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NORBECK v. ALLENSON ET UX. (06/16/72)

decided: June 16, 1972.

NORBECK
v.
ALLENSON ET UX., APPELLANTS



Appeal from judgment of Court of Common Pleas of Warren County, Nov. T., 1969, No. 70, in case of William F. Norbeck and Elizabeth S. Norbeck v. Carl W. Allenson and Lillian C. Allenson.

COUNSEL

David W. Swanson, with him Swanson and Bevevino, for appellants.

Alan Bruce Bowden, with him William R. Mervine, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, and Mervine & Calderwood, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Watkins and Jacobs, JJ., dissent.

Author: PACKEL

[ 221 Pa. Super. Page 423]

Two couples dispute the ownership of a 30-foot strip between their adjoining properties. The plaintiffs had brought an action to quiet title alleging their title and possession of the disputed strip. The defendants filed an answer, denying plaintiffs' ownership and possession of the disputed strip. At the jury trial, both sides put their paper title in evidence. The defendants also testified, without objection, that in 1947 they planted a garden in the contested area and that for more than 21 years thereafter they continued to garden or to mow the lawn, and that they alone controlled the strip.

[ 221 Pa. Super. Page 424]

The court charged the jury only on the issue of who had paper title and refused defendants' points to charge on adverse possession. The jury found for the plaintiffs. The basis for the appeal is the refusal of the judge to put to the jury the issue of adverse possession.

From the trial record it would appear that both counsel maneuvered as though they were participating in a game rather than engaged in the pursuit of justice to determine the factual issue of the rights of the parties. Counsel for the defendants said nothing in his pleading about adverse possession, apparently because he thought that under the rules a denial of a plaintiffs' ownership and possession was sufficient, and he would be permitted to put in evidence the adverse possession. Counsel for the plaintiffs did not object to the admission of the evidence of adverse possession because apparently he thought that under the rules it was not a proper issue, and hence objection thereto was not necessary.

We believe that justice does not call for a standoff in this case by such reliance on an uncertain rule of procedure. Either side could have raised the issue at the pre-trial conference or during the trial so that the factual controversy might have been adequately dealt with. Under the circumstances of this case, the lack of appropriate authority to guide counsel as to what must be pleaded should not have prevented the assertion of the substantive rights of the appellants.

The uncertainty as to whether the defense of adverse possession must be affirmatively pleaded is pointed up by a review of the authorities. The present language of the Rules of Civil Procedure does not clearly resolve the issue. The rules governing actions to quiet title, Pa. R. C. P. 1061, as well as actions in ejectment, Pa. R. C. P. 1051, make applicable Pa. R. C. P. 1030, which governs actions of assumpsit. It sets

[ 221 Pa. Super. Page 425]

    forth an enumeration of affirmative defenses which does not include adverse possession. Although the enumeration includes statutes of limitations, the uncertainty exists because that does not necessarily include the defense of adverse possession in that it gives actual ownership and not merely a remedy to set up the bar of the statute.*fn1 In Schall v. Williams Valley Railroad Co., 35 Pa. 191, 204 (1860), the Court stated: "In the great case of Atkyns v. Horde, 1 Burr. 119, Lord Mansfield expounded the effect of the statute of limitations in these words: 'Twenty years' adverse possession is a positive title to the defendant; it is not a bar to the action, or remedy of the plaintiff only, but takes away his ...


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