Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass'n

197 A.3d 1189

CARLINO EAST BRANDYWINE, L.P.

v.BRANDYWINE VILLAGE ASSOCIATION and Associated Wholesalers, Inc.

Brandywine Village Associates

v.Carlino East Brandywine, L.P. and Christina B. Kettlety and Katherine W. Kettlety, Co-Administrators of the Estate of Frank Watters ; and Christina B. Kettlety and Katherine W. Kettlety Jointly as Co-Executors of the Estate of Beatrice S. Watters, Dec.

Appeal of: Brandywine Village Associates

No. 3388 EDA 2017

Superior Court of Pennsylvania.

Argued September 26, 2018

Filed October 16, 2018

Paul A. Prince, Pottstown, for appellant.

Pamela Tobin, Blue Bell, for Carlino East, appellee.

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Brandywine Village Associates (hereinafter "BVA") appeals from the Order entered in the Court of Common Pleas of Chester County on September 20, 2017, granting the motion of Carlino East Brandywine, L.P., Christina B. Kettlety, Katherine W. Kettlety, Co-Administrators of the Estate of Frank Watters, and Christina B. Kettlety, Katherine W. Kettlety, Co-Executors of the Estate of Beatrice S. Watters, Deceased (hereinafter collectively "Carlino") seeking summary judgment and the dismissal of BVA's Declaratory Judgment action.¹ Following our review, we affirm.

Various collateral disputes involving BVA and Carlino and/or other entities have been appealed to and either decided by or are pending in both this Court and the Commonwealth Court.² The instant appeal arises from two, separate declaratory judgment complaints filed by BVA and Carlino against each other.³ The relevant facts and procedural history which led to the trial court's September 20, 2017, Order as stated by the trial court are as follows:⁴

DECISION

[Carlino], defendants in [BVA's] Declaratory Judgment action, Docket No. 11-05189-MJ, seek summary judgment and dismissal of BVA's Complaint. [Carlino's] summary judgment motion (the "Motion") was filed on October 29, 2015. BVA filed an Answer on December 16, 2015.

Carlino filed a separate declaratory judgment action, entitled Carlino East Brandywine L.P. v. Brandywine Village Associates et al, Docket No. 2011-05037-MJ) on May 11, 2011. To distinguish the cases, plaintiff in the latter action is identified as "Carlino". The actions were consolidated on September 22, 2011. In Carlino's action, on April 30, 2015, BVA filed a "Brief on the Declaratory Judgment Interpretation of its Easements", to which [ ] Carlino filed a "Response in Opposition". The consolidated cross declaratory judgment complaints and their attached Exhibits are appropriate for our consideration respecting the Carlino Defendant's Motion. In its case, Carlino motioned for summary judgment, which we denied on October 10, 2012.

History of the Case:

At issue in these declaratory judgment actions is the construction of a 1994 Cross Easement Agreement (the "Agreement") between BVA and the late Frank and Beatrice Watters, who originally owned land on Horseshoe Pike (SR322) in East Brandywine Township, Chester County, subsequently divided into contiguous parcels of 11.535 acres and 10.645 acres. The Watters conveyed the 11.535 acres parcel to BVA on June 24, 1994, and contemporaneously entered into the Agreement with the Watters, pursuant to which the parties granted and conveyed to each other certain cross easements to facilitate development of the parcels. As alleged in BVA's May 16, 2011[,] Complaint, under the Agreement's terms, the Watters granted BVA the following easements over the Watters' retained 10.645 acre parcel, described in BVA's Declaratory Judgment Complaint as: (1) a "perpetual easement" on the Watters' Parcel, 0.460 one-hundreds of an acre in area, "in common with" the Watters' Parcel" providing access, egress and ingress to BVA's parcel; (2) a 2.282 acre sanitary sewer easement pursuant to which sewage from BVA's parcel would be treated and disposed of in an on-site package treatment plant located on the Watters' Parcel; and (3) an irrevocable stormwater basin and drainage easement 0.540 one-hundreds of an acre in area, intended to accommodate the acceptance of surface stormwater originating on BVA's parcel. BVA Complaint, Exhibit "A". The approved subdivision plan for the Brandywine Village shopping center shows that the stormwater basin was also designed to accept directed water runoff from BVA's access private road from Horseshoe Pike to its shopping center. BVA's April 30, 2015 Brief on the Declaratory Judgment Interpretation of its Easements, Exhibit "C".

