Viscarello, R. & L. v. Elliott, T. ( 2015 )

J-A03043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROGER C. VISCARELLO & LAURA A. IN THE SUPERIOR COURT OF
VISCARELLO, H/W PENNSYLVANIA
Appellants
v.
THOMAS M. ELLIOTT, CRAIG A.
BRENNAN AND KELLY A. ELLIOTT
Appellees No. 801 MDA 2014
Appeal from the Judgment Entered April 16, 2014
In the Court of Common Pleas of Bradford County
Civil Division at No(s): 2011 EQ 000377
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 25, 2015
Appellants, Roger C. Viscarello and Laura A. Viscarello, appeal from
the April 16, 2014 judgment entered in the Bradford County Court of
Common Pleas, denying their request for a permanent injunction to enjoin
Appellees, Thomas M. Elliott, Craig A. Brennan, and Kelly A. Elliott, from
blocking the Viscarellos’ access to a roadway across Appellees’ land. After
careful review, we affirm.
The trial court detailed the facts of this case as follows.
In this action [the Viscarellos] claim the right
to make permanent use of a roadway approximately
[100] feet in length over lands of [Appellees]. The
road leads from a public road on [Appellees’]
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*
Former Justice specially assigned to the Superior Court.
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property to [the Viscarellos’] residential structure,
referred to as a hunting cabin, on [the Viscarellos’]
property.
…
[The Viscarellos] are husband and wife who have a
primary residence out of the Bradford County area.
In 2001, they bought a tract of land in Bradford
County consisting of [228] acres. This tract adjoined
lands owned by [Appellee] Thomas M. Elliott and had
extensive public roadway frontage. Following [the
Viscarellos’] purchase of the Bradford County tract,
they became friendly neighbors with Mr. Elliott,
occasionally visiting each other, engaging in some
mutual help with tasks on their respective properties
and cooperating in agricultural efforts, including
raising crops to benefit the deer herd in the locality.
Over the next several years, [the Viscarellos] sold off
several tracts from their [228] acre parcel including
the house that had existed on the premises at the
time the [228] acres was [sic] purchased by [the
Viscarellos].
Today [the Viscarellos] own [157¼] acres
consisting of three lots …. Each lot does adjoin at
least one public road. At an unspecified point in
time, but prior to 2005, [the Viscarellos] formed a
desire to build a new “hunting cabin” on their
remaining land. They selected a site that would not
have access to a public road except by crossing
Brown’s Creek, a small stream that flows through
[the Viscarellos’] property. Throughout the course of
a year, this stream varies in width and depth. In
summer it is nearly dried up but at other times may
be many feet deep and quite wide after heavy rains.
Occasionally it has flooded.
The easiest and shortest access from a public
road to the site where [the Viscarellos] had
determined to build their hunting cabin was over a
strip of land owned by [] Mr. Elliott, approximately
[100] feet in width between [the Viscarellos’]
property and a public road. By using this strip of
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land as a roadway it is not necessary to cross
Brown’s Creek to access the hunting cabin.
Before [the Viscarellos] started to construct
their hunting cabin, following a barbeque gathering,
[] Roger Viscarello and [] Thomas Elliott were
walking near the area of [the Viscarellos’] desired
access and location where the hunting cabin was to
be built. Mr. Viscarello explained to Mr. Elliott his
desire to build a cabin at that site and asked for
permission to cross the distance of [100] feet over
Mr. Elliott’s property. The conversation, according to
Mr. Viscarello, went this way.
Well I told him that there was no way to get
across Brown’s Creek and I had always wanted
to have a cabin up on the hill. But my survey
showed that he owned a small portion and I
asked if I could buy the property, a right-of-
way first. And he didn’t want to do that. And
then he – I asked if I could buy an acre or
whatever that small amount might be, just so
it was clear on – the survey that it was all
ours. And he explained that he didn’t want to
sell any of his land, that he was gonna own as
much land as he could own. And he said you
know, you and your family are nice people.
Your friends are nice people. You can come
and go as you please. And I did that another
time where I went out to – he was planting his
corn field. And I went out on the farm and
asked him again if I could buy a right-of-way.
And he didn’t want to do that, but he assured
me that it would be okay; we would pass by
there and build everything.
N.T., 3/27/12[,] [at] 15.
