FOX ROTHSCHILD LLPBy: Lauren P. McKenna, EsquireClair E. Wischusen, EsquireAttorney I.D. Nos. 59145; 3067522000 Market Street, 20th FloorPhiladelphia, PA 19103-3222lmckenna@foxrothschild.comcwischusen@foxrothschild.com(215) 299-2754

RAILROAD RECOVERY INC.,Plaintiff,

v.

BRIAN MAST,SIXTH STREET MANAGEMENT CORP., :JOHN GIUNUP, andMICHAEL PETTACIO

Attorneys for DefendantsBrian Mast, Sixth StreetManagement Corp.,John Giunup, and MichaelPettacio

PHILADELPHIA COUNTYCOURT OF COMMON PLEAS

JULY TERM, 2013

Defendants. NO. 03647

DEFENDANTS BRIAN MAST, SIXTH STREET MANAGEMENTCORP., JOHN GIUNUP, AND MICHAEL PETTACIO'S

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

ACTI VI 29488691v4 06/24/2015

Case ID: 130703647

Filed and Attested byPROTHONOTARY

24 JUN 2015 12:07 pmC. FORTE

TABLE OF CONTENTS

I. PROPOSED FINDINGS OF FACT 1

A. Overview 1

B. The Defendants' Properties 2

1. The Property Plan 3

2. The Sixth Street Property 4

3. The Payload Property 6

4. The Stone and Block Wall on the Payload Property 8

5. Defendants' Chain of Title 10

C. Plaintiff's Claimed Right-of-Way 11

1. Railroad Recovery 11

2. The 1854 Dickinson Deed 11

3. The Conrail Abandonment 13

4. The Quit Claim Deed From Conrail 14

5. Railroad Recovery Sells the Right-of-Way to Linda Miller 15

D. The 2008 Ejectment Action 17

E. Other Litigation 19

F. The Current Litigation 19

II. PROPOSED CONCLUSIONS OF LAW 21

A. Plaintiff is Not the Real Party in Interest and Lacks Standing to Bring ThisEjectment Action 21

B. Railroad Recovery's Ejectment Claims Fail Because It Cannot Meet ItsBurden of Establishing Paramount Title 26

1. The Estate Granted to the North Pennsylvania Railroad Was aMere Railroad Right-of-Way and Not a Fee Interest 27

2. Plaintiff's Expert Witness Testimony Should Be Disregarded 37

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3. The Railroad Right-of-Way Terminated Automatically UponAbandonment and Defendants as Adjoining Land OwnersRegained Full Title and Ownership to the Center Line of theFormer Right-of-Way 40

C. Alternatively, Plaintiff's Claims Fail Because Any Fee Interest in theDisputed Area Reverted to Defendants' Predecessors Upon Abandonmentby Conrail 42

1. Dickinson Retained a Right of Reversion in the 1854 DickinsonDeed 42

2. Dickinson Assigned the Right of Reversion to Defendants 43

3. Interest in the Disputed Area Reverted to DefendantsAutomatically or Through Exercise of the Right of Re-Entry 45

D. Alternatively, Plaintiff's Claims Fail As to the Disputed Area Inside theStone and Block Wall on the Payload Property Under the Doctrines ofAdverse Possession and/or Consentable Line 49

1. The Former Railroad Use of the Property Does Not BarApplication of Adverse Possession Because Public Use WasExtinguished Upon Abandonment 50

2. All of the Elements of Adverse Possession Are Satisfied 50

3. The Doctrine of Consentable Line Applies 53

E. Alternatively, Plaintiffs Claims as to the Disputed Area of the Sixth StreetProperty are Barred Based Upon Res Judicata 55

1. The Cause and Rights of the Parties as to the Disputed Area of theSixth Street Property Were Already Finally Determined 55

2. The Fraud Exception Does Not Bar Application of Res Judicata 60

F. Defendants Are Entitled to Judgment On Their Counterclaims to QuietTitle 63

III. PROPOSED RELIEF 65

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TABLE OF AUTHORITIES

Cases

A.D. Graham & Co. v. Pennsylvania Turnpike Comm'n.,

329 (Pa. 1980)

Page(s)

50

22

26

33 A.2d 22 (Pa. 1943)

Anderson Contracting Co. v. Daugherty,417 A.2d 1227 (Pa. Super. 1979), appeal dismissed, 425 A.2d

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

Bauer v. Hill,21267 Pa. 559 (1920)

Borough of Ulysses v. Mesler,55968 A.2d 224 (Pa. Super. 2009)

Bride v. Robwood Lodge,51713 A.2d 109 (Pa. Super. 1998)

Brookbank v. Benedum-Trees Oil Co.,28, 29, 30, 31, 35, 36, 38, 39131 A.2d 103 (Pa. 1957)

Byrne v. Kanig,21332 A.2d 472 (Pa. Super. 1974)

Chada v. Chada,58, 59756 A.2d 39 (Pa. Super. 2000)

Clark v. Cambria County Bd. of Assessment Appeals,21747 A.2d 1242 (Pa. Commw. 2000)

Commw. v. Williams,47, 48828 A.2d 981 (Pa. 2003)

In re: Condemnation of Rights of Way and Easements,50, 51, 5247 A.3d 166 (Pa. Commw. 2012)

Cox's Inc. v. Snodgrass,63379 Pa. 148 (1952)

Dellach v. DeNinno,40, 50862 A.2d 117 (Pa. Super. 2004)

ACTIVE 29488691v4 06/24/2015Case ID: 130703647

Doman v. Brogan,592 A.2d 104 (Pa. Super. 1991) 26, 55, 56

Fiore v. Fiore,24, 25174 A.2d 858 (Pa. 1961)

Fleck v. Universal-Cyclops Steel Corp.,29, 30, 33, 34, 35, 37, 39156 A.2d 832 (Pa. 1959)

Fornwalt v. Follmer,55616 A.2d 1040 (Pa. Super. 1992)

Glenn v. Shuey,52595 A.2d 606 (Pa. Super. 1991)

Goldstein v. Ahrens,59108 A.2d 693 (Pa. 1954)

Graham v. Lyons,23546 A.2d 1129 (Pa. Super. 1988)

Hallman v. Turns,26482 A.2d 1284 (Pa. Super. 1984)

Ham v. Sulek,21, 23, 55, 57620 A.2d 5 (Pa. Super. 1993)

Harbor Marine Co. v. Nolan,26366 A.2d 936 (Pa. Super. 1976)

Herr v. Herr,43, 44957 A.2d 1280 (Pa. Super. 2008)

Higbee Corp. v. Kennedy,46428 A.2d 592 (Pa. Super. 1981)

Hochman v. Mortgage Fin. Corp.,57, 58137 A. 252 (Pa. 1927)

Jacquelin v. Zoning Hearing Bd. of Hatboro Borough,55, 61, 62620 A.2d 554 (Pa. Commw. 1993)

Kozak v. Struth,37531 A.2d 420 (Pa. 1987)

Lawson v. Simonsen,29, 30, 35, 39417 A.2d 155 (Pa. 1980)

