J-A12019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

S & R COAL COMPANY, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RAUSCH CREEK LAND, L.P., :

:

Appellant : No. 1589 MDA 2014

Appeal from the Order entered August 22, 2014,

Court of Common Pleas, Schuylkill County,

Civil Division at No. S-559-2012

S & R COAL COMPANY, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

RAUSCH CREEK LAND, L.P., :

:

Appellee : No. 1688 MDA 2014

Appeal from the Order entered August 22, 2014,

Court of Common Pleas, Schuylkill County,

Civil Division at No. S-559-2012

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MAY 15, 2015

Rausch Creek Land, L.P. (“RCL”) appeals from the August 22, 2014 

order entered by the Schuylkill County Court of Common Pleas (the “trial 

court”). Specifically, RCL appeals the trial court’s determination that the 

phone and electrical lines for use by S & R Coal Company (“S & R”) must be 

along the newly constructed roadway. S & R cross-appeals from the August 
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22, 2014 order based upon the trial court’s denial of its request for costs, 

expenses and attorneys’ fees. After careful review, we find no error by the 

trial court in requiring the phone and electrical lines to be placed along the 

newly constructed roadway, but that it erred by denying S & R’s request for 

costs, expenses and attorneys’ fees.1

 

1

 On December 12, 2014, S & R filed a motion to strike certain documents 

included by RCL in its reproduced record filed with this Court on appeal. In 

particular, S & R contends it was improper for RCL to include RCL’s motion 

for reconsideration, an application for stay of the trial court’s August 22, 

2014 order filed before the trial court, the notes of testimony from the 

October 30, 2014 proceeding regarding RCL’s motion for stay, the exhibits 

entered at the October 30, 2014 proceeding, and an application for relief 

related to the stay request before this Court. According to S & R, these 

items were not available for the trial court’s consideration prior to its August 

22, 2014 decision in the matter and thus not properly considered on appeal. 

Rule 2152 of the Pennsylvania Rules of Appellate Procedure, which 

addresses the contents of the reproduced record, provides, in relevant part:

(a) General rule. The reproduced record shall 

contain:

(1) The relevant docket entries and any relevant 

related matter (see Rule 2153 (docket entries and 

related matter)).

(2) Any relevant portions of the pleadings, charge or 

findings or (see Rule 2175(b) (order and opinions) 

which provides for a cross reference note only to 

orders and opinions reproduced as part of the brief 

of appellant).

(3) Any other parts of the record to which the parties 

wish to direct the particular attention of the appellate 

court.

Pa.R.A.P. 2152(a). All of the complained-of filings are included in the 

certified record on appeal. Thus, pursuant to the above-quoted rule, we find 

no error in RCL’s inclusion of these filings in its reproduced record. We 

therefore deny S & R’s motion to strike.
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The inception of this case dates back to March 15, 2012, at which time 

S & R filed a complaint seeking an injunction to prohibit RCL from interfering 

with S & R’s use of an easement (a road) over RCL’s property that RCL’s 

predecessor in interest had granted to S & R’s predecessor in interest. 

Thereafter, RCL filed a competing complaint for an injunction seeking to 

terminate S & R’s use of the easement. Following hearings on both matters 

before the trial court, the parties entered a stipulation on December 6, 2012, 

entitled “Memorandum of Understanding with Regard to Settlement” (the 

“Stipulation”), providing for a new easement for S & R’s use across RCL’s 

land and for utilities – phone and electrical service – also to be located on 

RCL’s land. The Stipulation set forth various rights and responsibilities of 

both parties as it related to the easements and a general description of what 

the completed road would look like, but contemplated that the parties would 

have a survey performed to determine its precise location. The Stipulation 

further anticipated the completion of the bulldozing and excavation of the 

road by December 6, 2013.

On March 6, 2014, RCL filed a document in the trial court entitled, 

“Petition for Rule to Show Cause Why an Easement in the Form Attached 

Hereto Should Not Be Executed and Recorded as Contemplated Under the 

Stipulation Approved and Entered as an Order of Court on December 7, 

2012” (“RCL’s Petition”). Therein, RCL indicated that the location of the new 

road was decided and agreed to by S & R but that RCL had not met the 
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December 6, 2013 deadline for completion of construction, detailing the 

efforts it had made leading up to the filing of RCL’s Petition. At the time of 

the filing of RCL’s Petition, RCL also had not entered into agreements with 

PP&L and Frontier (the electric and telephone companies) regarding the 

placement of lines for S & R’s use. RCL requested that the trial court order 

S & R to execute the draft easement, attached to RCL’s Petition as Exhibit L 

(“draft easement”), “or in such form as the [trial c]ourt determines to be 

reasonable according to the circumstances of this case.” RCL’s Petition, 

3/6/14, ¶ 23.

