J-A15041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
JACK DUNCAN AND JEFFREY : IN THE SUPERIOR COURT OF DUNCAN : PENNSYLVANIA : : v. : : : CHARTIERS NATURE CONSERVANCY, : INC. : No. 402 WDA 2022 : Appellant
Appeal from the Order Dated March 7, 2022 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. GD-18-1327
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: September 5, 2023
Chartiers Nature Conservancy, Inc. (the Conservancy) appeals from the
order entered in the Court of Common Pleas of Allegheny County (trial court)
ordering it to file an action in ejectment against Jack Duncan and Jeffrey
Duncan (the Duncans), the plaintiffs in the underlying action to quiet title by
adverse possession.1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The Duncans maintain that this Court lacks jurisdiction because the Conservancy has appealed from a non-appealable interlocutory order. However, in Seven Springs Farm, Inc. v. King, 344 A.2d 641, 643 (Pa. Super. 1975), this Court concluded that an order compelling a defendant to bring an action of ejectment or be forever barred from asserting any right, lien, title or interest inconsistent is “a final order, as to those proceedings, (Footnote Continued Next Page) J-A15041-23
I.
The Duncans “have been or are the owners of certain property located
in the Borough of Crafton, Allegheny County, designated as Lot 105-H-200”
(the Duncan Property). (Second Amended Complaint, at ¶ 3). On April 1,
2016, the Conservancy obtained a deed from the Artingers for Lot 105-M-202
(hereinafter the Artinger Lot) and it obtained a quit claim deed from PNC bank
for Lot 105-M-198 (hereinafter the PNC Lot) on May 25, 2000. (collectively,
Property). On January 2, 2020, the Duncans filed a second amended
complaint to quiet title by adverse possession2 of the Artinger Lot and the PNC
Lot.
from which appeal lies.” Seven Springs Farm, 344 A.2d at 643 n.4. Moreover, although the order does not expressly rule on the Conservancy’s preliminary objections, the order was issued as the result of a hearing held on the allegations contained in them.
2 “Adverse possession is an extraordinary doctrine that permits one to achieve
ownership of another’s real property by operation of law.” Freed v. Guilday, 287 A.3d 880, at *3 (Pa. Super. filed Oct. 20, 2022) (unpublished memorandum) (citation omitted). “The doctrine is dependent upon an individual’s possession of another’s property for an enumerated period of time authorized by statute.” Id. (citations omitted); see also 68 P.S. §§ 81-88 (governing claims by adverse possession); and 42 Pa.C.S.. § 5530 (setting forth a 21-year limitations period in actions for the possession of real property). “Through these statutes, the General Assembly ‘encourages those who diligently develop and improve the land as against those who are content to hold the bare legal title inactively. . . . Thus, in Pennsylvania, one who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years.” Freed, 287 A.3d 880, at *3 (citing Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 35 (Pa. Super. 2015) (quoting Baylor v. (Footnote Continued Next Page)
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The Duncans averred that “[f]or more than 40 years, since 1977 [they]
have been in open, notorious, exclusive, continuous, uninterrupted adverse
possession of [the Artinger and PNC Lots] and have used them exclusively in
their business” “of sorting, shredding, blending and selling soil, gravel and fill
materials as well as storing tools and equipment” to the exclusion of all other
parties. (Id. at ¶¶ 9, 11). According to the second amended complaint, the
Conservancy “has not entered onto the properties nor attempted to exclude
or eject the [Duncans] from [the Lots].” (Id. at ¶ 10).
The second amended complaint averred that the Duncans “are entitled
to a judgment quieting title in them, declaring them as the sole owners of the
[the Property] by adverse possession” “[a]s a result of the [their] continued,
uninterrupted and exclusive use of the premises to work on the sorting,
blending, storing and shredding of soil and gravel into fill material and storing
tools and equipment[.]” (Id. at ¶ 11).
The Conservancy filed unverified preliminary objections to the second
amended complaint arguing that there was a factual issue about whether the
Duncans are in possession of the Artinger Lot and the PNC Lot and that the
Duncans’ sole remedy is to file an action in ejectment. (Preliminary
Soska, 658 A.2d 743, 744-45 (Pa. 1995)) (one internal citation omitted; reformatted).
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Objections, 1/14/20, at ¶¶ 10-14).3 The court conducted an evidentiary
hearing on the possession issue on October 13, 2021, at which time the parties
admitted evidence and multiple witnesses testified. The Conservancy filed a
post-hearing brief in support of the preliminary objections in which it
maintained that the evidence proved that the disputed the Artinger Lot and
the PNC Lot were unenclosed woodlands and the Duncans did not establish
adverse possession of them. (See Conservancy Brief, 11/16/21, at 9-14) The
Duncans filed a post-hearing brief in opposition to the preliminary objections
arguing that the issue before the court at that stage of the proceedings was
only whether to overrule or sustain the preliminary objections and that, not
only had they sufficiently pleaded an action to quiet title by adverse
possession in the complaint, but the evidence at the hearing also established
3 In this case, a question of jurisdictional fact was raised in preliminary objections as to whether the Duncans could maintain a quiet title action because they were not in possession. Where preliminary objections raise issues of fact, the Rules of Civil Procedure provide that “the court shall consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2); see also Devarmin v. Consol. Rail Corp., 931 A.2d 1, 14 (Pa. Super. 2007) (“[I]f an issue of fact is raised by preliminary objections ... the [trial] court may not reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing”). Our scope of review where evidence is taken in resolving preliminary objections is the same as in reviewing jury trial verdicts which is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. See Stephan v. Waldron Elec. Heating & Cooling, 100 A.3d 660, 664–65 (Pa. Super. 2014).
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that they were in actual possession of the Artinger Lot and the PNC Lot. (See
Duncans’ Brief, 12/03/21, at 2-8).
On March 7, 2022, in resolving the preliminary objections’ factual issues,
the court entered an opinion and order that found the Duncans possessed the
Artinger Lot and the PNC Lot because they exercised dominion over the
subject property by erecting gates limiting access to the Property, and ordered
the Conservancy to file an action in ejectment pursuant to Rule 1061(b)(1).
(Order, 3/07/22). (Trial Court Opinion, 3/07/22, at 6).
On March 22, 2022, the Duncans filed a motion for reconsideration,
arguing that the preliminary objections raised an issue of fact and were not
verified pursuant to the local rule; therefore, they could not supplement or
contradict the facts raised in the complaint. (See Duncans’ Motion for
Reconsideration, 3/22/22, at ¶ 14). The Duncans noted that the complaint
set forth the elements necessary for an action to quiet title by adverse
possession; namely, that they had actual physical possession for at least 21
years. (Id. at ¶¶ 10, 15). Therefore, the only appropriate action by the trial
court was to overrule the preliminary objections and order the Conservancy
to file an answer to the complaint. (See id. at ¶ 10). It also noted that
because a claim of adverse possession arises at the expiration of the time
within which the Conservancy could have brought an action in ejectment, i.e.,
21 years, the time for it to file an action in ejectment had expired. (See id.
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at ¶ 16). The Duncans did not request that the Conservancy file an action in
ejectment. (See id. at ¶ 21). The court did not rule on the motion.
On April 6, 2022, the Conservancy timely appealed the court’s March 7,
2022 order and filed a court-ordered statement of errors complained of on
appeal. See Pa.R.A.P. 1925.
The Conservancy raises three questions for our review challenging the
trial court’s decision: (1) whether the trial court “expressly ignore[d] the legal
definition of ‘possession’ applicable to woodland properties in favor of what
the lower court calls ‘the common understanding’ of the word possession[;]”
(2) whether the trial court abused its discretion or erred as a matter of law
“when it failed to apply the legal presumption that the Conservancy possessed
the properties at issue upon a finding that … possession was ‘less than clear’
or … plaintiffs were in possession of at least a portion of both parcels[;]” and
(3) whether the trial court abused its discretion in ignoring photographic
evidence to conclude that the Duncans possess the property through
commercial activity conducted thereon that does not exist on the photographs.
(Conservancy’s Brief, at 3).
On appeal, the Duncans do not challenge the trial court’s ordering that
the ejectment action be brought even though it did not seek such relief.