-iv-

ACTIVE 29488691 v4 06/24/2015Case ID: 130703647

Lilly v. Markvan,763 A.2d 370 (Pa. Super. 2000) 54

Mackall v. Fleegle,30, 31, 34, 35, 39801 A.2d 577 (Pa. Super. 2002) 28, 29,

Miller v. Clauss, et al.,March Term 2013, No. 00439 (C.C.P. Phila.). (D-89 at 40:23-41:11, 41:18-22) 19

Miller v. Railroad Recovery, Inc., et al.,11, 19, 25, 57No. 2:11-cv-06901 (E.D.Pa. 2011)

Moore v. Duran,51687 A.d 822, 828 (Pa. Super. 1997)

Mower v. Mower,2580 A.2d 856 (Pa. 1951)

Newell Rod & Gun Club, Inc. v. Bauer,40597 A.2d 667 (Pa. Super. 1991)

Niles v. Fall Creek Hunting Club, Inc.,54545 A.2d 926 (Pa. Super. 1988)

Matter of Pentrack's Estate,23405 A.2d 879 (Pa. 1979)

Quarry Office Park Assocs. v. Phila. Elec. Co.,29, 30, 31, 35, 39576 A.2d 358 (Pa. Super. 1990)

Ratajski v. West Penn Mfg. & Supply Corp.,26182 A.2d 243 (Pa. Super. 1962)

Reed v. Wolyniec,51471 A.2d 80 (Pa. Super. 1983)

Sabella v. Appalachian Development Corp.,60103 A.3d 83 (Pa. Super. 2014)

Schimp v. Allaman,54659 A.2d 1032 (Pa. Super. 1995)

Smith v. Glen Alden Coal Co.,4832 A.2d 227 (Pa. 1943)

Stevenson v. Silverman,55, 58208 A.2d 786 (Pa. 1965), cert. denied, 382 U.S. 833 (1966)

-v-

ACTIVE 29488691v4 06/24/2015Case ID: 130703647

Stillwater Lakes Civic Ass'n, Inc. v. Krawitz,772 A.2d 118 (Pa. Commw. 2001) 21, 22

Stolarcik v. Stolarcik,45, 46, 48363 A.2d 793 (Pa. Super. 1976)

Sutton v. Miller,26592 A.2d 83 (Pa. Super. 1991)

Thompson v. Md. & Pa. R.R. Pres. Soc.,40, 41, 50612 A.2d 450 (Pa. Super. 1992)

Tobias v. Halifax Twp.,5828 A.3d 223 (Pa. Commw. 2011)

Walsh v. Kubiak,39661 A.2d 416 (Pa. Super. 1995) (en banc)

Watkins v. Watkins,51, 52, 53775 A.2d 841 (Pa. Super. 2001)

Werry v. Sheldon,4224 A.2d 631 (Pa. Super. 1942)

Williams v. Lumbermen's Ins. Co.,551 A.2d 658 (Pa. 1938)

Zeglin v. Gahagen,54812 A.2d 558 (Pa. 2002)

Statutes

42 Pa.C.S. 5530 45, 49, 52

Rules

Pa.R.Civ.P. 1033 20

Pa.R.Civ.P. 2002 21

Pa.R.Civ.P. 4003 39

Other Authorities

Powell on Real Property, Vol 4 34.04[7]1 78A-40 29, 31

Restatement of Property 44 (1936) 45

Restatement of Property 45 (1936) 46

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Restatement of Property 57 (1936) 46

Restatement (Third) of Property (Mortgages) 3.4 cmt. a & 3.4(b) (1996) 22

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Defendants, Brian Mast, Sixth Street Management Corp., John Giunup, and Michael

Pettacio (collectively, "Defendants"), by and through their undersigned attorneys, Fox Rothschild

LLP, respectfully submit Proposed Findings of Fact and Conclusions of Law after the bench trial

of March 11-17, 2015:1

I. PROPOSED FINDINGS OF FACT

A. Overview

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

across certain properties located along Sixth Street in North Philadelphia.

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

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

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

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

property at 4525 N. 6th Street (the "Payload Property") on which they operate a waste disposal

business called Payload Disposal. (D-20, D-87 at 1(2, 4).

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

a strip of land that extends across five city blocks from Cayuga Street to Rockland Street along a

former North Pennsylvania Railroad right-of-way. (D-2, P-4A).

By Order dated March 18, 2015, this Court directed Plaintiff to file its Findings of Fact ("FOF") andConclusions of Law ("COL") "within two weeks of its notification of the completion of the Notes of Testimony."Counsel for Plaintiff and Defendants received notice of the completion of the Notes of Testimony by email fromCourt Reporter Judith J. Hall on May 27, 2015 at 5:08 p.m. Therefore, Plaintiff's FOF and COL were due on June10, 2015. Despite the passage of over two months between the close of trial on March 17, 2015, and whenPlaintiff's FOF and COL were due, Plaintiff filed its FOF and COL a day late on June 11, 2015 at 5:16 p.m.Plaintiff's counsel did not contact defense counsel for an extension of the deadline. Defendants were ordered to filetheir FOF and COL "within two weeks of the filing of Plaintiffs brief." Defendants have nevertheless endeavoredto comply with the Court's scheduling by filing their FOF and COL within two weeks of the intended June 10, 2015deadline for Plaintiffs FOF and COL.

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

through the rear of the Sixth Street Property and the Payload Property. (Plaintiff s First Amended

Complaint "FAC").

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

to the disputed area of the right-of-way based on deeds dating back to the mid-1800's which

provide that the Sixth Street Property and the Payload Property extend to the "center line" or

"middle line" of the North Pennsylvania Railroad. (P-26).

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

Property run to the "center line" or "middle line" of the former North Pennsylvania Railroad as

set forth in their deeds dating back to the 1800's.

B. The Defendants' Properties

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

Sixth Street in the Hunting Park section of the City of Philadelphia (the "City") between West

Annsbury Street and Roosevelt Boulevard. (D-42; Tr. 3/13/15 at 115:9-16).

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

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

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

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

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

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

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1. The Property Plan

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

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

("Stauch") of Eustace Engineering. (D-31, D-42).

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

and registry maps, and plans for the subject properties as well as through a field survey. (D-30;

Tr. 3/13/15 at 74:20-22, 76:3-77:20).

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

Property and the Payload Property, Stauch concluded that they created closed figures and they

lined themselves properly. (Tr. 3/13/15 at 79:22-80:3).

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

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

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

42).

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

Plan is consistent with the plan prepared by Plaintiffs surveyor, Charles Karat, PLS of Stantec

Consulting Services Inc. (P-43).

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

Property and the Payload Property on the one hand and Plaintiffs claimed right-of-way on the

other hand with regard to the area between the center line and the westerly line of the former

North Pennsylvania Railroad Right-of-Way. (D-42).

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

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

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

Property Plan as follows: (1) the Sixth Street Property (D-38); (2) the Payload Property (D-39);

(3) the Disputed Area of the Sixth Street Property (D-40); and (4) the Disputed Area of the

Payload Property (D-41).

2. The Sixth Street Property

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

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

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

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

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

provides that the property extends to the "middle line" of the former North Pennsylvania

Railroad. (Tr. 3/13/15 at 165:5-14; D-54).

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

square feet. (D-54).

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

Street Property which are calculated by the City to include the area up to the middle line of the

former North Pennsylvania Railroad. (D-16, D-18).

