J-A03008-24
2024 PA Super 106
GARY STOLEY AND ROSE MARIE : IN THE SUPERIOR COURT OF
NEHLS : PENNSYLVANIA
:
Appellants :
:
v. :
:
GENE W. WAMPLER, INDIVIDUALLY :
AND AS EXECUTOR OF THE ESTATE :
OF DOROTHY S. WAMPLER AND :
RUSSELL E. WAMPLER AND MARY JO : No. 712 WDA 2023
WAMPLER :
Appeal from the Judgment Entered August 21, 2023
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): Case No. 1230 of 2020
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY BOWES, J.: FILED: MAY 28, 2024
Gary Stoley and Rose Marie Nehls (collectively “Plaintiffs”) appeal from
the quiet title judgment entered upon the court’s March 6, 2023 non-jury
verdict, as modified by the June 6, 2023 order granting in part Plaintiffs’
motion for post-trial relief. We vacate the judgment and the verdict, as well
as the order adjudicating post-trial relief, and remand with instructions.
This action concerns land in Westmoreland County that was once a
single parcel owned by the Wampler family. Specifically, W.E. and Gertrude
Wampler acquired the property by a 1946 deed and resided in a house
thereon, presently designated 531 State Route 130 (“S.R. 130”). A second
house was built on the parcel, farther back from the road, in which their son
Theodore and his wife Dorothy resided. The parcel was subsequently divided,
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and the back lot was conveyed to Theodore and Dorothy by a 1958 deed, at
some point becoming 533 S.R. 130. Their children, including Gene W.
Wampler (“Executor”) and Russell E. Wampler (“Russell”) grew up at 533 S.R.
130. The house was somewhat screened by a row of pine trees that grew
approximately ten feet from the side of the garage. However, since the
original parcel remained within the family, the exact location of the boundary
between the lots was not a matter of concern, and maintenance of the whole
area was done by Theodore and his sons.1
Russell acquired the front lot from his grandparents in 1977, and a
subsequent deed placed 531 S.R. 130 in the name of Russell and his wife Mary
Jo (collectively “the Wamplers”). Theodore and Dorothy continued to reside
at 533 S.R. 130 until approximately 2005, when they moved to a nursing
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1 We offer the following image, which is a version of Plaintiffs’ Exhibit 18 from
which we omitted extraneous detail, solely to aid visualization of the property
at issue:
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home. Theodore died in 2008, leaving Dorothy the sole owner of the back
parcel until she died testate a few months later.
In 2016, Executor decided to sell the home, which had fallen into a state
of disrepair, through a private auction. He opted to utilize the services of
Eugene Gornik, a friend who was a professional auctioneer. According to Mr.
Gornik, either Executor or Russell told him prior to the auction that the
property line for 533 S.R. 130 was the line of pine trees near the side of the
house, and he conveyed that information to Plaintiffs before they became the
successful bidders.
Plaintiffs set about cleaning up the property to rent. Believing that the
pine trees next to the house were roughly on the boundary between the
parcels, they sought and received the Wamplers’ permission before having
them removed, along with most other vegetation on the land, a partially
collapsed barn, and multiple dumpsters full of junk. In their place Plaintiffs
installed gravel and a prefabricated steel structure.
In connection with these modifications, Plaintiffs hired surveyor Charles
L. Zelenak, Jr., to determine the boundaries of their parcel. However, Mr.
Zelenak discerned that, based upon the description of the land in the deed
Executor supplied to Plaintiffs, the metes and bounds did not designate a
completed rectangle, and the boundary line between their plot and the
Wamplers’ land actually intersected their house such that roughly ten feet of
the structure closest to the felled trees was not on their land.
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Upon sharing this discovery with Plaintiffs, Mr. Zelenak proposed
resolving the issue by having him prepare a survey and deed that would place
the property line one foot away from the house, with a four-foot easement for
maintenance purposes. See N.T. Trial, 7/25/22, at 111, 118, 153-54. See
also id. at 162-63 (Mr. Zelenak explaining that he had not obtained the
physical or parol evidence at the time he proposed the compromise deed and
survey placing the boundary one foot from the dwelling).
