United States District Court, M.D. Pennsylvania
September 30, 2005.
ARIEL LAND OWNERS, INC., Plaintiff,
LORI DRING and NANCY ASARO, Defendants/Counterclaim Plaintiffs, v. ARIEL LAND OWNERS, INC., KARL R. IFFLAND and ALICE L. IFFLAND, et al., Counterclaim Defendants.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court are two motions for partial summary
judgment (Docs. 120, 124). For the reasons set forth below,
Counterclaim Defendants Karl R. and Alice L. Iffland, et al. and
Plaintiff/Counterclaim Defendant Ariel Land Owners, Inc.'s
(hereinafter collectively known as "Plaintiffs") motion (Doc.
120) will be granted in part and denied in part.
Defendants/Counterclaim Plaintiffs Lori Dring and Nancy Asaro's
("Defendants") motion (Doc. 124) will be granted in part and
denied in part. The Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1332.
On May 17, 1999, Ariel Land Owners, Inc. ("ALO") brought an
action against the Defendants in Pennsylvania Court of Common
Pleas to quiet title of the waters of Lake Ariel and Mud Pond and
the stream or channel connecting the same ("Disputed Water Area"). (Doc. 121-1 at 3) On September 24, 1999, Defendants filed
an answer. (Doc. 121-1 at 4.) ALO filed an amended complaint
shortly after January 26, 2001. Id.
On February 15, 2001, Defendants removed the case to Middle
District of Pennsylvania. (Doc.1.) On March 1, 2001, Defendants
filed an answer to the amended complaint along with a
counterclaim against ALO. (Doc.2.) ALO's March 22, 2001 motion to
remand to state court was denied. (Doc. 16.) Defendants' motion
to file an amended and supplemental counterclaim was granted on
May 16, 2002. (Doc. 45.) Defendants sought this amendment based
on their new acquisition of a strip of property running along the
West Shore of Lake Ariel. (Doc. 47.)
On May 22, 2002, Defendants filed a motion to file a second
amended counterclaim seeking to add West Shore Landowners as
indispensable parties. (Doc. 46) While this motion was pending,
on June 19, 2002, ALO and West Shore landowners filed a separate
action to quiet title in state court. (Doc.150 at 5.) On July 14,
2002, Defendants filed a motion to enjoin these proceedings.
Id. On December 12, 2002, ALO and West Shore landowners filed a
second motion to remand the case to state court (Doc. 80.) Which
was granted on January 28, 2003. (Doc. 83.) All other pending
motions were denied as moot. Id.
On February 26, 2003, Defendants filed an appeal (Doc.85.) and
on January 7, 2004, the United States Court of Appeals for the
Third Circuit reversed the order granting the remand (Doc. 89.).
On August 2, 2004, the Court entered an order enjoining ALO and
West Shore landowners (Doc. 96.). On August 3, 2004, Defendants
were allowed to file a second amended and supplemental
counterclaim to which ALO and West Shore landowners filed an
answer to on August 18, 2004 (Doc. 99.). On February 7, 2005, both Defendants and ALO and West Shore
landowners filed a motion for partial summary judgment to the
opposing parties' respective claims (Docs. 120, 124). Oral
arguments were heard from both sides prior to this opinion.
STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56 (c). A fact is
material if proof of its existence or non-existence might affect
the outcome of the suit under the applicable substantive law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party
need only establish that it is entitled to judgment as a matter
of law. Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute
is not a genuine one. See id. at 248. An issue of material fact
is genuine if "a reasonable jury could return a verdict for the
nonmoving party." See id.
Where there is a material fact in dispute, the moving party has
the initial burden of proving that 1) there is no genuine issue
of material fact and 2) she is entitled to judgment as a matter
of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d Ed. 1983). The moving
party may present its own evidence or, where the nonmoving party
has the burden of proof, simply point out to the court that "the
nonmoving party has failed to make a sufficient showing of an
essential element of her case." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the
nonmoving party. See White v. Westinghouse Elec. Co.,
862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its
initial burden, the burden shifts to the nonmoving party to
either present affirmative evidence supporting its version of the
material facts or to refute the moving party's contention that
the facts entitle it to judgment as a matter of law. See
Anderson, 477 U.S. at 256-257. The court need not accept mere
conclusory allegations or denials taken from the pleadings. See
Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d
Cir. 1990). In deciding a motion for summary judgment, "the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial." Anderson, 477 U.S. at 249.
1. Plaintiffs' Motion
Plaintiffs move for summary judgment with respect to the claims
in Counts II, IV and V of Defendants' Second Amended and
Supplemental Counterclaim. These claims together ask the Court to
grant Defendants the right to use the Disputed Water Area for the
following reasons: (1) Count II: "Defendants and their
predecessors in title have acquired appurtenant rights to the . . .
[Disputed Water Area] . . . by virtue of Defendants' ownership
of a portion of the bed of Lake Ariel and Mud Pond." (Doc. 46 ¶
21.) Additionally, due to "the operation of saw mills and logging
businesses which used the adjacent waters of Lake Ariel and Mud
Pond and the stream or channel connecting the same to transport harvested trees to saw mills located or near
Lake Ariel or Mud Pond at a time prior to December 13, 1859."
(Doc 46 ¶ 22.); (2) Count IV: "Defendants and their
predecessors in title have acquired appurtenant rights to use the
. . . [Disputed Water Area] . . . by virtue of prescriptive
rights." (Doc. 46 ¶ 28). Defendants' predecessors allegedly used
the Disputed Water Area to fish, boat, swim and trap. (Doc. 46 ¶
34.) They also claim to have erected a seventy-five (75) foot
fence to use for their working farm. (Doc. 46 ¶ 30-33.) This is
all, allegedly, to have been done for more than twenty-one (21)
years in a continuous, open, notorious and adverse manner.
(Doc.46 ¶ 30-35.); and (3) Count V: "Plaintiff's artificial
raising of the elevation of the waters of Lake Ariel and Mud Pond
and the resulting trespass on Defendant's property [elevation
covered the portion of land owned by Defendants] was accomplished
without the consent of Defendants or their predecessors in title
and is unauthorized, continuing wrongful trespass on Defendant's
property." (Doc. 46 ¶ 54-55.)
Plaintiffs' motion for summary judgment will be granted as to
Count II. Plaintiffs' motion for summary judgment will be granted
as to Count V only in respect to the question of whether owning a
small strip of land underneath or land bordering the Disputed
Water Area allows Defendants full use of the Disputed Water Area.
Plaintiffs' motion for summary judgment will be denied as to
Count IV and the rest of Count V.
a. Counts II and V Appurtenant Rights/Western Shore Strip
Counts II and V deal with whether ownership of property
bordering the lake and ownership of a part of a lake bed gives
the owner the right to use and enjoy the lake. Count II deals
with the Defendants' claim that they have acquired appurtenant
rights to use the Disputed Water Area by virtue of ownership of a portion
of the bed of Lake Ariel. Count V deals with Defendants'
ownership of a parcel of land bordering the western shore of Lake
Ariel and Mud Pond ("Western Shore Strip"). They acquired this
land in 2001 via two quit claims deeds: (1) two-third (2/3)
undivided interest from Rensselaer Polytechnic Institute and (2)
one-third (1/3) undivided interest from Wells College. The
Western Shore Strip lies between the high(est) water mark and the
natural water mark at certain points, which means that during
high water periods, the Western Shore Strip is under water and
considered part of the lake bed. During low water periods, the
Western Shore Strip is just a border to the Disputed Water Area.