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

approximately 22,000 square feet facing Sixth Street and a gravel parking lot at the rear of the

property. (Tr. 3/13/15 at 166:23-167:8).

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

cleaning company, Covenant Cleaning, and to a disaster restoration business, Omega Restoration.

(Tr. 3/13/15 at 178:14-19). It also leases space in the building to the following four non-profit

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organizations: (1) Joy in the City a provider of adult education and counseling services; (2)

Christian Legal Clinic of Philadelphia a non-profit legal clinic; (3) Kingdom Builders

Construction where professional carpenters and volunteer coordinators train youth to renovate,

maintain, and rebuild church buildings; and (4) Simple Cycle a bicycle shop that trains and

employs unprivileged young adults from the neighborhood. (Tr. 3/13/15 at 178:19-179:10).

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

access, and storage. Simple Cycle also uses the rear parking lot to teach a vocational welding

class for people in the neighborhood. (Tr. 3/13/15 at 173:10-18; 179:17-180:4).

31. Sixth Street Management also leases twenty parking spaces to the neighboring

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

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

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

(D-13).

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

at 181:4-5).

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

of the Sixth Street Property with six inches of crushed stone and a security gate. (D-13). In

exchange, Esperanza received a rent credit of $37,327 that pays the parking rent through the

middle of 2027. (Tr. 3/13/15 at 182:11-20; D-13).

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

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

Street Property, access to the rear parking lot is provided through an easement over the Esperanza

Health Center property. (Tr. 3/12/15 at 115:17-21, 3/13/15 at 173:9-18; D-13, D-38).

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

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

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

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

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

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

the Sixth Street Property ran to the center line of the former North Pennsylvania Railroad. (Tr.

3/13/15 at 162:14-16; 165:5-14).

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

used by an individual named Mike McAnally for storage and processing of junk cars. (Tr.

3/13/15 at 162:19-20, 163:8-14, 164:3-6). McAnally operated a tow facility where he would

bring cars in and then scrap them. (Tr. 3/13/15 at 164:11-13, 164:21-165:4). Sixth Street asked

McAnally to vacate the Sixth Street Property but he refused to do so. (Tr. 3/13/15 at 163:18-

164:2)

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

beyond that property several blocks from Cayuga Street to Annsbury Street all the way up to

Roosevelt Boulevard. (Tr. 3/13/15 at 164:14-20).

3. The Payload Property

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

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

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

(D-87 at 7).

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

deed. (D-45).

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

provides that the Payload Property extends to the "center line" of the former North Pennsylvania

Railroad. (D-20, D-45).

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

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

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

Property which are calculated by the City to include the area up to the center line of the former

North Pennsylvania Railroad. (D-23, D-24, Tr. 3/16/15 at 120:21-121:2, 121:23-122:4, 122:10-

20).

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

sixteen storage garages, and a rear storage yard, a portion of which is concrete paved and a

portion of which is gravel and dirt. (D-39, D-87 at 10).

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

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

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

understood that the property ran to the center line of the former North Pennsylvania Railroad.

(Tr. 3/16/15 at 115:13-17).

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

Property. (D-87 at 16).

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4. The Stone and Block Wall on the Payload Property

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

fence on top runs northward to West Annsbury Street and cuts through the disputed rear area of

the Payload Property. (D-39, D-41, D-87 at 14).

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

exclusively used by the owners of the Payload Property.

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

"Philadelphia Instruments and Controls" at 4401 N. 6th Street, Philadelphia, which is in close

proximity to the Payload Property. (Tr. 3/13/15 at 20:7-16). The business has been located at

4401 N. 6t1' Street since 1943. (Tr. 3/13/15 at 21:22-25).

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

at 20:17-19).

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

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

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

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

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

and block wall on the Payload Property to be used by the owners of the Payload Property. (Tr.

3/13/15 at 30:23-34:23).

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

observed Payload trucks parked on the area of the Payload Property inside the stone and block

wall on a daily basis. (Tr. 3/13/15 at 35:2-15).

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

Engelhardt observed vehicles being worked on parked on the entire area inside the stone and

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block wall during the period in which the Payload Property was used in that manner. (Tr. 3/13/15

at 35:22-36:21).

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

being used by a concrete company called D'Andrea Construction. (Tr. 3/13/15 at 36:22-24).

Engelhardt was very familiar with D'Andrea Construction because he previously played Little

League baseball with the owner's son. (Tr. 3/13/15 at 37:7-9).

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

Payload Property inside the stone and block wall to park their cement trucks and operate the

business since as early as 1976. (Tr. 3/13/15 at 37:7-38:14).

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

traveling to work past the Payload Property has he ever observed the area inside the stone and

block wall used by anyone other than the owner or tenant of the Payload Property. (Tr. 3/13/15 at

38:15-20).

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

block wall to operate Payload Disposal since they purchased the Payload Property in March 2004.

(D-87 at 15). Payload uses the area of the Payload Property right up to the stone and block wall

for parking. (Tr. 3/16/15 at 117:11-17). Payload also uses this pie-shaped portion for storage of

trash containers. (Tr. 3/16/15 at 117:22-118:3).

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

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

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

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

118:7-10).

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

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

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

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

5. Defendants' Chain of Title

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

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

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

Defendants' predecessor in title, Gustavus G. Logan (the "1862 Dickinson Deed"). (D-76, D-86,

D-89 at TT 6(a), 7(a)).

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

Property extend "to the middle of the North Pennsylvania Rail Road" and that the land conveyed

"includ[es] the portion thereof occupied by the said [North Pennsylvania] Rail Road." (D-76, D-

86).

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

provide that the Sixth Street Property and the Payload Property extend to the "center line" or

"middle line" of the former North Pennsylvania Railroad. (D-45-76).

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

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

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

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

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

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

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

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

C. Plaintiff s Claimed Right-of-Way

1. Railroad Recovery

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

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

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

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

14:10-13).

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

across five city blocks from Cayuga Street to Rockland Street along the Former North

Pennsylvania Railroad Right-of-Way. (P-43).

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

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

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

Plaintiffs claimed right-of-way and that Giunup and Pettacio maintain a concrete wall with an

embedded fence that allegedly encroach upon Plaintiffs claimed right-of-way. (FAC, 27-30).

2. The 1854 Dickinson Deed

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

parties. (D-89).

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

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

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

occupying and Enjoying for Rail Road purposes" Dickinson's property as follows:

...doth grant bargain sell release and confirm unto the said the NorthPennsylvania Rail Road Company their successors and assigns the Entireand Exclusive use Right and liberty and privilege of using occupying andEnjoying for Rail Road purposes ALL THAT [description of parcel] andof keeping using and maintaining thereon the Rail Road of the Said partyof the second part and at all times hereafter forever together with incidenteasements and appurtenances thereunto belonging...

(P-1, P-2, D-80).

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

North Penna. R. R. Co. Through the Property of Sarah Dickinson Containing 9 A57 Perches

Scale 200 feet to an inch." (D-80) (emph. added).

