Stewartstown Railroad Co. v. Cathell, Sr., J.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2024
• Docket: 1196 MDA 2023
• Status: Unpublished

Opinion

J-S19040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

STEWARTSTOWN RAILROAD : IN THE SUPERIOR COURT OF COMPANY : PENNSYLVANIA : : v. : : : JAMES DAVID CATHELL, SR. : : No. 1196 MDA 2023 Appellant :

Appeal from the Order Entered July 28, 2023 In the Court of Common Pleas of York County Civil Division at No(s): 2021-SU-002455

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: AUGUST 8, 2024

Appellant, James David Cathell, Sr. (Defendant), appeals from an order

of the Court of Common Pleas of York County (the trial court) granting partial

summary judgment, a declaratory judgment, and a permanent injunction in

favor of Stewartstown Railroad Company (Plaintiff) in an action brought by

Plaintiff against Defendant concerning a right-of-way of Plaintiff on

Defendant’s property. For the reasons set forth below, we quash the appeal

in part for lack of jurisdiction and affirm the trial court as to the two portions

of the order over which we have appellate jurisdiction, the declaratory

judgment and permanent injunction.

Defendant is the owner of a property at 1517 Deer Creek Road, New

Freedom, Pennsylvania (the Property) under deeds that specifically reference ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S19040-24

a 33-foot right-of-way of Plaintiff across the Property. 2010 Deed at 2; 2001

Deed at 2; N.T. Preliminary Injunction Hearing, 8/18/22, at 22-23. Plaintiff’s

right-of-way was created in 1884 by conveyances that granted “Stewartstown

Railroad Company, their successors and assigns, the absolute right of way and

use to and for said Railroad Company, to enter upon, locate and construct …

to such extent as may be necessary for the location, construction, opening,

and use of said Railroad.” Right-of-Way Grants. Although Plaintiff does not

presently run trains that connect to the national interstate rail system,1

Plaintiff’s railroad tracks remain on the Property, and the right-of-way and the

railroad tracks on it have been used for excursion trains and are currently

used for rail biking tours. N.T. Preliminary Injunction Hearing, 8/18/22, at 5-

8, 19-20, 29, 32-34, 37-39; N.T. Contempt Hearing, 10/21/22, at 6.

On November 12, 2021, Plaintiff commenced an action against

Defendant alleging that Defendant was obstructing its use of its right-of-way

on the Property and asserting a claim for a declaratory judgment declaring

the validity of its right-of-way on the Property, a claim for injunctive relief

prohibiting Defendant from obstructing or interfering with Plaintiff’s use of the ____________________________________________

1 Plaintiff’s 7.4 mile rail line was removed from the national interstate rail system by a 2012 decision of Surface Transportation Board (STB). Stewartstown Railroad Company - Adverse Abandonment - in York County, Pa., STB Docket No. AB 1071, 2012 WL 5828750 (Nov. 16, 2012). While the parties and trial court treat this removal of Plaintiff’s rail line from the interstate rail system as remaining in effect, it appears that the STB vacated that decision in 2013. Stewartstown Railroad Company - Adverse Abandonment - in York County, Pa., STB Docket No. AB 1071, 2013 WL 6036969 (Nov. 14, 2013). In light of our resolution of this appeal, we need not decide this issue of Plaintiff’s status.

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right-of-way, and claims for interference with an express easement and for

nuisance. Stewartstown Railroad Co. v. Cathell (Stewartstown

Railroad I), 1581 MDA 2022, slip op. at 2 (Pa. Super. July 26, 2023);

Amended Complaint ¶¶17-34. On May 12, 2022, Defendant filed an answer

and new matter in which he asserted a counterclaim against Plaintiff seeking

damages for trespass. Answer and New Matter ¶¶44-55.

On July 28, 2022, Plaintiff filed a petition for a preliminary injunction,

and the trial court, after holding hearings, issued a preliminary injunction on

August 30, 2022, prohibiting Defendant from blocking or disrupting Plaintiff’s

use of the right-of-way and from damaging or modifying the railroad tracks

on plaintiff’s right-of-way. Stewartstown Railroad I, 1581 MDA 2022, slip

op. at 2-5; Preliminary Injunction Order, 8/30/22. Defendant did not appeal

the preliminary injunction and was subsequently found in contempt of the

preliminary injunction. Defendant appealed the civil contempt finding and

sanctions that the trial court imposed, and this Court affirmed the contempt

and sanctions on July 26, 2023. Stewartstown Railroad I, 1581 MDA 2022,

slip op. at 5-14.

