J-A19020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 JAMES D. SCHNELLER                       :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ELIZABETH CAVANAUGH-KERR,                :   No. 3459 EDA 2018
 MARJORIE ZITOMER                         :


            Appeal from the Order Entered, September 6, 2018,
             in the Court of Common Pleas of Chester County,
                   Civil Division at No(s): No. 06-10119.


BEFORE:    PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                      FILED OCTOBER 07, 2019

      James D. Schneller appeals, pro se, from the order striking his notice of

adverse possession, which he filed with Chester County’s recorder of deeds in

2005. His notice encumbered certain property to which Elizabeth Cavanaugh-

Kerr holds record title. Upon learning of the notice in 2018, Ms. Cavanaugh-

Kerr filed a motion to strike it. Because she erroneously filed her motion in

the above-captioned, previously discontinued lawsuit, the trial court lacked

jurisdiction to enter the order in question. We are therefore constrained to

vacate that order.

      The facts of this long-running family feud are fairly straightforward. Mr.

Schneller resided in his family’s homestead with his mother, until her death in

2002. That property is currently subject to his notice of adverse possession.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19020-19



      Mr. Schneller’s sister, Marjorie Zitomer, served as executrix of their

mother’s estate, and she petitioned the orphan’s court for possession of and

title to the property. Ms. Zitomer won that round of the legal battles, and the

court decreed that:

         a Permanent Injunction be entered forbidding James D.
         Schneller from bringing any suit or other legal action against
         any owner which challenges the rightful title to or peaceful
         enjoyment of 131 Hunter’s Lane [i.e., the property at issue].

In re Estate of Marjorie C. Schneller, T.C. No. 1502-0612 (C.C.P. Chester

2004).

      Shortly thereafter, Ms. Zitomer sold the property to Ms. Cavanaugh-

Kerr. Despite the court’s command, Mr. Schneller then recorded a notice of

adverse possession challenging Ms. Cavanaugh-Kerr’s title to the land in 2005.

A year later, in an attempt to recoup his mother’s estate, Mr. Schneller filed

the above-captioned lawsuit, which alleged eleven counts. In light of the 2004

injunction, the trial court dismissed Ms. Zitomer from the case. Several years

later, Mr. Schneller filed a praecipe to discontinue his complaint against Ms.

Cavanaugh-Kerr.

      At the time, Ms. Cavanaugh-Kerr had no knowledge of Mr. Schneller’s

notice of adverse position encumbering her land. She attempted to sell it in

2018. A title search uncovered Mr. Schneller’s notice; thus, the title company

blocked the sale.

      Ms. Cavanaugh-Kerr moved the trial court to declare the notice null and

void and strike it from the recorder’s indices. For reasons not apparent in the


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J-A19020-19



record, instead of filing a petition to commence a new proceeding, she filed a

motion as a part of Mr. Schneller’s discontinued suit. The trial court ignored

this procedural irregularity and ordered the Recorder of Deeds of Chester

County to strike the notice.

      Mr. Schneller filed a motion for reconsideration, which the court denied.

This timely appeal followed.

      In his brief, Mr. Schneller raises two issues: (1) whether the trial court

erred as a matter of law when it ordered the recorder to strike his notice of

adverse possession and (2) whether the trial court violated the Due Process

Clauses of both constitutions by denying him a hearing on the motion to strike.

See Schneller’s Brief at 14.     We address only the first issue, because its

resolution moots the second question.

      In the argument supporting his first issue, Mr. Schneller claims, among

other errors, that the trial court exercised jurisdiction it no longer possessed.

“There is express lack of subject matter jurisdiction in this matter, because

[Ms. Cavanaugh-Kerr] is not even a party to this case; the prothonotary

dismissed her (see Docket Entry for PARTY ENDED at 12/22/2006), as ordered

. . . all of this causing a need [for her] to file a separate action.” Id. at 26.

      Ms. Cavanaugh-Kerr does not counter this argument in her brief. Nor

does the trial court explain its assertion of jurisdiction over a case that has

been closed for six years.

      Questions of subject matter jurisdiction are non-waivable, and this Court

may raise them sua sponte. As the Supreme Court of Pennsylvania has said:

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J-A19020-19


                Jurisdiction over the subject matter is conferred solely
         by the Constitution and laws of the Commonwealth. The
         test for whether a court has subject matter jurisdiction
         inquires into the competency of the court to determine
         controversies of the general class to which the case
         presented for consideration belongs. Thus, as a pure
         question of law, the standard of review in determining
         whether a court has subject matter jurisdiction is de novo,
         and the scope of review is plenary. Whether a court has
         subject matter jurisdiction over an action is a fundamental
         issue of law, which may be raised at any time in the course
         of the proceedings, including by a reviewing court sua
         sponte. Further, subject matter jurisdiction may not be
         conferred by consent of the parties and a defect of such
         jurisdiction may not be waived.

In re Administrative Order No. 1-MD-2003, 936 A.2d 1, 5-6 (Pa. 2007)

(citations omitted).

      Once a plaintiff voluntarily discontinues a civil action, this Court has held

that the matter ends and the trial court loses jurisdiction. In Motley Crew,

LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474 (Pa. Super. 2014), appeal

denied, 104 A.3d 526 (Pa. 2014), this Court stated “[t]he general effect of a

discontinuance is to terminate the action without an adjudication of the merits

and to place the plaintiff in the same position as if the action had never been

instituted.” Id. at 476 (citations omitted). When this occurs, “there no longer

is an action pending before the trial court. It is self-evident that if there is no

action pending before a court, there is no matter over which a court can or

may exert jurisdiction.” Id. See also Camp Horne Self Storage LLC v.

Lawyers Title Insurance Corp., 150 A.3d 999 (Pa. Super. 2016) (holding




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that the trial court only has jurisdiction to enforce a settlement agreement if

the plaintiff has not yet discontinued the case).

       Here, the trial court entered an order in an action that no longer existed,

because Mr. Schneller had discontinued it by praecipe years ago. Accordingly,

the Court of Common Pleas of Chester County lacked jurisdiction to entertain

Ms. Cavanaugh-Kerr’s motion in a closed case. The court therefore also lacked

jurisdiction to enter an order striking the notice of adverse possession, in the

now-defunct matter.

       That order was null and void ab initio.1

       Order vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




____________________________________________


1 We express no opinion on the merits of Mr. Schneller’s notice of adverse
position. Thus, Ms. Cavanaugh-Kerr may start a new action to adjudicate its
validity by filing a petition to strike the notice with Mr. Schneller named as the
respondent. We also express no opinion on whether Mr. Schneller’s filing of
the notice violated the 2004 injunction from the orphan’s court.

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