When that ultimately proved unsuccessful, Plaintiffs again retained Mr.
Zelenak to perform a full field survey of their property, this time utilizing parol
evidence and seeking out monuments that might otherwise establish a
recognized boundary. From examining Plaintiffs’ deed in connection with
others in the chain of title of nearby parcels, questioning neighbors including
the Wamplers, and locating an angle iron in line with the stumps of the trees
Plaintiffs removed, Mr. Zelenak reached the professional opinion that the
correct boundary of 533 S.R. 130 was not as described in the deed, but was
the line of pine trees that stood near the house for approximately seventy-
five years. Id. at 122-30.
We offer the following image, again purely as an aid to visualizing the
area of land in dispute and not as a strictly accurate representation thereof:
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See Plaintiffs’ Exhibit 18 (modified).
Based upon Mr. Zelenak’s findings, Plaintiffs filed the instant action
against Executor and the Wamplers (collectively “Defendants”) seeking to
obtain title to the land between the line suggested by their deed and the line
formed by the trees and the found angle iron. In their complaint, Plaintiffs
averred that they were the true owners of the disputed area based upon (1)
the erroneous description in their deed, the actual description in the
Wamplers’ deed, the location of monuments along the tree line, and the intent
of the parties when Plaintiffs’ parcel was severed; (2) the doctrine of
consentable lines; (3) adverse possession; and (4) equitable estoppel. See
Plaintiffs’ Complaint, 3/2/20, at 8-11.
Defendants filed a joint answer and new matter wherein they asserted
that the area in dispute was limited to a sliver of land necessary to encompass
the Plaintiffs’ dwelling, admitted that Plaintiffs and their predecessors have
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been in possession of a portion of that area, denied ever designating the tree
line as the boundary line, and averred that Plaintiffs’ predecessors never
claimed ownership of or possessed the full disputed area defined by Plaintiffs.
See Answer, New Matter and Counterclaim, 8/17/20, at 3-9, 15-16.2
The case proceeded to a non-jury trial that took place over two days in
July and December 2022. As witnesses Plaintiffs produced auctioneer Mr.
Gornik and surveyor Mr. Zelenak, both of whom indicated that Russell stated
the property line was the line of trees. See N.T. Trial, 7/25/22, at 25-26,
127. Plaintiffs themselves testified that Mr. Gornik had informed them of that
boundary location. Id. at 43, 81. Of note, the trial court undertook a
significant examination of Mr. Zelenak, repeatedly expressing confusion about
his testimony. See, e.g., id. at 95 (“I’m confused.”), 112 (“I’m still
confused[.]”), 114 (“I’m still confused.”), 116 (“I’m just so confused.”). Also
pertinent to this appeal, counsel for the Wamplers questioned Mr. Zelenak,
over Plaintiffs’ objection, about the documents he drafted in an effort to
achieve an amicable resolution of the border dispute that would save the
parties the time and expense of trial. Id. at 151-58.
____________________________________________
2 The Wamplers’ answer and new matter also included counterclaims against
Plaintiffs for alleged flooding of their home caused by the water flow changes
resulting from Plaintiffs’ modifications to the land, as well as damage done to
the driveway easement. See Answer, New Matter and Counterclaim, 8/17/20,
at 17-18. However, the trial court ultimately ruled in Plaintiffs’ favor on those
claims, and the Wamplers have not filed a cross-appeal challenging that
portion of the verdict. Therefore, we shall not discuss the Wamplers’
counterclaims further in this opinion.
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Russell and Executor testified after the Plaintiffs rested. Both denied
ever telling anyone that the property line was the tree line. Instead, they
maintained that the property line was at an uncertain point between the tree
line and the house. See. N.T. Trial, 12/8/22, at 48, 80, 123.
