Sixth Street Management - Plaintiff Findings

7/18/2019 Sixth Street Management - Plaintiff Findings

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Pa.R.C.P. #211 ORAL ARGUMENT DEMANDEDQuinn Law OfficeBy: Anthony Bernard Quinn, Esquire Attorney Reg. #26931Suite 520 The Bellevue

200 S. Broad StreetPhiladelphia, PA 19102Telephone: 215-731-0340 Attorney for plaintiff

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA COURT OF COMMON PLEAS OF PHILADELPHIA

CIVIL TRIAL DIVISION

Railroad Recovery Inc.,a Pennsylvania Corporation,

plaintiff

:

July Term 2013

v.

Brian Mast, andSixth Street Management Corp.,a Pennsylvania Corporation, andJohn Giunup, andMichael Pettacio, defendants : #03647

PLAINTIFF’S SUGGESTED FINDINGS OF FACT

CONCLUSIONS OF LAW AND PROPOSED ORDER

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

herewith submits plaintiff’s suggested findings of fact, conclusions of law and

proposed order.

Respectfully submitted,

Anthony Bernard Quinn Attorney for plaintiff

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Case ID: 13070

Filed and Attested by

PROTHONOTARY

11 JUN 2015 05:16 pm

K. EDWARDS



PLAINTIFF’S SUGGESTED FINDINGS OF FACT

I. Plaintiff's Abstract Of Title.

1. Exhibit D89 is the Joint (sic) Stipulation of the parties’ relevant

documents.

2. Exhibit D89, ¶5 agrees the abstract of plaintiff’s title is,

i) The Sally N. Dickinson deed to the North Pennsylvania Rail Road

Company, and “Survey of ground occupied by North Pennsylvania R. R. Co.

through the property of Sarah Dickinson Containing 9 A[cres] 57 Perches

Scale 200 feet to an Inch,” dated January 12, 1854, and recorded on

January 23, 1854, at Deed Book TH-120-536& [hereinafter, the 1854

Dickinson Deed]. [Exhibits P2, P1, P1A, P58, D80.]

ii) The North Pennsylvania Rail Road Company [hereinafter, the

North Penn] deed to the Consolidated Rail Corporation [hereinafter,

Conrail], dated March 29, 1976, and recorded May 11, 1979, at deed book

DCC-1948-195&c [hereinafter, the Conrail deed]. [Exhibits P3, P3A.]

iii) The Consolidated Rail Corporation deed to Railroad Recovery

Inc., dated January 25, 2012, and recorded February 2, 2012, at Document

Id. 52442606 [hereinafter, the Railroad Recovery deed]. [Exhibits P4,

P4A, P23, D2.]

3. Exhibits P1 and P1A include a typewritten copy of the 1854 Dickinson

Deed, entitled “Abstract of Deed Sally Norris Dickinson to North Pennsylvania

Rail Road Company” and a document entitled “Copy of Plan recorded with Deed

Book T.H. No. 120 P. 536.” [Exhibits P1, P1A.]

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Case ID: 13070



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

deed book TH 120, beginning at page 536, being the handwritten, transcribed and

recorded copy of the original deed from Sally N. Dickinson to the North

Pennsylvania Rail Road Company, dated January 12, 1854, and recorded on

January 23, 1854. [Exhibits P2, P1, P1A, P58, D80.]

5. Exhibit P2 includes the “Survey of ground occupied by North

Pennsylvania R. R. Co. through the property of Sarah Dickinson Containing

9A[cres] 57 Perches Scale 200 feet to an Inch,” recorded at deed book

TH-120-536&. [Exhibits P2, P1, P1A, P58, D80.]

6. Plaintiff’s title originates from the said 1854 Dickinson deed to the North

Pennsylvania Rail Road Company, dated January 12, 1854, recorded on January

23, 1854. [Exhibits P2, P1, P1A, P58, D80.]

7. John Enright, Esquire, testified that he is employed by the Consolidated

Rail Corporation as the,

6 A. Director of industrial development7 and associate general counsel.

[Enright, p.7.]

8. As such, Mr. Enright is responsible for Conrail title issues.

3 A. Mainly transactional work supporting 4 the real estate department. Preparing 5 purchase of sale agreements, leases, deeds in

6 connection with property that Conrail owns and7 leases and sells to third parties.

[Enright, p.8.]

9. The North Penn conveyed its line of railroad to Conrail by deed dated

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March 29, 1976, and recorded May 11, 1979 at deed book 1948 page195&.

[Exhibits P3, P3A; Enright, at pp. 15, ln. 20- p. 16, ln. 9.]

10. John Enright, Esquire, testified one of the lines of railroad conveyed by

the North Penn to Conrail was known as line code 0301. [Exhibits P3, P3A;

Enright, at pp. 17, ll. 17-19.]

11. John Enright, Esquire, the Conrail executive, testified the line of

railroad known as line code 0301 began near Willow Street extending to Wayne

Avenue. [Exhibits P3, P3A; Enright, at pp. 18, ll. 6-18.]

12. Plaintiff entered into an agreement of sale with Conrail for the

purchase of a .6 mile strip of the former line code 0301.

8 Q. Did there come a time when Conrail9 and when the Consolidated Rail Corporation did10 sell the 0.6 mile strip of railroad roadbed11 that's indicated in this December 3,198412 decision and order, which was previously 13 marked as Plaintiff's Exhibit-14?14 A. Yes.

15 Q. Did you have any involvement in16 preparing this Quitclaim Deed of Confirmation,17 which has been marked as Plaintiff's Exhibit18 4?19 A. Yes. I did have involvement.

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

13. The .6 mile strip of former rail roadbed was titled in plaintiff by a

January 25, 2012, deed from Conrail, recorded February 2, 2012. [Exhibits P4,

P4A, D2.]

14. There is no record that a closing or deed delivery took place in 1994.

10 Q. Are there any documents that you11 would become aware of in Conrail's records

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Case ID: 13070



12 that showed that a closing or delivery of the13 1994 deed had taken place?14 A. After my previous deposition, I did,15 per a request, look for a closing report,16 which I was not able to locate.

[Enright, p.51.]

15. The 1854 Dickinson deed and the 1976 Conrail deed were recorded

first in time to the 2003 and 2004 Sixth Street Management Corp. and the

Giunup and Pettacio deeds.

II. Identification of plaintiff’s property.

16. The Joint (sic) Stipulation agrees the following maps, plans and

surveys concern the subject properties and are matters of public record [Exhibit

D89],

i) 1861 plan and survey of the Crosia Dore plantation, recorded at

deed book ACH-28-110&. [Exhibits D76.]

ii) 1895 Walter Brinton survey for Thomas J. Martin. [Exhibit

P30.]

iii) 1902 Walter Brinton survey for James Barker. [Exhibit P31.]

iv) 1922 Walter Brinton survey for James Barker, Inc. [Exhibit

P32.]

v) 1929 Jos. F. Delany survey for Barber Hartman. [Exhibit P34.]

vi) 1942 Jos. F. Delany survey for Alexander Young. [Exhibit P35.]

vii) 1964 Wm. F. Bispels, Jr. survey for Tony DePaul & Sons.

[Exhibit P36.]

viii) North Pennsylvania Rail Road Co. map #41 (ancient). [Exhibit

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Case ID: 13070



P5.]

ix) North Pennsylvania Rail Road Co. map #41. [Exhibit P6.]

x) North Pennsylvania Rail Road Co. map #42. [Exhibit P7.]

xi) Map Conrail Case #69717 #1. [Exhibit P4, P4A, P23, D2,

attachment.]

xii) City Plan 205. [Exhibit P29.]

xiii) City Registry Map 133N6 (1 page). [Exhibit P19, P45.]

xiv) City Registry Map 85N16 (1 page). [Exhibit P46.]

xv) City Registry Map 121N24 (1 page). [Exhibit P47.]

17. Defendants’ responses to requests for admissions makes the following

statement,

A1. Inspection of the [1854] Dickinson deed by Defendants isinsufficient, upon reasonable inquiry, to enable an admission ordenial as to whether this deed purported to convey the disputedproperty because the “map or plan” delineating the propertygranted by Ms. Dickinson, referenced in the deed as being “hereunto

annexed,” is not annexed to the deed on file with the Department ofRecords.

[Exhibit P24.]

18. The “map or plan” delineating the property granted by Ms. Dickinson

by the 1854 Dickinson deed is recorded at deed book TH-120-536&. [Exhibits

P20, D80.]

19. The aforesaid statement by defendants in response to requests for

admissions #A1, is false, and made in bad faith. [Exhibits P20, P24, D80.]


statement,

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Case ID: 13070



B1. It is denied that the [Stantec] deed plot is “correct” or that itotherwise supports Plaintiff’s claimed interest in the disputedproperty.

[Exhibit P24.]

21. Roy G. Strauch PLS filed a report for the defense, which stated his

opinion as follows,

The instrument in question is the legal description for theIndenture between Sally Dickinson to North Pennsylvania RailroadCompany, dated January 1854 and the subsequent transfers to theConsolidated Rail Corporation. It is my professional opinion that the land described in theIndenture instrument is in whole or part, the same land described in

the Quitclaim Deed of Confirmation between Consolidated RailCorporation and Railroad Recovery, Inc.

[Exhibit D30.]


admissions #B1, is false, and made in bad faith.


statement,

B2. It is denied that the [Stantec] legal description is “correct” orthat it otherwise supports Plaintiff’s claimed interest in the disputedproperty.

[Exhibit P24.]

24. Defendant’s consulting surveyor, Roy Stauch, PLS testified consistent

with his report. [Exhibit D30.]


admissions #B2, is false, and made in bad faith.


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Case ID: 13070



statement,

C1. It is denied that Plaintiff has any current interest in the disputedproperty or that Plaintiff has set forth a valid abstract of titlethereto.

[Exhibit P24.]

27. Plaintiff’s valid abstract of title is set forth in ¶¶2-6, above, and the

Joint (sic) Stipulation at ¶5 agrees the abstract of plaintiff’s title is as set forth in

¶2, above. [Exhibit D89.]


admissions #C1, is false, and made in bad faith.


statement,

C2. Upon reasonable inquiry, Defendants are without knowledge orinformation to form a belief as to whether the [Stantec] documentsidentified in paragraph B “accurately represent” the subject boundaries of the stated Consolidated Rail Corporation property.

[Exhibit P24.]






statement,

C3. Upon reasonable inquiry, Defendants are without knowledge orinformation to form a belief as to whether the [Stantec] documentsidentified in paragraph B “accurately represent” the subject metesand bounds description of the stated Consolidated Rail Corporation

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Case ID: 13070



property.

[Exhibit P24.]





35. The Conrail rail roadbed conveyed to plaintiff lies to the east of

properties owned by Sixth Street Management Corp. and John Giunup, and

Michael Pettacio.

36. The issue in this case is whether the defendants, whose properties are

west of the rail roadbed, own the rail roadbed west of the center line of the

railroad.

37. John Enright, Esquire, the Conrail executive, testified the strip of land

sold to plaintiff is referenced by case #69717.

22 Q. And there is a case plan attached,23 which appears to be the eighth page before the24 end, which indicates Case No. 69717; do you1 see that?2 A. Yes.3 Q. It's two pages, sheets one and two?4 A. Correct.***.12 Q. How are these case plans of sheets13 one and two and two of two, where do they come

14 from?15 A. They would have been prepared by 16 Conrail at the time of the original sale.17 Q. What are they prepared from, if you18 know?19 A. Evaluation maps (sic).20 Q. What are evaluation (sic) maps, sir?

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Case ID: 13070



21 A. Evaluation (sic) maps, back in 1916 to 191822 time frame, the Federal Government required23 all railroads in the United States to prepare24 maps of their respective rights of way and1 they're called evaluation (sic) maps.

2 Q. Are these maps that are maintained by 3 Conrail in the regular course if its business?4 A. Yes.

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

38. Case #69717 is a two page, “Plan of Property to be Conveyed by

Consolidated Rail Corporation to Railroad Recovery, Inc.,” appended as an

attachment to the Railroad Recovery deed. [Exhibits P4, P4A.]

39. The Railroad Recovery deed conveyed a strip of former rail roadbed,

according to case #69717, beginning at mile post 4.2, being the south side of the

Cayuga Street bridge and ending at mile post 4.8, being the north side of the

Rockland Street bridge in North Philadelphia. [Exhibits P4, P4A.]

40. The Stantec plan of property correctly states the property Conrail

intended to convey to plaintiff.

12 Q. Attached to the 2012 Quitclaim Deed13 as Exhibit B is a document with a heading,14 Stantac Consulting Services, Inc. It's15 stating a description of the former North16 Pennsylvania Railroad right of way. Is17 Exhibit B reflective of what was intended to18 be conveyed by Conrail?19 A. Yes. We did an analysis of the20 description, a meets and bounds description,

21 compared it against the case plan and22 determined that it matched up so to speak.23 Q. Attached as Exhibit C to the 201224 Deed is another map, do you know what that map1 represents?2 A. I believe it's a map that was3 prepared by Stantac that goes along with the

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Case ID: 13070



4 meets and bounds description.5 Q. Is this map intended to reflect the6 property that was being conveyed by Conrail to7 Railroad Recovery?8 A. I believe so.

[Enright, pp.74-75.]

41. Exhibit P5 is a North Penn section 8 plan of property of the North Penn

rail roadbed through lands of Sally Norris Dickinson.

42. Exhibit P6 is a North Penn quarter section plan of property.

43. Exhibit P7 is a North Penn quarter section plan of property.

44. Exhibit D36 is a 1964 City Survey plan of 4525 N. 6th Street made for

Tony DePaul & Sons.

45. Charles Karat is a licensed professional land surveyor, employed in the

industry since 1988, having been first licensed in 1999 in Pennsylvania. in

addition, Mr. Karat is licensed in Utah, Delaware, Maryland, Virginia and the

District of Columbia. [P25; N.T. 3/12, 2015, p 11 ln. 22 - p. 12 ln. 14.]

46. At the time of first licensure in 1988, Charles Karat had obtained ten

years prior field and office experience. [P25; N.T. 3/12, 2015, p 12 ln. 24 - p. 13 ln.

4.]

47. The 1854 Dickinson deed described the strip of land conveyed as

follows,

CONTAINING nine acres and fifty seven perches as the said stripor piece of land is delineated and laid down in the map or planthereof here unto annexed (which is to be taken as part of thisIndenture) and of keeping, using and maintaining thereon theRailroad of the party of the Second part at all times hereafterforever.

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Case ID: 13070



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

bearings a strip of land commencing at Nicetown Lane and traversing north to

the former Wingohocking Creek. [P2; N.T. 3/12, 2015, p 25 ll. 7-18.]

49. Charles Karat testified that by use of city maps, he was able to identify

the location of the former Wingohocking Creek.

22 Q. And if you could point that out to the Court23 on Plaintiff's Exhibit 29.24 A. The creek enters -- well, you will notice that25 on that exhibit we have the word Annsbury for2 Annsbury Street, and the creek is flowing right down3 the present location of Annsbury Creek and it

4 crosses under the center line of the railroad down5 in the corner of that exhibit. So you will see6 Fairhill Street, Annsbury Street, and then you will7 also see the location of the railroad and the8 location of the creek crossing.

[P29; N.T. 3/12, 2015, p 25-26.]

50. Charles Karat testified that the former Wingohocking Creek intersected

with the North Penn railroad at West Annsbury Street.

25 Q. Yes. Mr. Karat, if we were to follow the2 curved lines as they go west, and I am assuming that3 the creek runs to the west at least towards the4 Delaware River, do you see an indication that on the5 map that we're referring to that the curve line is6 referring to the creek?7 A. Yes. As I follow this to the left we'll cross8 Roosevelt Boulevard, and then as I get out to 11th9 Street there is the wording creek on the plan. If I10 continue --

11 THE COURT: Show us where it says12 creek. Okay.13 THE WITNESS: Between Warnock and 11th14 on the exhibit, and then what I am going to do15 now is I am going to jump over to Old York Road16 as shown on the plan. But once we get there,17 there is the wording old line of creek, and I

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Case ID: 13070



18 think this is the old line of the creek and19 then continuing to the east I can follow these20 contour lines to the east until we get into the21 area of question where it crosses Annsbury or22 where it crosses 6th Street, the railroad, and

23 then continues down the location of Annsbury 24 Street.

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

51. In dispute is the ownership of a disputed strip of land, west of the

center line of the Conrail rail roadbed, which lies between 5th Street, 6th Street,

Fairhill Street, Cayuga Street and Annsbury Street. [Complaint, D26.]

5 Q. And on this particular -- on this particular6 map, you referenced the center line of the railroad.7 Can you find 6th Street on that map?8 A. I can find 6th Street, yes, I can.9 Q. Can you point that out?10 A. 6th Street is located to the west of the11 railroad.12 Q. And were you able to locate 5th Street?13 A. 5th Street would be to the east of the14 railroad.15 Q. And there is also a Fairhill Street in there?

16 A. Fairhill Street is to the east of the17 railroad.

[P29; N.T. 3/12, 2015, p 30.]

52. Using the various maps identified, Mr. Karat was able to map and

survey the field.