Pursuant to a development plan approved by East Brandywine Township, in 1995 BVA constructed the Brandywine East Towne Center on its parcel, consisting of a food market, various ancillary stores, a bank and a Burger King. Pursuant to the Cross Easement Agreement, BVA constructed the following facilities on the Watters' Parcel to service its shopping center: (1) an on-site package sewage treatment plant; (2) a 45 feet wide access road providing access to its shopping center over the Watters' Parcel, and (3) a drainage basin encompassing 0.054 one-hundreds of an acre and assorted spillways to accepts surface water drainage from BVA's access driveway and, allegedly, from its Towne Center shopping center. BVA's Complaint, pp.32-42 & Exhibits "D" & "E". The Cross Easement Agreement also obligated the Watters to grant such other easements as might be necessary to "facilitate the proper construction and development of the buildings and improvements shown on the Plan" (BVA's approved Plan). No such easements are identified in BVA's Complaint and none have been implemented.

Carlino acquired an equitable interest in the remaining Watters' Parcel from their Estates, and submitted a preliminary land development plan to the Township on May 27, 2010. The lengthy history of Carlino's efforts to secure land development approval is discussed herein where necessary to an understanding of the instant controversy. The Township Supervisors conditionally approved the latter preliminary plan on April 8, 2011[,] and Carlino accepted the conditions imposed, and on July 20, 2011[,] entered into a development agreement with the Supervisors memorializing various undertakings to which Carlino and the Township agreed. Among them, the Supervisors required Carlino to construct a road for public use on and through both the Watters' Parcel and a contiguous property now owned by the L & R Partnership to link Horseshoe Pike and nearby Guthriesville Road. L & R is not a party to the declaratory judgment actions. Carlino then submitted a final land development plan, which was approved by the Supervisors on August 4, 2011[,] (the "2011 Approval"). We granted BVA's appeal and overruled the Board's decision for reasons not pertinent to the instant case; however, after several iterations of the plan, the Supervisors ultimately conditionally approved Carlino's revised preliminary plan on April 20, 2016, BVA and L & R appealed, and we affirmed the Board on July 18, 2017. Chester County Docket No. 2016-04843. The Board has subsequently approved Carlino's final plan, and BVA's appeal from that approval is now pending in this court before the undersigned.

As noted, from the inception of Carlino's land development applications, the Supervisors insisted that a public road, identified on Carlino's plans as Brandywine Village Drive, be constructed by Carlino through the Watters' Parcel to connect Route 322 and nearby North Guthriesville Road (the "Connector Road"). The Supervisors' intention to connect the latter roadways preceded Carlino's land development application. While the Supervisors have subsequently taken the position that, in lieu of constructing the road, Carlino could pay upwards of $2 million dollars to finance the Township's construction of the road, the fact remains the Connector Road was going to happen. In the development agreement accompanying the Carlino's land development plan approval, the Supervisors agreed, if necessary, to condemn BVA's access and stormwater drainage/detention basin easements at issue to facilitate construction of the Connector Road by exercising its power of eminent domain at Carlino's sole cost and expense. Carlino has agreed to construct the Connector Road and dedicate it to the Township upon completion of its construction. Carlino's Response in Opposition, Exhibit "G".

From the inception of its shopping center, BVA has had access to its shopping center from SR322 (Horseshoe Pike) over a paved private road located on the Watters' Parcel within the access easement granted to BVA in the Cross Easement Agreement; however, under Carlino's approved development plans, BVA's access easement will be replaced by relocating such access over and through the Connector Road, to be constructed on the East side of the Watters' Parcel. BVA contends that such disruption of its existing access would require a modification of the access easement itself, which is prohibited by the terms of the Cross Easement Agreement and by applicable law. While it is correct that the Cross Easement Agreement describes the access easement as "perpetual", the easement has been condemned by the Township. Under Carlino's approved development plan, BVA will have continued and unimpeded access to its property over the present access road pending construction of the Connector Road and, thereafter over the Connector Road. BVA's contention has been rendered moot by the Township's condemnation of BVA's access easement. As now configured, the proposed Connector Road also extends over a portion of the existing detention basin on the Watters' Parcel, which accepts surface water drainage from BVA's existing private road. Carlino argues that BVA has abandoned the detention basin and drainage easement by grading BVA's Towne Center to divert surface water drainage away from the Watters' Parcel to underground stormwater management facilities located on BVA's property. The described detention basin located with BVA's second easement will

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