J-S16041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA MONGELL, IN HER CAPACITY                 IN THE SUPERIOR COURT OF
AS PERSONAL REPRESENTATIVE OF THE                      PENNSYLVANIA
ESTATE OF DOROTHY D. STEFANICK,

                             Appellant

                        v.

CHARLES T. STEFANICK,

                             Appellee                No. 1511 WDA 2016


              Appeal from the Order Entered September 15, 2016
               in the Court of Common Pleas of Fayette County
                    Civil Division at No.: 1780 of 2012, G.D.


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 18, 2017

        Appellant, Barbara Mongell, in her capacity as personal representative

of the estate of Dorothy D. Stefanick (the decedent), appeals from the order

of September 15, 2016, denying her petition to strike the judgment and

verdict for lack of jurisdiction. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this case from

the trial court’s September 15, 2016 opinion and our independent review of

the certified record.

        The decedent was the mother of Appellant and Appellee, Charles T.

Stefanick. (See Trial Court Opinion, 9/15/16, at 2, 4). On August 2, 2012,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S16041-17


the decedent filed a civil complaint. In the complaint, the decedent alleged

that she was the sole owner of real property at 27 Woodvale Street, Dunbar,

Pennsylvania. (See Complaint, 8/02/12, at unnumbered pages 1-2). She

stated that Appellee was the owner of an adjacent property at 25 Woodvale

Street, Dunbar, Pennsylvania.     (See id. at unnumbered page 1).         The

decedent contended that she had acquired by “actual, open, notorious,

hostile and adverse use” a parcel of land that she used for parking and other

purposes, but that Appellee had now blocked access to it.             (Id. at

unnumbered page 2). The decedent sought a declaratory judgment that she

was the owner of the disputed land, and punitive damages.         (See id. at

unnumbered page 3).

      On August 29, 2012, Appellee filed an answer, new matter and

counterclaim. In the new matter and counterclaim, Appellee alleged that the

decedent had constructed a carport on his property without his permission

and refused to remove it.    (See Answer, New Matter, and Counterclaim,

8/29/12, at unnumbered page 4).

      On November 19, 2013, Appellee filed a pretrial statement.       In his

statement, he argued, for the first time, that the decedent lacked standing in

the instant matter since she had partially transferred the property in

question to Appellant, as a joint tenant with right of survivorship (JTWROS),

and Appellant was not a party to the proceedings.     (See [Appellee’s] Pre-

Trial Statement, 11/19/13, at unnumbered page 1). On May 14, 2014, the


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decedent filed her pretrial statement.      She did not address Appellee’s

contention regarding either Appellant or the transfer of property. (See [the

decedent’s] Pretrial Statement, 5/14/14, at unnumbered page 1).

      On July 17, 2014, the trial court held a pretrial conference.      In an

order issued following the conference, the trial court listed one of the issues

for trial as whether “[w]ithin five years, or when [the decedent’s] property is

sold, or at mother’s death, the deck shall be removed[.]”         (Order Civil

Pretrial Conference, 8/13/14, at 1). The issue was not contained within the

pleadings and neither party ever moved to amend the pleadings.

      A bench trial took place on November 26, 2014 on the sole issue of

removal of a deck that overhung Appellee’s property.         (See N.T. Trial,

11/26/14, at 3-4). The decedent was in failing health and did not appear.

(See Trial Ct. Op., at 2). The trial court allowed Appellant to act as her

mother’s attorney in fact during the proceedings. (See id. at 2, 4). At trial,

Appellant was the sole witness on behalf of the decedent, and she sat and

conferred with counsel during trial.   (See id.). The decedent claimed she

had acquired title to that area of Appellee’s property by adverse possession,

easement by prescription, or easement by necessity.          (See N.T. Trial,

11/26/14, at 4-5).

      Appellant’s testimony with respect to when the decedent installed the

deck was muddled. She initially testified that the deck was not there when




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the decedent moved into the residence in February 1990.1 (See id. at 9).

She then stated that she did not know when the decedent added the deck,

attaching it to an outdoor fire escape. (See id. at 10). She subsequently

appeared to testify that the deck had been present in February 1990. (See

id. at 12-13). On cross-examination, Appellant admitted, for the first time,

that approximately three months before the filing of the complaint in the

instant matter, the decedent transferred the property from herself, to herself

and Appellant as JTWROS.          (See id. at 14).   Appellant also admitted that

part of the construction of the deck had been done by Gregg Beal, who had

been subpoenaed to testify at trial but was not present.         (See id. at 15).

She also stated that her brother-in-law, who was also not present at trial,

had done some of the construction but had to stop because of an injury.

(See id.).      Appellant claimed that because she remembered that her

brother-in-law hurt himself at work in 1987, construction on the deck had

occurred in that year. (See id. at 16).

       Appellee also testified at trial.       He stated, unequivocally, that the

decedent did not add the deck until around 1994.            (See id. at 21).   He

claimed that he remembered this because he purchased a trailer in 1994 and

in order to get the trailer onto the property, he had to go over the area

where the deck is located. (See id. at 22).
____________________________________________


1
 Later Appellant testified that the decedent moved into the property on May
9, 1990. (See N.T. Trial, at 15).



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      At the close of trial, the court directed the parties to file post trial

briefs. (See id. at 31). On January 16, 2015, Appellant filed a motion to

enlarge time to file post trial brief, and, in the motion, Appellant stated that

the decedent died on December 28, 2014. (See Motion to Enlarge Time to

File Post Trial Brief, 1/16/15, at unnumbered page 1). On June 2, 2015, the

trial court issued an opinion and verdict. In its decision, the trial court found

that the decedent had not added the deck until after Appellee situated the

trailer on his property in 1994. (See Opinion and Verdict, 6/02/15, at 2). It

further held that Appellee was aware that the deck encroached onto his

property but allowed it to remain. (See id.). Thus, the trial court held that

the encroachment had not been in existence for more than twenty-one years

and because of the familial relationship between the parties, the possession

had not been hostile because Appellee did not object to the decedent’s use

of his space until 2012. (See id. at 3). Accordingly, the court found in favor

of Appellee and against Appellant, and ordered Appellant to remove the

deck. (See id. at 3-4). Neither party filed a direct appeal of that order.

      On February 24, 2016, Appellee filed a praecipe to enter judgment.

On May 19, 2016, Appellant filed a praecipe to amend the caption to

substitute Appellant in her capacity as personal representative of the

decedent’s estate.   That same day, Appellant filed the instant petition to

strike judgment, claiming the trial court lacked jurisdiction because she was




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an indispensable party, but Appellee had not named her in his counterclaim. 2

(See Petition to Strike judgment and Verdict for lack of Jurisdiction,

5/19/16, at unnumbered page 2). Appellee filed an answer and new matter

on June 3, 2016. On September 15, 2016, the trial court issued an opinion.

The trial court found that Appellant was an indispensable party, but

nonetheless denied the petition to strike, holding that Appellant “was an

actual party” to the earlier proceedings in all respects. (Trial Ct. Op., at 4;

see id. at 3-4). The instant, timely appeal followed.

       On October 13, 2016, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.         See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on November 3, 2016. See

id. On November 4, 2016, the trial court filed a statement in lieu of opinion,

stating that all issues were discussed fully in the September 15, 2016

opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review:


____________________________________________


2
  As noted above, neither party raised the deck issue in the pleadings.
Appellant now avers that Appellee first raised the issue in a counterclaim.
(See Petition to Strike Judgment and Verdict for lack of Jurisdiction,
5/19/16, at unnumbered pages 3-4). However, there is nothing in the
record that supports this allegation. Rather, in its opinion, the trial court
implies that it was Appellant who raised an adverse possession claim. (See
Trial Ct. Op., at 2). Further, Appellant herself alternates between claiming
that this issue grew out of Appellee’s counterclaim and merely stating that
this issue became the ultimate issue in dispute. (See Appellant’s Brief, at
14-15).



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       I.     Is a co-owner of land (with right of survivorship), who
              appeared in the proceedings as a witness on behalf of the
              named [c]ounterclaim [d]efendant, required to be named
              or joined as a party, in a manner contemplated by Rule
              2227 of the Pennsylvania Rules of Civil Procedure or an
              indispensable party in a civil proceeding which adjudicates
              the legal status of the co-owner’s boundary line and
              liability of co-owner for a property encroachment?

                 A. Did the [t]rial [c]ourt err as a matter of of law
                    in determining that [Appellant] was a “de facto
                    party” to the [t]rial [c]ourt proceedings, as a
                    result of her appearing as a witness and
                    participating as the attorney-in-fact for the
                    named [c]ounterclaim [d]efendant?

       II.    Did the [t]rial [c]ourt lack subject matter jurisdiction to
              adjudicate the issue concerning the legal status of the
              boundary line/encroachment due to the failure to join the
              property co-owner as a party, requiring the verdict and
              judgment to be stricken?

(Appellant’s Brief, at 4).

       While Appellant divides her argument into two issues, they are

interrelated as both challenge the trial court’s denial of her petition to strike.

