             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adams Township,                      :
                         Appellant   :
                                     :
             v.                      :              No. 2023 C.D. 2014
                                     :              Argued: November 17, 2015
Richland Township; Cambria County; :
Watkins Glen Properties, Inc.;       :
Clarann Hillenbrand, Dorian Frazier  :
and JoAnne Frazier; Debra Kuhne;     :
Thomas Costa and Pamela Costa;       :
David Anderson and Jean Anderson;    :
Robert Burnworth and Mary Burnworth; :
Roy Lowry and Debra Lowry; Virginia :
Chapman; Berwind Corporation;        :
Paul Singer; Vincent Maxwell and     :
Jessica Maxwell; and Nancy Leone     :


BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge


OPINION BY JUDGE BROBSON                                     FILED: December 18, 2015

              Appellant Adams Township (Adams) appeals from an order of the
Court of Common Pleas of Cambria County (trial court). The trial court appointed
a Board of Commissioners (Board) to determine the boundary between Adams
Township (Adams) and Richland Township (Richland).1 The Board concluded


       1
          This matter began when Adams initiated a declaratory judgment action against
Richland, seeking to have the trial court determine the boundary line. Richland filed preliminary
objections to the complaint, and the trial court determined that the complaint constituted a
request under Section 302 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as
reenacted and amended, 53 P.S. § 65302, which, in pertinent part, provides that a trial court,
(Footnote continued on next page…)
that the Cambria County tax assessment/GIS2 map should constitute the boundary
line.       The trial court accepted the Board’s recommendation.                 Adams filed
exceptions to the trial court’s order, which the trial court dismissed. 3 We vacate
the trial court’s order and remand the matter to the trial court for further
proceedings.
                 At the outset, we note some key factual details concerning this matter
and legal principles concerning the duties of boards of commissioners in
performing the task of determining a boundary between municipalities. First, this
Court has held that there is no allocation of a burden of proof in such matters.
Moon Twp. v. Findlay Twp., 553 A.2d 500, 503 (Pa. Cmwlth. 1989), appeal
dismissed, 587 A.2d 311 (Pa. 1991). Thus, in a sense, such proceedings cannot be
characterized as adversarial in the way of traditional party litigation. Second, as
the Board properly noted throughout its hearings, its authority under Section 302
the Second Class Township Code (Code)4 does not extend to it the power to
determine a fair boundary when two municipalities disagree about their borders.



(continued…)

upon petition, may “require the lines or boundaries between two or more townships to be
ascertained.”
        2
         “GIS” apparently is a reference to the mapping technology known as Geographic
Information Systems.
        3
         The trial court’s September 22, 2014 order also directed the Cambria County Tax Office
to provide the trial court with “a metes and bounds description of the Cambria County GIS tax
assessment line.” The trial court entered its final decree on October 13, 2014, ordering that the
Cambria County tax assessment/GIS map constituted the boundary between Adams and
Richland.
        4
            Act of May 1, 1933, P.L. 103, as reenacted and amended, 53 P.S. § 65302.



                                                 2
Rather, its duty is to attempt to determine the original boundary at the inception of
one or two municipalities.
              In this case, Richland existed before Adams, and, in 1870, Adams was
carved out of Richland. (Board Decision Finding of Fact (F.F.) no. 1.) The Board
here faced a daunting task in seeking to determine the location of the original
boundary line, because the “creation document” developed and filed in the
Cambria County Court files5 in 1870 (and which would have presumably provided
an exact method of determining the boundary line) has been missing for an
indeterminate period of time, and no duplicates of that document were made.
(F.F. no. 2.) The Board, nevertheless, did a commendable job in seeking to fulfill
its obligation, conducting three hearings, during which it considered evidence from
surveying experts offered by Adams and Richland.
              Adams offered the testimony of Frederick Brown, a professional
surveyor. Mr. Brown testified that he performed a survey of the Adams/Richland
boundary in or about 2005. Mr. Brown indicated that Adams and Richland had
hired him because the townships were the putative defendants in an auto accident
matter and disputed their liability, based upon the indefinite location of the
accident. Mr. Brown testified that he relied, in part, upon a survey performed
around 1930, involving a boundary dispute among several municipalities,
including Richland and Conemaugh Township. That survey, referred to as the S.E.
Dickey Survey, was not intended to establish the original Adams/Richland
boundary, but it depicts the most northerly point where Adams and Richland meet


       5
        “Order of Cambria County Courts on January 5, 1870, as shown in the Quarter Sessions
Docket Volume 1, Page 9.” (F.F. no. 1.)



