Belliveau, C. v. Phillips, R. , 207 A.3d 391 ( 2019 )

J-A30038-17
2019 Pa. Super. 103CLARENCE BELLIVEAU IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
R.A. PHILLIPS AND ELLA B. PHILLIPS,
HUSBAND AND WIFE, DECEASED,
UNKNOWN HEIRS OF R.A. PHILLIPS
AND UNKNOWN HEIRS OF ELLA B.
PHILLIPS
APPEAL OF: WILLIAM FADELEY AND
KATHLEEN FADELEY
No. 894 WDA 2017
Appeal from the Order Entered May 22, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD-16-021515
BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.
OPINION BY STABILE, J.: FILED April 1, 2019
Appellants, William and Kathleen Fadeley, appeal from the May 22, 2017
order dismissing their petitions to open and/or strike a judgment entered in a
quiet title action in favor of Appellee, Clarence Belliveau. We vacate and
remand.
This case arises from a boundary dispute between Appellants, who
acquired a plot of land (“Lot 279”) in Robinson Township, Allegheny County,
Pennsylvania, at a sheriff’s sale, and Appellee, who filed this quiet title action
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based on a claim of adverse possession of a lot (“Lot 55”) abutting—and
allegedly overlapping—Lot 279.
The sheriff’s sale, at which Appellee was present, took place on October
21, 2015. On November 4, 2016, Appellee filed this action to quiet title in Lot
55. The named defendants, the Phillips1, acquired title to Lot 55 in 1901.
They are long since deceased. Appellee claimed Lot 55 had been abandoned
for more than 30 years, and that he could not find any heirs or successors.
Appellee thereafter filed a motion for a special order to permit alternative
service by publication upon the Phillips. By order dated November 29, 2016,
the trial court granted the motion and permitted service only upon the Phillips
by publication in the Pittsburgh Legal Journal and a newspaper of general
circulation, as well as by posting of the property.2
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1The defendants named in the quiet title action, collectively referred to herein
as the "Phillips", were "R. A. Phillips and Ella B. Phillips, Husband and Wife,
deceased, Unknown Heirs of R.A. Phillips and Unknown Heirs of Ella B.
Phillips."
2 Rule 430(a) of the Pennsylvania Rules of Civil Procedure permits service by
publication upon motion accompanied by an affidavit demonstrating that the
whereabouts of a defendant cannot be ascertained after a proper
investigation. Pa.R.C.P. No. 430(a). It is clear here that service by publication
would not be permitted upon the Appellants, as their whereabouts were clearly
known to the Appellee.
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When no response to the complaint was received, Appellee moved for
judgment.3 Specifically, Appellee requested the trial court to enter a judgment
permanently enjoining and forever barring each and all defendants, and all
other persons or entities, known or unknown, from asserting any right,
lien, title or interest in Lot 55, inconsistent with Appellee’s interests as set
forth in his complaint. By order dated February 21, 2017, the trial court
granted that relief. It further ordered that, upon praecipe by Appellee, the
Department of Court Records, Civil Division, was to enter judgment and that
a certified copy of the order was to be filed with the Department of Real Estate,
Allegheny County, to establish title to the subject property, in fee, in favor of
Appellee, Clarence Belliveau. Upon praecipe dated February 21, 2017,
judgment was entered. The judgment entered not only was against the
Phillips, the only defendants named in the complaint, but also was against
all other persons or entities known or unknown [who are]
permanently enjoined, barred and restrained from asserting any
right, lien, title, claim or interests in [Lot 55], and that [Appellee]
is solely entitled to quiet, exclusive, uninterrupted and peaceful
possession and ownership of the subject property, free and clear
of any and all rights, title, interest, liens, encumbrances or other
claims.
Judgment, 2/21/17, at ¶ 2 (emphasis added).4
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3 In a quiet title action, a court may grant appropriate relief upon affidavit
that a complaint containing a notice to defend has been served and that a
defendant has not filed an answer. Pa.R.C.P. No. 1066.
4 The record does not reflect whether Appellee, or the trial court, or a
combination of both, prepared the judgment language.
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On April 27, 2017, Appellants filed a petition to strike and/or open the
judgment. In their petition to strike, Appellants asserted—among other
things—that the trial court lacked subject matter jurisdiction to enter the
judgment, that they were indispensable parties to the quiet title action, and
that they were never served the complaint in the quiet title action. In their
petition to open, Appellants asserted again, among other things, what they
deemed to be meritorious defenses to Appellee’s claimed ownership of that
part of Lot 55 contained within Lot 279, and that they, and not Appellee, have
been in open possession of Lot 279 since the time of their deeded ownership.
