IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lower Bucks County : Joint Municipal Authority, :

Appellant :

: v. : : Raymond W. Dukes and : No. 619 C.D. 2019 Kathleen A. Dukes : Submitted: November 22 , 201 9

BEFORE: HONORABLE MARY HANNAH LEAVITT , President Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: May 6, 2020

The Lower Bucks County Joint Municipal Authority ( Authority ) appeals the May 1, 2019 order of the Court of Common Pleas of Bucks County (trial court) denying the Authority’s motion for post

- trial relief. 1 Upon review, we affirm.

The Authority operates a sanitary sewer system for the benefit of
residences and businesses in Levittown, which is located in Bucks County, Pennsylvania. 2 Trial Court Opinion at 1, Reproduced Record (R.R.) at 251a

. This

1 Although dated May 1, 2019, the trial court did not enter this order on the docket until May 6, 2019.

2 Levitt & Sons, Inc. , created the sewer system when building the Levittown community, and the disputed easement provision s are located in the original Levittown deed system dating to 195 2 . Trial Co urt Opinion at 1

- 2, Reproduced Record ( R.R. ) at 251a

- 52a ; see also Transcr ipt of Testimony (T.T.), 4/26/19 at 9

- 10 , R.R. at 185a

- 86a . The easement benefits the Authority as the ultimate successor in interest to Levitt & Sons , Inc

. Trial Court Opinion at 2, R.R. at 252 a.2

case involves a dispute regarding interpretation of the Authority’s sewer line easement, a portion of which ex ists along the rear of private property owned by Raymond W. Dukes and Kathleen A. Dukes (Landowners)

. Id.

The easement provide s, in pertinent part :

15. Perpetual easements for the installation and maintenance of sewer , water and drainage facilities, for the benefit of the adjoining landowners and/or municipality and/or municipal or private utility company ultimately operating such facilities, are reserved as shown on the aforesaid map; also, easements in general over each lot for the installation of e lectric and telephone facilities.
16. Violation of any covenant or restriction may be remedied by the Company and the expense thereof shall be chargeable to the then owner of the lot and be payable forthwith upon demand. The foregoing shall be alternativ e or in addition to the enforcement provisions of paragraph 18.

. . . . 18. Enforcement shall be by proceeding at law or in equity, brought by the Company, its successors and assigns, or by the owner of any lot, against any person or persons violating or attempting to violate any covenant, either to restrain violation or to recover damages or both.

Easement Provisions, R.R. at 263a. On January 11, 2016, the Authority filed a complaint against Landowners, asserting that a tree and its root system had cau sed or would cause blockage in the sewer system, and that such blockage could cause sewage to back up into residential dwellings at or near Landowners’ property. Trial Court Opinion at 2, R.R. at 252a; see also Complaint at 2

- 3, ¶ 12, R.R. at 8a

- 9a.
Cont ending that “the presence of easement violations ,” such as the tree, impeded its ability to maintain the sanitary sewer system , the Authority requested that the trial3

court “require [Landowners] to remove the objects and overgrowth on [the Authority’s] eas ement

. ” Complaint at 3, ¶ 15

- 16, R.R. at 9a.

Landowners failed to respond to the complaint, 3 thereby resulting in a default judgment

. Trial Court Opinion at 2, R.R. at 252a. After retaining cou nsel and successfully petitioning the trial court to open the default judgment , Landowners filed an answer and new matter, asserting that the tree does not , and will not in the
immediate or foreseeable future , affect the operation of the Authority’s sewer system. Id. ; Answer and New Matter at 3

- 4, ¶¶ 22

- 25, R.R. at 102a. The trial court

con ducted a bench trial on April 26 , 2019, 4 in which Landowners participated pro

se , as their counsel had withdrawn by permission of the trial court. Trial Court Opinion at 2, R.R. at 252a. The Auth ority requested a court order directing Landowners to remove obstructions from the Authority’s sanitary sewer easement

— namely, a large tree, a shed and an above ground pool. 5 Trial Court Opinion at 2

- 3,
R.R. at 25 2a

- 5 3a.