…
Mr. Elliott recalled having the same kind of
conversations with Mr. Viscarello and testified
specifically as follows:
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Yes, the first that I recall was at the cookout
barbeque, call it what you will. Roger and I
were – I assume after we ate, were walking
across the covered bridge. And he was telling
about the – this is what I remember, wanting
to build a cabin or whatever it was. And I told
him – I said that he could – he could – he
could go ahead and use it. I – and I may well
have said his family or friends or what have
you. That I do not specifically recall. He may
go ahead and use it, but I was not going to do
anything permanent, because if he got hit by a
bus tomorrow and then the Philadelphia Four
Wheeler Club ends up with it, I could spend the
rest of my life chasing four wheelers off from
the fields up on the hill. At which time, I
remember him assuring me saying that if
something happens to him it would be his son’s
property thereafter so that would not be a
problem. So I countered and said: “Well if I
get hit by a – by a bus tomorrow, the next guy
might want something different.[”]
[Id. at 40-41.]
In addition, Mr. Elliott also testified in follow up
questioning as follows:
“Q. But is it fair to say that you didn’t give any
indefinite use or anything like that?
A. I compare it to allowing somebody to go
hunting. Just because I said you could go
hunting today, if I’m not satisfied with
something you did or didn’t do, you might not
be able to go hunting next time.
Q. And did there come a time that you, in
fact, rescinded the temporary use of – of that
portion of your property from the plaintiffs in
this case?
A. Yes ….”
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[Id. at 41.]
These two statements are remarkably similar
and each supplies different details as the
conversations about the roadway. Neither party
testified that the other party’s recollection of this
conversation was in error. We find no
inconsistencies in the quoted testimony of Mr.
Viscarello and Mr. Elliott and accept each statement
as credible.
The Viscarellos did construct a residential
structure at the proposed site at a cost of
approximately [$300,000.00] during the year 2005
thr[ough] 2006. To construct this residence, called
the hunting cabin, [the Viscarellos] first constructed
a roadway which is now the focus of this dispute. It
crosses 100 feet of [Appellees’] land. [The
Viscarellos] and their construction crew used it to
bring in construction supplies to the hunting cabin
site. Both [] Mr. Elliot and [] Mr. Brennan did work
in connection with the Viscarello residence
construction including excavating and landscaping
type work. [Appellees] were fully aware as to the
extent and nature of the construction being
undertaken by the [the Viscarellos] although there is
no testimony to support that they had actual
knowledge of the cost of the construction.
Nevertheless, [Appellees] would have recognized
that a substantial expenditure was being made by
the [Viscarellos] in constructing the residence.
At some point thereafter, Mr. Elliott added the
names of the other [Appellees], his niece Kelly A.
Elliott, and her husband Craig A. Brennan to his deed
as property owners of his ground.
In 2007-08, [] Mr. Brennan had a conflict with
one of the guests of [the Viscarellos] over the way
he was making use of the [100] foot long roadway
that crossed [Appellees’] land. Other disputes
seemed to arise between the parties from time to
time and on May 1, 2011, blaming the manner in
which [the Viscarellos] were using the driveway over
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[Appellees’] land, [Appellees] blocked the roadway
by dumping a pile of dirt upon it. Since May of 2011,
[Appellees] have maintained that [the Viscarellos]
have no right to use the roadway.
Since May of 2011, [the Viscarellos] have
made use of their property and hunting cabin, for
hunting and other recreational uses typically
associated with a second or vacation home. [The
Viscarellos] in doing so have accessed the hunting
cabin from the public road by crossing Brown’s
Creek, with minimal interference by the water level
in Brown’s Creek. The nature of Brown’s Creek,
however does impact access of their property and
the access that [the Viscarellos] do have to their
property makes it very difficult, if not impossible for
utility service vehicles to access the hunting cabin.
There have only [been] a few times that Brown’s
Creek could not be forded by [the Viscarellos’]
vehicles. [The Viscarellos] have constructed a foot
bridge across Brown’s Creek.
Trial Court Opinion, 5/8/14,1 at 1, 3-6.
The trial court further summarized the procedural posture of this case
as follows.
This action was commenced by the filing of a
complaint and a motion for a preliminary [in]junction
on October 14, 2011, after [Appellees] had blocked
[the Viscarellos] from using the roadway by
barricading it with a pile of dirt on May 1, 2011. [In
response, Appellees asserted a counterclaim for
ejectment and trespass.]
A hearing on [the Viscarellos’] preliminary
injunction motion was held before the [trial court] on
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1
While the trial court opinion is dated April 14, 2014, it was filed on May 8,
2014.
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March 22, 2012. On … March 28, 2012, [the trial
court] denied the [Viscarellos’] motion for
preliminary injunction. …
…
Thereafter, the [trial court] … denied [the
Viscarellos] motion for summary judgment.
