J.S07045/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


DEBRA A. LANG,                      :             IN THE SUPERIOR COURT OF
                                    :                  PENNSYLVANIA
                    Appellee        :
                                    :
               v.                   :
                                    :
                                    :
TODD N. SHAFFER, SHERYL K. SHAFFER, :
THOMAS C. SHAFFER AND CAROL E.      :
SHAFFER,                            :
                                    :
                    Appellants      :             No. 1435 MDA 2013


               Appeal from the Judgment entered August 7, 2013
                In the Court of Common Pleas of Centre County
                         Civil Division No(s).: 09-4259

BEFORE: MUNDY, WECHT, and FITZGERALD,* JJ.

MEMORANDUM PER CURIAM:                             FILED OCTOBER 16, 2014

        Appellants, Todd N. Shaffer, Sheryl Shaffer, Thomas C. Shaffer, and

Carol E. Schaffer, appeal from the judgment in favor of Appellee, Debra

Lang, entered in the Centre County Court of Common Pleas.            Appellants

claim the trial court, following a nonjury trial, erred in finding that Appellee

established her claim of adverse possession over a disputed tract of land.

For the reasons that follow, we conclude that Appellee did not properly

invoke the trial court’s jurisdiction over her purported quiet title action. We




*
    Former Justice specially assigned to the Superior Court.
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thus vacate the judgment and remand for further proceedings consistent

with this memorandum.

      The dispute between Appellants and Appellee arose over a 7,400

square-foot tract along the western bank of Pine Creek (“the disputed

tract”).   The disputed tract was included in the description of a 14.8-acre

parcel in the following chain of title: (1) a 1976 deed based on a survey

performed by Marlin “Red” Wolfe, (2) a May 19, 1987 deed conveying the

parcel to Appellants’ predecessor, David R. Stinebring, and (3) the April 9,

2009 deed under which Appellants acquired the parcel. As described in their

deed, most of Appellants’ 14.8-acre parcel was on the eastern side of Pine

Creek, with only the disputed tract on the western side of Pine Creek.

      Appellee, by virtue of a March 20, 1981 deed, initially acquired an

interest in a parcel known as “tract 3” near the western bank of Pine Creek.

As described in the 1981 deed and Appellee’s successive deeds, her “tract 3”

did not include the disputed tract.

      On September 15, 2009, five months after Appellants acquired the

14.8-acre parcel, Appellee filed a complaint to quiet title in the disputed

tract. Appellee’s Compl., 9/15/09, at 3. Appellee alleged she acquired title

to the disputed tract “by reason of adverse possession,” and Appellants

“attempted to exclude [her] from the [disputed tract.]” Id.

      The matter ultimately proceeded to a nonjury trial on December 12,

2012. Appellee presented evidence regarding her use of the disputed tract



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for the twenty-one year prescriptive period. Appellants, in turn, presented

evidence that their immediate predecessor, Stinebring, claimed ownership

over the disputed tract, but permitted Appellee, as well as the general

public, to use the disputed tract.   According to Appellants, Appellee’s claim

of adverse possession was defeated by Stinebring’s express grant of

permission to use the disputed tract.

      At the close of Appellants’ case-in-chief, Appellee proffered rebuttal

evidence, namely, expert testimony that the 1976 survey conducted by

Wolfe erroneously extended Appellant’s 14.8-acre parcel across Pine Creek

to the disputed tract. Appellee thus asserted that Stinebring did not acquire

legal title to the disputed tract and could not have granted permission to use

the tract.   Appellants objected to Appellee’s proposed rebuttal evidence,

arguing that it introduced theories not set forth in Appellee’s complaint. The

trial court took the objection under advisement and permitted Appellee to

present her rebuttal evidence

      Subsequently, when issuing its verdict on May 6, 2013, the trial court

overruled Appellants’ objection to Appellee’s rebuttal evidence.     The trial

court found in favor of Appellee, concluding: (1) Appellants did not have a

claim of right to the disputed tract; and (2) Appellee established adverse

possession of the disputed tract as against Appellants but not “as to ‘the

world.’” Trial Ct. Op. & Verdict, 5/6/13, at 5. Appellants timely filed post-

trial motions, which the trial court denied. This appeal followed.



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        Appellants present three questions on appeal asserting that the trial

court erred in entering a verdict in favor of Appellee. 1    Before considering

Appellants’ questions on appeal, we must consider whether the trial court

had jurisdiction to render its decision in this matter.   See Fried v. Fried,

501 A.2d 211, 212 (Pa. 1985) (noting questions relating to jurisdiction are

not waived by failure of parties to raise them and may properly be raised by

a court sua sponte); Huston v. Campanini, 346 A.2d 258, 259 (Pa. 1975)

(noting absence of indispensable party goes to court’s jurisdiction and issue

may be raised sua sponte).