5 Q. Mr. Karat, did you at my request have a survey 6 done in the field concerning the property in

7 question?8 A. I did.9 Q. And was that limited to between Cayuga and10 Annsbury Streets?11 A. It was.12 Q. And did you at my request prepare a plan13 showing how you had determined where the properties

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14 were in question and as referenced in these -- each15 individual exhibit?16 A. Yes, we did.[P42; N.T. 3/12, 2015, p. 58.]20 Q. Can you tell me what plaintiff's Exhibit

21 Number 42 is?22 A. It's a plan labeled deed plot. It's got a 23 preliminary date of 2/27/12 shown on it in the lower24 right-hand corner. Reading from left to right we25 have Cayuga Street on the left, 6th Street on the2 top, Annsbury Street on the right, and kind of 3 cutting through the middle is the center line of the4 railroad and the right-of-way. There are also some5 buildings depicted, fence lines depicted that6 reflect the ground survey which was performed in7 February of 2012.

8 Q. And this was the field survey that was9 prepared?10 A. Yes.11 Q. And the field survey that was prepared in12 February of 2012 were pins placed along the west13 line of the North Pennsylvania Railroad?14 A. Yes, there were.15 Q. And those pins that were -- they were placed16 by your field personnel?17 A. They were.

[P42; N.T. 3/12, 2015, pp. 59-60.]

53. Using the various maps identified, Mr. Karat was able to map and

survey the line of the former North Penn Railroad; which were marked in yellow

on the plan, exhibit P42.

10 Q. Were you able to map the west line, the west11 border of the North Pennsylvania Railroad?12 A. Yes.

13 Q. And were you able to mark the bearings for the14 west border of the North Pennsylvania Railroad?15 A. Yes. They're shown on the plan.

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

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

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

18 Q. Mr. Karat, did you at my request prepare a 19 deed description according to the property conveyed20 by Consolidated Railroad Corporation to Railroad

21 Recovery, Inc.?22 A. I did.23 Q. And I will show you a document which I'm going 24 to mark as Plaintiff's Exhibit No. 44, and it has at25 the top right-hand corner Stantec Consulting 2 Services, Inc. with an address, and it says3 description of the former North Penn Railroad4 Right-of-Way. I draw that to your attention. This5 is Plaintiff's Exhibit No. 44.6 A. Yes.12 Q. And is that your -- is that a survey that you

13 prepared, sir?14 A. Yes, it is.15 Q. And does that show all the plan -- the metes16 and bounds of all the property conveyed in 2012 from17 the North Pennsylvania -- excuse me, the18 Consolidated Rail Corporation to the Railroad19 Recovery, Inc.?20 A. It shows -- it describes the property of the21 North Penn Railroad right-of-way between Cayuga 22 Street and Annsbury Street, starting at Cayuga 23 Street on the south. ***.

[P44; N.T. 3/12, 2015, pp. 66-67.]

12 THE WITNESS: I'm sorry, Your Honor.13 I am getting ahead of myself. This does cross14 Roosevelt Boulevard. It crosses Rockland15 Street. Goes along the center line of Fishers16 Lane. Recrosses Roosevelt Boulevard.17 Recrosses Annsbury Street, and comes to Cayuga 18 Street. I apologize.

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

55. Mr. Karat concluded the use by the owners of 4525 N. 6th Street

encroach the Rail roadbed conveyed to plaintiff.

21 Q. You have the same exhibit. Mr. Karat, drawing

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22 your attention again to Plaintiff's Exhibit No. 42,23 and drawing specifically your attention to the24 reference plan city survey 7/28, 1964. That25 property in question which you're identifying as2 4525 North 6th Street, did you find on there a fence

3 line on that property which encroaches the Railroad4 Recovery property?5 A. Yes, I did.6 Q. And can you identify that and mark that on the19 ***. So there is a fence20 encroachment, and we're describing a triangle21 leaning to the left with its point being to the left22 and a shallow base to the right.

[P42; N.T. 3/12, 2015, p. 75-76.]

56. Mr. Karat concluded the use by the owners of 4455 N. 6th Street

encroach the Rail roadbed conveyed to plaintiff.

10 Q. Did you also find with reference to the11 property where it indicates reference plan city 12 survey 3/6, 1942 which we're describing as 445513 North 6th Street, did you find a fence encroachment14 at that location?15 A. I did.16 Q. And where did you find the fencing

17 encroachment?***.9 A. Yes, there is a dotted pattern on the plan and10 it has an arrow going into it.11 THE COURT: That's all the fence area?12 THE WITNESS: That's the fenced in13 area. That's not all of the fenced in area,14 but that's the fenced in area --15 THE COURT: That's the encroachment?16 THE WITNESS: -- within the17 right-of-way.

18 THE COURT: Okay.19 THE WITNESS: Yes, Your Honor. And20 it's labeled fence encroachment area, 635021 square feet, plus or minus.

[P42; N.T. 3/12, 2015, p. 77-78.]

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Case ID: 13070



III. Conrail’s title.

57. Exhibit P10 is the “Supplemental Order of Conveyance to Trustees of

Railroads in Reorganization in the Region and Relating to Rail Properties of

Persons Leased, Operated or Controlled by Railroads in Reorganization in the

Region,” as ordered by the Special Court under the Regional Rail Reorganization

Act of 1973, In re Proceedings Under Sections 303 and 306 of the Regional Rail

Reorganization Act of 1973, Special Court, Misc. No. 75-1, dated March 31, 1976.

[Exhibit P10.]

58. Exhibit P10 was recorded in the Department of Records of the City of

Philadelphia at deed book DCC-1948-001&c on May 11, 1979. [Joint Stipulation,

¶5.]

59. Mr. Enright testified concerning P10, the Special Court order recorded

at deed book 1948 page 001& on May 11, 1979. [P10; Enright, at p. 13.]

22 A. First of all, this document was sort

23 of the enabling document that provided or set24 out a plan for the creation of Conrail and it1 identifies issues -- there's more to it than2 that, but issues come up from to time to time3 as to whether a particular line of railroad4 came into Conrail's part of the reorganization5 plan. Those kinds of issues, whether a 6 particular right of way was something that was7 deemed on operating at the time. Conrail was8 created and therefore was kept by the trustees9 or was part of what was called the final

10 system plan. The final system plan laid out11 what the rail network for the newly formed12 Consolidated Rail Corporation would consist13 of. It would identify lines by their typical14 identifiers, which was a name and a line code,15 their location, length of the line, that sort16 of information to establish what the extent

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17 and scope of the rail network would look like18 once the Conrail began its operations as19 Conrail.

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

60. Conrail came into being as part of the federal reorganization of the

bankrupt railroads. See generally Regional Rail Reorganization Act Cases, 419

U.S. 102, 108-17, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974).

The Rail Act created the United States RailwayAssociation, see 45U.S.C. § 711(a) , a non-profit corporation, which in turn prepared aFinal System Plan ("FSP") which designated how rail properties held by the bankrupt railroads would be distributed, see 45 U.S.C. §716.

The Rail Act also created Conrail, see 45 U.S.C. §741(a), andmandated that rail properties designated in the FSP be conveyed toConrail, see 45 U.S.C. §743(b). The conveyance process wassupervised by the Special Court and implemented through aConveyance Order of the Special Court. See 45 U.S.C. § 719(b).

City of Philadelphia v. Consolidated Rail Corporation, et al., 222 F.3d990, 991, 343 U.S. App. D.C. 53; 2000 U.S. App. LEXIS 15688 (C.A.D.C. 2000).

61. The award by the federal Special Regional Rail Reorganization Court

was mandated by the federal Regional Rail Reorganization Act of 1973. [Exhibit

P10.]

IV. Plaintiff’s interest in fee.

62. The term “right of way” has not acquired a general meaning applicable

in all cases.

In Territory of New Mexico v. United States Trust Co., 172 U.S. 171,181-182, 19 S.Ct. 128, 132, 43 L.Ed. 407, the Court acknowledgedthat the term 'right of way' had two distinct meanings: (1) a 'mereright of passage;' and (2) "that strip of land which railroadcompanies take upon which to construct their roadbed.' That is, theland itself, not a right of passage over it.": Mr. Justice Frankfurter'sdissenting opinion in United States v. Union Pacific Railroad Co., 77

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S.Ct. 685, 691.

Brookbank, 389 Pa. 154, 131 A.2d, 105, ftnt. 3.

63. There is no significance to the use by Conrail of a quitclaim deed to

convey its interest to plaintiff.

14 Q. Is there a reason why Conrail elects15 to execute a Quitclaim Deed as opposed to a 16 general Warranty Deed?17 A. Yes. It's common in the rail18 industry because of the -- especially in the19 Eastern United States where railroads date20 back to the 19th Century and railroad names21 changed often so that if you look at a Deed

22 schedule for any right of way and they reflect23 20 different conveyances or name changes over24 time. We don't warrant title. Because of the1 complicated history of railroad conveyances2 and given that it's a right of way, you have3 occupations underground, above ground. We4 want to put the burden on the purchaser to5 satisfy to itself that they're acquiring title6 and it's insurable. We don't make that7 representation or warranty. Let them do their8 own title search and satisfy themselves.

9 Q. In executing a Quitclaim Deed as10 opposed to a Warranty Deed, it's kind of also11 making it incumbent upon the buyer to review 12 and analyze the actual property area that's13 being conveyed?14 A. It's up to the purchaser and title15 company. We're quitclaiming our interest so16 they have to satisfy themselves. We don't17 require them to do that. That's purely a 18 decision to be made by the Grantee to what19 extent they do due diligence before closing a

20 transaction.

[Enright, pp.76-77.]

64. The 1854 Dickinson deed was executed by Sally Norris Dickinson for

herself and by Thomas L. Fernon, President, on behalf of the North Pennsylvania

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

65. The original 1854 Dickinson deed has been lost.

20 Q. As far as this particular document,

21 have you had an opportunity to determine22 whether or not the Conrail has in its archives23 the original Deed that was written it 1854?24 A. There was a page in an exhibit that1 was attached to the typewritten version of 2 this Deed, presented to Ms. Blair in her3 deposition and that appears, that random page,4 appears to be the last page -- matches, let's5 say, the typewritten version of this Deed, but6 we're not able to locate the other pages of 7 the original Deed in our files, but apparently

8 we had the last page of the Deed -- a 9 handwritten version of the last page of the10 deed in our files. I have no explanation as11 to why the rest of it wasn't there.[P1, P1A; Enright, at pp.52-53.]20 Q. But the original first page or first21 couple pages are missing?22 A. Were not able to be located, correct.

[P1, P1A; Enright, at p.54.]

66. From the documents in the Conrail archives, the 1854 Dickinson deed

is a handwritten document and not a preprinted form used in conveyance of

easements.

6 Q. And to be clear, what we have there7 is handwritten, it's not a preprinted form?8 A. The page you're referring to with the9 diamond appears to be a handwritten document.10 I will note for the record that the signature,

11 if this is indeed the handwritten version of 12 what was subsequently typed, is the signature13 of William Wister, the Treasurer, not William14 Fernon. Thomas Fernon is the president so15 this is not the signature of Thomas Fernon.16 It's the signature of William Wister.

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Case ID: 13070



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

67. The 1854 Dickinson deed, grant clause, conveyed to the North Penn the

following interest, using traditional words of inheritance,

Doth grant, bargain, sell, release and confirm, unto the said TheNorth Pennsylvania Rail Road Company, their successors andassigns the entire and exclusive use, right, liberty and privilege ofusing and occupying and enjoying for Rail Road purposes, All thatstrip or piece of land (part of the lands and estate of the said SallyNorris Dickinson) extending from Nicetown Lane to WingohockingCreek in the Township of the Northern Liberties and County ofPhiladelphia.

68. The 1854 Dickinson deed contains this habendum. [N.T. 3/16/2015, p.

37, ll. 6-9.]

TO HAVE AND TO HOLD the rights and premises aforesaid untothe said The North Pennsylvania Rail Road Company, theirsuccessors and assigns forever , upon condition that the saidCompany, its successors or assigns, shall make, maintain, keep and

use upon the aforesaid piece of land a Rail Road, and if it shallhappen that the railroad contemplated to be now shortlyconstructed on and over the said described strip or piece of land orany renewals or reconstructions thereof, shall be removed or

abandoned or the said described piece of land shall cease to be usedfor 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 theirfirst and former Estate, and she or they shall thereupon repossess and enjoy the same as if this present Indenture had never beenmade.

69. The railroad deed in Emrick v. Bethlehem Tp., 506 Pa. 372, 375, 485 A.

2d 736, 737 (Pa. 1984) was decided by our Supreme court subsequent to the

Brookbank decision relied upon by the defense. Emrick involved a strip of land

conveyed to a railroad “for railroad purposes.” There, the language of the 1914

railroad deed used language similar to the 1854 Dickinson deed at bar.

ThAt [sic] in case the [grantee], its successors or assigns, should at

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any time hereafter cease to use, or abandon, the above describedstrips of land as a railroad, right of way, or for railroad, purposes[sic], and such non use [sic] or abandonment, shall continue, [sic]for one (1) Year after notice, in writing, from the [grantor], his heirsor assigns, that he or they desire to re enter [sic] on said land, and

repossess himself or themselves of the same, then and in such case,after the lapse of said one (1) Year after notice as aforesaid such nonuse [sic] or abandon-ment continuing, the [grantor], his heirs orassigns, may ren enter [sic] upon the above described land, andrepossess himself or themselves, [sic] thereof, as of his or their

first and former estate therein.

70. Superior Court in Wagner v. Landisville Camp Meeting Ass'n, 2011 PA

Super 116, 24 A.3d 374, 377 (Pa.Super. 2011), explained the meaning of a

conditional fee.

A fee simple subject to a condition subsequent is created where thedeed provides that upon the happening of some specified event, thegrantor has the right and power to terminate the estate. Stolarick v.Stolarick, 241 Pa.Super. at 506, 363 A.2d at 797 (1976). Theinterest held by the grantor in such cases has been termed a right ofre-entry. Id. This interest has also been called a power oftermination. Restatement of Property, §24 (1936). The obviousdifference between a fee simple determinable and a fee simplesubject to a condition subsequent is that in the former the estate

reverts automatically, while in the latter the reversion requiressome action on the part of the grantor . Higbee Corporation v.

Kennedy, supra [286 Pa.Super. 101, 428 A.2d 592 (1981)]; Stolarick v. Stolarick, supra; Restatement of Property, §§44 §45 (1936).

71. Brown v. Haight, 435 Pa. 12, 17, 255 A.2d 508, 511 (1969)

Words such as 'as much longer as' or 'so long as' are traditionallyconsidered words connoting a special limitation rather than acondition subsequent. Furthermore, policy considerations indicatethat the habendum clause should be interpreted as a special

limitation and not a condition subsequent.

72. Superior Court in Wagner v. Landisville Camp Meeting Ass'n, 24 A.3d,

at 378-379, found the habendum to predecessor deeds used the classic phrase,

“to have and hold forever ... upon this condition,” and concluded the conveyance

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

interest held by the LCMA- pursuant to express By-law provisions on lot holder

forfeiture and LCMA re-entry ***.”

73. Defendants’ deeds do not mention any deed restriction running to the

North Penn. [Exhibits D45 through D74.]

74. The Sixth Street Management deed makes a singular reference to the

North Penn rail roadbed as follows,

*** thence extending South 78 degrees 39 minutes East 181 feet6.125 inches to a point in the middle line of the North Pennsylvania

Railroad; thence by the same Southwestwardly with a radius of2,857.79 degrees 174 minutes 7.625 seconds;***.

[Exhibits D54.]

75. The Giunup/Pettacio deed makes a singular reference to the North

Penn rail roadbed as follows,

*** thence extending South 78 degrees, 39 minutes, East 181 feet6-1/8 inches more or less to the center line of the North

Pennsylvania Railroad and thence along the center line of the saidNorth Pennsylvania Railroad on the arc of a circle curving to theright having a radius of 2887.79 feet the arc distance of 155 feet6-5/8 inches to a point of tangent; thence still along the center lineNorth 5 degrees, 25 minutes, East 120 feet 0-1/8 inches to a point onthe Southwesterly side of Annsbury Street aforesaid; ***.

[Exhibits D45.]

76. Defendants therefore claim that their deeds grant to them a fee simple

interest to the center line of the rail roadbed, notwithstanding the grant to the

North Penn. [Exhibit P26.]

77. In Wagner v. Landisville Camp Meeting Ass'n, 24 A.3d, at 377-378,

Superior Court recognized a grantee cannot hold a greater title than her grantor.

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As nowhere within the four corners of their deeds is therespecified either a right of re-entry in LCMA or any condition upon which such a right may be exercised, the Wagners argue, the lowercourt should have declared that they hold fee simple absoluteinterests in their real properties. We disagree, for even if the face of

each Wagner deed, viewed in isolation, leaves doubt as to theexistence of a reversionary interest in the LCMA, reading suchlanguage in light of subject matter and other circumstancessurrounding the conveyances removes any and all doubt in favor ofLCMA.

78. In Finley v. Glenn, 303 Pa. 131, 136, 154 A. 299, 301 (1931) it was held

a grantee is responsible for knowing all restrictions within his or her chain of

title capable of discovery upon examination of predecessor recorded deeds.

79. As purchasers of the adjoining land, Sixth Street Management and

Giunup and Pettacio had an obligation to examine the 1854 Dickinson deed as

well as the Conrail deed, and were on constructive notice of Conrail’s fee simple

interest.

The weight of authority is to the effect that if a deed or a contract forthe conveyance of one parcel of land, with a covenant or easement

affecting another parcel of land owned by the same grantor, is dulyrecorded, the record is constructive notice to a subsequentpurchaser of the later parcel. The rule is based generally upon theprinciple that a grantee is chargeable with notice of everythingaffecting his title which could be discovered by an examination of therecords of the deeds or other muniments of title of his grantor.Finley v. Glenn, 154 A. 299, 301-02 (Pa. 1931).

Piper v. Mowris, 466 Pa. 89, 97, 351 A.2d 635, 639 (Pa. 1976); See:Southall v. Humbert, 685 A.2d 574, 578-79 (Pa. Super. Ct. 1996);Restatement (3rd) Property, Servitudes §7.14.

80. Defendants are responsible for knowing all restrictions within their

chain of title capable of discovery upon examination of prior recorded deeds.

Our law provides that “[i]t is always the duty of a purchaser of realestate to investigate the title of his vendor[,]” and the purchaser

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must exercise due diligence in this regard. Ohio River Junction R. Co. v. Pennsylvania Co., 72 A. 271, 273 (Pa. 1909). The Supreme Courtof Pennsylvania has explained the due diligence obligation as follows:

[Purchasers’] title could be affected only with what they actuallyor constructively knew at the time of the purchase; necessarily,

as to the latter, by what they could have learned by inquiry of theperson in possession and of others who, they had reason to believe, knew of facts which might affect the tite [sic], and also by what appeared in the appropriate indexes in the office of therecorder of deeds, and in the various courts of record whoseterritorial jurisdiction embraced the land in dispute; but not ofthat which they could not have learned by inquiry of those only whom they had reason to believe knew of the facts.

Lund v. Heinrich, 189 A.2d 581, 585 (Pa. 1963) (internal citationsomitted). Accordingly, a purchaser fulfills his or her due diligencerequirement when he or she examines the documents recorded in

the county or counties in which the property is situated and when heor she asks the possessor about title, as well as any other people thepurchaser has reason to believe would know about the status of theproperty’s title.

Nolt v. T.S. Calkins & Associates, LP, 2014 PA Super. 141, 96 A.3d1042, 1047-48 (2014).

81. A fee simple subject to a condition subsequent, provides for a possibility

of a reverter; that is, “the reversion requires some action on the part of the

grantor.” Wagner v. Landisville Camp Meeting Ass'n, 2011 PA Super 116, 24 A.3d

374, 377 (Pa.Super. 2011).

82. The possibility of a reverter requires prompt action on the part of the

grantor, her heirs or assigns.

Restatement (First) of Property §57 (1936) ("On the occurrence ofthe event which constitute a breach of a condition subsequent

annexed to an estate in fee simple defeasible, the estate does notterminate. The estate is not terminated unless and until the power oftermination is exercised."); Lacy v. Montgomery, 181 Pa. Super. 640,645, 124 A.2d 492, 494-95 (1956) ("Upon properly authorizedabandonment by the railroad, the base fee acquired oncondemnation reverted to those who were the owners at the time ofthe condemnation, their heirs or assigns. This reversionary interest

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Case ID: 13070



or possibility of reverter was subject to alienation by the grantor.");Emrick v. Bethlehem Twp., 506 Pa. 372, 379, 485 A.2d 736, 739(1984) ("The obvious difference between a fee simple determinableand a fee simple subject to a condition subsequent is that in theformer the estate reverts automatically, while in the latter the

reversion requires some action on the part of the grantor.").

83. The aforesaid phrases, taken together have the meaning of a

conditional fee.

Stolarick v. Stolarick, 241 Pa. Super. 498, 507, 363 A.2d 793, 798(1976) ("John and Michael Stolarick held a conditional fee, and thegrantors reserved a right of re-entry to themselves and their heirs inthe event that the conditions were not performed. When Michaeldied in 1947, his interest in the conditional fee passed by intestacy to

his mother. At the time of the death of Mary Stolarick, the solesurviving grantor, in 1953, therefore, her devisees, appellant and Andrew, had a right of re-entry to the entire fee. Upon Andrew'sdeath in 1973, his interest was devised to appellant. Thus, at thetime the instant suit was brought, appellant held a right of re-entryto the entire fee.").

84. The descendants in title, in Emrick v. Bethlehem Tp., held a possibility

of a reverter, which was promptly exercised.

Turning to the case at hand, the clause in the deed calling for areverter under circumstances of nonuse or abandonment of the landas a railroad or for railroad purposes clearly created a fee simplesubject to a condition subsequent. This left a right of re-entry in thegrantors and their successors. The reverter provision specificallyprovided that the right of re-entry accrued when nonuse orabandonment of the property as a railroad or for railroad purposescontinued for one year after written notice by the grantors orsuccessors of an intent to re-enter the premises. In such case, theformer estate would be restored to the grantors or their successors.

Emrick v. Bethlehem Tp., 506 Pa. 372, 382, 485 A.2d 736, 741 (Pa.1984).

85. Dickinson, as the grantor, in 1854 Dickinson deed, “bears the heavy

burden of using clear and unambiguous language to make explicit [her] intent to

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Case ID: 13070



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

Kennedy, 286 Pa.Super. 101, 110, 428 A.2d 592, 596 (Pa.Super. 1981).

86. Any ambiguity in the creation of a reversion is construed against the

grantor (Dickinson).

Higbee Corp. v. Kennedy, 286 Pa. Super. 101, 109, 428 A.2d 592, 596(1981) ("In accordance with our policy of favoring the freealienability of land, 'a deed which would convey an estate in feesimple except for certain words, or for a phrase or clause must beinterpreted strictly against any such limitation unless the grantor'sintention to so limit the fee is clearly expressed or necessarilyimplied.'" (quoting Peters v. E. Penn Twp. Sch. Dist., 182 Pa. Super.116, 118, 126 A.2d 802, 803 (1956))); 1 John A. Borron Jr., Simes

and Smith the Law of Future Interests § 286 (3d ed. & Westlawdatabase updated Aug. 2014) ("Whether particular language createsa possibility of reverter or not is largely a matter of construction; noparticular words are necessary as a matter of law. It is onlynecessary that the language demonstrate the intention of theconveyor that the estate in fee simple shall terminate automaticallyupon the occurrence or nonoccurrence of the stated event. Thecourts are strict in construing the language, both in determining whether the language creates a limitation, and in determining whether there has been a breach." (emphasis added)).

87. An ambiguous reversion creates a fee simple absolute.

Ralston v. Ralston, 2012 PA Super 234, 55 A.3d 736 (because thelaw favors free transfer of real property, when a deed does notinclude an expression of reversion, a restraint should be deemed acovenant rather than a fee simple determinable or a fee subject to acondition subsequent); Station Assocs., Inc. v. Dare County, 350 N.C.367, 370-71, 513 S.E.2d 789, 792 (1999) ("This Court has declinedto recognize reversionary interests in deeds that do not containexpress and unambiguous language of reversion or terminationupon condition broken.").

V. Res judicata and collateral estoppel.

88. Sixth Street Management Corp. defends that its right to possession is

founded upon a 2008 action of ejectment commenced by it against a tenant

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Case ID: 13070



known as Poor Boys Used Auto Parts, Inc. filed in February 2008 and the

judgment Sixth Street Management obtained in that action in October 2009.

[Exhibit D19.]

88. In 2008, the last deed of record was in Conrail. [Exhibits P3, P3A.]

89. It was not until litigation was commenced against Conrail that Conrail

became inclined to give plaintiff a proper deed.

19 Q. What was your involvement in the20 litigation, if any?21 A. I believe that being named in the22 litigation is what got me involved in the

23 preparation of the Quitclaim Deed of 24 Confirmation. Quite honestly, I don't even1 remember if we filed an Answer in this2 complaint, but it got Conrail's attention, I3 guess, as to the underlying issue of the4 original Deed not being recorded because --5 requests had been made of Conrail for at least6 four years or five years at that point without7 any success so got me focused on it and that8 was sort of my involvement in the litigation9 itself.

[Enright, at pp. 78-79.]

90. In Werry v. Sheldon, 148 Pa.Super. 13, 18, 24 A.2d 631, 633 (1942),

Superior Court considered the issue of res judicata where the same parties

litigated distinct causes of action.

We do not regard the rights of the petitioners now in question as being adjudicated in the bill in equity where the easement was

alleged to have been acquired by prescription. Here they are relyingon a grant in a deed, which was not considered or decided in theformer proceeding.

91. In Hatcher v. Chesner, 422 Pa. 138, 142, 221 A.2d 305, 308 (Pa. 1966),

it was held, Pennsylvania law abhors a forfeiture against the record owner as a

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consequence of action by another.

Another factor in the view held by this state is the general dislikeof forfeiture by our courts. See, Corey v. Edgewood Borough, 18Pa.Super. 216 (1901).

92. An action of ejectment is a possessory action. Sharper v. Muzaffar,

2006 WL 1769637 (Pa. C.P. 2006); Rostan v. Chicagoan, 69 Pa. D&C 2d 255 (C.P.

Chest. 1974); citing Vlachos v. Witherow, 382 Pa. 174, 118 A.2d 174 (1955);

Burnett v. Mueller, 48 Pa. D&C2d 165 (C.P. 1969).

93. The action of ejectment determines solely the superior right to

possession as between the named plaintiff and the named defendant in the

action.

25 Am. Jur. 2d Ejectment §47 (Westlaw database updated May2015) ("A person who is in possession of the premises and whoclaims title prior to, or at the time of, the commencement of theaction, cannot be dispossessed unless he or she was made a party tothe suit so as to be bound by the judgment. A holding that, as between the plaintiff and defendant in an ejectment action and theirsuccessors in interest, the defendant owned the disputed area, does

not affect the rights of persons who were not parties to the action ortheir successors in interest." (footnote omitted)).

94. The record owner, be it a landlord or vendor, is not bound by the 2008

judgment of ejectment.

In the absence of a change in the common law by statute, the onlynecessary or indispensable party to an ejectment action is theperson in actual possession of the land and, where such land is underlease, it is the tenant, not the landlord, who constitutes the only

necessary or indispensable party. ***. If the [land owner] has asuperior title to the land, he has his remedy by the usual action ofejectment. Noyes v. Brooks, 10 Pa.Super. 250, 253. See also: Marko

v. Mendelowski, 344 Pa. 665, 667-668, 25 A.2d 692.

Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 275, 172 A.2d 306, 310 (Pa. 1961).

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95. In Marko v. Mendelowski, 344 Pa. 665, 668, 25 A.2d 692, 693 (1942),

the plaintiff had obtained a judgment in ejectment. Several years expired prior to

resolution of post trial motions. In the interim, defendant allowed the property to

be exposed to tax sale. Defendant’s step-son purchased the property at the sale.

When the court finally decided the case, defendant’s step-son sought to intervene

as the new owner, which the court denied, holding, “If her step-son, the petitioner,

has a title superior to plaintiff's, he must establish it [by an action in ejectment].

Johnson v. Fullerton, [8 Wright 466]; see also, Noyes v. Brooks, 10 Pa.Super.

250.” Accord, Brackin v. Welton Engineering Co., 128 A. 818, 283 Pa. 91 (Pa.

1925).

96. The 2008 action of ejectment determined the right to possession, not

the right to ownership. In an action of ejectment, it is not necessary for the real

property owner to be sued or to voluntarily appear, even if real property owner

did have notice of the ejectment.

Considering, therefore, the nature of an action of ejectment as adetermination between the particular plaintiff suing and defendantas to who has the right of immediate possession, even if [the recordowner] have an outstanding interest, the action may proceed. The purpose of an ejectment action as opposed to quiet title is not todetermine the relative and respective rights of all potential titleholders, but rather the immediate rights between plaintiff anddefendant involved in that particular litigation.

Burnett v. Mueller, 48 Pa. D. & C.2d 165, 172 (Pa.Com.Pl., Mercer1969).

97. In Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103

A.3d 83 (10/20/2014), Superior Court agreed the trial court provided, “the more

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Case ID: 13070



closely on-point authority,” and held, “we agree with the trial court that the

[surface owners] were not indispensable parties to [the ejectment] action.”

The trial court rejected the [lessees]' contention upon the basis

that "the only necessary or indispensable party defendant to anejectment action is the person in actual possession, and, where suchland is under lease, it is the tenant, not the landlord, who constitutesthe only necessary or indispensable party." (citing Bannard v. N.Y.State Natural Gas Co., 404 Pa. 269, 172 A.2d 306, 310 (Pa. 1961)).Noting that the parties in possession of the oil and gas estate at issuein this case were the [lessees], not the [surface owners], the courtfound that the [surface owners] were not indispensable parties tothe ejectment action. Id.; cf. Hicks v. Amer. Natural Gas Co., 207 Pa.570, 57 A. 55, 58 (Pa. 1904) (finding that possession lay with thegas lessee because it had drilled a well and had the gas " in [its]

control").

98. The special Regional Rail Reorganization court was given original and

exclusive jurisdiction by Congress over any civil action,

brought after a conveyance, pursuant to section 743(b) of this title,to set aside or annul such conveyance or to secure in any way thereconveyance of any rail properties so conveyed.

45 U.S.C. §719(e)(1)(E); and,

whether filed by any interested person or initiated by the specialcourt itself, to interpret, alter, amend, modify, or implement any ofthe orders entered by such court pursuant to section 743(b) of thistitle in order to effect the purposes of this chapter or the goals of thefinal system plan.

45 U.S.C. §719(e)(2).

99. Common Pleas Court did not have jurisdiction of the disputed rail

roadbed in 2008. 45 U.S.C. §719.

100. For the defense of res judicata to prevail, it is necessary that between

the previous action and the present action, there be identity in the thing sued on,

identity of the cause of action, identity of the persons and parties to the action,

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Case ID: 13070



and identity of the quality or capacity of the parties suing or sued. Bearoff v.

Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974).

101. In ejectment, privity binds persons who take title from the named

defendant; in this case, the Poor Boys. Fred E. Young, Inc. v. Brush Mountain

Sportsmans Ass’n., 697 A.2d 984 (Pa. Super. Ct. 1997) rearg. den.

102. Sixth Street Management has failed to prove Conrail or Railroad

Recovery, for that matter take title from the Poor Boys.

103. A judgment of ejectment against a party in possession is not binding

against a record owner of the property. Jordan v. Chambers, 226 Pa. 573, 75 Atl.

956 (1910); Notoro v. Estate of Hyer, 239 Pa. Super. Ct. 10, 361 A.2d 766 (1976).

104. Sixth Street Management did not prove Linda Miller is a successor in

title to Conrail.

105. Where a plaintiff has commenced an action of ejectment and neither

names as parties nor serves the persons (Linda Miller) in possession, a judgment

of ejectment is not binding on the possessor. Lacy v. East B.T.R.&R. Co., 83 D&C

111 (1952).

106. The defense tried to perpetuate its fraudulent action against Linda

Miller into a misrepresentation of the record.

9 Q. Mr. Enright, did Mr. Quinn request10 that the Deed be prepared identifying the

11 Grantee as Railroad Recovery, Inc.?12 A. It's a Quitclaim Deed of the13 confirmation of an earlier Deed so it has to14 have the same parties as the original Deed,15 which was Conrail and Railroad Recovery, Inc.16 Q. Do you recall why Mr. Quinn was17 requesting that the Deed be made to Railroad

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18 Recovery as opposed to Ms. Miller?

[Enright, at p. 69.]

7 A. If the request had been made to

8 prepare a Deed to Linda Miller, the request9 would have been declined because the10 transaction that Conrail was a party was with11 respect to Railroad Recovery, Inc.


107. All parties to the action must have had a full and fair opportunity to

defend.

The essential inquiry is whether the ultimate and controlling issueshave been decided in a prior proceeding in which the present partieshad an opportunity to appear and assert their rights.

Hochman v. Mortgage Finance Corp., 289 Pa. 260, 137 A.2d 252(1927); Callery et al. v. Blythe Twp. Mun. Auth., 432 Pa. 307, 312,243 A.2d 385 (1968).

108. Conrail and its vendee, plaintiff Railroad Recovery were missing and

dispensable parties to the 2008 ejectment, and are not bound thereby.

In re Freeman's Estate, 280 Pa. 273, 277, 124 A. 435, 436 (1924)("Appellants here were not parties to that proceeding, and thereforeit cannot be said that the question is res adjudicata as to them,though the same proposition, raised in the first case, is againpresented." (citations omitted)); Page v. Luhring, 211 Va. 503, 505,178 S.E.2d 527, 529 (1971) ("Our holding did not purport to, andcould not, affect the rights of persons who were not parties or theirsuccessors in interest.").

109. In Office of Disciplinary Counsel v. Kiesewetter, 889 A2d 47 (Pa.

2005), it was held a party need have a full and fair opportunity to defend herself

in the prior action.

The doctrine of collateral estoppel precludes relitigation of an issuedetermined in a previous action if: (1) the issue decided in the prior

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Case ID: 13070



case is identical to the one presented in the later case; (2) there wasa final judgment on the merits; (3) the party against whom the pleais asserted was a party or in privity with a party in the prior case;(4) the party or person privy to the party against whom the doctrineis asserted had a full and fair opportunity to litigate the issue in

the prior proceeding and (5) the determination in the priorproceeding was essential to the judgment.

110. There is not an identity of causes of action between the 2008

ejectment and this action.

As to the identity of cause of action, rather than resting on thespecific legal theory invoked, res judicata generally is thought toturn on the essential similarity of the underlying events giving riseto various legal claims. Whatever the conceptual difficulties inherent

in the definition of a "cause of action" often the presence of a singlecause of action is clear. Davis v. United States Steel Supply, 688 F.2d166 (1982), cert. denied 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d484 (applying Pennsylvania law). The Davis court recognized that indetermining whether a single cause of action is present one may consider the identity of the acts complained of, the demand forrecovery, the identity of witnesses, documents and facts alleged. Alack of identity of these facets would, of course, support theconclusion that there is no identity of cause of action.

In re Jones & Laughlin Steel Corporation, 328 Pa.Super. 442,

450-451, 477 A.2d 527, 531 (1984).

111. Sixth Street Management Corp. has not proved the identity of the acts

complained of, the demand for recovery, and the identity of witnesses, documents

and facts alleged, to sustain an identity of the cause of action.

112. Shirley Frisch is the owner [Frisch, p. 7 ln. 13] of Accurate Search

and Settlement Inc. [Frisch, p. 7 ln. 7] and testified concerning an abstract

performed for a title company, Brokers Land Settlement dated 11/3/2007

[Frisch, p. 10 ln. 1-11].

12 Q. And can you tell me what Plaintiff's Exhibit 1713 is that is in front of you?

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14 A. The title search on the property at 4455 North15 Sixth Street, Philadelphia.

[Frisch, p. 10; P17.]

113. Accurate Search and Settlement Inc. performed a search for a title

company, Brokers Land Settlement.

5 Q. And the customer's name was Brokers Land6 Settlement?7 A. That's correct.8 Q. Are you acquainted with Brokers Land Settlement?***.11 A. Yes, they were a client.

[Frisch, p. 12.]

114. The thing Sixth Street Management sued upon in the 2008 ejectment

was an Accurate Search and Settlement abstract which was limited by Brokers

Land Settlement to a 60 years search.

12 Q. Was Accurate's Search -- was Accurate asked to13 limit its search to a certain timeframe?14 A. Yes.

15 Q. And what was that timeframe?16 A. 60 years.[Frisch, p. 12.]1 Q. Did Brokers ever ask you to prepare a more2 comprehensive search?3 A. No.

[Frisch, p. 13.]

115. Accurate Search and Settlement was not asked to search for the

existence of a railroad deed, right of way or easement.

15 Q. Looking at Plaintiff's Exhibit 17 once again, the16 title search.17 A. Uh-huh.18 Q. And if you page through there, is there anything 19 that indicates to you that there was a request for a

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Case ID: 13070



20 search of a railroad right-of-way with reference to the21 property --22 A. No, there's nothing in reference to that at all.[Frisch, p. 20.]25 Q. And is there anything in the search -- request

1 for a title search that would indicate that it was2 looking for Conrail property?3 A. No. No, there's nothing.4 Q. And is there anything in there that specifically 5 asked for a search for a right-of-way between Fifth and6 Sixth Streets and Cayuga and West Annsbury Streets?7 A. No, because then we would have had to have8 searches on other properties.9 Q. So it would have had to have been a more10 extensive search?11 A. If you're asking for multiple properties that it

12 would have combined?13 Q. Uh-huh.14 A. It would have had to have additional properties15 searched.

[Frisch, pp. 21-22.]

116. The findings in the 2008 ejectment demonstrate the limited issues

resolved by that litigation. Missing from the 2008 ejectment are the Conrail

parties, the Conrail deeds, and the deeds of record prior to 1956.

117. Ms. Frisch testified as well her title report had been altered.

4 Q. And you've -- your attorneys and you have already 5 reviewed Plaintiff's Exhibit 17 and is that a complete6 report that was prepared by Accurate?7 A. Yes.8 Q. Taking a look at the cover page, are you aware of 9 another version of that cover page that may have had10 different information?

11 A. Yeah, that was why this letter was brought up.12 Q. The March 12th, 2012 letter?13 A. Correct.14 Q. Was Accurate asked to prepare a title report as a 15 basis of a lawsuit that was to be filed?16 A. No.

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[Frisch, p. 13.]

13 Q. I'm going to show you a document, if I could, I14 will have this marked as Plaintiff's Exhibit No. 16.15 This was Plaintiff's Exhibit D-3 in a prior deposition.

16 A. Yes.

[Frisch, p. 9; P.16.]

3 Q. And could you read the contents of the letter,4 please.5 A. I reviewed the additional two pages that you sent6 me with the discrepancy on the first page you sent over.7 It does not match what I have, nor is it my office's8 handwriting. This was done by someone other than my 9 office.

[Frisch, p. 9; P.16.]

118. The alteration was used as the basis of the 2008 ejectment.

20 Q. ***. Looking at that exhibit to the February 200823 lawsuit, I'd ask you if this page appears to be a copy 24 of the Accurate Search cover page of this title report25 that we previously marked as Plaintiff's Exhibit 17?1 A. It is the cover page, but it has additional2 handwriting on it.

3 Q. And looking at that exhibit to the Complaint once4 again, I'd ask you if the attachment to the Complaint is5 a full title report that Accurate had prepared?6 A. This is just the cover page.7 Q. And in looking at the exhibit to the --8 Plaintiff's Exhibit 18, the Complaint, I'll ask you if 9 there's handwriting on that page?10 A. There is, yes.11 Q. Okay. And would you please read the handwriting.12 A. No railroad right-of-way of record per Accurate.13 Q. Is that statement the report of Accurate Search?

14 A. This is not our handwriting.***.23 Q. Did Accurate place that statement on the cover24 page of its report?25 A. No, we did not.

[Frisch, p. 15-16; P18.]

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119. An attorney who is on notice his client has engaged in illegal conduct

is barred by the Pennsylvania Rules of Professional Conduct from advocating for

the fruit of that illegal conduct.

Pa. Rules of Prof'l Conduct R. 3.3 cmt. 2 ("This Rule sets forth thespecial duties of lawyers as officers of the court to avoid conduct thatundermines the integrity of the adjudicative process. A lawyeracting as an advocate in an adjudicative proceeding has an obligationto present the client's case with persuasive force. Performance ofthat duty while maintaining confidences of the client, however, isqualified by the advocate's duty of candor to the tribunal.Consequently, although a lawyer in an adversary proceeding is notrequired to present an impartial exposition of the law or to vouch forthe evidence submitted in a cause, the lawyer must not allow the

tribunal to be misled by false statements of law or fact or evidencethat the lawyer knows to be false."); Montgomery County Bar Ass'n v.Hecht, 456 Pa. 13, 20-22, 317 A.2d 597, 601-02 (1974) ("We mustnote, however, lest there be any misapprehension, that it would beanomalous indeed for us to condemn, as we do, a lawyer's knowingparticipation in the introduction of perjured testimony by a client,see EC 7-26, Code of Professional Responsibility, 438 Pa. XXV, atxciii, and at the same time condone the giving of such testimony by alawyer himself.").

120. Further, the alteration of Ms. Frisch’s title report was used as the

basis of the court findings in the 2008 ejectment.

8.

[Sixth Street Management’s] expert, real estate attorney andtitle company owner, utilized Accurate Search for 4455 NorthSixth Street to determine whether any prior deeds since 1956 disclosed an easement.

[Exhibit D19, pg. 4 ¶8.]

121. The decision in the 2008 ejectment relied upon Sixth Street

Management Corp. claim a railroad deed could not be found.

9.

*** Furthermore, the court established that the reservation andeasement, Exh. D-4, were located in a deed book “somewhere”and unable to be provided for evidentiary purposes during the bench trial. (Id. at 111).

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[Exhibit D19, p. 5 ¶9.]

122. A verdict of ejectment must sufficiently describe the land to be

awarded to the plaintiff to enable the court to enter a judgment and for the sheriff

to deliver possession. Miles Land Co. v. Pennsylvania Coal Co., 277 Pa. 63, 120

Atl. 767 (1923); Flynn v. Rodkey, 192 Pa. Super. Ct. 56, 159 A.2d 265 (1960).

123. The judgment of the court in the 2008 ejectment is no more specific

than to identify the metes and bounds as “plaintiff’s property.” [Exhibit D19,

Order.]

124. Under the Judicial Code, Pa.R Evid. 201(b)(2), 42 Pa.C.S., the court

may take judicial notice of matters appearing of record in prior cases.

Lycoming County v. Pa. Labor Relations Bd., 943 A.2d 333 (Pa.Commw. Ct. 2007) (commonwealth court may take judicial notice ofpleadings and judgments in other proceedings where appropriate,particularly where the other proceedings involve the same parties); Winning Evidence Arguments § 201:3 [Pa.] Rule [Ev.] 201(b)(2) ("Acourt will take judicial notice of its own acts and records in the same

case, (2) of facts established in prior proceedings in the same case, ofthe authenticity of its own records of another case between the sameparties, (3) of the files of related cases in the same court, (4) and ofpublic records on file in the same court.").

125. Sixth Street Management discontinued the 2011 action of ejectment

when it was assigned for trial by Judge Mazer Moss. [Exhibits P49-57.]

126. Sixth Street Management is bound by decision in its 2011 action of

ejectment.

VI. The easement theory.

128. The defense, as the proponents of the easement theory, have the

indubitable burden by clear and convincing evidence to prove the intent to create

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an easement.

129. See Swaby v. N. Hills Reg'l R.R. Auth., 2009 SD 57, 769 N.W.2d 798

(deeds that contained habendum clauses providing that if the railroad

abandoned its road, all right, title, and interest in the conveyed land shall revert

to the grantors, their heirs and assigns, created fee simple estates subject to a

condition subsequent as opposed to an easement).

130. See also Van Wert County Bd. of County Comm'rs v. Consol. Rail Corp.,

14 Ohio Misc. 2d 4, 469 N.E.2d 1361 (C.P. 1983) (grant of land to railroad, which

contained in habendum provision that the transfer was for “so long as said strip

may be required or used for passenger station purposes only,” and a reverter

clause providing that in case it was not used for passenger station purposes, it

would revert back to the County, created a fee simple and not an easement).

131. Severns v. Union Pac. R.R., 101 Cal. App. 4th 1209, 125 Cal. Rptr. 2d

100 (2002) (conveyance of strip of land to railroad transferred a fee simple

interest subject to a condition subsequent, and not an easement, even though

deed stated understood purpose of conveyance as a railroad rightofway, where

granting clause used word “grant” to convey designated strip, did not restrict

railroad to any particular use, contained language of inheritance, and contained a

detailed description of conveyance as a "strip of land sixty (60) feet wide," and

deed only referred to rightofway in reversion clause after granting clause, in

which it recited that strip would revert to grantors or their assigns if railroad

operations ceased for six months).

132. E. A. Dixon, Jr., who opined on the legal issue for the defense, showed

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his experience is that of a title insurance underwriter and adjuster, and who

briefly practiced law as a young lawyer and most recently in retirement

maintains an association with a law firm. [Exhibit D44.]

133. Dixon has never litigated any railroad title issues. [N.T. 3/16/2015, p.

11, ln. 5.]

134. Dixon has never defended any railroad title issues as a claims

adjuster or underwriter. [N.T. 3/16/2015, p. 11, ln. 10.]

135. Dixon submitted a written opinion letter. [Exhibit D43.]

136. Dixon’s letter erroneously opines,

an examination of the historical context in which a conveyance to arailroad was made, is essential to determining the intent of theparties.[Exhibit 43, pg. 2.]

137. To the contrary, the rules for interpretation of a deed are,

In interpreting this instrument certain rules of construction areapplicable: (1) the nature and quantity of the interest conveyed

must be ascertained from the instrument itself and cannot be orallyshown in the absence of fraud, accident or mistake and we seek toascertain not what the parties may have intended by the language

but what is the meaning of the words[,] Teacher v. Kijurina, 365Pa. 480, 486, 78 A.2d 197; Kimmel v. Svonavec, 369 Pa. 292, 295,85 A.2d 146; Caldwell v. Fulton, 31 Pa. 475; (2) effect must be givento all the language of the instrument and no part shall be rejectedif it can be given a meaning , Ivey Co. v. Franklin Associates, Inc.,

370 Pa. 225, 231, 232, 87 A.2d 236; Hardes v. Penn Charcoal &Chemical Co., 175 Pa.Super. 431, 436, 107 A.2d 176; (3) if a doubt arises concerning the interpretation of the instrument it will be

resolved against the party who prepared it, Wiegand v. Wiegand,349 Pa. 517, 520, 37 A.2d 492; Commonwealth to use of Herzog v.Henry W. Horst Co., 364 Pa. 403, 406, 72 A.2d 131; (4) unlesscontrary to the plain meaning of the instrument, an interpretationgiven it by the parties themselves will be favored, MonongahelaStreet Railway Co. v. Philadelphia Co., 350 Pa. 603, 618, 619, 39 A.2d909; Cirotti v. Wassell, 163 Pa.Super. 292, 60 A.2d 339; (5) 'to

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ascertain the intention of the parties, the language of a deedshould be interpreted in the light of the subject matter, theapparent object or purpose of the parties and the conditions

existing when it was executed', Baederwood, Inc., v. Moyer, 370 Pa.35, 40, 41, 87 A.2d 246, 248; Silverstein v. Hornich, 376 Pa. 536,

103 A.2d 734.

Brookbank, 389 Pa. 157, 131 A.2d, 107, ftnt. 6.

138. The defense has failed to prove that as of 1854, there existed any

historical guidance in drafting a railroad deed other than the historical legal

meaning attributed to the legal phrases utilized.

139. Attorney Miller, who testified for plaintiff, was consistent as to the

necessity to take affirmative action upon the occurrance of the condition

subsequent.

2 Q. Okay. And [the Dickinson deed] specifically uses the word3 repossess?4 A. Yes.5 Q. And does the phrase repossess have any 6 significance?7 A. It requires affirmative action.

8 Q. And what type of affirmative action would have9 to be taken?10 A. Well, an action at law. ***.14 A. Perhaps an action in equity, but affirmative15 action would have to be brought by the grantor to16 assert that the condition hadn't been met and to17 repossess.18 Q. Or had subsequently failed?19 A. Yes.20 THE COURT: Why is it under the21 language affirmative action required?

22 THE WITNESS: Because this is not23 language that conveys an automatic transfer of 24 rights.[N.T. 3/16/2015 pp. 200-201.]16 Q. Mr. Miller, let me ask this another way then.17 Where you use the phrase shall repossess, does that18 -- is that mandatory when you read that in the deed?

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19 Such as on line 6 as His Honor just pointed out20 where it says he or she shall thereupon repossess21 and enjoy the same. Does that require some22 mandatory action on the part of the grantor to take23 some type of action?

24 A. I think it suggests to me that action by the25 grantor is then necessary. It doesn't suggest to me2 that the -- that it's automatically -- that3 repossession is automatically realized. I think it4 requires action.5 Q. And when as the Court pointed out shall is6 used twice, shall revest and then use shall7 thereupon repossess, are those two phrases in8 conflict?9 A. I don't know that they're in conflict, but10 they connote different rights, one of title and one

11 of possession, and possession is not automatic. It12 requires affirmative action.13 Q. And in addition to litigation, is there14 another way? Can the parties amicably agree to some15 form or remedy?16 A. Sure.17 Q. And that frequently happens?18 A. Sure.19 Q. By creation of another instrumented deed?20 A. Yes.

[N.T. 3/16/2015 pp. 205-206.]

9 And I have to go a step further, Your10 Honor, and say that absent affirmative action11 by the grantor or the successors to the12 grantor, successors in title to the grantor, I13 would be concerned about latches. I would be14 concerned about the statute of limitations.

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

140. The defense may not parse the phrase, “upon condition that” from the

phrase “shall revest” and the phrase “shall thereupon repossess.” These phrases

are contained within the same sentence of the habendum to the 1854 Dickinson

deed.

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St. Michael & Archangel Russian Orthodox Greek Catholic Church v.Uhniat, 451 Pa. 176, 186, 301 A.2d 655, 660 (1973) ("A deed is to beinterpreted in light of the conditions existing when it was executedand the entirety of the language is to be considered."); Harvey v.Liberty Mut. Grp., Inc., 8 F. Supp. 3d 666, 675 (E.D. Pa. 2014)

("When the words of a contract are unequivocal, they speak forthemselves, and a meaning other than that expressed cannot begiven them. This court will not rewrite the contract or give it aconstruction that conflicts with the plain, ordinary, and acceptedmeaning of the words.'"). (quoting Muse v. Cermak, 428 Pa. Super.199, 630 A.2d 891, 893 (1993)).

141. Dixon correctly recognizes a failed condition in a conveyance of a fee

simple subject to a condition subsequent requires the grantor to take some

positive action to regain title or lose it

Implicit in such an estate is the requirement that the holder of thereversionary interest take some affirmative action to regain thetitle.

[Exhibit 43, pg. 4.]

142. (1) Dixon refuses to discuss the “the meaning of the words” of the

1854 Dickinson deed.

143. (2) Dixon denies, “effect must be given to all the language of the

instrument and no part shall be rejected if it can be given a meaning.”

144. Dixon fails to give meaning to all of the language of the 1854

Dickinson deed.

The phrase “the Entire and Exclusive use Right and liberty andprivilege of using occupying and Enjoying for railroad purposes” in

the granting clause limits the estate granted to railroad purposes.


And rejects the possibility of a reverter language.

upon condition that *** if it shall happen that the railroad

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contemplated to be now shortly constructed on and over the saiddescribed strip or piece of land *** shall be removed or abandoned*** then the said strip of land shall revest *** and she or they shallthereupon repossess ***.

145. (3) Dixon refuses to recognize the author of the 1854 Dickinson deed

is unknown, but was executed by both parties, accepting that both parties

participated in its creation.

146. (4) Dixon refuses to recognize the plain meaning of the 1854

Dickinson deed.

The enumeration of specific rights granted is inconsistent with the

grant of a fee, but consistent with the grant of an easement.


147. (5) Dixon attaches significance only to his perceived historical

context of railroad takings.

Considering the subject matter in this case to be a conveyance toa railroad in the mid 1800’s, the Dickinson Deed must be examinedin its historical context to determine the intent of the parties.


148. In fact, the North Penn had the power to take a right of way through

Dickinson’s estate against her consent under §10 of the General Railroad Law of

1849 (repealed).

Econ. Improvement Co. v. Woodlawn Elec. St. Ry., 19 Pa. D. 491, 494(C.P. 1909) ("[F]or the purpose of constructing, maintaining and

operating its line of railway, the defendant company has the right ofeminent domain, and by virtue thereof may take and occupy somuch land or material as may be necessary for the location,construction, and operation of its railway, either as an extension orrelocation of an existing line, or as a new line[.]"); Dimmick v.Broadhead, 75 Pa. 464, 467 (1874).

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

dollars, “upon condition that” that the land be used for railroad purposes, as well

as the right to “thereupon repossess” the strip of land. [P20, D80.]

150. Dixon’s testimony contradicts his report as to the meaning of the

habendum clause.

This clause appears to limit the grant into a fee simple subject toa condition subsequent or a fee simple determinable.


151. Dixon’s testimony contradicts his report, where he incorrectly

testified,

7 The reversionary interest type of fee8 is called a fee simple determinable.

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

152. Dixon’s report contradicts his testimony as, the report correctly

concludes certain indubitable language is required for a finding of a fee simple

determinable. Dixon correctly recognized a conveyance of a fee simple

determinable requires use of special words not present in the 1854 Dickinson

deed.

“Words of indubitable limitation, such as ‘so long as,’ ‘during,’ ‘while,’and ‘until,’ are generally used to create the fee simple determinable[citations omitted].” The Higbee Corporation v. Kennedy, 286Pa.Super. 101, 106, 428 A.2d 592, 595 (1981).

[Exhibit 43, pp. 3-4.]

153. Dixon correctly recognizes a conveyance of a fee simple subject to a

condition subsequent uses words such as the words used in the 1854 Dickinson

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deed.

Words such as “on the condition that” or “provided that” imply a feesimple subject to a condition subsequent.


154. Dixon’s report is internally contradictory due to his unexplained

“interpretation” of the habendum clause.

However, this interpretation of the habendum clause is inconsistent with the language of the grant in the Dickinson Deed which clearlygranted a railroad right-of-way, an easement, and not a fee.


155. The 1854 Dickinson deed habendum is not inconsistent with the grant

clause, but merely expands on the granting clause and defines the interest/estate

being conveyed.

Herr v. Herr, 2008 PA Super 227, ¶ 11, 957 A.2d 1280, 1286-87 ("Ahabendum clause is '[t]he part of a deed that defines the extent ofthe interest being granted and any conditions affecting the grant.'Black's Law Dictionary (7th Ed.) at 716; see Ontelaunee Orchards v.

Rothermel, 139 Pa. Super. 44, 11 A.2d 543, 545 (1940) ('Thepurpose of the habendum clause in a deed is to determine whatestate passes.').").

156. Dixon again contradicts his report by summarizing the Dickinson

deed.

13 Q. With respect to the concept of a fee subject14 to a condition subsequent, what would be the effect15 of that language in a deed involving railroad

16 interests?17 A. As soon as the property would cease to be used18 as a railroad, the holders -- or holder or holders19 of the right of reentry or as the restatement calls20 it, the power to terminate, must reenter the21 property. ***.

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

157. Referring to the 1854 Dickinson Deed, Dixon’s ultimate contradiction

is his statement, “in my view that it was firm that what we were talking about

was a railroad easement and that there were no reversions involved.” Hence,

finding the strip of land did not revert to the defendants.

158. Referring to the 1854 Dickinson Deed, Dixon’s penultimate

contradiction is his statement,

9 They don't use easement or railroad easement because10 the term -- it wasn't -- in those days 1850, it

11 wasn't an easement at that point. It commonly was12 understood. We were only analogizing to an easement13 of public street easement is what the Courts say.14 So they're being worried about what -- they're15 trying to be explicit because there is no law at16 that point. There is no firm law here. So they're17 trying to lay out what they intend, and so they're18 saying it's for the use, and they say but if you19 should stop using it, as we go on, if I may, to be20 enjoyed for railroad purposes, and then they go on21 to describe the next page.

[N.T. 3/16/2015, p. 36.]

159. Contradictory expert evidence on behalf of a party cannot support a

judgment.

Simmons v. Mullen, 231 Pa. Super. 199, 213-14, 331 A.2d 892, 900(1974) ("Contradiction among a party's experts is only fatal,however, if there is absolute conflict in their ultimate conclusions.").

160. Dixon’s report erroneously concludes the grant and the habendum

are inconsistent, and erroneously states the law.

Where the granting clause and the habendum clause areinconsistent, the granting clause prevails.

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

161. Dixon contradicts his report by opining the grant and the habendum

of the 1854 Dickinson Deed are not inconsistent.

13 Q. Did you find any inconsistency in the14 Dickinson deed between the granting language in the15 granting clause and the language in the habendum16 clause?17 A. I did not, ***.[N.T. 3/16/2015, p. 39.]6 ***.” Is there7 any conflict between [the hadendum] and the grant clause8 beginning in the paragraph that says "witness" above9 it?

10 A. Not to my -- I don't see any conflict.

[N.T. 3/16/2015, p. 73, lns. 19 - p. 74 ln. 10; N.T. 3/16/2015, p. 74, lns.

17 - p. 75 ln. 8.]

162. To the contrary, in Herr v. Herr, 957 A.2d 1280 (Pa.Super. 2008), the

court defined the habendum clause as,

"[t]he part of a deed that defines the extent of the interest being

granted and any conditions affecting the grant." Black's LawDictionary (7th Ed.) at 716; see Ontelaunee Orchards v. Rothermel,139 Pa.Super. 44, 11 A.2d 543, 545 (1940) ("The purpose of thehabendum clause in a deed is to determine what estate passes.").

163. The habendum in the 1854 Dickinson deed does not enlarge the estate

granted, but defines it.

TO HAVE AND TO HOLD the rights and premises aforesaid untothe said The North Pennsylvania Rail Road Company, their

successors and assigns forever , upon condition that the saidCompany, its successors or assigns, shall make, maintain, keep anduse upon the aforesaid piece of land a Rail Road, and if it shallhappen that the railroad contemplated to be now shortlyconstructed on and over the said described strip or piece of land orany renewals or reconstructions thereof, shall be removed orabandoned or the said described piece of land shall cease to be used

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for Rail road purposes, then the said strip of land shall revest in thesaid Sally Norris Dickinson, her heirs and assigns, as of her and theirfirst and former Estate, and she or they shall thereupon repossess

and enjoy the same as if this present Indenture had never beenmade.

[Exhibit P1, P2, D80.]

164. Dixon concludes the following points support his interpretation of the

unexplained “interpretation” of the 1854 Dickinson deed.

1. The grant was for a limited purpose: railroad use;

2. The land conveyed was a narrow strip cutting across the grantor’s

property;

3. There was no warranty of title.

4. The habendum clause recites what would happen as a matter of

law if the railroad abandoned the right-of way.


165. In Kapp v. Norfolk Southern Railway Co., 350 F.Supp. 2d 597 (M.D.Pa.

2004), it was reviewed by the court,

Easements may be created by express agreement, by implication, by estoppel, or by operation of law.

Kapp, at 9.

166. An express easement, is one which is in writing and recorded.

Express easements are often created by deed reservation, in

which the grantor reserves a right to use the conveyed property for a certain purpose. See Brady v. Yodanza, 425 A.2d 726, 727-28(Pa. 1981). A deed that contains such a reservation imposes aneasement on the conveyed tenement, which thereafter is consideredthe servient estate. (citation omitted.) The owner of the property benefitted by the easement (the dominant estate) may then use theservient estate for the purpose stated in the deed, regardless of

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subsequent divisions or transfers of ownership of the servient estate.

Kapp, at 9.

167. Under this definition, the dominant tenement is the rail roadbed

conveyed by Dickinson. Dickinson did not reserve a right to herself to use the rail

roadbed conveyed.

168. Dickinson did not reserve a benefit to herself to use the rail roadbed

conveyed.

169. To the contrary, Dickinson conveyed the strip of land “upon condition

that the said” North Penn build and operate a railroad. [P58.]

170. Andrew Miller, Esquire, a real estate specialist and title agent trstified

for plaintiff as to the meaning of the phrase “upon condition that.”

12 Q. And what do the words "upon the condition13 that" mean?14 A. It means that there is a condition to the15 grant, and if that condition is not met or -- if 16 that condition is not met -- or to say it another

17 way. If a certain event occurs, then there are18 consequences.

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

171. Dixon disagrees the use of the magic words of a fee simple subject to a

condition creates such a grant.

24 Q. Whereas a condition subsequent would use words25 such as upon condition that?

2 A. Yes, that's one of them.3 Q. And in particular that's the specific language4 that is used in D-58, the deed from Ms. Dickinson to5 the railroad?6 A. I agree that it's the language that's used in7 there. I don't agree with your implication.

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

172. Hence, by definition, the 1854 Dickinson deed cannot be an easement.

VI. The Dixon theory.

173. Dixon claims reliance upon Brookbank v. Benedum Trees Oil Co., 389

Pa. 151, 131 A.2d 103 (1957), as authority for his easement theory.

174. Brookbank involved a 1903 "agreement" between the landowners and

the railroad.

175. The Brookbank “agreement” provided in pertinent part as follows,

Know All Men By These Presents, That, J. J. Ingraham and Anna Ingraham parties of the first part, for and inconsideration of the sum of Three Hundred Dollars, lawfulmoney of the United States, duly paid by the railroad companyhereinafter mentioned, to us, receipt of which is herebyacknowledged, have granted, bargained, sold, released and

conveyed unto the Susquehanna and Southern RailroadCompany, a corporation organized under the laws ofPennsylvania, its successors and assigns, a strip of land fourrods in width, and, through cuts and fills such additional widths as may be needed for slopes, onehalf thereof on either

side of the center line as now located, of the Susquehanna andSouthern Railroad, leading from Sinnemahoning,Pennsylvania, to DuBois, Sykesville, &c., through lands of the parties above mentioned, situate in Gibson Township,

Cameron County, Pennsylvania.

Together with the right to enter upon the said land andlay out, construct, maintain and operate a railroad over andacross the lands belonging to the parties above mentioned,taking and using such earth, stones and gravel, as may beneeded for grading and filling such road, and hereby fullyreleasing said railroad company, its successors and

assigns, from all liability by reason of the location,construction and operation of the said railroad.

A good farm crossing and cattle guard on each sidethereof to be built and maintained by said Company .

Id. at 154-55, 131 A.2d at 106.

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176. The court in Brookbank paid particular attention to the fact that,

“these words [“granted, bargained, sold, released and conveyed”] are used in the

past, rather than the present tense.”

The words grant, bargain, etc., must be interpreted in the light of theentire instrument, particularly since these words are used in thepast, rather than the present tense. These words, used in the pasttense, do not, standing alone, compel an interpretation that a fee wasintended to be conveyed.

Id. at 160, 131 A.2d at 109.

177. Unlike the Brookbank “agreement,” the 1854 Dickinson deed uses the

terms “grant, bargain, sell, release, and confirm” in the present tense.

178. The Brookbank court as well questioned why the “agreement” would

specify the uses that the railroad could make of the property, if the intent was to

convey a fee.

The language of the second paragraph spells out specificallycertain rights given to the railroad and also a release running fromthe landowner relieving the railroad of certain possible liabilities.

The railroad is given the 'right to enter upon said land, to lease, use,construct, maintain and operate a railroad over and across the land* * * taking and using such earth, stones and gravel as may beneeded for grading and filling such road'. The rights thus granted—the right of entry, the right to use, construct, maintain and operate arailroad, the right to use earth, stones and gravel to grade and fillthe roadbed—are all rights which naturally and lawfully arise fromownership of land in fee simple. If the parties intended the railroadto receive a fee in this land, this language would give it those rights which it already had. If the parties intended to convey a fee simpleinterest to the railroad, it was surplusage to give the railroad these

rights because such rights would naturally belong to the railroad asholder of the fee. The only rational conclusion from this language isthat the parties did not intend to vest in the railroad any interest infee simple; any other construction does violence to the expressedgrant of these rights to the railroad.

Id. at 163, 131 A.2d at 110 (footnote omitted).

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179. The 1854 Dickinson deed, unlike the agreement in Brookbank, does

not go into further detail about other uses that the railroad can make of the land,

i.e., using and taking earth, stones, and gravel from the land; which Dixon

claimed created an easement. [N.T. 3/16/2015, p. 21, lns. 18-25; p. 65, lns.

16-22.]

180. The “for railroad purposes” language was clearly inserted in the deed

to ensure that the railroad would use the land as a railroad; and when no longer

used for railroad purposes, Dickinson could “thereupon repossess.” But this

language did not convert it into a mere easement.

181. The railroad "acquired thereby a qualified fee, which is nonetheless a

fee simple, even though the use of the land may be limited by the qualification."

City of Pittsburgh v. Pa. R.R., 394 Pa. 58, 145 A.2d 700, 704 (1958) (where deed

under which railroad acquired land for relocation of street provided that any part

of land conveyed remaining after relocation of street should be used only as a

slope for such street, railroad acquired a fee simple, even though use of land was

limited by the qualification).

182. Unlike the “agreement” in Brookbank, the 1854 Dickinson deed

contains a clear habendum.

183. If the intent of the 1854 Dickinson deed was to create an easement,

then there would have been no reason to have an habendum clause. The

Brookbank court stated,

Bearing on the character of this instrument is the omission ofhabendum, tenendum and warranty clauses. If the railroad intendedto receive a fee, is it likely that it would not have required of

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Ingrahams a warranty of their title? If the railroad intended toreceive a fee, is it likely that a habendum clause—descriptive of theextent of the estate conveyed—would have been omitted? It seemsinconceivable that the railroad would have omitted these clausesfrom an instrument of conveyance under whose terms they intended

to receive a fee simple estate.

389 Pa. at 162-63, 131 A.2d at 110.

184. Stated another way, why would the 1854 Dickinson deed contain an

habendum providing the grantor with a right to retake title to the property if the

parties to the deed merely intended to create an easement, which easement

would automatically extinguish upon an abandonment thereof?

185. The language of the 1854 Dickinson deed provides the railroad with

the assurance, that the grantor herself has not done anything to defeat the estate

granted. Whitehill v. Gotwalt, 3 Pen. & W. 313, 1832 WL 3080 (Pa. 1832) (the

words "grant, bargain and sell" do not, under the Act of May 28, 1715, 1 Sm.L. 94,

21 P.S. §8 note, amount to a general warranty; but to a covenant that the grantor

has not done any act, nor created any incumbrance, whereby the estate granted

by him may be defeated).

186. Sally Norris Dickinson, at the time of her death in October 1855, was

the owner of a sizable, irregular parcel of land, comprising much of North

Philadelphia, from C Street to the east, 7th Street to the west, Nicetown Lane to

the south and the former Wingohocking Creek [Annsbury Street] to the north.

[Exhibits D39, D76, plan of property #1.]

187. Dickinson named this tract the Crosia Dore Plantation, today known

as the “badlands.” [Exhibits P39, D76, plan of property #1.]

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

above Walnut Street in center city Philadelphia [Exhibit D76, plan of property

#B], and on Shackamaxon Street near Delaware Avenue [Exhibits D76, plan of

property #3].

189. As well, Exhibit D76 references estates in Kent and New Castle

counties in Delaware.

190. As such, in 1854 Dickinson was a substantial land owner with

substantial bargaining power.

191. See, e.g., In re Laurel Run Corp., 166 B.R. 242 (Bankr. M.D. Pa. 1994)

(agreement between landowner's predecessor in title—railroad and grantor

conveyed to railroad fee simple title in surface estate and right to surface

support, rather than mere right of way, even though deed did not contain a

warranty of title provision or specific language).

192. In addition to the grant clause, the 1854 Dickinson deed granted to

the North Penn the incidents, easements and appurtenances to the strip of land.

TOGETHER with the incidents, easements and appurtenancesthereunto belonging.

193. Dixon asserts an easement may convey an easement.

10 Q. So what you're saying is this is an easement11 which conveys easements?12 A. Well, this is standard language for any

13 conveyance. But, yes, anything that was incidental14 to their rights. ***.

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

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

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Rusciolelli v. Smith, 195 Pa. Super. 562, 569, 171 A.2d 802, 806(1961) ("If this is an easement in gross, personal to Didions, it isgenerally held to be nonassignable unless it is made assignable bythe instrument creating it." (citations omitted).

195. Unlike the “agreement” in Brookbank, the 1854 Dickinson deed in

numerous places refers to, for example, "all that strip of land," "said strip of land"

and specifies the acreage. This sort of language, used repeatedly, is inconsistent

with an intent to convey a mere easement. See, e.g., Gregory v. United States, 101

Fed. Cl. 203 (2011) (deeds conveying "a strip of land" to railroad conveyed fee

titles, rather than easements).

196. The Brookbank “agreement” expressly released the railroad from

liability arising from its location, construction, and operation of the railroad;

which may well have included a release of liability for compensation for the prior

taking under the General Railroad Law of 1849.

The landowner further releases the railroad from any liabilityarising from the location, construction and operation of the railroad.

If the railroad were given under this instrument a fee interest in thisland the railroad would have a complete right to locate, constructand operate a railroad over the land. The only situation where anyliability might accrue to the railroad from the location, constructionand operation over this land would be in the event the railroadsecured simply a 'right of way' over the land.

Brookbank, 389 Pa. at 163, 131 A.2d at 110.

197. The 1854 Dickinson deed did not have release-of-liability language

since it conveyed a fee simple interest.

198. The Brookbank court as well considered the amount of consideration

recited in the deed.

A circumstance which can be a factor in the determination of the

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question of the quantum of the estate intended to be conveyed is theamount of consideration shown to have been paid by the railroad.

Id. at 159, 131 A.2d at 108.

199. The recited consideration in Brookbank was $300.

200. The purchase price for plaintiff’s .6 mile strip of land was $18,000.00.

[Exhibits P4, P4A, D2.]

201. The 1854 Dickinson deed conveyed an .8 miles strip of land extending

from the Nicetown Lane northward to the former Wingohocking Creek, for

consideration of $9,356.67 in 1854 dollars. [N.T. 3/16/2015, p. 96 lns. 14-16.]

202. This court may take judicial notice of the data published by the

Federal Reserve Board of Minneapolis interpreting the time value of $1.00 of

1854 dollars today.

In re Appeal of John Wanamaker, Phila., 360 Pa. 638, 644, 63 A.2d349, 352 (1949) ("We also can take judicial notice that because ofthe devaluation of our currency and the inflationary trends, when you express value in terms of dollars, they are not the dollars you

were talking about one, two or six years ago. It takes more dollarstoday to buy things which less dollars would previously have bought. We cannot shut our eyes to this plain fact."); In re Snider Farms, Inc.,83 B.R. 977, 997 (Bankr. N.D. Ind. 1988) ("This court takes judicialnotice of selected interest rates as announced in the December 14,1987 Federal Reserve Statistical Release H.").

203. The formula used by the Federal Reserve Board of Minneapolis to

calculate the time value of money in 2014 dollars is as follows.

What is $1 in 1854 worth in 2014?

2014 Price = 1854 Price x (2014 CPI / 1850 CPI)

2014 Price = $9,356.67 x (712.5 / 27)

2014 Price = $9,356.67 x $26.38

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2014 Price = $246,912.12

https://minneapolisfed.org/community/teaching-aids/cpi-calculator-

information/consumer-price-index-1800

204. $9,356.67 in 1854 dollars is equal to approximately $246,912.12 in

2014 dollars.

205. Dixon as well claims reliance upon Quarry Office Park Associates v.

Philadelphia Electric Co., 394 Pa. Super. 426, 576 A.2d 358 (1990), as authority

for his easement theory.

206. The Quarry Office Park “agreements” provided in pertinent part as

follows,

Know all Men by these Presents, That I, [name of landowner] ofChester County, for and in consideration of the benefits which mayor shall result to me from the construction and completion of theChester Valley Rail Road, and in consideration of the sum of One

Dollar , to me in hand paid by the Chester Valley Rail Road Company,the receipt whereof is hereby acknowledged, have granted, bargained, sold, conveyed and confirmed, and by these presents do

grant, bargain, sell, convey and confirm unto the said the Chester Valley Rail Road Company, their successors and assigns, the right,liberty, and privilege of entering upon and occupying the land belonging to me on and near the route of said Rail Road, (as the

same is prescribed and defined in an Act of the General Assembly ofthe Commonwealth of Pennsylvania, passed on the 22d day of April, A.D., 1850 creating the said Company,) to the extent of thirty three(33) feet in width of the said land on each side of the centre line ofsaid Rail Road, and such additional width as may be necessary in theconstruction and use of said road at deep cuttings andembankments, but to no other or greater extent in width; and

extending in length of the width aforesaid, [description of length]and also the right of using, occupying, and enjoying the said landperpetually, for all the uses and purposes convenient or necessaryfor a Rail Road. And I do hereby release to the said The Chester Valley Rail Road Company, all claim for or right to any damages which have accrued, or may or can accrue to me and to my heirs,executors, administrators and assigns, for or by reason of the said

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https://minneapolisfed.org/community/teaching-aids/cpi-calculator-information/consumer-price-index-1800








Company's taking, holding, or using the said land, to the extentherein above described, or any part thereof, for the use and purposeaforesaid.

Id. at 431-32, 576 A.2d at 360-61.

207. The Quarry Office Park court explained the recited language created

an easement.

The present agreements contain no clauses requiring that thelandowners warrant their title to the property or describing theextent of the estate conveyed. The Brookbank court found it“inconceivable that the railroad would have omitted these clausesfrom an instrument of conveyance under whose terms they intendedto receive a fee simple estate.” Id. at 16263, 131 A.2d at 110. The

agreements specify that the Chester Valley Rail Road has the right,liberty, and privilege of entering upon and occupying the land andthe right of using, occupying, and enjoying the said land perpetually,for all the uses and purposes convenient or necessary for a RailRoad. As the Brookbank court noted, “[i]f the parties intended toconvey a fee simple interest to the railroad, it was surplusage to givethe railroad these rights because such rights would naturally belongto the railroad as holder of the fee.” Id. at 163, 131 A.2d at 110.Finally, the instant agreements release the Rail Road Company fromall claim for or right to any damages resulting from the Company'staking and using the land for the construction and use of the

railroad. The Brookbank court held that a similar release indicatedthe conveyance of a right of way, because if a fee interest had beenconveyed, the railroad would have a complete right to build andoperate a railroad over the land. Id. at 16364, 131 A.2d at 110. Giventhe close parallel between the instrument of conveyance inBrookbank and the agreements at issue here, we hold that theChester Valley Rail Road Company secured a right of way forrailroad purposes by virtue of the instruments of conveyance.

Id. at 435-36, 576 A.2d at 362-63.

208. The grantor in Quarry Office Park retained a benefit to herself coming

from the rail roadbed conveyed.

209. The “agreements” in Quarry Office Park did not contain an habendum

clause.

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

railroad company from all claims and damages resulting from the company's

taking and using the land for the construction and use of the railroad.

211. The 1854 Dickinson deed does not contain such a release.

212. Dixon as well relies upon Mackall v. Fleegle, 2002 PA Super 178, 801

A.2d 577 (1990), as authority for his easement theory.

213. The Mackall release provided as follows,

Know all men by these Presents, That the undersigned,owners of Real Estate of the County of Bedford in the State of

Pennsylvania, for and in consideration of the benefits andadvantages which will result to us from the location andconstruction of the Bedford and Bridgeport Railroad and in

further consideration of the sum of One Dollar to us in hand paid bythe Pittsburgh and Connellsville Railroad Company have bargained,sold, released and quitclaim unto the Pittsburgh & ConnellsvilleRailroad Company, and their successors and assigns forever, for theuse of the said Bedford & Bridgeport Railroad Company, a strip ofland four rods in width, and such additional width as may berequired and necessary in the construction, repair and use of adouble track for said Bedford & Bridgeport Road extending in length

as far as the Railroad may pass over our lands, together with suchadditional land on either or both sides of the aforesaid piece of landas may be required for the slopes of the cuts and embankments ofsaid Road, together with the rightofway over said tract of land belonging to us sufficient to enable said Company to conduct andcarry water by aqueducts and pipe and the right to make properdrains. To have and to hold the same, together with the privilegesaforesaid, to the Pittsburgh and Connellsville Railroad Company,their successors and assigns forever, for the purpose of the Railroadaforesaid, with all and singular the appurtenances thereunto belonging. And we do further covenant, agree and bind ourselves, by

these presents, to execute a further deed of conveyance to Bedford &Bridgeport Railroad Company, fully describing said land hereby soldto them, whenever the same may be demanded by said Company, ortheir agent, after said road shall have been permanently locatedthrough our lands, and we do hereby release to the said Bedfordand Bridgeport Railroad Company all claim for or right to

damages which may accrue to us for or by reason of the

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appropriation and occupancy of the said land by said Company. Theundersigned further agree that the said Bedford and BridgeportCompany shall have the privilege of removing from any of ourlands adjacent said Road, any gravel, stone and other materialthat they may find necessary to the construction, repair and use

of said Road, and also the right and privilege of casting earth uponand otherwise using so much of the land on both sides of the landhereby conveyed as may be necessary for the convenience of thesaid Company while the said Railroad is being constructed.

Id. ¶ 2, 801 A.2d at 579.

214. In holding that the 1870 release created only an easement, the

Mackall court explained,

Construing the document as a whole, in its most basic form, itappears that the grantors intended to allow the railroad to use astrip of land of a certain width which would run over the grantors'land to construct and operate a railroad track. Allowance was madefor the railroad to use additional land as necessary to fashion thecuts and embankments necessary to the construction of the track. Inaddition to the construction of the track, the railroad was alsogranted a right of way over the aforementioned strip of land belonging to the grantors to conduct and carry water via pipelineand aqueduct. The railroad was also granted permission to use orremove any gravel or stone it needed for its construction from the

surrounding land. The railroad was released from all liability whichmay have accrued or would accrue to the grantors due to therailroad's use of the strip of land. Finally, the grantors agreed toexecute a “further deed of conveyance” in the future, the terms of which are unspecified, to the railroad should the railroad demandthat they do so. The document does not specify exactly whichstrip of land was to be used, nor does it specify that the grantorsrelinquished or sold to the railroad their interest in or title to aspecific strip of land. Accordingly, we hold that the Trial Courtcorrectly found that the document granted the railroad an easementand not a fee simple interest in an unspecified strip of land 66 feet

wide upon which the railroad constructed a length of track.

Id. ¶ 12, 801 A.2d at 583.

215. The 1854 Dickinson deed does not talk about the railroad using

additional land to assist in the construction of a track.

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216. The 1854 Dickinson deed does not give a right-of-way over additional

land of the grantor or allow the railroad to take materials from the surrounding

land needed to construct the track.

217. The 1854 Dickinson deed does not contain a release of liability

provision.

218. The 1854 Dickinson deed does not provide for the additional

execution of instruments between the parties.

219. Dixon as well claims reliance upon Lawson v. Simonsen, 490 Pa. 509,

417 A.2d 155 (1980), as authority for his easement theory.

220. The Lawson court held an 1881 “release” conveyed only an easement

to the railroad.

221. The Lawson “release” provided in pertinent part as follows,

Know all men by these presence [sic] that Henry Cobham of theBorough of Warren, County of Warren and Commonwealth ofPennsylvania and Ann Cobham, his wife, for and in consideration of

the public and private advantages prospectively resolving from theconstruction of the proposed extension of the Buffalo, Pittsburgh and Western Railroad as well as of the sum of one dollar to them in hand

paid, receipt whereof is hereby acknowledged do hereby grant andrelease unto the Buffalo, Pittsburgh and Western Railroad Companyand its successors so much of the land of the said Henry Cobham and Ann Cobham, situate in the Township of Glade in the County of Warren aforesaid as may be necessary and convenient thereforeaccording to the provisions of the Act incorporating said companyand other laws relating thereto, without further lot or hindrancefrom them, their heirs or assigns, the land hereby released or

intended so to being a piece or strip of land four rods (66 feet) in width extending through and along the line of survey of said railroadcompany (premises herein described).

The land hereby granted and released or intended so to be, beingthe legal right of way of said railroad company through the abovedescribed land, said right of way not to exceed four rods (66 feet) in width 33 feet on each side of the center of the main track.

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The said Henry Cobham and Ann Cobham also grant and releaseunto the said railroad company land sufficient for the said companyto construct a public or wagon road upon in place of the one occupied by the said company * * *.

Id. at 514-15, 417 A.2d at 158.

222. The Lawson court paid particular attention to the lack of an

habendum clause in the release.

223. The Lawson court as well focused heavily on the consideration recited

in the “release”—$1.00.

Here, the consideration was only $1.00. The land in question

apparently extends 33,415 feet and is 66 feet wide. Surely even in1881 the sum of $1.00 was insufficient to convey a fee interest in astrip of farm land 66 feet wide and 6 miles long.

Id., 490 Pa. at 515-16, 417 A.2d at 159.

224. Dixon as well claims reliance upon Fleck v. UniversalCyclops Steel

Corp., 397 Pa. 648, 156 A.2d 832 (1959), as authority for his easement theory.

225. The 1885 grant in Fleck specifically referred to,

a rightofway through and over said land the whole distance of saidrailway through the same.

Id. at 648, 156 A.2d at 833.

226. The Fleck court explained that,

[t]he granting clause of the 1885 McKeon deed recited theconveyance of “a rightofway through and over said land,” indicatinga mere surface interest, i. e., an easement and not a fee (base or

absolute).

Id. at 651, 156 A.2d at 834.

227. The 1854 Dickinson deed does not refer to a “right-of-way.”

228. The instrument in Fleck did contained an habendum providing,

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To Have And To Hold The Said Strips Of Land And The Said Rightsand privileges and uses to the said Pittsburgh, Chartiers and Youghiogheny Railway Company, its successors and assigns, so longas the same shall be required for the uses and purposes of saidRailway.

Id. at 648, 156 A.2d at 833.

229. However, the Fleck court found that the language of the habendum

was entirely inconsistent with the language in the granting clause purporting to

convey a “right of way.”

230. The Fleck court explained that,

if and where the granting clause and the habendum clause of a deedare inconsistent, conflicting or repugnant, the granting clause mustprevail.

Id. at 652, 156 A.2d at 834.

231. There is not an actual conflict between the granting and habendum

clauses with respect to the 1854 Dickinson deed.

VIII. Non-use of express easement.

232. It makes no difference whether the court interprets the 1854

Dickinson deed, which uses the phrase “upon condition that the said Company” to

be a fee simple subject to a condition subsequent or interprets the phrase to grant

an easement.

233. Dixon is erroneously misinformed whether some action is required to

extinguish an interest granted by easement.

7 Q. And what would be the case of an easement?8 A. As soon as ConRail abandoned the use, the9 landowners on each side of that track would have10 immediate right to possess and full title would be11 returned to them without any action on their part

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12 whatsoever.13 Q. No action whatsoever under an easement?14 A. Correct.

[N.T. 3/16/2015, p. 101.]

234. The interest in the North Penn obtained from Dickinson was created

by a recorded deed. [P58.]

235. In Werry v. Sheldon, 148 Pa.Super. 13, 18, 24 A.2d 631, 633 (1942),

Superior court held an express easement cannot be automatically extinguished.

We place no weight to appellees' contention that the evidenceestablished a non user of this road by the plaintiffs or their

predecessors in title and that it constituted an abandonment thereof.This easement, created by a grant, cannot be extinguished oraffected by non user unless it is shown by some positive, adverse,and hostile interference by one who claims that the easement has been extinguished, or the loss of title in some other way recognized by law. No such situation is present. It is not necessary that an owner of an easement appurtenant toland should make use of it to maintain ownership: Weaver v. Getz, 16Pa.Super. 418.

[N.T. 3/16/2015, p. 101, lns. 15 - p. 102 ln. 7.]

236. In The Baptist Church In The Great Valley v. Urquhart, 406 Pa. 620,

629, 178 A.2d 583, 587 (1962), Supreme court upheld,

The fact that appellants did not insist upon the use of the right of way for several years is not controlling. Mere nonuse, no matter howlong extended, will not result in extinguishment of an easementcreated by deed, Graham v. Safe Harbor Water Power Corp., 315 Pa.572, 173 A.2d 311 (1934).

237. In Hatcher v. Chesner, 422 Pa. 138, 141-142, 221 A.2d 305, 307-308

(Pa. 1966), a rail roadbed was created by deed in 1894, however, the road had

not been used for some 35 years. Supreme court therein held,

The problems raised by the defenses of abandonment and adverse

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possession are so interrelated that they must be considered together.

The Restatement of Property, §504 (1944), recognizes that aneasement may be lost by abandonment. ***. A number of statesadhere to this view. ***. Pennsylvania, however, has always been reluctant to accept this

theory. Instead, where an easement is created by deed, Pennsylvaniahas required not only intent to abandon by the dominant tenement, but adverse possession by the servient tenement as well: Richmond v. Bennett, 205 Pa. 470, 55 A. 17 (1903). Thus the Pennsylvaniacourts look not only to the actions and intentions of the dominanttenement with which the Restatement limits its consideration, butalso to the Intentions and actions of the servient tenement as well.The rationale behind the Pennsylvania rule was stated in Lindeman v. Lindsey, 69 Pa. 93, 100 (1871), wherein this Court said: 'A manought not to be obliged unless he requires it, actually to use a right orprivilege secured to him by deed, nor resort to legal proceedings

unless his title is denied, and he is actually ousted, disseised,obstructed or prevented by some wrongdoer from an enjoyment of it when he requires and demands such enjoyment.' It is clear from thisand later cases that our courts equate ownership of an easement with ownership of a fee for these purposes. See, Weaver v. Getz, 16Pa.Super. 418 (1901). Another factor in the view held by this state isthe general dislike of forfeiture by our courts. See, Corey v.Edgewood Borough, 18 Pa.Super. 216 (1901).

238. Attorney Miller’s testimony was of the opinion, based upon the cases,

that a recorded easement, similar to a recorded fee, cannot be lost by non use,

under Pennsylvania law.

8 Q. Mr. Miller, if you can turn to page 99 of the9 Piper case, the highlighted part of the full10 paragraph on that page, sir.11 A. Right, that's what His Honor was just12 referring to. "While the owners of the dominant13 tenement may have made infrequent use of the14 right-of-way, these facts alone will not terminate

15 an express easement."16 Q. And an express easement traditionally means17 one that is written?18 A. Yes.

[N.T. 3/16/2015 p. 217.]

