J-S13045-24
2024 PA Super 102
CLETUS STEINBEISER AND ALBERT : IN THE SUPERIOR COURT OF
F. STEINBEISER, ADULT : PENNSYLVANIA
INDIVIDUALS :
:
v. :
:
JAMES AND CHRISTINE WERTZ, :
HUSBAND AND WIFE :
:
Appellants : No. 823 WDA 2023
Appeal from the Judgment Entered September 19, 2023
In the Court of Common Pleas of Blair County Civil Division at No(s):
2020 GH 1660
BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED: May 20, 2024
Following a non-jury trial in this property dispute between neighbors,
James and Christine Wertz appeal from the judgment entered in favor of
Cletus and Albert Steinbeiser, granting the Steinbeisers a prescriptive
easement through the Wertzes’ property. The Wertzes claim the Unenclosed
Woodlands Act, 68 P.S. § 411, bars the Steinbeisers from acquiring such an
easement, as a matter of law. Because the Wertzes failed to raise this Act as
an affirmative defense in their Answer & New Matter, that defense is waived,
and we affirm.
Our decision rests on procedural grounds, so we only briefly discuss the
facts of the case. The Wertzes and Steinbeisers are adjoining neighbors. The
Steinbeiser Brothers have lived at the property for their entire lives and
acquired ownership of it from their parents. They and their family have
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* Former Justice specially assigned to the Superior Court.
J-S13045-24
adversely, openly, notoriously, and continuously used Horsemanship Lane,
which runs from their home, through the Wertzes property, to a public
highway, for nearly a century. The Wertzes never expressly gave permission
for the Steinbeisers to use the lane. The prior owners of the Wertzes property
fenced in the land, including both sides of Horseman Lane. No one has
maintained the fencing in over 50 years.
Around 2019, a dispute arose between the Wertzes and the
Steinbeisers, which caused the Wertzes to obstruct the Steinbeisers’ access
to the lane. The Steinbeisers sued and brought a cause of action for quiet
title, seeking a prescriptive easement on Horsemanship Lane.1
The Wertzes filed an Answer & New Matter raising counterclaims for
Ejectment and Trespass. However, they included no affirmative defenses in
their New Matter. The case proceeded to a bench trial.
At the close of the Steinbeisers’ case-in-chief, the Wertzes moved for
compulsory nonsuit on the grounds that the Unenclosed Woodlands Act (“the
Act”) prohibited the Steinbeisers from obtaining a prescriptive easement, as
a matter of law. The Steinbeisers opposed the nonsuit, in part, because the
Act constituted an affirmative defense that the Wertzes did not raise in their
New Matter. Thus, the Steinbeisers contended the Wertzes had waived the
affirmative defense under Pennsylvania Rule of Civil Procedure 1030.
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1 The Steinbeisers have another route of ingress and egress to their property,
so they did not assert an easement by necessity.
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The trial court recognized that this “was the first time the issue was
raised . . . .” Trial Court Opinion, 5/5/23, at 11. While the trial court did not
“condone the tactic of waiting until trial to raise a statutory defense,” it
declined to find the Wertzes had “waived the right to argue the applicability
of the Unenclosed Woodlands Act.” Id. In the trial court’s view, the Act was
not “an affirmative defense . . . .” Id.
Nevertheless, the court denied the compulsory nonsuit and returned a
non-jury decision in favor of the Steinbeisers, because it found that the old,
dilapidated fence enclosed the Wertzes’ woodlands. Thus, it ruled the Act did
not prohibit the Steinbeisers from acquiring a prescriptive easement.
The court denied the Wertzes’ motion for post-trial relief. This timely
appeal followed.
The Wertzes ask, “Whether the trial court erred by concluding the [Act]
did not apply because of the remnants of a long-abandoned fence?” Wertzes’
Brief at 5. They contend the dilapidated condition of the fencing entitles them
to judgment, as a matter of law, because it has decayed to the point that their
woodlands have reverted to an unenclosed state.
Before reaching the merits of the Wertzes’ claim, we must first decide
whether they properly preserved it for appellate review. According to the trial
court, the Unenclosed Woodlands Act is not an affirmative defense to the
Steinbeisers’ cause of action and, therefore, the Wertzes did not need to raise
it in their New Matter. As we explain below, the trial court’s waiver analysis
was erroneous.
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“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo, and our scope of review is plenary.” Trigg v.
Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
The Pennsylvania Rules of Civil Procedure provide that, with the
exception of the defenses of assumption of the risk, comparative negligence,
and contributory negligence, “all affirmative defenses . . . shall be pleaded in
a responsive pleading under the heading ‘New Matter’.” Pa.R.C.P. 1030(a)
(emphasis added). While the Rule lists several affirmative defenses, such as
duress, estoppel, laches, and the statute of limitations, it clearly states that
the list is not exhaustive. See id.
This Court has repeatedly held that defendants must plead affirmative
defenses regardless of whether they explicitly appear in Rule 1030; otherwise,
the defense is waived. For example, the defense of rescission is not among
the affirmative defenses listed in Pa.R.C.P. 1030. Even so, this Court has held
“that rescission is an affirmative defense, which must be raised by the
defendant under the heading new matter in its responsive pleading.”
Falcione v. Cornell School Dist., 557 A.2d 425, 428 (Pa. Super. 1989). If
a defendant’s new matter “is silent as to this defense, he cannot avail himself
of its protection.”
Id.
The Supreme Court of Pennsylvania has defined “affirmative defense”
as “a defendant’s assertion of facts and arguments that, if true, will defeat the
plaintiff’s . . . claim, even if all the allegations in the complaint are true.”
Reott v. Asia Trend, Inc., 55 A.3d 1088, 1095 (Pa. 2012).
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The Rules of Civil Procedure require a defendant to plead those facts
and arguments which give the plaintiff notice of the defenses and an
opportunity to reply to them during the pleadings stage. This ensures that
the issues in the dispute are sharpened early on in the litigation. See Fox v.
Byrne, 525 A.2d 428, 430 (Pa. Super. 1987). If there is no factual dispute
as an affirmative defense, the trial court may more expediently resolve the
case, as a matter of law, and avoid an unnecessary trial. See
id. Properly
pleading all affirmative defenses plays a vital role in the flow and disposition
of civil matters.
Here, the Steinbeisers brought a cause of action seeking quiet title to a
prescriptive easement. Therefore, they needed to plead and prove adverse,
open, notorious, continuous, and uninterrupted use of Horsemanship Lane for
a period of 21 years. See Village of Four Seasons Ass'n, Inc. v. Elk
Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa. Super. 2014). The facts
that support their claim concern the nature and duration of the Steinbeisers’
use of Horsemanship Lane, but they have nothing to do with the nature of the
land itself.
By contrast, landowners seeking to block a prescriptive easement based
on the Unenclosed Woodlands Act must plead and prove facts concerning the
nature of the land surrounding the alleged easement. “It is the character of
the land itself which is determinative of the application of the Act.” Sprankle
v. Burns, 675 A.2d 1287 (Pa. Super. 1996), citing Humberston v. Humbert,
407 A.2d 31, 32 (Pa. Super. 1979). The critical inquiry is whether the would-
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be easement passes through a section of the owners land that is “a wooded
area which is not enclosed by a fence or some other barrier.” Martin v. Sun
Pipe Line Co., 666 A.2d 637, 641 (Pa. 1995).
Under the Act, “No right of way shall be hereafter acquired by user,
where such way passes through un[e]nclosed woodland . . . .” 68 P.S. § 411.
The Act bars “a trespasser from obtaining a prescriptive easement through
unenclosed wooded areas.” Williams v. Taylor, 188 A.3d 447, 451 (Pa.
Super. 2018). Thus, if the Act applies, it “will defeat the plaintiff’s . . . claim
[for a prescriptive easement], even if all the allegations in the complaint are
true.” Reott,
55 A.3d at 1095. We therefore hold that, when a defendant
invokes the Act to defeat a plaintiff’s claim for a prescriptive easement, the
defendant is, by definition, raising an affirmative defense.
“The failure to raise an affirmative defense . . . will result in a waiver of
the defense.” Nasser v. Empire Sanitary Landfill, Inc., 640 A.2d 1315,
1317 (Pa. Super. 1994) (quotation marks omitted). Like the failure to plead
the statute of limitations in New Matter, the failure to plead the Unenclosed
Woodlands Act in New Matter results in waiver of the defense.
Here, because the Wertzes did not raise their Unenclosed Woodlands
Act as an affirmative defense in their New Matter, they waived that defense
at the pleadings stage. See Pa.R.C.P. 1030(a). Thus, the Wertzes “cannot
avail [themselves] of its protection.” Falcione, 557 A.2d at 428.
The Wertzes’ sole appellate issue dismissed as waived.
Judgment affirmed.
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DATE: 5/20/2024
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