1
    Appellants present the following questions:

               Did the Trial Court err as a matter of law when it held
           that the Appellants’ predecessor in title, despite having a
           deed that described the disputed property within the
           boundaries of its legal description, did not have sufficient
           title to give permission to the Appellee to occupy the tract
           of land?

              Did the Trial Court err when it found that the Appellee
           had established adverse possession of the disputed tract in
           the face of clear, uncontroverted testimony of the
           Appellants’ predecessor in title that he had given
           permission to the Appellee’s husband to cross onto and
           use the land in dispute?

              Did the Trial Court err when it found that the
           Appellants’ predecessor in title posted the disputed
           property and erected barriers to it?

Appellants’ Brief at 4.




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      Pennsylvania Rule of Civil Procedure 1061 provides that a quiet title

action may be brought:

              (1) to compel an adverse party to commence an action
           of ejectment; [or]

               (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[.]

Pa.R.C.P. 1061(b)(1)-(2). Rule 1061 unifies into a “single procedure all of

the diverse procedures by which clouds on title were formerly tried[,]” but

“neither creates a new action nor changes the substantive rights of the

parties or jurisdiction of the courts.” Siskos v. Britz, 790 A.2d 1000, 1006-

07 (Pa. 2002) (citations omitted).

      The    Pennsylvania    Supreme     Court,   in   Siskos,   distinguished   an

ejectment action from quiet title actions under Rule 1061(b)(1) and (2), as

follows:

           Ejectment is an action filed by a plaintiff who does not
           possess the land but has the right to possess it, against a
           defendant who has actual possession. Pursuant to Rule
           1061(b)(1), “[a] possessor of land is entitled to bring an
           action against one who, although not in possession, has
           some claim or interest in the land, compelling that person
           to assert his or her interest by bringing an action of
           ejectment, or be forever barred from attacking the title of
           the possessor.” A party will file a Rule 1061(b)(2) Action
           to Quiet Title when she is not in possession, does not have
           the right to possess the land, and wishes to determine all
           rights in the land.    “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


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           plaintiff and defendant involved in that particular
           litigation.”

Id. at 1006 (citations omitted).    The Siskos Court reiterated the precept

that “a determination of possession is a jurisdictional prerequisite to a ruling

on the merits” under either Rule 1061(b)(1) or (b)(2). Id. at 1008.

      Instantly, Appellee filed a complaint captioned as a “Quiet Title

Action.”     Appellee’s Compl.     She averred she began “clearing and

maintaining” the disputed tract in the summer of 1981 and used the tract

“for the construction of a fire ring, cookouts and camping on a regular

basis.” Id. at 3. She concluded she “continuously, openly, notoriously and

adversely occupied the area” for more than twenty-one years.          Id.   She

asserted Appellants, after acquiring the 14.8-acre parcel on the opposite

side of Pine Creek, “attempted to exclude [her] from” the disputed tract.

Id.   Consistent with its caption, Appellee’s complaint requested the trial

court enter an order “quieting title in and to the [disputed tract] in [her

favor] and forever barring [Appellants] from contesting [her] title and selling

any interests in the property to a third party.” Id. Appellee’s complaint did

not reference Rule 1061.

      Appellants, in their answer and new matter, asserted they owned the

land as stated in their deed. They alleged they asked Appellee to “respect

[their] property line” and Appellee “agreed to respect it” in their oral

conversations.    Appellants’ Answer & New Matter, 10/12/09, at 3.           No




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concession or determination of “possession” of the disputed tract was made

before or at trial.

      In light of Siskos, we are constrained to conclude that the trial court

did not have jurisdiction to enter an order quieting title in favor of Appellee.

If Appellee, as she alleged, were in possession of the disputed tract, the

appropriate form of action was to compel Appellant to commence an action

in ejectment. See Pa.R.C.P. 1061(b)(1). If, however, Appellee was not in

possession, but asserted an immediate right to possess the disputed tract as

against Appellants, a cause of action in ejectment was available.          See

Siskos, 790 A.2d at 1006. Lastly, if Appellee alleged and established she

was not in possession and lacked an immediate right to possession, Rule

1061(b)(2) would govern her action because neither party had recourse to

an ejectment action. See id.; see also Grossman v. Hill, 122 A.2d 69, 71

(Pa. 1956) (noting plaintiffs’ quiet title action was proper because they were

equitable owners of disputed property who did not have present right of

possession).      Despite the lengthy proceedings in the trial court, the

jurisdictional question of possession was not presented to the court by the

parties nor determined by the court. As such, we cannot conclude that the

trial court properly entered an order quieting title in favor of Appellee. 2 See

Siskos, 790 A.2d at 1006.


