### J
- A06044
- 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 RAILROAD RECOVERY INC., A PENNSYLVANIA CORPORATION,

Appellant

v. BRIAN MAST, AND SIXTH STREET MANAGEMENT CORP., A PENNSYLVANIA CORPORATION, AND JOHN GIUNUP, AND MICHAEL PETTACIO : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3717 EDA 2015

Appeal from the Judgment Entered November 24, 2015 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 03647, July Term 2013
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J. MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017 Appellant, Railroad Recovery Incorporated, appeals from the judgment entered November 24, 2015, 1 

### in favor of Brian Mast, Sixth Street Management Corporation, John Giunup, and Michael Pettacio (collectively, “Appellees”), quieting title and granting ejectment over the right
- of
- way. We affirm.

____________________________________________ 1 

### Appellant purported to appeal from the September 11, 2014 order compelling testimony of the principal of Railroad Recovery Inc. and granting sanctions to Appellee; the October 7, 2014 order denying Appellant’s mo tion for sanctions; and the November 24, 2015 order denying Appellant’s motion for post
- trial relief and entering judgment. However, of the aforementioned orders, the instant appeal is only proper in the context of the final order of November 24, 2017. See Pa.R.A.P. 341.

### J
- A06044
- 17

- 2
-

This appeal arises from a dispute over the ownership of a five
- block strip of land located between Rockland and Cayuga Streets in the City and County of Philadelphia. The trial court outlined the relevant procedural history as follows:

[Appellant] Railroad Recovery Inc. ([“Appellants”]) inst ituted this action against the [Appellees] on July 26, 2013, seeking an ejectment of the [Appellees] (Counts I & II) from (and a recovery of possession of) the disputed property. [Appellant] also sought injunctive relief (Count II) and to recover mesne pr ofits and rent as a result of its alleged dispossession of the disputed property (Count III). [During discovery, the trial court compelled the deposition of Appellant’s principal, Thomas Clauss by order dated September 11, 2014, and awarded Appellees $350 in sanctions. Appellant filed a motion for sanctions against Appellee, which was denied on October 7, 2014.] After an extended period of discovery, this matter was scheduled for a non
- jury trial between March 11, 2015[,] and March 17, 2015. On March 13 , 2015, following the close of [Appellant’s] case, the [trial] court granted: (1) the [Appellees’] motion for nonsuit of all counts against [Appellee] Brian Mast in his individual capacity; (2) the [Appellees’] motion for nonsuit to Count III of the [Appel lant’s] amended complaint, which sought mesne profits and rents; and (3) [Appellees] John Giunup's and Michael Pettacio’s (collectively "Pettacio [Appellees]") motion to amend their counterclaims to assert a claim for adverse possession for the "Payload Pr operty," an area within the disputed property. On July 20, 2015, [the trial court] found in favor of the [Appellees] and quieted title of the disputed property in favor of the [Appellees]. On November 24, 2015, [the trial court] heard oral argument on the [Appellant’s] motions for post
- trial relief, which were denied that same day. Trial Court Opinion, 5/16/2016, at 1
- 2 (unnecessary capitalization omitted).

### J
- A06044
- 17

- 3
-

In November 2015, Appellant timely filed a notice of appeal and filed a court
- ordered 1925(b) sta tement raising twenty
- five issues. The trial court filed a thoroughly responsive opinion in May 2016. On appeal, the Appellant raises the following fifteen issues for our review: 1. Is Appellant the real party in interest? 2. Did the trial court lack subject matter jurisdiction to quiet title in Appellees, who failed to bring the real party in interest onto the record? 3. Is Poor Boys’ prior judgment binding on Appellant? 4. Did the 1854 Dickenson Deed convey fee simple subject to condition subsequent? 5. Did the possibility of reversion terminate? 6. Is the 1862 trustee deed [] the common source? 7. Did Appellees prove intent to warrant title? 8. Did Appellees prove intent to convey an easement? 9. Did Appellees prove an easement? 10. Does common carrier obligation affect pr operty ownership? 11. Is an express easement distinguished by nonuse? 12. Are Appellees’ counterclaims time barred? 13. Was it error to allow oral amendments at trial? 14. Did Appellant establish a clear right to relief? 15. Was it an abuse of discretion to award sanctio ns without a prior order?

### J
- A06044
- 17

- 4
-

Appellant’s Brief at 4
- 5 (some formatting added). “In reviewing the ruling of the trial court in an action to quiet title, an appellate court's review is limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed, and whether there h as been a manifest abuse of discretion.” Vernon Twp. Volunteer Fire Dep't, Inc. v. Connor , 855 A.2d 873, 879 (Pa. 2004) (citing Moore v. Duran , 687 A.2d 822, 827 (Pa. Super. 1996), petition for allowance of appeal denied , 700 A.2d 442 (Pa. 1997)). An appe llate court will “respect the trial court's findings with regard to credibility and weight of the evidence unless it can be shown that the lower court's determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence .” Gemini Equip. Co. v. Pennsy Supply, Inc. , 595 A.2d 1211, 1215 (Pa. Super. 1991). On appeal, Appellant raises fifteen issues for our review. We have reviewed the certified record, the briefs of the parties, the applicable law, and the well
- reasoned opi nion authored by the Honorable Denis P. Cohen of the Court of Common Pleas of Philadelphia County, filed May 16, 2016. We conclude that Judge Cohen’s comprehensive opinion is dispositive of the issues presented in this appeal. Accordingly, we adopt the o pinion as our own for purposes of further appellate review and affirm the judgment on that basis. Judgment affirmed.

### J
- A06044
- 17

- 5
-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/13/2017

# I\ 1\11\ I \\\I\\ II 

# 1m11 \\ 1111 1 307 0 36 4 70 01 61 R a i l r oa d R ec o v e ry , l n c V s M a s i E t a l
- O P FL O area w i thi n th e di s p u te d p rop erty . am e nd th e ir c o un terclaim s t o a s s ert a cl aim for a d v erse p os sess i o n fo r the " P ay l o a d Pro p erty , " an D e fen d an t s Jo hn G iu nu p' s an d Mic h ae l P e tt a c i o ' s (co ll e c tiv e ly " P ett acio D efe n dan t s " ) m o tion to Co u n t Ill of the Pl ai n tiff's Amended C o mp l ai n t, w h ic h s o u g h t me s ne p rofit s an d re nt s ; an d (3 ) D e f e nd an t B rian M as t in hi s indi v idu al cap ac i ty ; (2 ) th e Defe nd an t s' M o ti o n fo r No n s u i t to Pl ain tif f s ca s e, th e C o urt g ran ted : (1 ) th e D efend an ts' Mo ti on fo r No n s u i t of all c o u n ts a gain s t be twe e n Marc h 1 1 , 2 01 5 and M arc h 1 7 , 201 5. O n Marc h 1 3 , 2 0 1 5 , fo ll o w i n g th e cl o se o f Af ter an extend e d peri o d o f di sc o very , thi s matter wa s sc he du l ed fo r a n o n- ju ry trial (Co un t III)

. rec ov er m es n e p ro fi t s an d re n t a s a re s u l t of i t s all ege d di s po ss e s s i o n of th e di sp ute d pro p erty p o ss es s i o n of) the di s p ute d pro p erty . P l ai n ti ff also s o u g h t i n ju n ctive re lief ( Co u nt II ) and to o n 

### Jul y 26 , 2 0 1 3 , see king an e je c tm e nt o f th e D e fen dant s (C o u nt s I & II ) fro m ( an d a recovery of ( P l aintiff R ai lro a d R ec o very In c. ( " P l ain ti ff ') i n s titu te d th is ac tio n agai n st the; D efer!f.!ant s 

### A . PRO C E D U RAL HI

S TORY OPINIO N r-, ": c De fe n d ant s Brian M as t , Si x th Stre et M an age men t C o rp ., Jo hn G iunu p, and M i c hae l P ett ac i o No

. 1 3 07 03 6 47 v. P l ai n ti ff Jul y T erm 2 01 3 R ai lroa d R e c ov ery I nc . , I N THE CO

U RT OF CO

MM ON PL E A S OF PHILAD

E LPHI A CO UN TY FIRST JU

DICI A L DI S TRICT OF PE

NN SYLV

A NI A Circulated 05/16/2017 02:46 PM2 1. The 9/11 /2014 order by Judge Sarmina was abusive as there was no prior order compelling depositions and defendants gave one days notice of depo s ition. 2. Judge Fox allowed di s covery court to be intentionally misled where an action for mesne profits is intended to disgorge d e fendants of their ill-gotten profit s (good faith damages) or ill-gotten income (bad faith damages) , so that the 10/7 /2014 order should have enforced the prior orders for discovery. 3. Under the pronouncements of Supreme Court as of 1854 and currently, a recorded ind e nture in fee simple subject to a condition subsequent is not an easem e nt, and Judge Cohen ' s finding of an easement is merely a cover-up for the decision of another court involving other parties, where that court held a deed existed but could not be located for the purposes of trial. 4. Without citation to authority , the trial court holding it lacked subject matter jurisdiction to decide an action in ejectment for land in Philadelphia County is erron e ous. 5. Without citation to authority, the trial court disregarded precedent holding the purpose of an ejectment action is opposed to determine the immediate rights between plaintiff and defendant involved in that litigation. Sabella v. Appalachian Developme nt Corp., 2014 PA Super. 237, 103 A.3d 83 (2014 )

. 6. The 1854 Dickinson Deed convey e d a fee simple subject to a condition subsequent, as it provide s for a possibility of a reverter; and uses the classic language of that period for such a conveyance. John Bouvier's Law Dictionary, 1856 Ed. 7. The findings and conclusions of the trial court confirm all of the referenced indicia of a deed in fee simple subject to a condition subsequent are present ; th at is: the presence of a habendum clause ("TO HA VE AND TO HOLD the rights and premises aforesaid unto the said The North Pennsylvania Rail Road Company, their s uccessors and assigns forever, upon condition that the s aid C o mpany, its successors or assigns , shall make , maintain, keep and use upon the aforesaid piece of land a Rail Road,") which does not conflict with the grant ("the entire and exclusive us e, right , liberty and privilege of using and occupying and enjoying for Rail Road purposes") use of present tense of word s of conveyance ("doth Grant Bargain Sell Release and C onfirm , unto th e s aid The North Penn s ylvania Rail Road Company , their successors and assigns " ); and consideration paid in the amount of$9,356.67 in 1854 dollars Appellant filed a Statement of Matters , alleging the following errors on appeal: On Novemb er 29, 2015, Appellant filed his Notice of Appeal. On December 22 , 2015. argument on the Plaintiffs Motions for Post-Trial Relief , which were denied that same day. disputed property in favor of the Defendants. On November 24, 2015, this Court heard oral On July 20, 2015, this Court found in favor of the Defendants and quieted title of the

### 3 for a 9 acres and 57 perches strip of rail roadbed, which sum was more than the nominal payment of $1 or $300 , in the cases relied upon by the court. 8. The 1854 Dickinson Deed used words of a conditional fee (forever, upon condition that the said Company , its successors or assigns, shall make, maintain , keep and use upon the aforesaid piece of land a Rail Road, and if it shall happen that the railroad 

### * 

## * * shall be removed or abandoned or the said described piece of land shall cease to be used for Rail road purposes, then the said strip of land shall revest in the s aid Sally Norris Dickinson , her heirs and assigns , as of her and their first and former Estate , and she or they shall thereupon repossess). Emrick v. Bethlehem Tp., 506 Pa. 372, 375, 485 A.2d 736 , 737 (Pa. 1984). 9. The duty of defendant s ' predecessors in title was to "thereupon (immediately) repossess" any interest th e y had in the disputed land by legal proceedings , which the predecessors failed to do. 10. Defendants failed to prove Dickinson ' s last Will devised her remainin g interest in the conveyed s trip of land to the adjacent owners; contradicting the admission of their expert s uch proof was necessary to identify the interest of defendants. 11. There is not clear and convincing evidence the drafters of the 1854 Dickinson Deed inte nded a warranty clause was necessary as the Railroad Law of 1849 allowed the railro a d to take land by eminent domain; or that Dickinson intended to warrant s h e had title to the 9 acres conveyed, of her 221 acres of North Philadelphia, spanning four boroughs, towns and townships, against adverse poss e ssors. 12. There is not clear and convincing evidence the drafters of the 1854 Dickinson De e d intended to create an easement. 13. Th e findings and conclusions of the trial court con firm all of the referen ced indicia of an easement are lacking; that is: recitation of specific right to use land for "using and taking earth , stones , and gravel from the land" (s t atement of "the entire and exclusive use , right , liberty and privilege of using and occupying and enjoying for Rail Road purposes " is consistent with the stated condition sub s equent the failure of which would create a right o f rever s ion, "forever , upon condition that the said Company, its successors or assigns, shall make, maintain , keep and use upon the afore s aid pi e ce of land a Rail Road"). 14. In 1984, a .6 mile strip of the former Bethlehem Branch did "cease to be used for railroad purposes" by Conrail ' s affirmative act of filing " with [the] Interstate Commerce C o mmission an application that would enable Conrail to abandon its common carrier obligation on a portion of the Bethlehem Branch. " 15. The determination of the Interstate Commerce Commission , to allow the railroad to abandon the line, does not affect the underlying property ownership. 16. Mere nonuse by the railroad does not amount to abandonment. To establish abandonment, the evidence must show that the easement holder intended to give up its right to u s e the easement permanently. No single factor alone is

### 4 sufficient to establi s h the intent to abandon. Abandonment must be determined based upon all of the surrounding circumstances. Buffalo Tp. v. Jones, 5 7 1 Pa. 637 , 646, 8 1 3 A.2d 659 , 665 (Pa. 2002). The factors relied upon by the trial court were disapproved by the Buffalo Tp. court. 1 7. Conrail took certain action that suggested an intention to abandon the railroad line , such as filing a request to abandon rail s ervice with the ICC and planning for dismantling of the rails. However, Conrail took other step s e v idencing the contrary intent , such as sale of the 

### .6 mile strip of rail roadbed to plaintiff, which demonstrated Conrail's intent to retain dominion over the rail roadbed. Further , Conrail sought to discontinue rail service over only a 

### .6 mile length of the Bethlehem Branch. 18. There is no evidenc e Conrail undertook external affirmati v e acts of ph y sical obstruction that carried out its intent to abandon its property interest in the disputed land which rendered the u s e of the disputed land impo s sible or created s ome physical obstruction in a manner that is inconsistent with its further enjoyment. Hence, the rail roadbed ha s not been abandoned. To the contrary, Conrail did sell the rail roadbed to plaintiff, who demolished the bridge. 19. An easement, created by a deed, cannot be extinguished or affected by nonuse or abandonment for railroad purposes unless it is shown by some positive , adverse, and hostile interference by these defendants, who claim that the easement has been extinguished, or the loss of title in some other way recognized by law. No such situation is present. 20. There is no e v idence , when , if at all , subsequent to the January 1988 "Lines Cleared for Dismantling " memorandum [Ex. 029], the .6 strip of rail roadbed sold to plaintiff was dismantled and tracks removed. Predecessor in title , Conrail did not ab andon its interest but maintain e d dominion where it subsequently entered into a g reement to sell the rail roadbed in 1990 [Ex. DlB]. 21. Defendants , John Gi unup and Michael Pettacio did not timely or at all commence an action in ejectment for that portion o f the disputed property in possession of plaintiff. 22. Each of the counterclaims by defendants, Sixth Street Management Corp., John Giunup and Michael Pettacio are barred by the statute of limitations. 23. The trial court erred in granting to defendants, John Giunup and Mich a el Pettacio leave to orally amend their counterclaims on the 3rd day of trial. 24. Trial court , finding plaintiff was not the real party in interest, Jacked jurisdiction to quiet title in favor 

### of defendants , who failed to brin g real party in interest onto the record. 

### 25. To establish a claim for a permanent injunction, the party must establi s h his or her clear right to relief. However, unlike a claim for a preliminary injunction , the party ne e d not establish either irreparable harm or need for immediate relief and a court "may issue 

### a final injunction if such relief is n e ces s ary to prevent 

### a legal wron g for which th ere 

### is no adequate redre s s at l aw." Buffalo Tp. v. Jones , 571 Pa. 637 , 644, 813 A.2d 659, 663 (Pa. 2002).

### 5



### B. FACTS I. The Pa rties and th e Dispute d Property
T his dispute arises out of the own ership of a portion of a strip of land that extends across fiv e city blocks from Cayuga Street to Rockland Street in Philadelphia along a former Northern Pennsylvania Railroad roadbed. (Findings of Fact and Conclusions of Law , 2). Defendant Sixth Stre e t Management Corporation ( " Defendant Sixth Street") owns property located at 4455 North
6 th Street (the "Sixth Street Property "). (N.T. 3/13 / 15 at 161). Pettacio Defendants own adjacent property at 4525 North 6th Street (the " Payload Property"), on which they operate a waste disposal business called Pay load Disposal. Plaintiff is a Pennsylvania corporation formed 

### by Mr. Thoma s Claus s . (N.T. 3/17 /1 5 at 37-38). Mr. Clauss is the Plaintiffs president, sole officer , and sole share holder. (N.T. 03/16/15 at 133-34). Mr. Clauss formed Railroad Recovery to hold to the title to the disputed property in this case. (Id. at 134 ). Plaintiff claims title , by way of chain of titl e dating back to a January 12, 1854 deed executed by Ms. Sally Norris Dickinson (the "Dickinson Deed") , to a strip of land that now runs through the rear of the Sixth Street Property and the Payload Property. (Findings of Fact and Conclusions of Law, 2-3). The dispute d area within the Sixth Street Property encompas s es a total area of 6,703.2 square feet or .1539 acres. (Id. at 3). The di s puted area within the Sixth Street Property runs through the middle of an existing grav el and dirt area and is partially bordered by: (a) on the

s outhern boundary by an aluminum fence gate, and (b) on the eastern boundary by a chain-link f e nce and pvc pipe fence. (Id.). The disputed area within the Payload Property encompasses a total area of 10 , 641.7 square feet or .2443 acres. (Id.). The di s puted area within the Payload Property runs through two exi s ting one story office building s, one abandoned railway scale station, and existing gravel and paved concrete areas of the Payload Property. (Id.).

### 6

(Findings of Fact and Conclusions of Law , 4 ); (Plf. Exhs 1-2); (Def. Exh 80). [a]t all times hereafter forever together with the incidents easements and appurtenances thereunto belonging To have and to hold the Rights and premises aforesaid

... forever upon condition that that Said Company its Successors or Assigns Shall make maintain keep and use upon the aforesaid piece of Land a Rail Road and if it Shall happen that the Rail Road Contemplated to be now Shortly Constructed on and over the Said Described Strip or piece of Land or any Renewals or Reconstructions thereof shall be Removed or abandoned or the Said described piece of land Shall cease to be used for Rail Road purposes then the Said Strip of land Shall revert in the Said Sally Norris Dickinson her heirs and assigns as of her and their first and former Estate and She or they shall thereupon Repossess and Enjoy the Same as if this Present Indenture had never been made

.... Pennsylvania Railroad Company, its successors, and assigns had: Furthermore, the 1854 Dickinson Deed's habendum clause details that North (findings of Fact and Conclusions of Law, 4); (Plf. Exhs 1-2); (Def. Exh. 80).

[D]oth Grant Bargain Sell Release and Confirm unto the Said North Pennsylvania Rail Road Company their Successors and assigns the Entire and Exclusive use Right liberty and privilege of using occupying and Enjoying for Rail Road purposes All that Strip or piece of land part of the lands and Estate of the Said Sally Norris Dickinson Extending from Nicetown lane to Wingohocking Creek in the township of the Northern Liberties and County of Philadelphia containing nine acres and fifty Seven perches as the Said Strip or piece of land is delineated and laid down in the map or plan thereof here unto annexed which is to be taken as part of this indenture and of keeping using and maintaining thereon the Rail Road of the Said party

.... clause describes the strip of land to be conveyed as follows: 407,558.25 square feet, or approximately .0146 square miles. The Dickinson Deed's grant Dickinson Deed conveyed 9 acres and 57 perches of land, which is equivalent to 9.35625 acres, Railroad Company by way of deed in exchange for $9,356.67. (N.T. 3/16/15 at 96). In total, the In 1854, Ms. Dickinson conveyed an interest in her property to the North Pennsylvania II. The Plaintiff's Asserted Chain ofTule

### 7

By way of deed dated March 29, 1976 and recorded May 11 , 1979, the North Penns y lvania R ailroad Company conveyed its interest under the Dickinson Deed to Consolidated Rail Corporation ("Conrail"). (Finding s of Fact and Conclusions of Law, 4) ; (Plf. Exhs 3, 10 )

. The conveyance to North Pennsylvania Railroad Company was mandated by an Order of the Special Regional Rail Reorganization Court. (Findings of Fact and Conclusions of Law , 5); (Plf. Exh 10). The Special Court approved the final System Plan of the Unite d States Railway Association and awarded the North Pennsylvania Rail Ro a d Company lands to Conrail. (Findings of Fact and Conclusions of Law, 5); (Plf. Exh 10). In early 1984, the ICC authorized Conrail to abandon the di s puted property. (Findings of Fact and Conclusions of Law , 5) ; (Plf. Exh 14). Conrail effectuated th e abandonment of the disputed property b y removing the railway, thus relieving it s elf of any obligations to pro v ide rail services over the disputed property. ( Findings of Fact and Conclusions of L aw, 6 )

. At the time of its filing for abandonment of the disputed property, Conrail conducted de minimis rail business on the property. (Id. at 6). On November 2 , 1994, Plaintiff purchased the disputed property from Conrail for $18 , 000. 

### (N.T. 3 11 7115). In conjunction with this purchase, Conrail delivered a quitclaim deed to the Plaintiff, dated November 2, 1994 (" 1994 Quitclaim Deed " ). 

### (N.T. 3 / 16/15 at 141 ). The Plaintiff failed to record the 1994 Quitclaim Deed. 

### (Id at 164 ). Mr. Clauss' s attempt to record the 1994 Quitclaim Deed with Chase Abstract Title Company ("Chase " ) failed due to the lack of an address or legal description in the de e d. (Id. at 163-64). Mr. Clauss did not contact Conrail to attempt to correct the recording problem. (Id.). Eighteen years later, on January 25 , 2012, Conrail delivered to the Plaintiff , upon the Plaintiffs request, a " Quitcl aim Deed of Confirmation " (the " 2012 Confirmation Deed"). (Findings of Fact and Conclusions of Law , 7). Conrail was asked to prepare the deed because8 I Per the installment contract, the Plaintiff agreed to sell all of its Conrail railroad property for $20,000. with $ I 0,000 cash owed on the date of execution of the installment contract, and the remaining $10,000 owed via five monthly installments of $2,000 beginning on June I, 1998. (Findings of Fact and Conclusions of Law, 8). Upon payment by Ms. Miller of the entire $20,000, and upon full compliance with the provisions set forth in the contract, the Plaintiff agreed"( 1) to execute and deliver [to Ms. Miller] a deed for [the railroad premises]." (Id). Law , 9). The Honorable Gary S. Glazer, Judge of the Court of Common Pleas of Philadelphia Sixth Street Property portion of the disputed property. (Findings of Fact and Conclusions of In 2008, Defendant Sixth Street filed an action seeking ej ectment of Ms. Miller from the JV Litigation Following the Plaintiff's Sale of the Disputed Property lo M,;;. Miller this time, despite receiving a tax bill in 2013. (N.T. 3/16/15 at 150-51). 173-74); (N.T. 3/16/15 at 119, 153, 153 , 164-64). Plaintiff did not pay taxes on the property at disputed property and filled the disputed property with auto debris and trash. (N. T. 3/13/15 at the property. 

### (Id at 152

- 5 3 , 162 ). During that time, Mr. McNally operated a scrap yard on the Since 2000, Ms. Miller and her husband , Mr. Mike McNally, have had full possession of sufficient to convey title of the railroad property to Ms. Miller. (Id at 141-46). 1994 Quitclaim deed received from Conrail to Ms. Miller , in the belief that doing so was no formal closing was ever conducted. (N. T. 3/16/15 at 141 ). Instead, Plaintiff delivered the contract in 1999 or 2000. (N.T. 3/16/15 at 138-56); (N.T. 3/17/15 at 38, 41-46 , 48). However, 3 /1 6/15 at 138-40). Ms. Miller fully performed her purchase obligations under the installment contract, all of the land it had previously purchased from Conrail to Ms. Linda Miller. 1 (N.T. On February 16, 1998, the Plaintiff entered into an agreement to sell, via an installment 111. The Plainiiff's Sale of the Disputed Property to Ms. Miller was unable to locate the 1994 Quitclaim Deed. (Id.). deal was held up because the 1994 Quitclaim Deed was not recorded and, at that point, Plaintiff Plaintiff has entered into a transaction to sell the disputed property to Mr. Linda Miller and the9

County, conducted a non-jury trial for that case in August of 2009. (Id). Ms. Miller's defense was that the land she purchased via the 1998 installment contract from Plaintiff contained an easement to use Defendant Sixth Street ' s property. (Id.). Judge Glazer found in favor of
D e fendant Sixth Street , stating specifically in his conclusions of law that Ms. Miller 

### "does not hav e a right to use the 'alleged easement."' (Def Tr. Exh. 19 at 3-4). On October 8, 2009, Judge Glazer further ordered Ms. Miller to "discontinue [her] use of [Defendant Sixth Street ' s] property and remove all [of her] property from [Defendant Sixth Street's] premises within thirty days." (Id. at 1). In 2011, Ms. Miller sued the Plaintiff in federal and state court becau s e the Plaintiff failed to execute and deliver a deed to her as provided by the 1998 installment contract. (N .T. 3 / 3 /1 6/1 5 at 147-48); (N.T. 3 /1 7 /1 5 at 48); (Findings of Fact and Conclusions of Law , 9). Ms. Miller and the Plaintiff settled those cases and th ereafter entered into an agreement wherein the Plaintiff promised to prosecute the instant case. (N. T. 3/17 /15 at 48).
V Def

e ndants' Asserted Chain of Title to the Sixth Street and Payload Properties The Defendants' chain of title begins with an 1862 deed executed by the tru s tees of Ms. Dickinson to the Defendants ' predecessor-in-title, Gustavus G. Logan ("Logan-Dickinson
De e d"). (Findings of Fact and Conclusions of Law, 10). The Dickinson-Logan provides that the property e xtended to the middle line of the North Pennsylvania Rail Road and that the land conveyed "include[es] the portion occupied by the [North Pennsylvania] Rail Road. " (Def. Tr. Exhs 76. 86). The deed provided that the conveyed property extended to the " center line " or

" middle lime" of the (now former) North Pennsylvania Railroad. (Finding s of Fact and Conclusions of Law, 10).10

I Deposition Order Plaintiff first alleges that this Court erred by issuing an order compelling the deposition of Thomas Clauss , Jr. after the discovery deadline had elapsed. Specifically , Plaintiff alleges that Plaintiff was given only one day's notice prior to the deposition. The Pennsylvania Rules of Civil Procedure do not establish a timetable for depositions , as these matters come within the s ole discretion of the trial court. See Wertz v. Kephart, 542 A.2d IO 1 9 , 1021 (Pa. Super. 1988); Lombardo v. DeMarco, 50 A.2d 1256 , 1259 (Pa. Super. 1985). Furthermore, the Rules do not contain any formal requirements for a time interval between the notice and the schedul e d deposition , but merely state that " reasonable notice " mu s t be given to all parties. Pa. R. Civ. P. 4007.1 (a). The trial court's discretion to admit or exclude a C. DISCUSSION Defendant Sixth Street purchased the Sixth Street Property from the estate of Edward Rabon on November 20, 2003 for $25 , 000. (N.T. 3/13 /1 5 at 161). The deed conveying the Sixth Street Property to Defendant Sixth Street ( " Sixth Street Deed") is a warranty d e ed. (Def. Tr. Exh. 54 ). The le g al de s cription contained in the Si x th Street Deed provid es that the property extends from

" the southeasterly side of 6 t h Street

... from the Southwesterly side of Annsbury Street

... to a point in the middle line of the North Pennsylvania Railroad. " (Id.). The Pettacio Defendants purchased the Payload Property for $180,000 on March 18, 2004 from Luis A. Colon. (D e f Tr. Exh. 45). This deed states that the Payload Property extends from "a point at the intersection of the Southwesterly side of Annsbury Street with the Southeasterly side of 6 111 Street; thence along the said side of 6 1 h Street South

... to the center line of the North Pennsylvania Railro a d. " (Id.).I I

deposition during trial will not be disturbed absent abuse. Wertz, 542 A.2d at 1021 ; see Egelkamp v. E

gelkamp, 524 A.2d 501 , 504 (Pa. Super. 1987). In the instant case, the Plaintiff s failure to make Mr. Clauss available for deposition testimony necessitated Judge Sarrnina ' s September 11 , 2014 Order compelling the deposition
testimony. The Defendants originally notified the Plaintiff of a scheduled deposition for Mr. Clauss , and a corporate designee of the Plaintiff, on August 15 , 2014. (De f Mot. To Compel, l; Exh. A). The depositions were scheduled for August, 27, 2014 at 10:00 A.M. , with a rescheduling d ate of August 28. On August 26, 2014 , the afternoon prior to the deposition, Plaintiff unilaterally cancelled the deposition due to alleged issues with exhibits identified at a prior deposition. (Id at 2). Plaintiff refused to make Mr. Clauss available for deposition for the rescheduling date of August 28 , 2014. (Id).
Due to Plaintiffs lack of cooperation in making Mr. Clauss available, the Defendants sought, and obtained , Judge Sarmina's Order to comp e l the testimony on September 11, 2014. ( Ct. Order to Compel 9/11 / 14). The Order required the deposition to be held sometime between September 15, 2014 and September 17, 2014. (Id.). Plaintiff have failed to allege any prejudice that resulted from the Order that would have made the notice unreasonable. See Pa. R. Civ. P. 4007. l (a). Plaintiff had over a week to prepare for the initial deposition of Mr. Clauss scheduled for August 27 , 2014. (See Def. Mot. To Compel , l ; Exh. A). T he Plaintiffs unilateral decision to postpone the deposition , with less than a day prior to the scheduled time, afforded Plaintiff further opportunity to prepare. (See id at 2 )

. Furthermore, Judge Sarmina's Order comp e lling the deposition set the earliest possible date for said deposition four d ays away. (See Ct. Order to Compel 9 / 11/14). Thus , from the time Plaintiff was notified of the Defendants ' intent to depose Mr. Clauss, to the earliest date s et by12

the Order compelling the deposition, Plaintiff had thirty-one (31) days to prepare for the deposition. Furthermore, the delays and problems with the deposition were created by the Plaintiff and their failure to make Mr. Clauss available at the agreed upon times. Therefore , Plaintiff s argument that Ju d ge Sarmina ' s Order was an abuse of discretion , and that the notice
g iven to Plaintiff was unreasonable , is without merit.
II Discovery Hearing Reque s t Denial
T he trial court's order denying a motion to compel discovery is reviewed under the abuse of discretion standard. Commonwealth v. Widmer , 744 a.2D 745 , 753 (Pa. 2000). The term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion , within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. 

### Id. Discretion mu s t be exercised on the foundation of reason, as opposed to prejudice, personal motivation s , caprice or arbitrary actions. 

### Id. Discretion is abused when the course pursued represents not merely an error ofjudgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality , prejudice , bias or ill will. 

### Id. Plaintiff cl aims th at this Court erred by denying Plaintiffs request for a discovery hearing regarding the Defendants' alleged failure to produce requested tax returns. While generally broad and liberal disco v ery is encouraged , the policy favoring generous disco v ery must be balanced against other public policies. Hyman Companies, Inc. v. Brozost, No. CIV. 

### A. 97- 269, 1997 WL 535180 , at *3 (E.D. Pa. Aug. 8 , 1997). For example, public policy considers tax
return s as confidential communications between the taxpayer and the government and thus favors their nondisclosure. 

### Id. Pennsylvania courts have outlined a two-part test to determine the discoverability of tax returns. See id. ; Horwath v. Brownmiller , 51 Pa. D. & C.4th 33 , 

### 42-4513

Furthermore , the Plaintiffs suffered no prejudice from the denial of the motion for sanctions. The Plaintiff alleges in its Statement of Errors that the requested documents would have informed the Plaintiff as to the Defendants' income for the purposes of ascertaining mesne profits. However, given the Court's ruling that the Plaintiff did not have a right to possess the disputed property , the question of mesne profits became unnecessary to address. Thus , any prejudice the Plaintiff may have suffered in relation to discovery related the mesne profits issue was rendered moot by the Court's final ruling. !II. Subject Matter Jurisdiction A. This Court Did Not Err in Concluding That It Lacked Jurisdiction Due to the Plaintiffs Lack of Standing This Court did not err in concluding that Plaintiff lacked standing to maintain its actions for ejectment and injunctive relief against the Defendants because the Plaintiff sold and relinquished any interest to the to the disputed property that it may have had to Ms. Miller in (Ct. Com. Pl. 2001). The party seeking discovery must demonstrate: 

### (1) relevance; and (2) a compelling need for such documentation because the information is not available elsewhere. Horwath, 51 Pa. D. & C. at 44. In the instant case , Plaintiffs made no efforts to demonstrate either of the two prongs and therefore were not entitled to court action enforcing discovery requests for tax returns. See id In their request for discovery sanctions, Plaintiff merely stated that, although the documents were brought at a deposition, they were never produced. (Plf. Mot. for Sanctions 9/16/14). Plaintiffs failed to even attempt to demonstrate that they were entitled to the discovery of these sensitive documents and thus this Court did not err in denying their motion. See Horwath, 51 Pa. D. & C.

at 44.14 2 The rule also provides three exceptions, all of which are inapplicable in the instant ca s e. 2000. Due to the Plaintiff's lack of standing, this Court correctly determined that it did not have jurisdiction to proceed on the merits of this action. Pennsylvania Rule of Civil Procedure 2002 provides that "[A]ll actions shall be prosecute d by and in the name of the real party in interest, without distinction between contracts under s eal and parol 

### contracts.' ? Pennsylvania courts have defined the word " real party in interest " as "the person who has the power to discharge the claim upon which suit is brought and to control the prosecution of the action brought to enforce rights arising under the claims." 

### See ,

e .g., Clark v. Cambria County 

### Ed. Of Asses s ment Appeals, 747 A.2d 1242 , 1 246 n.9 (Pa. Cmnwlth. 2000). A plaintiff who is not the real party i n interest has no standing to maintain the

a ction. 

### Id. , citing Sierra Club 

### v. Hartman, 605 A.2d 309 (Pa. 1992) ("A person cannot invoke the jurisdiction of a court to enforce private rights, or to maintain a civil action for the enforcement of such rights, unless that person has some real interest in the cause of action, or a legal 

### right title , or interest in the subject matter of the controversy."). Pennsylvania law provides that an installment sale agreement should be treated as a mortgag e . Stillwater Lakes Civic Assoc. v. Krawitz, 772 A.2d 118, 121 (Pa. Cmnwlth 2001).
T he moment an installment sale agreement is executed and delivered, the owner of the land sells his equitable title to the realty to the purchaser. 

### Id.; Yannopoulos v. Sophos, 365 A.2d 

### I 3 

### I 2 , 1314 (Pa. Super 19 7 6). At that point, "the land so contracted cease[s] 

### to be real estate in [the seller's] hands," Foster v. Harris, 10 Pa. 457, 459 (Pa. 1849), and "the seller retains legal title only as a security against the purchase price." Pose! v. Redevelopment Authorit y ofCity of Philadelphia, 456 A.2d 243, 246 n.4 (Pa. Cmnwlth 1983).

### 15 .1 On the contrary, once the terms of the installment contract are completed, the seller is bound to execu te and deliver a deed to the buyer and, in the event of a seller's death before the deed is executed, the seller's heirs are bound to execute and deliver such a deed. Fosler v. Harris, 10 Pa. 457, 459 (Pa. 1849).
~ The fact that Mr. Clauss was unable to record the deed does not change this Court's conclusion that Conrail's interest in disputed property was conveyed to the Plaintiff in 1994. Fiore v. Fiore, ! 74 A.2d 858, 859 (Pa. ! 961) ("The recording of the deed [is] not e s sential to its validity or the tran s ition of the title. " ) attached to Def. Tr. Exh 4 

## 1 2). As defined by the installment contract, the land sold was a approximately Mile Post 4.8, being the northerly line of Rockland Street." (Id. 

## 1 1 ); (Exh. A being the southern line of Cayuga Street and extending thence in a general northerly direction to convey to Ms. Miller "All That Certain premises " "Beginning at approximately Mile Post 4.2, Miller. (Def. Tr. Exh 4). In exchange for the sum of $20,000, the Plaintiff agreed to sell and On February 16 , 1998, the Plaintiff entered into an installment contract with Ms. Linda the Plaintiff via the 1994 Quitclaim Deed on November 2 , 1994. (Def. Tr. Exh 2). 4 163 ). As such , it is without doubt that Conrail conveyed its interest in the disputed property to Chase, Conrail delivered the 1994 Quitclaim Deed to the Plaintiff in 1994. (N.T. 03 / 16/15 at 83). Furthermore, as evidenced by Mr. Clauss's attempt to record the 1994 Quitclaim Deed with Deed effectively conveyed its interest in the disputed property to the Plaintiff. (Enright Tr. at In the instant case , according to Mr. Enright, Conrail believed that the 1994 Quitclaim 858 , 859 (Pa. 1961). there is an actual or constructive delivery of the deed to the grantee. 

### Fiore v. Fiore, 174 A.2d deed is effective to convey real property so long as ( l ) the grantor has donative intent and (2) buyer performs her purchase obligations set forth in the installment contract. 3 A transfer of a 1314. Accordingly , under Pennsylvania law, the seller has no interest in the property once the outstanding balance of the mortgage.). 

### Stillwater, 772 A.2d at 121; 

### Yannopoulos, 365 A.2d at only unti I the buyer satisfies the terms of the installment contract (i.e

. until the buyer pays the Legal title-the seller's last remaining interest in the property-is retained by the seller16

The land identified in the installment contract constituted the sale of all of the land which the Plaintiff received via quitclaim deed from Conrail in 1994, including all ofthe disputed property at issue in this case. (Def. Tr. Exhs 2-3). Indeed, both the 1994 Quitclaim Deed and the 2012 Confirmation Deed described that the entirety of the property conveyed by Conrail to the Plaintiff was: "Beginning at approximately Mile Post 4.2, being the southerly line of Cayuga Street and extending thence in a general northerly direction to approximately Mile Post 4.8, being the northerly line of Rockland Street, the place of ending." (Def. Tr. Exh 2 at 2) (2012 Confirmation Deed); (Def. Tr. Exh 3 at 2) ( 1994 Quitclaim Deed). As described by the 1994 Quitclaim Deed, the land conveyed was " a portion of the same premises which the North Pennsylvania Railroad Company

... issued pursuant to the Regional Rail Reorganization Act of 1973

... which Conveyance document was recorded on May 11, 1979

... Document No. D1948-202." (Def. Tr. Exh 3). Per the terms of the installment contract entered into between the Plaintiff and Ms. Miller , the Plaintiff agreed, upon payment of $20,000 by Ms. Miller, to "execute and deliver to [Ms. Miller] a deed for said premises." (Def. Tr. Exh 4 ~ (c)). Additionally , Mr. Clauss , the Plaintiffs president and sole officer/shareholder, admitted, via his deposition and trial testimony: ( l) that he entered into an agreement , on behalf of the Plaintiff, to sell the subject property to Ms. Miller in February of 1998, (2) that Ms. Miller 

### fully performed her purchase obligations (including the full payment of $20 , 000) under the installment contract in 1999 or 2000 , (3) that the Plaintiff provided Ms. Miller the Conrail deed (which the "portion of the same premises which the North Pennsylvania Railroad Company

... issued pursuant to the Regional Rail Reorganization Act of 1973

... which Con v eyance Document was recorded on May 11 , 1979

... Document No. D-1948-202." (Exh. A attached to Def. Tr. Exh 4

~ 2).

### 17

Plaintiff received when it purchased the property from Conrail) because he thought such an act sufficiently conveyed the property to Ms. Miller, and (4) that after he sold the property to Ms. Miller

. Ms. Miller and her husband Mr. McN ally took possession of the property. (N. T. 03 / 16/1 5 at 13 8-15 6); (N. T. 03/17 /15 at 3 8 , 41--46 , 48). As such , because Ms. Miller satisfied the terms of the installment contract, since at least 2000, the Plaintiff has had no legal or equitable interest whatsoever in the disputed property and does not have standing to maintain the instant action concerning such property. For these reasons, this Court correctly concluded that the Plaintiff lacked standing to bring these actions and, thus, this Court lacked jurisdiction to address the Plaintiffs claims. See Clark, 747 A.2d at 1246 n.9. B. The Court Did Not Err in Determining the Defendants' Counterclaim to Quiet Title
In a quiet title action, the only relevant inquiry is whether the claimants can establish the right to immediate exclusive possession. Plauchak v. Boling , 653 A.2d 671, 675 (Pa. Super. 1995), citing Doman v. Brogan , 592 A.2d 104, 108 (Pa. Super. 1991). In an action to quiet title, the claimants "can recover only on the strength of [their] own title and not upon the weakness of the [opposing party's] title. Plauchack, 653 A , 2d at 675 n.3; Montrenes v. Montrenes, 513 A.2d 983, 984 (Pa. Super. 1986). In the instant case, the Court did not err in rendering a decision in favor of the Defendants in their counterclaim to quiet title because the Defendants proved by a preponderance of the evidence, the boundaries of the land for which they maintained paramount title. See Plauchak , 653 A.2d at 675. The Defendants established a clear chain of title dating back to the original Dickinson Deed which provides that the Sixth Street Property and the Payload Property extend to the "middle line" or "center line" of the North Pennsylvania Railroad , including the area occupied by the railroad. (Def Tr. Exh. 54 ). The chain of title tracks through Defendant Sixth18

Street purchasing the Sixth Street Property from the estate of Edward Rabon and the Pettacio Defendants purchasing the Payload Property from Luis A. Colon. (N.T. 3/13/15 at 161)' (Def. Tr. Exh. 45). Moreover, as discussed 

### infra, because Conrail extinguished its interest in the di s puted property in 1988 , the Defendants have shown that they own their respective portions of the disputed property in fee simple. 

### Se e Dellach v. DeN inno, 862 A.2d 117, 118 (Pa. Super. 2004). Finally , the Plaintiffs claim that their own failure to prove standing precludes the Defendants from seeking a counterclaim fails because the Defendants have established their title and thu s succeed, regardless of the weaknesses of the Plaintiffs cas e . 

### See Plauchack, 653 A,2d
at 675 n.3. Plaintiff contends that this Court erred by ruling on the Defendants ' counterclaims b e cause Ms. Miller was not a party to this action. A party is indispensable onl y when his or her right s are so connected with the claims of the litigants that no decre e can be made without impairing those rights. See Sprague v. 

### Casey, 550 A.2d 184, 189 (Pa. 1988). "[I]f , [however], the merits of a case can be determined without prejudice to the rights of the absent party , the court may proceed." 

### Id. In the instant case , The Plaintiff claims that Ms. Miller was an indispensable party to the action due to her claimed interest in the land. However, Ms. Miller did not have a legally cognizable claim to the disputed property . This Court had ruled in a prior case that Ms. Miller did not have a right to use the alleged easement. (Def. Tr. Exh. 19 at 6). Thus , at the time of this trial. Ms. Miller no longer had an interest in the disputed property so as to be considered an indispensable party. See Sprague v. 

### Casey, 550 A.2d at 189. Additionally , Ms. Miller suffered no prejudice resulting from the Court's determination of the Defendants ' counterclaims. Plaintiff litigated this case on Plaintiffs behalf , and at her19 ( 1) the nature and quantity of the intere s t conveyed must be ascertained from the instrument itself and cannot be orally shown in the abs e nce of fraud, of that intention are: 581 (Pa. Super 2002). The traditional rules of construction that guide the Court's determination effectuate the intent of the parties at the time of transaction. Mackall v. Fleegle, 801 A.2d 577, In interpreting the 1854 Dickinson Deed, the Court' s primary object i s to ascertain and Evidence of-Way/ Eas e ment Interest in the Disputed Property Was Supported by Competent A. The Court's Conclusion That th e 1854 D i ckinson Deed Conveyed a Railroad Rightconclusion s of law is without m erit. See Dellach, 862 A.2d at 118 ; Corbin, 716 A.2d at 617. competent evidence introduced at trial. Thus , the Plaintiff's claim that this Court erred in its pre dece s sor-in-interest had extinguished that easement in 1988 was well s upported b y the Dickinson Deed conveyed an easement interest in the disputed property and that the Plaintiff's evidenc e . Corbin , 716 A.2d at 617. In the instant case, thi s Court's conclusion that the 1854 T he trial court's decision will not be re v ersed absent an error of law or capricious disregard of the evidence. See Dellach, 862 A.2d at 118; Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super.1998). a quiet title or ejec tment action , the court's findings need only be supported by competent burden in its ejectment action against the Defendants. When reviewing a trial court's decision in The Plain tiff claims that the Court erred in c oncluding that Plaintiff failed to meet their JV The Plaintiff's Ejectment Action suffered no prejudice b y her deci s ion to allow them to litigate the issue for her. had in the disputed property was thoroughly defended by Plaintiff in the instant case and she attorney , Mr. Anthony Quinn. (N.T. 3 /1 6/15 at 147). Thus, any interest Ms. Miller may have request. (N.T. 3/17/15 at 48). Furthermore , Plaintiff was represented by Ms. Miller's own20

5 Thi s last factor is inapplicable here because the 1854 Dickinson Deed did not grant the railroad a release from liability. Of course, conveyances of an easement often do not release the grantee from liability. See Stanton v. Lackawanna Energy Ltd., 886 A .2d 667, 677 (Pa. 2005) (noting that an "an easement holder is subject to the same liability as any other possessor of the premises" and detailing numerous cases where the easement holder was subject to liability resulting from the easeme nt holder's use of the land.). As such, while presence of a release is indicative of intent, the absence of a re lease of liability in the document is not indicative one way or the other of the parties' intent to convey an ea s ement/right-of-way or a fee. of 

### a habendurn clause in the deed, so long as interpreting the habendum clause to mean the indicative of an intent to convey a fee rather an easement / right-of-way include: ( 1) the presence 577, 582 (Pa. Super 2002) (discussing Lawson and Brookbank). Meanwhile, factors which are Benedum-Trees Oil 

# c«. 131 A.2d 103, 110 (Pa. 1957); see also Mackall v. Fleegle, 801 A.2d location, construction and operation of the railroad. 5 See Lawson, 517 A.2d at 158; Brookbank v. railroad from liability for damages resulting from the railroad's use of the land or rising from the the interest conveyed was a fee ; and 

### (3) the inclusion in the deed of a clause which releases the "use" the land for "construction, repair and use" because such language would be surplusage if deed ; (2) the recitation of specific rights granted to the railroad by the deed, such as the right to right-of-way/easement rather than a fee interest include: (1) the lack of a warranty clause in the upon in making this determination. Factors which are indicative of an intent to convey a railroad or a fee simple , this Court examined a number of factors that Pennsylvania courts have relied In deciding whether the 1854 Dickinson Deed created a railroad right-of-way/easement Id , citing Lawson v. Simonsen, 517 A.2d 155, 158 (Pa. 1980). accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words

... ; (2) effect must be given to all the language of the instrument and no part shall be rejected if it can be given a meaning

... ; (3) if a doubt arises concerning the interpretation of the instrument it will be resolved against the party who prepared it

... ; ( 4) unless contrary to the plain meaning of the instrument. an interpretation given it by the parties themselves will be favored

... ; (5) 'to ascertain the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.'

### 21

4 I 7 A.2d at 159; Brookbank, 131 A.2d at 11 O; Mackall, 801 A.2d at 582. Second, the 1854 Dickinson Deed granting clause recites specific and limited rights granted to North Pennsylvania Railroad. The granting clause states that Ms. Dickinson "doth Grant Bargain Sell Release and Confirm unto the Said North Pennsylvania Railroad Company their Successors and assigns the Exclusive use Right liberty and privilege of using occupying and Enjoyingfor Railroad purposes All that Strip or piece of land [ concerning the disputed property] parties conveyed a fee does not conflict with the parties intention as set forth in the granting clause ; and (2) the use of the present tense of the words " grant, bargain, sell, release, and confirm" to convey an interest to the " grantee, his heirs, or assigns" because such language indicates that the grantor is engaging in a present transfer of her estate 

### in fee, so long as other parts of th e deed do not elucidate the intention of the parties to convey a le s ser interest. See Brookbank

, 131 A.2d at 159-61. Additionally , the amount of consideration paid for the interest i s also indicativ e of the parties ' inte nt where there is evidence of the value of the land at the time of the conveyance. Id

. Under this factor , a large amount of consideration paid in comparison to the value of the land indicate s an intent to convey a fee , and a small amount indicates an intent to convey an easement/right-of-way. 

### Lawson, 417 A.2d at 159 (consideration of $1 in exchange for a strip of land 6 miles long and 66 feet wide was insufficient in 1881 to convey a fee interest). In the instant case, considering these factors, the weight of the evidence sup p orted the

c onclusion that th e 1854 Dickinson Deed conveyed an easement / right-of-way. First, the I 854 Dickinson Deed contains no clause requiring Ms. Dickinson to warrant title. As in 

### Lawson, Brookbank, and Mackall , the Court agrees that it is unlikely that North Pennsylvania Railroad intended to receive a fee interest from Ms. Dickinson without requiring such a clause. Lawson ,22 6 The 1852 instrument in Quarry stated that the grantor " by these presents do grant , bargain , sell , convey and confirm unto the said the Chester Valley Rail Road Compan y , their suc c essors and assign s , the right, liberty , and privileg e 

### of enteri ng up o n and occupying the land belonging to me

... and also the right of using, occupying. and enjoying the said land perpetually, for all the uses and purpose s c onv e nient or n ec e s sar y f o r a Ra il R o ad." Quarry, 576 A .2d at 431

- 32 ( emphasis added). held the interest conveyed was an easement / right-of-way even though the deed con v eying the conflict s with the granting clause. In Fleck v. Universal-Cyclops S te el Corp. , the Supreme Court the presence of a habendum cl ause is not necessarily indicative of the parties ' intent when it habendum and warranty clauses removes any doubt that it was intended to be so."). Moreover, th at 

### by its very nature tends to be appurtenant, and the use 

### of words of inheritance in the estates.") ; Hassler v. Mummert, 364 A.2d 402, 404 (Pa. Super 1976) ("It is the type of easement the deed and its habendum clause create an easement to allow travel through the servient See e.g. , Moody v. Allegheny Valley Land Trust, 976 A.2d 484, 491 (Pa. 

### 2009) ("Fundamentally. presence o f such a clause is not sufficient to find that that the parti e s intended to conv e y a fee. Third, while it is true that the 1854 Dickinson Deed contain s a habendum clause , the the effect and meaning that the parties intended to convey a railroad right-of-way/easement. "keep ing using and maintaining thereon the Rail Road of the Said party" can therefore be given use Right liberty and privilege of using occupying and Enjoyingfor Railroad purpose s " and drafted at or near the same time that the Quarry instrument was drafted , the words "Exclusive a fee interest. Brookbank, 131 A.2d at 110. Considering that the 1854 Dickinson Deed was and, as the Brookbank Court noted, would be mere "surplusage " 

### if the parties intended to convey Quarry O f fice Park Assoc. v. Philadelphia Elec. Co., 576 A.2d 358 , 362~63 (Pa. Super 1990) 6, different than the language in the 1852 instrum e nt conveying a railroad right-of-way discussed in th e Rail Road 

## of the Said party." (Plf. Exh 1 ); (Def. Exh 80). This language is not appreciably ... which is to be taken as part of this indenture and of keeping using and mainta in i ng thereon23

property to the railroad contained a habendum clause. 156 A.2d at 834 (Pa. 1959). In that case , the habendum clause in the deed contained the following language, "to have and to hold the said strip of land and the said rights and privileges and uses so long as the same be required for the uses and purposes of said railroad." Though the Fleck court recognized that such language "generally indicates a base fee [ also known as a fee simple determinable], sometimes it is used in connection with a fee simple," and "sometimes it is used to describe an easement." 

### Id.; see
BLACK'S LAW DICTIONARY (10th Ed. 2014) (defining "base fee" as a fee simple determinable or "[a] fee that has some qualification connected to it and that terminates whenever the qualification terminates"). Importantly, according to Fleck , where the habendum clause conflicts with the granting clause in the deed, the granting clause prevails. Fleck, 15 A.2d at 652. As such, the presence of a habendum clause in the document is a 

### necessary, but not sufficient, condition to find the parties intended to convey a fee. In the instant case, the language in the habendum clause is entirely consistent with the intent expressed in the granting clause elucidating that Ms. Dickinson conveyed only a railroad right-of-way/easement. The habendum clause in the 1854 Dickinson Deed states that North Pennsylvania Railroad and its successors-in-interest "hold the Rights and premises aforesaid

... forever 

### upon condition that " that said company and its successors-in-interest "Shall make maintain keep and use" a railroad, "and if it shall happen that the Rail Road Contemplated

... over the Said Described Strip or piece of Land

... shall be removed or abandoned or

... cease to be used for Rail Road Purposes then the Said Strip of land 

### shall revest" in Ms. Dickinson, her heirs, and assigns "and she or they 

### "shall thereupon repossess and enjoy the same premises as if this Present Indenture had never been made." (Def. Exh 80) (emphasis added). The operative language in the habendum clause is clear that if the land is "abandoned" or "cease[ s] to be used24 7 See BLACK'S LAW DICTIONARY (IO'" ed. 2014) (defining "revest " as "To clothe or vest again or anew, as with rank, authority, or ownership <revesting the former owner with title>"); id. (defining "clear title" as a title "free from any encumbrance s [such as an easement], burden s , or other limitations"). On this record the stated consideration is not reflective of the parties' intent."). was inadequate for conveyance of a fee simple title would be based on conjecture and surmise. absence of any evidence as to value of this strip of land in 1903 , a finding that the consideration intent would be based solely on conjecture or surmise. See Brookbank, 131 A.2d at 159 ("In the entire 

### 9 .3 5625 acres of land conveyed 

### in 18 54, meaning any such conclusion as to the parties' simple. The reason for this is because the Court was presented no evidence as to the value of the not provide a reasonable basis for the Court to conclude that there was intent to convey a fee Finally, the amount of stated consideration in the 1854 Dickinson Deed, $9,356.67, 

### did estate or interest in property."). DICTION A RY 405 (5th Ed. 1979) (Determination is defined as "[tlhe ending or expiration of an by him.") (internal citations and quotations omitted); 

### id at 664 n.6, quoting BLACK ' S LA 

### w granter, to commence in possession after the determination of some particular estate granted out grantor or the granter's successors and that such 

### a reversion is "the residue of an estate left to the 664 (Pa. 2002) (holding that an abandonment of a right-of-way reverts the property interest to the abandonment of a railroad right-of-way/easement. See Buffalo Tp. v. Jones, 813 A.2d 659, 664, her /their full possession of the land) is identical in effect and in kind to a common law abandonment of the property the grantor or her successors get new title and recommences reposse s s (i

. e. "regain possession of ' ) the disputed property. Such operative language (upon title, 

### or "title anew"), 7 and that Ms. Dickinson and her heirs shall thereupon (i.e. 

### "immediately") for Rail Road Purposes," then that land "shall revest " (i.e. give Ms. Dickinson and her heirs clear

### 25

Thus , given the evidence presented at trial and the factors enumerated by Pennsylvania Superior Court , this Court did not err in holding that the 1854 Dickinson Deed conveyed a railroad right-of-way/easement. B. The Court Did Not Err in Concluding that the Plaintiffs Predecessor-In-Interest, Conrail, Extinguished the Railroad Right-of-Way/Easement Over the Disputed Property Plaintiff further disputes this Court's determination that Plaintiffs predecessor-ininterest, Conrail, extinguished its interest in the disputed property through abandonment. "When

a railroad abandons an easement, the right-of-way is extinguished and the land is owned in fee simple by the owner or owners of the land on either side of the right-of-way. " Dellach, 862 A.2d at 118. In order to find that a right-of-way has been abandoned, there must be a: (1) intent to abandon; and (2) external acts by which the intention is carried out. Thompson v. Maryland & 

### P e nn. Railroad 

### Preservation Soc., 612 A.2d 450, 453 (Pa. Super. 1992). Mere non use does not amount to abandonment. 

### Buffalo, 813 A.2d at 665. Instead , the conduct of the Plaintiff or its predecessor Conrail "must have some 

### affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment. Id., quoting Thompson, 612 A.2d at 453 (emphasis in original). In the instant case, Conrail exhibited an intent to abandon the disputed property when it submitted an application for abandonment of the Bethlehem Branch to the ICC on May 18, 1984. (Plf. Exh 11); (Enright Tr. at 22, 84); see Buffalo , 813 A.2d at 665 ("The filing of a certificate of abandonment with the ICC or PUC demonstrate[ s] intent to abandon."). Thereafter, Conrail took up the rails over the disputed property, rendering the rail completely out of service by 1988.26

(Enright Tr. at 87-90). Conrail's intent to abandon was therefore also accompanied by external affirmative acts of physical obstruction that carried out its intention. Accordingly, in 1988, Conrail extinguished any interest it or its successors, including the Plaintiff, had in the disputed property, causing the Defendants' predecessors-in-title to own the property in fee simple. DeNinno, 862 A.2d at 118. The Plaintiffs ejectment action therefore fails because it did not
prove by a preponderance of the evidence that it ever had a right to possess the disputed property or paramount title over the disputed property. Billig v. Skvaria, 853 A.2d 1042 , 1049-50 (Pa. Super 2004 ). C. This Court Did Not Err In Concluding that the Plaintiff Failed to Meet Its Burden Permanent Injunctive Relief "In order to establish a claim for a permanent injunction, the party must establish his or her clear right to relief." Buffalo , 813 A.2d at 660. The Court "may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law. " 

### Id. In this case, for the reasons discussed above, the Plaintiff failed to establish its clear right to relief and thus its argument to the contrary is without merit. V The Defendants' Counterclaims A. This Court Did Not Abuse Its Discretion m Permitting Defendants to Amend Their Counterclaims The Court did not abuse its discretion in permitting the Defendants to amend their counterclaim during trial to assert a claim for ejectment as to a portion of the disputed property. Pennsyl v ania courts consistently hold that "amendments to pleadings are permitted at any time , including before , during, and after trial. See, e.g. , Horowitz v. Universal Underwriters Ins., 580 A.2d 395 , 398 (Pa. Super. 1990); Winterhalter v. West Penn Power Co., 512 A.2d 1187 , 118927

(Pa. Super. 1986) ("Courts have allowed amendments at any time, as provided by the specific language of this statute.); Biglan v. Biglan , 479 A.2d 1021, 1025 ("As can be seen from the clear language of this rule, no limit is imposed on the time when an amendment may be made. " ). The fundamental purpose of this rule is to prevent cases from turning on purely technical defects. Biglan. 479 A.2d at 1025. In Sutton v. Miller , the Pennsylvania Superior Court allowed an amendment from a quiet title action to an ejectment action after the appeal, because the change was "mere formalism." 592 A.2d 83, 86-87 (Pa. Super. 1991 ). In the instant case , the granting of an amendment was proper because Plaintiff was not prejudiced. Whether framed as an action to quiet title or for ejectment, Plaintiff was on notice that Defendant sought to prove title to the disputed property. Thus, Plaintiff had sufficient information as to prepare for trial, given the strong similarity between the two causes of action. See id. (describing the similarity between actions to quiet title and ejectment). The only effect this amendment had on the case was to prevent it from turning on a mere technical issue because the Plaintiff's privies happened to be in possession of a portion of the disputed property, making ej ectment the proper cause of action. See Big/an, 4 79 A.2d at 1025. Thus , the Court did not abuse its discretion in allowing for an amendment of the Defendants' counterclaim, even on the third day of trial, where such amendment had no effect on Plaintiffs trial strategy and merely prevented the case from turning on a formalistic technical issue. See Sutton, 592 A.2d at 87. B. The Defendants' Counterclaims Were Not Barred By The Statute of Limitations Plaintiff claims that the Defendants' counterclaims should have been defeated by the running of the statute of limitations set by 42 Pa.C.S.A. 

### § 5530. However , 

### § 5530 governs the statute of limitations governing the acquisition of title. Tioga Coal Co. v. Supermarkets Gen. Corp., 433 A.2d 483 , 489 (Pa. Super. 1981 ). Thus, to avail themselves of §5530, a party must also make out

### 2 8 

### DENIS P

. C OHEN , J.

D ate d : 

### M ay 1 3 , 2 01 6 

### BY THE COURT: F o r th e fo rego ing reas on s , the d ec ision o f th is C ourt s hould be affirm e d

. D . CONCLUSION 

### Defen dant s' co unterclaim fai ls due to th e s tatute of limit ati ons is wi th o ut merit. p urch a s e d it in 2004. (N. T

. 3 /15/1 5 at 11 7- 1 8)

. Thu s , th e Plaintif fs arg um e nt that th e D e fend ants, r ather th an th e Plaintiff , h ad be e n in continuou s use of the property s in ce the y th e D efe ndant s produ c ed ev iden ce to th e contrary when D efe nd an t Giunup te s tified th at th e the D efe ndant s ' o wner s hip of th e p rop erty through an adv er s e m eans of title ac quisiti o n. In fact , In th e in stant ca se , Pl aintiff s did not ev en attemp t to m ake an argume nt th at the y had cut off Nat

. R es .. Bure au of Sta te Pa rk s, 

### 69 9 A.2d 7 75 , 784 ( Cmwlth 19 9 7 )

. no t o ri o u s ; an d ( 4) c o ntinu o u s and uninterrupte d

. O de lle' s, Inc

. v . Com .. Dep't ofCons erv a ti o n & 

### a p eri o d o f 2 1 y ear s , the u se o f th e prop erty w a s all o f th e follo wi n g : (1 ) ad v er se; (2 ) o pen ; (3) 7 56 ( P a . S up er. 1985 )

. In o rder t o make o ut a claim fo r an e asement , a p arty mu s t pr ov e th at , for (5) h os til e , and ( 6 ) co ntinu ous u s e (7) fo r twenty -on e y ear s. Dunlap v . La rkin , 

### 493 A.2 d 7 50 , p os s ess i o n , a p arty mu s t s h ow an : (I ) 

### ac tu al , (2) v i s ible , (3) 

### n o t o ri o us , (4 ) 

### e x clu s i v e and di s tin c t , th e e l e me nt s of thei r acqu is ition of th e ti tle. Se e id. 

### In m aking o ut a cl ai m for a dv er se