Carringer v. Taylor

• Decision Date: 04 March 1991
• Citation: 586 A.2d 928,402 Pa.Super. 197
• Parties: Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellees, v. Bruce TAYLOR, Appellant. Bruce TAYLOR, Appellant, v. Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellees. Bruce TAYLOR, Appellee, v. Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellants.
• Court: Pennsylvania Superior Court

Page 928

586 A.2d 928

402 Pa.Super. 197

Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellees, v. Bruce TAYLOR, Appellant.

Bruce TAYLOR, Appellant, v. Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellees.

Bruce TAYLOR, Appellee, v. Robert M. CARRINGER, Rachel C. Hauth, Benjamin T. McGill and Eleanor C. McGill, His Wife, Robert B. Gibson, Jr., and Mary Ann Gibson, His Wife, Appellants.

Superior Court of Pennsylvania.

Argued May 2, 1990.

Filed Dec. 18, 1990.

Reargument Denied March 4, 1991.

Joseph E. Altomare, Titusville, for appellant in Nos. 1467 and 1628 and appellee in No. 1629.

Patrick M. Livingston, Pittsburgh, for appellants in No. 1629 and appellees in Nos. 1467 and 1628.

Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.

POPOVICH, Judge:

This consolidated appeal arises from a dispute over the improvement of a one-lane dirt road which lies along the bank of the Allegheny River near Tionesta in Forest County, Pennsylvania. We affirm in part and reverse in part.

On appeal, Bruce Taylor (hereafter "Taylor") alleges the lower court erred in granting summary judgment in favor of Robert Carringer et al., (hereafter "Carringer"), because Carringer failed to state a cause of action, material issues of fact remain unresolved and entry of summary judgment violated the Nanty-Glo Rule. ¹ Taylor also contends the dismissal of his separate action at law for quiet title based on easement theories was improper. Finally, Taylor asserts that the lower court abused its discretion by refusing to permit amendment of his counterclaim to include easement theories. In addition to the issues raised by Taylor, Carringer questions whether the lower court erred by modifying its order dismissing the quiet title action to read dismissed "without prejudice".

The record reveals that Carringer and Taylor own property situated along the course of the one-lane dirt road. Taylor owns the property at the end of the road, and Carringer's property abuts Taylor's. In the summer of 1987, Taylor purchased the farm and lodge building at the road's end. The road in question is the sole means of access to the parties' properties. For years, the owners of the many small cottages along the road jointly maintained its surface. However, after purchasing the lodge property, Taylor began to make improvements and widen the road without the consent of the other abutting landowners.

On November 17, 1988, Carringer instituted an action in equity for a preliminary injunction, alleging that Taylor was causing immediate and irreparable loss and damage to Carringer's property by the unilateral widening of the unimproved dirt road. On November 22, 1988, a preliminary injunction was issued which prohibited all further road construction efforts by Taylor. ² Rather than file preliminary objections, Taylor filed an answer and counterclaim on February 28, 1989. Taylor's counterclaim alleged that the road was a "privatized" public road with a statutory width of twenty-five feet within which he had a right to make repairs. ³ In the alternative, he argued the road remained a public road which, pursuant to 36 Pa.S.A. § 1901, has a statutory width of no less than thirty-three feet.

C 1989, with exceptions to the decree nisi pending, Taylor instituted a separate quiet title action at law, asserting a "right of way or easement [by necessity or prescription] along said roadway with all attending reasonable rights of repair and maintenance." (Complaint of June 5, 1989 at p. 2, 13). Thereafter, on July 12, 1989, Taylor moved for leave to amend his counterclaim in equity to incorporate the substance and allegations set forth in the new action at law. Similarly, Taylor petitioned for consolidation of the actions at law and in equity. In response, Carringer filed preliminary objections to the action at law alleging, inter alia, that dismissal was proper for failure to comply with the compulsory joinder provisions of Pa.R.Civ.P. 1020(d)(1) & (4). ⁵ Carringer further alleged that the doctrine of lis pendens precluded the granting of Taylor's request. In addition, Carringer filed a motion for allowance for attorney's fees under 42 Pa.C.S.A. § 2503, alleging that Taylor's actions were vexatious and his complaint at law was brought in bad faith.

Argument was held on the exceptions to the decree nisi and the preliminary objections to the quiet title action. Thereafter, Judge Wolfe entered a final decree, denying Taylor's exceptions and granting Carringer's exceptions to the decree nisi by adding language to clarify the scope of the injunction. In addition, Judge Wolfe denied Taylor's motion to amend his counterclaim with easement theories. While recognizing that "easement rights may be afoot," Judge Wolfe, nevertheless, found the motion "untimely," since Taylor failed to raise the issue definitively prior to entry of the decree nisi. (Adjudication of August 22, 1989 at 5).

In an order filed the same day as the final decree, Judge Wolfe dismissed Taylor's quiet title action and denied his petition for consolidation. The order also granted attorney's fees to Carringer. Judge Wolfe reasoned that Pa.R.C.P. 1020(d)(1) & (4) precluded Taylor's requests. In addition, Judge Wolfe believed that Taylor's quiet title action and motion to amend were untimely because he was already entertaining exceptions to the decree nisi prior to filing of those documents. (Opinion of August 22, 1989, p. 3). With respect to attorney's fees, Judge Wolfe held Taylor chargeable with the rules of procedure and described Taylor as taking "gross liberty" with the rules at Carringer's expense.

Taylor then filed an appeal from both the final decree and the order. He also filed a motion for reconsideration of the dismissal order pursuant to Pa.R.A.P. 1701(b)(3). Upon reconsideration, the trial court amended the order to provide that the complaint was "dismissed without prejudice." Both parties then filed timely appeals from the opinion of September 20, 1989, which amended the order of August 22, 1989. The various appeals were consolidated and are now before this court.

We will first address Taylor's assertion that the trial court erred when it entered summary judgment in favor of Carringer. Pennsylvania law is well settled that summary judgment is proper only in cases that are clear and free from doubt. Pa.R.C.P. 1035; Consumer Party of Pa. v. Comm., 510 Pa. 158, 173, 507 A.2d 323, 331 (1986); Mancia v. Comm., Dept. of Transp., 102 Pa.Cmwlth. 279, 282, 517 A.2d 1381, 1383 (1986); Huffman v. Aetna Life and Cas. Co., 337 Pa.Super. 274, 276, 486 A.2d 1330, 1331 (1984). Thus, our function in reviewing an order granting summary judgment is to determine whether any genuine issue of material fact remain, and, if no issues of fact remain, whether the movant is entitled to judgment as a matter of law. Mancia, 517 A.2d at 1383; Huffman, 486 A.2d at 1331; Rybas v. Wapner, 311 Pa.Super. 50, 53-56, 457 A.2d 108, 109-110 (1983). In passing upon a motion for summary judgment, we must examine the evidence in a light most favorable to the non-moving party. Melmed v. Motts, 341 Pa.Super. 427, 429, 491 A.2d 892, 893 (1985); Raffensberger v. Moran, 336 Pa.Super. 97, 101, 485 A.2d 447, 450 (1984).

In this case, we must review the grant of a summary judgment when the requested relief is an injunction restraining an invasion of real property, and we are guided by the following:

... A court of equity will only grant an injunction where the rights and equity of the plaintiff are clear and free from doubt and the harm sought to be remedied is great and irreparable. (Citations omitted). A party seeking to enjoin an invasion of his or her right in and to real property must demonstrate that he or she has a clear right to the property in question. (Citations omitted). To meet this burden, the plaintiff must rely upon the strength of his or her own title or other legal right to the property, and not upon the weakness of the title or legal right asserted by the defendants. (Citations omitted).

Cannon Bros., Inc. v. D'Agostino, 356 Pa.Super. 286, 290-91, 514 A.2d 614, 617 (1986).

Applying the aforementioned standards, we find that Taylor's attack on the entry of summary judgment against him must fail. Taylor failed to produce any evidence which demonstrated that the road in question was ever a public road. In fact, the evidence of record indicates that the road has always been a private road. Since Taylor based his counterclaims on the premise that the road was at one time or is now a public road, there is no question that he has no right to "improve" the road based on such a theory. On the other hand, Carringer's right to injunction is clear. The record reveals that Taylor's actions have resulted in damage to the private property of Carringer, land which Taylor has no right to alter based on the theories which he raised in a timely manner. Accordingly, we affirm entry of summary judgment in favor of Carringer.

Next, Taylor questions whether it was error for the lower court to dismiss his separate action at law for quiet title based on easement theories. Again, we affirm the decision of the court below. Taylor argues that the lower court erred when it applied Pa.R.C.P. 1020(d)(1) and (4) to the present facts in that Rule 1020 does not apply to counterclaims. For the following reasons, we must disagree.

Pennsylvania Rules of Civil Procedure, Rule 1020, in pertinent part, states:

(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.

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(d)(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall...