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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ROGER SWINGLE, INDIVIDUALLY 

AND AS EXECUTOR OF THE ESTATE 

OF REBECCA DEFREHN

v.

MORRIS WILLIAMS, DECEASED, OF 

STERLING TOWNSHIP, AND HIS 

HEIRS AT LAW AND SUCH OTHER 

PERSON OR PERSONS CLAIMING BY, 

UNDER OR THROUGH HIM, SCOTT 

WILLIAMS AND DANIELLE C. 

WILLIAMS 

WARREN HALSEY, SCOTT A. 

WILLIAMS AND DANIELLE C. 

WILLIAMS

v.

ROGER SWINGLE, INDIVIDUALLY 

AND AS EXECUTOR OF THE ESTATE 

OF REBECCA DEFREHN, DECEASED, 

LITTS AND SONS STONE, CO., INC., 

GRASSIE AND SONS, INC., CHARLES 

SIMS, DOROTHY SIMS, CHARLES W. 

SIMS, JR., AND NANCY M. MEDALIS

APPEAL OF: ROGER SWINGLE, 

INDIVIDUALLY AND AS EXECUTOR 

OF THE ESTATE OF REBECCA 

DEFREHN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 152 EDA 2023

Appeal from the Judgment Entered March 29, 2023

In the Court of Common Pleas of Wayne County 

Civil Division at No(s): 2015-00362, 

2016-00136
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ROGER SWINGLE, INDIVIDUALLY 

AND AS EXECUTOR OF THE ESTATE 

OF REBECCA DEFREHN

v.

MORRIS WILLIAMS, DECEASED, OF 

STERLING TOWNSHIP, AND HIS 

HEIRS AT LAW AND SUCH OTHER 

PERSON OR PERSONS CLAIMING BY, 

UNDER OR THROUGH HIM, SCOTT 

WILLIAMS AND DANIELLE C. 

WILLIAMS 

WARREN HALSEY, SCOTT A. 

WILLIAMS AND DANIELLE C. 

WILLIAMS

v.

ROGER SWINGLE, INDIVIDUALLY 

AND AS EXECUTOR OF THE ESTATE 

OF REBECCA DEFREHN, DECEASED, 

LITTS AND SONS STONE, CO., INC., 

GRASSIE AND SONS, INC., CHARLES 

SIMS, DOROTHY SIMS, CHARLES W. 

SIMS, JR., AND NANCY M. MEDALIS

APPEAL OF: LITTS AND SONS 

STONE, CO., INC. AND GRASSIE 

AND SONS, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 153 EDA 2023
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Appeal from the Judgment Entered March 29, 2023

In the Court of Common Pleas of Wayne County 

Civil Division at No(s): 2015-00362, 

2016-00136

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 12, 2023

These closely-related appeals from the judgments entered in the abovecaptioned cases involve the trial court’s decision, on remand from this Court, 

to limit an easement granted regarding an access road to non-commercial use 

(“the access road”). The trial court originally granted an easement to Roger 

Swingle (“Swingle”), the Estate of Rebecca DeFrehn, Litts and Sons Stone Co., 

Inc. (“Litts”), Grassie and Sons, Inc. (“Grassie”), Charles Sims, Sr. and 

Dorothy Sims, Charles W. Sims, Jr. and Nancy M. Medalis (collectively, “the 

Swingle parties”), on property owned by Warren Halsey (“Halsey”), Morris 

Williams, deceased and his heirs at law (“Morris”), Scott A. Williams (“Scott”), 

and Daniele C. Williams (“Daniele”), and (collectively, “the Halsey parties”).

1

 

We affirm.

In a 2022 memorandum decision, this Court provided the following 

background concerning the easement that is the subject of this appeal:

This case concerns a complicated property dispute involving 

neighboring properties. The subject of this dispute is what has 

been described as a dirt road that runs behind the parties’ 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The Appellants in 152 EDA 2023 are the Swingle parties; the Appellants in 

153 EDA 2023 are Litts and Sons Stone Co., Inc. (“Litts”), and Grassie and 

Sons, Inc. (“Grassie”) (collectively, the “Lessees”).
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properties (the “access road”). It appears that there is no way to 

access the properties from the parallel public road except by the 

disputed access road. 

