J-A08013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JAMES V. DAVIS                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LINDA PALMISANO                            :
                                               :
                       Appellant               :   No. 1513 EDA 2019

                Appeal from the Judgment Entered May 15, 2019
                In the Court of Common Pleas of Wayne County
                    Civil Division at No(s): No. 2018-00094


BEFORE:       LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                               FILED MAY 20, 2020

       Linda Palmisano (Appellant) appeals from the judgment1 entered in the

Wayne County Court of Common Pleas following a bench trial, which awarded

James V. Davis a prescriptive easement over Appellant’s property. Appellant

argues:     (1) the trial court lacked subject matter jurisdiction because

necessary parties were not joined; (2) the court erred in finding Davis

established adverse or hostile use of the subject roadway; and (3) the court

erred in not considering Pennsylvania’s Unenclosed Woodlands Act of 1850


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1 Appellant purported to appeal from the trial court’s April 22, 2019, order
denying her post-trial motion. However, the appeal lies properly from
judgment entered on May 15, 2019. See Johnston the Florist, Inc. v.
Tedco Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (generally, an
appeal to this Court lies from the judgment entered subsequent to the trial
court’s disposition of post-verdict motions, not from the order denying post-
trial motions). We have amended the caption accordingly.
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(the Act), 68 P.S. § 411, which bars a right of way over unenclosed woods.

After careful review, we deny relief on the first two issues, but vacate the

judgment and remand for the trial court to reconsider Appellant’s Unenclosed

Woodlands Act claim.

       The properties at issue are located in Tyler Hill, Wayne County.       On

November 22, 2006, Appellant acquired a 53-acre lot from her brother, Robert

Wester, who had purchased the property with his wife in 1991. Appellant’s

property surrounds the eastern and southern boundaries of Davis’ land-locked

property, a 4.6-acre lot.          Davis acquired his property by deed dated

September 10, 1996; at trial, however, he stated he has lived on that property

for both 25 years and 66 years. N.T. Trial, 2/11/19, at 5, 9.

       North of Davis’ and Appellant’s parcels lies a 53-acre parcel, referred to

by Davis as the “Woods Lot.” At trial, Davis testified his parents bought the

Woods Lot in approximately 1958, when he was 6 years old, from the prior

owners, the Woods family. N.T. at 18. Davis later owned it, but he deeded

the property to his daughter, Kelly Marlene, who currently owns it with Michael

Dietrich, Jr.2 Id. at 41. We further note Davis’ testimony that in 1910, his

grandfather bought a farm, possibly located in the Woods Lot, and thus the



____________________________________________


2 Kelly Marlene’s last name and relationship to Michael Dietrich, Jr. are not
clear from the record.




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Woods Lot has been in his family for 109 years.3 Id. at 7, 10, 20. Finally, we

note that a southern portion of Appellant’s property is adjacent to a parcel

owned by Davis’s sister and brother-in-law, Marlene and Antony Virbitsky.

        The deed to Davis’ property granted the right to use a 50-foot wide right

of way on the western boundary of Appellant’s property. However, for ingress

and egress to his property, Davis instead used “Woods Road,” which traversed

over another portion of Appellant’s property.       Trial evidence showed that

Woods Road continued, for a short distance, through the Virbitskys’ property

as well as another parcel owned by Davis’ daughter, before reaching the public

road, Sky Lake Road. See N.T. at 12; Appellant’s Trial Exhibit 4 (map).

        In March of 2016, in preparation of selling her property, Appellant

advised Davis to cease using Woods Road and to develop and use the 50-foot

wide right of way provided in his deed. N.T. at 58. Davis did not comply, and

in December of 2017, Appellant installed a chain, blocking Davis’ use of Woods

Road.

        On March 1, 2018, Davis commenced the underlying action in equity

against Appellant. Davis claimed adverse possession of Woods Road and, in

the alternative, sought a prescriptive easement over Woods Road. On March



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3 These seeming inconsistencies in Davis’ testimony do not relate to his use
of the Woods Road and do not affect our disposition. Instead, we consider his
testimony as a whole for the contextual history that the land has been
associated with Davis’ family for three generations.


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6th, upon agreement by the parties, the trial court issued an order prohibiting

Appellant from interfering with Davis’ use of Woods Road.

