Kunkle, E. v. Poydence, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
E. DALE KUNKLE AND GARY A. : IN THE SUPERIOR COURT OF
FIRESTONE : PENNSYLVANIA
:
:
v. :
:
:
ROBERT G. POYDENCE :
: No. 1145 WDA 2022
Appellant :
Appeal from the Order Entered September 2, 2022
In the Court of Common Pleas of Westmoreland County
Civil Division at No. 1607-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JULY 14, 2023
Robert G. Poydence (Appellant) appeals pro se from the trial court’s
order denying his motion to strike the praecipe for discontinuance filed by E.
Dale Kunkle (Kunkle) and Gary A. Firestone (Firestone), in this dispute over
the boundary line between the parties’ properties. We affirm.
In the parties’ most recent appeal, we recounted the following facts and
procedural history:
The parties are neighboring landowners with property
located in the “Ralph Miller Plan of Lots,” recorded in the
Westmoreland County Recorder of Deeds Office on February 27,
1980 at Plan Book Volume 87, page 169. Ralph Miller [(Miller)]
made a series of conveyances of the subject [l]ots, including
conveying Lots 4 and 5 in the Original Subdivision to [Carl M.]
Vince and his wife in 1981, conveying Lot 2 to Gary J. Hopkinson
in 1983, conveying Lot 1 to [Appellant] in 1985, and conveying
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* Retired Senior Judge assigned to the Superior Court.
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Lot 3 to Charles Vernosky in 1985. [Hopkinson later conveyed Lot
2 to Kunkle and his wife, Helen Kunkle].
After purchasing Lot 1 in 1985, [Appellant] had a survey of
his land completed, which found the existence of a 50-foot strip
of untitled ground. Accordingly, [Appellant] commenced an action
(Westmoreland County Court of Common Pleas No. 4980 of 1989)
against [] Miller and all other [g]rantees, alleging that he was the
owner of the untitled 50 feet, which resulted in a non-jury
verdict[.] …. [The trial court] concluded [Appellant] had
received the land he bargained for when he purchased Lot
1 and that he was not the owner of the 50-foot strip of
excess land. [Appellant] appealed that decision and the
[decision] was affirmed by the Superior Court. Poydence v.
Miller, [599 A.2d 708 (Pa. Super. 1991) (unpublished
memorandum)].
Subsequently, in 1995, a second proceeding between the
parties was filed at [] Westmoreland County Court of Common
Pleas[] Docket No. 8870 of 1995. This time, Kunkle [] [filed an
action to] quiet title[,] seeking a determination that he was the
owner of the 50-foot strip of land at issue in the previous case.
The trial court dismissed that action, in part, on the basis of
collateral estoppel and res judicata, but also because no party
could prove with certainty where the excess ground was located.
[The trial court] commented in Paragraph 21 of [its] Findings of
Fact that two surveyors testified at trial and that neither was
convincing.
….
[The trial court] concluded, “Although everyone
agrees that there is excess ground, no party has proven
with certainty where the excess is located.” Accordingly,
the court dismissed [the c]omplaint as the[ parties] failed
to prove where the excess ground was located and failed
to prove that they owned the parcel of ground claimed.
In 2013, [Appellant] filed an emergency petition alleging
[that] Kunkle cut and/or trimmed bushes in the disputed excess
land, and [the trial court] ordered on August 26, 2013[,] that the
parties maintain the status quo of the properties, including a
prohibition from erecting fencing, obstructing the areas, and/or
cutting bushes or other landscaping. [The trial court] reinforced
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said status quo ruling on December 26, 2013, when it dismissed
[Appellant’s] emergency petition, which decision was affirmed by
the Superior Court. [See Kunkle v. Poydence, 116 A.3d 685(Pa. Super. 2014) (unpublished memorandum).]
On September 12, 2014, [] Miller recorded a “Corrective
Plan of the Ralph Miller Subdivision” (hereinafter, Corrective
Subdivision [plan]) in the Westmoreland County Recorder of
Deeds. Said Corrective Subdivision [plan] adds additional land to
Lots 2, 3, 4 and 5, while relocating Lot 1, which is owned by
[Appellant]. The added land was deeded from Miller and his wife,
Shelly A. Miller (collectively, “the Millers”) to Kunkle and Vince.
[Kunkle and Vince executed the Corrective Subdivision plan;
Appellant did not execute the Corrective Subdivision Plan.]
Accordingly, on December 5, 2015, [the trial court] dismissed
[the] motion requesting permission to record corrective deeds.