While Defendant’s contempt appeal was pending, Plaintiff filed a motion

for partial summary judgment seeking judgment in its favor on its declaratory

judgment, injunctive relief, and interference with easement claims and on

Defendant’s trespass counterclaim. Plaintiff’s Partial Motion for Summary

Judgment ¶¶25-69. Defendant opposed Plaintiff’s motion for summary

judgment on the grounds that Plaintiff’s grants of right-of-way were not

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recorded at the time that Defendant acquired the Property, that Plaintiff’s

right-of-way had allegedly been abandoned, that Plaintiff’s current use of the

right-of-way to operate rail biking, rather than a railroad, was allegedly

outside the scope of the Plaintiff’s easement rights, that Plaintiff had

committed a trespass regardless of the validity of its right-of way by allegedly

spraying chemicals on the Property outside the right-of way, and that there

were disputed issues of fact concerning abandonment, Plaintiff’s use of the

right-of way, and chemical spraying. Reply to Motion for Summary Judgment

at 1-2 & ¶¶7, 14, 18, 25, 28-29, 31-34 & n.4, 39-41, 45, 49, 54, 63, 68.

On July 28, 2023, the trial court entered an order granting summary

judgment in Plaintiff’s favor on Plaintiff’s declaratory judgment, injunctive

relief, and interference with easement claims and Defendant’s trespass

counterclaim. Trial Court Order, 7/28/23. In this order, the trial court also

granted a declaratory judgment that Plaintiff’s right-of-way on the Property is

valid, binding, and enforceable and that Plaintiff has the right to the absolute

and unobstructed use of the right-of-way and granted a permanent injunction

enjoining Defendant from interfering with Plaintiff’s use of the right-of-way.

Id. ¶¶1, 4. On August 23, 2023, Defendant appealed that order to this Court.

Before we may consider the issues that Defendant seeks to raise in this

appeal, we must first determine whether the July 28, 2023 order is an

appealable order and whether Defendant preserved any issues for appellate

review.

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The July 28, 2023 order is not appealable as a final order under

Pa.R.A.P. 341. An order in a civil case is an appealable final order only if it

“disposes of all claims and of all parties” or is entered as a final order under

Pa.R.A.P. 341(c). Pa.R.A.P. 341(b)(1), (3). The July 28, 2023 order did not

dispose of all claims, as it made no ruling on Plaintiff’s nuisance claim and the

parties concede that the nuisance claim remains pending in the trial court.

Appellant’s Response to Rule to Show Cause at 1; Appellee’s Brief at 1. The

July 28, 2023 order was also not entered as a final order under Rule 341(c).

Rule 341(c) provides that a trial court “may enter a final order as to one or

more but fewer than all of the claims and parties only upon an express

determination that an immediate appeal would facilitate resolution of the

entire case.” Pa.R.A.P. 341(c). The trial court made no express determination

that immediate appeal would facilitate resolution of the entire case in its July

28, 2023 order or any subsequent order.

Although the July 28, 2023 order is not an appealable final order, two

of its provisions, the declaratory judgment and permanent injunction are

appealable because they are interlocutory orders appealable as of right under

Pa.R.A.P. 311. Rule 311 provides in relevant part:

An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from the following types of orders:

* * *

(4) Injunctions. An order that grants or denies, modifies or refuses to modify, continues or refuses to continue, or dissolves or refuses to dissolve an injunction unless the order was entered:

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(i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a); or

(ii) After a trial but before entry of the final order. Such order is immediately appealable, however, if the order enjoins conduct previously permitted or mandated or permits or mandates conduct not previously mandated or permitted, and is effective before entry of the final order.

(8) Other Cases. An order that is made final or appealable by statute or general rule, even though the order does not dispose of all claims and of all parties.

Pa.R.A.P. 311(a)(4), (8) (italics omitted).

