Lombardo, L. v. Stephens, R. ( 2019 )

J-S70031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LOUIS J. LOMBARDO AND ROCCO B. : IN THE SUPERIOR COURT OF
LOMBARDO : PENNSYLVANIA
:
Appellants :
:
v. :
:
RANDALL W. STEPHENS :
:
Appellee : No. 967 EDA 2018
Appeal from the Judgment Entered March 14, 2018
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 634-CIVIL-2015
LOUIS J. LOMBARDO AND ROCCO B. : IN THE SUPERIOR COURT OF
LOMBARDO : PENNSYLVANIA
:
Appellees :
v. :
:
RANDALL W. STEPHENS :
:
Appellant : No. 1051 EDA 2018
Appeal from the Judgment Entered March 14, 2018
In the Court of Common Pleas of Wayne County
Civil Division at No(s): No. 634-CIVIL-2015
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 04, 2019
Appellants/Cross-Appellees, Louis J. Lombardo and Rocco B. Lombardo,
and Appellee/Cross-Appellant, Randall W. Stephens, appeal from the
judgment entered in the Wayne County Court of Common Pleas in this quiet
title action. We affirm.
The relevant facts and procedural history of this case are as follows.
J-S70031-18
Appellants/Cross-Appellees Lombardo own property that shares a common
boundary line with Appellee/Cross-Appellant Stephens. The parties derive
their respective titles to the properties from the same grantor, Boyd L.
Bedford. Prior to the relevant conveyances at issue, Mr. Bedford owned 262
acres of land in Wayne County (“the Farm Property”). On June 17, 1948, Mr.
Bedford acquired title to approximately 83 acres of undeveloped land from
A.J. Wall (“the Wall Property”), to the east of the Farm Property.
On June 5, 1967, in exchange for $3000.00, Mr. Bedford executed a
deed containing a general warranty of title for the Wall Property to
Appellant/Cross-Appellee Louis J. Lombardo and Nicholas Lombardo.1 Before
this transfer, Mr. Bedford had the property surveyed by Earl Kingsbury (“the
Kingsbury survey”). This deed was recorded on July 6, 1967, along with the
Kingsbury survey. The relevant portion of Appellants/Cross-Appellees
Lombardo’s deed is as follows:
[Beginning] at the North West Corner hereof Being a large
Hemlock tree Witnessed for the Corner, thence along an old
line of Blazed trees and being in the old Warrantee line of
the Henry Speering tract. North on Present bearing of 57
degrees East 2721 feet to a Stones Corner witnessed,
thence along a line of land of Jerry Gagdorus and James
Sanford, South 8 degrees West 3120 feet to point in center
of the Starrucca to Maple Grove road, thence along center
of the same South 59 degree[s] West 187 feet, thence
South 62 degrees West 300 [feet] to a point in Center [of]
said Road, and in the Easterly line of the B.L. Bedford Home
____________________________________________
1Nicholas Lombardo died on June 24, 2000, and Appellant/Cross-Appellee
Rocco B. Lombardo acquired Nicholas Lombardo’s share of the property on
November 9, 2000.
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farm, thence along same North 35 degrees West 2153
feet to the place of [beginning]. CONTAINING 83 Acres
and 39 Square rods of land be the same more or less subject
to 1/3 of the road, and being so much of the same property
deeded to B.L. Bedford by a Deed from A.J. Wall, and Louise
R. Wall his wife by a deed dated June 16th 1948, and duly
recorded…and according to a Survey made by Pennsylvania
Licensed Surveyor on May 13th 1967 by Karl T. Kingsbury.
(Appellants/Cross-Appellees Lombardo’s Deed at 1; R.R. at 65) (emphasis
added). After Appellant/Cross-Appellee Louis Lombardo paid Mr. Bedford for
the property, Mr. Bedford had a discussion with Appellant/Cross-Appellee
Louis Lombardo, in the presence of Appellee/Cross-Appellant Stephens, who
was 9 years old. Mr. Bedford stated that the boundary line between the two
properties was along a barbed wire fence, which ran northwest from Maple
Grove Road to a large hemlock tree.
