Keahey, S. v. Nelson, E.

J-S12024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHIRLEY J. KEAHEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

EDWARD NELSON, MARY LOU NELSON
AND ERIC S. WARD, LINDA N. WARD,

Appellees No. 1584 EDA 2015

Appeal from the Order Entered May 1, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2013-08089-RC

BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 22, 2016

Appellant, Shirley J. Keahey, appeals from the order entered on May 1,

2015, granting a motion for summary judgment filed by Appellees, Edward

Nelson, Mary Lou Nelson, Eric S. Ward, and Linda N. Ward (hereinafter

collectively referred to as Defendants). We affirm.

The trial court summarized the facts of this case as follows:

In or about 1962[,] Edwin and Ann Hixon ([the Hixons)]
subdivided certain land in London Britain Township. The
Hixons retained two lots, identified as Tax Parcel 73-3-6 and
73-3-6.6, which are referenced hereinafter as Parcel A and
Parcel B, respectively. Parcel A is the larger of the lots and
is a flag [shaped] lot, with the pole portion of the lot giving
access to North Creek Road. Parcel B lies to the east of
Parcel A and also fronts North Creek Road.

On October 3, 1962, [Appellant] and her then husband
purchased a landlocked lot from the Hixons, Tax Parcel 73-
1-1, with “the right of ingress and egress over a certain
thirty (30) foot wide right-of-way [].” [Appellant’s] lot

*Retired Senior Judge assigned to the Superior Court.
J-S12024-16

borders and lies north of Lot A. The right-of-way deeded to
[Appellant] begins on Parcel B at North Creek Road, runs
through the pole portion of Parcel A and then along the
western boundary of Parcel A.

Shortly after acquiring her lot, [Appellant] installed a
driveway across the Hixons’ parcels, laying out a portion of
the roadway within the deeded easement and a portion
outside of the deeded easement. The total length of the
deeded easement is approximately 1,050 feet. The installed
driveway is approximately 1,056 feet and, of this,
approximately 475 feet lie within the deeded easement.

The Hixons owned Parcel A and Parcel B until their deaths,
at which time ownership was transferred to their daughter
Anne LaPorte. The deed to Ms. LaPorte is dated May 27,
1988. Ms. LaPorte never resided at the properties and she
and her husband sold both properties to Defendants Eric
and Linda Ward on July 16, 2001. For reasons that were
not explained, the Wards transferred Parcel B to Edward
and Mary Lou Nelson, Ms. Ward’s parents, on January 13,
2009. Thereafter, on February 20, 2009, the Wards
transferred Parcel A to the Nelsons. At some point prior to
July 16, 2012, the Nelsons transferred Parcel A back to the
Wards. The Wards live at the property.

On December 13, 2010[, Appellant] brought an action at
No. 2010-14877 to enjoin Defendants, in particular, the
Wards, from blocking her driveway and to compel
Defendants to share in the cost of maintaining her
driveway. Thereafter, [Appellant] was permitted to file an
[a]mended [c]omplaint and did so on April 17, 2012, adding
a count to quiet title through adverse possession. [The trial
court] found the Wards to be in possession of the disputed
land and directed [Appellant] to pursue ejectment if she
wished to pursue her claim to the property.

[Appellant] commenced this action in ejectment on August
16, 2013, claiming by adverse possession the land over
which her driveway traverses as well as the ground
alongside the driveway. This swath of land encompasses all
of [Parcel] A’s frontage on North Creek Road, plus
approximately 112 feet of [Parcel] B’s frontage, and runs
along the length of [Parcel] A’s western boundary, ending at

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[Appellant’s] property line. At its widest at North Creek
Road, the land claimed by [Appellant] is 162 feet wide and
then narrows at one point to 50 feet before opening up to
60 feet along the approach to [Appellant’s] lot.

[Appellant] assert[ed] that she had established ownership
by adverse possession by 1983, or twenty-one years after
she first entered the disputed property.

* * *

[Following an evidentiary hearing, the trial court, however,]
held that [Appellant] had not established title to the
disputed land.

* * *

[In its subsequent opinion, the trial court noted that there is
a procedural] difficulty in this case. [As previously stated,
Appellant] had earlier, on December 13, 2010, commenced
an action against these Defendants under docket number
2010-14877. That action was brought as a [c]omplaint for
[i]njunctive [r]elief; [Appellant] sought to enjoin
Defendants from blocking access to the disputed driveway.
On April 17, 2012, [Appellant] filed an [a]mended
[c]omplaint adding a count to quiet title through adverse
possession. The case was assigned to Judge Howard F.
Riley, Jr., who conducted a trial on July 16, 2012. Shortly
before his retirement at the end of 2012, Judge Riley issued
an order directing the parties to “review and revise their
pleadings and proceed with the dictates of Siskos v. Britz,
790 A.2d 1000 (Pa. 2002).” The case was reassigned to
[Judge Edward Griffith].

[Judge Griffith] listed the case for a hearing on May 9, 2013
to determine possession of the disputed property at the
time the [c]omplaint was filed as it was not clear that the
proceeding before Judge Riley had explored that issue.
Siskos dictates that “where there is a dispute regarding
possession, the trial court cannot proceed to the merits of
the action without first determining whether the plaintiff is
in possession.” Siskos, 790 A.2d at [] 1007. Counsel
subsequently agreed that [Judge Griffith] should decide

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possession based upon the transcript of the July 18, 2012
[proceeding] before Judge Riley.

Thereafter, on July 17, 2013, [Judge Griffith] entered an
order finding that Defendants Eric S. and Linda N. Ward
were in possession of the property at the time the action
was commenced and directing [Appellant] to “file an
[a]ction in [e]jectment within thirty days of the day of [the]
[o]rder under [docket number 2010-14877].” [Sutton v.
Miller, 592 A.2d 83, 89 (Pa. Super. 1991), instructs that
when plaintiffs bring an action to quiet title and are
determined to be out of possession of the disputed
property, the proper course of action is to dismiss the claim
to quiet title with leave to amend to bring a claim in
ejectment.] Despite that direction, [Appellant] commenced
an action in ejectment under a separate docket, the within
case, No. 2013-08089. [Appellant] now contests the
determination reached under [docket number 2010-14877],
that the Wards had actual possession of the disputed
property, in this appeal. [Appellant] also contests [the trial
court’s] determination, under [docket number 2010-14877],
that she was required to file an action in ejectment. Having
failed to timely appeal the July 17, 2013 [o]rder, entered in
[docket number 2010-14877], [the trial court] respectfully
submit[s] that [Appellant] has not preserved these issues
for appeal.

Trial Court Opinion, 6/30/2015, at 3-7 (record citations omitted) (footnote

incorporated). On May 1, 2015, the trial court granted Defendants’ motion

for summary judgment. This timely appeal resulted.1

On appeal, Appellant presents the following issues for our review:
____________________________________________

1
Appellant filed a notice of appeal on May 20, 2015. On June 8, 2015, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
June 26, 2015. On June 30, 2015, the trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a), largely relying upon a lengthy footnote set forth in an
order dated October 6, 2014 that denied Appellant’s motion for summary
judgment.

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1. Whether the trial court erred in granting [D]efendants’
motion for summary judgment?

2. Whether the trial court erred in finding that [Appellant’s]
use of the disputed property was permissive.

3. Whether the trial court erred in finding that [Appellant]
failed to clearly delineate the boundaries of the land she
claims.

4. Whether the trial court erred in failing to find that
[Appellant] was in actual possession of the disputed
property at the time her complaint was filed.

5. Whether the trial court erred in denying [Appellant’s]
motion for summary judgment.

Appellant’s Brief at 4 (superfluous capitalization omitted).

We begin with our standard of review:

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

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

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a verdict in favor of the non-moving party, then summary
judgment should be denied.

Majorsky v. Douglas, 58 A.3d 1250, 1257 (Pa. Super. 2012).

Initially, we note that Appellant has waived her fourth issue as

presented, because, as recited above, Appellant failed to challenge the trial

court’s July 17, 2012 order determining the current possession of the

disputed property. “Because the timeliness of an appeal implicates our

jurisdiction, we cannot address the merits of an appeal or cross-appeal

before determining whether it was timely.” Krankowski v. O'Neil, 928

A.2d 284, 285 (Pa. Super. 2007)(citation omitted). Notice of appeal “shall

be filed within 30 days after the entry of the order from which the appeal is

taken.” Pa.R.A.P. 903(a). Here, Appellant filed a notice of appeal on May

20, 2015, appealing “from the [o]rder entered in this matter on the 1st day

of May, 2015.” Notice of Appeal, 5/20/2015, at 1. In her appellate brief,

Appellant concedes that her appeal lies from the trial court’s order granting

the Defendants’ motion for summary judgment. Appellant’s Brief at 6.

Appellant, however, did not file a timely notice of appeal to the July

17, 2012 order determining possession of the disputed property and we are

constrained to find Appellant’s fourth issue as presented waived.2 The trial

____________________________________________

2
We note that Appellant does not challenge the trial court’s determination
to proceed under Siskos v. Britz, 790 A.2d 1000 (Pa. 2002) and Sutton v.
Miller, 592 A.2d 83, 89 (Pa. Super. 1991). She does not address the fact
that she proceeded under two different docket numbers and failed to file a
notice of appeal following the trial court’s possession decision; instead, she
(Footnote Continued Next Page)

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court action was intended to resolve the question of possession of the

disputed property since the Defendants’ ownership (i.e., 1988 – present).

The trial court ruled in the Defendants’ favor and Appellant did not appeal,

and, therefore, the trial court’s ruling that Defendants were in possession of

the disputed land stands. In turn, as discussed below, “[a]ctual possession

is necessary to a finding of adverse possession[.]” Recreation Land Corp.

v. Hartzfeld, 947 A.2d 771, 775, (Pa. Super. 2008). The trial court’s

determination that Defendants are in actual possession of the disputed land

defeats Appellant’s claim of adverse possession from 1988 until the present.

Accordingly, we confine our review of Appellant’s adverse possession claim

to the period corresponding to the Hixons’ ownership of the land from 1962

until 1988.

We will address all of Appellant’s issues together because they are

inter-related. Appellant contends that she has set forth a prima facie case

for adverse possession, that there are no genuine issues of material fact,

and it is clear that she was entitled to a judgment as a matter of law. She

contends that she has proven actual, continuous, exclusive, visible,

notorious, and hostile possession of the disputed property for over 21 years

as required to prove her adverse possession claim. Appellant’s Brief at 13-

15. With regard to the Hixons, Appellant avers

_______________________
(Footnote Continued)

argues the merits of the issue despite her failure to preserve it for appellate
review.

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[she] purchased [her] property on October 3, 1962 from
Defendants’ predecessor in title, Edwin and Anne Hixon.
The conveyance included the right of ingress and egress
over a 30 foot wide right-of-way described in the deed. At
the time [Appellant] purchased her property from the
Hixons, no driveway existed to connect her property with
North Creek Road.

In 1962, at her own expense, [Appellant] constructed a
driveway in its current location. The location of the
driveway deviates significantly from the easement granted
in [Appellant’s] deed from the Hixons. Specifically, the
driveway leaves the right-of-way area approximately
two-thirds of the way from the road to [Appellant’s]
property and continues entirely separate from the right-of-
way for approximately one-third of its length.