By order dated May 22, 2017, the trial court denied Appellants’ petition,
reasoning it could not grant relief because Appellants were not parties to the
quiet title action. Appellants appealed the May 22, 2017 order, and both
Appellants and the trial court complied with Pa.R.A.P. 1925.
In its Rule 1925(a) opinion, the trial court again stated that denial of
Appellants’ petition was due to the fact Appellants were not parties to the
quiet title action. It further noted that notice of the quiet title action was
properly given by advertisement and posting, and that Appellants failed to
intervene in a timely manner. The trial court also observed that while all
parties have recorded deeds reflecting ownership interests in Lot 55 and Lot
279, the petition to open or strike Appellee’s ownership to the whole of Lot 55
requested an excessive remedy because only a small part of Lot 55 was in
dispute. The trial court also expressed its opinion that denial of the petition
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did not bar Appellants from filing a civil action of ejectment or a quiet title
action to remedy the boundary dispute while not completely divesting Appellee
of ownership to Lot 55.
In this appeal, Appellants present three questions for our review:
A. Whether the trial court abused its discretion and/or committed
an error of law by not striking Appellee’s final judgment entered
by default due to a lack of subject matter jurisdiction?
B. Whether the trial court abused its discretion and/or committed
an error of law by refusing to issue a Rule on Appellee pursuant
to Pa.R.C.P. No. 206.5 and/or otherwise require Appellee to
show cause why Appellants are not entitled to the relief
requested in their petition?
C. Whether the trial court abused its discretion and/or committed
an error of law by holding that Appellants could have, or should
have, intervened in Appellee’s action in quiet title against
defendants, R.A. and Ella B. Phillips and their unknown heirs.
Appellants’ Brief at 4.
A petition to strike a judgment operates as a demurrer to the record,
and the trial court may grant the petition only if a fatal defect appears on the
face of the record. Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614,
622 (Pa. Super. 2013). One such defect is failure to effect proper service.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 917-18 (Pa.
1997). This appeal presents a question of law; therefore our standard of
review is de novo and our scope of review is plenary. Oswald v. WB Pub.
Square Assoc., LLC, 80 A.3d 790, 793 (Pa. Super. 2013).
Although Appellants’ first question refers to subject matter jurisdiction,
Appellants’ petition, their 1925(b) statement, and their brief challenge both
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personal jurisdiction for failure of Appellee to serve them the complaint, and
subject matter jurisdiction upon the basis they were indispensable parties to
Appellee’s quiet title action. We address each in turn.
Appellee’s complaint named only the Phillips as defendants. The trial
court granted permission to serve only the Phillips by publication. Appellants
were not named parties to this action nor were they ever served the complaint
to quiet title. Nonetheless, the judgment entered included, and was against,
all “persons or entities known or unknown.” It is beyond question the trial
court did not have personal jurisdiction over Appellants (or anyone else other
than the Phillips), because Appellants were not parties to this action. A court
must have personal jurisdiction over a party to enter a judgment against that
party. See Dubrey v. Izaguirre, 685 A.2d 1391 (Pa. Super. 1996) (petition
to strike default judgments for improper service of process was proper).
Absent valid service, a court lacks personal jurisdiction over a party and is
powerless to enter judgment against him. Id. Moreover, a judgment may be
attacked for lack of jurisdiction at any time. Id. The trial court was without
jurisdiction to order the judgment entered that included Appellants as persons
bound by its terms. Doing so was fatal to the judgment entered.
We find Burns v. Mitchell, 381 A.2d 487 (Pa. Super. 1977), on point
and controlling. In Burns, the appellee claimed title to a disputed strip of
land as a result of a judgment entered in a quiet title action that became final
on July 24, 1975. The action to quiet title named various parties, but did not
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name the appellant. Additionally, at no time was the appellant personally
served the complaint, even though she, at all relevant times, was in
possession of the disputed land. Service in the quiet title action was effected
by publication. Even though affidavits were filed and publication was
accomplished pursuant to a valid court order, this Court held service was
ineffective as to the appellant. A person in actual possession of real property
cannot be regarded as dead or unknown within the meaning of the rule
permitting publication so as to be bound by a judgment based upon that
service. Id. This was especially true in Burns, where the appellant was not
only in actual possession of the disputed land, but also held title by virtue of
adverse possession. We further stated that to hold otherwise would be a
blatant violation of procedural due process. Id.
