East End Gun Club v. Kowalczyk, A ( 2020 )


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  • J-A11035-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    EAST END GUN CLUB OF                       :   IN THE SUPERIOR COURT OF
    SCHUYLKILL HAVEN, PA                       :        PENNSYLVANIA
    :
    :
    v.                             :
    :
    :
    ANNE C. KOWALCZYK, SUSAN C.                :
    STRANG, CYRUS PALMER DOLBIN,               :   No. 1458 MDA 2019
    ELLEN MARIE DOLBIN                         :
    :
    Appellants              :
    Appeal from the Order Entered August 1, 2019
    In the Court of Common Pleas of Schuylkill County Civil Division at
    No(s): S-2019-2015
    BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 05, 2020
    Appellant/Defendants, Anne C. Kowalczyk, Susan C. Strang, Cyrus
    Palmer Dolbin, and Ellen Marie Dolbin, appeal from the order entered in the
    Schuylkill County Court of Common Pleas granting as uncontested the Motion
    for Judgment on the Pleadings filed by Appellee/Plaintiff East End Gun Club of
    Schuylkill Haven, PA (“East End”). We vacate the order and remand.
    On November 5, 2015, Appellee East End filed a complaint seeking to
    quiet title to a 150-acre tract of land it claims to own and possess in Wayne
    Township, Schuylkill County. Complaint, ¶ 18. Included in an exhibit to the
    Complaint is a copy of a February 11, 1963, Deed to the land conveying the
    150 acre tract from Anthony Wallace, Leon W. Naus, George D. Naus and
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
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    Maurice E. Umbenhaur, Trustees of and for the East End Gun Club
    (“Trustees”), to East End. The 1963 Deed incorporates by reference a 1930
    deed that conveyed from Charles and Susan Strause to the Trustees a tract
    of only “100-acres, more or less.” See East End’s Complaint, Exhibit A.
    According to the Complaint, Appellants are the purported fee owners of
    an adjoining tract of land described in a Deed dated November 13, 2014. The
    previous owners and Grantors under the 2014 Deed, James P. McGovern and
    Shana L. McGovern, had filed in 2009 a complaint in quiet title and ejectment
    against East End, alleging East End had incorrectly surveyed into its 1963 deed
    a 50-acre parcel which belonged to the 67.904 acre tract the McGoverns
    purchased in 2008.1         The Court of Common Pleas of Schuylkill County,
    however, determined the McGoverns failed to carry their evidentiary burden
    of proving superior title to the disputed 50 acres. Complaint ¶¶ 21-32.
    The McGoverns appealed, and this Court affirmed.        In our decision,
    which East End has attached to the present Complaint at Exhibit C and on
    which it relies in part, we explained the McGoverns had the burden as plaintiffs
    in a quiet title and ejectment action to establish their right to immediate
    exclusive possession of the disputed 50 acre parcel based on the strength of
    their own title, not the weakness of East End’s title. McGovern v. East End
    ____________________________________________
    1 The terms of the agreement of sale required the McGoverns to secure a
    registered survey of their tract, hire an abstractor to establish chain of title,
    and file an action to quiet title. The registered survey of 67.904 acres diverged
    from the 83 acres indicated in the 1950 tax claim deed, see infra, and the
    75.8 acres indicated in the tax assessment records.
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    Gun Club of Schuylkill County, PA, No. 1954 MDA 2013, 
    2014 WL 10588414
    (Pa. Super. unpublished memorandum, filed Sept. 25, 2014 at *4).
    The McGoverns could not carry this burden, we held, because the source of
    their title, to wit, the 1950 tax claim deed, described an 83 acre tract of land
    but otherwise lacked sufficient legal description allowing for a survey to define
    exactly where the boundaries of the property lie. McGovern, at *3; Exhibit
    C.
    With regard to whether East End’s similarly flawed deed relieved the
    McGoverns of their burden of proof to any degree, we observed:
    The McGoverns . . . alleged that they held title by virtue of the
    deeds set forth in their chain of title, including the 1950 Tax Claim
    Bureau deed, and that [East End] had no basis to claim title
    because the disputed land is not included in any deed by East End.
