J-A09008-21
2022 PA Super 22
JESSE TURNER AND MARTA M. BAKER IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellees
v.
THE ESTATE OF DAVID BAIRD AND
MARGARET PUSKAR EXECUTOR AND
MARGARET PUSKAR
Appellants No. 599 WDA 2020
Appeal from the Order Entered September 29, 2020
In the Court of Common Pleas of Westmoreland County
Civil Division at No: 2406 of 2017
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED: FEBRUARY 8, 2022
Appellants, The Estate of David Baird and Margaret Puskar, Executor
and Margaret Puskar in her own right, appeal from a September 29, 2020
order. Finding the trial court lacked subject matter jurisdiction over this
action, we vacate.1
The parties to this action own neighboring properties. At issue is a
boundary dispute and the parties’ use of an abandoned roadway that runs
between the parties’ property. We used the term “abandoned” advisedly, as
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* Retired Senior Judge assigned to the Superior Court.
1 We also deny as moot Appellants’ April 16, 2021 motion to continue oral
argument.
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the trial court found that the roadway was abandoned—but never formally
vacated—by the Borough of South Greensburg (the “Borough”). Non-Jury
Trial Opinion and Order of Court, 6/5/19, at 8-9. Because the Borough has
not formally vacated the roadway, and because use of the roadway is in
dispute in this matter, the Borough is an interested and indispensable party
to this action. As such, we are constrained to vacate the trial court’ order for
lack of subject matter jurisdiction.
The trial court’s opinion sets forth the pertinent facts:
[Appellees] purchased property located at 2302 Skidmore
Road, Greensburg, Pennsylvania, 15601 (“Plaintiffs” Property”) on
June 30, 2006, for the purpose of using the same as their
residence. [Appellant] David Baird purchased property located at
2301 Rear Pope Street, Greensburg, Pennsylvania 15601
(“Defendant’s Property”) on July 14, 2014. He presently resides
on the property with occupant Margaret Puskar. The instant
dispute relates to two separate parcels of land, being a portion of
land deeded to [Appellees] (“Deeded Property”), as well as a
portion of land between the parties’ properties that is not
identified in either deed (“Disputed Property”).
[…]
At trial, [Appellee] Turner testified that [Appellees]
maintained both the Deeded Property and at least the grassy area
of the Disputed Property between approximately 2006 and 2014
without interference, and they have always believed that this area
belong [sic] to them and treated it as such. [Appellee] Turner
testified that this situation changed in approximately 2015 when
[Appellants] erected a fence on their property and acquired a
German Shepard dog. After an altercation between the parties in
spring of 2016 involving the dog, [Appellants] began entering onto
and/or altering the Deeded Property and the Disputed Property.
Examples of [Appellants’] behaviors with regard to the Deeded
Property and the grassy area of the Disputed Property include
mowing the grass, poisoning and picking out the grass in order to
extend the gravel area of the drive, walking the dog on the
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property, and an attempt to install a fence on the property.
[Appellee] Turner also testified to repeated incidences of
harassing conduct on the part of [Appellants], including shining
floodlights into the window of the [Appellees’] daughter’s bedroom
window and repeated attempts by [Appellant] Puskar to provoke
physical confrontation with [Appellees].
[Appellant] Baird also testified at time of trial, stating that
he had lived on the Defendants’ Property intermittently for his
entire life, as it had previously belonged to his mother, since
sometime in the 1940s. [Appellant] Baird disputed [Appellee]
Turner’s testimony as to care of the grassy area of the Disputed
Property, stating that his family has maintained and occupied the
property for many years, doing tasks including mowing the grass.
[Appellant] Baird denied enlarging the gravel area on the side of
the Disputed Property closest to Plaintiffs’ Property. He
acknowledged that guests and members of both households have
used the gravel drive for ingress, egress and parking over the
course of many years, including during the period of residence of
the Beveridges, previous owners of the Plaintiffs’ Property from
approximately 1973 to 2006. [Appellant] Baird testified to
pleading guilty in approximately 2014 or 2015 to a charge of
unsworn falsification to authorities.