As in Burns, Appellants here were not named parties to Appellee’s quiet
title action. So too, Appellants were never personally served the complaint to
quiet title and service by publication clearly would not be permitted, as
Appellants are alive and their whereabouts are known to Appellee. Finally,
like the appellant in Burns, Appellants in their petition to open and/or strike
judgment aver they hold title to a part of Lot 55, albeit by virtue of a sheriff’s
deed.
Lest there be any doubt as to Appellee’s intention to bind all persons
beyond the Phillips to the judgment, one need only look to the record. After
judgment was entered on April 4, 2017, upon praecipe by Appellee, counsel
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for Appellee wrote to Appellant, William Fadeley, advising Fadeley that he has
and had illegally placed vehicles, equipment, and other personal property
upon the property owned by Appellee. Petition to Open and/or Strike,
4/27/17, at Exhibit D. Counsel further advised Appellant that he was
trespassing, and that Appellee intended to pursue criminal sanctions against
him if Fadeley did not terminate his illegal use within five days. Id.
Similarly, the Department of Court Records was also without authority
to enter judgment against parties other than the Phillips and, therefore, the
judgment entered was void ab initio. When Appellee received no response to
his complaint, Appellee, incorrectly believing that the default provisions under
Pa.R.C.P. Nos. 237.1 and 237.5 applied, advised by publication the Phillips
and “[a]ll [p]ersons having or claiming to have an interest in [two] acres of
Vacant Land [Lot 55]” that they were in default for not entering an appearance
and filing in writing their defenses or objections to the claim set forth against
them.5 This notice, like the praecipe for judgment, was a legal nullity as to
all persons other than the Phillips, because, as with original process,
permission was never granted to serve anyone by publication other than the
Phillips. As with the praecipe for judgment, this notice of default as to
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5 The default procedures under Rule 237.1 do not apply to quiet title actions,
as that rule is not applicable where a judgment is entered by an order of court.
See Pa.R.C.P. No. 237.1(b)(1). In a quiet title action, Rule 1066 permits a
court to enter appropriate relief upon affidavit that a complaint containing a
notice to defend has been served and the defendant has not filed an answer.
See Pa.R.C.P. No. 1066(a).
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Appellants could not be of any legal effect because Appellants were not parties
to the action. Therefore, when Appellee filed his motion for judgment with
the trial court under Rule 1066, he could not lawfully represent that Appellants
failed to file an answer to his complaint because Appellants were not parties
to his action and service never was effected upon them. Accordingly, the
Department of Court Records lacked authority to enter judgment based upon
the praecipe filed by Appellee. See also Oswald, 80 A.3d at 796-97 (holding
that a record reflecting a failure to comply with Rule 237.1 is facially defective
and cannot support a default judgment; where authority is lacking to enter
judgment under Rule 237.1, the judgment is void ab initio and is a legal
nullity).
In summary, the trial court obtained personal jurisdiction over only the
Phillips and their unknown heirs. The trial court had no personal jurisdiction
over Appellants or any other unnamed and unserved party. Accordingly, the
trial court had no jurisdiction to enter judgment against Appellants or any
other unnamed and unserved party. The trial court had authority to enter a
valid judgment against the named parties but, as explained above, the
judgment was written so broadly as to apply to any and all claimants to Lot
55, regardless of their notice of this action.
We now turn to the doctrine of indispensable parties. The failure to join
an indispensable party implicates the trial court’s subject matter jurisdiction.
Orman v. Mortg. I.T., 118 A.3d 403, 406 (Pa. Super. 2015).
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[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?
Id. (internal citations and quotation marks omitted).
This case is unusual, in that Appellants were not necessary and
indispensable parties to this action as filed. Initially, the only indispensable
parties were Appellee, who was seeking to establish ownership through
adverse possession, and the Phillips, who were the record title owners of Lot
55. The trial court had personal jurisdiction over the Phillips, and subject
matter jurisdiction to enter a judgment concerning Appellee’s action against
the Phillips.
