McCormick v. Camp Pocono Ridge, Inc. II, No. 3:CV-88-1194.

• Decision Date: 20 December 1991
• Docket Number: No. 3:CV-88-1194.
• Citation: 781 F. Supp. 328
• Parties: Patrick J. McCORMICK, II, Plaintiff, v. CAMP POCONO RIDGE, INC. II, and Thomas Santay, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

781 F. Supp. 328

Patrick J. McCORMICK, II, Plaintiff, v. CAMP POCONO RIDGE, INC. II, and Thomas Santay, Defendants.

No. 3:CV-88-1194.

United States District Court, M.D. Pennsylvania.

December 20, 1991.

COPYRIGHT MATERIAL OMITTED

Thomas I. Vanaskie, Scranton, Pa., for plaintiff.

Paul A. Barrett, O'Malley, Harris & Schneider, P.C., Scranton, Pa., for defendants.

MEMORANDUM

McCLURE, District Judge.

I. BACKGROUND

This action involves a dispute over the rights and liabilities of the parties relating to the ownership of land within the Wallenpaupack Preserve, Greene Township, Pike County, Pennsylvania. Plaintiff Patrick J. McCormick II initiated this action by filing a complaint on August 5, 1988. By Order dated September 7, 1988, the Honorable William J. Nealon granted plaintiff's request for a temporary restraining order restraining the defendants from "prohibiting access to plaintiff to cross over, use, and enjoy the roads and lanes and other common areas in and about the Wallenpaupack Preserve". On December 29, 1989, defendants Camp Pocono Ridge, Inc. II (Camp II) and Thomas Santay filed an amended answer and counterclaim to McCormick's complaint.

The defendants filed a motion for partial summary judgment on November 21, 1990. On that same date, the plaintiff filed a motion seeking summary judgment on the defendants' amended counterclaim. On April 11, 1991, this court issued an order granting partial summary judgment in favor of the defendants and against the plaintiff with respect to the intentional infliction of emotional distress claim asserted in Count V of the complaint. 760 F.Supp. 1113. That order also stayed this action, because on the record before the court, plaintiff was not clearly established as the legal title-holder to Lot No. 6 and, therefore, may have lacked standing to bring claims related to the property. Plaintiff was given ninety days to establish legal ownership of the property. On July 11, 1991, plaintiff submitted to this court documentation which evidenced, to the court's satisfaction, plaintiff's legal ownership to Lot No. 6. The court will now consider the remaining issues of the parties' motions for summary judgment.

II. RELEVANT FACTS

William H. Hough, Jr. established the Wallenpaupack Preserve in the 1920's. Hough and his wife Helen were the common grantors of all lands within the Preserve, including Lot No. 6, which was purchased by the plaintiff's family in 1936.¹ The chain of title to Lot No. 6, as set forth in plaintiff's brief in support of his motion for summary judgment,² is as follows:

1. August 31, 1927 — William H. Hough, Jr. and Helen E. Hough, his wife, to Charles D. Bartholomew.

2. December 9, 1930 — Bartholomew to Robert E. Lamberton 3. November 13, 1936 — Lamberton to L.W. and Elizabeth F. McCormick, plaintiff's parents.

4. November 24, 1964 — L.W. and Elizabeth F. McCormick to Patrick J. McCormick.

5. January 19, 1967 — Patrick J. and Joan R. McCormick to Elizabeth F. McCormick.

6. September 1, 1967 — Elizabeth F. and L.W. McCormick to E.L.P. Corporation.

E.L.P. Corporation ("E.L.P.") was a closed corporation and its four shares of issued and outstanding stock were owned by the plaintiff, his brother Leo McCormick and his mother Elizabeth McCormick.³ Plaintiff's mother died on November 9, 1975 and E.L.P.'s corporate charter became void and inoperative on March 1, 1981 due to non-payment of franchise taxes.⁴ On January 1, 1981, plaintiff acquired any and all interest his brother held in E.L.P.

In approximately 1935 or 1936, Russell Low purchased Henry and Helen Hough's remaining interest in the Wallenpaupack Preserve. Lots within the Preserve that were individually owned, including Lot No. 6, were not affected by this transfer of ownership. In 1957, Samuel Santay, the father of defendant Thomas Santay, and Yale Newman acquired Low's interest in the Preserve and converted the property into a youth summer camp. Santay and Newman conveyed their interest in the property to Camp Pocono Ridge, Inc. on October 8, 1965. Twenty-two years later, on October 6, 1987, Camp Pocono Ridge, Inc. conveyed its interest in the Preserve to Camp II. The shares of Camp II are owned exclusively by the defendant Thomas Santay, his wife Edna, and Mel and Jane Wolynez.