      The matter proceeded to a bench trial on February 11, 2019. Davis

testified that he and his family have used Woods Road since 1910 to access

both his property and Woods Lot, Woods Road was the only means of vehicular

access, and that he has improved Woods Road. N.T. at 6-7, 10, 12, 14, 20,

25. Davis acknowledged that Woods Road traversed “across the corner of”

his sister’s property before reaching Sky Lake Road.     Id. at 12-13.    With

respect to the 50-foot wide right of way in his deed, Davis described it as

undeveloped, covered with woods, rocks, and boulders, and not traversable

by vehicle. Id. at 11. Davis denied that anyone, including Appellant’s brother,

ever granted him permission to use Woods Road, and denied that Appellant

withdrew such permission in March of 2016 when she informed him to cease

use. Id. at 26-28. Davis also presented the testimony of his friend, Elias

Varga, that he has used, without permission from anyone, Woods Road for

more than 50 years to visit Davis and to hunt on Woods Lot. Id. at 34-35.

      Appellant, meanwhile, testified that when she acquired her property in

2006, she did not know whether Woods Road existed.                N.T. at 64.

Nevertheless, she stated she and her brother both allowed Davis to use Woods

Road, but she revoked that permission in March of 2016.        Id. at 54, 58.

Appellant further pointed out that Davis had a deeded right of way, as well as

the equipment and knowledge to develop it, but he simply refused to use his


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right of way in favor of Woods Road as a “convenience.”          Id. at 61-62.

Appellant also argued the Unenclosed Woodlands Act prohibited a prescriptive

easement over that portion of her property because it was unenclosed

woodlands. Id. at 70. To this end, we note that both Appellant and her expert

witness in land surveying, James Motichka, described the relevant land as “all

woods” and “[o]pen woods,” respectively, without any fences or walls. Id. at

44, 55.

      On March 22, 2019, the trial court issued a verdict in favor of Davis,

along with an opinion. While the court concluded that Davis failed to establish

adverse possession over Woods Road, it awarded him a prescriptive

easement, finding he adversely, openly, notoriously, and continuously used

Woods Road for more than 21 years. Trial Ct. Op., 3/22/19, at 4.

      Appellant filed a timely post-trial motion, arguing the trial court failed

to consider her unenclosed-woods claim under 68 P.S. § 411. Appellant also

averred, for the first time, that the court lacked subject matter jurisdiction

because “necessary and indispensable landowners” — Davis’ daughter and

sister, whose properties Woods Road also traversed — were not joined.

Appellant’s Post-Trial Motions, 4/1/19, at 2 (unpaginated). Finally, Appellant

contended that the trial evidence was insufficient to establish Davis’ use of

Woods Road was adverse, but instead it showed his use was by “friendly or

neighborly accommodation.” Id. at 3. The court denied the motion without

any further opinion.


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        Judgment in favor of Davis was entered by praecipe on May 15, 2019.

Appellant filed a timely notice of appeal and complied with the trial court’s

order to file a Pa.R.A.P. 1925(b) statement. The trial court did not issue a

Rule 1925(a) opinion.

        Appellant presents three issues for our review:4

        I. Whether the trial court lacked subject matter jurisdiction in this
        matter because necessary and indispensable parties who owned
        fee title interests in significant portions [of] the claimed easement
        were not joined in this action despite the trial court awarding Davis
        an eas[e]ment over their properties?

        II. Whether the trial court erred by concluding that the evidence
        introduced at trial was sufficient to establish by clear and definitive
        proof that Davis’ use of the alleged prescriptive easement was
        adverse, notorious, hostile and such that would put [Appellant] or
        her predecessors in title on notice that it was being done under a
        claim of right rather than as a friendly or neighborly
        accommodation?

        III. Whether the trial court abused its discretion or committed an
        error of law by failing to consider evidence and make findings
        related to the character and nature of the lands in question and
        further consider the application of 68 P.S. § 411 which prohibits
        the acquisition of a prescriptive easement across “unenclosed
        woodlands”?

Appellant’s Brief at 6.

        In her first issue, Appellant avers that the trial court lacked subject

matter jurisdiction over this matter because Marlene and Anthony Virbitsky

and Kelly Marlene and Michael Dietrch, Jr. were not joined as “necessary and

indispensable parties[,]” “despite the trial court awarding Davis an easement


____________________________________________


4   We have reordered Appellant’s issues for ease of disposition.

                                           -6-
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over their properties.” Appellant’s Brief at 11. Appellant reasons that because

Woods Road crossed their properties before meeting the public road, Davis

cannot make use of Woods Road unless he also established access rights

across their portions of Woods Road. Id. at 11-12. In support, Appellant

relies on Barren v. Dubas, 441 A.2d 1315 (Pa. Super. 1982), which she

summarizes as holding that in a dispute over the existence of an easement,

“the owners of all of the servient tenements have a material interest in the

matter and should be joined as defendants even if they did not have any role

in the circumstances that precipitated the controversy.” Id. at 12-13, citing

Barren, 441 A.2d at 1316.

       Davis contends Appellant has waived appellate review of this issue

because she did not raise it prior to the close of trial. See Davis’ Brief at 12-

13. As stated above, Appellant raised this issue for the first time in her post-

trial motion.

       Generally, pursuant to Pennsylvania Rule of Civil Procedure 227.1(b),

issues not preserved before or at trial are waived.5 Bd. of Supervisors of

____________________________________________


5 Pennsylvania Rule of Civil Procedure 227.1(b) provides that generally, post-
trial relief may not be granted unless the grounds for relief

              (1) if then available, were raised in pre-trial proceedings or
       by motion, objection, point for charge, request for findings of fact
       or conclusions of law, offer of proof or other appropriate method
       at trial; and

              Note: If no objection is made, error which could have been



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J-A08013-20


Willistown Twp. v. Main Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017).

This Court has stated, however, that claims of lack of subject matter

jurisdiction or failure to join an indispensable party are never waived. Drake

Mfg. Co. v. Polyflow, Inc., 109 A.3d 250, 258 (Pa. Super. 2015).               As

Appellant points out, Barren explained:

       Failure to join an indispensable party “goes absolutely to the
       court’s jurisdiction and the issue should be raised sua sponte.”
       See also Pa.R.Civ.P. 1032[(a)] (defense of failure to join
       indispensable party not waived by failure to raise it by preliminary
       objection, answer, or reply). “As we have said many times, if all
       necessary and indispensable parties are not parties to an action
       in equity, the court is powerless to grant relief.” “In Pennsylvania,
       an indispensable party is one whose rights are so directly
       connected with and affected by litigation that he must be a party
       of record to protect such rights, and his absence renders any order
       or decree of court null and void for want of jurisdiction.”

See Barren, 441 A.2d at 1316 (some citations omitted). Even if “the trial

court’s jurisdiction is not challenged in that court or on appeal, ‘the absence

of an indispensable party goes absolutely to the court’s jurisdiction and the

issue should be raised sua sponte.’” Huston v. Campanini, 346 A.2d 258,

259 (Pa. 1975) (citation omitted).



____________________________________________


       corrected in pre-trial proceedings or during trial by timely
       objection may not constitute a ground for post-trial relief. . . .

            (2) are specified in the motion. The motion shall state how
       the grounds were asserted in pre-trial proceedings or at trial.
       Grounds not specified are deemed waived unless leave is granted
       upon cause shown to specify additional grounds.

Pa.R.Civ.P. 227.1(b)(1)-(2).

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J-A08013-20


      Accordingly, we conclude Appellant has not waived appellate review of

her claim that the court lacked subject matter jurisdiction due to the failure to

join indispensable parties. See Pa.R.Civ.P. 1032(a); Huston, 346 A.2d at

259; Barren, 441 A.2d at 1316. After careful review, however, we conclude

that Appellant’s argument lacks merit.

      In considering the question of subject matter jurisdiction, our standard

is review is de novo and our scope of review is plenary. Estate of Ciuccarelli,

81 A.3d 953, 958 (Pa. Super. 2013).

      Contrary to Appellant’s contention, the trial court did not grant Davis

prescriptive easements over the Dietrichs’ and the Virbitskys’ properties.

Instead, it is clear the court’s order granted an easement only over Appellant’s

property.   Appellant’s argument — that additional property owners, whose

lands a disputed easement also traverses, must be joined by as indispensable

parties — is not supported by legal authority.

      In Barren, the plaintiffs sought a prescriptive easement to an alleyway

traversing the defendants’ adjoining parcel of land.      Barren, 441 A.2d at

1315. The trial court entered a decree nisi recognizing the easement. Id. at

1316. The defendants then filed exceptions, alleging that the court erred in

not allowing evidence that they “had conveyed a portion of the servient

tenement to [another couple] prior to the commencement of [the]

proceedings.”    Id.   The trial court ruled that the third couple was an

indispensable party and modified its decree nisi accordingly. Id.


