Ginder, K. & B. v. Eby, C. ( 2023 )

J-A09011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
KENNETH L. & BOBBIE J. GINDER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARISSA L. EBY :
:
Appellant : No. 1103 MDA 2022
Appeal from the Judgment Entered August 4, 2022
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2021-00638
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JULY 28, 2023
Carissa L. Eby lives next door to Kenneth L. and Bobbie J. Ginder in
Annville. In between their homes is a grass-covered area, once planned to
connect two parts of Water Street. That connection was never opened by
Annville. In June 2021, the Ginders filed an action to quiet title against Eby
seeking to claim title to that area in an effort to prevent Eby’s use of the land.
The trial court found that title to the property belonged to the Ginders based
on the subdivision plan that divided the Ginders’ property and the surrounding
area.
In this appeal, Eby claims that the trial court lacked subject matter
jurisdiction, erred by failing to require the Ginders to trace the title of their
property back to the original inception of the street, erred by refusing to take
judicial notice of older deeds, and erred in terminating her rights to the
unopened street.
J-A09011-23
The Ginders and Eby both own homes that are bordered by South King
Street on one side and Water Street, the unopened street, on another side.
See Complaint, 6/3/21, at ¶¶ 1-5. In their action to quiet title against Eby,
the Ginders claimed that they and their predecessors in title are the only
people who have used the portion of Water Street in question and they have
done so exclusively and adversely to anyone else, including Eby. See id. at
¶¶ 6, 10-11, 13-16. The Ginders claimed that they own the portion of Water
Street from their property to halfway through the street by virtue of the street
being unopened but their claim to the entire street was based on their adverse
possession of it. See id. at ¶¶ 12, 16-17.
Eby answered the complaint, denying the Ginders’ claims of adverse
possession, asserting her own, other neighbors and the public’s use of the
land in question. See Answer and New Matter, 6/28/21 at ¶¶ 6, 10-17. Eby
also asserted her regular and notorious use of the property in question and
requested dismissal of the complaint. See id. at ¶¶ 18-26.
A bench trial was held. The trial court’s decision regarding the title to
Water Street hinged on whether the title should revert only to the Ginders,
because their lot was included in the subdivision plan with the unopened
street, or whether Eby’s property, added later, has title to the half of the street
closest to her property. See Adjudication, 3/4/21, at 15. Following its review
of the law, the trial court determined that title to an unopened street reverts
solely to property owners whose title extends back to the original plan that
dedicated the street in question. See id. The trial court found that the Ginders
-2-
J-A09011-23
possessed title to the land in question, and even if they did not, they would
have acquired it through adverse possession and the doctrine of consentable
lines due to their use of the property and Eby’s shrubbery that constituted a
boundary line around her property. See id. at 21-22. Eby filed this timely
appeal.
On appeal, Eby first complains that the trial court lacked subject matter
jurisdiction. Eby argues that all the property owners in the area should have
been named in the lawsuit and they are indispensable parties because they all
possess a right to the disputed portion of Water Street. See Appellant’s Brief
at 13-14.
The question of whether a trial court possesses subject matter
jurisdiction is one of law and our standard of review is de novo. See Domus,
Inc. v. Signature Building Systems of PA, LLC, 252 A.3d 628, 634 (Pa.
2021). Eby focuses on and correctly argues that failing to join an indispensable
party to a lawsuit implicates the trial court’s subject matter jurisdiction. See
Strasburg Scooters, LLC v. Strasburg Rail Road, Inc., 210 A.3d 1064,
1069 (Pa. Super. 2019). “The failure to join an indispensable party is a non-
waivable defect that implicates the trial court’s subject matter jurisdiction.”
Id. (citation omitted).1
____________________________________________
1 As Eby’s challenge to subject matter jurisdiction is non-waivable, she did not
waive this argument by failing to present it prior to or during trial in this
matter. With that said, we note that this matter is an exemplar of the wisdom
of the general rule requiring issues to be presented to a trial court in the first
(Footnote Continued Next Page)
-3-
J-A09011-23
“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.” Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 29 (Pa.
Super. 2015) (citation omitted). Therefore, if no litigant seeks relief from a
person and that person’s rights would not be affected by any decision rendered
in the litigation, that person cannot be indispensable to the case. See id.Trial courts must weigh four considerations in their effort to determine
whether a party is indispensable: whether they hold an interest in the claim,
what the nature of that interest is, if that interest is essential to the merits of
the case, and whether their due process rights would be violated by the
outcome of the case. See Strasburg Scooters, 210 A.3d at 1069. Ultimately,
a party is indispensable when the case cannot be decided fairly without their
involvement. See id.We have held that indispensable parties in an action to quiet title are
those that claim title to the property in dispute. See Northern Forests, 130
A.3d at 29. Eby argues that the trial court’s rulings impact the rights not only
of nearby property owners but also the public at large. She highlights the
court’s conclusion that the Ginders have obtained title to the unopened stretch
____________________________________________
instance. Prior to Eby’s post-trial motions, neither the parties nor the trial
court were focused on the issue of other indispensable parties. Upon being
alerted to the issue, however, the trial court undertook a thorough review of
the issue in light of the evidence of record and concluded that the language it
used in its adjudication could be clarified to more clearly respect the interests
of third parties. While the issue would have been preserved in any event, the
trial court’s efforts in clarifying its adjudication clearly served the interests of
justice.
-4-
J-A09011-23
of Water Street through adverse possession as “[p]articularly troubling[.]”
Appellant’s Brief, at 15.
How does one square the finding that adverse possession, with its
required element of exclusivity, has been established, with the
[c]ourt’s caveat that the rights of non-parties to use the street are
not impacted? If others have the right to use the street, should
not the element of exclusivity have been defeated?
Id. See Estojak v. Mazsa, 562 A.2d 271, 274-275 (Pa. 1989).
However, Eby’s argument fails because she has not established that any
party is indispensable. First, her argument does not acknowledge that the trial
court’s amended order was explicitly confined to the “disputed area.” See
Order of Court, filed 7/13/2022, at ¶ 5. And the court explicitly defined the
“disputed area” as “a strip of land which adjoins both parties’ properties on
[the unopened portion] of Water Street.” See Adjudication, filed 3/4/2022, at
2; see also Trial Court Opinion, filed 7/13/2022, at 2 (“[Forbes’s] property
does not abut the portion of unopened Water Street which constitutes the
disputed area in this litigation.”). As such, the order is limited in scope to just
that section of unopened Water Street that adjoins both Eby’s and the Ginders’
properties. While we acknowledge that there is a reasonable probability that
Forbes and Clements have property interests in other portions of unopened
Water Street, the same cannot be said, in the absence of further evidence,
about the disputed area.
Second, Eby failed to present any evidence that could lead a fact-finder
to reasonably infer that Forbes and Clements have any property interest in
-5-
J-A09011-23
the disputed area. While Eby did present some evidence that Forbes and
Clements have used other portions of unopened Water Street, she does not
identify, and we cannot locate, any evidence that they made use of the
disputed area.
Finally, the trial court’s amended adjudication clarified that if a third
party could establish any rights in the disputed area, the order did not
extinguish them. See Order of Court, filed 7/13/2022, at ¶ 6.
Under these circumstances, we conclude Eby has failed to identify any
other indispensable parties to this lawsuit. As a result, Eby’s first argument on
appeal merits no relief.
Eby next argues that the trial court erred in finding in favor of the
Ginders because they did not reach their burden of proof at trial. See
Appellant’s Brief at 4. Eby claims the trial court erred in failing to require the
Ginders to show title from a time when her property and their property were
commonly owned and to show proof of the original inception of Water Street.
See id. Eby further argues that the trial court ignored a deed from 1941 that
referred to Water Street. See id.There is no doubt the Ginders bore the burden of proving their title in
the trial court. See Landis v. Wilt, 222 A.3d 28, 34 (Pa. Super. 2019). Our
review of the trial court’s finding in favor of the Ginders we are limited to
determining whether the finding was supported by competent evidence and
free of legal error. See id.-6-
J-A09011-23
In undertaking our review, we must view the evidence in the light most
favorable to the Ginders. See id. We must not disturb the trial court’s finding
if we find no error of law or abuse of discretion. See id. “An abuse of discretion
is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa.
Super. 2020) (citations omitted).
At trial, the Ginders introduced a map showing the original plan for the
subdivision containing their property. See Exhibit P-7. That plan, designed in
1974 to subdivide what was then the Estate of Anthony Clodoveo into smaller
properties, shows their property and Water Street. See N.T., 11/18/21, at 35.
The Ginders established their chain of title from the subdivision plan which
created their property. Bobbie Ginder’s parents received the property from the
Administrator of the Clodoveo Estate in 1979. See id. at 84, Exhibit P-5.
Bobbie Ginder received the property from her parents in 1984. See N.T.,
11/18/21, at 83-4, Exhibit P-3, P-4. The Ginders have resided on the property
ever since, with the belief that the unopened Water Street was part of their
property. See N.T. 11/18/21, at 82, 86-8.
Eby’s arguments regarding the Ginders’ failure to carry their burden of
proof include references to facts and exhibits not in the certified record and
therefore not considered by the trial court. See Appellant’s Brief at 21-22. Eby
also focuses on the deed from 1941 which conveyed land to Anthony
-7-
J-A09011-23
Clodoveo, prior to the creation of the subdivision. See Exhibit P-10. This deed
refers to Water Street and Eby argues that the existence of Water Street prior
to 1974 negates the trial court’s findings. See Appellant’s Brief at 28.
The trial court weighed this evidence in its decision and still found that
the unopened portion of Water Street was dedicated to Annville in the 1974
subdivision plan. See Trial Court Opinion, filed 7/13/2022, at 14-15. As such,
the unopened portion reverted to the Ginders when the township failed to
open it within the twenty-one-year statutory period. See Landis, 222 A.3d at
34.
In contrast, Eby’s repeated references to Water Street implicate the
street as a whole, despite the trial court’s clear indication that this case refers
only to the unopened portion of the street located in between Eby’s property
and the Ginders’. See Order, 7/13/22, ¶ 2. Based on our review of the record,
we find the trial court’s conclusion to be supported by the competent evidence
presented at trial. Eby’s second issue on appeal merits no relief.
Eby next argues that the trial court was required to take judicial notice
of several deeds that she presented in a post-trial motion. See Appellant’s
Brief at 28. After filing her post-trial motions, Eby filed a request for judicial
notice in support of her post-trial motions. See Motion, 4/1/22. Eby attached
to her motion a list of deeds tracing lines of title to various addresses located
around the property in question. See id. at 5-7. The trial court denied Eby’s
request. See Order, 5/2/22.
-8-
J-A09011-23
Eby argues that the rules of evidence strictly require the trial court to
take judicial notice as she requested. See Appellant’s Brief at 28-29. The rule
on judicial notice provides:
(a) Scope. This rule governs judicial notice of an adjudicative fact
only, not a legislative fact.
(b) Kinds of Facts that may be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute
because it:
(1) is generally known within the trial court’s territorial
jurisdiction; or
(2) can be accurately and readily determined from sources
whose accuracy cannot be questioned
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the
court is supplied with the necessary information.
Pa.R.E. 201.
This rule, contrary to Eby’s argument, does not establish a blanket
requirement that all proposed evidence be judicially noticed. The purpose of
judicial notice is to avoid the procedure of formally introducing evidence in the
narrow situations where the fact to be introduced is so commonly known that
evidence proving it is needless. See In re Estate of Krasinski, 188 A.3d
461, 474 (Pa. Super. 2018) (en banc). Here we are reviewing the trial court’s
ruling on admission of evidence, and we note that such a ruling is within the
trial court’s sound discretion and we will only disrupt it if we find an abuse of
discretion or error of law. See U.S. Bank, N.A. v. Pautenis, 118 A.3d 386,
391 (Pa. Super. 2015).
-9-
J-A09011-23
The record before us reflects that Eby requested a two-page long list of
deeds be judicially noticed, post-trial, with no explanation as to their content
or value to the case and no proof of their existence or validity. See Motion,
4/1/22. Eby argues that she supplied the information and the trial court must
take judicial notice pursuant to Pa.R.E. 201(c)(2). See Appellant’s Brief at 29.
However, we agree with the trial court that Rule 201 does not override
Pa.R.Civ.P. 227.1(b)(1).
Rule 227.1 governs post-trial motions in civil matters. And Rule
227.1(b)(1) requires all issues raised in a post-trial motion to have preserved
either prior to or during trial. See, e.g., Thomas Jefferson University v.
Wapner, 903 A.2d 565, 572 (Pa. Super. 2006) (“The purpose of Rule
227.1(b) is to provide the trial court with an opportunity to review and
reconsider its earlier rulings and correct its own error.” (citation omitted)).
Here, it is undisputed that Eby failed to preserve the relevance and admission
of these deeds prior to or during trial. Eby merely argues that Pa.R.E. 201
takes precedence over Pa.R.Civ.P. 227.1(b)(1).
We disagree. Pursuant to Pa.R.Civ.P. 129(c), “[e]xceptions in a rule shall
be construed to exclude all others.” Importantly, Rule 227.1(b) provides an
exception the preservation requirement in subsection (b)(1): “[e]xcept as
otherwise provided by Pa.R.E. 103(a) …” Since our Supreme Court provided
an explicit exception for Rule of Evidence 103(a), we must construe Rule
227.1(b) as explicitly excluding exceptions for any other Rule of Evidence.
Therefore, a trial court is not required to take judicial notice of evidence
- 10 -
J-A09011-23
submitted for the first time in post-trial motions. We therefore conclude the
trial court did not err in refusing to take judicial notice of the deeds proffered
by Eby for the first time in her post-trial motions.
Finally, Eby argues that the doctrines of adverse possession and
consentable lines are not sufficient to terminate her rights. See Appellant’s
Brief at 30. In order to claim title by adverse possession the claimant must
prove actual, continuous, exclusive, visible, notorious, distinct and hostile
possession of the land in question, over a period of twenty-one years. See
Shaffer v. O’Toole, 964 A.2d 420, 423 (Pa. Super. 2009). Importantly,
however, the trial court did not primarily rely on either the doctrine of adverse
possession or consentable lines in finding that the Ginders had title to the
disputed property. Instead, the trial court explicitly found that the land in
question had automatically reverted to the Ginders’ possession when Annville
failed to open the disputed portion of Water Street. The trial court only
discussed adverse possession and consentable lines as alternative theories it
could have relied upon if its conclusion about reversion were to be found in
error. As such, even assuming without so deciding that Eby is correct in her
arguments, she is due no relief, as she has failed to convince us that the trial
court erred in concluding that title reverted to the Ginders after Annville failed
to open that portion of Water Street.
- 11 -
J-A09011-23
Judgment affirmed.
Judge Kunselman joins the memorandum. Judge Olson concurs in the
result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
- 12 -