* * *

[Appellant] did not ask the permission of the Hixons to
locate the driveway in that location. The Hixons never used
the driveway or the adjacent area. Beginning in 1962
[Appellant] began to landscape and maintain the area
adjacent to, and on either side of, the gravel driveway
which she had constructed. [Appellant] planted trees,
flowers and shrubbery, weeded and cleaned out dead
growth and fallen trees, and continuously fertilized and
watered the area. She fenced new seedlings to protect
them from deer, landscaped the surrounding area to
prevent mud from flowing onto the driveway, and continued
to maintain, repair and beautify the area adjacent to the
driveway from 1962 to the present.

Id. at 7-8 (record citations omitted). She claims that the trial court erred in

determining that Appellant’s use of the disputed property was permissive

rather than hostile, because she did not ask permission to erect the

driveway outside the established easement or to landscape and maintain the

area on either side. Id. at 17. She further argues that the trial court erred

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in finding that she did not clearly delineate the boundaries of the land to

which she laid claim, because she was able to identify it specifically in a plot

plan. Id. at 21.

This Court recently stated:

Adverse possession is an extraordinary doctrine which
permits one to achieve ownership of another's property by
operation of law. Accordingly, the grant of this
extraordinary privilege should be based upon clear
evidence. One who claims title by adverse possession must
prove actual, continuous, exclusive, visible, notorious,
distinct and hostile possession of the land for twenty-one
years. Each of these elements must exist; otherwise, the
possession will not confer title.

Pennsylvania Services Corp. v. Texas Eastern Transmission, LP, 98

A.3d 624, 634 (Pa. Super. 2014) (internal citations, quotations and brackets

omitted). “[O]ur [S]upreme [C]ourt has stated that hostility may be

implied where all of the remaining elements of adverse possession have

been established and where there is no evidence tending to prove or

disprove hostility.” Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super.

2001) (emphasis added), citing Myers v. Beam, 713 A.2d 61, 62 (Pa.

1998).

Moreover, our Supreme Court has concluded:

[T]he adverse claimant must use the land exclusively for
himself.... An adverse possessor must intend to hold the
land for himself, and that intention must be made manifest
by his act.... He must keep his flag flying and present a
hostile front to all adverse pretensions. Broadly speaking,
actual possession of land is dominion over the land; it is not
equivalent to occupancy.

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Where the possession, at its inception, is permissive,
... [adverse possession] will not begin to run against
the real owner until there has been some subsequent
action of disseizing[3] or open disavowal of the true
owner's title[.]

Flannery, 786 A.2d at 259–260 (citations omitted) (emphasis added).

Here, the trial court determined,

[Appellant] cannot prove ownership of the disputed land by
the mere passage of time because [her] occupation began as
a permissive use. [Appellant] has not identified an act of
disseisin or open disavowal of the Hixons’ title, or the title of
any subsequent owner of the disputed land, and [the trial
c]ourt could not locate any in the submitted record.

Trial Court Opinion, 6/30/2015, at 2.

The trial court further stated:

[Appellant] never addresses the fact that she first entered
the disputed land by permission of the Hixons. While
[Appellant] may not have occupied precisely the easement
deeded to her, she was nonetheless on the Hixons’ property
with permission and she is attempting to gain ownership of
475 feet [of property] lying within the deeded easement.
[Appellant] has demonstrated neither an act of disseisin nor
an open disavowal [of] the titled owner’s title.

Id. at 6.

Finally, the trial court noted:

Further undermining [Appellant’s] claim is her inability to
clearly delineate the boundaries of the land she claims.
[She] acknowledged that she “arbitrarily” chose to leave
Defendants with ten acres, “to be a little bit fair.” When
____________________________________________

3
“Disseizin” or “disseisin” is defined as “[t]he act of wrongfully depriving
someone of the freehold possession of property; DISPOSSESSION.” BLACK'S
LAW DICTIONARY 506 (8th ed. 2004).

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asked specifically about the boundary line along the North
Creek Road frontage, [Appellant] acknowledged that “there
was not much to maintain out there” and she could not
definitively state where the line should be placed.

Id. (record citations and original brackets omitted).

