J-A19042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOWARD P. & CAROL N. ANGSTADT AND 

GARY L. & SHERRE A. GAERTNER AND 

THOMAS D. & MICHELLE M. 

MCLAUGHLIN 

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

GARY J. AND MELISSA FADDIS AND 

UNKNOWN HEIRS AND/OR

ADMINISTRATORS OF THE ESTATE OF 

ISAAC J. BOOTH AND UNKNOWN HEIRS 

AND/OR ADMINISTRATORS OF THE 

ESTATE OF WILHELMINA SMEDLEY AND 

UNKNOWN HEIRS AND/OR

ADMINISTRATORS OF THE ESTATE OF 

JAMES DAY

APPEAL OF: GARY J. AND MELISSA 

FADDIS No. 2605 EDA 2015

Appeal from the Judgment Entered September 15, 2015

in the Court of Common Pleas of Delaware County Civil Division

at No(s): 2012-005034

HOWARD P. & CAROL N. ANGSTADT AND 

GARY L. & SHERRE A. GAERTNER AND 

THOMAS D. & MICHELLE M. 

MCLAUGHLIN

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

GARY J. AND MELISSA FADDIS AND 

UNKNOWN HEIRS AND/OR

ADMINISTRATORS OF THE ESTATE OF 

ISAAC J. BOOTH AND UNKNOWN HEIRS 

AND/OR ADMINISTRATORS OF THE 

ESTATE OF WILHELMINA SMEDLEY AND 

UNKNOWN HEIRS AND/OR

ADMINISTRATORS OF THE ESTATE OF 

JAMES DAY
J-A19042-16

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APPEAL OF: HOWARD P. & CAROL N. 

ANGSTADT AND GARY L. & SHERRE A. 

GAERTNER

No. 2606 EDA 2015

Appeal from the Judgment Entered September 15, 2015

in the Court of Common Pleas of Delaware County Civil Division

at No(s): 2012-005034

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 28, 2016

Appellants/Cross-Appellees, Gary J. and Melissa Faddis (“Faddis”), 

appeal from the judgment1entered in the Delaware County Court of 

Common Pleas finding that they had abandoned any express easement 

and/or any other form of easement proving they had a right of ingress and 

egress along Copes Lane. Appellees/Cross-Appellants, Howard P. & Carol N. 

Angstadt (“Angstadt”), and Gary L. & Sherre A. Gaertner (“Gaertner”), 

appeal from the judgment entered in the Delaware County Court of Common 

Pleas denying their claims of adverse possession of the parcel known as 

Copes Lane. We affirm. 

 

*

Former Justice specially assigned to the Superior Court.

1 Although the parties filed their appeals after the denial of their post-trial 

motions, which pre-dated the entry of judgment, the appeals were perfected 

when judgment was entered on September 15, 2015. See Pa.R.A.P. 

905(a)(5); Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 

511, 514-15 (Pa. Super. 1995) (en banc) (stating that appellate courts may 

“regard as done that which ought to have been done”); see also Levitt v. 

Patrick, 976 A.2d 581, 584 n.2 (Pa. Super. 2009) (stating that appeal 

properly lies from the entry of judgment, not from order denying post-trial 

motion).
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We adopt the facts set forth by the trial court’s opinion. See Trial Ct. 

Op., 10/21/15, at 7-11.2 The parties stipulated, inter alia, to the following:

15. The September 26, 1991 Faddis Deed does not make 

any reference to Copes Lane.

16. On or about May 7, 2012, Gary J. Faddis and Melissa 

Faddis recorded a Deed dated April 4, 2012 from 

themselves to themselves . . . .

17. The May 7, 2012 deed added the following language 

to their prior Deed: “Together with the right of ingress and 

egress to and from said premises to Edgmont Road along 

property of Wilhelmine Smedley AND Copes Lane as the 

same is now used.”

 * * * 

20. The Faddis’ predecessor in title was Howard H. Faddis, 

Jr. and Dorothy S. Faddis, his wife, who purchased the 

property from John b. Hanley and Gertrude Hanley on 

August 7, 1952 . . . .

21. That Deed contains the following statement: “Together 

with the right of ingress and egress to and from said 

premises to Edgmont Road along property of Wilhelmina 

Smedley, as the same is now used.

 * * *

 

2 We note the trial court opinion refers to the Agreed Stipulation of Facts 

Between Counsel for Plaintiff and Counsel for Defendant. See R.R. at 67a73a. “The stipulation of facts is binding on both the parties and on this 

court, and facts effectively stipulated are controlling and conclusive.” 

Kennedy Boulevard Assoc. I, L.P. v. Tax Review Bd. of City of Phila., 

751 A.2d 719, 724 (Pa. Cmwlth. 2000) (quotation marks and citation 

omitted). For the parties’ convenience, we refer to the reproduced record 

where applicable.

 
J-A19042-16

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32. [Faddis] live in the property formerly belonging to 

Howard H. Faddis, Jr. and Dorothy S. Faddis. The water 

line servicing their property runs from old Middletown Road 

down Cope[s] Lane to their property. The water line has 

been in continuous use since at least December 4, 1956.

 * * *

39. In 1994, [Faddis] installed 4’ high post and rail 

fence along the rear and sides of their property.

40. The Faddis rear yard fence was installed pursuant to a 

Building Permit which issued by Middletown township on 

June 1, 1994 . . . .

41. The Faddis fence runs perpendicular to and crossed 

over Copes Lane, ending at and abutting up to the 

McLaughlin’s corner fence post. It was originally 

installed without a gate.

42. In or about April of 2012, [Faddis] removed the 

section of their post and rail fence which crossed Copes 

Land and replaced it with a double gate.

R.R. at 69a-72a (emphases added). 

The parties filed post-trial motions, which the court denied. These 

appeals followed. The parties filed court-ordered Pa.R.A.P. 1925(b) 

statements of errors complained of on appeal. The trial court filed a 

responsive opinion.

