Beruflich Dokumente
Kultur Dokumente
plaintiff
v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,
defendants :
#03647
Plaintiff, by counsel herewith, pursuant to the March 18, 2015, court order,
[Enright, p.7.]
8. As such, Mr. Enright is responsible for Conrail title issues.
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4
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6
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[Enright, p.8.]
9. The North Penn conveyed its line of railroad to Conrail by deed dated
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March 29, 1976, and recorded May 11, 1979 at deed book 1948 page195&.
[Exhibits P3, P3A; Enright, at pp. 15, ln. 20- p. 16, ln. 9.]
10. John Enright, Esquire, testified one of the lines of railroad conveyed by
the North Penn to Conrail was known as line code 0301. [Exhibits P3, P3A;
Enright, at pp. 17, ll. 17-19.]
11. John Enright, Esquire, the Conrail executive, testified the line of
railroad known as line code 0301 began near Willow Street extending to Wayne
Avenue. [Exhibits P3, P3A; Enright, at pp. 18, ll. 6-18.]
12. Plaintiff entered into an agreement of sale with Conrail for the
purchase of a .6 mile strip of the former line code 0301.
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[Enright, p.51.]
15. The 1854 Dickinson deed and the 1976 Conrail deed were recorded
first in time to the 2003 and 2004 Sixth Street Management Corp. and the
Giunup and Pettacio deeds.
II. Identification of plaintiffs property.
16. The Joint (sic) Stipulation agrees the following maps, plans and
surveys concern the subject properties and are matters of public record [Exhibit
D89],
i) 1861 plan and survey of the Crosia Dore plantation, recorded at
deed book ACH-28-110&. [Exhibits D76.]
ii) 1895 Walter Brinton survey for Thomas J. Martin. [Exhibit
P30.]
iii) 1902 Walter Brinton survey for James Barker. [Exhibit P31.]
iv) 1922 Walter Brinton survey for James Barker, Inc. [Exhibit
P32.]
v) 1929 Jos. F. Delany survey for Barber Hartman. [Exhibit P34.]
vi) 1942 Jos. F. Delany survey for Alexander Young. [Exhibit P35.]
vii) 1964 Wm. F. Bispels, Jr. survey for Tony DePaul & Sons.
[Exhibit P36.]
viii) North Pennsylvania Rail Road Co. map #41 (ancient). [Exhibit
5
P5.]
ix) North Pennsylvania Rail Road Co. map #41. [Exhibit P6.]
x) North Pennsylvania Rail Road Co. map #42. [Exhibit P7.]
xi) Map Conrail Case #69717 #1. [Exhibit P4, P4A, P23, D2,
attachment.]
xii) City Plan 205. [Exhibit P29.]
xiii) City Registry Map 133N6 (1 page). [Exhibit P19, P45.]
xiv) City Registry Map 85N16 (1 page). [Exhibit P46.]
xv) City Registry Map 121N24 (1 page). [Exhibit P47.]
17. Defendants responses to requests for admissions makes the following
statement,
A1. Inspection of the [1854] Dickinson deed by Defendants is
insufficient, upon reasonable inquiry, to enable an admission or
denial as to whether this deed purported to convey the disputed
property because the map or plan delineating the property
granted by Ms. Dickinson, referenced in the deed as being hereunto
annexed, is not annexed to the deed on file with the Department of
Records.
[Exhibit P24.]
18. The map or plan delineating the property granted by Ms. Dickinson
by the 1854 Dickinson deed is recorded at deed book TH-120-536&. [Exhibits
P20, D80.]
19. The aforesaid statement by defendants in response to requests for
admissions #A1, is false, and made in bad faith. [Exhibits P20, P24, D80.]
20. Defendants responses to requests for admissions makes the following
statement,
6
statement,
C1. It is denied that Plaintiff has any current interest in the disputed
property or that Plaintiff has set forth a valid abstract of title
thereto.
[Exhibit P24.]
27. Plaintiffs valid abstract of title is set forth in 2-6, above, and the
Joint (sic) Stipulation at 5 agrees the abstract of plaintiffs title is as set forth in
2, above. [Exhibit D89.]
28. The aforesaid statement by defendants in response to requests for
admissions #C1, is false, and made in bad faith.
29. Defendants responses to requests for admissions makes the following
statement,
C2. Upon reasonable inquiry, Defendants are without knowledge or
information to form a belief as to whether the [Stantec] documents
identified in paragraph B accurately represent the subject
boundaries of the stated Consolidated Rail Corporation property.
[Exhibit P24.]
30. Defendants consulting surveyor, Roy Stauch, PLS testified consistent
with his report. [Exhibit D30.]
31. The aforesaid statement by defendants in response to requests for
admissions #C2, is false, and made in bad faith.
32. Defendants responses to requests for admissions makes the following
statement,
C3. Upon reasonable inquiry, Defendants are without knowledge or
information to form a belief as to whether the [Stantec] documents
identified in paragraph B accurately represent the subject metes
and bounds description of the stated Consolidated Rail Corporation
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property.
[Exhibit P24.]
33. Defendants consulting surveyor, Roy Stauch, PLS testified consistent
with his report. [Exhibit D30.]
34. The aforesaid statement by defendants in response to requests for
admissions #C3, is false, and made in bad faith.
35. The Conrail rail roadbed conveyed to plaintiff lies to the east of
properties owned by Sixth Street Management Corp. and John Giunup, and
Michael Pettacio.
36. The issue in this case is whether the defendants, whose properties are
west of the rail roadbed, own the rail roadbed west of the center line of the
railroad.
37. John Enright, Esquire, the Conrail executive, testified the strip of land
sold to plaintiff is referenced by case #69717.
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Q. And there is a case plan attached,
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which appears to be the eighth page before the
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end, which indicates Case No. 69717; do you
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see that?
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A. Yes.
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Q. It's two pages, sheets one and two?
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A. Correct.
***.
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Q. How are these case plans of sheets
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one and two and two of two, where do they come
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from?
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A. They would have been prepared by
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Conrail at the time of the original sale.
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Q. What are they prepared from, if you
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know?
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A. Evaluation maps (sic).
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Q. What are evaluation (sic) maps, sir?
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[Enright, pp.74-75.]
41. Exhibit P5 is a North Penn section 8 plan of property of the North Penn
rail roadbed through lands of Sally Norris Dickinson.
42. Exhibit P6 is a North Penn quarter section plan of property.
43. Exhibit P7 is a North Penn quarter section plan of property.
44. Exhibit D36 is a 1964 City Survey plan of 4525 N. 6th Street made for
Tony DePaul & Sons.
45. Charles Karat is a licensed professional land surveyor, employed in the
industry since 1988, having been first licensed in 1999 in Pennsylvania. in
addition, Mr. Karat is licensed in Utah, Delaware, Maryland, Virginia and the
District of Columbia. [P25; N.T. 3/12, 2015, p 11 ln. 22 - p. 12 ln. 14.]