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J-A08013-20


     On appeal, this Court considered whether the third couple who had

purchased a part of the servient tenement were indispensable parties who

should have been joined in the litigation. Barren, 441 A.2d at 1316-1317.

We noted:

            [T]here can be no question that the fee simple owner
            of the servient tenement is an indispensable party.
            The right to the use and enjoyment of his property will
            be adversely affected by any litigation involving the
            easement and, therefore, he must be joined. The
            failure to do so deprives the court of jurisdiction.

     Similarly, when there is a dispute as to the existence of an
     easement, all owners of servient tenements have a material
     interest in the controversy and should be joined as defendants,
     even though such an owner may have had no part in the
     interference with, or obstruction of, the alleged easement.
     Annot., 28 A.L.R.2d 409, 411 (1953) (“Necessary parties
     defendant to suit to prevent or remove obstruction or interference
     with easement of way”). Cf. [Huston, 346 A.2d at 259] (persons
     to whom vendors allegedly sold restaurant after declaring
     forfeiture and repossession from plaintiffs were possible bona fide
     purchasers, and, therefore, indispensible parties); Tigue v.
     Basalyga, [304 A.2d 119, 120 (Pa. 1973)] (in suit to set aside
     deed allegedly obtained through fraud, deceased’s personal
     representative was indispensible party); Kelley v. Kelley, . . .
     115 A.2d 202 ([Pa.] 1955) (when adjudicating interests in coal
     lands, all co-tenants are indispensible parties); Biernacki v.
     Redevelopment Authority of the City of Wilkes-Barre, [379
     A.2d 1366, 1368 (Pa. Cmwlth. 1977)] (“Clearly, the owner of real
     estate is an indispensible party to proceedings seeking transfer of
     the title to the property to another and culminating in an order
     purportedly vesting title in another. It would be difficult to imagine
     a darker cloud on one’s title than that created by the court’s order
     in this case.”) (condemnation case).

Id. at 1316-17 (some citations omitted). This Court determined that the third

couple — found to be owners of part of the servient tenement — were

indispensable parties. Id. at 1317. This Court then concluded that without

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their joinder, the trial court lacked jurisdiction to enter a decree. Id.

      The facts in Barren are distinguishable from those in the matter sub

judice. Whereas the indispensable parties in Barren owned part of the very

property claimed to be a servient tenement, here, Davis’s complaint did not

seek prescriptive easements to any part of the Dietrichs’ and Virbitskys’

lands — and, as stated above, the trial court’s order did not affect the

Dietrichs’ or Virbitskys’ property rights. While it was undisputed that Woods

Road continued over the Dietrichs’ and Virbitskys’ properties before reaching

the public road, we have not discovered any authority supporting Appellant’s

assertion that they should have been joined as indispensable parties.

      The authority cited by the Barren Court, set forth in the long quotation

above, does not support Appellant’s argument.          First, Barren cited the

American Law Reports, which states:

     In discussing the question of necessary parties defendant to a suit
     to prevent or remove an obstruction of, or interference with, an
     easement of way, the courts have considered the necessity of
     making parties defendant such possibly interested persons as . . .
     those through whose land, as well as that of defendant, the
     easement of way passed[.FN]
     ________
     [FN] See McNeil v. Kennedy, [107 S.E. 203 (Va. 1921)].



See 28 A.L.R. 409 § 3; Barren, 441 A.2d at 1316. While this paragraph

referred to other landowners besides the defendant, we consider it in

conjunction with the 1921 Virginia decision cited therein. In McNeil, the trial

court granted the plaintiff a right of way over the defendant’s land, although

the plaintiff would have to pass through others’ lands before reaching the

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public road. McNeil, 107 S.E. at 203. On appeal, the defendant argued that

the other landowners were necessary parties. Id. The Virginia Supreme Court

disagreed, noting the plaintiff’s bill made “no allegations against the absent

parties,” and “[t]he fact that said right of way runs through their lands, as

well as that of defendant, [did] not make them necessary parties.” Id. at

204.

