Gillespie et al v. Dring et al
Filing
15
MEMORANDUM (Order to follow as separate docket entry) re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Lori Dring, Nancy Asaro.Signed by Honorable A. Richard Caputo on 10/6/15. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARJORIE M. GILLESPIE, ET AL.,
CIVIL ACTION NO. 3:15-CV-0950
Plaintiffs,
(JUDGE CAPUTO)
v.
LORI DRING AND NANCY ASARO,
Defendants.
MEMORANDUM
Presently before the Court is a Motion to Dismiss Plaintiffs’ Complaint filed by
Defendants Lori Dring and Nancy Asaro (“Defendants”) (Doc. 6). Plaintiffs seek to enforce
a Settlement Agreement entered into by the two parties to resolve a previous action, which
requires Defendants to convey an easement right to Plaintiffs over a parcel known as the
West Shore Strip. Defendants argue that they have no obligation to Plaintiffs under the
Agreement because certain conditions precedent to their obligation have not yet been
satisfied. Plaintiffs also seek an order declaring that they have the easement right based
on their status as bona fide purchasers and in the alternative, by virtue of adverse
possession.
Because this Court finds that there were no conditions precedent to
Defendants’ obligation to Plaintiffs under the Settlement Agreement, the motion to dismiss
Count I will be denied. However, because this Court finds that Plaintiffs cannot establish
that they were bona fide purchasers and because Plaintiffs have failed to adequately allege
a claim for a prescriptive easement, Defendants’ motion to dismiss the remaining claims will
be granted. Plaintiffs shall have twenty-one (21) days from the date of entry of this
Memorandum to file an Amended Complaint to properly plead their claim for a prescriptive
easement against Defendants. Otherwise, the claim will be dismissed with prejudice.
I. Background
The facts as set forth in the Complaint are as follows:
Plaintiffs and their predecessors in title identify themselves as the owners of real
property on the western shore of Lake Ariel and Mud Pond, a body of water in Lake
Township, Lackawanna County, Pennsylvania (“Lake Ariel”). Plaintiffs, hereinafter referred
to as the “West Shore Property Owners,” are all citizens of states other than New Jersey.
Defendants Lori Dring and Nancy Asaro are citizens of New Jersey. This matter has its
genesis in prior litigation adjudicated by this Court, Ariel Land Owners, Inc. v. Lori Dring &
Nancy Asaro, No. 3:01-CV-0294 (M.D. Pa.) (the “Prior Action”). The plaintiff in that litigation
was a Pennsylvania business corporation known as Ariel Land Owners (“ALO”). Dring and
Asaro were the defendants and the West Shore Property Owners were the counterclaim
defendants. Before the completion of trial in the Prior Action, the parties resolved some of
their issues through a Settlement Agreement that imposed requirements on all of the parties
involved. (See Doc. 6-1, Defs.’ Ex. A, Settlement Agreement.)
In the Prior Action, ALO sought a determination that ALO owned certain land,
including land covered by the waters of Lake Ariel. Defendants Lori Dring and Nancy Asaro
filed an Answer and Counterclaim, followed by a Third Amended Counterclaim. Count V
of the Third Amended Counterclaim was asserted against ALO and the West Shore
Property Owners.1 Defendants alleged that since they own a narrow strip of land between
the land of the cottagers along the western shore and the waters of Lake Ariel (the “West
Shore Strip”), the West Shore Property Owners (and ALO) have no right to cross this strip
to reach the waters of Lake Ariel or to use this strip of land for boat houses, docks, or other
1
A similar action was filed in this Court by John P. Diefenderfer and Heidi B.
Diefenderfer, asserting similar claims against Defendants Lori Dring and Nancy
Asaro. See Diefenderfer v. Dring & Asaro, No. 3:15-CV-0500 (M.D. Pa.).
2
purposes. The claims against the West Shore Property Owners were resolved in the
context of the prior federal litigation pursuant to the terms of the Settlement Agreement.
Other issues were resolved at trial, which commenced on August 14, 2006, and was
completed on August 29, 2006.
Section 6 of the Settlement Agreement is a “mutual release” provision, which
requires both Plaintiffs and Defendants in this action to release each other from any and all
claims arising out of or relating to the Prior Action and the West Shore Strip:
6.