46. At the time of first licensure in 1988, Charles Karat had obtained ten
years prior field and office experience. [P25; N.T. 3/12, 2015, p 12 ln. 24 - p. 13 ln.
4.]
47. The 1854 Dickinson deed described the strip of land conveyed as
follows,
CONTAINING nine acres and fifty seven perches as the said strip
or piece of land is delineated and laid down in the map or plan
thereof here unto annexed (which is to be taken as part of this
Indenture) and of keeping, using and maintaining thereon the
Railroad of the party of the Second part at all times hereafter
forever.
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[Enright, pp.76-77.]
64. The 1854 Dickinson deed was executed by Sally Norris Dickinson for
herself and by Thomas L. Fernon, President, on behalf of the North Pennsylvania
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must exercise due diligence in this regard. Ohio River Junction R. Co.
v. Pennsylvania Co., 72 A. 271, 273 (Pa. 1909). The Supreme Court
of Pennsylvania has explained the due diligence obligation as follows:
[Purchasers] title could be affected only with what they actually
or constructively knew at the time of the purchase; necessarily,
as to the latter, by what they could have learned by inquiry of the
person in possession and of others who, they had reason to
believe, knew of facts which might affect the tite [sic], and also by
what appeared in the appropriate indexes in the office of the
recorder of deeds, and in the various courts of record whose
territorial jurisdiction embraced the land in dispute; but not of
that which they could not have learned by inquiry of those only
whom they had reason to believe knew of the facts.
Lund v. Heinrich, 189 A.2d 581, 585 (Pa. 1963) (internal citations
omitted). Accordingly, a purchaser fulfills his or her due diligence
requirement when he or she examines the documents recorded in
the county or counties in which the property is situated and when he
or she asks the possessor about title, as well as any other people the
purchaser has reason to believe would know about the status of the
propertys title.
Nolt v. T.S. Calkins & Associates, LP, 2014 PA Super. 141, 96 A.3d
1042, 1047-48 (2014).
81. A fee simple subject to a condition subsequent, provides for a possibility
of a reverter; that is, the reversion requires some action on the part of the
grantor. Wagner v. Landisville Camp Meeting Ass'n, 2011 PA Super 116, 24 A.3d
374, 377 (Pa.Super. 2011).
82. The possibility of a reverter requires prompt action on the part of the
grantor, her heirs or assigns.
Restatement (First) of Property 57 (1936) ("On the occurrence of
the event which constitute a breach of a condition subsequent
annexed to an estate in fee simple defeasible, the estate does not
terminate. The estate is not terminated unless and until the power of
termination is exercised."); Lacy v. Montgomery, 181 Pa. Super. 640,
645, 124 A.2d 492, 494-95 (1956) ("Upon properly authorized
abandonment by the railroad, the base fee acquired on
condemnation reverted to those who were the owners at the time of
the condemnation, their heirs or assigns. This reversionary interest
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known as Poor Boys Used Auto Parts, Inc. filed in February 2008 and the
judgment Sixth Street Management obtained in that action in October 2009.
[Exhibit D19.]
88. In 2008, the last deed of record was in Conrail. [Exhibits P3, P3A.]
89. It was not until litigation was commenced against Conrail that Conrail
became inclined to give plaintiff a proper deed.
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95. In Marko v. Mendelowski, 344 Pa. 665, 668, 25 A.2d 692, 693 (1942),
the plaintiff had obtained a judgment in ejectment. Several years expired prior to
resolution of post trial motions. In the interim, defendant allowed the property to
be exposed to tax sale. Defendants step-son purchased the property at the sale.
When the court finally decided the case, defendants step-son sought to intervene
as the new owner, which the court denied, holding, If her step-son, the petitioner,
has a title superior to plaintiff's, he must establish it [by an action in ejectment].
Johnson v. Fullerton, [8 Wright 466]; see also, Noyes v. Brooks, 10 Pa.Super.
250. Accord, Brackin v. Welton Engineering Co., 128 A. 818, 283 Pa. 91 (Pa.
1925).
96. The 2008 action of ejectment determined the right to possession, not
the right to ownership. In an action of ejectment, it is not necessary for the real
property owner to be sued or to voluntarily appear, even if real property owner
did have notice of the ejectment.
Considering, therefore, the nature of an action of ejectment as a
determination between the particular plaintiff suing and defendant
as to who has the right of immediate possession, even if [the record
owner] have an outstanding interest, the action may proceed. The
purpose of an ejectment action as opposed to quiet title is not to
determine the relative and respective rights of all potential title
holders, but rather the immediate rights between plaintiff and
defendant involved in that particular litigation.
Burnett v. Mueller, 48 Pa. D. & C.2d 165, 172 (Pa.Com.Pl., Mercer
1969).
97. In Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103
A.3d 83 (10/20/2014), Superior Court agreed the trial court provided, the more
30
closely on-point authority, and held, we agree with the trial court that the
[surface owners] were not indispensable parties to [the ejectment] action.
The trial court rejected the [lessees]' contention upon the basis
that "the only necessary or indispensable party defendant to an
ejectment action is the person in actual possession, and, where such
land is under lease, it is the tenant, not the landlord, who constitutes
the only necessary or indispensable party." (citing Bannard v. N.Y.
State Natural Gas Co., 404 Pa. 269, 172 A.2d 306, 310 (Pa. 1961)).
Noting that the parties in possession of the oil and gas estate at issue
in this case were the [lessees], not the [surface owners], the court
found that the [surface owners] were not indispensable parties to
the ejectment action. Id.; cf. Hicks v. Amer. Natural Gas Co., 207 Pa.
570, 57 A. 55, 58 (Pa. 1904) (finding that possession lay with the
gas lessee because it had drilled a well and had the gas " in [its]
control").
98. The special Regional Rail Reorganization court was given original and
exclusive jurisdiction by Congress over any civil action,
brought after a conveyance, pursuant to section 743(b) of this title,
to set aside or annul such conveyance or to secure in any way the
reconveyance of any rail properties so conveyed.
45 U.S.C. 719(e)(1)(E); and,
whether filed by any interested person or initiated by the special
court itself, to interpret, alter, amend, modify, or implement any of
the orders entered by such court pursuant to section 743(b) of this
title in order to effect the purposes of this chapter or the goals of the
final system plan.
45 U.S.C. 719(e)(2).
99. Common Pleas Court did not have jurisdiction of the disputed rail
roadbed in 2008. 45 U.S.C. 719.
100. For the defense of res judicata to prevail, it is necessary that between
the previous action and the present action, there be identity in the thing sued on,
identity of the cause of action, identity of the persons and parties to the action,
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and identity of the quality or capacity of the parties suing or sued. Bearoff v.
Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).
101. In ejectment, privity binds persons who take title from the named
defendant; in this case, the Poor Boys. Fred E. Young, Inc. v. Brush Mountain
Sportsmans Assn., 697 A.2d 984 (Pa. Super. Ct. 1997) rearg. den.
102. Sixth Street Management has failed to prove Conrail or Railroad
Recovery, for that matter take title from the Poor Boys.
103. A judgment of ejectment against a party in possession is not binding
against a record owner of the property. Jordan v. Chambers, 226 Pa. 573, 75 Atl.
956 (1910); Notoro v. Estate of Hyer, 239 Pa. Super. Ct. 10, 361 A.2d 766 (1976).
104. Sixth Street Management did not prove Linda Miller is a successor in
title to Conrail.
105. Where a plaintiff has commenced an action of ejectment and neither
names as parties nor serves the persons (Linda Miller) in possession, a judgment
of ejectment is not binding on the possessor. Lacy v. East B.T.R.&R. Co., 83 D&C
111 (1952).
106. The defense tried to perpetuate its fraudulent action against Linda
Miller into a misrepresentation of the record.
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[Enright, at p. 69.]
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[Enright, at p. 70.]
107. All parties to the action must have had a full and fair opportunity to
defend.
The essential inquiry is whether the ultimate and controlling issues
have been decided in a prior proceeding in which the present parties
had an opportunity to appear and assert their rights.
Hochman v. Mortgage Finance Corp., 289 Pa. 260, 137 A.2d 252
(1927); Callery et al. v. Blythe Twp. Mun. Auth., 432 Pa. 307, 312,
243 A.2d 385 (1968).
108. Conrail and its vendee, plaintiff Railroad Recovery were missing and
dispensable parties to the 2008 ejectment, and are not bound thereby.
In re Freeman's Estate, 280 Pa. 273, 277, 124 A. 435, 436 (1924)
("Appellants here were not parties to that proceeding, and therefore
it cannot be said that the question is res adjudicata as to them,
though the same proposition, raised in the first case, is again
presented." (citations omitted)); Page v. Luhring, 211 Va. 503, 505,
178 S.E.2d 527, 529 (1971) ("Our holding did not purport to, and
could not, affect the rights of persons who were not parties or their
successors in interest.").
109. In Office of Disciplinary Counsel v. Kiesewetter, 889 A2d 47 (Pa.
2005), it was held a party need have a full and fair opportunity to defend herself
in the prior action.
The doctrine of collateral estoppel precludes relitigation of an issue
determined in a previous action if: (1) the issue decided in the prior
33
case is identical to the one presented in the later case; (2) there was
a final judgment on the merits; (3) the party against whom the plea
is asserted was a party or in privity with a party in the prior case;
(4) the party or person privy to the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the issue in
the prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
110. There is not an identity of causes of action between the 2008
ejectment and this action.
As to the identity of cause of action, rather than resting on the
specific legal theory invoked, res judicata generally is thought to
turn on the essential similarity of the underlying events giving rise
to various legal claims. Whatever the conceptual difficulties inherent
in the definition of a "cause of action" often the presence of a single
cause of action is clear. Davis v. United States Steel Supply, 688 F.2d
166 (1982), cert. denied 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d
484 (applying Pennsylvania law). The Davis court recognized that in
determining whether a single cause of action is present one may
consider the identity of the acts complained of, the demand for
recovery, the identity of witnesses, documents and facts alleged. A
lack of identity of these facets would, of course, support the
conclusion that there is no identity of cause of action.
In re Jones & Laughlin Steel Corporation, 328 Pa.Super. 442,
450-451, 477 A.2d 527, 531 (1984).
111. Sixth Street Management Corp. has not proved the identity of the acts
complained of, the demand for recovery, and the identity of witnesses, documents
and facts alleged, to sustain an identity of the cause of action.
112. Shirley Frisch is the owner [Frisch, p. 7 ln. 13] of Accurate Search
and Settlement Inc. [Frisch, p. 7 ln. 7] and testified concerning an abstract
performed for a title company, Brokers Land Settlement dated 11/3/2007
[Frisch, p. 10 ln. 1-11].
12
Q. And can you tell me what Plaintiff's Exhibit 17
13 is that is in front of you?
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14
A. The title search on the property at 4455 North
15 Sixth Street, Philadelphia.
[Frisch, p. 10; P17.]
113. Accurate Search and Settlement Inc. performed a search for a title
company, Brokers Land Settlement.
5
Q. And the customer's name was Brokers Land
6 Settlement?
7
A. That's correct.
8
Q. Are you acquainted with Brokers Land Settlement?
***.
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A. Yes, they were a client.
[Frisch, p. 12.]
114. The thing Sixth Street Management sued upon in the 2008 ejectment
was an Accurate Search and Settlement abstract which was limited by Brokers
Land Settlement to a 60 years search.
12
Q. Was Accurate's Search -- was Accurate asked to
13 limit its search to a certain timeframe?
14
A. Yes.
15
Q. And what was that timeframe?
16
A. 60 years.
[Frisch, p. 12.]
1
Q. Did Brokers ever ask you to prepare a more
2 comprehensive search?
3
A. No.
[Frisch, p. 13.]
115. Accurate Search and Settlement was not asked to search for the
existence of a railroad deed, right of way or easement.
15
Q. Looking at Plaintiff's Exhibit 17 once again, the
16 title search.
17
A. Uh-huh.
18
Q. And if you page through there, is there anything
19 that indicates to you that there was a request for a
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[Frisch, p. 13.]
13
Q. I'm going to show you a document, if I could, I
14 will have this marked as Plaintiff's Exhibit No. 16.
15 This was Plaintiff's Exhibit D-3 in a prior deposition.
16
A. Yes.
[Frisch, p. 9; P.16.]
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5
6
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8
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[Frisch, p. 9; P.16.]
118. The alteration was used as the basis of the 2008 ejectment.
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Q. ***. Looking at that exhibit to the February 2008
23 lawsuit, I'd ask you if this page appears to be a copy
24 of the Accurate Search cover page of this title report
25 that we previously marked as Plaintiff's Exhibit 17?
1
A. It is the cover page, but it has additional
2 handwriting on it.
3
Q. And looking at that exhibit to the Complaint once
4 again, I'd ask you if the attachment to the Complaint is
5 a full title report that Accurate had prepared?
6
A. This is just the cover page.
7
Q. And in looking at the exhibit to the -8 Plaintiff's Exhibit 18, the Complaint, I'll ask you if
9 there's handwriting on that page?
10
A. There is, yes.
11
Q. Okay. And would you please read the handwriting.
12
A. No railroad right-of-way of record per Accurate.
13
Q. Is that statement the report of Accurate Search?
14
A. This is not our handwriting.
***.
23
Q. Did Accurate place that statement on the cover
24 page of its report?