Over the years, the Swingle property was used as a dairy 

farm, although the property contained a sparsely utilized quarry. 

That changed in 2011, when Swingle leased the farm to [Litts]

and [Grassie] (“Lessees”), who began using the property as a 

commercial quarry. Traffic increased exponentially and [the 

Halsey parties] complained of noise and garbage build-up on their 

properties.

[The Halsey parties] filed a complaint for declaratory relief, 

claiming ownership of the access road. Swingle countered with 

an action to quiet title, asserting ownership due to adverse 

possession. These two actions were tried together . . .. [T]he 

trial court . . . [found] [Swingle] had established a prescriptive 

easement over the access road, but found Lessees had committed 

trespass.

The trial court made the following relevant findings of fact:

* * * *

 21. In or about 1964 . . . one of [the Halsey parties’] 

predecessors in title, agreed to allow access [from 

their property] to the properties owned and used by 

the predecessors in title of Swingle.

* * * *

 24. In the deed described [above] the access route 

is described as being twenty feet . . . wide.

* * * *

 27. Over the years, the Swingles made use of the 

existing private driveway to get out to [the access 

road] and all of their use was for ingress and egress 

to their property.

 28. In 2011, the Swingle parent tract began being 

used as a quarry, causing heavy equipment, 

machinery, and trucks to access the Swingle site. 
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Thus, the use of the driveway changed substantially 

over the years from 2011 to the present time.[2]

 29. The increased use of the access road has 

resulted in dust and noise coming onto the [the Halsey

parties’] properties.

Halsey v. Swingle, 283 A.3d 337 (Pa. Super. 2022), unpublished 

memorandum at *1-4 (capitalization changed).

On appeal, this Court affirmed the trial court’s grant of a twenty-foot 

prescriptive easement over the access road to the Swingle parties because the 

evidence showed that Swingle and his predecessors had maintained the 

access road for fifty-nine years, made open, hostile, and notorious use of it, 

and were never told not to use it. See Halsey, 283 A.3d 337, unpublished 

memorandum at *6-7. This Court held, however, that the trial court erred by 

permitting “increased commercial use” of the access road in 2011, when the 

Swingles leased their property to Lessee quarry operators; in this Court’s 

view, although the increased use of the prescriptive easement may be 

permissible where it is a “natural evolution,” a shift from residential use to 

commercial use is generally not a permissible increase. See id. at *7, citing 

McGavitt v. Guttman Realty Co., 909 A.2d 1, 5 (Pa. Super. 2006). This

Court thus “reverse[d] the trial court’s order to the extent it grants a 

____________________________________________

2 Although the trial court previously found the use of the access road changed 

substantially after 2011, it did not impose any limitation on the uses of the 

prescriptive easement. See Trial Court Opinion, 1/29/19, at 6, 10.
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prescriptive easement for purposes of commercial use,” and remanded “for 

proceedings not inconsistent” with its holdings. See id. at *8. 

On remand, the trial court issued an amended order that retained the 

portions of the original order granting a prescriptive easement but struck all 

references to commercial activities. See Amended Order, 10/19/22. The 

Halsey parties filed a motion for “post-trial relief” requesting, inter alia, that 

the trial court expressly limit the prescriptive easement over the access road 

to residential use. See Motion for Post-Trial Relief, 10/28/22. The Swingle

parties filed an opposing memorandum of law asserting that some commercial 

use had been made of the Swingle property and the access road since 1959. 