We will therefore treat them together.3 We have stated:

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3
  This Court has legitimate questions regarding the standing of Appellant, in
her capacity as personal representative of the estate, to file a petition to
strike in this matter. As the decedent and Appellant held the property as
JTWROS, upon the decedent’s death the property passed to her directly
through operation of law, not through the estate. Thus, it is not evident
what interest the estate has in the proceedings. However, our Supreme
Court has held that where a party has not raised the issue of lack of
standing, and Appellee did not below, this Court cannot raise it sua sponte.
See In re Estate of Brown, 30 A.3d 1200, 1204-05 (Pa. Super. 2011)
(citing In re deYoung, 903 A.2d 1164, 1166 (Pa. 2006)); see also Hall v.
Episcopal Long Term Care, 54 A.3d 381, 399 (Pa. Super. 2012), appeal
(Footnote Continued Next Page)


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            [t]his Court’s review of an order striking a judgment is
      limited to whether the trial court manifestly abused its discretion
      or committed an error of law.

              A petition to strike a judgment

                    may be granted only if a fatal defect or
             irregularity appears on the face of the record . . . In
             considering the merits of a petition to strike, the
             court will be limited to a review of only the record as
             filed by the party in whose favor the [judgment] is
             given, i.e., the complaint and the documents [of
             record]. Matters dehors the record filed by the party
             in whose favor the [judgment] is given will not be
             considered.     If the record is self-sustaining, the
             judgment will not be stricken.

            The lack of jurisdiction is a proper basis for striking a
      judgment when the jurisdictional defect is evident on the face of
      the record.

                                            *     *   *

            The failure to join an indispensable party is a non-waivable
      defect that implicates the trial court’s subject matter jurisdiction.
      Failure to join an indispensable party goes absolutely to the
      court’s jurisdiction and the issue should be raised sua sponte.

Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 28-29 (Pa.

Super. 2015), appeal denied, 2016 WL 5815288 (Pa. filed Oct. 5, 2016)

(citations, quotation marks, and footnote omitted).

      Moreover:

      [i]t is never too late to attack a judgment or decree for want of
      jurisdiction. That question is always open. Such a judgment is
                       _______________________
(Footnote Continued)

denied, 69 A.3d 243 (Pa. 2013) (holding that challenge to standing must be
raised at earliest possible opportunity in preliminary objections or answer).
Thus, we are constrained to address the merits of Appellant’s contentions.



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      entitled to no authority or respect, and is subject to
      impeachment in collateral proceedings at any time by one whose
      rights it purports to affect. The want of jurisdiction over the
      subject matter may be questioned at any time. It may be
      questioned either in the trial court, before or after judgment, or
      for the first time in an appellate court, and it is fatal at any stage
      of the proceedings, even when collaterally involved. . . .
      Moreover, is [sic] well settled that a judgment or decree
      rendered by a court which lacks jurisdiction of the subject matter
      or of the person is null and void and is subject to attack by the
      parties in the same court or may be collaterally attacked at any
      time.

DeCoatsworth v. Jones, 639 A.2d 792, 796 (Pa. 1994) (citations,

emphasis, and quotation marks omitted) (holding that Superior Court erred

in finding that once direct appeals process was completed trial court lacked

jurisdiction to rule on motion to strike for failure to name indispensable party

filed several months after Supreme Court denied allocator in underlying

action).   Thus, despite Appellant’s lengthy delay in filing her petition, the

trial court had jurisdiction to hear it. See id. at 796.

      However, finding that the trial court had jurisdiction to rule on the

petition, does not go to the issue of merit. Our Supreme Court has stated

that we should consider four factors in determining whether a party is

indispensable.

      1. Do absent parties have a right or interest related to the claim?

      2. If so, what is the nature of that right or interest?

      3. Is that right or interest essential to the merits of the issue?

      4. Can justice be afforded without violating the due process
      rights of absent parties?


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Id. at 797 (citation omitted).

        Here, as JTWROS, Appellant had an interest or right related to a claim

regarding the property.        See Mitchell v. Prudential Prop. & Cas. Ins.

Co., 499 A.2d 632, 636 (Pa. Super. 1985) (noting that JTWROS are

indispensable parties in cases involving property); but see Miller v.

Benjamin Coal Co., 625 A.2d 66, 66-68 (Pa. Super. 1993), appeal denied,

641 A.2d 311 (Pa. 1994) (holding that while joint property owners were

generally indispensable parties, there was nothing preventing one spouse in

property held by entireties from maintaining action with one spouse acting

as other’s agent). Thus, we agree with Appellant that as a joint tenant she

had an interest in a claim relating to the property. See Mitchell, supra at

636.4

        Further, as a JTWROS, Appellant had an interest in the correct

demarcation of the property line and the questionable legal status of the

deck, as it affected the marketability of her title and the value of the

property.
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4
  Appellee, relying on this Court’s decision in General Credit Co. v. Cleck,
609 A.2d 553, 556 (Pa. Super. 1992), appeal discontinued, 613 A.2d 560
(Pa. 1992), argues that the decedent’s action in filing the complaint stating
that she was the sole owner of the property, severed the joint tenancy.
(See Appellee’s Brief, at 11-13). We disagree, as there is nothing in the
record that demonstrates that the decedent intended to sever the tenancy.
See Bastian v. Sullivan, 117 A.3d 338, 345 (Pa. Super. 2015) (explaining
intent is significant issue in addressing severance and voluntary act by one
tenant must be of “sufficient manifestation” that he or she is “unable to
retreat” from the action creating severance).



