Appellants, The Estate of David Baird and Margaret Puskar, Executor and Margaret Puskar in her own right, appeal from a September 29, 2020 order. Finding the trial court lacked subject matter jurisdiction over this action, we vacate.1
The parties to this action own neighboring properties. At issue is a boundary dispute and the parties' use of an abandoned roadway that runs between the parties' property. We used the term "abandoned" advisedly, as the trial court found that the roadway was abandoned—but never formally vacated—by the Borough of South Greensburg (the "Borough"). Non-Jury Trial Opinion and Order of Court, 6/5/19, at 8-9. Because the Borough has not formally vacated the roadway, and because use of the roadway is in dispute in this matter, the Borough is an interested and indispensable party to this action. As such, we are constrained to vacate the trial court' order for lack of subject matter jurisdiction.
The trial court's opinion sets forth the pertinent facts:
[Appellees] purchased property located at 2302 Skidmore Road, Greensburg, Pennsylvania, 15601 ("Plaintiffs" Property") on June 30, 2006, for the purpose of using the same as their residence. [Appellant] David Baird purchased property located at 2301 Rear Pope Street, Greensburg, Pennsylvania 15601 ("Defendant's Property") on July 14, 2014. He presently resides on the property with occupant Margaret Puskar. The instant dispute relates to two separate parcels of land, being a portion of land deeded to [Appellees] ("Deeded Property"), as well as a portion of land between the parties' properties that is not identified in either deed ("Disputed Property").
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At trial, [Appellee] Turner testified that [Appellees] maintained both the Deeded Property and at least the grassy area of the Disputed Property between approximately 2006 and 2014 without interference, and they have always believed that this area belong [sic] to them and treated it as such. [Appellee] Turner testified that this situation changed in approximately 2015 when [Appellants] erected a fence on their property and acquired a German Shepard dog. After an altercation between the parties in spring of 2016 involving the dog, [Appellants] began entering onto and/or altering the Deeded Property and the Disputed Property. Examples of [Appellants'] behaviors with regard to the Deeded Property and the grassy area of the Disputed Property include mowing the grass, poisoning and picking out the grass in order to extend the gravel area of the drive, walking the dog on the property, and an attempt to install a fence on the property. [Appellee] Turner also testified to repeated incidences of harassing conduct on the part of [Appellants], including shining floodlights into the window of the [Appellees'] daughter's bedroom window and repeated attempts by [Appellant] Puskar to provoke physical confrontation with [Appellees].
[Appellant] Baird also testified at time of trial, stating that he had lived on the Defendants' Property intermittently for his entire life, as it had previously belonged to his mother, since sometime in the 1940s. [Appellant] Baird disputed [Appellee] Turner's testimony as to care of the grassy area of the Disputed Property, stating that his family has maintained and occupied the property for many years, doing tasks including mowing the grass. [Appellant] Baird denied enlarging the gravel area on the side of the Disputed Property closest to Plaintiffs' Property. He acknowledged that guests and members of both households have used the gravel drive for ingress, egress and parking over the course of many years, including during the period of residence of the Beveridges, previous owners of the Plaintiffs' Property from approximately 1973 to 2006. [Appellant] Baird testified to pleading guilty in approximately 2014 or 2015 to a charge of unsworn falsification to authorities.
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Both parties' surveys reference a forty-foot-wide roadway between the properties. Mr. [Arthur] Kromel [Appellees' surveyor] testified that he was unsure as to where he gathered the information to place the roadway, and he does not know if said roadway actually existed.
Mr. [Donald B.] Harper [Appellants' surveyor] testified that he did not rely on any recorded documentary evidence in placing the roadway on his survey, but instead created the roadway by using the deeds to survey and plot the property lines which turned out to be ‘somewhat parallel.’ He then ‘adjusted the Baird deed’ to make the lines parallel and to place exactly forty feet between the lines.