[…]
Both parties’ surveys reference a forty-foot-wide roadway
between the properties. Mr. [Arthur] Kromel [Appellees’
surveyor] testified that he was unsure as to where he gathered
the information to place the roadway, and he does not know if
said roadway actually existed. Mr. [Donald B.] Harper [Appellants’
surveyor] testified that he did not rely on any recorded
documentary evidence in placing the roadway on his survey, but
instead created the roadway by using the deeds to survey and plot
the property lines which turned out to be ‘somewhat parallel.’ He
then ‘adjusted the Baird deed’ to make the lines parallel and to
place exactly forty feet between the lines.
As to documentary evidence regarding the existence of a
road, Eric Wanson, Penndot’s chief of surveys, testified at trial. A
Pennsylvania legislative act from 1933 shows the adoption of
various routes including a local route 64127 which is now Route
819. A Penndot construction and condemnation of right-of-way
plan from 1936 discusses rerouting the road near the parties’
properties. The road in its present form as Route 819 began
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construction in 1937 and was completed in 1938. A letter dated
October 31, 1938 to South Greensburg Borough Council
Secretary, stating that the Commonwealth was ceasing to
maintain the original portion of the road, as it was no longer a part
of the State Highway System [sic].
Further testimony was provided by current part-time
Secretary for the Borough of South Greensburg, Kaitlyn Lewis,
who testified that she had no knowledge or documentation of a
roadway existing and/or being abandoned by the Borough of
South Greensburg between or on the parties’ properties near the
Deeded Property or the Disputed Property, with the exception of
a street light map from 1939 appearing to show a road in the same
area. Testimony was also provided by Eric Glod, department head
of Westmoreland County’s geographic information systems office
of tax mapping. He provided a farm map from 1910 showing a
roadway in the approximate area of the disputed road.
[…]
Looking to the evidence presented by [Appellants] as to the
existence of the disputed road, it certainly appears that a roadway
existed in approximately the disputed area prior to 1933 based on
the 1910 farm map. In 1933 it was formally adopted, and it was
abandoned to the Borough of South Greensburg in 1938. Records
regarding the road are apparently nonexistent from that point
forward, excepting the 1939 South Greensburg Streetlight Map
showing a road in the approximate disputed location.
Taking all of the evidence together, it appears as though a
road existed in the disputed area from at least 1910 through 1939.
At some subsequent point the road was transformed into the
gravel drive that it remains today. While it is certain that a road
did exist and that it was subsequently abandoned, there is
inadequate evidence for this court to determine the actual width
of the prior road. […]
Even if this court were to find convincing evidence as to the
exact width of the abandoned roadway […] [v]acation and
abandonment of public roads are two distinct actions with vacation
having more stringent requirements[.] […] No evidence was
presented to show that the road at issue in this case was formally
vacated as opposed to abandoned[.]
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Non-Jury Trial Opinion and Order of Court, 6/5/19, at 2-6, 8-9 (record
citations omitted).
Appellees filed this action on May 12, 2017 with a complaint alleging
counts for ejectment, quiet title, trespass, and injunctive relief. On September
6, 2017, the trial court overruled Appellants’ preliminary objections. On
August 3, 2017, the trial court entered a preliminary injunction prohibiting,
among other things, Appellants’ erection of a fence on the property in dispute.
The trial court conducted a bench trial on September 24 and 25, 2018. On
June 5, 2019, the trial court issued its findings of fact, conclusions of law, and
an order entering a verdict in Appellees’ favor on one count of ejectment and
one count of trespass, dismissing Appellees’ quiet title action as moot, and
entering a permanent injunction in Appellees’ favor. As to the shared gravel
driveway providing ingress and egress to both parties, the court ordered the
parties to ”equally share use of the existing gravel drive for ingress and egress
onto their respective properties, without interfering with any other party’s use
of said drive. Parties may maintain and occupy the un-deeded grassy areas
abutting their respective properties.” Non-Jury Trial Opinion and Order of
Court, 6/5/19, at 17, ¶ 8.2
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2 On September 24, 2020, this Court entered an order directing the
Westmoreland County Prothonotary to issue notice of the trial court’s June 5,
2019 order in accord with Pa.R.C.P. No. 236. Order, 9/24/20. On October 5,
2020, this Court entered an order acknowledging receipt of an updated docket
reflecting Rule 236 notice was provided to the parties on September 29, 2020.