    In its answer, East End admitted that it acquired title by way of
    recorded deed dated February 11, 1963. . . . In that deed, the
    Trustees of East End conveyed to themselves 50 more acres of
    land than was contained in the prior deed for the same land. . . .
    At trial, [McGoverns’ expert] Manhart testified that at no time did
    he specifically identify the 83 acres referenced in the [1950] tax
    claim deed.
    Devon Henne, the expert testifying for East End, did not perform
    a field survey but, instead, examined the legal description of the
    property in order to identify the properties involved and to try to
    come up with some kind of definition of the property. It became
    apparent to Henne that the instant dispute was more of a title
    dispute than a boundary dispute. Henne determined that the
    disputed area, which was described in the Manhart survey, was
    patented to James Everhart on November 19, 1841. Henne
    asserted that the lack of an ability to trace title forward to East
    End and the Dolbins [Purchaser at 1950 tax sale; predecessor to
    McGoverns] creates, from Everhart, a cloud on the title for both
    parties in the disputed area.
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    ...
    [P]laintiff [McGoverns have] the burden of presenting definite and
    certain evidence of the boundary of the property in controversy.
    Where the plaintiff is unable to establish his boundary line by
    adequate legal proof, his action must fail and he is not entitled to
    relief. Hallman v. Turns, 
    482 A.2d 1284
    , 1288 (Pa.Super. 1984)
    (citing Skillman v. Magill, 
    98 Pa. Super. 72
    (1930)).
    The McGoverns, and to some extent Henne, the expert hired by
    East End, have cast doubt on the strength of the title held by East
    End. In their brief, the McGoverns relied on the perceived relative
    weakness of, and cloud on, East End’s title to argue that the court
    should quiet title in their favor. However, unless and until the
    McGoverns have made a prima facie case by showing title
    sufficient upon which to base a right of recovery, the burden does
    not shift, and East End is not required to offer evidence of its title.
    If the McGoverns fail to establish proof of title with the required
    clarity, they cannot recover, no matter how defective East End’s
    title may be.
    McGovern, at *4.
    On March 11, 2015, four months after acquiring the McGoverns’ tract,
    Appellants filed with the Court of Common Pleas of Schuylkill County a quiet
    title and ejectment action in which they claimed superior title to East End over
    the same 50 acres that were in dispute in McGovern. Several months later,
    East End received a Change of Assessment Notice from the Schuylkill County
    Tax Assessment Office informing it of a reduction in its assessment given the
    reduction in the acreage of East End’s property.         East End deduced that
    Appellant’s quiet title and ejectment action triggered the assessment
    reduction, prompting East End to contest the Board’s decision.           Upon the
    Board of Assessment Appeals’ adverse decision upholding the change of
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    assessment, East End filed an assessment appeal to the Court of Common
    Pleas on October 7, 2015.
    One month later, on November 5, 2015, East End filed the present action
    seeking to quiet title of Appellants with respect to the 50 acres in dispute. In
    response to East End’s averment in Paragraph 18 of its Complaint stating it
    derives ownership of the disputed parcel from the February 11, 1963 Deed,
    Appellants filed a timely Answer with New Matter and Counterclaim, in which
    Paragraph 54 identified East End’s ownership interest as deriving solely from
    the Strause 1930 deed, which conveyed to the East End Trustees one hundred
    acres, more or less. East End filed its Reply admitting that the Strause deed
    is within the chain of title but denying the implication that it owns less than
    the land it has occupied since 1930.
    On November 17, 2015, the trial court granted East End’s Petition to
    Intervene and added East End as a defendant in Appellants’ Quiet Title action.
    The court thereafter consolidated Appellants’ Quiet Title action, East End’s
    Quiet Title action, and East End’s Assessment Appeal.
    On May 28, 2018, Appellants filed a Motion for Judgment on the
    Pleadings, with supporting brief, arguing that East End could not, by a
    conveyance to itself, acquire title to 150 acres of land when the previous deed
    conveyed only 100 acres, more or less.       Appellants’ brief in support cited
    authority for the proposition that the term of art “more or less” as used in this
    context has been recognized as an expression of intent to cover slight or
    unimportant inaccuracies, not a large variation measured in many acres.
