IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and :

Suzanne Naylor, h/w :

:

 v. : No. 659 C.D. 2018

: 

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne : 

Naylor, h/w :

:

v. : No. 707 C.D. 2018

: Argued: November 13, 2019

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 7, 2021

1The decision in this case was reached before January 4, 2021, when President Judge 

Leavitt served as President Judge.
2

In these consolidated appeals, the Board of Supervisors of Charlestown 

Township (Township) and French and Pickering Creeks Conservation Trust, Inc. 

(Trust) appeal the judgment entered by the Court of Common Pleas of Chester 

County (trial court) in favor of husband and wife Russell and Suzanne Naylor 

(collectively, Naylors) and against the Township and the Trust. The Township and 

the Trust assert procedural and substantive errors of law. After careful 

consideration, we affirm. 

I. Background

The Naylors commenced this action in October 2014 by filing a singlecount complaint (Complaint) seeking a declaratory judgment under the Declaratory 

Judgments Act (DJA)2that would permit them to build a single-family dwelling on 

their property. The subject property is located at 2445 Charlestown Road, Malvern, 

Chester County (Property), and was once part of a larger tract known as the 

Baughman Farm. The following is a summary of the protracted history and relevant 

facts.

The Baughman Farm is situated in the scenic Pickering Creek Valley 

and is part of the Charlestown National Historic District.

3

 In August 1986, Arnold 

Bartschi, then owner of the Baughman Farm, placed his farm into a conservation 

easement, titled “Open Space Easement in Gross in Perpetuity and Declaration of 

2 42 Pa. C.S. §§7531-7541.

3 The Baughman Farm is bounded by Charlestown Road to the east, Pickering Creek to the 

south, a Pickering Creek tributary to the west, and Pickering Road to the north. Trial Court Op., 

1/12/18, at 3. 
3

Restrictive Covenants” (Easement), with the Trust.4 At the time, the Baughman 

Farm was comprised of three tax parcels: Chester County Tax Parcel (CCTP) Nos. 

35-2-8, 35-2-73 and 35-2-74. The Easement expressed the desire to preserve, 

conserve and protect the Baughman Farm and its agricultural, historic, scenic and 

relatively natural state. The Easement noted the presence of a historic waterpowered mill (Mill) and a dwelling house of Victorian architecture (Victorian 

House).5 It prohibited the construction of new or additional buildings or structures 

unless necessary for agricultural purposes. In exchange for entering into the 

Easement, the Trust paid Bartschi nominal consideration ($1). Trial Court Op., 

7/19/16, at 2; see Easement at 1-21; Reproduced Record (R.R.) at 126a-29a, 1298a1318a. 

Shortly after entering into the Easement, the Victorian House was 

destroyed by fire and was never reconstructed. Its ruins were bulldozed and grass 

was planted on the site. Over time, the location of the Victorian House became 

obscured. Trial Court Op., 7/19/16, at 2. 

After the Victorian House was destroyed, William and Elizabeth 

Anderson (Andersons) expressed interest in purchasing the Baughman Farm 

contingent on their ability to erect two dwellings – a main residence, in which they 

intended to live, and a tenant house, in which their parents would live. When the 

Trust objected, Bartschi filed a declaratory judgment action against the Trust to 

permit the construction of the two dwellings on the property. The trial court, 

4 The Easement was duly recorded with the Chester County Recorder of Deeds in Deed 

Book 419, Page 378. Trial Court Op., 7/19/16, at 2. 

5 At the time the Easement was entered, a dilapidated barn also existed on the Baughman 

Farm, but it was not identified in the Easement. Trial Court Op., 7/19/16, at 14. 
4

presided over by the late Honorable Leonard Sugerman, held a bench trial and then 

issued a decision on October 31, 1991 (Sugerman Decision). Sugerman Decision at 

1-15; R.R. at 285a-99a. Judge Sugerman noted that the Trust had agreed that the 

Easement permitted the erection of a single principal dwelling to replace the 

Victorian House destroyed by fire. Sugerman Decision at 5-6; R.R. at 289a-90a. 

Therefore, Judge Sugerman focused on the issue of whether a second dwelling was 

permitted. Judge Sugerman determined that “the Easement clearly prohibits the 

construction of two residential dwellings on the Baughman [Farm].” Sugerman 

Decision at 10; R.R. at 294a. In reaching this decision, Judge Sugerman relied on 

the Easement’s language prohibiting “new or additional buildings or structures”

unless “necessary for agricultural purposes.” Sugerman Decision at 10-11 (quoting 

the Easement at 11, 14; R.R. at 1307a, 1310a); R.R. at 294a-95a. Although Mrs. 

Anderson referred to the second dwelling as a “tenant house,” “tenant farmhouse,”

and “tenant farm dwelling,” she testified that she intended to use the second dwelling 

for her family – initially to house her father-in-law, an obstetrician approaching 

retirement. Sugerman Decision at 11-12; R.R. at 295a-96a. Judge Sugerman found 

that the “second dwelling as envisioned by Mrs. Anderson” did not support the 

position that it was “‘necessary for agricultural purposes,’ either in the context of the 

Easement or in the light of Mrs. Anderson’s proposals.” Sugerman Decision at 12

(quoting Easement at 14; R.R. at 1311); R.R. at 296a. “[A] retired obstetrician is an 

unlikely candidate for the position of ‘tenant farmer.’” Sugerman Decision at 13; 

R.R. at 297a. Thus, Judge Sugerman concluded “that a second dwelling may not be 

erected on the Baughman [Farm].” Sugerman Decision at 14; R.R. at 298a. Notably, 

Judge Sugerman was not tasked with determining, and hence did not determine, 

whether the permitted principal dwelling must be erected at the exact location of and 
5

in the same architectural style as the Victorian House. Sugerman Decision at 14 n.5; 

R.R. at 298a; see Trial Court Op., 7/19/16, at 2-3. 

Because the Andersons’ contingency regarding the second dwelling 

was not met, they did not move forward with the purchase of the Baughman Farm. 

In December 1991, two months after the Sugerman Decision, Bartschi conveyed the 

Baughman Farm to the Bartschi Foundation (Foundation) in fee. Trial Court Op., 

7/19/16, at 3.

A decade later, the Township asked the Foundation to restore the Mill, 

which was in ruins. The Foundation lacked funding to restore the Mill and, 

consequently, applied for a demolition permit instead. The Charlestown Township 

Historical and Architectural Review Board held hearings on the permit application. 

Trial Court Op., 7/19/16, at 3. 

Following these proceedings, the Foundation and Township agreed to 

subdivide the Mill from the Baughman Farm and transfer this parcel to the Township 

for nominal consideration ($10) for purposes of restoring the Mill. The agreement 

permitted the restoration of the Mill, but prohibited the construction of any new 

structures. R.R. at 58a-60a. The Township’s engineer prepared a subdivision plan, 

which the Township approved in July 2002. The subdivision plan divided CCTP

No. 35-2-74 into two parcels: (1) CCTP No. 35-2-74, which contained 35.5 acres 

of land, and (2) CCTP No. 35-2-74.2, which contained 1.629 acres of land and the 

Mill (Mill Lot). On July 30, 2002, the Foundation conveyed the Mill Lot to the 

Township. Thereafter, the Township restored the Mill. Trial Court Op., 7/19/16, at

3-4. 

In 2004, the Foundation approached the Naylors, who own an adjoining 

parcel, about purchasing the remainder of the Baughman Farm (41.60 acres), i.e., 
6

the Property.

6

 See R.R. at 599a. The Naylors were interested, but only if they could

build a principal dwelling on the Property. To that end, the Naylors and the Trust 

engaged in discussions. At some point, the Township became involved in these 

discussions and developed a list of concessions that it desired in exchange for its 

cooperation with the sale. Mr. Naylor withdrew from these conversations, stating 

“the restrictions/demands that the [T]ownship is placing on me are too severe for me 

to keep open my offer to acquire this [P]roperty from the Trust.” Trial Court Op., 

7/19/16, at 4 (quoting Kuhn Transcript, Ex. P-10 (1/10/05 email from Mr. Naylor to 

Supervisor Kuhn)); see R.R. at 428a. 

In 2005, the Foundation and the Naylors reopened their negotiations 

and reached an agreement for the Naylors to purchase the Property for $874,000.7 

On December 14, 2005, the Foundation and the Naylors entered an agreement of 

sale and an addendum. Therein, the Foundation agreed to cooperate in negotiations 

with the Trust relating to the construction of a dwelling on the Property. Trial Court 

Op., 7/19/16, at 4. 

On January 27, 2006, the Foundation conveyed the Property to the 

Naylors. The Trust and the Naylors engaged in discussions about restructuring the 

Easement. The Naylors’ attorney, Timothy Barnard, Esq. (Naylor Attorney), sent 

the Trust a memorandum, dated July 30, 2011 and revised August 8, 2011, regarding 

restructuring the Easement (Naylor Memorandum). R.R. at 474a-75a. The 

6 To be clear, when we refer to the Baughman Farm, we are referring to the entire tract as 

it existed when the Easement was created; when we refer to the Property, we are referring to the 

remainder of the Baughman Farm (CCTP 35-2-8, 35-2-73 and 35-2-74, less the Mill Lot/CCTP 

35-2-74.2), which is currently owned by the Naylors. 

7 See Trial Court Op., 7/19/16, at 5. The trial court stated the purchase price was $874,000, 

but the record supports a purchase price of $875,000. See R.R. at 66a; 793a. 
7

Memorandum set forth certain items for clarification, including the identification of 

two alternate sites on the Property to locate the dwelling. The Naylor Memorandum 

confirmed that: “Two house sites have been identified and will be recorded on the 

conservation plan as alternate permitted locations for the one re-built primary 

residence.” Trial Court Op., 7/19/16, at 4-5 (quoting the Naylor Memorandum, ¶5

(emphasis in original)); see R.R. at 475a.

In response, the Trust prepared a “Conservation Easement Preparation 

and Processing Agreement” (Processing Agreement), which the Naylors and the 

Trust signed in September 2011. The Processing Agreement provided that the 

structure and content of the Easement would track the Naylor Memorandum. 

Pursuant to the terms of the Processing Agreement, the Naylors agreed to pay the 

cost of updating the Easement and, to that end, the Naylors submitted a $5,000 

retainer, which the Trust accepted. Trial Court Op., 7/19/16, at 5.

In early October 2011, Township Supervisor Kevin Kuhn (Township 

Supervisor) learned of the Processing Agreement and immediately notified the Trust 

of the Township’s dissatisfaction with the agreement, particularly with the Trust’s 

willingness to permit the Naylors to build a dwelling on the Property. Discussions 

among all of the parties ensued. Trial Court Op., 7/19/16, at 5.

By letter dated January 30, 2012, counsel for the Township, Mark 

Thompson, Esq. (Township Solicitor), informed Naylor Attorney that the Easement 

did not permit a dwelling to be constructed in the existing pasture or agricultural 

fields of the Property. Township Solicitor expressed his belief that the location of 

the Victorian House is the only area contemplated for a residential building on the 

Property. Trial Court Op., 7/19/16, at 5; see R.R. at 137a. 
8

In February 2012, the Foundation recorded a “Deed of Correction” for 

the Property, purporting to convey to the Naylors “all and singular rights to rebuild 

the historic residence formerly located on the Grantor’s property known as the 

Baughman Farm (which residence was destroyed by fire) at such location as which 

Grantee might be entitled, or Grantee and [the Trust] may otherwise agree . . . .”

Trial Court Op., 7/19/16, at 5 (quoting Deed of Correction at 4); see R.R. at 100a. 

By email dated June 13, 2012, counsel for the Trust, George Elser, Esq.

(Trust Attorney), responded to Naylor Attorney’s questions. Trust Attorney advised

that “the Trust agreed that a house may be rebuilt and that there is no express 

limitation on where the house may be built, although its location and structure must 

be consistent with the conservation values expressed throughout the Easement.”

Trial Court Op., 7/19/16, at 5-6; see R.R. at 351a. “Trust Attorney further expressed 

that the Trust wished to assist the Naylors and the Township in resolving their 

differences regarding ownership of the building right.” Trial Court Op., 7/19/16, at 

6; see R.R. at 351a. He communicated the same to Naylor Attorney and Township 

Solicitor by letter dated June 14, 2012. Trial Court Op., 7/19/16, at 6; see R.R. at 

351a. 

“The Township quickly communicated its objection to the Trust’s 

position of neutrality and urged the Trust to enforce the Easement by refusing the 

Naylors permission to build.” Trial Court Op., 7/19/16, at 6. When the Trust failed 

to adopt the Township’s position, Township Supervisor threatened to bring legal 

action against the Trust to enforce the Easement. Id.

By letter dated September 8, 2012, Trust Attorney informed Naylor 

Attorney that the Trust had reconsidered its position. As holder of the Easement, the 

Trust determined that it held the responsibility to interpret the Easement and 
9

concluded that the Easement did not permit the Naylors to build a house on the 

Property. Trial Court Op., 7/19/16, at 6; see R.R. at 107a.

In October 2014, the Naylors instituted this action by filing a Complaint 

seeking a declaratory judgment against the Township and the Trust to secure the 

right to build a single-family dwelling (Replacement House) on the Property with 

the trial court. Therein, the Naylors asked the trial court to make the following 

declarations: (1) the “Easement allows the construction of the Replacement House 

in another location on the Property,” i.e., at a site other than that of the original 

Victorian House; (2) the Foundation “conveyed the right to construct the 

Replacement House to the Naylors”; (3) “the Naylors have the right to construct the 

Replacement House on the . . . Property”; (4) the Easement does not require the 

Trust’s or the Township’s “approval of the location of the Replacement House”; (5) 

“construction of the Replacement House on the . . . Property is subject only to the 

applicable requirements of the Township’s Zoning Ordinance and Building Code”; 

and (6) “the Township’s only role is to administratively review and process the 

Naylors’ building permit application for the Replacement House.” Naylors’

Complaint at 12-13; R.R. at 25a-26a. In addition, the Naylors sought to “[e]njoin 

the Township from taking any actions to interfere with the Naylors’ construction of 

the Replacement House on the . . . Property,” and asked the trial court to retain 

jurisdiction in order to ensure the Township’s and Trust’s compliance. Naylors’

Complaint at 13; R.R. at 26a. 

In response, the Township filed an Answer with New Matter and 

Counterclaim/Cross-Claim. In the Answer, the Township contested the Naylors’

request for relief. In the New Matter, the Township asserted that the Naylors’ claims 

were barred and/or limited by the doctrines of estoppel, unclean hands, and laches, 
10

the defense of waiver, and the Easement itself. In the Counterclaim/Cross-Claim, 

the Township sought a declaratory judgment of its own against the Naylors and the 

Trust under the DJA and the Conservation and Preservation Easements Act 

(Easements Act).

8

 Specifically, the Township sought declarations that: (1) the only 

location on the Baughman Farm upon which the Easement permits a Replacement 

House is the site of the original Victorian House; (2) the Easement prohibits any 

structure except for “buildings necessary for agricultural purposes,” to be built at 

other locations on the Baughman Farm; and (3) the Deed of Correction is a “nullity.”

Township’s Answer with New Matter and Counterclaim/Cross-Claim at 15; R.R. at

122a.

The Trust filed its own Answer with New Matter, in which it also 

contested the Naylors’ action and raised similar affirmative defenses as new matter. 

Trust’s Answer with New Matter at 1-13; R.R. at 145a-57a. The Trust responded to 

the Township’s Cross-Claim by joining in full the Township’s request for 

declaratory judgment. Trust’s Reply to Township’s Counterclaim and Cross-Claim 

at 1-2; R.R. at 160a-61a. 

Following discovery, the parties filed cross-motions for summary 

judgment. In the Naylors’ Motion for Summary Judgment, the Naylors sought 

summary judgment on the grounds that: (1) the Easement permitted them to build a 

Replacement House on their Property at a location other than that of the original 

Victorian House; and (2) the Township should be estopped from interfering in the 

Naylors’ efforts to reach an agreement with the Trust regarding the location of the 

Replacement House and clarification of the Easement language. Naylors’ Motion 

for Summary Judgment at 24-31; R.R. at 190a-95a.

8 Act of June 22, 2001, P.L. 390, 32 P.S. §§5051-5059. 
11

In the Township’s Motion for Partial Summary Judgment, it argued that

it was entitled to judgment in its favor because: (1) the Easement permits a 

Replacement House to be built only at the original location of the Victorian House; 

(2) a Replacement House may be built at another location on the Property but only 

with the consent of both the Township and the Trust to amend the Easement; and (3) 

the Naylors never obtained the consent of the Township or the Trust to amend the 

Easement to allow for construction of a Replacement House at the Naylors’ desired 

location. Township’s Motion for Partial Summary Judgment at 9-13; R.R. at 498a502a.

In the Trust’s Motion for Summary Judgment and Judgment on the 

Pleadings, the Trust claimed that neither the Easement’s language, nor the 

discussions between the Naylors and the Trust regarding potential revisions to the 

Easement, gave the Naylors the right to construct a Replacement House at a location 

of their choosing without the assent of both the Township and the Trust. On this 

basis, the Trust claimed it was entitled to judgment in its favor. Trust’s Motion for 

Summary Judgment and Judgment on the Pleadings at 1-10; R.R. at 691a-700a. 

On May 9, 2016, the Trust also interposed a motion to strike the 

Naylors’ Motion for Summary Judgment on the basis that it was filed prematurely 

before the pleadings had closed. More particularly, the Trust averred that the 

Naylors failed to respond to the Trust’s outstanding New Matter. The Trust also 

asserted that the Naylors’ Motion failed to conform to the Pennsylvania Rules of 

Civil Procedure (Pa. R.C.P.). Trust’s Motion to Strike at 1-4; R.R. at 1643a-46a. 

The parties filed responses to their opponents’ respective motions for 

summary judgment. The Naylors responded to the Trust’s Motion to Strike and filed 

an answer to the Trust’s New Matter. See R.R. at 1817a-25a. 
12

By order dated July 7, 2016, the trial court9 denied the Trust’s Motion 

to Strike the Naylors’ Motion for Summary Judgment. In a footnote, the trial court 

explained that the pleadings were closed twenty days after the Trust served new 

matter on the Naylors. Trial Court Order, 7/7/16, at 1 n.1 (citing Pa. R.C.P. No. 

1029; Newspaper Guild of Greater Philadelphia, AFL-CIO v. Philadelphia Daily 

News, Inc., 164 A.2d 215, 218 (Pa. 1960)). The trial court opined that, “when new 

matter is comprised solely of legal conclusions, a response is not required.” Trial 

Court Order, 7/7/16, at 1 n.1 (citing Pa. R.C.P. No. 1029(d); Gotwalt v. Dellinger, 

577 A.2d 623 (Pa. Super. 1990)). Furthermore, no reply is warranted where the 

factual allegations set forth in new matter are already set forth in the complaint and 

answer. Trial Court Order, 7/7/16, at 1 n.1. “New matter properly contains 

averments of facts only if they are extrinsic to facts averred in the complaint.” Id.

(quoting Watson v. Green, 331 A.2d 790, 792 (Pa. Super. 1974)). The trial court did 

not address the Trust’s claim of procedural noncompliance. See Trial Court Order, 

7/7/16, at 1 n.1. 

By decision dated July 19, 2016, the trial court addressed the parties’

cross-motions for summary judgment. First, the trial court held that the Township 

did not have standing to enforce the terms of the Easement because the Easement 

only allowed the Trust, as grantee, to enforce its terms. Trial Court Op., 7/19/16, at

8. The trial court also found that the Township did not have standing to enforce the 

terms of the Easement under the Easements Act because it was not an owner of the 

Property. The trial court reasoned that to hold otherwise would run counter to 

9 The Honorable Edward Griffith presided. 
13

legislative intent, as well as to the Uniform Conservation Easement Act,10 and would 

enable “the owner of any small parcel of property subject to a conservation easement 

[to] enforce the easement over much larger parcels, which would allow for a 

multiplicity of suits and easily frustrate one of the goals of the [Easements] Act, 

which is to encourage the placement of land into protective easements. [Section 2 

of the Easements Act,] 32 P.S. §5052.” Trial Court Op., 7/19/16, at 9. Thus, the 

trial court denied the Township’s Motion for Partial Summary Judgment. 

Turning to the Trust’s and Naylors’ cross-motions, the trial court 

examined the intertwined questions of whether, under the Easement, a Replacement 

House could only be built at the precise location of the original Victorian House, or 

whether it could be built elsewhere on the former Baughman Farm, as well as which 

party held “ownership” of the right to build such a residence. Trial Court Op., 

7/19/16, at 10. 

Upon reviewing the Easement, the trial court found that the Easement’s

purpose was unambiguously “to preserve the rural character of the area, the scenic 

quality of the farm, the diversity of wildlife in a variety of settings, and the historic 

and cultural value of the property.” Trial Court Op., 7/19/16, at 13. However, the 

trial court also found that “[t]he Easement was not greatly concerned with the 

buildings on the farm.” Id. at 17. There was nothing in the Easement that expressly 

limited where a Replacement House could be built. Id. “[T]he Easement preserves

the [Grantor-Declarant]’s right to possess and enjoy all rights and privileges 

attendant to ownership of property, unless relinquished under the terms of the 

Easement.” Id. at 16. This included “the right to locate a dwelling on the Baughman 

10 The Uniform Conservation Easement Act is a uniform law drafted by the National 

Conference of Commissioners on Uniform State Laws and approved and recommended for 

enactment in all the states.
14

Farm at any location he saw fit, provided that the selected location [was] not 

inconsistent with the servitude [i.e., the Easement].” Id. at 17. Construing the 

agreements of sale that dealt with both the Mill Lot and the Property, the trial court 

then concluded that Bartschi’s right to build a residence elsewhere on the Baughman 

Farm was transferred to the Naylors. Id. at 17-19. Thus, the trial Court denied the 

Trust’s Motion for Summary Judgment and Judgment on the Pleadings, and granted 

partial summary judgment in favor of the Naylors as to the following issues:

a. The Easement allows for the construction of a

[Replacement House] in a location other than the 

site of the Victorian House;

b. The . . . Foundation conveyed the right to construct 

a [Replacement House] to the Naylors;

c. The Naylors own the right to construct a 

[Replacement House] on the [P]roperty transferred 

to them by [the] Foundation (Chester County 

Parcels 35-2-8, 35-2-73 and 35-2-7[4]);

d. The Easement does not require the Township’s 

approval of the location of the [Replacement 

House] and the Township is enjoined from 

interfering with enforcement of the Easement as it 

relates to the Naylors’ Property (Chester County 

Parcels 35-2-8, 35-2-73 and 35-2-7[4]).

Id. at 19.

The trial court noted that three issues raised by the Naylors in their 

Complaint were not addressed in their Motion for Summary Judgment and, thus, 

remained unresolved. Trial Court Op., 7/19/16, at 19. Specifically, these issues 

included whether:

1.) [T]he Easement does not require the Trust’s approval 

of a [R]eplacement [House;] 2.) the Naylors’ construction 
15

of a [R]eplacement [House] is subject only to the 

applicable requirements of the Township’s Zoning 

Ordinance and Building Code[;] and 3.) the Township’s 

only role is to administratively review and process the 

Naylors’ building permit application for the 

[R]eplacement [House].

Id. To address these unresolved issues, the trial court held a two-day bench trial in 

May 2017, during which it reviewed a copious number of exhibits and heard 

testimony from Mr. Naylor, Naylor Attorney, various expert witnesses and 

representatives from the Trust. 

By decision dated January 12, 2018, the trial court ruled that the 

Easement neither protected the “historic structures” located on the former Baughman 

Farm, nor vested the Trust with power “to approve the location, development or 

construction of the [Replacement House] to be built on the [Baughman Farm], but 

rather reserves the right to the Property owner,” i.e., the Naylors. Trial Court Op., 

1/12/18, at 16, 18. Consequently, the Naylors do not need the Trust’s authorization 

to build the Replacement House. Furthermore, the trial court found the Trust had 

already deemed two alternate locations on the Property to be compatible with the 

Easement’s requirements, and held that the Easement allowed the Naylors to build 

“a single family residence and associated improvements, including residence

structures, such as a detached garage, driveway, tennis court, swimming pool, shed 

and equipment enclosure, as well as septic, stormwater management, etc.” at a 

suitable, Easement-compliant location. Id. at 16-17. 

Finally, the trial court declined to rule upon the remaining two 

questions, involving the Township’s powers and responsibilities in connection with 

the Naylors’ construction of their new home. Because the Naylors had not yet 

applied for the necessary clearances and permits, the trial court determined that there 
16

was no “real controversy” between the Naylors and the Township at that point. 

Furthermore, the Naylors had not yet exhausted their administrative remedies. Trial 

Court Op., 1/12/18, at 17-18.

Thereafter, the Trust filed a Motion for Post-Trial Relief, which the trial 

court denied on April 11, 2018.11 Upon praecipe, judgment was entered in favor of 

the Naylors on April 19, 2018. See Pa. R.C.P. No. 227.4(2) (stating that the 

prothonotary shall enter judgment upon praecipe “when a [trial] court grants or 

denies relief but does not itself enter judgment or order the prothonotary to do so”). 

The Township and the Trust then both filed appeals, which we consolidated.

II. Issues

In these consolidated appeals,12 the Township and the Trust raise a mix 

of procedural and substantive questions.13 Procedurally, the Township and the Trust 

both argue that the trial court erred as a matter of law by concluding that the 

Township lacked standing to enforce the Easement. They claim that the Township, 

as a fee simple owner of a portion of the former Baughman Farm burdened by the 

Easement, has standing to object to a modification to another parcel subject to the 

11 Because the trial court dismissed the Township’s claims at the summary judgment stage, 

the Township was precluded from filing post-trial motions. See Pa. R.C.P. No. 227.1(c) Note (“A 

motion for post-trial relief may not be filed to orders disposing of . . . motions for judgment on the 

pleadings or for summary judgment . . . .”). 

12 Appellate review of an order granting summary judgment is limited to determining 

whether the trial court committed an abuse of discretion or an error of law. Weaver v. Lancaster 

Newspapers, Inc., 926 A.2d 899, 902 (Pa. 2007). Where a challenge raises a question of law, such 

as standing or jurisdiction, our standard of review is de novo, and our scope of review is plenary. 

In re Hickson, 821 A.2d 1238, 1242 (Pa. 2003). 

13 We have rearranged the sequence of issues and arguments for ease of discussion. 
17

same Easement. In addition, the Trust contends the trial court lacked jurisdiction 

over the subject matter of this dispute because it involves the Trust’s interpretation 

of a document and rights vested therein, which falls within the exclusive jurisdiction 

of the Orphans’ Court of Chester County. The Trust also argues that the trial court 

erred by denying its Motion to Strike the Naylors’ Motion for Summary Judgment 

as untimely filed. 

Substantively, the Township argues that the trial court erred by not 

concluding that the Naylors’ claims were barred by the doctrine of collateral 

estoppel. The Township maintains that the doctrine of collateral estoppel prohibits 

the relitigation of issues previously resolved in the Sugerman Decision. The Trust 

separately frames this issue asserting that the trial court failed to adhere to the legal 

doctrines of the law of the case and coordinate jurisdiction. 

Next, the Township and the Trust argue that the trial court erred by 

entering summary judgment in favor of the Naylors and allowing them to construct 

a Replacement House on the Property for several reasons. First, the Township and 

Trust argue that summary judgment is inappropriate here because material facts are 

in dispute, namely, the location of the Victorian House. Second, they contend the 

trial court erred by allowing the Naylors to construct a Replacement House on their 

Property at a location other than the destroyed Victorian House arguing that this is 

at odds with the Easement and the Easements Act. Third, they maintain that the 

right to rebuild was extinguished with the subdivision of Baughman Farm. Fourth, 

they challenge the trial court’s declaration that the Naylors are not limited to the 

footprint of the Victorian House and may construct a Replacement House in the 

style, size, configuration and construction of their choosing along with infrastructure 

and accessory structures. Finally, the Trust contends that the trial court erred by 
18

permitting the Naylors to construct a Replacement House in the style and location 

of their choosing without any governance or approval required by the Trust or 

Township.

14, 15

III. Discussion

A. Procedural Issues

1. Township Standing

First, the Township and the Trust both argue that the trial court erred 

by ruling that the Township did not have standing to enforce the Easement. Both 

parties maintain that the Township, as a fee simple owner of the Mill Lot burdened 

by the same Easement, has statutory standing to challenge a violation of that 

Easement. In support, they rely on Section 5(a)(1) of the Easements Act, 32 

P.S. §5055(a)(1), as authority. In addition, the Township further claims that it has 

standing under subsections (2) and (3) as well as the right to enforce the Easement

as a third party under subsection (5) of Section 5(a) of the Easements Act, 32 

P.S. §5055(a)(2), (3), (5).

The Easements Act identifies persons who have standing to bring legal 

action to enforce an easement. Schwartz v. Chester County Agricultural Land 

14 Rule 2137 of the Pennsylvania Rules of Appellate Procedure states: “In cases involving 

more than one appellant or appellee, including cases consolidated for purposes of the appeal 

pursuant to Rule 513 (consolidation of multiple appeals), any number of either may join in a single 

brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties 

may similarly join in reply briefs.” Pa. R.A.P. 2137. Based on the foregoing, the Trust adopted 

the Township’s interpretation of the Easement, the Township’s position on standing, and “all 

grounds for reversing” the trial court. Trust’s Brief at 16. The Trust also adopted by reference 

any supporting arguments set forth in the Township’s Reply Brief. Trust’s Reply Brief at 17. In 

turn, the Township specifically joined in the Trust’s arguments regarding the location limitations 

of the Replacement House and interpretation of the Easement. Township Brief at 35-36. 

15 The Pennsylvania Land Trust Association filed an amicus curiae brief in support of the 

positions advanced by the Trust and Township.
19

Preservation Board, 180 A.3d 510, 514 (Pa. Cmwlth. 2018). Specifically, Section 

5(a) of the Easements Act provides:

(a) Persons who have standing.—A legal or equitable 

action affecting a conservation or preservation easement 

may only be brought by any of the following:

(1) An owner of the real property burdened by the 

easement.

(2) A person that holds an estate in the real property 

burdened by the easement.

(3) A person that has any interest or right in the real 

property burdened by the easement.

(4) A holder of the easement.

(5) A person having a third-party right of 

enforcement.

(6) A person otherwise authorized by Federal or 

State law.

(7) The owner of a coal interest in property 

contiguous to the property burdened by the easement or of 

coal interests which have been severed from the ownership 

of the property burdened by the easement.

32 P.S. §5055(a) (emphasis added). 

However, the Township does not fall within any of these categories. 

Although the Township’s Mill Lot and the Property were once part of the former 

Baughman Farm and are burdened by the same Easement, the Mill Lot and the 

Property are two independent and distinct parcels of land and have been since the 

Baughman Farm was subdivided in 2002. The Township does not have standing 
20

under subsections 5(a)(1), (a)(2), or (a)(3) of the Easements Act when it neither 

owns, holds an estate in, or otherwise holds an interest or right in the Property. 

As for the Township’s argument that it has standing under subsection

5(a)(5), this claim also fails. Section 3 of the Easements Act defines “[t]hird-party 

right of enforcement” as “[a] right provided in a conservation easement to enforce 

any of its terms, granted to a governmental body, charitable corporation, charitable 

association or charitable trust, which, although eligible to be a holder, is not a 

holder.” 32 P.S. §5053. Under the terms of the Easement, only the Trust has the 

right to enforce the Easement. Easement at 14-15; R.R. at 1311a-12a. The Trust

never formally conveyed its enforcement right to the Township. The mere fact that 

the Trust joined some of the Township’s arguments before the trial court does not 

imbue the Township with its claimed “de facto” third-party right of enforcement. 

See Township Brief at 30. We, therefore, conclude that the trial court did not err in 

holding that the Township does not have standing in this matter.

2. Subject Matter Jurisdiction

Next, the Trust claims that the trial court lacked subject matter 

jurisdiction to hear the Naylors’ declaratory judgment action. The Trust asserts that 

matters such as this belong within the exclusive jurisdiction and expertise of the 

Orphans’ Court of Chester County. 

Despite its current jurisdictional objections, the Trust never requested 

to have the Naylors’ action transferred to Orphans’ Court when it was before the 

trial court. While the issue of subject matter jurisdiction is not waivable, see 

Blackwell v. State Ethics Commission, 567 A.2d 630, 636 (Pa. 1989), “the proper 

selection of a division within the court of common pleas is not a jurisdictional 
21

question . . . .” Sto-Rox Focus on Renewal Neighborhood Corp. v. King, 398 A.2d 

241, 242-43 (Pa. Cmwlth. 1979). The Trust’s argument is little more than an attempt 

to forum shop after the fact between divisions of coordinate jurisdiction, which we 

will not entertain. 

3. Motion to Strike

In addition, the Trust contends that the trial court erred by denying its 

Motion to Strike the Naylors’ Motion for Summary Judgment as untimely. 

According to the Trust, the Naylors filed their Motion for Summary Judgment 

prematurely, before the pleadings had closed. Specifically, the Naylors filed their 

Motion on April 8, 2016, without addressing the New Matter raised by the Trust on 

December 19, 2014. The Naylors did not file an Answer to the Trust’s New Matter 

until May 20, 2016 – well after the 20-day period in which to do so had closed. 

Consequently, the pleadings were not closed when the Naylors filed their Motion for 

Summary Judgment. 

Pa. R.C.P. No. 1035.2 governs motions for summary judgment and 

provides:

After the relevant pleadings are closed, but within such 

time as not to unreasonably delay trial, any party may 

move for summary judgment in whole or in part as a 

matter of law

(1) whenever there is no genuine issue of any 

material fact as to a necessary element of the cause of 

action or defense which could be established by additional 

discovery or expert report, or 

(2) if, after the completion of discovery relevant to 

the motion, including the production of expert reports, an 

adverse party who will bear the burden of proof at trial has 
22

failed to produce evidence of facts essential to the cause 

of action or defense which in a jury trial would require the 

issues to be submitted to a jury.

Pa. R.C.P. No. 1029(a) provides: “A responsive pleading shall admit or deny each 

averment of fact in the preceding pleading or any part thereof to which it is 

responsive.” However, “[a]verments in a pleading to which no responsive pleading 

is required shall be deemed to be denied.” Pa. R.C.P. No. 1029(d). This includes 

conclusions of law. Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 

1219 (Pa. Cmwlth. 2018). 