An order that grants declaratory relief and resolves the entire

declaratory judgment dispute between two parties is an “order that is made

final or appealable by statute or general rule” and is an appealable order under

Rule 311(a)(8). 42 Pa.C.S. § 7532 (declaratory judgment “shall have the

force and effect of a final judgment or decree”); Pennsylvania

Manufacturers Indemnity Co. v. Pottstown Industrial Complex LP, 215

A.3d 1010, 1014 n.1 (Pa. Super. 2019). The trial court’s declaratory judgment

in Plaintiff’s favor resolved the entire declaratory judgment dispute between

Plaintiff and Defendant and is therefore an appealable interlocutory order. The

trial court’s permanent injunction is an “order that grants … an injunction.”

Pa.R.A.P. 311(a)(4). The exceptions to the appealability of such an order do

not apply here, as the permanent injunction was granted on summary

judgment, not after a trial.

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Because the trial court’s declaratory judgment and permanent injunction

are appealable interlocutory orders, this Court has appellate jurisdiction of

Defendant’s appeal of those two portions of the July 28, 2023 order. No such

jurisdictional basis, however, exists for interlocutory appeal of any other

portion of July 28, 2023 order. We therefore quash Defendant’s appeal from

the trial court’s summary judgment on Plaintiff’s interference with easement

claim and its summary judgment on Defendant’s trespass claim.

The other preliminary issue before us is whether Defendant preserved

any issue for our review in his appeal of the declaratory judgment and

permanent injunction. Plaintiff argues and the trial court found that Defendant

waived all issues on appeal because he failed to timely file a concise statement

of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).

Appellee’s Brief at 16-18; Trial Court Rule 1925(a) Opinion, 9/20/23. We

agree.

Rule 1925(b) provides that the judge whose order has been appealed

may enter an order directing the appellant to, within 21 days, file of record

and serve on the judge a concise statement of errors complained of on appeal

and that if such an order is entered, any issue not included in a timely filed

and served concise statement is waived. Pa.R.A.P. 1925(b)(1), (2), (4); U.S.

Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v. Hua,

193 A.3d 994, 996 (Pa. Super. 2018). The law is clear that where a trial court

has issued a Rule 1925(b) order that satisfies Rule 1925(b)’s requirements

and the docket shows that it was sent by the court to all parties, the

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appellant’s failure to timely file a concise statement in compliance with that

order waives all issues on appeal. U.S. Bank, 193 A.3d at 996-97; Greater

Erie Industrial Development Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224-27 (Pa. Super. 2014) (en banc); In re Estate of Boyle, 77 A.3d

674, 679 (Pa. Super. 2013).

The trial court issued an order on August 24, 2023 that complied with

the requirements of Rule 1925(b). Trial Court Rule 1925(b) Order, 8/24/23.

That order directed Defendant to file a concise statement of errors complained

of on appeal within 21 days of the entry of the Rule 1925(b) order and serve

the concise statement on the judge within that period and advised Defendant

that any issue not included in a timely filed and served concise statement

“shall be deemed waived.” Id. The date of entry of the Rule 1925(b) order

from which that 21-day period for filing the concise statement is calculated is

the date on which the docket notes that notice was given to the parties.

Greater Erie Industrial Development Corp., 88 A.3d at 226. The docket

in this case notes that notice of the Rule 1925(b) order was given to the parties

on August 25, 2023. Certified Docket Entries at 2. Defendant was therefore

required to file his concise statement no later than September 15, 2023.

Defendant, however, did not file any concise statement until September

19, 2023. Certified Docket Entries at 2. Defendant does not claim that he

attempted to file the concise statement on or before September 15, 2023 and

was prevented from doing so by events beyond his control. To the contrary,

Defendant’s concise statement bears the date September 19, 2023 and his

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certificate of service states that it was served on the judge on September 19,

2023. Defendant’s 1925(b) Statement at 3, 5. Defendant also does not

dispute that the Rule 1925(b) order was sent to him on August 25, 2023 and

that he in fact received the Rule 1925(b) order. Defendant’s Application to

Enlarge Time to File Rule 1925(b) Statement ¶¶3, 6.

Rather, Defendant argues that his concise statement should be treated

as timely because he received the Rule 1925(b) order on August 31, 2023,

less than 21 days before his September 19, 2023 concise statement, because

the untimeliness was only a few days and waiver should not apply where

injustice would result and there is no prejudice from the delay, and because

he requested that the trial court grant an enlargement of time or permit him

to file the statement nunc pro tunc. Appellant’s Brief at 24-27. None of these

arguments has merit.