                                             3
as located southwest of the confluence of two rivers, one of which is the South
Fork River. (Reproduced Record (R.R.) at 193a.) Mr. Brown testified regarding
four purported “monuments” that he believed reflected or aided in determining the
northernmost point where the two municipalities conjoin. Mr. Brown testified that,
in his opinion, the monuments and mathematical information available to him
enabled him to confirm the northernmost point, using a monument identified in the
S.E. Dickey survey and information therein indicating the distance to the end of the
boundary between Conemaugh Township and Richland. Mr. Brown testified that
the owner of property in the proximity of that point informed Mr. Brown that a
monument existed very close to that northern point (the Myers field monument),
leading Mr. Brown to opine that the former monument confirmed his conclusion
regarding the northernmost point as between Adams and Richland. Mr. Brown
also testified regarding a monument on the Bloom property, which is directly south
of the northern point as determined by Mr. Brown, which also confirmed his belief
that a line connecting the monuments, if continued southward, would eventually
lead to the initial southernmost point where the two townships join.
            Mr. Brown found support for this theory based upon differentiations
in macadam on two roads crossing the township boundary south of the Bloom
monument, which would roughly (within fifteen or so feet) match the proposed
boundary line if completed south to Somerset County. Mr. Brown also testified
that he believed the authorities who set the original boundary line may have also
relied upon visual physical identifiers that Mr. Brown explained were commonly
used for creating boundaries, namely geo-physically high elevations, which
permitted surveyors to create boundaries based on sighting of hilltops across
valleys. (R.R. at 30a.) Mr. Brown testified, however, that although he believed


                                         4
that the original boundary was a straight line, at some point the boundary had been
altered at the southern end, such that the boundary veered off in a straight line that
lead in a southeasterly direction, which can be seen on Adams Exhibit 3
(R.R. at 440b). Mr. Brown could not explain how this deviation came to be, but he
reasoned that it represented a deviation from the original boundary.
             Richland offered the testimony of David Kalina, a professional
surveyor. Although Mr. Kalina did not conduct his own survey, he explained that
he researched the history of the boundary and found documents dating back to
1872, which he believed supported his view that the northernmost point at which
Adams and Richland join is a point northeast of the point identified by the S.E.
Dickey survey and by Mr. Brown. Mr. Kalina testified that he found an atlas of the
area that reflected the work of a surveyor who placed the most northern point
between the two townships at or closer to the confluence of the South Fork River.
Mr. Kalina opined that this atlas, as well as other documents developed by
authorities, including the Pennsylvania Department of Highways (now the
Department of Transportation), similarly placed the point farther north than
Mr. Brown’s survey. Mr. Kalina agreed that the original boundary between Adams
and Richland is a straight line, but he found a reference to the “Hoffman Farm” at
the southern end of Cambria County and northern end of Somerset County, which
appeared to Mr. Kalina to be the point where the two municipalities (Adams and
Richland) met. Mr. Kalina reasoned generally that the older records upon which
he relied were more reliable than the newer, post-1930 documents upon which




                                          5
Mr. Brown relied, because they were created closer in time to the date of the
creation of the original boundary.6
                There is no evidence of record suggesting that any part of the tax
assessment map line developed by Cambria County can be traced to the original
boundary line established in 1870. Although it is clear that the tax assessment map
line runs roughly in the same general area as the line Mr. Brown found to be the
original boundary, there is no direct evidence in the record regarding the creation
of that line.     In fact, the two experts who referenced actual historical and/or
documentary support for their positions agree that there is no foundation to support
a determination that the Cambria County tax assessment line is the original
boundary line.
                As reflected in certain exhibits, especially Exhibit 18 (R.R. at 506b),7
the lines suggested by Mr. Brown and Mr. Kalina would have varying effects on
individual property owners in Adams and Richland.                  The line proposed by
Mr. Brown would have the effect of moving at least six individuals and one large
tract (Watkins Glen Properties) from Richland (or part of Richland in the case of
Watkins Glen Properties) into Adams. (Exhibit 12, R.R. at 453b.) Mr. Brown’s

