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Pa.R.C.P.

#211 ORAL ARGUMENT DEMANDED


Quinn Law Office
By: Anthony Bernard Quinn, Esquire
Attorney Reg. #26931
Suite 520 The Bellevue
200 S. Broad Street
Philadelphia, PA 19102
Telephone: 215-731-0340
Attorney for plaintiff

Filed and Attested by


PROTHONOTARY
11 JUN 2015 05:16 pm
K. EDWARDS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


COURT OF COMMON PLEAS OF PHILADELPHIA
CIVIL TRIAL DIVISION
Railroad Recovery Inc.,
a Pennsylvania Corporation,

plaintiff

July Term 2013

v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,

defendants :

#03647

PLAINTIFFS SUGGESTED FINDINGS OF FACT


CONCLUSIONS OF LAW AND PROPOSED ORDER

Plaintiff, by counsel herewith, pursuant to the March 18, 2015, court order,

herewith submits plaintiffs suggested findings of fact, conclusions of law and


proposed order.
Respectfully submitted,

Anthony Bernard Quinn


Attorney for plaintiff

Case ID: 130703647

PLAINTIFFS SUGGESTED FINDINGS OF FACT


I. Plaintiff's Abstract Of Title.
1. Exhibit D89 is the Joint (sic) Stipulation of the parties relevant
documents.
2. Exhibit D89, 5 agrees the abstract of plaintiffs title is,
i) The Sally N. Dickinson deed to the North Pennsylvania Rail Road
Company, and Survey of ground occupied by North Pennsylvania R. R. Co.
through the property of Sarah Dickinson Containing 9 A[cres] 57 Perches
Scale 200 feet to an Inch, dated January 12, 1854, and recorded on
January 23, 1854, at Deed Book TH-120-536& [hereinafter, the 1854
Dickinson Deed]. [Exhibits P2, P1, P1A, P58, D80.]
ii) The North Pennsylvania Rail Road Company [hereinafter, the
North Penn] deed to the Consolidated Rail Corporation [hereinafter,
Conrail], dated March 29, 1976, and recorded May 11, 1979, at deed book
DCC-1948-195&c [hereinafter, the Conrail deed]. [Exhibits P3, P3A.]
iii) The Consolidated Rail Corporation deed to Railroad Recovery
Inc., dated January 25, 2012, and recorded February 2, 2012, at Document
Id. 52442606 [hereinafter, the Railroad Recovery deed]. [Exhibits P4,
P4A, P23, D2.]
3. Exhibits P1 and P1A include a typewritten copy of the 1854 Dickinson
Deed, entitled Abstract of Deed Sally Norris Dickinson to North Pennsylvania
Rail Road Company and a document entitled Copy of Plan recorded with Deed
Book T.H. No. 120 P. 536. [Exhibits P1, P1A.]
2

Case ID: 130703647

4. Exhibit P2 is a copy of the City of Philadelphia Department of Records


deed book TH 120, beginning at page 536, being the handwritten, transcribed and
recorded copy of the original deed from Sally N. Dickinson to the North
Pennsylvania Rail Road Company, dated January 12, 1854, and recorded on
January 23, 1854. [Exhibits P2, P1, P1A, P58, D80.]
5. Exhibit P2 includes the Survey of ground occupied by North
Pennsylvania R. R. Co. through the property of Sarah Dickinson Containing
9A[cres] 57 Perches Scale 200 feet to an Inch, recorded at deed book
TH-120-536&. [Exhibits P2, P1, P1A, P58, D80.]
6. Plaintiffs title originates from the said 1854 Dickinson deed to the North
Pennsylvania Rail Road Company, dated January 12, 1854, recorded on January
23, 1854. [Exhibits P2, P1, P1A, P58, D80.]
7. John Enright, Esquire, testified that he is employed by the Consolidated
Rail Corporation as the,
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A. Director of industrial development


and associate general counsel.

[Enright, p.7.]
8. As such, Mr. Enright is responsible for Conrail title issues.
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4
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A. Mainly transactional work supporting


the real estate department. Preparing
purchase of sale agreements, leases, deeds in
connection with property that Conrail owns and
leases and sells to third parties.

[Enright, p.8.]
9. The North Penn conveyed its line of railroad to Conrail by deed dated
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Case ID: 130703647

March 29, 1976, and recorded May 11, 1979 at deed book 1948 page195&.
[Exhibits P3, P3A; Enright, at pp. 15, ln. 20- p. 16, ln. 9.]
10. John Enright, Esquire, testified one of the lines of railroad conveyed by
the North Penn to Conrail was known as line code 0301. [Exhibits P3, P3A;
Enright, at pp. 17, ll. 17-19.]
11. John Enright, Esquire, the Conrail executive, testified the line of
railroad known as line code 0301 began near Willow Street extending to Wayne
Avenue. [Exhibits P3, P3A; Enright, at pp. 18, ll. 6-18.]
12. Plaintiff entered into an agreement of sale with Conrail for the
purchase of a .6 mile strip of the former line code 0301.
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Q. Did there come a time when Conrail


and when the Consolidated Rail Corporation did
sell the 0.6 mile strip of railroad roadbed
that's indicated in this December 3,1984
decision and order, which was previously
marked as Plaintiff's Exhibit-14?
A. Yes.
Q. Did you have any involvement in
preparing this Quitclaim Deed of Confirmation,
which has been marked as Plaintiff's Exhibit
4?
A. Yes. I did have involvement.

[P4, P4A; Enright, p.44.]


13. The .6 mile strip of former rail roadbed was titled in plaintiff by a
January 25, 2012, deed from Conrail, recorded February 2, 2012. [Exhibits P4,
P4A, D2.]
14. There is no record that a closing or deed delivery took place in 1994.
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Q. Are there any documents that you


would become aware of in Conrail's records
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Case ID: 130703647

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that showed that a closing or delivery of the


1994 deed had taken place?
A. After my previous deposition, I did,
per a request, look for a closing report,
which I was not able to locate.

[Enright, p.51.]
15. The 1854 Dickinson deed and the 1976 Conrail deed were recorded
first in time to the 2003 and 2004 Sixth Street Management Corp. and the
Giunup and Pettacio deeds.
II. Identification of plaintiffs property.
16. The Joint (sic) Stipulation agrees the following maps, plans and
surveys concern the subject properties and are matters of public record [Exhibit
D89],
i) 1861 plan and survey of the Crosia Dore plantation, recorded at
deed book ACH-28-110&. [Exhibits D76.]
ii) 1895 Walter Brinton survey for Thomas J. Martin. [Exhibit
P30.]
iii) 1902 Walter Brinton survey for James Barker. [Exhibit P31.]
iv) 1922 Walter Brinton survey for James Barker, Inc. [Exhibit
P32.]
v) 1929 Jos. F. Delany survey for Barber Hartman. [Exhibit P34.]
vi) 1942 Jos. F. Delany survey for Alexander Young. [Exhibit P35.]
vii) 1964 Wm. F. Bispels, Jr. survey for Tony DePaul & Sons.
[Exhibit P36.]
viii) North Pennsylvania Rail Road Co. map #41 (ancient). [Exhibit
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Case ID: 130703647

P5.]
ix) North Pennsylvania Rail Road Co. map #41. [Exhibit P6.]
x) North Pennsylvania Rail Road Co. map #42. [Exhibit P7.]
xi) Map Conrail Case #69717 #1. [Exhibit P4, P4A, P23, D2,
attachment.]
xii) City Plan 205. [Exhibit P29.]
xiii) City Registry Map 133N6 (1 page). [Exhibit P19, P45.]
xiv) City Registry Map 85N16 (1 page). [Exhibit P46.]
xv) City Registry Map 121N24 (1 page). [Exhibit P47.]
17. Defendants responses to requests for admissions makes the following
statement,
A1. Inspection of the [1854] Dickinson deed by Defendants is
insufficient, upon reasonable inquiry, to enable an admission or
denial as to whether this deed purported to convey the disputed
property because the map or plan delineating the property
granted by Ms. Dickinson, referenced in the deed as being hereunto
annexed, is not annexed to the deed on file with the Department of
Records.
[Exhibit P24.]
18. The map or plan delineating the property granted by Ms. Dickinson
by the 1854 Dickinson deed is recorded at deed book TH-120-536&. [Exhibits
P20, D80.]
19. The aforesaid statement by defendants in response to requests for
admissions #A1, is false, and made in bad faith. [Exhibits P20, P24, D80.]
20. Defendants responses to requests for admissions makes the following
statement,
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Case ID: 130703647

B1. It is denied that the [Stantec] deed plot is correct or that it


otherwise supports Plaintiffs claimed interest in the disputed
property.
[Exhibit P24.]
21. Roy G. Strauch PLS filed a report for the defense, which stated his
opinion as follows,
The instrument in question is the legal description for the
Indenture between Sally Dickinson to North Pennsylvania Railroad
Company, dated January 1854 and the subsequent transfers to the
Consolidated Rail Corporation.
It is my professional opinion that the land described in the
Indenture instrument is in whole or part, the same land described in
the Quitclaim Deed of Confirmation between Consolidated Rail
Corporation and Railroad Recovery, Inc.
[Exhibit D30.]
22. The aforesaid statement by defendants in response to requests for
admissions #B1, is false, and made in bad faith.
23. Defendants responses to requests for admissions makes the following
statement,
B2. It is denied that the [Stantec] legal description is correct or
that it otherwise supports Plaintiffs claimed interest in the disputed
property.
[Exhibit P24.]
24. Defendants consulting surveyor, Roy Stauch, PLS testified consistent
with his report. [Exhibit D30.]
25. The aforesaid statement by defendants in response to requests for
admissions #B2, is false, and made in bad faith.
26. Defendants responses to requests for admissions makes the following
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Case ID: 130703647

statement,
C1. It is denied that Plaintiff has any current interest in the disputed
property or that Plaintiff has set forth a valid abstract of title
thereto.
[Exhibit P24.]
27. Plaintiffs valid abstract of title is set forth in 2-6, above, and the
Joint (sic) Stipulation at 5 agrees the abstract of plaintiffs title is as set forth in
2, above. [Exhibit D89.]
28. The aforesaid statement by defendants in response to requests for
admissions #C1, is false, and made in bad faith.
29. Defendants responses to requests for admissions makes the following
statement,
C2. Upon reasonable inquiry, Defendants are without knowledge or
information to form a belief as to whether the [Stantec] documents
identified in paragraph B accurately represent the subject
boundaries of the stated Consolidated Rail Corporation property.
[Exhibit P24.]
30. Defendants consulting surveyor, Roy Stauch, PLS testified consistent
with his report. [Exhibit D30.]
31. The aforesaid statement by defendants in response to requests for
admissions #C2, is false, and made in bad faith.
32. Defendants responses to requests for admissions makes the following
statement,
C3. Upon reasonable inquiry, Defendants are without knowledge or
information to form a belief as to whether the [Stantec] documents
identified in paragraph B accurately represent the subject metes
and bounds description of the stated Consolidated Rail Corporation
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Case ID: 130703647

property.
[Exhibit P24.]
33. Defendants consulting surveyor, Roy Stauch, PLS testified consistent
with his report. [Exhibit D30.]
34. The aforesaid statement by defendants in response to requests for
admissions #C3, is false, and made in bad faith.
35. The Conrail rail roadbed conveyed to plaintiff lies to the east of
properties owned by Sixth Street Management Corp. and John Giunup, and
Michael Pettacio.
36. The issue in this case is whether the defendants, whose properties are
west of the rail roadbed, own the rail roadbed west of the center line of the
railroad.
37. John Enright, Esquire, the Conrail executive, testified the strip of land
sold to plaintiff is referenced by case #69717.
22
Q. And there is a case plan attached,
23
which appears to be the eighth page before the
24
end, which indicates Case No. 69717; do you
1
see that?
2
A. Yes.
3
Q. It's two pages, sheets one and two?
4
A. Correct.
***.
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Q. How are these case plans of sheets
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one and two and two of two, where do they come
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from?
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A. They would have been prepared by
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Conrail at the time of the original sale.
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Q. What are they prepared from, if you
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know?
19
A. Evaluation maps (sic).
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Q. What are evaluation (sic) maps, sir?
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Case ID: 130703647

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A. Evaluation (sic) maps, back in 1916 to 1918


time frame, the Federal Government required
all railroads in the United States to prepare
maps of their respective rights of way and
they're called evaluation (sic) maps.
Q. Are these maps that are maintained by
Conrail in the regular course if its business?
A. Yes.

[P4, P4A; Enright, pp.46-48.]


38. Case #69717 is a two page, Plan of Property to be Conveyed by
Consolidated Rail Corporation to Railroad Recovery, Inc., appended as an
attachment to the Railroad Recovery deed. [Exhibits P4, P4A.]
39. The Railroad Recovery deed conveyed a strip of former rail roadbed,
according to case #69717, beginning at mile post 4.2, being the south side of the
Cayuga Street bridge and ending at mile post 4.8, being the north side of the
Rockland Street bridge in North Philadelphia. [Exhibits P4, P4A.]
40. The Stantec plan of property correctly states the property Conrail
intended to convey to plaintiff.
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Q. Attached to the 2012 Quitclaim Deed


as Exhibit B is a document with a heading,
Stantac Consulting Services, Inc. It's
stating a description of the former North
Pennsylvania Railroad right of way. Is
Exhibit B reflective of what was intended to
be conveyed by Conrail?
A. Yes. We did an analysis of the
description, a meets and bounds description,
compared it against the case plan and
determined that it matched up so to speak.
Q. Attached as Exhibit C to the 2012
Deed is another map, do you know what that map
represents?
A. I believe it's a map that was
prepared by Stantac that goes along with the
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Case ID: 130703647

4
5
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meets and bounds description.


Q. Is this map intended to reflect the
property that was being conveyed by Conrail to
Railroad Recovery?
A. I believe so.

[Enright, pp.74-75.]
41. Exhibit P5 is a North Penn section 8 plan of property of the North Penn
rail roadbed through lands of Sally Norris Dickinson.
42. Exhibit P6 is a North Penn quarter section plan of property.
43. Exhibit P7 is a North Penn quarter section plan of property.
44. Exhibit D36 is a 1964 City Survey plan of 4525 N. 6th Street made for
Tony DePaul & Sons.
45. Charles Karat is a licensed professional land surveyor, employed in the
industry since 1988, having been first licensed in 1999 in Pennsylvania. in
addition, Mr. Karat is licensed in Utah, Delaware, Maryland, Virginia and the
District of Columbia. [P25; N.T. 3/12, 2015, p 11 ln. 22 - p. 12 ln. 14.]
46. At the time of first licensure in 1988, Charles Karat had obtained ten
years prior field and office experience. [P25; N.T. 3/12, 2015, p 12 ln. 24 - p. 13 ln.
4.]
47. The 1854 Dickinson deed described the strip of land conveyed as
follows,
CONTAINING nine acres and fifty seven perches as the said strip
or piece of land is delineated and laid down in the map or plan
thereof here unto annexed (which is to be taken as part of this
Indenture) and of keeping, using and maintaining thereon the
Railroad of the party of the Second part at all times hereafter
forever.
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Case ID: 130703647

48. The 1854 Dickinson deed referenced an annexed map describing by


bearings a strip of land commencing at Nicetown Lane and traversing north to
the former Wingohocking Creek. [P2; N.T. 3/12, 2015, p 25 ll. 7-18.]
49. Charles Karat testified that by use of city maps, he was able to identify
the location of the former Wingohocking Creek.
22 Q. And if you could point that out to the Court
23 on Plaintiff's Exhibit 29.
24 A. The creek enters -- well, you will notice that
25 on that exhibit we have the word Annsbury for
2 Annsbury Street, and the creek is flowing right down
3 the present location of Annsbury Creek and it
4 crosses under the center line of the railroad down
5 in the corner of that exhibit. So you will see
6 Fairhill Street, Annsbury Street, and then you will
7 also see the location of the railroad and the
8 location of the creek crossing.
[P29; N.T. 3/12, 2015, p 25-26.]
50. Charles Karat testified that the former Wingohocking Creek intersected
with the North Penn railroad at West Annsbury Street.
25 Q. Yes. Mr. Karat, if we were to follow the
2 curved lines as they go west, and I am assuming that
3 the creek runs to the west at least towards the
4 Delaware River, do you see an indication that on the
5 map that we're referring to that the curve line is
6 referring to the creek?
7 A. Yes. As I follow this to the left we'll cross
8 Roosevelt Boulevard, and then as I get out to 11th
9 Street there is the wording creek on the plan. If I
10 continue -11
THE COURT: Show us where it says
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creek. Okay.
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THE WITNESS: Between Warnock and 11th
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on the exhibit, and then what I am going to do
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now is I am going to jump over to Old York Road
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as shown on the plan. But once we get there,
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there is the wording old line of creek, and I
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think this is the old line of the creek and


then continuing to the east I can follow these
contour lines to the east until we get into the
area of question where it crosses Annsbury or
where it crosses 6th Street, the railroad, and
then continues down the location of Annsbury
Street.

[P29; N.T. 3/12, 2015, p 28-29.]