Here, the Naylors filed their Motion for Summary Judgment without 

first responding to the Trust’s New Matter. Although it appears at first blush that 

the pleadings were in fact still open, upon closer examination of the pleadings, the

Trust did not introduce new statements of fact. The Trust’s New Matter reads as 

follows:

47. [The Trust’s] answers to paragraphs 1 through 46 

are incorporated by reference as though fully set forth at 

length.

48. [The Naylors’] claims are barred and/or limited by 

the doctrine of estoppel. 

49. [The Naylors’] claims are barred and/or limited by 

the doctrine of unclean hands.

50. [The Naylors’] claims are barred and/or limited by 

the doctrine of laches.

51. [The Naylors’] claims are barred by the doctrine of

merger.

52. [The Naylors’] claims are barred by the statute of

frauds.
23

53. [The Naylors’] claims are barred and/or limited by 

the defense of waiver.

54. The . . . Easement is governed by the . . . Easements 

Act[,] which requires liberal construction in favor of the 

grants contained therein to effect the purposes of the 

easements. 32 P.S. §5055(c)(2).

55. [The Naylors’] claims are barred and/or limited by 

the . . . Easement and its clear prohibition against any 

other structure being constructed on [CCTP] Nos. 35-2-8, 

35-2-73, 35-2-74, and 35-2-74.2 except for buildings 

necessary for agricultural purposes, which does not 

include a home or dwelling.

56. [The Naylors’] claims are barred and/or limited 

because the . . . Foundation had no right to construct a 

dwelling [on] [CCTP] No. 35-2-74[;] the . . . Foundation 

did not possess the ability to convey that right to the 

[Naylors].

57. [The Naylors’] claims are barred and/or limited 

because other than rebuilding the historic dwelling on the 

property owned by the Township, the right to build on [the 

Naylors’] property was conveyed away by the previous 

owner of that property (prior to the . . . Foundation), and 

cannot be resurrected by [the Naylors] through the filing 

of a “Deed of Correction” or any other conveyance by the 

. . . Foundation.

Trust’s Answer with New Matter, 12/19/14, at 12-13; R.R. at 156a-57a. 

Upon review, Paragraphs 47 through 54 are legal conclusions, and, as 

such, they are deemed denied without formal response. See Pa. R.C.P. No. 1029(d); 

Phantom Fireworks, 198 A.3d at 1219. Although paragraphs 55 through 57 contain 

factual averments, these averments essentially challenge the Naylors’ alreadyarticulated claim that they have the right, under the terms of both their agreement of 

sale with the Foundation and the Easement itself, to build a residence at another

Easement-compliant spot on the Property without the Trust’s advance permission. 
24

See Naylors’ Complaint at 9-11; R.R. at 23a-25a. Thus, the Trust’s averments do 

not contain “new” statements of fact, but are “merely responsive to the averments of 

[the Naylors’] [C]omplaint and, under our rules of procedure[,] should have been set 

forth in the answer.” Saxe v. Feinstein, 77 A.2d 419, 421 (Pa. 1951); see Watson, 

331 A.2d at 792 (“New matter properly contains averments of facts only if they are 

extrinsic to facts averred in the complaint.”). Thus, we conclude that the trial court 

did not err by denying the Trust’s Motion to Strike.

B. Substantive Issues

1. Collateral Estoppel, Law of the Case & Coordinate Jurisdiction

Turning to the substantive issues, the Trust, having adopted the 

Township’s arguments in this regard,

16 argues that the Naylors’ claims in this matter 

are barred by the doctrine of collateral estoppel. The Trust maintains that the 

Naylors’ claims were previously litigated and disposed of in the Sugerman Decision. 

Judge Sugerman analyzed the subject Easement and Property and opined that the 

purpose of the Easement was to maintain the Baughman Farm as it existed when the 

Easement was conveyed and did not permit the erection of “additional buildings or 

structures . . . except as may be necessary for agricultural purposes.” Sugerman 

Decision at 12; R.R. at 296a. Under the doctrine of collateral estoppel, the Naylors 

are bound by this decision and may not relitigate these claims. 

In addition, the Trust asserts that the trial court was required to adhere 

to the Sugerman Decision under the legal doctrines of law of the case and coordinate 

16 The collateral estoppel issue was raised and fully developed by the Township, not the 

Trust. Having determined that the Township lacks standing, ordinarily, we would not address the 

Township’s substantive challenges on appeal. See Society Hill Civic Association v. Pennsylvania 

Gaming Control Board, 928 A.2d 175, 177 (Pa. 2007). However, because the Trust incorporated 

and adopted the Township’s arguments pursuant to Pa. R.A.P. 2137 and has standing to raise this 

issue, the issue remains viable. 
25

jurisdiction. The Sugerman Decision was issued by a court of coordinate jurisdiction

and represents the law of the case in this matter. Consequently, the trial court was 

not permitted to depart from Judge Sugerman’s interpretation of the Easement in its 

decision. 

The doctrine of collateral estoppel precludes relitigation of an issue 

settled in a previous action if:

(1) the issue decided in the prior case is identical to the one 

presented in the later action; (2) there was a final 

adjudication on the merits; (3) the party against whom the 

plea is asserted was a party or in privity with a party in the 

prior case; (4) the party or person privy to the party against 

whom the doctrine is asserted had a full and fair 

opportunity to litigate the issue in the prior proceeding; 

and (5) the determination in the prior proceeding was 

essential to the judgment.

Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005). 

The doctrine of “law of the case” sets forth various rules that embody

“the concept that a court involved in the later phases of a litigated matter should not 

reopen questions decided by another judge of that same court or by a higher court in 

the earlier phases of the matter.” Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 

1995). “However, this doctrine applies only when a court is later asked to consider 

the same question decided by another court of equivalent or higher jurisdiction.” 

Commonwealth v. Wright, 14 A.3d 798, 817 (Pa. 2011) (emphasis added). The 

related doctrine of coordinate jurisdiction provides that judges of equal jurisdiction 

sitting in the same case should not overrule each other’s decisions. Ario v. Reliance 

Insurance Co., 980 A.2d 588, 597 (Pa. 2009); Starr, 664 A.2d at 1331. 

Upon review, the doctrines of collateral estoppel, law of the case and 

coordinate jurisdiction do not apply because the issues involved here were not before 
26

Judge Sugerman. The issue before Judge Sugerman was whether the landowner

could erect “two dwellings upon the Baughman [Farm],” namely, “a principal 

dwelling and an associated tenant house.” Sugerman Decision at 4, 6 (emphasis 

added); R.R. at 286a, 290a. Judge Sugerman determined that “the Easement clearly 

prohibits the construction of two residential dwellings” on the Baughman Farm. 

Sugerman Decision at 10 (emphasis added); R.R. at 294a. Ultimately, he declared 

that the Easement did “not permit the construction or erection of a second separate 

dwelling upon the Baughman [Farm].” Sugerman Decision at 15 (emphasis added); 

R.R. at 299a. However, Judge Sugerman never resolved the issues of whether one 

residential dwelling must be located in the exact same spot at the Victorian House 

or replicated in the style of the Victorian House.17 

Notwithstanding, the Trust argues that the parties and trial court are 

bound by Judge Sugerman’s interpretation of the Easement. In this regard, Judge 

Sugerman opined:

It is quite clear from the many recitals in the Easement that 

the overriding purpose or object of the Easement was to 

maintain the Baughman [Farm] in its physical condition at 

the date the Easement was granted: a Victorian dwelling, 

a mill and a barn, and the remainder of the Baughman 

[Farm] as open space. 

17 Judge Sugerman noted:

We have not been requested to and thus do not decide the questions 

of (1) whether the Victorian [House] formerly on the Baughman 

[Farm] may be restored only in the same configuration and style as 

heretofore, and (2) whether the said dwelling may only be erected at 

the location where the earlier dwelling was located. 

Sugerman Decision at 14, n.5; R.R. at 298a. 
27

Sugerman Decision at 12; R.R. at 296a. However, this passage had no bearing on 

Judge Sugerman’s determination that a second dwelling was not permitted under the 

Easement. Consequently, it was not “essential” to the judgment. Judge Sugerman’s 

discussion in this regard constitutes nonbinding dicta. Therefore, we conclude that 

the doctrine of collateral estoppel does not apply. Because the trial court did not 

“reopen questions” previously decided by another judge of the same court in an 

earlier phase of the matter, the doctrines of law of the case and coordinate 

jurisdiction are similarly inapplicable. 

2. Summary Judgment – Disputed Fact

Next, the Trust argues that summary judgment was inappropriate 

because a genuine issue of material fact remains unresolved and in dispute. 

Specifically, there is no agreement among the parties regarding the location of the 

Victorian House. There is conflicting evidence in the record as to where exactly the 

Victorian House was located on the former Baughman Farm. It is unclear whether 

the Victorian House was entirely on the Property, entirely on the Mill Lot, or 

straddled the two. The Trust argues that the location of the Victorian House is 

critical to the outcome. 

“Summary judgment is appropriate in cases ‘where there are no genuine 

issues of material fact and the moving party is entitled to judgment as a matter of 

law.’” Maas v. UPMC Presbyterian Shadyside, 234 A.3d 427, 436 (Pa. 2020) 

(quoting Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018); accord Pa. R.C.P. No. 

1035.2(1)). “A fact is material only if it directly affects the disposition of a case.”

Pyeritz v. Commonwealth, 956 A.2d 1075, 1079 (Pa. Cmwlth. 2008) (quoting Allen 

v. Colautti, 417 A.2d 1303, 1307 (Pa. Cmwlth. 1980)), aff’d, 32 A.3d 687 (Pa. 2011). 
28

Although the location of the original Victorian House is uncertain and 

the parties dispute its whereabouts, the exact location of the Victorian House is 

material only if the Easement limited the location of a Replacement House to that 

exact location. For the reasons that follow, we conclude that the trial court did not 

err or abuse its discretion in determining that this fact was not material to the 

disposition of the case. 

3. Location of the Replacement House

Turning to the crux of the matter, the Trust argues that the trial court 

erred by granting partial summary judgment to the Naylors with regard to the right 

to rebuild a Replacement House at a location of their choosing that does not violate 

the Easement. According to the Trust, the Easement does not permit a single-family 

dwelling to be constructed anywhere other than the location of the former Victorian 

House. Although the Easement did not contemplate the destruction of the Victorian 

House, the Easement prohibits any new buildings unless necessary for agricultural 

purposes. The clear purpose of the Easement is to preserve the Baughman Farm as 

it existed when the Easement was created and its pastoral setting and scenic views. 

Under the Easements Act, the Easement must be liberally construed to effectuate the 

purpose of the Easement. When viewed in this context, the only place that a 

Replacement House could logically be constructed is the site of the former Victorian 

House. By permitting the Naylors to build a new Replacement House at any another 

location, the trial court directly contravened both the restrictive language and the 

purpose of the Easement in violation of the Easements Act. 
29

a. Easement Construction

We must first address whether construction of this Easement is guided 

by the Easements Act or by the common law. When the General Assembly enacted 

the Easements Act in 2001, it “recognized the importance and significant public and 

economic benefit of conservation and preservation easements in its ongoing efforts 

to protect, conserve or manage the use of the natural, historic, agricultural, open 

space and scenic resources of this Commonwealth.” Section 2 of the Easements Act,

32 P.S. §5052. The General Assembly instructed: “Any general rule of construction 

to the contrary notwithstanding, conservation or preservation easements shall be 

liberally construed in favor of the grants contained therein to effect the purposes of 

those easements and the policy and purpose of [the Easements Act].” Section 5(c)(2) 

of the Easements Act, 32 P.S. §5055(c)(2) (emphasis added). However, the 

Easements Act may not be applied retroactively where doing so “contravenes the 

Constitution of the United States or laws of the United States or of this 

Commonwealth.” Section 7(b) of the Easements Act, 32 P.S. §5057(b). 