After the close of evidence, while discussing the filing of proposed
findings of facts and conclusions of law, the court highlighted that, although
equitable relief in the nature of reformation of Plaintiffs’ concededly-erroneous
deed was available, no party requested equitable relief. Id. at 150. Moreover,
as for Plaintiffs’ legal action to quiet title, they never proffered a correct deed
that they sought to have filed to satisfy their claim. Id. at 153. When Plaintiffs
asked to re-open the record and submit a proposed deed, the court rejected
the request, opining that creating a new deed would amount to the equitable
relief of deed reformation that was not sought. Id. at 154-55. The court
expressed concern that the proceedings were all for naught because “no one
asked [it] to do what probably needs [to be] done, and that’s reform” the
deed. Id. at 155. Plaintiffs represented that they would amend the complaint.
Id. at 157.
However, Plaintiffs did not seek to amend the complaint to conform to
the evidence. Instead, their proposed findings and conclusions suggested that
the court find that the 2016 deed by which Plaintiffs acquired their property
was defective in that it contained the same inaccurate description of the
property included in the prior deeds in its chain of title that placed the
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boundary line through the dwelling, which was contrary to the intention of the
parties. See Plaintiffs’ Proposed Findings of Fact, Conclusions of Law and
Order of Court, 2/16/23, at 13-14. They asked the court to hold that the
correct property line was as Mr. Zelenak indicated in his 2017 survey and
compel the parties to execute deeds that reflect Mr. Zelenak’s placement of
the boundary along the tree line.3 Id. at 14.
Defendants filed a joint post-trial submission in which they
acknowledged that the Plaintiffs’ deed is defective because the description
runs the property line through the house, and that equitable reformation is
the proper remedy. See Defendants’ Proposed Findings of Fact and
Conclusions of Law, 12/17/23, at 17-18. However, they echoed the trial
court’s prior statements that, because Plaintiffs did not request equitable
relief, the court was unable to grant an equitable reformation. Id. at 18. As
for the relief Plaintiffs did request, Defendants observed that Plaintiffs failed
to prove that they were in possession of the entirety of the disputed area, and
that they did not establish a right to relief in any event because they did not
proffer sufficient evidence demonstrating that the deed reflected an intent to
establish the boundary at the tree line or that they held title to the disputed
____________________________________________
3 It appears that this was a misstatement and that Plaintiffs actually desired
a declaration that the property line is where Mr. Zelenak indicated in his
November 4, 2020 survey, which was admitted as Plaintiffs’ Exhibit 17 at trial.
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area through adverse possession or the doctrine of consentable lines. Id. at
18-19.
On March 6, 2023, the trial court handed down its verdict in the form of
an order of court. The court first held that Plaintiffs did not satisfy the
elements of a quiet title action because they failed to prove that they were in
possession of the disputed area, as they offered no testimony to establish that
they exercised dominion over the land between the house and the tree line.
See Order, 3/6/23, at ¶ 1. In this vein, the court further elaborated:
a. Both parties admit that the boundary line in Plaintiffs’ deed
goes through the existing dwelling, so the deed itself does
not give Plaintiffs’ possession of the ten-foot disputed
portion of land.
b. The testimony and evidence presented were insufficient to
establish consentable lines or adverse possession, as
occupation did not occur for a period of twenty-one years,
and possession was not exclusive, notorious, distinct, or
hostile. The only testimony regarding Plaintiffs’ use of the
property at issue was the cutting down of trees, and they
asked permission from [the Wamplers] to take that action.
c. Although Plaintiffs argued that possession was established
by the survey conducted showing parole [sic] evidence of
the property line, including from pins and fence posts, the
licensed surveyor [who] conducted that survey testified that
he only used that parole [sic] evidence to attempt a
resolution of the matter once it was clear that the boundary
lines in Plaintiffs’ deed did not close.
Id. (cleaned up). The trial court rejected Plaintiffs’ claim for equitable
estoppel on the basis that, since they only spoke to Mr. Gornik at the auction,
and not to any of Defendants, they did not prove inducement and justifiable
reliance. Id. at ¶ 2.
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Despite its expressed belief that it lacked the ability to award equitable
relief in the absence of a request by Plaintiffs, the court went on to hold as
follows:
This court’s findings eliminate any adequate remedy at law, as
Plaintiffs fail to satisfy the elements of any claim set forth in their
complaint. However, the testimony and evidence presented to
this court by both parties establishes that the existing boundary
in Plaintiffs’ deed is in error. Further, [Russell] testified that the
boundary line should be somewhere between the back of Plaintiffs’
residence and the tree line. Therefore, this court will exercise its
equitable powers to reform the deed, as there is no additional or
differing evidence that would be presented if Plaintiffs would have
amended their complaint to include a request for reformation of
the deed, and judicial economy and efficiency would not be served
for either party if this court would dismiss the action without
resolving the admitted error.
a. In exercising its equitable powers, this court finds that
Plaintiffs’ deed shall be reformed to move the
boundary line that currently runs through Plaintiffs’
existing dwelling to a location five feet beyond the
back of Plaintiffs’ dwelling. Plaintiffs are directed to
prepare a deed in accordance with this ruling and file
it of record. Defendants are directed to cooperate as
necessary in accomplishing same.
Id. at ¶ 3 (cleaned up).
Plaintiffs filed a motion for post-trial relief asserting that: (1) the trial
court erred in applying equitable principles to its quiet title claim; (2) their
claim was pursuant to Pa.R.C.P. 1061(b)(3), which requires no proof of
possession; (3) the court misrepresented Mr. Zelenak’s testimony about his
use of parol evidence in concluding the location of the boundary line and
improperly considered evidence of settlement negotiations; and (4) Plaintiffs
were entitled as a matter of law, not equity, to a ruling that the property line
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is ten feet away from their house. By order of June 6, 2023, the trial court
granted Plaintiffs’ motion to the extent that it challenged its exercise of
equitable powers, struck paragraph three from the March 6, 2023 order, and
denied the motion in all other respects.
Plaintiffs filed a timely notice of appeal and complied with the trial court’s
direction to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. The trial court thereafter supplied a Rule 1925(a) opinion, the parties
presented their arguments to this Court at oral argument, and we are
prepared to address Plaintiffs’ appellate issues, which they state as follows:
A. Whether the trial court committed an error of law in applying
[Rule] 1061(b)(1) rather than applying [Rule] 1061(b)(3) in
analyzing the evidence offered at trial and in making its
findings and in failing to sua sponte amend the pleadings to
conform to the proper cause of action as established by the
evidence.
B. Whether the trial court committed an error of law and/or
abused its discretion in ignoring the uncontradicted, credible
and competent evidence that established the property line
ten feet from the edge of the dwelling.
C. Whether the trial court committed an error of law and/or
abused its discretion in considering any evidence
surrounding Mr. Zelenak’s attempts to resolve the dispute
between the parties as it is precluded under Rule 408 of the
Pennsylvania Rules of Evidence.
Plaintiffs’ brief at 4 (unnecessary capitalization omitted).
Before undertaking an examination of Plaintiffs’ issues, we consider the
pertinent legal principles. Initially we observe:
Our standard of review in non-jury trials is to assess whether the
findings of facts by the trial court are supported by the record and
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whether the trial court erred in applying the law. Upon appellate
review, the appellate court must consider the evidence in the light
most favorable to the verdict winner and reverse the trial court
only where the findings are not supported by the evidence of
record or are based on an error of law. Our scope of review
regarding questions of law is plenary.
Riverview Carpet & Flooring, Inc. v. Presbyterian SeniorCare, 299 A.3d
937, 956 (Pa.Super. 2023) (cleaned up).
Next, we review the substantive law. “The purpose of a quiet title action
is to settle competing claims to interests in property or to determine right or
title or the validity of any deed affecting any interest in land.” Cornwall
Mountain Investments, L.P. v. Thomas E. Proctor Heirs Tr., 158 A.3d
148, 160 (Pa.Super. 2017). The litigation of an action to quiet title is an action
at law governed by the Rules of Civil Procedure. See Pa.R.Civ.P. 1061-68.
As Plaintiffs’ issues involve determining which particular subsection of
Rule 1061(b) governs the instant action, we deem it useful to consider the
background of the Rule’s adoption. “An action to quiet title is not a proceeding
in equity, but an action at law created by the rule as a substitute for a number
of statutory remedies formerly available to persons seeking to establish or to
clear title to lands or interests therein.” 4 Goodrich-Amram 2d § 1061(b):1
(footnotes omitted). Initially, “[r]emoval of such clouds [on title] was the
exclusive province of equity that acted through a bill quia timet.” 4 Goodrich-
Amram 2d § 1061(b):3. Thereafter, “various statutes were passed which
gave remedies at law for portions of the field within the scope of the equity
proceedings.” Id.
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The effect of such statutes was to exclude jurisdiction in equity
pro tanto and leave a party to a legal remedy. However, the
residue of equitable jurisdiction not included within the scope of
the statutes remained unimpaired and available to assist in the
elimination of clouds on title. The action to quiet title now gives
jurisdiction on the law side of a court to adjudicate every kind of
dispute that a bill quia timet could adjudicate, thereby removing
the last vestige of equitable jurisdiction in these matters.
Id. Nonetheless, “[t]he action to quiet title is not an all-inclusive remedy for
the disposition of every problem relating to land titles. There will be
substantial areas of equity jurisdiction wholly outside the reach of an action
to quiet title.” Id.
In sum, “although an action to quiet title is an action at law, it embraces
all the equitable jurisdiction that was formerly exercisable under a bill quia
timet,” but no further equitable jurisdiction. 4 Goodrich-Amram 2d
§ 1061(b):1 (footnote omitted). However, “[a]ny form of equity proceeding
that is not an action ‘quia timet’ is excluded from the scope of the rules even
though it may involve land titles or the clearing of land titles.” 4 Goodrich-
Amram 2d § 1061(b):3 (footnote omitted). Notably, reformation of a deed is
an equitable remedy that is not available in an action at law filed pursuant to
Rule 1061 to quiet title. See MacKubbin v. Rosedale Mem’l Park, Inc.,
198 A.2d 856, 857 (Pa. 1964).
With this history in mind, we examine the language of Rule 1061, which
provides in pertinent part that a quiet title action may be brought:
(1) to compel an adverse party to commence an action of
ejectment;
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(2) where an action of ejectment will not lie, to determine any
right, lien, title or interest in the land or determine the validity or
discharge of any document, obligation or deed affecting any right,
lien, title or interest in land; [or]
(3) to compel an adverse party to file, record, cancel, surrender
or satisfy of record, or admit the validity, invalidity or discharge
of, any document, obligation or deed affecting any right, lien, title
or interest in land[.]
Pa.R.Civ.P. 1061(b).4, 5
From this, we discern the following import in the distinct subsections of
Rule 1061. When a quiet title action is commenced by plaintiffs who are
asserting title to land for which they do not currently hold title, but for which
they allege a right to immediate possession, then the essential first step is to
figure out who currently has possession. If the plaintiffs are in possession but
the defendants have some basis to claim an interest in the land, then
subsection (b)(1) is properly utilized to compel the defendants to pursue
ejectment. However, if the defendants are in possession of land that the
plaintiffs claim should be theirs, then the plaintiffs’ quiet title complaint is
____________________________________________
4 The Rule also allows for an action to obtain possession of land sold at a
judicial or tax sale. See Pa.R.Civ.P. 1061(b)(4). That provision has no
bearing on the instant case.
5 Concerning the difference between an action to quiet title and an action of
ejectment, we observe that “quiet title serves to determine the relative and
respective rights of all potential title holders.” Becker v. Wishard, 202 A.3d
718, 721-22 (Pa.Super. 2019). “The purpose of an ejectment action as
opposed to quiet title is not to determine the relative and respective rights of
all potential title holders, but rather the immediate rights between plaintiff
and defendant involved in that particular litigation.” Siskos v. Britz,
790
A.2d 1000, 1006 (Pa. 2002) (internal quotation marks omitted).
