J-S80024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 642 MDA 2016


            Appeal from the Judgment Entered February 8, 2016
              In the Court of Common Pleas of Centre County
                       Civil Division at No: 09-4259


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 27, 2017

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

Carol E. Shaffer, appeal from the February 8, 2016 judgment in ejectment

in favor of Appellee, Debra A. Lang. We vacate and remand.

      Presently in dispute is Appellee’s claim, by adverse possession, of a

narrow tract of land (“the Disputed Tract”) along the western bank of Pine

Creek in the Village of Coburn, Penn Township, Centre County. Appellants

own property on the eastern side of Pine Creek and Appellee owns property

on the western side. Prior to 1976, the deeds of Appellants’ predecessors in

interest indicated that their property extended only to the center of the Pine

Creek.   In 1976, Appellants’ predecessor commissioned a survey by Red

Wolfe (the “Wolfe Survey”).     According to the Wolfe Survey, Appellants’
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predecessors’ property extends across Pine Creek and includes the Disputed

Tract along the western bank. In deeds executed in 1976 and thereafter,

Appellants’ chain of title includes the Disputed Tract.

      Appellee and her husband purchased property on the western side of

Pine Creek in 1981, and they deeded the property to Appellee after they

divorced. From 1981 forward Appellee assumed, admittedly incorrectly, that

she had title to property extending all the way to Pine Creek. She claims

she has consistently mowed and maintained the Disputed Tract and used it

as her yard since 1981.     She therefore claims ownership of the Disputed

Tract by adverse possession.

      The trial court, presiding over a December 12, 2012 bench trial, wrote

as follows:

            By all accounts, the [Disputed Tract] has never been
      developed and has not had any modern improvements built upon
      it. [Appellants] assert title by virtue of a deed to them from
      David R. Stinebring and Nickola Wallace dated April 9, 2009, and
      recorded at the Centre County Record Book 2031, Page 956.
      The Stinebring-to-Shaffer Deed carries forward the same
      description as the previous Deed from Bealer-to-Stinebring and
      prior to that Weaver-to-Bealer. The [Disputed Tract] has been
      consistently described from that 1976 Weaver-to-Bealer Deed as
      containing 14.8 acres, being based upon [the Wolfe Survey].

            At trial, the Court heard considerable testimony regarding
      the care and attention paid to the [Disputed Tract] by [Appellee]
      and her partners.      This included consistent mowing of the
      [Disputed Tract], the clearing of brush, erection of a tree house,
      creation of a fire ring, and regular and normal usage of the
      [Disputed Tract] by [Appellant] and others.

           Countering that description was [Appellees’] assertion that
      adverse possession had been nullified through consistent


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      reminders from [Appellees’] predecessors that they had
      ownership of the [Disputed Tract] and that any use of the
      [Disputed Tract] was made with the permission of the then
      owner. The predecessors to [Appellees] also assert that they
      posted no-trespassing signs and erected other barriers to
      provide notice to [Appellant] of their continued claim of the
      [Disputed Tract].

                                     […]

              [T]he testimony of Zach Gay described the historical chain
      of title beginning in 1795 and continuing up to, and through, the
      Deed of Weaver-to-Weaver dated May 22, 1947 (at that time
      containing 34 acres). From 1795 through the 1947 Deed, and
      up until the [Wolfe Survey] (set forth in the October 5, 1996
      [sic] Weaver-to-Bealer Deed), the legal description of the tract
      had always been called for as running from two distinct points
      through the center of Pine Creek.

            For reasons that are not explained by Wolfe in his survey,1
      and not explained by [Appellants] in this action, the 1976
      Weaver-to-Bealer Deed based on the Wolfe [S]urvey shifted the
      purported boundary line west across Pine Creek to the location
      adjacent to [Appellee’s] triangular 3.7 acre tract.
                  1
                    The Marlin ‘Red’ Wolfe [S]urvey purports to
            be a ‘bounded-by survey,’ which relies fully upon the
            available deed descriptions of adjacent properties,
            and then essentially ‘fills-in-the-void’ between the
            adjacent descriptions to arrive at a residue lot, which
            is then shown.