Defendants contend that the submerging of the Western Shore Strip
is due to Plaintiffs' artificial elevation of the Disputed Water
Area. Therefore, Defendants argue that they cannot enjoy the
submerged Western Shore Strip without using the Disputed Water
The law is clear that mere ownership of a strip of land
bordering the lake does not give Defendants' the right to use the
entire lake. In Miller v. Lutheran Conference and Camp Ass'n,
200 A. 646, 650 (Pa. 1938) (citations omitted), the court stated:
Ordinarily, title to land bordering on a navigable
stream extends to low water mark subject to the
rights of the public to navigation and fishery
between high and low water, and in the case of land
abutting on creeks and non-navigable rivers to the
middle of the stream, but in the case of a
non-navigable lake or pond where the land under the
water is owned by others, no riparian rights attach
to the property bordering on the water, and an
attempt to exercise any such rights by invading the
water is as much a trespass as if an unauthorized
entry were made upon the dry land of another.
Plaintiffs' motion for summary judgment on Count II will be
granted as to Defendants' claim that they have acquired
appurtenant rights solely based on their ownership of bordering land.
The law is also clear that ownership of a portion of the
waterbed does not give Defendants the right to utilize the entire
body of water. See Mountain Properties, Inc. v. Tyler Hill
Realty Corp., 767 A.2d 1096 (Pa. Super. Ct. 2001) (refusing to
"expand the long-standing common law rule"). Plaintiffs' motion
for summary judgment on Count V will be granted as to Defendants'
claim that they have rights to use the Disputed Water Area based
on their ownership of Western Shore Strip.
Insofar as Defendants' Count V argument rests on the fact that
their ownership of Western Shore strips extends their deed to the
center of the stream, summary judgment will be denied. Id.
b. Counts II and IV Prescriptive Easement Rights
Counts II and IV put forth a theory of appurtenant rights based
on prescriptive easement. Count II deals with Defendants' claim
that they have acquired appurtenant rights to use the Disputed
Water Area by virtue of their predecessor's operation of sawmill
and logging businesses prior to 1859. (Doc. 46 ¶ 22.) Mr.
Swingle, however, testified in his deposition that his father did
not use the lake for the operation of sawmill and logging
Q. But you have no knowledge of these trees that your
father cut down on the west side of Mud Pond ever
being taken across the lake down to the sawmill?
A. No, No. Didn't travel on the lake. He took them
down I think that was Route 90, years ago, 191. And
then Lake Ariel, I think it was Charlie Schaffer.
Q. So we can agree then, that your father did not
make any use of the lake for his logging? A. Oh, no. He used to help them cut the ice. But
everybody that had a sled helped cut the ice. . . .
(Doc. 25-5 at 11.)
Count IV deals with Defendants' claim that they have acquired
appurtenant rights to use the Disputed Water Area by virtue of
their predecessor's prescriptive easement rights. Summary
judgment will be granted as to Count II but will be denied as to
Count IV. The issue of prescriptive easement argued in Count IV
is addressed in depth in section 2.a of this memorandum.
2. Defendants' Motion
Defendants filed a motion for partial summary judgment on two
issues: (1) whether Defendants have the right to use the Disputed
Water Area and (2) whether Defendants are barred from asserting
their claims due to res judicata. The Court will address each
issue in turn.
a. Prescriptive Easement Rights
Defendants argue that judgment should be granted in their favor
with respect to their claim that they have all rights appurtenant
to use the Disputed Water Area. Defendants contend that their
predecessor has acquired this use by prescriptive easement and
has conveyed this right to them by deed. The Court agrees in part
and disagrees in part.
i. Defendants' Predecessors' Acquisition Of A Prescriptive
Defendants claim that their predecessor, Mr. Swingle, acquired
prescriptive easement rights to use the Disputed Water Area. "A
prescriptive easement is created by adverse, open, continuous, notorious and uninterrupted use of
land for twenty-one years." Martin v. Sun Pipe Line Co., 666
A.2d. 637, 640 (Pa. 1995) (citations omitted).
