Wittig v. Carlacci

537 A.2d 29, 370 Pa. Super. 584, 1988 Pa. Super. LEXIS 200
CourtSupreme Court of Pennsylvania
DecidedFebruary 4, 1988
Docket1366
StatusPublished
Cited by24 cases

This text of 537 A.2d 29 (Wittig v. Carlacci) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wittig v. Carlacci, 537 A.2d 29, 370 Pa. Super. 584, 1988 Pa. Super. LEXIS 200 (Pa. 1988).

Opinions

WIEAND, Judge:

Because of a property line dispute, Robert M. Wittig and Jane Wittig, husband and wife, commenced an action in ejectment against their neighbors, Ralph and Anna Mae Carlacci. After trial without jury, the court, on December 5, 1986, found that the disputed strip of land was owned by the Carlaccis and dismissed the Wittigs’ action. The Wittigs filed a motion for post-trial relief on December 23, 1986, but the motion, following argument, was denied, and judgment was entered on the adjudication of the trial court. This appeal followed by the Wittigs.

Initially, there is an issue which must be resolved regarding the timeliness of the Wittigs’ motion for post-trial relief. Pa.R.C.P. 227.1(c)(2) requires that post-trial motions shall be filed within ten days after “notice of ... the filing of the decision or adjudication in the case of a trial without jury or equity trial.” Pa.R.C.P. 1038(c) requires that notice of the [586]*586trial court’s decision be given by the prothonotary;1 and Pa.R.C.P. 236(b) requires the prothonotary to note in his docket the giving of such notice. Pursuant to these rules, the time for filing post-trial motions does not commence until such notice has been given and the date thereof recorded in the prothonotary’s docket.

In the instant case, the trial court’s adjudication was dated December 5, 1986. However, the prothonotary’s docket fails to disclose that notice of the filing of the trial court’s decision was ever given to appellants or their counsel. Under these circumstances, post-trial motions filed on December 23, 1986 were timely. See: Ruh v. Ruh, 268 Pa.Super. 82, 407 A.2d 447 (1979). See also: Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 562 n. 2, 434 A.2d 1292, 1293 n. 2 (1981); Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 554, 419 A.2d 1285, 1288 (1980); State Farm Mutual Auto Ins. Co. v. Schultz, 281 Pa.Super. 212, 214 n. 1, 421 A.2d 1224, 1225 n. 1 (1979). The trial court apparently recognized this, for its opinion states specifically that appellant’s post-trial motions were filed timely. We find nothing in the record that would cause us to disagree.

The rule requiring that post-trial motions be filed within ten days after notice of filing is a procedural rule; it is not jurisdictional. A trial court has broad discretion to entertain untimely procedural motions. See: Karpe v. Borough of Stroudsburg, supra; Brodsky v. Philadelphia Athletic Club, supra 277 Pa.Super. at 553, 419 A.2d at 1287; Plato v. City of Pittsburgh, 71 Pa.Cmwlth. 463, 466 n. 2, 454 A.2d 1196, 1198 n. 2 (1983). See also: S.N.T. Industries, Inc. v. Geanopulos, 512 Pa. 330, 516 A.2d 705 (1986) and S.N.T. Industries, Inc. v. Geanopulos, 363 Pa. Super. 97, 99-100 n. 1, 525 A.2d 736, 737-738 n. 1 (1987) (Supreme Court reversed and remanded for consideration of merits where Superior Court had declined to consider merits of appeal, even though considered by trial court, because of [587]*587late filing of supplemental post-trial motions); Gutman v. Rissinger, 334 Pa.Super. 259, 482 A.2d 1324 (1984). In the instant case, the appellees neither objected nor alleged prejudice because of the date on which the post-trial motions were filed. As a result, the trial court could, as it did, consider the merits of the post-trial motions and thereby preserve such issues for appellate review.

Because the present appeal is properly before this Court, we undertake a review of the substantive issues raised by the appellants.

Grace Kile and her husband, now deceased, acquired title to a ten acre tract of land in Newton Township, Lackawanna County, in 1951. In 1952, the property was surveyed and subdivided. In 1956 or 1957, the Kiles built a fence between the land on which their residence was located and the adjoining land. In 1959, the Kiles conveyed the adjoining land to Nelson Major and June Major, husband and wife, who, in turn, conveyed it in 1961 to Ralph Carlacci and Anna Mae Carlacci, the appellees herein. In 1964, the Kiles sold the land on which their residence was located to Robert Wittig and Jane Wittig, the appellants. The Wittigs maintained the land up to the fence line until 1982, when the Carlaccis tore down a portion of the fence and removed a tree. The Carlaccis contended that their property line, as determined by survey and the description in their deed, was located a foot or more on the Wittigs’ side of the fence.

In the Wittigs’ action in ejectment, they alleged that it was they who held title up to the fence line. They had acquired title, they alleged, by deed, or by adverse possession, or by a long-standing fence which constituted a consentable boundary line. Following trial without jury, the trial court determined that record title for the disputed strip of land was in the Carlaccis by virtue of their deed description and the description contained in the deed from the Kiles to the Carlaccis’ predecessor in title. Appellants’ claims of title by adverse possession and by consentable line were rejected because appellants had been in possession of their tract for only eighteen years. Moreover, the court held, [588]*588appellants could not tack on the possession of their predecessor because there was no evidence that the Kiles had intended to effect an adverse and hostile possession of any part of the land which, several years after erection of the fence, they had conveyed to the Carlaccis’ predecessor in title.

The law pertaining to the doctrine of consentable lines was stated in Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976), where the court explained:

Our courts have long recognized ... that a boundary line may be proved by a long-standing fence without proof of a dispute and its settlement by a compromise. In Dimura v. Williams, [446 Pa. 316, 286 A.2d 370 (1972) ], the court noted:
It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Id. 446 Pa. at 319, 286 A.2d at 371.
In such a situation the parties need not have specifically consented to the location of the line. Dimura v. Williams, supra, 446 Pa. at 319, 286 A.2d at 371. It must nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners. See Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914); Reiter v. McJunkin, 173 Pa. 82, 33 A.

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Bluebook (online)
537 A.2d 29, 370 Pa. Super. 584, 1988 Pa. Super. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wittig-v-carlacci-pa-1988.