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FOX ROTHSCHILD LLP

By: Lauren P. McKenna, Esquire


Clair E. Wischusen, Esquire
Attorney I.D. Nos. 59145; 306752
2000 Market Street, 20th Floor
Philadelphia, PA 19103-3222
lmckenna@foxrothschild.com
cwischusen@foxrothschild.com
(215) 299-2754

RAILROAD RECOVERY INC.,


Plaintiff,

Filed and Attested by


PROTHONOTARY
pm

Attorneys for
Defendants
24 JUN
2015 12:07
C.Street
FORTE
Brian Mast, Sixth
Management Corp.,
John Giunup, and Michael
Pettacio

PHILADELPHIA COUNTY
COURT OF COMMON PLEAS

v.
BRIAN MAST,
SIXTH STREET MANAGEMENT CORP., :
JOHN GIUNUP, and
MICHAEL PETTACIO
Defendants.

JULY TERM, 2013

NO. 03647

DEFENDANTS BRIAN MAST, SIXTH STREET MANAGEMENT


CORP., JOHN GIUNUP, AND MICHAEL PETTACIO'S
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case ID: 130703647


ACTI VI 29488691v4 06/24/2015

TABLE OF CONTENTS
I.

PROPOSED FINDINGS OF FACT

A.

Overview

B.

The Defendants' Properties

1.

The Property Plan

2.

The Sixth Street Property

3.

The Payload Property

4.

The Stone and Block Wall on the Payload Property

5.

Defendants' Chain of Title

10

Plaintiff's Claimed Right-of-Way

11

1.

Railroad Recovery

11

2.

The 1854 Dickinson Deed

11

3.

The Conrail Abandonment

13

4.

The Quit Claim Deed From Conrail

14

5.

Railroad Recovery Sells the Right-of-Way to Linda Miller

15

C.

II.

D.

The 2008 Ejectment Action

17

E.

Other Litigation

19

F.

The Current Litigation

19

PROPOSED CONCLUSIONS OF LAW


A.
B.

21

Plaintiff is Not the Real Party in Interest and Lacks Standing to Bring This
Ejectment Action

21

Railroad Recovery's Ejectment Claims Fail Because It Cannot Meet Its


Burden of Establishing Paramount Title

26

1.
2.

The Estate Granted to the North Pennsylvania Railroad Was a


Mere Railroad Right-of-Way and Not a Fee Interest

27

Plaintiff's Expert Witness Testimony Should Be Disregarded

37

Case ID: 130703647


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3.

C.

42

2.

Dickinson Assigned the Right of Reversion to Defendants

43

3.

Interest in the Disputed Area Reverted to Defendants


Automatically or Through Exercise of the Right of Re-Entry

45

Alternatively, Plaintiff's Claims Fail As to the Disputed Area Inside the


Stone and Block Wall on the Payload Property Under the Doctrines of
Adverse Possession and/or Consentable Line

50

2.

All of the Elements of Adverse Possession Are Satisfied

50

3.

The Doctrine of Consentable Line Applies

53

Alternatively, Plaintiffs Claims as to the Disputed Area of the Sixth Street


Property are Barred Based Upon Res Judicata

2.

III.

49

The Former Railroad Use of the Property Does Not Bar


Application of Adverse Possession Because Public Use Was
Extinguished Upon Abandonment

1.

F.

42

Dickinson Retained a Right of Reversion in the 1854 Dickinson


Deed

1.

E.

40

Alternatively, Plaintiff's Claims Fail Because Any Fee Interest in the


Disputed Area Reverted to Defendants' Predecessors Upon Abandonment
by Conrail
1.

D.

The Railroad Right-of-Way Terminated Automatically Upon


Abandonment and Defendants as Adjoining Land Owners
Regained Full Title and Ownership to the Center Line of the
Former Right-of-Way

55

The Cause and Rights of the Parties as to the Disputed Area of the
Sixth Street Property Were Already Finally Determined

55

The Fraud Exception Does Not Bar Application of Res Judicata

60

Defendants Are Entitled to Judgment On Their Counterclaims to Quiet


Title

PROPOSED RELIEF

63
65

Case ID: 130703647


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TABLE OF AUTHORITIES
Page(s)
Cases
A.D. Graham & Co. v. Pennsylvania Turnpike Comm'n.,
33 A.2d 22 (Pa. 1943)

50

Anderson Contracting Co. v. Daugherty,


417 A.2d 1227 (Pa. Super. 1979), appeal dismissed, 425 A.2d 329 (Pa. 1980)

22

Artz v. Meister,
123 A. 501 (Pa. 1924)

26

Bauer v. Hill,
267 Pa. 559 (1920)

21

Borough of Ulysses v. Mesler,


968 A.2d 224 (Pa. Super. 2009)

55

Bride v. Robwood Lodge,


713 A.2d 109 (Pa. Super. 1998)

51

Brookbank v. Benedum-Trees Oil Co.,


131 A.2d 103 (Pa. 1957)
Byrne v. Kanig,
332 A.2d 472 (Pa. Super. 1974)
Chada v. Chada,
756 A.2d 39 (Pa. Super. 2000)
Clark v. Cambria County Bd. of Assessment Appeals,
747 A.2d 1242 (Pa. Commw. 2000)
Commw. v. Williams,
828 A.2d 981 (Pa. 2003)
In re: Condemnation of Rights of Way and Easements,
47 A.3d 166 (Pa. Commw. 2012)
Cox's Inc. v. Snodgrass,
379 Pa. 148 (1952)
Dellach v. DeNinno,
862 A.2d 117 (Pa. Super. 2004)

28, 29, 30, 31, 35, 36, 38, 39


21
58, 59
21
47, 48
50, 51, 52
63
40, 50

Case ID: 130703647


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Doman v. Brogan,
592 A.2d 104 (Pa. Super. 1991)

26, 55, 56

Fiore v. Fiore,
174 A.2d 858 (Pa. 1961)

24, 25

Fleck v. Universal-Cyclops Steel Corp.,


156 A.2d 832 (Pa. 1959)

29, 30, 33, 34, 35, 37, 39

Fornwalt v. Follmer,
616 A.2d 1040 (Pa. Super. 1992)

55

Glenn v. Shuey,
595 A.2d 606 (Pa. Super. 1991)

52

Goldstein v. Ahrens,
108 A.2d 693 (Pa. 1954)

59

Graham v. Lyons,
546 A.2d 1129 (Pa. Super. 1988)

23

Hallman v. Turns,
482 A.2d 1284 (Pa. Super. 1984)

26

Ham v. Sulek,
620 A.2d 5 (Pa. Super. 1993)

21, 23, 55, 57

Harbor Marine Co. v. Nolan,


366 A.2d 936 (Pa. Super. 1976)

26

Herr v. Herr,
957 A.2d 1280 (Pa. Super. 2008)

43, 44

Higbee Corp. v. Kennedy,


428 A.2d 592 (Pa. Super. 1981)

46

Hochman v. Mortgage Fin. Corp.,


137 A. 252 (Pa. 1927)

57, 58

Jacquelin v. Zoning Hearing Bd. of Hatboro Borough,


620 A.2d 554 (Pa. Commw. 1993)

55, 61, 62

Kozak v. Struth,
531 A.2d 420 (Pa. 1987)

37

Lawson v. Simonsen,
417 A.2d 155 (Pa. 1980)

29, 30, 35, 39

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Case ID: 130703647

Lilly v. Markvan,
763 A.2d 370 (Pa. Super. 2000)

54

Mackall v. Fleegle,
801 A.2d 577 (Pa. Super. 2002)

28, 29, 30, 31, 34, 35, 39

Miller v. Clauss, et al.,


March Term 2013, No. 00439 (C.C.P. Phila.). (D-89 at 40:23-41:11, 41:1822)
Miller v. Railroad Recovery, Inc., et al.,
No. 2:11-cv-06901 (E.D.Pa. 2011)

19
11, 19, 25, 57

Moore v. Duran,
687 A.d 822, 828 (Pa. Super. 1997)

51

Mower v. Mower,
80 A.2d 856 (Pa. 1951)

25

Newell Rod & Gun Club, Inc. v. Bauer,


597 A.2d 667 (Pa. Super. 1991)

40

Niles v. Fall Creek Hunting Club, Inc.,


545 A.2d 926 (Pa. Super. 1988)

54

Matter of Pentrack's Estate,


405 A.2d 879 (Pa. 1979)

23

Quarry Office Park Assocs. v. Phila. Elec. Co.,


576 A.2d 358 (Pa. Super. 1990)

29, 30, 31, 35, 39

Ratajski v. West Penn Mfg. & Supply Corp.,


182 A.2d 243 (Pa. Super. 1962)

26

Reed v. Wolyniec,
471 A.2d 80 (Pa. Super. 1983)

51

Sabella v. Appalachian Development Corp.,


103 A.3d 83 (Pa. Super. 2014)

60

Schimp v. Allaman,
659 A.2d 1032 (Pa. Super. 1995)

54

Smith v. Glen Alden Coal Co.,


32 A.2d 227 (Pa. 1943)

48

Stevenson v. Silverman,
208 A.2d 786 (Pa. 1965), cert. denied, 382 U.S. 833 (1966)

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55, 58

Case ID: 130703647

Stillwater Lakes Civic Ass'n, Inc. v. Krawitz,


772 A.2d 118 (Pa. Commw. 2001)

21, 22

Stolarcik v. Stolarcik,
363 A.2d 793 (Pa. Super. 1976)

45, 46, 48

Sutton v. Miller,
592 A.2d 83 (Pa. Super. 1991)

26

Thompson v. Md. & Pa. R.R. Pres. Soc.,


612 A.2d 450 (Pa. Super. 1992)

40, 41, 50

Tobias v. Halifax Twp.,


28 A.3d 223 (Pa. Commw. 2011)

58

Walsh v. Kubiak,
661 A.2d 416 (Pa. Super. 1995) (en banc)

39

Watkins v. Watkins,
775 A.2d 841 (Pa. Super. 2001)

51, 52, 53

Werry v. Sheldon,
24 A.2d 631 (Pa. Super. 1942)

42

Williams v. Lumbermen's Ins. Co.,


1 A.2d 658 (Pa. 1938)

55

Zeglin v. Gahagen,
812 A.2d 558 (Pa. 2002)

54

Statutes
45, 49, 52

42 Pa.C.S. 5530
Rules
Pa.R.Civ.P. 1033

20

Pa.R.Civ.P. 2002

21

Pa.R.Civ.P. 4003

39

Other Authorities
Powell on Real Property, Vol 4 34.04[7]1 78A-40

29, 31

Restatement of Property 44 (1936)

45

Restatement of Property 45 (1936)

46
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Case ID: 130703647

Restatement of Property 57 (1936)

46

Restatement (Third) of Property (Mortgages) 3.4 cmt. a & 3.4(b) (1996)

22

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Case ID: 130703647

Defendants, Brian Mast, Sixth Street Management Corp., John Giunup, and Michael
Pettacio (collectively, "Defendants"), by and through their undersigned attorneys, Fox Rothschild
LLP, respectfully submit Proposed Findings of Fact and Conclusions of Law after the bench trial
of March 11-17, 2015:1
I.

PROPOSED FINDINGS OF FACT


A.

Overview

1.

The parties dispute ownership of a portion of a railroad right-of-way that cuts

across certain properties located along Sixth Street in North Philadelphia.


2.

Defendant Sixth Street Management Corp. ("Sixth Street Management") owns

property at 4455 N. 6t11 Street (the "Sixth Street Property"). (Tr. 3/13/15 at 161:6-8; D-54).
3.

Mast is the president of Sixth Street Management. (Tr. 3/13/15 at 160:3-5).

4.

Defendants John Giunup ("Giunup") and Michael Pettacio ("Pettacio") own

property at 4525 N. 6th Street (the "Payload Property") on which they operate a waste disposal
business called Payload Disposal. (D-20, D-87 at 1(2, 4).
5.

Plaintiff Railroad Recovery Inc. ("Plaintiff' or "Railroad Recovery") claims title to

a strip of land that extends across five city blocks from Cayuga Street to Rockland Street along a
former North Pennsylvania Railroad right-of-way. (D-2, P-4A).

By Order dated March 18, 2015, this Court directed Plaintiff to file its Findings of Fact ("FOF") and
Conclusions of Law ("COL") "within two weeks of its notification of the completion of the Notes of Testimony."
Counsel for Plaintiff and Defendants received notice of the completion of the Notes of Testimony by email from
Court Reporter Judith J. Hall on May 27, 2015 at 5:08 p.m. Therefore, Plaintiff's FOF and COL were due on June
10, 2015. Despite the passage of over two months between the close of trial on March 17, 2015, and when
Plaintiff's FOF and COL were due, Plaintiff filed its FOF and COL a day late on June 11, 2015 at 5:16 p.m.
Plaintiff's counsel did not contact defense counsel for an extension of the deadline. Defendants were ordered to file
their FOF and COL "within two weeks of the filing of Plaintiffs brief." Defendants have nevertheless endeavored
to comply with the Court's scheduling by filing their FOF and COL within two weeks of the intended June 10, 2015
deadline for Plaintiffs FOF and COL.

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Case ID: 130703647

6.

Plaintiff filed this ejectment action as to a portion of the right-of-way that runs

through the rear of the Sixth Street Property and the Payload Property. (Plaintiff s First Amended
Complaint "FAC").
7.

Sixth Street Management and Giunup/Pettacio asserted counterclaims to quiet title

to the disputed area of the right-of-way based on deeds dating back to the mid-1800's which
provide that the Sixth Street Property and the Payload Property extend to the "center line" or
"middle line" of the North Pennsylvania Railroad. (P-26).
8.

The precise issue in dispute is whether the Sixth Street Property and the Payload

Property run to the "center line" or "middle line" of the former North Pennsylvania Railroad as
set forth in their deeds dating back to the 1800's.
B.

The Defendants' Properties

9.

The Sixth Street Property and Payload Property are adjacent to one another along

Sixth Street in the Hunting Park section of the City of Philadelphia (the "City") between West
Annsbury Street and Roosevelt Boulevard. (D-42; Tr. 3/13/15 at 115:9-16).
10.

Other surrounding uses in the area consist of light commercial and industrial

businesses with clusters of residential properties. (D-87 at 9; Tr. 3/13/15 at 165:17-166:13).


11.

There are two churches and four schools located within a few blocks of the subject

area. (Tr. 3/13/15 at 166:4-8).


12.

There are several active neighborhood organizations in the area including, the

Hunting Park Business Association. (Tr. 3/13/15 at 166:14-22).

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Case ID: 130703647

1.
13.

The Property Plan

The subject properties are more particularly shown in the property plan at Exhibit

D-42 (the "Property Plan") that was prepared by Defendants' surveyor Roy G. Stauch, PLC
("Stauch") of Eustace Engineering. (D-31, D-42).
14.

Stauch prepared the Property Plan based upon his review of legal descriptions, tax

and registry maps, and plans for the subject properties as well as through a field survey. (D-30;
Tr. 3/13/15 at 74:20-22, 76:3-77:20).
15.

In reviewing the legal descriptions in the current deeds for the Sixth Street

Property and the Payload Property, Stauch concluded that they created closed figures and they
lined themselves properly. (Tr. 3/13/15 at 79:22-80:3).
16.

The Sixth Street Property is shown on the Property Plan outlined in green. (D-42).

17.

The Payload Property is shown on the Property Plan outlined in blue. (D-42).

18.

Plaintiffs claimed right-of-way is shown on the Property Plan outlined in red. (D-

19.

The depiction of the boundaries of Plaintiff's claimed right-of-way in the Property

42).

Plan is consistent with the plan prepared by Plaintiffs surveyor, Charles Karat, PLS of Stantec
Consulting Services Inc. (P-43).
20.

The Property Plan reflects a conflict between the boundaries of the Sixth Street

Property and the Payload Property on the one hand and Plaintiffs claimed right-of-way on the
other hand with regard to the area between the center line and the westerly line of the former
North Pennsylvania Railroad Right-of-Way. (D-42).
21.

The disputed areas of the Sixth Street Property and the Payload Property are shown

on the Property Plan in red cross-hatching. (D-42).

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22.

Enlargements of the Property Plan were provided to focus on certain areas of the

Property Plan as follows: (1) the Sixth Street Property (D-38); (2) the Payload Property (D-39);
(3) the Disputed Area of the Sixth Street Property (D-40); and (4) the Disputed Area of the
Payload Property (D-41).
2.
23.

The Sixth Street Property

Sixth Street Management purchased the Sixth Street Property from the Estate of

Edward Rabon on November 20, 2003 for $25,000. (Tr. 3/13/15 at 161:9-14, 162:4-6; D-54).
24.

The current deed to the Sixth Street Property, conveying title to Sixth Street

Management, is a warranty deed. (D-54).


25.

The legal description contained in the current deed to the Sixth Street Property

provides that the property extends to the "middle line" of the former North Pennsylvania
Railroad. (Tr. 3/13/15 at 165:5-14; D-54).
26.

Based on this legal description, the Sixth Street Property is approximately 33,789

square feet. (D-54).


27.

Sixth Street Management pays real estate taxes and stormwater fees for the Sixth

Street Property which are calculated by the City to include the area up to the middle line of the
former North Pennsylvania Railroad. (D-16, D-18).
28.

The Sixth Street Property contains a large mixed use building comprising of

approximately 22,000 square feet facing Sixth Street and a gravel parking lot at the rear of the
property. (Tr. 3/13/15 at 166:23-167:8).
29.

Sixth Street Management leases space in the mixed use building to a commercial

cleaning company, Covenant Cleaning, and to a disaster restoration business, Omega Restoration.
(Tr. 3/13/15 at 178:14-19). It also leases space in the building to the following four non-profit

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Case ID: 130703647

organizations: (1) Joy in the City a provider of adult education and counseling services; (2)
Christian Legal Clinic of Philadelphia a non-profit legal clinic; (3) Kingdom Builders
Construction where professional carpenters and volunteer coordinators train youth to renovate,
maintain, and rebuild church buildings; and (4) Simple Cycle a bicycle shop that trains and
employs unprivileged young adults from the neighborhood. (Tr. 3/13/15 at 178:19-179:10).
30.

Sixth Street Management's tenants use the rear parking lot for parking, garage

access, and storage. Simple Cycle also uses the rear parking lot to teach a vocational welding
class for people in the neighborhood. (Tr. 3/13/15 at 173:10-18; 179:17-180:4).
31.

Sixth Street Management also leases twenty parking spaces to the neighboring

Esperanza Health Center ("Esperanza") for use by their staff. (Tr. 3/13/15 at 180:5-11; D-13).
32.

Esperanza leases the 20 parking spaces from Sixth Street Management at a cost of

$200 per month pursuant to a lease dated February 16, 2012 (the "Esperanza Parking Lease").
(D-13).
33.

The initial term of the Esperanza Parking Lease is 15.5 years. (D-13; Tr. 3/13/15

at 181:4-5).
34.

Under the Esperanza Parking Lease, Esperanza paid to improve the rear parking lot

of the Sixth Street Property with six inches of crushed stone and a security gate. (D-13). In
exchange, Esperanza received a rent credit of $37,327 that pays the parking rent through the
middle of 2027. (Tr. 3/13/15 at 182:11-20; D-13).
35.

On a daily basis, the rear parking lot is generally full. (Tr. 3/13/15 at 183:17-21).

36.

Because the mixed use building extends to both side property lines of the Sixth

Street Property, access to the rear parking lot is provided through an easement over the Esperanza
Health Center property. (Tr. 3/12/15 at 115:17-21, 3/13/15 at 173:9-18; D-13, D-38).

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Case ID: 130703647

37.

The former railroad bed that Plaintiff claims ownership of runs through the rear

parking lot on the Sixth Street Property. (D-38).


38.

Mast purchased Sixth Street Management in 2008. (Tr. 3/12/15 at 110:9-12).

39.

When Mast purchased the company, there were no tracks and no railroad was

actively operating on the Sixth Street Property. (Tr. 3/13/15 at 184:2-10).


40.

When Mast purchased Sixth Street Management, he understood and believed that

the Sixth Street Property ran to the center line of the former North Pennsylvania Railroad. (Tr.
3/13/15 at 162:14-16; 165:5-14).
41.

However, at that time, the disputed rear area of the Sixth Street Property was being

used by an individual named Mike McAnally for storage and processing of junk cars. (Tr.
3/13/15 at 162:19-20, 163:8-14, 164:3-6). McAnally operated a tow facility where he would
bring cars in and then scrap them. (Tr. 3/13/15 at 164:11-13, 164:21-165:4). Sixth Street asked
McAnally to vacate the Sixth Street Property but he refused to do so. (Tr. 3/13/15 at 163:18164:2)
42.

McAnally's use of the rear of the Sixth Street Property for junk cars extended

beyond that property several blocks from Cayuga Street to Annsbury Street all the way up to
Roosevelt Boulevard. (Tr. 3/13/15 at 164:14-20).
3.
43.

The Payload Property

Giunup and Pettacio purchased the Payload Property from Luis A. Colon

("Colon") on March 18, 2004 for $180,000. (D-45, D-87 at II 3).


44.

Colon previously used the Payload Property to operate an automobile repair shop.

(D-87 at 7).

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45.

The current deed to the Payload Property into Giunup and Pettacio is a warranty

deed. (D-45).
46.

The legal description contained in the current deed to the Payload Property

provides that the Payload Property extends to the "center line" of the former North Pennsylvania
Railroad. (D-20, D-45).
47.

Based on this legal description, the Payload Property is approximately 46,270

square feet. (D-20, D-45).


48.

Giunup and Pettacio pay real estate taxes and stormwater fees for the Payload

Property which are calculated by the City to include the area up to the center line of the former
North Pennsylvania Railroad. (D-23, D-24, Tr. 3/16/15 at 120:21-121:2, 121:23-122:4, 122:1020).
49.

The Payload Property contains an office building, three commercial garages,

sixteen storage garages, and a rear storage yard, a portion of which is concrete paved and a
portion of which is gravel and dirt. (D-39, D-87 at
50.

10).

Since March of 2004, Giunup and Pettacio have used the Payload Property to

operate Payload Disposal and to rent out storage space. (D-87 at Tiff 4, 5).
51.

When Giunup and Pettacio purchased the Payload Property in March of 2004, they

understood that the property ran to the center line of the former North Pennsylvania Railroad.
(Tr. 3/16/15 at 115:13-17).
52.

Plaintiffs claimed right-of-way runs through the rear storage yard of the Payload

Property. (D-87 at 16).

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4.
53.

The Stone and Block Wall on the Payload Property

As shown in Exhibits D-39 and D-41, a stone and block wall with an embedded

fence on top runs northward to West Annsbury Street and cuts through the disputed rear area of
the Payload Property. (D-39, D-41, D-87 at 14).
54.

Since at least 1976, the pie-shaped area inside the stone and block wall has been

exclusively used by the owners of the Payload Property.


55.

Eric Engelhardt ("Engelhardt") owns and operates a thermometer factory called

"Philadelphia Instruments and Controls" at 4401 N. 6th Street, Philadelphia, which is in close
proximity to the Payload Property. (Tr. 3/13/15 at 20:7-16). The business has been located at
4401 N. 6t1' Street since 1943. (Tr. 3/13/15 at 21:22-25).
56.

Engelhardt is the president of Philadelphia Instruments and Controls. (Tr. 3/13/15

at 20:17-19).
57.

Engelhardt has worked on-site at the thermometer factory at that location on a day-

to-day basis since 1976. (Tr. 3/13/15 at 24:4-14).


58.

Since 1976, Engelhardt has taken the same route to work each day down Sixth

Street which brings him past the Payload Property. (Tr. 3/13/15 at 29:2-30:10, 40:11-13).
59.

Over the past thirty years, Engelhardt has always observed the area inside the stone

and block wall on the Payload Property to be used by the owners of the Payload Property. (Tr.
3/13/15 at 30:23-34:23).
60.

With regard to current ownership of the Payload Property, Engelhardt has

observed Payload trucks parked on the area of the Payload Property inside the stone and block
wall on a daily basis. (Tr. 3/13/15 at 35:2-15).
61.

Prior to that, the Payload Property was used for an automobile repair shop and

Engelhardt observed vehicles being worked on parked on the entire area inside the stone and
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Case ID: 130703647

block wall during the period in which the Payload Property was used in that manner. (Tr. 3/13/15
at 35:22-36:21).
62.

Prior to the automobile repair shop, Engelhardt observed the Payload Property

being used by a concrete company called D'Andrea Construction. (Tr. 3/13/15 at 36:22-24).
Engelhardt was very familiar with D'Andrea Construction because he previously played Little
League baseball with the owner's son. (Tr. 3/13/15 at 37:7-9).
63.

Engelhardt observed D'Andrea Construction continually use the area of the

Payload Property inside the stone and block wall to park their cement trucks and operate the
business since as early as 1976. (Tr. 3/13/15 at 37:7-38:14).
64.

At no point in time during the 39-year period in which Engelhardt has been

traveling to work past the Payload Property has he ever observed the area inside the stone and
block wall used by anyone other than the owner or tenant of the Payload Property. (Tr. 3/13/15 at
38:15-20).
65.

Giunup and Pettacio have exclusively used the pie-shaped area inside the stone and

block wall to operate Payload Disposal since they purchased the Payload Property in March 2004.
(D-87 at 15). Payload uses the area of the Payload Property right up to the stone and block wall
for parking. (Tr. 3/16/15 at 117:11-17). Payload also uses this pie-shaped portion for storage of
trash containers. (Tr. 3/16/15 at 117:22-118:3).
66.

Payload parks trash trucks on the pie-shaped area of the Payload Property inside

the stone and block wall. (Tr. 3/16/15 at 118:5-6).


67.

During the time that Giunup and Pettacio have owned the Property, no one else has

used the pie-shaped area inside the stone and block wall of the Payload Property. (Tr. 3/16/15 at
118:7-10).

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68.

The rear area of the Payload Property yard outside the stone and block wall is

improperly occupied by Mike McAnally. (Tr. 3/16/15 at 118:23-119:9).


69.

McAnally operates a scrap yard known as Poor Boys and/or Clearfield Wrecking

(collectively, "Poor Boys"). (Tr. 3/16/15 at 119:8-9).


5.
70.

Defendants' Chain of Title

The parties stipulated to Plaintiffs and Defendants' respective chains of title and

agree that Sally Norris Dickinson ("Dickinson") is the common grantor. (D-89 at 5-8).
71.

Defendants' chain of title begins with an 1862 deed out of Dickinson's Trustees to

Defendants' predecessor in title, Gustavus G. Logan (the "1862 Dickinson Deed"). (D-76, D-86,
D-89 at TT 6(a), 7(a)).
72.

The 1862 Dickinson Deed provides that the Sixth Street Property and the Payload

Property extend "to the middle of the North Pennsylvania Rail Road" and that the land conveyed
"includ[es] the portion thereof occupied by the said [North Pennsylvania] Rail Road." (D-76, D86).
73.

All of the deeds in Defendants' chain of title after the 1862 Dickinson Deed

provide that the Sixth Street Property and the Payload Property extend to the "center line" or
"middle line" of the former North Pennsylvania Railroad. (D-45-76).
74.

By deed dated November 20, 2003, Sixth Street Management is the current grantee

of the Sixth Street Property. (D-54, D-89 at 1).


75.

The current deed for the Sixth Street Property states that the property extends to

the "middle line" of the North Pennsylvania Railroad. (D-54).


76.

By deed dated March 18, 2004, Giunup and Pettacio are the current grantees of the

Payload Property. (D-45, D-89 at 2).

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77.

The current deed for the Payload Property states that the property extends to the

"center line" of the North Pennsylvania Railroad. (D-45).


C.

Plaintiff s Claimed Right-of-Way


1.

78.

Railroad Recovery

Thomas F. Clauss, Jr. ("Clauss") is the president of Plaintiff Railroad Recovery

("Clauss"). (D-88 at 13:9-10, 20-21).


79.

There are no other partners or associates involved with Railroad Recovery. (Id.).

80.

Clauss formed Railroad Recovery to hold title to real estate. (D-88 at 13:17-19,

14:10-13).
81.

Railroad Recovery claims ownership of a strip of land that purports to extend

across five city blocks from Cayuga Street to Rockland Street along the Former North
Pennsylvania Railroad Right-of-Way. (P-43).
82.

Railroad Recovery's claimed right-of-way overlaps the rear of the Sixth Street

Property and the Payload Property. (D-42).


83.

Railroad Recovery claims that Sixth Street erected a fence that encroaches upon

Plaintiffs claimed right-of-way and that Giunup and Pettacio maintain a concrete wall with an
embedded fence that allegedly encroach upon Plaintiffs claimed right-of-way. (FAC, 27-30).
2.
84.

The 1854 Dickinson Deed

Plaintiffs abstract of title to the claimed right-of-way was stipulated to by the

parties. (D-89).
85.

Plaintiffs claim to the right-of-way descends from a January 12, 1854 deed from

Dickinson to the North Pennsylvania Railroad (the "1854 Dickinson Deed"). (P-1, P-2, D-80)

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86.

The granting clause in the 1854 Dickinson Deed conveys an interest in "using

occupying and Enjoying for Rail Road purposes" Dickinson's property as follows:
...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 and liberty and privilege of using occupying and
Enjoying for Rail Road purposes ALL THAT [description of parcel] and
of keeping using and maintaining thereon the Rail Road of the Said party
of the second part and at all times hereafter forever together with incident
easements and appurtenances thereunto belonging...
(P-1, P-2, D-80).
87.

The 1854 Dickinson Deed attaches a plan stating: "Survey of ground occupied by

North Penna. R. R. Co. Through the Property of Sarah Dickinson Containing 9 A57 Perches
Scale 200 feet to an inch." (D-80) (emph. added).
88.

The 1854 Dickinson Deed contains a habendum clause which includes a

reversionary clause as follows:


TO HAVE AND TO HOLD the rights and premises aforesaid unto the
said The North Pennsylvania Railroad 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 rail road contemplated to be
now shortly construed 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.
(P-1, P-2, D-80).
89.

The 1854 Dickinson Deed does not contain a warranty clause. (Tr. 3/16/15 at

40:3-25).
90.

Pursuant to Regional Rail Reorganization Miscellaneous Order No. 75-3, dated

March 25, 1976, and amended March 31, 1976, the Special Court approved the Final System Plan

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of the United States Railway Association and awarded the North Pennsylvania Rail Road
Company lands to Consolidated Rail Corporation ("Conrail"). (P-10).
91.

The North Pennsylvania Railroad conveyed its interest under the 1854 Dickinson

Deed in the claimed right-of-way to Conrail by deed dated May 11, 1979. (P-3).
3.
92.

The Conrail Abandonment

On May 18, 1984, Conrail filed an Application with the Interstate Commerce

Commission ("ICC") to abandon its common carrier obligation with regard to the Bethlehem
Branch, which branch included the claimed right-of-way at issue in this action. (P-11; Enright Tr.
Dep. at 22:15-19; 84:10-14).
93.

On December 3, 1984, the ICC issued a Certificate and Decision certifying that

Conrail was authorized to abandon the Bethlehem Branch. (P-14; Enright Tr. Dep. at 32:9-21;
84:15-18).
94.

Pursuant to the ICC Decision, Conrail effected an abandonment of the rail line by

taking up the rails. (Enright Tr. Dep. at 86:20-87:11).


95.

The segment of the Bethlehem Branch that Conrail abandoned included the

claimed right-of-way at issue in this action. (Enright Dep. at 87:16-20).


96.

Authorization by Conrail to dismantle the tracks of the Bethlehem Branch is

memorialized in a Conrail memorandum dated January 13, 1988 from JF Btak. (D-29; Enright
Dep. at 87:21-88:22).
97.

At the time of the January 13, 1988 memorandum, there was no rail service over

the line because it makes reference to it being an "out of service line." (Enright Dep. at 89:6-10).
98.

There was a termination of rail operations of the Bethlehem Branch at least as of

the point in time of the January 13, 1988 memorandum. (Id. at 91:9-12).

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4.
99.

The Quit Claim Deed From Conrail

Plaintiff claims to have purchased the right-of-way from Conrail on November 2,

1994 for $18,000. (D-2, D-88 at 106:19-24; Tr. 3/17/15 at 47:16-19).


100.

Conrail did not warrant title. (Enright Tr. Dep. at 76:24). On that issue, Enright

testified:
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 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.
(Id. at 76:24-77:8).
101.

Plaintiff received a Quit Claim Deed from Conrail dated November 2, 1994 (the

"1994 Quit Claim Dean. (D-2 at Exh. "A"). Plaintiff did not inquire of Conrail as to the basis
of its ownership of the right-of-way. (D-88 at 124:6-9).
102.

In purchasing the right-of-way, Plaintiff did not have a legal description and did

not perform a title search. (D-88 at 18:12-15, 124:10-12).


103.

Plaintiff did not purchase any title insurance for the right-of-way, no survey was

performed, and Plaintiff did not have an understanding as to where the property lines fell in
relation to neighboring property owners. (D-88 at 19:8-15, 124:14-16; Tr. 3/17/15 at 47:20-22).
104.

Plaintiff took the 1994 Quit Claim Deed to Chase Abstract Company to have the

deed recorded, but Chase could not record the deed because there was no address or metes and
bounds legal description associated with the property. (D-2, D-88 at 107:24-108:12).
105.

Plaintiff did not go back to Conrail at that time to try to correct the problem with

the 1994 Quit Claim Deed. (D-88 at 109:5-9).

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106.

No deed from Conrail to Plaintiff was recorded until January 25, 2012, some 18

years later. (D-2). However, from Conrail's perspective, it effectively sold the property to
Plaintiff in 1994 based upon the 1994 Quit Claim Deed. (Enright Tr. Dep. at 83:1-6).
107.

The 2012 deed is called a Quit Claim Deed of Confirmation (the "2012 Quit Claim

Deed"). (D-2).
108.

The 2012 Quit Claim Deed attached the 1994 Quit Claim Deed and states the 1994

Quit Claim Deed could not be recorded due to the lack of a metes and bounds property
description. (D-2).
109.

The Stantec survey and legal description attached to the 2012 Quit Claim Deed

describe the property as "The Former North Penn Railroad Right of Way." (D-2).
5.
110.

Railroad Recovery Sells the Right-of-Way to Linda Miller

Plaintiff purchased the claimed right-of-way from Conrail with intent to fill in the

property and re-sell it. (D-88 at 111:6-10; Tr. 3/17/15 at 40:8-25).


111.

It took Plaintiff approximately one year to fill in the right-of-way. (Id. at 23:9-12).

112.

After Plaintiff filled in the property, it entered an installment agreement of sale to

sell the right-of-way to Linda Miller for $20,000 (the "Installment Agreement"). (P-76, D-88 at
23:16-25; Tr. 3/17/15 at 41:23-25, 45:9-46:7).
113.

Linda Miller is the wife of McAnally. Plaintiff knew McAnally through

McAnally's junkyard business. (D-88 at 24:2-10).


114.

It was McAnally who initially approached Plaintiff to sell the right-of-way to

Linda Miller. (D-88 at 27:16-17).


115.

The Installment Agreement between Plaintiff and Linda Miller is dated February

16, 1998. (P-76).

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116.

Linda Miller paid Plaintiff the $20,000 in payments called for under the

Installment Agreement and fully performed under the terms of the Installment Agreement. (D-88
at 29:15-20; 62:3-7; Tr. 3/17/15 at 46:4-13).
117.

The final installment payment from Miller was received in or about 1999 or 2000.

(D-88 at 29:21-23).
118.

Clauss believed that the parties fully performed under the agreement of sale and

that Plaintiff sold the right-of-way to Miller. (D-88 at 30:17-21; Tr. 3/17/15 at 46:14-17).
119.

Clauss believed that Plaintiff fulfilled its obligation to convey title to Miller by

providing her with a copy of the deed he received from Conrail. (Id. at 30:24-31:10, 32:3-15,
39:4-8).
120.

Clauss has not been back to the right-of-way since he sold it to Miller. (Id. at

55:16-21).
121.

Plaintiff gave full possession of the right-of-way to Miller and McAnally. (Id. at

55:16-21). McAnally has operated a scrap yard on the right-of-way. (Tr. 3/16/15 at 119:8-9).
Previously it was filled with auto debris and trash and that condition persisted at the time of trial.
(D-25; Tr. 3/13/15 at 173:21-174:3).
122.

Plaintiff never paid any taxes on the right-of-way after selling it to Miller. (Id. at

49:11-13, 50:2-5).
123.

Plaintiff is aware there are significant taxes owed in connection with the right-of-

way, but has not paid them. (Id. at 50:13-18, 104:4-9).


124.

Plaintiff has not paid any City stormwater fees in connection with the right-of-way.

(Id. at 104:2-3).

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125.

Since purchasing the Payload Property in 2004, Defendants never met Clauss or

observed Clauss occupy or use the claimed right-of-way. (Tr. 3/16/15 at 122:21-123:4). The
only people Defendants saw occupy and use the right-of-way during that time was McAnally.
(Tr. 3/16/15 at 123:2-4).
D.

The 2008 Ejectment Action

126.

In 2008, Sixth Street Management commenced an action to eject Poor Boys from

the disputed rear portion of the Sixth Street Property. (P-18).


127.

During discovery in the 2008 ejectment action, Sixth Street Management learned

that Poor Boys claimed to be leasing the right-of-way from Linda Miller and that Linda Miller
was the wife of a principal of Poor Boys, Michael McAnally. (P-51 at pp. 1-2).
128.

By Order dated July 9, 2009, the Court granted Sixth Street Management's

uncontested Motion to Amend the Complaint to add Linda Miller as a defendant. (P-52).
129.

On July 15, 2009, Attorney Wayne R. Maynard ("Maynard"), counsel for the

defendants, entered a stipulation to amend the caption and complaint to add Linda Miller as a
defendant. (P-53).
130.

Sixth Street Management's Amended Complaint against Poor Boys and Miller was

filed on July 15, 2009. (P-55).


131.

Following a bench trial on August 18, 2009, in which Maynard represented all

defendants, The Honorable Gary S. Glazer issued an Order ejecting Poor Boys and Miller from
the claimed right-of-way on the Sixth Street Property. (D-19).
132.

Judge Glazer concluded that the Poor Boys defendants had no right to use an

easement over the Sixth Street Property. (D-19 at p. 6).

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133.

On October 2, 2012, Sixth Street filed a Praecipe to Enter Judgment against Linda

Miller. (P-56).
134.

On January 13, 2012 Linda Miller filed a Motion to Strike the judgment alleging

she was not properly served and did not have notice of the proceedings. By Order dated February
7, 2013, Judge Glazer denied the Motion to Strike as untimely and without legal merit as follows:
The court finds that the defendant, Linda Miller, had notice of the
proceedings against her. Defendant Miller is listed on the docket as a
defendant. Attorney, Wayne R. Maynard, is listed as attorney for
defendants. A stipulation to file an amended complaint including Linda
Miller as a defendant was filed on July 15, 2009. At the commencement
of the trial, defendants' counsel did not object to the addition of Linda
Miller. See Trial Transcript, pp. 6-7. Moreover, defendants' counsel
included Linda Miller in his proposed findings of fact. See [P]laintiff s
answer to the motion to strike, Exhibit D. An appeal was quashed by the
appellate court on January 26, 2010 and a praecipe for entry of judgment
was filed on October 2, 2012. Defendant Miller waited until January 13,
2012 to file this instant motion to strike. Finally, defendant Miller raised
no objections in this matter until more than three years after judgment.
While this motion is an interesting afterthought, it is untimely and without
legal merit.
(D-81).
135.

By Order Dated February 13, 2013, Judge Glazer denied Linda Miller's Motion for

Reconsideration of the Court's February 7, 2013 Order denying the Motion to Strike. (D-82).
136.

On February 28, 2013, Judge Glazer issued a decision adopting the Court's

reasoning in the February 7, 2013 Order in response to Linda Miller filing her appeal to the
Superior Court. (D-83).
137.

By Order Dated April 24, 2013, the Superior Court quashed Linda Miller's appeal

of the February 7, 2013 Order denying the Motion to Strike. (D-84).


138.

By Order dated June 3, 2013, the Superior Court denied Linda Miller's

Application for Reconsideration of the April 24, 2013 Order quashing her appeal. (D-85).

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E.

Other Litigation

139.

In 2011, Linda Miller, represented by Plaintiff's counsel in this action, Anthony B.

Quinn, commenced a federal action against Conrail, Railroad Recovery, and Clauss captioned as
Miller v. Railroad Recovery, Inc., et al., No. 2:11-cv-06901 (E.D.Pa. 2011) (the "Federal
Action"), seeking a deed to the claimed right-of-way in connection with the Installment
Agreement. (D-1).
140.

Conrail settled the Federal Action by issuing the 2012 Quit Claim Deed. (Enright

Tr. Dep. at 79:22-80:1).


141.

In issuing the 2012 Quit Claim Deed at Attorney Quinn's request, Conrail's

counsel, John Enright, understood that Attorney Quinn represented Linda Miller. (Enright Tr.
Dep. at 68:3-7).
142.

In March of 2012, Linda Miller, again represented by Attorney Quinn, sued

Railroad Recovery and Clauss in this Court seeking a deed to the right-of-way in connection with
the Installment Agreement. See Miller v. Clauss, et al., March Term 2013, No. 00439 (C.C.P.
Phila.). (D-89 at 40:23-41:11, 41:18-22; Tr. 3/17/15 at 47:23-25). That action was ultimately
discontinued, but no deed to the right-of-way was ever recorded into Linda Miller. (Id. at 49:2025).
143.

Rather, Clauss was asked by Attorney Quinn to commence the present action in

Railroad Recovery's name and he agreed to do so. (Id. at 52:13-53:15).


F.

The Current Litigation

144.

Plaintiff initiated the action by the filing of a Complaint on July 26, 2013.

145.

Plaintiff filed its First Amended Complaint ("FAC") on October 14, 2013.

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146.

The FAC contains three counts: Count I asserts a claim for ejectment; Count II

asserts a claim for injunctive relief; and Count III asserts a claim for mesne profits and rents.
147.

In addition to seeking equitable relief, all three counts of the FAC seek

compensatory damages, treble damages, delay damages, prejudgment interest, counsel fees and
costs in an amount in excess of $50,000. See FAC, 42(c), 45(b), 55.
148.

Plaintiff's principal Clauss disclaimed any independent basis for the damages

claims in the FAC and testified that Plaintiff has not lost any rental income or profits from
Defendants' alleged improper use of the property or otherwise suffered any other damages. (Id. at
74:8-78:22).
149.

Defendants filed their Answer, New Matter, Counterclaim ("Answer") to the FAC

on November 14, 2013. (P-26).


150.

The Answer asserted counterclaims to quiet title to the disputed area of the Sixth

Street Property and the Payload Property. (P-26).


151.

Among other defenses, the Answer asserted that Plaintiff's claims were barred: (1)

by the doctrine of adverse possession; and (2) because Plaintiffs predecessors had a mere
easement. (P-26 at New Matter, In 61, 69, 71, 73).
152.

Pursuant to Pennsylvania Rule of Civil Procedure 1033, Defendants Giunup and

Pettacio were permitted to amend their counterclaims to assert: (1) a claim for adverse possession
as to the area of the Payload Property inside the stone and block wall; and (2) a claim for
ejectment as to the disputed portion of the Payload Property occupied by Plaintiff's privies,
McAnally/Poor Boys/Miller. (Tr. 3/13/15 at 17:23-18:3).
153.

A bench trial was held on March 11-17, 2015. Following the close of Plaintiff s

case, the Court granted: (1) Defendants' Motion for Nonsuit for failure to state a claim against

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Mast; and (2) Defendants' Motion for Nonsuit for failure to state a claim for mesne profits and
rents in Count III of the FAC. (Tr. 3/13/15 at 18:5-15).
PROPOSED CONCLUSIONS OF LAW
A.

Plaintiff is Not the Real Party in Interest and Lacks Standing to Bring This
Ejectment Action

154.

Under Pennsylvania Rule of Civil Procedure 2002, "all actions shall be prosecuted

by and in the name of the real party in interest." Pa. R. Civ. P. 2002.
155.

To be a "real party in interest," so as to have standing to maintain an action, one

must not merely have an interest in the result of the action, but must be in command of the action.
Clark v. Cambria County Bd. of Assessment Appeals, 747 A.2d 1242, 1246 (Pa. Commw. 2000).
156.

Real party in interest rules were enacted to avoid legal fictions and prevent a real

party in interest from hiding behind the legal plaintiff. Ham v. Sulek, 620 A.2d 5, 8 (Pa. Super.
1993).
157.

Plaintiff Railroad Recovery is not the real party in interest because it sold the

claimed right-of-way to Linda Miller under the Installment Agreement on February 15, 1998. See
Bauer v. Hill, 267 Pa. 559, 562 (1920) (holding that whenever an unconditional agreement has
been made for the sale of land, such as equity will specifically enforce, the property may properly
be referred to as sold).
158.

Under the doctrine of equitable conversion, when an installment contract is signed,

the buyer becomes the equitable or beneficial owner of the property. Stillwater Lakes Civic
Ass'n, Inc. v. Krawitz, 772 A.2d 118, 120 (Pa. Commw. 2001) (citing, Byrne v. Kanig, 332 A.2d
472 (Pa. Super. 1974)).
159.

The seller under an installment contract retains legal title to the property as

security for the buyer's performance only until the buyer satisfies the terms of the contract.

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Stillwater Lakes, 772 A.2d at 120 (citing, Anderson Contracting Co. v. Daugherty, 417 A.2d 1227
(Pa. Super. 1979), appeal dismissed, 425 A.2d 329 (Pa. 1980)).
160.

Indeed, Pennsylvania has adopted the view that the relationship between a seller

and a buyer who are parties to an installment sales agreement is that of a mortgagee and
mortgagor. Stillwater Lakes, 772 A.2d at 121 (noting that Restatement (Third) of Property
(Mortgages) 3.4 cmt. a & 3.4(b) (1996) states that, in an installment sales agreement, the seller
is financing the balance of the purchase price, and that the installment sales contract creates a
mortgage).
161.

Immediately upon the signing of the Installment Agreement on February 15, 1998,

Linda Miller became the equitable or beneficial owner of the claimed right-of-way and the
property was deemed sold. (P-76).
162.

Plaintiff retained legal title to the claimed right-of-way only as security until Linda

Miller satisfied the terms of the Installment Contract. (D-88 at 37:19-24).


163.

Linda Miller paid all payments and otherwise satisfied all of her obligations under

the Installment Contract in or about 1999 or 2000. (D-88 at 29:21-23).


164.

After selling the claimed right-of-way to Linda Miller, Plaintiff did not pay taxes

and stormwater fees or undertake other actions incident to ownership. (Id. at 49:11-13, 50:2-5,
104:2-3).
165.

Plaintiff believed that the parties completed the Installment Agreement and that it

sold the claimed right-of-way to Linda Miller. (Id. at 30:17-21).


166.

Plaintiff is not the real party in interest and lacks standing to maintain this

ejectment action because it sold the claimed right-of-way to Linda Miller. (P-76; D-88 at 49:2025, 54:23-55:2, 62:3-7).

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167.

Having satisfied all obligations under the Installment Agreement, Linda Miller is

the real party in interest and owner of the claimed right-of-way. (Tr. 3/17/15 at 45:9-46:22; P76).
168.

Moreover, Linda Miller's involvement in prosecuting and defending at least three

other prior actions involving the claimed right-of-way demonstrates that Linda Miller is the real
party in interest with the requisite power to control this action. (D-1, D-83, D-88 at 40:23-41:7,
41:18-22, P-18).
169.

Linda Miller cannot hide behind Railroad Recovery to attempt to avoid the res

judicata implications of Judge Glazer's prior holding that Sixth Street Management has superior
title to the disputed portion of the Sixth Street Property. See Ham, 620 A.2d at 8 (rejecting
litigant's attempt to avoid res judicata effect of prior land use decision by filing subsequent action
on the same issue in the name of his paramour).
170.

The fact that a deed from Conrail into Railroad Recovery was not recorded until

2012, does not alter the conclusion that the claimed right-of-way was sold to Linda Miller on
February 15, 1998, and Linda Miller is the real party in interest.
171.

Conrail conveyed the claimed right-of-way to Railroad Recovery in the 1994 Quit

Claim Deed on November 2, 1994. (D-2 at Exh. "A").


172.

Title to real estate may be passed without recordation of the deed to the property.

Matter of Pentrack's Estate, 405 A.2d 879, 880 (Pa. 1979). Graham v. Lyons, 546 A.2d 1129,
1130 (Pa. Super. 1988) ("The title to real estate may be passed by delivery of a deed without
undertaking a recording since the recording is essential only to protect by constructive notice any
subsequent purchasers, mortgages, and new judgment creditors.").

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173.

A deed is effective to convey real property so long as the grantor has donative

intent, and the grantor delivers the deed to the grantee, whether actual or constructive. Fiore v.
Fiore, 174 A.2d 858, 860 (Pa. 1961).
174.

Conrail had donative intent to convey the claimed right-of-way to Railroad

Recovery through the 1994 Quit Claim Deed:

Q.

From Conrail's perspective as of 1994 based upon the earlier Deed


we looked at together, this property had been effectively conveyed
to Railroad Recovery?

A:

We thought, yes. That was our belief.

(Enright Tr. Dep. at 83:1-6).


175.

Enright further testified that the case plan that was attached to the 1994 Quit Claim

Deed depicted the claimed right-of-way that was being conveyed by Conrail to Railroad
Recovery, Inc. back in 1994:

Q:

I'd ask, sir, if you would look in the body of the 1994 Deed to the
case plan that Mr. Quinn directed you to, two pages, one of two
and two of two and what does this case plan represent?

