Hickory Hill Group II, LLC v. East Nottingham Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hickory Hill Group II, LLC, :

Appellant :

:

v. : No. 1 C.D. 2023

:

East Nottingham Township : Argued: June 3, 2025

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE WOLF FILED: June 27, 2025

Hickory Hill Group II, LLC (HHG) appeals from the August 29, 2022

order of the Court of Common Pleas of Chester County (trial court) entering

judgment against HHG in favor of East Nottingham Township (Township). The

judgment followed the trial court’s July 11, 2022 denial of HHG’s motion for post-

trial relief and its March 7, 2022 order following trial that denied HHG’s complaint

in ejectment against the Township and recognized a public road passing over HHG’s

property at 1044 Hickory Hill Road, Oxford, Pennsylvania (Property). HHG

presents several issues for our review, including that (1) the trial court’s findings are

not supported by substantial evidence, (2) the trial court erred in applying the law

governing public roads, and (3) an adjoining property owner is an indispensable

party but was not joined in this action, thus depriving the trial court of jurisdiction.

Following remand for factfinding on the last issue, we conclude that the adjoining

property owners are indispensable but were not joined as parties, so the trial court

lacked jurisdiction. We thus vacate the trial court’s order and remand with direction

to dismiss without prejudice to the right of HHG to refile the action as long as they

join indispensable parties.

I. BACKGROUND

The following background is undisputed and as found by the trial court.

The Property is a roughly triangular parcel bordered by two paved public roads: on

the north by Oxford Road and on the south by Hickory Hill Road. A 250-foot-long

dirt and gravel access way runs north-south across the Property’s eastern edge,

connecting the two paved public roads that border the Property. This access road is

known as Fulton Road, and the portion of it located on the Property is in dispute here

(Disputed Area). When Fulton Road leaves the Disputed Area and the Property

across Hickory Hill Road to the south, Fulton Road becomes a paved road.

Joseph and Ethel Coates purchased the Property in 1948 and

constructed multiple buildings, which they used to operate auto repair, junkyard, and

salvaging businesses. The Coates used the then-existing Disputed Area as an access

way when operating the businesses. Joseph Coates’ sons continued to operate the

businesses after he died in 1972.

In 2014, the Coates family conveyed the Property to HHG by deed.

John R. Seitz was HHG’s principal at the time. Seitz attempted to form HHG in

Delaware in 2014 to acquire the Property. Although the initial entity formation was

defective, the trial court found—and the parties do not dispute on appeal—that HHG

later cured the defect, such that HHG effectively took title to the Property by the

2014 deed. Seitz allowed the Coates family to continue operating their businesses

for one year after closing. In 2015 Seitz began operating his business on the Property.

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He used the Disputed Area for access to the buildings and occasionally blocked the

northern or southern entrance to the Disputed Area. In 2014, the Township ordered

Seitz to remove barricades blocking the Disputed Area and it striped the centerline

and edges of the Disputed Area as if it were a public road.

HHG commenced this suit in 2018 by filing a complaint in ejectment

against the Township. The complaint alleged that the Disputed Area is a private

driveway and that the Township had wrongfully possessed it and prevented HHG’s

free use thereof. Reproduced Record (R.R.) at 12a-14a. The complaint sought to

eject the Township from the Disputed Area. Id. The Township filed an answer with

new matter in which it asserted, as an affirmative defense to HHG’s ejectment claim,

that the Disputed Area is a public road. R.R. 27a-28a. HHG sought preliminary

injunctive relief, which the trial court denied. The Township moved for summary

judgment on the ejectment claim, which the trial court also denied.

