J-A28032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J&D BROTHERS, INC., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

OSCAR J. CRIST, DOROTHY G. CRIST, 

WILLIAM SIMON, CAROLYN SIMON, 

STEVEN SCHNEIDER, CHERYL S. 

SCHNEIDER,

Appellees No. 562 EDA 2016

Appeal from the Order February 12, 2016

in the Court of Common Pleas of Lehigh County

Civil Division at No.: 2013-C-0310

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 26, 2017

Appellant, J&D Brothers, Inc., appeals from the order entered in this 

case on February 12, 2016, following this Court’s November 4, 2015 remand 

of it. For the reasons discussed below, we affirm.

In our previous decision in this matter, we adopted the trial court’s 

underlying findings of fact. (See J&D Brothers Inc. v. Finnegan, 1014 

EDA 2015, unpublished memorandum at *2 (Pa. Super. filed November 4, 

2015); Trial Court Opinion, 11/06/14, at 2-5). We take the procedural 

history in this matter from this Court’s prior decision.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant filed a declaratory judgment action to determine 

whether an easement existed with regard to Beacon Road. A 

non-jury trial was held on July 15, 2014. The trial court entered 

judgment on November 6, 2014, finding, inter alia, that 

Appellant possessed a prescriptive easement over Beacon Road 

as it transverses over Appellant’s properties. The court found 

that Appellant “as owner of the dominant estate, has the right to 

unobstructed use of Beacon Road for any purpose related to the 

communications tower on [Appellant’s] property or for 

recreational activity up to two times per month.” Appellant filed 

post[-]trial motions on November 17, 2014. Appellees filed 

post[-]trial motions on December [1], 2014. The trial court 

entered a clarification order on March 13, 2015 which provided 

that Appellant had unobstructed and unlimited use of Beacon 

Road for the purposes of maintaining the road, for a reasonable 

amount of time for recreational use, and for two days per month 

for any purpose related to the communications tower. 

(J&D Brothers Inc., supra at * 2 (record citations omitted)).

On appeal, Appellant argued that the trial court had wrongly 

constrained its “unobstructed use of the subject easement to an unlimited 

number of times two days per month for any purpose related to the 

communications tower[.]” (Id. at *3). After a thorough review, this Court 

found Appellant was entitled to “limited relief.” (Id. at *6) (emphasis 

added). We stated:

. . . the trial court abused its discretion in entering an order 

which restricted the use of the prescriptive easement to two 

days per month in light of its finding that Appellant leased the 

communications tower to AT&T for telephone, cellular and 

emergency communications services. The prescriptive easement 

had been used for modifications of the communications tower, 

following Hurricane Sandy and for emergency repairs. AT&T had 

not been limited in its access to the property via Beacon Road 

during the prescriptive period. Denying access to the 

prescriptive easement for emergency repairs and to effect 

changes to comply with the law would be unreasonable. We 
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reverse and remand for entry of an order consistent with this 

memorandum.

(Id. at **8-9) (record citations and case citations omitted).

On December 23, 2015, the trial court issued an order directing both 

parties to submit proposed orders consistent with this Court’s opinion. (See 

Order, 12/23/15, at unnumbered page 1). This Court is unable to determine 

from the record whether the parties complied. On February 12, 2016, the 

trial court issued an order, which stated, in pertinent part:

[Appellant], as owner of the dominant estate, has the right to 

unobstructed use of Beacon Road for purposes related to the 

communications tower on [Appellant’s] property a reasonable 

number of times two days per month. This limitation shall not 

apply in the event that emergency repairs are required or to 

effect changes in the communications tower made necessary by 

changes in the law[,] which cannot be accomplished within the 

two days per month.

(Order, 2/12/16, at unnumbered pages 1-2 ¶ 3) (emphasis added).

On February 19, 2016, Appellant filed the instant, timely appeal. On 

March 3, 2016, the trial court directed Appellant to file a concise statement 

of errors complained of on appeal. See Pa.R.A.P. 1925(b). On March 31, 

2016, Appellant filed a timely Rule 1925(b) statement. See id. On April 20, 

2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

1. [Did] the trial court err[] when it limited Appellant, its agents 

and/or its[] lessees unobstructed use of the subject easement to 

a reasonable number of times two days per month for any 

purpose related to the communications tower located on 

Appellant’s property[?]
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2. [Did] the trial court err[] when it limited Appellant, its agents 

and/or its lessees unobstructed use of the subject easement 

despite holding that it had not been limited in its access to the 

property during the prescriptive period[?]

3. [Did] the trial court err[] when it limited Appellant, its agents 

and/or its lessees unobstructed use of the subject easement to a 

“reasonable number of times two days per month”, contrary to 

the status quo which has always been 24/7 access for anything 

and everything related to the communications tower enjoyed by 

Appellant, its agents and/or lessees during the prescriptive 

period; creating limitations to access that never existed[?]

4. [Did] the trial court err[] when it limited Appellant, its agents 

and/or its lessees unobstructed use of the subject easement to 

“a reasonable number of times two days per month, except in 

the event that emergency repairs are required or to effect 

changes in the communications tower made necessary by 

changes [in] the law”[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

Because Appellant’s four issues are closely related, we address them 

together. In essence, Appellant complains that the trial court improperly 

interpreted the scope of our remand order, and its February 12, 2016 order 

improperly limited Appellant’s access to the communications tower. (See 

Appellant’s Brief, at 11). The issue of whether a trial court properly 

interpreted the scope of a remand order is a matter of law. See In re 

Lokuta, 11 A.3d 427, 438 (Pa. 2011), cert. denied, 132 S. Ct. 242 (2011). 

Here, as in all appeals raising matters of law “our standard of review is de 

novo, and our scope of review is plenary.” Schwartz v. Rockey, 932 A.2d 

885, 891 (Pa. 2007).
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When a case is remanded, “a trial court has an obligation to comply 

scrupulously, meticulously, and completely with an order of [the appellate 

court] remanding a case to the trial court.” Commonwealth v. Williams, 

877 A.2d 471, 474 (Pa. Super. 2005), appeal denied, 895 A.2d 1261 (Pa. 

2006) (citation omitted). The trial court is required to “strictly comply with 

the mandate of the appellate court.” Id. at 474-75 (citation omitted). 

Issues not included in the mandate cannot be considered by the trial court. 

See id. at 475. 

Here, Appellant complains that the remand order wrongly limited its 

unobstructed use of the communications tower to two days per month, even 

though it had not been previously limited in its use of the property, thus the 

order raised limitations that had not previously existed. (See Appellant’s 

Brief, at 4). This is virtually identical to the claim Appellant made in the first 

appeal. (See J&D Brothers Inc., supra at *3). 

In our previous memorandum, the sole concern we expressed with the 

trial court’s decision was the need to access the tower for emergency repairs 

and to effect changes to comply with the law. (See id. at **8-9). For this 

reason, we noted that our remand was “limited,” and we remanded for the 

narrow purpose of the entry of an order that addressed our concerns. (Id. 

at *6, *9). Thus, the scope of the remand only allowed the trial court to 

address the issues of emergency repair and access to comply with changes 

of law. (See id.). The trial court issued an order in compliance with the 
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remand, stating that the restrictions did not apply to cases of emergency 

repairs or to situations where alterations in the tower were necessary 

because of changes of law. (See Order, 2/12/16, at unnumbered pages 1-2 

¶ 3). Therefore, the trial court properly limited its order to the issues we 

highlighted and appropriately addressed our concerns. See 

Commonwealth v. Tick, Inc., 246 A.2d 424, 426 (Pa. 1968) (“It was the 

duty of the court below, on remand, to comply strictly with our mandate and 

such compliance required the court to proceed in a manner consistent with 

the views expressed in our opinion[.]”) (citation omitted); Williams, supra 

at 474-75. Appellant’s general attack on the portions of the April 12, 2016 

order, which were identical to those we found acceptable in the March 13, 

2015 order, are simply beyond the scope of the remand and cannot be 

reviewed in this appeal. See Commonwealth v. Lawson, 789 A.2d 252, 

253 (Pa. Super. 2001) (“where a case is remanded to resolve a limited 

issue, only matters related to the issue on remand may be appealed.”) 

(citation omitted). Thus Appellant’s claims, which do not challenge the trial 

court’s handling of the emergency repairs and change of law issues, are not 

properly before us. See id.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/2017