See Swingles’ Memorandum, 12/6/22.3

The court heard oral argument in December 2022. The Swingle parties

argued that Lessee Litts had done some quarrying on Swingle’s property 

before Lessee Grassie took over in 2011; the Halsey parties argued that the 

evidence of prior quarrying was disputed at trial and that it filed its complaint 

in 2015, which proved that no twenty-one-year period of open and notorious 

use of the road existed that could have established a prescriptive easement 

for quarrying. See N.T., 12/6/22, at 2-17. The trial court entered another

amended order recognizing the prescriptive easement but stating the right of 

____________________________________________

3 Lessees also filed a memorandum of law requesting that quarry operations 

be permitted as they existed prior to 2015 (when the complaint was filed). 

See Lessee’s Memo, 12/19/22.
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way over the access road was for residential use only and commercial use was 

banned. See Amended Order, 12/19/22 (the “December 2022 amended 

order”). The Swingle parties filed a timely motion for reconsideration. See

Motion for Reconsideration, 12/27/22. Lessees filed a motion for 

reconsideration and “to request additional testimony.” See Lessee’s Motion, 

12/29/22. The court denied the Swingle parties’ motion for reconsideration 

and Lessees’ motion. See Order, 1/6/23. The Swingle parties and Lessees

appealed. The Swingle parties, Lessees, and the trial court complied with 

Pa.R.A.P. 1925 in appealing from the December 2022 amended order and

judgments were subsequently entered.

4

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4 This Court issued rules to show cause why these appeals should not be 

quashed noting the December 2022 amended order appeared to be 

interlocutory, directed counsel to praecipe for the entry of judgments, and 

discussed the possible need to file separate notices of appeal at each trial 

court docket pursuant to Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 

2018), overruled in part, Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 

2021). Although the trial court did not formally consolidate the two cases, it 

inextricably intertwined the two cases when issuing its verdicts and orders. 

We note that in May 2023, Pa.R.A.P. 311, 313, 314, 341, 512, 902, and 904 

were amended with immediate effect in response to Walker, Young, and 

their progeny. Given the procedural confusion in this case and the 

amendment of the Rules of Appellate Procedure, we conclude there was a 

breakdown in the operations of the courts excusing the need to file separate 

notices of appeal at both court dockets and will consider the merits of the 

appeals. 
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The briefs filed by the Swingle parties’ and Lessees’ present virtually 

identical issues for review:5

1. Whether[6]the lower court erred when it determined that the 

prescriptive easement for accessing [Swingle’s] property 

precludes all commercial usage to the pre-existing quarries as 

opposed to the heavy commercial usage instituted in the year 

2011 and thereafter?

2. Whether the lower court erred by not scheduling a hearing for 

additional testimony to determine the “commercial usage” prior to 

Year 2011 pursuant to this Court’s [remand] directive?

3. Whether without definition as to what vehicles and/or vehicle 

usage constitutes “commercial traffic” there is uncertainty as to 

what constitutes allowable vehicles for various activities upon 

[Swingle’s] property, including accessing the buildings (garage), 

field, woods and a longstanding quarry?

Swingle Parties’ Brief, 152 EDA 2023, at 7-8 (some capitalization changed); 

Lessees’ Brief, 153 EDA 2023, at 8-9.

The briefs filed on behalf of the Swingle parties and Lessees argue only 

that the lower court failed to “delineate” Lessees’ heavy truck usage ”from its 

own use to access the farm with a pre-existing stone quarry.” Swingle 

Parties’ Brief at 13; see also Lessee’s Brief at 13. They argue they are 

entitled to some commercial use of the access road.

____________________________________________

5 The texts of the arguments in the two briefs differ slightly as discussed 

below.