The request of [the Viscarellos] for a
permanent injunction case came to trial before [the
trial] [c]ourt on November 15, 2013. At the
commencement of the proceedings it was
determined that the record upon which [the trial]
[c]ourt was to base its decision would include the
transcript of the proceedings held at the preliminary
injunction hearing on March 27, 2012, … together
with other testimony to be introduced at the
November 15th, 2013, proceeding, as well as various
exhibits introduced at each hearing. At the
November 15th hearing, testimony was received from
[] Roger C. Viscarello, first as on cross examination
and then on direct and from [] Craig A. Brennan.
Several exhibits were introduced into the record at
that time. [A]t the March 27, 2012[] proceeding[,]
testimony was received from [both] Roger and Laura
Viscarello, and from [] Thomas M. Elliott[] and Craig
A. Brennan.
Id. at 1-2.
Immediately following the November 15, 2013 bench trial, the trial
court entered an order denying the Viscarellos’ request for a permanent
injunction. On November 18, 2013, the trial court amended its order to
grant Appellees’ counterclaim, and consequently ejected the Viscarellos’
from Appellees’ property and prohibited them from trespassing in the future.
On November 25, 2013, the Viscarellos filed a motion for post-trial relief.
The trial court denied the post-trial motion on April 16, 2014, and entered
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judgment on the same date.2 On May 2, 2014, the Viscarellos filed a timely
notice of appeal. Appellants timely complied with the trial court’s order to
file a concise statement of matters complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b).3 The trial court filed a
Rule 1925(a) opinion, which incorporated its May 8, 2014 opinion in support
of denying post-trial motions.
On appeal, the Viscarellos present the following issue.
Whether an oral license given by one party to
another to use a 100 foot private road from a public
road to the other party’s boundary line for the
purpose of constructing a residence and thereafter
accessing it, which license was thereafter executed
by the expenditure of $300,000 to build the
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2
We note that the trial court disposed of the post-trial motion more than
120 days after it was filed on November 25, 2013. See Pa.R.C.P. 227.4(b)
(providing that judgment may be entered upon praecipe of party if the trial
court does not decide post-trial motions within 120 days of their filing date).
However, any appeal prior to the entry of judgment would have been
premature. See Sagamore Estates Prop. Owners Ass’n v. Sklar, 81
A.3d 981, 983 n.3 (Pa. Super. 2013) (noting that the entry of judgment
perfects appellate jurisdiction).
3
We note that the Viscarellos’ Rule 1925(b) statement is not concise, as it
consists of nine, single-spaced pages and includes a recitation of the facts
and a lengthy discussion of the law. The Viscarellos’ nine, numbered issues
span seven pages, and are followed by an unnumbered two-page section,
entitled “discussion.” However, the trial court did not find that the
Viscarellos filed the statement in bad faith, so we cannot find waiver. See
PHH Mortg. Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014)
(concluding that this Court cannot find waiver based on the length of the
appellant’s Rule 1925(b) statement unless the trial court finds that the
appellant acted in bad faith), citing Eiser v. Brown & Williamson Tobacco
Corp., 938 A.2d 417 (Pa. 2007).
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residence, may thereafter be revoked by the
[l]icensor?
Viscarellos’ Brief at 2.
Specifically, the Viscarellos’ argue that the trial court erred in denying
them injunctive relief in the form of permanent use of the roadway over
Appellees’ land. Id. at 17. The Viscarellos assert that their discussions with
Mr. Elliot resulted in his grant of a temporary license to use his roadway to
access their property. Id. Citing the “doctrine of irrevocable license,” the
Viscarellos further contend that the temporary license to use the roadway to
access their property became irrevocable when they expended money on a
permanent improvement, in the form of a hunting cabin, in reliance on the
permission to use the roadway. Id. at 17-18.
Our review of a trial court’s denial of permanent injunctive relief is
guided by the following principles.
To prevail in a claim for a permanent
injunction, the plaintiff must prove a “clear right to
relief.” The injury claimed must be one that cannot
be compensated by an award of damages. However,
in contrast to a preliminary injunction, a permanent
injunction does not require a showing of irreparable
harm or the need for immediate relief. Rather, the
plaintiff must show that an actual and substantial
injury has occurred and/or is threatened in the
future. As our Supreme Court has summarized, a
permanent injunction is appropriately “awarded to
prevent a legal wrong for which there is no adequate
redress at law.”
Appellate review of the grant or denial of a
permanent injunction is limited to determining
whether the trial court committed an error of law. In
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reviewing a question of law, our standard of review
is de novo and our scope is plenary.
