Ginder, K. & B. v. Eby, C.

• Court: Superior Court of Pennsylvania
• Decided: July 28, 2023
• Docket: 1103 MDA 2022
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

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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)

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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.” 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.

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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

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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.

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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

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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.

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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).

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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

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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.

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Judgment affirmed.

Judge Kunselman joins the memorandum. Judge Olson concurs in the

result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/28/2023

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