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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 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, 2015,1in 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 motion 

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”]) 

instituted 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 profits 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 [Appellant’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 Property," 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) statement 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 property 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 sanctions without a 

prior order?
J-A06044-17

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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 has 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 appellate 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 opinion 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 opinion as our 

own for purposes of further appellate review and affirm the judgment on 

that basis.

Judgment affirmed.
J-A06044-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2017
I\ 1\11\ I \\\I\\ II 1m11 \\ 1111 

13070364700161 

Railroad Recovery, lnc Vs Masi Etal-OPFLO 

area within the disputed property. 

amend their counterclaims to assert a claim for adverse possession for the "Payload Property," an 

Defendants John Giunup's and Michael Pettacio's (collectively "Pettacio Defendants") motion to 

Count Ill of the Plaintiff's Amended Complaint, which sought mesne profits and rents; and (3) 

Defendant Brian Mast in his individual capacity; (2) the Defendants' Motion for Nonsuit to 

Plaintiffs case, the Court granted: (1) the Defendants' Motion for Nonsuit of all counts against 

between March 11, 2015 and March 17, 2015. On March 13, 2015, following the close of 

After an extended period of discovery, this matter was scheduled for a non-jury trial 

(Count III). 

recover mesne profits and rent as a result of its alleged dispossession of the disputed property 

possession of) the disputed property. Plaintiff also sought injunctive relief (Count II) and to 

on July 26, 2013, seeking an ejectment of the Defendants (Counts I & II) from (and a recovery of 

( 

Plaintiff Railroad Recovery Inc. ("Plaintiff') instituted this action against the;Defer!f.!ants 

A. PROCEDURAL HISTORY 

OPINION 

r-, ": 

c Defendants 

Brian Mast, Sixth Street Management 

Corp., John Giunup, and Michael 

Pettacio 

v. No. 130703647 

Plaintiff 

Railroad Recovery Inc., July Term 2013 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

Circulated 05/16/2017 02:46 PM
2 

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 

deposition. 

2. Judge Fox allowed discovery court to be intentionally misled where an action 

for mesne profits is intended to disgorge defendants of their ill-gotten profits 

(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 indenture in fee simple subject to a condition subsequent is not an 

easement, 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 

erroneous. 

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 Development Corp., 2014 PA Super. 237, 103 A.3d 83 (2014). 

6. The 1854 Dickinson Deed conveyed a fee simple subject to a condition 

subsequent, as it provides 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; 

that 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 successors and assigns 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,") which does not conflict with the 

grant ("the entire and exclusive use, right, liberty and privilege of using and 

occupying and enjoying for Rail Road purposes") use of present tense of 

words of conveyance ("doth Grant Bargain Sell Release and Confirm, unto the 

said The North Pennsylvania 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 November 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 said 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 defendants' predecessors in title was to "thereupon (immediately) 

repossess" any interest they 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 remaining 

interest in the conveyed strip of land to the adjacent owners; contradicting the 

admission of their expert such proof was necessary to identify the interest of 

defendants. 

11. There is not clear and convincing evidence the drafters of the 1854 Dickinson 

Deed intended a warranty clause was necessary as the Railroad Law of 1849 

allowed the railroad to take land by eminent domain; or that Dickinson 

intended to warrant she had title to the 9 acres conveyed, of her 221 acres of 

North Philadelphia, spanning four boroughs, towns and townships, against 

adverse possessors. 

12. There is not clear and convincing evidence the drafters of the 1854 Dickinson 

Deed intended to create an easement. 

13. The findings and conclusions of the trial court con firm all of the referenced 

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" (statement 

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 subsequent the failure of which would create a right of reversion, 

"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"). 

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 Commission 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 use the easement permanently. No single factor alone is 
4 

sufficient to establish the intent to abandon. Abandonment must be 

determined based upon all of the surrounding circumstances. Buffalo Tp. v. 

Jones, 571 Pa. 637, 646, 813 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 service with the ICC and planning 

for dismantling of the rails. However, Conrail took other steps evidencing 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 evidence Conrail undertook external affirmative acts of physical 

obstruction that carried out its intent to abandon its property interest in the 

disputed land which rendered the use of the disputed land impossible or 

created some physical obstruction in a manner that is inconsistent with its 

further enjoyment. Hence, the rail roadbed has 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 evidence, 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 abandon its interest but maintained dominion where it 

subsequently entered into agreement 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 of 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 Michael 

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 bring real party 

in interest onto the record. 

25. To establish a claim for a permanent injunction, the party must establish his or 

her clear right to relief. However, unlike a claim for a preliminary injunction, 

the party need not establish either irreparable harm or need for immediate 

relief and a 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." Buffalo 

Tp. v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663 (Pa. 2002). 
5 

B. FACTS 

I. The Parties and the Disputed Property 

This dispute arises out of the ownership of a portion of a strip of land that extends across 

five 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 

Street Management Corporation ("Defendant Sixth Street") owns property located at 4455 North 

6th 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 Payload Disposal. Plaintiff is a Pennsylvania corporation formed 

by Mr. Thomas Clauss. (N.T. 3/17/15 at 37-38). Mr. Clauss is the Plaintiffs president, sole 

officer, and sole shareholder. (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 title 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 disputed area within the Sixth Street Property encompasses a total area of 6,703.2 

square feet or .1539 acres. (Id. at 3). The disputed area within the Sixth Street Property runs 

through the middle of an existing gravel and dirt area and is partially bordered by: (a) on the 

southern boundary by an aluminum fence gate, and (b) on the eastern boundary by a chain-link 

fence 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 disputed area within the Payload 

Property runs through two existing one story office buildings, 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 

Pennsylvania Railroad Company conveyed its interest under the Dickinson Deed to Consolidated 

Rail Corporation ("Conrail"). (Findings 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 United States Railway 

Association and awarded the North Pennsylvania Rail Road 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 disputed property. (Findings of Fact and Conclusions of Law, 5); (Plf. 

Exh 14). Conrail effectuated the abandonment of the disputed property by removing the railway, 

thus relieving itself of any obligations to provide rail services over the disputed property. 

(Findings of Fact and Conclusions of Law, 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. 3117115). 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 deed. (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 "Quitclaim Deed of Confirmation" (the "2012 Confirmation Deed"). 

(Findings of Fact and Conclusions of Law, 7). Conrail was asked to prepare the deed because 
8 

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, 

3/16/15 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 the 
9 

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 

Defendant Sixth Street, stating specifically in his conclusions of law that Ms. Miller "does not 

have 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 because the Plaintiff 

failed to execute and deliver a deed to her as provided by the 1998 installment contract. (N .T. 

3/3/16/15 at 147-48); (N.T. 3/17 /15 at 48); (Findings of Fact and Conclusions of Law, 9). Ms. 

Miller and the Plaintiff settled those cases and thereafter entered into an agreement wherein the 

Plaintiff promised to prosecute the instant case. (N. T. 3/17 /15 at 48). 

V Defendants' Asserted Chain of Title to the Sixth Street and Payload Properties 

The Defendants' chain of title begins with an 1862 deed executed by the trustees of Ms. 

Dickinson to the Defendants' predecessor-in-title, Gustavus G. Logan ("Logan-Dickinson 

Deed"). (Findings of Fact and Conclusions of Law, 10). The Dickinson-Logan provides that the 

property extended 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. (Findings 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 sole 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 scheduled deposition, but merely state that "reasonable notice" must 

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. 3/13/15 at 161). The deed conveying the Sixth Street 

Property to Defendant Sixth Street ("Sixth Street Deed") is a warranty deed. (Def. Tr. Exh. 54 ). 

The legal description contained in the Sixth Street Deed provides that the property extends from 

"the southeasterly side of 6th 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. (Def 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 6111 Street; thence along the said side of 61h Street South ... to the center line 

of the North Pennsylvania Railroad." (Id.). 
I I 

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

Egelkamp v. Egelkamp, 524 A.2d 501, 504 (Pa. Super. 1987). 

In the instant case, the Plaintiffs 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. (Def Mot. To Compel, l; 

Exh. A). The depositions were scheduled for August, 27, 2014 at 10:00 A.M., with a 

rescheduling date 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 compel 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). The 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 compelling the deposition set the earliest possible date for 

said deposition four days 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 set by 
12 

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, 

Plaintiffs argument that Judge Sarmina's Order was an abuse of discretion, and that the notice 

given to Plaintiff was unreasonable, is without merit. 

II Discovery Hearing Request Denial 

The 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 must be exercised on the foundation of reason, as 

opposed to prejudice, personal motivations, caprice or arbitrary actions. Id. Discretion is abused 

when the course pursued represents not merely an error of judgment, 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 claims that 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 discovery is encouraged, the policy favoring generous discovery 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 

returns 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, 42-45 
13 

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 case. 

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 

prosecuted by and in the name of the real party in interest, without distinction between contracts 

under seal 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 Assessment Appeals, 747 A.2d 1242, 1246 n.9 (Pa. 

Cmnwlth. 2000). A plaintiff who is not the real party in interest has no standing to maintain the 

action. 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 

mortgage. Stillwater Lakes Civic Assoc. v. Krawitz, 772 A.2d 118, 121 (Pa. Cmnwlth 2001). 

The 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 1976). 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 Authority 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 execute 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 essential to its validity or the transition 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 seller 
16 

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 Conveyance 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. 

03/16/15 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 Sixth 
18 

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 

disputed property in 1988, the Defendants have shown that they own their respective portions of 

the disputed property in fee simple. See Dellach v. DeNinno, 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 thus succeed, regardless of the weaknesses of the Plaintiffs case. See Plauchack, 653 A,2d 

at 675 n.3. 

Plaintiff contends that this Court erred by ruling on the Defendants' counterclaims 

because Ms. Miller was not a party to this action. A party is indispensable only when his or her 

rights are so connected with the claims of the litigants that no decree 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 her 
19 

( 1) the nature and quantity of the interest conveyed must be ascertained from 

the instrument itself and cannot be orally shown in the absence 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 is to ascertain and 

Evidence 

of-Way/ Easement Interest in the Disputed Property Was Supported by Competent 

A. The Court's Conclusion That the 1854 Dickinson Deed Conveyed a Railroad Rightconclusions of law is without merit. 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 

predecessor-in-interest had extinguished that easement in 1988 was well supported by the 

Dickinson Deed conveyed an easement interest in the disputed property and that the Plaintiff's 

evidence. Corbin, 716 A.2d at 617. In the instant case, this Court's conclusion that the 1854 

The trial court's decision will not be reversed 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 ejectment 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 Plaintiff claims that the Court erred in concluding that Plaintiff failed to meet their 

JV The Plaintiff's Ejectment Action 

suffered no prejudice by her decision 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. 3/16/15 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 own 
20 

5 This 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 easement holder's use of the land.). As such, while presence of a release is indicative 

of intent, the absence of a release of liability in the document is not indicative one way or the other of the parties' 

intent to convey an easement/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 the deed do not elucidate the intention of the parties to convey a lesser interest. See 

Brookbank, 131 A.2d at 159-61. Additionally, the amount of consideration paid for the interest 

is also indicative of the parties' intent 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 indicates 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 supported the 

conclusion that the 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 Company, their successors and assigns, the right, liberty, and privilege of 

entering upon 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 purposes convenient or necessary for a Rail Road." Quarry, 576 A.2d at 

431-32 (emphasis added). 

held the interest conveyed was an easement/right-of-way even though the deed conveying the 

conflicts with the granting clause. In Fleck v. Universal-Cyclops Steel Corp., the Supreme Court 

the presence of a habendum clause 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, 

that 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 of such a clause is not sufficient to find that that the parties intended to convey a fee. 

Third, while it is true that the 1854 Dickinson Deed contains a habendum clause, the 

the effect and meaning that the parties intended to convey a railroad right-of-way/easement. 

"keeping 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 purposes" 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 Office Park Assoc. v. Philadelphia Elec. Co., 576 A.2d 358, 362~63 (Pa. Super 1990)6, 

different than the language in the 1852 instrument conveying a railroad right-of-way discussed in 

the 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 maintaining thereon 
23 

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 used 
24 

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 encumbrances [such as an easement], burdens, 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."). 

DICTIONARY 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 

repossess (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 & 

Penn. 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. 

Pennsylvania 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, 1189 
27 

(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 
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Dated: May 13, 2016 DENIS P. COHEN, J. 

BY THE COURT: 

For the foregoing reasons, the decision of this Court should be affirmed. 

D. CONCLUSION 

Defendants' counterclaim fails due to the statute of limitations is without merit. 

purchased it in 2004. (N.T. 3/15/15 at 117-18). Thus, the Plaintiffs argument that the 

Defendants, rather than the Plaintiff, had been in continuous use of the property since they 

the Defendants produced evidence to the contrary when Defendant Giunup testified that the 

the Defendants' ownership of the property through an adverse means of title acquisition. In fact, 

In the instant case, Plaintiffs did not even attempt to make an argument that they had cut off 

Nat. Res .. Bureau of State Parks, 699 A.2d 775, 784 (Cmwlth 1997). 

notorious; and (4) continuous and uninterrupted. Odelle's, Inc. v. Com .. Dep't ofConservation & 

a period of 21 years, the use of the property was all of the following: (1) adverse; (2) open; (3) 

756 (Pa. Super. 1985). In order to make out a claim for an easement, a party must prove that, for 

(5) hostile, and (6) continuous use (7) for twenty-one years. Dunlap v. Larkin, 493 A.2d 750, 

possession, a party must show an: (I) actual, (2) visible, (3) notorious, ( 4) exclusive and distinct, 

the elements of their acquisition of the title. See id. In making out a claim for adverse