WellSpan Health v. Bayliss, 869 A.2d 990, 995-996 (Pa. Super. 2005)
(footnote and citations omitted), quoting Buffalo Twp. v. Jones, 813 A.2d
659, 663 (Pa. 2002), cert. denied, 540 U.S. 821 (2003).
Accordingly, to obtain relief on appeal, the Viscarellos must
demonstrate the trial court erred when it concluded that the doctrine of
irrevocable license did not prevent Appellees from revoking the license for
the roadway. Generally, a license is a personal permission to use the land of
another for a particular purpose, and it is revocable at will. Morning Call,
Inc. v. Bell Atl.-Pa., Inc., 761 A.2d 139, 144 (Pa. Super. 2000). A license
is not a property interest, and it is automatically extinguished by the sale of
the burdened property. Id. However, our Supreme Court has explained
that the rules of estoppel may convert a temporary license into an
irrevocable one.
A license to use the promisor’s land will become
irrevocable for the duration of the license term when
the promisee in justifiable reliance treats his land in
a way he would not otherwise treat it, that is, by
making expenditures of money for such changes as
would prevent his being restored to his original
position.
Bieber v. Zellner, 220 A.2d 17, 19 (Pa. 1966). This Court has observed
that, as an equitable doctrine, the party claiming that the license has
become irrevocable must demonstrate justifiable reliance on the
permanency of the license. Buffington v. Buffington, 568 A.2d 194, 200
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(Pa. Super. 1989); accord RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES
§ 2.10 (2000) (requiring the user to substantially change position in
“reasonable reliance” on the belief that the permission would not be
revoked). Implied in this doctrine is an assumption that the grantor did not
expressly retain the ability to revoke the permission granted, and instead
misled the licensee to believe that the licensor would not revoke the
permission. RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.10 cmt. e
(2000).
Herein, Mr. Elliott granted a revocable license to the Viscarellos,
permitting the Viscarellos to use a 100-foot roadway over his land. The trial
court found, based on the credible testimony of both parties, that Mr.
Viscarello and Mr. Elliott orally created a license with the understanding that
Mr. Elliott would retain the right to revoke his permission for the Viscarellos
to use his land as a roadway. Trial Court Opinion, 5/8/14, at 8. Specifically,
Mr. Viscarello testified that Mr. Elliott consistently rebuffed his attempts to
acquire a permanent interest in Mr. Elliott’s property as access for a future
hunting cabin. N.T., 3/27/12, at 15. Further, Mr. Viscarello admitted Mr.
Elliott explicitly told him on at least two separate occasions that he would
not sell him a permanent interest in the land in the form of fee simple
ownership, easement, or right-of-way. Id. at 29. Similarly, Mr. Elliott
testified that the agreement was for the temporary use of the land to enable
the Viscarellos to construct the cabin. Id. at 40-41. Therefore, the
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undisputed specific intent and understanding of the parties was that Mr.
Elliott granted the Viscarellos only a temporary, revocable license to traverse
Mr. Elliott’s land, which would not run with the land.4
After Mr. Elliott revoked the Viscarellos’ privilege to use the driveway
by blocking it with a pile of dirt in May 2011, the Viscarellos initiated this
action claiming that the license became irrevocable when they expended
money to construct the hunting cabin. Appellant’s Brief at 16-17. In effect,
the Viscarellos attempt to invoke rules of estoppel to obtain, as a matter of
law, a servitude on the property that the parties specifically contemplated
and rejected. We conclude the doctrine of irrevocable license does not apply
in these circumstances.
The Viscarellos’ belief that Mr. Elliott would not revoke the permission
was not reasonable, and the Viscarellos were not justified in relying on that
belief. Mr. Elliott unequivocally expressed that the license was not
permanent. Mr. Viscarello specifically attempted to obtain a fee simple, an
easement, or a right-of-way in the property, but Mr. Elliott twice refused to
grant any such permanent servitude. Instead, Mr. Elliott granted the
Viscarellos a temporary license to traverse his land to access the Viscarellos’
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4
Conversely, Mr. Viscarello testified that he had to obtain an easement from
Mr. Elliott in favor of Pennsylvania Electric Company to enable electric
service at the Viscarellos’ hunting cabin. N.T., 3/27/12, at 23
(acknowledging electricity would not have been possible without the
easement); Id. at Exhibit 5 (Penelec Easement, 6/2/05).
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property. Mr. Viscarello did not testify or argue that he believed that the
license was irrevocable or that Mr. Elliott made any representation to that
effect. Given the negotiations between the parties and the terms of their
agreement, we conclude that the Viscarellos did not show justifiable reliance
on the permanency of the license because they did not show that Mr. Elliott
led them to believe the license would not be revoked. See Buffington,
supra; RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.10 cmt. e (2000).