Faddis raises the following issues for our review:

I. Did the [t]rial [c]ourt abuse its discretion and commit an 

error of law in finding that . . . Faddis abandoned their 

easement of ingress and egress over Copes Lane where in 

the same decision the court found “[Faddis has] through 

clear and concise evidence proven the actual, continuous, 

exclusive, visible, notorious, distinct and hostile possession 

of that portion of Copes Lane where their water line is 

located since 1954. . .” because any use of their easement 
J-A19042-16

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of ingress and egress, even for the limited purpose of 

utilities, as a matter of law, precludes a finding that they 

abandoned their easement?

II. Did the trial court commit an error of law or an abuse of 

discretion in determining that [Appellees] McLaughlin had 

established, by clear and convincing evidence, adverse 

possession of the area of Copes Lane located within their 

fence where the court did not follow the controlling 

precedent announced in the Superior Court’s decision in 

Flannery v. Stump[, 786 A.2d 255 (Pa. Super. 2001)] 

which precludes a finding of hostile possession on facts 

identical to the facts in this case?

Faddis’ Brief at 4-5.

Faddis contends that any use of the easement of ingress and egress, 

even for the limited purpose of utilities, precludes a finding that they 

abandoned their easement. Id. at 19. Faddis avers “evidence of intent of 

the easement holder to abandon the easement is the key to the analysis of

easement abandonment.” Id. at 23-24. They claim “[s]ince the [t]rial 

[c]ourt found that . . . Faddis had made continuous use of their easement of 

ingress and egress for utilities, it abused its discretion and committed an 

error of law by holding in the same decision they abandoned the very same 

easement.” Id. at 25. The trial court erred in “finding that . . . Faddis 

abandoned their easement of ingress and egress and in the same decision 

declaring they had established a prescriptive utility easement.”3Id. Faddis

is denied relief.

 

3 We note
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Our review is governed by the following principles:

Our scope of review is limited. We are bound by 

findings of fact which are supported by the record, but not 

the trial court’s conclusions of law. We must have due 

regard for the trial court’s superior vantage and its 

prerogatives to access credibility and to believe all, part, or 

none of the evidence presented. Finally, we may not 

reverse absent a clear abuse of discretion or an error of 

law.

Waltimyer, 556 A.2d at 913.

In Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002), our Pennsylvania 

Supreme Court held that 

[i]n evaluating whether the user abandoned the property, 

the court must consider whether there was an intention to 

abandon the property interest, together with external acts 

by which such intention is carried into effect. In order to 

establish the abandonment of a right-of-way, the evidence 

must show that the easement holder intended to give up 

its right to use the easement permanently. Such conduct 

must consist of some affirmative act on his part which 

renders use of the easement impossible, or of some 

physical obstruction of it by him in a manner that is 

inconsistent with its further enjoyment.

 * * *

 

An easement or right-of-way by prescription arises by 

adverse, open, continuous, notorious, and uninterrupted 

use of the land for twenty-one years. The scope of the use 

during the prescriptive period determines the scope of the 

easement or right-of-way obtained, except with respect to 

a reasonable evolution of the use which is not unduly 

burdensome.

Waltimyer v. Smith, 556 A.2d 912, 913-14 (Pa. Super. 1989).
J-A19042-16

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In sum, many different factors can be considered when 

making a determination of abandonment. Moreover, no 

single factor alone is sufficient to establish the intent to 

abandon. Abandonment must be determined based upon 

all of the circumstances surrounding the alleged 

abandonment. 

Id. at 664–65 (quotation marks and citations omitted).

Instantly, the trial court 

found that Angstadt, Gaertner and McLaughlin proved 

through clear and convincing evidence that Faddis erected 

a post and rail fence surrounding the rear yard of the 

Faddis property and across their point of access to Copes 

Lane in 1994. The Faddis’s post and rail fence did not 

include a gate at their point of access to Copes Lane, and 

Copes Lane became over-grown at the point of access to 

the Faddis property. The construction of this fence 

rendered the use of the easement impossible and was 

inconsistent with its further enjoyment. The record clearly 

indicates that this fence and overgrowth limited ingress 

and egress to Copes Lane from the Faddis property. It 

was only following the Gaertner zoning hearing in January 

2012 that Faddis prepared and filed the 2012 Faddis 

corrective Deed, cleared over-growth using a chemical 

agent, installed a gate in their fence at the access point to 

Copes Lane, and began pedestrian and motor vehicle use 

of Copes Lane to access the public roadway.

 * * *

On the claim of Angstadt, Gaertner and McLaughlin 

against Faddis and based upon the asserted right to a 

prescriptive easement along Copes Lane for the placement 

underground, maintenance, repair and replacement of a 

lateral water line servicing the Faddis property by 

connecting to the main public water service line located in 

and along south Old Middletown Road, Middletown 

Township, Delaware County, Pennsylvania, this [c]ourt 

found in favor of Faddis confirming the prescriptive 

easement for a public water line and against Angstadt, 

Gaertner and McLaughlin and each of the remaining 

defendants, Unknown Heirs and/or Administrators of the 
J-A19042-16

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Estate of Isaac J. Booth, Unknown Heirs and/or 

Administrators of the Estate of Wilhelmina Smedley, and 

Unknown Heirs and/or Administrators of the Estate of 

James Day.

On the claim of Angstadt, Gaertner and McLaughlin 

against Faddis that Faddis abandoned any express 

easement granted by the 1952 Faddis Deed, the 1991 

Faddis Deed and/or the 2012 Faddis Corrective Deed, 

and/or any other form of easement Faddis claims provide a 

right of ingress and egress along Copes Lane, this [c]ourt 

found in favor [of] Angstadt, Gaertner and McLaughlin and 

the remaining defendants, Unknown Heirs and/or 

Administrators of the Estate of Isaac J. Booth, Unknown 

Heirs and/or Administrators of the Estate of Wilhelmina 

Smedley, and Unknown Heirs and/or Administrators of the 

Estate of James Day.

Trial Ct. Op. at 15-17 (emphasis added and footnote omitted).