       The Pennsylvania case law cited in Barren likewise involve the owners

of the property that was the subject of litigation, and not owners of adjacent

property. See Columbia Gas Transmission Corp. v. Diamond Fuel Co.,

346 A.2d 788, 789 (Pa. 1975) (in action to establish right of way, fee simple

owner of servient tenement should have been joined as indispensable party);

Huston, 346 A.2d at 258-59 (in buyers’ action to compel specific performance

of contract to purchase real estate, individuals to whom the sellers averred

they had already     transferred property should have       been joined as

indispensable parties); Tigue, 304 A.2d at 119-20 (in action to set aside deed

conveying title to real estate to grantee, where complaint was filed after

grantee’s death, personal representative of grantee’s estate should have been

joined as indispensable party); Biernacki, 379 A.2d at 1367-68 (in husband

and wife’s action seeking return of property that was taken by eminent

domain, the current title owner of the property, a realty company, should have




                                    - 12 -
J-A08013-20


been joined as indispensable party).6              Pursuant to these principles, the

Dietrichs and Virbitskys were not indispensable parties, and the trial court

properly exercised subject matter jurisdiction over Davis’ complaint.

       In her second issue, Appellant alleges the trial court erred in finding the

evidence was sufficient to establish that Davis’ use of Woods Road was

adverse, notorious, hostile, or in a manner that put her or her predecessors

in title on notice that the use was under a claim of right. Appellant maintains

there was no “clear delineation regarding the specifics of Davis’ alleged use”

of the various properties discussed at trial; Appellant reasons that although

Davis testified that he has used Woods Lot for 60 years, he did not acquire

his property, over which the alleged easement traverses, until 1992.

Appellant’s Brief at 21-22. Appellant also contends that although Davis’s trial

testimony suggested he also sought an easement over Woods Road for the

benefit of Woods Lot, such relief would be improper because Davis did not

own Woods Lot. Meanwhile, Appellant asserts the evidence simply established

“a long-standing ‘neighborly accommodation’” for Davis to use Woods Road,

where Appellant’s brother previously allowed his friend, Davis, to use the road.

Id. Appellant also cites her testimony that in 2016, Davis complied with her

request to remove his dumpster that was kept in “the ‘Woods Road’ area.”


____________________________________________


6Biernacki is an opinion issued by the Commonwealth Court, whose decisions
are not binding on this Court; nevertheless, we may find Biernacki has
persuasive authority. See Joseph v. Glunt, 96 A.3d 365, 371 (Pa. Super.
2014).

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Id.   at   21.    Appellant    claims   this   acquiescence   reflected   Davis’

acknowledgement that she controlled the property. No relief is due.

      In reviewing bench trial verdicts, we consider

      whether the findings of the trial court are supported by competent
      evidence and whether the trial court committed error in any
      application of the law. The findings of fact of the trial judge must
      be given the same weight and effect on appeal as the verdict of a
      jury. We consider the evidence in a light most favorable to the
      verdict winner. We will reverse the trial court only if its findings
      of fact are not supported by competent evidence in the record or
      if its findings are premised on an error of law. However, where
      the issue concerns a question of law, our scope of review is
      plenary.

Williams v. Taylor, 188 A.3d 447, 450 (Pa. Super. 2018) (citation omitted).

      This Court has stated:

      A prescriptive easement is created by (1) adverse, (2) open, (3)
      notorious, (4) continuous and uninterrupted use for a period of
      twenty-one (21) years.      Moreover, the party asserting the
      easement must demonstrate clear and positive proof. Permissive
      use defeats a claim of a prescriptive easement. The landowner
      has the burden of proving consent, but only after the alleged
      easement holder proves the use was adverse, open, notorious,
      and continuous for 21 uninterrupted years.

Affordable Outdoor, LLC v. Tri-Outdoor, Inc., 210 A.3d 270, 281 (Pa.

Super. 2019) (citation omitted). Under Pennsylvania law, a landowner who is

in privity with the prior adverse possessor may tack prior use of an easement

onto his own period of use to establish continuous possession for the required

21 years. Matakitis v. Woodmansee, 667 A.2d 228, 231 n.1 (Pa. Super.

1995).