The original Hough to Bartholomew deed contains the following relevant restrictions:

UNDER AND SUBJECT to the following restrictions and limitations which are hereby agreed to and accepted by the said grantee, for himself, his heirs and assigns, as covenants running with the land ...

FIFTH: That if at any time in the future said grantee shall desire to sell said property or any portion thereof, he shall first give to the said grantors, their heirs and assigns, an option to purchase the same at its full market value, and only in the event of the failure or refusal of the said grantors, their heirs and assigns, to exercise said option within a reasonable time after notice of such intended sale and the name and address of the intended purchasers, have been given to him or them, shall any conveyance or sale be made to any third person.

SIXTH: That said restrictions and limitations are intended for the benefit and protection of all the purchasers of any parts or portions of the land conveyed to the said William H. Hough, Jr., by said Homer L. Gilpin and wife as hereinabove recited, and they are made solely for the preservation of said land for recreation and residential purposes only and are so understood by the grantee.

The deed also conveys to the grantee "the free and common use, right and privilege of all roads and lanes in, upon and about said Wallen Paupac Preserve as passage ways in common with all the other owners and occupiers of land in said Preserve at all times hereafter forever."

The plaintiff and his family have always considered the parcel of land which is immediately adjacent to their property as a "common area". This parcel is bordered by Lot No. 6; Allen Lane, the main access road leading through the Preserve; and two lots, which like Lot No. 6, are individually owned. In addition, the McCormicks have also used other areas within the Preserve which the defendants claim are not common "roads and lanes" as stated in the original deed. It is these so-called "common areas" which are the focal point of this dispute.

In the summer of 1988, Thomas Santay caused the plaintiff's daughter-in-law to be issued a citation by the Pennsylvania State Police for criminal trespass for being in an area of the Preserve owned by Camp II, a section of the Preserve which the McCormicks have always considered part of the "common area". As a result of this incident, plaintiff filed the instant action to protect what he believes is his right to use the common areas of the preserve.

III. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when there is no genuine issue of material fact to be resolved. Fed.R.Civ.P. 56. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. The entire record must be examined in a light most favorable to the non-moving party. Continental Insurance v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). If there is no genuine issue of material fact, summary judgment may be granted to the party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a plaintiff may not merely restate the allegations of his complaint. Farmer v. Carlson, 685 F.Supp. 1335, 1339 (M.D.Pa.1988). Nor can a plaintiff rely on self-serving conclusions, unsupported by specific facts in the record. Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, 106 S.Ct. at 2552-53, 91 L.Ed.2d at 273. A plaintiff must point to concrete evidence in the record which supports each essential element of his case. Id. If the plaintiff fails to provide such evidence, then he is not entitled to a trial and the defendant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(e).

IV. DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Easement by Prescription.

In Count III of the complaint plaintiff alleges that he and his predecessors in title "have been in actual, exclusive, open, notorious, and adverse use for a continuous period in excess of 21 years" of a parcel of land immediately adjacent to Lot No. 6. Plaintiff also alleges that he and other property owners have used this land as a nature preserve and that he has acquired the right to cross-over, use and enjoy the adjacent parcel. Although not specifically stated in the complaint, this is a claim to an easement by prescription over the adjacent parcel.

An easement by prescription arises by adverse, open, continuous, notorious and uninterrupted use of land for a period of twenty-one years. Bodman v. Bodman, 456 Pa. 412, 414, 321 A.2d 910 (1974); Waltimyer v. Smith, 383 Pa.Super. 291, 294, 556 A.2d 912, 913 (1989); Burkett v. Smyder, 369 Pa.Super. 519, 522, 535 A.2d 671, 673 (1988); Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987). Necessity is not a requirement to the establishment of a prescriptive easement. Boyd v. Teeple, 460 Pa. 91, 94, 331 A.2d 433, 434 (1975). A landowner may "tack" the period of use by his predecessor in title onto his own period in order to establish continuous possession for the required twenty-one years. Lednak v. Swatsworth, 33 D & C.3d 535, 537-538 (1984). "Tacking" is only permissible, however, where privity exists between the adverse possessors by the sale of the property by each owner to his successor. Id. Finally, in order to establish continuous possession, the adverse possessor need not illustrate constant use, and instead, may establish...