88. The 1854 Dickinson Deed contains a habendum clause which includes a

reversionary clause as follows:

TO HAVE AND TO HOLD the rights and premises aforesaid unto thesaid The North Pennsylvania Railroad Company, their successors andassigns forever upon condition that the said Company its successors orassigns shall make maintain keep and use upon the aforesaid piece of landa Rail Road, and if it shall happen that the rail road contemplated to benow shortly construed on and over the said described strip or piece of landor any renewals or reconstructions thereof, shall be removed or abandonedor the said described piece of land shall cease to be used for Rail roadpurposes, then the said strip of land shall revest in the said Sally NorrisDickinson, her heirs and assigns, as of her and their first and formerEstate, and she or they shall thereupon repossess and enjoy the same as ifthis present Indenture had never been made.

(P-1, P-2, D-80).

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

40:3-25).

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

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

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of the United States Railway Association and awarded the North Pennsylvania Rail Road

Company lands to Consolidated Rail Corporation ("Conrail"). (P-10).

91. The North Pennsylvania Railroad conveyed its interest under the 1854 Dickinson

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

3. The Conrail Abandonment

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

Commission ("ICC") to abandon its common carrier obligation with regard to the Bethlehem

Branch, which branch included the claimed right-of-way at issue in this action. (P-11; Enright Tr.

Dep. at 22:15-19; 84:10-14).

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

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

84:15-18).

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

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

95. The segment of the Bethlehem Branch that Conrail abandoned included the

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

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

memorialized in a Conrail memorandum dated January 13, 1988 from JF Btak. (D-29; Enright

Dep. at 87:21-88:22).

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

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

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

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

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4. The Quit Claim Deed From Conrail

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

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

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

testified:

Because of the complicated history of railroad conveyances and given thatit's a right of way, you have occupations underground, above ground. Wewant to put the burden on the purchaser to satisfy itself that they'reacquiring title and it's insurable. We don't make that representation orwarranty. Let them do their own title search and satisfy themselves.

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

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

"1994 Quit Claim Dean. (D-2 at Exh. "A"). Plaintiff did not inquire of Conrail as to the basis

of its ownership of the right-of-way. (D-88 at 124:6-9).

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

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

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

performed, and Plaintiff did not have an understanding as to where the property lines fell in

relation to neighboring property owners. (D-88 at 19:8-15, 124:14-16; Tr. 3/17/15 at 47:20-22).

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

deed recorded, but Chase could not record the deed because there was no address or metes and

bounds legal description associated with the property. (D-2, D-88 at 107:24-108:12).

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

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

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

years later. (D-2). However, from Conrail's perspective, it effectively sold the property to

Plaintiff in 1994 based upon the 1994 Quit Claim Deed. (Enright Tr. Dep. at 83:1-6).

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

Deed"). (D-2).

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

Quit Claim Deed could not be recorded due to the lack of a metes and bounds property

description. (D-2).

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

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

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

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

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

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

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

sell the right-of-way to Linda Miller for $20,000 (the "Installment Agreement"). (P-76, D-88 at

23:16-25; Tr. 3/17/15 at 41:23-25, 45:9-46:7).

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

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

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

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

115. The Installment Agreement between Plaintiff and Linda Miller is dated February

16, 1998. (P-76).

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

Installment Agreement and fully performed under the terms of the Installment Agreement. (D-88

at 29:15-20; 62:3-7; Tr. 3/17/15 at 46:4-13).

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

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

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

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

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

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

39:4-8).

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

55:16-21).

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

55:16-21). McAnally has operated a scrap yard on the right-of-way. (Tr. 3/16/15 at 119:8-9).

Previously it was filled with auto debris and trash and that condition persisted at the time of trial.

(D-25; Tr. 3/13/15 at 173:21-174:3).

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

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

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

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

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

(Id. at 104:2-3).

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

observed Clauss occupy or use the claimed right-of-way. (Tr. 3/16/15 at 122:21-123:4). The

only people Defendants saw occupy and use the right-of-way during that time was McAnally.

(Tr. 3/16/15 at 123:2-4).

D. The 2008 Ejectment Action

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

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

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

that Poor Boys claimed to be leasing the right-of-way from Linda Miller and that Linda Miller

was the wife of a principal of Poor Boys, Michael McAnally. (P-51 at pp. 1-2).

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

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

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

defendants, entered a stipulation to amend the caption and complaint to add Linda Miller as a

defendant. (P-53).

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

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

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

defendants, The Honorable Gary S. Glazer issued an Order ejecting Poor Boys and Miller from

the claimed right-of-way on the Sixth Street Property. (D-19).

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

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

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

Miller. (P-56).

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

she was not properly served and did not have notice of the proceedings. By Order dated February

7, 2013, Judge Glazer denied the Motion to Strike as untimely and without legal merit as follows:

The court finds that the defendant, Linda Miller, had notice of theproceedings against her. Defendant Miller is listed on the docket as adefendant. Attorney, Wayne R. Maynard, is listed as attorney fordefendants. A stipulation to file an amended complaint including LindaMiller as a defendant was filed on July 15, 2009. At the commencementof the trial, defendants' counsel did not object to the addition of LindaMiller. See Trial Transcript, pp. 6-7. Moreover, defendants' counselincluded Linda Miller in his proposed findings of fact. See [P]laintiff sanswer to the motion to strike, Exhibit D. An appeal was quashed by theappellate court on January 26, 2010 and a praecipe for entry of judgmentwas filed on October 2, 2012. Defendant Miller waited until January 13,2012 to file this instant motion to strike. Finally, defendant Miller raisedno objections in this matter until more than three years after judgment.While this motion is an interesting afterthought, it is untimely and withoutlegal merit.

(D-81).

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

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

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

reasoning in the February 7, 2013 Order in response to Linda Miller filing her appeal to the

Superior Court. (D-83).

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

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

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

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

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E. Other Litigation

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

Quinn, commenced a federal action against Conrail, Railroad Recovery, and Clauss captioned as

Miller v. Railroad Recovery, Inc., et al., No. 2:11-cv-06901 (E.D.Pa. 2011) (the "Federal

Action"), seeking a deed to the claimed right-of-way in connection with the Installment

Agreement. (D-1).

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

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

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

counsel, John Enright, understood that Attorney Quinn represented Linda Miller. (Enright Tr.

Dep. at 68:3-7).

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

Railroad Recovery and Clauss in this Court seeking a deed to the right-of-way in connection with

the Installment Agreement. See Miller v. Clauss, et al., March Term 2013, No. 00439 (C.C.P.

Phila.). (D-89 at 40:23-41:11, 41:18-22; Tr. 3/17/15 at 47:23-25). That action was ultimately

discontinued, but no deed to the right-of-way was ever recorded into Linda Miller. (Id. at 49:20-

25).

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

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

F. The Current Litigation

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

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

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

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

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

compensatory damages, treble damages, delay damages, prejudgment interest, counsel fees and

costs in an amount in excess of $50,000. See FAC, 42(c), 45(b), 55.

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

claims in the FAC and testified that Plaintiff has not lost any rental income or profits from

Defendants' alleged improper use of the property or otherwise suffered any other damages. (Id. at

74:8-78:22).

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

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

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

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

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

by the doctrine of adverse possession; and (2) because Plaintiffs predecessors had a mere

easement. (P-26 at New Matter, In 61, 69, 71, 73).