2
  We note we have sua sponte amended the parties’ pleadings where
possession was not determined and the trial court improperly proceeded in a



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      Furthermore, even if we were to assume that the parties and the trial

court properly proceeded in a quiet title action under Rule 1061(b)(2), a

further jurisdictional problem would arise.         As noted above, Appellee

presented evidence Appellants did not have legal title to the disputed tract

based on a defect in their chain of title, and that her deed did not include the

disputed tract.   However, Appellee failed to identify the true owner of the

tract before the allegedly inaccurate 1976 Wolfe survey.

      “[A] party is indispensable ‘when his or her rights are so connected

with the claims of the litigants that no decree can be made without impairing

those rights.” City of Philadelphia v. Commonwealth, 838 A.2d 566, 581

(Pa. 2003) (citation omitted).       The Pennsylvania Supreme Court has

articulated the following considerations a court must weigh in determining if

a party is indispensable in an underlying action:

         1. Do absent parties have a right or an interest related to
         the claim?

         2. If so, what is the nature of that right or interest?

         3. Is that right or interest essential to the merits of the
         issues?



quiet title action. See Moore v. Duran, 687 A.2d 822, 827 (Pa. Super.
1996); Sutton v. Miller, 592 A.2d 83, 88-89 (Pa. Super. 1991). However,
we did so where there was no prejudice to the parties’ rights. See Sutton,
592 A.2d at 89. Instantly the failure to determine which party possessed
the disputed tract and whether either party could maintain an action in
ejectment is not a mere technicality, as it affected the parties’ rights to a
jury and their burdens of proof in the underlying matter. See Siskos, 790
A.2d at 1006, 1009.



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         4. Can justice be afforded without violating the due
         process rights of absent parties?

Mechanicsburg Area Sch. Dist. v. Kline, 421 A.2d 953, 956 (Pa. 1981).

“In determining whether a party is indispensable, the basic inquiry remains

‘whether justice can be done in the absence of a third party.’”   Pa. State

Educ. Ass’n v. Dept. of Cmty. & Econ. Dev., 50 A.3d 1263, 1277 (Pa.

2012).

     This Court has observed:

            A party was said to be indispensable in Hartley v.
         Langkamp & Elder, 243 Pa. 550, 90 A. 402 (1914) “when
         he has such an interest that a final decree cannot be made
         without affecting it, or leaving the controversy in such a
         condition that the final determination may be wholly
         inconsistent with equity and good conscience. . . . Thus
         were the object of a bill is to divest a title to
         property, the presence of those holding or claiming
         such title is indispensable.” Id. at 555-556, 90 A. at
         403-404.

Miller v. Benjamin Coal Co., 625 A.2d 66, 67-68 (Pa. Super. 1993)

(emphasis added).

     Instantly, Appellee conceded her deed did not include the disputed

tract, but disputed the accuracy of the 1976 survey on which Appellants’

deed was based.     Thus, because a quiet title action generally seeks to

determine the “relative and respective rights of all potential land holders,”

see Siskos, 790 A.2d at 1006, Appellee would have been obligated to join

the true owner of the disputed tract, whose interests were necessarily




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affected and whose presence at trial was indispensable.          See Miller, 625

A.2d at 67-68.

      The   trial   court   appears   to   have   recognized   the   practical   and

jurisdictional problems raised by the relief requested by Appellee. Although

the court attempted to tailor its order by finding that Appellee established

adverse possession as against Appellants only, it essentially granted relief in

the form of ejectment.       As noted previously, however, neither the parties

nor the court considered the threshold question of possession under

Pa.R.C.P. 1061.

      We thus conclude that the trial court did not have jurisdiction to enter

judgment in this case.       Accordingly, we vacate the judgment in favor of

Appellee and remand this matter to the trial court for a determination of

possession for the purposes of Pa.R.C.P. 1061. The parties may thereafter

proceed in a jurisdictionally viable manner without prejudice to Appellee’s

ability to amend her complaint.3 See Siskos, 790 A.2d at 1006, 1009.

      Judgment vacated. Case remanded. Jurisdiction relinquished.




3
  If Appellee is in possession of the disputed tract, then the trial court may
enter an order under Pa.R.C.P. 1061(b)(1) compelling Appellants to
commence an ejectment action. See Siskos, 790 A.2d at 1009. If the
court finds that Appellee was not in possession of the disputed tract, she will
have the opportunity to amend her complaint to commence an ejectment
action or allege that a Pa.R.C.P. 1061(b)(2) action is proper and include any
indispensable party. See id.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2014




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