J-A09011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KENNETH L. & BOBBIE J. GINDER

v.

CARISSA L. EBY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1103 MDA 2022

Appeal from the Judgment Entered August 4, 2022

In the Court of Common Pleas of Lebanon County 

Civil Division at No(s): 2021-00638

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: JULY 28, 2023

Carissa L. Eby lives next door to Kenneth L. and Bobbie J. Ginder in 

Annville. In between their homes is a grass-covered area, once planned to 

connect two parts of Water Street. That connection was never opened by 

Annville. In June 2021, the Ginders filed an action to quiet title against Eby

seeking to claim title to that area in an effort to prevent Eby’s use of the land.

The trial court found that title to the property belonged to the Ginders based 

on the subdivision plan that divided the Ginders’ property and the surrounding 

area.

In this appeal, Eby claims that the trial court lacked subject matter 

jurisdiction, erred by failing to require the Ginders to trace the title of their 

property back to the original inception of the street, erred by refusing to take 

judicial notice of older deeds, and erred in terminating her rights to the 

unopened street.
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The Ginders and Eby both own homes that are bordered by South King 

Street on one side and Water Street, the unopened street, on another side.

See Complaint, 6/3/21, at ¶¶ 1-5. In their action to quiet title against Eby, 

the Ginders claimed that they and their predecessors in title are the only 

people who have used the portion of Water Street in question and they have 

done so exclusively and adversely to anyone else, including Eby. See id. at 

¶¶ 6, 10-11, 13-16. The Ginders claimed that they own the portion of Water 

Street from their property to halfway through the street by virtue of the street 

being unopened but their claim to the entire street was based on their adverse 

possession of it. See id. at ¶¶ 12, 16-17.

Eby answered the complaint, denying the Ginders’ claims of adverse 

possession, asserting her own, other neighbors and the public’s use of the 

land in question. See Answer and New Matter, 6/28/21 at ¶¶ 6, 10-17. Eby 

also asserted her regular and notorious use of the property in question and 

requested dismissal of the complaint. See id. at ¶¶ 18-26. 

A bench trial was held. The trial court’s decision regarding the title to 

Water Street hinged on whether the title should revert only to the Ginders, 

because their lot was included in the subdivision plan with the unopened 

street, or whether Eby’s property, added later, has title to the half of the street 

closest to her property. See Adjudication, 3/4/21, at 15. Following its review 

of the law, the trial court determined that title to an unopened street reverts

solely to property owners whose title extends back to the original plan that 

dedicated the street in question. See id. The trial court found that the Ginders
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possessed title to the land in question, and even if they did not, they would 

have acquired it through adverse possession and the doctrine of consentable 

lines due to their use of the property and Eby’s shrubbery that constituted a 

boundary line around her property. See id. at 21-22. Eby filed this timely 

appeal.

On appeal, Eby first complains that the trial court lacked subject matter 

jurisdiction. Eby argues that all the property owners in the area should have 

been named in the lawsuit and they are indispensable parties because they all 

possess a right to the disputed portion of Water Street. See Appellant’s Brief 

at 13-14. 

The question of whether a trial court possesses subject matter 

jurisdiction is one of law and our standard of review is de novo. See Domus, 

Inc. v. Signature Building Systems of PA, LLC, 252 A.3d 628, 634 (Pa. 

2021). Eby focuses on and correctly argues that failing to join an indispensable 

party to a lawsuit implicates the trial court’s subject matter jurisdiction. See 

Strasburg Scooters, LLC v. Strasburg Rail Road, Inc., 210 A.3d 1064, 

1069 (Pa. Super. 2019). “The failure to join an indispensable party is a nonwaivable defect that implicates the trial court’s subject matter jurisdiction.” 

Id. (citation omitted).1

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1 As Eby’s challenge to subject matter jurisdiction is non-waivable, she did not 

waive this argument by failing to present it prior to or during trial in this 

matter. With that said, we note that this matter is an exemplar of the wisdom 

of the general rule requiring issues to be presented to a trial court in the first 

(Footnote Continued Next Page)
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“A party is indispensable when his or her rights are so connected with 

the claims of the litigants that no decree can be made without impairing those 

rights.” Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 29 (Pa. 

Super. 2015) (citation omitted). Therefore, if no litigant seeks relief from a 

person and that person’s rights would not be affected by any decision rendered 

in the litigation, that person cannot be indispensable to the case. See id.

Trial courts must weigh four considerations in their effort to determine 

whether a party is indispensable: whether they hold an interest in the claim, 

what the nature of that interest is, if that interest is essential to the merits of 

the case, and whether their due process rights would be violated by the 

outcome of the case. See Strasburg Scooters, 210 A.3d at 1069. Ultimately, 

a party is indispensable when the case cannot be decided fairly without their 

involvement. See id. 

We have held that indispensable parties in an action to quiet title are 

those that claim title to the property in dispute. See Northern Forests, 130 

A.3d at 29. Eby argues that the trial court’s rulings impact the rights not only 

of nearby property owners but also the public at large. She highlights the 

court’s conclusion that the Ginders have obtained title to the unopened stretch

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instance. Prior to Eby’s post-trial motions, neither the parties nor the trial 

court were focused on the issue of other indispensable parties. Upon being 

alerted to the issue, however, the trial court undertook a thorough review of 

the issue in light of the evidence of record and concluded that the language it 

used in its adjudication could be clarified to more clearly respect the interests 

of third parties. While the issue would have been preserved in any event, the 

trial court’s efforts in clarifying its adjudication clearly served the interests of 

justice.
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of Water Street through adverse possession as “[p]articularly troubling[.]” 

Appellant’s Brief, at 15.

How does one square the finding that adverse possession, with its 

required element of exclusivity, has been established, with the 

[c]ourt’s caveat that the rights of non-parties to use the street are 

not impacted? If others have the right to use the street, should 

not the element of exclusivity have been defeated?

Id. See Estojak v. Mazsa, 562 A.2d 271, 274-275 (Pa. 1989). 

However, Eby’s argument fails because she has not established that any 

party is indispensable. First, her argument does not acknowledge that the trial 

court’s amended order was explicitly confined to the “disputed area.” See

Order of Court, filed 7/13/2022, at ¶ 5. And the court explicitly defined the 

“disputed area” as “a strip of land which adjoins both parties’ properties on 

[the unopened portion] of Water Street.” See Adjudication, filed 3/4/2022, at 

2; see also Trial Court Opinion, filed 7/13/2022, at 2 (“[Forbes’s] property 

does not abut the portion of unopened Water Street which constitutes the 

disputed area in this litigation.”). As such, the order is limited in scope to just 

that section of unopened Water Street that adjoins both Eby’s and the Ginders’ 

properties. While we acknowledge that there is a reasonable probability that 

Forbes and Clements have property interests in other portions of unopened 

Water Street, the same cannot be said, in the absence of further evidence, 

about the disputed area.

Second, Eby failed to present any evidence that could lead a fact-finder 

to reasonably infer that Forbes and Clements have any property interest in 
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the disputed area. While Eby did present some evidence that Forbes and 

Clements have used other portions of unopened Water Street, she does not 

identify, and we cannot locate, any evidence that they made use of the 

disputed area.

Finally, the trial court’s amended adjudication clarified that if a third 

party could establish any rights in the disputed area, the order did not 

extinguish them. See Order of Court, filed 7/13/2022, at ¶ 6.

Under these circumstances, we conclude Eby has failed to identify any

other indispensable parties to this lawsuit. As a result, Eby’s first argument on 

appeal merits no relief.

Eby next argues that the trial court erred in finding in favor of the 

Ginders because they did not reach their burden of proof at trial. See 

Appellant’s Brief at 4. Eby claims the trial court erred in failing to require the 

Ginders to show title from a time when her property and their property were 

commonly owned and to show proof of the original inception of Water Street. 

See id. Eby further argues that the trial court ignored a deed from 1941 that 

referred to Water Street. See id. 

There is no doubt the Ginders bore the burden of proving their title in 

the trial court. See Landis v. Wilt, 222 A.3d 28, 34 (Pa. Super. 2019). Our 

review of the trial court’s finding in favor of the Ginders we are limited to 

determining whether the finding was supported by competent evidence and 

free of legal error. See id. 
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In undertaking our review, we must view the evidence in the light most 

favorable to the Ginders. See id. We must not disturb the trial court’s finding 

if we find no error of law or abuse of discretion. See id. “An abuse of discretion 

is not merely an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of judgment that is manifestly 

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by 

the evidence of record.” Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. 

Super. 2020) (citations omitted).

At trial, the Ginders introduced a map showing the original plan for the 

subdivision containing their property. See Exhibit P-7. That plan, designed in 

1974 to subdivide what was then the Estate of Anthony Clodoveo into smaller 

properties, shows their property and Water Street. See N.T., 11/18/21, at 35. 

The Ginders established their chain of title from the subdivision plan which 

created their property. Bobbie Ginder’s parents received the property from the 

Administrator of the Clodoveo Estate in 1979. See id. at 84, Exhibit P-5.

Bobbie Ginder received the property from her parents in 1984. See N.T., 

11/18/21, at 83-4, Exhibit P-3, P-4. The Ginders have resided on the property

ever since, with the belief that the unopened Water Street was part of their 

property. See N.T. 11/18/21, at 82, 86-8. 

Eby’s arguments regarding the Ginders’ failure to carry their burden of 

proof include references to facts and exhibits not in the certified record and 

therefore not considered by the trial court. See Appellant’s Brief at 21-22. Eby 

also focuses on the deed from 1941 which conveyed land to Anthony 
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Clodoveo, prior to the creation of the subdivision. See Exhibit P-10. This deed 

refers to Water Street and Eby argues that the existence of Water Street prior 

to 1974 negates the trial court’s findings. See Appellant’s Brief at 28. 

The trial court weighed this evidence in its decision and still found that 

the unopened portion of Water Street was dedicated to Annville in the 1974 

subdivision plan. See Trial Court Opinion, filed 7/13/2022, at 14-15. As such, 

the unopened portion reverted to the Ginders when the township failed to 

open it within the twenty-one-year statutory period. See Landis, 222 A.3d at

34.

In contrast, Eby’s repeated references to Water Street implicate the 

street as a whole, despite the trial court’s clear indication that this case refers 

only to the unopened portion of the street located in between Eby’s property 

and the Ginders’. See Order, 7/13/22, ¶ 2. Based on our review of the record, 

we find the trial court’s conclusion to be supported by the competent evidence 

presented at trial. Eby’s second issue on appeal merits no relief.

Eby next argues that the trial court was required to take judicial notice 

of several deeds that she presented in a post-trial motion. See Appellant’s 

Brief at 28. After filing her post-trial motions, Eby filed a request for judicial 

notice in support of her post-trial motions. See Motion, 4/1/22. Eby attached 

to her motion a list of deeds tracing lines of title to various addresses located 

around the property in question. See id. at 5-7. The trial court denied Eby’s 

request. See Order, 5/2/22.
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Eby argues that the rules of evidence strictly require the trial court to 

take judicial notice as she requested. See Appellant’s Brief at 28-29. The rule 

on judicial notice provides:

(a) Scope. This rule governs judicial notice of an adjudicative fact 

only, not a legislative fact.

(b) Kinds of Facts that may be Judicially Noticed. The court may 

judicially notice a fact that is not subject to reasonable dispute 

because it:

(1) is generally known within the trial court’s territorial 

jurisdiction; or

(2) can be accurately and readily determined from sources 

whose accuracy cannot be questioned

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the 

court is supplied with the necessary information.

Pa.R.E. 201. 

This rule, contrary to Eby’s argument, does not establish a blanket 

requirement that all proposed evidence be judicially noticed. The purpose of 

judicial notice is to avoid the procedure of formally introducing evidence in the 

narrow situations where the fact to be introduced is so commonly known that 

evidence proving it is needless. See In re Estate of Krasinski, 188 A.3d 

461, 474 (Pa. Super. 2018) (en banc). Here we are reviewing the trial court’s 

ruling on admission of evidence, and we note that such a ruling is within the 

trial court’s sound discretion and we will only disrupt it if we find an abuse of 

discretion or error of law. See U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 

391 (Pa. Super. 2015).
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The record before us reflects that Eby requested a two-page long list of 

deeds be judicially noticed, post-trial, with no explanation as to their content 

or value to the case and no proof of their existence or validity. See Motion, 

4/1/22. Eby argues that she supplied the information and the trial court must 

take judicial notice pursuant to Pa.R.E. 201(c)(2). See Appellant’s Brief at 29. 

However, we agree with the trial court that Rule 201 does not override 

Pa.R.Civ.P. 227.1(b)(1). 

Rule 227.1 governs post-trial motions in civil matters. And Rule 

227.1(b)(1) requires all issues raised in a post-trial motion to have preserved 

either prior to or during trial. See, e.g., Thomas Jefferson University v. 

Wapner, 903 A.2d 565, 572 (Pa. Super. 2006) (“The purpose of Rule 

227.1(b) is to provide the trial court with an opportunity to review and 

reconsider its earlier rulings and correct its own error.” (citation omitted)). 

Here, it is undisputed that Eby failed to preserve the relevance and admission 

of these deeds prior to or during trial. Eby merely argues that Pa.R.E. 201

takes precedence over Pa.R.Civ.P. 227.1(b)(1).

We disagree. Pursuant to Pa.R.Civ.P. 129(c), “[e]xceptions in a rule shall 

be construed to exclude all others.” Importantly, Rule 227.1(b) provides an 

exception the preservation requirement in subsection (b)(1): “[e]xcept as 

otherwise provided by Pa.R.E. 103(a) ...” Since our Supreme Court provided 

an explicit exception for Rule of Evidence 103(a), we must construe Rule 

227.1(b) as explicitly excluding exceptions for any other Rule of Evidence. 

Therefore, a trial court is not required to take judicial notice of evidence
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submitted for the first time in post-trial motions. We therefore conclude the 

trial court did not err in refusing to take judicial notice of the deeds proffered 

by Eby for the first time in her post-trial motions.

Finally, Eby argues that the doctrines of adverse possession and 

consentable lines are not sufficient to terminate her rights. See Appellant’s 

Brief at 30. In order to claim title by adverse possession the claimant must 

prove actual, continuous, exclusive, visible, notorious, distinct and hostile 

possession of the land in question, over a period of twenty-one years. See 

Shaffer v. O’Toole, 964 A.2d 420, 423 (Pa. Super. 2009). Importantly, 

however, the trial court did not primarily rely on either the doctrine of adverse 

possession or consentable lines in finding that the Ginders had title to the 

disputed property. Instead, the trial court explicitly found that the land in 

question had automatically reverted to the Ginders’ possession when Annville 

failed to open the disputed portion of Water Street. The trial court only 

discussed adverse possession and consentable lines as alternative theories it 

could have relied upon if its conclusion about reversion were to be found in 

error. As such, even assuming without so deciding that Eby is correct in her 

arguments, she is due no relief, as she has failed to convince us that the trial 

court erred in concluding that title reverted to the Ginders after Annville failed 

to open that portion of Water Street.
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Judgment affirmed. 

Judge Kunselman joins the memorandum. Judge Olson concurs in the 

result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023