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LOUIS W. EPSTEIN FAMILY PSHP. v. KMART CORP.

May 5, 1993

LOUIS W. EPSTEIN FAMILY PARTNERSHIP Plaintiff LEVITZ FURNITURE CORPORATION Plaintiff-Intervenor
v.
KMART CORPORATION Defendant



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 In December of 1992 Plaintiff Louis W. Epstein Family Partnership (Epstein) filed a complaint in the Lehigh County Court of Common Pleas against Defendant Kmart Corporation (Kmart), seeking monetary and injunctive relief. Epstein and Kmart own adjacent tracts of developed, commercial property in Whitehall Township, Lehigh County, Pennsylvania. The case arises out of a land dispute concerning the use of an easement created under a 1975 declaration of easements executed by the parties' predecessors in interest. Plaintiff's tract is landlocked and the sole access to a highway is by means of an easement, owned by Plaintiff, for ingress and egress over a portion of the property owned by Defendant. Defendant is in the process of developing its land into a shopping center. Plaintiff claims that Defendant's development plan proposes to alter Plaintiff's easement and that Plaintiff never consented to this alteration. Defendant contends that it will lawfully improve Plaintiff's easement to accommodate the increased traffic flow that will result from its development, and will benefit both parties' commercial property.

 On December 11, 1992 Plaintiff filed a motion for a preliminary injunction to prevent Kmart from interfering with its easement rights. On December 22, 1992 the Lehigh County Court of Common Pleas issued a preliminary injunction, which it treated as ex parte, and set a date for a rescheduled hearing. Before the court could hold the hearing, Kmart removed the action to the federal courts. After assignment to this Court, I held that the state court injunction was deemed to be dissolved because it was analogous to a temporary restraining order under Rule 65(b) of the Federal Rules of Civil Procedure, and under the rule established in Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, 415 U.S. 423, 39 L. Ed. 2d 435, 94 S. Ct. 1113 (1974) it expired by operation of law on January 17, 1993, ten days after removal.

 Plaintiff-Intervenor Levitz Furniture Corporation (Levitz) is a tenant of Plaintiff and has been occupying the leased premises and operating a retail furniture store and warehouse on the leased premises for almost thirty years. The leased premises are landlocked and Levitz depends upon Plaintiff's easement for access to the highway. Levitz also maintains an identification sign on Kmart's property that Kmart plans to remove. Levitz filed a complaint requesting monetary and injunctive relief along with its motion for intervention.

 At the request of the parties, the Court consolidated the trial of the action on the merits with the hearing on Plaintiff's motion for a preliminary injunction. Fed. R. Civ. P. 65(a)(2). The following are the Court's findings of fact, discussion, and conclusions of law.

 I. Findings of Fact

 A. Parties and Background

 1. Plaintiff, Louis W. Epstein Family Partnership (Epstein), is a Pennsylvania limited partnership with its principal place of business at 923 Hamilton Mall, Allentown, Lehigh County, Pennsylvania. The general partners of the partnership are Louis W. Epstein, Myrtle Epstein, Howard Epstein, and Midge Sokol. (Stipulation of Uncontested Facts P 1, received into evidence as Court Exhibit 1.)

 3. Defendant, Kmart Corporation (Kmart), is a Michigan corporation with its principal place of business at 3100 West Big Beaver Road, Troy, Michigan 48084. ( Ct. Ex. 1 P 2, 119 U.S. 235, 30 L. Ed. 2d 341, 7 S. Ct. 176.)

 4. On October 21, 1975, Louis W. Epstein and Morris Epstein were the co-owners as tenants in common of certain real property located in Whitehall Township, Lehigh County, Pennsylvania, leased to Leonard Wasserman Co. and Ralph Levitz, as well as parcels immediately to the north and south of the leased premises. ( Ct. Ex. 1 P 3.)

