NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EAST END GUN CLUB OF : IN THE SUPERIOR COURT OF
SCHUYLKILL HAVEN, PA : PENNSYLVANIA
ANNE C. KOWALCZYK, SUSAN C. :
STRANG, CYRUS PALMER DOLBIN, : No. 1458 MDA 2019
ELLEN MARIE DOLBIN :
Appeal from the Order Entered August 1, 2019
In the Court of Common Pleas of Schuylkill County Civil Division at
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 05, 2020
Appellant/Defendants, Anne C. Kowalczyk, Susan C. Strang, Cyrus
Palmer Dolbin, and Ellen Marie Dolbin, appeal from the order entered in the
Schuylkill County Court of Common Pleas granting as uncontested the Motion
for Judgment on the Pleadings filed by Appellee/Plaintiff East End Gun Club of
Schuylkill Haven, PA (“East End”). We vacate the order and remand.
On November 5, 2015, Appellee East End filed a complaint seeking to
quiet title to a 150-acre tract of land it claims to own and possess in Wayne
Township, Schuylkill County. Complaint, ¶ 18. Included in an exhibit to the
Complaint is a copy of a February 11, 1963, Deed to the land conveying the
150 acre tract from Anthony Wallace, Leon W. Naus, George D. Naus and
* Former Justice specially assigned to the Superior Court.
Maurice E. Umbenhaur, Trustees of and for the East End Gun Club
(“Trustees”), to East End. The 1963 Deed incorporates by reference a 1930
deed that conveyed from Charles and Susan Strause to the Trustees a tract
of only “100-acres, more or less.” See East End’s Complaint, Exhibit A.
According to the Complaint, Appellants are the purported fee owners of
an adjoining tract of land described in a Deed dated November 13, 2014. The
previous owners and Grantors under the 2014 Deed, James P. McGovern and
Shana L. McGovern, had filed in 2009 a complaint in quiet title and ejectment
against East End, alleging East End had incorrectly surveyed into its 1963 deed
a 50-acre parcel which belonged to the 67.904 acre tract the McGoverns
purchased in 2008.1 The Court of Common Pleas of Schuylkill County,
however, determined the McGoverns failed to carry their evidentiary burden
of proving superior title to the disputed 50 acres. Complaint ¶¶ 21-32.
The McGoverns appealed, and this Court affirmed. In our decision,
which East End has attached to the present Complaint at Exhibit C and on
which it relies in part, we explained the McGoverns had the burden as plaintiffs
in a quiet title and ejectment action to establish their right to immediate
exclusive possession of the disputed 50 acre parcel based on the strength of
their own title, not the weakness of East End’s title. McGovern v. East End
1 The terms of the agreement of sale required the McGoverns to secure a
registered survey of their tract, hire an abstractor to establish chain of title,
and file an action to quiet title. The registered survey of 67.904 acres diverged
from the 83 acres indicated in the 1950 tax claim deed, see infra, and the
75.8 acres indicated in the tax assessment records.
Gun Club of Schuylkill County, PA, No. 1954 MDA 2013,
(Pa. Super. unpublished memorandum, filed Sept. 25, 2014 at *4).
The McGoverns could not carry this burden, we held, because the source of
their title, to wit, the 1950 tax claim deed, described an 83 acre tract of land
but otherwise lacked sufficient legal description allowing for a survey to define
exactly where the boundaries of the property lie. McGovern, at *3; Exhibit
With regard to whether East End’s similarly flawed deed relieved the
McGoverns of their burden of proof to any degree, we observed:
The McGoverns . . . alleged that they held title by virtue of the
deeds set forth in their chain of title, including the 1950 Tax Claim
Bureau deed, and that [East End] had no basis to claim title
because the disputed land is not included in any deed by East End.
In its answer, East End admitted that it acquired title by way of
recorded deed dated February 11, 1963. . . . In that deed, the
Trustees of East End conveyed to themselves 50 more acres of
land than was contained in the prior deed for the same land. . . .
At trial, [McGoverns’ expert] Manhart testified that at no time did
he specifically identify the 83 acres referenced in the  tax
Devon Henne, the expert testifying for East End, did not perform
a field survey but, instead, examined the legal description of the
property in order to identify the properties involved and to try to
come up with some kind of definition of the property. It became
apparent to Henne that the instant dispute was more of a title
dispute than a boundary dispute. Henne determined that the
disputed area, which was described in the Manhart survey, was
patented to James Everhart on November 19, 1841. Henne
asserted that the lack of an ability to trace title forward to East
End and the Dolbins [Purchaser at 1950 tax sale; predecessor to
McGoverns] creates, from Everhart, a cloud on the title for both
parties in the disputed area.
[P]laintiff [McGoverns have] the burden of presenting definite and
certain evidence of the boundary of the property in controversy.
