J-A20038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK HEIM AND WANDA HEIM, : IN THE SUPERIOR COURT OF TRUSTEE OF THE MARK HEIM AND : PENNSYLVANIA WANDA HEIM JOINT REVOCABLE : TRUST : : Appellees : : v. : : HOWARD L. EISSLER AND ANN M. : EISSLER : : Appellants : No. 179 MDA 2019
Appeal from the Judgment Entered January 16, 2019 In the Court of Common Pleas of Sullivan County Civil Division at No(s): 2017CV-0000234
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED: OCTOBER 18, 2019
Appellants, Howard L. Eissler and Ann M. Eissler, appeal from the
judgment entered in the Sullivan County Court of Common Pleas, in favor of
Appellees, Mark Heim and Wanda Heim, Trustee of the Mark Heim and Wanda
Heim Joint Revocable Trust, and against Appellants in this land boundary
dispute. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellants raise the following issues for our review:
1. WHETHER THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO J-A20038-19
APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY. THE HOPKINS RETRACEMENT SURVEY FAILS TO CONFORM TO THE GRANTORS JOSEPH AND MARY HEIM’S INTENT AS IT DEVIATES FROM THE SECOND ENGLISH SURVEY AND IS BASED ON ERRONEOUS CONCLUSIONS RELYING UPON SUSPICIOUS MONUMENTS “K,” “N,” AND “U.” THE LIGHT-HEIGEL BOUNDARY PLAN CONFORMS TO THE INTENT OF GRANTORS JOSEPH AND MARY HEIM AS IT ACCURATELY RETRACES THE SECOND ENGLISH SURVEY AND THE DEED FROM GRANTORS JOSEPH AND MARY HEIM TO [APPELLANTS]. TO THE EXTENT THE HONORABLE COURT RESTS ITS CONCLUSIONS ON FINDINGS OF FACT NOS. 5 THROUGH 18, THE HONORABLE COURT EITHER DISREGARDED CREDIBLE, RELEVANT EVIDENCE OF RECORD AND MADE NO FINDINGS OR MADE FINDINGS WHICH ARE NOT SUPPORTED BY THE RECORD.
2. WHERE THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY, THE HONORABLE COURT ERRED WHEN IT FAILED TO FIND AND CONCLUDE THAT THE DECK CONSTRUCTED BY APPELLEES ENCROACHES ON [APPELLANTS’] PROPERTY.
3. WHETHER THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY WHERE THE HOPKINS RETRACEMENT SURVEY INCLUDES PROPERTY NOT DEPICTED IN THE FIRST OR SECOND ENGLISH SURVEY AND NOT CONVEYED IN APPELLEES’ CHAIN OF TITLE.
4. WHETHER APPELLEES’ CLAIM OF TITLE RESTING ON ADVERSE POSSESSION AND POSSESSION RESTING ON DOCTRINE OF CONSENTABLE LINE FAILS AS A MATTER OF LAW. FINDINGS 19 AND 20 ARE NOT SUPPORTED BY THE EVIDENCE OF RECORD.
5. WHETHER [APPELLANTS’] REPLY BRIEF WAS TIMELY FILED IN COMPLIANCE WITH THE RULES OF CIVIL PROCEDURE AND SHOULD HAVE BEEN CONSIDERED BY
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THE COURT. TO THE EXTENT FINDING NO. 26 STATES OTHERWISE, IT IS NOT SUPPORTED BY THE RECORD.
6. WHETHER [APPELLANTS] WERE DENIED THE OPPORTUNITY TO OFFER EXHIBITS INTO THE RECORD.
(Appellants’ Brief at 4-5).1, 2
____________________________________________
1Regarding Appellants’ fifth issue, the court issued an order dated November 19, 2018, expressly directing the parties to file reply briefs within fifteen days of the date of the order. In a civil case, however, the date of entry and service of the order (in this case November 26, 2018) controls. See Pa.R.C.P. 236(a)(2), and (b) (governing notice required of Prothonotary to parties of entry of any order or judgment). See generally Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459 (Pa.Super. 2007), appeal denied, 599 Pa. 683, 960 A.2d 456 (2008) (stating under relevant law, date of entry of any order is date court mails or delivers copies of order to parties).