The case plan represents a map depiction of the right of way that
was being conveyed by Conrail to Railroad Recovery, Inc. back in
1994. It's based off of what IbelieveIpreviously testified about,
evaluation map for that particular right of way.
(Enright Tr. Dep. at 73:14-74:1) (emph. added).
A:

176.

Plaintiff's Proposed Findings of Fact suggests that there is no evidence that

delivery of the 1994 Quit Claim Deed actually took place. (Plaintiffs FOF, If 14). Not only is it
the first time Plaintiff has ever raised this issue, but it is both incorrect and meritless. There is
evidence that the 1994 Quit Claim Deed was delivered to Plaintiff. Indeed, Plaintiff testified that
its representative personally attempted to record the 1994 Quit Claim Deed at the time, but was

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unable to do. (D-88 at 107:24-108:12, 108:23-12). Certainly Plaintiff could not have attempted
to personally record the 1994 Quit Claim Deed if it never received it.
177.

Further, Plaintiff testified that when it sold the claimed right-of-way to Linda

Miller in 1999-2000, its representative gave her a copy of the 1994 Quit Claim Deed. (D-88 at
30:17-31:10, 32:3-15, 32:23-33:8, 58:2-20). Again, Plaintiff could not have given Linda Miller a
copy of the 1994 Quit Claim Deed in 1999-2000 if it never received it.
178.

Even if there were not evidence of actual delivery, Pennsylvania courts hold that

constructive delivery is sufficient for conveyance of real property. Fiore, 174 A.2d at 860;
Mower v. Mower, 80 A.2d 856, 857 (Pa. 1951). Here, the 1994 Quit Claim Deed bears all of the
indicia of Conrail's intent that the 1994 Quit Claim Deed be delivered to Plaintiff in that it is fully
executed, notarized, and lists Plaintiffs address for delivery of the deed. (D-3 at pp. 5-6).
179.

Railroad Recovery's actions in occupying and filling in the claimed right-of-way

after the 1994 conveyance by Conrail further evidence that the claimed right of way was
conveyed to Plaintiff at that time. (Id. at 23:9-12).
180.

The sole purpose of the 2012 Quit Claim Deed was to confirm the prior November

2, 1994 conveyance of the claimed right-of-way to Railroad Recovery.


181.

Thus, the fact that the 1994 Quit Claim Deed into Railroad Recovery was not

recorded until 2012 as part of the 2012 Quit Claim Deed is irrelevant to whether the claimed
right-of-way was sold to Linda Miller in 1998, making Linda Miller the real party in interest for
purposes of this action.
182.

The conclusion that Linda Miller is the real party in interest is further supported by

the circumstances surrounding the issuance of the 2012 Quit Claim Deed in that Conrail provided
the 2012 Quit Claim Deed in response to the federal action prosecuted by Linda Miller and at the

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request of Linda Miller's then attorney, Anthony Quinn, who not coincidentally, is the same
attorney prosecuting this action. (Enright Tr. Dep. at 68:3-7; 79:22-80:1).
183.

This Court rejects Linda Miller's attempt to hide behind the ostensible plaintiff,

Railroad Recovery, to try to avoid the res judicata implications of Judge Glazer's Order.
184.

Accordingly, the Court finds that Railroad Recovery lacks standing to maintain

this action against Defendants.


B.

Railroad Recovery's Ejectment Claims Fail Because It Cannot Meet Its


Burden of Establishing Paramount Title

185.

Plaintiffs burden in an action in ejectment as law is clear: plaintiff must establish

the right to immediate exclusive possession. Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super.
1991) (citing, Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984); Harbor Marine Co. v.
Nolan, 366 A.2d 936 (Pa. Super. 1976)).
186.

Recovery in ejectment can be had only on the strength of plaintiffs title, not the

weakness of defendant's title. Doman, 592 A.2d at 108 (citing, Artz v. Meister, 123 A. 501 (Pa.
1924); Ratajski v. West Penn Mfg. & Supply Corp., 182 A.2d 243 (Pa. Super. 1962)).
187.

The crux of an ejectment action rests with the plaintiffs' ability to prove, by a

preponderance of the evidence, the right to exclusive possession vis--vis proof of paramount
title. Sutton v. Miller, 592 A.2d 83, 89 (Pa. Super. 1991).
188.

Plaintiff has not met and cannot meet its burden of proof of establishing paramount

title to the Disputed Area of the Sixth Street Property and the Disputed Area of the Payload
Property.

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1.
189.

The Estate Granted to the North Pennsylvania Railroad Was a Mere


Railroad Right-of-Way and Not a Fee Interest

It has been stipulated by the parties that the North Pennsylvania Railroad was a

predecessor in title to Plaintiff. (D-89 at 5).


190.

This dispute centers upon what estate and interest, if any, the North Pennsylvania

Railroad received under the 1854 Dickinson Deed. The instrument reads in pertinent part as
follows:
THIS INDENTURE, made the Twelfth day of January in the year of our
Lord one thousand eight hundred and fifty four, between SALLY NORRIS
DICKINSON, of the City of Philadelphia, Single woman of the First part,
and "THE NORTH PENNSYLVANIA RAIL ROAD COMPANY" of the
Second part.
WITNESS, that the said Sally Norris Dickinson for and in consideration of
the sum of Nine thousand three hundred and fifty six dollars and sixty
seven cents lawful money to her paid by the said The North Pennsylvania
Rail Road Company at and before the sealing and delivery hereof the
receipt whereof is hereby acknowledged, Hath granted, bargained, sold,
released and confirmed and by these presents 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, 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.
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 said party of the Second
Part at all times hereafter forever.
TOGETHER with the incidents, easements and appurtenances thereunto
belonging.
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 rail road contemplated to be now
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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 revert 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.
IN WITNESS WHEREOF the said party of the first part hath hereunto set
her hand and seal and the said party of the second part hath hereunto
caused their corporate seal to be affixed the day and year first hereinabove
mentioned.
P-1,
P-2).
(D-80;
191.

In interpreting such instruments, the court's "'primary object must be to ascertain

and effectuate what the parties intended.'" Mackall v. Fleegle, 801 A.2d 577, 581 (Pa. Super.
2002) (quoting, Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 (Pa. 1957)).
192.

The traditional rules of construction that guide the Court's determination of that

intention are as follows:


(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...; (2) effect must be given to
all the language of the instrument and no part shall be rejected if it
can be given meaning ...; (3) if a doubt arises concerning the
interpretation of the instrument it will be resolved against the party
who prepared it...; (4) unless contrary to the plain meaning of the
instrument, an interpretation given it by the parties themselves will
be favored...; (5) to 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...
Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 at n. 6 (Pa. 1957) (emph. in
original) (citations omitted).

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193.

Analysis of the 1854 Dickinson Deed in its entirety, based on a number of factors,

compels the conclusion that Dickinson did not intend to convey a fee simple interest to the North
Pennsylvania Railroad and that all that was intended was an easement or railroad right-of-way.
194.

A railroad right-of-way is a distinct kind of estate in which the railroad is granted

a limited right to use the land for railroad purposes and upon abandonment of such use by the
railroad, the right-of-way is terminated. (D-43, p. 5) (citing, Powell on Real Property, Vol 4
34.04[7]; 78A.06[3][b] (Rel 144-9/2013)). Although similar to an easement, a railroad right-ofway differs in that the railroad has the right to exclusive use and to alter the terrain. (Tr. 3/16/15
at 14:16-15:21, 28:21-29:7).
195.

Upon abandonment of a railroad right-of-way by the railroad, the property

automatically reverts to the adjoining landowner to the center line. (Tr. 3/16/15 at 14:19-23).
There is no obligation on the part of the holders of the servient estate to take affirmative action to
retake possession. (Tr. 3/16/15 at 16:2)
196.

Pennsylvania courts consistently hold that conveyances to railroads which do not

clearly grant a fee are to be construed as railroad rights-of-way. Lawson v. Simonsen, 417 A.2d
155, 159 (Pa. 1980); Fleck v. Universal-Cyclops Steel Corp., 156 A.2d 832, 834 (Pa. 1959);
Brookbank, 131 A.2d at 165-66; Mackall, 801 A.2d at 583; Quarry Office Park Assocs. v. Phila.
Elec. Co., 576 A.2d 358, 362 (Pa. Super. 1990).
197.

In all five of the cases cited, it was decided that the instruments at issue granted a

railroad right-of-way or easement, and not a fee simple interest. When compared with the
instruments in those cases, it is clear that the 1854 Dickinson Deed granted an easement or
railroad right-of-way and not a fee simple interest.

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198.

The Fleck, Lawson, Brookbank, Mackall, and Quarry courts considered many

factors which, taken together, point to the grant of an easement or railroad right-of-way in the
1854 Dickinson Deed.
Lack of a Warranty Clause
199.

As in Lawson, Brookbank, Mackall, and Quarry, the lack of a warranty clause in

the 1854 Dickinson Deed is indicative of intent to convey an easement or railroad right-of-way,
and not a fee simple interest. Lawson, 417 A.2d at 159; Brookbank, 131 A.2d at 110; Mackall,
801 A.2d at 582; Quarry, 576 A.2d at 3625. For example, the Lawson court found it "unlikely"
and the Brookbank court "inconceivable" that the railroad would not have required a warranty of
title if a fee simple interest were intended. Lawson, 417 A.2d at 159; Brookbank, 131 A.2d at
110.
200.

Consistent with those cases, the absence of a warranty clause in the 1854

Dickinson Deed supports the conclusion that all that was intended in the grant was an easement or
railroad right-of-way and not a fee simple interest.
201.

Further, Defendants' title expert, E. A. ("Sandy") Dixon,2 testified that it is

traditional that every deed of fee will have a warranty of title. The fact that the 1854 Dickinson
Deed does not have a warranty clause weighs in favor of finding that a fee title was not intended.
(Tr. 3/16/15 at 40:3-25).

E. A. Dixon was proffered and accepted by the Court as an expert in title insurance and real estate issues
related to title to property including railroad property. (Tr. 3/16/15 at 11:17-20). Dixon served as underwriting
counsel for over 20 years and focused his private practice almost exclusively in the area of title issues, including
railroad issues. (Tr. 3/16/15 at 7:11-15, 7:21-9:2; D-44). Dixon also served as chairman of the Pennsylvania Land
Title Association Legislative Committee. (D-44).

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Recitation of Specific Rights in the Granting Clause


202.

Another determinative factor considered in Brookbank, Quarry, and Mackall, also

present here, is the recitation of specific rights granted to the railroad in the granting clause.
Brookbank, 131 A.2d at 110; Quarry, 576 A.2d at 360; Mackall, 801 A.2d at 579, 582. The
enumeration of specific rights to use and occupy land for a specific purpose is inconsistent with
the grant of a fee, but consistent with the grant of an easement or right-of-way. See Powell on
Real Property, Vol 4 34.04[7]1 78A-40, pp. 34-35 (Rel. 144-9/2013) ("... [A] conveyance
permitting the conveyee to make stated use of the land for particular purpose, is normally
construed to create an easement...").
203.

The Quarry instrument granted the railroad the right to enter, use and occupy the

land for "all the uses and purposes convenient or necessary for a Rail Road." Quarry, 576 A.2d at
360. The Brookbank instrument granted the railroad the right to enter the land and to construct
and operate a railroad. Brookbank, 131 A.2d at 110. The instrument in Mackall granted the
railroad the "use" of a strip of land for the "construction, repair and use" of a double railroad track
as far as it may extend over "our lands." Mackall, 801 A.2d at 579, 582. In each instance, the
courts found that the grant of certain rights to the railroad was consistent with conveyance of a
railroad right-of-way and inconsistent with conveyance of a fee interest.
204.

Similarly, the 1854 Dickinson Deed granted the railroad certain specific rights of

"using, occupying and Enjoying for Rail Road purposes" a "strip" of land which is "part of the
lands and estate of the said Sally Norris Dickinson." (D-80; P-1). In the words of the Brookbank
Court, "[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." Brookbank, 131 A.2d at 110. Guided by the traditional rules of construction, the only

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way to give effect to all of the language in the 1854 Dickinson Deed is to conclude that the parties
did not intend a fee simple interest. Any other construction would fail to give meaning to the
enumeration of specific rights of "using, occupying and Enjoying for Rail Road purposes" in the
1854 Dickinson Deed.
205.

Defendants' expert, Dixon, likewise explained that the granting clause is the part

of the deed that provides that the grantor grants and conveys to the grantee. (Tr. 3/16/15 at 33:1734:7). If the deed goes on to qualify the grant in the granting clause, that takes it out of a fee and
changes it to an easement. (Tr. 3/16/15 at 34:8-11). Here, the Dickinson Deed provides that it
"assigns the entire and exclusive use, right, liberty and privilege of using, occupying and enjoying
for Rail Road purposes." (D-80; P-1, P-2). This language is not indicative of a fee grant because
it is limited to exclusive use of occupying and enjoying for railroad purposes. (Tr. 3/16/15 at
35:2-12). It is inconsistent with a fee grant to have the grant be limited to railroad purposes. (Tr.
3/16/15 at 35:12-14).
206.

Further, the language in the granting clause of the 1854 Dickinson Deed granting

"exclusive use, right, liberty and privilege of using" is indicative of railroad right-of-way because:
(1) railroads could not have other people on their right-of-way constructing things; and (2) this
language would not be needed for a fee because exclusive use is inherent with a fee. (Tr. 3/16/15
at 69:23-70:12).
The Habendum Clause
207.

The habendum clause in the 1854 Dickinson Deed provides as follows:


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 rail road contemplated to be now

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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.
IN WITNESS WHEREOF the said party of the first part hath hereunto set
her hand and seal and the said party of the second part hath hereunto
caused their corporate seal to be affixed the day and year first hereinabove
mentioned.
(D-80; P-1, P-2).
208.

The language of the habendum clause supports the conclusion that a railroad right-

of-way was intended in that it aptly describes the nature and parameters of a railroad right-of-way.
(Tr. 3/16/15 at 37:18-39:9). As Dixon explained lilt's a grant of the use, and when that use
ceases it goes back to the grantor and their successors in title, which would mean the current
landowners." (Id. at 37:9-12).
209.

While Dixon's report noted that the habendum clause was similar to that of a

defeasible fee (D-43, p. 10; Tr. 3/16/15 at 108:19-109:4), he explained that any inconsistency in
the language was due to the fact that railroad rights-of-way were not commonly understood in the
mid-1800's and the scriveners were trying to define how the interest was intended to operate. (Tr.
3/16/15 at 36:12-21). Because there was no established law during this period of time, courts
should review the deed from a historical standpoint in interpreting what was the intent of the
parties, including that the property conveyed was a narrow strip which is consistent with grant of
a railroad right-of-way. (Tr. 3/16/15 at 39:17-22).
210.

Even if the Court were to find some inconsistency between the granting clause and

the habendum clause, it is well-settled law that the granting clause controls. Fleck v. Universal-

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Cyclops Steel Corp., 156 A.2d 832 (Pa. 1959). Here, the language of the grant in the 1854
Dickinson Deed clearly granted a railroad right-of-way and not a fee. (Tr. 3/16/15 at 108:23-25).

Reference to the Grantor's Continuing Interest in the Property


211.

The "map or plan" annexed to and incorporated in the 1854 Dickinson Deed

supports the conclusion that an easement was intended in that the map makes reference to the
grantor's continuing interest in the property. (D-80). In particular, the "map or plan" annexed to
and incorporated in the 1854 Dickinson Deed supports the conclusion that a mere railroad rightof-way was intended in that the survey is described as "ground occupied by North Penna R. R.
Co. Through the Property of Sarah Dickinson." (D-80) (emph. added). This language supports
the interpretation that the railroad had only a right to "occupy" the strip of land and the property
remained that of Dickinson, which is consistent with grant of a railroad right-of-way. This
language is similar to the grant in Fleck which conveyed to the railroad a right-of-way through
and over the grantor's land and to the conveyance in Mackall which granted the railroad use of a
strip of land over our lands. Fleck, 156 A.2d at 833; Mackall, 801 A.2d at 579, 582.
Historical Context and Public Policy
212.

The historical context of the 1854 Dickinson Deed supports the conclusion that the

grant to the railroad conveyed an easement or railroad right-of-way to the railroad and not a fee.
Dixon opined that at the time the 1854 Dickinson Deed was conveyed, where, as here, a strip of
land across a grantor's property was conveyed to a railroad for railroad purposes, the estate
intended to be conveyed was a railroad right-of-way and not a fee simple interest. (D-43 at p. 11).
213.

