THOMAS A. ROBINSON FAMILY LIMITED PARTNERSHIP, A PENNSYLVANIA LIMITED PARTNERSHIP, AND T.A. ROBINSON ASPHALT PAVING, INC., A PENNSYLVANIA CORPORATION
TED S. BIONI AND DOMINIC J. BIONI Appellants
from the Order Entered January 20, 2016 In the Court of
Common Pleas of Washington County Civil Division at No(s):
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
Ted and Dominic Bioni appeal from an order granting permanent
injunctive relief enforcing a prescriptive easement in favor
of Appellees Thomas A. Robinson Family Limited Partnership
and T.A. Robinson Asphalt Paving, Inc. ("the
Robinsons"). After careful review, we deny the
Robinsons' motion to quash the appeal for failure to file
post-trial motions, affirm the order of the trial court
enjoining conduct by the Bionis that interferes with the
Robinsons' prescriptive easement, and vacate the order to
the extent it enjoined conduct by the Bionis that interferes
with a purported prescriptive easement owned by the public.
Robinsons commenced this action by a complaint in equity that
sought to enjoin the Bionis from interfering with their
ability to enter their property from a public street (Federal
Street) in Cecil Township, Washington County. The Robinsons
have operated an asphalt business since 1994, and store heavy
equipment on their property. They also lease their property
to other commercial businesses that store commercial vehicles
on the property. Prior to their ownership and use of the
property, it was owned by Angelo Brunetti, who used it for
the storage and hauling of coal by-product materials. The
Bionis own adjacent commercial property where they operate an
excavating and hauling business.
Robinsons access Federal Street by means of a strip of land
(the "cartway"), a portion of which abuts the
Bionis' property. The cartway, which is sometimes
referenced in the record as the "Federal Street
Extension, " is privately owned by the Robinsons, and,
according to the Robinsons' property deed, it was
originally nine feet wide. However, the Robinsons require a
larger width in order to accommodate their large vehicles and
equipment. The paved portion of the cartway now varies in
places from nine to fifteen feet in width, and a portion of
the cartway next to the Bionis' property is fifteen feet
wide. This width encroaches on the Bionis' property by
approximately three feet. The Robinsons contend that through
years of continuous use by themselves and their predecessor
(Brunetti), they acquired a prescriptive easement to use this
additional width of the cartway. The Bionis disagree and do
not recognize the Robinsons' right to use a
2014, the Bionis erected a steel post at the edge of their
property, obstructing the Robinsons' use of the portion
of the cartway that encroaches on the Bionis' property.
The Robinsons moved for a preliminary injunction to have the
post removed, and the trial court granted that relief by an
order dated April 11, 2014, which reads in relevant part:
AND NOW, this 11th day of April, 2014, upon consideration of
plaintiff Thomas A. Robinson Family Limited Partnership's
Motion for Preliminary Injunction, it is hereby ORDERED,
ADJUDGED and DECREED that said motion is GRANTED, and a
PRELIMINARY INJUNCTION is hereby entered, and defendant[s]
Ted S. Bioni and Dominic J. Bioni and any other person or
entity acting in active concert or participation with said
defendant[s] are hereby ENJOINED from:
A) Taking any action which would interfere with or prohibit
Robinson from accessing the Subject Property from Federal
Street across a portion of Bionis' Property; and
B) Taking any action that would interfere with or impede
Robinson or its contractors, employees, and agents from
accessing the Subject Property; and
C) Bioni must remove the post that was installed on or about
April 2, 2014, and is hereby prohibited from reinstalling any
such barrier, post, or obstruction.
Order, 4/11/14, at 6.
trial court held hearings on the Robinsons' request for a
permanent injunction on November 14, 2014, and January 26,
2015, during which both sides offered testimony and exhibits.