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inappropriate and they are required to instead file an ejectment action. See
Siskos v. Britz, 790 A.2d 1000, 1008 (Pa. 2002) (“When an action in
ejectment is maintained in conjunction with an action to quiet title, the proper
course of action is for the trial court to proceed solely on the action in
ejectment.” (cleaned up)).
A claim pursuant to subsection (b)(2) is apt if no action in ejectment is
available because the complaint does not involve whether someone out of
possession should be in possession, but rather that the plaintiffs seek a
decision from the court about something purporting to affect their interest in
the land. Examples of subsection (b)(2) actions include whether the plaintiffs
took title subject to a mortgage, had an easement by implication, or had a
right to extract subsurface minerals from the land in question, as well as a
situation in which equitable owners with no right of possession desire a ruling
on the validity of a restrictive covenant. See 4 Goodrich-Amram 2d
§ 1061(b):9 (collecting cases).
However, if the plaintiffs’ complaint is that the defendants should be
compelled to do something with a document affecting the plaintiffs’ title, then
a subsection (b)(3) action is founded and possession is immaterial. Examples
of plaintiffs in subsection (b)(3) lawsuits include a landowner seeking to
compel a mortgagee to mark its lien that was discharged in bankruptcy as
satisfied, or a county asking to compel a mortgage registration company to
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record its assignments so the fees could be collected. See 4 Goodrich-Amram
2d § 1061(b):12 (collecting cases).
Mindful of the above, we turn to the case sub judice, addressing all
Plaintiffs’ related questions together. As detailed above, although Plaintiffs
represented at trial that they would amend the complaint when the trial court
questioned the suitability of their choice to file a quiet title action pursuant to
Rule 1061, they failed to do so. Instead, they doubled down on the propriety
of Rule 1061(b)(3) in their post-trial filings and in this appeal.
In this Court, Plaintiffs remain steadfast in contending that the equitable
reformation of the deed ordered by the court’s initial verdict was unsound
because the errors to the deed were not the product of a mutual mistake and,
in any event, the choice of a boundary line five feet from the dwelling was
randomly selected rather than justified by the evidence. See Plaintiffs’ brief
at 24-25. They further maintain that proof of possession was not a requisite
to their subsection (b)(3) quiet title claim and that the court should have
compelled Defendants to file a deed that conformed with the parties’ intent to
convey the disputed area to Plaintiffs. Id. at 20-21.
Alternatively, Plaintiffs argue that even if the trial court properly
analyzed their claim pursuant to subsection (b)(1), their evidence did establish
that they had possession of the disputed area, particularly the land on which
their house was located, and were entitled to a deed recognizing their title
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thereto.6 Id. at 22-23. They highlight Mr. Zelenak’s expert testimony,
uncontradicted by anyone trained in the field, that the actual boundary
suggested by the relevant deeds, monuments, and parol evidence was the
tree line ten feet from Plaintiffs’ house. Id. at 26-28. They contend that the
trial court’s rejection of Mr. Zelenak’s expert opinion was founded upon a
misrepresentation of his testimony. Id. at 29-32. In particular, Plaintiffs
claim that the trial court improperly considered the evidence of Mr. Zelenak’s
early efforts to settle the dispute without litigation by suggesting that the
parties agree to a line and an easement, and then incorrectly imputed that
conciliatory motive into Mr. Zelenak’s subsequent gathering of parol evidence
to formulate an expert opinion about the proper location of the property line.
Id. at 28-30, 33-35.
Plaintiffs also assert that the trial court misstated Mr. Gornik’s testimony
when it opined that it was consistent with that of Russell about the property
line being not the tree line itself, but somewhere between that line and the
house. They observe that, on the contrary, Mr. Gornik’s testimony was that
the line “was at the trees; not between, but at.” Plaintiffs’ brief at 31 (quoting
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6 In making these alternative arguments, Plaintiffs observe that “this Court
has previously determined that, even on appeal, a party may amend the
pleadings when necessary to conform to the proper form of action as
established by the evidence.” Plaintiffs’ brief at 22 (cleaned up) (quoting
Moore v. Duran, 687 A.2d 822, 827 (Pa.Super. 1996) (reviewing merits of
appeal in absence of finding as to possession because we have the ability to
amend pleadings to include an action in ejectment)).