Here, the order directing reply briefs was not entered on the docket with notice sent until November 26, 2018. In its decision, the trial court stated Appellants had not filed a post-trial reply brief. Nevertheless, Appellants did file a reply brief on December 10, 2018, but they filed it the same day the trial court issued its final decision, unaware Appellants had filed a reply brief. Appellants’ December 10, 2018 reply brief was filed more than fifteen days after November 19, 2018, but only fourteen days after the November 26, 2018 entry of the order on the docket with proper notice sent. Therefore, the reply brief was timely filed. See id. Further, Appellants did cite to Pa.R.C.P. 236 and Pa.R.A.P. 108 to support their position that they had timely filed their reply brief. Appellants, however, have not alleged any prejudice suffered as a result of the court’s failure to consider their reply brief, which added nothing to their existing argument in any event.
2 As a general rule, issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006). A Rule 1925 statement must be specific enough for the trial court to identify and address the issue(s) an appellant wishes to raise on appeal. Id. “[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all.” Id. at 148. As well, where an appellant fails to raise or develop an issue on appeal properly, or where the appellant’s brief is wholly inadequate to present specific issues for review, this Court will not consider the merits of the claims raised.
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Our standard of review on appeal from an action to quiet title is
deferential: “In reviewing an action to quiet title, an appellate court’s review
is limited to determining whether the findings of fact are supported by
competent evidence, whether an error of law has been committed, and
whether there has been a manifest abuse of discretion.” Regions Mortgage,
Inc. v. Muthler, 585 Pa. 464, 467, 889 A.2d 39, 41 (2005) (internal citation
omitted).
It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the factfinder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.
Hollock v. Erie Ins. Exchange, 842 A.2d 409, 414 (Pa.Super. 2004) (en
banc), appeal dismissed as improvidently granted, 588 Pa. 231, 903 A.2d
1185 (2006) (internal citations omitted).
The Pennsylvania Rules of Civil Procedure define the scope of an action
to quiet title, in pertinent part, as follows:
Rule 1061. Conformity to Civil Action. Scope
* * *
Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000). Instantly, regarding Appellants’ sixth issue, Appellants failed to identify in either their concise statement or their brief which exhibits the trial court prohibited them from introducing at trial, the relevance of those exhibits, and any prejudice Appellants suffered as a result of the exhibits’ exclusion. Thus, Appellants’ sixth issue is waived. See Lineberger, supra; Butler, supra.
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(b) The action may be brought
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J-A20038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK HEIM AND WANDA HEIM, : IN THE SUPERIOR COURT OF TRUSTEE OF THE MARK HEIM AND : PENNSYLVANIA WANDA HEIM JOINT REVOCABLE : TRUST : : Appellees : : v. : : HOWARD L. EISSLER AND ANN M. : EISSLER : : Appellants : No. 179 MDA 2019
Appeal from the Judgment Entered January 16, 2019 In the Court of Common Pleas of Sullivan County Civil Division at No(s): 2017CV-0000234
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED: OCTOBER 18, 2019
Appellants, Howard L. Eissler and Ann M. Eissler, appeal from the
judgment entered in the Sullivan County Court of Common Pleas, in favor of
Appellees, Mark Heim and Wanda Heim, Trustee of the Mark Heim and Wanda
Heim Joint Revocable Trust, and against Appellants in this land boundary
dispute. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellants raise the following issues for our review:
1. WHETHER THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO J-A20038-19
APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY. THE HOPKINS RETRACEMENT SURVEY FAILS TO CONFORM TO THE GRANTORS JOSEPH AND MARY HEIM’S INTENT AS IT DEVIATES FROM THE SECOND ENGLISH SURVEY AND IS BASED ON ERRONEOUS CONCLUSIONS RELYING UPON SUSPICIOUS MONUMENTS “K,” “N,” AND “U.” THE LIGHT-HEIGEL BOUNDARY PLAN CONFORMS TO THE INTENT OF GRANTORS JOSEPH AND MARY HEIM AS IT ACCURATELY RETRACES THE SECOND ENGLISH SURVEY AND THE DEED FROM GRANTORS JOSEPH AND MARY HEIM TO [APPELLANTS]. TO THE EXTENT THE HONORABLE COURT RESTS ITS CONCLUSIONS ON FINDINGS OF FACT NOS. 5 THROUGH 18, THE HONORABLE COURT EITHER DISREGARDED CREDIBLE, RELEVANT EVIDENCE OF RECORD AND MADE NO FINDINGS OR MADE FINDINGS WHICH ARE NOT SUPPORTED BY THE RECORD.
