IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Snow Shoe Township, a :
Pennsylvania Municipal Corporation :
:
v. : No. 1209 C.D. 2016
: Submitted: January 13, 2017
Boggs Township, a Pennsylvania :
Municipal Corporation, :
:
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVIT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 1, 2017
Before this Court is the appeal of Boggs Township, a Pennsylvania
Municipal Corporation (Boggs Township), from the June 23, 2016 order of the
Court of Common Pleas of Centre County (Trial Court) overruling the exceptions
filed by Boggs Township to the March 15, 2016 Report of the Board of Boundary
Commissioners (Board), which followed the Petition filed on September 11, 2013
by Snow Shoe Township, a Pennsylvania Municipal Corporation (Snow Shoe
Township), to ascertain the boundary line between Boggs Township and Snow
Shoe Township. For the following reasons, we affirm.
Boggs Township and Snow Shoe Township are second class
townships located in Centre County, Pennsylvania. The Second Class Township
Code1 (Code), 53 P.S. §§ 65101-68701, provides for the ascertainment of disputed
1
Act of May 1, 1933, P.L. 103, reenacted and amended by the Act of July 10, 1947, as
amended, 53 P.S. §§ 65101-68701.
boundary lines by petition to the court of common pleas. Section 302 of the Code,
53 P.S. § 65302. Once a petition has been filed, the court of common pleas
[S]hall appoint three impartial citizens as commissioners,
one of whom shall be a registered surveyor or engineer,
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 or 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.
Section 303 of the Code, 53 P.S. § 65303. Pursuant to the statutory authority
provided by the Code, the Trial Court appointed the Board on October 31, 2013.
Following discovery, Boggs Township filed a motion to establish the boundary
line between the two Townships along the southern branch of Beech Creek. On
June 25, 2014, the Trial Court held a conference with counsel for both Townships
and issued an order memorializing an agreement between the Townships that the
Board shall determine the boundary line, that thereafter either Township may file
objections if it takes issue with the Board’s determination, and that the motion filed
by Boggs Township and the reply and new matter filed by Snow Shoe Township
would be held in abeyance pending the outcome of the Board’s determination.
Pursuant to the course of action set forth in the Trial Court’s order, the
Board held its first hearing on February 23, 2015. On October 15, 2015, the Board
held a second hearing to allow for testimony and evidence to be submitted
2
regarding the generation of a set of three (3) geographic coordinates using global
positioning survey (GPS) equipment in order to establish the geolocation of the
boundary line and to permit the Board to view the geographic coordinates using a
computer program known colloquially as “Google Earth,” that maps and represents
the earth based upon satellite imagery, aerial photography, terrain elevation data,
and data gathered from geographic information systems.
During the October 15, 2015 hearing, Mark Saville of Sweetland
Engineering and Associates, Inc. (Sweetland Engineering), which had been served
with a subpoena during discovery, testified and a question arose as to whether all
information responsive to the subpoena had been produced by Sweetland
Engineering. On October 20, 2015, Boggs Township filed a motion to compel
Sweetland Engineering to comply with the earlier issued subpoena and on October
30, 2015, Sweetland Engineering produced to Boggs Township additional
information responsive to the subpoena. On November 5, 2015, arguing that the
Board had been denied the opportunity to take evidence regarding the additional
information within Sweetland Engineering’s possession, Boggs Township filed a
motion to appoint a replacement Board. On December 11, 2015, the Trial Court
issued an opinion and order denying the motion. In its opinion, the Trial Court
concluded the motion was premature and lacked support in the Code, which
unambiguously establishes the exclusive procedure for challenging a report issued
by the Board.
On March 15, 2016, the Board filed its report. The report relies upon
a 1992 surveyor’s report prepared by Sweetland Engineering for its
recommendation of a boundary line, as supplemented by a representation of the
correct GPS coordinates along the boundary line between the two Townships, and
3
the report discusses the proceedings before the Board. On March 22, 2016, the
Trial Court confirmed the Board’s report nisi. Thereafter, on April 23, 2016,
Boggs Township filed exceptions to the Board’s report.