Where the plaintiff is unable to establish his boundary line by
adequate legal proof, his action must fail and he is not entitled to
relief. Hallman v. Turns,
, 1288 (Pa.Super. 1984)
(citing Skillman v. Magill,
The McGoverns, and to some extent Henne, the expert hired by
East End, have cast doubt on the strength of the title held by East
End. In their brief, the McGoverns relied on the perceived relative
weakness of, and cloud on, East End’s title to argue that the court
should quiet title in their favor. However, unless and until the
McGoverns have made a prima facie case by showing title
sufficient upon which to base a right of recovery, the burden does
not shift, and East End is not required to offer evidence of its title.
If the McGoverns fail to establish proof of title with the required
clarity, they cannot recover, no matter how defective East End’s
title may be.
McGovern, at *4.
On March 11, 2015, four months after acquiring the McGoverns’ tract,
Appellants filed with the Court of Common Pleas of Schuylkill County a quiet
title and ejectment action in which they claimed superior title to East End over
the same 50 acres that were in dispute in McGovern. Several months later,
East End received a Change of Assessment Notice from the Schuylkill County
Tax Assessment Office informing it of a reduction in its assessment given the
reduction in the acreage of East End’s property. East End deduced that
Appellant’s quiet title and ejectment action triggered the assessment
reduction, prompting East End to contest the Board’s decision. Upon the
Board of Assessment Appeals’ adverse decision upholding the change of
assessment, East End filed an assessment appeal to the Court of Common
Pleas on October 7, 2015.
One month later, on November 5, 2015, East End filed the present action
seeking to quiet title of Appellants with respect to the 50 acres in dispute. In
response to East End’s averment in Paragraph 18 of its Complaint stating it
derives ownership of the disputed parcel from the February 11, 1963 Deed,
Appellants filed a timely Answer with New Matter and Counterclaim, in which
Paragraph 54 identified East End’s ownership interest as deriving solely from
the Strause 1930 deed, which conveyed to the East End Trustees one hundred
acres, more or less. East End filed its Reply admitting that the Strause deed
is within the chain of title but denying the implication that it owns less than
the land it has occupied since 1930.
On November 17, 2015, the trial court granted East End’s Petition to
Intervene and added East End as a defendant in Appellants’ Quiet Title action.
The court thereafter consolidated Appellants’ Quiet Title action, East End’s
Quiet Title action, and East End’s Assessment Appeal.
On May 28, 2018, Appellants filed a Motion for Judgment on the
Pleadings, with supporting brief, arguing that East End could not, by a
conveyance to itself, acquire title to 150 acres of land when the previous deed
conveyed only 100 acres, more or less. Appellants’ brief in support cited
authority for the proposition that the term of art “more or less” as used in this
context has been recognized as an expression of intent to cover slight or
unimportant inaccuracies, not a large variation measured in many acres.
On June 18, 2018, East End filed both its Reply to Appellant’s Motion
and its own Motion for Judgment on the Pleadings and brief in support. In its
Motion, East End argued that Appellants’ claims are barred under the doctrines
of collateral estoppel and res judicata. Appellants filed no response to East
End’s Motion for Judgment on the Pleadings within 20 days after service.
On August 22, 2018, East End filed a motion for sanctions and a motion
to treat East End’s Motion for Judgment on the Pleadings as uncontested
pursuant to Schuylkill County Rule 208.3(b), infra. The next day, on August
23, 2018, Appellants filed an answer to East End’s Motion for Judgment on the
On August 28, 2018, the trial court entertained oral argument on the
parties’ motions for judgment on the pleadings. On July 30, 2019, the trial
court entered its Order granting East End’s Motion to treat its Motion for
Judgment on the Pleadings as uncontested because of Appellants’ failure to
respond with 20 days. Accordingly, the court awarded the relief sought in
East End’s motion, which consisted of granting East End’s Motion for Judgment
on the Pleadings, quieting its title to the disputed 50 acre parcel, granting its
Assessment Appeal, and dismissing with prejudice both Appellants’
counterclaim and its separate action to Quiet Title. Appellants’ timely appeal
Appellants present the following questions for our consideration:
1. [Did] the trial court abuse its discretion in treating [East End’s]
motion for judgment on the pleadings as uncontested and
entering judgment in favor of East End and against Appellants?
2. [Did] the trial court err in granting East End’s motion for
judgment on the pleadings?
Appellant’s brief, at 3.
Our standard of review for the grant or denial of judgment
on the pleadings is . . . well settled.
The standard to be applied upon review of a motion
for judgment on the pleadings accepts all well-pleaded
allegations of the complaint as true. The question
presented by the demurrer is whether, on the facts
averred, the law says with certainty that no recovery
is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be
resolved in favor of overruling it.
Tucker v. Philadelphia Daily News, [ ]
([Pa.] 2004) (citation and internal quotation marks omitted).