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239. In Piper v. Mowris, 466 Pa. 89, 98-99, 351 A.2d 635, 639 (1976), it

was said,

In order for the servient tenement to establish abandonment

'Pennsylvania law requires that there be a showing of intent of theowner of the dominant tenement to abandon the easement, coupled with either (1) adverse possession by the owner of the servienttenement; or (2) affirmative acts by the owner of the easement thatrenders the use of the easement impossible; or (3) obstruction of theeasement by the owner of the easement in a manner that isinconsistent with its further enjoyment. ***.

As to the question of adverse possession, this Court has held that'the adverse possession that will bar easements must be actual,continuous, adverse, visible, notorious, and hostile possession of theland in question for twenty-one years.

240. The evidence of an intent to abandon the right of ownership must be

clear and persuasive. Iorfida v. Mary Robert Realty Company, Inc., 372 Pa.Super.

170, 179-180, 539 A.2d 383, 388 (1988).

Arising by implication by reference to maps in deeds of conveyance,the rights of the dominant owners can be extinguished only on ashowing of affirmative conduct or physical obstruction on their parts which is inconsistent with its further enjoyment. Sabados, 258

Pa.Super. at 535, 393 A.2d at 487. It is fundamental that merenonuse of an easement, no matter how long continued, does notmanifest an intent to abandon it; an owner of an easementappurtenant to land is not required to use it in order to maintainownership of it. Hatcher, 422 Pa. at 140, 221 A.2d at 307;Philadelphia Music Academy, 345 Pa.Super. at 448, 498 A.2d at 908. As this court stated in Sabados, "mere nonuse is but the exercise ofownership, not its surrender." Id. 258 Pa.Super. at 539, 393 A.2d at489. Therefore, whether or not appellants had in the past or couldpresently traverse the alley other than on foot was irrelevant to afinding of abandonment. ***.

While evidence of acquiescence in the adverse acts of otherdominant owners can be relevant to the issue of intent to abandon,requiring a dominant owner to legally complain on pain ofextinguishment of his easement rights is repugnant. Forfeiture ofpossessory rights is "an abhorrence and greatly disfavored."Sabados, 258 Pa.Super. at 539, 393 A.2d at 489 (citing Hatcher, 422Pa. at 142, 221 A.2d at 308). Further, acts of acquiescence cannot,

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by definition, be affirmative acts, nor can the affirmative acts of onedominant owner be attributed to others who merely stood by.

IX. Adverse possession.

241. Defendants, John Giunup and Michael Pettacio own 4525 N. 6th

Street.

242. Giunup and Pettacio operate their business on a pie-shaped portion of

the rail roadbed. [N.T. 3/15/2015, p. 117-118.]

243. Giunup and Pettacio have commenced a counterclaim on November

15, 2013, to quiet title. [Exhibit P26.]

244. Giunup and Pettacio have failed to prove any specific term of years.

245. John Giunup testified his use of the railroad property as a parking

area since purchase in 2004.

11 How is the area within the existing 12 stone and block wall been used by you since you took13 possession?14 A. We use that for parking.

15 Q. And do you park up to the point of the stone16 and block wall?17 A. Correct, right up to the wall.18 Q. So we've referred to this area on the interior19 of the existing stone and block wall as affectively 20 a pie piece; do you see that, sir?21 A. That's correct.22 Q. And is that pie piece area that you've used23 continuously since you've purchased the property?24 A. Yes.25 Q. How do you use that area in question?

2 A. We park our trucks there and some storage of 3 containers.

[N.T. 3/15/2015, p. 117-118.]

248. Contrary to the perjury suborned of Mr. Englehardt, the trucks are

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not visible behind the building and wall.

11 Q. Is your use of the pie piece visible to those12 who may be coming down West Annsbury Street or on13 North 6th Street?

14 A. No, not really. Just a wall there. There is15 a wall on Annsbury, and 6th Street there is the16 building. You can't really see anything.

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

253. The federal Regional Rail Reorganization Act does not authorize

adverse possession against Conrail. Regional Rail Reorganization Act of 1973, 45

U.S.C. §719, 743 (1994) [requiring an action be maintained in federal court and

enjoining state courts from adjudicating an interest adverse to Conrail].

(2) All rail properties conveyed to the Corporation . . . under thissection shall be conveyed free and clear of any liens orencumbrances, but subject to such leases and agreements as shallhave previously burdened such properties . . . . Such conveyancesshall not be restrained or enjoined by any court.

45 U.S.C. §743(b) (emphasis added).

254. Giunup and Pettacio did not commence an action of ejectment against

Conrail or this plaintiff within one year of their entry upon the railroad property,

as required by 42 Pa.C.S. 5530(b), to claim by adverse possession.

255. The defense of the doctrine of consentable lines has been waived by

failure to plead. Pa.R.C.P. #1030.

256. The defense has failed to prove the elements of the doctrine of

consentable lines.

7 Pa. Summ. Jur. 2d Property § 22:40 (2d ed. & Westlaw databaseupdated Apr. 2015) ("There are two ways in which one may prove aconsentable line: by dispute and compromise or by recognition andacquiescence. There are three requirements for the establishment of

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a binding consentable line by dispute and compromise: ! A dispute

with regard to the location of a common boundary line! The

establishment of a line in compromise of a dispute ! The consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. The requirements for establishing

a binding consentable line by recognition and acquiescence are: ! Afinding that each party has claimed the land on their side of the line

as their own ! A finding that this occupation has occurred for thestatutory period of 21 years." (formatting omitted)).

257. In Western New York and Pennsylvania Railway Company v. Vulcan

Foundry and Machine Company, 251 Pa. 383, 96 A. 830 (Pa. 1916), it was said,

[I]t is well settled that title by adverse possession cannot be acquiredagainst a railroad company for a portion of its right of way, as it

holds its property for a public use: Pittsburgh, Fort Wayne & ChicagoRy. Co. v. Peet, 152 Pa. 488; Conwell v. Philadelphia & Reading Ry.Co., 241 Pa. 172.

258. The 21 year statute of limitations of 42 Pa.C.S. 5530, has not been

pled by Giunup and Pettacio and has been waived.

X. The counterclaims.

259. Sixth Street Management Corp. commenced a counterclaim on

November 15, 2013, to quiet title.

260. The defense has failed to prove a precise time between December 3,

1984 and 1988 when the defense claims the strip of land “ceased to be used for

railroad purposes.”

Buffalo Township v. Jones, 571 Pa. 637, 646©47, 813 A.2d 659,664-65 (2002) ("In evaluating whether the user abandoned theproperty, the court must consider whether there was an intention toabandon the property interest, together with external acts by whichsuch intention is carried into effect. In order to establish theabandonment of a right-of-way, the evidence must show that theeasement holder intended to give up its right to use the easementpermanently. Thompson v. R.R. Preservation Society, 417 Pa. Super.

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216, 612 A.2d 450, 453 (1992). 'Such conduct must consist of someaffirmative act on his part which renders use of the easementimpossible, or of some physical obstruction of it by him in a mannerthat is inconsistent with its further enjoyment.' Id. (emphasis inoriginal). Mere nonuse by the railroad does not amount to

abandonment. . . . In sum, many different factors can be considered when making a determination of abandonment. Moreover, no singlefactor alone is sufficient to establish the intent to abandon. Abandonment must be determined based upon all of thecircumstances surrounding the alleged abandonment." (somecitations omitted)); Birdsboro Mun. Auth. v. Reading Co. & Wilmington & N. R.R., 2000 PA Super 231, ¶ 21, 758 A.2d 222, 227("The trial court found that abandonment must be proven by twoprima facie elements: 1) intent; and 2) external acts. While the courtacknowledged that gaps occurred in both railroad operation andmaintenance, it found mere non-use and lack of maintenance of a rail

line did not establish intent to abandon.").

261. The defense has failed to prove the precise date on which the statute

of limitations as to its purported defense and counterclaim to quiet title, by clear

and convincing evidence began to run.

Bral Corp. v. Johnstown Am. Corp., 919 F. Supp. 2d 599, 610 (W.D.Pa. 2013) ("In Pennsylvania, a cause of action accrues when therelevant statute of limitations begins to run 'as soon as the right to

institute and maintain a suit arises.' Fine v. Checcio, 582 Pa. 253,870 A.2d 850, 857 (2005) (citations omitted); see also 42 PA. CONS.STAT. §5502(a). 'Once a cause of action has accrued and theprescribed statutory period has run, an injured party is barred from bringing his cause of action.' Fine, 870 A.2d at 857 (citationsomitted). Under Pennsylvania law, courts favor a strict application ofstatutes of limitations.").

262. The opinion of the claims adjuster was inconsistent with and

contradicted the claim’s adjuster opinion letter.

263. There was an absolute conflict in the testimony of the claims adjuster

and the opinion letter of the claims adjuster without explanation. Matusek v.

Bruno (Pa. Super. Ct. 2/5/2015); Mudano v. Philadelphia Rapid Transit Co.;

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Brodowski v. Ryave; Brannan v. Lankenau Hospital.

XI. The lapse of time.

264. Exhibits P11/D27 is a letter dated May 18, 1984 from Conrail to the

Interstate Commerce Commission submitting the “Application of Consolidated

Rail Corporation Pursuant to Section 308(c) of the Regional Rail Reorganization

Act of 1973, As Amended by Section 1156 of the Northeast Rail Service Act of

1981, for Approval of the Abandonment of the Bethlehem Branch in Philadelphia

County, Pennsylvania.”

265. Enright testified concerning abandonment of a line of railroad.

6 Q. When Conrail finds it no longer7 feasible to operate rail traffic along a 8 certain rail line, does Conrail have statutory 9 authority to discontinue service on its own?10 A. What's considered a line of railroad,11 no.12 Q. And is there a procedure to13 discontinue rail service?14 A. Yes, there is.

15 Q. Is that governed by federal statute?16 A. Yes.19 Q. What statute is that, sir?20 A. Interstate Commerce Termination Act.21 Q. Are you familiar with whether22 Consolidated Rail Corporation filed an23 application to discontinue rail service along 24 the portion of line code 0301?1 A. Yes, I am.


266. The purpose of P11 was to cease Conrail’s common carrier obligation.

4 A. The document, they purpose was to5 file with Interstate Commerce Commission an6 application that would enable us, Conrail at7 the time, to abandon its common carrier

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8 obligation on a portion of the Bethlehem9 Branch.


267. The said ICC Application stated as follows,

4. By this application Conrail requests the Commission’s approvalof the abandonment of the line of rail, approximately 0.6 mile inlength, described below and situated in Philadelphia County,Pennsylvania:

The Bethlehem Branch in Philadelphia from the south side of theCayuga Street Bridge (approximately Milepost 4.2) to the northside of the Rockland Street Bridge (approximately Milepost 4.8).

The above-described line will hereafter be referred to as the SubjectLine.

[Exhibits P11/D27, numbered pp 1-2 ¶4; Enright, at pp. 23 ll. 18- p.24, ll. 8.]

268. A part of Exhibits P11/D27 is Conrail’s exhibit C. Exhibit C shows the

last year for rail traffic was 1982, during which there were 16 carloads carried by

Conrail.

18 A. There was still diminimous rail

19 business as of the time of filing for20 abandonment in 1984. 1982, there was 16 car21 loads on the line.


269. Exhibits P14/D28 is the Interstate Commerce Commission “Certificate

and Decision” “Conrail Abandonment in Philadelphia County, PA Decided

December 3, 1984.”

270. The said Certificate and Decision decided as follows,

Consolidated Rail Corporation (Conrail) filed an application onMay 23, 1984, under section 308 of the Regional Rail Reorganization Act of 1973 [1] to abandon its .6-mile line of railroad between theCayuga Street Bridge (milepost 4.2) and the Rockland Street Bridge

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(milepost 4.8).

Under section 308(c) the Commission must grant any applicationfor abandonment filed by Conrail within 90 days after the date theapplication is filed unless an offer of financial assistance is madeunder section 308(d) during that 90-day period.

***.

It is certified: Conrail is authorized to abandon the line describedabove.

It is ordered: This certificate and decision is effective on service.

[Exhibits P14; Enright, at p. 32, ll. 9-20.]

271. Exhibit P14 references the strip of land in dispute herein.

10 Q. Is the property that's the subject of 11 the Quitclaim Deed of Confirmation 2012 part

12 of the application for abandonment that's13 referenced here?14 A. I believe so.15 Q. Do you know if authorization for the16 abandonment of the common carrier obligation17 was obtained?18 A. Yes. I believe it was.

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

272. Conrail’s common carrier obligation was abandoned by the 1984 ICC

decision.

20 Q. To your knowledge, Mr. Enright,21 pursuant to this decision did Conrail, in22 fact, abandon the line?***.8 ***, so to answer your9 question, it's my understanding that Conrail10 abandoned the line as was required in those11 days at that time.

12 Q. Was Conrail, at that point, relieved13 of its obligation to provide rail service over14 the segment of the Bethlehem Branch?15 A. Yes.16 Q. That segment of the Bethlehem Branch17 included the right of way property that's at18 issue in this current litigation; is that

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19 correct, sir?20 A. That's correct.

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

273. The Interstate Commerce Commission is empowered to grant to a

railroad authority to abandon rail service to customers served by an unprofitable

railroad.

Congress enacted §308 in order to provide Conrail with "anunobstructed opportunity to become a solvent operation."Consolidated Rail Corp. v. County of Monroe, 558 F. Supp. 1387,1389 (Spec. Ct. R.R.R.A. 1983). The ICC has stated that, in essence,"section 308 requires [it] to grant, without examination, any Conrail

abandonment application unless an offer of financial assistance istimely filed." See Conrail Abandonments Under NERSA, 365 I.C.C.472, 472-73 (November 25, 1981). Thus, the abandonmentproceedings established by §308 contemplate limited agencyinvolvement and virtually automatic approval of Conrail's request toabandon its line.

Lucas, et al. v. Township of Bethel, et al., 319 F.3d 595, 601-602,2003 U.S. App. LEXIS 2402.

274. The said ICC decision concerned the .6 mile strip from Cayuga Streeet

to Rockland Street.

22 Q. Once again, this refers to the 0.623 mile railroad beginning at Cayuga Street24 Bridge, milepost 4.2 and the Rockland Street1 Bridge being milepost 4.8, do you see that?2 A. I see that.

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

275. The said Certificate and Decision shows a “service date” of “Dec 7

1984.” [Exhibits P14.]

276. The Interstate Commerce Commission did on December 3, 1984,

grant to the Conrail approval to abandon rail service on the Reading Bethlehem

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Branch, from the south side of the Cayuga Street Bridge (approximately Milepost

4.2) to the north side of the Rockland Street Bridge (approximately Milepost

4.8). [Exhibits P11, P14, D27, D28; Enright, at p. 32, ll. 9-20.]

277. A rail service abandonment does not affect Conrail’s ownership of the

land.

3 Q. Just to be clear, after Conrail4 discontinues or gets authorization to5 discontinue rail service, does Conrail6 continue to claim that it has an ownership7 interest in the real estate?8 A. It depends. It's a general question.

9 If Conrail believes it has ownership of the10 underlying right of way, sometimes it only has11 an easement right or whatever, but if it12 believes it has ownership of the underlying 13 right of way, the determination of the, at14 this time, the Interstate Commerce Commission,15 to allow the railroad to abandon the line,16 does not affect the underlying property 17 ownership.


17 A. It's an abandonment of its common18 carrier obligation. Meaning, it has no19 obligation if a potential customer approaches20 the railroad and wants rail service. The21 railroad has no obligation to provide service.22 That's how I would explain it.


278. As of December 3, 1984, the rail roadbed at issue did by federal law

cease to be used for railroad purposes.

279. The defense attempts to imply a later date when the disputed strip

ceased to be used for railroad purposes.

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21 Q. I'm showing you a document that we'll22 mark as D-2. Mr. Enright, I'm showing you a 23 document, it's a Conrail memorandum dated24 January 13, 1988 from JF Btak. Subject is1 line cleared for dismantling; are you familiar

2 with this document, sir?3 A. I've seen it before, yes.***.10 Q. What is the purpose of this11 memorandum?12 A. It's an internal memorandum13 authorizing -- let me restate that identifying 14 a particular line. In this case, the line15 that's the subject of this litigation or the16 right of way, I should say, that's the subject17 of this litigation, had been one, authorized

18 for abandoned by the ICC and now, from an19 internal Conrail standpoint, cleared for20 dismantling so it was authorization, I guess,21 to the track department, now you can remove22 any rails, ties, etcetera. Although there's23 an additional, internal Conrail requirement at24 the time that, something called AFE, be1 prepared for before the actual dismantling 2 took place.3 Q. I believe your earlier testimony was,4 you were not able to find that AFE?

5 A. Correct.

[D2; Enright, at pp. 87-89.]

280. The authorization to dismantle the track would have come in time

prior to D2, the lines cleared memorandum.

9 Q. Is there any documents at Conrail,10 which would indicate that it took any action11 to give up its interest in the real estate?

12 A. We looked into it, per my previous13 deposition, and cannot locate the AFE, which14 would have been the internal authorization to15 remove any of the track or rail on the right16 of way.

[Enright, at pp. 43.]

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281. There is no evidence the out of service line continued to be used for

railroad purposes after 1984.

6 Q. Does that memo suggest that there was

7 a point in time when there was no rail service8 over the line and that's why the rail line9 could be dismantled?10 A. The answer to that is, yes. I'm11 hesitating because I'm wondering whether the12 actual application indicated whether there was13 any active customers on the line at the time14 we filed for abandonment.15 Q. I understand from your testimony it16 may be possible that there was no rail service17 even at the time of the initial application?

18 A. There was still diminimous rail19 business as of the time of filing for20 abandonment in 1984. 1982, there was 16 car21 loads on the line.22 Q. Taking it forward to the document23 that we were just looking at together, D2,24 which is the memorandum authorizing the track1 removal, does that suggest to you, sir, that2 at that point in time, there was no longer3 rail service?4 A. It indicates there were two -- as of

5 1988, it does identify two customers on the6 line, but it also -- I stand corrected. It7 specifically says there's now out of service8 line so there were customers on the line, but9 they were inactive customers.10 Q. So as of that point in time, at11 least, we can identify that the rail line was12 no longer in service; is that correct?13 A. According to this memorandum, it14 would suggest that. I don't have personal15 knowledge that it was active or not, but it

16 does make reference to it being an out of 17 service line.


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

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to be used for railroad purposes.

283. The legislature has established a 21 year statute of limitations for

Sixth Street Management Corp., John Giunup, and Michael Pettacio to enforce

their alleged reversionary interest in the rail roadbed.

§5530. Twenty-one year limitation.(a) General rule.--The following actions and proceedings must becommenced within 21 years:(1) An action for the possession of real property.(2) An action for the payment of any ground rent, annuity or othercharge upon real property, or any part or portion thereof. If thisparagraph shall operate to bar any payment of such a rent, annuityor charge, the rent, annuity or charge to which the payment relates

shall be extinguished and no further action may be commenced withrespect to subsequent payments.(3) (Deleted by amendment).(b) Entry upon land.--No entry upon real property shall toll therunning of the period of limitation specified in subsection (a)(1),unless a possessory action shall be commenced therefor within one year after entry. Such an entry and commencement of a possessoryaction, without recovery therein, shall not toll the running of suchperiod of limitation in respect of another possessory action, unlesssuch other possessory action is commenced within one year afterthe termination of the first.

42 Pa.C.S. §5530.

284. In a fee simple subject to a condition subsequent, Dixon agrees some

positive action is required for a reversion to vest. [N.T. 3/16/2015, p. 100 lns.

21-24.]

285. Some amicable action and failing that, an action at law must be taken

to “revest” and to “repossess” the disputed area was restated in Stolarick v.

Stolarick, 241 Pa.Super. 498, 507, 363 A.2d 793, 798 (Pa.Super. 1976).

the holder of a right of re-entry shall perfect his title after a breachof condition subsequent either by peaceable re-entry or by an actionat law. Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227

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(1943). ***. In order to remove any cloud on their title, however,the holders of the right of re-entry would have to commence legalaction following the exercise of their right.

286. Amicable re-entry and recorded instrument is necessary to “revest”

and to “repossess” the reversion.

Stolarick v. Stolarick, 241 Pa. Super. 498, 505-06, 363 A.2d 793,797 (1976) ("To determine legal title in the instant case, we mustfirst define the nature of the legal interests created by the deed of1918. If the deed creates an estate in fee simple determinable, theestate of the grantees would expire automatically upon the failure ofthe grantees to comply with the limitations in the deed. Thus, thegrantors would have a possibility of reverter. . . If, on the other hand,the deed conveyed a fee simple subject to a condition subsequent,

then upon the non-compliance with the stated condition the grantoror his successor in interest would have the power to terminate thepreceding estate. Thus, the grantors would have a right of re-entry. . . The principal distinction between the two estates is that aright of re-entry requires some action to perfect title by the grantoror his successor, while a reverter vests automatically." (citationsomitted)).

287. Further, re-conveyance to the original grantor is a sufficient to perfect

a reversion. Smith v. Sterner Chevrolet-Oldsmobile, Inc., 384 Pa.Super. 54, 557

A.2d 770 (1989).

288. Absent an amicable instrument, an action in ejectment is necessary to

perfect a reversion in a deed. Thus, it was said in Smith v. Sterner Chevrolet-

Oldsmobile, Inc., 384 Pa.Super. 54, 58, 557 A.2d 770, 771-772 (Pa.Super. 1989),

The breach of a condition subsequent in a deed or will, although thedeed or will contains words of forfeiture and re-entry, does not ipso

facto produce reverter of title, inasmuch as performance of thecondition or a breach thereof may be waived by the grantor ortestator and the condition be dispensed with. Thus, if an estate uponcondition subsequent has been created, even after breach of thecondition, some affirmative act on the part of the creator of theestate or his successors in interest is necessary to defeat theestate conveyed or devised to the grantee or devisee. The estate of

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the grantee continues in full force until the proper step or stepsare taken to consummate the forfeiture, and until entry or action,the quantity of the estate of the grantee is unimpaired. If the right ofentry is never exercised, the estate remains as before. The granteestill has possession with all the advantages which, by the common

law, belong to possession.

289. Defendants’ Answer, New Matter and Counterclaim to Plaintiff's First

Amended Complaint makes the following admissions,

It is admitted only that on or about March 12, 2012, defendant, SixthStreet Management Corp. erected a fence ***.

[Exhibit P26.]

290. Defendants Brian Mast and Sixth Street Management’s Answer (sic)

to Plaintiff’s New Matter to Counterclaim makes the following admission,

44. ***. By way of further answer (sic) Sixth Street Managementis not claiming an interest in the Disputed Area by virtue of descentfrom Sally Norris Dickinson. ***.

[Exhibit P26.]

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

through the partition deed from Lewis H. Redner, et al. to Gustavus George

Logan, et al. as the Redner to Logan instrument purports to partition by descent

under the Tenth item of the “Last Will and Testament in Writing dated the twenty

fifth day of January Anno Domini One thousand eight hundred and fifty four” of

Sally Norris Dickinson. [Exhibit D76.]

292. Defendants John Giunup and Michael Pettacio’s Answer (sic) to

Plaintiff’s New Matter to Counterclaim makes the following admission,

44. ***. By way of further answer (sic) Defendants are notclaiming an interest in the Disputed Area by virtue of descent fromSally Norris Dickinson. ***.

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[Exhibit P26.]

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

through the partition deed from Lewis H. Redner, et al. to Gustavus George

Logan, et al. as the Redner to Logan instrument purports to partition by descent

under the Tenth item of the “Last Will and Testament in Writing dated the twenty

fifth day of January Anno Domini One thousand eight hundred and fifty four” of

Sally Norris Dickinson. [Exhibit D76.]

294. As stated, the 1854 Dickinson deed granted to the North Penn an

interest in fee, which shall revest upon the happening of repossession by the

grantor.

TO HAVE AND TO HOLD the rights and premises aforesaid ***,and if it shall happen that the railroad *** shall cease to be used forRail 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 beenmade.

295. As stated, the defense may not parse the phrase, “shall revest” from

the phrase “shall thereupon repossess” contained within the same sentence.

296. Black’s Law Dictinary, 2nd Ed. defines “thereupon” to mean, “at once;

without interruption; without delay or lapse of time,” citing, Putnam v. Langley,

133 Mass. 205.

297. The Merriam Webster online dictionary defines “thereupon” to mean,

“immediately after that.” http://www.merriam-webster.com/dictionary/

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http://www.merriam-webster.com/dictionary/thereupon





thereupon.

298. Sally Norris Dickinson, her heirs and assigns, did not “thereupon,” “at

once; without interruption; without delay or lapse of time,” or “immediately after

that,” repossess the rail roadbed.

299. Exhibit D76 states Dickinson made her last will on January 25, 1854,

and died in October 1855.

300. Dickinson made her last Will 13 days after her conveyance to the

North Penn.

301. Dickinson’s last Will is not in evidence.

302. The defense counterclaim failed to prove Dickinson’s last Will did

provide for her reversionary interest in the tract conveyed to the North Penn.

303. Defendants failed to prove they are the heirs and assigns under the

last Will of Sally Norris Dickinson.

304. Sixth Street Management Corp., John Giunup, and Michael Pettacio,

nor their predecessors in title did not amicably retake possession of the disputed

land by recorded instrument, and did not timely commence an action in

ejectment for possession of the disputed land prior to December 2, 2005, the

running of the 21 year statute of limitations.

305. Hence, the 21 year statute of limitations to retake possession of the

disputed land began to run on December 3, 1984, and expired on December 2,

2005, more than a year subsequent to defendants’ having come into title to their

adjoining properties.

XII. Plaintiff’s damages.

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306. Exhibit D20 is the Guinup/ Pettacio deed.

307. Schedule C to the Guinup/ Pettacio deed sets forth the legal

description for the Guinup/ Pettacio property. [Exhibit D20, schedule C.]

308. Schedule C to the Guinup/ Pettacio deed references the city plan/

parcel number, 121 N 124-61, drawing reference to the appropriate City Registry

map. [Exhibit D20.]

309. The defense exhibit the predecessors to the Guinup/ Pettacio deed.

[Exhibits D26, D46, D47, D48, D49, D50.]

310. Exhibit D26 references the appropriate City Registry parcel number

and map, 121 N 24-61. [Exhibits D26, D46, D47, D48, D49, D50.]

311. City Registry map 121 N 24 references the plan and bearings for the

subject rail roadbed, and makes note of the reference information,

“RAILROAD DEED” ANY RIGHT, TITLE, INTEREST (IF ANY?)DCC-1948-195 #63

312. The predecessor deeds to the Sixth Street Management property

[4455 N. 6th Street] reference the city Registry map and parcel number, 85 N

16-319. [Exhibits D55, D56, D57.]

313. Plaintiff’s damages in ejectment are its mesne profits.

314. Mesne profits are the income to the wrongful possessors, that is,

defendants’ ill-gotten gains, arising from defendants’ wrongful possession; Kille v.

Ege, 82 Pa. 102 (Pa. 1876) (value of ore mined and rents received by defendant);

Reilly v. Crown Petroleum Company, 213 Pa. 595, 63 A. 253 (Pa. 1906); together

with interest, for which defendants are required to account. Drexel v. Man, 2 Pa.

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271 (Pa. 1845).

315. Good faith trespass damages are the net profits to defendants arising

from their wrongful possession.

Stated broadly, when improvements to land are made by a good-faithtrespasser, the injured party is entitled, in effect, to the trespasser'snet profits, i.e., the revenues generated upon the land less themoneys expended in facilitating the profitable activity.

Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103 A.3d 83 (2014).

316. Defendants are liable for bad faith trespass damages arising out of

defendants’ wrongful possession, where defendants have constructive knowledge

of plaintiff’s interest in the property.

However, when a party trespasses in bad faith, the injured party isentitled to all moneys derived from the trespass without any offsetfor the cost of generating those moneys.

Sabella v. Appalachian Development Corp., 2014 PA Super. 237, 103 A.3d 83 (2014).

317. Defendants have constructive knowledge of plaintiff’s interest in the

property where plaintiff’s interest is a matter of public record. That lessees

“acted entirely in bad faith is based primarily upon Pennsylvania's constructive

notice statute.” Sabella v. Appalachian Development Corp., 2014 PA Super. 237,

103 A.3d 83 (2014).

318. Conrail’s interest in the former rail roadbed appears of record in

Conrail’s deed recorded in the Department of Records in 1979. [Exhibit P3, P3A.]

319. Conrail’s interest in the former rail roadbed appears of record in the

Department of Records City Registry map #121N24. [Exhibit P47.]

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320. City Registry map #121N24, showed the railroad interest, including

the deed book and page of Conrail’s recorded deed.

“RAILROAD DEED”

ANY RIGHT, TITLE, INTEREST (IF ANY?)DCC-1948-195 #63

[Exhibit P47.]

321. As in Sabella, defendant, who erected a fence in March 2012, after

limiting their title search to railroad deeds recorded after 1956, acted in bad

faith, by “declining to run complete title searches for the property, thus assuming

the risk of bad-faith status.”

322. Exhibit D13 is the commercial lease between Sixth Street

Management Corp. and Esperanza Health Center, Inc. for use of plaintiff’s

property abutting 4455 N. 6th Street.

323. Discovery court erred in being guided by the defense

misrepresentation of Sabella and prior cases, by refusing to allow discovery of

ejectment damages.

324. According to Exhibit D13, Sixth Street Management Corp. received

rent in the amount of $7,800.00 since 2012, plus $200 per month for its bad faith

occupancy of plaintiff’s property.

325. Plaintiff's bad faith damages are $7,800.00, plus $200 per month

ongoing.

PLAINTIFF’S SUGGESTED CONCLUSIONS OF LAW

1. Plaintiff’s title originates from the said 1854 Dickinson deed to the North

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Pennsylvania Rail Road Company, dated January 12, 1854, recorded on January

23, 1854. [Exhibits P2, P1, P1A, P58, D80.]

2. The 1854 Dickinson deed and the 1976 Consolidated Rail Corporation

deeds were recorded first in time to the 2003 and 2004 Sixth Street Management

Corp. and the Giunup and Pettacio deeds.

3. Railroad Recovery, Inc., the plaintiff is the vendee of all that certain

former Consolidated Rail Corporation rail roadbed described by metes and

bounds according to the Stantec Consulting Services, Inc. Description of the

Former North Penn Railroad Right of Way dated January 6, 2012, [Exhibits P42,

43, 44], and the Stantec Consulting Services, Inc. Plan of Property dated January

6, 2012 [Exhibits P42, 43, 44].

4. The Conrail rail roadbed conveyed to plaintiff lies to the east of

properties owned by Sixth Street Management Corp. and John Giunup, and

Michael Pettacio.

5. The issue in this case is whether the defendants, whose properties are

west of the rail roadbed, own the rail roadbed west of the center line of the

railroad.

6. Conrail and its vendee, Railroad Recovery remained in possession of the

disputed former rail roadbed adjacent to the Sixth Street Management property

until March 2012.

7. Conrail remained in possession of the “pie shaped” former rail roadbed

adjacent to the Giunup/Pettacio property until the completion of the conveyance

to Railroad Recovery by deed in February 2012.

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8. Conrail and its vendee, Railroad Recovery remain in possession of the

disputed former rail roadbed adjacent to the Giunup/Pettacio property and

adjacent to the “pie shaped” disputed area until the time of trial.

9. Railroad Recovery, Inc., the plaintiff obtained title to the said by

recorded deed. [Exhibit P20.]

10. The 1854 Dickinson deed granted to the North Penn an interest in fee

subject to a condition subsequent.

11. Sixth Street Management has not proved the four identities required

for res judicata.

12. Sally Norris Dickinson, her heirs and assigns, did not “thereupon,” “at

once; without interruption; without delay or lapse of time,” or “immediately after

that,” after December 3, 1984, decision of the Interstate Commerce Commission,

repossess the disputed rail roadbed.

13. Defendants’ predecessors in interest did not commence an action in

federal court in ejectment against Conrail within 21 years of the December 3,

1984, decision of the Interstate Commerce Commission authorizing Conrail to

cease use of the disputed land for railroad purposes.

14. The defendants did not commence a civil action in court in ejectment

within 21 years of the December 3, 1984, decision of the Interstate Commerce

Commission authorizing Conrail to cease use of the disputed land for railroad

purposes.

Respectfully submitted,

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Anthony Bernard Quinn Attorney for plaintiff

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Railroad Recovery Inc.,

a Pennsylvania Corporation,

plaintiff

:

July Term 2013

v.

Brian Mast, andSixth Street Management Corp.,a Pennsylvania Corporation, andJohn Giunup, andMichael Pettacio,

defendants

:

#03647

COURT ORDER

AND NOW, to wit this day of , 2015,

after a non-jury trial on the merits, the Court makes the following ORDER:

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

against Sixth Street Management Corp., John Giunup and Michael Pettacio, the

defendants, for possession of all that certain former Consolidated Rail

Corporation rail roadbed described by metes and bounds according to the Stantec

Consulting Services, Inc. Description of the former North Penn Railroad Right of

Way dated January 6, 2012, plaintiff’s Exhibit P44, and the Stantec Consulting

Services, Inc. Plan of Property dated January 6, 2012, plaintiff’s Exhibit P43, all

of which is attached hereto and incorporated and made a part of this Order.


against Sixth Street Management Corp., the defendant, on the Counterclaim of

Sixth Street Management Corp.

1

Case ID: 13070




against John Giunup and Michael Pettacio, the defendants, on the Counterclaim

of John Giunup and Michael Pettacio.

4. Sixth Street Management Corp., John Giunup and Michael

Pettacio, the defendants, shall vacate plaintiff’s property as described in the

Stantec Consulting Engineers plan of property, plaintiff’s Exhibits P43 and P44,

attached hereto and incorporated herein, within five (5) days of the date of this

ORDER.

BY THE COURT:

___________________________________, J.

2

Case ID: 13070



Pa.R.C.P. #211 ORAL ARGUMENT DEMANDEDQuinn Law OfficeBy: Anthony Bernard Quinn Esquire Attorney Reg. #26931Suite 520 The Bellevue

200 S. Broad StreetPhiladelphia, PA 19102-9149Telephone: 215-731-0340 Attorney for plaintiff



Railroad Recovery Inc.,a Pennsylvania Corporation,

plaintiff

:

July Term 2013

v.

Brian Mast, andSixth Street Management Corp.,a Pennsylvania Corporation, andJohn Giunup, andMichael Pettacio, defendants : #03647

CERTIFICATE OF SERVICE

Service of the Plaintiff’s suggested findings of fact conclusions of law

and proposed order and all attachments was made this June 11, 2015 upon all

persons entitled thereto or to their attorneys of record by the civil electronic

Documents

Sixth Street Management - Plaintiff Findings