D.L. Bussard v. PA DCNR (State Board of Property) ( 2022 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Donald L. Bussard, Barbara J.           :
    Bussard, Edward F. Lynch and            :
    Carol L. Lynch,                         :
    Petitioners           :
    :
    v.                          :
    :
    Pennsylvania Department of              :
    Conservation and Natural Resources      :
    (State Board of Property),              :   No. 516 C.D. 2021
    Respondent           :   Argued: May 16, 2022
    BEFORE:     HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE ELLEN CEISLER, Judge
    HONORABLE STACY WALLACE, Judge
    OPINION
    BY JUDGE FIZZANO CANNON                     FILED: June 10, 2022
    Petitioners, Donald L. Bussard, Barbara J. Bussard, Edward F. Lynch,
    and Carol L. Lynch (collectively, Bussards), seek review of an order of the State
    Board of Property (Board), which sustained the preliminary objections of the
    Pennsylvania Department of Conservation and Natural Resources (Department) to
    the Bussards’ Amended Petition Seeking Confirmation of Ownership of Real
    Property (Amended Petition) and dismissed the Amended Petition with prejudice.
    We vacate the Board’s order and remand this matter for further proceedings.
    I. Background
    At issue in this matter is the title to a tract of land consisting of 103.04
    acres in Southampton Township, Bedford County (Property). Reproduced Record
    (RR) at 130a. The Bussards and the Department rely on competing chains of title to
    the Property. Thus, the Bussards contend they are record owners of the Property,
    and the Department counters that the Commonwealth owns the Property.
    A. Commonwealth Chain of Title
    Title to the Property originated in a warrant1 issued by the
    Commonwealth to Jesse Dicken in 1863 (Dicken Warrant) for a tract of land that
    purportedly included the Property. RR at 150a-51a. In 1864, Jesse Dicken and
    Rebecca Dicken sold land granted under the Dicken Warrant, including the Property,
    to Robert Ash. Id. at 135a & 201a-02a. In 1896, Abram and Marian V. Ash sold
    land including the Property to Hilary H. Hartsock.                 Id. at 135a & 204a-05a.
    However, as no deed from Robert Ash to Abram and Marian Ash was found, in
    1911, Robert Ash and Ann B. Ash, who were located in Nebraska, executed a
    quitclaim deed to Hilary H. Hartsock. Id. at 135a-36a, 207a & 209a-10a. Also in
    1911, Hilary Hartsock and Ida G. Hartsock conveyed almost all of the land subject
    to the Dicken Warrant, including the Property, to the Commonwealth of
    Pennsylvania. Id. at 134a & 197a-99a.
    The foregoing facts are largely undisputed. However, the Bussards
    argue that a 1937 patent issued to McKinley Morris (Morris Patent) perfected title
    1
    As will be discussed further below, original land grants through warrants conveyed
    equitable ownership, subject to payment of the purchase price to the Commonwealth and
    subsequent perfection of legal title by issuance of a patent. See Hoffman v. Bell, 
    61 Pa. 444
    , 454
    (1869).
    2
    to the Property in McKinley Morris. RR at 137a-38a. In the alternative, the
    Bussards assert that even if the Morris Patent did not transfer title to the land subject
    to the Dicken Warrant, the present Property includes only 39.4 acres from the Dicken
    Warrant, limiting the Commonwealth’s claim of title to that portion of the Property.2
    B. Bussard Chain of Title
    The Bussards’ chain of title, as pleaded in the Amended Petition, begins
    with a 1923 deed from Rhoda May Strut and Robert S. Strut to McKinley Morris
    and Nellie P. Morris. RR at 131a. After purchasing, by that deed, land including
    the Property, McKinley Morris, evidently recognizing the existence of the Dicken
    Warrant, sought to perfect his title to the purchased land by obtaining a patent from
    the Commonwealth for the land in the Dicken Warrant. See 
    id.
     at 132a. In 1937,
    McKinley Morris succeeded in obtaining the Morris Patent from the Pennsylvania
    Department of Internal Affairs. 
    Id.
     at 132a, 150a & 153a-60a. In 1951, McKinley
    Morris and Nellie P. Morris conveyed land including the Property to Earl Ketterman.
    