Contrary to Appellant’s contention, the time to file a concise statement

runs from the date of entry of the order, Pa.R.A.P. 1925(b)(2)(i), which is the

date that the docket notes that notice of the order was given, not the date of

receipt. Greater Erie Industrial Development Corp., 88 A.3d at 226;

Pa.R.A.P. 108(b). The rule that failure to timely file a concise statement

ordered by the court waives all issues on appeal in a civil case applies even

where the untimeliness is only a few days and without regard to the substance

of the issues that the appellant wishes to litigate. Greater Erie Industrial

Development Corp., 88 A.3d at 224-27 (all issues held waived where

appellant’s concise statement was three days late). In Greater Erie

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Industrial Development Corp., this Court specifically held the rule that

failure to file a timely Rule 1925(b) concise statement waives all appellate

issues is a bright-line, automatic waiver rule as to which this Court cannot

create exceptions that are not based on Rule 1925(b)’s provisions. Id. at

224-25.

Velasquez v. Miranda, 297 A.3d 837 (Pa. Super. 2023), cited by

Appellant, is inapplicable here. Velasquez involved the failure to file a

concise statement with the notice of appeal in a children’s fast track appeal,

as is required by Rule 1925(a)(2), and whether that invalidated the appeal,

not whether failure to timely file a concise statement in compliance with a

court order under Rule 1925(b) waives claims of error, and the Court noted

that the consequences of noncompliance with Rule 1925(a)(2) are governed

by a different standard than failure to comply with Rule 1925(b). 297 A.3d at

841. Unlike Defendant, the appellant in Velasquez timely complied with the

court order to file and serve a concise statement. Id. at 842.

Defendant’s application for enlargement of time or nunc pro tunc filing

cannot make his late concise statement timely. While a court may grant an

enlargement of time or nunc pro tunc filing of concise statement for good

cause shown or in extraordinary circumstances, Pa.R.A.P. 1925(b)(2)(i),

Defendant did not file this application before the deadline for his concise

statement or even contemporaneously with his untimely concise statement.

Rather, he filed the application, which the trial court denied, on September

24, 2023, nine days after the concise statement was due, five days after his

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untimely concise statement, and after the trial court had issued its Rule

1925(a) opinion finding that his issues were waived by failure to timely file his

concise statement. Certified Docket Entries at 2. Moreover, Defendant set

forth no good cause or extraordinary circumstances in his application. The

only facts that Defendant asserted as grounds for enlargement of time or late

filing were that a copy of the Rule 1925(b) order was not uploaded on the

electronic docket until August 28, 2023 and that he received the Rule 1925(b)

order on August 31, 2023. Defendant’s Application to Enlarge Time to File

Rule 1925(b) Statement ¶¶4-6. Neither of these facts constitute good cause

or extraordinary circumstances because Defendant made no allegation that

these minor delays caused him to need additional time or affected his ability

to file his concise statement by September 15, 2023. Indeed, the August 28,

2023 uploading could not possibly have caused Defendant’s untimeliness, as

Defendant filed his concise statement more than 21 days after August 28,

2023. The trial court therefore did not err in denying Defendant’s application

for enlargement of time or nunc pro tunc filing.

Because Defendant did not timely file a concise statement of errors

complained of on appeal in compliance with the trial court’s Rule 1925(b)

order, we are constrained to conclude that Defendant has waived all issues in

his appeal and affirm the trial court’s declaratory judgment and injunction

without addressing the merits. U.S. Bank, 193 A.3d at 997-99 & n.3;

Greater Erie Industrial Development Corp., 88 A.3d at 226-27.

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For the reasons set forth above, the July 28, 2023 order that is the

subject of this appeal was not a final order, only the trial court’s declaratory

judgment and permanent injunction are appealable interlocutory orders, and

Defendant has waived all issues in this appeal. We accordingly quash

Defendant’s appeal from the trial court’s entry of summary judgment on

Plaintiff’s interference with easement claim and Defendant’s trespass claim

and affirm the trial court’s declaratory judgment and permanent injunction.

Appeal quashed in part. Trial court’s declaratory judgment and

permanent injunction affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/8/2024

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