51. In dispute is the ownership of a disputed strip of land, west of the
center line of the Conrail rail roadbed, which lies between 5th Street, 6th Street,
Fairhill Street, Cayuga Street and Annsbury Street. [Complaint, D26.]
5 Q. And on this particular -- on this particular
6 map, you referenced the center line of the railroad.
7 Can you find 6th Street on that map?
8 A. I can find 6th Street, yes, I can.
9 Q. Can you point that out?
10 A. 6th Street is located to the west of the
11 railroad.
12 Q. And were you able to locate 5th Street?
13 A. 5th Street would be to the east of the
14 railroad.
15 Q. And there is also a Fairhill Street in there?
16 A. Fairhill Street is to the east of the
17 railroad.
[P29; N.T. 3/12, 2015, p 30.]
52. Using the various maps identified, Mr. Karat was able to map and
survey the field.
5 Q. Mr. Karat, did you at my request have a survey
6 done in the field concerning the property in
7 question?
8 A. I did.
9 Q. And was that limited to between Cayuga and
10 Annsbury Streets?
11 A. It was.
12 Q. And did you at my request prepare a plan
13 showing how you had determined where the properties
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14 were in question and as referenced in these -- each


15 individual exhibit?
16 A. Yes, we did.
[P42; N.T. 3/12, 2015, p. 58.]
20 Q. Can you tell me what plaintiff's Exhibit
21 Number 42 is?
22 A. It's a plan labeled deed plot. It's got a
23 preliminary date of 2/27/12 shown on it in the lower
24 right-hand corner. Reading from left to right we
25 have Cayuga Street on the left, 6th Street on the
2 top, Annsbury Street on the right, and kind of
3 cutting through the middle is the center line of the
4 railroad and the right-of-way. There are also some
5 buildings depicted, fence lines depicted that
6 reflect the ground survey which was performed in
7 February of 2012.
8 Q. And this was the field survey that was
9 prepared?
10 A. Yes.
11 Q. And the field survey that was prepared in
12 February of 2012 were pins placed along the west
13 line of the North Pennsylvania Railroad?
14 A. Yes, there were.
15 Q. And those pins that were -- they were placed
16 by your field personnel?
17 A. They were.
[P42; N.T. 3/12, 2015, pp. 59-60.]
53. Using the various maps identified, Mr. Karat was able to map and
survey the line of the former North Penn Railroad; which were marked in yellow
on the plan, exhibit P42.
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Q. Were you able to map the west line, the west


border of the North Pennsylvania Railroad?
A. Yes.
Q. And were you able to mark the bearings for the
west border of the North Pennsylvania Railroad?
A. Yes. They're shown on the plan.

[P42; N.T. 3/12, 2015, p. 63.]


54. Using the various maps identified, Mr. Karat was able to map a legal
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Case ID: 130703647

description for the former North Penn Railroad as conveyed to plaintiff.


18 Q. Mr. Karat, did you at my request prepare a
19 deed description according to the property conveyed
20 by Consolidated Railroad Corporation to Railroad
21 Recovery, Inc.?
22 A. I did.
23 Q. And I will show you a document which I'm going
24 to mark as Plaintiff's Exhibit No. 44, and it has at
25 the top right-hand corner Stantec Consulting
2 Services, Inc. with an address, and it says
3 description of the former North Penn Railroad
4 Right-of-Way. I draw that to your attention. This
5 is Plaintiff's Exhibit No. 44.
6 A. Yes.
12 Q. And is that your -- is that a survey that you
13 prepared, sir?
14 A. Yes, it is.
15 Q. And does that show all the plan -- the metes
16 and bounds of all the property conveyed in 2012 from
17 the North Pennsylvania -- excuse me, the
18 Consolidated Rail Corporation to the Railroad
19 Recovery, Inc.?
20 A. It shows -- it describes the property of the
21 North Penn Railroad right-of-way between Cayuga
22 Street and Annsbury Street, starting at Cayuga
23 Street on the south. ***.
[P44; N.T. 3/12, 2015, pp. 66-67.]
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THE WITNESS: I'm sorry, Your Honor.


I am getting ahead of myself. This does cross
Roosevelt Boulevard. It crosses Rockland
Street. Goes along the center line of Fishers
Lane. Recrosses Roosevelt Boulevard.
Recrosses Annsbury Street, and comes to Cayuga
Street. I apologize.

[P44; N.T. 3/12, 2015, p. 68.]


55. Mr. Karat concluded the use by the owners of 4525 N. 6th Street
encroach the Rail roadbed conveyed to plaintiff.
21 Q.

You have the same exhibit. Mr. Karat, drawing


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22 your attention again to Plaintiff's Exhibit No. 42,


23 and drawing specifically your attention to the
24 reference plan city survey 7/28, 1964. That
25 property in question which you're identifying as
2 4525 North 6th Street, did you find on there a fence
3 line on that property which encroaches the Railroad
4 Recovery property?
5 A. Yes, I did.
6 Q. And can you identify that and mark that on the
19 ***. So there is a fence
20 encroachment, and we're describing a triangle
21 leaning to the left with its point being to the left
22 and a shallow base to the right.
[P42; N.T. 3/12, 2015, p. 75-76.]
56. Mr. Karat concluded the use by the owners of 4455 N. 6th Street
encroach the Rail roadbed conveyed to plaintiff.
10 Q. Did you also find with reference to the
11 property where it indicates reference plan city
12 survey 3/6, 1942 which we're describing as 4455
13 North 6th Street, did you find a fence encroachment
14 at that location?
15 A. I did.
16 Q. And where did you find the fencing
17 encroachment?
***.
9 A. Yes, there is a dotted pattern on the plan and
10 it has an arrow going into it.
11
THE COURT: That's all the fence area?
12
THE WITNESS: That's the fenced in
13
area. That's not all of the fenced in area,
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but that's the fenced in area -15
THE COURT: That's the encroachment?
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THE WITNESS: -- within the
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right-of-way.
18
THE COURT: Okay.
19
THE WITNESS: Yes, Your Honor. And
20
it's labeled fence encroachment area, 6350
21
square feet, plus or minus.
[P42; N.T. 3/12, 2015, p. 77-78.]
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Case ID: 130703647

III. Conrails title.


57. Exhibit P10 is the Supplemental Order of Conveyance to Trustees of
Railroads in Reorganization in the Region and Relating to Rail Properties of
Persons Leased, Operated or Controlled by Railroads in Reorganization in the
Region, as ordered by the Special Court under the Regional Rail Reorganization
Act of 1973, In re Proceedings Under Sections 303 and 306 of the Regional Rail
Reorganization Act of 1973, Special Court, Misc. No. 75-1, dated March 31, 1976.
[Exhibit P10.]
58. Exhibit P10 was recorded in the Department of Records of the City of
Philadelphia at deed book DCC-1948-001&c on May 11, 1979. [Joint Stipulation,
5.]
59. Mr. Enright testified concerning P10, the Special Court order recorded
at deed book 1948 page 001& on May 11, 1979. [P10; Enright, at p. 13.]
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A. First of all, this document was sort


of the enabling document that provided or set
out a plan for the creation of Conrail and it
identifies issues -- there's more to it than
that, but issues come up from to time to time
as to whether a particular line of railroad
came into Conrail's part of the reorganization
plan. Those kinds of issues, whether a
particular right of way was something that was
deemed on operating at the time. Conrail was
created and therefore was kept by the trustees
or was part of what was called the final
system plan. The final system plan laid out
what the rail network for the newly formed
Consolidated Rail Corporation would consist
of. It would identify lines by their typical
identifiers, which was a name and a line code,
their location, length of the line, that sort
of information to establish what the extent
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and scope of the rail network would look like


once the Conrail began its operations as
Conrail.

[P10; Enright, at p. 10-11.]


60. Conrail came into being as part of the federal reorganization of the
bankrupt railroads. See generally Regional Rail Reorganization Act Cases, 419
U.S. 102, 108-17, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974).
The Rail Act created the United States RailwayAssociation, see 45
U.S.C. 711(a) , a non-profit corporation, which in turn prepared a
Final System Plan ("FSP") which designated how rail properties held
by the bankrupt railroads would be distributed, see 45 U.S.C. 716.
The Rail Act also created Conrail, see 45 U.S.C. 741(a), and
mandated that rail properties designated in the FSP be conveyed to
Conrail, see 45 U.S.C. 743(b). The conveyance process was
supervised by the Special Court and implemented through a
Conveyance Order of the Special Court. See 45 U.S.C. 719(b).
City of Philadelphia v. Consolidated Rail Corporation, et al., 222 F.3d
990, 991, 343 U.S. App. D.C. 53; 2000 U.S. App. LEXIS 15688 (C.A.
D.C. 2000).
61. The award by the federal Special Regional Rail Reorganization Court
was mandated by the federal Regional Rail Reorganization Act of 1973. [Exhibit
P10.]
IV. Plaintiffs interest in fee.
62. The term right of way has not acquired a general meaning applicable
in all cases.
In Territory of New Mexico v. United States Trust Co., 172 U.S. 171,
181-182, 19 S.Ct. 128, 132, 43 L.Ed. 407, the Court acknowledged
that the term 'right of way' had two distinct meanings: (1) a 'mere
right of passage;' and (2) "that strip of land which railroad
companies take upon which to construct their roadbed.' That is, the
land itself, not a right of passage over it.": Mr. Justice Frankfurter's
dissenting opinion in United States v. Union Pacific Railroad Co., 77
18

Case ID: 130703647

S.Ct. 685, 691.


Brookbank, 389 Pa. 154, 131 A.2d, 105, ftnt. 3.
63. There is no significance to the use by Conrail of a quitclaim deed to
convey its interest to plaintiff.
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Q. Is there a reason why Conrail elects


to execute a Quitclaim Deed as opposed to a
general Warranty Deed?
A. Yes. It's common in the rail
industry because of the -- especially in the
Eastern United States where railroads date
back to the 19th Century and railroad names
changed often so that if you look at a Deed
schedule for any right of way and they reflect
20 different conveyances or name changes over
time. We don't warrant title. Because of the
complicated history of railroad conveyances
and given that it's a right of way, you have
occupations underground, above ground. We
want to put the burden on the purchaser to
satisfy to itself that they're acquiring title
and it's insurable. We don't make that
representation or warranty. Let them do their
own title search and satisfy themselves.
Q. In executing a Quitclaim Deed as
opposed to a Warranty Deed, it's kind of also
making it incumbent upon the buyer to review
and analyze the actual property area that's
being conveyed?
A. It's up to the purchaser and title
company. We're quitclaiming our interest so
they have to satisfy themselves. We don't
require them to do that. That's purely a
decision to be made by the Grantee to what
extent they do due diligence before closing a
transaction.

[Enright, pp.76-77.]
64. The 1854 Dickinson deed was executed by Sally Norris Dickinson for
herself and by Thomas L. Fernon, President, on behalf of the North Pennsylvania
19

Case ID: 130703647

Rail Road Company. [Exhibits P1, P1A, P2, P20, D80.]


65. The original 1854 Dickinson deed has been lost.
20
Q. As far as this particular document,
21
have you had an opportunity to determine
22
whether or not the Conrail has in its archives
23
the original Deed that was written it 1854?
24
A. There was a page in an exhibit that
1
was attached to the typewritten version of
2
this Deed, presented to Ms. Blair in her
3
deposition and that appears, that random page,
4
appears to be the last page -- matches, let's
5
say, the typewritten version of this Deed, but
6
we're not able to locate the other pages of
7
the original Deed in our files, but apparently
8
we had the last page of the Deed -- a
9
handwritten version of the last page of the
10
deed in our files. I have no explanation as
11
to why the rest of it wasn't there.
[P1, P1A; Enright, at pp.52-53.]
20
Q. But the original first page or first
21
couple pages are missing?
22
A. Were not able to be located, correct.
[P1, P1A; Enright, at p.54.]
66. From the documents in the Conrail archives, the 1854 Dickinson deed
is a handwritten document and not a preprinted form used in conveyance of
easements.
6
7
8
9
10
11
12
13
14
15
16

Q. And to be clear, what we have there


is handwritten, it's not a preprinted form?
A. The page you're referring to with the
diamond appears to be a handwritten document.
I will note for the record that the signature,
if this is indeed the handwritten version of
what was subsequently typed, is the signature
of William Wister, the Treasurer, not William
Fernon. Thomas Fernon is the president so
this is not the signature of Thomas Fernon.
It's the signature of William Wister.
20

Case ID: 130703647

[P1, P1A; Enright, at p.56.]


67. The 1854 Dickinson deed, grant clause, conveyed to the North Penn the
following interest, using traditional words of inheritance,
Doth grant, bargain, sell, release and confirm, unto the said The
North Pennsylvania Rail Road Company, their successors and
assigns the entire and exclusive use, right, liberty and privilege of
using and occupying and enjoying for Rail Road purposes, All that
strip or piece of land (part of the lands and estate of the said Sally
Norris Dickinson) extending from Nicetown Lane to Wingohocking
Creek in the Township of the Northern Liberties and County of
Philadelphia.
68. The 1854 Dickinson deed contains this habendum. [N.T. 3/16/2015, p.
37, ll. 6-9.]
TO HAVE AND TO HOLD the rights and premises aforesaid unto
the said The North Pennsylvania Rail Road Company, their
successors and assigns forever, upon condition that the said
Company, its successors or assigns, shall make, maintain, keep and
use upon the aforesaid piece of land a Rail Road, and if it shall
happen that the railroad contemplated to be now shortly
constructed on and over the said described strip or piece of land or
any renewals or reconstructions thereof, shall be removed or
abandoned or the said described piece of land shall cease to be used
for Rail road purposes, then the said strip of land shall revest in the
said Sally Norris Dickinson, her heirs and assigns, as of her and their
first and former Estate, and she or they shall thereupon repossess
and enjoy the same as if this present Indenture had never been
made.
69. The railroad deed in Emrick v. Bethlehem Tp., 506 Pa. 372, 375, 485 A.
2d 736, 737 (Pa. 1984) was decided by our Supreme court subsequent to the
Brookbank decision relied upon by the defense. Emrick involved a strip of land
conveyed to a railroad for railroad purposes. There, the language of the 1914
railroad deed used language similar to the 1854 Dickinson deed at bar.
ThAt [sic] in case the [grantee], its successors or assigns, should at
21

Case ID: 130703647

any time hereafter cease to use, or abandon, the above described


strips of land as a railroad, right of way, or for railroad, purposes
[sic], and such non use [sic] or abandonment, shall continue, [sic]
for one (1) Year after notice, in writing, from the [grantor], his heirs
or assigns, that he or they desire to re enter [sic] on said land, and
repossess himself or themselves of the same, then and in such case,
after the lapse of said one (1) Year after notice as aforesaid such non
use [sic] or abandon-ment continuing, the [grantor], his heirs or
assigns, may ren enter [sic] upon the above described land, and
repossess himself or themselves, [sic] thereof, as of his or their
first and former estate therein.
70. Superior Court in Wagner v. Landisville Camp Meeting Ass'n, 2011 PA
Super 116, 24 A.3d 374, 377 (Pa.Super. 2011), explained the meaning of a
conditional fee.
A fee simple subject to a condition subsequent is created where the
deed provides that upon the happening of some specified event, the
grantor has the right and power to terminate the estate. Stolarick v.
Stolarick, 241 Pa.Super. at 506, 363 A.2d at 797 (1976). The
interest held by the grantor in such cases has been termed a right of
re-entry. Id. This interest has also been called a power of
termination. Restatement of Property, 24 (1936). The obvious
difference between a fee simple determinable and a fee simple
subject to a condition subsequent is that in the former the estate
reverts automatically, while in the latter the reversion requires
some action on the part of the grantor. Higbee Corporation v.
Kennedy, supra [286 Pa.Super. 101, 428 A.2d 592 (1981)]; Stolarick
v. Stolarick, supra; Restatement of Property, 44 45 (1936).
71. Brown v. Haight, 435 Pa. 12, 17, 255 A.2d 508, 511 (1969)
Words such as 'as much longer as' or 'so long as' are traditionally
considered words connoting a special limitation rather than a
condition subsequent. Furthermore, policy considerations indicate
that the habendum clause should be interpreted as a special
limitation and not a condition subsequent.
72. Superior Court in Wagner v. Landisville Camp Meeting Ass'n, 24 A.3d,
at 378-379, found the habendum to predecessor deeds used the classic phrase,
to have and hold forever ... upon this condition, and concluded the conveyance
22

Case ID: 130703647

was a fee simple subject to a condition subsequent, reserving a reversionary


interest held by the LCMA- pursuant to express By-law provisions on lot holder
forfeiture and LCMA re-entry ***.
73. Defendants deeds do not mention any deed restriction running to the
North Penn. [Exhibits D45 through D74.]
74. The Sixth Street Management deed makes a singular reference to the
North Penn rail roadbed as follows,
*** thence extending South 78 degrees 39 minutes East 181 feet
6.125 inches to a point in the middle line of the North Pennsylvania
Railroad; thence by the same Southwestwardly with a radius of
2,857.79 degrees 174 minutes 7.625 seconds;***.
[Exhibits D54.]
75. The Giunup/Pettacio deed makes a singular reference to the North
Penn rail roadbed as follows,
*** thence extending South 78 degrees, 39 minutes, East 181 feet
6-1/8 inches more or less to the center line of the North
Pennsylvania Railroad and thence along the center line of the said
North Pennsylvania Railroad on the arc of a circle curving to the
right having a radius of 2887.79 feet the arc distance of 155 feet
6-5/8 inches to a point of tangent; thence still along the center line
North 5 degrees, 25 minutes, East 120 feet 0-1/8 inches to a point on
the Southwesterly side of Annsbury Street aforesaid; ***.
[Exhibits D45.]
76. Defendants therefore claim that their deeds grant to them a fee simple
interest to the center line of the rail roadbed, notwithstanding the grant to the
North Penn. [Exhibit P26.]
77. In Wagner v. Landisville Camp Meeting Ass'n, 24 A.3d, at 377-378,
Superior Court recognized a grantee cannot hold a greater title than her grantor.
23

Case ID: 130703647

As nowhere within the four corners of their deeds is there


specified either a right of re-entry in LCMA or any condition upon
which such a right may be exercised, the Wagners argue, the lower
court should have declared that they hold fee simple absolute
interests in their real properties. We disagree, for even if the face of
each Wagner deed, viewed in isolation, leaves doubt as to the
existence of a reversionary interest in the LCMA, reading such
language in light of subject matter and other circumstances
surrounding the conveyances removes any and all doubt in favor of
LCMA.
78. In Finley v. Glenn, 303 Pa. 131, 136, 154 A. 299, 301 (1931) it was held
a grantee is responsible for knowing all restrictions within his or her chain of
title capable of discovery upon examination of predecessor recorded deeds.
79. As purchasers of the adjoining land, Sixth Street Management and
Giunup and Pettacio had an obligation to examine the 1854 Dickinson deed as
well as the Conrail deed, and were on constructive notice of Conrails fee simple
interest.
The weight of authority is to the effect that if a deed or a contract for
the conveyance of one parcel of land, with a covenant or easement
affecting another parcel of land owned by the same grantor, is duly
recorded, the record is constructive notice to a subsequent
purchaser of the later parcel. The rule is based generally upon the
principle that a grantee is chargeable with notice of everything
affecting his title which could be discovered by an examination of the
records of the deeds or other muniments of title of his grantor.
Finley v. Glenn, 154 A. 299, 301-02 (Pa. 1931).
Piper v. Mowris, 466 Pa. 89, 97, 351 A.2d 635, 639 (Pa. 1976); See:
Southall v. Humbert, 685 A.2d 574, 578-79 (Pa. Super. Ct. 1996);
Restatement (3rd) Property, Servitudes 7.14.
80. Defendants are responsible for knowing all restrictions within their
chain of title capable of discovery upon examination of prior recorded deeds.
Our law provides that [i]t is always the duty of a purchaser of real
estate to investigate the title of his vendor[,] and the purchaser
24

Case ID: 130703647

must exercise due diligence in this regard. Ohio River Junction R. Co.
v. Pennsylvania Co., 72 A. 271, 273 (Pa. 1909). The Supreme Court
of Pennsylvania has explained the due diligence obligation as follows:
[Purchasers] title could be affected only with what they actually
or constructively knew at the time of the purchase; necessarily,
as to the latter, by what they could have learned by inquiry of the
person in possession and of others who, they had reason to
believe, knew of facts which might affect the tite [sic], and also by
what appeared in the appropriate indexes in the office of the
recorder of deeds, and in the various courts of record whose
territorial jurisdiction embraced the land in dispute; but not of
that which they could not have learned by inquiry of those only
whom they had reason to believe knew of the facts.
Lund v. Heinrich, 189 A.2d 581, 585 (Pa. 1963) (internal citations
omitted). Accordingly, a purchaser fulfills his or her due diligence
requirement when he or she examines the documents recorded in
the county or counties in which the property is situated and when he
or she asks the possessor about title, as well as any other people the
purchaser has reason to believe would know about the status of the
propertys title.
Nolt v. T.S. Calkins & Associates, LP, 2014 PA Super. 141, 96 A.3d
1042, 1047-48 (2014).
81. A fee simple subject to a condition subsequent, provides for a possibility
of a reverter; that is, the reversion requires some action on the part of the
grantor. Wagner v. Landisville Camp Meeting Ass'n, 2011 PA Super 116, 24 A.3d
374, 377 (Pa.Super. 2011).
82. The possibility of a reverter requires prompt action on the part of the
grantor, her heirs or assigns.
Restatement (First) of Property 57 (1936) ("On the occurrence of
the event which constitute a breach of a condition subsequent
annexed to an estate in fee simple defeasible, the estate does not
terminate. The estate is not terminated unless and until the power of
termination is exercised."); Lacy v. Montgomery, 181 Pa. Super. 640,
645, 124 A.2d 492, 494-95 (1956) ("Upon properly authorized
abandonment by the railroad, the base fee acquired on
condemnation reverted to those who were the owners at the time of
the condemnation, their heirs or assigns. This reversionary interest
25

Case ID: 130703647

or possibility of reverter was subject to alienation by the grantor.");


Emrick v. Bethlehem Twp., 506 Pa. 372, 379, 485 A.2d 736, 739
(1984) ("The obvious difference between a fee simple determinable
and a fee simple subject to a condition subsequent is that in the
former the estate reverts automatically, while in the latter the
reversion requires some action on the part of the grantor.").
83. The aforesaid phrases, taken together have the meaning of a
conditional fee.
Stolarick v. Stolarick, 241 Pa. Super. 498, 507, 363 A.2d 793, 798
(1976) ("John and Michael Stolarick held a conditional fee, and the
grantors reserved a right of re-entry to themselves and their heirs in
the event that the conditions were not performed. When Michael
died in 1947, his interest in the conditional fee passed by intestacy to
his mother. At the time of the death of Mary Stolarick, the sole
surviving grantor, in 1953, therefore, her devisees, appellant and
Andrew, had a right of re-entry to the entire fee. Upon Andrew's
death in 1973, his interest was devised to appellant. Thus, at the
time the instant suit was brought, appellant held a right of re-entry
to the entire fee.").
84. The descendants in title, in Emrick v. Bethlehem Tp., held a possibility
of a reverter, which was promptly exercised.
Turning to the case at hand, the clause in the deed calling for a
reverter under circumstances of nonuse or abandonment of the land
as a railroad or for railroad purposes clearly created a fee simple
subject to a condition subsequent. This left a right of re-entry in the
grantors and their successors. The reverter provision specifically
provided that the right of re-entry accrued when nonuse or
abandonment of the property as a railroad or for railroad purposes
continued for one year after written notice by the grantors or
successors of an intent to re-enter the premises. In such case, the
former estate would be restored to the grantors or their successors.
Emrick v. Bethlehem Tp., 506 Pa. 372, 382, 485 A.2d 736, 741 (Pa.
1984).
85. Dickinson, as the grantor, in 1854 Dickinson deed, bears the heavy
burden of using clear and unambiguous language to make explicit [her] intent to
26

Case ID: 130703647

create this type of onerous limitation to an estate in land. Higbee Corp. v.


Kennedy, 286 Pa.Super. 101, 110, 428 A.2d 592, 596 (Pa.Super. 1981).
86. Any ambiguity in the creation of a reversion is construed against the
grantor (Dickinson).
Higbee Corp. v. Kennedy, 286 Pa. Super. 101, 109, 428 A.2d 592, 596
(1981) ("In accordance with our policy of favoring the free
alienability of land, 'a deed which would convey an estate in fee
simple except for certain words, or for a phrase or clause must be
interpreted strictly against any such limitation unless the grantor's
intention to so limit the fee is clearly expressed or necessarily
implied.'" (quoting Peters v. E. Penn Twp. Sch. Dist., 182 Pa. Super.
116, 118, 126 A.2d 802, 803 (1956))); 1 John A. Borron Jr., Simes
and Smith the Law of Future Interests 286 (3d ed. & Westlaw
database updated Aug. 2014) ("Whether particular language creates
a possibility of reverter or not is largely a matter of construction; no
particular words are necessary as a matter of law. It is only
necessary that the language demonstrate the intention of the
conveyor that the estate in fee simple shall terminate automatically
upon the occurrence or nonoccurrence of the stated event. The
courts are strict in construing the language, both in determining
whether the language creates a limitation, and in determining
whether there has been a breach." (emphasis added)).
87. An ambiguous reversion creates a fee simple absolute.
Ralston v. Ralston, 2012 PA Super 234, 55 A.3d 736 (because the
law favors free transfer of real property, when a deed does not
include an expression of reversion, a restraint should be deemed a
covenant rather than a fee simple determinable or a fee subject to a
condition subsequent); Station Assocs., Inc. v. Dare County, 350 N.C.
367, 370-71, 513 S.E.2d 789, 792 (1999) ("This Court has declined
to recognize reversionary interests in deeds that do not contain
express and unambiguous language of reversion or termination
upon condition broken.").
V. Res judicata and collateral estoppel.
88. Sixth Street Management Corp. defends that its right to possession is
founded upon a 2008 action of ejectment commenced by it against a tenant
27

Case ID: 130703647

known as Poor Boys Used Auto Parts, Inc. filed in February 2008 and the
judgment Sixth Street Management obtained in that action in October 2009.
[Exhibit D19.]
88. In 2008, the last deed of record was in Conrail. [Exhibits P3, P3A.]
89. It was not until litigation was commenced against Conrail that Conrail
became inclined to give plaintiff a proper deed.
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9

Q. What was your involvement in the


litigation, if any?
A. I believe that being named in the
litigation is what got me involved in the
preparation of the Quitclaim Deed of
Confirmation. Quite honestly, I don't even
remember if we filed an Answer in this
complaint, but it got Conrail's attention, I
guess, as to the underlying issue of the
original Deed not being recorded because -requests had been made of Conrail for at least
four years or five years at that point without
any success so got me focused on it and that
was sort of my involvement in the litigation
itself.

[Enright, at pp. 78-79.]


90. In Werry v. Sheldon, 148 Pa.Super. 13, 18, 24 A.2d 631, 633 (1942),
Superior Court considered the issue of res judicata where the same parties
litigated distinct causes of action.
We do not regard the rights of the petitioners now in question as
being adjudicated in the bill in equity where the easement was
alleged to have been acquired by prescription. Here they are relying
on a grant in a deed, which was not considered or decided in the
former proceeding.
91. In Hatcher v. Chesner, 422 Pa. 138, 142, 221 A.2d 305, 308 (Pa. 1966),
it was held, Pennsylvania law abhors a forfeiture against the record owner as a
28

Case ID: 130703647

consequence of action by another.


Another factor in the view held by this state is the general dislike
of forfeiture by our courts. See, Corey v. Edgewood Borough, 18
Pa.Super. 216 (1901).
92. An action of ejectment is a possessory action. Sharper v. Muzaffar,
2006 WL 1769637 (Pa. C.P. 2006); Rostan v. Chicagoan, 69 Pa. D&C 2d 255 (C.P.
Chest. 1974); citing Vlachos v. Witherow, 382 Pa. 174, 118 A.2d 174 (1955);
Burnett v. Mueller, 48 Pa. D&C2d 165 (C.P. 1969).
93. The action of ejectment determines solely the superior right to
possession as between the named plaintiff and the named defendant in the
action.
25 Am. Jur. 2d Ejectment 47 (Westlaw database updated May
2015) ("A person who is in possession of the premises and who
claims title prior to, or at the time of, the commencement of the
action, cannot be dispossessed unless he or she was made a party to
the suit so as to be bound by the judgment. A holding that, as
between the plaintiff and defendant in an ejectment action and their
successors in interest, the defendant owned the disputed area, does
not affect the rights of persons who were not parties to the action or
their successors in interest." (footnote omitted)).
94. The record owner, be it a landlord or vendor, is not bound by the 2008
judgment of ejectment.
In the absence of a change in the common law by statute, the only
necessary or indispensable party to an ejectment action is the
person in actual possession of the land and, where such land is under
lease, it is the tenant, not the landlord, who constitutes the only
necessary or indispensable party. ***. If the [land owner] has a
superior title to the land, he has his remedy by the usual action of
ejectment. Noyes v. Brooks, 10 Pa.Super. 250, 253. See also: Marko
v. Mendelowski, 344 Pa. 665, 667-668, 25 A.2d 692.
Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 275, 172
A.2d 306, 310 (Pa. 1961).
29

Case ID: 130703647

95. In Marko v. Mendelowski, 344 Pa. 665, 668, 25 A.2d 692, 693 (1942),
the plaintiff had obtained a judgment in ejectment. Several years expired prior to
resolution of post trial motions. In the interim, defendant allowed the property to
be exposed to tax sale. Defendants step-son purchased the property at the sale.
When the court finally decided the case, defendants step-son sought to intervene
as the new owner, which the court denied, holding, If her step-son, the petitioner,
has a title superior to plaintiff's, he must establish it [by an action in ejectment].
Johnson v. Fullerton, [8 Wright 466]; see also, Noyes v. Brooks, 10 Pa.Super.
250. Accord, Brackin v. Welton Engineering Co., 128 A. 818, 283 Pa. 91 (Pa.
1925).
96. The 2008 action of ejectment determined the right to possession, not
the right to ownership. In an action of ejectment, it is not necessary for the real
property owner to be sued or to voluntarily appear, even if real property owner
did have notice of the ejectment.
Considering, therefore, the nature of an action of ejectment as a
determination between the particular plaintiff suing and defendant
as to who has the right of immediate possession, even if [the record
owner] have an outstanding interest, the action may proceed. The
purpose of an ejectment action as opposed to quiet title is not to
determine the relative and respective rights of all potential title
holders, but rather the immediate rights between plaintiff and
defendant involved in that particular litigation.
Burnett v. Mueller, 48 Pa. D. & C.2d 165, 172 (Pa.Com.Pl., Mercer
1969).
97. In Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103
A.3d 83 (10/20/2014), Superior Court agreed the trial court provided, the more
30

Case ID: 130703647

closely on-point authority, and held, we agree with the trial court that the
[surface owners] were not indispensable parties to [the ejectment] action.
The trial court rejected the [lessees]' contention upon the basis
that "the only necessary or indispensable party defendant to an
ejectment action is the person in actual possession, and, where such
land is under lease, it is the tenant, not the landlord, who constitutes
the only necessary or indispensable party." (citing Bannard v. N.Y.
State Natural Gas Co., 404 Pa. 269, 172 A.2d 306, 310 (Pa. 1961)).
Noting that the parties in possession of the oil and gas estate at issue
in this case were the [lessees], not the [surface owners], the court
found that the [surface owners] were not indispensable parties to
the ejectment action. Id.; cf. Hicks v. Amer. Natural Gas Co., 207 Pa.
570, 57 A. 55, 58 (Pa. 1904) (finding that possession lay with the
gas lessee because it had drilled a well and had the gas " in [its]
control").
98. The special Regional Rail Reorganization court was given original and
exclusive jurisdiction by Congress over any civil action,
brought after a conveyance, pursuant to section 743(b) of this title,
to set aside or annul such conveyance or to secure in any way the
reconveyance of any rail properties so conveyed.
45 U.S.C. 719(e)(1)(E); and,
whether filed by any interested person or initiated by the special
court itself, to interpret, alter, amend, modify, or implement any of
the orders entered by such court pursuant to section 743(b) of this
title in order to effect the purposes of this chapter or the goals of the
final system plan.
45 U.S.C. 719(e)(2).
99. Common Pleas Court did not have jurisdiction of the disputed rail
roadbed in 2008. 45 U.S.C. 719.
100. For the defense of res judicata to prevail, it is necessary that between
the previous action and the present action, there be identity in the thing sued on,
identity of the cause of action, identity of the persons and parties to the action,
31

Case ID: 130703647

and identity of the quality or capacity of the parties suing or sued. Bearoff v.
Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).
101. In ejectment, privity binds persons who take title from the named
defendant; in this case, the Poor Boys. Fred E. Young, Inc. v. Brush Mountain
Sportsmans Assn., 697 A.2d 984 (Pa. Super. Ct. 1997) rearg. den.
102. Sixth Street Management has failed to prove Conrail or Railroad
Recovery, for that matter take title from the Poor Boys.
103. A judgment of ejectment against a party in possession is not binding
against a record owner of the property. Jordan v. Chambers, 226 Pa. 573, 75 Atl.
956 (1910); Notoro v. Estate of Hyer, 239 Pa. Super. Ct. 10, 361 A.2d 766 (1976).
104. Sixth Street Management did not prove Linda Miller is a successor in
title to Conrail.
105. Where a plaintiff has commenced an action of ejectment and neither
names as parties nor serves the persons (Linda Miller) in possession, a judgment
of ejectment is not binding on the possessor. Lacy v. East B.T.R.&R. Co., 83 D&C
111 (1952).
106. The defense tried to perpetuate its fraudulent action against Linda
Miller into a misrepresentation of the record.
9
10
11
12
13
14
15
16
17

Q. Mr. Enright, did Mr. Quinn request


that the Deed be prepared identifying the
Grantee as Railroad Recovery, Inc.?
A. It's a Quitclaim Deed of the
confirmation of an earlier Deed so it has to
have the same parties as the original Deed,
which was Conrail and Railroad Recovery, Inc.
Q. Do you recall why Mr. Quinn was
requesting that the Deed be made to Railroad
32

Case ID: 130703647

18

Recovery as opposed to Ms. Miller?

[Enright, at p. 69.]
7
8
9
10
11

A. If the request had been made to


prepare a Deed to Linda Miller, the request
would have been declined because the
transaction that Conrail was a party was with
respect to Railroad Recovery, Inc.

