Johnson v. Tele-Media Co. of Mckean Cnty.

• Decision Date: 24 April 2014
• Citation: 90 A.3d 736
• Court: Pennsylvania Superior Court
• Parties: C. Russell JOHNSON and Anita D. Johnson, Husband and Wife v. TELE–MEDIA COMPANY OF McKEAN COUNTY, and its Successors and Assigns, Raymond Kleisath, Alberta Kleisath and Teri Spittler. Appeal of Raymond Kleisath, Alberta Kleisath and Teri Spittler.

90 A.3d 736

C. Russell JOHNSON and Anita D. Johnson, Husband and Wife

v. TELE–MEDIA COMPANY OF McKEAN COUNTY, and its Successors and Assigns, Raymond Kleisath, Alberta Kleisath and Teri Spittler.Appeal of Raymond Kleisath, Alberta Kleisath and Teri Spittler.

Superior Court of Pennsylvania.

Submitted Nov. 4, 2013.

Filed April 24, 2014.

David B. Ross, Assistant District Attorney, Coudesport, for appellants.

D. Bruce Cahilly, Coudesport, for appellees.

BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

OPINION BY LAZARUS, J.:

Raymond Kleisath, Alberta Kleisath and Teri Spittler (“Intervenors”) appeal from the judgment entered in the Court of Common Pleas of McKean County on June 18, 2013. After careful review, we affirm.

By deed dated May 4, 1984 Terry Palmer, d/b/a Davis Cablevision, conveyed to Tele–Media Company of McKean County (“Tele–Media”) a parcel of land located at the intersection of East and Main Streets in the Borough of Smethport, McKean County (“Property”). Subsequently, by quitclaim deed dated January 17, 2012, Comcast of Colorado/Pennsylvania/West Virginia, LLC (“Comcast”) conveyed the Property to C. Russell Johnson and Anita D. Johnson, husband and wife (“Johnsons”). Comcast claims to be a successor in title to Tele–Media by virtue of merger, liquidation or acquisition, although there are no recorded conveyances of the Property from Tele–Media to Comcast. Both aforementioned deeds contained exception and reservation clauses granting right-of-way and sewer easements over a portion of the Property to J.L. Wirt and Cora A. Wirt and their heirs and assigns.

On January 2, 2013, the Johnsons filed a complaint to quiet title to the Property as to Tele–Media. Thereafter, Intervenors filed a petition to intervene in the quiet title action, alleging an interest in the Property “inasmuch as they are the heirs and assigns of Joseph L. and Cora A. Wirt referenced in said Deed and inasmuch as they have maintained the subject property over the years.” Amended Petition to Intervene, 4/17/13, at ¶ 3. They also averred that they have “used the property openly, continuously, notoriously, adversely and exclusively.” Id. at ¶ 5. Intervenors also filed preliminary objections to the Johnsons' complaint.

On March 12, 2013, the Johnsons filed a motion for order of court and decree nisi seeking entry of judgment against Tele–Media for failing to respond to their quiet title complaint. In response to a motion filed by Intervenors, by order dated March 19, 2013, the trial court stayed the proceedings pending disposition of the petition to intervene. A hearing on the Intervenors' petition was held on April 17, 2013. On April 26, 2013, the trial court entered orders dismissing Intervenors' petition and granting the Johnsons' action to quiet title.

Intervenors filed a timely notice of appeal of the April 26, 2013 orders on May 16, 2013. Subsequently, on June 24, 2013, Intervenors filed a second notice of appeal after final judgment was entered. By order dated July 10, 2013, this Court dismissed the first appeal and ordered that all issues raised in that appeal would be addressed in the instant appeal.

Preliminarily, the Johnsons have filed a motion to quash this appeal, asserting that the order denying intervention does not constitute a Final Order as defined under Pa.R.A.P. 341 and, therefore, is not appealable. They also assert that Intervenors lack standing to appeal, “since they are not parties to the litigation nor would their legal interest[s] be jeopardized through a denial of this appeal.” Motion to Quash, 8/19/13, at 7. Here, however, judgment has been entered. Moreover, Intervenors have been aggrieved by the denial of their petition to intervene. SeePa.R.A.P. 501 (“[A]ny party who is aggrieved by an appealable order ... may appeal therefrom.”). Accordingly, the appeal is proper.

Intervenors raise the following issues for our review:

1. Whether the [trial court] erred when it refused to allow [Intervenors] to [i]ntervene in an [a]ction to [q]uiet [t]itle when the record below clearly indicated [Intervenors] had an interest in the land that would be affected by a judicial determination of ownership, when [Intervenors'] interest in part of the land was expressed in deeds of record, when the [p]etition to [i]ntervene demonstrated that [Intervenors] claimed additional interests in the land by adverse possession, when no other party had filed and [a]nswer and [Intervenors'] interest[s] were not protected, and when the [Intervenors] sought to file preliminary objections to the [c]omplaint to [q]uiet [t]itle, which was improperly plead[?]

2. Whether the [trial court] incorrectly shifted the burden of proof to Intervenors when it conducted the hearing on [i]ntervention and when it treated such hearing as a final trial on the merits rather than limiting its inquiry to the statutory factors for intervention[?]

Brief of Appellants, at 5.

Whether to allow intervention is a matter vested in the discretion of the trial court and the court's decision will not be disturbed on appeal absent a manifest abuse of its discretion. Stenger v. Lehigh Valley Hosp. Center, 554 A.2d 954, 956 (Pa.Super.1989). A trial court will not be found to have abused its discretion unless the record discloses that its decision was manifestly unreasonable or was the result of partiality, prejudice, bias, or ill-will. Id.

Pennsylvania Rule of Civil Procedure 2327 governs who may intervene in a civil action and provides, in relevant part, as follows:

Rule 2327. Who May Intervene

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if

...

(3) such person could have joined as an original party in the action or could have been joined therein; or

(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.R.C.P. 2327. In addition, Pa.R.C.P. 2329 provides, in relevant part, as follows:

Rule 2329. Action of Court on Petition

Upon the filing of the petition and after hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing intervention; but an application for intervention may be refused, if

(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or

(2) the interest of the petitioner is already adequately represented[.]

Pa.R.C.P. 2329.

Intervenors first assert that the trial court improperly dismissed their petition because: (1) their existing interest in the land in question would be affected by the judicial determination of ownership; (2) they claimed additional interests in the land by adverse possession; and (3) their interests were not adequately protected, as no other party filed an answer and judgment was granted by default. The trial court concluded that Intervenors' current interests in the right of way and sewer easement were adequately protected because the Johnsons acknowledged the easements and would take title subject thereto. As to the Intervenors' claim of adverse possession, the court concluded that Intervenors' evidence that they mowed the lawn and traversed parts of the property not included in their easement failed to establish an interest in the entire parcel via adverse possession.

First, it is readily apparent from the record that Intervenors' current interest in the land, comprised of right-of-way and sewerage easements, is not jeopardized by the Johnsons' quiet title action. In fact, in their answer to the petition to intervene, the Johnsons concede that their “title to the premises is subject to those right-of-way claims and easements of J.L. Wirt and Cora A. Wirt and that the [Johnsons] are not attempting to divest those interests through this action to quiet title.” Answer to Petition to Intervene, 2/19/13, at ¶ 5. Accordingly, the trial court did not err in refusing intervention based upon Intervenors' status as easement-holders.

Intervenors also claim an ownership interest in the Property, and corresponding right to intervene, under the doctrine of adverse possession. One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years. Baylor v. Soska, 540 Pa. 435, 658 A.2d 743, 744 (1995), citing Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). Each of these elements must exist; otherwise, the possession will not confer title. Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793, 796 (1978).

A sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated[.] It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land; but nothing short of an actual possession, permanently continued, will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required[.] Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor[.]

Parks v. Pennsylvania R. Co., 301 Pa. 475, 152 A. 682, 684 (1934) (internal citations omitted). In other words, “only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.” Smith, supra. The burden of proving adverse possession rests upon the claimant by credible, clear and definitive proof. Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268, 270 (1963).

Here, the...