On December 31, 1974, Mr. Bedford executed another deed for the Farm
Property to himself, Appellee/Cross-Appellant Stephens, and non-parties
Gladys Stephens and Matthew Stephens as joint tenants with the right of
survivorship. This deed was recorded on January 13, 1975. Mr. Bedford died
on May 6, 1976. Gladys Stephens and Matthew Stephens subsequently filed
a partition action for the property jointly held with Appellee/Cross-Appellant
Stephens. On May 7, 2003, those parties entered into a stipulation regarding
the partition of their property. Appellee/Cross-Appellant Stephens acquired
his current property by deed dated October 26, 2004, which shares the
common boundary line with Appellants/Cross-Appellees Lombardo’s property.
This deed was recorded on May 31, 2007. The relevant portions of
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Appellee/Cross-Appellant Stephens’ deed are as follows:
BEGINNING at a point in the center of Maple Grove Road
(T788), said point being the southwesterly corner of lands
of Louis and Rocco Lombardo (Deed Book 1714 Page 286)
and running: thence along the center of said Maple Grove
Road the following twelve (12) courses and distances: (1) S
65° 29’ 37” W, 111.90 feet, (2) S 70° 24’ 36” W, 137.52
feet, (3) S 73° 50’ 27” W, 169.93 feet, (4) S 85° 50’ 33” W,
123.86 feet, (5) N 72° 50’ 29” W, 98.64 feet, (6) N 57° 47’
99” W, 114.06 feet, (7) N 51° 10’ 16” W, 269.68 feet, (8) N
49° 22’ 34” W, 194.13 feet, (9) N 51° 50’ 02” W, 79.81 feet,
(10) N 55° 32’ 17” W, 161.97 feet, (11) N 68° 31’ [40”] W,
150.56 feet and (12) N 74° 28’ 59” W, 85.25 feet to a corner
in said road. Thence S 17° 08’ 53” W, 151.78 feet thru lands
of the grantor passing a #4 rebar set at 24.39 feet a #4
rebar set. Thence S 73° 42’ 45” W, 724.36 feet thru lands
of the grantor to a #4 rebar set. Thence N 38° 03’ 37° W,
198.70 feet thru lands of the grantor passing a #4 rebar set
at 177.12 feet to a point in the center of Maple Grove Road.
Thence S 50° 41’ 01” W, 1.41 feet along the center of said
Maple Grove Road to a corner. Thence N 12° 27’ 52” W,
168.30 feet thru lands of the grantor passing a #4 rebar set
at 21.79 feet to a #4 rebar set. Thence N 09° 12’ 50” W,
127.85 feet thru lands of the grantor to a #4 rebar set.
Thence N 00° 16’ 25” E, 181.87 feet thru lands of the
grantor to a #4 rebar set. Thence N 06° 27’ 12” W, 835.30
feet thru lands of the grantor to a #4 rebar set. Thence N
71° 32’ 53” W, 414.79 feet thru lands of the grantor to a #4
rebar set on the southerly line of lands of Thomas and Carol
Lopatofsky (Deed Book 360 Page 192). Thence N 49° 32’
15” E, 1124.74 feet along the southerly line of said
Lopatofsky [lands] to a #6 rebar found on the westerly line
of lands of Vaughn Buchanan (Deed Book 2270 Page 162).
Thence S 40° 00’ 00” E, 3167.52 feet along the
westerly line of said Buchanan and lands of Leon
O’Droniec (Deed Book 1236 Page 1) and Louis and
Rocco Lombardo passing a #4 rebar set at 3132.52
feet to the center of Maple Grove Road, the point of
beginning and containing 73.58 acres being more or less.
BEING Lot 1 on a subdivision plan prepared by Christopher
Knash, P.L.S. dated January 2000, revised November 28,
2003 and December 6, 2003….
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(Appellee/Cross-Appellant Stephens’ Deed at 1; R.R. at 54) (emphasis
added). Appellee/Cross-Appellant Stephens’ current deed described the
property in terms of a map prepared by surveyor Christopher Knash (“the
Knash survey”). The deeds and the Kingsbury and Knash surveys conflict
regarding the common boundary line of the two properties.
On November 13, 2015, Appellants/Cross-Appellees Lombardo filed an
action to quiet title. Both parties filed competing motions for summary
judgment, which the court denied on April 22, 2016. In June 2016,
Appellants/Cross-Appellees Lombardo hired surveyor Alfred Bucconear to
perform a survey (“the Bucconear survey”), which concluded
Appellants/Cross-Appellees Lombardo’s 1967 deed and the Kingsbury survey
accurately portrayed the correct boundary line. Appellants/Cross-Appellees
Lombardo filed a second motion for summary judgment on April 12, 2017.