Dixon further testified that there are important public policy reasons which weigh

against construing conveyances to railroads as defeasible fees. (Tr. 3/16/15 at 24:13-23; D-43 at

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p. 4). Dixon testified that the problem with defeasible fees (fee subject to condition subsequent
and fee simple determinable) it may not be known who owns the reversionary interest for 100 or
150 years depending on whether the reversionary interest was conveyed. (Id. at 24:16-23). The
other consequence of construing former railroad rights-of-way as fees, is that it creates
unmarketable slim corridors of land that potentially cut through the properties of numerous
landowners and cause great disruption. (Tr. 3/16/15 at 25:7-15; D-43 at p. 4). It is reasonable to
conclude that the parties' intended to avoid these undesirable circumstances by conveying to the
railroad only a railroad right-of-way or right or use that terminated upon abandonment of the
railroad.
214.

The Fleck, Lawson, Brookbank, Mackall, and Quarry decisions are illustrative of

this historical context in that in all five cases, the courts construed grants of strips of land to
railroads as easements or railroad rights-of-way and not fee interests.
Acknowledgement of the Railroad Occupation in the 1862 Dickinson Deed
215.

The language of the 1862 Dickinson Deed (into Defendants' predecessors)

supports the conclusion that the 1854 Dickinson Deed conveyed only any easement or railroad
right-of-way to the North Pennsylvania Railroad and not a fee. In that regard, the 1862 Dickinson
Deed provides that the property conveyed to Defendants' predecessors in title extends to "the
middle of the North Pennsylvania Rail Road" and "includes] the portion thereof occupied by the
said [North Pennsylvania] Rail Road." (D-76; D-86) (emph. added). This language in the 1862
Dickinson Deed acknowledging that Dickinson previously granted the railroad a right to occupy a
portion of her estate, shows that it was not an oversight that the 1862 Dickinson Deed conveyed
out a portion of the same land to Defendants' predecessors (i.e., "to the middle of the North
Pennsylvania Railroad) that was the subject of the 1854 Dickinson Deed eight years earlier. (Tr.

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3/16/15 at 53:4-15). While this does not conclusively establish that the 1854 Dickinson Deed was
intended to convey an easement or railroad right-of-way, it strongly indicates that Dickinson's
trustees reviewed Dickinson's intent closer in time to the 1854 Dickinson Deed and concluded
that it was an easement. (Tr. 3/16/15 at 54:19-55:3). It also indicates that the 1862 Dickinson
Deed was intended by the trustees to convey Dickinson's remaining fee simple interest to the
center line of the railroad to Defendants' predecessors.
Characterization as "Right-of-Way" in Maps and Plans of Record
216.

While not determinative, it is notable that at least several of the maps and plans

relied upon by Plaintiff characterize the railroad interest as a "right-of-way." (Tr. 3/12/15 at
67:20-23; P-36, P-37). See also, testimony of Plaintiffs expert surveyor Charles Karat. (Tr.;
3/12/15 at 73:15-20; P-4; _-43; P-44); (Tr. 3/12/15 at 73:11-14).
217.

Stauch likewise testified that in his professional experience a right-of-way is

limited to a privilege of using the land of another. (Tr. 3/13/15 at 89:10-15).


Amount of Consideration
218.

The amount of consideration paid for the interest is a factor which may be

reflective of the nature of the estate intended if indeed there is evidence of the value of the land
at the time of the grant. Brookbank, 131 A.2d at 108. However, in Brookbank, the Court ruled
that since there was no evidence of the value of the land at the time of execution of the
agreement, there was no way to determine whether the amount of consideration was reflective of
a fee interest. Id.
219.

Here, the stated consideration in the 1854 Dickinson Deed was $9,356.67 for

exclusive right to use and occupy land containing nine acres and fifty seven perches. (D-80;
P-1). As in Brookbank, there is no reasonable basis on this limited record to conclude that

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$9,356.67 in consideration is not reflective of a right-of-way or easement over nine acres in


Philadelphia County.
220.

Even if the amount of consideration in the 1854 Dickinson Deed could be

considered, it is comparable to the $6,000 of consideration in Fleck that was paid for a railroad
right-of-way over 11.83 acres of land in Allegheny County, Pennsylvania. Fleck, 156 A.2d at
833. The record reflects that Dickinson had large real estate holdings, so it is likely she had
considerable leverage in negotiating the value of an easement with the railroad. (D-76; Tr.
3/16/15 at 86:13-18).

Dickinson's Will
221.

Contrary to Plaintiff's suggestion, there was no need for Dixon to review

Dickinson's Will in connection with his opinion that the 1854 Dickinson Deed conveyed a
railroad right-of-way and not a fee. (Tr. 3/16/15 at 105:7-25).
2.

Plaintiffs Expert Witness Testimony Should Be Disregarded


a.

222.

Miller's Testimony Lacks a Proper Basis

Plaintiff proffered an expert opinion from lawyer and title agent, Andrew Miller

("Mille') that the 1854 Dickinson Deed conveyed a fee subject to a condition subsequent and
not an easement or right-of-way. (P-74; Tr. 3/16/15).
223.

The proper function of an expert is to "instruct the court and jury in matters so far

removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired
by a continued study and experience." Kozak v. Struth, 531 A.2d 420, 422 (Pa. 1987)
(quotations omitted). In Pennsylvania, experts are not permitted to speak generally to the
ultimate issue. Id.

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224.

Miller's testimony did not serve the proper function of an expert because Miller's

opinion was not based upon continued study and experience. To the contrary, Miller's report
does not cite a single authority and Miller admitted he did not review any authorities in reaching
his conclusory opinion that the 1854 Dickinson Deed conveyed a fee interest. (P-74; Tr. 3/16/15
at 224:17-225:5, 227:11-228"20). Rather, Miller testified that his review of authorities was
limited to review of cases provided by Attorney Quinn after he issued his opinion. (Tr. 3/16/15
at 228:21-229:25).
225.

By contrast, Defendants' expert Dixon testified that in reaching his conclusions

that the 1854 Dickinson Deed conveyed merely a railroad right-of-way, similar to an easement,
Dixon reviewed every Pennsylvania case he could find on the subject as well as secondary
sources including Ladner on Pennsylvania Real Estate Law. (Tr. 3/16/15 at 12:18-14:3, 15:2225).
226.

In opining that Dickinson conveyed a fee interest to the North Pennsylvania

Railroad, Miller relied upon a clause in the 1854 Dickinson Deed which reads "TOGETHER
with the incidents, easements and appurtenances thereunto belonging." (P-1; D-80). Miller
opined that it would be inconsistent for a deed conveying an easement to include other easements
and appurtenances and that this signaled a grant of fee.
227.

Miller's opinion regarding the purported significance of the "together with"

clause in the 1854 Dickinson Deed was based on a mere conjecture. Miller was unable to
provide any authority for his opinion that a "together with" clause conveying other easements
and appurtenances is inconsistent with the grant of an easement or that it is otherwise a
determinative factor. (Tr. 3/16/15 at 236:15-237:14). Miller suggests that he relied upon the
Brookbank case, but that decision does not speak to this issue. (Id. at 237:3-14). Nor did Miller

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identify any substantive reason why it would be improper to include a "together with" clause
conveying other easements and appurtenances in a deed conveying an easement or right-of-way.
228.

None of the five analogous cases, Fleck, Lawson, Brookbank, Mackall, or Quarry,

referenced the existence or non-existence of a "together with" clause conveying other easements
and appurtenances in the instrument as a determinative factor in the interpretation of what type
of estate was intended.
229.

To the contrary, Dixon testified the "together with" clause in the Dickinson Deed

was standard language for any conveyance and not determinative of whether the grant was
intended as an easement or a fee. (Tr. 3/16/15 at 85:13). Dixon opined that an example of
another easement or appurtenance that might be included in a "together with" clause is an
easement for water, for example. (Id. at 85:14-16).
b.
230.

Miller's Testimony Exceeded the Fair Scope of His Report

Additionally, Miller's testimony should be disregarded because it exceeded the

fair scope of Miller's expert report. (P-74).


231.

The fair scope rule, addressed specifically in Pa.R.Civ.P. 4003.5(c), "provides

that an expert witness may not testify on direct examination concerning matters which are either
inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or
included in a separate report." Walsh v. Kubiak, 661 A.2d 416, 420 (Pa. Super. 1995) (en banc).
The purpose of this rule is "[t]c) prevent incomplete or 'fudging' of reports which would fail to
reveal fully the facts and opinions of the expert or his grounds therefor." Pa.R.Civ.P. 4003.5(c),
cmt.
232.

By its terms, Miller's report was limited to opining on "the reasonableness of the

defendant's defense of the February 2008 civil action and to review and comment on the

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opinions of John L. DiGiacomo, Esquire expressed in writing and at trial." (P-74 at p. 5; Tr.
3/16/15 at 224:3-16).
233.

Therefore, Miller's testimony about his interpretation of the 1854 Dickinson Deed

and the "together with" clause went far beyond the fair scope of his report, lacked an adequate
basis, and should be disregarded.
3.

234.

The Railroad Right-of-Way Terminated Automatically Upon


Abandonment and Defendants as Adjoining Land Owners Regained
Full Title and Ownership to the Center Line of the Former Right-ofWay

When a railroad ceases to use a right-of-way and abandons it, "the right-of-way is

extinguished and the land is owned in fee simple by the owner or owners of the land on either
side of the right-of-way." Dellach v. DeNinno, 862 A.2d 117, 118 (Pa. Super. 2004) (citing,
Newell Rod & Gun Club, Inc. v. Bauer, 597 A.2d 667, 669 n. 2 (Pa. Super. 1991)).
235.

Put another way, upon abandonment, the property owners who already technically

own to the center line of the railroad take back full possession and rights to what was the rightof-way. (Tr. 3/16/15 at 28:17-20).
236.

To find that a railroad has abandoned its right-of-way, the railroad must exhibit an

intention to abandon the right-of-way accompanied by external acts through which the intention
is carried out. Thompson v. Md. & Pa. R.R. Pres. Soc., 612 A.2d 450, 453 (Pa. Super. 1992).
More than mere non-use of a right-of-way is required to demonstrate that a railroad has
abandoned its right-of-way. Id. at 454. Rather, the railroad must engaged in some affirmative
act which renders use of the right-of-way impossible, or some act of physical obstruction that is
inconsistent with its further enjoyment. Id. at 453.
237.

A certificate of abandonment issued by the ICC, coupled with affirmative acts of

abandonment, is sufficient to demonstrate that a railroad intended to abandon its right-of-way.

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Id. at 454. For example, in Thompson, the Superior Court held that a railroad company effected
abandonment of its right-of-way when it acquired an ICC certificate of abandonment, entered
into a salvage agreement for purposes of removing the railroad ties, and issued quit claim deeds
to property owners with land adjacent to the right-of-way. Id.
238.

Here, Conrail exhibited intent to abandon the right-of-way when it submitted an

application for abandonment of the Bethlehem Branch to the ICC on May 18, 1984. (P-11;
Enright Tr. Dep. at 22:15-19; 84:10-14). The ICC issued a certificate of abandonment to Conrail
on December 13, 1984. (P-14; Enright Tr. Dep. at 32:9-21; 84:15-18).
239.

Conrail's manifest intent to abandon was accompanied by external acts through

which that intent was carried out. In particular, Conrail issued an authorization to dismantle the
tracks of the Bethlehem Branch on January 13, 1988. (D-29; Enright Tr. Dep. at 87:21-88:22).
At that time, there was no longer any rail service on the right-of-way because the January 14,
1988 makes reference to the Bethlehem Branch being an "out of service line." (Enright Tr. Dep.
at 89:6-10).
240.

Thus, Conrail abandoned the right-of-way by exhibiting intent to abandon

accompanied by external acts at least as early as January 13, 1988.


241.

Upon Conrail's abandonment of the right-of-way over the Sixth Street Property

and the Payload Property on January 13, 1988, the right-of-way was extinguished and the land
was owned in fee simple by the owners of the Sixth Street Property and the Payload Property,
(i.e., the predecessors in title to Sixth Street Management and to Giunup and Pettacio).
242.

Because the right-of-way was extinguished automatically upon Conrail's

abandonment, the owners of the Sixth Street Property and the Payload Property, were not

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required to take any affirmative steps to terminate the right-of-way or otherwise reclaim the
property up to the center line. (Tr. 3/16/15 at 28:17-20).
243.

The automatic termination of the right-of-way is consistent with the language in

the 1854 Dickinson Deed which provides that upon abandonment of the railroad, the strip of land
"shall revest" in Dickinson or her heirs and assigns "as if this present Indenture had never been
made." (P-1; D-80) (emph. added).
244.

Thus, the owners of the Sixth Street Property and the Payload Property, as

Dickinson's assigns and as the owners of property abutting the westerly side of the right-of-way,
continued to own to the "center line" or "middle line" of the North Pennsylvania Railroad as set
forth in their deeds. (D-45, D-54).
245.

Plaintiff's citation to Werry v. Sheldon, 24 A.2d 631 (Pa. Super. 1942) is not on

point and confuses the issues. (Tr. 3/16/15 at 101:15-102:21). The Werry case involved whether
a grantee's easement to use a road across the grantor's property was extinguished by virtue of
nonuse or whether some affirmative action was required on the part of the grantee to constitute
abandonment. Contrary to Plaintiff's suggestion, this case does not stand for the proposition that
some affirmative action is required on the part of the grantor to retake possession once an
easement has been abandoned. Moreover, the Werry case is distinguishable in that it did not
involve the issue of abandonment by a railroad.
C.

Alternatively, Plaintiffs Claims Fail Because Any Fee Interest in the


Disputed Area Reverted to Defendants' Predecessors Upon Abandonment by
Conrail
1.

246.

Dickinson Retained a Right of Reversion in the 1854 Dickinson Deed

Even if the 1854 Dickinson Deed were construed to convey a fee, Plaintiffs

claims fail, at least in part, based upon the application of reverter.

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247.

The 1854 Dickinson Deed upon which Plaintiff relies contains a reverter clause

providing that, in the event of abandonment of the railroad, the property reverts back to the
grantor or her assigns and is to be "as if this present indenture had never been made." (D-80, P1).
248.

As set forth above, Conrail abandoned the claimed right-of-way by exhibiting

intent to abandon through submission of the application for abandonment to the ICC on May 18,
1984, and as accompanied by external acts of authorizing the rails to be dismantled on January
13, 1988. (D-29; P-11, Enright Tr. Dep. at 22:15-19, 84:10-14, 87:21-88:22).
249.

Plaintiff offers two arguments in opposition to application of reverter: (1) Plaintiff

disputes that Dickinson assigned her reversionary interest under the 1854 Dickinson Deed to
Defendants' predecessors in title; and (2) Plaintiff contends that Defendants and their
predecessors did not timely commence an action in ejectment.
250.

Both of these arguments fail as to the Sixth Street Property and as to the pie-

shaped portion of the disputed area of the Payload Property inside the stone and block wall.
2.
251.

Dickinson Assigned the Right of Reversion to Defendants

Dickinson's reversionary interest was conveyed by her trustees in the 1862

Dickinson deed conveying Dickinson's property abutting the railroad to Defendants' predecessor
in title, Gustavus George Logan. (D-76, 86).
252.

Under Pennsylvania law, the reversionary interest previously retained by a grantor

in conveying land to a railroad passes to grantees of property abutting the railroad through the
habendum clause. Herr v. Herr, 957 A.2d 1280, 1287 (Pa. Super. 2008) (holding that grantors
conveyed their reversionary interest in strip of land previously conveyed to railroad through
habendum clause of deed conveying property abutting railroad).

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253.

In Herr, the court concluded that in granting property abutting a railroad, the

grantors effected a "comprehensive conveyance" of their entire rights in the property, including
any rights that might revert to them or their heirs upon abandonment of the railroad strip they
previously conveyed to the railroad through the following language in the habendum clause:
"Nogether with all and singular the ... privileges hereditaments and appurtenances ... and the
reversions and remainders ... thereof and all the estate rights title interest property claim and
demand whatsoever of them, the said [grantors] ... to have and to hold ... the said ... premises
hereby granted ... unto the said [grantee] his heirs and assigns...." Id.
254.

Similarly, in conveying out Dickinson's property abutting the railroad to

Defendants' predecessors in title, Dickinson's trustees effects a comprehensive conveyance of


her entire rights in the property, including any rights that might revert to her or her heirs upon
abandonment of the railroad strip through the following language in the habendum clause of the
1862 Dickinson Deed: "[t]ogether with all and singular the Buildings Improvements Ways
Streets Alleys passages Waters Watercourses Rights Liberties Privileges Incidents and
Appurtenances whatsoever thereunto belonging or in anywise appertaining To have to hold the
same to him the said Gustavus George Logan his heirs executors administrators and assigns."
(D-76, 86).
255.