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

Pettacio were permitted to amend their counterclaims to assert: (1) a claim for adverse possession

as to the area of the Payload Property inside the stone and block wall; and (2) a claim for

ejectment as to the disputed portion of the Payload Property occupied by Plaintiff's privies,

McAnally/Poor Boys/Miller. (Tr. 3/13/15 at 17:23-18:3).

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

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

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Mast; and (2) Defendants' Motion for Nonsuit for failure to state a claim for mesne profits and

rents in Count III of the FAC. (Tr. 3/13/15 at 18:5-15).

PROPOSED CONCLUSIONS OF LAW

A. Plaintiff is Not the Real Party in Interest and Lacks Standing to Bring ThisEjectment Action

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

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

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

must not merely have an interest in the result of the action, but must be in command of the action.

Clark v. Cambria County Bd. of Assessment Appeals, 747 A.2d 1242, 1246 (Pa. Commw. 2000).

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

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

1993).

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

claimed right-of-way to Linda Miller under the Installment Agreement on February 15, 1998. See

Bauer v. Hill, 267 Pa. 559, 562 (1920) (holding that whenever an unconditional agreement has

been made for the sale of land, such as equity will specifically enforce, the property may properly

be referred to as sold).

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

the buyer becomes the equitable or beneficial owner of the property. Stillwater Lakes Civic

Ass'n, Inc. v. Krawitz, 772 A.2d 118, 120 (Pa. Commw. 2001) (citing, Byrne v. Kanig, 332 A.2d

472 (Pa. Super. 1974)).

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

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

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Stillwater Lakes, 772 A.2d at 120 (citing, Anderson Contracting Co. v. Daugherty, 417 A.2d 1227

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

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

and a buyer who are parties to an installment sales agreement is that of a mortgagee and

mortgagor. Stillwater Lakes, 772 A.2d at 121 (noting that Restatement (Third) of Property

(Mortgages) 3.4 cmt. a & 3.4(b) (1996) states that, in an installment sales agreement, the seller

is financing the balance of the purchase price, and that the installment sales contract creates a

mortgage).

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

Linda Miller became the equitable or beneficial owner of the claimed right-of-way and the

property was deemed sold. (P-76).

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

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

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

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

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

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

104:2-3).

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

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

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

ejectment action because it sold the claimed right-of-way to Linda Miller. (P-76; D-88 at 49:20-

25, 54:23-55:2, 62:3-7).

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

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

76).

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

other prior actions involving the claimed right-of-way demonstrates that Linda Miller is the real

party in interest with the requisite power to control this action. (D-1, D-83, D-88 at 40:23-41:7,

41:18-22, P-18).

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

judicata implications of Judge Glazer's prior holding that Sixth Street Management has superior

title to the disputed portion of the Sixth Street Property. See Ham, 620 A.2d at 8 (rejecting

litigant's attempt to avoid res judicata effect of prior land use decision by filing subsequent action

on the same issue in the name of his paramour).

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

2012, does not alter the conclusion that the claimed right-of-way was sold to Linda Miller on

February 15, 1998, and Linda Miller is the real party in interest.

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

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

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

Matter of Pentrack's Estate, 405 A.2d 879, 880 (Pa. 1979). Graham v. Lyons, 546 A.2d 1129,

1130 (Pa. Super. 1988) ("The title to real estate may be passed by delivery of a deed without

undertaking a recording since the recording is essential only to protect by constructive notice any

subsequent purchasers, mortgages, and new judgment creditors.").

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

intent, and the grantor delivers the deed to the grantee, whether actual or constructive. Fiore v.

Fiore, 174 A.2d 858, 860 (Pa. 1961).

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

Recovery through the 1994 Quit Claim Deed:

Q. From Conrail's perspective as of 1994 based upon the earlier Deedwe looked at together, this property had been effectively conveyedto Railroad Recovery?

A: We thought, yes. That was our belief.

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

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

Deed depicted the claimed right-of-way that was being conveyed by Conrail to Railroad

Recovery, Inc. back in 1994:

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

A: The case plan represents a map depiction of the right of way that was being conveyed by Conrail to Railroad Recovery, Inc. back in1994. It's based off of what I believe I previously testified about,evaluation map for that particular right of way.

(Enright Tr. Dep. at 73:14-74:1) (emph. added).

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

delivery of the 1994 Quit Claim Deed actually took place. (Plaintiffs FOF, If 14). Not only is it

the first time Plaintiff has ever raised this issue, but it is both incorrect and meritless. There is

evidence that the 1994 Quit Claim Deed was delivered to Plaintiff. Indeed, Plaintiff testified that

its representative personally attempted to record the 1994 Quit Claim Deed at the time, but was

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unable to do. (D-88 at 107:24-108:12, 108:23-12). Certainly Plaintiff could not have attempted

to personally record the 1994 Quit Claim Deed if it never received it.

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

Miller in 1999-2000, its representative gave her a copy of the 1994 Quit Claim Deed. (D-88 at

30:17-31:10, 32:3-15, 32:23-33:8, 58:2-20). Again, Plaintiff could not have given Linda Miller a

copy of the 1994 Quit Claim Deed in 1999-2000 if it never received it.

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

constructive delivery is sufficient for conveyance of real property. Fiore, 174 A.2d at 860;

Mower v. Mower, 80 A.2d 856, 857 (Pa. 1951). Here, the 1994 Quit Claim Deed bears all of the

indicia of Conrail's intent that the 1994 Quit Claim Deed be delivered to Plaintiff in that it is fully

executed, notarized, and lists Plaintiffs address for delivery of the deed. (D-3 at pp. 5-6).

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

after the 1994 conveyance by Conrail further evidence that the claimed right of way was

conveyed to Plaintiff at that time. (Id. at 23:9-12).

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

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

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

recorded until 2012 as part of the 2012 Quit Claim Deed is irrelevant to whether the claimed

right-of-way was sold to Linda Miller in 1998, making Linda Miller the real party in interest for

purposes of this action.

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

the circumstances surrounding the issuance of the 2012 Quit Claim Deed in that Conrail provided

the 2012 Quit Claim Deed in response to the federal action prosecuted by Linda Miller and at the

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request of Linda Miller's then attorney, Anthony Quinn, who not coincidentally, is the same

attorney prosecuting this action. (Enright Tr. Dep. at 68:3-7; 79:22-80:1).

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

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

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

this action against Defendants.

B. Railroad Recovery's Ejectment Claims Fail Because It Cannot Meet ItsBurden of Establishing Paramount Title

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

the right to immediate exclusive possession. Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super.

1991) (citing, Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984); Harbor Marine Co. v.

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

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

weakness of defendant's title. Doman, 592 A.2d at 108 (citing, Artz v. Meister, 123 A. 501 (Pa.

1924); Ratajski v. West Penn Mfg. & Supply Corp., 182 A.2d 243 (Pa. Super. 1962)).

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

preponderance of the evidence, the right to exclusive possession vis--vis proof of paramount

title. Sutton v. Miller, 592 A.2d 83, 89 (Pa. Super. 1991).

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

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

Property.

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1. The Estate Granted to the North Pennsylvania Railroad Was a MereRailroad Right-of-Way and Not a Fee Interest

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

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

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

Railroad received under the 1854 Dickinson Deed. The instrument reads in pertinent part as

follows:

THIS INDENTURE, made the Twelfth day of January in the year of ourLord one thousand eight hundred and fifty four, between SALLY NORRISDICKINSON, of the City of Philadelphia, Single woman of the First part,and "THE NORTH PENNSYLVANIA RAIL ROAD COMPANY" of theSecond part.

