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Pocono Realty Co. v. Lamar Advertising Co.

April 23, 2009


The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge



At issue in this matter is the scope of express easements granted in an Agreement For Purchase and Sale of Assets (referred to as the "Agreement") by Plaintiffs Pocono Realty Company ("Pocono Realty"), Edwin Krawitz, and Barbara Krawitz to the predecessor-in-interest of Defendant Lamar Advertising Company ("Lamar"). Plaintiffs have brought claims against Defendant for ejectment and for the recovery of rental income, asserting that the easements do not entitle Lamar to maintain billboards on Plaintiffs' property without paying rent. (See Complaint, Dkt. Entry 1-2.) Lamar has moved for summary adjudication of all Plaintiffs' claims and seeks summary adjudication of its counterclaim for attorneys fees and costs pursuant to the Agreement. (Def.'s Mot. Summ. J., Dkt. Entry 11.) Plaintiffs have likewise moved summary judgment. (Pls.' Mot. Summ. J., Dkt. Entry 17.)

Because the Agreement is susceptible to only one reasonable interpretation -- that the scope of the easement includes the right to use the ground upon which the billboard structures sit to support the billboards -- and the parties' conduct supports this interpretation, summary judgment in favor of Defendant will be granted. Defendant will also be awarded reasonable attorneys fees and costs for defending this action.


Plaintiff Edwin Krawitz is a member of the Pennsylvania bar in good standing and has practiced for over fifty years, a substantial portion of which has included the representation of parties in real estate transactions. (Def.'s SMF, ¶ 13.) On January 2, 1998, Martin Media, a California Limited Partnership and predecessor-in-interest to Lamar Advertising Company, entered into an Agreement with Mr. Krawitz, his wife, Barbara Krawitz, and Pocono Realty (owned by Mr. Krawitz) for the purchase and sale of assets, which included certain sign structures, easements, licenses, books and records, prepaid deposits, permits, land leases, leasehold rights and advertising contracts owned by Plaintiffs. (Def.'s SMF, Dkt. Entry 12, at 1.) The pertinent terms and conditions of the Agreement are:

1. Purchase and Sale of Assets and Easements

Seller agrees to sell, transfer, assign and deliver to Buyer and Buyer agrees to purchase from Seller all of Seller's right, title and interest in and to the Assets, pursuant to the terms and conditions contained in this Agreement.

1.1 In addition to the Assets, Buyer shall purchase from Seller and Seller shall sell to Buyer permanent easements for the placement, operation and maintenance of specified outdoor advertising structures on the real property of Seller (the "Boards"), all as more fully described in the easements attached to this Agreements as Exhibit "B" (The "Easements"). The Easements shall include unrestricted access rights to each of the Boards for construction, maintenance, operation and utilities, and the real property upon which the Boards are located shall be subject in perpetuity to such Easements.

1.2. Seller's grant of the Easements to Buyer is a material element of Buyer's willingness to purchase the Assets.

2. Purchase Price

As full and complete consideration for the Assets and the Easements, Buyer shall pay Seller Seven Hundred Fifty Thousand Dollars ($750,000.00) (the "Purchase Price"). (Agreement for Purchase and Sale of Assets ("Agreement"), Dkt. Entry 12-2, at 1.) The Agreement identifies the Assets being purchased as those listed on a separate document labeled Exhibit "A," which, in turn, states:

1. The list of assets attached as Attachment No. 1 hereto, including all advertising structures, advertising contracts, easements, licenses, permits, leases and leasehold rights related thereto; and

2. Easements. (Agreement, at 9.)*fn2

Attachment No 1. to Exhibit "A" to the Agreement, entitled "Krawitz Sign Inventory," lists six billboard locations. The three locations at issue here are known as Locations 3, 4, and 6, and are identified, respectively, as "Exit 51 and I-80," "I-80 S/L 500' East of Exit 51," and "I-80 S/l 1500' East on Exit 51". (Def.'s SMF, ¶ 4; Attachment No. 1., Dkt. Entry 12-2, at 10.) The land upon which the billboards are situated on Locations 3, 4, and 6 is owned by the Krawitzes or Pocono Mountain.*fn3 The "Annual Lease" column on the "Krawitz Sign Inventory" indicated that the annual lease amount for Locations 3, 4, and 6 was zero.*fn4 (Id.)

Exhibit B of the Agreement contains separate easements for each of the three locations, and is incorporated into the Agreement between the parties. (Def's. SMF, ¶ 5.) The standard terms of the easements are as follows:

THIS EASEMENT made this 2nd day of January, 1998 between Edwin Krawitz and Barbara Krawitz (h/w) ("Grantor") and Martin Media, A California Limited Partnership ("Grantee").

WHEREAS, Grantor is the owner in fee simple of certain tract of land situate in the Borough of East Stroudsburg, Monroe County, Pennsylvania, as more particularly described on Exhibit "A" attached hereto and made a part hereof (hereinafter "Grantor's Property");

WHEREAS, Grantee is or is about to become the owner of a certain billboard structure situate on Grantor's Property ("Billboard") and requires a perpetual right of way for use, access and maintenance of the Billboard; and

WHEREAS, Grantor has agreed to grant to the Grantee an easement for such use, access and maintenance, upon the terms ...

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