The court held a bench trial on May 30, 2017. During trial,
Appellant/Cross-Appellee Louis Lombardo testified that Mr. Bedford told
Appellant/Cross-Appellee Louis Lombardo at the time of conveyance that a
barbed-wire fence marked the boundary line of the two properties.
Appellants/Cross-Appellees Lombardo’s deed and the Kingsbury survey do not
mention this barbed wire fence. Appellant/Cross-Appellee Louis Lombardo
also testified that Appellee/Cross-Appellant Stephens was present at this
conversation, although he was only about 9 years old. Mr. Bucconear testified
that Appellants/Cross-Appellees Lombardo’s deed call exceeds the adjoinder
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line by 63.95 feet, which reflects what Mr. Bedford told Appellant/Cross-
Appellee Louis Lombardo about the barbed-wire fence at the time of
conveyance. Mr. Bucconear also testified that a partial stone row and wire
fence generally follow the correct boundary line.
The court entered a verdict in favor of Appellants/Cross-Appellees
Lombardo on July 17, 2017. On July 19, 2017, the court denied
Appellants/Cross-Appellees Lombardo’s second motion for summary judgment
as moot. On July 25, 2017, Appellants/Cross-Appellees Lombardo filed a post-
trial motion, which sought attorneys’ fees and costs. The court, on August 4,
2017, vacated its July 17, 2017 verdict to schedule a hearing on
Appellants/Cross-Appellees Lombardo’s post-trial motion. The court held a
hearing on October 25, 2017. The following day, the court denied
Appellants/Cross-Appellees Lombardo’s post-trial motion.
On November 2, 2017, Appellants/Cross-Appellees Lombardo and
Appellee/Cross-Appellant Stephens each filed a praecipe to enter judgment
based on the August 4, 2017 order. That same day, the clerk of courts entered
judgment in favor of Appellee/Cross-Appellant Stephens. On November 3,
2017, Appellants/Cross-Appellees Lombardo filed a petition to strike or open
the judgment because the August 4, 2017 order was not representative of the
court’s verdict. On November 7, 2017, both parties stipulated to strike the
November 2, 2017 judgment. On November 9, 2017, the court vacated the
October 26, 2017 order that denied Appellants/Cross-Appellees Lombardo’s
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post-trial motion and entered a new verdict to clarify the verdict in favor of
Appellants/Cross-Appellees Lombardo. The court expressly adopted
Appellants/Cross-Appellees Lombardo’s proposed findings of fact and
conclusions of law, with the exception of paragraphs 20 through 26 in their
proposed conclusions of law. The court further confirmed Appellants/Cross-
Appellees Lombardo’s deed and reformed the deed of Appellee/Cross-
Appellant Stephens, as specified in Appellants/Cross-Appellees Lombardo’s
exhibit 4. Finally, the court denied Appellants/Cross-Appellees Lombardo’s
post-trial request for attorney’s fees.
Appellee/Cross-Appellant Stephens filed post-trial motions on
November 15, 2017, and Appellants/Cross-Appellees Lombardo filed post-trial
motions on November 17, 2017. Both parties filed notices of appeal, however,
this Court quashed both appeals as premature due to open post-trial motions.
On March 14, 2018, the court denied both sets of post-trial motions. The
court also entered judgment in favor of Appellants/Cross-Appellees Lombardo
on their quiet title action and against Appellants/Cross-Appellees Lombardo
regarding their claim for attorneys’ fees and costs. On March 21, 2018,
Appellants/Cross-Appellees Lombardo timely filed a notice of appeal. The
following day, the court ordered Appellants/Cross-Appellees Lombardo to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). On March 29, 2018, Appellants/Cross-Appellees Lombardo timely
filed a Rule 1925(b) statement, and Appellee/Cross-Appellant Stephens timely
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filed a notice of appeal. On April 6, 2018, the court ordered Appellee/Cross-
Appellant Stephens to file a Rule 1925(b) statement; Appellee/Cross-
Appellant Stephens timely complied on April 9, 2018.
At Docket No. 967 EDA 2018, Appellants Lombardo raise the following
issues for our review:
WHERE A GRANTOR CONVEYS LAND BY A “GENERAL
WARRANTY DEED” RETAINING AN ADJOINING PARCEL,
AND, THEREAFTER HIS SUCCESSOR JOINS IN THE
ISSUANCE TO HIMSELF AS SOLE GRANTEE A CONFLICTING
CONVEYANCE, IS APPELLEE LIABLE, IN A QUIET TITLE
ACTION, FOR REIMBURSEMENT OF THE LEGAL FEES AND
EXPENSES INCURRED BY [APPELLANTS] IN DEFENDING
THEIR TITLE TO THE SUBJECT PROPERTY?
DID THE COURT OF COMMON PLEAS ERR IN FAILING TO
MAKE AN AWARD OF DAMAGES IN FAVOR OF [APPELLANTS]
AND AGAINST [APPELLEE] ON THE BASIS OF “BREACH OF
GENERAL WARRANTY”?
UNDER THE PROVISIONS OF 21 P.S. SECTION 5 “WARRANT
GENERALLY CONSTRUED” IS [APPELLEE] LIABLE TO
[APPELLANTS] FOR COSTS AND EXPENSES EXPENDED BY
APPELLANTS IN DEFENDING THEIR TITLE TO THE SUBJECT
LAND IN A [QUIET TITLE] ACTION?
(Appellants Lombardo’s Brief at 2).
At Docket No. 1051 EDA 2018, Appellant Stephens raises the following
issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
BY ADOPTING A COMMON BOUNDARY LINE WHICH IS IN
CONTRADICTION OF THE WARRANTEE LINE WHICH BOTH
SURVEYORS ACKNOWLEDGED SEPARATED THE TWO
PROPERTIES AND BY REFERENCING AND RELYING ON
FIELD EVIDENCE TO ESTABLISH A BOUNDARY LINE WHICH
WAS NOT REFERENCED OR CALLED FOR IN EITHER DEED
DESCRIPTION[?]
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WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF
LAW BY ALLOWING [PAROL] EVIDENCE OF A DEAD PERSON
TO INTERPRET A DEED DESCRIPTION WHERE THE
LANGUAGE OF THE PARTIES’ DEEDS EVIDENCE[S] A CLEAR
INTENT AS THE RESPECTIVE BOUNDARY LINE SEPARATING
THE RESPECTIVE PARTIES?
WHETHER THE [TRIAL] COURT WAS WITHOUT SUBJECT
MATTER JURISDICTION ON NOVEMBER 9, 2017, TO ISSUE
A VERDICT WHEN THE COURT PREVIOUSLY VACATED ITS
PRIOR VERDICT OF JULY 17, 2017 BY ITS ORDER OF
AUGUST 4, 2017?
(Appellant Stephens’ Brief at 4).
In their issues combined, Appellants/Cross-Appellees Lombardo argue
Appellee/Cross-Appellant Stephens, as a successor in interest to Mr. Bedford,
is legally bound to defend the title of Appellants/Cross-Appellees Lombardo
under the general warranty provision. Appellants/Cross-Appellees Lombardo
contend Appellee/Cross-Appellant Stephens’ May 31, 2007 deed created a
cloud on Appellants/Cross-Appellees Lombardo’s title and Appellee/Cross-
Appellant Stephens is required to reimburse Appellants/Cross-Appellees
Lombardo for reasonable expenses incurred in this action to quiet title.
Appellants/Cross-Appellees Lombardo conclude this Court should vacate the
portion of the underlying judgment that denied their request for attorney’s
fees and remand for a determination of litigation expenses. We disagree.
In his first and second issues combined, Appellee/Cross-Appellant
Stephens argues the language in Appellants/Cross-Appellees Lombardo’s deed
calls for an adjoinder between the Wall Property and the Farm Property, and
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the Disputed Tract falls within the Farm Property. Appellee/Cross-Appellant
Stephens asserts the court’s verdict adopts a boundary line that directly
contradicts the warrantee line acknowledged by both Mr. Knash and Mr.
Bucconear. Appellee/Cross-Appellant Stephens contends the adopted
boundary line elevates a distance call above an adjoinder call and relies on
extrinsic evidence outside the plain language of the deeds, in violation of the
parol evidence rule.
In his third issue, Appellee/Cross-Appellant Stephens argues the court
had thirty days from the August 4, 2017 order, which vacated the July 17,
2017 verdict, to enter a new verdict. Appellee/Cross-Appellant Stephens
avers the court lacked subject matter jurisdiction to enter a verdict after the
passage of thirty days, and the November 9, 2017 verdict fell outside this
thirty-day period. Appellee/Cross-Appellant Stephens contends this case was
not overly protracted, which would allow the court to go beyond the thirty-
day period to enter a new verdict.
Finally, Appellee/Cross-Appellant Stephens responds that the court
properly denied Appellants/Cross-Appellees Lombardo’s request for costs and
expenses because Appellants/Cross-Appellees Lombardo possessed their land
at all times. Appellee/Cross-Appellant Stephens continues that the only issue
for the court was the determination of a common boundary line, and not
ownership rights. Further, Appellee/Cross-Appellant Stephens avows he and
Appellants/Cross-Appellees Lombardo derive their titles from different
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sources, and he is not a successor in interest to Mr. Bedford with respect to
Appellants/Cross-Appellees Lombardo’s property. Appellee/Cross-Appellant
Stephens concludes this Court should vacate the portion of the verdict that
established a new boundary line and affirm the portion of the verdict that
denied Appellants/Cross-Appellees Lombardo’s request for costs and
expenses. We agree in part and disagree in part.
This Court will not disturb a denial of attorneys’ fees absent an abuse of
discretion. In re Padezanin, 937 A.2d 475, 483 (Pa.Super. 2007). “A trial
court has abused its discretion if it failed to follow proper legal procedures or
misapplied the law.” Kessock v. Conestoga Title Insurance Co., 194 A.3d
1046, 1059 (Pa.Super. 2018). An evidentiary hearing is generally required
for a trial court to decide a claim for attorneys’ fees, unless the facts are
undisputed. In re Estate of Burger, 852 A.2d 385, 391 (Pa.Super. 2004),
affirmed, 587 Pa. 164, 898 A.2d 547 (2006).
A general warranty deed implicates the following:
§ 5. “Warrant generally” construed
A covenant or agreement by the grantor or grantors, in any
deed or instrument in writing for conveying or releasing land
that he, they, or it “will warrant generally the property
hereby conveyed,” shall have the same effect as if the
grantor or grantors had covenanted that he or they, his or
their heirs and personal representatives or successors, will
forever warrant and defend the said property, and every
part thereof, unto the grantee, his heirs, personal
representatives and assigns, against the lawful claims and
demands of all persons whomsoever.
21 P.S. § 5. “Where property has been conveyed by a deed of general
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warranty, actual or constructive eviction, as a result of a defect of title, must
be shown in order to recover on a breach of the warranty.” Kramer v. Dunn,
749 A.2d 984, 991 (Pa.Super. 2000) (holding party is constructively evicted
when party purchases general warranty deed to property from grantor who
did not actually hold title).
Our standard of review on appeal from an action to quiet title is
deferential: “In reviewing an action to quiet title, an appellate court’s review
is limited to determining whether the findings of fact are supported by
competent evidence, whether an error of law has been committed, and
whether there has been a manifest abuse of discretion.” Regions Mortgage,
Inc. v. Muthler, 585 Pa. 464, 467, 889 A.2d 39, 41 (2005).
It is not the role of an appellate court to pass on the
credibility of witnesses; hence we will not substitute our
judgment for that of the factfinder. Thus, the test we apply
is not whether we would have reached the same result on
the evidence presented, but rather, after due consideration
of the evidence which the trial court found credible, whether
the trial court could have reasonably reached its conclusion.
Hollock v. Erie Ins. Exchange, 842 A.2d 409, 414 (Pa.Super. 2004) (en
banc), appeal dismissed as improvidently granted, 588 Pa. 231, 903 A.2d
1185 (2006) (internal citations omitted).
The Pennsylvania Rules of Civil Procedure define the scope of an action
to quiet title, in pertinent part, as follows:
Rule 1061. Conformity to Civil Action. Scope
* * *
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(b) The action may be brought
* * *
(2) where an action of ejectment will not lie, to
determine any right, lien, title, or interest in the land
or determine the validity or discharge of any
document, obligation or deed affecting any right, lien,
title or interest in land;
(3) to compel an adverse party to file, record, cancel,
surrender or satisfy of record, or admit the validity,
invalidity or discharge of, any document, obligation or
deed affecting any right, lien, title or interest in land[.]