The subject Easement was created in 1986, 15 years before the 

Easements Act went into effect in 2001. In this proceeding, the Trust advances a

liberal interpretation of the Easement that would augment the rights conveyed in 

favor of the grant and diminish the rights reserved thereunder. Applying the 

Easements Act’s liberal construction analysis in this manner would create a 

significant impairment of contract, which is contrary to the federal and state 

constitutions. See Association of Settlement Companies v. Department of Banking, 

977 A.2d 1257 (Pa. Cmwlth. 2009) (analysis of impairment of contract issues under 

both U.S. and Pennsylvania Constitutions). Therefore, we shall review the Easement 

under the common law rules of construction, which are the same rules applicable to 
30

contract interpretation. Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657 

A.2d 920, 924 (Pa. 1995). 

Under contract law, the fundamental rule of construction is determining 

the intention of the parties as manifested by the language of the written instrument. 

Id.; Unit Vending Corp. v. Lacas, 190 A.2d 298, 300 (Pa. 1963). “Such intention [of 

the parties] is determined by a fair interpretation and construction of the grant and 

may be shown by the words employed construed with reference to the attending 

circumstances known to the parties at the time the grant was made.” Zettlemoyer, 

657 A.2d at 924 (quoting Lease v. Doll, 403 A.2d 558, 561 (Pa. 1979)). “[T]he court 

will adopt the interpretation, which under all of the circumstances of the case, 

ascribes the most reasonable, probable and natural conduct of the parties, bearing in 

mind the objects manifestly to be accomplished.” Unit Vending, 190 A.2d at 300. 

Where the words of the contract are clear and unambiguous, the intent 

of the parties must be determined exclusively from the agreement itself. Suffolk 

Construction Co. v. Reliance Insurance Co., 221 A.3d 1205, 1210 (Pa. 2019). The 

court is required to give effect to that language. Id. Words not defined are given 

their plain and ordinary meaning. Id. at 1212-13; Riccio v. American Republic 

Insurance Co., 705 A.2d 422, 426 (Pa. 1997). Only where the language of the 

written contract is ambiguous, may extrinsic or parol evidence be considered to 

determine the intent of the parties. Suffolk, 221 A.3d at 1214.

18

 Thus, we begin by 

18 A contract will be found to be ambiguous:

[I]f, and only if, it is reasonably or fairly susceptible of different 

constructions and is capable of being understood in more senses than 

one and is obscure in meaning through indefiniteness of expression 

or has a double meaning. A contract is not ambiguous if the court 

can determine its meaning without any guide other than a knowledge 

(Footnote continued on next page...)
31

examining the Easement itself, which is “the polestar of our inquiry.” Schwartz, 180 

A.3d at 514. 

b. Easement

The Easement devotes nine pages to whereas recitals recognizing the 

rural, scenic, historic and cultural value of the Baughman Farm and surrounding 

Pickering Creek Valley. To wit: 

WHEREAS, the Pickering Valley is still rural and 

relatively free from over-development and commercial or 

industrial intrusion and is of high scenic quality.

WHEREAS, the [Baughman Farm] is partly in open tilled 

fields and pasture, partly wooded, partly grown up with 

small trees and bushes which create fine wildlife and bird

cover, with topography including some floodplain and 

also some high water table or wet areas; and

. . .

WHEREAS, the [Baughman Farm] lies in the area 

recommended for preservation in the Report [titled 

“Pickering Creek Valley: A Preservation Opportunity”] as 

a Critical Environmental Preservation District, high in 

historic and cultural values, and also designated in the 

Report as possessing high scenic quality, and within a 

Scenic Corridor as designated by the Report; and

of the simple facts on which, from the nature of language in general, 

its meaning depends; and a contract is not rendered ambiguous by 

the mere fact that the parties do not agree upon the proper 

construction.

Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 430 A.2d 328, 330 

(Pa. Cmwlth. 1981) (quoting 8 P.L.E. CONTRACTS §146 (1971)) (emphasis added). The parties 

do not argue that the Easement is ambiguous. Upon review, we agree that the Easement is not 

ambiguous. 
32

WHEREAS, the [Baughman Farm] is in Charlestown 

Township, which is noted for its scenic beauty and historic 

values; and

WHEREAS, all the buildings on the [Baughman Farm] are 

on the National Register of Historic Places and are part 

of the Charlestown National Historic District; and

WHEREAS, one of such buildings is an historic water[-]

powered mill, first used as a fulling mill and later a grist

and cider mill and the dwelling house on the 

[Baughman Farm] is a classic example of Victorian 

architecture[.]

Easement at 2-3 (emphasis added); R.R. at 1298a-99a.

The Easement describes the Grantor-Declarant’s desire to preserve the 

“agricultural, historic, scenic and relatively natural state of the [Baughman Farm] 

and further desires to conserve and protect the scenic nature of the [Baughman 

Farm].” Easement at 4; R.R. at 1301a. The Grantor-Declarant also expressed his 

desire to preserve the “surrounding lands from soil erosion, water pollution, natural 

disruptions, visual intrusion and other occurrences which might interfere with the 

beauty and unique character of the [Baughman Farm] as it exists in its relatively 

natural, scenic, historic and agricultural state . . . .” Easement at 4; R.R. at 1300a. 

The Easement provides the following particulars: 

I. Water and Water Supply

II. Scenic Enjoyment of the General Public

The [Baughman Farm] is in full view from several well[-

]traveled public roads one of which passes through it and 

bisects it and the others adjoin it or pass near it. The views 

from these public roads and from the lands open to the 

public which adjoin or lie near the [Baughman Farm] give 

fine panoramas across the gently sloping fields, meadows 

and woodlands of the [Baughman Farm], across the 
33

Pickering Creek and looking upward across the lowlands 

and rising slopes to wooded ridges on the north, east and 

south of the [Baughman Farm] which are strong features 

of the local landscape. From all directions, the prospect is 

scenic and beautiful. In addition, the historic buildings on 

the [Baughman Farm] are most attractive examples of 19th 

century architecture of both wooden and stone 

construction. 

III. Protection of the Natural Habitat or Ecosystem of 

Wildlife, Plants and Fish

(a) Wooded Area . . . .

(b) Wildlife. . . .

(c) Fish Life. . . .

(d) The fields and pastures also provide feed for 

animals and birds and a relatively natural habitat. 

IV. Public Recreation and Education

Pickering Creek affords recreational fishing to the 

general public. Members of the public driving on 

the public roads can get a charming view of a 19th 

century farm setting. 

V. Preservation of Farmland

. . .

VI. County Planning for Open Space and Recreation

Easement at 5-7 (emphasis in original); R.R. at 1302a-04a. 

The stated purpose of the Easement is: 

preserving the beauty and unique character of the 

[Baughman Farm], and its environs as they exist in their 

historic, scenic, agricultural and relatively natural state, 

subject to the qualifications hereinafter set forth, and of 

conserving and protecting the [Baughman Farm] and 

surrounding lands from any natural disruptions or other 

occurrences which might interfere with the same,

including, without limitation, soil erosion, water pollution
34

and visual disruptions or intrusions in or upon the general 

scene as viewed from the roads which pass nearby or run 

through the [Baughman Farm], or from surrounding 

public and protected areas. 

Easement at 10 (emphasis added); R.R. at 1307a. In order to accomplish this intent, 

the Grantor-Declarant agreed that the Baughman Farm “shall remain in its present 

relatively natural and scenic state subject to the qualifications hereinafter mentioned, 

and shall not be the subject of residential (except as hereinafter provided), industrial 

or commercial development (except farming).” Easement at 10 (emphasis added); 

R.R. at 1307a. 

In furtherance thereof, Grantor-Declarant imposed the following 

restrictions:

A. No industrial or commercial activities, with the 

exception of farming, or the operation of the aforesaid 

mill, shall be conducted or permitted on the [Baughman 

Farm]; 

B. No new or additional buildings or structures (as 

hereinafter defined) shall be built and maintained on the 

[Baughman Farm]. 

. . .

D. No signs, billboards or outdoor advertising structure 

shall be displayed on the [Baughman Farm] other than one 

sign not exceeding four feet by six feet for [limited 

enumerated purposes] . . . .

E. There shall be no depositing or dumping of solid or 

liquid refuse, waste or junk upon the [Baughman Farm], 

excepting effluent from buildings and structures permitted 

hereby . . . .
35

Easement at 12-13 (emphasis added); R.R. at 1309a-10a. Section C of the Easement 

defined the following terms: 

(1) “Farming” shall include the commercial production of 

any and all plant and animal products, including Christmas 

trees, and the breeding, raising, using, maintaining or sale 

of any livestock including horses, mules and donkeys.

(2) “Building” and “structure” shall include the ordinary 

usage of the words[,] as well as asphalt or concrete roads, 

driveways and parking lots, mobile homes, (meaning 

transportable dwellings intended for permanent or semipermanent occupancy or office or place of assembly, but 

not including recreational trailers), pipelines, drainage 

swales, poles, or any other facilities normally used in 

supplying utilities or removing effluent or surface water; 

provided, however, that the restrictions in this [Easement] 

as to buildings and structures shall not apply to structures 

or facilities for the use or benefit of the general public or a 

portion thereof other than the Grantor-Declarant, Trust, 

and their or its respective heirs, devisees, executors, 

administrators, successors or assigns or any person 

holding by, through or under them or any of them, which 

structures or facilities are acquired or constructed by the

United States, the Commonwealth of Pennsylvania or any

political subdivision or municipality thereof, or any other 

public agency having or performing governmental 

functions, or by any private or public corporation having 

or using the power of eminent domain whether such 

acquisition or construction shall be made under such 

power or by private treaty, other contract, or otherwise. 

Easement at 11-12; R.R. at 1308a-09a.

The parties to the Easement agreed that “the following uses and 

practices of and on the [Baughman Farm], though not an exhaustive recital of 

consistent uses and practices,” are permitted: 

(a) To pasture and graze livestock and to continue 

agricultural activity on the [Baughman Farm] . . . [;]
36

(b) Subject to sub-paragraph (a) above, to institute and 

carry on any agricultural activity . . . [;]

(c) To develop and maintain those water resources on 

the [Baughman Farm] . . . [;] [and]

(d) Subject to all the limitations stated elsewhere in this 

[Easement,] to maintain and repair fences, buildings and 

other improvements on the [Baughman Farm] and to 

place upon the [Baughman Farm] those additional fences, 

buildings and other improvements as may be necessary for 

agricultural purposes, all in consonance with Paragraphs 

C [(definition of “farming,” “building” and “structure”)] 

and D above [(advertising)][.] 

Easement at 13-14 (emphasis added); R.R. at 1310a-11a. 

Finally, the Easement reserved certain rights in the Grantor-Declarant, 

its servants, successors or assignees. Specifically,

I. Nothing herein shall be construed as a grant to the 

general public or to a person or persons other than Grantee, 

its servants, successors or assigns or its duly authorized 

agents, of the right to enter upon the [Baughman Farm].

Grantor-Declarant reserves unto himself and his 

successors in title to the [Baughman Farm], all rights, 

privileges, powers and immunities in respect to the 

[Baughman Farm], including, without limitation, the right 

of exclusive possession and enjoyment subject only to the 

restrictions and easements set forth in, and the terms and 

covenants of, this Grant and Declaration. 

Easement at 15 (emphasis added); R.R. at 1312a.

c. Location

Although the Easement did not contemplate the destruction of the 

Victorian House, it did account for the maintenance and repair of buildings. 

Easement at 14; R.R. at 1311a. The parties agree that this language embraced the 
37

right to replace the Victorian House on the Baughman Farm, but the question 

remains where the new house may be built. 

Applying the foregoing principles of construction and based on our 

review of the Easement, we discern no restriction, either directly or by inference, 

limiting the location for a Replacement House to the site of the former Victorian 

House. The Easement identifies only two buildings – the Victorian House and the 

Mill. When the Easement was executed, one additional building existed on the 

Baughman Farm, but it was not identified by name in the Easement.19 Notably, the 

Easement does not identify the locations of any of the buildings on the Baughman 

Farm by “words, plans, drawings, or otherwise.” Trial Court Op., 7/19/16, at 17. 

As the trial court found, “[t]he Easement was not greatly concerned with the 

buildings on the farm.” Id.

While the Easement clearly restricts additional dwellings, it does not 

restrict the addition of all new buildings. Indeed, the Easement permits the addition 

of “fences, buildings and other improvements as may be necessary for agricultural 

purposes.” Easement at 14 (emphasis added); R.R. at 1311a. This would include a 

barn to house livestock or store hay, an equipment shed, a grain silo, a greenhouse, 

a chicken coop, or any myriad of agricultural buildings. The Easement does not 

direct or expressly restrict where any of the agricultural buildings or improvements

may be placed on the Baughman Farm. The Easement merely provides that the 

erection of such buildings are “subject to all limitations stated elsewhere” and must 

be “in consonance” of paragraphs C (definitions of “farming,” “building” and 

“structure”) and D (advertising) of the Easement. Easement at 13-14; R.R. at 1310a19 The additional building is a stone and wood barn located on the Property, which the 

Naylors have since restored. R.R. at 1860a-64a. 
38

11a. Such limitations include protecting water, soil, natural habitats and ecosystems; 

preserving the public’s scenic enjoyment; maintaining open space; preserving 

farmland; and protecting the relatively natural state of the Baughman Farm. We 

conclude that the same limitations apply to the location of the Replacement House. 

Such limitations do not restrict the location of a Replacement House to the exact 

situs of the Victorian House. Consequently, the exact location of the Victorian 

House is immaterial. See Pyeritz, 956 A.2d at 1079.

While we understand the Trust’s concerns that some locations may be 

less harmonious with the Easement’s objectives than others, the Trust reviewed two 

proposed locations submitted by the Naylors to build the Replacement House.20 

According to the record, the Trust acknowledged that the proposed alternate 

locations were sited sensitively to preserve the historic nature of the Baughman Farm 

consistent with the Easement’s servitude.21 See R.R. at 267a, 349a, 474a-75a, 2087a20 The Naylors have expressed the desire to have the building reservation sited sensitively 

to preserve the historic nature of the Baughman Farm, its viewsheds and best pasturelands. R.R. 

at 1871, 1887a. Some locations were unsuitable because of natural impediments such as wetlands, 

steep slopes and trees. R.R. at 267a-68a. Other locations were eliminated because of the Naylors’ 

desire to preserve the best pastureland for grazing livestock, which presently include Scottish 

Highland cows. R.R. at 1859a, 1867a, 1879a-80a. 

21 Mr. Naylor testified regarding both sites. Mr. Naylor preferred one site over the other 

and explained his preference. The preferred site is close to the restored barn, which “fits in more 

with a farm style. A farmer wouldn’t build his house, you know, 1,000 feet away from the barn. 

He would build it closer to the barn.” R.R. at 1879a. Mr. Naylor uses the barn to provide protection 

for his cows in the winter months. R.R. at 1860a. At the preferred location, “the driveway is 

already cut by the barn, so it’s easy to take that driveway up the hill and the driveway wouldn’t 

necessarily have to be windy like it’s shown on the map. It could be straight and take up much 

less pastureland.” R.R. at 1879a-80a. In addition, this location would preserve the best pastureland 

for grazing livestock. R.R. at 1881a. The preferred site has limited views from Church Road 

because of existing foliage and the Naylors propose to plant trees to obscure the Replacement

House and minimize any visual intrusion from the Charlestown Road view. R.R. at 1880a. This 

location also does not contemplate the removal of any existing trees. Id. 
39

88a; see also 1869a-71a. Because the Trust’s determination regarding the suitability 

of two proffered locations is not contrary to the Easement’s plain language, the trial 

court did not err in determining that the Trust is estopped from challenging the 

suitability of these locations. 

4. Right to Rebuild Extinguished

Notwithstanding, the Trust argues that the right to rebuild a 

Replacement House was conveyed away when the Baughman Farm was subdivided

into the Property and Mill Lot. Consequently, the Trust maintains that the right to 

rebuild on the Property was completely extinguished and cannot be resurrected. 

“[T]he grantor of a conservation easement retains ownership of the 

servient land and may use the property for any purpose not inconsistent with the 

servitude.” Ephrata Area School District v. County of Lancaster, 886 A.2d 1169, 

1177 (Pa. Cmwlth. 2005), rev’d on other grounds, 938 A.2d 264 (Pa. 2007). The 

Restatement (Third) of Property, Servitudes §4.9 (American Law Institute 2000) 

states: “except as limited by the terms of the servitude . . . the holder of the servient 

estate is entitled to make any use of the servient estate that does not unreasonably 

interfere with enjoyment of the servitude.”

In the Easement, the Grantor-Declarant reserved unto himself and his 

successors in title to the Baughman Farm:

[A]ll rights, privileges, powers and immunities in respect 

to the [Baughman Farm], including, without limitation, the 

right of exclusive possession and enjoyment subject only 

to the restrictions and easements set forth in, and the terms 

and covenants of, this [Easement]. 
40

Easement at 15 (emphasis added); R.R. at 1312a. The right to possess and enjoy, 

without limitation, clearly embraces the right to reside and dwell upon the land and 

to cultivate the same. Such use is not inconsistent with the servitude of the 

Easement. When Bartschi conveyed the Baughman Farm to the Foundation, the 

Foundation became the successor in title to the Baughman Farm and the holder of 

these reserved rights. 

When the Foundation conveyed the Mill Lot to the Township for 

nominal consideration, it conveyed “all improvements located thereon, including, 

but not limited to the structure known as the ‘[] Mill.’” R.R. at 58a. In return, the 

Township agreed “not to construct any new structure on the [Mill Lot] except in 

connection with utilities, water pipes, driveway or parking lot, fences, restroom 

facilities, or any structures physically connected to [t]he Mill, such as a bathroom.” 

R.R. at 59a. This did not preclude the Township “from doing any construction 

related to any renovation or repair of any part of [t]he Mill.” Id. The conveyance 

gave the Township the right to restore the Mill and erect any necessary 

improvements limited to the Mill restoration, but prohibited the Township from 

otherwise constructing any new structures. 

The subdivision and conveyance of the Mill Lot did not transfer or 

otherwise diminish the “rights, privileges, powers and immunities”

22 otherwise held 

by the Foundation with respect to the remainder of the Baughman Farm, i.e., the 

Property, including the right to rebuild. Even if the Victorian House had been 

situated on the Mill Lot, the Foundation did not convey the right to rebuild the 

dwelling to the Township, but rather prohibited the Township from constructing any 

new structures. There is simply no evidentiary or legal support for the Trust’s 

22 Easement at 15; R.R. at 1312a.
41

position that the Foundation relinquished or extinguished its residual right under the 

Easement. Therefore, the right to rebuild a single-family dwelling remained with 

the Foundation as the owner of the remainder of the Baughman Farm – the Property. 

When the Foundation conveyed the Property to the Naylors, it 

transferred “all rights, privileges, powers and immunities” with it. Easement at 15; 

R.R. at 1312a. The Naylors, as the current successors in interest under the Easement

are entitled to possess and enjoy the Property, which includes the right to build the 

Replacement House.

23

 Thus, we conclude that the trial court did not err in 

determining that the right to rebuild remained with owners of the Property and was 

not conveyed or otherwise extinguished with the creation and conveyance of the Mill 

Lot. 

5. Style, Size, Configuration & Construction of Replacement House

Next, the Trust argues that the trial court erred by allowing the Naylors 

to construct a Replacement House in the design, style and size of their choosing 

23 Allowing the Naylors to construct a Replacement House on their Property is the most 

reasonable and logical interpretation of the Easement “bearing in mind the objects manifestly to 

be accomplished.” Unit Vending, 190 A.2d at 300. While the preservation of open space and 

scenic views is certainly an important goal under the Easement, the retention of agriculture and 

farmland is just as important. See Easement at 4, 9; R.R. at 1301a, 1306a. The Easement 

recognizes that the Property “has been farmed since colonial times and still is farmed.” Easement 

at 1; R.R. at 1298a. By allowing the erection of a Replacement House upon the Property, the 

Easement is served by ensuring that the Property will continue into perpetuity as a family 

farmstead complete with a house and agricultural buildings surrounding it. Just as buildings are 

necessary to house livestock, farm equipment and feed, the replacement of a dwelling is necessary 

to house the stewards of this Property, who will maintain and oversee the agricultural activities 

taking place thereon. To conclude otherwise and deprive the Naylors and future stewards of the 

Property the ability to live on the Property would deprive them of the very “right of exclusive 

possession and enjoyment,” which the Grantor-Declarant expressly reserved “unto himself and his 

successors in title to the Property.” Easement at 15; R.R. at 1312a. 
42

along with all the attendant accoutrements as other single-family dwellings including 

necessary infrastructure such as “septic, stormwater management,” as well as 

associated residential improvements including “a detached garage, driveway, tennis 

court, swimming pool, shed or equipment enclosure,” subject only to the limits of 

the Township’s Zoning Ordinance and Building Code. Trial Court Order, 1/12/18, 

at 1. The Trust insists that the size of the Replacement Home must be limited to the 

footprint of the Victorian House. According to the Trust, the Naylors’ proposed 

construction constitutes a new building supported by new structures in violation of

the Easement.

Just as there are no restrictions regarding the location of the 

Replacement House under the Easement, there are no express or implied restrictions 

regarding its style, size, configuration or construction. Although the Easement notes 

that the dwelling house was a “classic example of Victorian architecture,” it also

recognizes that the Baughman Farm has “been farmed since colonial times.” 

Easement at 1, 3; R.R. at 1298a, 1300a. The Easement describes the “historic 

buildings on the [Baughman Farm]” as the “most attractive examples of 19th century 

architecture of both wooden and stone construction.” Easement at 6; R.R. at 1302a. 

Beyond that, the Easement does not provide any other description regarding the 

configuration, such as how many stories, square footage, porch or portico, etc. It 

does not describe the style of Victorian House, such as the Second Empire, Gothic 

Revival, Queen Anne, Italianate, etc. There is also no indication regarding the style 

or configuration of the other buildings, such as the Mill or the barn. 

As the trial court found: “The Easement does not preserve historic 

structures. Mr. Bartschi did not identify as a conservation value the historic aspects 
43

of the buildings on the Property and the Trust has acknowledged as much.” Trial 

Court Op., 1/12/18, at 15. 

While the Easement clearly permits buildings necessary for agriculture, 

it provides no guidance or limitations as to their style, size, configuration or 

construction. The Easement could have easily noted that all agricultural buildings 

must be faithful to the Victorian or Colonial period, but it did not. 

Whether the building is a new agricultural building or a replacement of 

an existing structure, the Easement contains no restrictions as to the style, size or 

configuration or construction. Therefore, these decisions are reserved to the 

Grantor-Declarant and his successors in title in the Easement. 

As the trial court found, a single-family detached dwelling is permitted 

to have all the attendant accessory improvements as other single-family dwellings

including necessary infrastructure such as “septic, stormwater management,” as well

as associated residential improvements including “a detached garage, driveway, 

tennis court, swimming pool, shed or equipment enclosure,” subject only to the 

limits of the Township’s Zoning Ordinance. Trial Court Order, 1/12/18, at 1. These 

are not “new or additional buildings or structures,” but are part of the retained right 

to build a single-family residence permitted under the Easement. 