3 Landowners also failed to respond to a “Request for Admission s ” from the Authority. See R.R. at 264a

- 66a.

4 The trial court opinion states that the judge conducted the bench trial on April 25, 2019. See Trial Court Opinion at 1, R.R. a t 251a. However, the transcript of testimony from the bench trial is dated April 26, 2019. See T.T., 4/26/19 at 1 , R.R. at 177a

.

5 The Authority did not mention the shed or the swimming pool in either its complaint or its notice of easement violation. See Complaint at 1

- 4, R.R. at 7a

- 10a; see also Notice of Sanitary Sewer Easement Violation at 1

- 2, R.R. at 15a

- 16a. At the April 26, 2019 bench trial, the Authority asked the trial court to enter an order directing Landowners to remove not only the tree, but also the shed and the swimming pool. T.T. , 4/26/19 at 13

- 14 , R.R. at 189a

- 90a . Counsel for the Authority stated at the bench trial that an addendum to its complaint contains reference to the shed and the swimming pool. Id. at 49

. Landowners agreed to remove the shed and the swimm ing pool at their own expense if a survey to be conducted by the Authority indicated that these structures were located within the easement area. Id.4 The trial court determined that the Authority was required to demark
the easement and remove the tree at its own expense. See R.R. at 169a. Noting that the evidence did not establish the exact location of the Authority’s easement or what, if any, portion of Landowners’ shed or swimming pool lay within the bounds of the easement, the trial court required the Authority to send a surveyor to ma rk the easement boundary on May 8, 2019. Id. Landowners would then have 60 days to

remove any man

- made obstructions within the area of the easement , such as the shed
and the swimming pool. Id. The trial court further held that the Authority could

remov e any other trees, plants or shrubs at its own expense. Id.

On April 30, 2019, the Authority filed a motion for post

- trial relief , which the trial court denied on May 1, 2019. See Motion for Post

- Trial Relief at 1,
R.R. at 170a. T he Authority appealed t o t his C ourt o n May 20, 2019

. See Notice of Appeal, R.R. at 236a ; see also Trial Court Opinion at 1, R.R. at 251a

. Following the Authority ’s fil ing of a statement of errors complained of on appeal , o n July 18, 2019,

t he trial court filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) . The trial court identified “[t]he principal issue before the Commonwealth Court [as] whether [the trial court] made the correct decision in holding the Authority responsible for removal of the tree or other natural (as opposed to man

- made) things
that allegedly interfered with [the Authority’s] sewer line easement, including all expenses and costs.” 6 Trial Court Opinion at 4, R.R. at 254a. Thus, the trial court

6 The trial court noted that the Authority’s appeal could be considered premature, as no judgment had yet been entered following the April 26, 2019 bench trial. Trial Court’s Rule 1925 Opinion at 1, R.R. at 25a. On July 25, 2019, this Court entered an order stating, “it appears that judgment has not been entered on the docke t below,” and requiring the Authority to file within 14 days a certified copy of docket entries showing that it has caused t he trial court to enter judgment in order to avoid dismissal of the appeal as premature. See Cmw l t h. Ct. Order, 7/25/19. The Authority complied with this order on August 5, 2019.5

noted that “[t]he real issue in dispute is which party ha [s] the liability or duty of
maintenance for the e asement. ” Trial Court Opinion at 7, R.R. at 257a. The trial court determined that the Authority was responsible for maintaining its easement, so long as Landowners did not interfere with its use of the easement. Id

. The trial court found that “[Landowners] did not interfere with the Authority’s use of t he easement as . . . they did not plant the tree and did not, with the possible exception of the possible encroachment by the pool and shed, do anything that interfered with the Authority’s abi lity to use the easement area.” Trial Court Opinion at 7