We agree with the trial court’s assessment. Certainly, the property

contained within the deeded easement is not subject to adverse possession

because Appellant had permission to use that parcel. Moreover, we reject

Appellant’s claim pertaining to the property outside of the easement and

arising from her careless installation of the driveway, as well as the land on

either side of the driveway to which Appellant claims to have maintained. As

the trial court determined, the record confirms that Appellant’s possession of

the disputed land commenced in a permissive manner and there was never

any act amounting to an open disavowal of the Hixons’ title or constituting

overt disseisin of their ownership interest. We find support for this

conclusion in our Court’s decision in Flannery, supra.

In Flannery,

a dispute [arose] between adjacent landowners over a
parcel of land situated in Penn Township, Berks County.
Sometime in 1963, Stump leased and farmed land then
owned by Kathryn Kline. In addition to the land leased to
him, Stump made use of a rectangular piece of property
adjacent to Kline's. In December 1979, Stump purchased
Kline's property. In addition to the land that he purchased
from Kline, Stump continued to farm a portion of the
adjacent land. Sometime in 1986, Flannery purchased
property adjoining Stump's. Included within Flannery's
property is the rectangular parcel of land then being farmed
by Stump. In August 1996, Flannery filed an action in
declaratory judgment seeking a court order declaring him
the legal owner of the disputed parcel and ejecting Stump

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from the same. Stump filed an answer and counterclaim
asserting his right to the property under the doctrine of
adverse possession. After pursuing discovery, which
included the taking of the depositions of both parties,
Flannery filed a motion for summary judgment, which the
trial court denied. The parties entered into a stipulation of
facts and, thereafter, Flannery filed a motion for
reconsideration of summary judgment. Stump filed a
responsive brief and a cross-motion seeking summary
judgment on the basis that he had legal title to the land by
adverse possession. The trial court dismissed Flannery's
motion and entered an order granting summary judgment in
Stump's favor. Flannery then filed [an] appeal.

Flannery, 786 A.2d at 257.

The Flannery Court determined “[t]he evidence showed that Stump

considered the disputed parcel to be part of the land that he farmed with

permission as a tenant farmer” and, subsequently, that “Stump believed

himself to be the legal title owner of the disputed parcel after he made the

purchase from Kline in 1979.” Id. at 260. We ultimately concluded:

[I]t is fair and reasonable to assume that one who buys
land will be careful to insist that the deed description
include all of the land which he believes to be purchasing.
When Stump purchased the land from Kline, he was
charged with knowledge of the metes and bounds of the
land he purchased. When he proceeded, nevertheless, to
use the land of another, he cannot be heard to say that he
did not know the dimensions of the tract which he
purchased.

Even if we were to accept the claim that he used the parcel
under the mistaken belief that it was part of his land,
Stump’s act in exceeding the boundaries of his
purchase could only be seen as a permissive
encroachment used at the sufferance of the true
owner.

Id. (emphasis added; citation omitted).

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While Flannery dealt solely with the purchase of property and the

case sub judice involved a deeded easement, the legal precept is the same.

Here, there is no dispute that the Hixons granted Appellant an easement

with clearly delineated metes and bounds. Although Appellant proceeded to

use additional land for the installation of a driveway and then allegedly

maintained the land on either side, she cannot now claim she did not know

the true dimensions of the easement. Even if Appellant mistakenly used the

land as her own, it was a permissive encroachment upon land owned by the

Hixons. Thus, there was no evidence of the element of hostility, and we

need not imply it, as required to support a prima facie case of adverse

possession arising in the period from 1962 until 1988. Accordingly, the

entry of summary judgment in the Defendants’ favor and the denial of

Appellant’s motion for summary judgment were proper. Finally, because we

conclude that the trial court properly determined Appellant’s claim failed as a

matter of law, we need not address Appellant’s additional contention that

the trial court erred in granting summary judgment for Defendants because

she could not clearly delineate the boundaries of the property she claimed.

Order affirmed.

Strassburger, J. joins this memorandum.

Mundy, J. concurs in result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2016

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