Defendants present deposition testimony of Mr. Swingle as
evidence that Mr. Swingle and his family have used the Disputed
Water Area for over seventy-nine (79) years in an adverse, open,
continuous, notorious and uninterrupted way. According to Mr.
Swingle's testimony, he and his father had a farm for over 79
years on the land that is now owned by Defendants. During their
ownership, they claim to have used the Disputed Water Area for
the following activities: (1) Mr. Swingle and his father
constructed a fence that went seventy-five (75) feet into the
adjacent waters in the channel between Lake Ariel and Mud Pond
for the purpose of watering their livestock and crops; (2) Mr.
Swingle fished, boated and trapped in the Disputed Water Area;
(3) Mr. Swingle's father cut and hauled ice from Lake Ariel; and
(4) Mr. Swingle's son fished and boated in the Disputed Water
Area until 1996. (Doc. 150 at 17.)
Plaintiffs argue that none of the activities engaged in by Mr.
Swingle and his family was regular and continuous. Plaintiffs
offer deposition testimony of Mr. Gordon Florey which disputes
Mr. Swingle's testimony. (Doc. 150 at 17-19.) The frequency of
watering the cows is disputed. (Doc. 125-6 at 19.) Furthermore,
Mr. Florey stated in his Verified Statement, that the taking of
ice from Lake Ariel ceased sometime before 1940 and this use was
not adverse since the ice business at that time was operated by
the Pennsylvania Ice Company under an agreement. (Doc. 151-1 ¶
8.) As for the trapping in the lake, Plaintiffs point out that
Mr. Swingle himself stated that he only did this in the month of
December and stopped in the late 1940's. (Doc. 125-5 at 17.)
Furthermore, Mr. Swingle testified that there was an incident
where his son was told by representatives of Plaintiffs to leave the lake when his boat ventured onto Lake
Ariel. (Doc.125-5 at 9.)
"The nature of the easement, whether it is seasonal,
periodical, or for all periods of the year, the frequency and the
extent of the user, its definiteness, and its location in city or
rural districts are important factors in a determination of
whether an easement exists and exactly what rights have been
acquired thereunder." Shaffer v. Baylor's Lake Ass'n,
141 A.2d 583, 587 (Pa. 1958). There are genuine issues of material fact as
to whether Mr. Swingle was entitled to a prescriptive easement of
the Disputed Water Area and what the acquired uses might be.
Defendants' motion for summary judgment on this issue will be
ii. Defendants' Predecessors' Conveyance Of A Prescriptive
Even assuming that Mr. Swingle has acquired use by prescriptive
easement, the question remains as to what has been conveyed to
the Defendants. Defendants claim that they have the right to full
use and enjoyment of the Disputed Water Area but "[a]n easement
by prescription is created through adverse use [and] it is
limited to the use made during the prescriptive period." POA Co.
v. Findlay Township Zoning Hearing Bd., 713 A.2d 70, 76 (Pa.
1998) (citations omitted). The extent of Mr. Swingle's previous
use is genuinely disputed, and therefore the issue must be tried.
Once it is determined whether Mr. Swingle had an easement to
convey and what uses are encompassed in that easement, Plaintiffs
contend that the next question is what type of easement is it.
There are generally two distinct classes of easements: easements
in gross and easements appurtenant. An easement in gross is a
benefit that is "held by a particular individual" and "is not
tied to ownership or occupancy of a particular unit or parcel of land." Kapp v. Norfolk & Southern Ry. Co.,
350 F. Supp. 2d 597, 606 n. 7 (M.D. Pa. 2004). It is a "mere personal
interest in, or right to use, the land of another." Loughran v.
