J-A15011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTIN L. NEWTON                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

RICHARD BENJAMIN AND LESLIE
CULLEN

                                                   No. 1888 MDA 2016


            Appeal from the Judgment Entered November 21, 2016
               In the Court of Common Pleas of Union County
                      Civil Division at No(s): 13-CV-748


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                     FILED SEPTEMBER 15, 2017

       Martin L. Newton appeals, pro se, from the November 21, 2016

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

judgment in part for him and in part for Richard Benjamin and Leslie Cullen

(collectively, “the Benjamins”).1 We affirm.

       This case involves a land dispute between neighbors with a common

boundary line. Newton owns property located at 133 North Fourth Street,

Lewisburg, Union County. The Benjamins own property located at 131 North

Fourth Street, Lewisburg, Union County. The Benjamins have owned their

property since 1992, while Newton took ownership of his property in 2008.
____________________________________________


       1
        The Benjamins have not participated in this appeal. While their trial
attorney, James Lawrence Best, Esquire, entered an appearance on their
behalf, Attorney Best neither filed a brief nor appeared at oral argument.
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The neighbors have had an acrimonious relationship, during which Newton

has asserted that the following items have trespassed on his property: (1)

two black walnut trees and other shrubs; (2) a fence on the boundary line,

which was maintained by the Benjamins; and (3) a two-foot barricade,

installed by the Benjamins in the alleyway between the properties.

        Eventually, Newton filed a claim in trespass in magisterial district

court. On November 6, 2013, the magisterial district court found in favor of

the Benjamins. On November 21, 2013, Newton filed a notice of appeal to

the court of common pleas.        On December 10, 2013, Newton filed a

complaint alleging trespass, which the Benjamins answered on January 24,

2014.    Newton subsequently discharged his attorney and, with leave from

the trial court, filed an amended complaint on December 22, 2014. In his

amended complaint, Newton sought to also quiet title to his property and

compel the Benjamins to surrender a forged deed.      On January 15, 2015,

the Benjamins answered Newton’s amended complaint. Newton then sought

leave to amend his complaint to attach a notice to defend, which the trial

court granted. On May 28, 2015, the Benjamins filed another answer to the

amended complaint, this time adding new matter.        The Benjamins’ new

matter included an averment that they possessed an easement by

prescription for the fence. Newton answered the Benjamins new matter on

June 18, 2015.

        On February 1, 2016, Newton filed a motion for summary judgment, to

which the Benjamins responded on March 3, 2016. On May 13, 2016, the

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trial court denied the motion, noting that the location of the boundary line

between the properties was a “factual dispute that ha[d] to be resolved at

trial.” N.T., 5/13/16, at 5.

       On October 3, 2016, the trial court held a non-jury trial.          At the

beginning of his case-in-chief, Newton argued that the Benjamins’ deed was

fraudulent and, as such, their deed could not be used to determine the

boundary line.      N.T., 10/3/16, at 8-9.       The trial court ruled that Newton

lacked standing to challenge the validity of the Benjamins’ deed or the title

to their property. Id. at 9-10. Throughout the bench trial, Newton asserted

not only that he had a right to challenge the title to the Benjamins’ property,

but also that he had a right to compel the Benjamins’ to surrender their

allegedly fraudulent deed under Pennsylvania Rule of Civil Procedure

1061(b)(3).2 See id. at 40-42.

       During trial, the trial court admitted two surveys into evidence. The

first, submitted by Newton, was a survey performed by James Walshaw of

Mid-Penn Engineering in 2014 (“the Walshaw survey”).              Id. at 80.   The

second, submitted by the Benjamins, was performed by Aldon Troxall in




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       2
        Rule 1061(b)(3) provides that an action to quiet title may be brought
“to compel an adverse party to file, record, cancel, surrender or satisfy of
record, or admit the validity, invalidity or discharge of, any document,
obligation or deed affecting any right, lien, title or interest in land[.]”
Pa.R.C.P. 1061(b)(3).



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1993 (“the Troxall survey”).3 Id. at 117-18. Newton argued that, although

he submitted the Walshaw survey, that survey was actually incorrect

because it provided him less than a 34-foot-wide property.           According to

Newton, his property was originally two lots, both of which were 17-feet

wide.       Newton therefore asserted that he was entitled to a 34-foot-wide

property. The Benjamins argued for the court to accept the Troxall survey,

which would mean that the fence separating the parties’ properties was set

back approximately two feet from the property line.