The trial court, however, overstepped its jurisdiction when it entered
judgment in Appellee’s favor and against “all other persons or entities known
or unknown[.]” In Appellants’ petition, they averred they purchased a vacant
lot identified as 273–P–279 (“Lot 279”) at a sheriff sale. Petition to Open
and/or Strike, 4/27/17, at ¶ 1. Appellants stated that on or about and since
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February 23, 2016, they openly and obviously used Lot 279, claiming it as
their own by, inter alia, physically possessing the property, maintaining the
property, cutting its grass, and storing other personal items on the lot. Id. at
¶ 7. They further averred that Appellee was well aware they owned Lot 279,
which includes a part of Lot 55, because Appellee was present at the sheriff’s
sale when Appellants purchased Lot 279.6 Id. at ¶ 6. Appellants aver they
were never notified of Appellee’s litigation and had no opportunity to present
their interest in Lot 55, which, as stated, is a part of Lot 279. Id. at ¶ 17. In
a quiet title action, all parties who claim title to a property must be joined as
indispensable parties. Orman, 118 A.3d at 407. The trial court, therefore,
lacked subject matter jurisdiction to enter judgment as written.
Finally, we disagree with the trial court’s view that Appellants’ petition
was properly denied because they failed to intervene in a timely manner. As
discussed, the trial court granted Appellee permission to serve only the Phillips
by publication. Appellants were not obligated to intervene in Appellee’s quiet
title action because the complaint on its face sought to quiet title only as
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6 The Dissent states as fact that Appellants did not have any right, title, nor
any adverse possession interest in Lot 55, and therefore were not
indispensable parties to the quiet title action. Dissent Opinion at 1.
Respectfully, the record simply does not support this factual assertion. The
conflict in ownership to that part of Lot 55 claimed by Appellee that overlaps
with Lot 279 owned by Appellants is precisely the factual dispute raised by
Appellants’ petition. This question of material fact makes problematic the trial
court’s entry of judgment as to Appellants, who were never parties to
Appellee’s quiet title action.
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between Appellee and the Phillips. It was only when the trial court, in
response to Appellee’s motion for judgment, included Appellants as parties
bound by the judgment that Appellants’ interest was implicated. Appellants
had no need to intervene in the action prior to that time, as they were not
parties to the litigation. See Ackerman v. Township of North Huntingdon,
228 A.2d 667 (Pa. 1967) (petitioners had no occasion to intermingle in lawsuit
of others; when it developed that Township no longer would contest action
after entry of decree threatening property owners’ rights, property owners
were entitled to intervene). Appellants did, however, timely file their petition
to open and/or strike the judgment once it became known to them that their
interest in the property might be extinguished because of the judgment
entered. In essence, at that point in time, the trial court involuntarily made
Appellants parties to this action by virtue of including them as persons bound
by the judgment. Under these unique circumstances, it was error to dismiss
Appellants’ petition for failure to intervene in Appellee’s quiet title action.7 Id.
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7 Had Appellee sought judgment only as against the Phillips, we would
perceive no problem with the complaint proceeding under Rule 1061(b)(2).
Because Appellants averred in their petition that they too possess a portion of
Lot 55, we do not believe the trial court could have proceeded with either an
action for ejectment or a quiet title action before first deciding the issue of
possession. See Siskos v. Britz, 790 A.2d 1000 (Pa. 2002) (a determination
of possession is a jurisdictional prerequisite to a ruling on the merits of an
action filed pursuant to either Pa.R.C.P. 1061(b)(1) or (b)(2)).
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The trial court also, in part, justified dismissing Appellants’ petition on
the basis that denial of the request did not bar them from filing a civil action
in ejectment or to quiet title to remedy the boundary dispute while not
completely divesting Appellee of ownership of the property. We find this
rationale to be misplaced. Since the judgment entered purports to preclude
all persons and entities from challenging title to Lot 55 as against Appellee,
the question would have arisen as to whether Appellants could subsequently
file additional actions if the judgment entered by the trial court were entitled
to preclusive effect as a final order.
In conclusion, the trial court erred by not granting Appellants’ petition
to open and/or strike the judgment because the trial court lacked jurisdiction
to enter a judgment binding Appellants.8 We therefore reverse the trial court’s
order and remand for further proceedings consistent with this Opinion.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Bowes joins the opinion.
President Judge Emeritus Ford Elliott files a dissenting opinion.
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8 In considering the petition, the trial court arguably could have vacated that
part of its judgment order directed to persons or entities other than the
Phillips. This might have had the effect of preserving Appellants’ rights to file
an action in ejectment or to quiet title to that part of Lot 55 claimed to be a
portion of their lot 279, while leaving intact Appellee’s judgment as against
the Phillips.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2019
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