J-A02004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KAREN MARTINELLI                           :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 JOSEPH E. ROWE AND PATRICIA R.             :
 ROWE                                       :
                                            :   No. 892 MDA 2018
                     Appellants             :

              Appeal from the Judgment Entered May 3, 2018
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               2013-06945


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED MARCH 12, 2019

      Joseph E. Rowe and Patricia R. Rowe (“the Rowes”) appeal from the

judgment, entered in the Court of Common Pleas of Luzerne County, granting

partial relief to both parties in this action in ejectment. After review, we affirm

in part and reverse in part.

       The Rowes and Karen Martinelli, respectively, own property located at

1605 and 1609 Wyoming Avenue in Forty Fort, Pennsylvania. The lots are

adjacent, identical 12,500-square-foot parallelograms oriented southeast

from Wyoming Avenue. Both lots were originally part of a single plot owned

by the R.S. Broadhead Estate. In 1999, the Rowes purchased 1605 Wyoming

Avenue with a deck at or near their property line. At that time, the owners of

1609 Wyoming Avenue maintained a retaining wall at or near their property

line. In 2008, Martinelli purchased 1609 Wyoming Avenue and hired Frank
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DeSarro to survey her property. Martinelli demolished the existing retaining

wall and built a new one according to DeSarro’s survey. In 2012, the Rowes

hired Christopher Vincelli to survey their property.           To ascertain the

boundaries of 1605 Wyoming Avenue, Vincelli located an original stone

monument from the Broadhead Estate.              After his survey established the

bounds of the Rowes’ property, Vincelli determined Martinelli’s retaining wall

encroached on the Rowes’ property. He, however, did not physically sight the

property line to determine whether the Rowes’ deck encroached onto

Martinelli’s property.

       On December 17, 2013, Martinelli filed an action in ejectment and

trespass asserting the Rowes’ deck unlawfully encroached on her property.

The Rowes’ filed a counterclaim contending Martinelli’s retaining wall

encroached on their property. Both parties agreed the dispute centered on

the location of the common boundary, though they agreed their deeds

established the boundary as a straight line running for 250 feet.1 After filing

suit, Martinelli hired Matthew Mendola, who found the Rowes’ deck primarily




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1 The parties stipulated to the chain of title as established by Exhibits A and B
to the Amended Complaint. N.T. Trial, 7/18/17, at 2–3. In the Rowes’ deed
the common border is described as running “along [the] line between Lot No.
3 and Lot No. 4 . . . South 44 degrees East two hundred fifty (250) feet to a
corner” and in Martinelli’s deed as running “along the line between Lot No. 3
and 4, North 44 degrees West 250 feet[.]” Amended Complaint, Exhibits A
and B.



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located on the Rowes’ property, but encroaching slightly onto Martinelli’s

property.2

        At a non-jury trial on July 18, 2017, Judge Lesa S. Gelb presiding,

Mendola and Vincelli testified as to their respective surveying methods.

Mendola recounted how, in preparing his survey, he took a broad perspective,

examining twenty-four properties in relation to 1609 Wyoming Avenue. He,

however, failed to locate a stone monument indicated by Martinelli’s deed as

the beginning of the survey description.3        Vincelli testified to locating the

original stone monument depicted on the Broadhead estate’s plan and using

that marker as a baseline for establishing the boundaries of the Rowes’

property. Afterwards, Vincelli used his survey to physically set the property

line by placing rebar, which showed Martinelli’s new retaining wall encroached

on the Rowes’ property. He also admitted that the Rowes’ deck may encroach

slightly onto Martinelli’s property, but he could not verify whether it did so

based his survey alone; he would have needed to physically set the property

line towards the deck to make that determination.
____________________________________________


2Mendola’s and Vincelli’s surveys differ by 9.6 inches. N.T. Trial, 7/18/17, at
25–26.

3   The beginning of Martinelli’s deed reads as follows:

        BEGINNING at a point on Wyoming Avenue 150 feet Northeasterly
        from a stone monument on the Southeasterly side of Wyoming
        Avenue, said stone monument being on line of land between
        property now or formerly of the Charles D. Shoemaker estate and
        the land now or formerly of the Wayne T. James Plot[.]

Amended Complaint, Exhibit A (emphasis added).

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         On November 27, 2017, in her findings of fact and conclusions of law,

Judge Gelb found Vincelli’s survey superior to Mendola’s, as Vincelli’s was

based on a monument identified in the chain of title by a prior common

property owner. The court, however, asserted “Vincelli . . . testified that he

only looked at the property line as far as the rebar placed after the retaining

wall.”    Order, 11/27/17, at 10. Consequently, the court found “Mendola’s

survey uncontroverted after the placement of the rebar and the property line

would move accordingly.”      Id.   Judge Gelb also found the Rowes failed to

establish the property line by proving a twenty-one year period of

acquiescence through their own interest or by tacking their predecessor’s

interest. Consequently, the Court created a hybrid property line, combining

both parties’ surveys. Judge Gelb ordered the Rowe’s deck removed to the

extent that it encroaches on Martinelli’s property according to the Mendola

survey, and Martinelli’s retaining wall removed to the extent that it encroaches

on the Rowes’ property according to the Vincelli survey. Judge Gelb denied

the Rowes’ motion for post-trial relief on January 23, 2018. On February 22,

2018, the Rowes filed the instant notice of appeal.

   On appeal, the Rowes aver the following:

   1) Did the trial court err after it correctly determined the common
      boundary line was based upon the survey performed by Mr.
      Vincelli, PLS, but then altered the property line to define a portion
      of the property line in accordance with the survey prepared by
      Matthew C. Mendola, PLS?

   2) Did the [] trial court err when it ruled that evidence of statements
      made by property owners and their agents should not be admitted


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      into evidence and considered by the court in rendering its decision
      on the [Rowes’] claim of a consentable boundary line by
      acquiescence?

Appellants’ Brief, at 5.

      We evaluate non-jury verdicts by the following standard:

      Our appellate role . . . is to determine whether the findings of the
      trial court are supported by competent evidence and whether the
      trial court committed error in any application of the law. The
      findings of fact of the trial judge must be given the same weight
      and effect on appeal as the verdict of the jury. We consider the
      evidence in a light most favorable to the verdict winner. We will
      reverse the trial court only if its findings of fact are not supported
      by competent evidence in the record or if its findings are premised
      on an error of law. However, [where] the issue . . . concerns a
      question of law, our scope of review is plenary.

Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d

1188, 1191 (Pa. Super. 2018). “The question of what is a boundary line is a

matter of law, but the question of where a boundary line . . . is actually located

is a question of fact.” Baker v. Roslyn Swim Club, 213 A.2d 145, 148 (Pa.

Super. 1965).

      To prevail in an action in ejectment, the plaintiff must establish a right

to immediate exclusive possession. Hallman v. Turns, 482 A.2d 1284, 1287

(Pa Super. 1984) (citation omitted). “The crux of an ejectment action . . .

rests with the plaintiffs’ ability to identify, by a preponderance of the evidence,

the boundaries of a parcel of land to which they are out of possession but for

which they maintain paramount title.” Doman v. Brogan, 592 A.2d 104, 108

(Pa. Super. 1991) (citations omitted); see also Hallman, supra at 1288

(“The burden of identifying and locating the land clearly rests upon the

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plaintiff. . . . Where the plaintiff is unable to establish his boundary line by

adequate legal proof, his action must fall and he is not entitled to relief.”).

       The court’s function in an action in ejectment “is to ascertain and

effectuate the intent of the parties at the time of the original subdivision.”

Roth v. Halberstadt, 392 A.2d 855, 857 (Pa. Super. 1978).             We have a

longstanding preference for monuments4 as indicators of original intent over

measurements and distances. See id. (“As a general rule, where there is a

conflict between courses and distances or quantity of land and natural or

artificial monuments, the monuments prevail”); see also Lodge v. Barnett,

46 Pa. 477, 485 (1864) (“If titles were to depend upon the fluctuations of the

compass, or errors of the chain or rod-pole . . . instead of the lines,

monuments, or marks upon the ground, it would open a door to a flood of

litigation.”).

       The Rowes argue the trial court properly afforded Vincelli’s survey

precedence over Mendola’s, but erred when it applied Mendola’s survey to a

portion of the contested boundary line. We agree.

       In defining the boundary at issue, the court properly highlighted the

relative primacy of surveys based on monuments and determined the Vincelli

survey established the property line.          See Order, 11/27/17, at 9 (finding



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4 “Monuments are visible markers or indications left on natural or other objects
indicating the line of a survey.” Pencil v. Buchart, 551 A.2d 302, 306 n.2
(Pa. Super. 1988).

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Mendola’s failure to base survey on monuments described in Martinelli’s deed

rendered it inferior to Vincelli’s survey) (citing Pencil, supra). As the Vincelli

survey established the bounds of the Rowes’ entire property in relation to

Martinelli’s, the court should have consistently used those measurements to

maintain the integrity of the property as it was conveyed.          Halberstadt,

supra at 857.     By failing to hold Martinelli responsible for proving, by a

preponderance of the evidence, whether the Rowes’ deck encroached on

Martinelli’s property according to the boundary line set by the Vincelli survey,

the court improperly shifted Martinelli’s evidentiary burden onto the Rowes.

Doman, supra at 108.

      In allowing Martinelli to meet her evidentiary burden using the Mendola

survey, the court transformed the property line into an angled boundary,

creating   two   five-sided   properties   of   uncertain   dimensions,   whereas

previously, the parties owned adjacent 12,500-square-foot parallelograms

sharing a 250-foot, straight-line boundary.       Compare Order, 11/27/17, at

10–12 (describing court’s split verdict) with Amended Complaint, Exhibits A

and B (presenting parties’ titles). As it stands, the order cannot be brought

into alignment with the intent of the grantors as ascertained by the plain

language of both deeds—language which was not contested by either party.

See Halberstadt, supra at 857 (affirming court’s role as effectuating “the

intent of the parties at the time of the original subdivision.”).




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       Consequently, we affirm Judge Gelb’s ruling insofar as it establishes the

precedence of the Vincelli survey and requires the removal of Martinelli’s

retaining wall according to the boundary established by the Vincelli survey.

We reverse Judge Gelb’s order requiring the removal of the Rowes’ deck as

far as it encroaches upon Martinelli’s property according to the Mendola

survey.5

       Judgment affirmed in part and vacated in part. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2019




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5As reversal renders the Rowes’ second issue irrelevant, this Court need not
consider it.

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