The Property Owners [Plaintiffs] on the one hand; and Dring/Asaro on
the other hand, do hereby release the other party and such party’s
predecessors in title, successors and assigns from any and all claims
arising out of or relating to the Lawsuit and the Western Shore Strip
including but not limited to claims for compensatory damages, punitive
damages, trespass, attorneys fees, or costs of court.
(Doc. 6-1, Defs.’ Ex. A, Settlement Agreement § 6.)
However, Plaintiffs claim that Defendants breached the Settlement Agreement by
failing to provide Plaintiffs an easement right over a portion of the West Shore Strip
designated as the “North Strip” pursuant to Section 3 of the 2006 Settlement Agreement.
Section 3 of the Settlement Agreement reads, in relevant part, as follows:
3.
Dring/Asaro agree to execute and deliver to ALO a quit claim deed of
all of their right, title and interest in and to the North Strip, subject to a
permanent easement to be granted in favor of the Property Owners
[Plaintiffs] for access over the North Strip and to maintain docks and/or
boathouses on the North Strip. This permanent easement is not
intended to grant the Property Owners [Plaintiffs] any rights in or over
any lands owned by ALO, or any interest in Lake Ariel owned by ALO.
(Id. § 3 (emphasis added).)
Two other provisions of the Settlement Agreement are also worth noting. First,
Section 5 of the Settlement Agreement provides that ALO shall execute and deliver four (4)
lake rights and a permanent easement to Defendants in recordable form. Section 5 reads,
in relevant part, as follows:
5.
ALO shall execute and deliver to Dring/Asaro instruments of
conveyance, in recordable form, which transfer to Dring/Asaro the
following:
3
(a) Four (4) lake rights which will permit Dring/Asaro to construct and
maintain four (4) docks along and into the water at the shore line of the
Swingle Tract located within Mud Pond to be used for the launching and
docketing of watercraft, however these lake rights will not permit
Motorized Boats (as hereafter defined) to be operated on Mud Pond or
in the channel, or trolling motors to be operated in the channel.
(b) A permanent easement over the water and a parcel of land at the
eastern shore of Lake Ariel, at the end of Cardinal Lane (the “Dock
Area”) described as a rectangular shape of approximately thirty (30')
feet in width along the shoreline, and two hundred (200') feet in depth
above the shoreline.
(Id. § 5.) Second, Section 15 provides for a mutual exchange of all deeds referenced in the
Settlement Agreement:
15.
All Deeds and other instruments referred to herein shall be exchanged
by the parties at a mutually convenience [sic] time within 30 days after
obtaining the subdivision approval set forth in Section 2 hereof.
(Id. § 15.)
Count I of Plaintiffs’ Complaint seeks damages and specific enforcement of the
Settlement Agreement, including an order directing Defendants to grant Plaintiffs the
easement right outlined in Section 3 of the Settlement Agreement. Count II seeks the same
relief pursuant to a promissory estoppel theory. Count III seeks declaratory relief in the form
of an order declaring that Plaintiffs have an easement right to use the West Shore Strip
pursuant to their deeds from their predecessors in title, their leases from the owners of Lake
Ariel, and their status as bona fide purchasers. Count IV seeks declaratory relief in the form
of an order declaring that Plaintiffs have a prescriptive easement over the West Shore Strip
by virtue of the doctrine of adverse possession.
This Court has jurisdiction under 28 U.S.C. § 1332(a), diversity of citizenship.
Therefore, this Court will apply the law of Pennsylvania. Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938).
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
4
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden
of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed
factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he touchstone of the pleading
standard is plausability.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’” each necessary element.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
5
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
“When there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998
F.2d at 1196. The Court need not assume that the plaintiff can prove facts that were not
alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263
& n.13 (3d Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions.’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
III. Discussion
Defendants advance a series of arguments seeking dismissal of the Complaint in
its entirety. For the reasons that follow, Defendants’ motion to dismiss will be granted in
part and denied in part.
A.
Count I - Specific Performance of the Settlement Agreement
Count I of the Complaint seeks specific enforcement of the Settlement
Agreement, including an order directing Defendants to grant Plaintiffs the easement right
referenced in Section 3 of the Settlement Agreement. Section 3 provides, in relevant
part, as follows:
3.