In conveying all of Dickinson's "Rights Liberties Privileges Incidents and

Appurtenances whatsoever" in the property abutting the railroad strip, the habendum clause in
the 1862 Dickinson Deed operated to convey Dickinson's entire estate, including any
reversionary interest in the strip of land previously conveyed to the North Pennsylvania Railroad.
256.

This conclusion is supported by other language in the 1862 Dickinson Deed

providing that the grant extends to "the middle of the North Pennsylvania Rail Road" and

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specifying that the grant "includ[es] the portion thereof occupied by the said Rail Road." This
language in the 1862 Dickinson Deed would be mere surplusage unless Dickinson's trustees also
conveyed to Defendants' predecessors Dickinson's reversionary interest up to the middle line of
the railroad.
257.

It is undisputed that Dickinson did not separately assign her reversionary interest

in the right-of-way by recorded the instrument during her lifetime. See Plaintiff's New Matter to
Defendants' Counterclaim, 39. The absence of any other grant of Dickinson's reversionary
interest lends further support for the conclusion that the reversionary interest was conveyed to
Defendants' predecessors in title through the 1862 Dickinson Deed.
3.
258.

Interest in the Disputed Area Reverted to Defendants Automatically


or Through Exercise of the Right of Re-Entry

Plaintiff contends that Defendants or their predecessors in title did not timely take

sufficient action to effect a reverter of the disputed area under the application twenty-one year
limitation in 42 Pa.C.S. 5530.
259.

This issue requires analysis of what type of defeasible fee (if any) was conveyed

to the North Pennsylvania Railroad in the 1854 Dickinson Deed.


260.

There are two types of defeasible estates: (1) fee simple determinable; or (2) fee

subject to a condition subsequent.


261.

If a deed conveys an estate in fee simple determinable, the estate of the grantee

expires automatically upon the grantee's failure to comply with the limitations of use in the deed.
Stolarick v. Stolarcik, 363 A.2d 793, 797 (Pa. Super. 1976) (citing, Restatement of Property 44
(1936)). The corresponding interest retained by the grantor is termed a possibility of reverter.
Id.

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262.

If a deed creates a fee subject to a condition subsequent, then upon the non-

compliance with the stated condition the grantor or his successor in interest has the power to
terminate the preceding estate. Stolarick, 363 A.2d at 797 (citing, Restatement of Property 45
(1936)). The corresponding interest retained by the grantor is termed a right of re-entry. Id.
263.

Thus, the principal distinction between a possibility of reverter and a right of re-

entry is that the right of re-entry requires some action to effect the reversionary interest, while a
possibility of reverter vests automatically. See Stolarick, 363 A.2d at 797 (citing, Restatement
of Property 57 (1936)).
c.

264.

If the 1854 Dickinson Deed is Construed to Convey a Fee Simple


Determinable, then Title to the Disputed Area Reverted to
Defendants Automatically

To determine the nature of the interest conveyed, courts look to the language of

the grant. Words of indubitable limitation, such as "so long as," "during," "while," and "until"
are generally used to create fee simple determinable. Higbee Corp. v. Kennedy, 428 A.2d 592,
595 (Pa. Super. 1981).
265.

Words such as "provided," "if," or "upon condition that express condition and,

therefore, indicate the existence of a fee simple subject to a condition subsequent. Id. at 596.
266.

The relevant language in the 1854 Dickinson Deed is as follows:


...To have and to hold the Rights and premises aforesaid unto the
Said, the North Pennsylvania Railroad Company their successors
or assigns forever upon the condition shall make maintain keep
And use upon the aforesaid piece of Land a Railroad and if it Shall
happen that the Rail Road 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 revert
in the said Sally Norris Dickinson her heirs and her assigns as of
her and their first and former Estate and She or they shall

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thereupon Reposses and Enjoy the Same as if this Present


Indenture had never Been made....
(P-1, P-2, D-80).
267.

In the context of statutory interpretation, courts hold that the word "shall" as

contrasted with the word "may" signals a mandatory rather than discretionary act. See, e.g.,
Commw. v. Williams, 828 A.2d 981, 988 (Pa. 2003). Therefore, the language of the 1854
Dickinson Deed providing that the right-of-way "shall revert" in Dickinson or her assigns
suggests that the reversion is mandatory which is consistent with a determinable fee where the
interest automatically reverts. (P-1, P-2, D-80).
268.

The conclusion that any fee conveyed by the 1854 Dickinson Deed was in the

nature of a determinable fee is further supported by language of the Dickinson Deed providing
that upon the triggering event abandonment of the railroad it shall be "as if this present
indenture had never been made which strongly suggests that if a fee was conveyed, it was a
determinable fee. (Id.).
269.

If indeed the 1854 Dickinson Deed is construed to convey a determinable fee,

then the railroad estate through which Plaintiff claims title expired automatically upon
abandonment of the railroad and title to the disputed area vested automatically in Defendants and
their predecessors in interest.
270.

Contrary to Plaintiff's arguments, no further action was required by Defendants or

their predecessors to effect a reverter.


271.

Consistent with their deeds, Defendants' hold legal title up to the "center line" or

"middle line" of the former North Pennsylvania Railroad and there is no valid basis for Plaintiff
to eject Defendants from the disputed area of the right-of-way. (D-45, D-54).

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d.

272.

If the 1854 Dickinson Deed is Construed to Convey a Fee Subject


to Condition Subsequent, then Title to a Portion of the Disputed
Area Reverted to Defendants Through Re-Entry

If, on the other hand, the Dickinson Deed is construed to convey a fee subject to a

condition subsequent, then title to a portion of the disputed area of the right-of-way nevertheless
reverted to Defendants or their predecessors through exercise of the right of re-entry.
273.

It is well established that the holder of a right of re-entry can perfect his title after

a breach of condition subsequent by either peaceable re-entry or by an action at law. Stolarick,


363 A.2d at 798 (citing, Smith v. Glen Alden Coal Co., 32 A.2d 227 (Pa. 1943)).
274.

Contrary to Plaintiff's arguments, holders of a right of re-entry who take

possession of land after their rights accrue are not required to take legal action. Stolarick, 363
A.2d at 798. Rather, the holders' possession of the property is notice to all of their equitable
rights and they need only assert them when there is occasion to do so. Id.
275.

In this case, Defendants and their predecessors exercised their rights of re-entry

through peaceable re-entry and by actions at law after the railroad lines were abandoned in 1984
and the lines were cleared for dismantling in 1988. (D-29; P-11, Enright Tr. Dep. at 22:15-19,
84:10-14, 87:21-88:22).
276.

With regard to the Payload Property, the portion of the disputed area inside the

stone and block wall was retaken by peaceable re-entry. Testimony from Engelhardt establishes
that Giunup and Pettacio's predecessors used and occupied the disputed area of the Payload
Property inside the stone and block wall as early as 1976. (Tr. 3/13/15 at 30:23-34:23, 37:738:20).
277.

Giunup and Pettacio have also exclusively used the area inside the stone and

block wall to operate Payload Disposal since they purchased the Payload Property in March of

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2004. (D-87 at II 15). Based on Giunup and Pettacio's 2004 usage alone, Giunup and Pettacio
peaceably retook possession of the disputed area of the Payload Property inside the stone and
block wall within the 21 statutory period under 42 Pa.C.S. 5530 after the railroad was
abandoned in 1988.
278.

With regard to the entire disputed area of the Sixth Street Property, Sixth Street

Management exercised re-entry through actions at law by successfully prosecuting the 2008
ejectment action and by the Defendants asserting counterclaims to quiet title in this action. (P18, P-26).
279.

Thus, even if the Dickinson Deed is construed to convey a defeasible fee, the

reversionary interest retained by Dickinson was assigned to Defendants' predecessors through


the habendum clause in the 1862 Dickinson Deed conveying all of Dickinson's "Rights Liberties
Privileges Incidents and Appurtenances whatsoever" in the property abutting the railroad strip.
(D-76, 86).
280.

After the railroad was abandoned in 1988, interest in the disputed area of the

right-of-way reverted to Defendants and their predecessors, either automatically through the
possibility of reverter or upon exercise of the right of re-entry through possession and civil
action.
D.

Alternatively, Plaintiffs Claims Fail As to the Disputed Area Inside the


Stone and Block Wall on the Payload Property Under the Doctrines of
Adverse Possession and/or Consentable Line

281.

The doctrines of adverse possession and/or consentable line further preclude

Plaintiff's claims against Giunup and Pettacio as to the portion of the disputed area of the
Payload Property inside the stone and block wall.

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1.

282.

The Former Railroad Use of the Property Does Not Bar Application
of Adverse Possession Because Public Use Was Extinguished Upon
Abandonment

As a general rule, railroad property is part of a public use and, therefore, cannot

be adversely possessed. A.D. Graham & Co. v. Pennsylvania Turnpike Comm'n., 33 A.2d 22,
31 (Pa. 1943). However, once a railroad is abandoned, that public use is extinguished. Dellach,
862 A.2d at 118.
283.

Removal of tracks has often been considered sufficient evidence of abandonment.

See Thompson v. Maryland and Pennsylvania R.R. Preservation Soc., 612 A.2d 450, 454 (Pa.
Super. 1992), appeal denied, 621 A.2d 581 (Pa. 1993).
284.

Here, the ICC issued a certificate of abandonment to Conrail on December 13,

1984 and Conrail authorized and removed the tracks in or about 1988. (P-14, D-29; Enright Tr.
Dep. at 32:9-21; 84:15-18, 87:21-88:22). Accordingly, the fact that a portion of the Payload
Property was previously subject to railroad use did not preclude Giunup and Pettacio from
adversely possessing the property.
2.
285.

All of the Elements of Adverse Possession Are Satisfied

To establish title by adverse possession, a claimant must demonstrate that his or

her possession is actual, continuous, exclusive, visible, notorious, distinct, and hostile. In re:
Condemnation of Rights of Way and Easements, 47 A.3d 166, 172-73 (Pa. Commw. 2012).
286.

Giunup and Pettacio have established all of these elements through their own use

and through the use of their predecessors with respect to the area of the Payload Property inside
the stone and block wall for the statutory period of twenty-one years.
287.

First, Giunup and Pettacio have demonstrated "actual possession" of the area of

the disputed area of the Payload Property inside the stone and block wall. "Actual" possession

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of land requires dominion over the land rather than actual occupancy. Id. at 173; Bride v.
Robwood Lodge, 713 A.2d 109, 112 (Pa. Super. 1998). Pennsylvania courts routinely find that
where, as here, a claimant fences or walls in property, which they maintain, the claimant has
established dominion sufficient for actual possession. Condemnation, 47 A.3d at 173; Moore v.
Duran, 687 A.d 822, 828 (Pa. Super. 1997). As shown on the Property Plan, a stone and black
wall erected on the Payload Property walls off a pie-shaped portion of the disputed area of the
Payload Property. D-41, D-42).
288.

Second, Giunup and Pettacio have shown that they and their predecessors have

exclusively and distinctly possessed the disputed area of the Payload Property inside the stone
and block wall. A claimant establishes "exclusive and distinct possession" when the claimant
possesses the subject property to the general exclusion of others. Reed v. Wolyniec, 471 A.2d 80
(Pa. Super. 1983). Again, Pennsylvania courts routinely hold that fencing or walling in an area
of property is sufficient to place surrounding property owners on notice of an adverse claimant's
ownership. Condemnation, 47 A.3d at 173-74.
289.

Here, Giunup and Pettacio and their predecessors exercised exclusive dominion

over a portion of the disputed portion of the Payload Property by maintaining the stone and block
wall so as to demonstrate that their possession was exclusive and distinct for purposes of adverse
possession. They also exercised dominion and control over area of the Payload Property inside
the stone and block wall by paying all taxes and stormwater fees in connection with this area.
290.

Third, possession by Giunup and Pettacio and their predecessors was visible,

open, and notorious. To constitute "visible, open, and notorious possession," the claimant's
conduct must place a reasonable person on notice that his or her land is being held by the
claimant as his own. Watkins v. Watkins, 775 A.2d 841, 846 (Pa. Super. 2001). Like the

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"actual possession" element of adverse possession, Courts hold that fencing or walling off a
property are, in many instances, sufficient to put surrounding property owners and potential on
notice that a claimant is holding land as his or her own. Condemnation, 47 A.3d at 173.
291.

As shown on the Property Plan, the stone and block wall distinctly separates a

portion of the disputed area of the Payload Property from the remainder of the claimed right-ofway and notifies all neighboring property owners and reasonable observers that the owners of the
Payload Property are holding this property as their own. (D-41, D-42). Accordingly, Giunup
and Pettacio have established the "visible, open, and notorious possession" element necessary to
sustain an adverse possession claim.
292.

Fourth, with respect to the "hostility" element, Pennsylvania courts hold that

hostility does not imply ill will, but rather intent to hold title against a record title holder. Id.
(citing, Glenn v. Shuey, 595 A.2d 606 (Pa. Super. 1991) (abrogated on other grounds)). Where a
claimant establishes each of the elements of adverse possession except for hostility, courts will
imply the hostility element. Id. Here, hostility can be implied because all of the other elements
of adverse possession are met.
293.

Lastly, an adverse possessor must demonstrate that he or she has been in

"continuous and uninterrupted possession" of the subject property for the full statutory period.
Id. In Pennsylvania, the statutory period is twenty-one years. Id.; 42 Pa. C.S.A. 5530.
294.

Where, as here, the claimants have not possessed the disputed land for the

required twenty-one year period, they can "tack" their predecessor's period of adverse
possession. Watkins, 775 A.2d at 846.
295.

Privity of title between the successive occupants of the property must exist for the

claimant to avail him/herself of the tacking mechanism. Id. (citing, Glenn v. Shuey, 595 A.2d

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606, 612 (Pa. Super. 1991). In addition, each predecessor in title must have claimed title the
property in dispute, and have purported to include it in the transfer. Watkins, 775 A.2d at 847.
296.

Here, Giunup and Pettacio can establish through tacking that they and their

predecessors in title have been in continuous and uninterrupted possession of the area inside the
stone and block wall for the requisite 21 years.
297.

Neighboring business owner, Engelhardt, provided uncontroverted testimony that

over the past thirty years, he has always observed the area inside the stone and block wall to be
used by the owners of the Payload Property. (Tr. 3/13/15 at 30:23-34:23). Engelhardt further
testified that over the past thirty years he never observed the area inside the stone and block wall
to be used by anyone other than the owners of the Payload Property. (Tr. 3/13/15 at 38:15-20).
298.

Any question as to whether Engelhardt was able to view the area behind the stone

and wall block wall when traveling down Sixth Street each day to work was resolved by the
photograph of the Payload Property at Exhibit D-50 which has been highlighted in yellow. (Tr.
3/13/15 at 47:6-48:16, 55:2-56:11; D-50).
299.

The requirements for tacking are met because all of the deeds in the chain of title

to the Payload Property provide that the property conveyed extends to the "center line" or
"middle line" of the North Pennsylvania Railroad. (D-45-53, D-65-D-76). Thus, the deeds
specifically include the area inside the original stone and block wall in the conveyance.
3.
300.

The Doctrine of Consentable Line Applies

In addition, the doctrine of consentable line applies to quiet title to the area inside

the stone and block wall in Giunup and Pettacio.

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301.

The doctrine of consentable line is a judicial recognition of a boundary, usually

marked by a substantial fence, that the parties have consensually accepted for a period of at least
21 years. Lilly v. Markvan, 763 A.2d 370, 371, n. 1 (Pa. Super. 2000).
302.

Pennsylvania courts have long recognized that a boundary line may be proven by

a long-standing fence or wall on similar facts to those here. See, e.g., Niles v. Fall Creek
Hunting Club, Inc., 545 A.2d 926 (Pa. Super. 1988).
303.

There are two ways to prove consentable line: by dispute and compromise or by

recognition and acquiescence. Schimp v. Allaman, 659 A.2d 1032, 1034 (Pa. Super. 1995). The
requirements for establishing a binding consentable line by recognition and acquiescence are: (1)
each party must have claimed and occupied the land on his side of the line as his own; and (2)
such occupation must have continued for the statutory period of twenty-one years. Zeglin v.
Gahagen, 812 A.2d 558, 561 (Pa. 2002).
304.

Here, the doctrine of consentable line can be established by recognition and

acquiescence because, as set forth above, Giunup and Pettacio, as well as their predecessors in
title, claimed the area inside of the stone and block wall as their own and such occupation
continued for the statutory period of twenty-one years. In particular, Engelhardt testified that for
the past 39 years, the owners or tenants of the Payload Property have utilized the area inside the
stone and block wall to operate their businesses. (Tr. 3/13/15 at 30:23-34:23, 37:738:20).
305.

For all these reasons, the doctrines of adverse possession and consentable line

provide additional bases to preclude Plaintiff's claim to at least the portion of the Payload
Property inside the stone and block wall and establish title in Giunup and Pettacio.

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E.

Alternatively, Plaintiffs Claims as to the Disputed Area of the Sixth Street


Property are Barred Based Upon Res Judicata
1.

306.

The Cause and Rights of the Parties as to the Disputed Area of the
Sixth Street Property Were Already Finally Determined

Plaintiffs claims against Sixth Street Management are barred by Judge Glazer's

decision in the prior ejectment action under the doctrine of res judicata. (D-19).
307.

For the doctrine of res judicata to apply there must be a concurrence of four

conditions: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and
parties to the action; and (4) identity of the quality or capacity of parties suing or sued. Fornwalt
v. Follmer, 616 A.2d 1040, 1041 (Pa. Super. 1992).
308.

The doctrine of res judicata is based on public policy and seeks to prevent an

individual from being vexed twice for the same cause. Stevenson v. Silverman, 208 A.2d 786,
788 (Pa. 1965), cert. denied, 382 U.S. 833 (1966).
309.

"Where parties have been afforded an opportunity to litigate a claim before a

court of competent jurisdiction, and where the court has finally decided the controversy, the
interests of the state and of the parties require that the validity of the claim and any issue actually
litigated in the action not be litigated again." Ham, 620 A.2d at 621 (citing, Williams v.
Lumbermen's Ins. Co., 1 A.2d 658 (Pa. 1938)).
310.

There can be no doubt that the present action is an attempt by Plaintiff to re-

litigate the same cause of action against Sixth Street Management and that all of the conditions
for application of res judicata are met.
311.

First, there is an identity of issues between the two ejectment actions. To prevail

on an ejectment action, a plaintiff must establish its right to immediate and exclusive possession
of the subject property. Borough of Ulysses v. Mesler, 968 A.2d 224, 227 (Pa. Super. 2009);
Doman, 592 A.2d at 108. Whether a plaintiff does so depends on its ability to identify, by a
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preponderance of the evidence, "the boundaries of a parcel of land to which [it is] out of
possession but for which [it] maintain[s] paramount title." Id. A claimant can only recover
based upon the strength of its own title, rather than any purported weakness in a defendant's title.
Id. (emph. added).
312.

Under the standard for ejectment, the issue in this action and the prior ejectment

action is and was whether Sixth Street Management holds paramount title to the area of the Sixth
Street Property between the westerly line and the center line of the claimed right-of-way over the
rear of the Sixth Street Property. This court previously decided this issue on the merits holding
that the Sixth Street Property runs to the center line or middle line of the North Pennsylvania
Railroad, consistent with its deed. (D-19).
313.

With regard to the second condition, identity of the causes of action is easily met

here because both actions were claims of ejectment regarding ownership of the disputed area of
the Sixth Street Property i.e., the area between the westerly line and the center line of the claimed
right-of-way. The instant action is an effort to re-litigate ownership of the disputed area of the
Sixth Street Property; the ultimate issue which was put to rest in the prior ejectment action.
314.

As to the third and four factors, there is an identity of persons or parties to the

action and an identity of the quality or capacity of parties suing or being sued.
315.

Having determined that Linda Miller is the real party in interest in this action,

hiding, as it were, behind the ostensible plaintiff, Railroad Recovery, in suing Sixth Street
Management, it must be found that there is an identity of persons or parties and an identity of the
quality or capacity of parties suing or being sued.

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316.

The deposition testimony of Plaintiff's principal, which was accepted into the

record at trial, Clauss, makes clear that Plaintiff's prosecution of this action is a facade for Linda
Miller's attempt to circumvent the judgment against her.
317.

Clauss admitted that he was asked to bring this action by Attorney Quinn in the

name of Railroad Recovery. (D-89 at 52:13-53:15). Attorney Quinn is Linda Miller's attorney
having previously represented Linda Miller in prosecuting: (1) the federal action against Conrail
and Railroad Recovery resulting in the 2012 Quit Claim Deed (D-1; Enright Tr. Dep. at 79:2280:1); and (2) the prior state action against Railroad Recovery resulting in Railroad Recovery
agreeing to act as the named plaintiff in this action. (D-89 at 40:23-41:11, 41:18-22, 52:1353:15).
318.

Clauss further admitted that he reached an agreement with Miller for him to

prosecute this action. (Tr. 3/17/15 at 48:14-16).


319.

Linda Miller cannot avoid the res judicata implications of this Court's prior

determination that Sixth Street Management has superior title to the disputed portion of the
claimed right-of-way by a mere "shuffling of plaintiffs." Hochman, 137 A. at 253. See also
Ham, 620 A.2d at 8 (rejecting litigant's attempt to avoid res judicata effect of prior land use
decision by filing subsequent action on the same issue in the name of his paramour).
320.

It is well-settled that res judicata will not be "defeated by minor differences of

form, parties, or allegations, when these are contrived only to obscure the real purpose, -- a
second trial on the same cause between the same parties." Id. (quoting, Hochman v. Mortgage
Fin. Corp., 137 A. 252, 253 (Pa. 1927)). Rather, "[t]he thing which the court will consider is
whether the ultimate and controlling issues have been decided in a prior proceeding in which the

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present parties actually had an opportunity to appear and assert their rights." Hochman, 137 A.
at 253 (emph. added).
321.

Application of res judicata against Railroad Recovery is proper because Railroad

Recovery is in privity with Linda Miller by virtue of the Installment Agreement. The doctrine of
res judicata applies not only to actual parties to the litigation, but also to those who are in privity
with them. Stevenson, 208 A.2d at 788 ("A final valid judgment upon the merits by a court of
competent jurisdiction bars any future suit between the same parties or their privies on the same
cause of action.").
322.

Res judicata is not precluded by the fact that Linda Miller did not expressly claim

title through the 2012 Quit Claim Deed in defending the prior ejectment action. "Resjudicata
bars all causes of action that were either raised or could have been raised during a prior
proceeding." Tobias v. Halifax Twp., 28 A.3d 223, 227 (Pa. Commw. 2011) (citations omitted)
(emph. in original).
323.

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. Chada v. Chada, 756 A.2d 39, 43-44 (Pa. Super. 2000) (quotations omitted). Based
upon the record, it is clear that Linda Miller, had an opportunity to appear and assert her rights to
the claimed right-of-way. Indeed, Clauss testified that he gave Miller a copy of the 1994 Quit
Claim Deed from Conrail which was merely confirmed by the 2012 Quit Claim Deed. (D-88 at
30:24-31:10, 32:3-15, 39:4-8).
324.

Judge Glazer's decision reveals that Linda Miller and McAnally did in fact claim

title through Conrail and so that issue was before the Court. (D-19 pp. 3-4 at Ifij 5 ("Defendant
asserts that he is entitled to use the land, because he purchased a right of way over plaintiff's

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property from the railroad...."); 6 ("Defendant claims to have rights to the portion of the
property through an installment land contract .. which purportedly conveys the railroad interest
formerly owned by Conrail....Mr. McAnally claims that his wife purchased "all that certain
property of the grantor, being a portion of the line of railroad known as the Reading Bethlehem
Branch and identified as Line Code 301, in the City of Philadelphia.").
325.

"When a court of competent jurisdiction has determined a litigated cause on its

merits, the judgment entered and not reversed on appeal is, as between the parties to the suit and
their privies, final and conclusive with regard to every fact which might properly by considered
in reaching a judicial determination and with regard to all points of law adjudged as those facts
and points of law relate directly to the cause of action in litigation." Goldstein v. Ahrens, 108
A.2d 693, 695 (Pa. 1954) (emph. added). See also Chada, 756 A.2d at 44 ("We agree with the
learned trial court's conclusion that Appellant previously had a full and fair opportunity to
pursue the claims he now raises and although he may have failed to do so, the doctrine of res
judicata bars re-litigation of those claims.").
326.

Moreover, the fact that Linda Miller was subsequently added as a defendant in the

prior ejectment action does not preclude application of res judicata. When this same issue was
raised before, Judge Glazer specifically found that Linda Miller had notice of the proceeding
against her; Linda Miller was listed on the docket as a defendant; Attorney Wayne R. Maynard is
listed as attorney for the defendants; a stipulation to file an amended complaint including Linda
Miller as a defendant was entered; at the commencement of trial in the prior ejectment action,
defendants' counsel did not object to the addition of Linda Miller; defendants' counsel included
Linda Miller in his proposed findings of fact; Linda Miller filed an appeal of the matter which
was quashed. (D-81). Based upon this record, there can be no question that Linda Miller had a

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full and fair opportunity to assert her rights to the claimed right-of-way in the prior ejectment
action.
327.

Plaintiff's reliance on the case of Sabella v. Appalachian Development Corp.,

103 A.3d 83 (Pa. Super. 2014) is misplaced. Sabella stands for the proposition that a successful
ejectment action against a tenant does not have preclusive effect as to a later ejectment action
against a landlord. Sabella is not helpful to Plaintiff because Linda Miller, one of the parties
who were ejected in the prior 2008 ejectment action, was not Plaintiff's tenant. Rather, Linda
Miller purchased the claimed right-of-way from Plaintiff and therefore was in privity with
Plaintiff for purposes of res judicata.
328.

In sum, this Court already finally determined that the Sixth Street Property runs to

the center line or middle line of the North Pennsylvania Railroad; Plaintiff is not entitled to a
second determination on the same cause against the same party.
2.
329.

The Fraud Exception Does Not Bar Application of Res Judicata

Plaintiff attempts to defeat re.sjudicata by arguing that the prior ejectment action

was based upon fraud.


330.

In the prior ejectment action, Sixth Street Management presented expert

testimony from John DiGiacomo, Esquire ("DiGiacomo"), a practicing attorney and principal of
Brokers Land Settlement Services ("Brokers Land"). (D-19).
331.

DiGiacomo utilized Accurate Search and Settlement ("Accurate") to perform a

title search of the Sixth Street Property. (D-19 at p. 4, 8). Based upon his analysis of the deeds
provided by Accurate, DiGiacomo testified Poor Boys and Linda Miller had no right to use any
right-of-way over the Sixth Street Property.

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332.

Plaintiff contends that a cover page to the Accurate title search constituted a

"fraud" because the copy of the cover page that was attached to the complaint included a
handwritten notation that was not made by Accurate. The notation stated: "No rail road right of
way of record per Accurate." (P-18).
333.

In support of this argument, Plaintiff presented trial deposition testimony from

Accurate's principal, Shirley Frisch ("Frisch") stating that the handwriting on the cover page did
not belong to anyone at Accurate. (Frisch Tr. Dep. at 16:14-25).
334.

Defendants filed a motion in limine to preclude Frisch's testimony on the basis

that it constitutes an improper collateral attack on evidence in the prior ejectment action. The
Court took the matter under advisement and reserved the right to preclude Frisch's testimony in
its final decision.
335.

The decision in Jacquelin v. Zoning Hearing Bd. of Hatboro Borough, 620 A.2d

554 (Pa. Commw. 1993) is instructive. In that case, a landowner sought to avoid a prior decision
by the zoning board by filing a second action and arguing on appeal that the prior decision was
not binding because certain testimony from the borough manager about the contents of a zoning
map was false. Id. at 555-56. The landowner contended that the prior action should not be res
judicata because of this purported fraud. Id. at 557. The Commonwealth Court rejected this
argument and held that the landowner was precluded from re-litigating the case. Id. It held that
the fraud exception to res judicata did not apply because the landowner had full opportunity to
contest the testimony of the borough manager in the prior case, and, in any event, the borough
manager's testimony was only part of the evidence relied upon by the zoning board in reaching
its determination. Id.

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336.

The fraud exception to application of res judicata does not apply in this case for

at least several reasons. First, as in Jacquelin, Plaintiff's privies had a full and fair opportunity to
attack the cover sheet in the prior action. Indeed, Plaintiff's privies had an even greater
opportunity to address this evidence as compared to the hearing testimony in Jacquelin because
the cover sheet was attached to the complaint and Plaintiff could have served discovery on the
issue.
337.

Second, the fraud exception does not apply because the cover sheet was not the

sole basis of the Court's decision in the prior ejectment action. Indeed, nothing in Judge
Glazer's decision suggests that the Court gave any weight or even noted the handwriting on the
cover page as opposed to independent testimony from DiGiacomo in reaching its determination.
(D-19).
338.

Finally, the fraud exception does not apply because Frisch's testimony establishes

there was in fact no fraud. Frisch testified she recognized the handwriting on the cover page as
belonging to an employee at Brokers Land named Bridgette. (Frisch Tr. Dep. at 18:16-19).
Frisch further testified that she was familiar with Bridgette's handwriting because Brokers Land
was a customer of Accurate at that time. (Id. at 18:22-19:5). It was Bridgette who placed the
orders for Brokers Land and Frisch testified it was entirely possible that Bridgette had a
conversation with someone at Accurate in making the notation on the cover page. (Id. at 16:612, 19:2-5).
339.

In sum, Plaintiff cannot avoid application of res judicata based on allegations of

fraud. Plaintiff had a full and fair opportunity to contest the cover page in the prior ejectment
action, the notation on the cover page was not the sole evidence relied upon by this Court in the
prior action, and, in any event, Frisch's testimony establishes there was no fraud.

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F.

Defendants Are Entitled to Judgment On Their Counterclaims to Quiet Title

340.

As counterclaim plaintiffs, Defendants bear the burden of proof on their

counterclaim to quiet title and Defendants must recover on the strength of their own title. Cox's
Inc. v. Snodgrass, 379 Pa. 148, 152 (1952).
341.

Defendants have met that burden by establishing a clear chain of title dating back

to the original 1862 Dickinson Deed which provides that the Sixth Street Property and the
Payload Property extend to the "middle line" or "center line" of the North Pennsylvania Railroad
and include the area occupied by the railroad. (D-76, D-86).
342.

Defendants have fulfilled their obligations incident to ownership by paying real

estate taxes and stormwater fees in connection with the disputed area of the Sixth Street Property
and the disputed area of the Payload Property. By contrast, Plaintiff has not paid taxes or
stormwater fees in connection with the claimed right-of-way.
343.

Plaintiff as counterclaim defendant has not defeated Defendants/Counterclaim

Plaintiffs' claim to title to the disputed area.


344.

All Plaintiffs predecessors ever had was either an easement or railroad right-of-

way that expired upon abandonment of the railroad. This conclusion is supported by the fact that
the grant in the Dickinson Deed through which Plaintiff claims title is limited to "using
occupying and enjoying [the right-of-way] for railroad purposes" and the lack of a warranty
clause in the Dickinson Deed. (D-80; P-1, P-2; Tr. 3/16/15 at 40:3-25).
345.

The historical context in which Dickinson conveyed the strip of land to the North

Pennsylvania Railroad further supports Defendants' position that all that was intended was
railroad right-of-way that expired upon Conrail's abandonment of the railroad in or about 1988.
(Tr. 3/16/15 at 24:13-23; D-43 at pp. 4, 11).

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346.

Even if the Dickinson Deed could be construed to convey a fee, Defendants still

prevail on their counterclaims because the 1854 Dickinson Deed upon which Plaintiff relies
contains a reverter clause providing that in the event of non-railroad use, the property reverts
back to the grantor and her assigns and it is to be "as if this present indenture had never been
made." (D-80; P-1, P-2).
347.

Regardless of whether this language is construed to convey a determinable fee or

a fee subject to a condition subsequent, Defendants prevail on their counterclaims, at least in


part.
348.

If the Dickinson Deed is construed to convey a determinable fee, then the railroad

estate through which Plaintiff claims title expired automatically upon abandonment of the
railroad and title to the disputed area vested in Defendants and their predecessors.
349.

Consistent with their deeds, Defendants' hold legal title up to the "center line" or

"middle line" of the North Pennsylvania Railroad and Defendants/Counterclaim Plaintiffs should
prevail on their counterclaims to quiet title. (D-45, D-54).
350.

If, on the other hand, the Dickinson Deed is construed to convey a fee subject to a

condition subsequent, then title to a portion of the disputed area of the right-of-way nevertheless
reverted to Defendants or their predecessors through exercise of the right of re-entry.
351.

Defendants and their predecessors exercised their rights of re-entry by: (1)

Giunup and Pettacio and their predecessors retaking possession of the disputed portion of the
Payload Property inside the stone and block wall; and (2) by Sixth Street successfully
prosecuting the 2008 ejectment action against Linda Miller who was the predecessor in title to
Conrail.

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352.

Alternatively, Defendants/Counterclaim Plaintiffs Giunup and Pettacio are

entitled to judgment on their counterclaims as to the portion of the disputed area of the Payload
Property inside the stone and block wall based on the doctrine of adverse possession.
353.