        The trial court concluded that the correct property line was depicted in

the Walshaw survey.         N.T., 10/3/16, at 159.4   As a result, the trial court

found the Benjamins’ fence was on the property line, but did not encroach

on Newton’s property.        Id.   The trial court also found that (1) even if the

fence did encroach on Newton’s property, the Benjamins possessed an

easement by prescription for the fence, id. at 159-60; (2) the black walnut

trees and some shrubs on the Benjamins’ land did trespass on Newton’s

property and ordered that the Benjamins remedy the trespass within 30

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        3
        At trial, Newton introduced two surveys by Walshaw, which were
marked as Plaintiff’s Exhibits 6a and 6b. The survey at issue here is Exhibit
6b, as this was the only certified survey admitted by the trial court. Newton
argued that the trial court should consider Exhibit 6a, but the trial court
declined, noting that Exhibit 6a was marked as a “retrace” of the Troxall
survey and was not certified.
        4
        The trial court entered its order orally on the record; this order was
later reduced to writing.



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days, and, if the Benjamins failed to remove them, Newton would be entitled

to remove them himself, id. at 160-61; and (3) the “barricade” that the

Benjamins erected trespassed on Newton’s land and ordered that the

Benjamins remove it within 30 days and, if the Benjamins did not remove it,

Newton could remove the barricade, id.

       On October 13, 2016, the Benjamins filed a motion for post-trial relief.

On October 19, 2016, Newton similarly filed a motion for post-trial relief. On

November 2, 2016, Newton filed a notice of appeal. 5        On November 15,

2016, the trial court granted in part the Benjamins’ motion, but only to

modify its October 3, 2016 judgment such that “Newton may remove the

arborvitae and shrubs located on his property and dispose of them at his

own expense and at his discretion.” Order, 11/15/16. That same day, the

trial court denied Newton’s motion. On November 23, 2016, the trial court

ordered Newton to file a Pennsylvania Rule of Appellate Procedure 1925(b)

statement.       On December 14, 2016, Newton filed his Rule 1925(b)

statement.



____________________________________________


       5
        Newton’s November 2, 2016 notice of appeal was premature, as it
was filed before the trial court had ruled on the motions for post-trial relief
on November 15, 2016, and before judgment was entered on November 21,
2016. Despite this error, we address Newton’s appeal as judgment has been
entered after the disposition of the post-trial motions. See Johnston the
Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 513-14 (Pa.Super.
1995).




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       The trial court6 did not file a Rule 1925(a) opinion.7 However, because

the trial court placed reasons for its October 3, 2016 order on the record,

see N.T., 10/3/16, at 156-65, we need not remand for a Rule 1925(a)

opinion. See Cooke v. Equitable Life Assurance Soc’y of the U.S., 723

A.2d 723, 727 (Pa.Super. 1999). Accordingly, we address Newton’s claims.

       Newton raises seven issues on appeal:

              1. Whether the court erred by denying summary
                 judgment on each and all of the three (3) individual
                 counts of the motion?

              2. Whether the trial court erred in its ruling that
                 [Newton] lacked standing to provide evidentiary
                 proof that the 1905 deed that gave birth to [the
                 Benjamins’] chain of deeds is a forged and
                 fraudulent instrument, and that [the Benjamins’]
                 deed, therefore, constitutes a forged and fraudulent
                 instrument as well?



____________________________________________


       6
        On December 15, 2016, the Benjamins filed a notice of appeal. On
December 20, 2016, the trial court ordered the Benjamins to file a Rule
1925(b) statement. The Benjamins never filed a statement and, on January
11, 2017, the trial court ordered the Prothonotary to forward the file to this
Court, noting that “it could not write an opinion addressing any issues
complained of by [the Benjamins].” Order, 1/11/17. On April 19, 2017, this
Court dismissed the Benjamins’ cross-appeal for failure to file a brief.
       7
        The certified record does not contain an opinion or order from the
trial court regarding Newton’s errors complained of on appeal. While we
understand that the Benjamins’ cross appeal may have procedurally
complicated the trial court’s review and that our review of the record
exposed the trial court’s reasons for the order, we remind the trial court that
it should at least “specify in writing the place in the record where such
reasons may be found.” Pa.R.A.P. 1925(a)(1).



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              3. Whether [the Benjamins’] deed constitutes a nullity
                 under [the] Pennsylvania recording statute, 21 [P.S.
                 §§] 351, 444?

              4. Whether [the Benjamins’] deed can be used as
                 reference material to create common boundary lines,
                 or to obtain zoning permits, etc.?

              5. Whether the court erred by awarding a section of
                 [Newton]’s 17-f[oo]t wide property to [the
                 Benjamins’], after [the Benjamins] stipulated, and
                 after the court acknowledged that [Newton] is
                 entitled to a 17-f[oo]t wide property?