Pa.R.C.P. 1061(b)(2), (3). To prevail in an action to quiet title, a party must
demonstrate title by a fair preponderance of the evidence and prima facie
proof of title is sufficient until the adverse party shows a better title. Hallman
v. Turns, 482 A.2d 1284, 1287-88 (Pa.Super. 1984). An action to quiet title,
unlike an ejectment action, does not restrict a court to finding the rights only
of the immediate plaintiff and defendant involved in the controversy. Wells
Fargo Bank, N.A. v. Long, 934 A.2d 76, 78 (Pa.Super. 2007). Rather, an
action to quiet title determines the “relative and respective rights of all
potential titleholders.” Id.When uncertainty exists in a deed due to vague or ambiguous language,
a court may look to extrinsic or parol evidence to explain, but not vary, the
written word. Doman v. Brogan, 592 A.2d 104, 109 (Pa.Super. 1991). See
also Flaherty v. DeHaven, 448 A.2d 1108, 1111 (Pa.Super. 1982) (stating
to ascertain meaning of deed when intentions of parties are unclear from
instrument itself, court must look to language of entire instrument,
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consideration of subject matter, and conditions that existed at time of
execution, together with surrounding circumstances). When calls of a deed
are inconsistent, the court looks to, in order: (1) natural objects or landmarks;
(2) artificial monuments; (3) adjacent boundaries; and (4) courses and
distances. Doman, supra at 110. “[W]here the terms of a deed will admit
of two reasonable interpretations (patent ambiguity), or where the calls
conflict when applied to the ground whereby admitting of different reasonable
bases for division (latent ambiguity), their construction, as a rule, …[is] a
question of fact.” Id. Further, ambiguities in a deed are to be construed to
effectuate the intent of the parties and any doubt will be resolved against the
preparer of the deed. Advance Industrial Supply Co. v. Eagle Metallic
Copper Co., 267 Pa. 15, 19-20, 109 A. 771, 773-74 (1920).
If there is a dispute between boundaries in two conveyances from the
same grantor, then the grantee with the first executed conveyance has
superior title. Will v. Piper, 134 A.2d 41, 44 (Pa.Super. 1957). A survey
made during the grantor’s life is given great weight when settling a boundary
dispute. Id. Consentable lines established by the parties themselves are
given great weight, regardless of whether the line conforms to the exact
courses, distances, and bounds of an original survey. Dimura v. Williams,
446 Pa. 316, 319, 286 A.2d 370, 371 (1972).
After a bench trial, “[t]he trial judge shall render a decision within seven
days after the conclusion of the trial except in protracted cases or cases of
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extraordinary complexity.” Pa.R.C.P. 1038(c). “Except as otherwise provided
or prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or allowed.”
42 Pa.C.S.A. § 5505.
Instantly, the trial court analyzed Appellants/Cross-Appellees
Lombardo’s issues as follows:
An actual eviction did not occur in the case at bar. Here,
[Appellants/Cross-Appellees Lombardo’s] title was never
challenged by [Appellee/Cross-Appellant Stephens].
[Appellants/Cross-Appellees Lombardo’s] ownership of the
land contained in the deed was never challenged by
[Appellee/Cross-Appellant Stephens]. [Appellants/Cross-
Appellees Lombardo] would be entitled to fees if they were
sued to defend their title. This common boundary line
dispute arises from the discrepancy in deed descriptions,
rather than from a superior claim of right or lien on
[Appellants/Cross-Appellees Lombardo’s] property. As
such, [the c]ourt determined that, based on these facts, an
award of attorney's fees was not warranted.
(Trial Court Opinion in Response to Appellants/Cross-Appellees Lombardo’s
Rule 1925(b) Statement, filed June 21, 2018, at 3). The record supports the
trial court’s rationale. See In re Padezanin, supra; Kramer, supra.Further, Appellants/Cross-Appellees Lombardo were not constructively evicted
because Mr. Bedford had legal title to the land he sold to Appellants/Cross-
Appellees Lombardo. See id. Therefore, the trial court properly denied
Appellants/Cross-Appellees Lombardo’s request for costs and attorneys’ fees.
The trial court analyzed Appellee/Cross-Appellant Stephens’ issues as
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follows:
The evidence presented at trial showed that the parties
derived their respective titles from the same grantor, Boyd
L. Bedford. As the intention of the parties may be shown by
surrounding circumstances, evidence was permitted to be
heard regarding the exchanges between the parties on the
day [Mr.] Bedford delivered the deed to [Appellant/Cross-
Appellee Louis Lombardo], while in [Appellee/Cross-
Appellant Stephens’s] presence.
On July 5, 1967, [Mr.] Bedford executed and delivered to
[Appellant/Cross-Appellee Louis Lombardo and Nicholas
Lombardo,] a deed which contained [the Kingsbury Survey].
[Mr.] Bedford hired Mr. Kingsbury to perform the survey and
either prepared or caused to be prepared [Appellants/Cross-
Appellees Lombardo’s] deed. The Kingsbury [Survey]
depicts the lands legally described in the [Appellants/Cross-
Appellees Lombardo’s] deed and the common boundary in a
manner generally consistent with a line running along a wire
fence line and partial stone wall.
At this same meeting, [Mr.] Bedford described the lands
conveyed to [Appellants/Cross-Appellees Lombardo] by
pointing to the fence as being the common boundary. At
the time of the conveyance [Mr.] Bedford used the fence to
enclose a cattle pasture, thereby treating the fence as being
the location of the boundary of the farm he retained.
Further, throughout the course of…litigation,
[Appellee/Cross-Appellant Stephens] admitted that “we
always believed…the common boundary line…to be close to
the fence.”
[The c]ourt found that [Appellee/Cross-Appellant
Stephens’] statements and those attributed to [Mr.] Bedford
as well as the existence and use of the fence, when taken
together as a whole, had the effect of mandating that
[Appellants/Cross-Appellees Lombardo’s] deed be
construed to include the 63.95 feet of the B.L. Bedford
Home farm consistent with its legal description and the
Kingsbury [survey].
At trial, [Appellee/Cross-Appellant Stephens] introduced
[the Knash survey], which contradicted the Kingsbury
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[survey]. The Knash [survey] similarly depicted a line
running along a wire fence line and partial stone wall, but
the Knash [survey] did not depict the “overlap” created by
[Appellants/Cross-Appellees Lombardo’s] deed onto the
other lands owned by [Mr.] Bedford at the time he delivered
the deed to the [Appellants/Cross-Appellees Lombardo]. As
such, there was a conflict between [Appellants/Cross-
Appellees Lombardo’s] deed and [Appellee/Cross-Appellant
Stephens’] deed since the common boundary line was not
consistently described in them.
* * *
Here, there is no dispute that [Appellants/Cross-Appellees
Lombardo’s] deed was the first executed. Therefore, any
discrepancy was resolved in favor of [Appellants/Cross-
Appellees Lombardo].
* * *
While [Appellants/Cross-Appellees Lombardo’s] deed was
ambiguous in its description of the common boundary as
being along the “Easterly line of the B.L. Bedford Home
farm,” when applying the distances recited to be along
Maple Grove Road, the common corner of this boundary is
described as being 63.95 feet further west, beyond the
“Easterly line of the B.L. Bedford Home farm.”
[The c]ourt found that the intention of the parties was that
[Mr.] Bedford sold, and [Appellants/Cross-Appellees
Lombardo] purchased, lands bounded by the fence line, as
described by [Appellant/Cross-Appellee] Louis J. Lombardo
from [Mr.] Bedford’s representations in [Appellee/Cross-
Appellant Stephens’] presence. Pursuant to Pennsylvania
law, this ambiguity is resolved against [Mr.] Bedford as the
grantor who drafted or caused to be drafted the deed, and
[Appellee/Cross-Appellant Stephens] as [Mr. Bedford’s]
successor, in favor of [Appellants/Cross-Appellees
Lombardo].
* * *
By way of procedural history, a non-jury trial was held in
this matter on May 30, 2017. [The c]ourt entered a Verdict
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in favor of [Appellants/Cross-Appellees Lombardo] and
against [Appellee/Cross-Appellant Stephens] on July 17,
2017. On July 25, 2017, [Appellants/Cross-Appellees
Lombardo] filed a Motion for Post-Trial Relief seeking an
award of attorney’s fees and costs pursuant to Title 21 P.S.
Section 5. To permit argument on said Motion, [the c]ourt
entered an Order on August 4, 2017, which vacated the
Verdict dated July 17, 2017 and scheduled a hearing for
September 18, 2017. On August 25, 2017
[Appellants/Cross-Appellees Lombardo] filed an unopposed
motion to continue the hearing on the Motion for Post-Trial
Relief, and the matter was rescheduled to October 25, 2017.
On October 26, 2017, [the c]ourt entered an Order denying
said Motion. Subsequently, on November 2, 2017,
[Appellee/Cross-Appellant Stephens] filed with the
Prothonotary of Wayne County a Praecipe to Enter
Judgment in favor of [Appellee/Cross-Appellant Stephens]
and against [Appellants/Cross-Appellees Lombardo]
pursuant to the “Final Judgment” dated August 4, 2017,
which vacated the Verdict of July 17, 2017. As such “Final
Judgment” was in contradiction of [the c]ourt’s findings in
the Verdict entered July 17, 2017, [Appellants/Cross-
Appellees Lombardo] filed a Petition to Strike or Open
Judgment on November 3, 2017. The parties stipulated to
strike the judgment entered on November 2, 2017, and said
Stipulation was made an Order of Court on November 7,
2017.
For clarification purposes, [the c]ourt entered a
comprehensive, second Verdict on November 9, 2017,
which found in favor of [Appellants/Cross-Appellees
Lombardo] and against [Appellee/Cross-Appellant
Stephens] and also denied [Appellants/Cross-Appellees
Lombardo’s] Motion for Post-Trial Relief to include an award
of attorney’s fees. Subsequently, both parties filed Motions
for Post-Trial Relief and Notices of Appeal of [the c]ourt’s
Order dated November 9, 2017.
On January 12, 2018[,] the Superior Court quashed the
consolidated appeals as premature because post-trial
motions were pending in [the trial c]ourt, and as such, no
final judgment was entered. On remand, [the c]ourt
entered two (2) Orders dated March 14, 2018, each of
which: (1) denied both parties’ post-trial motions; and (2)
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entered final judgment on behalf of [Appellants/Cross-
Appellees Lombardo] and against [Appellee/Cross-Appellant
Stephens]. The Order dated March 14, 2018, which entered
final judgment, is the subject of the instant appeal.
[Appellee/Cross-Appellant Stephens] now contends that
[the c]ourt lacked subject matter jurisdiction to issue a new
Verdict on November 9, 2017, and subsequently a judgment
on March 14, 2018. [Appellee/Cross-Appellant Stephens]
relies on Pa.R.C.P. 1038(c), which states in relevant part
that after a trial without jury “[t]he decision may be
made…in writing and filed forthwith…. The trial judge shall
render a decision within seven days after the conclusion of
the trial except in protracted cases or cases of extraordinary
complexity.”
Merriam-Webster defines “protracted” as “to prolong in time
or space.” As this matter was filed in 2015 and a brief
review of the filings will show, this matter constituted a
protracted case. Therefore, issuing the Verdict dated
November 9, 2017 and subsequently a judgment on March
14, 2018 was proper.
* * *
Here, the [c]ourt acted properly within its discretion to
modify and rescind the orders complained of.
(Trial Court Opinion in Response to Appellee/Cross-Appellant Stephens’ Rule
1925(b) Statement, filed June 21, 2018, at 2-6). The record supports the trial
court’s rationale. See 42 Pa.C.S.A § 5505; Regions Mortgage, Inc., supra;Advance Industrial Supply Co., supra; Doman, supra; Hallman, supra;Will, supra. Appellants/Cross-Appellees Lombardo’s deed and the Kingsbury
survey both agree on the heading of the boundary in dispute. The
conversation between Appellant/Cross-Appellee Louis Lombardo and Mr.
Bedford, however, occurred after Appellant/Cross-Appellee Louis Lombardo
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paid Mr. Bedford for the property and created an ambiguity. Therefore, the
court properly used this conversation and the fence line to clarify the
intentions of the parties at the time of conveyance. See Dimura, supra;Doman, supra. Accordingly, we affirm the judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
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