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Appellants present two questions for review:
1. Did the trial court improperly exercise its authority to dismiss
Appellants’ post-trial motions not on the merits, when the
relevant Rules of Civil Procedure require the court to provide
an opportunity to cure non-filing before dismissal?
2. Did the court have subject matter jurisdiction to decide the
matter before it given it found the land in-between the litigants’
properties to be an abandoned as opposed to vacated road?
Appellants’ Brief at 10.
We begin with a consideration of the trial court’s subject matter
jurisdiction. ”Subject matter jurisdiction relates to the competency of a court
to hear and decide the type of controversy presented.” Schultz v. MMI
Prod., Inc., 30 A.3d 1224, 1226 (Pa. Super. 2011). Issues of subject matter
jurisdiction cannot be waived. In re Melograne, 812 A.2d 1164, 1166 (Pa.
2002). “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[.]” Strasburg Scooters,
LLC v. Strasburg Rail Rd., Inc., 210 A.3d 1064, 1067 (Pa. Super. 2019)
(quoting In re Patterson’s Estate, 19 A.2d 165, 166 (Pa. 1941)).
”Moreover, it is “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.”
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The caption therefore reflects an appeal from the order entered September
29, 2020. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”).
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Id. (quoting Commonwealth ex. rel. Howard v. Howard, 10 A.2d 779,
781 (Pa. Super. 1940). Subject matter jurisdiction raises a question of law
for which our standard of review is de novo and our scope of review is plenary.
Id. ”The failure to join an indispensable party is a non-waivable defect that
implicates the trial court's subject matter jurisdiction.” Id. at 1069.
A party is indispensable
when his or her rights are so connected with the claims of
the litigants that no decree can be made without impairing those
rights. If no redress is sought against a party, and its rights would
not be prejudiced by any decision in the case, it is not
indispensable with respect to the litigation. We have consistently
held that a trial court must weigh the following considerations in
determining if a party is indispensable to a particular litigation:
1. Do absent parties have a right or an 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?
In determining whether a party is indispensable, the basic
inquiry remains whether justice can be done in the absence of a
third party.
This Court has held that in a quiet title action, all parties
who claimed title to the property at issue must be joined as
indispensable parties.
Id.
As explained above, this action involves a dispute over a former roadway
running between the parties’ properties. Surveying revealed a forty-foot-wide
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gap between the parties’ properties. Part of the gap is occupied by a gravel
driveway which the parties and their predecessors in interest have used for
ingress and egress for many years. Records indicate that a roadway, long
since abandoned, once ran between the properties. The roadway accounts for
the gap of un-deeded land in between the properties.
In Nelson by Nelson v. Dibble, 510 A.2d 792 (Pa. Super. 1986), as in
the instant matter, the parties disputed the proper use of an abandoned
roadway abutting both properties. The trial court in that case found as
follows:
First of all, whether we call this Lavery Lane vacated or
abandoned, it is my opinion, at this point at least, that that is a
difference without any real distinction. It is now no longer
maintained or claimed by the township. The Court finds that there
does exist an easement either by the prescriptive use of the
plaintiff or as a public road now ignored and this is available to
both parties; that neither party may deny the other party use of
this easement; neither party may block nor deliberately obstruct
the use of the easement by the other party.
Id. at 793. This Court held the trial court was in error, noting that a claim of
adverse possession does not lie against Commonwealth property or local
property devoted to public use. Id. at 794. This Court also explained that
the outcome of the underlying action was “linked inextricably with whether
title to the subject property is vested in Greene Township.” Id. at 795. If the
township retained any title to the roadway, i.e., it had not formally vacated
its interest in it, then the township was an indispensable party. Id.
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In Clifford Twp. v. Ransom, 398 A.2d 768 (Pa. Commw. 1979),3 the
township appealed from an order directing it to maintain a portion of an
abandoned road for the benefit of the plaintiffs. The Commonwealth Court
affirmed, concluding that the township never formally abandoned the roadway
in accord with applicable statutory procedures, and therefore was still
responsible for its maintenance. Id. at 769-70.