              6. Whether the court erred by ordering [Newton], and
                 not [the Benjamins], to repair damaged property,
                 identified by the court, that falls within the area that
                 [the Benjamins] had claimed, barricaded[,] and
                 forcibly controlled for many years.

              7. Whether the court erred by failing to apply fact to
                 law relative to the date that [the Benjamins]’
                 perimeter fence was erected on [Newton]’s property?

Newton’s Br. at 5-6 (some capitalization, emphasis, and some citations

omitted). We address Newton’s issues out of order for ease of disposition.8



____________________________________________


       8
         Newton’s “Summary of Argument” addresses and argues each of
these issues. We note that Pennsylvania Rule of Appellate Procedure 2118
instructs that the “summary of argument shall be a concise, but accurate,
summary of the arguments presented in support of the issues in the
statement of questions involved.” Pa.R.A.P. 2118. Instead of developing
these issues in his “Argument” section, Newton instead uses this section to
accuse the Benjamins of “intentionally . . . and maliciously covet[ing his]
property,” specifically accusing Richard Benjamin of lying to the tribunal and
perpetrating a fraud on the trial court. Newton’s Br. at 28. We therefore
consider the arguments Newton set forth in his “Summary of Argument” and
will not address Newton’s “Argument,” which contains only “self-serving
allegations and legal conclusions.” See Frey v. Frey, 821 A.2d 623, 629
(Pa.Super. 2003).



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      First, Newton argues that the trial court erred in preventing Newton

from challenging the validity of the Benjamins’ deed. According to Newton,

a fraudulent deed from 1905 exists in the chain of deeds to the Benjamins’

property and that fraudulent 1905 deed renders the Benjamins’ deed

fraudulent.   The trial court determined that Newton lacked standing to

challenge the Benjamins’ deed because he cannot claim ownership of the

Benjamins’ property.

      We agree with the trial court. It is well settled that an action to quiet

title “must be ‘instituted by the one in possession, and the finding of this fact

is jurisdictional.’” Bride v. Robwood Lodge, 713 A.2d 109, 111 (Pa.Super.

1998) (quoting Hemphill v. Ralston, 123 A. 459, 460 (Pa. 1924)); see

Buck v. Brunner, 74 A.2d 528, 528 (Pa.Super. 1950) (“It is only where the

plaintiff is in possession of land against which a person not in possession

makes claim or asserts the title, that an action to quiet title will lie[.]”).

Apart from disputing the boundary line, Newton made no claim to possession

of the remainder of the Benjamins’ land. Therefore, Newton lacked standing

to challenge the validity of the Benjamins’ deed.

      Next, Newton asserts that: (1) the Benjamins’ deed is a legal nullity

under 21 P.S. §§ 351, 444; (2) the Benjamins’ deed could not be “used as

reference material to create common boundary lines, or . . . to obtain zoning

permits,” Newton’s Br. at 23, and (3) the trial court “erred by awarding a

section of [his] 17-f[oo]t wide property to [the Benjamins], after [the

Benjamins] stipulated, and . . . the [trial c]ourt acknowledged that [Newton]

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is entitled to a 17-f[oo]t wide property,” id. at 24. Newton premised all of

these arguments on his assertions that the Benjamins’ deed is fraudulent.

Because we have concluded that Newton lacked standing to challenge the

Benjamins’ deed, these issues lack merit.9

       Next, Newton argues that the trial court erred in denying his motion

for summary judgment. When reviewing a trial court’s denial of summary

judgment, our standard and scope of review are as follows:

               [O]ur scope of review is plenary, and our standard of
           review is the same as that applied by the trial court. Our
           Supreme Court has stated the applicable standard of
           review as follows: [A]n appellate court may reverse the
           entry of a summary judgment only where it finds that the
           lower court erred in concluding that the matter presented
           no genuine issue as to any material fact and that it is clear
           that the moving party was entitled to a judgment as a
           matter of law. In making this assessment, we view the
           record in the light most favorable to the non-moving party,
           and all doubts as to the existence of a genuine issue of
           material fact must be resolved against the moving party.
           As our inquiry involves solely questions of law, our review
           is de novo.

              Thus, our responsibility as an appellate court is to
           determine whether the record either establishes that the
           material facts are undisputed or contains insufficient
           evidence of facts to make out a prima facie cause of
           action, such that there is no issue to be decided by the
           fact-finder. If there is evidence that would allow a fact-
           finder to render a verdict in favor of the non-moving party,
____________________________________________


       9
         Further, with respect to Newton’s argument that the Benjamins
stipulated and the trial court concluded that Newton is entitled to a 17-foot-
wide property, the Benjamins specifically stated that they “never stipulated
to 17 feet,” but rather that Newton’s deed says “17 feet, more or less.”
N.T., 10/3/16, at 64.