The Trial Court held a hearing to address Boggs Township’s
exceptions on June 2, 2016. On June 23, 2016, the Trial Court issued an order and
opinion overruling the exceptions filed by Boggs Township, which Boggs
Township has appealed to this Court for review. This Court issued a briefing
schedule on September 15, 2016, with which both Townships complied, and this
matter was submitted on brief for disposition of the issues raised on appeal by
Boggs Township on January 10, 2017. Subsequent to this Court’s order that the
instant appeal be submitted on briefs for disposition, our Supreme Court issued a
decision in Adams Township v. Richland Township, 154 A.3d 250 (Pa. 2017),
which addresses use of the doctrine of acquiescence in the resolution of a dispute
over uncertain boundaries and holds that the doctrine was properly applied by the
board of commissioners because the board was unable to ascertain the original
location of the boundary in dispute. Prior to reaching its holding in Adams
Township, the Court engaged in an extensive review of the constitutional, statutory
and common law authority out of which the procedure for resolving a true
boundary dispute developed in the Commonwealth.
Of particular significance to the matter before us is the Court’s
discussion in Adams Township of the appropriate standard of review and the role of
the board, the trial court, and an appellate court reviewing a boundary report issued
by the board:
Because resolution of a municipal boundary dispute
requires commissioners to determine the legally correct
4
boundary, those commissioners are not restricted to
considering only the lines proposed by an interested
party, and there is no burden of proof to be allocated.
When a trial court appoints a board of commissioners to
determine the location of a municipal boundary, the
board serves as the fact-finder and possesses the
exclusive prerogative to determine the weight of the
evidence presented. The board’s determination has the
force and effect of a jury verdict and, therefore, when
there is legally competent testimony to support the order,
it will not be disturbed by a reviewing court. Section 303
of the [Code] directs that, when a board files its report
and recommendation with the appointing court, “it shall
be confirmed nisi.” [footnote omitted] 53 P.S. § 65303.
A reviewing court may not disturb the board’s
determination unless the board committed an error of law
or its conclusion was not supported by competent
evidence.
Id. at 258-259 (internal citations omitted). The Court stressed that “[a]s the fact-
finder, it is the board’s prerogative to weigh the evidence, to make credibility
determinations, and to decide whether the evidence is sufficient to support a
conclusion that the true boundary lies in a particular place, or whether, instead, the
location of a disputed boundary remains uncertain.” Id. at 265. Furthermore, the
Court cautioned that while a board’s statutory duty is discharged where it is able to
determine from the evidence the precise location of the boundary, “that duty does
not require the board to resort to speculation or conjecture,” and instead, the board
may consider whether a township’s long acquiescence to a boundary line, such as
for purposes of taxing or for the provision of services, supports the adoption of a
particular boundary line. Id.
The Court’s discussion in Adams Township of the board’s role as the
fact-finder in a boundary dispute explicitly rejected this Court’s holding below on
5
the basis that this Court invaded the board’s exclusive province as the finder of fact
by commanding that the record be reopened for the provision of additional
evidence. Id. at 266. Instead, the Court concluded that “if a [board] believes that
the provision of additional evidence will aid in its determination, it may direct the
parties to provide such evidence, as the board did in [In re Petition of Viola, 838
A.2d 21, 24 (Pa. Cmwlth. 2003)],” where the decision to reopen the record was
made by the board and not a reviewing court. Adams Township, 154 A.3d at 266.
The Court again rooted its conclusion regarding the authority of the board in a
boundary dispute to the board’s ultimate determination having “the force and effect
of a jury verdict.” Id. (citation omitted).
Before this Court, Boggs Township raises four issues that question
whether the roles played by the Trial Court and the Board in resolving the
boundary dispute between the two townships led to errors of law. First, Boggs
Township argues that the Trial Court committed an error of law by failing to give
the Board sufficient direction as to what the boundary was. Second, Boggs
Township argues that the Trial Court committed an error of law by not requiring
the Board to issue a more comprehensive report of its findings and to allow a
description of the boundary line that did not include metes and bounds. Third,
Boggs Township argues that the Trial Court erred by not requiring the Board to
conduct an in person view of a portion of the boundary line and to rely instead on
aerial photography. Lastly, Boggs Township argues that the Trial Court committed
an error of law by either not appointing a new board or requiring the Board to hold
additional hearings when evidence responsive to a subpoena issued during
discovery, which was not produced, came to light following testimony at the
October 15, 2015 hearing.