       6
         Thomas and Pamela Costa, who own property in the area of the disputed boundary line,
offered the testimony of Jerry Thomas, a surveyor. Mr. Thomas did not conduct a survey.
Rather the gist of his legal opinion was that the townships, by failing to contest the boundary
used for tax assessment purposes (as developed by Cambria County) or to seek to establish the
original boundary for so many years, had lost the right to challenge the use of the Cambria
County tax assessment map as the official boundary that the townships used, albeit erroneously,
for so many years.
       7
        Exhibit 18 illustrates the differences among the two experts’ opinions and the tax
assessment map. Mr. Brown’s proposed boundary is highlighted in blue/green, Mr. Kalina’s
boundary is highlighted in pink, and the tax assessment line is highlighted in orange/brown.



                                              6
survey would also result in the movement of several properties from Adams into
Richland. (Id.) Also, because Mr. Brown’s survey placed the boundary line in a
manner that crossed through the apparent middle of four properties, it appears that
the situs of those properties would have to be determined based upon factual
information, such as the location of improvements on the properties. (Id.; Notes of
Testimony of Sarah H. Reasbeck, R.R. at 107a.) Mr. Kalina confirmed that his
proposed boundary would result in hundreds of properties being moved from
Adams to Richland.
             The Board specifically found that “Mr. Brown’s proposed line [is] the
most reasonable analysis and alternative to the current boundary line.”
(F.F. no. 22.) The Board, however, also found that it was “unable to find sufficient
supporting evidence in the record, when weighing all factors, including, but not
limited to credibility of all witnesses, to support any Board determination that the
‘Brown line’ is the original 1870 boundary line.” (F.F. no. 23.) The Board
specifically also found that “the other expert opinions [are] speculative, mere
conjecture and self-serving interpretations of select documents and reflect a
disregard of any existing unsupporting documentation and records.” (F.F. no. 24.)
The Board found that “[t]here are official governmental records that refute each
expert’s opinion of the location of the boundary line.” (F.F. no. 25.) The Board
found that insufficient evidence existed for the Board to determine where the
original boundary line is. (F.F. no. 26.)
             The Board also considered equitable principles in its decision. First,
the Board determined that Richland failed to demonstrate any facts that would
indicate prejudice or acquiescence on the part of the townships that would estop
Adams from asserting a different boundary line.       (F.F. no. 27.)    The Board,


                                            7
however, determined that “there were substantial improvements by the property
owners affected by the dispute, which were reasonably induced by the long
acquiescence of the current boundary line, which is based upon the tax assessment
maps.” (F.F. no. 29, 31.) The Board concluded that “[t]he Doctrine of Estoppel
warrants a determination that the boundary line between Adams Township and
Richland Township should be located at its current location as reflected on the
Cambria County tax assessment/‘GIS’ records.” (F.F. no. 32.)
            The Board considered, but did not address, Adams’ claim that
Richland was collaterally estopped from challenging the Brown line, based upon
the fact that Richland authorized the S.E. Dickey survey upon which Brown relied.
The Board concluded that the doctrine did not apply in this case based upon its
conclusion that the individual property owner/plaintiffs had established a basis
upon which to apply estoppel with regard to their own properties. (Board Decision
at 16.) The Board reasoned that “[t]he private property owners should not be
prejudiced by th[e] lack of official records, especially considering Adams
Township’s long delay in challenging the currently existing boundary line.” (Id.)
            The trial court, in considering the exceptions Adams filed to the
Board’s report, rejected Adams’ arguments, dismissed the exceptions, and
confirmed the Board’s report. After obtaining a metes and bounds description of
the boundary as set forth on the Cambria County tax assessment/GIS map, the trial
court entered a final order establishing that line as the boundary between Adams
and Richland.
            Adams appeals from the trial court’s order, raising the following
primary issues: (1) whether the Board erred in “discounting” the 2005 Brown
survey; (2) whether the Board erred in concluding that substantial evidence


                                       8
supported its determination that the individual property owner/plaintiffs were
entitled to prevail on an estoppel theory; (3) whether the Board erred in failing to
consider whether the boundary line as reflected in the S.E. Dickey survey, which
the trial court adopted through court order in 1931, has a binding effect upon the
Board’s determination of the boundary in this matter; and (4) whether the Board
erred in relying upon the Cambria County tax assessment/GIS map to establish a
boundary line. Subsumed in Adams’ issues is the claim that the Board erred in
accepting the tax assessment map boundary as the original boundary, and we begin
with that issue.
             Section 303 of the Code provides as follows:
             Upon application by petition, the court shall appoint three
             impartial citizens as commissioners . . . to inquire into the
             request of the petition. After giving notice to parties
             interested as directed by the court, the commissioners
             shall hold a hearing and view the lines or boundaries, and
             they shall make a plot or draft of the lines and boundaries
             proposed to be ascertained and established if they cannot
             be fully designated by natural lines and boundaries. The
             commissioners shall make a report to the court, together
             with their recommendations. Upon the filing of the
             report, it shall be confirmed nisi, and the court may
             require notice to be given by the petitioners to the parties
             interested.

53 P.S. § 65303. This provision dictates the bounds of the Board’s duty—to make
a plot or draft of the lines sought to be ascertained.        The line sought to be
ascertained is the original boundary line created as between the two municipalities.
As we have noted already, a board of commissioners’ duty under Section 303 of
the Code is not to determine a fair boundary, but rather to ascertain or recreate the
original boundary at the inception of one or two municipalities. In this case, the
Board reasoned that it could not identify the original boundary based upon the

                                          9
evidence of record, and, instead, opted to use the boundary line depicted on the
Cambria County tax assessment map.            Unfortunately, there is no evidentiary
support for the Board’s determination, which, contrary to its statutory task, appears
to be founded solely on principles of fairness. Indeed, the experts for both Adams
and Richland agree on two points—i.e., that the original boundary line is a straight
line and that the Cambria County tax assessment map (which is not a straight line)
does not reflect the original boundary line between the two townships. Because
there is no factual basis in the record to support the Board’s adoption of the tax
assessment map as the original boundary line, we must conclude that the Board
erred.
             Additionally, the Board’s reliance upon equitable principles of
estoppel or acquiescence is misplaced. Our case law suggests that a board of
commissioners may, in certain circumstances, consider such equitable principles,
but only after complying with its duty to determine an original boundary line. For
example, in Laflin Borough v. Jenkins Township, 422 A.2d 1186 (Pa.
Cmwlth. 1980), this Court addressed a boundary challenge resolved by a board of
commissioners. In that matter, the board considered whether a particular tract of
land was in Jenkins Township rather than Laflin Borough or Yatesville Borough.
The key problem in that case involved inconsistencies in Laflin’s charter
describing the boundaries. The board in that matter ultimately determined, based
upon its construction of the charter, that the boundary should be the line defined by
the charter’s metes and bounds description. We affirmed the board’s resolution
and rejected Yatesville Borough’s claim that the doctrine of equitable estoppel
should preclude application of the original boundary as determined by the board.
We concluded that there was no evidence indicating that Yatesville had made


                                         10
substantial improvements, as compared to services over a period of time, to
properties previously believed to be in Yatesville Borough.
             Similarly, in Moon Township, we considered two questions. The first
was whether the board of commissioners correctly concluded that the location of a
municipal boundary initially defined by the center of a stream continued to be the
actual boundary after the stream had been moved in the 1950s to build a highway.
We first affirmed the legal analysis the board applied to determine where the
boundary originally existed (adopting the initial location of the stream as the true
boundary). Next, we considered whether Moon Township was estopped from
claiming (for municipal purposes) the property affected.         We concluded that
Findlay Township failed to offer sufficient evidence that it had made substantial
improvements based upon acquiescence on the part of Moon Township.
             The same reasoning applied in In re Viola, 838 A.2d 21 (Pa. Cmwlth.
2003), where the Violas owned property near the boundary between (a different)
Adams Township and Cranberry Township located in Butler County. The Violas
wanted to develop the property (as does Watkins Glen Properties in this case), and
had difficulty doing so because the two townships disputed the boundary line. The
board of commissioners in that case ultimately concluded that reference to older
deeds in the chain of title might illuminate the issue. After directing the parties to
conduct additional research and discovering additional deed information on its
own, the board of commissioners determined that the original boundary line could
be determined based upon the new evidence.          On appeal, this Court rejected
Cranberry Township’s estoppel claim, seeking to have the Butler County tax
assessment map boundary lines declared the official boundary line, noting that




                                         11
Cranberry had not established that any improvements had been made to the Violas’
property.
            In this matter, we note that the municipalities agree on two facets of
the true boundary line—that it is a straight line and that the Cambria County tax
assessment line does not reflect the original boundary line between Adams and
Richland. There exists the possibility that additional evidence could clarify and
make more meaningful the evidence already in the record. Although the Board
indicated that it did not find Mr. Brown’s testimony competent, because it believed
that the evidence was the result of conjecture and speculation, we note that some of
the evidence, from both Mr. Brown and Mr. Kalina, could also be interpreted to be
circumstantial evidence of a boundary line. Furthermore, Mr. Kalina indicated in
his testimony that he did not have sufficient time to investigate deeds going back
earlier in time that might confirm his opinion. While it would appear to constitute
a herculean task to investigate every conceivable property deed going back as far
as such records permit, as was accomplished for the Violas’ property, it is possible
that, given the townships’ agreement that the line is straight, historical deeds of
some properties in key locations might provide more definite clues to properties
along the true original boundary line and render evidence the Board initially
characterized as speculative to be circumstantial evidence of a particular boundary.
            As suggested above, we believe that the time and place for a board of
commissioners to consider evidence that might implicate the equitable estoppel
doctrine or acquiescence doctrine is only after a board of commissioners
determines an original boundary line. Thus, in this case, even if such evidence is
eventually pertinent to a final recommendation by the board of commissioners, the
Board erred by considering such evidence when it did. Moreover, we disagree


                                        12
with the Board’s conclusions regarding the evidence of acquiescence in this case.
Robert Burnworth, who testified that he made $40,000 in improvements to his
property, was the only individual property owner who testified that he made
significant improvements to his property based upon his understanding of a
township boundary line. No other individuals (currently having an interest in
property that might be affected by a shift in the boundary line) specifically testified
that he or she made improvements to their property based on a boundary line
assumption.
              Based upon the foregoing, we will remand the matter to the trial court,
which we direct to take such action as is necessary to determine the actual
boundary line between Adams and Richland, in accordance with this opinion.
Once the trial court (or the Board on remand) determines the original boundary
line, the Board or the trial court should provide any interested parties with an
opportunity to respond to the boundary line determination.
              Accordingly, the order of the trial court is vacated, and the matter is
remanded to the trial court for further proceedings.




                                 P. KEVIN BROBSON, Judge




                                          13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adams Township,                      :
                         Appellant   :
                                     :
             v.                      :   No. 2023 C.D. 2014
                                     :
Richland Township; Cambria County; :
Watkins Glen Properties, Inc.;       :
Clarann Hillenbrand, Dorian Frazier  :
and JoAnne Frazier; Debra Kuhne;     :
Thomas Costa and Pamela Costa;       :
David Anderson and Jean Anderson;    :
Robert Burnworth and Mary Burnworth; :
Roy Lowry and Debra Lowry; Virginia :
Chapman; Berwind Corporation;        :
Paul Singer; Vincent Maxwell and     :
Jessica Maxwell; and Nancy Leone     :




                                  ORDER


           AND NOW, this 18th day of December, 2015, the order of the Court
of Common Pleas of Cambria County (trial court) is VACATED, and the matter is
REMANDED to the trial court for further proceedings consistent with the
accompanying opinion.
           Jurisdiction relinquished.




                              P. KEVIN BROBSON, Judge