2. WHERE THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY, THE HONORABLE COURT ERRED WHEN IT FAILED TO FIND AND CONCLUDE THAT THE DECK CONSTRUCTED BY APPELLEES ENCROACHES ON [APPELLANTS’] PROPERTY.
3. WHETHER THE HONORABLE COURT ERRED IN ITS CONCLUSION AND GRANT OF CLEAR TITLE TO APPELLEES BASED ON THE HOPKINS RETRACEMENT SURVEY WHERE THE HOPKINS RETRACEMENT SURVEY INCLUDES PROPERTY NOT DEPICTED IN THE FIRST OR SECOND ENGLISH SURVEY AND NOT CONVEYED IN APPELLEES’ CHAIN OF TITLE.
4. WHETHER APPELLEES’ CLAIM OF TITLE RESTING ON ADVERSE POSSESSION AND POSSESSION RESTING ON DOCTRINE OF CONSENTABLE LINE FAILS AS A MATTER OF LAW. FINDINGS 19 AND 20 ARE NOT SUPPORTED BY THE EVIDENCE OF RECORD.
5. WHETHER [APPELLANTS’] REPLY BRIEF WAS TIMELY FILED IN COMPLIANCE WITH THE RULES OF CIVIL PROCEDURE AND SHOULD HAVE BEEN CONSIDERED BY
-2- J-A20038-19
THE COURT. TO THE EXTENT FINDING NO. 26 STATES OTHERWISE, IT IS NOT SUPPORTED BY THE RECORD.
6. WHETHER [APPELLANTS] WERE DENIED THE OPPORTUNITY TO OFFER EXHIBITS INTO THE RECORD.
(Appellants’ Brief at 4-5).1, 2
____________________________________________
1Regarding Appellants’ fifth issue, the court issued an order dated November 19, 2018, expressly directing the parties to file reply briefs within fifteen days of the date of the order. In a civil case, however, the date of entry and service of the order (in this case November 26, 2018) controls. See Pa.R.C.P. 236(a)(2), and (b) (governing notice required of Prothonotary to parties of entry of any order or judgment). See generally Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459 (Pa.Super. 2007), appeal denied, 599 Pa. 683, 960 A.2d 456 (2008) (stating under relevant law, date of entry of any order is date court mails or delivers copies of order to parties).
Here, the order directing reply briefs was not entered on the docket with notice sent until November 26, 2018. In its decision, the trial court stated Appellants had not filed a post-trial reply brief. Nevertheless, Appellants did file a reply brief on December 10, 2018, but they filed it the same day the trial court issued its final decision, unaware Appellants had filed a reply brief. Appellants’ December 10, 2018 reply brief was filed more than fifteen days after November 19, 2018, but only fourteen days after the November 26, 2018 entry of the order on the docket with proper notice sent. Therefore, the reply brief was timely filed. See id. Further, Appellants did cite to Pa.R.C.P. 236 and Pa.R.A.P. 108 to support their position that they had timely filed their reply brief. Appellants, however, have not alleged any prejudice suffered as a result of the court’s failure to consider their reply brief, which added nothing to their existing argument in any event.