Upon review, the trial court did not err in determining that the 

Replacement House is not required to replicate the Victorian House and that “the 

choice of design or style and the dimensions of the house belongs to the Naylors.”

24

 

24 During the proceedings, Township Supervisor testified regarding his opposition to and 

fear of “a big McMansion in the middle of the field” or “some ugly, modern skyscraper.” R.R. at 

374a, 427a. Such fears are largely unfounded, as even Township Supervisor admitted. See R.R. 

at 374a. Although it is unclear exactly what the Naylors propose to build on the Property, they 

have demonstrated a deep appreciation and respect for the historic and cultural significance of the 

(Footnote continued on next page...)
44

Trial Court Op., 1/12/18, at 15. To conclude otherwise would interfere with the 

retained right to possess and enjoy the Property and would improperly fashion 

restrictions not otherwise expressed or intended in the Easement. See Morris v. 

South Coventry Township Board of Supervisors, 836 A.2d 1015, 1018-19 (Pa. 

Cmwlth. 2003) (rejecting a party’s attempt “to read into [a] [z]oning [o]rdinance a 

restriction . . . that was never expressed nor intended”).25

6. Trust & Township Approval

Finally, the Trust argues that the trial court erred in determining that the 

Easement does not require the Trust’s or Township’s pre-approval with regard to the 

location, development plan and construction of the Replacement House. The 

proposed location and proposed development run afoul of the preservation purposes 

of the Easement. The Replacement House must be located without disturbance to 

the “viewsheds” and the “scenic view” of the Property. Trust’s Brief at 42. Because 

the Property is in the historic district, the Replacement House must be designed in 

keeping with the existing historic structures. Therefore, the Trust and the Township 

must be given authority to approve any development in advance to ensure that it does 

not run afoul of the preservation purposes of the Easement. 

Baughman Farm and surrounding area. The Naylors sensitively renovated the neighboring 

eighteenth century house (Job Harvey’s house), in which they live. See R.R. at 176a, 1049a-50a, 

2507a. The Naylors also restored the historic barn on the Property. R.R. at 1860a-64a.

25 We also note that such restrictions were not applied to the Mill Lot. The Agreement of 

Sale of the Mill Lot permitted the Township to construct structures “in connection with utilities, 

water pipes, driveway or parking lot, fences, restroom facilities or any structures physically 

connected to [t]he Mill, such as a bathroom” in conjunction with the Mill’s restoration. R.R. at 

60a. 
45

The Trust also contends that the Naylors, by previously seeking the 

Trust’s approval as to locations for the Replacement House and agreement to amend 

the Easement, are estopped from arguing otherwise in this appeal. The trial court 

erred by not giving their estoppel argument adequate consideration. 

Contrary to the Trust’s arguments, the Easement does not give the Trust 

or the Township any authority to approve or disapprove any improvements to the 

Baughman Farm. Rather, the Easement bestows the Trust with the right to enforce 

the Easement by virtue of the terms of the Easement itself. The Easement does not 

give the Township any enforcement rights. Specifically, the Easement provides: 

H. [The Trust] shall have the right to enter upon the 

[Baughman Farm] set forth herein to inspect for violations 

of the aforesaid provisions [of the Easement] to remove or 

eliminate any such violations; and to perform such 

restoration as may be deemed necessary to restore the land 

after removal of said violations. [The Trust] shall have the 

right to seek any legal action or remedy at law or in equity 

to enforce the provisions set forth herein and granted 

hereunder, including, without limitations, by the remedies 

of specific performance of injunction.

I. Nothing herein shall be construed as a grant to the

general public or to a person or persons other than [the 

Trust], its servants, successors or assigns or its duly 

authorized agents, of the right to enter upon the Property. 

. . . .

Easement at 14-15; R.R. at 1310a-11a. 

Accordingly, the Trust may enter upon the Property to inspect for 

violations of the Easement’s requirements and may file suit in order to enforce the 

Easement’s terms. Nowhere in the Easement’s language is the Trust vested with a 

preemptive gatekeeping role, a fact that renders meritless the Trust’s argument that 

its assent is necessary for a residence to be constructed on the former Baughman 
46

Farm.26 Rather, its duty is to monitor for violations and then seek legal remedies 

should what was once the Baughman Farm be developed in a manner the Trust 

believes violates the Easement. Thus, the trial court properly concluded that the 

Trust does not have power under the terms of the Easement to approve or disapprove 

of the Naylors’ Replacement House plans. 

As for the Trust’s estoppel argument, the doctrine of estoppel 

“recognizes that an informal promise implied by one’s words, deeds, or 

representations[,] which leads another to rely justifiably thereon to his own injury or 

detriment, may be enforced in equity. The two essential elements of equitable 

estoppel are inducement and justifiable reliance on that inducement.” Belleville v. 

David Cutler Group, Inc., 118 A.3d 1184, 1199 (Pa. Cmwlth. 2015) (citations 

omitted). Further, 

[t]he inducement may be words or conduct and the acts 

that are induced may be by commission or forbearance 

provided that a change in condition results causing 

disadvantage to the one induced. More important, the laws 

require that . . . [t]he representation or conduct must of 

itself have been sufficient to warrant the action of the party 

claiming the estoppel.

Id. (quoting Zitelli v. Dermatology Education & Research Foundation, 633 A.2d 

134, 139 (Pa. 1993)) (emphasis omitted). Equitable estoppel “arises when ‘a party, 

by acts or representations intentionally or through culpable negligence, induces 

another to believe that certain facts exist and such other relies and acts on such belief, 

so that the latter will be prejudiced if the former is permitted to deny the existence 

of such facts.’” Kuharchik Construction, Inc. v. Commonwealth, 236 A.3d 122, 138 

26 We note that the Naylors restored the existing barn on the Property without any input or 

pre-approval from the Trust or Township. See R.R. at 1207a, 1863a.
47

(Pa. Cmwlth. 2020) (quoting Department of Revenue, Bureau of Sales and Use Tax 

v. King Crown Corp., 415 A.2d 927, 930 (Pa. Cmwlth. 1980)).

The fact that the Naylors previously sought the Trust’s approval of 

locations and its agreement to amend the Easement does not trigger the doctrine of 

equitable estoppel. The Naylors took these steps in an effort to reach an amicable 

resolution with the Trust and to avoid the delay and expense of protracted litigation. 

Obviously, their efforts failed. However, in no way did their actions constitute a 

legally binding admission or estoppel that the Trust has pre-approval authority. The 

Trust has not asserted any prejudice. As the trial court aptly opined: “Obtaining 

such approval before building is merely expedient, as doing so would avert a later 

claim from the Trust that the location is inconsistent with the servitude.” Trial Court 

Op., 1/12/18, at 14. To conclude otherwise would deter parties from attempting to

settle their disputes without litigation. See Hydrojet Services, Inc. v. Reading Area 

Water Authority, 220 A.3d 1199, 1204 (Pa. Cmwlth. 2019) (strong judicial policy 

favoring the settlement of legal disputes). Thus, the trial court did not err in this 

regard. 

IV. Conclusion

For these reasons, we conclude that the trial court did not err in granting 

partial summary judgment in favor of the Naylors and declaring that the Naylors

may construct a Replacement House on the Property at a location, style and 

configuration of their choosing so long as it does not violate the servitude of 

Easement, and that prior approval from the Trust or Township is not required under 

the Easement. 
48

Accordingly, we affirm. 

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and :

Suzanne Naylor, h/w :

:

 v. : No. 659 C.D. 2018

: 

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne : 

Naylor, h/w :

:

v. : No. 707 C.D. 2018

: 

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. :

O R D E R

AND NOW, this 7

th day of January, 2021, the judgment entered by the 

Court of Common Pleas of Chester County in favor of husband and wife Russell 

Naylor and Suzanne Naylor, on April 19, 2018, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and Suzanne Naylor, :

h/w :

:

v. : No. 659 C.D. 2018

:

Board of Supervisors of Charlestown :

Township and French and Pickering :

Creeks Conservation Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne Naylor, :

h/w :

:

v. : No. 707 C.D. 2018

: 

Board of Supervisors of Charlestown :

Township and French and Pickering :

Creeks Conservation Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. : ARGUED: November 13, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION 

BY JUDGE CEISLER FILED: January 7, 2021

While I agree with much of the majority’s reasoned opinion in this matter, I 

vigorously dissent from their conclusion that the at-issue Easement does not bar 

Russell and Suzanne Naylor from building their desired new residence. 
EC - 2

When ruling upon a motion for summary judgment, the trial court must 

resolve all doubts against the movant, examining the record in the light most 

favorable to the non-moving party, and “may grant summary judgment only where 

the right to such a judgment is clear and free from doubt.” Fine v. Checcio, 870 

A.2d 850, 857 (Pa. 2005). Our review of an order granting summary judgment is 

limited to determining whether the trial court’s decision constituted an abuse of 

discretion or an error of law. Salerno v. LaBarr, 632 A.2d 1002, 1003 (Pa. Cmwlth. 

1993).

The General Assembly has expressly declared that the purpose of the 

Conservation and Preservation Easements Act (Easements Act)1is to “recognize[] 

the importance and significant public and economic benefit of conservation and 

preservation easements in its ongoing efforts to protect, conserve or manage the use 

of the natural, historic, agricultural, open space and scenic resources of this 

Commonwealth.” Section 2 of the Easements Act, 32 P.S. § 5052. In keeping with 

this statement, the General Assembly has instructed the courts of this 

Commonwealth to interpret the language of conservation easements as follows: 

“Any general rule of construction to the contrary notwithstanding, conservation or 

preservation easements shall be liberally construed in favor of the grants contained 

therein to effect the purposes of those easements and the policy and purpose of [the 

Easements Act].” Section 5(c)(2) of the Easements Act, 32 P.S. § 5055(c)(2). This 

direction effectively modifies the general rule 

that the same rules of construction that apply to contracts 

are applicable in the construction of easement grants. . . . 

In ascertaining the scope of an easement, the intention of 

the parties must be advanced. . . . Such intention of the 

parties is determined by a fair interpretation and 

construction of the grant and may be shown by the 

1 Act of June 22, 2001, P.L. 390, 32 P.S. §§ 5051–5059.
EC - 3

words employed construed with reference to the 

attending circumstances known to the parties at the 

time the grant was made.

Zettlemoyer v. Transcon. Gas Pipeline Corp., 657 A.2d 920, 924 (Pa. 1995) (internal 

citations and some punctuation omitted, emphasis added). Consequentially, the 

Easements Act essentially requires courts to construe conservation easements in a 

far broader manner than other types of easements, in order to maximize the reach of 

their protective powers. Even so, when dealing with a conservation easement that 

went into force prior to the Easements Act’s June 22, 2001 effective date, such as 

the one central to this matter, the Easements Act may not be retroactively applied 

thereto where doing so “contravenes the Constitution of the United States or laws of 

the United States or of this Commonwealth.” Section 7(b) of the Easements Act, 32 

P.S. § 5057(b). Thus, when considering such pre-Easements Act conservation 

easements, the plain meaning of the words used therein remains our touchstone in 

determining the purpose animating such easements.

Turning to the Easement at issue in this matter, it contains a number of 

sections that pertain to the state of the Baughman Farm, the Victorian House, and 

the owner’s right to construct buildings. First, there are a group of prefatory whereas 

clauses, several of which are pertinent to the matter before us:

WHEREAS, the Pickering Valley is still rural and 

relatively free from over-development and commercial or 

industrial intrusion and is of high scenic quality;

WHEREAS, the [Baughman Farm] is partly in open tilled 

fields and pasture, partly wooded, partly grown up with 

trees and bushes which create fine wildlife and bird cover, 

with topography including some floodplain and some high 

water table or wet areas; and 

. . . .