Judge Edward Griffith of the trial court held a two-day bench trial in

October 2021. HHG presented testimony from seven witnesses including Seitz and

members of the Coates family, and affidavits from three witnesses who were

deceased. R.R. at 435a. That testimony tended to show that since the Coates’

ownership of the Property began in 1948, the Disputed Area was sometimes

obstructed with vehicles or debris. HHG introduced aerial photographs from several

years between 1962 and 2014. Id. at 469a-76a. Some of those photographs showed

obstructions that made the Disputed Area impassable, while others showed that it

was passable. The Township presented seven different witnesses who testified to

their past use of the Disputed Area as a public road and the Township’s maintenance

of the Disputed Area. Id. at 435a. The Township introduced the 1992 resolution

stating that the Disputed Area “has been in use by the public and has been maintained

3

by the expenditure of [T]ownship funds for a period of twenty-one (21) years or

more,” id. at 490a, and a 2009 ordinance designating an intersection and stop sign

in the Disputed Area, id. at 492a-93a. The Township also introduced documentary

evidence. This included a 1937 photograph showing the Disputed Area predating

any structures on the Property and later photographs showing the Disputed Area with

road signage and road striping. Id. at 511a, 585-92a.

In its March 7, 2022 decision and order, the trial court found for the

Township. It credited testimony about members of the public using the road over

time and the Township’s maintenance of the Disputed Area as a road. R.R. at 424a-

26a. The trial court reasoned and concluded in relevant part as follows:

The Township maintains that the Disputed Area qualifies

as a public road under [Section 2307 of the Second Class

Township Code (Code)1]and by prescription. We address

prescription first.

....

The Township has demonstrated that the Disputed Area

has been continuously used by the public to travel between

Oxford Road and Hickory Hill Road since at least the late

1960’s. The use was without permission and as desired for

convenience and to avoid a dangerous intersection. The

use shows a settled course of conduct indicating an attitude

1

Act of May 1, 1933, P.L. 103, added by the Act of November 9, 1995, P.L. 350, as

amended, 53 P.S. § 67307. It provides, in relevant part:

(a) Every road which has been used for public travel and maintained and kept in

repair by the township for a period of at least twenty-one years is a public road

having a right-of-way of thirty-three feet even though there is no public record of

the laying out or dedication for public use of the road.

Subsection (b) through (e) of Section 2307 state criteria the trial court should consider in

adjudicating a claim that a road is public under Section 2307(a). 53 P.S. § 67307(b)-(e).

4

of mind on the part of the user or users that the use is an

exercise of a property right. The use was adverse to the

Coates[]’ and Plaintiff[’]s interest. A prescriptive

easement has been established.

....

As required by the Section 2307[ of the Code], we have

considered:

(i) the Pennsylvania Department of Transportation maps

dating back to 1923 and Township zoning maps dating

back to 1971 that depict the Disputed Area as a Township

road; . . .

(ii) the distribution of Liquid Fuels tax money to the

Township since 1992;

(iii) the failure to identify the Disputed Area as a road on

the deeds and certain subdivision plan; and

(iv) evidence that the Disputed Area is an extension of the

paved section of Fulton Road providing access to Oxford

Road.

Section 2307 [of the Code] also requires that consideration

be given to the condition or sufficiency of the road surface

for public travel. While it is evident that the road surface

was not well maintained, the Disputed Area remained

passable . . . . Given all of [the] evidence and considering

the limited need for maintenance of a small country gravel

and dirt road, the Township’s lack of records, and the

likelihood that in 1992 when the Liquid Fuels Resolution

was passed the Supervisors would have been familiar with

the maintenance of roads in the Township, this is sufficient

evidence to establish twenty-one years of maintenance.

Accordingly, the Township has established that the

Disputed Area is a public road under the Second Class

Township Code.

R.R. at 428a-34a (internal quotation marks and citations omitted).

HHG filed post-trial motions, which the trial court denied by July 11,

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2022 order. The trial court entered judgment for the Township on August 29, 2022.

HHG filed a timely notice of appeal indicating appeal to the Superior Court of

Pennsylvania. Superior Court transferred the appeal to this Court by January 3, 2023

order.2

In May 2023, while its appeal was pending here, HHG filed two

motions regarding the record. The first sought to correct certain illegible portions

of the original record with legible versions. The second motion, which the Township

opposed, sought to supplement the record with recently discovered evidence. HHG

alleged that some portion of the Disputed Area goes beyond the Property onto the

neighboring property to the east. HHG argued that the owners of that neighboring

property are thus indispensable parties that were not joined, which implicates the

trial court’s subject matter jurisdiction. By September 11, 2023 memorandum and

order, this Court concluded that the assertion of an indispensable party warranted

reopening the record to assure the trial court’s jurisdiction. We stayed the briefing

schedule and remanded the matter, retaining jurisdiction, for the trial court to make

a determination and issue a supplemental opinion on that issue.

