                            [J-91-2016] [MO: Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


W. LOWELL STARLING AND NANCY                 :   No. 30 MAP 2016
STARLING,                                    :
                                             :   Appeal from the Order of the Superior
                     Appellees               :   Court at No. 1779 MDA 2014 dated
                                             :   August 11, 2015, Reconsideration
                                             :   Denied October 14, 2015, Reversing
             v.                              :   and Remanding the Order of the Adams
                                             :   County Court of Common Pleas, Civil
                                             :   Division, at No. 2010-S-498 dated
LAKE MEADE PROPERTY OWNERS                   :   September 26, 2014.
ASSOCIATION, INC.,                           :
                                             :   ARGUED: September 14, 2016
                     Appellant               :


                     CONCURRING AND DISSENTING OPINION


JUSTICE DOUGHERTY                                      DECIDED: May 25, 2017

      I join the learned majority with respect to its conclusions regarding the ownership

and easement rights as they relate to Custer Drive. However, I respectfully disagree

with the majority’s holding summary judgment was properly entered in favor of

appellant, Lake Meade Property Owners Association, Inc. (the Association), and against

appellees W. Lowell and Nancy Starling (the Starlings) concerning the ownership of the

Disputed Property.    I further disagree with the majority’s legal conclusion that the

Disputed Property is not owned by the Starlings, and while it is also not owned by the

Association, it is available for the Association’s recreational use.    In my view, this

question of ownership is not entirely free from doubt, and I would therefore hold neither

party is entitled to summary judgment on this issue. Accordingly, I dissent.

      Our review of summary judgment involves a question of law; our standard of

review is de novo and scope of review is plenary. Accordingly, we may examine the
entire contents of the record. Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899,

902-03 (Pa. 2007) (setting forth scope and standard of review of summary judgment by

appellate court). Summary judgment may be granted only in cases where the right to

judgment is clear and free from doubt. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 195

(Pa. 2007), citing Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). In a motion for

summary judgment the moving party — here, the Association — has the burden of

proving the nonexistence of any genuine issue of material fact. Moreover, the record

must be viewed in the light most favorable to the nonmoving party, and all doubts as to

the existence of a genuine issue of material fact must be resolved against the

Association as the moving party. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005), citing

Jones v. SEPTA, 772 A.2d 435, 438 (Pa. 2001).

      In discussing the ownership of the Disputed Property, the majority acknowledges

there are competing accounts of the Lake Meade Subdivision Plan (the Plan) with

respect to the boundary line of the Starlings’ property, identified as Lot 726. Moreover,

the majority further recognizes there exists a “lack of unequivocal denominations

establishing the northern and southern ends of the Disputed Property.”           Majority

Opinion, slip op. at 28-29.    The majority further acknowledges the existence of an

“arguable ambiguity” regarding definition of the boundary line in this matter. Id. at 30.

In resolving the ambiguity as to the boundary line of the Starlings’ Lot 726, the majority

fails to adhere to the standard for reviewing a summary judgment claim and instead

changes this question of fact with respect to the location of the boundary line into an

issue of law, and then resolves the question in favor of the Association.

      The majority opines the boundaries of the lots as illustrated in the Plan and

identified only by lot number in the Starlings’ deed should be construed in the same

manner as a provision of a contract to avoid an absurd result. The majority then states,




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in order to avoid this “absurd result,” the developer of the subdivision, Lake Meade

Incorporated (LMI) “must have intended [Lots 726 and 1020] to be bounded by their

boundaries’ respective points of tangency with Custer Drive.”          Id. at 30.    This

determination — which is not provided for or stated in the Plan, the Association’s deed

or the Starlings’ deed — results in the Disputed Property lying outside of Lot 726, such

that it apparently does not belong to any person or entity and is thus left for the

Association to use at its will. I cannot support this analysis.

       First, in resolving the acknowledged ambiguity which arises from the lots being

illustrated without metes and bounds in the Plan, and identified only by lot number in the

Starlings’ deed, the majority ostensibly relies on contract interpretation principles but

does not acknowledge the well-settled principles more properly applicable to

interpreting a deed or subdivision plan. In interpreting a deed, this Court’s “primary

object[ive] is to ascertain and effectuate the intention of the parties.” In re Conveyance

of Land Belonging to City of DuBois, 335 A.2d 352, 357 (Pa. 1975) (citations omitted).

Moreover, “the interpretation of a deed depends not on ‘what the parties may have

intended by the language but what is the meaning of the words [employed].’” Krill v.

Petitto, 175 A.2d 54, 55 & n.4 (Pa. 1961), quoting Yuscavage v. Hamlin, 137 A.2d 242,

244 (Pa. 1958).     Additionally, “[w]here a deed or agreement or reservation therein is

obscure or ambiguous, the intention of the parties is to be ascertained in each instance

not only from the language of the entire written instrument there in question, but also

from a consideration of the subject matter and of the surrounding circumstances.” New

Charter Coal Co. v. McKee, 191 A.2d 830, 834 (Pa. 1963) (emphasis in original),

quoting Commonwealth v. Fitzmartin, 102 A.2d 893, 894 (Pa. 1954). Furthermore, “[i]f

a doubt arises concerning the interpretation of the instrument it will be resolved against




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the party who prepared it.” Ralston v. Ralston, 55 A.3d 736, 742 (Pa. 2012) (emphasis

supplied) (citations omitted).