WITNESS, that the said Sally Norris Dickinson for and in consideration ofthe sum of Nine thousand three hundred and fifty six dollars and sixtyseven cents lawful money to her paid by the said The North PennsylvaniaRail Road Company at and before the sealing and delivery hereof thereceipt whereof is hereby acknowledged, Hath granted, bargained, sold,released and confirmed and by these presents Doth grant, bargain, sell,release and confirm unto the said The North Pennsylvania Rail RoadCompany, their successors and assigns the entire and exclusive use, right,liberty and privilege of using, occupying and enjoying for Rail Roadpurposes, All that strip or piece of land (part of the lands and estate of thesaid Sally Norris Dickinson) extending from Nicetown Lane toWingohocking Creek in the Township of the Northern Liberties andCounty of Philadelphia.

CONTAINING nine acres and fifty seven perches as the said strip or pieceof land is delineated and laid down in the map or plan thereof here untoannexed (which is to be taken as part of this Indenture) and of keeping,using and maintaining thereon the Railroad of the said party of the SecondPart at all times hereafter forever.

TOGETHER with the incidents, easements and appurtenances thereuntobelonging.

TO HAVE AND TO HOLD the rights and premises aforesaid unto the saidThe North Pennsylvania Rail road Company, their successors and assignsforever, upon condition that the said Company, its successors or assigns,shall make, maintain, keep and use upon the aforesaid piece of land a RailRoad, and if it shall happen that the rail road contemplated to be now

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shortly constructed on and over the said described strip or piece of land orany renewals or reconstructions thereof, shall be removed or abandoned orthe said described piece of land shall cease to be used for Rail roadpurposes, then the said strip of land shall revert in the said Sally NorrisDickinson, 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 thispresent Indenture had never been made.

IN WITNESS WHEREOF the said party of the first part hath hereunto sether hand and seal and the said party of the second part hath hereuntocaused their corporate seal to be affixed the day and year first hereinabovementioned.

(D-80; P-1, P-2).

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

and effectuate what the parties intended.'" Mackall v. Fleegle, 801 A.2d 577, 581 (Pa. Super.

2002) (quoting, Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 (Pa. 1957)).

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

intention are as follows:

(1) the nature and quantity of the interest conveyed must beascertained from the instrument itself and cannot be orally shownin the absence of fraud, accident or mistake and we seek toascertain not what the parties may have intended by the languagebut what is the meaning of the words...; (2) effect must be given toall the language of the instrument and no part shall be rejected if itcan be given meaning ...; (3) if a doubt arises concerning theinterpretation of the instrument it will be resolved against the partywho prepared it...; (4) unless contrary to the plain meaning of theinstrument, an interpretation given it by the parties themselves willbe favored...; (5) to ascertain the intention of the parties, thelanguage of a deed should be interpreted in the light of the subjectmatter, the apparent object or purpose of the parties and theconditions existing when it was executed...

Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 at n. 6 (Pa. 1957) (emph. in

original) (citations omitted).

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

compels the conclusion that Dickinson did not intend to convey a fee simple interest to the North

Pennsylvania Railroad and that all that was intended was an easement or railroad right-of-way.

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

a limited right to use the land for railroad purposes and upon abandonment of such use by the

railroad, the right-of-way is terminated. (D-43, p. 5) (citing, Powell on Real Property, Vol 4

34.04[7]; 78A.06[3][b] (Rel 144-9/2013)). Although similar to an easement, a railroad right-of-

way differs in that the railroad has the right to exclusive use and to alter the terrain. (Tr. 3/16/15

at 14:16-15:21, 28:21-29:7).

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

automatically reverts to the adjoining landowner to the center line. (Tr. 3/16/15 at 14:19-23).

There is no obligation on the part of the holders of the servient estate to take affirmative action to

retake possession. (Tr. 3/16/15 at 16:2)

196. Pennsylvania courts consistently hold that conveyances to railroads which do not

clearly grant a fee are to be construed as railroad rights-of-way. Lawson v. Simonsen, 417 A.2d

155, 159 (Pa. 1980); Fleck v. Universal-Cyclops Steel Corp., 156 A.2d 832, 834 (Pa. 1959);

Brookbank, 131 A.2d at 165-66; Mackall, 801 A.2d at 583; Quarry Office Park Assocs. v. Phila.

Elec. Co., 576 A.2d 358, 362 (Pa. Super. 1990).

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

railroad right-of-way or easement, and not a fee simple interest. When compared with the

instruments in those cases, it is clear that the 1854 Dickinson Deed granted an easement or

railroad right-of-way and not a fee simple interest.

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

factors which, taken together, point to the grant of an easement or railroad right-of-way in the

1854 Dickinson Deed.

Lack of a Warranty Clause

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

the 1854 Dickinson Deed is indicative of intent to convey an easement or railroad right-of-way,

and not a fee simple interest. Lawson, 417 A.2d at 159; Brookbank, 131 A.2d at 110; Mackall,

801 A.2d at 582; Quarry, 576 A.2d at 3625. For example, the Lawson court found it "unlikely"

and the Brookbank court "inconceivable" that the railroad would not have required a warranty of

title if a fee simple interest were intended. Lawson, 417 A.2d at 159; Brookbank, 131 A.2d at

110.

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

Dickinson Deed supports the conclusion that all that was intended in the grant was an easement or

railroad right-of-way and not a fee simple interest.

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

traditional that every deed of fee will have a warranty of title. The fact that the 1854 Dickinson

Deed does not have a warranty clause weighs in favor of finding that a fee title was not intended.

(Tr. 3/16/15 at 40:3-25).

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

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Recitation of Specific Rights in the Granting Clause

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

present here, is the recitation of specific rights granted to the railroad in the granting clause.

Brookbank, 131 A.2d at 110; Quarry, 576 A.2d at 360; Mackall, 801 A.2d at 579, 582. The

enumeration of specific rights to use and occupy land for a specific purpose is inconsistent with

the grant of a fee, but consistent with the grant of an easement or right-of-way. See Powell on

Real Property, Vol 4 34.04[7]1 78A-40, pp. 34-35 (Rel. 144-9/2013) ("... [A] conveyance

permitting the conveyee to make stated use of the land for particular purpose, is normally

construed to create an easement...").

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

land for "all the uses and purposes convenient or necessary for a Rail Road." Quarry, 576 A.2d at

360. The Brookbank instrument granted the railroad the right to enter the land and to construct

and operate a railroad. Brookbank, 131 A.2d at 110. The instrument in Mackall granted the

railroad the "use" of a strip of land for the "construction, repair and use" of a double railroad track

as far as it may extend over "our lands." Mackall, 801 A.2d at 579, 582. In each instance, the

courts found that the grant of certain rights to the railroad was consistent with conveyance of a

railroad right-of-way and inconsistent with conveyance of a fee interest.

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

"using, occupying and Enjoying for Rail Road purposes" a "strip" of land which is "part of the

lands and estate of the said Sally Norris Dickinson." (D-80; P-1). In the words of the Brookbank

Court, "[i]f the parties intended to convey a fee simple interest to the railroad, it was surplusage to

give the railroad these rights because such rights would naturally belong to the railroad as holder

of the fee." Brookbank, 131 A.2d at 110. Guided by the traditional rules of construction, the only

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way to give effect to all of the language in the 1854 Dickinson Deed is to conclude that the parties

did not intend a fee simple interest. Any other construction would fail to give meaning to the

enumeration of specific rights of "using, occupying and Enjoying for Rail Road purposes" in the

1854 Dickinson Deed.

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

of the deed that provides that the grantor grants and conveys to the grantee. (Tr. 3/16/15 at 33:17-

34:7). If the deed goes on to qualify the grant in the granting clause, that takes it out of a fee and

changes it to an easement. (Tr. 3/16/15 at 34:8-11). Here, the Dickinson Deed provides that it

"assigns the entire and exclusive use, right, liberty and privilege of using, occupying and enjoying

for Rail Road purposes." (D-80; P-1, P-2). This language is not indicative of a fee grant because

it is limited to exclusive use of occupying and enjoying for railroad purposes. (Tr. 3/16/15 at

35:2-12). It is inconsistent with a fee grant to have the grant be limited to railroad purposes. (Tr.

3/16/15 at 35:12-14).

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

"exclusive use, right, liberty and privilege of using" is indicative of railroad right-of-way because:

(1) railroads could not have other people on their right-of-way constructing things; and (2) this

language would not be needed for a fee because exclusive use is inherent with a fee. (Tr. 3/16/15

at 69:23-70:12).

The Habendum Clause

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

TO HAVE AND TO HOLD the rights and premises aforesaid unto the saidThe North Pennsylvania Rail road Company, their successors and assignsforever, upon condition that the said Company, its successors or assigns,shall make, maintain, keep and use upon the aforesaid piece of land a RailRoad, and if it shall happen that the rail road contemplated to be now

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shortly constructed on and over the said described strip or piece of land orany renewals or reconstructions thereof, shall be removed or abandoned orthe said described piece of land shall cease to be used for Rail roadpurposes, then the said strip of land shall revest in the said Sally NorrisDickinson, 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 thispresent Indenture had never been made.

IN WITNESS WHEREOF the said party of the first part hath hereunto sether hand and seal and the said party of the second part hath hereuntocaused their corporate seal to be affixed the day and year first hereinabovementioned.

(D-80; P-1, P-2).

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

of-way was intended in that it aptly describes the nature and parameters of a railroad right-of-way.

(Tr. 3/16/15 at 37:18-39:9). As Dixon explained lilt's a grant of the use, and when that use

ceases it goes back to the grantor and their successors in title, which would mean the current

landowners." (Id. at 37:9-12).

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

defeasible fee (D-43, p. 10; Tr. 3/16/15 at 108:19-109:4), he explained that any inconsistency in

the language was due to the fact that railroad rights-of-way were not commonly understood in the

mid-1800's and the scriveners were trying to define how the interest was intended to operate. (Tr.

3/16/15 at 36:12-21). Because there was no established law during this period of time, courts

should review the deed from a historical standpoint in interpreting what was the intent of the

parties, including that the property conveyed was a narrow strip which is consistent with grant of

a railroad right-of-way. (Tr. 3/16/15 at 39:17-22).

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

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

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Cyclops Steel Corp., 156 A.2d 832 (Pa. 1959). Here, the language of the grant in the 1854

Dickinson Deed clearly granted a railroad right-of-way and not a fee. (Tr. 3/16/15 at 108:23-25).

Reference to the Grantor's Continuing Interest in the Property

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

supports the conclusion that an easement was intended in that the map makes reference to the

grantor's continuing interest in the property. (D-80). In particular, the "map or plan" annexed to

and incorporated in the 1854 Dickinson Deed supports the conclusion that a mere railroad right-

of-way was intended in that the survey is described as "ground occupied by North Penna R. R.

Co. Through the Property of Sarah Dickinson." (D-80) (emph. added). This language supports

the interpretation that the railroad had only a right to "occupy" the strip of land and the property

remained that of Dickinson, which is consistent with grant of a railroad right-of-way. This

language is similar to the grant in Fleck which conveyed to the railroad a right-of-way through

and over the grantor's land and to the conveyance in Mackall which granted the railroad use of a

strip of land over our lands. Fleck, 156 A.2d at 833; Mackall, 801 A.2d at 579, 582.

Historical Context and Public Policy

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

grant to the railroad conveyed an easement or railroad right-of-way to the railroad and not a fee.

Dixon opined that at the time the 1854 Dickinson Deed was conveyed, where, as here, a strip of

land across a grantor's property was conveyed to a railroad for railroad purposes, the estate

intended to be conveyed was a railroad right-of-way and not a fee simple interest. (D-43 at p. 11).

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

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

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p. 4). Dixon testified that the problem with defeasible fees (fee subject to condition subsequent

and fee simple determinable) it may not be known who owns the reversionary interest for 100 or

150 years depending on whether the reversionary interest was conveyed. (Id. at 24:16-23). The

other consequence of construing former railroad rights-of-way as fees, is that it creates

unmarketable slim corridors of land that potentially cut through the properties of numerous

landowners and cause great disruption. (Tr. 3/16/15 at 25:7-15; D-43 at p. 4). It is reasonable to

conclude that the parties' intended to avoid these undesirable circumstances by conveying to the

railroad only a railroad right-of-way or right or use that terminated upon abandonment of the

railroad.

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

this historical context in that in all five cases, the courts construed grants of strips of land to

railroads as easements or railroad rights-of-way and not fee interests.

Acknowledgement of the Railroad Occupation in the 1862 Dickinson Deed

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

supports the conclusion that the 1854 Dickinson Deed conveyed only any easement or railroad

right-of-way to the North Pennsylvania Railroad and not a fee. In that regard, the 1862 Dickinson

Deed provides that the property conveyed to Defendants' predecessors in title extends to "the

middle of the North Pennsylvania Rail Road" and "includes] the portion thereof occupied by the

said [North Pennsylvania] Rail Road." (D-76; D-86) (emph. added). This language in the 1862

Dickinson Deed acknowledging that Dickinson previously granted the railroad a right to occupy a

portion of her estate, shows that it was not an oversight that the 1862 Dickinson Deed conveyed

out a portion of the same land to Defendants' predecessors (i.e., "to the middle of the North

Pennsylvania Railroad) that was the subject of the 1854 Dickinson Deed eight years earlier. (Tr.

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3/16/15 at 53:4-15). While this does not conclusively establish that the 1854 Dickinson Deed was

intended to convey an easement or railroad right-of-way, it strongly indicates that Dickinson's

trustees reviewed Dickinson's intent closer in time to the 1854 Dickinson Deed and concluded

that it was an easement. (Tr. 3/16/15 at 54:19-55:3). It also indicates that the 1862 Dickinson

Deed was intended by the trustees to convey Dickinson's remaining fee simple interest to the

center line of the railroad to Defendants' predecessors.

Characterization as "Right-of-Way" in Maps and Plans of Record

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

relied upon by Plaintiff characterize the railroad interest as a "right-of-way." (Tr. 3/12/15 at

67:20-23; P-36, P-37). See also, testimony of Plaintiffs expert surveyor Charles Karat. (Tr.;

3/12/15 at 73:15-20; P-4; _-43; P-44); (Tr. 3/12/15 at 73:11-14).