      Here, the trial court credited Davis’ testimony that “he has accessed his


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property by way of Woods Road for more than [60] years . . . without asking

leave and without objection.” Trial Ct. Op. at 3. The court thus found that

Davis showed adverse, open, notorious, and continuous use, and thus

established the existence of a prescriptive easement.       These findings are

supported by the record. See Williams, 188 A.3d at 450. While Appellant

testified that her brother bought his lot in 1991 and allowed Davis to use

Woods Road, N.T. at 53-54, Davis repeatedly testified that his family has used

Woods Road since 1910, he has “always used [it] thinking . . . that was” his

right, and he used it without anyone’s permission. Id. at 7, 23, 29. To the

extent that Appellant avers that the trial court should have weighed the

parties’ competing evidence in her favor, we defer to the trial court’s findings

of fact. See Williams, 188 A.3d at 450. Finally, although we agree with

Appellant that at trial, Davis referred to his family’s historical use of Woods

Road to reach Woods Lot, we reiterate the trial court granted a prescriptive

easement only to Davis, and not to any owner of Woods Lot. Accordingly,

Appellant’s second issue does not merit relief.

      In her final issue, Appellant avers the trial court erred in failing to

consider evidence and make findings of fact under the Unenclosed Woodlands

Act. Appellant contends that undisputed trial evidence established that the

pertinent portion of her property was unenclosed woodlands, and thus a

prescriptive easement was prohibited by the Act. Appellant’s Brief at 18. She




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maintains the trial court did not address this issue and requests reversal of

the order denying her post-trial motion.

      This Court has stated:

            Generally, under the common law, one may acquire a
      prescriptive easement through someone else’s property by
      proving “(1) adverse, (2) open, (3) notorious, (4) continuous and
      uninterrupted use [of the easement] for a period of 21 years.”
      However, in 1850, the General Assembly carved out an exception
      to that general rule by forbidding the acquisition of prescriptive
      easements through unenclosed woodlands. The Unenclosed
      Woodlands Act dictates:

            No right of way shall be hereafter acquired by user,
            where such way passes through un[e]nclosed
            woodland; but on clearing such woodland, the owner
            or owners thereof shall be at liberty to enclose the
            same, as if no such way had been used through the
            same before such clearing or enclosure.

      68 P.S. § 411

Williams, 188 A.3d at 451 (some citations omitted).

      The legislature, however, did not define the term “woodlands.”

Williams, 188 A.3d at 451. Nevertheless, this Court has stated that “[i]t is

the character of the land itself which is determinative of the application of the

Act of 1850,” Sprankle v. Burns, 675 A.2d 1287, 1289 (Pa. Super. 1995),

and that a “‘woodland’ is an area of land that trees and bushy undergrowth

cover, synonymous with a ‘forest.’” Williams, 188 A.3d at 454.

      Here, we agree that the trial court did not make any specific findings of

fact or conclusions of law on the record in response to Appellant’s claim,

properly preserved at trial, concerning the Unenclosed Woodlands Act. The


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trial court did not address this issue at trial, in its May 22, 2019, opinion, or

April 22nd order denying Appellant’s post-trial motion. Accordingly, we vacate

the trial court’s order denying Appellant’s post-trial motion and remand for

the trial court to consider this claim. The trial court may request briefs or

hear argument in reviewing the evidence already presented at trial.7

       In sum, we hold the Dietrichs and Virbitskys were not indispensable

parties and thus the trial court properly exercised subject matter jurisdiction

and the court did not err in finding Davis’ use of Woods Road was hostile and

adverse. However, we agree with Appellant that the trial court did not enter

on the record any findings of fact or conclusions of law addressing the

applicability of the Unenclosed Woodlands Act. We thus vacate the judgment

and the trial court’s April 22, 2019, order denying Appellant’s post-trial

motion, and remand to the trial court for the limited purpose of reconsidering

Appellant’s Unenclosed Woodlands Act argument.

       Judgment vacated. Case remanded for further proceedings. Jurisdiction

relinquished.




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7 See Claudio v. Dean Mach. Co., 831 A.2d 140, 146 (Pa. 2003) (“In certain
situations, it may be proper for a trial court to permit a post-trial evidentiary
hearing to determine if new evidence offered in support of a post-trial motion
constitutes after-discovered evidence. However, where the new evidence
cannot be characterized as after-discovered evidence, such an evidentiary
hearing is not contemplated by [Pa.R.Civ.P. 227.1(a)(5) (“After trial and upon
the written Motion for Post-Trial Relief filed by any party, the court may . . .
enter any other appropriate order.”)]).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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