Although the Deed of Howard H. Faddis Jr. and Dorothy S. Faddis 

contained the right of ingress and egress to Copes Lane, the installation of 

the post and rail fence by Faddis along the Faddis property in 1994 blocked 

the access to and from the Faddis property to Copes Lane. This physical 

obstruction rendered the use of the easement impossible and, therefore, 

Faddis effectively abandoned the easement. See Buffalo Twp., 813 A.2d at 

664-65. We discern no abuse of discretion or error of law. See Smith, 556 

A.2d at 913.

Next, Faddis contends the trial court erred in finding that McLaughlin 

had established adverse possession of the area of Copes Lane located within 

the McLaughlin’s fence and ignoring controlling precedent in Flannery, 

supra. Faddis Brief at 28. Faddis claims that because McLaughlin thought 
J-A19042-16

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the fence was on his own property until 1995, he did not meet the 

requirements for adverse possession. Id. at 33. We disagree.

The elements necessary to establish adverse possession 

are as follows:

Adverse possession is an extraordinary doctrine 

which permits one to achieve ownership of another’s 

property by operation of law. Accordingly, the grant 

of this extraordinary privilege should be based upon 

clear evidence. Edmondson v. Dolinich, [ ] 453 

A.2d 611, 614 (Pa. Super. 1982) (“It is a serious 

matter indeed to take away another’s property. That 

is why the law imposes such strict requirements of 

proof on one who claims title by adverse 

possession.”) One who claims title by adverse 

possession must prove actual, continuous, exclusive, 

visible, notorious, distinct and hostile possession of 

the land for twenty-one years. Each of these 

elements must exist; otherwise, the possession will 

not confer title.

Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 

(Pa. Super. 2008) (quoting Flannery[, 786 A.2d at 258] 

(certain citations omitted), [ ]).

Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010).4

“While the word ‘hostile’ has been held not to mean ill will or hostility, 

it does imply the intent to hold title against the record title holder.” Tioga 

Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 3 (Pa. 1988) (citation 

omitted). Furthermore, “[i]n Schlagel v. Lombardi, [ ] 486 A.2d 491 

([Pa. Super.] 1984), [the] Superior Court observed that possession may 

 

4 We note that “[a] prescriptive easement differs from land acquired by 

adverse possession, because an adverse possessor acquires the land in fee, 

whereas the prescriptive easement holder is only entitled to an easementlike use.” Soderberg v. Weisel, 687 A.2d 839, 843 (Pa. Super. 1997).
J-A19042-16

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be hostile even if the claimant knows of no other claim and falsely 

believes that he owned the land in question[.]” Id. (emphases added).

Instantly, the trial court opined:

McLaughlin was successful in proving adverse possession 

of the specific area of Copes Lane inside the rear yard 

fence on the McLaughlin property. McLaughlin since 1989 

held the portion of Copes Lane inside a fence line 

exclusively for themselves and believed that land to be 

their property. In 1995, during the process of replacing 

the fence, McLaughlin learned they did not hold title to the 

Copes Lane portion of their rear yard, but nevertheless, 

they directed the contractor to place the new fence in the 

same location as the original fence. This conduct 

demonstrates their contention that they have exercised 

actual, continuous, exclusive, visible, notorious, distinct 

and hostile possession of that portion of Copes Lane for 

twenty-one years.

Trial Ct. Op. at 13.

Even though McLaughlin falsely believed he owned the land in 

question, possession may be hostile. See Tioga Coal Co., 546 A.2d at 3. 

Thus, the elements of adverse possession have been established. See

Showalter, 9 A.3d at 235. We find no abuse of discretion by the trial court. 

See Waltimyer, 556 A.2d at 913.

Angstadt and Gaertner raise the following issues for our review:

[1.] Did the [t]rial [c]ourt commit error of law and abused 

[sic] its discretion by failing to determine the easement 

language in the Angstatdts’ Deed regarding Copes Lane 

had a sunset provision and the grantors in their chain of 

title have not used Copes Lane for over half a century, 

therefore the Angstadts’ use was not permissive?

[2.] Did the [t]rial [c]ourt commit error of law and abuse 

its discretion by failing to grant [Angstadt] title by adverse 
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possession of the portion of Copes Lane which they had 

maintained since 1964?

[3.] Did the [t]rial [c]ourt commit error of law and abuse 

its discretion by failing to grant [Gaertner] title by adverse 

possession of the portion of Copes Lane they had 

maintained and used since 1987 by relying on Mr. 

Gaertner’s failure to assert ownership before a Zoning 

Hearing Board?

[4.] Did the [t]rial [c]ourt commit error of law and abuse 

its discretion in failing to find the “1991 Faddis Deed” did 

not convey a right of ingress and egress along Copes 

Lane?

[5.] Did the [t]rial [c]ourt commit error of law and abuse 

its discretion by failing to find the “2012 Faddis corrective 

Deed” was a nullity as it relates to conveyance of any title 

or right of ingress and egress along Copes Lane to and 

from South Old Middletown Road?

Angstadt-Gaertner’s Brief at 19.5

We address the first two issues together because they are interrelated. 

Angstadt contends the trial court erred in determining that the Angstadt 

deed contains an express easement to Copes Lane based upon the following 

language: “TOGETHER with the right and use of the LANE leading from Old 

Middletown Road (formerly Edgmont Great Road) to Herman Cope’s property 

so far as the right, title and use of the same remains in the Grantors.” Id.

at 30. They claim their permissive use changed to hostile use. Id. They 

argue they satisfied the elements of adverse possession by maintaining the 

 

5

For ease of disposition, we have numbered the issues.
J-A19042-16

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property, which “included cutting grass, raking leaves, cleaning up trash, 

limbs and branches.” Id. at 32 (citations omitted). We find no relief is due.

In Waltimyer, this Court opined:

A use based upon permission cannot ripen into a 

prescriptive right unless the owner of the land is given 

clear notice that the character of the use has changed from 

a permissive use to an adverse use, and the adverse use 

then continues for the full prescriptive period. 