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N.T. Trial, 7/25/22, at 26). Further, Plaintiffs argue that the trial court
improperly deemed a 1977 plan of the Wamplers’ property (“the Glenn Plan”)
that was relied upon by Mr. Zelenak in reaching his opinion to be inadmissible
hearsay. Id. at 28-29.
From our thorough examination of the certified record and the applicable
law, we first agree with the trial court that subsection (b)(3) was not
implicated by the facts of this case. Plaintiffs appear to believe that their deed
was invalid because the description of their land contained therein, which was
the same as that in their predecessors’ deeds, did not comport with the
intention of the parties at the time the original Wampler land was divided into
two parcels. For this reason, they invoked Rule 1061(b)(3) to compel
Defendants to execute and record new deeds that recognize the disputed area
as part of their parcel.
However, a claim that a deed does not represent the parties’ agreement
does not render the deed invalid; rather, as the trial court properly recognized,
it makes the deed subject to reformation based upon mutual mistake. See
Doman v. Brogan, 592 A.2d 104, 111 (Pa.Super. 1991). As noted supra,
equitable reformation is not a remedy available through a quiet title action.
See MacKubbin,
198 A.2d at 857. Plaintiffs declined to amend their
complaint to advance that position in place of a Rule 1061 claim, but instead
successfully argued that the trial court’s grant of that relief notwithstanding
the lack of an amendment should be stricken.
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Plaintiffs’ complaint also asserted that they have title to the disputed
area despite its lack of inclusion in their deed because they and their
predecessors treated the additional land as their own despite the deeds’
descriptions and Defendants represented that the tree line was the boundary.
Plaintiffs accordingly asked the court to declare that they have title to the
disputed area as a matter of law based upon adverse possession, consentable
lines, or equitable estoppel. The trial court correctly ascertained that these
allegations supported a quiet title action pursuant to subsection (b)(1).
Hence, the question of who was in fact in possession of the disputed
area was of primary concern, as it impacted the court’s jurisdiction. See
Siskos, 790 A.2d at 1007-08 (“[P]ossession is a jurisdictional prerequisite for
Rule 1061(b)(1). . . . A trial court cannot rule on an action to quiet title where
the plaintiff requests it to compel a person claiming title to the land to bring
an action in ejectment.” (cleaned up)). Along these lines, this Court has
observed:
There is no precise definition of what constitutes possession of
real property; the determination of possession is dependent upon
the facts of each case, and to a large extent upon the character
of the land in question. In general, however, actual possession of
land means dominion over the property; it is not the equivalent of
occupancy. Thus, the trial court must determine which party
exercised dominion and control over the property before
determining what is the proper form of action in such a case.
Moore v. Duran, 687 A.2d 822, 827 (Pa.Super. 1996) (cleaned up).
As noted, the trial court found that Plaintiffs did not establish possession
over the disputed area. However, the trial court equated “disputed area” with
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the area between the house and the tree line, not the area between the
property line indicated in Plaintiffs’ deed and the tree line. Yet, as Defendants
admitted in their answer to the complaint and the trial evidence confirmed,
Plaintiffs and their predecessors in title have been in possession of the land
upon which the dwelling sits since the time the parcel was divided in 1958.
See, e.g., Answer, New Matter and Counterclaim, 8/17/20, at ¶ 31; N.T. Trial,
12/8/22, at 32. As such, the trial court’s possession-based reason for wholly
rejecting Plaintiffs’ Rule 1061(b)(1) claim is not supported by the record.
Likewise, the record does not fully support the trial court’s reasons for
declining the substantive bases Plaintiffs advanced for subsection (b)(1) relief.