- 8, R. R. at
257a

- 5 8a. The trial court noted that the sewer main at issue in the present case is “six to eight feet deep,” and that the tree in question is estimated to be “sixty to eighty feet in height.” Trial Co urt Opinion at 5, R.R. at 255a (citing Transcri pt of Testimony ( T.T. ), 4/26/19 at 17 & 19 , R.R. at 193a & 195a ). Based on the testimony
of Philip Smythe, a field technician employed by the Authority’s engineering department , the trial court “ found that the tree in question had the potential to, but
di d not yet, interfere with the Authority’s actual use of their [sic] sewer line.” Id. Nevertheless, the trial court “did find that its existence was such that future
maintenance of the sewer line would be easier if the tree was removed and that removal could prevent roots from eventually growing down to the depth of the sewer line even though they had not done so in decades .” Id. The trial court noted that Landowners did not object to removal of the tree, but only disputed the Authorit y’s
claim that Landowners bear the cost. Trial Court Opinion at 4, R.R. at 254a.

The trial court cited Berwick Township v. O’Brien , 148 A .3d 872 (Pa. Cmwlth. 2016), noting that the easement agreement in that case “clearly contemplated that the township’s right of access might entail the clearing of vegeta tion and trees within the right of way

. ” Trial Court Opinion at 8, R.R. at 25 8a.6

Desp ite acknowledging that, unlike the present case, Berwick did not involve the question of which party was responsible for removing trees and bearing the c ost thereof , t he trial court reasoned that the easement agreement’s provision for the
“maintenance of i nspection of sewer lines” in that case permitted the township to remove trees and clear vegetation within its right

- of

- way

. Trial Court Op inion at 8

- 9, R.R. at 258a

- 59a. The trial court further noted that it was undisputed in Berwick
that the cost fell on the party enjoying the easement. Id. The trial co urt therefore reasoned that the easement provisions contested i n the prese n t case “manifestly contemplate[ ] that maintenance of the sewer lines may need to be effected by
removal of trees and other natu rally occurring vegetation by the Authority.” Trial Court Opinion at 10, R.R. at 260a. Thus, the trial court concluded that under both the express language of the ea sement provisions as well as Pennsylvania caselaw,
the Author ity bore the responsibility of removing the tree as the party benefitting
from the easement. Trial Court Opinion at 11, R.R. at 260a. However, the trial court
determin e d that “[a]ny man

- made obstructions to the easement, placed there by [Landowners], need[ed] to be removed by them at their expense.” Id. The trial court
further found that the language of the easement provision at issue was “ clearly unambiguous,” as “it affor d s the Authority [the] right to install and maintain [its]
facilities. ” Trial Court Opinion at 10, R.R. at 2 60a (internal quotation marks omitted)

. The Authority appealed to this Court.

Before this Court, t he Authority contends that as the owner of the easement, “it is entitled to protect [the] same against intrusion from beyond its
confines.” Authority’s Brief at 19

- 20. The Authority asserts that vegetation, such as the tree, can intrude and potentially infiltrate and block the sewer main. See id.
at 20. The Authority asserts that tree roots seek out potential nutrients from sewer7

systems, and that grow th of the roots may affect not just Landowners’ home, but also all residents upstream. Id. at 22. The Authority asserts that t he language of the
easement does not burden it with the cost of abating intrudin g vegetation. Id. at 20. Rather, the Authority maintains that “the obligation to address the encroachment falls upon the party whose vegetation is encroaching upon the easement.” Id. The Authority contends that implicit in its right to peaceful enjoyment of the easement is the right not to have the property encroached upon by growth from adjoining properties, as well as the right not to incur costs to protect the sewer main from those
incursion s

. Id. at 22.

The Authority cites Jones v. Wagner , 624 A.2d 166 (Pa. Super. 1993) for support, a case in which the Superior Court held that a landowner was entitled to
exercise self

- help in order to remedy a technical trespass by trimming branches protruding from a neighbor’s tree to the extent they hung over the property line. Authority’s Brief at 23 (citing Jones , 624 A.2d at 167

- 69 ). The Authority further noted that, in Jones , the landowner exercising self

- help was not required to demonstrate physical harm and that it could recoup expenses from the trespasser.
Id. at 24

- 25 (citing Jones , 624 A.2d at 171). 7

Further, t he Authority maintains that Pennsylvania law does not support the trial court’s distinction between the duty to abate man

- made encroachments upon easements as opposed to those of natural origin. Id. at 26

. T he Authority also

c ontends that the trial court erred in relying upon Berwick , as that case is factually distinguishable. Id. at 27. The Authority further asserts that the trial court erred in

7 We note that Jones is inapposite, as it dealt with a landowner’s ability to exercise self

help to remedy a technical trespass, as opposed to allocation of the duty to ma intain an easement. See Jones , 624 A.2d at 105.8

determining that the tree did not constitute an encroachment upon its easement , because Landowners did not plant the tree

. Id. at 28.

Landowners, proceeding pro se , counter that the roots of the tree in question would not interfere with the sewer system unless one of the system’s pipes
leaked. Landowners’ Brief at 1. Landowners f urther point out that in the 28 years since purchasing their home, the Authority had not previously claimed that Landowners could not permit a tree to grow on the easement. Id. at 2.

The question sub judice is whether the disputed easement language obliga tes the Authority or Landowners to remove the tree in question and to bear the
cost thereof. “ It is well established that the same rules of construction that apply to contracts are applicable in the construction of easement grants. ” 8 Zettlemoyer v.
Trans con. Gas Pipeline Corp. , 657 A.2d 920, 924 (Pa. 1995) ; see also Starling v. Lake Meade Prop. Owners Ass’n
, Inc. , 162 A.3d 327, 341 (Pa. 2017) (stating that “[t]he same principles that apply to the interpretation of a contract apply to the interpretation of a deed”). “ When int erpreting a contract, the court’ s paramount goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. ” Halpin v. LaSalle Univ. , 639 A.2d 37, 39 ( Pa. Super

. 1994)

. “The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous.” Hutchison v. Sunbeam Coal Corp. , 519 A.2d 385, 390 (Pa. 1986). “A contract is ambiguous if it is reasonably suscept ible of diff

erent constructions and capable of being understood in more than
one sense.” Id.

8 “ Whether a trial court properly interpreted a contract is a question of law and . . . [the appellate] [c]ourt’ s scope of review is plenary

. . . . We need not defer to the conclusions of the trial court and are free to draw our own inferences. ” Liddle v. Scholze , 768 A.2d 1183, 1185 ( Pa. Super. 2001)

.9 Here, t he contested easement language grants the Authority “[p] erpetual easements for the installation and maintenance of sewer , water and drainage facilities, for the benefit of the adjoining landowners and/or municipality and/or municipal or private utility company ultima tely operating such facilities[.]” Easement Provisions, R.R. at 263a (emphasis added)

. W e conclude that this language is not ambiguous, as it clearl y grants the Authority an easement for the purpose of maintaining its sewer system , and such a provision is not “capable of being understood in more than one sense.” See Hutchison , 519 A.2d at 390. “As a general rule, in the absence of an agreement to th e contrary, the owner of the land subject to an easement of a nature that requires the maintenance of means for its enjoyment is not bound to keep such means in repair or to sustain any expense in maintaining them in a proper condition

. ” Frable v. Schoenb erger , 40 Pa. D. & C. 2d 655, 660 (1966) ; see also Stanton v. Lackawanna Energy, Ltd. , 886 A.2d 667, 674 (Pa. 2005) (acknowledging that “ an owner of an easement is generally considered a possessor of property and is required to maintain its easement ” and also “any equipment within it”). 9 Removing a tree from an easement is a maintenance
issue. See , e.g. , Berwick , 148 A.3d at 887 (noting that the township had the right to

9 Pennsylvania is consistent in this regard with settled law across various jurisdiction s

. See 425 A M

. J UR

. 2 D Easements and Licenses § 72 Westlaw (database updated February 2020) (recognizing that, “[w]hether by agreement or a common