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         then summary judgment should be denied. With respect
         to the denial of summary judgment, we review the trial
         court’s denial of summary judgment for an abuse of
         discretion or an error of law.

Windows v. Erie Ins. Exch., 161 A.3d 953, 956-57 (Pa.Super. 2017)

(alterations in original) (internal quotations omitted).

      Here, Newton again asserts that the Benjamins’ deed is fraudulent. To

the extent that Newton argues that the trial court incorrectly denied

summary judgment because it should have considered evidence that

allegedly established that the Benjamins’ deed is fraudulent and thus “void

ab initio,” we conclude, for the reasons stated above, that the trial court did

not abuse its discretion.    To the extent that Newton argues that he was

entitled to judgment as a matter of law based on the facts before the trial

court at summary judgment, we conclude that the trial court did not abuse

its discretion in denying his motion for summary judgment.          The main

dispute in this case – the placement of the boundary line between the

parties’ properties – undoubtedly presented a question of material fact, the

resolution of which required the trial court to receive testimony and other

evidence.

      In his sixth issue, Newton simply asks “[w]hether the [trial] court

erred by not ordering [the Benjamins] to repair damages they caused to

[Newton]’s property, after they observed that such damages fell within the

area that [the Benjamins] had claimed, barricaded[,] and forcibly controlled

for years.”   Newton’s Br. at 26.    However, Newton presents no argument

beyond this statement. Because “[t]his Court will not act as counsel and will

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not develop arguments on behalf of an appellant,” we conclude that Newton

has waived this claim.     Coulter v. Ramsden, 94 A.3d 1080, 1088-89

(Pa.Super. 2014).

     Finally, Newton argues that the trial court “erred by failing to apply

fact to law relative to the date that [the Benjamins]’ perimeter fence was

erected on [Newton]’s property.” Newton’s Br. at 26. Newton appears to

argue that the fence between the properties does not lie on the property

line, but rather on Newton’s property.       Newton asserts that the Walshaw

survey shows that a section of the Benjamins’ fence was moved over the

property line. Newton contends that, as a result, the fence has not been on

the joint property line for 21 years and the trial court erred in finding an

easement by prescription. We disagree.

     Our standard of review in a non-jury civil trial is

        limited to a determination of whether the findings of the
        trial court are supported by competent evidence and
        whether the trial court committed error in the application
        of law. Findings of the trial judge in a non-jury case must
        be given the same weight and effect on appeal as a verdict
        of a jury and will not be disturbed on appeal absent error
        of law or abuse of discretion. When this Court reviews the
        findings of the trial judge, the evidence is viewed in the
        light most favorable to the victorious party below and all
        evidence and proper inferences favorable to that party
        must be taken as true and all unfavorable inferences
        rejected. The [trial] court’s findings are especially binding
        on appeal, where they are based upon the credibility of the
        witnesses, unless it appears that the court abused its
        discretion or that the court’s findings lack evidentiary
        support of that the court capriciously disbelieved the
        evidence. Conclusions of law, however, are not binding on
        an appellate court, whose duty it is to determine whether

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          there was a proper application of law to fact by the lower
          court. With regard to such matters, our scope of review is
          plenary as it is with any review of questions of law.

Christian v. Yanoviak, 945 A.2d 220, 224 (Pa.Super. 2008) (internal

quotations omitted).

      We conclude that the trial court’s findings of fact are supported by the

record and its conclusions of law were correct.      While noting that both

Newton and the Benjamins’ respective deeds appeared to grant more

property to each party than was represented by the Walshaw survey, the

trial court found that the Walshaw survey was the best evidence of the

boundary line because the Troxall survey did “not have the precision and

detail that [] Walshaw’s [survey] does.” N.T., 10/3/16, at 158. As the trial

court correctly noted, although Newton “may not like            the    certified

representations of his expert, . . . the only evidence the Court has is the

certified survey of Mr. Walshaw[.]” Id. Using the survey Newton introduced

at trial, the trial court found that the Benjamins’ fence does not encroach

upon Newton’s property and, even if it did, the Benjamins possessed an

easement by prescription because the fence has been there in excess of 21

years. The trial court found that, although the Benjamins turned the fence

so that the pickets now face outward, they did not move the fence. Id. at

159-60.    Because Mr. Benjamin testified that he only turned the fence

around and placed it back in the same place, id. at 115-16, we discern no

abuse of discretion by the trial court.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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