    Id.
     at 131a. In 1984, Earl Ketterman conveyed the same land to Earl Ketterman and
    Frances L. Ketterman. 
    Id.
     at 131a-32a. In 2010, Frances L. Ketterman, widow of
    Earl Ketterman, conveyed land including the Property to the Bussards. 
    Id.
     at 130a-
    31a & 141a-47a.
    2
    In their response to the Department’s preliminary objections, the Bussards also questioned
    the identity and ownership of the Robert Ash who executed the quitclaim deed in 1911, as well as
    the authenticity of the correspondence pertaining to the quitclaim deed and purporting to document
    Robert Ash’s identity. See RR at 135a-37a, 202a, 212a & 214a. Further, in the Amended Petition,
    the Bussards asserted that the Board acted improperly by making findings of fact without holding
    an evidentiary hearing. Am. Pet. for Rev. at 3. However, the Bussards neither assert nor develop
    these additional issues in their brief on review before this Court. Accordingly, these issues are
    waived. See Blue Pilot Energy, LLC v. Pa. Pub. Util. Comm’n, 
    241 A.3d 1254
    , 1271 (Pa. Cmwlth.
    2020) (citing Pa. R.A.P. 2119(a); then In re Condemnation ex rel. Pa. Dep’t of Transp., 
    76 A.3d 101
    , 106 n.8 (Pa. Cmwlth. 2013) (party waives an issue not developed in its brief)).
    3
    The foregoing facts are also largely undisputed.                       However, the
    Department demurs to the Amended Petition, arguing that the Bussards have failed
    to state a viable claim because they cannot trace their chain of title back to the Dicken
    Warrant. RR at 225a. Further, the Department challenges the legal effect of the
    Morris Patent; the Commonwealth, having ostensibly obtained title to the Property
    from Hilary H. Hartsock in 1911, argues that the Morris Patent was ineffective to
    divest its ownership of the Property. 
    Id.
     at 225a-27a.
    C. Procedural History
    In 2018, the Bussards filed a petition with the Board asserting
    ownership of the Property. RR at 1a-52a. The Department filed preliminary
    objections3 asserting that the petition was insufficiently specific and the Bussards
    3
    We note that the regulations governing litigation before administrative agencies contain
    separate provisions for “complaints” and “petitions.” See 
    1 Pa. Code §§ 35.9
     (providing for filing
    of a “complaint” by “[a] person complaining of anything done or omitted to be done by a person
    subject to the jurisdiction of an agency, in violation of a statute or regulation administered or issued
    by the agency”); 35.10 (requiring that a “complaint” include “a statement of the facts forming the
    basis for the conclusion that there has been a violation of a statute or regulation administered or
    issued by the agency”); 35.17 (authorizing written petitions seeking “relief under a statute or other
    authority delegated to an agency”); & 35.19 (authorizing “[p]etitions for the issuance, in the
    discretion of an agency, of a declaratory order to terminate a controversy or remove uncertainty”).
    Here, the Bussards are seeking relief in the form of confirmation of title to the Property.
    They are not complaining about anything done or omitted to be done by a person subject to the
    jurisdiction of the Department. Accordingly, they correctly designated their filing before the
    Board as a petition rather than a complaint.
    The regulations provide for motions to dismiss “complaints.” 
    1 Pa. Code § 35.54
    (authorizing a respondent to a complaint to include with his answer a motion for a more definite
    pleading or “a motion to dismiss a complaint because of lack of legal sufficiency appearing on the
    face of the complaint”). There is no parallel provision regarding motions for more specific