On remand, Judge Anthony T. Verwey3 of the trial court reopened the

record on the indispensable party issue. The trial court scheduled a hearing and

ordered the scheduling order to be served on the owners of the adjoining property at

issue. Original Record (O.R.), Item No. 111. On April 3, 2024, counsel for HHG

filed an affidavit of service indicating that he hand delivered a copy of the scheduling

2

See 42 Pa.C.S. § 762(a)(4)(i)(A) (providing that Commonwealth Court has exclusive

jurisdiction of appeals in actions drawing into question the application or interpretation of a statute

regulating the affairs of a political subdivision).

3

Judge Griffith, who had conducted the bench trial and issued the trial court’s merits

decisions, passed away during the pendency of this appeal. This matter was reassigned to Judge

Verwey.

6

order to Jesus Zavala, the owner of the adjoining property. O.R., Item No. 113.

Counsel averred that Zavala verbally indicated he would not attend the hearing. Id.

At the hearing on April 5, 2024, the parties jointly submitted a survey

conducted by Padula Engineering on March 18, 2024 (Survey). R.R. at 813a. The

neighboring property to the east is jointly owned by Jesus Zavala, Jr., and his spouse,

Jacqueline Carillo (Neighbors), who were not present at the hearing. R.R. at 809-

10a, 813a. The Survey shows that approximately half of the Disputed Area is located

on Neighbors’ property. Id. at 813. The trial court confirmed this, finding that “a

portion of the Disputed Area lies within” Neighbors’ property. See Supp’l Pa.R.A.P.

1925(a) Op., filed April 23, 2024. The trial court transmitted the record back to this

court and the parties filed their appellate briefs. After oral argument, the matter is

ready for disposition.

II. ISSUES

On appeal,4 HHG raises the following issues for our review: (1)

whether the trial court erred in finding a public road by prescription when the

Township had waived that theory or defense by failing to raise it in its answer and

motion for summary judgment; (2) whether the trial court abused its discretion by

making findings not supported by substantial evidence and ignoring evidence

favorable to HHG; (3) whether the trial court erred in applying the Second Class

Township Code and/or the doctrine of prescriptive public roads; and (4) whether

Neighbors are an indispensable party who were not joined, which deprived the trial

court of subject matter jurisdiction.

4

Our review of a trial court order denying post-trial motions “is limited to a determination of

whether the trial court abused its discretion or committed an error of law.” Pikur Enters., Inc. v.

Dep’t of Transp., 641 A.2d 11, 13 (Pa. Cmwlth. 1994).

7

III. DISCUSSION

Before addressing the merits, we consider whether Neighbors are

indispensable parties because that issue affects the jurisdiction of the trial court.

HHG argues that Neighbors are indispensable parties because the trial court has

declared the Disputed Area—which lies partly on Neighbors’ property—to be a

public road. HHG concedes that this suit began as an ejectment action against only

the Township and only with respect to HHG’s Property. But in HHG’s view, when

the Township raised the prospect of a public road easement as a defense to that

ejectment claim, the Township effectively expanded this litigation beyond just the

Property to affect the rights of all other owners whose property would be burdened

by the public road easement. HHG argues that because Neighbors own part of the

area that is a public road under the trial court’s order, the determination on the public

road issue necessarily affected Neighbors’ property interests. HHG agrees with the

trial court’s determination on remand that, in light of the undisputed survey,

Neighbors’s property interests were clearly affected by the trial court’s decision.

HHG asserts that because it was the Township’s defense that made

Neighbors indispensable, the Township should have joined Neighbors. HHG points

out that the absence of an indispensable party deprives the trial court of jurisdiction

to grant any relief. See HHG’s Br. at 77-78 (quoting Pa.R.Civ.P. 1032(a) (“A party

waives all defenses and objections which are not presented either by preliminary

objection, answer or reply, except . . . the defense of failure to join an indispensable

party . . . .”)). Notwithstanding its argument that the trial court lacked jurisdiction

for failure to join Neighbors, HHG asks this Court to reverse on the merits for abuses

of discretion and errors of law. HHG’s Br. at 20, 80-81. Only as an alternative does

HHG request that we vacate and remand due to lack of jurisdiction in the trial court.

8

Id. HHG does not explain or offer authority for the proposition that this Court can

reach the merits even if the trial court lacked jurisdiction.

The Township makes essentially two responsive arguments. First, it

argues Neighbors are not indispensable. It does not dispute the Survey showing that

recognition of a public road will burden Neighbors’ property. See Township’s Br.

at 26. But it states that “[t]he only necessary or indispensable party to an ejectment

action is the person in actual possession of the land.” Id. at 23 (quoting Bannard v.

New York State Natural Gas Corp., 172 A.2d 306, 310 (Pa. 1961)). The Township

argues that this ejectment action—including any determination as to whether a

public road was created—pertains only to HHG and the Property. It claims that the

impact of any public road on other properties “would be an issue as between the

Township and that neighboring party (which has not challenged the road status),”

and that “[i]f [Neighbors] challenged the existence of Fulton Road, [they] would not

be bound by HHG’s action or the [t]rial [c]ourt ruling.” Township’s Br. at 25-26.

On that theory, the Township argues Neighbors’ interest is not essential to this

litigation. In reply, HHG explains that the Township made a similar argument before

this Court prior to remand, and to the trial court on remand, and both courts rejected

that argument. HHG asserts that this Court’s remand and the trial court’s factfinding

on the boundary issue demonstrate that the Township’s purely legal argument—that

this litigation does not bind Neighbors—is contrary to this Court’s view of the issue.

Second, the Township argues that even if Neighbors were technically

indispensable below, affidavits and representations by HHG on remand show that

Neighbors received notice of the hearing on remand and declined to participate. The

Township argues, without elaboration or citation, that Neighbors’ decision not to

participate makes any interest of theirs in this litigation “null.” Township’s Br. at

9

27. In reply, HHG argues the Township is conflating Neighbors’ decision not to

participate in the hearing on remand with their right to participate in the trial on the

public road issue that occurred in 2021, of which they had no notice at that time.

HHG essentially contends that any notice Neighbors received on remand cannot cure

the jurisdictional defect that occurred when the trial court conducted a trial and

entered a final judgment on the public road issue without Neighbors being joined as

parties.

We have explained the test for indispensability in this type of action as

follows:

“A party is generally regarded to be 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.’” HYK Construction Co[.], Inc., v. Smithfield

[Twp.], 8 A.3d 1009, 1015 (Pa. Cmwlth. 2010) (quoting

City of Phila[.] v. Commonwealth, [] 838 A.2d 566, 581

([Pa.] 2003)). Thus, the main inquiry for determining

whether a party is indispensable involves whether justice

can be accomplished in the absence of the party. Id.; see

also Perkasie Borough Auth. v. Hilltown [Twp.] Water [&]

Sewer Auth., 819 A.2d 597, 600 (Pa. Cmwlth. 2003)

(holding that “an indispensable party is one whose rights

are so connected with the claims of the litigants that no

relief can be granted without infringing upon those

rights”). The relevant analysis of whether a party is

indispensable requires an examination of the following

four factors:

1. Do absent parties have a right or interest related to the

claim?

2. If so, what is the nature of that right or interest?

3. Is that right or interest essential to the merits of the

issue?

4. Can justice be afforded without violating the due

10

process rights of absent parties?

HYK Construction Co[.], 8 A.3d at 1015. When

undertaking this inquiry, the nature of the particular claim

and the type of relief sought should be considered. Id.

In easement cases, our Supreme Court has held that

the fee simple owner of the servient tenement, i.e., the

estate of land that is burdened by the easement, is an

indispensable party because “[t]he right to the use and

enjoyment of his property will be adversely affected by

any litigation involving the easement.” Columbia Gas

Transmission Corp. v. Diamond Fuel Co[.], [] 346 A.2d

788, 789 ([Pa.] 1975). Likewise, when there is a dispute

regarding “the existence of an easement, all owners of

servient tenements have a material interest in the

controversy and should be joined as defendants, even

though such an owner may have had no part in the

interference with, or obstruction of the alleged easement.”

Barren v. Dubas, [] 441 A.2d 1315, 1316 ([Pa. Super.]

1982).

Rachel Carson Trails Conservancy, Inc. v. Dep’t of Conservation & Nat. Res., 201

A.3d 273, 279 (Pa. Cmwlth. 2018) (en banc) (footnote omitted).

An indispensable party “must be joined” and if not, “his absence

renders any order or decree of court null and void for want of jurisdiction.”

Columbia Gas, 346 A.2d at 789; accord Sprague v. Casey, 550 A.2d 184, 189 (Pa.

1988). Where a trial court has already entered final judgment without an

indispensable party having been joined, the proper result on appeal is to vacate the

judgment and dismiss the complaint without prejudice to the plaintiff “to institute a

new action wherein all necessary and indispensable parties are made parties to the

action.” Columbia Gas, 346 A.2d at 789-90; see also Barren, 441 A.2d at 1316

(finding indispensable party was not joined and vacating and dismissing without

prejudice); Pa.R.Civ.P. 1032(b) (“Whenever it appears . . . that there has been a

failure to join an indispensable party, the court shall order . . . that the indispensable

11

party be joined, but if that is not possible, then it shall dismiss the action.” (emphasis

added)).

Here, we agree with HHG that Neighbors are indispensable parties.

The undisputed Survey plainly supports the trial court’s finding on remand that part

of the Disputed Area is on Neighbors’ property. Because the Township has

asserted—and the trial court has determined—that the Disputed Area is a public

road, more than just the Property is at issue here. Any property interest that would

be burdened or encumbered by the public road so found is also at issue. Neighbors

have such an interest. Their property is directly across the right-of-way from the

Property and occupies about half of the Disputed Area, making their property a

servient tenement to the public road the trial court found. Neighbors’ interest is thus

essential to the merits of this dispute.

Further, we disagree with the Township’s suggestion that

communication with Neighbors on remand can cure the jurisdictional defect their

nonjoinder created. Zavala was merely served personally with a single scheduling

order of the trial court on remand. Neither he nor Carillo—who is a joint owner—

has been joined as a party. And because trial was conducted and final judgment

entered before Neighbors were aware of this action, it “is not possible” to join them

as parties now in any way that lets them assert their interest before a final order.

Pa.R.Civ.P. 1032(b). Even if Neighbors wanted to waive their interest—that is not

clear on this record and they are not here to speak for themselves—the defect in

subject matter jurisdiction is nonwaivable and the trial court’s final order on the

merits was void. Columbia Gas; Barren.

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IV. CONCLUSION

For the foregoing reasons, we conclude that the final order of the trial

court now on appeal is void for want of subject matter jurisdiction due to failure to

join indispensable parties. Accordingly, we will vacate the trial court’s order and

remand this matter with direction to dismiss HHG’s complaint without prejudice to

HHG to institute a new action where all indispensable parties are joined.

_____________________________________

MATTHEW S. WOLF, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hickory Hill Group II, LLC, :

Appellant :

:

v. : No. 1 C.D. 2023

:

East Nottingham Township :

ORDER

AND NOW, this 27th day of June 2025, the orders of the Court

of Common Pleas of Chester County (trial court) entered August 29, 2022, July 11,

2022, and March 7, 2022, are VACATED. This matter is REMANDED to the trial

court with direction to DISMISS the complaint without prejudice to Hickory Hill

Group II, LLC to institute a new action where all indispensable parties are joined.

Jurisdiction is relinquished.

_____________________________________

MATTHEW S. WOLF, Judge