Kunkle v. Poydence, 216 A.3d 381 (Pa. Super. 2019) (unpublished
memorandum at 1-3) (citation and footnote omitted, emphasis added).
Kunkle and Vince thereafter filed a complaint for declaratory judgment.
We explained:
[Kunkle and Vince] requested the trial court “remove the status
quo requirement and allow the deeds from the Millers to [] Kunkle
and [] Vince and the deed from [] Kunkle to [] Vince to be
recorded.” Complaint for Declaratory Judgment, 4/5/2016, at
¶ 14. In response, [Appellant] filed preliminary objections
averring that [the declaratory judgment] complaint should be
dismissed or appropriately amended because, inter alia, [Kunkle
and Vince] failed to join several indispensable parties, including
the Millers. [Appellant’s] Preliminary Objections, 10/31/2016, at
¶¶ 11-14. … Following a hearing, the trial court overruled
[Appellant’s] preliminary objections, finding, inter alia, that the
“alleged necessary parties, as identified by [Appellant], are not
necessary parties …. Order, 6/21/2017, at ¶ 4.
Eventually, [Appellant] filed a motion for summary
judgment. [Appellant] alleged that the complaint initiated by
[Kunkle and Vince] was barred by collateral estoppel and res
judicata, or in the alternative, that the Corrective Subdivision plan
was null and void because the Millers “did not hold title to the
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property referenced in the deed and, as such, [] had no authority
to make the conveyance.” Motion for Summary Judgment,
5/30/2018, at ¶¶ 37-64. A hearing was held on August 8,
2018. On August 13, 2018, the trial court issued an opinion and
order wh[ich] granted [Appellant’s] motion for summary
judgment on the basis of collateral estoppel and res judicata,
dismissed [the declaratory judgment] complaint with prejudice,
struck the Corrective Subdivision plan, reinstated the original
subdivision plan, and directed the parties to maintain the status
quo. Id. at 7-8.
Kunkle, 216 A.3d 381 (Pa. Super 2019) (unpublished memorandum at 4-5)
(footnote omitted).
Kunkle and Vince timely appealed, and this Court reversed the grant of
summary judgment in favor of Appellant. We concluded:
[T]he parties’ dispute as to whether the Millers had the right and
ability to convey the disputed land and to execute the Corrective
Subdivision plan directly implicates the Millers and their interests.
Similarly, both the trial court’s striking of the Corrective
Subdivision plan and the court’s directive that the status quo
remain in place, further demonstrate the extent to which the
Millers are connected to this action. The Millers were parties to
the corrective deeds, and it was Miller who filed the Corrective
Subdivision plan with the Westmoreland County Recorder of
Deeds. Without being parties to this action, the Millers were
unable to defend their positions and/or dispute [Appellant’s]
position that Miller did not have the authority to issue
the Corrective Subdivision plan. As such, we find that allowing
the case to proceed without the Millers would deprive them of due
process. Accordingly, the Millers are indispensable parties
to the instant action.
Id. at 7-8 (emphasis added). We therefore vacated the summary judgment
order and remanded for either joinder of the Millers or dismissal of the action.
Id. at 8.
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On remand, the trial court ordered Kunkle and Vince to join all
indispensable parties. Order, 5/9/19. The trial court explained what next
transpired:
Despite numerous status conferences, and agreements between
the parties to negotiate a settlement, the Millers were never added
as indispensable parties, an agreement was never reached, and
the merits of the action were never put before the [trial c]ourt.
On April 9, 2021, [Appellant] filed a Motion to Dismiss based on
the lack of activity and failure to join the Millers. In response, the
parties again asked for time to attempt a resolution of the matter.
There is no evidence of record that [Appellant] ever put his Motion
to Dismiss before the [trial court] for a resolution on the merits.
In fact, no further action was taken by either party until almost
an entire year later on August 5, 2022. At that time, [Kunkle and
Firestone1] filed a praecipe to discontinue the action pursuant to
Pa.R.C.P. 229(a).
In response, [Appellant] filed a motion asking [the trial
court] to strike [the] discontinuance. Not only did [Appellant]
want a dismissal with prejudice, but he also wanted the [trial
court] to grant him the relief he requested throughout the
action[,] despite the merits never being heard by the [trial court]
and the Millers never being added as indispensable parties. After
oral argument, [the trial c]ourt entered an order on September 2,
2022 denying [Appellant’s] motion to strike the discontinuance….
Trial Court Opinion, 10/27/22, at 2 (footnote added).
Appellant timely appealed and filed a court-ordered concise statement
pursuant to Pa.R.A.P. 1925(b).