       In holding as a matter of law that the boundary lines to Lots 726 and 1020 exist

at points of tangency to Custer Drive, the majority neither examines the entirety of the

Plan and the intention of parties, nor interprets the Starlings’ deed against the party who

prepared it — LMI. In determining Lots 726 and 1020 terminate at an unidentified point

of tangency to Custer Drive, the majority holds a substantial parcel of land, including the

Disputed Property, belongs to no entity or person. The majority further adopts the trial

court’s finding that this “small strip of undesignated shoreline property” can be used by

the Association for “any lawful use.” See Majority Opinion, slip op. at 33, citing Trial

Court Opinion (T.C.O.) at 14-15.            I am not persuaded we can make these

determinations as a matter of law.

       The majority baldly states the nearest point of tangency to Lot 726 creates the

boundary to Lot 726, holding this Court can determine what a boundary is as a matter of

law. See Majority Opinion, slip op. at 31 & n.29. This conclusion, however, not only

fails to resolve the ambiguity, but also is unsupported by the documents. The Plan

depicts no fewer than five points of tangency to Custer Drive between Lots 726 and

1020. There is nothing depicted on the Plan or in the Starlings’ deed to support the

majority’s legal conclusion that the nearest point of tangency (or any point of tangency

for that matter) to a lot creates a boundary line, leaving a significant undesignated

portion of shoreline without an owner.         Actually, such an interpretation creates the

absurd result the majority would discourage. The majority also allows a portion of the

Lake Meade Subdivision to go without an owner of record, contrary to the rest of the

Plan, which identifies each lot with a specific number, and where lot numbers are then

used in the deeds to describe the property being transferred to each owner. In fact,




                                 [J-91-2016] [MO: Wecht, J.] - 4
there is nothing in the Starlings’ deed describing the boundaries to Lot 726 or

mentioning a boundary being created at a point of tangency. See Exhibit G, Second

Amended Complaint. Moreover, even assuming arguendo that a point of tangency

should be used as a boundary to Lots 726 and 1020 when interpreting the Plan and

deed, in my view, it would be more in line with the underlying intent of the documents to

use one of the five points of tangency to create a boundary separating Lot 726 from Lot

1020, as opposed to creating “undesignated shoreline property” to be used by the

Association in any manner it chooses. Respectfully, this latter reading more correctly

resolves any ambiguity in the Starlings’ deed and Plan against LMI as the granter — as

we are required to do — and it also ascertains ownership of the Disputed Property while

considering the entire written instrument. See, e.g., Ralston, 55 A.3d at 742; New

Charter Coal Co., 191 A.2d at 834.

      Moreover, the Association’s deed from LMI clearly identified the only parcels of

land granted to the Association as follows:

          WITNESSETH, that the said Lake Meade, Inc. . . . for and in
          consideration of the sum of One ($1.00) . . . Dollar lawful money of
          the United States of America unto . . . it . . . well and truly paid by
          the said Lake Meade Property Owners Association . . . at and
          before the sealing and delivery of these presents, the receipt
          whereof is hereby acknowledged, . . . has . . . granted, bargained,
          sold, aliened, enfeoffed, released and confirmed, and by these
          presents . . . does . . . grant, bargain, sell, alien, enfeoff, release
          and confirm upon the said Lake Meade Property Owners
          Association, its successors . . . and assigns, ALL those roads, the
          dam, lake and basin and the lots numbered 30, 74, 138, 171-A,
          281, 288, 397, 410, 515, 549, 625, 634, 647, 672, 673, 713, 780,
          825, 887, 946, 1036, 1050, 1072, 1111, 1135, 1175, 1222, 1271,
          1309, 1324, 1391, 1454, 1455, 1456, 1463, and 1472 all more
          particularly shown on the plans of lots titled Lake Meade
          Subdivision, duly recorded in the office of the Recorder of Deeds of
          Adams County, Pennsylvania, in Plat Book 1, pages 1, 4, 5, 6, 7,
          19, 20, 21, and 23, in Reading and Latimore Township, Adams
          County, Pennsylvania.



                             [J-91-2016] [MO: Wecht, J.] - 5
See Exhibit D, Second Amended Complaint.             With respect to land granted, the

Association’s deed only grants specific enumerated lots along with the roads, dam, lake

and basin of the subdivision, and it is illogical to conclude there could be additional land

granted to the Association which is not described in this paragraph of the Association’s

deed. In finding the Disputed Property and other parts of the shoreline are available to

the Association for “any lawful use,” the majority provides the Association with property

rights not specifically granted, and denies the owners of Lots 726 and 1020 the property

rights actually provided in their deeds. See Majority Opinion, slip. op at 33.