Matylewicz, 367 Pa. 593, 597 (Pa. 1951). An easement
appurtenant, on the other hand, "is an easement that runs with
the land." Kents Run P'ship, Ltd v. Glosser, 323 B.R. 408, 422
(W.D. Pa. 2005). "Such an easement arises when the grantee holds,
at the time of the easement's conveyance, an estate in land that
is benefitted by the easement obtained." Id. "The construction
of an easement as appurtenant is favored whenever possible" as an
easement "is never presumed to attach to the person of the
grantee when it can fairly be construed as appurtenant to some
other estate." Id.
Plaintiffs urge the Court to make this distinction for the
purposes of determining whether the easement held by Mr. Swingle
can even be conveyed. Plaintiffs argue that if Defendants'
easement rights are in gross rather than appurtenant, not all of
it can be assigned. Without making a determination as to whether
Mr. Swingle's easement is in gross or appurtenant, the Court will
address Plaintiffs' claim that only commercial rather than
personal easements in gross are assignable.
The Court does not agree that personal easements in gross are
not assignable. Plaintiffs cite Miller v. Lutheran Conference &
Camp Ass'n, 200 A. 646 (Pa. 1938) as the sole authority in
support of their position that at best, Mr. Swingle had a
non-commercial easement in gross, which is non-assignable. This
case, however, does not determine whether an easement for
personal enjoyment is barred from being assigned. The Supreme
Court of Pennsylvania only says that since there is a dispute on
whether an easement in gross could be assigned, there is more justification
for upholding assignments of commercial easements. Id. at 651
("There are dicta in Pennsylvania that they are non-assignable. . . .
But there is forcible expression and even definite authority
to the contrary. . . ."). In fact, in the same opinion, the court
stated that "[t]here does not seem to be any reason why the law
should prohibit the assignment of easement in gross if the
parties to its creation evidence their intention to make it
In determining what has been conveyed, it is customary for the
court to "ascertain and effectuate the intention of the parties"
as "[a] deed is to be interpreted in light of the conditions
existing when it was executed." In re Conveyance of Land
Belonging to City of DuBois, 335 A. 2d 352, 357 (Pa. 1975). As
evidence of conveyance, Defendants offer three (3) deeds: (1)
September 1, 1996 deed: This deed was for the conveyance of in
excess of 52 acres of land contiguous to and partially covered by
the waters of Lake Ariel ("Parcel 1") and states, ". . . with the
right in the Grantors . . . to go across at all reasonable times
and places from their remaining lands so much of the land hereby
conveyed as the Grantors have historically used to access the
waters of Lake Ariel for fishing and boating, including the right
to transport a boat to Lake Ariel." (Doc. 126 at 12.); (2)
August 25, 1998 corrective deed: This deed states, "No language
contained herein shall be interpreted to diminish the reservation
of rights by the Grantors in the prior deed to access the waters
of Lake Ariel for fishing and boating, including the right to
transport a boat to Lake Ariel."; and (3) July 12, 2001 deed:
This deed was for the conveyance of in excess of 34 acres of land
("Parcel 2") and states, ". . . waters, water courses . . . and
appurtenances whatsoever unto the hereby granted premises. . . ."
The language contained in both the deed and corrective deed for
Parcel 1, reserving Grantors' right to use the Disputed Water Area, appears
to be an acknowledgment on the part of the Grantors as to their
rights to the Disputed Water Area. Without any language of
conveyance, it is ambiguous as to whether the Grantors intended
to only reserve these rights or convey these rights to the
Defendants. The language in the deed conveying Parcel 2, however,
grants all of the Grantors' appurtenances to the Defendants.
Hence, if the Grantors had any easements to convey to the
Defendants, they did so in the July 12, 2001 deed. Defendants'
motion for summary judgment on this issue will therefore be
b. Res Judicata/Claim Preclusion
As their Fifth Separate Defense, Plaintiffs asserted that
Defendants are precluded from counterclaiming because they are
barred by claim preclusion. Plaintiffs contend that the prior
litigation and settlement agreement between ALO and Mr. Joseph
Asaro (father to Defendants Lori Dring and Nancy Asaro)
("Settlement Agreement") is considered a final judgment on the
merits and serves to preclude Defendants' present counterclaims.