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    On June 18, 2018, East End filed both its Reply to Appellant’s Motion
    and its own Motion for Judgment on the Pleadings and brief in support. In its
    Motion, East End argued that Appellants’ claims are barred under the doctrines
    of collateral estoppel and res judicata. Appellants filed no response to East
    End’s Motion for Judgment on the Pleadings within 20 days after service.
    On August 22, 2018, East End filed a motion for sanctions and a motion
    to treat East End’s Motion for Judgment on the Pleadings as uncontested
    pursuant to Schuylkill County Rule 208.3(b), infra. The next day, on August
    23, 2018, Appellants filed an answer to East End’s Motion for Judgment on the
    Pleadings.
    On August 28, 2018, the trial court entertained oral argument on the
    parties’ motions for judgment on the pleadings. On July 30, 2019, the trial
    court entered its Order granting East End’s Motion to treat its Motion for
    Judgment on the Pleadings as uncontested because of Appellants’ failure to
    respond with 20 days. Accordingly, the court awarded the relief sought in
    East End’s motion, which consisted of granting East End’s Motion for Judgment
    on the Pleadings, quieting its title to the disputed 50 acre parcel, granting its
    Assessment    Appeal,   and    dismissing   with   prejudice   both   Appellants’
    counterclaim and its separate action to Quiet Title. Appellants’ timely appeal
    followed.
    Appellants present the following questions for our consideration:
    1. [Did] the trial court abuse its discretion in treating [East End’s]
    motion for judgment on the pleadings as uncontested and
    entering judgment in favor of East End and against Appellants?
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    2. [Did] the trial court err in granting East End’s motion for
    judgment on the pleadings?
    Appellant’s brief, at 3.
    Our standard of review for the grant or denial of judgment
    on the pleadings is . . . well settled.
    The standard to be applied upon review of a motion
    for judgment on the pleadings accepts all well-pleaded
    allegations of the complaint as true. The question
    presented by the demurrer is whether, on the facts
    averred, the law says with certainty that no recovery
    is possible. Where a doubt exists as to whether a
    demurrer should be sustained, this doubt should be
    resolved in favor of overruling it.
    Tucker v. Philadelphia Daily News, [ ] 
    848 A.2d 113
    , 131
    ([Pa.] 2004) (citation and internal quotation marks omitted).
    Entry of judgment on the pleadings is permitted under
    Pa.R.[Civ.] P. 1034 which provides for such judgment
    after the pleadings are closed, but within such time as
    not to delay trial. A motion for judgment on the
    pleadings is similar to a demurrer. It may be entered
    when there are no disputed issues of fact and the
    moving party is entitled to judgment as a matter of
    law. In determining if there is a dispute as to facts,
    the court must confine its consideration to the
    pleadings and relevant documents. The scope of
    review on an appeal from the grant of judgment on
    the pleadings is plenary. We must determine if the
    action of the court below was based on clear error of
    law or whether there were facts disclosed by the
    pleadings which should properly go to the jury.
    Citicorp North America, Inc. v. Thornton, 
    707 A.2d 536
    , 538
    (Pa.Super. 1998) (citations omitted). Likewise,
    ...
    This Court applies the same standard as the trial court
    and confines its consideration to the pleadings and
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    documents properly attached thereto. We review to
    determine whether the trial court's action respecting
    the motion for judgment on the pleadings was based
    on a clear error of law or whether there were facts
    disclosed by the pleadings which should properly go
    to the jury. We will affirm the grant of judgment on
    the pleadings only if the moving party's right to
    succeed is certain and the case is so free from doubt
    that trial would clearly be a fruitless exercise.
    Municipality of Mt. Lebanon v. Reliance Ins. Co., 
    778 A.2d 1228
    , 1231 (Pa.Super. 2001) (citations and quotation marks
    omitted).
    Donaldson v. Davidson Bros., Inc., 
    144 A.3d 93
    , 100-101 (Pa.Super.
    2016), appeal denied, 
    169 A.3d 11
    (Pa. 2017).
    In Appellants’ first issue, they assert that the trial court abused its
    discretion in treating East End’s Motion for Judgment on the Pleadings as
    uncontested where Appellants had filed, twenty days prior to East End’s
    motion, its own Motion for Judgment on the Pleadings taking the opposite
    position espoused in East End’s Motion, and where the parties presented oral
    argument on the motions prior to the court’s order declaring East End’s motion
    uncontested nearly one year later.
    East End counters that the trial court properly treated its motion as
    uncontested pursuant to the Pennsylvania Rule of Civil Procedure 208.3(b),
    which provides:
    A court, by local rule, numbered Local Rule 208.3(b), may impose
    requirements with respect to motions listed in the rule for the filing
    of a response, a brief or both. Where a response is required, any
    party opposing a motion governed by Local Rule 208.3(b) shall file
    the response within twenty days after service of the motion,
    unless the time for filing the response is modified by court order
    or enlarged by local rule.
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    Pa.R.Civ.P. 208.3(b).
    Pursuant to Rule 208.3(b), Schuylkill County promulgated Local Rules
    Sch.R.Civ.P. 208.3(b), which provides, inter alia, that a court may deem a
    motion uncontested in the absence of a timely response:
    Every motion not certified as uncontested shall be accompanied
    by a memorandum containing a concise statement of the legal
    contentions and authorities relied upon in support of the motion
    and an affidavit of service upon the party against whom relief is
    sought, or to his attorney. Any party opposing the motion shall
    file and serve such answer or other response that may be
    appropriate, a memorandum in opposition, and an affidavit of
    service upon the other party within twenty (20) days after service
    of the originating motion and supporting brief, unless the
    Pennsylvania Rules of Civil Procedure mandate a period of time
    different than twenty (20) days. In the absence of a timely
    response, the motion may be treated as uncontested. The Court
    may require or permit further briefing, if appropriate.
    Sch.R.C.P 208.3(b). See also Sch.R.C.P. 1034(a) (“The answer and brief of
    any opposing party shall be filed within twenty (20) days from the date of
    service of the original motion”).
    It is undisputed that Appellants did not file a response to East End’s
    Motion for Judgment on the Pleadings within twenty (20) days.        East End
    maintains, therefore, that the trial court had absolute discretion to deem East
    End’s motion uncontested by operation of law.
    In support of its position, East End cites Baranowski v. Am. Multi-
    Cinema, Inc., 
    688 A.2d 207
    (Pa.Super. 1997). In Baranowski, the Appellee
    served interrogatories upon Appellant, who answered some by saying he
    would provide information when he received medical records and left others
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    unanswered where they requested answers only if a particular event had
    occurred, which in his case had not occurred.          Appellee filed a motion to
    compel responses with the trial court, and Appellant responded neither to the
    Appellant’s request nor the court’s order compelling answers. When Appellee
    later filed a Motion for Sanctions, Appellant never put forth his position that
    the interrogatories had already been answered to the best of his ability. The
    court, therefore, granted Appellee’s Motion for Sanctions.       It was not until
    Appellant filed a Motion to Reconsider the sanction order that he advised the
    court of his position for the first time.
    We affirmed the entry of a sanctions order under such circumstances
    where Appellant had failed to bring to the court’s attention his position on the
    contested matter:
    Regardless of Appellant's conviction that he had completely
    answered Appellees' Supplemental Interrogatories, it was his
    responsibility to bring to the attention of the court the reasons for
    his responses, or the lack thereof, once Appellees called them into
    question. It is incumbent for counsel to focus the Judge's
    attention on the disputed questions and answers. Both the fact
    that routine discovery is not filed of record and the volume of
    contested discovery issues presented to a court, requires at a
    minimum, that counsel advance their views when motions for
    sanctions are presented. Appellant's failure to do so constitutes a
    waiver of his arguments, and justifies the entry of a sanction
    order.
    Id., 688
    A.2d at 208–09.
    We find Baranowski inapposite.            Here, in contrast to Baranowski’s
    failure to advance his position in response to multiple party motions and court
    orders in that case, Appellants apprised the court of their views on the issues
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    raised in East End’s Motion for Judgment on the Pleadings in their own such
    Motion filed twenty days earlier.
    Under the circumstances of this case, we consider Appellants’ prior
    Motion for Judgment on the Pleadings contesting East End’s title to the
    disputed 50 acres to have been the functional equivalent of a response to East
    End’s motion for purposes of acquainting the court with the disputed
    pleadings.    Critically, Appellants’ Motion consisted of argument that would
    have simply been replicated in a response to East End’s subsequent motion.