Appellant presents the following issues for review:
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1 By deed dated September 16, 2020, Vince’s agent conveyed to Firestone
Lots 4 and 5 in the Ralph Miller Plan of Lots. Petition in Support of
Substitution, 10/16/20. The trial court granted substitution on October 16,
2020.
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I. Did the trial court abuse its discretion and/or err[] as a
matter of law by denying Appellant’s petition to strike off
discontinuance and memorandum of law in support thereof,
which is based on valid [Pa.R.C.P.] 229(c) law and case law?
II. Did the trial court abuse its discretion and/or err[] as a
matter of law by not ruling and moving expeditiously on
Appellant’s motion to dismiss, with prejudice, and void and
strike their unlawfully recorded deed and plans, when
plaintiffs failed to add and join the indispensable parties as
court ordered, and thus not maintaining judicial economy
and efficiency?
III. Did the trial court err[] in permitting attorney, Mr. Francis
Murrman, Esq., to appear in court purportedly on behalf of
the deceased plaintiff, E. Dale Kunkle[?]
Appellant’s Brief at 7 (capitalization modified).
Appellant first argues the trial court improperly denied his motion to
strike the discontinuance. Id. at 20. Appellant claims he has “endure[d] the
burden of litigating three lawsuits and multiple frivolous motions/petitions
over a span of thirty-five (35) years, all claiming the same issues[.]” Id. at
21. Appellant recognizes this Court’s prior holding that “indispensable parties
be added or the case be dismissed.” Id. at 22. According to Appellant, Kunkle
and Firestone failed to act on this Court’s directive. Id. at 22-23. Appellant
asserts that when Kunkle died, Kunkle’s son, who was the
administrator/trustee of Kunkle’s estate, did not enter an appearance. Id. at
23.
Appellant maintains that discontinuance was improper because of his
pending motion to dismiss the action, which he had filed on August 16, 2021.
Id. at 27. Appellant claims he is entitled to the resolution of his motion, which
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relied on prior dispositive rulings by the trial court regarding boundary lines
between the properties. Id.
Appellant cites Nichols v. Horn, 525 A.2d 1242 (Pa. Super. 1987), to
support his claim he suffered prejudice as a result of the discontinuance.
Appellant’s Brief at 27-28. Appellant argues the trial court should have
granted the relief he requested in his motion to dismiss. He maintains the
“corrective” plan and deeds must be stricken and voided, and
[Appellant’s] eastern boundary line, be set and established per
the original Miller Plan. If such instruments were allowed to stand
of record, it would create a perpetual cloud on [Appellant’s] title,
significantly limiting his legal right to freely market his real
property and still cloud his title caused by the fraudulent deeds
and plan. It is critical to dismiss with prejudice in order to prevent
[Kunkle and Firestone] from commencing any additional litigation
which serves only to impair [Appellant’s] title.
Id. at 29.
Pertinently, Pennsylvania Rule of Civil Procedure 229 provides:
Rule 229. Discontinuance
(a) A discontinuance shall be the exclusive method of voluntary
termination of an action, in whole or in part, by the plaintiff before
commencement of the trial.
....
(c) The court, upon petition and after notice, may strike off a
discontinuance in order to protect the rights of any party from
unreasonable inconvenience, vexation, harassment, expense, or
prejudice.
Pa.R.C.P. 229(a), (c).
We have explained:
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A discontinuance in strict law must be by leave of court, but
it is the universal practice in Pennsylvania to assume such leave
in the first instance. However, the discontinuance is subject
to be stricken for cause shown:
The causes which will move the court to withdraw its
assumed leave and set aside the discontinuance are
addressed to its discretion, and usually involve some
unjust disadvantage to the defendant or some other
interested party[.]
A discontinuance that is prejudicial to the rights of others should
not be permitted to stand even if it was originally entered with the
expressed consent of the court.
Pohl v. NGK Metals Corp., 936 A.2d 43, 46-47 (Pa. Super. 2007) (citations
omitted, emphasis added). In deciding whether to strike a discontinuance,
the trial court must “consider all facts and weigh equities. Further, the trial
court must consider the benefits or injuries which may result to the respective
sides if a discontinuance is granted.” Id. at 47 (citation omitted).
Appellant cites Nichols, where this Court stated:
We think prejudice has been shown where, as here, a motion for
summary judgment has been filed and the party seeking to strike
the discontinuance would be entitled to summary judgment if the
discontinuance was not allowed.
Nichols, 525 A.2d at 1243 (citation omitted).
Instantly, the trial court rejected Appellant’s claim that he suffered
prejudice resulting from the discontinuance. The court reasoned:
In his 1925(b) statement, [Appellant] [] argued that the
extent of the litigation caused him harassment, the discontinuance
deprived him of the dispositive rulings in the action, and the
discontinuance allows [Kunkle and Firestone] to circumvent the
court’s past judgments by refiling the same claims against
[Appellant].
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However, [Appellant] was not prejudiced by [the]
discontinuance because it was impossible for the case to reach a
final resolution other than dismissal. Three years have passed
since the Superior Court overruled summary judgment and [the
trial court] directed [Kunkle and Firestone] to join the Millers. The
consequence of a failure to do so was dismissal. No one was able
to join them, and the discontinuance … reflects the fact that
[Kunkle and Firestone] cannot proceed with their claim as a result.
The actual inconvenience, harassment, expense and prejudice
would come as the result of permitting the action to remain an
open case when [Kunkle and Firestone] realistically cannot move
forward to a final resolution.
Although [Kunkle and Firestone] could potentially
refile regarding the same strip of land, the procedural
posture of both this case and the case held before [the trial
court] would make that refiling difficult, as [the court] held
that the location and ownership of the land could not be
determined. Further, they would have to ensure at the time of
filing that the Millers were properly joined to satisfy the Superior
Court ruling. In addition, [the trial court’s] grant of summary
judgment was not overruled by the Superior Court on its merits,
and [Kunkle and Firestone] would still have to overcome the
issues of res judicata and collateral estoppel. Therefore, the
mere fact that a refiling might occur does not prejudice
[Appellant] and was insufficient to justify striking the
discontinuance.
Also, [Appellant] would not be deprived of any
dispositive rulings in this action. A review of the record
shows that there were no dispositive rulings. Every order
entered merely maintained the status quo, which was the ruling
by [the trial court] that the location and ownership of the land
could not be determined. The discontinuance in this action
has no effect on that ruling, and there is no way for [Kunkle
and Firestone] to circumvent that ruling. Further, even if
[the trial court] dismissed the action with prejudice, it
would not eliminate the fact that the land at issue is still in
dispute, with no clear determination as to its ownership or
location. The unresolved nature of the factual dispute leaves the
matter ripe for potential litigation whether the matter is
discontinued with or without prejudice. Although [Appellant]
attempts to resolve this issue by asking [the trial court] to strike
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the new deeds/plan, the [c]ourt cannot provide that relief because
of the Superior Court ruling. Since [Appellant] is not deprived of
any dispositive rulings, and no dispositive rulings can be made
based on the procedural posture of the case, [Appellant] failed to
establish sufficient prejudice for th[e trial c]ourt to strike the
discontinuance.
Trial Court Opinion, 10/27/22, at 4-5 (emphasis added).
The trial court’s analysis is supported by the record and legally sound.
Appellant has failed to establish that striking the discontinuance would protect
him from “unreasonable inconvenience, vexation, harassment, expense, or
prejudice.” Pa.R.C.P. 229(c). Thus, Appellant’s first issue does not merit
relief. See Trial Court Opinion, 10/27/22, at 4-5.
In his second issue, Appellant challenges the trial court’s failure to
“expeditiously” dismiss Kunkle and Firestone’s action for “not maintaining
judicial economy and efficiency.” Appellant’s Brief at 36. Appellant does not
explain how the trial court’s failure to act sooner warrants the striking of the
discontinuance. As the trial court recognized, it lacked jurisdiction to strike
the new deeds and plans challenged by Appellant, based upon this Court’s
prior ruling. See Kunkle, 216 A.3d 381 (unpublished memorandum at 8).
Appellant’s claim of regarding judicial economy, in the absence of prejudice,
does not support striking the discontinuance. See Pa.R.C.P. 229(c).
Appellant’s issue lacks merit.
Finally, in his third issue, Appellant argues the trial court erred in
allowing Francis Murrman, Esquire (Attorney Murrman), to appear in court on
behalf of Kunkle when Kunkle was deceased. Appellant’s Brief at 44. Our
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review discloses Appellant did not raise this issue during Attorney Murrman’s
appearance, in Appellant’s motion to dismiss, or in his motion to strike the
discontinuance. In his memorandum of law in support of his motion to strike
the discontinuance, Appellant mentioned that Attorney Murrman did not
represent a living party. Memorandum, 9/2/22, at 6. However, Appellant
failed to seek relief on this basis or make a legal argument in support of relief.
See id. As such, the trial court was not afforded the opportunity to address
this issue until after Appellant filed his notice of appeal. Accordingly, we
conclude Appellant has waived this issue. See Pa.R.A.P. 302(a) (stating issue
cannot be raised for the first time on appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2023
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