Lehman, D. v. Smith, S. & K.

Superior Court of Pennsylvania·Decided December 8, 2021·No. 295 MDA 2021·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEAN S. LEHMAN, GENE S. LEHMAN, : IN THE SUPERIOR COURT OF WILBERT F. LEHMAN, SR. AND : PENNSYLVANIA ROBERT J. LEHMAN :

:

:

v. :

:

:

STEVEN AND KIMBER SMITH AND : No. 295 MDA 2021 MICHAEL AND DOROTHEA LEHMAN :

:

Appellants :

Appeal from the Judgment Entered March 26, 2021 In the Court of Common Pleas of Lycoming County Civil Division at No. 18-1552

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MURRAY, J.: FILED: DECEMBER 8, 2021 This appeal arises from a dispute between neighboring family members — primarily five brothers — concerning an easement. Appellees Dean S. Lehman, Gene S. Lehman, Wilbert F. Lehman, Sr., and Robert J. Lehman (the Four Lehman Brothers), sued their fifth brother and his wife, Michael Lehman and Dorothea Lehman, and Michael and Dorothea’s daughter and son-in-law, Kimber and Steven Smith (collectively, Appellants). The Four Lehman Brothers successfully sought a judicial determination of an easement on Appellants’ property. Upon review, we affirm in part and reverse in part.

All five Lehman brothers jointly own land known as the Busler Tract.

The trial court explained:

Samuel and Mae Lehman, parents to [the five brothers], first obtained the Busler Tract in 1956. In 1983, Mae Lehman, having become the sole owner of the Busler Tract following the death of Samuel Lehman, placed the property into an irrevocable trust on behalf of her sons. In December of 1987, Michael Lehman and his wife, Dorothea A. Lehman, purchased a property adjacent to the Busler Tract, Tax Parcel No. 25-247-117 (“the Lehman Farm”).

In 1994, the five Lehman brothers entered into a “Real Estate Ownership Agreement” [(the Agreement)] in anticipation of taking joint ownership of the Busler Tract. The Agreement provided that the brothers would take the Busler Tract as tenants-in-common with right of first refusal if one party sought to sell or transfer his interest in the property. The brothers obtained legal title to the Busler Tract in 1995.

After Samuel and Mae Lehman obtained the Busler Tract in 1956, the Lehman family had regularly used an access road on bordering property, now owned by David E. Winter and Norma M. Winter, to access the Busler Tract for hunting and to gather firewood [(the Winter property)]. In 1996, shortly after the [five] Lehman brothers purchased the Busler Tract [and at the request of the Winter family], Dean Lehman, with the assistance of Michael Lehman, relocated this access road onto a southern portion of the Lehman Farm. [The Four Lehman Brothers] have since utilized the relocated roadway to access the Busler Tract.

Trial Court Opinion, 9/22/20, at 1-2.

Real estate tax assessment maps, which the Four Lehman Brothers attached as Exhibits “A” and “B” to their complaint seeking a judicial determination of easement, provide a visual illustration:

In January of 2018, Michael and Dorothea Lehman transferred the Lehman Farm to their daughter, Kimber I. Smith, and her husband, Steven A. Smith. Around the time of the transfer, Michael Lehman made statements to Dean Lehman that he or his successors-in-interest, Kimber Smith and Steven Smith, could

block the existing access road at the point that it crossed the Lehman Farm at any time, prompting [the Four Lehman Brothers]

to file this quiet title action. . . .

Complaint, 10/23/18, at 2.

In response to the Four Lehman Brothers’ complaint seeking a judicial determination of easement, Appellants filed an answer and new matter. On September 9, 2020, the court held a bench trial, and on September 22, 2020, entered a verdict, opinion and order finding that the Four Lehman Brothers established an easement along the access road of the Lehman Farm. Appellants filed a post-trial motion on October 6, 2020, and the Four Lehman Brothers filed a post-trial motion on October 13, 2020. The trial court recognized that both parties’ motions were untimely, but considered the merits of the motions given “certain typographical and factual errors” on the part of the trial court. Amended Trial Court Opinion, 2/4/21, at 2. See also D.L. Forrey & Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915 (Pa. Super. 2013) (trial court can exercise equitable powers to hear untimely post-trial motions).

On February 4, 2021, the trial court issued an amended verdict, opinion and order affirming its finding that an easement existed for the access road on the Lehman Farm; the court also corrected typographical errors and granted the Four Lehman Brothers’ request for attorneys’ fees. The court further directed the Four Lehman Brothers to submit an itemization of “other” fees and costs, noting that the court would issue another order “to include the amount of legal fees and costs to be paid following the fourteen day period for

submission of an itemization and objections.” Amended Trial Court Opinion, 2/4/21, at 7. The Four Lehman Brothers filed an itemization of fees and costs on February 8, 2021; Appellants did not file objections. On February 24, 2021, prior to the court entering an order regarding fees and costs, Appellants filed a notice of appeal.

On March 5, 2021, the trial court entered an order awarding the Four Lehman Brothers $10,513.00 based on the itemization they filed pursuant to the court’s February 4, 2021 directive. That same day, the court ordered Appellants to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal, and Appellants timely complied. The trial court then filed an opinion stating “its February 4, 2021 Amended Verdict, Opinion, & Order sufficiently address[es] the first six issues raised in the concise statement of errors. Therefore, the Court wishes to rely on its prior opinions as to those errors.” Pa.R.A.P. 1925(a) Opinion, 3/26/21, at 1. The court also addressed Appellants’ seventh issue challenging the court’s jurisdiction to enter the March 5, 2021 order. The court recognized that Appellants filed their appeal prior to the court’s March 5, 2021 order, and found the appeal premature because the court had “not entered a final judgment” and had “made clear” its intent to “subsequently amend the judgment to include a specific damages amount.” Id. at 3. The court also ordered the prothonotary “to docket a

judgment in favor of [the Four Lehman Brothers] and against [Appellants], with damages awarded in the amount of $10,513.00.”1 Id.

On appeal, Appellants present seven questions for review:

[1.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW / ABUSE OF DISCRETION BY FAILING TO PROPERLY APPLY THE EXISTING STANDARD FOR EQUITABLE ESTOPPEL WHICH REQUIRES THAT “EQUITABLE ESTOPPEL ARISES WHEN ONE BY HIS ACTS, REPRESENTATIONS OR ADMISSIONS OR BY HIS SILENCE WHEN HE OUGHT TO SPEAK OUT, INTENTIONALLY OR THROUGH CULPABLE NEGLIGENCE INDUCES ANOTHER TO BELIEVE CERTAIN FACTS TO EXIST AND SUCH OTHER RIGHTFULLY RELIES AND ACTS ON SUCH BELIEF, SO THAT HE WILL BE PREJUDICED IF THE FORMER IS PERMITTED TO DENY THE EXISTANCE OF SUCH FACTS.” See e.g. Northwestern Nat.

Bank v. Commonwealth, 345 Pa. 192 (1942)?

[2.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW / ABUSE OF DISCRETION IN THAT THE COURT’S FINDINGS DO NOT SUPPORT AN EASMENT BY ESTOPPEL?

[3.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW / ABUSE OF DISCRETION BY GRANTING JUDGMENT DESPITE THE FACT THAT THERE WAS NO LOCATION OF THE RIGHT-OF-

WAY BY EITHER A SURVEY OR OTHER REFERENCE IN THIS MATTER?

[4.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW / ABUSE OF DISCRETION BY FAILING TO INDICATE THE WIDTH OF THE RIGHT-OF-WAY IN ANY DOCUMENTS AND/OR PROCEEDINGS?

[5.] WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW / ABUSE OF DISCRETION IN THAT THE AGREEMENT THAT

1 Judgment was entered March 26, 2021. “[I]n the interests of judicial economy, we will consider this appeal as filed after entry of judgment.” Tohan v. Owens-Corning Fiberglas Corp., 696 A.2d 1195, 1197 n.1 (Pa. Super. 1997).

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