[Enright, at p. 70.]
107. All parties to the action must have had a full and fair opportunity to
defend.
The essential inquiry is whether the ultimate and controlling issues
have been decided in a prior proceeding in which the present parties
had an opportunity to appear and assert their rights.
Hochman v. Mortgage Finance Corp., 289 Pa. 260, 137 A.2d 252
(1927); Callery et al. v. Blythe Twp. Mun. Auth., 432 Pa. 307, 312,
243 A.2d 385 (1968).
108. Conrail and its vendee, plaintiff Railroad Recovery were missing and
dispensable parties to the 2008 ejectment, and are not bound thereby.
In re Freeman's Estate, 280 Pa. 273, 277, 124 A. 435, 436 (1924)
("Appellants here were not parties to that proceeding, and therefore
it cannot be said that the question is res adjudicata as to them,
though the same proposition, raised in the first case, is again
presented." (citations omitted)); Page v. Luhring, 211 Va. 503, 505,
178 S.E.2d 527, 529 (1971) ("Our holding did not purport to, and
could not, affect the rights of persons who were not parties or their
successors in interest.").
109. In Office of Disciplinary Counsel v. Kiesewetter, 889 A2d 47 (Pa.
2005), it was held a party need have a full and fair opportunity to defend herself
in the prior action.
The doctrine of collateral estoppel precludes relitigation of an issue
determined in a previous action if: (1) the issue decided in the prior
33

Case ID: 130703647

case is identical to the one presented in the later case; (2) there was
a final judgment on the merits; (3) the party against whom the plea
is asserted was a party or in privity with a party in the prior case;
(4) the party or person privy to the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the issue in
the prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
110. There is not an identity of causes of action between the 2008
ejectment and this action.
As to the identity of cause of action, rather than resting on the
specific legal theory invoked, res judicata generally is thought to
turn on the essential similarity of the underlying events giving rise
to various legal claims. Whatever the conceptual difficulties inherent
in the definition of a "cause of action" often the presence of a single
cause of action is clear. Davis v. United States Steel Supply, 688 F.2d
166 (1982), cert. denied 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d
484 (applying Pennsylvania law). The Davis court recognized that in
determining whether a single cause of action is present one may
consider the identity of the acts complained of, the demand for
recovery, the identity of witnesses, documents and facts alleged. A
lack of identity of these facets would, of course, support the
conclusion that there is no identity of cause of action.
In re Jones & Laughlin Steel Corporation, 328 Pa.Super. 442,
450-451, 477 A.2d 527, 531 (1984).
111. Sixth Street Management Corp. has not proved the identity of the acts
complained of, the demand for recovery, and the identity of witnesses, documents
and facts alleged, to sustain an identity of the cause of action.
112. Shirley Frisch is the owner [Frisch, p. 7 ln. 13] of Accurate Search
and Settlement Inc. [Frisch, p. 7 ln. 7] and testified concerning an abstract
performed for a title company, Brokers Land Settlement dated 11/3/2007
[Frisch, p. 10 ln. 1-11].
12
Q. And can you tell me what Plaintiff's Exhibit 17
13 is that is in front of you?
34

Case ID: 130703647

14
A. The title search on the property at 4455 North
15 Sixth Street, Philadelphia.
[Frisch, p. 10; P17.]
113. Accurate Search and Settlement Inc. performed a search for a title
company, Brokers Land Settlement.
5
Q. And the customer's name was Brokers Land
6 Settlement?
7
A. That's correct.
8
Q. Are you acquainted with Brokers Land Settlement?
***.
11
A. Yes, they were a client.
[Frisch, p. 12.]
114. The thing Sixth Street Management sued upon in the 2008 ejectment
was an Accurate Search and Settlement abstract which was limited by Brokers
Land Settlement to a 60 years search.
12
Q. Was Accurate's Search -- was Accurate asked to
13 limit its search to a certain timeframe?
14
A. Yes.
15
Q. And what was that timeframe?
16
A. 60 years.
[Frisch, p. 12.]
1
Q. Did Brokers ever ask you to prepare a more
2 comprehensive search?
3
A. No.
[Frisch, p. 13.]
115. Accurate Search and Settlement was not asked to search for the
existence of a railroad deed, right of way or easement.
15
Q. Looking at Plaintiff's Exhibit 17 once again, the
16 title search.
17
A. Uh-huh.
18
Q. And if you page through there, is there anything
19 that indicates to you that there was a request for a
35

Case ID: 130703647

20 search of a railroad right-of-way with reference to the


21 property -22
A. No, there's nothing in reference to that at all.
[Frisch, p. 20.]
25
Q. And is there anything in the search -- request
1 for a title search that would indicate that it was
2 looking for Conrail property?
3
A. No. No, there's nothing.
4
Q. And is there anything in there that specifically
5 asked for a search for a right-of-way between Fifth and
6 Sixth Streets and Cayuga and West Annsbury Streets?
7
A. No, because then we would have had to have
8 searches on other properties.
9
Q. So it would have had to have been a more
10 extensive search?
11
A. If you're asking for multiple properties that it
12 would have combined?
13
Q. Uh-huh.
14
A. It would have had to have additional properties
15 searched.
[Frisch, pp. 21-22.]
116. The findings in the 2008 ejectment demonstrate the limited issues
resolved by that litigation. Missing from the 2008 ejectment are the Conrail
parties, the Conrail deeds, and the deeds of record prior to 1956.
117. Ms. Frisch testified as well her title report had been altered.
4
Q. And you've -- your attorneys and you have already
5 reviewed Plaintiff's Exhibit 17 and is that a complete
6 report that was prepared by Accurate?
7
A. Yes.
8
Q. Taking a look at the cover page, are you aware of
9 another version of that cover page that may have had
10 different information?
11
A. Yeah, that was why this letter was brought up.
12
Q. The March 12th, 2012 letter?
13
A. Correct.
14
Q. Was Accurate asked to prepare a title report as a
15 basis of a lawsuit that was to be filed?
16
A. No.
36

Case ID: 130703647

[Frisch, p. 13.]
13
Q. I'm going to show you a document, if I could, I
14 will have this marked as Plaintiff's Exhibit No. 16.
15 This was Plaintiff's Exhibit D-3 in a prior deposition.
16
A. Yes.
[Frisch, p. 9; P.16.]
3
4
5
6
7
8
9

Q. And could you read the contents of the letter,


please.
A. I reviewed the additional two pages that you sent
me with the discrepancy on the first page you sent over.
It does not match what I have, nor is it my office's
handwriting. This was done by someone other than my
office.

[Frisch, p. 9; P.16.]
118. The alteration was used as the basis of the 2008 ejectment.
20
Q. ***. Looking at that exhibit to the February 2008
23 lawsuit, I'd ask you if this page appears to be a copy
24 of the Accurate Search cover page of this title report
25 that we previously marked as Plaintiff's Exhibit 17?
1
A. It is the cover page, but it has additional
2 handwriting on it.
3
Q. And looking at that exhibit to the Complaint once
4 again, I'd ask you if the attachment to the Complaint is
5 a full title report that Accurate had prepared?
6
A. This is just the cover page.
7
Q. And in looking at the exhibit to the -8 Plaintiff's Exhibit 18, the Complaint, I'll ask you if
9 there's handwriting on that page?
10
A. There is, yes.
11
Q. Okay. And would you please read the handwriting.
12
A. No railroad right-of-way of record per Accurate.
13
Q. Is that statement the report of Accurate Search?
14
A. This is not our handwriting.
***.
23
Q. Did Accurate place that statement on the cover
24 page of its report?
25
A. No, we did not.
[Frisch, p. 15-16; P18.]
37

Case ID: 130703647

119. An attorney who is on notice his client has engaged in illegal conduct
is barred by the Pennsylvania Rules of Professional Conduct from advocating for
the fruit of that illegal conduct.
Pa. Rules of Prof'l Conduct R. 3.3 cmt. 2 ("This Rule sets forth the
special duties of lawyers as officers of the court to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer
acting as an advocate in an adjudicative proceeding has an obligation
to present the client's case with persuasive force. Performance of
that duty while maintaining confidences of the client, however, is
qualified by the advocate's duty of candor to the tribunal.
Consequently, although a lawyer in an adversary proceeding is not
required to present an impartial exposition of the law or to vouch for
the evidence submitted in a cause, the lawyer must not allow the
tribunal to be misled by false statements of law or fact or evidence
that the lawyer knows to be false."); Montgomery County Bar Ass'n v.
Hecht, 456 Pa. 13, 20-22, 317 A.2d 597, 601-02 (1974) ("We must
note, however, lest there be any misapprehension, that it would be
anomalous indeed for us to condemn, as we do, a lawyer's knowing
participation in the introduction of perjured testimony by a client,
see EC 7-26, Code of Professional Responsibility, 438 Pa. XXV, at
xciii, and at the same time condone the giving of such testimony by a
lawyer himself.").
120. Further, the alteration of Ms. Frischs title report was used as the
basis of the court findings in the 2008 ejectment.
8. [Sixth Street Managements] expert, real estate attorney and
title company owner, utilized Accurate Search for 4455 North
Sixth Street to determine whether any prior deeds since 1956
disclosed an easement.
[Exhibit D19, pg. 4 8.]
121. The decision in the 2008 ejectment relied upon Sixth Street
Management Corp. claim a railroad deed could not be found.
9. *** Furthermore, the court established that the reservation and
easement, Exh. D-4, were located in a deed book somewhere
and unable to be provided for evidentiary purposes during the
bench trial. (Id. at 111).
38

Case ID: 130703647

[Exhibit D19, p. 5 9.]


122. A verdict of ejectment must sufficiently describe the land to be
awarded to the plaintiff to enable the court to enter a judgment and for the sheriff
to deliver possession. Miles Land Co. v. Pennsylvania Coal Co., 277 Pa. 63, 120
Atl. 767 (1923); Flynn v. Rodkey, 192 Pa. Super. Ct. 56, 159 A.2d 265 (1960).
123. The judgment of the court in the 2008 ejectment is no more specific
than to identify the metes and bounds as plaintiffs property. [Exhibit D19,
Order.]
124. Under the Judicial Code, Pa.R Evid. 201(b)(2), 42 Pa.C.S., the court
may take judicial notice of matters appearing of record in prior cases.
Lycoming County v. Pa. Labor Relations Bd., 943 A.2d 333 (Pa.
Commw. Ct. 2007) (commonwealth court may take judicial notice of
pleadings and judgments in other proceedings where appropriate,
particularly where the other proceedings involve the same parties);
Winning Evidence Arguments 201:3 [Pa.] Rule [Ev.] 201(b)(2) ("A
court will take judicial notice of its own acts and records in the same
case, (2) of facts established in prior proceedings in the same case, of
the authenticity of its own records of another case between the same
parties, (3) of the files of related cases in the same court, (4) and of
public records on file in the same court.").
125. Sixth Street Management discontinued the 2011 action of ejectment
when it was assigned for trial by Judge Mazer Moss. [Exhibits P49-57.]
126. Sixth Street Management is bound by decision in its 2011 action of
ejectment.
VI. The easement theory.
128. The defense, as the proponents of the easement theory, have the
indubitable burden by clear and convincing evidence to prove the intent to create
39

Case ID: 130703647

an easement.
129. See Swaby v. N. Hills Reg'l R.R. Auth., 2009 SD 57, 769 N.W.2d 798
(deeds that contained habendum clauses providing that if the railroad
abandoned its road, all right, title, and interest in the conveyed land shall revert
to the grantors, their heirs and assigns, created fee simple estates subject to a
condition subsequent as opposed to an easement).
130. See also Van Wert County Bd. of County Comm'rs v. Consol. Rail Corp.,
14 Ohio Misc. 2d 4, 469 N.E.2d 1361 (C.P. 1983) (grant of land to railroad, which
contained in habendum provision that the transfer was for so long as said strip
may be required or used for passenger station purposes only, and a reverter
clause providing that in case it was not used for passenger station purposes, it
would revert back to the County, created a fee simple and not an easement).
131. Severns v. Union Pac. R.R., 101 Cal. App. 4th 1209, 125 Cal. Rptr. 2d
100 (2002) (conveyance of strip of land to railroad transferred a fee simple
interest subject to a condition subsequent, and not an easement, even though
deed stated understood purpose of conveyance as a railroad rightofway, where
granting clause used word grant to convey designated strip, did not restrict
railroad to any particular use, contained language of inheritance, and contained a
detailed description of conveyance as a "strip of land sixty (60) feet wide," and
deed only referred to rightofway in reversion clause after granting clause, in
which it recited that strip would revert to grantors or their assigns if railroad
operations ceased for six months).
132. E. A. Dixon, Jr., who opined on the legal issue for the defense, showed
40

Case ID: 130703647

his experience is that of a title insurance underwriter and adjuster, and who
briefly practiced law as a young lawyer and most recently in retirement
maintains an association with a law firm. [Exhibit D44.]
133. Dixon has never litigated any railroad title issues. [N.T. 3/16/2015, p.
11, ln. 5.]
134. Dixon has never defended any railroad title issues as a claims
adjuster or underwriter. [N.T. 3/16/2015, p. 11, ln. 10.]
135. Dixon submitted a written opinion letter. [Exhibit D43.]
136. Dixons letter erroneously opines,
an examination of the historical context in which a conveyance to a
railroad was made, is essential to determining the intent of the
parties.
[Exhibit 43, pg. 2.]
137. To the contrary, the rules for interpretation of a deed are,
In interpreting this instrument certain rules of construction are
applicable: (1) the nature and quantity of the interest conveyed
must be ascertained from the instrument itself and cannot be orally
shown in the absence of fraud, accident or mistake and we seek to
ascertain not what the parties may have intended by the language
but what is the meaning of the words[,] Teacher v. Kijurina, 365
Pa. 480, 486, 78 A.2d 197; Kimmel v. Svonavec, 369 Pa. 292, 295,
85 A.2d 146; Caldwell v. Fulton, 31 Pa. 475; (2) effect must be given
to all the language of the instrument and no part shall be rejected
if it can be given a meaning, Ivey Co. v. Franklin Associates, Inc.,
370 Pa. 225, 231, 232, 87 A.2d 236; Hardes v. Penn Charcoal &
Chemical Co., 175 Pa.Super. 431, 436, 107 A.2d 176; (3) if a doubt
arises concerning the interpretation of the instrument it will be
resolved against the party who prepared it, Wiegand v. Wiegand,
349 Pa. 517, 520, 37 A.2d 492; Commonwealth to use of Herzog v.
Henry W. Horst Co., 364 Pa. 403, 406, 72 A.2d 131; (4) unless
contrary to the plain meaning of the instrument, an interpretation
given it by the parties themselves will be favored, Monongahela
Street Railway Co. v. Philadelphia Co., 350 Pa. 603, 618, 619, 39 A.2d
909; Cirotti v. Wassell, 163 Pa.Super. 292, 60 A.2d 339; (5) 'to
41

Case ID: 130703647

ascertain the intention of the parties, the language of a deed


should be interpreted in the light of the subject matter, the
apparent object or purpose of the parties and the conditions
existing when it was executed', Baederwood, Inc., v. Moyer, 370 Pa.
35, 40, 41, 87 A.2d 246, 248; Silverstein v. Hornich, 376 Pa. 536,
103 A.2d 734.
Brookbank, 389 Pa. 157, 131 A.2d, 107, ftnt. 6.
138. The defense has failed to prove that as of 1854, there existed any
historical guidance in drafting a railroad deed other than the historical legal
meaning attributed to the legal phrases utilized.
139. Attorney Miller, who testified for plaintiff, was consistent as to the
necessity to take affirmative action upon the occurrance of the condition
subsequent.
2 Q. Okay. And [the Dickinson deed] specifically uses the word
3 repossess?
4 A. Yes.
5 Q. And does the phrase repossess have any
6 significance?
7 A. It requires affirmative action.
8 Q. And what type of affirmative action would have
9 to be taken?
10 A. Well, an action at law. ***.
14 A. Perhaps an action in equity, but affirmative
15 action would have to be brought by the grantor to
16 assert that the condition hadn't been met and to
17 repossess.
18 Q. Or had subsequently failed?
19 A. Yes.
20
THE COURT: Why is it under the
21
language affirmative action required?
22
THE WITNESS: Because this is not
23
language that conveys an automatic transfer of
24
rights.
[N.T. 3/16/2015 pp. 200-201.]
16 Q. Mr. Miller, let me ask this another way then.
17 Where you use the phrase shall repossess, does that
18 -- is that mandatory when you read that in the deed?
42

Case ID: 130703647

19 Such as on line 6 as His Honor just pointed out


20 where it says he or she shall thereupon repossess
21 and enjoy the same. Does that require some
22 mandatory action on the part of the grantor to take
23 some type of action?
24 A. I think it suggests to me that action by the
25 grantor is then necessary. It doesn't suggest to me
2 that the -- that it's automatically -- that
3 repossession is automatically realized. I think it
4 requires action.
5 Q. And when as the Court pointed out shall is
6 used twice, shall revest and then use shall
7 thereupon repossess, are those two phrases in
8 conflict?
9 A. I don't know that they're in conflict, but
10 they connote different rights, one of title and one
11 of possession, and possession is not automatic. It
12 requires affirmative action.
13 Q. And in addition to litigation, is there
14 another way? Can the parties amicably agree to some
15 form or remedy?
16 A. Sure.
17 Q. And that frequently happens?
18 A. Sure.
19 Q. By creation of another instrumented deed?
20 A. Yes.
[N.T. 3/16/2015 pp. 205-206.]
9
10
11
12
13
14

And I have to go a step further, Your


Honor, and say that absent affirmative action
by the grantor or the successors to the
grantor, successors in title to the grantor, I
would be concerned about latches. I would be
concerned about the statute of limitations.

[N.T. 3/16/2015 pp. 208.]


140. The defense may not parse the phrase, upon condition that from the
phrase shall revest and the phrase shall thereupon repossess. These phrases
are contained within the same sentence of the habendum to the 1854 Dickinson
deed.
43

Case ID: 130703647

St. Michael & Archangel Russian Orthodox Greek Catholic Church v.


Uhniat, 451 Pa. 176, 186, 301 A.2d 655, 660 (1973) ("A deed is to be
interpreted in light of the conditions existing when it was executed
and the entirety of the language is to be considered."); Harvey v.
Liberty Mut. Grp., Inc., 8 F. Supp. 3d 666, 675 (E.D. Pa. 2014)
("When the words of a contract are unequivocal, they speak for
themselves, and a meaning other than that expressed cannot be
given them. This court will not rewrite the contract or give it a
construction that conflicts with the plain, ordinary, and accepted
meaning of the words.'"). (quoting Muse v. Cermak, 428 Pa. Super.
199, 630 A.2d 891, 893 (1993)).
141. Dixon correctly recognizes a failed condition in a conveyance of a fee
simple subject to a condition subsequent requires the grantor to take some
positive action to regain title or lose it
Implicit in such an estate is the requirement that the holder of the
reversionary interest take some affirmative action to regain the
title.
[Exhibit 43, pg. 4.]
142. (1) Dixon refuses to discuss the the meaning of the words of the
1854 Dickinson deed.
143. (2) Dixon denies, effect must be given to all the language of the
instrument and no part shall be rejected if it can be given a meaning.
144. Dixon fails to give meaning to all of the language of the 1854
Dickinson deed.
The phrase the Entire and Exclusive use Right and liberty and
privilege of using occupying and Enjoying for railroad purposes in
the granting clause limits the estate granted to railroad purposes.
[Exhibit 43, pg. 8.]
And rejects the possibility of a reverter language.
upon condition that *** if it shall happen that the railroad
44

Case ID: 130703647

contemplated to be now shortly constructed on and over the said


described strip or piece of land *** shall be removed or abandoned
*** then the said strip of land shall revest *** and she or they shall
thereupon repossess ***.
145. (3) Dixon refuses to recognize the author of the 1854 Dickinson deed
is unknown, but was executed by both parties, accepting that both parties
participated in its creation.
146. (4) Dixon refuses to recognize the plain meaning of the 1854
Dickinson deed.
The enumeration of specific rights granted is inconsistent with the
grant of a fee, but consistent with the grant of an easement.
[Exhibit 43, pg. 9.]
147. (5) Dixon attaches significance only to his perceived historical
context of railroad takings.
Considering the subject matter in this case to be a conveyance to
a railroad in the mid 1800s, the Dickinson Deed must be examined
in its historical context to determine the intent of the parties.
[Exhibit 43, pg. 8.]
148. In fact, the North Penn had the power to take a right of way through
Dickinsons estate against her consent under 10 of the General Railroad Law of
1849 (repealed).
Econ. Improvement Co. v. Woodlawn Elec. St. Ry., 19 Pa. D. 491, 494
(C.P. 1909) ("[F]or the purpose of constructing, maintaining and
operating its line of railway, the defendant company has the right of
eminent domain, and by virtue thereof may take and occupy so
much land or material as may be necessary for the location,
construction, and operation of its railway, either as an extension or
relocation of an existing line, or as a new line[.]"); Dimmick v.
Broadhead, 75 Pa. 464, 467 (1874).
45

Case ID: 130703647

149. Instead, Dickinson bargained for compensation of $9,356.67 in 1854


dollars, upon condition that that the land be used for railroad purposes, as well
as the right to thereupon repossess the strip of land. [P20, D80.]
150. Dixons testimony contradicts his report as to the meaning of the
habendum clause.
This clause appears to limit the grant into a fee simple subject to
a condition subsequent or a fee simple determinable.
[Exhibit 43, pg. 10.]
151. Dixons testimony contradicts his report, where he incorrectly
testified,
7
8

The reversionary interest type of fee


is called a fee simple determinable.

