J-A11035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ANNE C. KOWALCZYK, SUSAN C.                :
    STRANG, CYRUS PALMER DOLBIN,               :   No. 1458 MDA 2019
    ELLEN MARIE DOLBIN                         :
                                               :
                       Appellants              :

                 Appeal from the Order Entered August 1, 2019
       In the Court of Common Pleas of Schuylkill County Civil Division at
                             No(s): S-2019-2015


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.
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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.

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Gun Club of Schuylkill County, PA, No. 1954 MDA 2013, 

2014 WL 10588414

(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

C.

      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 [1950] tax
      claim deed.

      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.

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      ...

      [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, 

482 A.2d 1284

, 1288 (Pa.Super. 1984)
      (citing Skillman v. Magill, 

98 Pa. Super. 72

(1930)).

      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




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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.

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      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

Pleadings.

      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

followed.

      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?

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      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, [ ] 

848 A.2d 113

, 131
      ([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, 

707 A.2d 536

, 538
      (Pa.Super. 1998) (citations omitted). Likewise,

            ...

            This Court applies the same standard as the trial court
            and confines its consideration to the pleadings and

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            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., 

778 A.2d 1228

, 1231 (Pa.Super. 2001) (citations and quotation marks
      omitted).

Donaldson v. Davidson Bros., Inc., 

144 A.3d 93

, 100-101 (Pa.Super.

2016), appeal denied, 

169 A.3d 11

(Pa. 2017).

      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),

which provides:

      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.

                                      -8-
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Pa.R.Civ.P. 208.3(b).

      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-

Cinema, Inc., 

688 A.2d 207

(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



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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

contested matter:

      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
      order.

Id., 688

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

Donaldson, 

144 A.3d 100-101

.

      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.

In McGovern, 

discussed supra

, 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
this case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/05/2020




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