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Bartkowski v. Ramondo

Supreme Court of Pennsylvania

October 31, 2019


          ARGUED: April 11, 2019

          Appeal from the Order of the Superior Court at Nos. 432 EDA 2017 and 521 EDA 2017 dated January 22, 2018, Reconsideration denied March 22, 2018, Affirming in part and Vacating in part the Judgment of the Chester County Court of Common Pleas, Civil Division, at No. 15-05842 entered January 27, 2017 and Remanding.



          WECHT JUSTICE.

         We granted allowance of appeal to consider whether a landowner must prove impossibility of alternative access arising from zoning and regulatory prohibitions or conditions of the land in order to establish an easement by necessity.

         The facts pertinent to this appeal are not in dispute. Kenneth Ramondo and Theresa-Cecelia Ramondo ("the Ramondos") purchased a property in Chester County (the "Ramondo property") on July 16, 1991. The Ramondo property is of a type known as a "flag lot," because it is consists of both a main portion (the "flag") and a narrow strip (the "pole") that connects the main portion to a public street.[1] The pole portion of the Ramondo property is approximately twenty-five feet wide and opens onto Garrett Mill Road. The Ramondo pole extends six hundred feet from Garrett Mill Road to the main portion of the Ramondo property-the flag portion-which is approximately 5.62 acres. Thaddeus J. Bartkowski, III, and Crystal Anne Crawford ("the Bartkowskis") bought the neighboring property ("the Bartkowski property"), also a flag lot, on December 11, 2012. The pole of the Bartkowski property, also measuring twenty-five feet wide, abuts and runs parallel with the Ramondos' pole. The flag portion of the Bartkowski property is approximately 5.25 acres.[2]

         The portion of land at issue in this appeal involves the adjoining Ramondo and Bartkowski poles, upon which the Ramondos constructed a driveway (the "Ramondo driveway") that provides them access to Garrett Mill Road. The Ramondo driveway begins on the Bartkowski pole, and extends up that pole for approximately three hundred feet. At that point, the Ramondo driveway crosses onto the Ramondo pole and continues on that pole to the main portion of the Ramondo property. The Bartkowskis use neither their pole nor the Ramondo pole to access their own flag portion, as they instead make use of an earlier-granted easement which passes over an adjacent property.

         At one time, the Ramondo property and the Bartkowski property were both owned by a common grantor, Adrian and Margaret Teaf ("the Teafs"). In 1967, the Teafs recorded a subdivision map which laid out, among other properties, the Ramondo and Bartkowski parcels.[3] Both parcels were vacant, wooded lots, and neither pole contained a driveway providing access to the flag portions of these parcels. On April 19, 1968, the Teafs conveyed the Bartkowski property to Herbert and Margaret Mansmann ("the Mansmanns"). The Mansmanns did not construct a driveway on their pole. Rather, the Mansmanns, and all subsequent owners of the Bartkowski property, shared a driveway with the owners of the parcel south of the flag portion of the Bartkowski property, the Coulstons. The Coulston driveway is located on the side of the Coulston property farthest from the Bartkowski pole. As noted, an easement for this driveway use was recorded prior to the Bartkowskis' arrival.

         The Mansmanns built a single-family home on the Bartkowski property in 1969 and still lived there when the Ramondos purchased the neighboring Ramondo property in 1991. In order to build a home on the vacant property, the Ramondos first needed to construct a driveway. Before doing so, Kenneth Ramondo invited his neighbors, including the Coulstons and the Mansmanns, to "walk the property line to see if anybody had a problem with where the driveway was going." Stipulated Facts, 2/27/2016, at 6 (citing N.T., 8/17/2015, at 87). None of the neighbors objected to the Ramondos' proposed placement of the driveway. Nonetheless, although the lower portion of the Ramondo driveway would traverse the Mansmanns' property, no easement securing such access was executed or recorded.

         The Ramondos completed construction of their driveway in 1992 and their home in 1993. The Ramondos placed the driveway in its current location due to numerous legal and physical impediments that precluded the placement of the driveway entirely on their pole. First, a stream runs through the lower portion of the Ramondo pole and into Ridley Creek, which flows across from and parallel to Garrett Mill Road. Second, the area in which the stream crosses the Ramondo pole is a flood plain. Third, a utility pole sits just off Garrett Mill Road in the middle of the Ramondo pole and services a utility line that runs under the Ramondo driveway. Fourth, portions of the Ramondo pole are very steeply sloped.