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

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

Amount of Consideration

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

reflective of the nature of the estate intended if indeed there is evidence of the value of the land

at the time of the grant. Brookbank, 131 A.2d at 108. However, in Brookbank, the Court ruled

that since there was no evidence of the value of the land at the time of execution of the

agreement, there was no way to determine whether the amount of consideration was reflective of

a fee interest. Id.

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

exclusive right to use and occupy land containing nine acres and fifty seven perches. (D-80;

P-1). As in Brookbank, there is no reasonable basis on this limited record to conclude that

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

Philadelphia County.

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

considered, it is comparable to the $6,000 of consideration in Fleck that was paid for a railroad

right-of-way over 11.83 acres of land in Allegheny County, Pennsylvania. Fleck, 156 A.2d at

833. The record reflects that Dickinson had large real estate holdings, so it is likely she had

considerable leverage in negotiating the value of an easement with the railroad. (D-76; Tr.

3/16/15 at 86:13-18).

Dickinson's Will

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

Dickinson's Will in connection with his opinion that the 1854 Dickinson Deed conveyed a

railroad right-of-way and not a fee. (Tr. 3/16/15 at 105:7-25).

2. Plaintiffs Expert Witness Testimony Should Be Disregarded

a. Miller's Testimony Lacks a Proper Basis

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

("Mille') that the 1854 Dickinson Deed conveyed a fee subject to a condition subsequent and

not an easement or right-of-way. (P-74; Tr. 3/16/15).

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

removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired

by a continued study and experience." Kozak v. Struth, 531 A.2d 420, 422 (Pa. 1987)

(quotations omitted). In Pennsylvania, experts are not permitted to speak generally to the

ultimate issue. Id.

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

opinion was not based upon continued study and experience. To the contrary, Miller's report

does not cite a single authority and Miller admitted he did not review any authorities in reaching

his conclusory opinion that the 1854 Dickinson Deed conveyed a fee interest. (P-74; Tr. 3/16/15

at 224:17-225:5, 227:11-228"20). Rather, Miller testified that his review of authorities was

limited to review of cases provided by Attorney Quinn after he issued his opinion. (Tr. 3/16/15

at 228:21-229:25).

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

that the 1854 Dickinson Deed conveyed merely a railroad right-of-way, similar to an easement,

Dixon reviewed every Pennsylvania case he could find on the subject as well as secondary

sources including Ladner on Pennsylvania Real Estate Law. (Tr. 3/16/15 at 12:18-14:3, 15:22-

25).

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

Railroad, Miller relied upon a clause in the 1854 Dickinson Deed which reads "TOGETHER

with the incidents, easements and appurtenances thereunto belonging." (P-1; D-80). Miller

opined that it would be inconsistent for a deed conveying an easement to include other easements

and appurtenances and that this signaled a grant of fee.

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

clause in the 1854 Dickinson Deed was based on a mere conjecture. Miller was unable to

provide any authority for his opinion that a "together with" clause conveying other easements

and appurtenances is inconsistent with the grant of an easement or that it is otherwise a

determinative factor. (Tr. 3/16/15 at 236:15-237:14). Miller suggests that he relied upon the

Brookbank case, but that decision does not speak to this issue. (Id. at 237:3-14). Nor did Miller

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identify any substantive reason why it would be improper to include a "together with" clause

conveying other easements and appurtenances in a deed conveying an easement or right-of-way.

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

referenced the existence or non-existence of a "together with" clause conveying other easements

and appurtenances in the instrument as a determinative factor in the interpretation of what type

of estate was intended.

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

was standard language for any conveyance and not determinative of whether the grant was

intended as an easement or a fee. (Tr. 3/16/15 at 85:13). Dixon opined that an example of

another easement or appurtenance that might be included in a "together with" clause is an

easement for water, for example. (Id. at 85:14-16).

b. Miller's Testimony Exceeded the Fair Scope of His Report

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

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

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

that an expert witness may not testify on direct examination concerning matters which are either

inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or

included in a separate report." Walsh v. Kubiak, 661 A.2d 416, 420 (Pa. Super. 1995) (en banc).

The purpose of this rule is "[t]c) prevent incomplete or 'fudging' of reports which would fail to

reveal fully the facts and opinions of the expert or his grounds therefor." Pa.R.Civ.P. 4003.5(c),

cmt.

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

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

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opinions of John L. DiGiacomo, Esquire expressed in writing and at trial." (P-74 at p. 5; Tr.

3/16/15 at 224:3-16).

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

and the "together with" clause went far beyond the fair scope of his report, lacked an adequate

basis, and should be disregarded.

3. The Railroad Right-of-Way Terminated Automatically UponAbandonment and Defendants as Adjoining Land Owners RegainedFull Title and Ownership to the Center Line of the Former Right-of-Way

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

extinguished and the land is owned in fee simple by the owner or owners of the land on either

side of the right-of-way." Dellach v. DeNinno, 862 A.2d 117, 118 (Pa. Super. 2004) (citing,

Newell Rod & Gun Club, Inc. v. Bauer, 597 A.2d 667, 669 n. 2 (Pa. Super. 1991)).

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

own to the center line of the railroad take back full possession and rights to what was the right-

of-way. (Tr. 3/16/15 at 28:17-20).

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

intention to abandon the right-of-way accompanied by external acts through which the intention

is carried out. Thompson v. Md. & Pa. R.R. Pres. Soc., 612 A.2d 450, 453 (Pa. Super. 1992).

More than mere non-use of a right-of-way is required to demonstrate that a railroad has

abandoned its right-of-way. Id. at 454. Rather, the railroad must engaged in some affirmative

act which renders use of the right-of-way impossible, or some act of physical obstruction that is

inconsistent with its further enjoyment. Id. at 453.

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

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

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Id. at 454. For example, in Thompson, the Superior Court held that a railroad company effected

abandonment of its right-of-way when it acquired an ICC certificate of abandonment, entered

into a salvage agreement for purposes of removing the railroad ties, and issued quit claim deeds

to property owners with land adjacent to the right-of-way. Id.

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

application for abandonment of the Bethlehem Branch to the ICC on May 18, 1984. (P-11;

Enright Tr. Dep. at 22:15-19; 84:10-14). The ICC issued a certificate of abandonment to Conrail

on December 13, 1984. (P-14; Enright Tr. Dep. at 32:9-21; 84:15-18).

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

which that intent was carried out. In particular, Conrail issued an authorization to dismantle the

tracks of the Bethlehem Branch on January 13, 1988. (D-29; Enright Tr. Dep. at 87:21-88:22).

At that time, there was no longer any rail service on the right-of-way because the January 14,

1988 makes reference to the Bethlehem Branch being an "out of service line." (Enright Tr. Dep.

at 89:6-10).

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

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

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

and the Payload Property on January 13, 1988, the right-of-way was extinguished and the land

was owned in fee simple by the owners of the Sixth Street Property and the Payload Property,

(i.e., the predecessors in title to Sixth Street Management and to Giunup and Pettacio).

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

abandonment, the owners of the Sixth Street Property and the Payload Property, w