       Further, the majority’s interpretation is contrary to the language of the instrument.

Careful examination of the Plan and the Association’s deed yields a finding that the

property and parcels granted to the Association for communal use are specifically

mentioned in the Association’s deed. Cogent support for this interpretation is the fact

that the only lot included on both the section of the Plan on which the Disputed Property

lies and identified in the Association’s deed is Lot 713. Lot 713, a lot unquestionably

conveyed to the Association from LMI on the 1968 Association’s deed, is clearly

identified on the Plan as “Lake Access,” which must be used in a manner lawfully

permitted. There is nothing in the Plan or the Association’s deed that would support a

finding that any property “without a specific designation” can be used by the Association

as if the Association owned such property.         My reading of these provisions in the

Association’s deed leads to my disagreement with the majority’s conclusion that the

Disputed Property — which is not in any way identified on the Association’s deed as a

common area or as property transferred from LMI — is permitted to be used by the

Association.

       Thus, in my view, the question in this matter is where the boundary line between

Lots 726 and 1020 lies, and such question cannot be resolved as a matter of law. The




                             [J-91-2016] [MO: Wecht, J.] - 6
majority’s reliance on Pocono Manor Association v. Allen, 12 A.2d 32 (Pa. 1940), to

resolve this issue is unpersuasive, as Pocono Manor is largely inapplicable to

determining the location of a boundary line. In fact, despite its claimed reliance on

Pocono Manor, the majority has failed to examine the issue actually resolved by the

Court in that case. Pocono Manor did not involve interpretation of a boundary line or

deed, or determine ownership of a parcel of land. Rather, it concerned the use of

property within a subdivision and the application and interpretation of stated deed

restrictions regarding such use. The restrictions attached to the deed were found by the

Pocono Manor Court to be “‛the law’ as to the . . . use of the premises.” Pocono Manor,

12 A.2d at 34. The Court then proceeded to equate the interpretation of the restrictions

regarding the use of property in the subdivision with the interpretation of statutes. Id.

The issue before us is not whether a use of the Disputed Property is prohibited by

specific restrictions in a deed, but involves the determination of where the boundary line

to Lot 726 lies and who owns the Disputed Property, depending on that boundary line.

As we are not interpreting a deed restriction, law, or statute, I am not persuaded by the

majority’s rationale for resolving the acknowledged ambiguity with respect to the

boundary line.

      The identification of the boundary line in this matter cannot be determined as a

matter of law for purposes of summary judgment. “[W]here a boundary line, or corner,

is actually located is a question for the trier of fact.” Corbin v. Cowan, 716 A.2d 614,

617 (Pa. Super. 1998) (resolving dispute regarding location of common boundary line

and ownership rights of dirt road) (emphasis added), quoting Plott v. Cole, 547 A.2d

1216, 1219 (Pa. Super. 1988); see also Plauchak v. Boling, 653 A.2d 671, 675 (Pa.

Super. 1995) (noting “location of . . . boundary line is a matter for the trier of fact” in

action in ejectment and/or to quiet title regarding location of boundary line and




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ownership of property surrounding boundary line) (emphasis in original). Pursuant to

this established standard, the boundary of Lot 726 is a factual question for the jury.

       In my view, the Starlings have provided ample evidence to present the matter of

ownership of the Disputed Property, and the location of the boundary line to the jury.

The Starlings have provided documentation to show they — and not the Association —

pay property taxes for the Disputed Property.1        See Exhibit X, Second Amended

Complaint. Further, in 2007, the Association acknowledged the boundary line for Lot

726 “is undeterminable.” Exhibit M, Second Amended Complaint. When reviewing

these facts in the light most favorable to the Starlings as the nonmoving party, as we

must, I conclude there remain substantial issues of material fact regarding the

ownership of the Disputed Property. Such questions should be left to the province of

the fact-finder, not the trial court judge at the summary judgment stage, or an appellate

court reviewing summary judgment already granted. Accordingly, I would remand the

case for findings of fact regarding the ownership of the Disputed Property and boundary

line of Lot 726. Only after such factual findings are made may the question of whether

the Starlings are entitled to further relief in the form of trespass and ejectment be

entertained.

1
   The majority questions my citation to this allegation, noting the “assessment and
payment of taxes on property is not proof of title.” See Majority Opinion, slip op. at 23,
n.23. I note citation to Starlings’ allegations is not meant to definitively demonstrate or
support a finding in favor of the Starlings with respect to the Disputed Property. Rather,
I refer to them only to demonstrate the record contains genuine issues of material fact
regarding ownership. Our review in this appeal is limited to determining whether
summary judgment was properly granted, that is, whether any genuine issues of
material fact exist; any such material disputes — based on allegations such as these —
must be resolved against the Association as the party who moved for summary
judgment. See Fine, 870 A.2d at 857, citing Jones, 772 A.2d at 438.



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