    pleading or dismissal of a petition. However, this Court has tacitly approved the use of motion
    practice under Section 35.54 in a quiet title action before the Board. See McCullough v. Dep’t of
    Transp., 
    578 A.2d 568
    , 569-70 (Pa. Cmwlth. 1990) (discussing a motion to dismiss filed under 
    1 Pa. Code § 35.54
    ).
    4
    had failed to plead a complete chain of title. 
    Id.
     at 57a-69a. The Board sustained
    the preliminary objections in part and directed the Bussards to file an amended
    petition. 
    Id.
     at 126a-27a. The Bussards timely filed the Amended Petition. 
    Id.
     at
    129a-216a. The Department again filed preliminary objections. 
    Id.
     at 221a-31a.
    This time, the Board sustained the preliminary objections and, concluding the
    Bussards did not recite a complete chain of title, dismissed the Amended Petition
    with prejudice. 
    Id.
     at 301a & 305a-06a. The Board also rejected the Bussards’
    alternative claim that land from the Dicken Warrant comprised only 39.4 acres of
    the Property; the Board reasoned that because the Bussards did not establish title to
    the Property as a whole, they likewise did not establish title to the portion of the
    Property purportedly outside the Dicken Warrant. 
    Id.
     at 305a. The Bussards filed a
    timely petition for review in this Court, which is presently before us for disposition.
    II. Discussion4
    A. Effect of the 1937 Morris Patent
    The parties generally agree concerning the applicable law. A “warrant”
    constituted an original grant of land by the Commonwealth and authorized a survey
    of the granted land; upon payment of the purchase price, it conveyed equitable title
    constituting “a perfect title against all the world but the Commonwealth,” which
    retained a lien solely for payment of the separate fee for issuing the patent. Dep’t
    Br. at 26 (quoting Hoffman v. Bell, 
    61 Pa. 444
    , 454 (1869) (additional quotation
    marks omitted)); see also Bussards Br. at 11. The patent subsequently issued upon
    4
    This Court must affirm the Board’s decision unless it violates constitutional rights, is not
    in accordance with law, violates rules of practice and procedure of Commonwealth agencies, or
    lacks substantial evidence to support any finding of fact made by the Board and necessary to
    support the decision. 2 Pa.C.S. § 704.
    5
    payment of the patent fee was “merely a perfection and confirmation of the title by
    warrant.” Dep’t Br. at 26 (quoting Delaware & Hudson Canal Co. v. Dimock, 
    47 Pa. 393
    , 397 (1864) (additional quotation marks and bracket omitted)); see also
    Bussards Br. at 11 (likewise citing Delaware & Hudson). The person entitled to
    obtain a patent was the person who held ownership under the warrant; therefore,
    issuance of a patent to the wrong person would not convey any ownership interest,
    and the patentee would merely hold the legal title in trust for the true owner, the
    warrantee. Dep’t Br. at 27 (citing Keller v. Powell, 21 JA. 796 (Pa. 1891); then Duer
    v. Boyd, 
    1 Serg. & Rawle 203
    , 208 (Pa. 1814); then Gregg v. Patterson, 9 Watts &
    Serv. 197, 205 (Pa. 1844)); see also Bussards Br. at 11 (citing Delaware & Hudson).
    Here, the Dicken Warrant was the original warrant to land purportedly
    including the Property issued by the Commonwealth in 1863. RR at 150a-51a.
    Through subsequent conveyances by deeds, the Commonwealth obtained title once
    again in 1911. 
    Id.
     at 134a-36a, 197a-99a, 201a-02a, 204a-05a, 207a & 209a-10a.
    McKinley Morris, however, ostensibly purchased the Property in 1923 from Rhoda
    May Strut and Robert S. Strut, persons not in the Commonwealth’s chain of title,
    and then, in 1937, succeeded in obtaining the Morris Patent relating to the Property.
    
    Id.
     at 131a-32a, 150a & 153a-60a. The Department insists the Bussards have not
    pleaded a prima facie claim of title to the Property sufficient to survive preliminary
    objections, because they have not extended their chain of title any further back than
    1923. We disagree.
    The Department posits that where competing claims of title do not
    originate from a common source, the person challenging another’s title must trace
    his own chain of title back to its origin. See Bonaffon v. Peters, 
    19 A. 499
    , 500 (Pa.
    1890); Faux v. Cooke, 
    163 A. 384
    , 385 (Pa. Super. 1932); Dep’t Br. at 19. The
    6
    Department insists that the Bussards have not done so. This argument rests on the
    premise that the Morris Patent was ineffective to convey title in the Dicken Warrant
    to McKinley Morris. However, if the Morris Patent was effective to convey title
    from the Commonwealth to McKinley Morris, then the Morris Patent, which
    undisputedly related to the Dicken Warrant, would necessarily carry with it the chain
    of title going back to the Dicken Warrant.
    The Bussards contend that they have pleaded sufficient facts to raise a
    question of fact concerning the validity of the Morris Patent. We agree.
    It is true that the Bussards have not specifically pleaded a chain of
    individual deeds extending all the way back to the Dicken Warrant. However, they
    have attached to their Amended Petition two particularly significant documents
    relating to the Morris Patent that relate to the Dicken Warrant and the chain of title
    to the Property.
    First, by letter dated November 21, 1928 (1928 Letter), the Deputy
    Secretary of the Pennsylvania Department of Internal Affairs responded to
    McKinley Morris’s inquiry concerning a patent relating to the Dicken Warrant,
    stating, in pertinent part:
    [O]ur records show that the title to this tract of land passed
    from the Commonwealth when they [sic] granted the
    warrant to Jesse Dicken to make a survey of the same. . . .
    If your title to this land through William C. O’Neal and his
    successors in title comes from the above named Jesse
    Dicken, then your title to the land is presumably good. . . .
    In order to procure a patent to this land from the
    Commonwealth in your own name, it will be necessary for
    you to fill out the enclosed blank, giving under the heading
    “Statement of Title” a reference of the deeds of transfer
    from Jesse Dicken through the various owners to yourself.
    ...
    7
    RR at 159a (emphasis added). This correspondence makes clear that in order to be
    entitled to a patent, McKinley Morris would have to demonstrate a chain of title
    going back from himself all the way to the Dicken Warrant. Notably, the 1928
    Letter’s reference to William C. O’Neal as a predecessor in title is not reflected
    elsewhere in either the Bussards’ pleaded chain of title or that of the Commonwealth.
    However, it implies that additional deeds in the Bussards’ chain of title previous to
    1923 may exist or may have previously existed.
    Further, the Morris Patent itself recites, regarding the land subject to
    the Dicken Warrant:
    SAID TRACT OF LAND was surveyed on the twentieth
    day of May 1863 in pursuance of a warrant dated the
    eleventh day of May 1863, granted to the said Jesse
    Dicken, whose right and title in and to the same by sundry
    conveyances and assurances in law have since become
    vested in the above named McKinley Morris.
    