Dring/Asaro agree to execute and deliver to ALO a quit claim deed of
all of their right, title and interest in and to the North Strip, subject to
a permanent easement to be granted in favor of the Property Owners
[Plaintiffs] for access over the North Strip and to maintain docks
and/or boathouses on the North Strip. . . .
(Doc. 6-1, Defs.’ Ex. A, Settlement Agreement, § 3 (emphasis added).)
6
Defendants argue that Plaintiffs have not alleged the satisfaction of conditions
precedent to Defendants’ obligation under this provision. Specifically, Defendants argue
that their obligation to execute and deliver to ALO a quitclaim deed subject to an
easement for Plaintiffs is conditioned upon ALO’s obligation to execute and deliver to
Defendants instruments of conveyance transferring certain lake rights and easements to
Defendants, as set forth in Section 5 of the Settlement Agreement, which provides, in
relevant part, as follows:
5.
ALO shall execute and deliver to Dring/Asaro instruments of
conveyance, in recordable form, which transfer to Dring/Asaro the
following:
(a) Four (4) lake rights which will permit Dring/Asaro to construct and
maintain four (4) docks along and into the water at the shore line of
the Swingle Tract located within Mud Pond . . .
(b) A permanent easement over the water and a parcel of land at the
eastern shore of Lake Ariel, at the end of Cardinal Lane (the “Dock
Area”) . . .
(Id. § 5.) In support of this argument, Defendants cite to Section 15 of the Settlement
Agreement, which provides for the mutual exchange of all deeds referenced in the
Settlement Agreement:
15.
All Deeds and other instruments referred to herein shall be
exchanged by the parties at a mutually convenience [sic] time within
30 days after obtaining the subdivision approval set forth in Section 2
hereof.
(Id. § 15.) Defendants argue that Section 15's requirement that all deeds be exchanged
by the parties at a mutually convenient time shows that ALO’s obligation to convey
certain rights to Defendants was a condition precedent to Defendants’ obligation to
Plaintiffs, and since ALO never conveyed certain deeds to Defendants, then Defendants
need not convey any deed to ALO subject to an easement for Plaintiffs. Defendants
argue that because Plaintiffs failed to allege the satisfaction of the conditions in Section
5, they have failed to allege facts sufficient to demonstrate any obligation by Defendants
7
to Plaintiffs pursuant to Section 3.
A condition is defined as an “act or event which must occur before a duty of
performance under an existing contract becomes absolute.” Castle v. Cohen, 840 F.2d
173, 177 (3d Cir. 1988) (citation and internal quotation marks omitted). If a contract
contains a condition precedent, then the condition precedent must occur before a duty to
perform under the contract arises. Acme Markets, Inc. v. Fed. Armored Exp., Inc., 437
Pa. Super. 41, 46 (1994). Although the parties to a contract need not utilize any
particular words to create a condition precedent, an act or event designated in a contract
will not be construed as constituting one unless that clearly appears to have been the
parties’ intention. Id. at 47; see also Castle, 840 F.2d at 177 (explaining that under
Pennsylvania law, a condition precedent must be expressed in clear language or it will
be construed as a promise) (citing Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d
1001, 1016 (3d Cir. 1980)); Shook of W. Va., Inc. v. York City Sewer Auth., 756 F. Supp.
848, 851, 854 (M.D. Pa. 1991) (“[L]anguage in a contract not clearly identified as a
condition precedent is presumed not to be one. . . . an act or event in a contract must
not be construed as a condition precedent unless it is expressly made so or unless it
clearly appears to have been the intention of the parties.”) (citing Mellon Bank N.A., 619
F.2d at 1016). Because the failure to comply with a condition precedent works a
forfeiture, such conditions are disfavored. Castle, 840 F.2d at 177 (citing Restatement
(Second) of Contracts § 227 comment b (1981)).