 5. On October 21, 1975, Louis W. Epstein and Morris Epstein divided this property between themselves, as a result of which Louis W. Epstein acquired sole ownership of the property leased to Ralph Levitz along with the property immediately to the north (Plaintiff's Property) by a deed recorded in the Recorder of Deeds Office of Lehigh County, Pennsylvania (Recorder's Office) in Deed Book Volume 1210, page 31; and Morris Epstein acquired sole ownership of the property leased to Leonard Wasserman Co. along with the property immediately to the south (Defendant's Property) by a deed recorded in the Recorder's Office in Deed Book Volume 1210, page 19. ( Ct. Ex. 1 P 4; Plaintiff's Exs. 1, 2.)

 6. Plaintiff's Property is landlocked. ( Ct. Ex. 1 P 5.) Plaintiff's Property is fifteen acres in size and approximately 185 feet from State Route 145, also known as MacArthur Road. Of Plaintiff's fifteen acres, 10.5 are developed and leased to Levitz. The remaining 4.5 acres are undeveloped. (Howard Epstein Testimony Transcript 3/8/93 at 21-22.)

 7. On October 21, 1975, Louis W. Epstein and Myrtle Epstein, his wife, and Morris Epstein entered into a declaration of easements, which was recorded in the Recorder's Office in Miscellaneous Book Volume 391, page 697. ( Ct. Ex. 1 P 6; Pl. Ex. 3.)

 8. The declaration of easements established an easement over Defendant's Property which consists of an area 30,859 square feet in size for the purpose of ingress, egress, and regress to both Plaintiff's and Defendant's properties. ( Ct. Ex. 1 P 7; Pl. Ex. 3.) The easement area is one hundred feet wide at MacArthur Road. The MacArthur Road curb is depressed to form a driveway that provides approximately a thirty-five foot wide lane for ingress from MacArthur Road and approximately a thirty-five foot wide lane for egress to MacArthur Road. The easement area narrows to fifty feet at a right angle from the 100 foot wide area. Part of the fifty-foot wide portion of the easement is unpaved. (Epstein Test. Tr. 3/8/93 at 23; Kevin Johnson Test. Tr. 3/9/93 at 15; Pl. Ex. 4; Def. Ex. 8.)

 9. Plaintiff is the successor in title and immediate grantee of Louis W. Epstein with respect to Plaintiff's Property. ( Ct. Ex. 1 P 8.)

 10. Defendant is the successor in title to Morris Epstein with respect to Defendant's Property. ( Ct. Ex. 1 P 9.)

 11. Defendant acquired title to its property on November 4, 1992. ( Ct. Ex. 1 P 10.)

 12. Prior to closing on Defendant's Property, Defendant was aware of Plaintiff's easement rights and Levitz's easement rights over Defendant's Property. ( Ct. Ex. 1 P 11; Shanus Test. Tr. 3/9/93 at 115.)

 13. Levitz has been leasing a portion of Plaintiff's Property since December 1962, commonly known as 650 MacArthur Road and 2650 MacArthur Road, Allentown, Lehigh County, Pennsylvania on which Levitz has built a retail furniture store and warehouse. (Def. Exs. 2, 3; George Sodl Test. Tr. 3/8/93 at 75-76.)

 14. Levitz has been a tenant occupying the leased premises since 1962, conducting its retail furniture sales business.

 15. Epstein and Levitz extended the lease in 1991 for an additional term of ten years, commencing October 1993.

 16. The leased premises are landlocked and Levitz's retail store is located approximately five hundred feet from MacArthur Road. (Johnson Test. Tr. 3/9/93 at 15.)

 17. MacArthur Road affords the only access to Levitz's retail furniture store. (Epstein Test. Tr. 3/8/93 at 22.)

 18. Defendant is in the process of developing Defendant's Property into a shopping center known as the "MacArthur Towne Centre." ( Ct. Ex. 1 P 12.)

 19. In connection with this development, Defendant recorded a ReSubdivision, Subdivision and Land Development Plan--Richard L. Bowen and Associates with the Recorder's Office at Map Book Volume 31, page 15. ( Ct. Ex. 1 P 13; Pl. Ex. 4.)

 20. Prior to the initiation of this development, Defendant commissioned a study of the impact that its planned development would have on existing traffic and site conditions, and modifications that would be necessary to bring the development into compliance with state and local highway safety and land development regulations.