25
A. No, we did not.
[Frisch, p. 15-16; P18.]
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119. An attorney who is on notice his client has engaged in illegal conduct
is barred by the Pennsylvania Rules of Professional Conduct from advocating for
the fruit of that illegal conduct.
Pa. Rules of Prof'l Conduct R. 3.3 cmt. 2 ("This Rule sets forth the
special duties of lawyers as officers of the court to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer
acting as an advocate in an adjudicative proceeding has an obligation
to present the client's case with persuasive force. Performance of
that duty while maintaining confidences of the client, however, is
qualified by the advocate's duty of candor to the tribunal.
Consequently, although a lawyer in an adversary proceeding is not
required to present an impartial exposition of the law or to vouch for
the evidence submitted in a cause, the lawyer must not allow the
tribunal to be misled by false statements of law or fact or evidence
that the lawyer knows to be false."); Montgomery County Bar Ass'n v.
Hecht, 456 Pa. 13, 20-22, 317 A.2d 597, 601-02 (1974) ("We must
note, however, lest there be any misapprehension, that it would be
anomalous indeed for us to condemn, as we do, a lawyer's knowing
participation in the introduction of perjured testimony by a client,
see EC 7-26, Code of Professional Responsibility, 438 Pa. XXV, at
xciii, and at the same time condone the giving of such testimony by a
lawyer himself.").
120. Further, the alteration of Ms. Frischs title report was used as the
basis of the court findings in the 2008 ejectment.
8.
[Sixth Street Managements] expert, real estate attorney and
title company owner, utilized Accurate Search for 4455 North
Sixth Street to determine whether any prior deeds since 1956
disclosed an easement.
[Exhibit D19, pg. 4 8.]
121. The decision in the 2008 ejectment relied upon Sixth Street
Management Corp. claim a railroad deed could not be found.
9.
*** Furthermore, the court established that the reservation and
easement, Exh. D-4, were located in a deed book somewhere
and unable to be provided for evidentiary purposes during the
bench trial. (Id. at 111).
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an easement.
129. See Swaby v. N. Hills Reg'l R.R. Auth., 2009 SD 57, 769 N.W.2d 798
(deeds that contained habendum clauses providing that if the railroad
abandoned its road, all right, title, and interest in the conveyed land shall revert
to the grantors, their heirs and assigns, created fee simple estates subject to a
condition subsequent as opposed to an easement).
130. See also Van Wert County Bd. of County Comm'rs v. Consol. Rail Corp.,
14 Ohio Misc. 2d 4, 469 N.E.2d 1361 (C.P. 1983) (grant of land to railroad, which
contained in habendum provision that the transfer was for so long as said strip
may be required or used for passenger station purposes only, and a reverter
clause providing that in case it was not used for passenger station purposes, it
would revert back to the County, created a fee simple and not an easement).
131. Severns v. Union Pac. R.R., 101 Cal. App. 4th 1209, 125 Cal. Rptr. 2d
100 (2002) (conveyance of strip of land to railroad transferred a fee simple
interest subject to a condition subsequent, and not an easement, even though
deed stated understood purpose of conveyance as a railroad rightofway, where
granting clause used word grant to convey designated strip, did not restrict
railroad to any particular use, contained language of inheritance, and contained a
detailed description of conveyance as a "strip of land sixty (60) feet wide," and
deed only referred to rightofway in reversion clause after granting clause, in
which it recited that strip would revert to grantors or their assigns if railroad
operations ceased for six months).
132. E. A. Dixon, Jr., who opined on the legal issue for the defense, showed
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his experience is that of a title insurance underwriter and adjuster, and who
briefly practiced law as a young lawyer and most recently in retirement
maintains an association with a law firm. [Exhibit D44.]
133. Dixon has never litigated any railroad title issues. [N.T. 3/16/2015, p.
11, ln. 5.]
134. Dixon has never defended any railroad title issues as a claims
adjuster or underwriter. [N.T. 3/16/2015, p. 11, ln. 10.]
135. Dixon submitted a written opinion letter. [Exhibit D43.]
136. Dixons letter erroneously opines,
an examination of the historical context in which a conveyance to a
railroad was made, is essential to determining the intent of the
parties.
[Exhibit 43, pg. 2.]
137. To the contrary, the rules for interpretation of a deed are,
In interpreting this instrument certain rules of construction are
applicable: (1) the nature and quantity of the interest conveyed
must be ascertained from the instrument itself and cannot be orally
shown in the absence of fraud, accident or mistake and we seek to
ascertain not what the parties may have intended by the language
but what is the meaning of the words[,] Teacher v. Kijurina, 365
Pa. 480, 486, 78 A.2d 197; Kimmel v. Svonavec, 369 Pa. 292, 295,
85 A.2d 146; Caldwell v. Fulton, 31 Pa. 475; (2) effect must be given
to all the language of the instrument and no part shall be rejected
if it can be given a meaning, Ivey Co. v. Franklin Associates, Inc.,
370 Pa. 225, 231, 232, 87 A.2d 236; Hardes v. Penn Charcoal &
Chemical Co., 175 Pa.Super. 431, 436, 107 A.2d 176; (3) if a doubt
arises concerning the interpretation of the instrument it will be
resolved against the party who prepared it, Wiegand v. Wiegand,
349 Pa. 517, 520, 37 A.2d 492; Commonwealth to use of Herzog v.
Henry W. Horst Co., 364 Pa. 403, 406, 72 A.2d 131; (4) unless
contrary to the plain meaning of the instrument, an interpretation
given it by the parties themselves will be favored, Monongahela
Street Railway Co. v. Philadelphia Co., 350 Pa. 603, 618, 619, 39 A.2d
909; Cirotti v. Wassell, 163 Pa.Super. 292, 60 A.2d 339; (5) 'to
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deed.
Words such as on the condition that or provided that imply a fee
simple subject to a condition subsequent.
[Exhibit 43, pg. 4.]
154. Dixons report is internally contradictory due to his unexplained
interpretation of the habendum clause.
However, this interpretation of the habendum clause is inconsistent
with the language of the grant in the Dickinson Deed which clearly
granted a railroad right-of-way, an easement, and not a fee.
[Exhibit 43, pg. 10.]
155. The 1854 Dickinson deed habendum is not inconsistent with the grant
clause, but merely expands on the granting clause and defines the interest/estate
being conveyed.
Herr v. Herr, 2008 PA Super 227, 11, 957 A.2d 1280, 1286-87 ("A
habendum clause is '[t]he part of a deed that defines the extent of
the interest being granted and any conditions affecting the grant.'
Black's Law Dictionary (7th Ed.) at 716; see Ontelaunee Orchards v.
Rothermel, 139 Pa. Super. 44, 11 A.2d 543, 545 (1940) ('The
purpose of the habendum clause in a deed is to determine what
estate passes.').").
156. Dixon again contradicts his report by summarizing the Dickinson
deed.
13
14
15
16
17
18
19
20
21
for Rail road purposes, then the said strip of land shall revest in the
said Sally Norris Dickinson, her heirs and assigns, as of her and their
first and former Estate, and she or they shall thereupon repossess
and enjoy the same as if this present Indenture had never been
made.
[Exhibit P1, P2, D80.]
164. Dixon concludes the following points support his interpretation of the
unexplained interpretation of the 1854 Dickinson deed.
1. The grant was for a limited purpose: railroad use;
2. The land conveyed was a narrow strip cutting across the grantors
property;
3. There was no warranty of title.
4. The habendum clause recites what would happen as a matter of
law if the railroad abandoned the right-of way.
[Exhibit 43, pg. 11.]
165. In Kapp v. Norfolk Southern Railway Co., 350 F.Supp. 2d 597 (M.D.Pa.
2004), it was reviewed by the court,
Easements may be created by express agreement, by implication, by
estoppel, or by operation of law.
Kapp, at 9.
166. An express easement, is one which is in writing and recorded.
Express easements are often created by deed reservation, in
which the grantor reserves a right to use the conveyed property
for a certain purpose. See Brady v. Yodanza, 425 A.2d 726, 727-28
(Pa. 1981). A deed that contains such a reservation imposes an
easement on the conveyed tenement, which thereafter is considered
the servient estate. (citation omitted.) The owner of the property
benefitted by the easement (the dominant estate) may then use the
servient estate for the purpose stated in the deed, regardless of
50
176. The court in Brookbank paid particular attention to the fact that,
these words [granted, bargained, sold, released and conveyed] are used in the
past, rather than the present tense.
The words grant, bargain, etc., must be interpreted in the light of the
entire instrument, particularly since these words are used in the
past, rather than the present tense. These words, used in the past
tense, do not, standing alone, compel an interpretation that a fee was
intended to be conveyed.
Id. at 160, 131 A.2d at 109.
177. Unlike the Brookbank agreement, the 1854 Dickinson deed uses the
terms grant, bargain, sell, release, and confirm in the present tense.
178. The Brookbank court as well questioned why the agreement would
specify the uses that the railroad could make of the property, if the intent was to
convey a fee.
The language of the second paragraph spells out specifically
certain rights given to the railroad and also a release running from
the landowner relieving the railroad of certain possible liabilities.
The railroad is given the 'right to enter upon said land, to lease, use,
construct, maintain and operate a railroad over and across the land
* * * taking and using such earth, stones and gravel as may be
needed for grading and filling such road'. The rights thus granted
the right of entry, the right to use, construct, maintain and operate a
railroad, the right to use earth, stones and gravel to grade and fill
the roadbedare all rights which naturally and lawfully arise from
ownership of land in fee simple. If the parties intended the railroad
to receive a fee in this land, this language would give it those rights
which it already had. If the parties intended to convey a fee simple
interest to the railroad, it was surplusage to give the railroad these
rights because such rights would naturally belong to the railroad as
holder of the fee. The only rational conclusion from this language is
that the parties did not intend to vest in the railroad any interest in
fee simple; any other construction does violence to the expressed
grant of these rights to the railroad.
Id. at 163, 131 A.2d at 110 (footnote omitted).
53
179. The 1854 Dickinson deed, unlike the agreement in Brookbank, does
not go into further detail about other uses that the railroad can make of the land,
i.e., using and taking earth, stones, and gravel from the land; which Dixon
claimed created an easement. [N.T. 3/16/2015, p. 21, lns. 18-25; p. 65, lns.
16-22.]
180. The for railroad purposes language was clearly inserted in the deed
to ensure that the railroad would use the land as a railroad; and when no longer
used for railroad purposes, Dickinson could thereupon repossess. But this
language did not convert it into a mere easement.
181. The railroad "acquired thereby a qualified fee, which is nonetheless a
fee simple, even though the use of the land may be limited by the qualification."
City of Pittsburgh v. Pa. R.R., 394 Pa. 58, 145 A.2d 700, 704 (1958) (where deed
under which railroad acquired land for relocation of street provided that any part
of land conveyed remaining after relocation of street should be used only as a
slope for such street, railroad acquired a fee simple, even though use of land was
limited by the qualification).
182. Unlike the agreement in Brookbank, the 1854 Dickinson deed
contains a clear habendum.
183. If the intent of the 1854 Dickinson deed was to create an easement,
then there would have been no reason to have an habendum clause. The
Brookbank court stated,
Bearing on the character of this instrument is the omission of
habendum, tenendum and warranty clauses. If the railroad intended
to receive a fee, is it likely that it would not have required of
54
Rusciolelli v. Smith, 195 Pa. Super. 562, 569, 171 A.2d 802, 806
(1961) ("If this is an easement in gross, personal to Didions, it is
generally held to be nonassignable unless it is made assignable by
the instrument creating it." (citations omitted).
195. Unlike the agreement in Brookbank, the 1854 Dickinson deed in
numerous places refers to, for example, "all that strip of land," "said strip of land"
and specifies the acreage. This sort of language, used repeatedly, is inconsistent
with an intent to convey a mere easement. See, e.g., Gregory v. United States, 101
Fed. Cl. 203 (2011) (deeds conveying "a strip of land" to railroad conveyed fee
titles, rather than easements).
196. The Brookbank agreement expressly released the railroad from
liability arising from its location, construction, and operation of the railroad;
which may well have included a release of liability for compensation for the prior
taking under the General Railroad Law of 1849.
The landowner further releases the railroad from any liability
arising from the location, construction and operation of the railroad.
If the railroad were given under this instrument a fee interest in this
land the railroad would have a complete right to locate, construct
and operate a railroad over the land. The only situation where any
liability might accrue to the railroad from the location, construction
and operation over this land would be in the event the railroad
secured simply a 'right of way' over the land.
Brookbank, 389 Pa. at 163, 131 A.2d at 110.
197. The 1854 Dickinson deed did not have release-of-liability language
since it conveyed a fee simple interest.
198. The Brookbank court as well considered the amount of consideration
recited in the deed.
A circumstance which can be a factor in the determination of the
57
216. The 1854 Dickinson deed does not give a right-of-way over additional
land of the grantor or allow the railroad to take materials from the surrounding
land needed to construct the track.
217. The 1854 Dickinson deed does not contain a release of liability
provision.
218. The 1854 Dickinson deed does not provide for the additional
execution of instruments between the parties.
219. Dixon as well claims reliance upon Lawson v. Simonsen, 490 Pa. 509,
417 A.2d 155 (1980), as authority for his easement theory.
220. The Lawson court held an 1881 release conveyed only an easement
to the railroad.