Here, there is no clear language indicating that there is a condition precedent that
must be satisfied in order for Defendants to convey a quitclaim deed to ALO subject to
an easement in favor of Plaintiffs. It is unclear as to whether the requirement that ALO
convey certain lake rights and easements to Defendants as set forth in the Settlement
Agreement is a condition precedent to Defendants’ obligations to convey to ALO a
quitclaim deed to the North Strip subject to a permanent easement to be granted in favor
of Plaintiffs. First, there is no language in Section 3 that makes clear that Defendants’
8
obligation to provide an easement for Plaintiffs is contingent upon any of ALO’s
obligations to Defendants in the Settlement Agreement. Although Section 15 of the
Settlement Agreement requiring the mutual exchange of all deeds could be construed to
mean that Defendants’ obligation to convey rights to ALO subject to an easement for
Plaintiffs is conditioned upon ALO’s obligation to convey certain rights to Defendants, it
is not clear that was the intent of the parties. There is no language in Section 15 clearly
noting that any exchange is conditioned upon any other exchange. Nor is there any
language anywhere else in the Settlement Agreement explaining that Defendants’
obligation under Section 3 is conditioned upon ALO’s obligation to Defendants in Section
5. To be sure, Section 15 could reasonably be read as simply making clear that the
exchange of deeds must take place “within 30 days after obtaining the subdivision
approval set forth in Section 2.” (Doc. 4-2, Pls.’ Ex. B, Settlement Agreement § 15.)
Section 15 could also reasonably be read as simply making clear that each time an
exchange of deeds takes place, it must take place at a mutually convenient time for all
parties. Therefore, because it is not clear that Defendants’ obligation to Plaintiffs in
Section 3 is conditioned upon ALO satisfying its obligation to Defendants in Section 5,
ALO’s satisfaction of its obligations to Defendants will not be construed as a condition
precedent to Defendants’ obligations to Plaintiffs. See Castle, 840 F.2d at 177.
Plaintiffs also argue that even if Defendants’ obligation to Plaintiffs under Section
3 of the Settlement Agreement was conditioned upon ALO’s obligation to Defendants
under Section 5, the satisfaction of that condition may be excused when the nonoccurrence of the condition precedent would cause a disproportionate forfeiture. See
Acme Markets, Inc. v. Fed. Armored Exp., Inc., 437 Pa. Super. 41, 48 (1994) (explaining
that to the extent that the non-occurrence of a condition precedent would cause a
disproportionate forfeiture, a court may excuse the non-occurrence of a condition, unless
its occurrence was a material part of the agreed exchange). However, because this
Court finds that ALO’s obligation to Defendants under Section 5 was not a condition
precedent to Defendants’ obligation to Plaintiffs under Section 3, this Court need not
9
address this argument.
Defendants further argue that they are excused from performing under the
Settlement Agreement because there has been a material breach of the Settlement
Agreement which excuses them from further performance or liability. See Berkowitz v.
Mayflower Secs., Inc., 455 Pa. 531, 534-35 (1974) (explaining that the plaintiff’s material
breach of the contract relieved the defendant from any duty thereunder). Defendants
argue that the failure of ALO to perform under Section 5 of the Agreement, which
requires ALO to convey certain lake rights and easements to Defendants, excuses any
obligation that Defendants might otherwise have to convey to ALO a quitclaim deed
subject to a permanent easement in favor of Plaintiffs. However, Plaintiffs have fully
performed under the Agreement by releasing Defendants from any and all claims arising
out of or relating to the Prior Action and the West Shore Strip. (See Doc. 6-1, Defs.’ Ex.
A, Settlement Agreement § 6.) There has been no material breach of the agreement by
Plaintiffs that would excuse Defendants from performance to them. The only material
breach Defendants have suggested was by ALO, not Plaintiffs. Therefore, Defendants
are not excused from performing their obligation to Plaintiffs under Section 3 of the
Settlement Agreement.
Because there were no conditions precedent to Defendants’ obligation to
Plaintiffs under the Settlement Agreement and because there has been no material
breach of the Settlement Agreement by Plaintiffs, Defendants’ motion to dismiss Count I
will be denied.
B.
Count II - Promissory Estoppel and Detrimental Reliance
Count II seeks the same relief as Count I but is pled in the alternative, pursuant to
a promissory estoppel theory. A cause of action under promissory estoppel arises when
a party relies to his detriment on the intentional or negligent representations of another
party, so that in order to prevent the relying party from being harmed, the inducing party
is estopped from showing that the facts are not as the relying party understood them to
be. Carlson v. Arnot-Ogden Mem’l Hosp., 918 F.2d 411, 416 (3d Cir. 1990); Constar,
10
Inc. v. Nat’l Distrib. Ctrs., 101 F. Supp. 2d 319, 323 (E.D. Pa. 2000) (citing Thomas v.
E.B. Jermyn Lodge No. 2, 693 A.2d 974, 977 (Pa. Super. 1997)). To maintain an action
for promissory estoppel, the plaintiff must show that: (1) the promissor made a promise
that (s)he should have reasonably expected to induce action or forbearance on the part
of the promisee; (2) the promisee actually took action or refrained from taking action in
reliance on the promise; and (3) injustice can be avoided only by enforcing the promise.
Crouse v. Cyclops Indus., 506 Pa. 394, 403 (2000). Under Pennsylvania law, a
promissory estoppel claim can only exist in the absence of an enforceable contract.
Iverson Baking Co. v. Weston Foods, Ltd., 874 F. Supp. 96, 102 (E.D. Pa. 1995); see
also MDNet, Inc. v. Pharmacia Corp., 147 F. App’x 239, 244 (3d Cir. 2005) (“Promissory
estoppel is applied to enforce a promise not supported by consideration where there is
no binding contract.”) (citing Bethlehem Steel Corp. v. Litton Indus., Inc., 507 Pa. 88,
110-11 (1985)); Carlson v. Arnot-Ogden Mem’l Hosp., 918 F.2d at 416 (explaining that
promissory estoppel is invoked in situations “where the formal requirements of contract
formation have not been satisfied” and finding that relief under the promissory estoppel
claim was unwarranted in light of the court’s finding that the parties formed an
enforceable contract); Kump v. State Farm Fire & Casualty Co., No. 3:12-CV-72, 2012
WL 1123897, at *3 (M.D. Pa. Apr. 4, 2012) (explaining that “where an enforceable
contract exists, courts have found that applying the doctrine of promissory estoppel
would be inappropriate” and therefore dismissing promissory estoppel claim because the
dispute was limited only to the contractual obligations of the two parties); Tucci v. CP
Kelco ApS, No. 02-1765, 2002 WL 31261054, at *6 & *6 n.1 (E.D. Pa. Oct. 10, 2002)
(dismissing promissory estoppel claim even though it was pled in the alternative to the
breach of contract claim because a valid contract existed between the two parties);
Constar, 101 F. Supp. 2d at 323 (dismissing promissory estoppel claim because the
defendants admitted that the parties entered into an express contract and did not claim
that it was unenforceable); Hedden v. Lupinsky, 405 Pa. 609, 612 (Pa. 1962) (explaining
that the plaintiffs’ promissory estoppel claim was without merit because the question of
11
the defendant’s liability could be decided properly and finally on contractual principles).
Although promissory estoppel is inapplicable in the face of an express contract, it
may be pled in the alternative to a breach of contract claim. Kump, 2012 WL 1123897,
at *3. However, here, dismissal of Plaintiffs’ promissory estoppel claim is appropriate
because both parties acknowledge that a valid contract (i.e., the Settlement Agreement)
was in effect between them. Plaintiffs base the entirety of their promissory estoppel
claim on obligations outlined in the Settlement Agreement and Defendants do not
dispute the validity of this Agreement. See Constar, 101 F. Supp. 2d 319, 323 (E.D. Pa.
2000) (dismissing promissory estoppel claim in part because the defendant admitted
that the parties entered into an express contract and did not claim that it was
enforceable). Rather, Defendants simply argue that their obligation under the
Agreement has not yet arisen and in the alternative, that there has been a material
breach of the Agreement that excuses their performance. Therefore, there is no dispute
over whether a valid contract exists and this dispute may be resolved on traditional
contractual principles. Defendants’ motion to dismiss Count II of the Complaint will be
granted.
C.
Count III - Plaintiffs as Bona Fide Purchasers
Count III seeks declaratory relief in the form of an Order declaring that Plaintiffs
have easement rights to use the West Shore Strip pursuant to their deeds based on
their status as bona fide purchasers. Defendants’ motion to dismiss this claim will be
granted because Plaintiffs have failed to demonstrate that they were bona fide
purchasers.
