J. A30038/17

                             2019 PA Super 103

CLARENCE BELLIVEAU                       :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
R.A. PHILLIPS AND ELLA B. PHILLIPS,      :
HUSBAND AND WIFE, DECEASED,              :
UNKNOWN HEIRS OF R.A. PHILLIPS           :
AND UNKNOWN HEIRS OF                     :
ELLA B. PHILLIPS                         :
                                         :         No. 894 WDA 2017
APPEAL OF: WILLIAM FADELEY AND           :
KATHLEEN FADELEY                         :


                    Appeal from the Order, May 22, 2017,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. GD-16-021515


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


DISSENTING OPINION BY FORD ELLIOTT, P.J.E.:             FILED April 1, 2019

      I respectfully dissent. Appellants did not have any right, title, nor any

adverse possession interest in Lot 55, and therefore were not indispensable

parties to the quiet title action. Appellee was directed to serve the record

owner, the Phillips and their descendants, by publication and the posting of

the property; a sheriff’s return established that this was done. Appellants had

an opportunity, after posting, to intervene, and they did not do so until after

the quiet title order was entered. Although appellants claim that the property

was not posted, the record establishes otherwise. Appellants only took action

to protect whatever interest they thought they had after being notified by
J. A30038/17

appellee’s counsel that they were trespassing by parking their vehicles on

Lot 55.

      Appellants’ asserted claim to a part of Lot 55 is based on the theory that

Lot 55 and their property, Lot 279, overlap. Appellants’ remedy at this point

is as suggested by the trial court to file an action in ejectment to determine

the disputed boundary line as between the parties. The trial court’s order to

quiet title as against the world applies only to Lot 55.     To the extent that

appellants assert that appellee is encroaching on their rights regarding

Lot 279, an ejectment action is the proper course.

      The Majority determines that service should be defeated because

appellants were in actual possession of the disputed boundary between Lot 55

and Lot 279 and appellee observed their parking of vehicles on the property.

The Majority relies on Burns for support.            I find Burns completely

distinguishable factually, but supportive of a party’s ability to bring an action

to dispute a property line for their own property after a quiet title action is

resolved. Ms. Burns established prior title to the disputed strip of land by

adverse possession, and she therefore had superior title to the property.

Neither party in Burns had record title to the disputed land prior to the

Mitchells’ quiet title action. Following the grant of quiet title of the disputed

tract of land to the Mitchells, Ms. Burns brought an action to enjoin

encroachment by the Mitchells to the property both claimed to own. While

the service issue appears in Burns, in that the Mitchells did not personally



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serve Ms. Burns, the facts are otherwise very different. Ms. Burns had been

in actual possession of the disputed property for over 30 years, had placed a

fence, and occupied to the fence line since 1937. This was supported by ample

evidence. Ms. Burns acquired title to the disputed property long before the

Mitchells filed the quiet title action to gain purported title to the additional strip

of land adjacent to their property. They were well aware of the fence and Ms.

Burns’ occupation of the property. See Burns, 381 A.2d at 488-489. This

type of possessory interest is very different from appellants’ parking vehicles

on Lot 55 so as to defeat service by publication and posting.

      In conclusion, I would affirm the trial court. Appellants had no record

right, title, or interest in Lot 55 and therefore were not indispensable parties.

See Martin v. Rite Aid of Pennsylvania, Inc., 80 A.3d 813, 814 (Pa.Super.

2013) (holding that the following factors must be considered in determining

whether a person is an indispensable party: (1) whether absent parties have

a right or an interest to the claim; (2) if so, the nature of that right or interest;

(3) whether that right or interest essential to the merits of the issue; and (4)

whether justice can be afforded without violating the due process rights of the

absent parties (citation omitted)). While appellees may have parked vehicles

on the disputed boundary line, they were not in actual possession of Lot 55.

To enforce their rights as to Lot 279, they may file an action in ejectment to

determine the disputed property line.

      Accordingly, I respectfully dissent.



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