6
Boggs Township’s first argument rests upon the distinction between
the role of the Board as fact-finder and the Trial Court’s plenary standard of review
over issues of law. Boggs Township contends that it is the duty of the Trial Court
to instruct the Board as to what the original court-approved boundary was based on
official records so that the Board may then carry out its proper function of
physically locating where the boundary line is.
In support of this argument, Boggs Township relies upon Miles Land
Co. v. Hudson Coal Co., 91 A. 1061 (Pa. 1914), an action in ejectment where the
defendant sought judgment notwithstanding the verdict. Miles Land centers upon a
dispute over whether the courses and distances given in the surveys of two grants
of adjoining tracts of land should control or whether the Lackawanna River, a
natural monument called as the western boundary in the survey, was
determinative.2 Our Supreme Court affirmed per curiam the grant of judgment
2
Miles Land sets forth several rules of construction regarding boundary disputes that are helpful
in understanding the issues presented in the instant matter. First,
where land is described by courses and distances, and also by calls
for adjoiners, the latter, where there is a discrepancy, invariably
govern; and it is as applicable to conveyances as it is to official
surveys. By reason of imperfection of instruments, as well as
inequalities of surface and carelessness of assistants, extreme
accuracy is not to be attained by the compass and chain; while, on
the other hand, calls for natural objects, or, what is much the same,
known and established lines of contiguous tracts, admit of perfect
certainty. When a vendor, therefore, conveys by established
landmarks, the subject of the grant will neither overrun nor fall
short of them. They form the true boundary, and the courses and
distances serve but to point towards the place.
91 A. at 1062 (internal citations omitted). Second,
[t]hat lines actually marked on the ground constitute the survey of
a land warrant, and control the surveyor’s return, even where that
calls for a natural or other fixed boundary, and that where lines are
not actually run and marked on the ground the survey is to be
7
notwithstanding the verdict in Miles Land, explicitly relying on the trial court’s
conclusion that:
Whether or not the Lackawanna river was a call, and the
western boundary of lots numbers 3, 4, 5, and 6, is a
question of law for the court, and not of fact for the
determination of the jury. What are boundaries is a
matter of law for the court; where they are, a matter of
fact for the determination of the jury under proper
instruction from the court. The meaning of a deed—
that is, what it covers—is a question of law for the
court; what the boundaries of a given piece of land
are is a question of construction for the court also;
where they are is a question of fact for the jury.
Where the boundary lines of a grant are fixed by the
grant itself, the question as to what these lines are is
purely one of law.
91 A. at 1064 (emphasis added, internal citations omitted); see also Norwich v.
Beaver, 474 A.2d 329, 330 (Pa. Super. 1984) (“This court has also repeatedly said
‘[t]he question of what is a boundary line is a matter of law, but where a boundary
line, or corner, is actually located is a question for the trier of fact.’” (internal
citations omitted)). Our Supreme Court held in Miles Land that the trial court
properly entered judgment notwithstanding the verdict because the Lackawanna
River was used as a call in the survey, the rules of construction mandate that calls
are controlling over descriptions by courses and distances when determining the
carried to its calls of adjoiners, even though it overrun the
distances returned on the survey, are fixed and familiar rules of
property that are not questioned in this case. Generally, a survey is
to be carried to its calls, unless there are actual lines on the ground
excluding them.
Id. at 1063 (internal citations omitted).
8
bounds of a grant to settle a dispute over a boundary line, and questions regarding
the meaning and intent of a deed are for the court rather than the jury.
However, Miles Land does not support the conclusion that the Trial
Court committed an error of law in the instant matter. Unlike in Miles Land, the
dispute here did not center upon the meaning and intent found within the four
corners of an official document. Instead, one of the difficulties the Board was
presented with in discharging its duty was the absence of official records of the
original boundary between Boggs Township and Snow Shoe Township. As a
result, unlike in Miles Land, the issue is primarily one of fact rather than law.
Support for the conclusion that the Trial Court properly refrained from
addressing factual rather than legal issues can be found in the very argument made
by Boggs Township; although it contends that the Trial Court erred in failing to
give greater direction to the Board, its argument is primarily supported by a
reweighing of the evidence before the Board to persuade this Court that the Board
lacked competent evidence to support its determination. Whether or not the
evidence is sufficient to support the Board’s ultimate boundary determination is a
distinct question from whether the Board and the Trial Court performed their
proper functions.
The lynchpin of Boggs Township’s argument is that the Board
erroneously relied upon and adopted a surveyor’s report that had been filed with
the Trial Court as a part of a boundary dispute in 1992 because this report
improperly relied upon field notes from an 1856 survey, which contains
discrepancies, and for which records of a court commission were not found. When
presented with this issue below, the Trial Court concluded that:
9
Boundary commissions traditionally rely on the previous
and historical work from surveyors reports to complete
their work. Moreover, the Court believes the [Board]
would have wrestled with and resolved any alleged
discrepancies in coming to its ultimate conclusion. In
addition to the statutory authority, a reason courts appoint
boundary commissions to ascertain township lines is
because the members are in a much better position than a
court to evaluate the technical evidence and determine
the appropriate location of a line. As such, the Court
cannot conclude that it was error for the [Board] to use
and rely upon historical survey notes, and to accept the
1992 Report.
(Trial Court Op. at 3.) We agree. The Trial Court did not err in concluding that
the issue was one of fact and not law, and therefore properly within the province of
the Board.
Boggs Township’s next argument is essentially that the report issued
by the Board was insufficient—Boggs Township asserts that the report did not
contain delineated findings of fact, did not make explicit credibility
determinations, and did not discuss the Board’s resolution of discrepancies in the
record. Separate but related to this issue is Boggs Township’s contention that the
Board erred by using aerial imagery and GPS technology to locate the boundary
line.
The Code provides the exclusive remedy for resolving a boundary
dispute. Where a boundary between townships is disputed, there is no burden of
proof to be allocated. Moon Township v. Findlay Township, 553 A.2d 500, 504
(Pa. Cmwlth. 1989). A reviewing court may only disturb a boundary
commission’s determination where it is not supported by competent evidence;
inconsistencies in the evidence go to the weight of the evidence, not its
10
competence, and do not compel a reviewing court to grant relief any more than
inconsistent evidence requires entry of a judgment notwithstanding a jury’s verdict.
In re Petition of Viola, 838 A.2d 21, 27 (Pa. Cmwlth. 2003). The Code specifies
that a boundary commission shall consist of three impartial citizens, one of whom
shall be a registered surveyor or engineer. Section 303 of the Code, 53 P.S. §
65303. The Code requires that the boundary commission hold a hearing, view the
lines or boundaries, and that if the lines or boundaries cannot be fully designated
by natural lines or boundaries, the Code requires that the boundary commission
shall make a plot or draft of the lines and boundaries proposed to be established.
Id. Finally, the Code requires that the boundary commission make a report and
recommendation to the court. Id.
The report and recommendation made to the Trial Court by the Board
states that the Board:
Hereby adopt as their report the Surveyor’s Report dated
April 29, 1992, prepared by Sweetland Engineering and
Associates, Inc. which was previously adopted in the
matter filed to No. 91-239 in this Honorable Court, which
Surveyor’s Report is attached hereto as Exhibit “A”. The
information in this Surveyor’s Report is supplemented by
the Exhibit filed to the above captioned term and number
as Petitioner’s Supplemental Exhibit No. 1 which is a
representation of the correct GPS coordinates for points
on the boundary line between Snow Shoe and Boggs
Township in PA North Zone NAD 83 US Feet Datum,
which Exhibit is also attached hereto as Exhibit “B”.
Those Exhibits, together with the Outline of Proceedings
filed herewith shall constitute the Report of the
undersigned [Board].
11
(Board Report at 1, Reproduced Record (R.R.) at 670a.) The Outline of
Proceedings referred to by the Board details the filings made by the two Townships
and the evidence, both in the form of testimony and documents, submitted into the
record for review by the Board. At the close of the report, the Board states:
Following the first hearing the Board had made a
preliminary determination that no evidence had been
presented to upset the decision of the previous Board in
adopting the April 29, 1992 Surveyor’s Report of
Sweetland Engineering; however the surveyor on the
current Board had recommended that at least 3 points on
the boundary line established by the prior Board, and
adopted by the current Board, be documented by GPS
coordinates. The October 15, 2015 hearing was held for
that limited purpose, and to view those coordinates by
means of Google Earth satellite view. The current Board
had concluded that it was not feasible and would serve no
useful purpose to physically go to the points along the
boundary line since they were located in very remote
locations. Accordingly this Board treated the view
through Google Earth satellite as their [sic] view of the
boundaries as required by [Section 303 of the Code], 53
P.S. § 65303.