221. The Lawson release provided in pertinent part as follows,
Know all men by these presence [sic] that Henry Cobham of the
Borough of Warren, County of Warren and Commonwealth of
Pennsylvania and Ann Cobham, his wife, for and in consideration of
the public and private advantages prospectively resolving from the
construction of the proposed extension of the Buffalo, Pittsburgh and
Western Railroad as well as of the sum of one dollar to them in hand
paid, receipt whereof is hereby acknowledged do hereby grant and
release unto the Buffalo, Pittsburgh and Western Railroad Company
and its successors so much of the land of the said Henry Cobham and
Ann Cobham, situate in the Township of Glade in the County of
Warren aforesaid as may be necessary and convenient therefore
according to the provisions of the Act incorporating said company
and other laws relating thereto, without further lot or hindrance
from them, their heirs or assigns, the land hereby released or
intended so to being a piece or strip of land four rods (66 feet) in
width extending through and along the line of survey of said railroad
company (premises herein described).
The land hereby granted and released or intended so to be, being
the legal right of way of said railroad company through the above
described land, said right of way not to exceed four rods (66 feet) in
width 33 feet on each side of the center of the main track.
63
The said Henry Cobham and Ann Cobham also grant and release
unto the said railroad company land sufficient for the said company
to construct a public or wagon road upon in place of the one occupied
by the said company * * *.
Id. at 514-15, 417 A.2d at 158.
222. The Lawson court paid particular attention to the lack of an
habendum clause in the release.
223. The Lawson court as well focused heavily on the consideration recited
in the release$1.00.
Here, the consideration was only $1.00. The land in question
apparently extends 33,415 feet and is 66 feet wide. Surely even in
1881 the sum of $1.00 was insufficient to convey a fee interest in a
strip of farm land 66 feet wide and 6 miles long.
Id., 490 Pa. at 515-16, 417 A.2d at 159.
224. Dixon as well claims reliance upon Fleck v. UniversalCyclops Steel
Corp., 397 Pa. 648, 156 A.2d 832 (1959), as authority for his easement theory.
225. The 1885 grant in Fleck specifically referred to,
a rightofway through and over said land the whole distance of said
railway through the same.
Id. at 648, 156 A.2d at 833.
226. The Fleck court explained that,
[t]he granting clause of the 1885 McKeon deed recited the
conveyance of a rightofway through and over said land, indicating
a mere surface interest, i. e., an easement and not a fee (base or
absolute).
Id. at 651, 156 A.2d at 834.
227. The 1854 Dickinson deed does not refer to a right-of-way.
228. The instrument in Fleck did contained an habendum providing,
64
To Have And To Hold The Said Strips Of Land And The Said Rights
and privileges and uses to the said Pittsburgh, Chartiers and
Youghiogheny Railway Company, its successors and assigns, so long
as the same shall be required for the uses and purposes of said
Railway.
Id. at 648, 156 A.2d at 833.
229. However, the Fleck court found that the language of the habendum
was entirely inconsistent with the language in the granting clause purporting to
convey a right of way.
230. The Fleck court explained that,
if and where the granting clause and the habendum clause of a deed
are inconsistent, conflicting or repugnant, the granting clause must
prevail.
Id. at 652, 156 A.2d at 834.
231. There is not an actual conflict between the granting and habendum
clauses with respect to the 1854 Dickinson deed.
VIII. Non-use of express easement.
232. It makes no difference whether the court interprets the 1854
Dickinson deed, which uses the phrase upon condition that the said Company to
be a fee simple subject to a condition subsequent or interprets the phrase to grant
an easement.
233. Dixon is erroneously misinformed whether some action is required to
extinguish an interest granted by easement.
7 Q. And what would be the case of an easement?
8 A. As soon as ConRail abandoned the use, the
9 landowners on each side of that track would have
10 immediate right to possess and full title would be
11 returned to them without any action on their part
65
12 whatsoever.
13 Q. No action whatsoever under an easement?
14 A. Correct.
[N.T. 3/16/2015, p. 101.]
234. The interest in the North Penn obtained from Dickinson was created
by a recorded deed. [P58.]
235. In Werry v. Sheldon, 148 Pa.Super. 13, 18, 24 A.2d 631, 633 (1942),
Superior court held an express easement cannot be automatically extinguished.
We place no weight to appellees' contention that the evidence
established a non user of this road by the plaintiffs or their
predecessors in title and that it constituted an abandonment thereof.
This easement, created by a grant, cannot be extinguished or
affected by non user unless it is shown by some positive, adverse,
and hostile interference by one who claims that the easement has
been extinguished, or the loss of title in some other way recognized
by law. No such situation is present.
It is not necessary that an owner of an easement appurtenant to
land should make use of it to maintain ownership: Weaver v. Getz, 16
Pa.Super. 418.
[N.T. 3/16/2015, p. 101, lns. 15 - p. 102 ln. 7.]
236. In The Baptist Church In The Great Valley v. Urquhart, 406 Pa. 620,
629, 178 A.2d 583, 587 (1962), Supreme court upheld,
The fact that appellants did not insist upon the use of the right of
way for several years is not controlling. Mere nonuse, no matter how
long extended, will not result in extinguishment of an easement
created by deed, Graham v. Safe Harbor Water Power Corp., 315 Pa.
572, 173 A.2d 311 (1934).
237. In Hatcher v. Chesner, 422 Pa. 138, 141-142, 221 A.2d 305, 307-308
(Pa. 1966), a rail roadbed was created by deed in 1894, however, the road had
not been used for some 35 years. Supreme court therein held,
239. In Piper v. Mowris, 466 Pa. 89, 98-99, 351 A.2d 635, 639 (1976), it
was said,
In order for the servient tenement to establish abandonment
'Pennsylvania law requires that there be a showing of intent of the
owner of the dominant tenement to abandon the easement, coupled
with either (1) adverse possession by the owner of the servient
tenement; or (2) affirmative acts by the owner of the easement that
renders the use of the easement impossible; or (3) obstruction of the
easement by the owner of the easement in a manner that is
inconsistent with its further enjoyment. ***.
As to the question of adverse possession, this Court has held that
'the adverse possession that will bar easements must be actual,
continuous, adverse, visible, notorious, and hostile possession of the
land in question for twenty-one years.
240. The evidence of an intent to abandon the right of ownership must be
clear and persuasive. Iorfida v. Mary Robert Realty Company, Inc., 372 Pa.Super.
170, 179-180, 539 A.2d 383, 388 (1988).
Arising by implication by reference to maps in deeds of conveyance,
the rights of the dominant owners can be extinguished only on a
showing of affirmative conduct or physical obstruction on their parts
which is inconsistent with its further enjoyment. Sabados, 258
Pa.Super. at 535, 393 A.2d at 487. It is fundamental that mere
nonuse of an easement, no matter how long continued, does not
manifest an intent to abandon it; an owner of an easement
appurtenant to land is not required to use it in order to maintain
ownership of it. Hatcher, 422 Pa. at 140, 221 A.2d at 307;
Philadelphia Music Academy, 345 Pa.Super. at 448, 498 A.2d at 908.