Entry of judgment on the pleadings is permitted under
Pa.R.[Civ.] P. 1034 which provides for such judgment
after the pleadings are closed, but within such time as
not to delay trial. A motion for judgment on the
pleadings is similar to a demurrer. It may be entered
when there are no disputed issues of fact and the
moving party is entitled to judgment as a matter of
law. In determining if there is a dispute as to facts,
the court must confine its consideration to the
pleadings and relevant documents. The scope of
review on an appeal from the grant of judgment on
the pleadings is plenary. We must determine if the
action of the court below was based on clear error of
law or whether there were facts disclosed by the
pleadings which should properly go to the jury.
Citicorp North America, Inc. v. Thornton,
(Pa.Super. 1998) (citations omitted). Likewise,
This Court applies the same standard as the trial court
and confines its consideration to the pleadings and
documents properly attached thereto. We review to
determine whether the trial court's action respecting
the motion for judgment on the pleadings was based
on a clear error of law or whether there were facts
disclosed by the pleadings which should properly go
to the jury. We will affirm the grant of judgment on
the pleadings only if the moving party's right to
succeed is certain and the case is so free from doubt
that trial would clearly be a fruitless exercise.
Municipality of Mt. Lebanon v. Reliance Ins. Co.,
, 1231 (Pa.Super. 2001) (citations and quotation marks
Donaldson v. Davidson Bros., Inc.,
, 100-101 (Pa.Super.
2016), appeal denied,
In Appellants’ first issue, they assert that the trial court abused its
discretion in treating East End’s Motion for Judgment on the Pleadings as
uncontested where Appellants had filed, twenty days prior to East End’s
motion, its own Motion for Judgment on the Pleadings taking the opposite
position espoused in East End’s Motion, and where the parties presented oral
argument on the motions prior to the court’s order declaring East End’s motion
uncontested nearly one year later.
East End counters that the trial court properly treated its motion as
uncontested pursuant to the Pennsylvania Rule of Civil Procedure 208.3(b),
A court, by local rule, numbered Local Rule 208.3(b), may impose
requirements with respect to motions listed in the rule for the filing
of a response, a brief or both. Where a response is required, any
party opposing a motion governed by Local Rule 208.3(b) shall file
the response within twenty days after service of the motion,
unless the time for filing the response is modified by court order
or enlarged by local rule.
Pursuant to Rule 208.3(b), Schuylkill County promulgated Local Rules
Sch.R.Civ.P. 208.3(b), which provides, inter alia, that a court may deem a
motion uncontested in the absence of a timely response:
Every motion not certified as uncontested shall be accompanied
by a memorandum containing a concise statement of the legal
contentions and authorities relied upon in support of the motion
and an affidavit of service upon the party against whom relief is
sought, or to his attorney. Any party opposing the motion shall
file and serve such answer or other response that may be
appropriate, a memorandum in opposition, and an affidavit of
service upon the other party within twenty (20) days after service
of the originating motion and supporting brief, unless the
Pennsylvania Rules of Civil Procedure mandate a period of time
different than twenty (20) days. In the absence of a timely
response, the motion may be treated as uncontested. The Court
may require or permit further briefing, if appropriate.
Sch.R.C.P 208.3(b). See also Sch.R.C.P. 1034(a) (“The answer and brief of
any opposing party shall be filed within twenty (20) days from the date of
service of the original motion”).
It is undisputed that Appellants did not file a response to East End’s
Motion for Judgment on the Pleadings within twenty (20) days. East End
maintains, therefore, that the trial court had absolute discretion to deem East
End’s motion uncontested by operation of law.
In support of its position, East End cites Baranowski v. Am. Multi-
(Pa.Super. 1997). In Baranowski, the Appellee
served interrogatories upon Appellant, who answered some by saying he
would provide information when he received medical records and left others
unanswered where they requested answers only if a particular event had
occurred, which in his case had not occurred. Appellee filed a motion to
compel responses with the trial court, and Appellant responded neither to the
Appellant’s request nor the court’s order compelling answers. When Appellee
later filed a Motion for Sanctions, Appellant never put forth his position that
the interrogatories had already been answered to the best of his ability. The
court, therefore, granted Appellee’s Motion for Sanctions. It was not until
Appellant filed a Motion to Reconsider the sanction order that he advised the
court of his position for the first time.
We affirmed the entry of a sanctions order under such circumstances
where Appellant had failed to bring to the court’s attention his position on the
Regardless of Appellant's conviction that he had completely
answered Appellees' Supplemental Interrogatories, it was his
responsibility to bring to the attention of the court the reasons for
his responses, or the lack thereof, once Appellees called them into
question. It is incumbent for counsel to focus the Judge's
attention on the disputed questions and answers. Both the fact
that routine discovery is not filed of record and the volume of
contested discovery issues presented to a court, requires at a
minimum, that counsel advance their views when motions for
sanctions are presented. Appellant's failure to do so constitutes a
waiver of his arguments, and justifies the entry of a sanction
A.2d at 208–09.
We find Baranowski inapposite. Here, in contrast to Baranowski’s
failure to advance his position in response to multiple party motions and court
orders in that case, Appellants apprised the court of their views on the issues
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raised in East End’s Motion for Judgment on the Pleadings in their own such
Motion filed twenty days earlier.
Under the circumstances of this case, we consider Appellants’ prior
Motion for Judgment on the Pleadings contesting East End’s title to the
disputed 50 acres to have been the functional equivalent of a response to East
End’s motion for purposes of acquainting the court with the disputed
pleadings. Critically, Appellants’ Motion consisted of argument that would
have simply been replicated in a response to East End’s subsequent motion.
Moreover, the court opted to permit oral argument on the parties’
opposing motions, presumably pursuant to the final sentence of Sch.R.Civ.P.
208.3(b), and thus was made fully aware of the parties’ respective positions
expressed in such motions. Nevertheless, the court then inexplicably allowed
nearly one year to elapse prior to ending the litigation by entering its order
granting East End’s motion as uncontested.2
In light of such zealous advocacy in this latest installment of what has
been a protracted history of highly contentious legal disputes over the 50 acre
parcel in question (as recounted in East End’s complaint and exhibits), and
finding that Appellant’s Motion for Judgment on the Pleadings already
2 We note with displeasure the lower court’s failure to discuss in its court-
ordered Pa.R.A.P. 1925(a) opinion either the significance of having had the
benefit of two timely-filed competing Motions for Judgment on the Pleadings
filed by both parties or how highly contested this litigation was during
pleadings and in oral argument on the parties’ motions. Moreover, the lower
court does not explain why it apparently accepted Appellants’ belated motion,
entertained oral argument on the competing motions, and only then, almost
one year later, entered its order invoking Rule 208.3(b).
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addressed the very matters subsequently raised in East End’s own such
motion, we conclude that neither the interests of justice nor the record
supports the trial court’s exercise of discretion in judging East End’s motion
as uncontested under Rule 208.3(b).
The same reasons informing our decision that the motion was contested
also lead us to conclude that the court erred in entering its order granting East
End’s Motion for Judgment on the Pleadings, quieting East End’s title over the
50 acres, striking Appellants’ deed claiming title to the 50 acres, and
dismissing Appellants’ counterclaim and complaint, all of which appears on the
face of the order to have been rooted solely in Appellants’ failure to file a
timely response to East End’s Motion. In reaching this conclusion, we take
guidance from the strict standard applicable to orders granting motions for
judgments on the pleadings, which the law regards as a drastic measure
appropriate “only if the moving party's right to succeed is certain and the case
is so free from doubt that trial would clearly be a fruitless exercise.” See
In our view, East End’s right to succeed on its claim was not certain at
the time of the court’s order. Nor was Appellants’ position taken against the
complaint during pleadings so lacking as to allow a court to deem East End’s
complaint admitted and to grant East End’s motion without findings as to the
facts therein alleged. Critically, the record in this respect does not reflect a
judicial determination by the trial court that East End established quiet title
through its pleadings and exhibits.
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Moreover, to the extent East End argues that our prior decision in
McGovern precludes Appellants from claiming ownership to the 50 acres in
question under the principle of res judicata, we observe that such a result,
even if true, does not, alone, enable it to prevail on its complaint to quiet title.
, we clarified that the plaintiff in a quiet title
action bears the burden to establish his right to the relief requested with proof
of the strength of his own title, not the weakness of the defendant’s title.
Notably, McGovern made no determination on whether East End had superior
title to the McGovern’s title, now held by Appellants, but the decision
acknowledged that both Appellants and East End’s own expert, Devon Henne,
declared East End’s title was clouded.
Id. at *4.
East End subsequently hired Henne to research East End’s chain of title,
and he prepared a survey and legal description of the property indicating it
contains 150.402 acres. The record, however, does not establish that the
court found East End produced sufficiently strong title to allow for the quieting
of its title over the challenges Appellants raised in their pleadings and in their
Motion for Judgment on the Pleadings, which were further advanced at oral
argument. Instead, the court deemed East End’s motion uncontested, and it
accordingly entered the above-mentioned orders quieting East End’s title.
Because we find the court erred in determining Appellants failed to contest
East End’s motion, and there has been no judicial determination as to whether
East End presented sufficiently strong evidence of title to overcome
Appellants’ contrary position, remand is necessary.
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Based on the foregoing, we vacate the trial court’s order in its entirety
and remand for further proceedings consistent with this decision.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge McLaughlin did not participate in the consideration or decision of
Joseph D. Seletyn, Esq.
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