2 As a general rule, issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006). A Rule 1925 statement must be specific enough for the trial court to identify and address the issue(s) an appellant wishes to raise on appeal. Id. “[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all.” Id. at 148. As well, where an appellant fails to raise or develop an issue on appeal properly, or where the appellant’s brief is wholly inadequate to present specific issues for review, this Court will not consider the merits of the claims raised.
-3- J-A20038-19
Our standard of review on appeal from an action to quiet title is
deferential: “In reviewing an action to quiet title, an appellate court’s review
is limited to determining whether the findings of fact are supported by
competent evidence, whether an error of law has been committed, and
whether there has been a manifest abuse of discretion.” Regions Mortgage,
Inc. v. Muthler, 585 Pa. 464, 467, 889 A.2d 39, 41 (2005) (internal citation
omitted).
It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the factfinder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.
Hollock v. Erie Ins. Exchange, 842 A.2d 409, 414 (Pa.Super. 2004) (en
banc), appeal dismissed as improvidently granted, 588 Pa. 231, 903 A.2d
1185 (2006) (internal citations omitted).
The Pennsylvania Rules of Civil Procedure define the scope of an action
to quiet title, in pertinent part, as follows:
Rule 1061. Conformity to Civil Action. Scope
* * *
Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000). Instantly, regarding Appellants’ sixth issue, Appellants failed to identify in either their concise statement or their brief which exhibits the trial court prohibited them from introducing at trial, the relevance of those exhibits, and any prejudice Appellants suffered as a result of the exhibits’ exclusion. Thus, Appellants’ sixth issue is waived. See Lineberger, supra; Butler, supra.
-4- J-A20038-19
(b) The action may be brought
(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;
(3) to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land.
Pa.R.C.P. 1061(b)(2), (3). An action to quiet title, unlike an ejectment action,
does not restrict a court to finding the rights only of the immediate plaintiff
and defendant involved in the controversy. Wells Fargo, N.A. v. Long, 934
A.2d 76, 78 (Pa.Super. 2007). Rather, an action to quiet title determines the
“relative and respective rights of all potential titleholders.” Id. (emphasis
added).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Russell D.
Shurtleff, P.J., we conclude Appellants’ issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed December 11, 2018, at 10-13)
(finding: Appellees had their property surveyed by Eric Hopkins, while
Appellants had their property surveyed by Keith Heigel of Light-Heigel and
Associates; Mr. Hopkins testified that he found 11 pre-existing pins on
-5- J-A20038-19
properties at time of his survey; Mr. Hopkins correctly and accurately applied
special rules of preference to determine location of boundary line, and used
found artificial monuments and adjoining properties’ boundaries to establish
legal description of Appellees’ property; further, Mr. Hopkins relied on both
parties’ legal descriptions, which conformed to approved subdivision plan
prepared by Curtis English in 1974; by contrast, Mr. Heigel testified that he
did not survey adjacent properties and ignored them in conducting his
retracement; Appellants allege that several pins on ground were suspicious
and suggested Appellees moved pins; court conducted site view of property
and specifically observed pins at site; pins appeared to be in their original
state, and court finds that Appellants’ assertion that Appellees moved existing
pins lacks merit; after considering artificial monuments, including all existing
pins placed prior to surveys of Mr. Hopkins and Mr. Heigel, and iron pin near
waterfront, court found that Mr. Hopkins’ determinations are true and accurate
and must be accepted; in adopting Mr. Hopkins’ survey, notably neither party
is losing or gaining lake frontage, with no adverse effects on adjoining
property owners; given court’s decision, issues of consentable boundary line
and adverse possession are moot). Accordingly, we affirm on the basis of the
trial court opinion.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/18/2019
-7- Circulated 09/13/2019 01:23 PM