         In 1995, the Ramondos paved the driveway, which had previously been gravel-surfaced. The Ramondos resurfaced the driveway in 2000 and installed a guardrail along the edge of the steep slope. In 1993, and again in 2004, the Ramondos executed mortgages on their property in favor of Barclays and USAA, respectively. Neither of the legal descriptions of the Ramondo property attached to the mortgage documents included the portion of the Ramondo driveway that is situated on the Bartkowski pole.

         In 2003, the Mansmanns conveyed the Bartkowski property to F. Ramondo, Inc., the Ramondo family's business. During the years that F. Ramondo, Inc. owned the property, Kenneth Ramondo was an officer of the company. On May 2, 2007, F. Ramondo, Inc. conveyed the property to James and Marianne Bianco ("the Biancos"). The Biancos conveyed the property to the Bartkowskis on December 11, 2012. When the Bartkowskis purchased their property, they were aware that the Ramondos used the Ramondo driveway to access their home. The Bartkowskis also knew that the Biancos had used the shared Coulston driveway to access the home on the Bartkowski property.[4]

         In 2013, the Bartkowskis approached the Ramondos about the Ramondo driveway's encroachment upon the Bartkowskis' pole. On June 30, 2015, the Bartkowskis, through their attorney, sent the Ramondos a cease and desist letter demanding that the Ramondos stop using the portion of the Ramondo driveway that is on the Bartkowskis' pole.

         On July 16, 2015, the Bartkowskis filed an action in ejectment and trespass, alleging that the Ramondos improperly constructed their driveway on the Bartkowski property. On July 31, 2015, the Ramondos filed a counterclaim alleging that they acquired title to the disputed area by adverse possession or through the doctrine of consentable lines. Alternatively, the Ramondos claimed a property interest in the driveway by way of an easement by prescription, necessity, or implication.

         The Bartkowskis and Ramondos decided to forego a trial, agreeing instead to submit a stipulated fact record and joint exhibits, as well as memoranda of law, to the court. The Bartkowskis submitted a site survey which identified in detail the Bartkowski and Ramondo properties and their respective poles, as well as the location of the Ramondo driveway. Both parties submitted expert reports.

         The Ramondos' expert, Daniel Malloy, P.E., a civil engineer, concluded that the current location of the Ramondo driveway is the "only method to reach their home." Exh. 19 at 1. Malloy noted that, in some places along the Ramondo pole, the slope is a 50% grade, which leaves "a portion of the Ramondo's [pole] sit[ting] more than ten feet below the elevation of the existing driveway." Id. In order to install a driveway on the Ramondos' pole, Malloy opined, it would be necessary to either "construct the driveway at the lower grade of their property or elevate their driveway to remain close to the elevation of the driveway they currently use." Id. at 2. Neither of these options are viable solutions, Malloy explained, because of environmental and zoning regulations.

         A thirty-foot wide stream runs through the lower portion of the Ramondos' pole before flowing under Garrett Mill Road, creating a flood plain in the entire area. Malloy opined that constructing the driveway at the lower grade would require installation of a retaining wall on the Ramondo pole in order to comply with Willistown Township zoning ordinances regarding wetlands and prohibitive slopes.[5] Construction of a retaining wall would in turn require the placement of fill into the floodplain, which is prohibited both by township ordinances and by the Federal Emergency Management Agency (FEMA). Id. at 3. These same ordinances and regulations, Malloy opined, would likewise prohibit the Ramondos from elevating their pole to the elevation of the Bartkowski pole. The only option, therefore, would be to relocate the stream.

         Malloy posited that, in order to relocate the stream onto the neighboring property, the Ramondos would need the approval not only of their neighbor, but also of the township and the Pennsylvania Department of Environmental Protection ("DEP"). This approval would be difficult to obtain, Malloy explained, because neither the township nor the state allows streams to be relocated unless a "significant reason" exists to do so. Id. at 2. Malloy posited that the construction of a driveway, especially where one exists in close proximity, "does not fall into a category the State or Township would consider a significant reason" to relocate a waterway. Id. Building a bridge over the stream, Malloy contended, would implicate many of the same ordinances and environmental concerns. In total, Malloy summarized the extensive number of permits that the Ramondos would be required to obtain from both the township and the DEP:

They include an Erosion and Sedimentation permit, Highway Occupancy Permit to connect to Garrett Mill [Road], a PADEP permit GP7 (minor road crossing) and possibly a GP 15 (residential construction in wetlands). The Township will require zoning relief since the construction of a driveway in steep slopes, flood plains, and/or riparian buffer is prohibited by Willistown Township's Environmental Ordinance (Section 73) and by the Zoning Code (Section 119).