WHEREAS, the [Baughman Farm] lies in the area 

recommended for preservation in the Report [titled 

“Pickering Creek Valley: A Preservation Opportunity”] as 
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a Critical Environmental Preservation District, high in 

historic and cultural values, and also designated in the 

Report as possessing high scenic quality, and within a 

Scenic Corridor as designated by the Report; and

WHEREAS, the [Baughman Farm] is in Charlestown 

Township, which is noted for its scenic beauty and historic 

values; and

WHEREAS, all the buildings on the [Baughman Farm] 

are on the National Register of Historic Places and are 

part of the Charlestown National Historic District; and

WHEREAS, one of each buildings is an historic water[-

] powered mill, first used as a fulling mill and later a 

grist and cider mill and the dwelling house on the 

[Baughman Farm] is a classic example of Victorian 

architecture; and

. . . .

WHEREAS, Grantor-Declarant [Mr. Bartschi] is desirous 

of preserving the agricultural, historic, scenic and 

relatively natural state of the [Baughman Farm] and 

further desires to conserve and protect the [Baughman 

Farm] and surrounding lands from soil erosion, water 

pollution, natural disruptions, visual intrusions and other 

occurrences which might interfere with the beauty and 

unique character of the [Baughman Farm] as it exists in its 

relatively natural, scenic, historic and agricultural state; 

and specifically to protect it and its environs and the lands 

and streams adjacent to it in the following 

[“]particulars[”.]

Open Space Easement in Gross in Perpetuity and Declaration of Restrictive 

Covenants (Easement) at 2-4 (emphasis added); Reproduced Record (R.R.) at 30a32a.

Of relevance here are the following “particulars”:

II. Scenic Enjoyment of the General Public

The [Baughman Farm] is in full view from several 

well[-]traveled public roads one of which passes 

through it and bisects it and the others adjoin it or 

pass near it. The views from these public roads and 

from the lands open to the public which adjoin or lie 
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near the [Baughman Farm] give fine panoramas 

across the gently sloping fields, meadows and 

woodlands of the [Baughman Farm], across the 

Pickering Creek and looking upward across the 

lowlands and rising slopes to wooded ridges on the 

north, east and south of the [Baughman Farm] 

which are strong features of the local landscape. 

From all directions, the prospect is scenic and 

beautiful. In addition, the historic buildings on the 

[Baughman Farm] are most attractive examples of 

19th century architecture of both wooden and stone 

construction.

III. Protection of the Natural Habitat or Ecosystem of 

Wildlife, Plants and Fish

(a) Wooded Area - Conservation or the wooded area 

in its natural state including both trees and the 

ecologically important varied undergrowth and 

plant life; as well as

(b) Wildlife - Protection of the wildlife of the area 

including deer, raccoon, foxes, other small animals, 

and bird life, both migratory and local; as well as

(c) Fish Life - Protection of fish in the Pickering 

[Creek] together with such aquatic or semi-aquatic 

mammals as muskrat and mink, and the many 

varieties of insect life which are indicative of the 

liminalogical health of the streams and which 

support the fish.

(d) The fields and pastures also provide feed for 

animals and birds and a relatively natural habitat.

IV. Public Recreation and Education

Pickering Creek affords recreational fishing to the 

general public. Members of the public driving on 

the public roads can get a charming view of a 19th 

century farm setting.

Easement at 5-7; R.R. at 33a-35a.

Later on in the Easement, Mr. Bartschi and French and Pickering Creeks 

Conservation Trust, Inc., stated that it is focused upon
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preserving the beauty and unique character of the 

[Baughman Farm], and its environs as they exist in 

their historic, scenic, agricultural and relatively 

natural state, subject to the qualifications hereinafter set 

forth, and . . . conserving and protecting the [Baughman 

Farm] and surrounding lands from any natural disruptions 

or other occurrences which might interfere with the same, 

including, without limitation, soil erosion, water pollution 

and visual disruptions or intrusions in or upon the general 

scene as viewed from the roads which pass nearby or 

run through the [Baughman Farm], or from 

surrounding public and protected areas.

Easement at 10 (emphasis added); R.R. at 38a. To that end, Mr. Bartschi “agree[d] 

that the Property shall remain in its present relatively natural and scenic state subject 

to the qualifications hereinafter mentioned, and shall not be the subject of residential 

(except as hereinafter provided), industrial or commercial development (except 

farming).” Easement at 10 (emphasis added); R.R. at 38a. These “qualifications” 

included, in relevant part:

A. No industrial or commercial activities, with the 

exception of farming, or the operation of the aforesaid 

mill, shall be conducted or permitted on the [Baughman 

Farm];

B. No new or additional buildings or structures (as 

hereinafter defined) shall be built and maintained on 

the [Baughman Farm].

C. For the purposes of this Grant and Declaration, the 

following definitions shall apply:

(1) “Farming” shall include the commercial 

production of any and all plant and animal products, 

including Christmas trees, and the breeding, raising, 

using, maintaining or sale of any livestock including 

horses, mules and donkeys.

(2) “Building” and “structure” shall include the 

ordinary usage of the words[,] as well as asphalt 

or concrete roads, driveways and parking lots, 

mobile homes, (meaning transportable dwellings 

intended for permanent or semi-permanent 
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occupancy or office or place of assembly, but not 

including recreational trailers), pipelines, drainage 

swales, poles, or any other facilities normally used 

in supplying utilities or removing effluent or surface 

water; provided, however, that the restrictions in 

this [Easement] as to buildings and structures 

shall not apply to structures or facilities for the 

use or benefit of the general public or a portion 

thereof other than the Grantor-Declarant [Mr.

Bartschi], Trust, and their or its respective heirs, 

devisees, executors, administrators, successors or 

assigns or any person holding by, through or 

under them or any of them, which structures or 

facilities are acquired or constructed by the United 

States, the Commonwealth of Pennsylvania or any 

political subdivision or municipality thereof, or any 

other public agency having or performing 

governmental functions, or by any private or public 

corporation having or using the power of eminent 

domain whether such acquisition or construction 

shall be made under such power or by private treaty, 

other contract, or otherwise.

D. No signs, billboards or outdoor advertising structure 

shall be displayed on the [Baughman Farm] other than one 

sign not exceeding four feet by six feet for each of the 

following purposes: (i) to state the name of the [Baughman 

Farm] and the name and address of the occupant, (ii) to 

advertise an activity, permitted under the provisions of this 

[Easement], and (iii) to advertise the property for sale or 

rental. Provided, however, that . . . sub-paragraph F shall 

not limit the right of [the Trust] to display on the 

[Baughman Farm], at its discretion, a small marker or sign 

evidencing its interest under this [Easement], provided the 

same is approved by Grantor-Declarant in writing.

. . . .

G. The parties hereto further covenant and agree that the 

following uses and practices of and on the [Baughman 

Farm], though not an exhaustive recital of consistent uses 

and practices, are consistent with their intentions and in 

consonance with this [Easement]:

. . . .
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(d) Subject to all the limitations stated elsewhere 

in this [Easement,] to maintain and repair 

fences, buildings and other improvements on the 

[Baughman Farm] and to place upon the 

[Baughman Farm] those additional fences, 

buildings and other improvements as may be 

necessary for agricultural purposes, all in 

consonance with Paragraphs C and D above[.]

Easement at 11-14 (emphasis added); R.R. at 39a-42a.

Several things are shown through this language. First, Mr. Bartschi wished to 

preserve the Baughman Farm as it existed at the time he signed the Easement with 

the Trust. Second, this desire encompasses the historical and scenic aspects of the 

Baughman Farm, including the Victorian House. Third, while the Easement does not 

allow new residences to be erected, it does permit maintenance and repair to be done 

on the Baughman Farm’s non-agricultural buildings. Fourth, the Easement’s 

development restrictions not only bound Mr. Bartschi, but are binding upon his 

successors-in-interest as well.

Therefore, given the unambiguous language of the Easement, it is evident the 

Court of Common Pleas of Chester County (Trial Court) erred in granting summary 

judgment to the Naylors, an error that the majority now compounds. Both the 

majority and the Trial Court have improperly ignored the Easement’s language

expressly barring the erection of new residential structures on the former Baughman 

Farm, a prohibition which clearly covers the Naylors’ desired future dwelling. The 

majority has given its blessing to the Trial Court’s erroneous interpretation of the 

Easement, thereby arming the Naylors with incredibly broad authority to erect a 

residence of any size and at any location on their Property, complete with any 

accoutrements they desire, “such as a detached garage, driveway, tennis court, 

swimming pool, shed and equipment enclosure, as well as septic, stormwater 

management, etc.” Trial Ct. Decision, 1/12/18, at 16-17. The Naylors’ ambitions, 
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thus unconstrained in spite of the Easement, will now be checked only by the 

strictures of the Township’s various ordinances. Such unfettered latitude flies in the 

face of Mr. Bartschi’s clear intent to preserve, in perpetuity, the Baughman Farm in 

substantially the same state as it existed at the time of the Easement’s signing, as 

well as his clear intent to radically limit any attempts at further residential 

development thereon.

The majority focuses on the lack of explicit language meticulously placing

limitations on the size, location, or appearance of a replacement to the Victorian 

House. Naylor v. Bd. Of Supervisors of Charlestown Twp., (Pa. Cmwlth. Nos. 659 

C.D. 2018 and 707 C.D. 2018, filed January 7, 2021) slip op. at 37-38, 42-43. This, 

however, misses the forest for the trees, given that the Naylors’ proposed home 

would very obviously constitute new residential development. Furthermore, there is 

no doubt that the Easement would bar the Naylors from building their desired house 

if the Victorian House had been allowed to deteriorate to a dilapidated shell; how 

then is it logical to find that the Naylors effectively have carte blanche to build a 

new house of any size at a different location because the Victorian House instead 

went up in flames and had its remains then bulldozed?

Contrary to the majority’s and the Trial Court’s conclusion, the Easement only 

permits a residence to be located upon the footprint of the original Victorian House, 

due to the combined effect of the Easement’s prohibition against the construction of 

new residences and its broad language regarding maintenance and repair; it does not

create a free-floating right to build a larger home elsewhere on the former Baughman 

Farm. In other words, the Easement’s overarching language is that the Victorian 

House may be rebuilt at its original location, but that is the extent of the leeway 

given by the Easement regarding residential use of the land which once constituted 

the Baughman Farm.
EC - 10

Furthermore, there is conflicting evidence in the record as to where exactly 

the Victorian House was located on the former Baughman Farm. At this point, it is 

not clear whether the Victorian House was entirely on the Naylor Property, entirely 

on the Mill Lot, or straddled the two. See, e.g., Notes of Testimony, 5/23/17, at 74-

75 (trial testimony of Pamela Brown); R.R. at 1298a-1336a (the Easement, pictures 

and maps of the Baughman Farm, agreements of sale for both the Mill Lot and 

Naylor Property, and related communications); Russell Naylor Dep. at 90-96; R.R. 

at 805a-11a. A remand is thus in order, so that the Trial Court can determine the 

Victorian House’s exact location and, by extension, whether the right to rebuild it 

was transferred to the Naylors when they purchased that part of the Baughman Farm 

from the Bartschi Foundation. The majority disregards this critical point as well.

Consequently, I concur in part with and dissent in part from the majority’s 

decision in this matter.

ELLEN CEISLER, Judge

Judge Cohn Jubelirer joins in this Concurring and Dissenting Opinion.