6

In Lessees’ Brief at 153 EDA 2023, the word “Where” is used instead of 

“Whether,” otherwise the question is identical.
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As an initial matter, the Court must determine the holding of our 2022

decision and the scope of our remand to the trial court. Pennsylvania Rule of 

Appellate Procedure 2591, entitled Proceedings on Remand, provides in 

relevant part “the court . . . shall proceed in accordance with the judgment 

or other order of the appellate court.” Pa.R.A.P. 2591(a). Settled case law 

indicates that upon remand a trial court is limited to the scope of the remand

order. See Ratner v. Iron Stone Real Estate Fund, I, L.P., 266 A.3d 68, 

73 (Pa. Super. 2021), quoting Commonwealth v. Sepulveda, 144 A.3d 

1270, 1280 n.19 (Pa. 2014) (citation omitted) (stating that “it has long been 

the law in Pennsylvania that following remand, a lower court is permitted to 

proceed only in accordance with the remand order . . . . [W]here a case is 

remanded for a specific and limited purpose, issues not encompassed within 

the remand order may not be decided on remand”). 

Our 2022 decision remanding this case instructed:

[I]n the instant case, we conclude that the Lessees’ increased 

commercial use of the Access Road cannot be considered the 

“normal evolution” of the use. Accordingly, we reverse the trial 

court’s order to the extent that it grants a prescriptive easement 

for purposes of commercial use.

Order affirmed in part, reversed in part, and case remanded for 

proceedings not inconsistent with this memorandum.

Halsey, 283 A.3d 337, unpublished memorandum at *8.
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In its 1925(a) opinion, the trial court states, inter alia, that the issue in 

this appeal is the portion of its December 2022 amended order banning 

commercial traffic on the access road and the court understood that this Court

remanded the case for it “to fashion an amended order without . . . permitting 

the commercial use of the property, that is, the active use of the Swingle 

property for quarry operations.” Trial Court’s Statement of Reasons, filed 

3/3/23, at 4-5. The trial court declined to amend its order barring commercial 

use of the access road. See id. at 4-7.

We find no error in the trial court’s conclusion that the Swingle parties’ 

request to permit commercial use of the access road was resolved by our 2022 

decision and that further litigation of commercial use of the easement over 

the access road was outside the scope of the remand, and therefore beyond 

the trial court’s purview on remand. See Pa.R.A.P. 2591(a); see also
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Ratner, 266 A.3d at 73.7 We thus decline to grant relief on the Swingle 

parties’ and Lessee’s claims.

8

Lessees’ separately-filed brief differs from the Swingle parties’ brief only 

in its additional assertion that the trial court recognized some type of prior 

commercial use of the access road, and that more testimony was required to 

determine the baseline “commercial activity” versus a “Natural Resource Use, 

as defined in the Sterling Township [Z]oning Ordinance.” Lessees’ Brief at 16. 

Lessees did not make any claim concerning a zoning ordinance below and may 

not do so for the first time on appeal. See Pa.R.A.P. 302(a). Accordingly, 

Lessees present no preserved claim challenging the trial court’s decision. We 

therefore affirm the judgments of the trial court.

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7 Even were we permitted to review the Swingle parties’ claim, relief would 

not issue. The trial court stated Swingle’s testimony failed to state the 

frequency with which the quarry was used, and there was testimony that other 

residents of the road were not aware of any quarry operations on the Swingle 

property until the late 1990s or early 2000s. Therefore, the use of the road 

for “quarrying” was not open or notorious for any 21-year period.” Trial 

Court’s Statement of Reasons, filed 3/3/23, at 5 (also stating “the use of the 

road by quarrying was not open and notorious for any 21-year period”). The 

court also found no need to explain that use of the access road by milk trucks, 

hay wagons, and similar vehicles “do not impose an unreasonable burden . . . 

unlike the burden caused by the use of heavy equipment, machinery and 

trucks . . . to conduct quarry operations.” Id. at 6 n. 7.

8 The Swingle parties’ and Lessees’ briefs do not provide argument supported 

by citations to the record and case law concerning their other claims. 

Accordingly, we decline to address those claims. See Pa.R.A.P. 2119(a)-(c); 

see also Rogers v. Thomas, 291 A.3d 865, 881 (Pa. Super. 2023) (en banc) 

(stating that an appellate court will not scour the record and “act as appellant’s 

counsel” (internal citation omitted)).
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Judgments affirmed.

Date: 12/12/2023