ARGUED: April 11, 2019
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
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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.
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. 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.
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.
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. 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.
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.
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.
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
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
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.
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.
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.
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
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. 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.
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).
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
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.
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. 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.
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.
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). 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.
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.
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).
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
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)).
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.
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 ...