To be deemed a bona fide purchaser, one must have no notice of the outstanding
rights of others. Poffenberger v. Goldstein, 776 A.2d 1037, 1042 (Pa. Cmwlth. 2001)
(citation omitted). However, the recording of a deed serves to provide public notice in
whom the title resides. Id. (citation omitted). Even Plaintiffs’ brief in opposition to
Defendants’ motion to dismiss acknowledges the creation of the West Shore Strip by
deeds recorded in Wayne County during the period from December 13, 1859, through
12
January 21, 1862. Plaintiffs’ Complaint contains no allegations that they or their
predecessors in interest obtained their rights prior to 1862 and accordingly, they were on
notice of the reservation of the West Shore Strip and therefore, cannot be deemed bona
fide purchasers. Defendants’ motion to dismiss Count III will be granted.
D.
Count IV - Prescriptive Easement
Count IV seeks declaratory relief in the form of an order declaring that Plaintiffs
have a prescriptive easement over the West Shore Strip by virtue of the doctrine of
adverse possession. A prescriptive easement “is a right to use another’s property which
is not inconsistent with the owner’s rights and which is acquired by a use that is open,
notorious, and uninterrupted for a period of 21 years.” McNaughton Props., L.P. v. Barr,
981 A.2d 222, 225 n.2 (Pa. Super. 2009); see also McCormick v. Camp Pocono Ridge,
Inc. II, 781 F. Supp. 328, 332 (M.D. Pa. 1991) (“An easement by prescription arises by
adverse, open, continuous, notorious and uninterrupted use of land for a period of
twenty-one years.”). The burden of proving a prescriptive easement is on the party
seeking to enforce it, Keefer v. Jones, 467 Pa. Super. 544, 548 (1976), and clear and
positive evidence is required to prove an easement by prescription, Adshead v. Sprung,
248 Pa. Super. 253, 256 (1977). A finding of adverse possession is an extraordinary
remedy. Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008).
In order to satisfy the continuous possession for twenty-one (21) years
requirement, a landowner may “tack” the period of use by her predecessor in title on to
her own period. McCormick, 781 F. Supp. at 332. “Tacking” is only permissible,
however, where privity exists between the adverse possessors. Id. “Privity” denotes
merely a “succession of relationship to the same thing.” Lednak v. Swatsworth, 33 Pa.
D. & C. 3d 535, 537 (Pa. Com. Pl. 1984). The successive occupants must claim through
their predecessors, and not independently, to make the holding continuous for the
required period. Id. at 537-38. An adverse possession begun and continued for a time
must be transferred to a successor in some lawful manner in order to be available to the
successor. Id. (citing Gerhart v. Hilsenbeck, 164 Pa. Super. 85, 89 (1949)).
13
Here, there is only one allegation in the Complaint that supports Plaintiffs’ claim
for a prescriptive easement. This allegation, in its entirety, reads as follows:
50.
The West Shore Property Owners, and their predecessors in title as
the result of tacking, have occupied and possessed the West Shore
Strip allegedly conveyed to Dring and Asaro pursuant to the
Quitclaim Deeds in an open, notorious, visible, hostile and
continuous manner, including but limited to use for access to the
Lake, a beach, boathouse, dock and related facilities, for a period in
excess of 21 years and therefore hold an easement by prescription
by virtue of the doctrine of adverse possession.
(Doc. 1, Compl. ¶ 50.) This conclusory allegation fails to adequately plead a claim for a
prescriptive easement. Plaintiffs have failed to allege any specific facts demonstrating
their open, notorious, visible, hostile, and continuous use of the property in question.
They have also failed to allege any specific facts demonstrating how their predecessors
in title have used the property. Although detailed factual allegations are not required,
see Twombly, 550 U.S. at 555, mere conclusory statements will not survive a motion to
dismiss, Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). Here, the Complaint
does not include any factual allegations to support their conclusory allegation that
Plaintiffs and their predecessors in title have “occupied and possessed the West Shore
Strip . . . in an open, notorious, visible, hostile and continuous manner.” (See Doc. 1,
Compl. ¶ 50.) This fails to give Defendants “fair notice” of the grounds upon which
Plaintiffs’ claim for a prescriptive easements rests. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Therefore, Defendants’ motion to dismiss this claim will be
granted. However, Plaintiffs shall have twenty-one (21) days from the date of entry of
this Memorandum to file an Amended Complaint to properly plead their claim for a
prescriptive easement. Otherwise, the claim will be dismissed with prejudice.
14
III. Conclusion
For the above stated reasons, the motion to dismiss filed by Defendants Lori Dring
and Nancy Asaro will be granted in part and denied in part.
An appropriate order follows.
October 6, 2015
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?