- law right or duty, the owner of an easement must keep it in repair,” and “[t]he owner of the servient tenement ordinarily is under no duty to maintain or repair it, in the absence of an ag reement imposing such a duty”); see also 25 A M

. J UR

. 2 D Eas ements and Licenses § 73 (database updated February 2020) (stating, “[i]n order that the owner of an easement may perform the duty of keeping it in repair, he or she has the rig ht to enter the servient estate at all reasonable times to effect necessary repairs and maintenance”); 27 A M

. J UR

. 2 D Energy and Power Sources § 166 (database updated February 2020) (noting that “[t]he terms of a private grant of an easement to maintain [a public utility] may expressly or impliedly include a right to trim or remove trees, shrubs, or other vegetation to prevent interference with [its operation]” and that “easements may give a gas pipeline corporation the right to remove trees growing above i ts gas pipeline when they endanger or interfere with the construction, operation, or maintenance of the pipeline”).10

clear vegetation and trees from the easement area as part of its ability to inspect and maintain its sewer lines under the terms of the easement agreement ) ; Duquesne Light Co. v. Longue Vue Club , 63 A.3d 270 (Pa. Super. 2013) (involving an easement agreement which provided that an electric utility’s ability to maintain its easement
entail ed the “right to trim or remove any trees, shrubbery or obstructions which . . . [the electric utilit y] may deem necessary to prevent interference or threatened interference with the . . . maintenance . . . of [its] transmission system )

. Thus, the Authority’s contention that Landowners must remove the tree at their own expense
lacks support.

However, we agree with the Authority that the trial court overstated the
extent to which Berwick lends support

. T he easement agreement in Berwick
d elineated in detail the township’s right to remove trees from within the easement area for the purpose of maintaining sewer lines and its corresponding duty to compensate landowners , se e Berwick , 148 A.3d at 884

- 86 , whereas the easement

pr ovision s at issue h ere broadly grant the Authority an easement for the installation
and ma intenance of its sewer system, see Easement Provisions, ¶ 15, R.R. at 263a. Nevertheless, that Berwick involved a more detailed easement agreement does not indicate that the trial court reached the wrong result

. T he easement agreement in
Berwick merely memorialized the general rule that landowners should not bear the cost of maintaining the easement area. See Frable , 40 Pa. D. & C. 2d at 660. Simply

p ut, the Authority, as easement holder, is responsible for maintaining its sewer system by removin g the tree at its own expense where the provisions governing its

easement d o not shift this burden to Landowners.

We note that the Authority’s brief seems to suggest that the tree is located outside of the easement area in Landowners’ backyard and that the roots are11

growing toward the easement area. The Authority’s suggestion is belied by the record herein. The Authority’s second request for admission, which it alleges was deemed admitted, states that “[t]he tree . . . is located and growing within the 10

- foot [

- ] wide sewer easement . . . .” R.R. at 161a ; see also Authority’s Brief at 9

. Additionally, Smythe, the Authority’s field technician, when asked how he knows that the tree is in the easement, testified at the bench trial that he “measured the easement based on the original plot plan.” T.T., 4/26/19 at 23, R.R. at 199a . Smythe

a lso identified three photos he had taken of Landowners’ backyard, which were admitted without objection, and are labeled as “79 Tall Pine Lane

– Above ground pool, trees and shed atop public sewer main.” R.R. at 166a

- 68a; see also T.T., 4/26/19 at 15, R.R . at 191a. Further, counsel for the Authority noted before the trial court that the tree was “on the sewer easement.” T.T., 4/26/19 at 46, R.R. at 22 2 a.

Accordingly, we affirm.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeI N THE COMMONWEALTH COURT OF PENNSYLVANIA

Lower Bucks County : Joint Municipal Authority, :

Appellant :

: v. : : Raymond W. Dukes and : No. 619 C.D. 2019 Kathleen A. Dukes :

O R D E R

AND NOW, this 6th day of May , 20 20 , the May 1, 2019 order of the Court of Common Pleas of Bucks County denying the Lower Bucks County Joint Municipal Authority ’s request for post

- trial relief is hereby AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge