Viscarello, R. & L. v. Elliott, T.

J-A03043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROGER C. VISCARELLO & LAURA A. IN THE SUPERIOR COURT OF

VISCARELLO, H/W PENNSYLVANIA

Appellants

v.

THOMAS M. ELLIOTT, CRAIG A.

BRENNAN AND KELLY A. ELLIOTT

Appellees No. 801 MDA 2014

Appeal from the Judgment Entered April 16, 2014

In the Court of Common Pleas of Bradford County

Civil Division at No(s): 2011 EQ 000377

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 25, 2015

Appellants, Roger C. Viscarello and Laura A. Viscarello, appeal from

the April 16, 2014 judgment entered in the Bradford County Court of

Common Pleas, denying their request for a permanent injunction to enjoin

Appellees, Thomas M. Elliott, Craig A. Brennan, and Kelly A. Elliott, from

blocking the Viscarellos’ access to a roadway across Appellees’ land. After

careful review, we affirm.

The trial court detailed the facts of this case as follows.

In this action [the Viscarellos] claim the right

to make permanent use of a roadway approximately

[100] feet in length over lands of [Appellees]. The

road leads from a public road on [Appellees’]

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*

Former Justice specially assigned to the Superior Court.

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property to [the Viscarellos’] residential structure,

referred to as a hunting cabin, on [the Viscarellos’]

property.

…

[The Viscarellos] are husband and wife who have a

primary residence out of the Bradford County area.

In 2001, they bought a tract of land in Bradford

County consisting of [228] acres. This tract adjoined

lands owned by [Appellee] Thomas M. Elliott and had

extensive public roadway frontage. Following [the

Viscarellos’] purchase of the Bradford County tract,

they became friendly neighbors with Mr. Elliott,

occasionally visiting each other, engaging in some

mutual help with tasks on their respective properties

and cooperating in agricultural efforts, including

raising crops to benefit the deer herd in the locality.

Over the next several years, [the Viscarellos] sold off

several tracts from their [228] acre parcel including

the house that had existed on the premises at the

time the [228] acres was [sic] purchased by [the

Viscarellos].

Today [the Viscarellos] own [157¼] acres

consisting of three lots …. Each lot does adjoin at

least one public road. At an unspecified point in

time, but prior to 2005, [the Viscarellos] formed a

desire to build a new “hunting cabin” on their

remaining land. They selected a site that would not

have access to a public road except by crossing

Brown’s Creek, a small stream that flows through

[the Viscarellos’] property. Throughout the course of

a year, this stream varies in width and depth. In

summer it is nearly dried up but at other times may

be many feet deep and quite wide after heavy rains.

Occasionally it has flooded.

The easiest and shortest access from a public

road to the site where [the Viscarellos] had

determined to build their hunting cabin was over a

strip of land owned by [] Mr. Elliott, approximately

[100] feet in width between [the Viscarellos’]

property and a public road. By using this strip of

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land as a roadway it is not necessary to cross

Brown’s Creek to access the hunting cabin.

Before [the Viscarellos] started to construct

their hunting cabin, following a barbeque gathering,

[] Roger Viscarello and [] Thomas Elliott were

walking near the area of [the Viscarellos’] desired

access and location where the hunting cabin was to

be built. Mr. Viscarello explained to Mr. Elliott his

desire to build a cabin at that site and asked for

permission to cross the distance of [100] feet over

Mr. Elliott’s property. The conversation, according to

Mr. Viscarello, went this way.

Well I told him that there was no way to get

across Brown’s Creek and I had always wanted

to have a cabin up on the hill. But my survey

showed that he owned a small portion and I

asked if I could buy the property, a right-of-

way first. And he didn’t want to do that. And

then he – I asked if I could buy an acre or

whatever that small amount might be, just so

it was clear on – the survey that it was all

ours. And he explained that he didn’t want to

sell any of his land, that he was gonna own as

much land as he could own. And he said you

know, you and your family are nice people.

Your friends are nice people. You can come

and go as you please. And I did that another

time where I went out to – he was planting his

corn field. And I went out on the farm and

asked him again if I could buy a right-of-way.

And he didn’t want to do that, but he assured

me that it would be okay; we would pass by

there and build everything.

N.T., 3/27/12[,] [at] 15.

…

Mr. Elliott recalled having the same kind of

conversations with Mr. Viscarello and testified

specifically as follows:

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Yes, the first that I recall was at the cookout

barbeque, call it what you will. Roger and I

were – I assume after we ate, were walking

across the covered bridge. And he was telling

about the – this is what I remember, wanting

to build a cabin or whatever it was. And I told

him – I said that he could – he could – he

could go ahead and use it. I – and I may well

have said his family or friends or what have

you. That I do not specifically recall. He may

go ahead and use it, but I was not going to do

anything permanent, because if he got hit by a

bus tomorrow and then the Philadelphia Four

Wheeler Club ends up with it, I could spend the

rest of my life chasing four wheelers off from

the fields up on the hill. At which time, I

remember him assuring me saying that if

something happens to him it would be his son’s

property thereafter so that would not be a

problem. So I countered and said: “Well if I

get hit by a – by a bus tomorrow, the next guy

might want something different.[”]

[Id. at 40-41.]

In addition, Mr. Elliott also testified in follow up

questioning as follows:

“Q. But is it fair to say that you didn’t give any

indefinite use or anything like that?

A. I compare it to allowing somebody to go

hunting. Just because I said you could go

hunting today, if I’m not satisfied with

something you did or didn’t do, you might not

be able to go hunting next time.

Q. And did there come a time that you, in

fact, rescinded the temporary use of – of that

portion of your property from the plaintiffs in

this case?

A. Yes ….”

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[Id. at 41.]

These two statements are remarkably similar

and each supplies different details as the

conversations about the roadway. Neither party

testified that the other party’s recollection of this

conversation was in error. We find no

inconsistencies in the quoted testimony of Mr.

Viscarello and Mr. Elliott and accept each statement

as credible.

The Viscarellos did construct a residential

structure at the proposed site at a cost of

approximately [$300,000.00] during the year 2005

thr[ough] 2006. To construct this residence, called

the hunting cabin, [the Viscarellos] first constructed

a roadway which is now the focus of this dispute. It

crosses 100 feet of [Appellees’] land. [The

Viscarellos] and their construction crew used it to

bring in construction supplies to the hunting cabin

site. Both [] Mr. Elliot and [] Mr. Brennan did work

in connection with the Viscarello residence

construction including excavating and landscaping

type work. [Appellees] were fully aware as to the

extent and nature of the construction being

undertaken by the [the Viscarellos] although there is

no testimony to support that they had actual

knowledge of the cost of the construction.

Nevertheless, [Appellees] would have recognized

that a substantial expenditure was being made by

the [Viscarellos] in constructing the residence.

At some point thereafter, Mr. Elliott added the

names of the other [Appellees], his niece Kelly A.

Elliott, and her husband Craig A. Brennan to his deed

as property owners of his ground.

In 2007-08, [] Mr. Brennan had a conflict with

one of the guests of [the Viscarellos] over the way

he was making use of the [100] foot long roadway

that crossed [Appellees’] land. Other disputes

seemed to arise between the parties from time to

time and on May 1, 2011, blaming the manner in

which [the Viscarellos] were using the driveway over

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[Appellees’] land, [Appellees] blocked the roadway

by dumping a pile of dirt upon it. Since May of 2011,

[Appellees] have maintained that [the Viscarellos]

have no right to use the roadway.

Since May of 2011, [the Viscarellos] have

made use of their property and hunting cabin, for

hunting and other recreational uses typically

associated with a second or vacation home. [The

Viscarellos] in doing so have accessed the hunting

cabin from the public road by crossing Brown’s

Creek, with minimal interference by the water level

in Brown’s Creek. The nature of Brown’s Creek,

however does impact access of their property and

the access that [the Viscarellos] do have to their

property makes it very difficult, if not impossible for

utility service vehicles to access the hunting cabin.

There have only [been] a few times that Brown’s

Creek could not be forded by [the Viscarellos’]

vehicles. [The Viscarellos] have constructed a foot

bridge across Brown’s Creek.

Trial Court Opinion, 5/8/14,1 at 1, 3-6.

The trial court further summarized the procedural posture of this case

as follows.

This action was commenced by the filing of a

complaint and a motion for a preliminary [in]junction

on October 14, 2011, after [Appellees] had blocked

[the Viscarellos] from using the roadway by

barricading it with a pile of dirt on May 1, 2011. [In

response, Appellees asserted a counterclaim for

ejectment and trespass.]

A hearing on [the Viscarellos’] preliminary

injunction motion was held before the [trial court] on

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1

While the trial court opinion is dated April 14, 2014, it was filed on May 8,

2014.

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March 22, 2012. On … March 28, 2012, [the trial

court] denied the [Viscarellos’] motion for

preliminary injunction. …

…

Thereafter, the [trial court] … denied [the

Viscarellos] motion for summary judgment.

The request of [the Viscarellos] for a

permanent injunction case came to trial before [the

trial] [c]ourt on November 15, 2013. At the

commencement of the proceedings it was

determined that the record upon which [the trial]

[c]ourt was to base its decision would include the

transcript of the proceedings held at the preliminary

injunction hearing on March 27, 2012, … together

with other testimony to be introduced at the

November 15th, 2013, proceeding, as well as various

exhibits introduced at each hearing. At the

November 15th hearing, testimony was received from

[] Roger C. Viscarello, first as on cross examination

and then on direct and from [] Craig A. Brennan.

Several exhibits were introduced into the record at

that time. [A]t the March 27, 2012[] proceeding[,]

testimony was received from [both] Roger and Laura

Viscarello, and from [] Thomas M. Elliott[] and Craig

A. Brennan.

Id. at 1-2.

Immediately following the November 15, 2013 bench trial, the trial

court entered an order denying the Viscarellos’ request for a permanent

injunction. On November 18, 2013, the trial court amended its order to

grant Appellees’ counterclaim, and consequently ejected the Viscarellos’

from Appellees’ property and prohibited them from trespassing in the future.

On November 25, 2013, the Viscarellos filed a motion for post-trial relief.

The trial court denied the post-trial motion on April 16, 2014, and entered

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judgment on the same date.2 On May 2, 2014, the Viscarellos filed a timely

notice of appeal. Appellants timely complied with the trial court’s order to

file a concise statement of matters complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).3 The trial court filed a

Rule 1925(a) opinion, which incorporated its May 8, 2014 opinion in support

of denying post-trial motions.

On appeal, the Viscarellos present the following issue.

Whether an oral license given by one party to

another to use a 100 foot private road from a public

road to the other party’s boundary line for the

purpose of constructing a residence and thereafter

accessing it, which license was thereafter executed

by the expenditure of $300,000 to build the

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2

We note that the trial court disposed of the post-trial motion more than

120 days after it was filed on November 25, 2013. See Pa.R.C.P. 227.4(b)

(providing that judgment may be entered upon praecipe of party if the trial

court does not decide post-trial motions within 120 days of their filing date).

However, any appeal prior to the entry of judgment would have been

premature. See Sagamore Estates Prop. Owners Ass’n v. Sklar, 81

A.3d 981, 983 n.3 (Pa. Super. 2013) (noting that the entry of judgment

perfects appellate jurisdiction).

3

We note that the Viscarellos’ Rule 1925(b) statement is not concise, as it

consists of nine, single-spaced pages and includes a recitation of the facts

and a lengthy discussion of the law. The Viscarellos’ nine, numbered issues

span seven pages, and are followed by an unnumbered two-page section,

entitled “discussion.” However, the trial court did not find that the

Viscarellos filed the statement in bad faith, so we cannot find waiver. See

PHH Mortg. Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014)

(concluding that this Court cannot find waiver based on the length of the

appellant’s Rule 1925(b) statement unless the trial court finds that the

appellant acted in bad faith), citing Eiser v. Brown & Williamson Tobacco

Corp., 938 A.2d 417 (Pa. 2007).

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residence, may thereafter be revoked by the

[l]icensor?

Viscarellos’ Brief at 2.

Specifically, the Viscarellos’ argue that the trial court erred in denying

them injunctive relief in the form of permanent use of the roadway over

Appellees’ land. Id. at 17. The Viscarellos assert that their discussions with

Mr. Elliot resulted in his grant of a temporary license to use his roadway to

access their property. Id. Citing the “doctrine of irrevocable license,” the

Viscarellos further contend that the temporary license to use the roadway to

access their property became irrevocable when they expended money on a

permanent improvement, in the form of a hunting cabin, in reliance on the

permission to use the roadway. Id. at 17-18.

Our review of a trial court’s denial of permanent injunctive relief is

guided by the following principles.

To prevail in a claim for a permanent

injunction, the plaintiff must prove a “clear right to

relief.” The injury claimed must be one that cannot

be compensated by an award of damages. However,

in contrast to a preliminary injunction, a permanent

injunction does not require a showing of irreparable

harm or the need for immediate relief. Rather, the

plaintiff must show that an actual and substantial

injury has occurred and/or is threatened in the

future. As our Supreme Court has summarized, a

permanent injunction is appropriately “awarded to

prevent a legal wrong for which there is no adequate

redress at law.”

Appellate review of the grant or denial of a

permanent injunction is limited to determining

whether the trial court committed an error of law. In

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reviewing a question of law, our standard of review

is de novo and our scope is plenary.