    Id.
     at 157a (emphasis added). This language suggests that McKinley Morris was
    somehow able to demonstrate the chain of title going back to the Dicken Warrant,
    so as to qualify to receive the Morris Patent.
    Of course, these two documents do not unequivocally prove title in the
    Bussards. However, we are unable to say as a matter of law that the Bussards cannot
    prevail in their claim of title to the Property. The Bussards have attached to the
    Amended Petition a Commonwealth communication explaining that a patent would
    require McKinley Morris to establish a chain of title. Further, the Bussards have
    attached the Morris Patent, issued by the Commonwealth and signed by its then-
    governor, stating that title to the land subject to the Dicken Warrant had become
    vested in McKinley Morris.        A reasonable inference arising from these two
    documents is that McKinley Morris was able to satisfy the Commonwealth in 1937
    8
    that he held clear title to the land subject to the Dicken Warrant. Accord Jones v.
    Scranton Coal Co., 
    118 A. 219
    , 220 (Pa. 1922) (observing that a memorandum of
    contract, although secondary evidence of the conveyance of property, supplied “the
    preliminary proof necessary” to establish title to the land in question).5
    The Department concedes that a patent constitutes prima facie evidence
    of title. Dep’t Br. at 20 n.9 (quoting Consolidation Coal Co. v. Friedline, 
    3 A.2d 200
    , 201 (Pa. Super. 1938)). We acknowledge that the Bussards must prove their
    title to the Property on the strength of their own claim and not any alleged weakness
    in the Commonwealth’s claim. James v. Bream, 
    106 A. 722
    , 723 (Pa. 1919)
    (additional citations omitted). Nonetheless, we conclude that the Amended Petition
    and its attachments sufficiently set forth a prima facie claim of title to the Property
    so as to require a factual response by the Department.
    The Department also posits that the Morris Patent was ineffective to
    divest the Commonwealth’s ownership of the land subject to the Dicken Warrant
    because the Commonwealth had already reacquired that land for forestry reservation
    purposes in 1911. Dep’t Br. at 22. The Department asserts that land acquired for
    such purposes is no longer subject to laws authorizing conveyance of unappropriated
    lands through the issuance of warrants and patents. Id. at 22-23 (quoting section 8
    5
    The Board is not bound by rules of evidence. Keystone ReLeaf LLC v. Pa. Dep’t of
    Health, 
    186 A.3d 505
    , 526 (Pa. Cmwlth. 2018) (citing 2 Pa.C.S. § 505). However, we note that
    the Pennsylvania Rules of Evidence support the admissibility of a so-called ancient document,
    which is a document or data compilation that
    (A) is in a condition that creates no suspicion about its authenticity;
    (B) was in a place where, if authentic, it would likely be; and
    (C) is at least 30 years old when offered.
    Pa.R.E. 901(a) & (b)(8). The Morris Patent appears to fit this definition, and the Bussards may be
    able to establish the authenticity of the 1928 Letter as well.
    9
    of the Act of February 25, 1901, P.L. 11, 32 P.S. § 169). This is true as a general
    statement of law. However, it does not eliminate the underlying question of fact,
    which is whether the Commonwealth reacquired a valid title when it ostensibly
    repurchased the land subject to the Dicken Warrant in 1911. If the Bussards’
    predecessors in title, rather than the Commonwealth’s grantors, held title to the
    Property in 1911, then the Commonwealth never reacquired a valid title, and,
    perforce, it never acquired title for forestry purposes. Thus, the Department’s
    argument cannot prevail as a matter of law on a demurrer to the Amended Petition.
    The Department also cites a number of judicial decisions holding that
    an agency is not required to hold a hearing and may provide an adequate opportunity
    for the parties to be heard through “motion proceedings, including briefs and
    arguments by both parties, where there are no disputed facts.” Dep’t Br. at 16 (citing
    collected cases) (emphasis added). This argument is inapt here, however, because
    as explained above, the Bussards have raised disputed questions of fact concerning
    their title to the Property, most notably the question of whether McKinley Morris
    adequately proved his chain of title to the Property in order to obtain the Morris
    Patent. Therefore, we conclude that the Board erred by sustaining the Department’s
    preliminary objections and dismissing the Amended Petition with prejudice.
    Instead, the parties should complete their pleadings and then, assuming a dispute of
    fact still remains, the Board should hold a hearing to receive evidence6 concerning
    the facts surrounding title to the Property.
    6
    We recognize that the Bussards have not pleaded the specific deeds in their chain of title
    prior to 1923 and, as a practical matter, they may ultimately be unable to recreate their purported
    chain of title with sufficient factual evidence to prevail at a hearing. However, that potential
    evidentiary problem does not support dismissal of their claim at the preliminary objection stage of
    the proceedings. The Bussards have pleaded facts in support of their claim; they were not required
    10
    B. Portion of the Property Outside the Dicken Warrant
    In their alternate argument, the Bussards suggest that even if the
    Commonwealth owns the land subject to the Dicken Warrant, the Board should not
    have dismissed the Bussards’ claim because only 39.4 acres of the Property are part
    of the original Dicken Warrant. In support of that averment, the Bussards attached
    to the Amended Petition a map prepared by their surveyor and attached to the deed
    from Frances L. Ketterman to the Bussards, indicating the 39.4-acre portion of the
    Property to which the Bussards contend the Commonwealth’s potential title is
    limited. RR at 146a; see also id. at 151a (drawing included in the Dicken Warrant).
    The Board reasoned that if the Bussards could not establish title to the
    Property as a whole, they likewise could not establish title to a portion of the
    Property. RR at 305a. However, as we have rejected the Board’s conclusion
    regarding the sufficiency of the Bussards’ pleading to assert title to the Property, we
    likewise reject the Board’s related conclusion concerning title to less than all of the
    Property.
    The Department argues that the map attached to the Amended Petition,
    which the Department describes as a “deed plotting,” is insufficient evidence that
    to plead all of their evidence in the Amended Petition. The applicable regulation governing
    petitions provides merely:
    Petitions for relief under a statute or other authority delegated to an
    agency shall be in writing, shall state clearly and concisely the
    grounds of interest of the petitioner in the subject matter, the facts
    relied upon and the relief sought, and shall cite by appropriate
    reference the statutory provision or other authority relied upon for
    relief.
    
    1 Pa. Code § 35.17
    . Thus, there is no requirement that a party prove in full its entitlement to relief
    in its initial pleading. In that regard, the Department’s assertion in its brief that the Bussards “are
    incapable of establishing title by a fair preponderance of the evidence by showing title sufficient
    to base a right of recovery” further highlights the impropriety of dismissing the Bussards’ claim
    of title at the preliminary objection stage. Dep’t Br. at 21 (emphasis added).
    11
    not all of the Property was within the Dicken Warrant. Dep’t Br. at 32. However,
    this alleged insufficiency goes to the weight of the evidence, which is for the Board
    to determine as the finder of fact at a hearing. See Hughes v. Dep’t of Env’t Res.,
    
    312 A.2d 819
    , 821 (Pa. Cmwlth. 1973). The Bussards suggest that “[p]roof of how
    the surveyor reached his conclusions is . . . a matter to be heard at the time of the
    hearing in this case.” Bussards Br. at 13. We agree.
    Moreover, the Bussards’ claim of title in this action is solely against the
    Commonwealth. If they are able to demonstrate that a portion of the Property was
    not part of the original Dicken Warrant or was subsequently conveyed outside of the
    Commonwealth’s chain of title, then that portion of the Property would be removed
    from the present dispute.
    For these reasons, we conclude that the Board erred in dismissing,
    based on preliminary objections, the Amended Petition’s alternate claim of title to
    the portion of the Property that the Bussards assert is outside the Dicken Warrant.
    III. Conclusion
    Based on the foregoing analysis, we vacate the Board’s dismissal of the
    Amended Petition and remand this matter to the Board for further proceedings
    consistent with this opinion.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    12
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Donald L. Bussard, Barbara J.               :
    Bussard, Edward F. Lynch and                :
    Carol L. Lynch,                             :
    Petitioners               :
    :
    v.                              :
    :
    Pennsylvania Department of                  :
    Conservation and Natural Resources          :
    (State Board of Property),                  :   No. 516 C.D. 2021
    Respondent               :
    ORDER
    AND NOW, this 10th day of June, 2022, the order of the State Board
    of Property (Board) dated April 15, 2021 is VACATED, and this matter is
    REMANDED to the Board for further proceedings consistent with the foregoing
    opinion.
    Jurisdiction is relinquished.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    

Document Info

Docket Number: 516 C.D. 2021

Judges: Fizzano Cannon, J.

Filed Date: 6/10/2022

Precedential Status: Precedential

Modified Date: 6/10/2022