S & R responded on March 21, 2014, filing an answer to RCL’s Petition 

with new matter and counterclaim, requesting that the trial court deny RCL’s 

Petition, order RCL to pay S & R’s costs, expenses, and counsel fees 

associated with responding to RCL’s Petition (as provided for in the 

Stipulation), and require RCL to comply with the Stipulation. Specifically, S 

& R identified the following differences between the draft easement and the 

Stipulation:

32. The documents are significantly different with 

respect to the grade of the roadway, in that:

a. The Stipulation states “the cartway shall not at 

any point have a grade greater than 10%.” 

[Stipulation] P. 3;

while 

b. The easement R.C.L. seeks to impose states “to

the greatest extent possible, the East/West Access 

Road shall not have grades of greater than ten 

percent (10%) that would make travel by tri-axle 

dump trucks or tractor and single dump trailer-
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combinations unreasonably difficult.” R.C.L.’s 

Petition, Ex. “L”, P. 4. ...

33. Another component relating to the grade of the 

road is also significantly different between the 

documents in that:

a. The Stipulation states that “the C to F leg of 

the original Easement shall have no sharp turns and. 

shall not have a grade that is greater than five 

percent (5%) on any portion of the cartway erected 

thereon.” [Stipulation] P. 4;

b. The easement which R.C.L. seeks to impose 

contains no such equivalent provision, and instead 

states that “to the greatest extent possible” the 

grade will not exceed ten percent. R.C.L.’s Petition, 

Ex. “L”, P.3;

34. The documents are also significantly different 

with respect to agreed-upon turning radiuses, which 

are critical given the nature of S & R’s business, in 

that:

a. The Stipulation states that “the width of the 

cartway turns and the easement may exceed thirty 

(30’) feet in width as may be reasonably necessary 

to facilitate adequate turning radius for large trucks 

and heavy equipment. [Stipulation] P. 3;

while

b. The easement R.C.L. seeks to impose states 

“the East/West Access Road shall be configured so 

that there are no turns of a radius that would make 

the East/West Access Road impassible by tri-axle 

dump trucks and tractor and single dump trailer 

combinations.” R.C.L.’s Petition, Ex. “L”, P. 3-4.

35. Another major difference with respect to the 

documents pertains to utilities, and the costs to be 

paid with respect to installation of utility, in that:

a. The Stipulation not only grants the utility 

easement, but states “all costs associated with this 

Utility Easement and the construction of the phone 

and electric lines shall be borne by R.C.L.” 

[Stipulation] P. 2;

while
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b. The easement R.C.L. seeks to impose does not 

state that R.C.L. will pay for the costs associated 

with the construction of utilities, and further states 

that “S & R and R.C.L. agree that this stipulation and 

order described in the background section of this 

Agreement, above, ... shall be superseded by this 

Agreement...” R.C.L.’s Petition, Ex. “L”, P.11.

36. The documents are also significantly different 

with respect to requirements of S & R to obtain 

insurance, in that:

a. The Stipulation contains absolutely no provision 

whatsoever requiring S & R to maintain insurance, 

let alone to name R.C.L. or its affiliates as additional 

insureds. See generally [Stipulation];

while

b. The easement R.C.L. seeks to impose extensive 

insurance provisions spanning almost two full pages, 

requiring a multitude of insurance, including workers 

compensation, two million dollars in comprehensive 

general liability, at least one million dollars in 

automobile liability, and which further demands S & 

R to name various R.C.L. entities and affiliates as 

additional insureds, place further insurance 

requirements on tenants of S & R which use the S & 

R property, and which also impose insurance 

requirements on other persons and entities which 

utilize the East/West access road to get to and from 

the S & R property, and for S & R and such 

persons/entities to provide insurance certifications to 

R.C.L. R.C.L’s Petition, Ex. “L”, P. 8-10.