WellSpan Health v. Bayliss, 869 A.2d 990, 995-996 (Pa. Super. 2005)

(footnote and citations omitted), quoting Buffalo Twp. v. Jones, 813 A.2d

659, 663 (Pa. 2002), cert. denied, 540 U.S. 821 (2003).

Accordingly, to obtain relief on appeal, the Viscarellos must

demonstrate the trial court erred when it concluded that the doctrine of

irrevocable license did not prevent Appellees from revoking the license for

the roadway. Generally, a license is a personal permission to use the land of

another for a particular purpose, and it is revocable at will. Morning Call,

Inc. v. Bell Atl.-Pa., Inc., 761 A.2d 139, 144 (Pa. Super. 2000). A license

is not a property interest, and it is automatically extinguished by the sale of

the burdened property. Id. However, our Supreme Court has explained

that the rules of estoppel may convert a temporary license into an

irrevocable one.

A license to use the promisor’s land will become

irrevocable for the duration of the license term when

the promisee in justifiable reliance treats his land in

a way he would not otherwise treat it, that is, by

making expenditures of money for such changes as

would prevent his being restored to his original

position.

Bieber v. Zellner, 220 A.2d 17, 19 (Pa. 1966). This Court has observed

that, as an equitable doctrine, the party claiming that the license has

become irrevocable must demonstrate justifiable reliance on the

permanency of the license. Buffington v. Buffington, 568 A.2d 194, 200

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(Pa. Super. 1989); accord RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES

§ 2.10 (2000) (requiring the user to substantially change position in

“reasonable reliance” on the belief that the permission would not be

revoked). Implied in this doctrine is an assumption that the grantor did not

expressly retain the ability to revoke the permission granted, and instead

misled the licensee to believe that the licensor would not revoke the

permission. RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.10 cmt. e

(2000).

Herein, Mr. Elliott granted a revocable license to the Viscarellos,

permitting the Viscarellos to use a 100-foot roadway over his land. The trial

court found, based on the credible testimony of both parties, that Mr.

Viscarello and Mr. Elliott orally created a license with the understanding that

Mr. Elliott would retain the right to revoke his permission for the Viscarellos

to use his land as a roadway. Trial Court Opinion, 5/8/14, at 8. Specifically,

Mr. Viscarello testified that Mr. Elliott consistently rebuffed his attempts to

acquire a permanent interest in Mr. Elliott’s property as access for a future

hunting cabin. N.T., 3/27/12, at 15. Further, Mr. Viscarello admitted Mr.

Elliott explicitly told him on at least two separate occasions that he would

not sell him a permanent interest in the land in the form of fee simple

ownership, easement, or right-of-way. Id. at 29. Similarly, Mr. Elliott

testified that the agreement was for the temporary use of the land to enable

the Viscarellos to construct the cabin. Id. at 40-41. Therefore, the

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undisputed specific intent and understanding of the parties was that Mr.

Elliott granted the Viscarellos only a temporary, revocable license to traverse

Mr. Elliott’s land, which would not run with the land.4

After Mr. Elliott revoked the Viscarellos’ privilege to use the driveway

by blocking it with a pile of dirt in May 2011, the Viscarellos initiated this

action claiming that the license became irrevocable when they expended

money to construct the hunting cabin. Appellant’s Brief at 16-17. In effect,

the Viscarellos attempt to invoke rules of estoppel to obtain, as a matter of

law, a servitude on the property that the parties specifically contemplated

and rejected. We conclude the doctrine of irrevocable license does not apply

in these circumstances.

The Viscarellos’ belief that Mr. Elliott would not revoke the permission

was not reasonable, and the Viscarellos were not justified in relying on that

belief. Mr. Elliott unequivocally expressed that the license was not

permanent. Mr. Viscarello specifically attempted to obtain a fee simple, an

easement, or a right-of-way in the property, but Mr. Elliott twice refused to

grant any such permanent servitude. Instead, Mr. Elliott granted the

Viscarellos a temporary license to traverse his land to access the Viscarellos’

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4

Conversely, Mr. Viscarello testified that he had to obtain an easement from

Mr. Elliott in favor of Pennsylvania Electric Company to enable electric

service at the Viscarellos’ hunting cabin. N.T., 3/27/12, at 23

(acknowledging electricity would not have been possible without the

easement); Id. at Exhibit 5 (Penelec Easement, 6/2/05).

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property. Mr. Viscarello did not testify or argue that he believed that the

license was irrevocable or that Mr. Elliott made any representation to that

effect. Given the negotiations between the parties and the terms of their

agreement, we conclude that the Viscarellos did not show justifiable reliance

on the permanency of the license because they did not show that Mr. Elliott

led them to believe the license would not be revoked. See Buffington,

supra; RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.10 cmt. e (2000).

Despite this, the Viscarellos argue that Appellees were equitably

estopped from revoking the license because Mr. Elliott was aware of the

construction of the hunting cabin, Mr. Elliott assisted in the construction, and

the Viscarellos expended $300,000.00 on the cabin’s construction.

Appellant’s Brief at 16-17. However, both parties affirmatively testified Mr.

Elliott had knowledge of the Viscarellos’ plans to build a cabin before Mr.

Elliott granted the revocable license to use the roadway. N.T., 3/27/12, at

15, 40. Further, both parties testified that Mr. Elliott steadfastly refused to

grant or sell the Viscarellos a more permanent interest in the land. Id. at

15, 29, 40-41. Consequently, the Viscarellos cannot claim Mr. Elliott is

estopped based on Mr. Elliott’s assistance in the construction because the

assistance was not a change in Mr. Elliott’s position that would warrant

justifiable reliance; Mr. Elliott already knew a structure was going to be

erected when he granted the revocable license.

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For the same reason, the Viscarello’s expenditure of $300,000.00 on

the cabin does not equitably estop Mr. Elliott from revoking the license. The

Viscarellos knew that Mr. Elliott did not grant them a permanent, lasting

servitude. Nevertheless, the Viscarellos decided to construct the cabin

without a permanent roadway over Mr. Elliott’s property to access it. Under

these facts, the Viscarellos cannot unilaterally invoke equitable estoppel to

obtain an interest in Appellee’s land greater than the one Mr. Elliott

expressly granted to them in the parties’ oral agreement.5

Further, the Viscarellos did not prove that the revocation of the license

rendered the improvements on their property useless. The roadway over

Appellees’ property was not the only way for the Viscarellos to access their

property from a public road; it was the most convenient and least expensive

route for them. The Viscarellos conceded that they could access the

property by crossing Brown’s Creek, but it would be difficult for service

utility vehicles to cross the stream without further improvements. Trial

Court Opinion, 5/8/14, at 6. Mr. Viscarello testified that while he was aware

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5

An irrevocable license is tantamount to an affirmative easement. Morning

Call, supra at 144 n.10; see also RESTATEMENT (THIRD) OF PROPERTY:

SERVITUDES § 1.2(4) cmt. e (2000) (stating “the term ‘easement’ includes an

irrevocable license to enter and use land in the possession of another …[]”);

id. § 1.2 cmt. g (explaining “[i]f the license becomes irrevocable … it is

indistinguishable from an easement[]”). The testimony of the parties

established that Mr. Elliott definitively refused to grant the Viscarellos a

right-of-way or an easement on his property for a driveway. Under these

circumstances, we will not impose an affirmative easement by operation of

law.

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of the general procedure for constructing a bridge to enable vehicles to cross

Brown’s Creek, he had not initiated the process. N.T., 3/27/12, at 27. The

Viscarellos, however, have constructed a footbridge across the stream. Trial

Court Opinion, 5/8/14, at 6. Mr. Elliott testified that the Viscarellos also

could access the cabin by obtaining a right-of-way over the property of

another neighbor, Howard Bailey. N.T., 1/4/13, at 44. Thus, while access

over Appellee’s land may have been the shortest and least expensive of the

alternatives available, it was not the Viscarellos’ only means of accessing the

hunting cabin. In fact, since Appellees blocked the roadway in May 2011,

the Viscarellos have accessed their cabin by crossing Brown’s Creek. Trial

Court Opinion, 5/8/14, at 6. Therefore, Appellees’ revocation of the license

did not render the Viscarellos’ improvements useless.

Moreover, the Viscarellos’ invitation to apply equitable estoppel to

convert an explicitly temporary license into a permanent servitude has a

chilling effect on the spirit of neighborly cooperation. In this case, the

Viscarellos resorted to the legal system to obtain a greater interest in

Appellees’ property than they could obtain through negotiations with Mr.

Elliott. Such a loose application of estoppel principles to circumvent the

express agreement of the parties discourages landowners from allowing

neighbors to use their land for fear that a court will convert a temporary

permission into a permanent easement.

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Based on the foregoing, the Viscarellos did not prove they had a clear

right to relief based on the equitable doctrine of irrevocable license.

Therefore, the trial court did not err as a matter of law in denying the

Viscarellos’ request for a permanent injunction. Accordingly, the April 16,

2014 judgment is affirmed.

Judgment affirmed.

Judge Stabile joins the memorandum.

Justice Fitzgerald files a dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/2015

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