Plaintiffs further argue that the Defendants are bound by the
Settlement Agreement because they are in privity with Mr. Asaro.
Defendants ask for summary judgment in their favor with respect
to this issue because they claim that there is no privity and
hence, claim preclusion should not apply.
The doctrine of res judicata encompasses two preclusion
Under collateral estoppel or issue preclusion, once
an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination
is conclusive in subsequent suits based on a
different cause of action involving a party to the
prior cause of action. . . . Claim preclusion or res
judicata provides that when a court has entered a
final judgment on the merits of a cause of action, the parties to the suit
and their privies are thereafter bound `not only as
to every matter which was offered and received to
sustain or defeat the claim or demand, but as to any
other admissible matter which might have been offered
for that purpose.'"
Brody v. Hankin, 299 F. Supp. 2d 454
, 258 (E.D. Pa 2004)
(citations omitted). Other authorities require that the claims be
the same as those asserted in the previous action. Huck v.
Dawson, 106 F.3d 45
, 48 (3d Cir. 1997). Plaintiffs seem to
confuse issue and claim preclusion. The Court will assume that
Plaintiffs meant to raise the defense of claim preclusion and
examine whether the three prongs of claim preclusion are present
in this case. As both cases dealt with use of the Disputed Water
Area, the claim is the same. The remaining two issues will be
whether the previous settlement agreement is considered a final
judgment on the merits and whether there is privity between Mr.
Asaro and Defendants.
i. Settlement Agreement As Final Judgment On The Merits
The Settlement Agreement states that "1. The Asaros [i.e.,
Joseph and Elaine] agree that Ariel Land Owners, Inc. is the
owner of the fee of Lake Ariel, which includes the area known as
Mud Pond. . . . The Asaros further agree that Ariel Land Owners,
Inc. is the only party from whom rights to Lake Ariel and/or Mud
Pond may be obtained." (Doc. 125-3 at 12.) In order for claim
preclusion to apply, a final judgment has to have been rendered
in the settlement agreement. One Virginia Ave. Condo. Assoc. of
Owners v. Reed, No. 18726-NC, 2005 Del. Ch. LEXIS 115, *25 (Del.
There is a dispute between Plaintiffs and Defendants as to
whether the terms of this Settlement Agreement apply to the
Asaros' daughters' subsequent purchase of a different plot of land near the Disputed Water Area. While that
question remains to be tried, final judgment on the merits of the
case between the Asaros and ALO has been reached in the
Settlement Agreement. There is no ambiguity that the Asaros have
agreed that ALO "is the only party from whom rights to Lake Ariel
and/or Mud Pond may be obtained." (Doc. 125-3 at 12.) "The
question of whether contract terms are clear or ambiguous is a
legal one . . ." and it is deemed clear when "the contractual
language is subject to only one reasonable interpretation."
Ramada Franchise Sys., Inc. v. Jai Shyam, Inc., No. 03-4303,
2004 U.S. App. LEXIS 20563, *4 (3d Cir. 2004) (citations
omitted). In this case, it is clear that the overall purpose of
the Settlement Agreement was to clarify the fact that for all
uses of the Disputed Area as between the Asaros and ALO,
permission must be sought solely from ALO.
ii. Privity Between Joseph Asaro And Defendants
There is a dispute between the parties on the interpretation of
paragraph 1 of the Settlement Agreement. The terms of paragraph 1
is not in dispute, rather, the crux of the dispute is in the
reach and application of this paragraph. Plaintiffs argue that
the terms in paragraph 1 apply to all those privy to Mr. Asaro
(Doc. 150 at 37) while Defendants argue that it is limited just
to Mr. Asaro and his wife (Doc. 126 at 25).