 21. The results of the study commissioned by Defendant are set forth in documents known as "Study of a Signalized Intersection and Median Break on MacArthur Road," and "Technical Appendix for Study of a New Signalized Intersection and Median Break on MacArthur Road." (Def. Ex. 4.)

 22. These studies were compiled in June 1990 by Orth-Rodgers & Associates, Inc., experts on traffic, highway, and site engineering. (Edward K. Peers Test. Tr. 3/17/93 at 24-25.)

 23. Orth-Rodgers & Associates, Inc. also produced plans including pavement marking plans known as "Orth Rodgers Sheets 13 through 16," reflecting site changes necessitated by Kmart's planned development. (Pl. Ex. 5.)

 24. The "Orth Rodgers Sheets 13 through 16" incorporate by reference designs by Spotts, Stevens and McCoy known as "Jughandle and Median Break--Vornado Properties." (Def. Ex. 1.)

 25. Defendant's proposed development and modifications to Plaintiff's right of way and adjacent highway have been approved by the Planning Commission of Whitehall Township, the Board of Commissioners of Whitehall Township, the Joint Planning Commission of Lehigh and Northampton Counties, and the Pennsylvania Department of Transportation (PennDOT). (Pl. Ex. 4; Levitz Exs. 1, 2.)

 26. Defendant applied for and received a highway occupancy permit from PennDOT to perform the development of its land into a shopping center.

 27. Defendant has developed a plan for the ingress and egress of vehicular and pedestrian traffic for both Plaintiff's Property and Defendant's Property to and from MacArthur Road. (Pl. Ex. 4.)

 28. Defendant's plan provides for the installation and erection of concrete curbs and various traffic control devices within the easement area, including concrete barriers, directional signals, and lane demarcation lines. (Pl. Exs. 4, 5, 6; Johnson Test. 3/9/93.)

 29. The proposed modifications to the right of way, the adjacent highway (MacArthur Road) and Defendant's adjacent land are as follows: curbing, a median strip sixteen feet wide, a triangle barrier, and traffic signals will be installed on the right of way, so that traffic will flow freely to and from the parties' properties; the median strip currently existing on MacArthur Road will be opened to allow traffic flowing north on MacArthur Road to turn left by a "jughandle" into the parties' properties; four lanes will be constructed for egress from the properties and three lanes will be constructed for ingress to the properties; Levitz's sign will be removed and relocated to allow for the construction of a deceleration lane on MacArthur Road; and "jughandles" will be installed on the Vornado Properties and the Kmart Property to permit easy turnaround. (Johnson Test. Tr. 3/9/93; Peers Test. Tr. 3/17/93; Pl. Ex. 4.)

 30. Although the plan calls for three lanes of ingress from MacArthur Road, direct access to the property owned by Plaintiff and leased by Levitz for vehicular traffic from MacArthur Road is limited under Defendant's plan to a single lane of travel fourteen feet in width. The other two lanes would direct traffic into Kmart's proposed shopping center. (Epstein Test. Tr. 3/8/93 at 53; Pl. Exs. 4, 6.)

 31. Direct access from the property owned by Plaintiff and leased by Levitz for vehicular traffic to MacArthur Road is limited under Defendant's Plan to one lane of travel fourteen feet in width at first, which then turns left and widens to four lanes of travel. (Pl. Exs. 4, 6.)

 32. Defendant has not yet begun construction in the easement area, but intends to construct the easement area in accordance with the land development plan. ( Ct. Ex. 1 P 15; Harvey Shanus Test. Tr. 3/9/93.)

 B. Express Easement Issues

 33. The Declaration of Easements provides that the easement is established "for the purpose of ingress, egress, and regress for all persons, motor vehicles, equipment, material and supplies to and from [Plaintiff's Property] to and from MacArthur Road." (Pl. Ex. 3 at 2.)

 34. The Declaration of Easements further provides that "no barriers, fences, curbs or other obstruction to the free and unhampered use of said easement area and right of way shall hereafter be permitted nor shall any building or other structure be constructed upon any part of the said easement area or right of way." (Pl. Ex. 3 at 2.)

 35. The rights and privileges created under the Declaration of Easements "extend not only to the record owners of the lands described in the aforementioned deed but also in favor of . . . any tenants to whom they may grant rights and ...


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