Pineda v. Perry

244 A.3d 1240

Alex Anthony PINEDA, Jr.

v.James L. PERRY, Andrea L. Perry, G. Phillip Brady, Deborah Brady, Roxanne Roberto and Sharon Perry

Appeal of: James L. Perry, Andrea L. Perry and Sharon Perry

Alex Anthony Pineda, Jr.

v.James L. Perry, Andrea L. Perry, G. Phillip Brady, Deborah Brady, Roxanne Roberto and Sharon Perry

Appeal of: James L. Perry, Andrea L. Perry and Sharon Perry

Alex Anthony Pineda, Jr.

v.James L. Perry, Andrea L. Perry, G. Phillip Brady, Deborah Brady, Roxanne Roberto and Sharon Perry

Appeal of: G. Philip Brady and Deborah Brady

Alex Anthony Pineda, Jr.

v.James L. Perry, Andrea L. Perry, G. Phillip Brady, Deborah Brady, Roxanne Roberto and Sharon Perry

Appeal of: G. Philip Brady and Deborah Brady

No. 3473 EDA 2019

No. 3474 EDA 2019

No. 3475 EDA 2019

No. 3476 EDA 2019

Superior Court of Pennsylvania.

Submitted: July 27, 2020

Filed: September 24, 2020

Reargument Denied: November 24, 2020

Mark Ryan, Norristown, for appellant.

Joseph J. Pizonka, King of Prussia, for Pineda, appellee.

Christine M. Kovan, Berwyn, for Brady, appellee.

Roxanne Roberto, appellee, pro se.

BEFORE: BOWES, J., STABILE, J., and COLINS, J.^*

OPINION BY COLINS, J.:

Appellants, James Perry, Andrea Perry, Sharon Perry, G. Philip Brady, and Deborah Brady, appeal from the order dated November 15, 2019, and amended on December 4, 2019, permanently enjoining them from denying Appellee, Alex Anthony Pineda, Jr., access to the rear of his property located in King of Prussia, Montgomery County. We affirm and lift the stay and suspension of the permanent injunction.

Preliminarily, for the convenience of the reader, we wish briefly to clarify the people and locations involved in this action:

• Stephen O'Leary recorded the original subdivision plan encompassing the parties' properties in the office of the Montgomery County Recorder of Deeds on May 5, 1923 ("the O'Leary Plan "); • Appellee, Alex Anthony Pineda, Jr. , owns the property located at 433 Church Street in King of Prussia ("the Pineda Property"); on the O'Leary Plan, the Pineda Property was designated as Lot 2 in Section D; Pineda purchased the Pineda Property from Gerald C. Strouse on June 3, 2016;

• Appellants James and Andrea Perry own the property located at 431 Church Street in King of Prussia ("the Perry Property"); their predecessors in title were Salvatore and Mary Perry; James and Andrea Perry's daughter, Sharon Perry , lives at the Perry Property; hereinafter, James, Andrea, and Sharon Perry are collectively referred to as "the Perrys"; on the O'Leary Plan, the Perry Property was designated as Lot 1 in Section D;

• Appellants G. Philip and Deborah Brady ("the Bradys") own the property located at 217 Walnut Street in King of Prussia ("the Brady Property"); on the O'Leary Plan, the Brady Property was designated as Lots 3, 4, 5, 6, and 7 in Section D;

• Roxanne Roberto owns the property located at 211 Walnut Street in King of Prussia ("the Roberto Property"); on the O'Leary Plan, the Roberto Property was designated as Lots 47 and 48 in Section A; Roberto was a defendant in the underlying action but is not an appellant in this appeal;

• Glenn R. and Patricia F. Kerwin ("the Kerwins") own the property located at 414 Church Street in King of Prussia ("the Kerwin Property"); they were not named as parties in the underlying action; the Kerwin Property was not included in the O'Leary Plan;

• Coates Alley is a 20-foot wide street to the rear of the Perry Property and the Pineda Property and in between the Brady Property and the Roberto Property; it runs perpendicular to Walnut Street and parallel to Church Street; on the O'Leary Plan, Coates Alley is marked and noted "to be always open"; Coates Alley is the only access to the rear of the Pineda Property; and

• King Alley a/k/a Kings Alley a/k/a King's Alley^[1] is a way between the Perry Property and the Kerwin Property, connecting Church Street and Coates Alley, running perpendicular to both; it runs parallel to Walnut Street; on the O'Leary Plan, King Alley is marked and designated "to be always open."

* * *

In a 1968 quiet title lawsuit in Montgomery County Court of Common Pleas [between the then-owners of the Brady Property and the then-owners of the Roberto Property], Judge Robert Honeyman[ ] ruled that Coates Alley was to be mutually used and enjoyed by the parties to that lawsuit as well as all other property owners in the subdivision whose lots were originally conveyed through the O'Leary [P]lan . Judge Honeyman ruled that under the original grant by Stephen O'Leary, an easement arose that was to be used and enjoyed by both the parties, as well as the other property owners whose lots were conveyed in accordance with the original plan. Based upon his findings as to the intent of the original grantor, Judge Honeyman ruled that the alley should be kept open, that all the parties have the right to use Coates Alley, that neither party should interfere with ingress or egress to the alley, and that any obstructions to the use of the alley must be removed. See [Z ]oltowski v. Roberto , MCCP 68-6542, Order dated April 2, 1969, attached as Exhibit G to [Pineda]'s Petition for Preliminary and Permanent Injunction.

Trial Court Opinion, dated December 20, 2019, at 3 (emphasis added).

The current action commenced on May 13, 2019, when Pineda filed a complaint and a petition for preliminary and permanent injunction ("the Petition") against the Bradys, the Perrys, and Roberto. On June 7, 2019, the Perrys filed their answer to the complaint. On June 17, 2019, the Bradys filed their answer to the complaint with new matter and counterclaims.

According to Pineda's pleadings, he was able to use Coates Alley to access the rear of the Pineda Property at the time he purchased it in 2016 and that access in both directions has since been blocked by the Bradys, the Perrys, and Roberto. Complaint, 5/13/2019, at ¶ 13.

Pineda specifically asserts that, subsequent to his purchase of the Pineda Property, the Bradys and Roberto erected a six-foot high, ten-foot wide fence across Coates Alley, which blocks his access to the Pineda Property from Walnut Street and posted a sign stating, "stop, do not enter, private property." Id. at ¶¶ 16, 19. The Bradys concede these facts, see The Bradys' Answer to Complaint with New Matter and Counterclaim, 6/17/2019, at ¶¶ 16, 19, but add that the sign was erected prior to Pineda's purchase of the Pineda Property, id. at ¶ 19, and that Pineda never had a right-of-way to this section of Coates Alley for two reasons:

[(1)] Lots 1 through 7 of Section D of the O'Leary Plan were sold by Stephen O' Leary and Jennie O' Leary to George Dillon in 1923 (the "Dillon Deed")^[2] which extinguished any alleged easement or right of way over the area of land that was designated as Coates Alley over Lots 1 through 7 of [Section] D in the O'Leary Plan.

[(2)] In or around October 1996, Gerald C. Strouse, the prior owner of the Pineda Property, affirmatively abandoned/released/relinquished any alleged right of way or easement over the Brady Property by stating that he was not going to use said area of land and thereafter by placing a fence in the Pineda Property adjacent to Coates Alley.

Id. at ¶ 9. Additionally, the Bradys made a counterclaim requesting that the trial court "quiet title to the Brady Property and declare that the Brady Property is not encumbered by an easement or right of way in favor of the Pineda Property over Coates Alley or otherwise over the Brady Property." Id. at ¶ 58.

Pineda also alleges that, subsequent to his purchase of the Pineda Property, the Perrys erected a six foot high, ten foot wide fence across Coates Alley which blocks his access to the Pineda Property from the direction of King Alley and expanded the use of their property through fencing and grading in order to limit the original size of King Alley, from twenty feet to twelve feet. Complaint, 5/13/2019, at ¶¶ 14-15. According to the Perrys, the fence across King Alley has been in place and maintained by themselves and their predecessors "for a period of time in excess of twenty-one (21) years." The Perrys' Answer to Complaint, 6/7/2019, at ¶ 14.

On July 8, 2019, the trial court held a hearing on the Petition. After reviewing the pleadings and listening to argument, the trial court stated that it did not believe that the issue before it required witness testimony but would be decided on the law. N.T. at 36.

Following the submission of post-trial briefs, the trial court entered the following order:

AND NOW , this 1th day of Nov, 2019, upon consideration of Plaintiff, Alex Anthony Pineda, Jr.'s Petition for Preliminary and Permanent Injunction, and the response thereto, and after hearing held thereon, it is hereby ORDERED that this Petition is GRANTED .

Defendants, James L. Perry, Andrea Perry, G. Philip Brady, Deborah Anne Brady, Roxanne Roberto and Sharon Perry are permanently enjoined from denying Plaintiff access to the rear of his property located at 433 Church Street, King of Prussia, PA 19406.

Any and all structures which currently block Plaintiff's access to the property located at 433 Church Street, King of Prussia, PA 19406 shall be removed within twenty (20) days of the date of the docketing of this Order

Order, 11/15/2019. The Bradys and the Perrys did not file post-trial motions.

The Brady[s] filed a Notice of Appeal of this Order on November 25, 2019 and the Perry[s] filed a Notice of Appeal on November 26, 2019.

On December 3, 2019, a day before the period for the removal of the fence was to expire, both the Perry[s] and the Brady[s] filed motions to stay this order, and sent a letter to the court asking that these motions be decided quickly because their time to comply with the order was expiring. The court denied these motions on ... December 4, 2019 but also on that date entered an Amended Order[.]

Trial Court Opinion, dated December 20, 2019, at 3-4. The amended order was identical to the original order, except stating that any structures blocking access "shall be removed...