In Fried-El Corp. v. Borough of Monroeville, 474 A.2d 713 (Pa.
Commw. 1984), Fried-El Corp. occupied land abutting an abandoned roadway
that was formerly part of a state highway. A letter to the borough from the
former Commonwealth Secretary of Highways confirmed this. Id. at 715. The
borough never used or maintained the roadway abandoned to it, it was
completely covered over with earth and not used for access to other areas.
Id. Fried-El Corp. petitioned the trial court for the appointment of viewers to
consider whether to formally vacate the part of the former highway abutting
its property. Id. at 715. The trial court eventually concluded that Fried-El
Corp. needed to petition the borough to vacate the roadway. Id. The
Commonwealth Court concluded that the trial court was correct, quoting with
approval from that court’s opinion: “An abandoned section becomes a
highway, road or street of the municipality. The fact that the local municipality
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3 We may rely on opinions from our Commonwealth Court as persuasive
authority. Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010),
appeal denied, 12 A.3d 371 (Pa. 2010).
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does not maintain the same, as is indicated here, does not divest the local
municipality of its jurisdiction over this section or result in a de facto vacation
of the section.” Id.
Instantly, as in Fried-El., the record reflects a letter from the
Commonwealth to the Borough Council Secretary, dated October 31, 1938,
abandoning a part of former State Route 819.4 Non-Jury Trial Opinion and
Order of Court, 6/5/19, at 6; Appellants’ Trial Exhibit N. A portion of that
abandoned roadway is apparently the un-deeded property dividing the parties’
properties, and which both use for ingress and egress. The Borough has no
record of formally vacating the roadway in question.5 Here, as in Fried-El
and Ransom, the Borough no longer uses or maintains the abandoned
roadway. Rather, the Borough simply abandoned it, and part of what is left
abuts the parties’ property. Nelson teaches that, without evidence of a formal
vacation, the Borough of South Greensburg is an indispensable party. That
is, the Borough is absent from this litigation, yet it retains an interest in the
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4 The State Highway Law, 36. P.S. § 670-101, et. seq., authorizes the
Secretary of Highways to abandon portions of former state highways. 36 P.S.
§ 210.
5 See the Borough Code, 8 Pa.C.S.A. §§ 1731 and 1732 governing a
borough’s authority to vacate a roadway and an interested party’s ability to
petition for therefor.
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property under dispute. For this reason, we are constrained to conclude that
the trial court lacked subject matter jurisdiction over this action.6
Appellees argue that Appellants act in bad faith by raising this issue only
after an adverse trial result. We need not discern Appellants’ motive for
raising the issue of subject matter jurisdiction for the first time on appeal. The
law expressly allows any party to raise subject matter jurisdiction at any time;
the issue cannot be waived, and this Court could have raised the issue sua
sponte if Appellants had not. Further, we do not believe, as Appellees seem
to, that our result will incentivize sandbagging on this issue. Both parties to
a property dispute have a strong incentive to identify all interest parties rather
proceed through the time and expense of trial only to learn at a later stage
that the trial court lacked jurisdiction all along. In any event, the parties
cannot, by the collective failure to identify an interested third party, deprive
the third party of its right without notice.
Based on the record before us, the trial court lacked jurisdiction over
this matter because the Borough was not a party and because the abandoned
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6 We are cognizant that one of Appellees’ ejectment causes of action related
solely to property the trial court described as “Deeded Property,” that is,
property shown by survey to be included within Appellees’ deed description.
Appellants, however, claimed at trial that Appellees’ Deeded Property (whose
deed description can be traced back to 1930) overlaps a portion of the
disputed former roadway (which existed at least as far back as 1910) that
rightfully belongs to Appellants. As such, the Borough had an interest in the
ejectment cause of action.
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roadway was never vacated.7 We therefore vacate the order on appeal as a
nullity.
Order vacated. Application for continuance denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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7 See 8 Pa.C.S.A. §§ 1731 and 32; see also, 36 P.S. § 670-214; Petition
of Turkey Run Fuels, Inc., 95 A.2d 370 (Pa. Super. 1953) (holding that, in
some circumstances, courts of common pleas may order an abandoned
roadway vacated under 36 P.S. § 670-214).
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