         Finally, even assuming that all the environmental and zoning issues could be overcome, which Malloy characterized as "highly unlikely," see id. at 3, constructing a driveway within the Ramondo pole also would require the relocation of the utility pole. Malloy estimated this cost alone at approximately $10, 000. For all of these reasons, Malloy concluded that "the amount of regulatory relief and permitting needed to install a new driveway on the Ramondos' property from the State and the Township will be extremely extensive making the construction of a parallel driveway all but impossible." Id. Additionally, Malloy posited that "[t]he amount of engineering required to satisfy the permitting agencies will be a significant percentage of the cost to construct the new driveway (which in itself will be prohibitive)." Id. Malloy further advised that "it will be many, many months, if not years before the approvals may be obtain[ed], if at all," and opined that "[i]t is very likely that all the required permits would never be approved." Id.[6]

         The Bartkowskis' expert, Denny L. Howell, P.E., a civil engineer, issued a rebuttal report challenging Malloy's conclusions. Howell acknowledged that the terrain of the Ramondos' pole is "steep," and agreed with Malloy that construction thereon "would require relief from Willistown [o]rdinances as it pertains to steep slope disturbance, riparian buffer disturbance as well as flood plain disturbance." Exh. 23 at 1. Despite these obstacles, Howell concluded that "this relief is not unreasonable." Id. Howell posited that, "[s]etting aside the necessary [o]rdinance relief . . . construction of the driveway is feasible," and estimated that the construction cost would be approximately $75, 000. Id. On the likelihood that the Ramondos could obtain the necessary environmental and zoning relief, Howell concluded that "it is well within reason to expect that these variances could be obtained." Id. at 2.

         By order dated September 19, 2016, the trial court found in favor of the Ramondos on the counterclaim in which they asserted that they had obtained an easement by implication.[7] As a result, the court ruled against the Bartkowskis on their claims of ejectment and trespass. In support of its order, the court issued Findings of Fact and Conclusions of Law ("Findings"). Of relevance to this appeal, on the Ramondos' claim that they obtained an easement by necessity, the trial court outlined that the party seeking access across the property of another must establish that: "(1) the titles to the alleged dominant and servient properties [were] held by one person; (2) this unity of title [was] severed by a conveyance of one of the tracts[;] and (3) the easement must be necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of severance of title and at the time of the exercise of the easement." Findings, 9/19/2016, at 17 (citing Graff v. Scanlan, 673 A.2d 1028, 1032 (Pa. Cmwlth. 1996)). Additionally, the trial court emphasized that "[a]n easement by necessity 'is always of strict necessity' and never exists as a mere 'matter of convenience.'" Id. (quoting Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000) (emphasis in original)). The trial court concluded that the Ramondo property was "not landlocked," and that, although the Ramondos presented evidence that gaining approval from the Township to relocate the driveway "may be difficult," the Ramondos did not "demonstrate impossibility and thus necessity." Id. at 18.[8]

         The Bartkowskis filed a post-trial motion challenging the trial court's order, which the trial court denied on January 4, 2017. The Bartkowskis filed a timely notice of appeal and Pa.R.A.P. 1925(b) statement challenging whether the Ramondos met the elements necessary to establish an easement by implication. The Ramondos cross-appealed, disputing the trial court's rulings that they did not have an easement by necessity or that they had not obtained title by the doctrine of consentable lines. On February 22, 2017, the trial court issued its Pa.R.A.P. 1925(a) opinion, adopting, in full, its September 19, 2016 Findings of Facts and Conclusions of Law.

         In an unpublished memorandum, a divided panel of the Superior Court affirmed in part and vacated in part. Bartkowski v. Ramondo, 432 & 521 EDA 2017, 2018 WL 495213 (Pa. Super. Jan. 22, 2018).[9] On the Ramondos' easement by necessity claim, the Superior Court agreed with the trial court's reasoning to the effect that the Ramondos failed to establish necessity. The Superior Court reasoned that, although the Ramondos' expert opined that construction of a new driveway on the Ramondo pole would be "costly and 'all but impossible, '" the Ramondos did not prove that this could not be done. Id. at *6 (quoting Findings, 9/19/2016, at 9). To the contrary, the Superior Court reiterated the Bartkowski expert's proffer that construction of the driveway was "feasible," and held that, "because a new driveway is possible, even if difficult and expensive," the trial court did not err in denying the Ramondos claim for an easement by necessity. Id.

         Judge Bowes dissented on this issue, characterizing the lower portion of the Ramondos' pole as "virtually impassable," due to a "stream, flood plain, utility pole, and a steep slope." Id. at *8 (Bowes, J., concurring and dissenting). Summarizing the expert reports, Judge Bowes reasoned that there is no dispute that the Ramondos would need relief from various township ordinances and DEP regulations in order to construct a new driveway on the Ramondo pole. Howell's belief that it would be "feasible" to obtain such regulatory relief was insufficient, in Judge Bowes' opinion, to establish that the multiple permitting and zoning obstacles could be overcome. The key inquiry, Judge Bowes emphasized, is not whether the Ramondos "could possibly get relief" but "whether it is likely or probable that they will." Id. at *10. Judge Bowes explained that the myriad of required variances and approvals serve to elevate the Ramondos' claim of necessity above a mere question of convenience.[10]

         We granted allowance of appeal in order to consider whether, when seeking to establish an easement by necessity, a landowner must prove impossibility of alternative access arising from zoning and regulatory prohibitions or other conditions. Bartkowski v. Ramondo, 195 A.3d 853 (Pa. 2018) (per curiam).

         The Ramondos argue that the only element at issue in this appeal is whether access upon the Ramondo driveway is necessary. The Ramondos characterize their need for access as one of strict necessity, distinguishing their circumstances from those cases in which this Court or the Superior Court have concluded that a landowner's claim for a particular desired access is one of mere convenience. Brief for Ramondos at 14-15 (citing Schwoyer v. Smith, 131 A.2d 385 (Pa. 1957); Youst v. Keck's Food Serv., Inc., 94 A.3d 1057 (Pa. Super. 2014); Phillippi, 748 A.2d 757). The Ramondos maintain that the "regulatory prohibitions" and the "practical and financial impossibility of relocating the stream and driveway," result in their property being landlocked. Brief for Ramondos at 15.

         The Ramondos next contend that "requiring landowners who face codified legal impediments to prove with absolute certainty that they could obtain relief from those impediments is not logical and would be a tremendous waste of public and private resources." Id. at 16. Rather than imposing such a burden, the Ramondos propose that, when it is undisputed that zoning and regulatory relief is required prior to allowing construction of alternative access, as it is here, the court should find a "per se necessity, or at least a presumption of necessity." Id. at 19. Upon such a finding, the Ramondos assert, the burden should shift to the servient property owner to prove that relief is available. The Ramondos argue that such burden-shifting frameworks are commonplace in other areas of the law, and they advocate for application of such a framework here. Id. at 18-20 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (adopting burden-shifting framework for employment discrimination claims); Borough of Perkasie v. Moulton Builders, Inc., 850 A.2d 778 (Pa. Cmwlth. 2004) (applying burden-shifting framework to conditional use applications in zoning matters)).

         Applying these principles, and relying upon their expert's report, the Ramondos maintain that they presented compelling evidence that zoning and regulatory relief is "not reasonably likely." Brief for Ramondos at 21. Like Judge Bowes in dissent, the Ramondos reject the trial court's and Superior Court's reliance upon the Bartkowskis' expert's opinion that alternative access on the Ramondo's pole was "feasible," characterizing that opinion as "unsupported" and "woefully insufficient." Id. at 20-21. Accordingly, the Ramondos ask that we reverse the order of the Superior Court and hold that they have established grounds for an easement by necessity over the Bartkowski property.

         In response, the Bartkowskis first assert that the trial court, when presented with competing expert opinions on the physical and legal impediments to constructing a driveway on the Ramondos pole, credited the conclusion of the Bartkowski's expert. Because this credibility determination has support in the record, the Bartkowskis argue, this Court should not disturb it on appeal. Brief for Bartkowskis at 11-13. Moreover, the Bartkowskis contend Howell's opinion is supported by the concept that "waivers and variances exist precisely in order to ensure that properties like the ...

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