Under Pennsylvania law, the basic elements of agency are
considered to be "the manifestation by the principal that the
agent shall act for him, the agent's acceptance of the
undertaking and the understanding of the parties that the
principal is to be in control of the undertaking." Wilcox v.
Pepsico, Inc., 174 F. Supp. 2d 265, 267 (E.D. Pa 2001)
(citations omitted). There is genuine issue of material fact as
to whether Mr. Asaro and the Defendants have an agency relationship.
Plaintiffs point out that Mr. Asaro admitted in his deposition
that he was the one that chose the property, negotiated the
price, paid for and closed on the property. (Doc. 150 at 43.) Mr.
Asaro was also in control of the bills and litigation related to
this property. (Id.) Defendants argue, however, that despite
the lack of documentation, the purchase money was a loan from
their father and that Mr. Asaro did not benefit from this
transaction. (Doc. 126 at 19.) Defendants also argue that there
was no implied or expressed authority given by them to Mr. Asaro
(Doc.126 at 20), but there is evidence that some consent and
authority was given to conduct the purchase. Defendants further
contend that Mr. Asaro did not exercise continuous control over
the Defendants as is required to find an agency relationship.
See Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622, 626
(Pa. Super. Ct. 1992) (citations omitted) ("It is the element of
continuous subjection to the will of the principle that
distinguishes the . . . agency agreement from other
Whether Mr. Asaro had continuous control over the activities of
the Defendants or that Defendants were acting on behalf of Mr.
Asaro present genuine issues of material fact and hence,
Defendants' motion for summary judgment on the issue of claim
preclusion will be denied.
c. Equitable Estoppel
Plaintiffs raised an affirmative defense of equitable estoppel
but decided to withdraw this defense as duplicative. Therefore,
the Court will not address this issue as it has been withdrawn. CONCLUSION
Plaintiffs' motion for summary judgment will be granted in part
and denied in part. Plaintiffs are entitled to summary judgment
on Count II. Plaintiffs are also entitled to summary judgment on
Count V with respect to Defendants' claim that ownership of a
portion of the waterbed in the Disputed Water Area gives them an
appurtenant right to full use and enjoyment of the Disputed Water
Area. The Court, however, will deny Plaintiff's motion for
summary judgment on Count IV and the remainder of the issues
raised in Count V.
Defendants' motion for summary judgment will be granted in part
and denied in part. Defendants are entitled to summary judgment
as to the issue of whether the Grantor's have conveyed their
easement rights to the Defendants in their deeds. The Court will
deny Defendants' motion for summary judgment on whether Grantors
had prescriptive easement rights to convey and whether claim
preclusion applies to this case.
An appropriate Order follows. ORDER
NOW, this 30th day of September, 2005, IT IS HEREBY
(1) Motion for Partial Summary Judgment of
Plaintiff/Counterclaim Defendant Ariel Land Owner,
Inc. and Counterclaim Defendants Karl R. and Alice L.
Iffland, et. al. (Doc. 120) is GRANTED in part and
DENIED in part.
(a) The motion is GRANTED insofar as it seeks
summary judgment with respect to:
(i) Count II; and
(ii) Count V, only with respect to Defendant's claim
that ownership of a portion of the waterbed in the
Disputed Water Area gives them appurtenant right to
full use and enjoyment.
(b) The motion is DENIED insofar as it seeks
summary judgment with respect to Count IV and rest of
Count V. (2) Motion for Partial Summary Judgment of
Defendants/Counterclaim Plaintiffs, Lori Dring and
Nancy Asaro (Doc. 124) is GRANTED in part and DENIED
(a) The motion is GRANTED insofar as it seeks
summary judgment on whether any easements that the
Grantors have, if any, has been conveyed to the
Defendants in their deeds.
(b) The motion is DENIED insofar as it seeks
summary judgment on whether Grantors had any
prescriptive easement rights and whether claim
preclusion applies to this case.
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