[N.T. 3/16/2015, p. 18.]


152. Dixons report contradicts his testimony as, the report correctly
concludes certain indubitable language is required for a finding of a fee simple
determinable. Dixon correctly recognized a conveyance of a fee simple
determinable requires use of special words not present in the 1854 Dickinson
deed.
Words of indubitable limitation, such as so long as, during, while,
and until, are generally used to create the fee simple determinable
[citations omitted]. The Higbee Corporation v. Kennedy, 286
Pa.Super. 101, 106, 428 A.2d 592, 595 (1981).
[Exhibit 43, pp. 3-4.]
153. Dixon correctly recognizes a conveyance of a fee simple subject to a
condition subsequent uses words such as the words used in the 1854 Dickinson
46

Case ID: 130703647

deed.
Words such as on the condition that or provided that imply a fee
simple subject to a condition subsequent.
[Exhibit 43, pg. 4.]
154. Dixons report is internally contradictory due to his unexplained
interpretation of the habendum clause.
However, this interpretation of the habendum clause is inconsistent
with the language of the grant in the Dickinson Deed which clearly
granted a railroad right-of-way, an easement, and not a fee.
[Exhibit 43, pg. 10.]
155. The 1854 Dickinson deed habendum is not inconsistent with the grant
clause, but merely expands on the granting clause and defines the interest/estate
being conveyed.
Herr v. Herr, 2008 PA Super 227, 11, 957 A.2d 1280, 1286-87 ("A
habendum clause is '[t]he part of a deed that defines the extent of
the interest being granted and any conditions affecting the grant.'
Black's Law Dictionary (7th Ed.) at 716; see Ontelaunee Orchards v.
Rothermel, 139 Pa. Super. 44, 11 A.2d 543, 545 (1940) ('The
purpose of the habendum clause in a deed is to determine what
estate passes.').").
156. Dixon again contradicts his report by summarizing the Dickinson
deed.
13
14
15
16
17
18
19
20
21

Q. With respect to the concept of a fee subject


to a condition subsequent, what would be the effect
of that language in a deed involving railroad
interests?
A. As soon as the property would cease to be used
as a railroad, the holders -- or holder or holders
of the right of reentry or as the restatement calls
it, the power to terminate, must reenter the
property. ***.
47

Case ID: 130703647

[N.T. 3/16/2015, p. 27.]


157. Referring to the 1854 Dickinson Deed, Dixons ultimate contradiction
is his statement, in my view that it was firm that what we were talking about
was a railroad easement and that there were no reversions involved. Hence,
finding the strip of land did not revert to the defendants.
158. Referring to the 1854 Dickinson Deed, Dixons penultimate
contradiction is his statement,
9 They don't use easement or railroad easement because
10 the term -- it wasn't -- in those days 1850, it
11 wasn't an easement at that point. It commonly was
12 understood. We were only analogizing to an easement
13 of public street easement is what the Courts say.
14 So they're being worried about what -- they're
15 trying to be explicit because there is no law at
16 that point. There is no firm law here. So they're
17 trying to lay out what they intend, and so they're
18 saying it's for the use, and they say but if you
19 should stop using it, as we go on, if I may, to be
20 enjoyed for railroad purposes, and then they go on
21 to describe the next page.
[N.T. 3/16/2015, p. 36.]
159. Contradictory expert evidence on behalf of a party cannot support a
judgment.
Simmons v. Mullen, 231 Pa. Super. 199, 213-14, 331 A.2d 892, 900
(1974) ("Contradiction among a party's experts is only fatal,
however, if there is absolute conflict in their ultimate conclusions.").
160. Dixons report erroneously concludes the grant and the habendum
are inconsistent, and erroneously states the law.
Where the granting clause and the habendum clause are
inconsistent, the granting clause prevails.
48

Case ID: 130703647

[Exhibit 43, pg. 10; N.T. 3/16/2015, p. 72, lns. 11-17.]


161. Dixon contradicts his report by opining the grant and the habendum
of the 1854 Dickinson Deed are not inconsistent.
13 Q. Did you find any inconsistency in the
14 Dickinson deed between the granting language in the
15 granting clause and the language in the habendum
16 clause?
17 A. I did not, ***.
[N.T. 3/16/2015, p. 39.]
6 ***. Is there
7 any conflict between [the hadendum] and the grant clause
8 beginning in the paragraph that says "witness" above
9 it?
10 A. Not to my -- I don't see any conflict.
[N.T. 3/16/2015, p. 73, lns. 19 - p. 74 ln. 10; N.T. 3/16/2015, p. 74, lns.
17 - p. 75 ln. 8.]
162. To the contrary, in Herr v. Herr, 957 A.2d 1280 (Pa.Super. 2008), the
court defined the habendum clause as,
"[t]he part of a deed that defines the extent of the interest being
granted and any conditions affecting the grant." Black's Law
Dictionary (7th Ed.) at 716; see Ontelaunee Orchards v. Rothermel,
139 Pa.Super. 44, 11 A.2d 543, 545 (1940) ("The purpose of the
habendum clause in a deed is to determine what estate passes.").
163. The habendum in the 1854 Dickinson deed does not enlarge the estate
granted, but defines it.
TO HAVE AND TO HOLD the rights and premises aforesaid unto
the said The North Pennsylvania Rail Road Company, their
successors and assigns forever, upon condition that the said
Company, its successors or assigns, shall make, maintain, keep and
use upon the aforesaid piece of land a Rail Road, and if it shall
happen that the railroad contemplated to be now shortly
constructed on and over the said described strip or piece of land or
any renewals or reconstructions thereof, shall be removed or
abandoned or the said described piece of land shall cease to be used
49

Case ID: 130703647

for Rail road purposes, then the said strip of land shall revest in the
said Sally Norris Dickinson, her heirs and assigns, as of her and their
first and former Estate, and she or they shall thereupon repossess
and enjoy the same as if this present Indenture had never been
made.
[Exhibit P1, P2, D80.]
164. Dixon concludes the following points support his interpretation of the
unexplained interpretation of the 1854 Dickinson deed.
1. The grant was for a limited purpose: railroad use;
2. The land conveyed was a narrow strip cutting across the grantors
property;
3. There was no warranty of title.
4. The habendum clause recites what would happen as a matter of
law if the railroad abandoned the right-of way.
[Exhibit 43, pg. 11.]
165. In Kapp v. Norfolk Southern Railway Co., 350 F.Supp. 2d 597 (M.D.Pa.
2004), it was reviewed by the court,
Easements may be created by express agreement, by implication, by
estoppel, or by operation of law.
Kapp, at 9.
166. An express easement, is one which is in writing and recorded.
Express easements are often created by deed reservation, in
which the grantor reserves a right to use the conveyed property
for a certain purpose. See Brady v. Yodanza, 425 A.2d 726, 727-28
(Pa. 1981). A deed that contains such a reservation imposes an
easement on the conveyed tenement, which thereafter is considered
the servient estate. (citation omitted.) The owner of the property
benefitted by the easement (the dominant estate) may then use the
servient estate for the purpose stated in the deed, regardless of
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Case ID: 130703647

subsequent divisions or transfers of ownership of the servient estate.


Kapp, at 9.
167. Under this definition, the dominant tenement is the rail roadbed
conveyed by Dickinson. Dickinson did not reserve a right to herself to use the rail
roadbed conveyed.
168. Dickinson did not reserve a benefit to herself to use the rail roadbed
conveyed.
169. To the contrary, Dickinson conveyed the strip of land upon condition
that the said North Penn build and operate a railroad. [P58.]
170. Andrew Miller, Esquire, a real estate specialist and title agent trstified
for plaintiff as to the meaning of the phrase upon condition that.
12
13
14
15
16
17
18

Q. And what do the words "upon the condition


that" mean?
A. It means that there is a condition to the
grant, and if that condition is not met or -- if
that condition is not met -- or to say it another
way. If a certain event occurs, then there are
consequences.

[N.T. 3/16/2015, p. 199.]


171. Dixon disagrees the use of the magic words of a fee simple subject to a
condition creates such a grant.
24 Q. Whereas a condition subsequent would use words
25 such as upon condition that?
2 A. Yes, that's one of them.
3 Q. And in particular that's the specific language
4 that is used in D-58, the deed from Ms. Dickinson to
5 the railroad?
6 A. I agree that it's the language that's used in
7 there. I don't agree with your implication.
51

Case ID: 130703647

[N.T. 3/16/2015, p. 87-88.]


172. Hence, by definition, the 1854 Dickinson deed cannot be an easement.
VI. The Dixon theory.
173. Dixon claims reliance upon Brookbank v. Benedum Trees Oil Co., 389
Pa. 151, 131 A.2d 103 (1957), as authority for his easement theory.
174. Brookbank involved a 1903 "agreement" between the landowners and
the railroad.
175. The Brookbank agreement provided in pertinent part as follows,
Know All Men By These Presents, That, J. J. Ingraham and
Anna Ingraham parties of the first part, for and in
consideration of the sum of Three Hundred Dollars, lawful
money of the United States, duly paid by the railroad company
hereinafter mentioned, to us, receipt of which is hereby
acknowledged, have granted, bargained, sold, released and
conveyed unto the Susquehanna and Southern Railroad
Company, a corporation organized under the laws of
Pennsylvania, its successors and assigns, a strip of land four
rods in width, and, through cuts and fills such additional
widths as may be needed for slopes, onehalf thereof on either
side of the center line as now located, of the Susquehanna and
Southern Railroad, leading from Sinnemahoning,
Pennsylvania, to DuBois, Sykesville, &c., through lands of the
parties above mentioned, situate in Gibson Township,
Cameron County, Pennsylvania.
Together with the right to enter upon the said land and
lay out, construct, maintain and operate a railroad over and
across the lands belonging to the parties above mentioned,
taking and using such earth, stones and gravel, as may be
needed for grading and filling such road, and hereby fully
releasing said railroad company, its successors and
assigns, from all liability by reason of the location,
construction and operation of the said railroad.
A good farm crossing and cattle guard on each side
thereof to be built and maintained by said Company.
Id. at 154-55, 131 A.2d at 106.
52

Case ID: 130703647

176. The court in Brookbank paid particular attention to the fact that,
these words [granted, bargained, sold, released and conveyed] are used in the
past, rather than the present tense.
The words grant, bargain, etc., must be interpreted in the light of the
entire instrument, particularly since these words are used in the
past, rather than the present tense. These words, used in the past
tense, do not, standing alone, compel an interpretation that a fee was
intended to be conveyed.
Id. at 160, 131 A.2d at 109.
177. Unlike the Brookbank agreement, the 1854 Dickinson deed uses the
terms grant, bargain, sell, release, and confirm in the present tense.
178. The Brookbank court as well questioned why the agreement would
specify the uses that the railroad could make of the property, if the intent was to
convey a fee.
The language of the second paragraph spells out specifically
certain rights given to the railroad and also a release running from
the landowner relieving the railroad of certain possible liabilities.
The railroad is given the 'right to enter upon said land, to lease, use,
construct, maintain and operate a railroad over and across the land
* * * taking and using such earth, stones and gravel as may be
needed for grading and filling such road'. The rights thus granted
the right of entry, the right to use, construct, maintain and operate a
railroad, the right to use earth, stones and gravel to grade and fill
the roadbedare all rights which naturally and lawfully arise from
ownership of land in fee simple. If the parties intended the railroad
to receive a fee in this land, this language would give it those rights
which it already had. If the parties intended to convey a fee simple
interest to the railroad, it was surplusage to give the railroad these
rights because such rights would naturally belong to the railroad as
holder of the fee. The only rational conclusion from this language is
that the parties did not intend to vest in the railroad any interest in
fee simple; any other construction does violence to the expressed
grant of these rights to the railroad.
Id. at 163, 131 A.2d at 110 (footnote omitted).
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Case ID: 130703647

179. The 1854 Dickinson deed, unlike the agreement in Brookbank, does
not go into further detail about other uses that the railroad can make of the land,
i.e., using and taking earth, stones, and gravel from the land; which Dixon
claimed created an easement. [N.T. 3/16/2015, p. 21, lns. 18-25; p. 65, lns.
16-22.]
180. The for railroad purposes language was clearly inserted in the deed
to ensure that the railroad would use the land as a railroad; and when no longer
used for railroad purposes, Dickinson could thereupon repossess. But this
language did not convert it into a mere easement.
181. The railroad "acquired thereby a qualified fee, which is nonetheless a
fee simple, even though the use of the land may be limited by the qualification."
City of Pittsburgh v. Pa. R.R., 394 Pa. 58, 145 A.2d 700, 704 (1958) (where deed
under which railroad acquired land for relocation of street provided that any part
of land conveyed remaining after relocation of street should be used only as a
slope for such street, railroad acquired a fee simple, even though use of land was
limited by the qualification).
182. Unlike the agreement in Brookbank, the 1854 Dickinson deed
contains a clear habendum.
183. If the intent of the 1854 Dickinson deed was to create an easement,
then there would have been no reason to have an habendum clause. The
Brookbank court stated,
Bearing on the character of this instrument is the omission of
habendum, tenendum and warranty clauses. If the railroad intended
to receive a fee, is it likely that it would not have required of
54

Case ID: 130703647

Ingrahams a warranty of their title? If the railroad intended to


receive a fee, is it likely that a habendum clausedescriptive of the
extent of the estate conveyedwould have been omitted? It seems
inconceivable that the railroad would have omitted these clauses
from an instrument of conveyance under whose terms they intended
to receive a fee simple estate.
389 Pa. at 162-63, 131 A.2d at 110.
184. Stated another way, why would the 1854 Dickinson deed contain an
habendum providing the grantor with a right to retake title to the property if the
parties to the deed merely intended to create an easement, which easement
would automatically extinguish upon an abandonment thereof?
185. The language of the 1854 Dickinson deed provides the railroad with
the assurance, that the grantor herself has not done anything to defeat the estate
granted. Whitehill v. Gotwalt, 3 Pen. & W. 313, 1832 WL 3080 (Pa. 1832) (the
words "grant, bargain and sell" do not, under the Act of May 28, 1715, 1 Sm.L. 94,
21 P.S. 8 note, amount to a general warranty; but to a covenant that the grantor
has not done any act, nor created any incumbrance, whereby the estate granted
by him may be defeated).
186. Sally Norris Dickinson, at the time of her death in October 1855, was
the owner of a sizable, irregular parcel of land, comprising much of North
Philadelphia, from C Street to the east, 7th Street to the west, Nicetown Lane to
the south and the former Wingohocking Creek [Annsbury Street] to the north.
[Exhibits D39, D76, plan of property #1.]
187. Dickinson named this tract the Crosia Dore Plantation, today known
as the badlands. [Exhibits P39, D76, plan of property #1.]
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Case ID: 130703647

188. In addition, Dickinson owned tracts on Norris Alley at Second Street


above Walnut Street in center city Philadelphia [Exhibit D76, plan of property
#B], and on Shackamaxon Street near Delaware Avenue [Exhibits D76, plan of
property #3].
189. As well, Exhibit D76 references estates in Kent and New Castle
counties in Delaware.
190. As such, in 1854 Dickinson was a substantial land owner with
substantial bargaining power.
191. See, e.g., In re Laurel Run Corp., 166 B.R. 242 (Bankr. M.D. Pa. 1994)
(agreement between landowner's predecessor in titlerailroad and grantor
conveyed to railroad fee simple title in surface estate and right to surface
support, rather than mere right of way, even though deed did not contain a
warranty of title provision or specific language).
192. In addition to the grant clause, the 1854 Dickinson deed granted to
the North Penn the incidents, easements and appurtenances to the strip of land.
TOGETHER with the incidents, easements and appurtenances
thereunto belonging.
193. Dixon asserts an easement may convey an easement.
10
11
12
13
14

Q. So what you're saying is this is an easement


which conveys easements?
A. Well, this is standard language for any
conveyance. But, yes, anything that was incidental
to their rights. ***.

[N.T. 3/16/2015, p. 85.]


194. Under Pennsylvania law, an easement cannot convey an easement.
56

Case ID: 130703647

Rusciolelli v. Smith, 195 Pa. Super. 562, 569, 171 A.2d 802, 806
(1961) ("If this is an easement in gross, personal to Didions, it is
generally held to be nonassignable unless it is made assignable by
the instrument creating it." (citations omitted).
195. Unlike the agreement in Brookbank, the 1854 Dickinson deed in
numerous places refers to, for example, "all that strip of land," "said strip of land"
and specifies the acreage. This sort of language, used repeatedly, is inconsistent
with an intent to convey a mere easement. See, e.g., Gregory v. United States, 101
Fed. Cl. 203 (2011) (deeds conveying "a strip of land" to railroad conveyed fee
titles, rather than easements).
196. The Brookbank agreement expressly released the railroad from
liability arising from its location, construction, and operation of the railroad;
which may well have included a release of liability for compensation for the prior
taking under the General Railroad Law of 1849.
The landowner further releases the railroad from any liability
arising from the location, construction and operation of the railroad.
If the railroad were given under this instrument a fee interest in this
land the railroad would have a complete right to locate, construct
and operate a railroad over the land. The only situation where any
liability might accrue to the railroad from the location, construction
and operation over this land would be in the event the railroad
secured simply a 'right of way' over the land.
Brookbank, 389 Pa. at 163, 131 A.2d at 110.
197. The 1854 Dickinson deed did not have release-of-liability language
since it conveyed a fee simple interest.
198. The Brookbank court as well considered the amount of consideration
recited in the deed.
A circumstance which can be a factor in the determination of the
57

Case ID: 130703647

question of the quantum of the estate intended to be conveyed is the


amount of consideration shown to have been paid by the railroad.
Id. at 159, 131 A.2d at 108.
199. The recited consideration in Brookbank was $300.
200. The purchase price for plaintiffs .6 mile strip of land was $18,000.00.
[Exhibits P4, P4A, D2.]
201. The 1854 Dickinson deed conveyed an .8 miles strip of land extending
from the Nicetown Lane northward to the former Wingohocking Creek, for
consideration of $9,356.67 in 1854 dollars. [N.T. 3/16/2015, p. 96 lns. 14-16.]
202. This court may take judicial notice of the data published by the
Federal Reserve Board of Minneapolis interpreting the time value of $1.00 of
1854 dollars today.
In re Appeal of John Wanamaker, Phila., 360 Pa. 638, 644, 63 A.2d
349, 352 (1949) ("We also can take judicial notice that because of
the devaluation of our currency and the inflationary trends, when
you express value in terms of dollars, they are not the dollars you
were talking about one, two or six years ago. It takes more dollars
today to buy things which less dollars would previously have bought.
We cannot shut our eyes to this plain fact."); In re Snider Farms, Inc.,
83 B.R. 977, 997 (Bankr. N.D. Ind. 1988) ("This court takes judicial
notice of selected interest rates as announced in the December 14,
1987 Federal Reserve Statistical Release H.").
203. The formula used by the Federal Reserve Board of Minneapolis to
calculate the time value of money in 2014 dollars is as follows.
What is $1 in 1854 worth in 2014?
2014 Price = 1854 Price x (2014 CPI / 1850 CPI)
2014 Price = $9,356.67 x (712.5 / 27)
2014 Price = $9,356.67 x $26.38
58

Case ID: 130703647

2014 Price = $246,912.12


https://minneapolisfed.org/community/teaching-aids/cpi-calculatorinformation/consumer-price-index-1800
204. $9,356.67 in 1854 dollars is equal to approximately $246,912.12 in
2014 dollars.
205. Dixon as well claims reliance upon Quarry Office Park Associates v.
Philadelphia Electric Co., 394 Pa. Super. 426, 576 A.2d 358 (1990), as authority
for his easement theory.
206. The Quarry Office Park agreements provided in pertinent part as
follows,
Know all Men by these Presents, That I, [name of landowner] of
Chester County, for and in consideration of the benefits which may
or shall result to me from the construction and completion of the
Chester Valley Rail Road, and in consideration of the sum of One
Dollar, to me in hand paid by the Chester Valley Rail Road Company,
the receipt whereof is hereby acknowledged, have granted,
bargained, sold, conveyed and confirmed, and by these presents do
grant, bargain, sell, convey and confirm unto the said the Chester
Valley Rail Road Company, their successors and assigns, the right,
liberty, and privilege of entering upon and occupying the land
belonging to me on and near the route of said Rail Road, (as the
same is prescribed and defined in an Act of the General Assembly of
the Commonwealth of Pennsylvania, passed on the 22d day of April,
A.D., 1850 creating the said Company,) to the extent of thirty three
(33) feet in width of the said land on each side of the centre line of
said Rail Road, and such additional width as may be necessary in the
construction and use of said road at deep cuttings and
embankments, but to no other or greater extent in width; and
extending in length of the width aforesaid, [description of length]
and also the right of using, occupying, and enjoying the said land
perpetually, for all the uses and purposes convenient or necessary
for a Rail Road. And I do hereby release to the said The Chester
Valley Rail Road Company, all claim for or right to any damages
which have accrued, or may or can accrue to me and to my heirs,
executors, administrators and assigns, for or by reason of the said
59

Case ID: 130703647

Company's taking, holding, or using the said land, to the extent


herein above described, or any part thereof, for the use and purpose
aforesaid.
Id. at 431-32, 576 A.2d at 360-61.
207. The Quarry Office Park court explained the recited language created
an easement.
The present agreements contain no clauses requiring that the
landowners warrant their title to the property or describing the
extent of the estate conveyed. The Brookbank court found it
inconceivable that the railroad would have omitted these clauses
from an instrument of conveyance under whose terms they intended
to receive a fee simple estate. Id. at 16263, 131 A.2d at 110. The
agreements specify that the Chester Valley Rail Road has the right,
liberty, and privilege of entering upon and occupying the land and
the right of using, occupying, and enjoying the said land perpetually,
for all the uses and purposes convenient or necessary for a Rail
Road. As the Brookbank court noted, [i]f the parties intended to
convey a fee simple interest to the railroad, it was surplusage to give
the railroad these rights because such rights would naturally belong
to the railroad as holder of the fee. Id. at 163, 131 A.2d at 110.
Finally, the instant agreements release the Rail Road Company from
all claim for or right to any damages resulting from the Company's
taking and using the land for the construction and use of the
railroad. The Brookbank court held that a similar release indicated
the conveyance of a right of way, because if a fee interest had been
conveyed, the railroad would have a complete right to build and
operate a railroad over the land. Id. at 16364, 131 A.2d at 110. Given
the close parallel between the instrument of conveyance in
Brookbank and the agreements at issue here, we hold that the
Chester Valley Rail Road Company secured a right of way for
railroad purposes by virtue of the instruments of conveyance.
Id. at 435-36, 576 A.2d at 362-63.
208. The grantor in Quarry Office Park retained a benefit to herself coming
from the rail roadbed conveyed.
209. The agreements in Quarry Office Park did not contain an habendum
clause.
60

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210. The agreements in Quarry Office Park purported to release the


railroad company from all claims and damages resulting from the company's
taking and using the land for the construction and use of the railroad.
211. The 1854 Dickinson deed does not contain such a release.
212. Dixon as well relies upon Mackall v. Fleegle, 2002 PA Super 178, 801
A.2d 577 (1990), as authority for his easement theory.
213. The Mackall release provided as follows,

Know all men by these Presents, That the undersigned,
owners of Real Estate of the County of Bedford in the State of
Pennsylvania, for and in consideration of the benefits and
advantages which will result to us from the location and
construction of the Bedford and Bridgeport Railroad and in
further consideration of the sum of One Dollar to us in hand paid by
the Pittsburgh and Connellsville Railroad Company have bargained,
sold, released and quitclaim unto the Pittsburgh & Connellsville
Railroad Company, and their successors and assigns forever, for the
use of the said Bedford & Bridgeport Railroad Company, a strip of
land four rods in width, and such additional width as may be
required and necessary in the construction, repair and use of a
double track for said Bedford & Bridgeport Road extending in length
as far as the Railroad may pass over our lands, together with such
additional land on either or both sides of the aforesaid piece of land
as may be required for the slopes of the cuts and embankments of
said Road, together with the rightofway over said tract of land
belonging to us sufficient to enable said Company to conduct and
carry water by aqueducts and pipe and the right to make proper
drains. To have and to hold the same, together with the privileges
aforesaid, to the Pittsburgh and Connellsville Railroad Company,
their successors and assigns forever, for the purpose of the Railroad
aforesaid, with all and singular the appurtenances thereunto
belonging. And we do further covenant, agree and bind ourselves, by
these presents, to execute a further deed of conveyance to Bedford &
Bridgeport Railroad Company, fully describing said land hereby sold
to them, whenever the same may be demanded by said Company, or
their agent, after said road shall have been permanently located
through our lands, and we do hereby release to the said Bedford
and Bridgeport Railroad Company all claim for or right to
damages which may accrue to us for or by reason of the
61

Case ID: 130703647

appropriation and occupancy of the said land by said Company. The


undersigned further agree that the said Bedford and Bridgeport
Company shall have the privilege of removing from any of our
lands adjacent said Road, any gravel, stone and other material
that they may find necessary to the construction, repair and use
of said Road, and also the right and privilege of casting earth upon
and otherwise using so much of the land on both sides of the land
hereby conveyed as may be necessary for the convenience of the
said Company while the said Railroad is being constructed.
Id. 2, 801 A.2d at 579.
214. In holding that the 1870 release created only an easement, the
Mackall court explained,
Construing the document as a whole, in its most basic form, it
appears that the grantors intended to allow the railroad to use a
strip of land of a certain width which would run over the grantors'
land to construct and operate a railroad track. Allowance was made
for the railroad to use additional land as necessary to fashion the
cuts and embankments necessary to the construction of the track. In
addition to the construction of the track, the railroad was also
granted a right of way over the aforementioned strip of land
belonging to the grantors to conduct and carry water via pipeline
and aqueduct. The railroad was also granted permission to use or
remove any gravel or stone it needed for its construction from the
surrounding land. The railroad was released from all liability which
may have accrued or would accrue to the grantors due to the
railroad's use of the strip of land. Finally, the grantors agreed to
execute a further deed of conveyance in the future, the terms of
which are unspecified, to the railroad should the railroad demand
that they do so. The document does not specify exactly which
strip of land was to be used, nor does it specify that the grantors
relinquished or sold to the railroad their interest in or title to a
specific strip of land. Accordingly, we hold that the Trial Court
correctly found that the document granted the railroad an easement
and not a fee simple interest in an unspecified strip of land 66 feet
wide upon which the railroad constructed a length of track.
Id. 12, 801 A.2d at 583.
215. The 1854 Dickinson deed does not talk about the railroad using
additional land to assist in the construction of a track.
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Case ID: 130703647

216. The 1854 Dickinson deed does not give a right-of-way over additional
land of the grantor or allow the railroad to take materials from the surrounding
land needed to construct the track.
217. The 1854 Dickinson deed does not contain a release of liability
provision.
218. The 1854 Dickinson deed does not provide for the additional
execution of instruments between the parties.
219. Dixon as well claims reliance upon Lawson v. Simonsen, 490 Pa. 509,
417 A.2d 155 (1980), as authority for his easement theory.
220. The Lawson court held an 1881 release conveyed only an easement
to the railroad.
221. The Lawson release provided in pertinent part as follows,
Know all men by these presence [sic] that Henry Cobham of the
Borough of Warren, County of Warren and Commonwealth of
Pennsylvania and Ann Cobham, his wife, for and in consideration of
the public and private advantages prospectively resolving from the
construction of the proposed extension of the Buffalo, Pittsburgh and
Western Railroad as well as of the sum of one dollar to them in hand
paid, receipt whereof is hereby acknowledged do hereby grant and
release unto the Buffalo, Pittsburgh and Western Railroad Company
and its successors so much of the land of the said Henry Cobham and
Ann Cobham, situate in the Township of Glade in the County of
Warren aforesaid as may be necessary and convenient therefore
according to the provisions of the Act incorporating said company
and other laws relating thereto, without further lot or hindrance
from them, their heirs or assigns, the land hereby released or
intended so to being a piece or strip of land four rods (66 feet) in
width extending through and along the line of survey of said railroad
company (premises herein described).
The land hereby granted and released or intended so to be, being
the legal right of way of said railroad company through the above
described land, said right of way not to exceed four rods (66 feet) in
width 33 feet on each side of the center of the main track.
63

Case ID: 130703647

The said Henry Cobham and Ann Cobham also grant and release
unto the said railroad company land sufficient for the said company
to construct a public or wagon road upon in place of the one occupied
by the said company * * *.
Id. at 514-15, 417 A.2d at 158.
222. The Lawson court paid particular attention to the lack of an
habendum clause in the release.
223. The Lawson court as well focused heavily on the consideration recited
in the release$1.00.
Here, the consideration was only $1.00. The land in question
apparently extends 33,415 feet and is 66 feet wide. Surely even in
1881 the sum of $1.00 was insufficient to convey a fee interest in a
strip of farm land 66 feet wide and 6 miles long.
Id., 490 Pa. at 515-16, 417 A.2d at 159.
224. Dixon as well claims reliance upon Fleck v. UniversalCyclops Steel
Corp., 397 Pa. 648, 156 A.2d 832 (1959), as authority for his easement theory.
225. The 1885 grant in Fleck specifically referred to,
a rightofway through and over said land the whole distance of said
railway through the same.
Id. at 648, 156 A.2d at 833.
226. The Fleck court explained that,
[t]he granting clause of the 1885 McKeon deed recited the
conveyance of a rightofway through and over said land, indicating
a mere surface interest, i. e., an easement and not a fee (base or
absolute).
Id. at 651, 156 A.2d at 834.
227. The 1854 Dickinson deed does not refer to a right-of-way.
228. The instrument in Fleck did contained an habendum providing,
64

Case ID: 130703647

To Have And To Hold The Said Strips Of Land And The Said Rights
and privileges and uses to the said Pittsburgh, Chartiers and
Youghiogheny Railway Company, its successors and assigns, so long
as the same shall be required for the uses and purposes of said
Railway.
Id. at 648, 156 A.2d at 833.
229. However, the Fleck court found that the language of the habendum
was entirely inconsistent with the language in the granting clause purporting to
convey a right of way.
230. The Fleck court explained that,
if and where the granting clause and the habendum clause of a deed
are inconsistent, conflicting or repugnant, the granting clause must
prevail.
Id. at 652, 156 A.2d at 834.
231. There is not an actual conflict between the granting and habendum
clauses with respect to the 1854 Dickinson deed.
VIII. Non-use of express easement.
232. It makes no difference whether the court interprets the 1854
Dickinson deed, which uses the phrase upon condition that the said Company to
be a fee simple subject to a condition subsequent or interprets the phrase to grant
an easement.
233. Dixon is erroneously misinformed whether some action is required to
extinguish an interest granted by easement.
7 Q. And what would be the case of an easement?
8 A. As soon as ConRail abandoned the use, the
9 landowners on each side of that track would have
10 immediate right to possess and full title would be
11 returned to them without any action on their part
65

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12 whatsoever.
13 Q. No action whatsoever under an easement?
14 A. Correct.
[N.T. 3/16/2015, p. 101.]
234. The interest in the North Penn obtained from Dickinson was created
by a recorded deed. [P58.]
235. In Werry v. Sheldon, 148 Pa.Super. 13, 18, 24 A.2d 631, 633 (1942),
Superior court held an express easement cannot be automatically extinguished.
We place no weight to appellees' contention that the evidence
established a non user of this road by the plaintiffs or their
predecessors in title and that it constituted an abandonment thereof.
This easement, created by a grant, cannot be extinguished or
affected by non user unless it is shown by some positive, adverse,
and hostile interference by one who claims that the easement has
been extinguished, or the loss of title in some other way recognized
by law. No such situation is present.
It is not necessary that an owner of an easement appurtenant to
land should make use of it to maintain ownership: Weaver v. Getz, 16
Pa.Super. 418.
[N.T. 3/16/2015, p. 101, lns. 15 - p. 102 ln. 7.]
236. In The Baptist Church In The Great Valley v. Urquhart, 406 Pa. 620,
629, 178 A.2d 583, 587 (1962), Supreme court upheld,
The fact that appellants did not insist upon the use of the right of
way for several years is not controlling. Mere nonuse, no matter how
long extended, will not result in extinguishment of an easement
created by deed, Graham v. Safe Harbor Water Power Corp., 315 Pa.
572, 173 A.2d 311 (1934).
237. In Hatcher v. Chesner, 422 Pa. 138, 141-142, 221 A.2d 305, 307-308
(Pa. 1966), a rail roadbed was created by deed in 1894, however, the road had
not been used for some 35 years. Supreme court therein held,

The problems raised by the defenses of abandonment and adverse


66

Case ID: 130703647

possession are so interrelated that they must be considered together.


The Restatement of Property, 504 (1944), recognizes that an
easement may be lost by abandonment. ***. A number of states
adhere to this view. ***.
Pennsylvania, however, has always been reluctant to accept this
theory. Instead, where an easement is created by deed, Pennsylvania
has required not only intent to abandon by the dominant tenement,
but adverse possession by the servient tenement as well: Richmond
v. Bennett, 205 Pa. 470, 55 A. 17 (1903). Thus the Pennsylvania
courts look not only to the actions and intentions of the dominant
tenement with which the Restatement limits its consideration, but
also to the Intentions and actions of the servient tenement as well.
The rationale behind the Pennsylvania rule was stated in Lindeman
v. Lindsey, 69 Pa. 93, 100 (1871), wherein this Court said: 'A man
ought not to be obliged unless he requires it, actually to use a right or
privilege secured to him by deed, nor resort to legal proceedings
unless his title is denied, and he is actually ousted, disseised,
obstructed or prevented by some wrongdoer from an enjoyment of it
when he requires and demands such enjoyment.' It is clear from this
and later cases that our courts equate ownership of an easement
with ownership of a fee for these purposes. See, Weaver v. Getz, 16
Pa.Super. 418 (1901). Another factor in the view held by this state is
the general dislike of forfeiture by our courts. See, Corey v.
Edgewood Borough, 18 Pa.Super. 216 (1901).
238. Attorney Millers testimony was of the opinion, based upon the cases,
that a recorded easement, similar to a recorded fee, cannot be lost by non use,
under Pennsylvania law.
8 Q. Mr. Miller, if you can turn to page 99 of the
9 Piper case, the highlighted part of the full
10 paragraph on that page, sir.
11 A. Right, that's what His Honor was just
12 referring to. "While the owners of the dominant
13 tenement may have made infrequent use of the
14 right-of-way, these facts alone will not terminate
15 an express easement."
16 Q. And an express easement traditionally means
17 one that is written?
18 A. Yes.
[N.T. 3/16/2015 p. 217.]
67

Case ID: 130703647

239. In Piper v. Mowris, 466 Pa. 89, 98-99, 351 A.2d 635, 639 (1976), it
was said,
In order for the servient tenement to establish abandonment
'Pennsylvania law requires that there be a showing of intent of the
owner of the dominant tenement to abandon the easement, coupled
with either (1) adverse possession by the owner of the servient
tenement; or (2) affirmative acts by the owner of the easement that
renders the use of the easement impossible; or (3) obstruction of the
easement by the owner of the easement in a manner that is
inconsistent with its further enjoyment. ***.
As to the question of adverse possession, this Court has held that
'the adverse possession that will bar easements must be actual,
continuous, adverse, visible, notorious, and hostile possession of the
land in question for twenty-one years.
240. The evidence of an intent to abandon the right of ownership must be
clear and persuasive. Iorfida v. Mary Robert Realty Company, Inc., 372 Pa.Super.
170, 179-180, 539 A.2d 383, 388 (1988).
Arising by implication by reference to maps in deeds of conveyance,
the rights of the dominant owners can be extinguished only on a
showing of affirmative conduct or physical obstruction on their parts
which is inconsistent with its further enjoyment. Sabados, 258
Pa.Super. at 535, 393 A.2d at 487. It is fundamental that mere
nonuse of an easement, no matter how long continued, does not
manifest an intent to abandon it; an owner of an easement
appurtenant to land is not required to use it in order to maintain
ownership of it. Hatcher, 422 Pa. at 140, 221 A.2d at 307;
Philadelphia Music Academy, 345 Pa.Super. at 448, 498 A.2d at 908.
As this court stated in Sabados, "mere nonuse is but the exercise of
ownership, not its surrender." Id. 258 Pa.Super. at 539, 393 A.2d at
489. Therefore, whether or not appellants had in the past or could
presently traverse the alley other than on foot was irrelevant to a
finding of abandonment. ***.
While evidence of acquiescence in the adverse acts of other
dominant owners can be relevant to the issue of intent to abandon,
requiring a dominant owner to legally complain on pain of
extinguishment of his easement rights is repugnant. Forfeiture of
possessory rights is "an abhorrence and greatly disfavored."
Sabados, 258 Pa.Super. at 539, 393 A.2d at 489 (citing Hatcher, 422
Pa. at 142, 221 A.2d at 308). Further, acts of acquiescence cannot,
68

Case ID: 130703647

by definition, be affirmative acts, nor can the affirmative acts of one


dominant owner be attributed to others who merely stood by.
IX. Adverse possession.
241. Defendants, John Giunup and Michael Pettacio own 4525 N. 6th
Street.
242. Giunup and Pettacio operate their business on a pie-shaped portion of
the rail roadbed. [N.T. 3/15/2015, p. 117-118.]
243. Giunup and Pettacio have commenced a counterclaim on November
15, 2013, to quiet title. [Exhibit P26.]
244. Giunup and Pettacio have failed to prove any specific term of years.
245. John Giunup testified his use of the railroad property as a parking
area since purchase in 2004.
11
How is the area within the existing
12 stone and block wall been used by you since you took
13 possession?
14 A. We use that for parking.
15 Q. And do you park up to the point of the stone
16 and block wall?
17 A. Correct, right up to the wall.
18 Q. So we've referred to this area on the interior
19 of the existing stone and block wall as affectively
20 a pie piece; do you see that, sir?
21 A. That's correct.
22 Q. And is that pie piece area that you've used
23 continuously since you've purchased the property?
24 A. Yes.
25 Q. How do you use that area in question?
2 A. We park our trucks there and some storage of
3 containers.
[N.T. 3/15/2015, p. 117-118.]
248. Contrary to the perjury suborned of Mr. Englehardt, the trucks are
69

Case ID: 130703647

not visible behind the building and wall.


11
12
13
14
15
16

Q. Is your use of the pie piece visible to those


who may be coming down West Annsbury Street or on
North 6th Street?
A. No, not really. Just a wall there. There is
a wall on Annsbury, and 6th Street there is the
building. You can't really see anything.

[N.T. 3/15/2015, p. 118.]


253. The federal Regional Rail Reorganization Act does not authorize
adverse possession against Conrail. Regional Rail Reorganization Act of 1973, 45
U.S.C. 719, 743 (1994) [requiring an action be maintained in federal court and
enjoining state courts from adjudicating an interest adverse to Conrail].
(2) All rail properties conveyed to the Corporation . . . under this
section shall be conveyed free and clear of any liens or
encumbrances, but subject to such leases and agreements as shall
have previously burdened such properties . . . . Such conveyances
shall not be restrained or enjoined by any court.
45 U.S.C. 743(b) (emphasis added).
254. Giunup and Pettacio did not commence an action of ejectment against
Conrail or this plaintiff within one year of their entry upon the railroad property,
as required by 42 Pa.C.S. 5530(b), to claim by adverse possession.
255. The defense of the doctrine of consentable lines has been waived by
failure to plead. Pa.R.C.P. #1030.
256. The defense has failed to prove the elements of the doctrine of
consentable lines.
7 Pa. Summ. Jur. 2d Property 22:40 (2d ed. & Westlaw database
updated Apr. 2015) ("There are two ways in which one may prove a
consentable line: by dispute and compromise or by recognition and
acquiescence. There are three requirements for the establishment of
70

Case ID: 130703647

a binding consentable line by dispute and compromise: A dispute


with regard to the location of a common boundary line The
establishment of a line in compromise of a dispute The consent of
both parties to that line and the giving up of their respective claims
which are inconsistent therewith. The requirements for establishing
a binding consentable line by recognition and acquiescence are: A
finding that each party has claimed the land on their side of the line
as their own A finding that this occupation has occurred for the
statutory period of 21 years." (formatting omitted)).
257. In Western New York and Pennsylvania Railway Company v. Vulcan
Foundry and Machine Company, 251 Pa. 383, 96 A. 830 (Pa. 1916), it was said,
[I]t is well settled that title by adverse possession cannot be acquired
against a railroad company for a portion of its right of way, as it
holds its property for a public use: Pittsburgh, Fort Wayne & Chicago
Ry. Co. v. Peet, 152 Pa. 488; Conwell v. Philadelphia & Reading Ry.
Co., 241 Pa. 172.
258. The 21 year statute of limitations of 42 Pa.C.S. 5530, has not been
pled by Giunup and Pettacio and has been waived.
X. The counterclaims.
259. Sixth Street Management Corp. commenced a counterclaim on
November 15, 2013, to quiet title.
260. The defense has failed to prove a precise time between December 3,
1984 and 1988 when the defense claims the strip of land ceased to be used for
railroad purposes.
Buffalo Township v. Jones, 571 Pa. 637, 64647, 813 A.2d 659,
664-65 (2002) ("In evaluating whether the user abandoned the
property, the court must consider whether there was an intention to
abandon the property interest, together with external acts by which
such intention is carried into effect. In order to establish the
abandonment of a right-of-way, the evidence must show that the
easement holder intended to give up its right to use the easement
permanently. Thompson v. R.R. Preservation Society, 417 Pa. Super.
71

Case ID: 130703647

216, 612 A.2d 450, 453 (1992). 'Such conduct must consist of some
affirmative act on his part which renders use of the easement
impossible, or of some physical obstruction of it by him in a manner
that is inconsistent with its further enjoyment.' Id. (emphasis in
original). Mere nonuse by the railroad does not amount to
abandonment. . . . In sum, many different factors can be considered
when making a determination of abandonment. Moreover, no single
factor alone is sufficient to establish the intent to abandon.
Abandonment must be determined based upon all of the
circumstances surrounding the alleged abandonment." (some
citations omitted)); Birdsboro Mun. Auth. v. Reading Co. &
Wilmington & N. R.R., 2000 PA Super 231, 21, 758 A.2d 222, 227
("The trial court found that abandonment must be proven by two
prima facie elements: 1) intent; and 2) external acts. While the court
acknowledged that gaps occurred in both railroad operation and
maintenance, it found mere non-use and lack of maintenance of a rail
line did not establish intent to abandon.").
261. The defense has failed to prove the precise date on which the statute
of limitations as to its purported defense and counterclaim to quiet title, by clear
and convincing evidence began to run.
Bral Corp. v. Johnstown Am. Corp., 919 F. Supp. 2d 599, 610 (W.D.
Pa. 2013) ("In Pennsylvania, a cause of action accrues when the
relevant statute of limitations begins to run 'as soon as the right to
institute and maintain a suit arises.' Fine v. Checcio, 582 Pa. 253,
870 A.2d 850, 857 (2005) (citations omitted); see also 42 PA. CONS.
STAT. 5502(a). 'Once a cause of action has accrued and the
prescribed statutory period has run, an injured party is barred from
bringing his cause of action.' Fine, 870 A.2d at 857 (citations
omitted). Under Pennsylvania law, courts favor a strict application of
statutes of limitations.").
262. The opinion of the claims adjuster was inconsistent with and
contradicted the claims adjuster opinion letter.
263. There was an absolute conflict in the testimony of the claims adjuster
and the opinion letter of the claims adjuster without explanation. Matusek v.
Bruno (Pa. Super. Ct. 2/5/2015); Mudano v. Philadelphia Rapid Transit Co.;
72

Case ID: 130703647

Brodowski v. Ryave; Brannan v. Lankenau Hospital.


XI. The lapse of time.
264. Exhibits P11/D27 is a letter dated May 18, 1984 from Conrail to the
Interstate Commerce Commission submitting the Application of Consolidated
Rail Corporation Pursuant to Section 308(c) of the Regional Rail Reorganization
Act of 1973, As Amended by Section 1156 of the Northeast Rail Service Act of
1981, for Approval of the Abandonment of the Bethlehem Branch in Philadelphia
County, Pennsylvania.
265. Enright testified concerning abandonment of a line of railroad.
6
7
8
9
10
11
12
13
14
15
16
19
20
21
22
23
24
1

Q. When Conrail finds it no longer


feasible to operate rail traffic along a
certain rail line, does Conrail have statutory
authority to discontinue service on its own?
A. What's considered a line of railroad,
no.
Q. And is there a procedure to
discontinue rail service?
A. Yes, there is.
Q. Is that governed by federal statute?
A. Yes.
Q. What statute is that, sir?
A. Interstate Commerce Termination Act.
Q. Are you familiar with whether
Consolidated Rail Corporation filed an
application to discontinue rail service along
the portion of line code 0301?
A. Yes, I am.

[Enright, at pp. 21-22.]


266. The purpose of P11 was to cease Conrails common carrier obligation.
4
5
6
7

A. The document, they purpose was to


file with Interstate Commerce Commission an
application that would enable us, Conrail at
the time, to abandon its common carrier
73

Case ID: 130703647

8
9

obligation on a portion of the Bethlehem


Branch.

[Enright, at p. 84.]
267. The said ICC Application stated as follows,
4. By this application Conrail requests the Commissions approval
of the abandonment of the line of rail, approximately 0.6 mile in
length, described below and situated in Philadelphia County,
Pennsylvania:
The Bethlehem Branch in Philadelphia from the south side of the
Cayuga Street Bridge (approximately Milepost 4.2) to the north
side of the Rockland Street Bridge (approximately Milepost 4.8).
The above-described line will hereafter be referred to as the Subject
Line.
[Exhibits P11/D27, numbered pp 1-2 4; Enright, at pp. 23 ll. 18- p.
24, ll. 8.]
268. A part of Exhibits P11/D27 is Conrails exhibit C. Exhibit C shows the
last year for rail traffic was 1982, during which there were 16 carloads carried by
Conrail.
18
19
20
21

A. There was still diminimous rail


business as of the time of filing for
abandonment in 1984. 1982, there was 16 car
loads on the line.

[Enright, at p. 89.]
269. Exhibits P14/D28 is the Interstate Commerce Commission Certificate
and Decision Conrail Abandonment in Philadelphia County, PA Decided
December 3, 1984.
270. The said Certificate and Decision decided as follows,
Consolidated Rail Corporation (Conrail) filed an application on
May 23, 1984, under section 308 of the Regional Rail Reorganization
Act of 1973 [1] to abandon its .6-mile line of railroad between the
Cayuga Street Bridge (milepost 4.2) and the Rockland Street Bridge
74

Case ID: 130703647

(milepost 4.8).
Under section 308(c) the Commission must grant any application
for abandonment filed by Conrail within 90 days after the date the
application is filed unless an offer of financial assistance is made
under section 308(d) during that 90-day period.
***.
It is certified: Conrail is authorized to abandon the line described
above.
It is ordered: This certificate and decision is effective on service.
[Exhibits P14; Enright, at p. 32, ll. 9-20.]
271. Exhibit P14 references the strip of land in dispute herein.
10
11
12
13
14
15
16
17
18

Q. Is the property that's the subject of


the Quitclaim Deed of Confirmation 2012 part
of the application for abandonment that's
referenced here?
A. I believe so.
Q. Do you know if authorization for the
abandonment of the common carrier obligation
was obtained?
A. Yes. I believe it was.

[Exhibit P14; Enright, at p. 84.]


272. Conrails common carrier obligation was abandoned by the 1984 ICC
decision.
20
Q. To your knowledge, Mr. Enright,
21
pursuant to this decision did Conrail, in
22
fact, abandon the line?
***.
8
***, so to answer your
9
question, it's my understanding that Conrail
10
abandoned the line as was required in those
11
days at that time.
12
Q. Was Conrail, at that point, relieved
13
of its obligation to provide rail service over
14
the segment of the Bethlehem Branch?
15
A. Yes.
16
Q. That segment of the Bethlehem Branch
17
included the right of way property that's at
18
issue in this current litigation; is that
75

Case ID: 130703647

19
20

correct, sir?
A. That's correct.

[Exhibit P14; Enright, at pp. 86-87.]


273. The Interstate Commerce Commission is empowered to grant to a
railroad authority to abandon rail service to customers served by an unprofitable
railroad.
Congress enacted 308 in order to provide Conrail with "an
unobstructed opportunity to become a solvent operation."
Consolidated Rail Corp. v. County of Monroe, 558 F. Supp. 1387,
1389 (Spec. Ct. R.R.R.A. 1983). The ICC has stated that, in essence,
"section 308 requires [it] to grant, without examination, any Conrail
abandonment application unless an offer of financial assistance is
timely filed." See Conrail Abandonments Under NERSA, 365 I.C.C.
472, 472-73 (November 25, 1981). Thus, the abandonment
proceedings established by 308 contemplate limited agency
involvement and virtually automatic approval of Conrail's request to
abandon its line.
Lucas, et al. v. Township of Bethel, et al., 319 F.3d 595, 601-602,
2003 U.S. App. LEXIS 2402.
274. The said ICC decision concerned the .6 mile strip from Cayuga Streeet
to Rockland Street.
22
23
24
1
2

Q. Once again, this refers to the 0.6


mile railroad beginning at Cayuga Street
Bridge, milepost 4.2 and the Rockland Street
Bridge being milepost 4.8, do you see that?
A. I see that.

[Exhibits P14; Enright, at pp. 32-33.]


275. The said Certificate and Decision shows a service date of Dec 7
1984. [Exhibits P14.]
276. The Interstate Commerce Commission did on December 3, 1984,
grant to the Conrail approval to abandon rail service on the Reading Bethlehem
76

Case ID: 130703647

Branch, from the south side of the Cayuga Street Bridge (approximately Milepost
4.2) to the north side of the Rockland Street Bridge (approximately Milepost
4.8). [Exhibits P11, P14, D27, D28; Enright, at p. 32, ll. 9-20.]
277. A rail service abandonment does not affect Conrails ownership of the
land.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Q. Just to be clear, after Conrail


discontinues or gets authorization to
discontinue rail service, does Conrail
continue to claim that it has an ownership
interest in the real estate?
A. It depends. It's a general question.
If Conrail believes it has ownership of the
underlying right of way, sometimes it only has
an easement right or whatever, but if it
believes it has ownership of the underlying
right of way, the determination of the, at
this time, the Interstate Commerce Commission,
to allow the railroad to abandon the line,
does not affect the underlying property
ownership.

[Enright, at p. 33.]
17
18
19
20
21
22

A. It's an abandonment of its common


carrier obligation. Meaning, it has no
obligation if a potential customer approaches
the railroad and wants rail service. The
railroad has no obligation to provide service.
That's how I would explain it.

[Enright, at p. 35.]
278. As of December 3, 1984, the rail roadbed at issue did by federal law
cease to be used for railroad purposes.
279. The defense attempts to imply a later date when the disputed strip
ceased to be used for railroad purposes.
77

Case ID: 130703647

21
Q. I'm showing you a document that we'll
22
mark as D-2. Mr. Enright, I'm showing you a
23
document, it's a Conrail memorandum dated
24
January 13, 1988 from JF Btak. Subject is
1
line cleared for dismantling; are you familiar
2
with this document, sir?
3
A. I've seen it before, yes.
***.
10
Q. What is the purpose of this
11
memorandum?
12
A. It's an internal memorandum
13
authorizing -- let me restate that identifying
14
a particular line. In this case, the line
15
that's the subject of this litigation or the
16
right of way, I should say, that's the subject
17
of this litigation, had been one, authorized
18
for abandoned by the ICC and now, from an
19
internal Conrail standpoint, cleared for
20
dismantling so it was authorization, I guess,
21
to the track department, now you can remove
22
any rails, ties, etcetera. Although there's
23
an additional, internal Conrail requirement at
24
the time that, something called AFE, be
1
prepared for before the actual dismantling
2
took place.
3
Q. I believe your earlier testimony was,
4
you were not able to find that AFE?
5
A. Correct.
[D2; Enright, at pp. 87-89.]
280. The authorization to dismantle the track would have come in time
prior to D2, the lines cleared memorandum.
9
10
11
12
13
14
15
16

Q. Is there any documents at Conrail,


which would indicate that it took any action
to give up its interest in the real estate?
A. We looked into it, per my previous
deposition, and cannot locate the AFE, which
would have been the internal authorization to
remove any of the track or rail on the right
of way.

[Enright, at pp. 43.]


78

Case ID: 130703647

281. There is no evidence the out of service line continued to be used for
railroad purposes after 1984.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Q. Does that memo suggest that there was


a point in time when there was no rail service
over the line and that's why the rail line
could be dismantled?
A. The answer to that is, yes. I'm
hesitating because I'm wondering whether the
actual application indicated whether there was
any active customers on the line at the time
we filed for abandonment.
Q. I understand from your testimony it
may be possible that there was no rail service
even at the time of the initial application?
A. There was still diminimous rail
business as of the time of filing for
abandonment in 1984. 1982, there was 16 car
loads on the line.
Q. Taking it forward to the document
that we were just looking at together, D2,
which is the memorandum authorizing the track
removal, does that suggest to you, sir, that
at that point in time, there was no longer
rail service?
A. It indicates there were two -- as of
1988, it does identify two customers on the
line, but it also -- I stand corrected. It
specifically says there's now out of service
line so there were customers on the line, but
they were inactive customers.
Q. So as of that point in time, at
least, we can identify that the rail line was
no longer in service; is that correct?
A. According to this memorandum, it
would suggest that. I don't have personal
knowledge that it was active or not, but it
does make reference to it being an out of
service line.

[Enright, at pp. 89-90.]


282. The defense failed to prove a later date when the disputed strip ceased
79

Case ID: 130703647

to be used for railroad purposes.


283. The legislature has established a 21 year statute of limitations for
Sixth Street Management Corp., John Giunup, and Michael Pettacio to enforce
their alleged reversionary interest in the rail roadbed.
5530. Twenty-one year limitation.
(a) General rule.--The following actions and proceedings must be
commenced within 21 years:
(1) An action for the possession of real property.
(2) An action for the payment of any ground rent, annuity or other
charge upon real property, or any part or portion thereof. If this
paragraph shall operate to bar any payment of such a rent, annuity
or charge, the rent, annuity or charge to which the payment relates
shall be extinguished and no further action may be commenced with
respect to subsequent payments.
(3) (Deleted by amendment).
(b) Entry upon land.--No entry upon real property shall toll the
running of the period of limitation specified in subsection (a)(1),
unless a possessory action shall be commenced therefor within one
year after entry. Such an entry and commencement of a possessory
action, without recovery therein, shall not toll the running of such
period of limitation in respect of another possessory action, unless
such other possessory action is commenced within one year after
the termination of the first.
42 Pa.C.S. 5530.
284. In a fee simple subject to a condition subsequent, Dixon agrees some
positive action is required for a reversion to vest. [N.T. 3/16/2015, p. 100 lns.
21-24.]
285. Some amicable action and failing that, an action at law must be taken
to revest and to repossess the disputed area was restated in Stolarick v.
Stolarick, 241 Pa.Super. 498, 507, 363 A.2d 793, 798 (Pa.Super. 1976).
the holder of a right of re-entry shall perfect his title after a breach
of condition subsequent either by peaceable re-entry or by an action
at law. Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227
80

Case ID: 130703647

(1943). ***. In order to remove any cloud on their title, however,


the holders of the right of re-entry would have to commence legal
action following the exercise of their right.
286. Amicable re-entry and recorded instrument is necessary to revest
and to repossess the reversion.
Stolarick v. Stolarick, 241 Pa. Super. 498, 505-06, 363 A.2d 793,
797 (1976) ("To determine legal title in the instant case, we must
first define the nature of the legal interests created by the deed of
1918. If the deed creates an estate in fee simple determinable, the
estate of the grantees would expire automatically upon the failure of
the grantees to comply with the limitations in the deed. Thus, the
grantors would have a possibility of reverter. . . If, on the other hand,
the deed conveyed a fee simple subject to a condition subsequent,
then upon the non-compliance with the stated condition the grantor
or his successor in interest would have the power to terminate the
preceding estate. Thus, the grantors would have a right of reentry. . . The principal distinction between the two estates is that a
right of re-entry requires some action to perfect title by the grantor
or his successor, while a reverter vests automatically." (citations
omitted)).
287. Further, re-conveyance to the original grantor is a sufficient to perfect
a reversion. Smith v. Sterner Chevrolet-Oldsmobile, Inc., 384 Pa.Super. 54, 557
A.2d 770 (1989).
288. Absent an amicable instrument, an action in ejectment is necessary to
perfect a reversion in a deed. Thus, it was said in Smith v. Sterner ChevroletOldsmobile, Inc., 384 Pa.Super. 54, 58, 557 A.2d 770, 771-772 (Pa.Super. 1989),
The breach of a condition subsequent in a deed or will, although the
deed or will contains words of forfeiture and re-entry, does not ipso
facto produce reverter of title, inasmuch as performance of the
condition or a breach thereof may be waived by the grantor or
testator and the condition be dispensed with. Thus, if an estate upon
condition subsequent has been created, even after breach of the
condition, some affirmative act on the part of the creator of the
estate or his successors in interest is necessary to defeat the
estate conveyed or devised to the grantee or devisee. The estate of
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the grantee continues in full force until the proper step or steps
are taken to consummate the forfeiture, and until entry or action,
the quantity of the estate of the grantee is unimpaired. If the right of
entry is never exercised, the estate remains as before. The grantee
still has possession with all the advantages which, by the common
law, belong to possession.
289. Defendants Answer, New Matter and Counterclaim to Plaintiff's First
Amended Complaint makes the following admissions,
It is admitted only that on or about March 12, 2012, defendant, Sixth
Street Management Corp. erected a fence ***.
[Exhibit P26.]
290. Defendants Brian Mast and Sixth Street Managements Answer (sic)
to Plaintiffs New Matter to Counterclaim makes the following admission,
44. ***. By way of further answer (sic) Sixth Street Management
is not claiming an interest in the Disputed Area by virtue of descent
from Sally Norris Dickinson. ***.
[Exhibit P26.]
291. Defendants therefore do not possess an interest in the rail roadbed
through the partition deed from Lewis H. Redner, et al. to Gustavus George
Logan, et al. as the Redner to Logan instrument purports to partition by descent
under the Tenth item of the Last Will and Testament in Writing dated the twenty
fifth day of January Anno Domini One thousand eight hundred and fifty four of
Sally Norris Dickinson. [Exhibit D76.]
292. Defendants John Giunup and Michael Pettacios Answer (sic) to
Plaintiffs New Matter to Counterclaim makes the following admission,
44. ***. By way of further answer (sic) Defendants are not
claiming an interest in the Disputed Area by virtue of descent from
Sally Norris Dickinson. ***.
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[Exhibit P26.]

293. Defendants therefore do not possess an interest in the rail roadbed


through the partition deed from Lewis H. Redner, et al. to Gustavus George
Logan, et al. as the Redner to Logan instrument purports to partition by descent
under the Tenth item of the Last Will and Testament in Writing dated the twenty
fifth day of January Anno Domini One thousand eight hundred and fifty four of
Sally Norris Dickinson. [Exhibit D76.]
294. As stated, the 1854 Dickinson deed granted to the North Penn an
interest in fee, which shall revest upon the happening of repossession by the
grantor.
TO HAVE AND TO HOLD the rights and premises aforesaid ***,
and if it shall happen that the railroad *** shall cease to be used for
Rail road purposes, then the said strip of land shall revest in the
said Sally Norris Dickinson, her heirs and assigns, as of her and their
first and former Estate, and she or they shall thereupon repossess
and enjoy the same as if this present Indenture had never been
made.
295. As stated, the defense may not parse the phrase, shall revest from
the phrase shall thereupon repossess contained within the same sentence.
296. Blacks Law Dictinary, 2nd Ed. defines thereupon to mean, at once;
without interruption; without delay or lapse of time, citing, Putnam v. Langley,
133 Mass. 205.
297. The Merriam Webster online dictionary defines thereupon to mean,
immediately after that. http://www.merriam-webster.com/dictionary/
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thereupon.
298. Sally Norris Dickinson, her heirs and assigns, did not thereupon, at
once; without interruption; without delay or lapse of time, or immediately after
that, repossess the rail roadbed.
299. Exhibit D76 states Dickinson made her last will on January 25, 1854,
and died in October 1855.
300. Dickinson made her last Will 13 days after her conveyance to the
North Penn.
301. Dickinsons last Will is not in evidence.
302. The defense counterclaim failed to prove Dickinsons last Will did
provide for her reversionary interest in the tract conveyed to the North Penn.
303. Defendants failed to prove they are the heirs and assigns under the
last Will of Sally Norris Dickinson.
304. Sixth Street Management Corp., John Giunup, and Michael Pettacio,
nor their predecessors in title did not amicably retake possession of the disputed
land by recorded instrument, and did not timely commence an action in
ejectment for possession of the disputed land prior to December 2, 2005, the
running of the 21 year statute of limitations.
305. Hence, the 21 year statute of limitations to retake possession of the
disputed land began to run on December 3, 1984, and expired on December 2,
2005, more than a year subsequent to defendants having come into title to their
adjoining properties.
XII. Plaintiffs damages.
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306. Exhibit D20 is the Guinup/ Pettacio deed.


307. Schedule C to the Guinup/ Pettacio deed sets forth the legal
description for the Guinup/ Pettacio property. [Exhibit D20, schedule C.]
308. Schedule C to the Guinup/ Pettacio deed references the city plan/
parcel number, 121 N 124-61, drawing reference to the appropriate City Registry
map. [Exhibit D20.]
309. The defense exhibit the predecessors to the Guinup/ Pettacio deed.
[Exhibits D26, D46, D47, D48, D49, D50.]
310. Exhibit D26 references the appropriate City Registry parcel number
and map, 121 N 24-61. [Exhibits D26, D46, D47, D48, D49, D50.]
311. City Registry map 121 N 24 references the plan and bearings for the
subject rail roadbed, and makes note of the reference information,
RAILROAD DEED
ANY RIGHT, TITLE, INTEREST (IF ANY?)
DCC-1948-195 #63
312. The predecessor deeds to the Sixth Street Management property
[4455 N. 6th Street] reference the city Registry map and parcel number, 85 N
16-319. [Exhibits D55, D56, D57.]
313. Plaintiffs damages in ejectment are its mesne profits.
314. Mesne profits are the income to the wrongful possessors, that is,
defendants ill-gotten gains, arising from defendants wrongful possession; Kille v.
Ege, 82 Pa. 102 (Pa. 1876) (value of ore mined and rents received by defendant);
Reilly v. Crown Petroleum Company, 213 Pa. 595, 63 A. 253 (Pa. 1906); together
with interest, for which defendants are required to account. Drexel v. Man, 2 Pa.
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271 (Pa. 1845).


315. Good faith trespass damages are the net profits to defendants arising
from their wrongful possession.
Stated broadly, when improvements to land are made by a good-faith
trespasser, the injured party is entitled, in effect, to the trespasser's
net profits, i.e., the revenues generated upon the land less the
moneys expended in facilitating the profitable activity.
Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103
A.3d 83 (2014).
316. Defendants are liable for bad faith trespass damages arising out of
defendants wrongful possession, where defendants have constructive knowledge
of plaintiffs interest in the property.
However, when a party trespasses in bad faith, the injured party is
entitled to all moneys derived from the trespass without any offset
for the cost of generating those moneys.
Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103
A.3d 83 (2014).
317. Defendants have constructive knowledge of plaintiffs interest in the
property where plaintiffs interest is a matter of public record. That lessees
acted entirely in bad faith is based primarily upon Pennsylvania's constructive
notice statute. Sabella v. Appalachian Development Corp., 2014 PA Super. 237,
103 A.3d 83 (2014).
318. Conrails interest in the former rail roadbed appears of record in
Conrails deed recorded in the Department of Records in 1979. [Exhibit P3, P3A.]
319. Conrails interest in the former rail roadbed appears of record in the
Department of Records City Registry map #121N24. [Exhibit P47.]
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320. City Registry map #121N24, showed the railroad interest, including
the deed book and page of Conrails recorded deed.
RAILROAD DEED
ANY RIGHT, TITLE, INTEREST (IF ANY?)
DCC-1948-195 #63
[Exhibit P47.]
321. As in Sabella, defendant, who erected a fence in March 2012, after
limiting their title search to railroad deeds recorded after 1956, acted in bad
faith, by declining to run complete title searches for the property, thus assuming
the risk of bad-faith status.
322. Exhibit D13 is the commercial lease between Sixth Street
Management Corp. and Esperanza Health Center, Inc. for use of plaintiffs
property abutting 4455 N. 6th Street.
323. Discovery court erred in being guided by the defense
misrepresentation of Sabella and prior cases, by refusing to allow discovery of
ejectment damages.
324. According to Exhibit D13, Sixth Street Management Corp. received
rent in the amount of $7,800.00 since 2012, plus $200 per month for its bad faith
occupancy of plaintiffs property.
325. Plaintiff's bad faith damages are $7,800.00, plus $200 per month
ongoing.

PLAINTIFFS SUGGESTED CONCLUSIONS OF LAW


1. Plaintiffs title originates from the said 1854 Dickinson deed to the North
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Pennsylvania Rail Road Company, dated January 12, 1854, recorded on January
23, 1854. [Exhibits P2, P1, P1A, P58, D80.]
2. The 1854 Dickinson deed and the 1976 Consolidated Rail Corporation
deeds were recorded first in time to the 2003 and 2004 Sixth Street Management
Corp. and the Giunup and Pettacio deeds.
3. Railroad Recovery, Inc., the plaintiff is the vendee of all that certain
former Consolidated Rail Corporation rail roadbed described by metes and
bounds according to the Stantec Consulting Services, Inc. Description of the
Former North Penn Railroad Right of Way dated January 6, 2012, [Exhibits P42,
43, 44], and the Stantec Consulting Services, Inc. Plan of Property dated January
6, 2012 [Exhibits P42, 43, 44].
4. The Conrail rail roadbed conveyed to plaintiff lies to the east of
properties owned by Sixth Street Management Corp. and John Giunup, and
Michael Pettacio.
5. The issue in this case is whether the defendants, whose properties are
west of the rail roadbed, own the rail roadbed west of the center line of the
railroad.
6. Conrail and its vendee, Railroad Recovery remained in possession of the
disputed former rail roadbed adjacent to the Sixth Street Management property
until March 2012.
7. Conrail remained in possession of the pie shaped former rail roadbed
adjacent to the Giunup/Pettacio property until the completion of the conveyance
to Railroad Recovery by deed in February 2012.
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8. Conrail and its vendee, Railroad Recovery remain in possession of the


disputed former rail roadbed adjacent to the Giunup/Pettacio property and
adjacent to the pie shaped disputed area until the time of trial.
9. Railroad Recovery, Inc., the plaintiff obtained title to the said by
recorded deed. [Exhibit P20.]
10. The 1854 Dickinson deed granted to the North Penn an interest in fee
subject to a condition subsequent.
11. Sixth Street Management has not proved the four identities required
for res judicata.
12. Sally Norris Dickinson, her heirs and assigns, did not thereupon, at
once; without interruption; without delay or lapse of time, or immediately after
that, after December 3, 1984, decision of the Interstate Commerce Commission,
repossess the disputed rail roadbed.
13. Defendants predecessors in interest did not commence an action in
federal court in ejectment against Conrail within 21 years of the December 3,
1984, decision of the Interstate Commerce Commission authorizing Conrail to
cease use of the disputed land for railroad purposes.
14. The defendants did not commence a civil action in court in ejectment
within 21 years of the December 3, 1984, decision of the Interstate Commerce
Commission authorizing Conrail to cease use of the disputed land for railroad
purposes.
Respectfully submitted,

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Anthony Bernard Quinn


Attorney for plaintiff

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Case ID: 130703647

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


COURT OF COMMON PLEAS OF PHILADELPHIA
CIVIL TRIAL DIVISION
Railroad Recovery Inc.,
a Pennsylvania Corporation,

plaintiff

July Term 2013

v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,

defendants : #03647

COURT ORDER

AND NOW, to wit this

day of

, 2015,

after a non-jury trial on the merits, the Court makes the following ORDER:
1. Finding in favor of Railroad Recovery, Inc., the plaintiff and
against Sixth Street Management Corp., John Giunup and Michael Pettacio, the
defendants, for possession of all that certain former Consolidated Rail
Corporation rail roadbed described by metes and bounds according to the Stantec
Consulting Services, Inc. Description of the former North Penn Railroad Right of
Way dated January 6, 2012, plaintiffs Exhibit P44, and the Stantec Consulting
Services, Inc. Plan of Property dated January 6, 2012, plaintiffs Exhibit P43, all
of which is attached hereto and incorporated and made a part of this Order.
2. Finding in favor of Railroad Recovery, Inc., the plaintiff and
against Sixth Street Management Corp., the defendant, on the Counterclaim of
Sixth Street Management Corp.
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Case ID: 130703647

3. Finding in favor of Railroad Recovery, Inc., the plaintiff and


against John Giunup and Michael Pettacio, the defendants, on the Counterclaim
of John Giunup and Michael Pettacio.
4. Sixth Street Management Corp., John Giunup and Michael
Pettacio, the defendants, shall vacate plaintiffs property as described in the
Stantec Consulting Engineers plan of property, plaintiffs Exhibits P43 and P44,
attached hereto and incorporated herein, within five (5) days of the date of this
ORDER.
BY THE COURT:

___________________________________, J.

Case ID: 130703647

Pa.R.C.P. #211 ORAL ARGUMENT DEMANDED


Quinn Law Office
By: Anthony Bernard Quinn Esquire
Attorney Reg. #26931
Suite 520 The Bellevue
200 S. Broad Street
Philadelphia, PA 19102-9149
Telephone: 215-731-0340
Attorney for plaintiff
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS OF PHILADELPHIA
CIVIL TRIAL DIVISION
Railroad Recovery Inc.,
a Pennsylvania Corporation,

plaintiff

July Term 2013

v.
Brian Mast, and
Sixth Street Management Corp.,
a Pennsylvania Corporation, and
John Giunup, and
Michael Pettacio,

defendants : #03647

CERTIFICATE OF SERVICE

Service of the Plaintiffs suggested findings of fact conclusions of law

and proposed order and all attachments was made this June 11, 2015 upon all
persons entitled thereto or to their attorneys of record by the civil electronic
filing system. Such service satisfies the requirements of Pa.R.C.P. ##205.4(g)(2)
(ii) and 440.

_______________________
Anthony Bernard Quinn
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Case ID: 130703647