    Moreover, the court opted to permit oral argument on the parties’
    opposing motions, presumably pursuant to the final sentence of Sch.R.Civ.P.
    208.3(b), and thus was made fully aware of the parties’ respective positions
    expressed in such motions. Nevertheless, the court then inexplicably allowed
    nearly one year to elapse prior to ending the litigation by entering its order
    granting East End’s motion as uncontested.2
    In light of such zealous advocacy in this latest installment of what has
    been a protracted history of highly contentious legal disputes over the 50 acre
    parcel in question (as recounted in East End’s complaint and exhibits), and
    finding that Appellant’s Motion for Judgment on the Pleadings already
    ____________________________________________
    2  We note with displeasure the lower court’s failure to discuss in its court-
    ordered Pa.R.A.P. 1925(a) opinion either the significance of having had the
    benefit of two timely-filed competing Motions for Judgment on the Pleadings
    filed by both parties or how highly contested this litigation was during
    pleadings and in oral argument on the parties’ motions. Moreover, the lower
    court does not explain why it apparently accepted Appellants’ belated motion,
    entertained oral argument on the competing motions, and only then, almost
    one year later, entered its order invoking Rule 208.3(b).
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    addressed the very matters subsequently raised in East End’s own such
    motion, we conclude that neither the interests of justice nor the record
    supports the trial court’s exercise of discretion in judging East End’s motion
    as uncontested under Rule 208.3(b).
    The same reasons informing our decision that the motion was contested
    also lead us to conclude that the court erred in entering its order granting East
    End’s Motion for Judgment on the Pleadings, quieting East End’s title over the
    50 acres, striking Appellants’ deed claiming title to the 50 acres, and
    dismissing Appellants’ counterclaim and complaint, all of which appears on the
    face of the order to have been rooted solely in Appellants’ failure to file a
    timely response to East End’s Motion. In reaching this conclusion, we take
    guidance from the strict standard applicable to orders granting motions for
    judgments on the pleadings, which the law regards as a drastic measure
    appropriate “only if the moving party's right to succeed is certain and the case
    is so free from doubt that trial would clearly be a fruitless exercise.” See
    Donaldson, 
    144 A.3d 100-101
    .
    In our view, East End’s right to succeed on its claim was not certain at
    the time of the court’s order. Nor was Appellants’ position taken against the
    complaint during pleadings so lacking as to allow a court to deem East End’s
    complaint admitted and to grant East End’s motion without findings as to the
    facts therein alleged. Critically, the record in this respect does not reflect a
    judicial determination by the trial court that East End established quiet title
    through its pleadings and exhibits.
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    Moreover, to the extent East End argues that our prior decision in
    McGovern precludes Appellants from claiming ownership to the 50 acres in
    question under the principle of res judicata, we observe that such a result,
    even if true, does not, alone, enable it to prevail on its complaint to quiet title.
    In McGovern, 
    discussed supra
    , we clarified that the plaintiff in a quiet title
    action bears the burden to establish his right to the relief requested with proof
    of the strength of his own title, not the weakness of the defendant’s title.
    Notably, McGovern made no determination on whether East End had superior
    title to the McGovern’s title, now held by Appellants, but the decision
    acknowledged that both Appellants and East End’s own expert, Devon Henne,
    declared East End’s title was clouded.
    Id. at *4.
    East End subsequently hired Henne to research East End’s chain of title,
    and he prepared a survey and legal description of the property indicating it
    contains 150.402 acres. The record, however, does not establish that the
    court found East End produced sufficiently strong title to allow for the quieting
    of its title over the challenges Appellants raised in their pleadings and in their
    Motion for Judgment on the Pleadings, which were further advanced at oral
    argument. Instead, the court deemed East End’s motion uncontested, and it
    accordingly entered the above-mentioned orders quieting East End’s title.
    Because we find the court erred in determining Appellants failed to contest
    East End’s motion, and there has been no judicial determination as to whether
    East End presented sufficiently strong evidence of title to overcome
    Appellants’ contrary position, remand is necessary.
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    Based on the foregoing, we vacate the trial court’s order in its entirety
    and remand for further proceedings consistent with this decision.
    Order vacated. Case remanded. Jurisdiction relinquished.
    Judge McLaughlin did not participate in the consideration or decision of
    this case.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/05/2020
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