Waltimyer, 556 A.2d at 914. “Where the possession, at its inception, is 

permissive, . . . (adverse possession) will not begin to run against the real 

owner [u]ntil there has been some subsequent act of disseizin or open 

disavowal of the true owner’s title . . . .” Roman v. Roman, 401 A.2d 361, 

363 (Pa. 1979) (citation omitted).

The trial court opined:

Angstadt failed to prove by clear and convincing evidence 

actual, continuous, exclusive, visible, notorious, distinct 

and hostile possession over any portion of Copes Lane. 

Rather, the 1964 Angstadt Deed includes the grant of an 

express easement to Angstadt for ingress and egress along 

Copes Lane. Therefore, Angstadts’ possession of Copes 

Lane is permissive.

Trial Ct. Op. at 12-13.

The record doesn’t establish a subsequent act that would convert 

Angstadt’s permissive use of Copes Lane into adverse possession. See 

Roman, 401 A.2d at 363; Waltimyer, 556 A.2d at 914. We discern no 

abuse of discretion by the trial court. See id. at 913.
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Lastly, we address the Gaertner claim that the trial court erred in 

failing to grant them title by adverse possession of the portion of Copes Lane 

that they had maintained and used since 1987 by relying upon Gaertner’s 

failure to assert ownership before a Zoning Hearing Board. AngstadtGaertner’s Brief at 35. Gaertner contends that “he cut grass, trimmed 

branches, raked leaves and maintained the grounds as his own.” Id.

(citation omitted). He erected a shed and maintained a garden and a 

woodpile on Copes Lane. Id. (citation omitted). Gaertner argues that “[t]he 

[t]rial [c]ourt committed reversible error by failing to consider and 

determine that [Gaertner] exercised open, continuous, notorious, visible 

exclusive and hostile possession over the portion of Copes Lane they 

maintained for over 21 years . . . .” Id.

At the hearing on March 26, 2015, Gaertner testified as follows on 

cross examination.

[Counsel for Faddis]: You told the Zoning Hearing Board 

[in January 2012] that you did not own Copes Lane. Is 

that correct?

A: That’s correct.

Q: And you did not include any of Copes Lane when made 

your ground calculations for your setbacks. Is that 

correct?

A: That’s correct. In fact, I said at the Zoning Board 

meeting that if I did owe [sic] Copes Lane, I would not 

have to be before them.

Q: And that was─
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A: Or half of Copes Lane, I wouldn’t have had to have 

been before them.

Q: And that’s the truth. If you had half of Copes Lane, you 

wouldn’t have needed that variance?

A: That’s correct.

 * * *

Q: You never blocked Copes Lane or fenced it or tried 

to prevent anyone else from going─using Copes 

Lane. Is that correct?

A: That’s correct.

Q: So other than seasonally picking up a few fallen 

branches and cutting some grass, you did nothing to 

announce to the rest of the world that you were 

claiming Copes Lane as your property. Is that correct?

A: That’s correct.

R.R. at 210a-11a (emphases added).

The trial court opined: 

Since Gaertner admitted at the January 2012 

Middletown Township Zoning Hearing no ownership or any 

portion of Copes Lane, Gaertner cannot prove the 

elements of adverse possession through sufficient 

evidence. Gaertner also failed to establish exclusive 

possession of any portion of Copes Lane.

Trial Ct. Op. at 13.

Gaertner has not proven actual, continuous, exclusive, visible, 

notorious, distinct and hostile possession of Copes Lane for twenty-one 

years. See Showalter, 9 A.3d at 235. Therefore, Gaertner cannot claim 
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title by adverse possession. See id. We find no abuse of discretion by the 

trial court. See Waltimyer, 556 A.2d at 913.6

Accordingly, for all of the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/2016

 

6 Given our resolution of the first issue raised by Faddis on appeal, we need 

not address the fourth and fifth issues raised by Angstadt and Gaertner.
Timothy F. Sullivan, Esquire 

Joseph B. Van Wyk, Esquire 

UNKNOWN HEIRS AND/OR 

ADMINISTRATORS OF THE ESTATE 

OF JAMES DAY 

and 

UNKNOWN HEIRS AND/OR 

ADMINISTRATORS OF THE EST ATE 

OF WILHELMINA SMEDLEY 

and 

UNKNOWN HEIRS AND/OR 

ADMINISTRATORS OF THE EST A TE 

OF ISAAC J. BOOTH 

and 

GARY J. & MELISSA FADDIS 

v. 

THOMAS D. & MICHELLE M. 

McLAUGHLIN 

and 

GARY L. & SHERRE A. GAERTNER 

and 

HOW ARD P. & CAROL N. ANGSTADT : NO. 2012-005034 

IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY, 

PENNSYLVANIA 

CIVIL ACTION - LAW 

Circulated 09/30/2016 12:50 PM
I Cross Appeals 2605 EDA 2015 and 2606 EDA 2015 have been consolidated. 

2 

2. The Honorable Court committed an error of law and an abuse of discretion 

in failing to find that the "2012 Faddis Corrective Deed" from themselves to 

themselves was a nullity as it relates to the language inserted conveying a right 

of ingress and egress along Copes Lane to and from South Old Middletown 

Road. Defendant, Gary Faddis, testified that in 1991 he and his wife bought 

out his brother and his sister. His brother and his sister were alive on the date 

of the trial and Mr. Faddis' brother and sister did not execute the Deed of 

Correction. At a minimum, for the 2012 Faddis Deed of Correction to have been 

valid, it needed to be signed by the original granters. 

1. The Honorable Court committed an error of law and an abuse of discretion 

in failing to find that the "1991 Faddis Deed" did not convey a right of ingress 

and egress along Copes Lane to and from South Old Middletown Road. An 

easement for ingress and egress along Copes Lane was not necessary for the 

use and enjoyment of the Faddis property. The testimony of all the Plaintiffs 

was that the Fadddises [sic] did not use Copes Lane to get to and from their 

property to South Old Middletown Road by vehicle, motorcycle or walking for 

decades prior to the initiation of this litigation. 

Appeal on September 18, 2015 and raise the following issues for appellate review: 

Michelle Marie McLaughlin filed a Statement of Matters of Complained of on 

Gary L. Gaertner and Sherre A. Gaertner, and Thomas Daniel McLaughlin and 

The plaintiffs in the underlying matter, Howard P. Angstadt and Carol N. Angstadt, 

three day bench trial.' Post-trial motions were denied by Orders dated July 15, 2015. 

The parties each appealed the Trial Court's June 8, 2015 Decision following a 

OPINION 

GREEN, J. FILED: October 21, 2015 
3 

8. The Honorable Court committed an error of law and an abuse of discretion 

in finding that the "Angstadts" possession of Copes Lane is permissive." 

Counsel believe the Court is relying upon the easement language in the 

Angstadt Deed. The strip of lane at issue is an orphaned strip of land that is not 

contained in any of the deeds of the four abutting property owners, i.e., 

Angstadt, Faddis, McLaughlin and Gaertner, The unknown heirs of 

Defendants, Day, Smedley and Booth are not defending the Plaintiffs' claims 

of ownership of portions of Copes Lane abutting their properties by adverse 

possession. 

7. The Honorable Court committed an error of law and an abuse of discretion 

in finding that the failure of Plaintiff Gaertner to assert ownership of a portion 

of Copes Lane in a zoning case for a dimensional variance defeats the 

Gaertners' claim for adverse possession. The Court seems to imply Plaintiff 

Gaertners would have been able to minimize or eliminate the need for a 

variance. There was also testimony in the record that the Zoning Hearing Board 

did not want to hear testimony about Copes Lane. NT Page 118. 

6. The Honorable Court committed an error of law and an abuse of discretion 

in failing to grant the Gaertners adverse possession of the portion of Copes Lane 

which they had maintained and used for a garden, a wood pile, a shed and 

storage of trash cans and ladders since on or about 1987. 

5. The Honorable Court committed an error of law and an abuse of discretion 

in failing to grant the Angstadts adverse possession of the portion of Copes 

Lane which they had maintained since on or about 1964. The Angstadts proved 

by a clear and convincing evidence that they had actual, continuous, exclusive, 

visible, notorious and distinct possession of a portion of Copes Lane. When all 

other elements of adverse of possession are met, hostility can be implied to 

establish adverse possession. 

4. The Honorable Court committed an error of law and an abuse of discretion 

in failing to find that the Angstadts' grantors and all the grantors in their chain 

of title have not used Copes Lane for over a half century. 

3. The Honorable Court committed an error of law and an abuse of discretion 

in failing to find that the easement language in the Angstadt Deed had a sunset 

provision: "Together with the right and use of the land ... so far as the right, 

title and use of the same remains in the Grantors". 
4 

4. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane where the uncontroverted facts in this case establish that the 

Faddis have an express easement granted in the chain of title to their property 

3. The Honorable Court committed an error of law and an abuse of discretion 

in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes 

Lane located within their fence in that the facts of this case are insufficient to 

support this Court's finding. 

2. The Honorable Court committed an error of law and an abuse of discretion 

in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes 

Lane located within their fence. The uncontroverted facts in this case establish 

that the McLaughlins never told anyone they could not use Copes Lane and 

quietly allowed the use of Copes Lane by the neighborhood as part of a 

neighborly accommodation thus precluding this Court's finding of exclusive, 

notorious, distinct and hostile possession of the land for 21 years. 

1. The Honorable Court committed an error of law and an abuse of discretion 

in granting Plaintiffs, McLaughlin adverse possession of the portion of Copes 

Lane located within their fence. The uncontroverted facts in this case establish 

that the McLaughlins did not know their fence encroached on Copes Lane until 

they replaced it in 1995. That was 17 years prior to the filing of this law suit 

and 4 years short of the statutorily required 21 years. The Honorable Court 

committed an error of law and an abuse of discretion by not applying the 

controlling precedent announced in the Superior Court' s decision in Flannery 

v. Stump, 803 A.2d 735 (Pa. 2002) which precluded the finding of hostile 

possession of facts identical to the facts of this case. 

and raise the following issues for appellate review: 

also filed a Statement of Matters of Complained of on Appeal on September 8, 2015 

The defendants in the underlying matter, Gary J. Faddis and Melissa Faddis, 

9. The Honorable Court committed an error of law and an abuse of discretion 

in finding that the Angstadts' possession of Copes Lane is permissive. 
9. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane where this Honorable Court in the same Order and Decision 

found "The Defendants Faddis have through clear and concise evidence proven 

the actual, continuous, exclusive, visible, notorious, distinct and hostile 

possession of that portion of Copes Lane where their water line is located since 

5 

8. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane where the uncontroverted facts in this case establish that 

Defendants, Faddis never intended to abandon the easement and continued to 

use it for ingress and egress to get to Old Middletown Road as did the Faddis 

children to get to school for 13 years prior to the filing of the law suit. The 

Honorable Court committed an error of law and an abuse of discretion by not 

applying the controlling legal precedent that the key to analysis of easement 

abandonment is the intent of easement holder. Said uncontroverted facts of 

record preclude this Honorable court from finding Defendants, Faddis 

demonstrated an unequivocal, purposeful intent to forever close off the future 

use of their easement of Ingress and Egress over Copes Lane. 

7. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane based on the Court's finding the Defendants, Faddis installed 

a fence across their back yard in June of 1994 and installed a double gate in that 

fence by April of 2012, 18 years later, where the fence was in place of less than 

21 years. 

6. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane by failing to apply controlling legal precedent that mere nonuse of an express easement by its own owner, no matter how long continued, 

does not manifest an intent to abandon the easement. 

5. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane by not giving effect to the express language contained in the 

Faddis Deed of Correction, 

dating back to 1851 granting a right of ingress and egress to their property from 

Old Middletown Road over Copes Lane. 
6 

10. The Honorable Court committed an error of law and an abuse of discretion 

in finding Defendants, Faddis abandoned their Easement of Ingress and Egress 

over Copes Lane in that the facts of this case are insufficient to support this 

Court's finding. 

1954, being a period in excess of twenty-one years." The Court's finding that 

the Defendants, Faddis established a prescriptive easement by "the actual, 

continuous, exclusive, visible, notorious, distinct and hostile possession of that 

portion of Copes Lane" for their water line as a matter oflaw precludes a finding 

that the Defendants Faddis abandoned their easement of Ingress and Egress. 
7 

Howard P. Angstadt and Carol N. Angstadt (hereinafter "Angstadt"), reside at 

490 South Old Middletown Road, Media, Pennsylvania, having purchased their 

property on October 22, 1964. (03/15/15 N.T., p: 34.) The deed (the "1964 Angstadt 

Deed") describes the Angstadt property as being" ... on the northerly side of and in line 

with the northerly side of Copes Lane." P-5. Gary L. Gaertner and Sherre A. Gaertner 

(hereinafter "Gaertner") reside at 496 South Old Middletown Road, Media, 

Pennsylvania, having purchased their property on August 21, 1987. (03/26/14 N.T., 

p.4). The deed (the" 1987 Gaertner Deed") describes the Gaertner property as" ... by a 

private lane of lands now or late of Herman Cope." P-6. Thomas Daniel McLaughlin 

and Michelle Marie McLaughlin (hereinafter "McLaughlin") reside at 500 South Old 

Middletown Road, Media, Pennsylvania, having purchased their property on October 

27, 1989. (N.T. 3/26/15, p.70). The deed (the "1989 McLaughlin Deed") describes the 

McLaughlin property as " ... to an existing pipe on the Southwesterly side of Copes 

Lane, thence extending on the said side of Copes Lane." P-6. 

Gary J. Faddis and Melissa Faddis (hereinafter "Faddis"), reside at 445 South 

New Middletown Road, Media, Pennsylvania, having acquired their property by deed 

from Howard H Faddis, III, and Dorothy Faddis, Co-Executors of the Estate of Howard 

H. Faddis, Deceased, and Dorothy S. Faddis, individually on September 26, 1991 (the 

"1991 Faddis Deed"). CT-I, Stipulation of Facts, ,rI3. Howard N. Faddis and Dorothy 

Faddis were the parents of Gary J. Faddis, and Howard N. Faddis and Dorothy Faddis 
8 

purchased the Faddis property on August 7, 1952, under a deed (the "1952 Faddis 

Deed") which included the following language: " ... Together with the right of ingress 

and egress to and from said premises to Edgmont Road along property of Wilhelmina 

Smedley, as the same is now used." CT-1, Stipulation ofFacts, ,r 21. This recital in the 

1952 Faddis Deed concerning the "right of ingress and egress" is a reference to a private 

lane approximately fourteen feet wide and four hundred forty-seven feet long 

connecting the rear of the Faddis property to South Old Middletown Road. The 1991 

Faddis Deed does not contain the recital referenced above from the 1952 Faddis Deed. 

On May 7, 2012, Faddis recorded an instrument intended as a deed of correction 

(the "2012 Faddis Corrective Deed") which specifically added the right of ingress and 

egress recital appearing in the 1952 Faddis Deed to the conveyance described in the 

1991 Faddis Deed. P/D-5; CT-1, Stipulation of Facts, ,r 16-18. This private lane is 

known locally as "Copes Lane" and has been referenced by this name since 

approximately March 25, 1913, when Herman Cope and Edith W. Cope acquired title 

to a forty acre parcel from Abraham Brighton. The private lane predates the Brighton 

to Cope conveyance and is referenced in every deed in the chain-of-title dating back to 

1851. (03/25/15 N.T., p. 19). The present title holders to the parcel known as Copes 

Lane are the unknown heirs and/or administrators of the Estate of Isaac J. Booth, 

Deceased, or the unknown heirs and/or administrators of the Estate of Wilhemina 
9 

Smedley, Deceased, or the unknown heirs and/or administrators of the Estate of James 

Day, Deceased. CT-1, Stipulation of Facts,~~ 15, 16 and 17. 

Since approximately December 4, 1956, the water line providing public water 

service to the home occupied by Faddis has been located under Copes Lane connecting 

the main public water line located under South Old Middletown Road to the Faddis 

home. CT-1, Stipulation of Facts,~ 32. There is no express easement for water utilities 

servicing the Faddis property in any recorded deed in the Copes Lane chain-of-title. 

There is an AQUA Pennsylvania, Inc., plan of September 27, 2011, which identifies the 

water main and the lateral water line locations servicing the Faddis property. P/D-12. 

The 1964 Angstadt Deed contains the following language which appears in 

several preceding deeds of conveyance in the chain-of-title for the Angstadt property: 

" ... Together with the right and use of the lane leading from Old Middletown Road 

(formerly Edgmont Great Road) to Herman Cope's property so far as the right, title and 

use of the same remains in the grantors". CT-1, Stipulation of Facts, ,r 4. The 1987 

Gaertner Deed is silent with respect to a right granted to Gaertner to use Copes Lane. 

CT-1, Stipulation of Facts~ 8. 

The 1989 McLaughlin Deed is silent with respect to a right granted to Defendants 

McLaughlin to use Copes Lane. CT-1, Stipulation of Facts ,I 12. Throughout the time 

Angstadt, Gaertner and McLaughlin have been neighbors they have each engaged in 

maintenance activity servicing Copes Lane. These activities include grass cutting, 
10 

In January 2012, Gaertner filed an application for a zoning permit with 

Middletown Township, Delaware County and a public hearing was convened by the 

clearing brush, removing tree and shrub limbs, and each autumn, removing fallen 

leaves. (03/25/15 N.T., pp. 6, 37, 72). In 1989, when McLaughlin purchased the 

McLaughlin property, a fence surrounding the rear yard encroached significantly into 

Copes Lane. (03/25/15 N.T., p.61); CT-1, Stipulation of Pact ,r 36. By the conclusion 

of 1995, McLaughlin replaced the dilapidated post and rail fence surrounding the rear 

yard with a similar post and rail fence. (03/25/15 N.T., p. 71). In the process of 

replacing the fence, McLaughlin learned for the first time the rear yard fence 

encroached on Copes Lane. Nevertheless, McLaughlin authorized the fence contractor 

to position the new post and rail fence where the dilapidated and encroaching fence had 

stood. (03/26/15 N.T., pp. 61 & 71). 