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       The third prong asks whether the right or interest is essential to the

merits of the issue.      We do not think it was.      Appellant had been a joint

owner of the property for less than six months at the time the decedent filed

the complaint.      She had no ownership interest in the property when the

decedent erected the deck, and any affirmative defense of adverse

possession and easement by prescription5 was only available to her through

the decedent. Thus, her interest in the property was not essential to a claim

of whether the decedent could keep the deck because she had acquired title

to a portion of Appellee’s property by either adverse possession or easement

by prescription, as the trial court was able to resolve the matter based upon

the factual issues of the age of the deck and Appellee’s lack of hostility

toward it. See Mechancisburg Area School Dist. v. Kline, 431 A.2d 953,

957 (Pa. 1981) (defining unnamed party’s rights and interests as “essential,”

in pertinent part, where “the court cannot proceed to a final decision of the

cause, until they are parties.”) (citation omitted).

       Moreover, Appellant has also not demonstrated that justice could not

be afforded without violating her due process rights.            Here, Appellant

acknowledges that her interests were identical to those of the decedent.

(See Appellant’s Brief, at 16). Appellant admits that she acted at trial as the

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5
  While the decedent’s counsel claimed at trial to be proceeding also on a
theory of easement by necessity, he admitted that this theory was not
contained in the pleadings. (See N.T. Trial, 11/26/14, at 4-5, 30).



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decedent’s attorney in fact and only witness. (See id. at 14). Despite this,

Appellant baldly alleges that somehow her rights to be “informed of the

nature of the proceeding, to have an opportunity to hire counsel, to file

pleadings, to assert legal defenses, to call witnesses[,] and to participate in

proceedings as a party in her own right” were violated.       (Id. at 17).   We

disagree.

      At the time decedent filed the complaint, Appellant was a JTWROS.

She admitted this at trial. (See N.T. Trial, 11/26/14, at 14). Yet she made

no assertion either before or at trial that the proceeding was violating her

due process rights, waiting nearly one year after the entry of the trial court’s

decision. She attempts to excuse this in her brief by claiming she had “no

title or interest” in the subject of the original pleadings, namely the delivery

space and the carport. (Appellant’s Brief, at 17). Even assuming the truth

of Appellant’s statement, the parties settled these issues well before trial,

leaving the deck issue as the sole remaining unresolved problem, and

Appellant provides no real explanation for her failure to assert her rights at

trial. (See Order, 8/13/14, at 1-2; N.T. Trial, 11/26/14, at 2-4). Moreover,

her bald claim of a due process violation is utterly inadequate. As discussed

above, Appellant’s interests in this matter were identical to the decedent’s,

and her claims of adverse possession and easement by prescription were

derived from the decedent’s claim. Appellant was present at trial, consulted

with counsel, and testified. She has not pointed to any pleadings she wished


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to file, specified any defenses she was prevented from asserting, or named

any witnesses she was unable to call. (See Appellant’s Brief, at 17). Thus,

she has not shown that the failure to name her violated her due process

rights.

       For the reasons discussed above, we find that Appellant has not

demonstrated that she was an indispensable party.6             See DeCoatsworth,

supra at 797-98 (finding estranged wife was not indispensable party where

record did not show her rights were essential to merits of claim and her due

process rights were not jeopardized).              Therefore, the trial court did not

abuse its discretion or commit an error of law in denying Appellant’s petition

to strike. See Northern Forests, supra at 28-29.

       Order affirmed.




____________________________________________


6
   We find Appellant’s reliance on this Court’s decisions in Enright v.
Kirkendall, 819 A.2d 555 (Pa. Super. 2003) and Moorehead v. Lopatin,
445 A.2d 1308 (Pa. Super. 1982) to be misplaced. Both involve tort claims
against landowners where the landowner raised the affirmative defense of
failure to name an indispensable party in preliminary objections, the
plaintiffs never sought to amend the pleadings to resolve the problem, and
consequently the trial court granted summary judgment on this basis. See
Enright, supra at 556-57; Moorehead, supra at 1309-10. These cases
are so factually and procedurally dissimilar to the instant matter as to be of
no assistance.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2017




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