Despite this, the Viscarellos argue that Appellees were equitably
estopped from revoking the license because Mr. Elliott was aware of the
construction of the hunting cabin, Mr. Elliott assisted in the construction, and
the Viscarellos expended $300,000.00 on the cabin’s construction.
Appellant’s Brief at 16-17. However, both parties affirmatively testified Mr.
Elliott had knowledge of the Viscarellos’ plans to build a cabin before Mr.
Elliott granted the revocable license to use the roadway. N.T., 3/27/12, at
15, 40. Further, both parties testified that Mr. Elliott steadfastly refused to
grant or sell the Viscarellos a more permanent interest in the land. Id. at
15, 29, 40-41. Consequently, the Viscarellos cannot claim Mr. Elliott is
estopped based on Mr. Elliott’s assistance in the construction because the
assistance was not a change in Mr. Elliott’s position that would warrant
justifiable reliance; Mr. Elliott already knew a structure was going to be
erected when he granted the revocable license.
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For the same reason, the Viscarello’s expenditure of $300,000.00 on
the cabin does not equitably estop Mr. Elliott from revoking the license. The
Viscarellos knew that Mr. Elliott did not grant them a permanent, lasting
servitude. Nevertheless, the Viscarellos decided to construct the cabin
without a permanent roadway over Mr. Elliott’s property to access it. Under
these facts, the Viscarellos cannot unilaterally invoke equitable estoppel to
obtain an interest in Appellee’s land greater than the one Mr. Elliott
expressly granted to them in the parties’ oral agreement.5
Further, the Viscarellos did not prove that the revocation of the license
rendered the improvements on their property useless. The roadway over
Appellees’ property was not the only way for the Viscarellos to access their
property from a public road; it was the most convenient and least expensive
route for them. The Viscarellos conceded that they could access the
property by crossing Brown’s Creek, but it would be difficult for service
utility vehicles to cross the stream without further improvements. Trial
Court Opinion, 5/8/14, at 6. Mr. Viscarello testified that while he was aware
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5
An irrevocable license is tantamount to an affirmative easement. Morning
Call, supra at 144 n.10; see also RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 1.2(4) cmt. e (2000) (stating “the term ‘easement’ includes an
irrevocable license to enter and use land in the possession of another …[]”);
id. § 1.2 cmt. g (explaining “[i]f the license becomes irrevocable … it is
indistinguishable from an easement[]”). The testimony of the parties
established that Mr. Elliott definitively refused to grant the Viscarellos a
right-of-way or an easement on his property for a driveway. Under these
circumstances, we will not impose an affirmative easement by operation of
law.
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of the general procedure for constructing a bridge to enable vehicles to cross
Brown’s Creek, he had not initiated the process. N.T., 3/27/12, at 27. The
Viscarellos, however, have constructed a footbridge across the stream. Trial
Court Opinion, 5/8/14, at 6. Mr. Elliott testified that the Viscarellos also
could access the cabin by obtaining a right-of-way over the property of
another neighbor, Howard Bailey. N.T., 1/4/13, at 44. Thus, while access
over Appellee’s land may have been the shortest and least expensive of the
alternatives available, it was not the Viscarellos’ only means of accessing the
hunting cabin. In fact, since Appellees blocked the roadway in May 2011,
the Viscarellos have accessed their cabin by crossing Brown’s Creek. Trial
Court Opinion, 5/8/14, at 6. Therefore, Appellees’ revocation of the license
did not render the Viscarellos’ improvements useless.
Moreover, the Viscarellos’ invitation to apply equitable estoppel to
convert an explicitly temporary license into a permanent servitude has a
chilling effect on the spirit of neighborly cooperation. In this case, the
Viscarellos resorted to the legal system to obtain a greater interest in
Appellees’ property than they could obtain through negotiations with Mr.
Elliott. Such a loose application of estoppel principles to circumvent the
express agreement of the parties discourages landowners from allowing
neighbors to use their land for fear that a court will convert a temporary
permission into a permanent easement.
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Based on the foregoing, the Viscarellos did not prove they had a clear
right to relief based on the equitable doctrine of irrevocable license.
Therefore, the trial court did not err as a matter of law in denying the
Viscarellos’ request for a permanent injunction. Accordingly, the April 16,
2014 judgment is affirmed.
Judgment affirmed.
Judge Stabile joins the memorandum.
Justice Fitzgerald files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
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