37. In addition to the foregoing, yet another 

fundamental difference between the documents 

involves the maintenance obligations as to the 

easement route, in that:

a. The Stipulation does not impose any ongoing 

maintenance obligations upon S & R, and simply 

requires S & R to provide crushed stone during the 

construction phase of the easement, to be placed 

upon the cartway by S & R to S & R’s satisfaction. 

[Stipulation] P. 3 & 4;

while
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b. The proposed easement agreement imposes 

the additional burden upon S & R to maintain the 

easement;

c. In the easement (Exhibit “L”) R.C.L. seeks to 

impose an extensive maintenance provision, 

requiring S & R to not only maintain the road, but to 

place additional crushed stone for paving, as well as 

perform snow removal, deicing, and all related costs 

and expenses necessary to keep the road in a 

usable-condition, with the only exception being for 

maintenance needed due to the use of parties other 

than S & R. R.C.L’s Petition, Ex. “L”, P. 6. The effect 

of which is to provide R.C.L with a roadway and to 

require that it be maintained without R.C.L. having 

any responsibility to maintain the roadway or to 

correct damage to that roadway which it causes, 

regardless of whether S & R uses or continues to use 

the roadway;

d. For a matter of clarity, this maintenance 

provision is especially burdensome upon S & R, as it 

would require S & R to not only keep the road 

serviceable from wear and tear from the S & R use, 

but also assume the risk of and abate road damage 

caused by others, including R.C.L.

* * *

40. Other major differences between the documents 

at issue involve the requirements of S & R with 

regard to the bonded haul road:

a. The Stipulation requires that “S & R shall take 

no action to vacate or abandon the existing 

easement across the property of Timber Coal 

Company and commonly referred to by the parties is 

the bonded haul road.” [Stipulation] P.6;

b. The equivalent provision the proposed 

easement imposes a duty upon S & R as follows: “at 

no time shall the use of the then existing location of 

the bonded haul road be abandoned or terminated 

until work on its succeeding location has been 

completed.” See R.C.L.’s Petition, Ex. “L”, P.7.

c. The effect of the new and added language in 

the proposed easement is to compel S & R to 

perform construction on an easement in the event 
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the other party using the easement wishes to 

relocate it or cause it damage. This effectively 

requires S & R to police the actions of others with 

regard to the easement, a duty which was not 

imposed by the Stipulation.

41. The proposed [e]asement [a]greement also 

differs from the Stipulation as follows:

a. The Stipulation requires that the construction 

and installation of both the electric utility and 

telephone lines be completed before R.C.L. is able to 

remove the existing roadway. [Stipulation] P.5 iii D, 

E;

b. The proposed easement does not provide for

the connection of the telephone and electric 

easement prior to the excavation of the haul road. 

R.C.L.’s Petition Ex. “L”, P.10.

42. Another major difference between these 

documents involves the termination of S & R’s ability 

to use the property:

a. The Stipulation does not contain any provision 

terminating S & R’s right and, in fact, states that S & 

R shall “at all times” have access both for electric 

and telephone lines, as well as to its property over 

and across R.C.L.’s property. [Stipulation] P.6 iii F;

b. The proposed easement in paragraphs 7, 15 

and 16 of the proposed easement provide express 

language which results in the termination of S & R’s 

easement. R.C.L.’s Petition, Ex. “L”, P.5, 10, 11.

43. With respect to the requirement of R.C.L. to 

provide title insurance for the original easement to S 

& R the following provisions are applicable:

a. The Stipulation provides: “Title to the 

easement shall be good and marketable title, and 

R.C.L. shall provide a title insurance policy insuring 

the same with a value of $500,000.00.” [Stipulation] 

P.3;

b. There is no comparable provision in the 

proposed [e]asement [a]greement. R.C.L.’s Petition, 

Ex. “L”, P.11.
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44. Another major difference between the 

documents at issue involves the use of the proposed 

easement by Russell White:

a. The Stipulation states the [S & R] shall not 

authorize the use of the easement by Russell White, 

Whitey Wash Enterprises or any of his or its 

employees, heirs, successors or assigns.” 

[Stipulation] P.6;

b. The proposed easement expands the 

prohibition to any business in which Russell White or 

Ronald White has an interest and prohibits such 

parties’ presence on the easement;

c. The proposed easement further provides for the 

forfeiture of S & R’s rights under the easement in the 

event that any person described in the proposed 

easement is found to be present on the easement. 

R.C.L.’s Petition, Ex. “L”, P. 5, 6;

d. This proposed provision in the easement 

effectively requires S & R to place a guard at the 

entrance of the proposed easement and to perform 

the background check on any and all persons who 

enter the easement area.

45. Another major difference between these 

documents at issue involves attorneys’ fees for a 

breach of the agreements, in that:

a. The Stipulation states that “if there is a breach 

of this agreement by any party, the prevailing party 

in any litigation to enforce these provisions, shall be 

entitled to recover all costs, expenses and attorneys’ 

fees incurred in such litigation.” [Stipulation] P. 3;

while

b. There is no equivalent provision on litigation 

costs in the easement which R.C.L. seeks to impose, 

but that easement does contain a provision 

superseding the terms of the Stipulation which would 

nullify the provision pertaining to attorneys’ fees in 

the event of breach. See generally, [Stipulation] P. 

3.

* * *
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49. The Stipulation does not contain any provision 

relating to an indemnification by either party of the 

other party in this proceeding. However, Exhibit “L” 

to [RCL’s] Petition contains[,] at paragraph 13[,] a 

completely new provision with respect to 

indemnification of R.C.L. by S & R.

Counterclaim, 3/21/14, ¶¶ 32-49 (emphasis in the original).

The trial court held hearings on April 30, May 28 and June 11, 2014. 

Both parties presented testimony and evidence in support of their respective 

positions. Following its receipt and review of proposed findings of fact and 

conclusions of law and memoranda filed by both sides, the trial court issued 

an opinion and order on August 22, 2014. The trial court ordered RCL to 

grant PP&L and Frontier Communication an easement for the placement of 

utility lines along the newly constructed roadway and to pay for the cost of 

the electric and telephone lines; denied S & R’s request for counsel fees; and 

approved the easement agreement drafted by S & R and submitted with its 

proposed order of court. The easement agreement provides as follows:

1. [RCL] does hereby grant and convey unto the 

[S & R], its successors and assigns, an easement 

over and across the property of the [RCL] for 

purposes of ingress, egress and regress access, and 

the placement of utilities, which easement shall be 

generally thirty (30) feet in width and shall be 

located as more specifically shown in red on the 

attached exhibit.

2. [S & R] accepts the general path of this 

easement as set forth on Exhibit “B” and agrees that 

the grade of the constructed roadway is acceptable.
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3. The [e]asement may be expanded to greater 

than 30 feet wide as required by Paragraph I (D) of 

the [Stipulation] to accommodate large trucks and 

heavy equipment.

4. All other duties, obligations, requirements of 

the parties as set forth in the [Stipulation] are 

hereby affirmed, acknowledged, and incorporated 

herein by reference.

Easement Agreement.

On September 10, 2014, RCL filed a motion for clarification or 

reconsideration, requesting “an order confirming that relocating electric and 

phone utilities” to a location other than adjacent to the newly constructed 

road “would be consistent with the [trial court’s] August 22, 2014 [o]rder,” 

or for the trial court reconsider its prior decision and to enter an order 

permitting the same. Motion for Clarification or Reconsideration, 9/10/14, at 

4. S & R filed an answer on September 16, 2014 opposing RCL’s request. 

Also on September 16, 2014, RCL filed its own motion for reconsideration of 

the trial court’s denial of its request for counsel fees. On September 17, 

2014, the trial court entered an order denying RCL’s motion for 

reconsideration. There is no order in the record indicating that the trial 

court ruled upon S & R’s motion for reconsideration.

RCL filed a timely notice of appeal on September 19, 2014, and 

thereafter, S & R filed a timely notice of cross-appeal. Both parties complied 

with the trial court’s orders requiring the filing of concise statements of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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On September 22, 2014, RCL filed an application for stay pending the 

disposition of its appeal. S & R filed an answer and new matter, requesting 

that the trial court dismiss RCL’s application for stay, or, in the alternative, if 

the trial court was to grant the request for stay, that the trial court require 

RCL to post security in the amount of $1,000,000 with the prothonotary of 

the trial court. The trial court held a hearing on October 14, 2014, and on 

October 30, 2014, the trial court entered an order staying the August 22, 

2014 order pending disposition of the instant appeal, and requiring RCL to 

deposit with the trial court prothonotary security in the amount of $510,000 

as a condition of the stay. On December 1, 2014, RCL filed a request for 

relief from the requirement that it post security as a condition of the stay, 

which this Court denied on December 12, 2014.

We begin by addressing RCL’s appeal, wherein RCL presents the 

following issues for our review:

A. Whether the trial court committed an error of law 

and abused its discretion in ordering RCL to execute 

and record an easement that located electric and 

phone utility lines along the newly constructed 

roadway and further directing RCL to grant PP&L and 

Frontier Communications an easement along said 

newly constructed roadway for electric and phone 

lines[?]

B. Whether the trial court committed an error of law 

and abused its discretion in ignoring the provisions of 

the [S]tipulation and order that allow RCL to relocate 

electric and phone lines that service the S & R 

property to a location or locations other than 

adjacent to the newly constructed roadway[?]
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RCL’s Brief at 6.

We review a trial court’s decision following a bench trial according to 

the following standard:

Our review in a non-jury case is limited to whether 

the findings of the trial court are supported by 

competent evidence and whether the trial court 

committed error in the application of law. We must 

grant the court’s findings of fact the same weight 

and effect as the verdict of a jury and, accordingly, 

may disturb the non-jury verdict only if the court’s 

findings are unsupported by competent evidence or 

the court committed legal error that affected the 

outcome of the trial. It is not the role of an appellate 

court to pass on the credibility of witnesses; hence 

we will not substitute our judgment for that of the 

factfinder. Thus, the test we apply is not whether we 

would have reached the same result on the evidence 

presented, but rather, after due consideration of the 

evidence which the trial court found credible, 

whether the trial court could have reasonably 

reached its conclusion.

Agostinelli v. Edwards, 98 A.3d 695, 704 (Pa. Super. 2014) (citation 

omitted). 

The interrelated questions raised on appeal question the trial court’s 

interpretation of the parties’ agreement. “Since contract interpretation is a 

question of law, our review of the trial court’s decision is de novo and our 

scope is plenary.” Bair v. Manor Care of Elizabethtown, PA, LLC, 108 

A.3d 94, 96 (Pa. Super. 2015) (citation and quotation marks omitted). The 

goal of contract interpretation is to “ascertain the intent of the parties.” 

Lenau v. Co-eXprise, Inc., 102 A.3d 423, 429 (Pa. Super. 2014)
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In the cases of a written contract, the intent of the 

parties is the writing itself. If left undefined, the 

words of a contract are to be given their ordinary 

meaning. When the terms of a contract are clear and 

unambiguous, the intent of the parties is to be 

ascertained from the document itself. When, 

however, an ambiguity exists, parol evidence is 

admissible to explain or clarify or resolve the 

ambiguity, irrespective of whether the ambiguity is 

patent, created by the language of the instrument, 

or latent, created by extrinsic or collateral 

circumstances. 

Id. at 429-30 (internal citations omitted). Language in a contract is 

“ambiguous” “if it is reasonably susceptible of different constructions and 

capable of being understood in more than one sense.” Id. at 430. (citation 

omitted). Furthermore, “contractual clauses must be construed, whenever 

possible, in a manner that effectuates all of the clauses being considered. It 

is fundamental that one part of a contract cannot be so interpreted as to 

annul another part and that writings which comprise an agreement must be 

interpreted as a whole.” Id. (internal citations and quotation marks 

omitted).

With this legal predicate in mind, we address RCL’s first issue raised on 

appeal. RCL contends that the trial court erred by requiring RCL to locate 

the utility lines for S & R’s phone and electric service along the newly 

constructed roadway. RCL’s Brief at 15. RCL asserts that this requirement 

is at odds with the language contained in the Stipulation, which permitted 

RCL to negotiate the location of the utility lines with the electric and phone 
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companies – PP&L and Frontier – without limitation. Id. at 15-16. RCL also 

points to a statement made by its counsel at the December 6, 2012 

proceeding, whereby RCL’s counsel indicated that it was the parties’ 

intention that placement of the utility lines along the newly constructed road 

would only occur if RCL was unable to work out arrangements with PP&L and 

Frontier for the placement of the lines elsewhere on RCL’s property. Id. at 

17-18, 23-26. RCL further cites to testimony provided at the hearings on 

RCL’s Petition in support of this position. See id. at 19-22.

The relevant language of the Stipulation states the following:

I. General Requirements.

A. RCL shall grant an easement to [S7R] over and 

across the portions of land owned by [RCL]. This 

easement will be for ingress, egress and regress 

access, and phone and electrical utilities, which 

easement shall be 30 feet in width and shall 

generally follow and be part of the easement 

described in Paragraph III(C) and I(D) hereof.

B. RCL shall grant PP&L and any phone company 

providing service to S & R and easement on the 

property of RCL, which easement shall be for the 

placement of power lines to be constructed by PP&L, 

and phone lines to be installed by the phone 

company, and RCL will cooperate and assist in 

obtaining approval from PP&L to place the power 

lines and phone lines. The easement shall be in a 

form as required by PP&L and the phone 

company, and as is acceptable to RCL, PP&L, 

and the phone company. ...

* * *
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D. RCL shall grant an easement for ingress, 

egress and regress, as well as location of 

electric and phone utilities for business 

purposes thirty (30) feet in width connecting 

the lands of S & R to Main Street (Route 4011) 

generally through points A to B, B to C, and C to 

F[.] ...

* * *

III. Phase II

C. The easement leg from Point A to Point B, Point B 

to Point C, and Point C to Point F is intended to be a 

permanent easement by the parties and to be a 

permanent source of access for S & R, provided that 

if RCL wishes to relocate the easement and the 

roadway located thereon, RCL shall relocate the 

roadway and easement and phone and 

electrical utilities, and shall bear all costs 

associated with the relocation of such easement and 

phone and electrical utilities[.]

* * *

F. It is the intention of the parties that S & R shall at 

all times have electrical and phone utility services to 

its property, and access over and across the property 

of RCL, which access, electrical and phone utility 

service shall be uninterrupted and generally 

consistent with the quality of the access and utility 

services existing at the time of this agreement.

Stipulation, 12/7/12, ¶¶ I(A), (B), (D), III(C), (F) (emphasis added). 

The above-quoted language is clear and unambiguous. All of the 

provisions concerning the location of the utility lines state that they will be 
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located along the newly constructed road.2 The language of paragraph I(B) 

concerning the grant of a separate easement to PP&L and Frontier for the 

placement of utility lines on RCL’s property addresses only the form, not the 

location, of the easement. See id., ¶ I(B). It does not itself permit RCL to 

place the utility lines at any location on its property agreed to by PP&L and 

Frontier, as RCL suggests. Rather, reading the relevant language of the 

Stipulation together, as we are required to do, the Stipulation provides for 

the placement of utility lines for S & R along the thirty-foot stretch of road 

that RCL constructed for S & R’s use.

Because the language of the Stipulation is clear and unambiguous, it is 

improper for the trial court or this Court to look to testimony provided at any 

of the proceedings to determine the intention of the parties with respect to 

the intended location of the utility lines. See Lenau, 102 A.3d at 429-30. 

As the trial court committed no error in its application of the law, this issue 

does not afford RCL relief. See Agostinelli, 98 A.3d at 704.

RCL further claims error in that the trial court’s order prohibits RCL 

from relocating the utility lines that service S & R to locations other than 

along the newly constructed road, as the Stipulation expressly permits RCL 

to do so. Our review of the trial court’s order, however, reveals no such 

 

2

 RCL does not contest the trial court’s decision to enforce the terms of the 

stipulation as opposed to its draft easement. It is nonetheless worth noting 

that in its draft easement, RCL included a provision that required the 

location of the utility lines to be “along the edge of the [newly constructed 

road.]” RCL’s Petition, 3/6/14, at Exhibit L, ¶ 3.
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prohibition. To the contrary, the trial court’s order requires RCL to grant 

PP&L and Frontier an easement for the placement of utility lines along the 

newly constructed road and pay for the cost of construction related thereto, 

and further states that terms of the Stipulation remain in effect. See Trial 

Court Order, 8/22/14; Easement Agreement. The Stipulation expressly 

provides for the relocation of the utilities if necessary:

The easement leg from Point A to Point B, Point B to 

Point C, and Point C to Point F is intended to be a 

permanent easement by the parties and to be a 

permanent source of access for S & R, provided that 

if RCL wishes to relocate the easement and the 

roadway located thereon, RCL shall relocate the 

roadway and easement and phone and electrical 

utilities, and shall bear all costs associated with the 

relocation of such easement and phone and electrical 

utilities, including the excavation and construction of 

the roadway and the stone necessary for its 

construction shall be paid solely by RCL, and the 

relocation of such easement and roadway and phone 

and electric utilities shall be performed and 

completed prior to the removal of the roadway as 

currently provided for herein. It is not intended at 

this time that RCL will require the relocation of the 

roadway and the easement at any time in the 

reasonably foreseeable future (10-20 years); 

however, RCL may, because of its mining plans or 

other development plans for its lands, relocate the 

easement for the roadway providing access to Route 

4011 for S & R and phone and electric utilities, 

provided the new easement has good and 

marketable title and the construction of the roadway 

and electric and phone utilities is substantially in 

conformity with the elevations, grades and widths 

and condition of the roadway and electric and phone 

utility service as existed at the time of the requested 

relocation. The parties agree at the time of any 

relocation to execute and record all commercially 
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reasonable documents necessary to relocate the 

easement phone and electric utilities and terminate 

the rights as to their prior location.

Stipulation, 12/7/12, ¶ III(C). 

The trial court’s order did nothing to alter this provision in the

Stipulation. As such, RCL’s contrary claim is entirely without merit.

We now turn to S & R’s cross-appeal, wherein S & R raises the 

following issues for our review:

A. Whether the [t]rial [c]ourt committed an error of law 

in failing to find that RCL had breached the 

Stipulation and [o]rder of [c]ourt of December 6, 

2012 by failing to enforce the provisions of that 

document which enable the prevailing party, here S 

& R, to recover all costs, expenses and attorneys[’] 

fees incurred in litigating matters pursuant to that 

Stipulation and [o]rder which the [t]rial [c]ourt 

found to be a contract between the parties[?]

B. Whether the [t]rial [c]ourt committed an abuse of 

discretion when it failed to find that RCL breached 

the Stipulation and [o]rder which constituted a 

contract between the parties and that S & R, as the 

prevailing party in the matter before the [t]rial 

[c]ourt, was entitled to recover its costs, expenses 

and attorneys[’] fees incurred in this litigation from 

RCL[?]

C. Whether the [t]rial [c]ourt committed an error of law 

in failing to find that RCL’s actions in repudiating the 

Stipulation or [o]rder constituted a breach of the 

Stipulation and [o]rder when that factual conclusion 

is supported by both the record evidence in this 

matter and the factual findings of the [t]rial 

[c]ourt[?]

S & R’s Brief at 4-5 (citations to the reproduced record omitted).
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S & R asserts that by filing RCL’s Petition and the draft easement, RCL 

committed an anticipatory breach of the Stipulation, as the terms of the 

draft easement were vastly different and, in some circumstances, 

contradictory to the terms of the Stipulation. Id. at 23-26. In its claim for 

attorney’s fees, S & R relies upon the final paragraph of the Stipulation, 

which states: “If there is a breach of this agreement by any party, the 

prevailing party in any litigation to enforce these provisions[] shall be 

entitled to recover all costs, expenses, and attorneys[’] fees incurred in such 

litigation.” Stipulation, 12/7/12, ¶ IV. 

The trial court found that the draft easement filed by RCL included 

terms not called for in the Stipulation, and that it attempted to make 

“significant changes” to the terms of the agreement. Trial Court Opinion, 

8/22/14, at 9. The trial court stated that the draft easement was RCL’s 

attempt to “renegotiat[e]” the Stipulation because “RCL was not satisfied 

with the deal it had made,” attempting to “place[] additional requirements 

on S & R and fewer obligations on RCL.” Id. at 10. The trial court further 

found “that the Stipulation was to be the final settlement agreement and 

must be abided by except where the change is by mutual agreement of the 

parties under [p]aragraph III G of the Stipulation[3] which allows further 

 

3

 Paragraph III(G) of the Stipulation states: “The parties agree to execute 

such further documents and take such further actions as are necessary or 

convenient to the implementation of this [Stipulation], and the recording of 

the easements described herein.” Stipulation, 12/7/12, ¶ III(G).
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action to implement the [Stipulation] as opposed to the execution of a new 

agreement that has fundamental differences.” Id. (footnote added). 

Nonetheless, the trial court determined that the underlying proceedings were 

“not the result of a breach of the Stipulation, but involve[d] a modification of 

the original [Stipulation],” and that S & R therefore was not entitled to 

counsel fees. Id. at 11.

“[T]o constitute anticipatory breach under Pennsylvania law there 

must be “an absolute and unequivocal refusal to perform or a distinct and 

positive statement of an inability to do so.” 2401 Pennsylvania Ave. 

Corp. v. Fed'n of Jewish Agencies of Greater Philadelphia, 489 A.2d 

733, 736 (Pa. 1985) (quoting McClelland v. New Amsterdam Casualty 

Co., 185 A. 198 (Pa. 1936) (Per Curiam)). Our Supreme Court has 

“adamantly [] reinforced the clear predicates of repudiation ... reject[ing] 

any argument suggesting a dilution of our long recognized standard of an 

‘absolute and unequivocal refusal to perform.’” Harrison v. Cabot Oil & 

Gas Corp., 110, A.3d 178, 185 (Pa. 2015) (citing 2401 Pennsylvania Ave. 

Corp., 489 A.2d at 737).

As stated above, the draft easement attached to RCL’s petition 

included language and obligations not contemplated or included in the 

Stipulation. The record supports the trial court’s finding that these 

differences were significant, placing additional burdens on S & R and 

alleviating many of those originally placed upon RCL and bestowing upon 
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RCL additional benefits not originally contemplated or provided for in the 

Stipulation. See supra, pp. 4-10. We observe that as of June 11, 2014, 

the final day of litigation in this matter, RCL had completed the construction 

of the road, at which time the grading and width of the road was in large 

part in conformity with the Stipulation. See N.T., 6/11/14, at 44 (S & R’s 

corporate representative testifying that, with the exception of “one bad 

turn,” he had no complaints about the road). However, RCL continued to 

make demands for the inclusion of terms not called for in the Stipulation, 

attempting to alter the terms of the agreement. Specifically, in the 

easement agreement RCL attached to its proposed findings of fact and 

conclusions of law, RCL included terms that differed substantially from the 

Stipulation, including: 

• Changing in the location of the placement of the utility lines; 

• adding additional prohibitions as to who may use the easement; 

• providing for RCL’s entitlement to costs, expenses and attorneys’ 

fees if prohibited persons are found to be using the newly 

constructed road fourteen days after S & R is notified of the 

prohibited persons’ use;

• imposing additional maintenance requirements for S & R related to 

the newly constructed road;

• requiring only RCL’s prior written approval to relocate the 

easement;

• including extensive indemnity and insurance requirements;

• prohibiting the use by anyone of the newly constructed road 

without first providing proof of insurance to RCL;
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• permitting the recovery of costs, expenses and attorneys’ fees not 

just for breach of the agreement, but in any action to enforce the 

easement agreement; and

• the easement agreement would supersede the Stipulation.

See Proposed Findings of Fact, Conclusions of Law, and Argument in 

Support of the March 6, 2014 Petition of [RCL], 7/17/14, at Exhibit A, ¶¶ 2-

4, 7, 9-11, 13, 18.

As stated above, the trial court found that the parties intended “that 

the Stipulation was to be the final settlement agreement.” Trial Court 

Opinion, 8/22/14, at 10. Through its actions, RCL has demonstrated a clear 

and unequivocal refusal to perform pursuant to the final settlement 

agreement, and therefore, has anticipatorily breached the Stipulation. See 

2401 Pennsylvania Ave Corp., 489 A.2d at 736. We therefore reverse the 

trial court’s denial of S & R’s request for costs, expenses and attorneys’ fees 

as provided for by the Stipulation.

In summary, we agree with the trial court’s interpretation of the 

Stipulation and find no error in its order requiring placement of the utility 

lines along the newly constructed road. We reverse the trial court’s denial of 

counsel fees to S & R, as RCL anticipatorily breached the Stipulation and S & 

R was the prevailing party in the litigation, entitling S & R to costs, expenses 

and attorneys’ fees pursuant to the Stipulation.
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Order affirmed in part and reversed in part. Case remanded. Motion 

to Strike denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/2015