By the conclusion of 1994, Faddis installed a four foot high post and rail fence 

along the rear and each side property line of the Faddis property. (N.T. 3/25/15, p. 53). 

This fence is erected perpendicular to and completely across Copes Lane ending at a 

point abutting the corner fence post on the McLaughlin fence. There was no gate 

installed in the fence where the fence crosses and blocks access to and from the Faddis 

property and Copes Lane. P-19. This fence erected by Faddis was installed pursuant 

to a building permit issued by Middletown Township, Delaware County, on June 1, 

1994. DF-35. 
Lane, a private road located in Middletown Township, Delaware County, Pennsylvania 

11 

Angstadt, Gaertner and McLaughlin each claim title to the parcel known as Copes 

ADVERSE POSSESSION 

and McLaughlin filed the underlying civil action. 

Lane. (03/25/15 N.T., pp. 61-62); P-14 andP-18. Shortly thereafter, Angstadt, Gaertner 

Middletown Road and returned from the public road to her dwelling by way of Copes 

motorcycle along Copes Lane from the rear yard of the Faddis property to South Old 

Stipulation of Facts ,, 16-18. In May and June 2012, Mrs. Faddis operated a 

In May 2012, Faddis recorded the 2012 Faddis Corrective Deed. CT-1, 

P-14, P-15 and P-18. 

dwelling and South Old Middletown Road. (03/25/15 N.T., pp. 54, 61-64, 73), P-13, 

Copes Lane, and began regular use of Copes Lane for ingress and egress to their 

following the zoning hearing, Faddis installed a gate in the post and rail fence across 

during the Gaertner's zoning hearing. (N.T. 3/26/15, p. 28). During the months 

potential use and enjoyment of Copes Lane. Id. Mr. and Mrs. Faddis were present 

rights and responsibilities of various named property owners, including Faddis, to the 

the zoning hearing, there was evidence presented and public discussion regarding the 

setback requirements under the Township Zoning Code. (03/26/15 N.T., p.12). During 

Apparently the zoning relief requested by Gaertner included relief from the rear yard 

Township Zoning Hearing Board to consider the Gaertner's zonmg application. 
12 

by virtue of their adverse possession of the parcel. Adverse possession of land is an 

extraordinary legal doctrine which, when found, conveys a party ownership in real 

property titled to another by operation of law, rather than by grant of a deed. For this 

reason, a decision based upon this extraordinary remedy must be supported by clear 

and convincing evidence. Recreation Land Corporation, et al. v. Hartzfeld, 947 A.2d 

771, 774 (Pa. Super. 2008). The burden of proof in this civil action was upon 

Angstadt, Gaertner and McLaughlin to prove by clear and convincing evidence they 

each held "... actual, continuous, exclusive, visible, notorious, distinct and hostile 

possession of the land for twenty-one years", Id. Angstadt, Gaertner and McLaughlin 

were required to prove each of these elements of adverse possession exist to confer 

title by adverse possession. Recreation Land Corporation, supra, citing Flanne1y v, 

Stump, 786 A.2d 255, 258 (Pa. Super. 2001). Angstadt, Gaertner and McLaughlin 

were charged with proving that they, each as an adverse possessor of the parcel known 

as Copes Lane, must intend to hold the parcel of land for themselves as demonstrated 

by their acts. See, Fred E. Young, Inc. v. Brush Mountain Ass'n., 697 A.2d 984, 990 

(Pa. Super. 1997). 

Angstadt failed to prove by clear and convincing evidence actual, continuous, 

exclusive, visible, notorious, distinct and hostile possession over any portion of Copes 

Lane. Rather, the 1964 Angstadt Deed includes the grant of an express easement to 
13 

Angstadt for ingress and egress along Copes Lane. Therefore, Angstadts' possession 

of Copes Lane is permissive. 

Since Gaertner admitted at the January 2012 Middletown Township Zoning 

Hearing no ownership of any portion of Copes Lane, Gaertner cannot prove the 

elements of adverse possession through sufficient evidence. Gaertner also failed to 

establish exclusive possession of any portion of Copes Lane. 

Finally, McLaughlin was successful in proving adverse possession of the specific 

area of Copes Lane inside the rear yard fence on the McLaughlin property. 

McLaughlin since 1989 held the portion of Copes Lane inside a fence line exclusively 

for themselves and believed that land to be their property. In 1995, during the process 

of replacing that fence, McLaughlin learned they did not hold title to the Copes Lane 

portion of their rear yard, but nevertheless, they directed the contractor to place the 

new fence in the same location as the original fence. This conduct demonstrates their 

contention that they have exercised actual, continuous, exclusive, visible, notorious, 

distinct and hostile possession of that portion of Copes Lane for twenty-one years. See 

Recreation Land Corp. at 774-775. 

EASEMENT BY PRESCRIPTION 

Faddis proved the water line utility easement by prescription along the length and 

width of Copes Lane as identified on plans and detailed drawings maintained by Aqua 

Pennsylvania, Inc. A prescriptive easement is created by (1) adverse, (2) open, (3) 
14 

Angstadt, Gaertner and McLaughlin each claim Faddis abandoned the easement 

of ingress and egress along Copes Lane to and from South Old Middletown Road. 

Under Pennsylvania law, abandonment of an easement is proven through conduct of 

ABANDONMENT OF EASEMENT 

notorious, (4) continuous and unintenupted use for a period of twenty-one (21) years. 

Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987); see also McNaughton Props., 

LP v. Barr, 981 A.2d 222, 225 n. 2 (Pa. Super. 2009). Moreover, the party asserting 

the easement must demonstrate "clear and positive" proof. Walley, 520 A.2d at 889; 

see also Pittsburgh & Lake Erie R.R. Co. v. Township of Stowe, 374 Pa. 54, 96 A.2d 

892, 894 (1953) ("[A prescriptive easement] will be upheld only if there is clear and 

positive proof of its existence].]"), The landowner has the burden of proving consent, 

but only after the alleged easement holder proves the use was adverse, open, notorious, 

and continuous for 21 uninterrupted years. Walley, 520 A.2d at 889; Vill. of Four 

Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa. Super. 

2014), reargument denied Dec. 29, 2014. 

Faddis, through clear and concise evidence proved the actual, continuous, 

exclusive, visible, notorious, distinct and hostile possession of that portion of Copes 

Lane where the water line is located since 1954, being a period in excess of twentyone years. 
15 

2 Faddis contends that a period of twenty one years is required to establish abandonment. However, 

once there is a showing of an intent to abandon, an easement may be considered abandoned if any 

of the following are established by clear and convincing evidence: (1) adverse possession by the 

owner of the servient tenement; or (2) affirmative acts by the owner of the easement that renders 

the use of the easement impossible; or (3) obstruction of the easement by the owner of the easement 

that is inconsistent with its further enjoyment. See Piper v. Mowris, 351 A.2d 635, 640 (Pa. 1976); 

Ruffalo v. Walters, 465 Pa. 236, 238-39, 348 A.2d 740, 741 (1975); Forest Glen Condo. Ass'n v. 

Forest Green Common Ltd. P1ship, 900 A.2d 859, 864 (Pa. Super. 2006). This Court found that 

conditions (2) and (3) were present negating any claim of continued abandonment for a period of 

twenty one years. 

yard of the Faddis property and across their point of access to Copes Lane in 1994. 

and convincing evidence that Faddis erected a post and rail fence surrounding the rear 

This Court found that Angstadt, Gaertner and McLaughlin proved through clear 

this abandonment by clear and convincing evidence.2 

900 A.2d 859, 864 (Pa. Super. 2006). Angstadt, Gaertner and McLaughlin must prove 

740, 741 (Pa. 1975); Forest Glen Condo. Ass'n v. Forest Green Common Ltd. P'ship, 

easement that is inconsistent with its further enjoyment. Ruffalo v. Walters, 348 A.2d 

use of the easement impossible; or (3) obstruction of the easement by the owner of the 

servient tenement; or (2) affirmative acts by the owner of the easement that renders the 

of an intent to abandon, coupled with either (1) adverse possession by the owner of the 

explained that an easement may not be considered abandoned unless there is a showing 

citing Hatcher v. Chesner, 221 A.2d 305 (Pa. 1966). Pennsylvania courts have 

servient parcel of land. Sabados v. Kiraly, 393 A.2d 486, 487-88 (Pa. Super. 1978) 

to relinquish permanently his right to use of the easement across the adjoining or 

the holder of the easement which manifests intent on the part of the easement holder 
16 

The Faddis's post and rail fence did not include a gate at their point of access to Copes 

Lane, and Copes Lane became over-grown at the point of access to the Faddis property. 

The construction of this fence rendered the use of the easement impossible and was 

inconsistent with its further enjoyment. The record clearly indicates that this fence and 

overgrowth limited ingress and egress to Copes Lane from the Faddis property. It was 

only following the Gaertner zoning hearing in January 2012 that Faddis prepared and 

filed the 2012 Faddis Corrective Deed, cleared over-growth using a chemical agent, 

installed a gate in their fence at the access point to Copes Lane, and began pedestrian 

and motor vehicle use of Copes Lane to access the public roadway. 

Based on the foregoing, on the claims of adverse possession this Court found in 

favor of all named defendants and against Angstadt and Gaertner. However, on 

McLaughlin's claim for adverse possession of that specified portion of the parcel known 

as Copes Lane located inside the fence erected in the rear yard of the McLaughlin 

property and encroaching on Copes Lane since at least 1989, the Trial Court found in 

favor of McLaughlin confirming the title by adverse possession and against each of the 

named defendants. 

On the claim of Angstadt, Gaertner and McLaughlin against Faddis and based upon 

the asserted right to a prescriptive easement along Copes Lane for the placement 

underground, maintenance, repair and replacement of a lateral water line servicing the 

Faddis property by connecting to the main public water service line located in and along 
3 This Court having decided each of the claims, defenses and new matter preserved for Decision, 

the temporary injunction entered on July 2, 2012 was extinguished and dissolved and Count II - 

Injunction of the Complaint was dismissed as moot. 

17 

Estate of James Day and against Faddis.3 

the Estate of Wilhelmina Smedley, and Unknown Heirs and/or Administrators of the 

Administrators of the Estate of Isaac J. Booth, Unknown Heirs and/or Administrators of 

Angstadt, Gaertner and McLaughlin and the remaining defendants Unknown Heirs and/or 

claims provide a right of ingress and egress along Copes Lane, this Court found in favor 

Deed and/or the 2012 Faddis Corrective Deed, and/or any other form of easement Faddis 

abandoned any express easement granted by the 1952 Faddis Deed, the 1991 Faddis 

On the claim of Angstadt, Gaertner and McLaughlin against Faddis that Faddis 

Unknown Heirs and/or Administrators of the Estate of James Day. 

Unknown Heirs and/or Administrators of the Estate of Wilhelmina Smedley, and 

defendants, Unknown Heirs and/or Administrators of the Estate of Isaac J. Booth, 

water line and against Angstadt, Gaertner and McLaughlin and each of the remaining 

this Court found in favor of Faddis confirming the prescriptive easement for a public 

South Old Middletown Road, Middletown Township, Delaware County, Pennsylvania, 
J. 

18 

: .. u 

~-···{ 

·,·~ 

(, 

· G. MICHAEL G 

decision be AFFIRMED. 

For the aforementioned reasons, the Trial Court respectfully requests that its