J-A23036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RODNEY D. ARDOLINO AND TAMMY L. 

ARDOLINO, HUSBAND AND WIFE, AND 

MARIGOLD MANAGEMENT, LLC,

A PENNSYLVANIA LIMITED LIABILITY 

COMPANY

IN THE SUPERIOR COURT

OF PENNSYLVANIA

v.

B.R. ASSOCIATES, A PENNSYLVANIA 

PARTNERSHIP AND DOLLAR BANK 

FEDERAL SAVINGS BANK

APPEAL OF: MARIGOLD MANAGEMENT, 

LLC No. 314 WDA 2018

Appeal from the Order entered November 2, 2017

In the Court of Common Pleas of Allegheny County

Civil Division at No: GD-15-017627

BEFORE: BOWES, J., SHOGAN, J., and STABILE, J. 

MEMORANDUM BY STABILE, J.: FILED JANUARY 7, 2019

Appellant, Marigold Management, LLC (“Marigold”),1 appeals from the 

November 2, 2017 order entered in the Court of Common Pleas of Allegheny 

____________________________________________

1 Although Rodney and Tammy Ardolino are listed as parties in the caption, 

they were dismissed from the action on March 7, 2016. Appellant, Marigold, 

is the sole Appellant.
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County, denying Marigold’s request for declaratory relief relating to an 

easement.2 As the trial court explained:

The case involves the right of Marigold to use an easement on a 

portion of [Appellee BR Associates’] real estate, known as and 

hereinafter referred to as Maple Lane. Maple Lane is adjacent and 

parallel to the boundary between Marigold’s property and 

[Appellee’s] property. The issues are whether a storm sewer 

inside the easement was contemplated by the Common Grantor[3]

at the time the easement was created and whether Marigold may 

run a sewer line across that easement and tie into a storm sewer 

installed by [Appellee]. 

Trial Court Rule 1925 Opinion, 5/4/18, at 2. 

In its declaratory judgment action, Marigold sought a declaration that it 

could run a sewer line across Appellee’s property and tie into Appellee’s sewer 

line. Following a September 13, 2017 bench trial, the trial court denied 

Marigold’s requested relief and granted Appellee’s counterclaim. The court 

“declare[d] that no easement exists for the benefit of [Marigold’s] property 

which includes a right to install a stormwater drainage line across Maple Lane.” 

Trial Court Decision, 11/2/17, at 5. Marigold sought post-trial relief, which 

____________________________________________

2 Appellant purports to appeal from the order of February 8, 2018, denying its 

post-trial motion. While a party must file post-trial motions to preserve claims 

the party wishes to raise on appeal, an appeal after disposition of the required 

post-trial motion is properly taken from the order of declaratory judgment, 

which is the final order. Peters v. Nat’l Interstate Ins. Co., 108 A.3d 38, 

41 n.2 (Pa. Super. 2014). We have amended the caption accordingly to reflect 

that this appeal is from the order entered November 2, 2017. See 42 

Pa.C.S.A. § 7532.

3 The “Common Grantor” is a reference to John F. Boyce and Grace A. Boyce, 

conveyors of a 1951 deed (the “Boyce Deed”) to Leroy J. Opferman and Helen 

M. Opferman. 
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the trial court denied on February 8, 2018. This timely appeal followed. Both 

Marigold and the trial court complied with Pa.R.A.P. 1925. 

Marigold asks us to consider five issues in this appeal:

I. Did the trial court err by finding as fact, contrary to the 

evidence presented at trial, the findings of fact contained in 

its decision at Findings of Fact No. 2, 4, 6, and that the 

parties agree that the controlling language is in the 1951 

deed from Boyce to Opferman, and that [Marigold’s] 

property has a drainage easement created the same time as 

the separate easement known as Maple Lane by the 

Common Grantor (Boyce), thereby eliminating necessity?

II. Did the trial court err by admitting evidence relating to 

stormwater conditions on [Appellee’s] property and prior 

incidents of flooding of [Appellee’s] property, over the 

objection of Marigold [] and considering such evidence in 

the decision?

III. Did the trial court err in ignoring the decision and 

precedential value, in attempting to distinguish PARC 

Holdings, Inc. v. Killian, 785 A.2d 106 (Pa. Super. 2001), 

from the within matter, while acknowledging the law, as set 

forth in PARC Holdings, quoting Dowgiel v. Reid, 59 A.2d 

115 (Pa. 1948), decided by the Pennsylvania Supreme 

Court, that provides that “an easement expressed in general 

terms may be used in any manner that is reasonably 

required for the complete and beneficial use of the dominant 

estate?” 

IV. Did the trial court err by determining that the PARC 

Holdings Court addressed easement by necessity, citing to 

New York Central Railroad Co. v. Yarian, 39 N.E.2d 604 

(Ind. 1942), and determining that no necessity existed, 

because “[Marigold] already has a drainage easement” 

when Marigold[’s] property is encumbered by an easement 

reserved to Boyce, Marigold[’s] predecessor in title?
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V. Did the trial court err by permitting the testimony of 

[Appellee’s] engineering expert, over the objection of 

Marigold [] beyond the scope of his expertise as an 

engineer?

Appellant’s Brief at 4-6 (some capitalization omitted and citation formats 

corrected).

With regard to declaratory judgment actions,

[o]ur scope and standard of review is well established. In Fred 

E. Young, Inc. v. Brush Mountain, 697 A.2d 984 (Pa. Super. 

1997), we noted:

When reviewing the decision of the trial court in a 

declaratory judgment action, our scope of review is narrow. 

O'Brien v. Nationwide Mutual Insurance Co., 455 Pa. 

Super. 568, 689 A.2d 254, 257 (1997). Consequently, we 

are limited to determining whether the trial court’s findings 

are supported by substantial evidence, whether an error of 

law was committed or whether the trial court abused its 

discretion, Walker v. Ehlinger, 544 Pa. 298, 300 n. 2, 676 

A.2d 213, 214 n. 2 (1996).

The test is not whether we would have reached the same 

result on the evidence presented, but whether the trial 

court’s conclusion can reasonably be drawn from the 

evidence. Where the trial court’s factual determinations are 

adequately supported by the evidence we may not 

substitute our judgment for that of the trial court. 

Clearfield Volunteer Fire Department v. BP Oil, 412 Pa. 

Super. 29, 602 A.2d 877, 879 (1992), appeal denied, 531 

Pa. 650, 613 A.2d 556 (1992) (citations omitted).

Id. at 987. Moreover, the

findings of the trial judge in a non-jury case must be given 

the same weight and effect on appeal as a verdict of a jury 

and will not be disturbed on appeal absent error of law or 

abuse of discretion. When this court reviews the findings of 

the trial judge, the evidence is viewed in the light most 

favorable to the victorious party below and all evidence and 
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proper inferences favorable to that party must be taken as 

true and all unfavorable inferences rejected.

Lane Enters. v. L.B. Foster Co., 700 A.2d 465, 470 (Pa. Super. 

1997) (citations omitted).

PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001). 

The easement language at issue originally appeared in the Boyce Deed. 

That deed conveyed a 1.097-acre parcel and included the following easement:

TOGETHER WITH the right of way over and across the within 

described Thirty (30) foot private street[4]for purposes of access 

to a public road[5]; together with a right of way in said Thirty (30) 

foot street to lay, repair and maintain a water line to the within 

described property from the main water line, said line to be buried 

at least Three (3) feet below the surface and to be located over 

the Northeasterly side of said private street. 

EXCEPTING and reserving to the grantors herein, their heirs and 

assigns a right of way Five (5) feet wide along the present water 

line on the Easterly side of said line and along the Westerly side 

of property herein described for the purpose of laying, maintaining 

and repairing a drainage pipe line and gas line, the same to be 

buried at least Three (3) feet below the surface from the two lots 

still owned by the grantors herein, immediately to the South of 

the property herein conveyed. 

Boyce Deed, 7/26/51.

As noted above, the trial court considered the effect of the easement in 

the bench trial conducted on September 13, 2017. At the conclusion of the 

trial, the court made seven findings of fact, three of which (Findings of Fact 

____________________________________________

4-5 The street referenced in the deed is Maple Lane. The public road is Boyce 

Road.
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Nos. 2, 4 and 6) are among the factual findings challenged by Marigold in its 

first issue. 

In Findings of Fact 2, 4, and 6, the court determined:

2. The Boyce deed created Maple Lane for purposes of 

“access to a public road.”

4. [Appellee] constructed a storm water drainage system 

on its own property and, we believe, off the easement that is 

Maple Lane.

6. [Marigold] has permission from all relevant governmental 

entities for its proposed use, a restaurant with parking, subject 

only to the condition that it get permission from [Appellee] to tie 

into its storm water drainage pipe. 

Findings of Fact, Decision, 11/2/17, at ¶¶ 2, 4, and 6.

In its Rule 1925(a) opinion, the trial court conceded that its findings of 

fact may have been “inartfully stated,” but countered that its 

“significant findings” are supported by a review of the evidence. Rule 1925(a) 

Opinion, 5/4/18, at 5. With respect to Finding 2, the court explained that the 

finding was taken from language of the deed itself and noted that the deed 

did not limit the grant to access only, but also granted a right of way “to lay, 

repair and maintain a waterline.” Id. 

Regarding Finding 4, the court acknowledged ignorance as to the exact 

location of Appellee’s storm sewer. However, the exact location was not at 

issue. Rather, at issue was whether the easement entitled Marigold to build 

a short connecting sewer across Maple Lane and tie it into Appellee’s private 

storm sewer. Id. As Appellee correctly observes, “[b]oth documentary and 
J-A23036-18

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testimonial evidence was presented indicating that the location of that private 

sewer line is on Appellee’s property and outside of Maple Lane.” Appellee’s 

Brief at 21 (citing Notes of Testimony (“N.T.”), 9/13/17, at 125 and Trial 

Exhibit 15).

As for Finding 6, the court recognized that Marigold obtained permission 

from the relevant governmental agencies for its proposed use—a restaurant 

with parking. However, that permission was implicitly subject to receiving 

permission from either Appellee or the court to tie into Appellee’s water 

drainage pipe, an issue the municipality properly refused to consider. As the 

court explained, “Although the permission of [Appellee] may technically not 

be a ‘condition’ set by the municipality, it is still undisputedly crucial to 

[Marigold’s] ability to provide the storm water system the municipality 

requires.” Id. 

Marigold contends the trial court also erred in stating the parties agreed 

the Boyce Deed contained the controlling language. As the trial noted, 

Marigold has not suggested any other deed includes language that controls. 

Moreover, Marigold’s expert agreed that the Boyce Deed is the “operative 

document . . . for purposes of what was granted originally.” Id. (quoting N.T., 

9/13/17, at 34; see also id. at 58.)

Marigold also challenged the trial court’s assertion that Marigold’s 

property already had a drainage easement created at the same time Maple 

Lane was created. The trial court admitted its error in this regard, noting 
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there was not an easement but rather a reservation to the grantor of a fivefoot right of way for the purpose of laying, maintaining, and repairing a pipe 

line and gas line. “Importantly, at the time of the [Boyce Deed], the issue of 

drainage was considered by the Common Grantor to be separate from the 

Maple Lane easement. The clear implication is that there was no 

contemplation at the time that Maple Lane would also be used for storm water 

drainage.” Id. (emphasis in original).

We find support in the record for the challenged factual findings, with 

the exception of the trial court’s admitted “ignorance” regarding the location 

of Appellee’s sewer and its admitted misstatement regarding the existence of 

a drainage easement prior to the Boyce Deed. However, we agree with the 

court’s own assessment that its “significant findings” do find support in the 

record, viewing the evidence in the light most favorable to Appellee as we are 

required to do. Therefore, Marigold’s first issue fails for lack of merit.

In its second issue, Marigold asserts trial court error for admitting 

evidence relating to stormwater conditions on Appellee’s property. 

“Generally, our standard of review of a trial court’s evidentiary ruling is 

whether the trial court abused its discretion. Zieber v. Bogert, [773 A.2d 

758, n.3. (Pa. 2001)]. [If] the evidentiary ruling at issue turns on a question 

of law, however, our review is plenary. Id.” Schroeder v. Jaquiss, 861 

A.2d 885, 889 n.8 (Pa. 2004). 
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We find no error in the trial court’s admission of evidence regarding 

stormwater conditions. As the trial court explained:

While some background testimony describing serious flooding of 

[Appellee’s] property in 2013 was permitted over Marigold’s 

objection, the court only viewed this as an explanation by 

[Appellee] that it is not objecting to Marigold’s proposed use for 

frivolous or “dog in the manger” type reasons. [Appellee’s] 

arguments and the court’s decision rest strictly on the language 

of the [Boyce Deed].

Id. at 7 (some capitalization omitted). Appellant’s second issue fails.

In its third issue, Marigold argues the trial court erred by distinguishing 

PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa. Super. 2001), in which 

this Court examined various easement cases, including Dowgiel v. Reid, 59 

A.2d 115 (Pa. 1948). We find no legal error in this regard, recognizing that 

the easement language in PARC Holdings is different from the easement 

language in the Boyce Deed. 

In PARC Holdings, this Court recognized that the language in the deed 

reserved to the grantor a right of way “for ingress and egress” to certain lands 

owned by the grantor. PARC Holdings, 785 A.2d at 108. The issue was 

whether the scope of the easement included installation of utilities. Based on 

its review of relevant case law, the Court determined that the cases provided 

nothing more than examples of the application of the general rules 

of construction applicable to the grant of an easement. These 

rules provide that if the location, size or purpose of an 

easement is specified in the grant, then the use of an 

easement is limited to the specifications. See Lease v. Doll,

485 Pa. 615, 403 A.2d 558 (1979) and Zettlemoyer v. 

Transcontinental Gas Pipeline Corp., 540 Pa. 337, 657 A.2d 

920 (1995). If, however, the language of a granting deed is 
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ambiguous regarding these matters, then the intent of the parties 

as to the original purpose of a grant is a controlling factor in 

determining the extent of an easement. Zettlemoyer, 657 A.2d 

at 926.

Id. at 111 (emphasis added). As for the language at issue in PARC Holdings, 

the Court found that 

the wording of the reservation as to its purpose [is] ambiguous, 

as it generally defines its purpose in terms of providing mere 

access to the dominant estate by extension of a public road. The 

language does not specify a limited purpose to the access, such 

as “for the purpose of maintaining a water system” or “for 

pedestrian a vehicular travel only.” 

Id. at 112. In contrast, the Boyce Deed was specific in granting a right of 

way over and across Maple Lane for access to Boyce Road and an easement 

for a water line, while also explicitly reserving to Boyce “a right of way Five 

(5) feet wide along the present water line on the Easterly side of said line . . . 

for the purpose of laying, maintaining and repairing a drainage pipe line and 

gas line.” As such, it was specific, in contrast to the general, ambiguous 

language in PARC Holdings, and “the use of [the] easement is limited to the 

specification.” PARC Holding, 785 A2d at 111 (citations omitted). 

The trial court considered, and ultimately rejected, Marigold’s contention 

that PARC Holdings controls, finding it was not on point. The court 

explained:

In PARC Holdings, the question was whether or not the words 

“for ingress and egress” permitted the grantee to extend its 

existing utility lines along the easement to the parcel it had 

acquired from the grantor for further development. The parties 

had originally agreed that the grantee would purchase a bigger 

parcel, but the grantor wanted to retain a smaller part of it for 
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herself. This resulted in the remaining parcel being landlocked. 

The easement at issue there was then created to solve that 

problem and the transaction was completed. 

The grantor later opposed grantee’s plans to lay utility lines within 

the easement, which lines were extensions of ones that already 

existed on the other land owned by the grantee. The trial judge 

held that credible evidence showed that both parties knew of the 

intent of the grantee and rejected the grantor’s argument that the 

easement could only be used for pedestrians and vehicles. That 

decision was upheld.

The facts of this case are vastly different. First and foremost, 

there is no ambiguity in the [Boyce Deed]. It creates Maple Lane 

for access to a street (Boyce Road) from all the properties abutting 

it, and specifies the utility line (water) that may be placed inside 

the easement. Another utility, gas, is described as being off the 

easement as is the reserved drainage system. 

* * *

[E]ven assuming the instant easement is regarded as being 

expressed in general terms, PARC Holdings states that such an 

easement “may be used in any manner that is reasonably required

for the complete and beneficial use of the dominant estate” as it 

existed at the time of the grant, not “in this day and age.” See 

PARC Holdings, [785 A.2d at 114, quoting Dowgiel 59 A.2d at 

118 (1948) (emphasis in original)]. Here, the supposed dominant 

estate, Marigold’s property, already had a drainage easement 

reserved at the same time as the separate non-drainage 

easement on Maple Lane. Since the Common Grantor separately 

reserved a separate storm water drainage easement, off Maple 

Lane, leading to a creek somewhat further north of Boyce Road, 

the obvious intent was not to have storm water drainage from 

Marigold’s property within the Maple Lane easement which is on 

[Appellee’s] property. See also [N.T., 9/13/17, at 121-123] for a 

clear and credible explanation from [Appellee’s] expert of why the 

drainage easement was reserved to the grantor.

Trial Court Rule 1925(a) Opinion, 5/4/18, at 7-8 (emphasis in original). 

Appellant’s third issue, relying on PARC Holdings and cases cited therein, 

does not provide any basis for relief.
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Marigold next argues that the trial court committed legal error by 

determining PARC Holdings addressed easement by necessity and by 

determining that no necessity existed because Marigold already had a 

drainage easement. The trial court rejected the assertion of legal error, 

noting, “Marigold has never contended that it does have an easement by 

necessity. This is not an issue in the case. We alluded to it only because the 

case cited by Marigold, PARC Holdings, also discussed easements by 

necessity and states that that law would also support its decision there[.]” 

Id. at 9 (citing PARC Holdings, 785 A.2d at 114, in turn citing New York 

Central Railroad Co. v. Yarian, 39 N.E. 2d 604, 605 (Ind. 1942)).6 

As Appellee observed, Marigold’s complaint did not request a declaration 

relating to an easement by necessity, and the trial transcript does not reflect 

the introduction of any evidence in support of such an easement. Because 

Marigold first raised the issue in its post-trial motion, the issue was not 

properly preserved. Moreover, even if Marigold had timely raised the issue of 

easement by necessity, it would have borne the burden of proving the 

existence of such an easement. It did not do so. Further, other than in 

circumstances where the property is landlocked, such as in PARC Holdings, 

an easement by necessity has not been recognized in Pennsylvania “for any 

____________________________________________

6 As a point of clarification, this Court in PARC Holdings actually quoted 

Dowgiel, 59 A.2d at 118, which in turn quoted the Indiana case of New York 

Central Railroad Co. v. Yarian.
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other purpose than for ingress to a piece of land and egress from the piece of 

land.” Youst v. Keck’s Food Service, Inc., 94 A.3d 1057, 1076 (Pa. Super. 

2014) (citation omitted). See also Phillippi v. Knotter, 748 A.2d 757, 760 

(Pa. Super. 2000) (“the existence of an easement by necessity contemplates 

a situation in which a parcel of land is landlocked”). Ingress and egress are 

not at issue here and Marigold’s property is not landlocked. Marigold’s fourth 

issue, even if not waived, lacks merit.

In its fifth and final issue, Marigold claims the trial court erred by 

permitting Appellee’s expert to testify beyond the scope of his expertise as an 

engineering expert. Again, as a challenge to an evidentiary ruling, we employ 

an abuse of discretion standard of review. 

We find no abuse of discretion here. After the expert explained that he 

typically reviewed deeds in the course of surveying property, Appellee’s 

counsel asked the expert if he reviewed the Boyce Deed. The following 

exchange took place:

Q. And what was the importance of that deed in terms of your 

analysis?

A. The importance of that deed is it marks the original creation 

or origination of several encumbrances that have been discussed 

here already. The creation of Maple Lane and also references of 

a five-foot drainage right-of-way to be reserved as well. So that’s 

where we first see a description of the easement[s] that are the 

subject of today’s issue.

Q. In your opinion is that document concerning the creation of 

the rights at issue in this case?
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A. Definitely. Here we see it and very clearly describes the 

intentions and –

N.T., 9/13/17, at 112. 

 At that point, Marigold’s counsel objected, contending the expert was

offering a legal opinion. Id. The trial court sustained the objection and 

suggested that counsel rephrase the question. Counsel explained that he was 

merely asking his expert if the Boyce Deed was a key document. The trial 

judge responded, “I will let that testimony in but move on.” Id. at 113. 

Counsel continued his examination without further objection by Marigold’s 

counsel. Therefore, we find Marigold’s assertion of error without merit. 

Further, the expert’s acknowledgement of the importance of the Boyce Deed 

was consistent with Marigold’s own expert’s testimony quoted above.

Responding to Marigold’s contention of error, the trial court suggested 

that Marigold was implying the court should have given greater weight to 

Marigold’s expert, an attorney, than to Appellee’s expert, an engineer. The 

court dismissed that implication, stating it “did not rely on the legal opinions 

of either expert as it is the court’s function and duty to make legal 

conclusions.” Trial Court Rule 1925(a) Opinion, 5/4/18, at 9. As with its 

previous issues, Marigold’s fifth provides no basis for relief.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/7/2019