Giunup and Pettacio established that they adversely possessed the disputed area of

the Payload Property inside the stone and block wall and that this possession was actual,
continuous, exclusive, visible, notorious, distinct, and hostile.
354.

Defendants further established through tacking that Giunup, Pettacio, and their

predecessors have been in continuous and uninterrupted possession of the area inside the stone
and block wall for the requisite 21 years.
355.

The requirements for tacking are met because all of the deeds in Defendants'

chain of title provide that the property conveyed extends to the "center line" or "middle line" of
the North Pennsylvania Railroad. (D-45-D-53, D-65-D-76).
356.

Title can also be established under the doctrine of consentable line because

Giunup and Pettacio and their predecessors claimed the area inside of the stone and block wall as
their own and such occupation continued for the statutory period of twenty-one years.
PROPOSED RELIEF
Based on the above Findings of Fact and Conclusions of Law, the Court hereby
ORDERS that a judgment is entered in favor of Defendants and against the Plaintiff.
IT IS FURTHER ORDERED as follows:
1.

Title to the disputed area of the Sixth Street Property as more particularly defined

in the legal description attached hereto as Exhibit "A," (the "Disputed Area of the Sixth Street
Property") is hereby quieted in favor of Sixth Street Management Co.

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2.

It is hereby declared and adjudged that Sixth Street Management, Corp. is the sole

and absolute owner of the disputed area and thus, Railroad Recovery, Inc. and all persons
claiming under it are forever barred from asserting any right, title, or interest in the Disputed
Area of the Sixth Street Property.
3.

Title to the disputed area of the Payload Property as more particularly defined in

the legal description attached hereto as Exhibit "B," (the "Disputed Area of the Payload
Property") is hereby quieted in favor of John Giunup and Michael Pettacio.
4.

It is hereby declared and adjudged that John Giunup and Michael Pettacio are the

sole and absolute owners of the Disputed Area of the Payload Property and thus, Railroad
Recovery, Inc. and all persons claiming under it are forever barred from asserting any right, title,
or interest in the Disputed Area of the Payload Property.
5.

Sixth Street Management Corp. and John Giunup and Michael Pettacio are hereby

authorized to record a copy of the Order resolving this action with the Philadelphia Department
of Records.
In the Alternative, should the Court find that John Giunup and Michael Pettacio are
entitled to only the disputed area of the Payload Property inside the stone and block wall, the
Proposed Relief is as follows:
Based on the above Findings of Fact and Conclusions of Law, the Court hereby
ORDERS that judgment in part is entered in favor of Defendants John Giunup and Michael
Pettacio and against the Plaintiff
IT IS FURTHER ORDERED as follows:
1.

Title to the disputed area of the Payload Property inside the stone and block wall

as more particularly defined in the legal description attached hereto as Exhibit "C," (the

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Case ID: 130703647

"Disputed Area of the Payload Property Inside the Stone and Block Wall") is hereby quieted in
favor of John Giunup and Michael Pettacio.
2.

It is hereby declared and adjudged that John Giunup and Michael Pettacio are the

sole and absolute owners of the Disputed Area of the Payload Property Inside the Stone and
Block Wall and thus, Railroad Recovery, Inc. and all persons claiming under it are forever barred
from asserting any right, title, or interest in the Disputed Area of the Payload Property Inside the
Stone and Block Wall.
3.

John Giunup and Michael Pettacio are hereby authorized to record a copy of the

Order resolving this action with the Philadelphia Department of Records.

Respectfully submitted,

L GIZEN P. MCKENNA, ESQUIRE


CLAIR E. WISCHUSEN, ESQUIRE
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103-3291
(215) 299-2000
Attorneys for Defendants,
BRIAN MAST, SIXTH STREET
MANAGEMENT CORP., JOHN GIUNUP,
AND MICHAEL PETTACIO
Dated:

June 24, 2015

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Case ID: 130703647

EXHIBIT "A"

Case ID: 130703647

March 18, 2015


Description of 4455 North 6th Street Disputed Area
ALL THAT CERTAIN lot or piece of ground with improvements erected thereon situate in the 49th Ward
of the City of Philadelphia, Commonwealth of Pennsylvania described according to a certain Property
Boundary & Disputed Area Plan prepared by Eustace Engineering, Willow Grove, Pennsylvania, dated
March 18, 2015, drawing number D30030508;
BEGINNING at a point on the Southerly line of lands of 4525 North 6th Street, said point being the
following two (2) courses and distances from a point at the intersection of the Southwesterly side of
Annsbury Street (70' wide) with the Southeasterly side of 6th Street (60' wide);
1) South 11 degrees 21 minutes 00 seconds West, along the Southeasterly side of 6th Street, a
distance of 283.500 feet to a point being the Southwesterly corner to 4525 North 6th Street;
2) South 78 degrees 39 minutes 00 seconds East, along the Southerly line of 4525 North 6 th
Street, a distance of 146.396 feet to the point of Beginning.
Thence extending from said point of Beginning,
1) Extending South 78 degrees 39 minutes 00 seconds East, along the Southerly line of 4525 North 6 th
Street, a distance of 35.177 feet to a point on the center line of the former North Pennsylvania Railroad
(Consolidated Rail Corporation) right of way;
2) Thence, extending along said centerline on the arc of a circle curving to the left having a radius of
2857.79 feet, the arc distance of 174.641 feet to a point being a corner to lands of 4417R North 6th
Street;
3) Thence, extending North 78 degrees 39 minutes 00 seconds West, along the Northerly line of 4417R
and 4417North 6th Street, a distance of 39.791 feet to a point;
4) Thence, extending North 00 degrees 14 minutes 09 seconds West, a distance of 126.876 feet to a
point;
5) Thence, extending North 08 degrees 06 minutes 14 seconds West, a distance of 47.284 feet to the
first mentioned point and place of Beginning.
Containing: 6,703.2 SF. or 0.1539 Acres in area

Case ID: 130703647

EXHIBIT "B"

Case ID: 130703647

March 18, 2015


Description of 4525 North 6th Street Disputed Area
ALL THAT CERTAIN lot or piece of ground with improvements erected thereon situate in the 49th Ward
of the City of Philadelphia, Commonwealth of Pennsylvania described according to a certain Property
Boundary & Disputed Area Plan prepared by Eustace Engineering, Willow Grove, Pennsylvania, dated
March 18, 2015, drawing number D30030508;
BEGINNING at a point on the Southerly line of West Annsbury Street (70' wide), said point being South
78 degrees 39 minutes 00 seconds East, a distance of 88.781 feet from a point at the intersection of the
Southwesterly side of Annsbury Street (70' wide) with the Southeasterly side of 6th Street (60' wide);
1) Thence, extending South 78 degrees 39 minutes 00 seconds East, along the Southerly line of West
Annsbury Street, a distance of 58.844 feet to a point on the center line of the former North Pennsylvania
Railroad (Consolidated Rail Corporation) right of way;
2) Thence, extending South 05 degrees 23 minutes 00 seconds West, along said centerline, a distance of
130.010 feet to a point of curvature;
3) Thence, extending along the same on the arc of a circle curving to the left having a radius of 2857.79
feet, the arc distance of 155.553 feet to a point being the Northeasterly corner to lands of 4455 North
6th Street;
4) Thence, extending North 78 degrees 39 minutes 00 seconds West, along the Northerly line of 4455
North 6th Street, a distance of 35.177 feet to a point;
5) Thence, extending North 08 degrees 06 minutes 14 seconds East, a distance of 54.427 feet to a point;
6) Thence, extending North 03 degrees 53 minutes 56 seconds East, a distance of 101.028 feet to a
point;
7) Thence, extending North 07 degrees 00 minutes 28 seconds West, a distance of 102.392 feet to a
point:
8) Thence, extending North 04 degrees 45 minutes 28 seconds West, a distance of 33.104 feet to the
first mentioned point and place of Beginning.
Containing: 10,641.7 SF. or 0.2443 Acres in area

Case ID: 130703647

EXHIBIT "C"

Case ID: 130703647

March 18, 2015


Description of the Disputed Area to the outside face of the walls at 4525 North 6th Street
ALL THAT CERTAIN lot or piece of ground with improvements erected thereon situate in the 49th Ward
of the City of Philadelphia, Commonwealth of Pennsylvania described according to a certain Property
Boundary & Disputed Area Plan prepared by Eustace Engineering, Willow Grove, Pennsylvania, dated
March 18, 2015, drawing number D30030508;
BEGINNING at a point on the Southerly line of West Annsbury Street (70' wide), said point being South
78 degrees 39 minutes 00 seconds East, a distance of 88.781feet from a point at the intersection of the
Southwesterly side of Annsbury Street (70' wide) with the Southeasterly side of 6th Street (60' wide);
1) Thence, extending South 78 degrees 39 minutes 00 seconds East, along the Southerly line of West
Annsbury Street, a distance of 41.069 feet to a point;
Thence extending the following five (5) courses and distances along the outside face of the existing
stone and block wall, more or less;
2) South 15 degrees 45 minutes 15 seconds West, a distance of 8.867 feet to a point;
3) North 74 degrees 14 minutes 45 seconds West, a distance of 1.112 feet to a point;
4) Along the arc of a circle curving to the right having a radius of 10.000 feet, the arc distance of 14.935
feet to a point;
5) South 07 degrees 56 minutes 23 seconds West, a distance of 75.869 feet to a point;
6) South 89 degrees 09 minutes 39 seconds West, a distance 4.693 feet to a point;
7) Thence, leaving the stone and block wall, extending North 07 degrees 00 minutes 28 seconds West, a
distance of 67.496 feet to a point;
8) Thence, extending North 04 degrees 45 minutes 28 seconds West, a distance of 33.104 feet to the
first mentioned point and place of Beginning.
Containing: 1,843.1 SF. or 0.0423 Acres in area

Case ID: 130703647

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Case ID: 130703647

RAILROAD RECOVERY, INC.,


Plaintiff,

COURT OF COMMON PLEAS


PHILADELPHIA COUNTY

v.
BRIAN MAST,
SIXTH STREET MANAGEMENT CORP., :
JOHN GIUNUP, and
MICHAEL PETTACIO
Defendants.

JULY TERM, 2013

NO. 03647

ORDER
AND NOW, this

day of

, 2015, after a trial on the merits

of this matter, and Defendants having established their rights to quiet title relief under Pa.R.C.P.
1066, it is hereby ORDERED AND DECREED as follows:
1.

Finding in favor of Defendants Sixth Street Management Corp., John Giunup, and

Michael Pettacio and against Plaintiff Railroad Recovery, Inc. on Counts I, II, and III of the First
Amended Complaint.
2.

Finding in favor of Defendant Sixth Street Management and against Plaintiff

Railroad Recovery on Count I of the Counterclaim.


3.

Title to the disputed area of the Sixth Street Property as more particularly defined

in the legal description attached hereto as Exhibit "A," (the "Disputed Area of the Sixth Street
Property") is hereby quieted in favor of Sixth Street Management Co.
4.

It is hereby declared and adjudged that Sixth Street Management, Corp. is the sole

and absolute owner of the disputed area and thus, Railroad Recovery, Inc. and all persons

ACTIVE 30564462v1 06/23/2015

Case ID: 130703647

claiming under it are forever barred from asserting any right, title, or interest in the Disputed
Area of the Sixth Street Property.
5.

Finding in favor of Defendant Sixth Street Management and against Plaintiff

Railroad Recovery on Count II of the Counterclaim.


6.

Title to the disputed area of the Payload Property as more particularly defined in

the legal description attached hereto as Exhibit "B," (the "Disputed Area of the Payload
Property") is hereby quieted in favor of John Giunup and Michael Pettacio.
7.

It is hereby declared and adjudged that John Giunup and Michael Pettacio are the

sole and absolute owners of the Disputed Area of the Payload Property and thus, Railroad
Recovery, Inc. and all persons claiming under it are forever barred from asserting any right, title,
or interest in the Disputed Area of the Payload Property.
8.

Sixth Street Management Corp. and John Giunup and Michael Pettacio are hereby

authorized to record a copy of the Order resolving this action with the Philadelphia Department
of Records.
BY THE COURT:

ACTIVE 30564462v1 06/23/2015

Case ID: 130703647

EXHIBIT "A"

Case ID: 130703647

March 18, 2015


Description of 4455 North 6th Street Disputed Area
ALL THAT CERTAIN lot or piece of ground with improvements erected thereon situate in the 49th Ward
of the City of Philadelphia, Commonwealth of Pennsylvania described according to a certain Property
Boundary & Disputed Area Plan prepared by Eustace Engineering, Willow Grove, Pennsylvania, dated
March 18, 2015, drawing number D30030508;
BEGINNING at a point on the Southerly line of lands of 4525 North 6th Street, said point being the
following two (2) courses and distances from a point at the intersection of the Southwesterly side of
Annsbury Street (70' wide) with the Southeasterly side of 6th Street (60' wide);
1) South 11 degrees 21 minutes 00 seconds West, along the Southeasterly side of 6th Street, a
distance of 283.500 feet to a point being the Southwesterly corner to 4525 North 6th Street;
2) South 78 degrees 39 minutes 00 seconds East, along the Southerly line of 4525 North 6th
Street, a distance of 146.396 feet to the point of Beginning.
Thence extending from said point of Beginning,
1) Extending South 78 degrees 39 minutes 00 seconds East, along the Southerly line of 4525 North 6 th
Street, a distance of 35.177 feet to a point on the center line of the former North Pennsylvania Railroad
(Consolidated Rail Corporation) right of way;
2) Thence, extending along said centerline on the arc of a circle curving to the left having a radius of
2857.79 feet, the arc distance of 174.641 feet to a point being a corner to lands of 4417R North 6th
Street;
3) Thence, extending North 78 degrees 39 minutes 00 seconds West, along the Northerly line of 4417R
and 4417North 6th Street, a distance of 39.791 feet to a point;
4) Thence, extending North 00 degrees 14 minutes 09 seconds West, a distance of 126.876 feet to a
point;
5) Thence, extending North 08 degrees 06 minutes 14 seconds West, a distance of 47.284 feet to the
first mentioned point and place of Beginning.
Containing: 6,703.2 SF. or 0.1539 Acres in area

Case ID: 130703647

EXHIBIT "B"

Case ID: 130703647

March 18, 2015


Description of 4525 North 6th Street Disputed Area
ALL THAT CERTAIN lot or piece of ground with improvements erected thereon situate in the 49th Ward
of the City of Philadelphia, Commonwealth of Pennsylvania described according to a certain Property
Boundary & Disputed Area Plan prepared by Eustace Engineering, Willow Grove, Pennsylvania, dated
March 18, 2015, drawing number D30030508;
BEGINNING at a point on the Southerly line of West Annsbury Street (70' wide), said point being South
78 degrees 39 minutes 00 seconds East, a distance of 88.781 feet from a point at the intersection of the
Southwesterly side of Annsbury Street (70' wide) with the Southeasterly side of 6th Street (60' wide);
1) Thence, extending South 78 degrees 39 minutes 00 seconds East, along the Southerly line of West
Annsbury Street, a distance of 58.844 feet to a point on the center line of the former North Pennsylvania
Railroad (Consolidated Rail Corporation) right of way;
2) Thence, extending South 05 degrees 23 minutes 00 seconds West, along said centerline, a distance of
130.010 feet to a point of curvature;
3) Thence, extending along the same on the arc of a circle curving to the left having a radius of 2857.79
feet, the arc distance of 155.553 feet to a point being the Northeasterly corner to lands of 4455 North
6th Street;
4) Thence, extending North 78 degrees 39 minutes 00 seconds West, along the Northerly line of 4455
North 6th Street, a distance of 35.177 feet to a point;
5) Thence, extending North 08 degrees 06 minutes 14 seconds East, a distance of 54.427 feet to a point;
6) Thence, extending North 03 degrees 53 minutes 56 seconds East, a distance of 101.028 feet to a
point;
7) Thence, extending North 07 degrees 00 minutes 28 seconds West, a distance of 102.392 feet to a
point:
8) Thence, extending North 04 degrees 45 minutes 28 seconds West, a distance of 33.104 feet to the
first mentioned point and place of Beginning.
Containing: 10,641.7 SF. or 0.2443 Acres in area

Case ID: 130703647

CERTIFICATE OF SERVICE
Ihereby certify that on this date, a true and correct copy of the foregoing Defendants'
Proposed Findings of Fact and Conclusions of Law was filed using the Court's electronic filing
system and served by United States First Class Mail, postage prepaid, upon the following:
Anthony B. Quinn, Esquire
Quinn Law Office
Suite 520 The Bellevue
200 South Broad Street
Philadelphia, PA 19102-9149

CLAIR E. WISCHUSEN
Dated:

June 24, 2015

ACTIVE 29488691v4 06/24/2015

Case ID: 130703647