      The preliminary question for the court to resolve, before we can
      reach the resolution of any issues regarding whether [Appellant]
      may or may not have established an adequate claim by adverse
      possession, is whether [Appellees] in this action have a claim to
      [the Disputed Tract]. This court rules that [Appellees] do not
      have such an ownership claim.

Trial Court Opinion, 5/6/2013, at 2-4.     The trial court therefore ruled that

Appellee established adverse possession as against Appellants but “not as to

‘the world.’” Id. at 5.


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       This Court reversed and remanded, concluding the trial court lacked

jurisdiction to enter judgment in Appellee’s favor because Appellee did not

properly invoke the trial court’s jurisdiction pursuant to Pa.R.C.P. No. 1061.1

Lang v. Shaffer, 1435 MDA 2013 (Pa. Super. October 16, 2014)

(unpublished memorandum). We explained:

             If Appellee, as she alleged, were in possession of the
       [D]isputed [T]ract, the appropriate form of action was to compel
       Appellant to commence an action in ejectment. See Pa.R.C.P.
       [No.] 1061(b)(1). If, however, Appellee was not in possession,
       but asserted an immediate right to possess the [D]isputed
       [T]ract as against Appellants, a cause of action in ejectment was
       available. See [Siskos v. Britz, 790 A.2d 1000 (Pa. 2002)].
____________________________________________


       1
           Rule 1061, governing actions to quiet title, provides in relevant part:

       Rule 1061. Conformity to Civil Action. Scope

              (a) Except as otherwise provided in this chapter, the
       procedure in the action to quiet title from the commencement to
       the entry of judgment shall be in accordance with the rules
       relating to a civil action.

            Note: No right to trial by jury is conferred by this rule.
       See Rule 128(f).

              (b) The action may be brought

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

                    (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. No. 1061(1), (2).




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      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.       […]     Despite 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.

Lang, 1435 MDA 2013, unpublished memorandum at 7.

      This Court relied on Siskos, wherein our Supreme Court distinguished

ejectment actions from actions to quiet title. “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.” Id. at 1006. “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.” Id.

      In an action to quiet title under Rule 1061(b)(1), the “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 in ejectment, or be forever

barred from attacking the title of the possessor.” Finally, “[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.” Id.



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      Thus, the appropriate cause of action depends on which party is in

possession of the real property.     Here, the element of possession is in

dispute. We directed the trial court to resolve that issue, because Appellee’s

possession, or lack thereof, would determine whether she should file an

ejectment or quiet title action.

      After remand, Appellee alleged causes of action for both ejectment

and quiet title. Appellee alleged she was in possession of the Disputed Tract

and asked the trial court to enter an order compelling Appellants to

commence an action in ejectment.       Amended Complaint, 3/9/15, at 22.

Thus, Appellee proceeded under Rule 1061(b)(1).       Alternatively, Appellee

alleged a cause of action in ejectment. Id. Appellants responded on April

17, 2015 with an answer and counterclaim for ejectment of Appellee from

the Disputed Tract.

      The trial court conducted a non-jury remand trial on January 13, 2016.

At trial, Appellee confirmed that she and her family consistently mowed and

cleared brush from the Disputed Tract, put a fire ring on the Disputed Tract,

and did gardening, camping, and fishing there. N.T. 1/13/16, at 4. The fire

ring was a tire wheel, and it was the only thing that remained on the

Disputed Tract until this litigation commenced.   Id. at 6, 16-17. Appellee

placed a picnic table and swing set on the Disputed Tract, but they were

later removed. Id. at 17. After Appellants purchased the neighboring lot in




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2009, they occasionally mowed the Disputed Tract as well.            Id. at 8.

Appellee then filed this complaint.

      In its opinion in support of the February 6, 2016 verdict, the trial court

incorporated the reasoning from its May 6, 2013 pre-remand opinion, quoted

at length above. Regarding the jurisdictional element of possession, the trial

court found:   “[Appellee] was in possession of the [Disputed Tract]

before, during, and after the commencement of this action.” Verdict,

2/6/2016, at 1 (emphasis added). In this scenario, Appellants’ entrances on

the Disputed Tract after their 2009 purchase of neighboring property are

simply temporary trespasses.       Despite its finding that Appellee was in

possession, the trial court entered judgment in ejectment in favor of

Appellee.   Once again, we must vacate the judgment and remand, as the

trial court’s finding of Appellee’s possession is inconsistent with a judgment

in ejectment against Appellants.

      As the Siskos Court explained, an action for ejectment is available to

an out-of-possession party against a party in possession. “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.”       Siskos, 790

A.d at 1006. “[T]he issue of possession is inextricably linked to jurisdiction

in an Action in Ejectment.” Id. at 1008 (citing Brennan v. Shore Bros.,

110 A.2d 401, 402 (Pa. 1955)). “Ejectment is a possessory action only, and

can succeed only if the plaintiff is out of possession, and if he has a present


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right to immediate possession.” Id. (quoting Brennan, 110 A.2d at 402).

Given the trial court’s finding of possession, Appellee had no right to bring

an ejectment action. The trial court, therefore, had no jurisdiction to enter

judgment in ejectment in favor of Appellee.

      The appropriate course of action, as explained in Siskos and in this

Court’s prior remand, was for the trial court to order Appellants to

commence an ejectment action against Appellee in accord with Rule

1061(b)(1). That subsection applies because Appellee is in possession and

claims title by adverse possession. Appellants are out of possession, dispute

Appellee’s claim of adverse possession, and claim a right of possession by

virtue of their chain of title. Appellants, therefore, have the right to file an

ejectment action.

      We further observe that the trial court’s findings, insofar as they relate

to anything more than the fact of Appellee’s possession as of the filing of her

complaint, were superfluous. “The merits of the dispute, the title and right

to possession, are not determined in an action brought under [Rule

1061(b)(1)].” Seven Springs Farm, Inc. v. King, 344 A.2d 641, 644 (Pa

Super. 1975). “The issue to be decided is simply whether or not either of

the parties claiming an interest in the land was in actual possession at the

filing of the complaint.”     Id.    The underlying merits—the validity of

Appellants’ claim by deed and Appellee’s claim of title by adverse

possession—are to be litigated in Appellants’ ejectment action.             The


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defendant in an ejectment action can raise adverse possession as an

affirmative defense. Kaminski Bros., Inc. v. Grassi, 352 A.2d 80, 81 (Pa.

Super. 1975).2

       In summary, Appellee has no cause of action for ejectment because

the trial court found her in possession3 of the Disputed Tract when she filed

her complaint. The trial court had no jurisdiction to entertain an ejectment

action filed by the party in possession of the property in dispute.    Rather,

the trial court should have ordered the out-of-possession Appellants to

commence an ejectment action in accord with Rule 1061(b)(1). Once that is
____________________________________________


2
   Appellants’ counterclaim in ejectment was procedurally improper, given
that Rule 1061(b) contemplates a two-step process whereby the trial court
determines possession and then compels an ejectment action if necessary.
See Thomas v. Venneri, 17 Pa. D. & C.2d 379 (Allegheny County 1959).
Similarly, Appellee committed a procedural misstep in commencing an action
in ejectment simultaneously with a quiet title action. “It is procedurally
improper to simultaneously commence both an action in ejectment and an
action to quiet title regarding the same parcel of real estate.” Siskos, 790
A.2d at 1008 (quoting Plauchak v. Boling, 653 A.2d 671, 674 (Pa. Super.
1995)).
3
    A trial court’s finding of possession under Rule 1061(b)(1) is appealable.
Seven Springs, 344 A.2d at 642-43. Appellants challenge the trial court’s
finding of possession, but their argument assumes the trial court found merit
in Appellee’s claim of adverse possession. As set forth in the main text, the
ultimate issue of adverse possession is beyond the scope of this appeal. For
present purposes, the trial court credited Appellee’s testimony that, as of the
filing of the complaint, she was mowing and maintaining the Disputed Tract
and using it as part of her private yard. We believe these facts are sufficient
to support the trial court’s finding that Appellee was in possession of the
Disputed Tract when she filed her complaint. See Brennan v. Manchester
Crossings, Inc., 708 A.2d 815, 820-22 (Pa. Super. 1998) (holding that
maintenance of a lawn and its use for recreational purposes is sufficient to
demonstrate possession).



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done, Appellee may assert adverse possession as a defense. We vacate the

judgment   and    remand   for   further   proceedings   consistent   with   this

memorandum.

     Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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