As this court stated in Sabados, "mere nonuse is but the exercise of
ownership, not its surrender." Id. 258 Pa.Super. at 539, 393 A.2d at
489. Therefore, whether or not appellants had in the past or could
presently traverse the alley other than on foot was irrelevant to a
finding of abandonment. ***.
While evidence of acquiescence in the adverse acts of other
dominant owners can be relevant to the issue of intent to abandon,
requiring a dominant owner to legally complain on pain of
extinguishment of his easement rights is repugnant. Forfeiture of
possessory rights is "an abhorrence and greatly disfavored."
Sabados, 258 Pa.Super. at 539, 393 A.2d at 489 (citing Hatcher, 422
Pa. at 142, 221 A.2d at 308). Further, acts of acquiescence cannot,
68
216, 612 A.2d 450, 453 (1992). 'Such conduct must consist of some
affirmative act on his part which renders use of the easement
impossible, or of some physical obstruction of it by him in a manner
that is inconsistent with its further enjoyment.' Id. (emphasis in
original). Mere nonuse by the railroad does not amount to
abandonment. . . . In sum, many different factors can be considered
when making a determination of abandonment. Moreover, no single
factor alone is sufficient to establish the intent to abandon.
Abandonment must be determined based upon all of the
circumstances surrounding the alleged abandonment." (some
citations omitted)); Birdsboro Mun. Auth. v. Reading Co. &
Wilmington & N. R.R., 2000 PA Super 231, 21, 758 A.2d 222, 227
("The trial court found that abandonment must be proven by two
prima facie elements: 1) intent; and 2) external acts. While the court
acknowledged that gaps occurred in both railroad operation and
maintenance, it found mere non-use and lack of maintenance of a rail
line did not establish intent to abandon.").
261. The defense has failed to prove the precise date on which the statute
of limitations as to its purported defense and counterclaim to quiet title, by clear
and convincing evidence began to run.
Bral Corp. v. Johnstown Am. Corp., 919 F. Supp. 2d 599, 610 (W.D.
Pa. 2013) ("In Pennsylvania, a cause of action accrues when the
relevant statute of limitations begins to run 'as soon as the right to
institute and maintain a suit arises.' Fine v. Checcio, 582 Pa. 253,
870 A.2d 850, 857 (2005) (citations omitted); see also 42 PA. CONS.
STAT. 5502(a). 'Once a cause of action has accrued and the
prescribed statutory period has run, an injured party is barred from
bringing his cause of action.' Fine, 870 A.2d at 857 (citations
omitted). Under Pennsylvania law, courts favor a strict application of
statutes of limitations.").
262. The opinion of the claims adjuster was inconsistent with and
contradicted the claims adjuster opinion letter.
263. There was an absolute conflict in the testimony of the claims adjuster
and the opinion letter of the claims adjuster without explanation. Matusek v.
Bruno (Pa. Super. Ct. 2/5/2015); Mudano v. Philadelphia Rapid Transit Co.;
72
8
9
[Enright, at p. 84.]
267. The said ICC Application stated as follows,
4. By this application Conrail requests the Commissions approval
of the abandonment of the line of rail, approximately 0.6 mile in
length, described below and situated in Philadelphia County,
Pennsylvania:
The Bethlehem Branch in Philadelphia from the south side of the
Cayuga Street Bridge (approximately Milepost 4.2) to the north
side of the Rockland Street Bridge (approximately Milepost 4.8).
The above-described line will hereafter be referred to as the Subject
Line.
[Exhibits P11/D27, numbered pp 1-2 4; Enright, at pp. 23 ll. 18- p.
24, ll. 8.]
268. A part of Exhibits P11/D27 is Conrails exhibit C. Exhibit C shows the
last year for rail traffic was 1982, during which there were 16 carloads carried by
Conrail.
18
19
20
21
[Enright, at p. 89.]
269. Exhibits P14/D28 is the Interstate Commerce Commission Certificate
and Decision Conrail Abandonment in Philadelphia County, PA Decided
December 3, 1984.
270. The said Certificate and Decision decided as follows,
Consolidated Rail Corporation (Conrail) filed an application on
May 23, 1984, under section 308 of the Regional Rail Reorganization
Act of 1973 [1] to abandon its .6-mile line of railroad between the
Cayuga Street Bridge (milepost 4.2) and the Rockland Street Bridge
74
(milepost 4.8).
Under section 308(c) the Commission must grant any application
for abandonment filed by Conrail within 90 days after the date the
application is filed unless an offer of financial assistance is made
under section 308(d) during that 90-day period.
***.
It is certified: Conrail is authorized to abandon the line described
above.
It is ordered: This certificate and decision is effective on service.
[Exhibits P14; Enright, at p. 32, ll. 9-20.]
271. Exhibit P14 references the strip of land in dispute herein.
10
11
12
13
14
15
16
17
18
19
20
correct, sir?
A. That's correct.
Branch, from the south side of the Cayuga Street Bridge (approximately Milepost
4.2) to the north side of the Rockland Street Bridge (approximately Milepost
4.8). [Exhibits P11, P14, D27, D28; Enright, at p. 32, ll. 9-20.]
277. A rail service abandonment does not affect Conrails ownership of the
land.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
[Enright, at p. 33.]
17
18
19
20
21
22
[Enright, at p. 35.]
278. As of December 3, 1984, the rail roadbed at issue did by federal law
cease to be used for railroad purposes.
279. The defense attempts to imply a later date when the disputed strip
ceased to be used for railroad purposes.
77
21
Q. I'm showing you a document that we'll
22
mark as D-2. Mr. Enright, I'm showing you a
23
document, it's a Conrail memorandum dated
24
January 13, 1988 from JF Btak. Subject is
1
line cleared for dismantling; are you familiar
2
with this document, sir?
3
A. I've seen it before, yes.
***.
10
Q. What is the purpose of this
11
memorandum?
12
A. It's an internal memorandum
13
authorizing -- let me restate that identifying
14
a particular line. In this case, the line
15
that's the subject of this litigation or the
16
right of way, I should say, that's the subject
17
of this litigation, had been one, authorized
18
for abandoned by the ICC and now, from an
19
internal Conrail standpoint, cleared for
20
dismantling so it was authorization, I guess,
21
to the track department, now you can remove
22
any rails, ties, etcetera. Although there's
23
an additional, internal Conrail requirement at
24
the time that, something called AFE, be
1
prepared for before the actual dismantling
2
took place.
3
Q. I believe your earlier testimony was,
4
you were not able to find that AFE?
5
A. Correct.
[D2; Enright, at pp. 87-89.]
