215, 657 A.2d 27, 29 (1995); PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 632 A.2d 903, 905 (1993). We noted that the consent agreement provided that if the Authority erected a fence across Appellants’ easement, it was legally bound to install a gate which accommodated Appellants “full use of their entire easement,” and which met or exceeded the minimum FAA standards or recommendations. See Kushner, et al. v. Butler County Airport Authority, supra. We did not focus on whether the easement was an FAA-approved taxiway, but upon whether the Authority agreed to construct a gate over the easement according to the FAA’s object-free clearance standards. Clearly, the gate structure, itself, was necessary to create an opening, or gateway, which would permit Appellants’ use of their easement. We determined that under the relevant agreement, the parties did intend that FAA regulations regarding clearance would apply to any gate built by the Airport over property owners’ easement. We reversed the trial court’s decision that held to the contrary. We remanded for enforcement of the property owners’ contempt petition.

¶ 4 On remand, the trial court directed the Authority to widen the gate opening but determined that the object-free area would be seventy-five feet rather than the FAA mandated eighty-nine feet. It also concluded that a manual, rather than automated gate, could be installed by the Authority unless the property owners agreed to pay for one-half of the cost of automating the gate. Further, it ordered the Authority to pay $13,218.53 in attorneys’ fees that were incurred by Appellants. The property owners filed this appeal.

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Bluebook (online)
764 A.2d 600, 2000 Pa. Super. 386, 2000 Pa. Super. LEXIS 4103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kushner-v-butler-county-airport-authority-pasuperct-2000.