Instead, they contend that the trial court’s determination that they had
possession was unnecessary because all that was necessary for the
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Conservancy to have to bring an action in ejectment was that they plead in
their complaint that they exerted dominion over the Property.
II.
Before addressing the Conservancy’s contentions, we will address the
Duncans’ argument that they made out possession merely by averring those
facts in their complaint. Our consideration of Pennsylvania Rule of Civil
Procedure 1061 is necessary. It provides, in relevant part, that a quiet title
action may be brought:
(1) to compel an adverse party to commence an action of ejectment; [or]
(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[.]
Pa.R.C.P. 1061(b)(1)-(2).
Rule 1061 unified into a “single procedure all of the diverse procedures
by which clouds on title were formerly tried[,]” but “neither creates a new
action nor changes the substantive rights of the parties or jurisdiction of the
courts.” Siskos v. Britz, 790 A.2d 1000, 1007 (Pa.2002) (citations omitted).
A “plaintiff in an action to quiet title must be in possession of the land in
controversy; if he is not in possession, his sole remedy is an action in
ejectment.” Plauchak v. Boling, 653 A.2d 671, 674 (Pa. Super. 1995)
(citation omitted).
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In Siskos, our Supreme Court addressed that when the determination
is made of whether a plaintiff is in possession is a jurisdictional requirement
necessary to bring quiet title action. In that case, seeking to block defendant’s
access to the private road, plaintiff brought a quiet title action alleging that
she possessed the disputed property and, among other relief, sought to
require the defendants to file an ejectment action or be barred from asserting
any interest in the disputed property. The defendants answered denying that
plaintiff owned the disputed land but did not assert that they had possession
of the disputed property; rather, they asserted that they had title, or
alternatively, adverse possession. See Siskos, 790 A.2d at 1003-04.
Because plaintiff’s possession was not challenged, the trial court held
that because the disagreement centered on ownership and not possession, it
could decide the matter as part of the quiet title action even though plaintiff
had asked the defendants to file for ejectment. On appeal, we affirmed but
our Supreme Court “granted allocatur to consider whether [we] erred in
concluding that the trial court had jurisdiction to determine who had title to
the disputed property without first ascertaining who had possession of the
land” and reversed. Id. at 1005.
In holding that it did, our Supreme Court distinguished an ejectment
action from a quiet title action under Rule 1061(b)(1) and (2), as follows:
Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession. Pursuant to Rule 1061(b)(1), “[a] possessor of land is entitled to bring an action against one who, although not
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in possession, has some claim or interest in the land, compelling that person to assert his or her interest by bringing an action of ejectment, or be forever barred from attacking the title of the possessor.” A party will file a Rule 1061(b)(2) Action to Quiet Title when she is not in possession, does not have the right to possess the land, and wishes to determine all rights in the land. “The purpose of an ejectment action as opposed to quiet title is not to determine the relative and respective rights of all potential title holders, but rather the immediate rights between plaintiff and defendant involved in that particular litigation.”
Id. at 1006 (citations omitted). It then went to hold that in an action to quiet
title, “the existence of possession on the part of the plaintiff at the time of the
institution of the proceeding is an essential jurisdictional fact.” Id. at 1010.
“Thus, if a plaintiff requests relief pursuant to both (b)(1) and (b)(2), a court
cannot properly address the (b)(2) claim without first determining whether,
under (b)(1), a Rule 1061 Action in Ejectment will lie.” Id. at 1008.
Because possession is a jurisdictional prerequisite for such an action,
where there is a dispute regarding possession in an action to quiet title in
which the plaintiff requests an order to compel an adverse party to bring an
action in ejectment, “the trial court cannot proceed to the merits of the action
without first determining whether the plaintiff is in possession.” Id. at 1007
(citations omitted). Whether a party has possession is dependent upon the
facts of each case and, “actual possession of land” for purposes of determining
whether the plaintiff is out of possession and, thus, may not maintain an action
to quiet title, means “dominion over the property; it is not the equivalent of
occupancy.” Moore v. Duran, 687 A.2d 822, 827 (Pa. Super. 1996) (citation
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omitted). If the plaintiff is in possession, then the defendant can be ordered
to file an action in ejectment.
While that was a long way to go to answer the Duncans’ contention that
as long as possession is pled it satisfies the jurisdictional prerequisite for
possession as set forth above, possession is required to be established after a
hearing where the parties present evidence as to whether the plaintiff is in
possession. Accordingly, the Duncans’ contention that it made out possession
just because it was pled in its complaint is without merit.
Now to the Conservancy’s issues.
III.
A.
The Conservancy first contends that the trial court erred in finding that
the Duncans had possession under the common understanding of that term
rather than the more technical definition applicable to “enclosed woodlands.”4
While possession generally requires demonstration of a claimant’s “dominion
over the property,” actual possession of woodlands requires proof that a
claimant actually occupied the land or engaged in some active use of the land.
“Whether property is considered a woodland is a threshold factual question
4 A “woodland is an area of land that trees and bushy undergrowth cover, synonymous with a forest.” Williams v. Taylor, 188 A.3d 447, 454 (Pa. Super. 2018). In adopting the definition, this Court relied on prior cases involving large tracts of heavily forested land. Gruca v. Clearbrook Cmty. Servs. Ass’n, Inc., 286 A.3d 1273, 1279 (Pa. Super. 2022).
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for the trial court to decide in the first instance.” Recreation Land Corp. v.
Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008) (citation omitted). The
question here then is where it is alleged that the property is woodlands, is the
trial court required to determine if the property is woodlands and, if so,
whether the standard for determining possession is “dominion” over the
property or “occupancy of the property” and the plaintiff has the requisite
“possession” necessary for jurisdictional purposes to maintain a quiet title
action.
We agree with the trial court that whether the property is enclosed
woodlands does not go to whether the Duncans had requisite possession for
jurisdictional purposes but rather goes to what is needed to make out a claim
of adverse possession. Whether a person is in possession determines the form
of the action and the relief that can be granted. If a plaintiff is in possession,
a court could not order a defendant ejected from the property, even if the
property was considered woodland; that would result in ordering the
defendant to file an action in ejectment. That is why it is improper for the
trial court to make any finding in the quiet title action other than whether the
plaintiff is possession, a necessary finding to order defendant to file an
ejectment action. See Roberts v. Est. of Pursley, 700 A.2d 475, 481 (Pa.
Super. Ct. 1997). Because whether the property was enclosed woodlands
does not go to whether the Duncans had possession but whether they can
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make out a claim of adverse possession, the trial court did not err in applying
the ordinary definition of possession.
B.
The Conservancy’s next two issues go to its contention that the trial
court abused its discretion or erred as a matter of law in finding that
possession had been made out because the legal presumption that the
Conservancy possessed the Property was not overcome where the trial court
found that possession was “‘less than clear or … plaintiffs were in possession
of at least a portion of both parcels[.]” (Trial Ct. Op., 3/07/22, at 6). The
Duncans testified that they have been using the land for soil mining, have
stored equipment on the Property, and have gates that control access to the
Property. (See R. 98-101a, R. 103-104a, R. 119-120a, R. 121-25a, R. 132a,
R. 138-141a, R. 150-151a).
The Conservancy disputes each of those findings in detail, as well as
making a separate argument that the trial court ignored photographic
evidence that commercial activity on the Property does not exist in the
photographs. At the core of the Conservancy’s argument is that the court
should not have relied on the Duncans’ evidence and that we should reweigh
the evidence in their favor. What that ignores is that it is within the trial
court’s exclusive purview to accept or reject any evidence. See Voracek v.
Crown Castle USA, Inc., 907 A.2d 1105, 1108 (Pa. Super. 2006). It also
ignores that we cannot reweigh the evidence on appeal. See Stephan, 100
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A.3d at 664-65. Of course, when the merits of the Duncans’ adverse
possession claim are heard, the trial court is free to make new findings based
on a full hearing that takes place after pleadings are closed and then apply
the applicable adverse possession standard.
Accordingly, because the trial court found the Duncans established by
competent evidence possession for jurisdictional purposes to maintain a cause
of action, its order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/5/2023
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