To reiterate, the trial court found no possession of any portion of the disputed
area by Plaintiffs or their predecessors for the twenty-one years necessary to
establish adverse possession despite its acknowledgment that the deed places
the boundary line through Plaintiffs’ house, which was erected before the
property was divided in 1958. See Order, 3/6/23, at ¶ 1(a) and (b).
The court also was admittedly confused about Mr. Zelenak’s testimony.
As a result, it inaccurately surmised that the surveyor “only used . . . parole
[sic] evidence to attempt a resolution of the matter once it was clear that the
boundary lines in Plaintiffs’ deed did not close.” Id. at ¶ 1(c). This is belied
by the certified record, which reflects that Mr. Zelenak plainly stated that he
proposed a compromise in an effort to save the parties from expense of the
instant litigation before gathering parol and physical evidence that might
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establish a different boundary line. See N.T. Trial, 7/25/22, at 162-63 (Mr.
Zelenak explaining that he had not obtained the physical or parol evidence at
the time he drafted Defendants’ Exhibits X and Y, which were a proposed
compromise deed and survey placing the boundary one foot from the
dwelling). Mr. Zelenak’s subsequent collection of evidence, including his
discussion about the property line with Russell, his review of the Glenn Plan,
and his location of monuments in the field, was not undertaken to inform an
equitable solution, but to proffer an expert opinion on the true and correct
location of the boundary, which was submitted as Plaintiffs’ Exhibit 17.7 Id.
at 122-30.
The court likewise inaccurately described Mr. Gornik’s testimony as
being consistent with that of Russell’s view of the location of the property line.
____________________________________________
7 We observe that the examination of other instruments referenced in deeds
and collection of parol evidence are customary and appropriate surveying
techniques. As our sister Court succinctly summarized through reference to
this Court’s decisions:
Where maps are referred to in a conveyance, they are regarded as
incorporated into the instrument and given considerable weight in
determining the true description of the land. Testimony of
experienced surveyors, especially those familiar with original
monuments, is extremely valuable in establishing the location of
boundary lines. Courses and distances must give way to
monuments on the ground and parol evidence as to the existence
of such monuments is admissible. Where land is described by
courses and distances and also by calls to adjoiners, the latter must
govern where there is a discrepancy.
Com., Pennsylvania Game Comm’n v. Keown, 471 A.2d 937, 939–40
(Pa.Cmwlth. 1984) (citations omitted).
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Plaintiffs correctly assert that Mr. Gornik expressly rejected the notion that
Executor or Russell placed the boundary between the trees and the house,
testifying instead that the line “was at the trees; not between, but at.” N.T.
Trial, 7/25/22, at 26). See also N.T. Trial, 7/25/22, at 25 (indicating that
Executor informed Mr. Gornik that the family was “under the impression that
the pine trees represented the property line”).
In light of these incomplete or unsupported factual findings, and
instances of misapplication of the law, we are compelled to vacate the August
21, 2023 judgment, the June 6, 2023 order granting in part Plaintiffs’ motion
for post-trial relief, and the March 6, 2023 verdict.
Upon remand, the trial court shall initially ascertain how much of the
disputed area Plaintiffs possess, and then reconsider their subsection (b)(1)
quiet title claim to that area through an accurate view of the evidence. Any
portion of the disputed area not possessed by Plaintiffs cannot be adjudicated
by this quiet title action but must be pursued through an action in ejectment.8
See Siskos, 790 A.2d at 1007-08.
____________________________________________
8 Of course, this further litigation would be obviated if the parties decide to do
as both Mr. Zelenak and the trial court suggested and reach an agreement as
to where the line should be. See, e.g., N.T. Trial, 7/25/22, at 75-77 (the
court encouraging the parties to resolve the matter themselves), 153 (Mr.
Zelenak indicating that he prepared the 2017 compromise documents “so we
[would] not [be] sitting here today”). Unfortunately, this Court is all too
familiar with neighboring property owners’ intransigence in situations such as
this and will not be surprised to see further costly litigation and appeals before
all is said and done.
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Judgment and verdict vacated. Case remanded with instructions.
Jurisdiction relinquished.
DATE: 5/28/2024
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