280. The authorization to dismantle the track would have come in time
prior to D2, the lines cleared memorandum.
9
10
11
12
13
14
15
16
281. There is no evidence the out of service line continued to be used for
railroad purposes after 1984.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
the grantee continues in full force until the proper step or steps
are taken to consummate the forfeiture, and until entry or action,
the quantity of the estate of the grantee is unimpaired. If the right of
entry is never exercised, the estate remains as before. The grantee
still has possession with all the advantages which, by the common
law, belong to possession.
289. Defendants Answer, New Matter and Counterclaim to Plaintiff's First
Amended Complaint makes the following admissions,
It is admitted only that on or about March 12, 2012, defendant, Sixth
Street Management Corp. erected a fence ***.
[Exhibit P26.]
290. Defendants Brian Mast and Sixth Street Managements Answer (sic)
to Plaintiffs New Matter to Counterclaim makes the following admission,
44. ***. By way of further answer (sic) Sixth Street Management
is not claiming an interest in the Disputed Area by virtue of descent
from Sally Norris Dickinson. ***.
[Exhibit P26.]
291. Defendants therefore do not possess an interest in the rail roadbed
through the partition deed from Lewis H. Redner, et al. to Gustavus George
Logan, et al. as the Redner to Logan instrument purports to partition by descent
under the Tenth item of the Last Will and Testament in Writing dated the twenty
fifth day of January Anno Domini One thousand eight hundred and fifty four of
Sally Norris Dickinson. [Exhibit D76.]
292. Defendants John Giunup and Michael Pettacios Answer (sic) to
Plaintiffs New Matter to Counterclaim makes the following admission,
44. ***. By way of further answer (sic) Defendants are not
claiming an interest in the Disputed Area by virtue of descent from
Sally Norris Dickinson. ***.
82
[Exhibit P26.]
thereupon.
298. Sally Norris Dickinson, her heirs and assigns, did not thereupon, at
once; without interruption; without delay or lapse of time, or immediately after
that, repossess the rail roadbed.
299. Exhibit D76 states Dickinson made her last will on January 25, 1854,
and died in October 1855.
300. Dickinson made her last Will 13 days after her conveyance to the
North Penn.
301. Dickinsons last Will is not in evidence.
302. The defense counterclaim failed to prove Dickinsons last Will did
provide for her reversionary interest in the tract conveyed to the North Penn.
303. Defendants failed to prove they are the heirs and assigns under the
last Will of Sally Norris Dickinson.
304. Sixth Street Management Corp., John Giunup, and Michael Pettacio,
nor their predecessors in title did not amicably retake possession of the disputed
land by recorded instrument, and did not timely commence an action in
ejectment for possession of the disputed land prior to December 2, 2005, the
running of the 21 year statute of limitations.
305. Hence, the 21 year statute of limitations to retake possession of the
disputed land began to run on December 3, 1984, and expired on December 2,
2005, more than a year subsequent to defendants having come into title to their
adjoining properties.
XII. Plaintiffs damages.
84
320. City Registry map #121N24, showed the railroad interest, including
the deed book and page of Conrails recorded deed.
RAILROAD DEED
ANY RIGHT, TITLE, INTEREST (IF ANY?)
DCC-1948-195 #63
[Exhibit P47.]
321. As in Sabella, defendant, who erected a fence in March 2012, after
limiting their title search to railroad deeds recorded after 1956, acted in bad
faith, by declining to run complete title searches for the property, thus assuming
the risk of bad-faith status.
322. Exhibit D13 is the commercial lease between Sixth Street
Management Corp. and Esperanza Health Center, Inc. for use of plaintiffs
property abutting 4455 N. 6th Street.
323. Discovery court erred in being guided by the defense
misrepresentation of Sabella and prior cases, by refusing to allow discovery of
ejectment damages.
324. According to Exhibit D13, Sixth Street Management Corp. received
rent in the amount of $7,800.00 since 2012, plus $200 per month for its bad faith
occupancy of plaintiffs property.
325. Plaintiff's bad faith damages are $7,800.00, plus $200 per month
ongoing.
Pennsylvania Rail Road Company, dated January 12, 1854, recorded on January
23, 1854. [Exhibits P2, P1, P1A, P58, D80.]
2. The 1854 Dickinson deed and the 1976 Consolidated Rail Corporation
deeds were recorded first in time to the 2003 and 2004 Sixth Street Management
Corp. and the Giunup and Pettacio deeds.
3. Railroad Recovery, Inc., the plaintiff is the vendee of all that certain
former Consolidated Rail Corporation rail roadbed described by metes and
bounds according to the Stantec Consulting Services, Inc. Description of the
Former North Penn Railroad Right of Way dated January 6, 2012, [Exhibits P42,
43, 44], and the Stantec Consulting Services, Inc. Plan of Property dated January
6, 2012 [Exhibits P42, 43, 44].
4. The Conrail rail roadbed conveyed to plaintiff lies to the east of
properties owned by Sixth Street Management Corp. and John Giunup, and
Michael Pettacio.
5. The issue in this case is whether the defendants, whose properties are
west of the rail roadbed, own the rail roadbed west of the center line of the
railroad.
6. Conrail and its vendee, Railroad Recovery remained in possession of the
disputed former rail roadbed adjacent to the Sixth Street Management property
until March 2012.
7. Conrail remained in possession of the pie shaped former rail roadbed
adjacent to the Giunup/Pettacio property until the completion of the conveyance
to Railroad Recovery by deed in February 2012.
88
89
90
plaintiff
v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,
defendants : #03647
COURT ORDER
day of
, 2015,
after a non-jury trial on the merits, the Court makes the following ORDER:
1. Finding in favor of Railroad Recovery, Inc., the plaintiff and
against Sixth Street Management Corp., John Giunup and Michael Pettacio, the
defendants, for possession of all that certain former Consolidated Rail
Corporation rail roadbed described by metes and bounds according to the Stantec
Consulting Services, Inc. Description of the former North Penn Railroad Right of
Way dated January 6, 2012, plaintiffs Exhibit P44, and the Stantec Consulting
Services, Inc. Plan of Property dated January 6, 2012, plaintiffs Exhibit P43, all
of which is attached hereto and incorporated and made a part of this Order.
2. Finding in favor of Railroad Recovery, Inc., the plaintiff and
against Sixth Street Management Corp., the defendant, on the Counterclaim of
Sixth Street Management Corp.
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___________________________________, J.
plaintiff
v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,
defendants : #03647
CERTIFICATE OF SERVICE
and proposed order and all attachments was made this June 11, 2015 upon all
persons entitled thereto or to their attorneys of record by the civil electronic
filing system. Such service satisfies the requirements of Pa.R.C.P. ##205.4(g)(2)
(ii) and 440.
_______________________
Anthony Bernard Quinn
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