As to documentary evidence regarding the existence of a road, Eric Wanson, Penndot's chief of surveys, testified at trial. A Pennsylvania legislative act from 1933 shows the adoption of various routes including a local route 64127 which is now Route 819. A Penndot construction and condemnation of right-of-way plan from 1936 discusses rerouting the road near the parties' properties. The road in its present form as Route 819 began construction in 1937 and was completed in 1938. A letter dated October 31, 1938 to South Greensburg Borough Council Secretary, stating that the Commonwealth was ceasing to maintain the original portion of the road, as it was no longer a part of the State Highway System [sic].
Further testimony was provided by current part-time Secretary for the Borough of South Greensburg, Kaitlyn Lewis, who testified that she had no knowledge or documentation of a roadway existing and/or being abandoned by the Borough of South Greensburg between or on the parties' properties near the Deeded Property or the Disputed Property, with the exception of a street light map from 1939 appearing to show a road in the same area. Testimony was also provided by Eric Glod, department head of Westmoreland County's geographic information systems office of tax mapping. He provided a farm map from 1910 showing a roadway in the approximate area of the disputed road.
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Looking to the evidence presented by [Appellants] as to the existence of the disputed road, it certainly appears that a roadway existed in approximately the disputed area prior to 1933 based on the 1910 farm map. In 1933 it was formally adopted, and it was abandoned to the Borough of South Greensburg in 1938. Records regarding the road are apparently nonexistent from that point forward, excepting the 1939 South Greensburg Streetlight Map showing a road in the approximate disputed location.
Taking all of the evidence together, it appears as though a road existed in the disputed area from at least 1910 through 1939. At some subsequent point the road was transformed into the gravel drive that it remains today. While it is certain that a road did exist and that it was subsequently abandoned, there is inadequate evidence for this court to determine the actual width of the prior road. [...]
Even if this court were to find convincing evidence as to the exact width of the abandoned roadway [...] [v]acation and abandonment of public roads are two distinct actions with vacation having more stringent requirements[.] [...] No evidence was presented to show that the road at issue in this case was formally vacated as opposed to abandoned[.]
Non-Jury Trial Opinion and Order of Court, 6/5/19, at 2-6, 8-9 (record citations omitted).
Appellees filed this action on May 12, 2017 with a complaint alleging counts for ejectment, quiet title, trespass, and injunctive relief. On September 6, 2017, the trial court overruled Appellants' preliminary objections. On August 3, 2017, the trial court entered a preliminary injunction prohibiting, among other things, Appellants' erection of a fence on the property in dispute. The trial court conducted a bench trial on September 24 and 25, 2018. On June 5, 2019, the trial court issued its findings of fact, conclusions of law, and an order entering a verdict in Appellees' favor on one count of ejectment and one count of trespass, dismissing Appellees' quiet title action as moot, and entering a permanent injunction in Appellees' favor. As to the shared gravel driveway providing ingress and egress to both parties, the court ordered the parties to "equally share use of the existing gravel drive for ingress and egress onto their respective properties, without interfering with any other party's use of said drive. Parties may maintain and occupy the un-deeded grassy areas abutting their respective properties." Non-Jury Trial Opinion and Order of Court, 6/5/19, at 17, ¶ 8.2
Appellants present two questions for review:
1. Did the trial court improperly exercise its authority to dismiss Appellants' post-trial motions not on the merits, when the relevant Rules of Civil Procedure require the court to provide an opportunity to cure non-filing before dismissal?
2. Did the court have subject matter jurisdiction to decide the matter before it given it found the land in-between the litigants' properties to be an abandoned as opposed to vacated road?
Appellants' Brief at 10.
We begin with a consideration of the trial court's subject matter jurisdiction. "Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented." Schultz v. MMI Prod., Inc. , 30 A.3d 1224, 1226 (Pa. Super. 2011). Issues of subject matter jurisdiction cannot be waived. In re Melograne , 571 Pa. 490, 812 A.2d 1164, 1166 (2002). "The want of jurisdiction over the subject matter may be questioned at any time. It may be questioned either in the trial court, before or after judgment, or for the first time in an appellate court, and it is fatal...
