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HomeMy WebLinkAbout2009-5838 WILLIAM M. BREEN AND : IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : CARROL TRACEY, ELIZABETH : MYERS AND BARRY SHOFF, : DEFENDANTS : 09-5838 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., January 26, 2012:-- Before the court are the cross appeals filed by Plaintiffs, William M. Breen and Susan E. Breen, and Defendants, Carrol Tracey, Elizabeth Myers, and Barry Shoff. These appeals arise from a nonjury trial before the undersigned resulting in an opinion and interim order filed on June 30, 2011 and a final order filed on October 12, 2011. Subsequent to the court’s verdict, both parties filed post-trial motions which were denied in part and granted in part. The instant appeals followed. Plaintiffs complain of the following matters on appeal: 1. The Court erred in dismissing Plaintiff William M. Breen’s claims of Conspiracy, False Arrest and Malicious Use and Abuse of Process caused by the false information provided to the police by Defendant Tracey, resulting in the Plaintiff’s arrest for trespass. 2. The Court erred in dismissing the Plaintiffs’ claims of public and private nuisance both as to the Defendants’ use of recreational vehicles creating loud and oppressive noise and the Defendants’ burning of stoves which created foul and offensive odors and erred in failing to enjoin the conduct. 3. The Court erred in failing to order the Defendants to promptly remove their fencing and pavement which the Court found to be on the Plaintiffs’ 09-5838 CIVIL TERM property and, rather, ordered the removal at the Defendants’ convenience when replacement becomes necessary, which order is contrary to the Court’s finding in favor of the Plaintiffs on their action to quiet title. 4. The Court erred in failing to award Plaintiffs’ damages for encroachment onto Plaintiffs’ property which caused erosion requiring Plaintiffs to make repairs at great expense and effort. 5. The Court erred in failing to award the Plaintiffs survey costs as a result of the Defendants’ trespass upon and claim to Plaintiffs’ property. 6. The Court erred in failing to award the Plaintiffs attorneys’ fees required as a result of the Defendants’ obdurate and vexatious conduct. Pl. Concise Statement, filed December 8, 2011. Upon review, the court finds that all these issues were adequately addressed in the previously filed opinion announcing the judgment of the court, filed June 30, 2011 and are now incorporated herein. On the basis of that 1 opinion, the Superior Court should affirm this court’s verdict. Defendants complain of two matters on appeal: 1. The trial court erred in finding that subject matter jurisdiction existed to issue orders as to the land boundaries, rights-of-ways, surveys, and plans, where a deed holder to the property in question, the husband of Elizabeth Myers; Carl Myers was not added as a party to the action. See Cumberland County Deed Book M-36 Page 613 (attached). The failure to attach an essential party deprived the court of subject matter jurisdiction to determine those issues, as Carl Myers was never made a party hereto. 2. The court erred in entering an order which effected the substantial rights of Carl Myers the husband of named defendant Elizabeth Myers, who is a deed holder to the land in question. Failure to attach essential party to private court of jurisdiction to act as to the land in this matter. A spouse is not joined by the filing of suit against the other. 1 The Court also notes the Superior Court’s order dismissing Plaintiffs’ appeal for failure to comply with Pa. R.A.P. 3517, dated January 19, 2012. -2- 09-5838 CIVIL TERM Def. Concise Statement, filed Dec. 5, 2011. Defendants first raised these issues at the time of post-trial motions. As such, the court’s previously filed opinion did not address the questions presented here. The court will address them now. At the outset, we note that the failure to join an indispensable party is a non-waivable defense and need not by pleaded. Pa. R.C.P. No. 1032(a). Generally, “in actions intended to affect the title to property which is either held or claimed by tenants by the entireties, both spouses are indispensable parties and must be joined.” Miller v. Benjamin Coal Co., 625 A.2d 66, 68 (Pa. Super. 1993). However, the Court went on to state, Where a marriage continues to exist … we perceive no reason for holding that one spouse cannot act as agent for the entireties estate in bringing an action to recover damages for injury to the entireties property as long as the action benefits both spouses and there is no evidence rebutting the presumption of authority to act. Id. We view the instant matter to be analogous. Defendants have been active participants throughout this protracted litigation. At all times they have been represented by counsel and never raised this issue regarding Mr. Myers until after the conclusion of a lengthy nonjury trial. In fact, when defense counsel did raise the question of an indispensable party, in a pretrial motion argued at the inception of the trial, it was done with respect to an adjoining landowner, the Mechanicsburg Men’s Club, and not with respect to Mr. Myers. Furthermore, there has never been any indication that the -3- 09-5838 CIVIL TERM Defendant, Elizabeth Myers, did not have authority to act for the interests of both herself and her husband. As the Superior Court said in Miller, “[t]o set aside judgment at this late date, in the absence of evidence that Miller lacked authority to maintain an action on behalf of both spouses, would be an unconscionable exaltation of form over substance.” Id. Although we recognize this court may distinguish between the authority to bring an action and the authority to defend an action, we submit that the same conclusion is appropriate here. For all these reasons, the Superior Court should affirm this court in all respects. By the Court, Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants :saa -4-