Should this report be confirmed by this Honorable Court
it is recommended that the three GPS coordinates set
forth on Exhibit “B” be monumented at their ground
location using permanent monuments by Snow Shoe
Township.
(Board Report at 29, R.R. at 699a.)
We are unpersuaded by Boggs Township’s argument that the Board’s
report is insufficient. There is nothing in the Code that requires the Board to
delineate findings of fact and conclusions of law. The standard of review for a
12
reviewing court questions whether a boundary commission’s ultimate
determination is supported by competent evidence; therefore, beyond a
requirement that a boundary commission articulate its ultimate determination, the
standard of review necessitates that the boundary commission does so in a manner
that allows for review of the record by a court for competent evidence.
In the instant matter, the Board’s report reviews the evidence
submitted into the record and identifies the record evidence it found persuasive.
Whether or not a different determination could have been made based on the
record before the Board is immaterial. Rather, the sole question for this Court is
whether the evidence the Board did rely upon is competent. While Boggs
Township has identified inconsistencies in the 1992 Surveyor’s Report prepared by
Sweetland Engineering that the Board relied upon in making its recommendation,
such inconsistencies go to the weight of the evidence, not its competency. The
Board’s report was not legally insufficient because it lacked findings of fact,
conclusions of law, and a discussion of how it resolved inconsistent evidence.
Rather, the Board’s report identified the evidence of record and provided the trial
court with its ultimate determination of the boundary line, which was sufficient to
satisfy the Board’s duty under the Code.
Similarly, the Board did not err by using aerial imagery and GPS
technology to locate the boundary line. The Code does not specify how a view
must be conducted. While the understanding of what is denoted by the term
“view” and the means by which a view is conducted is informed by the past, the
text of the statute does not freeze the term or the means in past practices. As the
Trial Court stated, the evidence showed that part of the line lies in rough and rocky
terrain and that:
13
To require that each Commissioner personally travel into
terrain comprised of cliffs, boulders, thickets of
impenetrable rhododendron, and a menagerie of wild
critters containing fangs, claws, and other dangerous and
offensive weapons is unjust and unreasonable. In this
day and age, to require that a Commissioner view a
certain rock by standing upon it, rather than by viewing it
from the air, will not only preclude the Court from
selecting any but the most able-bodied and youthful
applicants, but also might make recruitment of willing
commissioners impossible.
(Trial Court Op. at 3 n.2.) The inability to conduct a view in difficult terrain is
perhaps why some boundary lines remain unclear today. Regardless, unless the
method used to conduct a view is shown to be so unreliable that it is established
that the statutory duty of the boundary commission to conduct a view has not been
discharged then the question of how the view was conducted is an evidentiary
rather than a legal question. Here, Boggs Township has not shown that the method
used to conduct the view was so unreliable as to fail to constitute a view.
Accordingly, the use of aerial mapping and other current software to conduct a
view was not error.
Finally, Boggs Township argues that the Trial Court should have
appointed a new boundary commission or required the Board to hold additional
hearings once testimony revealed that Sweetland Engineering had failed to produce
all of the information within its possession that was responsive to Boggs
Township’s subpoena. This argument is without merit. The Board’s report clearly
identifies this alleged new evidence, along with the filings seeking a new boundary
commission, as part of the record before the Board when it made its determination.
Once the information Sweetland Engineering had failed to produce came to light, it
14
was within the Board’s discretion to hold or forego a new hearing. The Board
declined to hold an additional hearing. There is absolutely no legal basis upon
which to conclude the Board erred in its exercise of discretion or the Trial Court
erred by concluding that appointment of a new boundary commission was not
warranted.
Accordingly, we hold that the Trial Court did not err in overruling the
exceptions filed by Boggs Township.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Snow Shoe Township, a :
Pennsylvania Municipal Corporation :
:
v. : No. 1209 C.D. 2016
:
Boggs Township, a Pennsylvania :
Municipal Corporation, :
:
Appellant :
ORDER
AND NOW, this 1st day of August, 2017, the order of the Court of
Common Pleas of Centre County in the above-captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge