J-A35017-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

E. DALE KUNKLE, AND HELEN KUNKLE, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

ROBERT G. POYDENCE, 

 Appellant 

 v. 

CARL M. VINCE, 

 Appellee 

No. 157 WDA 2014 

Appeal from the Order entered December 26, 2013, 

in the Court of Common Pleas of Westmoreland County, 

Civil Division, at No(s): 8870 of 1995 

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ. 

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 11, 2014 

 Robert G. Poydence, (“Appellant”), appeals from the trial court’s order 

dismissing his emergency petition for special relief and/or to enforce 

judgment against neighboring property owners, E. Dale and Helen Kunkle, 

husband and wife, (“the Kunkles”), and Carl M. Vince (“Vince”). After 

careful review of the record, we decline to reach Appellant’s issues pursuant 

to the doctrines of res judicata and collateral estoppel, thereby affirming the 

trial court’s order. We also deny as moot the Kunkles’ motion to quash. 

 The following excerpts from various court opinions issued throughout 

this action’s long procedural history provide relevant background to our 
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disposition. We begin with our recitation of facts from our August 20, 1991 

unpublished memorandum disposing of Appellant’s prior appeal regarding 

the disputed property. 

Ralph C. Miller owned a tract of land which he later divided 

and sold, reserving a large portion for himself. Miller originally 

conveyed the portion of the land now known as the Ralph Miller 

Plan of Lots (Miller Subdivision) to William Pehna. This property 

was subsequently reconveyed to Miller after the deaths of Pehna 

and Pehna's wife. In 1980[,] Miller divided the land that had 

been reconveyed to him into five subdivisions. The Miller 

Subdivision, as divided by Miller in 1980 was recorded in the 

office of the Recorder of Deeds of Westmoreland County, Volume 

87, page 169. Lot 1 was the largest lot, bounded on the east by 

the western boundary lines of Lots 2-5. 

Miller subsequently sold the lots in the Miller Subdivision to 

several parties. In 1981[,] Miller conveyed Lots 4 and 5 to ... 

Carl and Nancy Vince. In March of 1983[,] Miller conveyed Lot 2 

to Gary Hopkinson[,] who later conveyed the property to ... [the 

Kunkles]. Miller conveyed Lot 1 to ... [Appellant] on February 1, 

1985. Finally, Miller conveyed lot 3 to Charles Vernosky on 

September 18, 1985. Lot 3 was subsequently conveyed to the 

Vinces and thus the Vinces owned Lots 3-5 at the time of trial. 

N.T., July 17, 1990 at 7. The Vinces and the Kunkles will 

hereinafter be collectively referred to as the grantees. 

In 1985[,] [Appellant] hired James R. Deglau to survey the 

Miller Subdivision because [Appellant] felt that there was a 

problem with the boundary line separating his land from the land 

of the grantees. [Appellant] later hired Gregory C. Parker to 

survey the Miller Subdivision and establish the boundaries of 

[Appellant’s] property. N.T. July 17, 1990 at 51. Parker 

determined that Lot 1 was 6.58 acres instead of 5.835 acres, as 

described in the original Agreement of Sale and the original 

recorded Miller Subdivision plan. N.T. July 17, 1990 at 92-93.

As a basis for this conclusion, Parker reviewed the survey he 

prepared, other surveys and deeds. While preparing his 

survey[,] Parker also prepared a legal description of Lot 1 using 

monuments and metes and bounds. See Exhibit H. 
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 Upon reviewing the results of Parker’s survey, [Appellant] 

filed a complaint [at docket 4980 of 1989 in the Court of 

Common Pleas of Westmoreland County] against Miller and the 

grantees in which he essentially requested reformation of his 

deed. In the alternative[,] [Appellant] requested that title be 

quieted in his favor. The grantees filed individual counterclaims. 

A bench trial was held on July 17, 1990[,] after which a non-jury 

verdict was entered for the grantees on [Appellant’s] claims. In 

addition[,] the court ruled in favor of [Appellant] regarding the 

grantees’ counterclaims [seeking to reform the deed or 

alternatively to quiet title in their favor]. [Appellant] filed posttrial motions which were denied. 

Poydence v. Miller, Kunkle, et al., 599 A.2d 798 (Pa. Super. 1991) 

(unpublished memorandum) at 1-3. 

 In affirming the trial court’s denial of Appellant’s request to reform 

Appellant’s deed or quiet title in his favor, we cited with approval the 

following excerpt from the trial court’s opinion: 

As adduced at trial and set forth in defendant's Statement of the 

Case, [Appellant] bargained for, entered into an Agreement of 

Sale for, and was conveyed by deed Lot No. 1 in the Ralph Miller 

Plan of Lots consisting of at least 5.835 acres as identified by the 

metes and bounds shown on the recorded survey [the 

subdivision plan]. After the conveyance, [Appellant] became 

convinced that there had been some mistake, and he was in fact 

entitled to more than Lot No. 1 as shown on the Ralph C. Miller 

Plan of Lots survey [the subdivision plan], containing 5.835 

acres. [Appellant] had the burden of proving his entitlement to 

more, and the trial court found that he had not carried his 

burden of proving that he was entitled to more than Lot No. 1 as 

described on the Plan, for which he had bargained. 

The cases cited by [Appellant] in the first section of his brief 

refer to cases where there was a mistake in the boundary 

description. In our case, [Appellant] failed to carry his burden of 

proving that there is a mistake in the description of his property. 

[Tlhe trial court ruling was that [Appellant] failed to prove 

anything except that there was more ground in the Ralph Miller 
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Plan of Lots than was originally anticipated. [Appellant] did not 

prove that he was entitled to that excess ground. It was not 

simply that the acreage prevailed. Even if you go by the metes 

and bounds as contained in the Plan of Lots ... [Appellant] 

obtained the metes and bounds as contained in that Plan. 

Id. at 6. 

We additionally emphasized the following statements made by the trial 

court during the trial: 

At trial[,] the trial court stated: 

[N]ow when a man agrees to buy Lot 1, and a man agrees 

to buy Lots 2, 3, 4, and 5 as described, they get what they 

bargained for, but they don't get a gift of Mr. Miller's 

ground, just because everybody's mad because there's 

some excess ground sitting around. 

... 

You asked for 5.835 acres and you got it. If I'm going to 

ask this man, in the final analysis, okay, you take the 

metes and bounds and whatever's there, did he get his 

5.384 [sic] or whatever, acres, yes. If he got his 5.384 

[sic] acres, why is he entitled to more? That's what he 

bargained for. 

N.T. July 17, 1990 at 81-84. Thus, we conclude that there is 

sufficient evidence in the record to support the trial court's 

findings that [Appellant] received the correct amount of land for 

which he bargained when he purchased Lot 1 from Miller. The 

trial court did not abuse its discretion when it determined that 

Miller intended to grant [Appellant] 5.835 acres of land. 

Id. at 8. 

 Subsequently, on November 2, 1995, the Kunkles filed a quiet title 

action against Appellant in the Court of Common Pleas of Westmoreland 

County at docket 8870 of 1995. On June 7, 1996, Appellant filed an answer, 

new matter, and counterclaims to the Kunkles’ quiet title action. Appellant’s 
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counterclaims included an action to quiet title, an action in ejectment, a 

request for injunctive relief, and an action in trespass. During the pendency 

of this action, the trial court granted the Kunkles’ motion for partial 

judgment on the pleadings, denied Appellant’s motion for judgment on the 

pleadings, and dismissed Appellant’s counterclaims based on res judicata

and collateral estoppel, and explained: 

 This case was initiated by the filing of [the Kunkles’] 

Complaint in Action to Quiet Title seeking to declare [the 

Kunkles] owners of a 0.691 acre strip of land adjoining the 

property of [Appellant]. 

[Appellant] then filed an Answer, New Matter and 

Counterclaim, with the Counterclaim including an action to quiet 

title, action in ejectment, a request for injunctive relief, and a 

count in trespass. [The Kunkles] then filed a Reply to 

[Appellant’s] New Matter and Counterclaim and also asserting 

res judicata and collateral estoppel as New Matter based upon an 

action previously filed before this Court by [Appellant], the 

defendant in this case, at No. 4980 of 1989, in which case this 

Court found against [Appellant]. That decision was affirmed by 

the Superior Court of Pennsylvania at No. 159 Pittsburgh 1991, 

and a Petition for Allowance of Appeal to the Supreme Court was 

denied. That Complaint included a count in equity for 

reformation of a deed, a request for injunctive relief, and an 

action to quiet title. The defendants in that case also filed 

Counterclaims seeking quiet title. 

[Appellant], plaintiff in that case, presented his testimony 

and the testimony of a surveyor attempting to prove that he was 

entitled to the property at issue in the case now before this 

Court. This Court held that [Appellant], plaintiff in that case, 

had failed to prove a case, and subsequently denied the posttrial motions of [Appellant]. The basis of this Court's opinion 

was that [Appellant] bargained for, entered into an Agreement of 

Sale for, and was conveyed by deed Lot No. 1 in the Ralph Miller 

Plan of Lots consisting of 5.835 acres and he was entitled to no 

more. None of the defendants, including [the Kunkles], 
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presented any evidence or actually tried their case before this 

Court, but simply rested at the conclusion of [Appellant’s] case. 

After the conclusion of appellate review of the action at No. 

4980 of 1989, the original grantors of the subdivision, Ralph C. 

Miller and Shelly A. Miller, deeded to the Kunkles the property 

set forth in Paragraph 3 of [the Kunkles’] Complaint in this case. 

The plaintiffs in this case, [the Kunkles], then initiated the action 

at this number and term. 

Both [the Kunkles] and [Appellant] have filed Motions for 

Summary Judgment, each claiming the other's claim is barred by 

res judicata and collateral estoppel through those matters 

litigated at No. 4980 of 1989. 

 *** 

 In this case, [Appellant] is attempting again to assert a 

claim to property which this Court and the Superior Court have 

already determined in the previous action at No. 4980 of 1989 

that he did not bargain for, did not purchase, and does not own. 

[Appellant] owns the same property that he owned at the filing 

and determination of the aforesaid case. After the conclusion of 

that case, [the Kunkles], on December 17, 1991, purchased 

from Ralph C. Miller and Shelly A. Miller, his wife, the property 

set forth in Paragraph 3 of [the Kunkles’] Complaint in this case. 

[Appellant] attempts to distinguish the cases by saying 

that he now only seeks Lot No. 1 of the Ralph Miller Plan of Lots 

to the boundaries of Lot Nos. 2 through 5 on the east and 

allegedly bounded by the "monuments" of State Route 819 and 

Township Road. No. 783 ([Appellant’s] Reply to New Matter, 

Paragraph 39). However, the calls he sets forth in the aforesaid 

paragraph differ from those on the recorded Plan, and this Court 

has already rejected [Appellant’s] contention that there is any 

error in his survey on the recorded Plan. 

The Kunkles’ position in this case is to the contrary. This 

Court has not rejected the Kunkles’ contention that there was 

excess property in the Plan still owned by the original grantor, 

Ralph C. Miller, because the Court has never heard the Kunkles’ 

evidence on or decided that issue. In fact, it is implicit in this 

Court's ruling that there was excess property in the Ralph Miller 

Plan of Lots: 
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"The trial court ruling was that [Appellant] failed to prove 

anything except that there was more ground in the Ralph Miller 

Plan of Lots than was originally anticipated. [Appellant] did not 

prove that he was entitled to that excess ground. ..." (Trial Court 

Opinion, p.6). 

Res judicata requires four elements: 

1. Identity of issues; 

2. Identity of the causes of action; 

3. Identity of parties and persons; 

4. Identity of quality or capacity of parties suing or being 

sued. 

Standard Pennsylvania Practice 2d §6561. 

All four elements are clearly satisfied here. [Appellant] is 

seeking to litigate the same issue, i.e., that there was some 

error in the subdivision plan or the property that was conveyed 

to him, that this Court previously decided against him after he 

presented his evidence in the previous case. Second, 

comparison of his Counterclaim in this case with the Complaint 

[Appellant] filed at No. 4980 of 1989 shows that he is seeking 

the same relief, that is to quiet title to the same disputed land 

previously in question in his favor. Third, [Appellant] is seeking 

to assert this against the same parties or their assigns, as he did 

in the other case. Finally, the quality or capacity in the persons 

for or against whom the claim is being made is obviously 

identical, because the parties are the same. Where a finding of 

trespass against a defendant in a previous case necessarily 

entailed that the plaintiffs had to have title, such finding is res 

judicata in a later ejectment case. Loomis Lake Association v. 

Smith, 466 Pa. Super. 612, 531 A.2d 1152 (1987). [Appellant] 

is therefore barred from seeking ejectment in this case. 

In addition, [Appellant] is barred by collateral estoppel 

from relitigating the survey issues he is attempting to assert in 

this case. Collateral estoppel applies if: 

1. The issue decided in the prior case is identical to the 

one presented in the later case; 

2. There was a final judgment on the merits; 
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3. The party against whom the plea is asserted was a party 

or in privity with a party in the prior case; 

4. The party or person privy to the party against whom the 

doctrine is asserted had a full and fair opportunity to 

litigate the issue in the prior proceeding; and 

5. The determination in the prior proceeding was essential 

to the judgment. 

Meridian Oil and Gas v. Penn Central, 418 Pa. Super. 231, 614 

A.2d 246 (1992), app. den., 532 Pa. 649, 627 A.2d 180. 

All these elements are met, and [Appellant] is barred by 

collateral estoppel from his counterclaim in this case. 

1. The issue decided in the prior case is identical to the 

one he attempts to present in this case, i.e. the "calls" on 

the recorded subdivision plan are somehow wrong, which 

has already been decided by this Court in the case at No. 

4980 of 1989; 

2. There was a final judgment in the previous case on the 

merits, affirmed by the Superior Court; 

3. The collateral estoppel is being asserted against 

[Appellant] who was a party in the previous case. 

4. [Appellant] had a full and fair opportunity to litigate the 

issue in the prior proceeding, and presented his own 

testimony and the expert testimony of his surveyor, which 

was rejected by this Court; 

5. The determination by this Court that the subdivision 

plan and its survey was correct, and [Appellant] received 

everything he bargained for, being 5.835 acres, was

essential to the judgment of this Court that [Appellant] 

was not entitled to the acreage at issue in the previous 

case and this case. 

[Appellant] has understandably and artfully worded his 

Counterclaim in this case to attempt to make it look different 

from the Complaint he previously filed and was defeated upon. 

However, it is clear that the claim he is asserting is the same, 

and he is barred in this Counterclaim by both res judicata and 

collateral estoppel, and the Counterclaim should be dismissed. 
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As to [Appellant’s] Motion, the claims of [the Kunkles] in this 

case were not litigated at No. 4980 of 1989. Perhaps [the 

Kunkles who were] the defendants therein, [and who are] the 

plaintiffs herein, technically should have withdrawn their claims. 

They did not technically withdraw their claims, but elected to 

present no testimony and as such this was equivalent to a 

withdrawal of their counterclaims and as such no final decision 

was made on the merits in order for the application of res 

judicata or collateral estoppel to apply. Accordingly, the Motion 

for Summary Judgment of [Appellant] will be denied.

Trial Court Opinion, 8870 of 1995, 9/23/1997, at 1-8. 

 At the conclusion of the non-jury trial regarding the Kunkles’ quiet title 

action, the trial court dismissed the action, and explained: 

It is apparent to this Court and all parties that the original 

Survey or Plan of the Ralph Miller Plan of Lots did not utilize all 

of the Miller property and there is excess ground which was not 

shown on that Plan of Lots. The question before the Court is 

"where is that ground, who owns it", and have [the Kunkles] or 

[Appellant] proven the same. 

[The Kunkles] attempt to prove their case through the 

testimony of Richard A. Sunder and the survey prepared by him 

while [Appellant] asserts his position through the testimony and 

survey of Gregory C. Parker. 

[The Kunkles] attempt to place the excess ground as a thin 

rectangular strip of ground between Lots 1 and 2 through 5 of 

the Miller Plan consisting of .691 acres in accordance with the 

Sunder survey. However, Sunder admitted on crossexamination that no such gap existed in the original Miller Plan 

of Lots, but was "located" by him by coming 460 feet West along 

the Northern boundary of Lot 1, from a starting point 57 feet 

North from a corner set stone which was not contained in the 

Miller Plan of Lots nor referenced in any deed to the lots 

contained in that plan. 

Furthermore, Mr. Sunder acknowledged that Lot 1 was

bounded to the North by the original parent tract; to the South 

and West by Township Road 783; and to the East by Lots 2 

through 5 and that the measurements contained in the original 

Miller Plan of Lots were inconsistent with those contained in his 
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survey and deed which formed the basis for [the Kunkles’] claim 

for title. 

No strip of ground existed between Lot 1 and Lots 2

through 5 in the original Miller Plan of Lots, nor could there be 

since this would be in violation of the Local Ordinance which 

governs the size and shape of Lots in Salem Township. Further, 

the Southern lines of Mr. Sunder's survey, when added up, are 

inconsistent with the measurements as they exist in the field. If 

followed, it would cause one to be standing to the West of 

Township Road 783, far off of the property contained in Lot 1. 

This indicates that the location of the disputed ground cannot be 

placed between Lot 1 and Lots 2 through 5 as claimed by [the 

Kunkles]. 

Likewise, the testimony of Gregory Parker, for the 

[Appellant], as to the survey prepared by him, in the opinion of 

this Court, was also inconclusive as to the location of the excess 

ground. In his testimony, Parker agreed that Route 819 was a 

monument and agreed that the set stone in the Miller property 

was a monument. However, he refused to recognize the set 

stone as a monument in the Miller Plan of Lots. He testified that 

it was a monument for the Miller Tract but not for the Miller Plan. 

His reasoning was that the set stone was not called for in the 

description of Lot No. 1. In fact, there are no boundaries called 

for in the description of Lot No. 1. Lot No. 1 in the Deed to 

[Appellant] is simply described as Lot No. 1 in the Miller Plan. 

There are no adjoinders nor boundaries mentioned in

[Appellant’s] Deed. Parker's attempt to ignore what he admits 

to be a monument, is simply an attempt to bolster his 

conclusion. Parker, when asked by this Court, admitted that he 

could have placed the excess ground anywhere, but he chose to 

place it on the Northerly boundary of Lot No. 1 for no good or 

logical reason. By doing what he attempted to do, Mr. Parker 

ignored the East/West distances for Lot No. 1 and ignored the 

North/South distance for the Easterly boundary of Lot No. 1, 

none of which makes any sense in fact or in law. 

Although everyone agrees that there is excess ground, no 

party has proven with certainty where the excess is located. 

Each expert witness lifts themselves by their own bootstraps, 

ignoring significant items that would compel a different 

conclusion. Each expert has admitted that they placed the 

ground where they wanted it and then tried to justify this 

conclusion with more conclusions. 
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Simply put, neither [the Kunkles] nor [Appellant] have 

proven where the excess ground is located. Each party argues 

that their survey is truer than the other. Which one is truer is 

not the question, the question is, has either survey properly 

located the excess ground. In the opinion of this Court they 

have not. This Court is of the opinion then that the testimony of 

Sunder and Parker as to their respective surveys is not accurate 

nor credible. As noted, each ignore those items that do not 

support this conclusion. The question of whether an expert's 

opinion is convincing or credible is a matter for the finder of fact. 

Duquesne Light v. Woodland Hills School District, __ Pa. Cmwlth. 

__, 700 A.2d 1038, 1047 (1997). In the opinion of this Court 

the placement of the excess ground by each surveyor was just 

short of mere speculation and neither was convincing to this 

Court. 

Such being the case, this Court must dismiss [the 

Kunkles’] Complaint as [the Kunkles] have failed to prove where 

the excess ground is located and accordingly, have failed to 

prove that they own the parcel of ground claimed by them. 

Trial Court Opinion, 8870 of 1995, 3/15/1999, at 7-10. In its conclusions, 

the trial court reiterated that it was dismissing the Kunkles’ action because 

the Kunkles had “failed to prove that the excess ground was a .691 acres 

strip of ground running between Lot 1 and Lots 2 through 5 in the Miller Plan 

of Lots and that [the Kunkles] are entitled to any excess ground, wherever 

located.” Id. at 11. On April 14, 1999, Appellant filed a notice of appeal. 

On July 29, 1999, we quashed Appellant’s appeal noting that “[n]o post-trial 

motions ha[d] been filed[.]” Order, 7/29/1999, at 1. 
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 On August 19, 2013, Appellant filed an emergency petition for special 

relief and/or to enforce judgment against E. Dale Kunkle.1 Appellant averred 

that “on or about April 22, 2013,” Mr. Kunkle’s attorney sent Appellant a 

letter “threatening to erect a fence through his driveway and his shrubbery.” 

Appellant’s Emergency Petition for Special Relief and/or to Enforce 

Judgment, 8/19/13, at 1. Appellant further averred that he responded in 

writing by stating that Appellant’s “shrubbery and driveway are not located 

on [Mr. Kunkle’s] property and that [Mr. Kunkle] is trespassing and must 

immediately stop trespassing.” Id. Appellant averred that “[o]n or about 

August 15, 2013[,] [Mr. Kunkle] unlawfully entered the property of 

[Appellant], inserted steel pins in [Appellant’s] driveway, cut down and 

removed bushes that were located thereon and has threatened ... to cut 

more bushes down that are located on [Appellant’s] property and also erect 

a fence through [Appellant’s] driveway.” Id. 

 Appellant’s petition requested that the trial court: 1) enjoin Mr. 

Kunkle from entering Appellant’s property “specifically but not limited to the 

area immediately west of lots 2-5 as recorded in the Ralph Miller Plan of 

Lots”; 2) enjoin Mr. Kunkle “from cutting, removing or otherwise damaging 

[Appellant’s] bushes or other landscaping”; and 3) enjoin [Appellant] from 

____________________________________________ 

1

 At the time of Appellant’s August 19, 2013 emergency petition, Helen 

Kunkle had passed away and was not included in the caption of the 

emergency petition. 
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the erection of a fence or any other obstruction that impairs the quiet use 

and enjoyment of [Appellant’s] property specifically but not limited to the 

area immediately west of lots 2-5 as recorded in the Ralph Miller Plan of 

Lots”. Id. at 2. 

 On August 26, 2013, the trial court ordered that “[b]oth parties ... 

maintain the status quo of the disputed strip of excess ground and/or its 

disputed exact location as to each party’s actions when the case was 

concluded pursuant to the March 12, 1999 Order of the Court.” Order, 

8/26/13, at 1. The trial court further ordered that “neither party may have 

access to, or enter upon, the disputed subject areas except as to status quo 

activities.” Id. at 2. The trial court scheduled an evidentiary hearing for 

November 21, 2013. Id. 

 On September 24, 2013, Appellant filed an emergency petition for 

special relief and/or to enforce judgment against Vince. Appellant averred 

that Vince is the owner of Lots #3B, 4, and 5 of the Ralph Miller Plan of Lots. 

Appellant’s Emergency Petition for Special Relief and/or to Enforce 

Judgment, 9/24/13, at 1. Appellant further averred that “[o]n or about 

September 7, 2013, [Vince] entered onto the area immediately west of lots 

2-5 as recorded in the Ralph Miller Plan of Lots and proceeded to cut the 

grass.” Id. Appellant requested that the trial court enjoin Vince consistent 

with the trial court’s August 26, 2013 order. Id. at 2. 

On September 30, 2013, Appellant filed a motion to amend the caption 

of his original emergency petition to add Vince. Motion to Amend Caption 
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and Add Additional Defendant, 9/30/13, at 1. On October 4, 2013, the trial 

court granted the motion to amend the caption. On the same date, the trial 

court enjoined Vince consistent with its August 26, 2013 order. 

On November 21, 2013, the trial court continued the evidentiary 

hearing. On December 26, 2013, Mr. Kunkle filed a motion to dismiss 

Appellant’s emergency petition. Mr. Kunkle averred “[a]s the Court knows, 

[the prior trial court] decided that no one proved ownership to the excess 

ground ... and dismissed all claims and counter claims.” Motion to Dismiss 

the Emergency Petition for Special Relief and/or to Enforce Judgment, 

12/26/13, at 1. On the same date, the trial court dismissed Appellant’s 

emergency petition, and ordered that “[n]evertheless, all terms and 

conditions of previous Orders of Court ... shall remain in full force and 

effect.” Order, 12/26/13, at 1. 

On January 22, 2014, Appellant filed a notice of appeal. The trial 

court did not direct Appellant to comply with Pa.R.A.P. 1925. The trial court 

issued an order pursuant to Pa.R.A.P. 1925(a), stating: 

AND NOW, to wit, this 25th day of February, 2014, it appearing 

to the Court that a Notice of Appeal has been filed by 

[Appellant], in the above-captioned matter, at 157 WDA 2014; 

and, it is hereby noted that, the reasons for the Order of Court 

dated December 26, 2013, (incorrectly dated 2014) were set 

forth in said Order of Court, in reference to [Mr. Kunkle’s] Motion 

to Dismiss the Emergency Petition for Special Relief and/or to 

Enforce Judgment, as well as the prior Order of Court dated 

March 12, 1999; and, that the relief sought by [Appellant] in his 

Emergency Petition was, in fact, granted by this Court's Order 

dated December 26, 2013. 
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This Order is being entered to comply with Pennsylvania Rule of 

Appellate Procedure 1925(a). 

Order, 2/26/14, at 1. 

 Appellant presents the following issues for our review: 

I. Did the trial court abuse its discretion and/or erred as a matter 

of law by not concluding that when the previous trial court 

specifically stated in its Findings of Fact, Discussion, Conclusion 

of Law, and Order, that “the disputed ground cannot be placed 

between Lot 1 and Lots 2 through 5”, and is supported by 

testimony and evidence, and the previous trial court having 

dismissed all appellees claims to the same ground; that the issue 

of the disputed ground, at least that its not to be located 

between Lot 1 and Lots 2 through 5, is decided and determined, 

and thus the location of Lot 1's eastern boundary is decided and 

determined, and the disputed ground alleged to be between Lot 

1 and Lots 2 through 5, is in fact, part of appellant's Lot 1? 

II. Did the trial court abuse its discretion and/or erred as a 

matter of law by dismissing appellant's Emergency Petition For 

Special Relief and/or To Enforce Judgment and for failing to 

enter a final judgment in appellant's favor based on the previous 

trial court's Findings of Fact, Discussion, Conclusion of Law, and 

Order, that decided appellant owns the disputed ground 

immediately west of Lots 2 through 5, and for failing to then 

enforce said judgment, grant the proper relief by way of 

ejectment and/or quiet title, grant damages, and forever bar 

these issues from being re-litigated by res judicata and collateral 

estoppel? 

Appellant’s Brief at 10. 

 We review the trial court’s dismissal of this action under an abuse of 

discretion standard. Coulter v. Ramsden, 94 A.3d 1080, 1086 (Pa. Super. 

2014). In Coulter, we expressed: 

Judicial discretion requires action in conformity with law on facts 

and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion if, 

in resolving the issue for decision, it misapplies the law or 
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exercises its discretion in a manner lacking reason. Similarly, 

the trial court abuses its discretion if it does not follow legal 

procedure. 

Id. 

Here, our review of the record reflects that Appellant’s issues attempt 

yet again to revive his prior contentions, arguments, and issues regarding 

the ownership of the disputed land. We cannot entertain Appellant’s 

renewed efforts. In disallowing an employer to “revisit ... and, in a disguised 

way, to relitigate,” the initial finding of an employee’s disability, our 

Supreme Court observed: 

We acknowledge that the term “res judicata” is a somewhat 

sloppy term and that it is sometimes used to cover both res 

judicata itself (claim preclusion) as well as collateral estoppel 

(“broad” res judicata or issue preclusion). Collateral estoppel, 

broad res judicata or issue preclusion “forecloses re-litigation in 

a later action, of an issue of fact or law which was actually 

litigated and which was necessary to the original judgment.” 

City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh,

522 Pa. 44, 55, 559 A.2d 896, 901 (1989). 

Hebden v. W.C.A.B. (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304 

(Pa. 1993). 

 Our Commonwealth Court has explained: 

Strict res judicata, also known as claim preclusion, provides that 

where there is a final judgment on the merits, future litigation 

between the parties on the same cause of action is prohibited. 

Myers v. Workers Comp. Appeal Bd. (Univ. of Pennsylvania), 782 

A.2d 1108 (Pa.Cmwlth.2001), appeal denied, 568 Pa. 688, 796 

A.2d 319 (2002). Four factors must exist in order for claim 

preclusion to apply: (i) identity in the thing being sued upon or 

for; (ii) identity of the cause of action; (iii) identity of the 

persons and parties to the action; and (iv) identity of the quality 

or capacity of the parties being sued. Id. A default judgment is 
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res judicata with regard to transactions occurring prior to entry 

of judgment. Quaker City Chocolate Confectionery Co. v. 

Warnock Bldg. Ass'n., 347 Pa. 186, 32 A.2d 5 (1943); Zimmer v. 

Zimmer, 457 Pa. 488, 326 A.2d 318 (1974). 

McGill v. Southwark Realty Co., 828 A.2d 430, 435 (Pa. Cmmwlth. 2003). 

 We recently opined: 

Res judicata, which is also known as claim preclusion, holds that 

a final judgment on the merits by a court of competent 

jurisdiction will bar any future action on the same cause of action 

between the parties and their privies. McArdle v. Tronetti, 426 

Pa.Super. 607, 627 A.2d 1219, 1222 (1993). The doctrine has 

application where the following are present: (1) identity of the 

thing sued upon or for; (2) identity of the cause of action; (3) 

identity of persons or parties to the actions; and (4) identity of 

the quality or capacity of the parties suing or sued. See id. at 

1222; Martin v. Poole [232 Pa.Super. 263], 336 A.2d [363], 366 

[ (Pa. Super. 1975)]. “[A]ll matters which might have been 

raised and decided in the former suit, as well as those which 

were actually raised therein, are res [ ] judicata in a subsequent 

proceeding between the same parties and their privies.” Nevling 

v. Commercial Credit Co., 156 Pa.Super. 31, 39 A.2d 266, 267 

(1944); see also McArdle, 627 A.2d at 1222.... 

In determining whether res judicata should apply, a court 

may consider whether the factual allegations of both actions are 

the same, whether the same evidence is necessary to prove 

each action and whether both actions seek compensation for the 

same damages. Mintz v. Carlton House Partners, Ltd., 407 

Pa.Super. 464, 595 A.2d 1240, 1246 (1991). “The thing [that] 

the court [should] consider is whether the ultimate and 

controlling issues have been decided in a prior proceeding in 

which the present parties actually had an opportunity to appear 

and assert their rights.” Stevenson v. Silverman, 417 Pa. 187, 

208 A.2d 786, 788 (1965) (emphasis omitted) (quoting 

Hochman v. Mortgage Fin Corp., 289 Pa. 260, 137 A. 252, 253 

(1927)). Although based upon facts in common with an earlier 

action, res judicata will not bar a subsequent action where the 

damages for which relief was sought in the earlier action were 

entirely different. Pontiere v. James Dinert, Inc., 426 Pa.Super. 

576, 627 A.2d 1204, 1210 (1993); Melat v. Melat, 411 Pa.Super. 

647, 602 A.2d 380, 383 (1992). Indeed, two suits [that] have 
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arisen out of the same set of factual circumstances may involve 

entirely separate causes of action. McArdle, 627 A.2d at 1222; 

Martin, 336 A.2d at 366. 

Rearick v. Elderton State Bank, 97 A.3d 374, 380 (Pa. Super. 2014) 

(internal citation omitted). 

After careful review, we disallow Appellant’s “disguised way, to 

relitigate” the ownership of the disputed property. Hebden, supra, at 

1304. Indeed, even in the preamble to the trial court’s December 26, 2013 

order, it is apparent that this matter is a revival of the prior property 

ownership issues and legal dispositions. See generally Order, 12/26/13. 

The parties and the underlying allegations in the instant petition and the 

prior litigation are the same. The property is the same. Moreover, the 

“ultimate and controlling issues have been decided in a prior proceeding,” 

and the relief being sought now presently does not differ from the prior relief 

sought. Rearick, supra, at 380. Significantly, Appellant’s emergency 

petition sought, inter alia, to bar Mr. Kunkle and Vince from entering “the 

area immediately west of lots 2-5,” which is the same property he 

unsuccessfully sought to reform or quiet title to previously. Further, 

Appellant’s issues ask us to determine whether the trial court erred in failing 

to conclude that “the disputed ground alleged to be between Lot 1 and Lots 

2 through 5, is in fact, part of [A]ppellant’s lot 1,” and for failing to enter a 

final judgment in appellant’s favor ... and for failing to then enforce said 

judgment, grant the proper relief by way of ejectment and/or quiet title, 

grant damages, and forever bar these issues...” Appellant’s Brief at 10. 
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Pursuant to the doctrines of res judicata and collateral estoppel, we 

decline to reach Appellant’s issues, thereby affirming the trial court’s order. 

We also deny as moot the Kunkles’ motion to quash. 

Order affirmed. Appellee Kunkle’s Motion to Quash denied as moot. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 12/11/2014