By an opinion and order dated January 15, 2016,
trial court found in favor of the Robinsons and against the
Bionis, holding that the Robinsons held a prescriptive
easement over the disputed portion of the Bionis'
property along the cartway for access to the Robinsons'
property. The court enjoined the Bionis from interfering with
that access. The trial court's order reads:
AND NOW, this 15th day of January, 2016, upon careful
consideration of the evidence and testimony presented, and
upon review of the briefs filed on behalf of Plaintiffs and
Defendants, it is hereby ORDERED, ADJUDGED and DECREED that
Plaintiffs' Motion for a Permanent Injunction is GRANTED,
and Defendants are hereby PERMANENTLY ENJOINED from:
A) Taking any action which would interfere with or prohibit
Plaintiffs or the public from accessing the subject Property,
ingress or egress, from Federal Street across a portion of
B) Installing or constructing any pole, marker or other
obstacle which would impede or interfere with Plaintiffs'
access, or its contractors, employees, agents, business
invitees, tenants or the public to the subject Property.
By way of further order, the trial court hereby ORDERS that
the bond posted by Plaintiffs pursuant to the court's
order of April 11, 2014 is hereby released; and
The trial court awards court costs in favor of Plaintiffs and
and Order, 1/15/16, at 6. Significantly, unlike the
preliminary injunction, the permanent injunction prohibited
the Bionis from interfering with access to the disputed
portion of the cartway not only by the Robinsons, but also by
"the public." In its Conclusions of Law, the court
held that the evidence not only proved that the Robinsons had
acquired a prescriptive easement across the Bionis'
property, but also that "the public and Cecil
Township" had done the same. See id. at 5
(Legal Conclusions 1-2).
Bionis did not seek post-trial relief pursuant to Rule 227.1
of the Rules of Civil Procedure. Rather, on February 16,
2016, they filed a direct appeal to this Court in which they
raise the following six issues:
1. Is a Trial Court Order granting a permanent injunction,
which alters the status quo, immediately appealable as a
matter of right pursuant to Pa.R.A.P. 311(4)?
2. Did the Trial Court Abuse its Discretion in making
findings of fact which are not supported by substantial
evidence of record?
3. Did the Trial Court abuse its discretion and/or err as a
matter of law in concluding that the Robinsons demonstrated
by "clear and positive proof" the existence of a
prescriptive easement acquired in their favor over and across
the Bionis' property based on the adverse, open,
notorious, continuous and uninterrupted use by the Robinsons
and their predecessors in title for over twenty-one years?
4. Did the Trial Court abuse its discretion and/or err as a
matter of law in determining that the evidence adduced at
trial demonstrated by "clear and positive proof"
the existence of a prescriptive easement in favor of the
public and Cecil Township over and across Defendant's
property along "Federal Street Extension" based on
the adverse, open, notorious, continuous and uninterrupted
use by the public and the Township for over twenty-one years?
5. Did the Trial Court abuse its discretion and/or err as a
matter of law in failing to identify the period of
prescription, as well as the specific location and size of
the alleged prescriptive easement?
6. Did the Trial Court abuse its discretion and/or err as a
matter of law in determining the existence of a prescriptive
easement where no evidence of record demonstrates that the
Robinsons' predecessors in interest ever used the
Bionis' property adversely and/or whether by words or
action ever asserted a prescriptive easement claim over said
Brief at 5-6 (suggested answers omitted).
March 18, 2016, we issued an order requiring the Bionis to
show cause why their appeal should not be dismissed for
failure to file a post-trial motion pursuant to Rule 227.1.
On March 21, 2016, the Robinsons filed a motion to quash the
appeal based on the Bionis' failure to comply with Rule
227.1. See Mot. To Quash, 3/21/16. On April 6, 2016,
we issued a per curiam order dismissing the appeal sua
sponte, and dismissing the Robinsons' motion to
quash as moot. On April 7, 2016, the Bionis filed an
application for reconsideration of our April 6, 2016 order,
in which they contended that they were not required to file a
post-trial motion because they had filed an interlocutory
appeal from an order granting an injunction pursuant to Rule
311(a)(4) of the Rules of Appellate Procedure. On April 27,
2016, we issued a per curiam ...