Tarabori, D. v. Fisher, L. ( 2016 )

J-A20042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENISE TARABORI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
LAURENCE FISHER, HIS UNKNOWN :
HEIRS, SUCCESSORS AND ASSIGNS; :
LESLIE KELLEY, AND OTHERS :
CLAIMING AN INTEREST IN THE REAL :
ESTATE WHICH IS THE SUBJECT OF :
THIS ACTION TO QUIET TITLE, :
:
Appellants : No. 1721 WDA 2015
Appeal from the Judgment entered October 13, 2015
in the Court of Common Pleas of Potter County,
Civil Division, No(s): 512 of 2011
BEFORE: BOWES, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 27, 2016
Laurence Fisher, his unknown heirs, successors, and assigns
(collectively, “Fisher”), Leslie Kelley (“Kelley”), and others claiming an
interest in the real estate that is the subject of this action in quiet title
(collectively, “Defendants”), appeal from the judgment quieting title to the
disputed property in favor of Denise Tarabori (“Tarabori”). We reverse the
judgment quieting title in favor of Tarabori, and remand for entry of
judgment in favor of Defendants.
In its Opinion, the trial court set forth the following Findings of Fact,
which we adopt for the purpose of this appeal:
J-A20042-16
(1) [Tarabori] is the owner of real estate located at 36 School
Street, Galeton, Pennsylvania.
(2) She acquired this property from her sibling co-tenants[-]in
[-]common, Jan Tarabori and Linda Lane, by deed dated August
13, 2007[,] recorded in Potter County Deed Book 0100, Page
0651.
(3) The legal description of her property was described as:
“COMMENCING at a point on the Plot of survey of lands of Cretia
Ansley at Lot No. 7, being the southwest corner of a lot deeded
to J.P. Kelley and being the southeast corner of a parcel of land
herein described; thence West along School Street, six rods and
six feet to stake and stone on the line of lands formerly of
Billings, being the southwest corner of the parcel of land herein
described, thence North, departing School Street and along the
line of said Billings lands, eight rods to a stake and stones being
the northwest corner of the parcel of land herein described;
thence East along the lands formerly of Cretia Ansley, four rods
and six feet to a stake and stones, being the northwest corner of
said lot n/f J.P. Kelley and being the northeast corner of the
parcel of land herein described; thence South, along the west
lien of said Kelley lot eight rods to the place of beginning.
Containing 43 square rods, more or less, and being the west part
of said Lot No. 7 of the Cretia Ansley lands.
(4) [Tarabori] and her siblings acquired property from their
Mother[,] Eleanor Tarabori[,] by deed dated August 29, 2005[,]
recorded in Potter County Deed Book 0055, Page 0767.[1]
(5) [Tarabori’s] property and its description traces back to her
parents, Harry F. Tarabori and Eleanor Tarabori, who acquired
the property by deed dated May 27, 1950[,] from Catherine
Artley, recorded June 5, 1990[,] in Potter County Deed Book
144, Page 232.
(6) At the time [that Tarabori’s] property was acquired by her
parents, the property adjacent to it on the opposite side (i.e.[,]
1
In ruling on Defendants’ Post-Trial Motions, the trial court expressly
recognized that “the area being claimed by adverse possession was not
contained” in the 2005 and 2007 deeds.
-2-
J-A20042-16
the south side) of School Street was owned by the Atlantic
Richfield Company.
(7) At some point after acquiring [Tarabori’s] property (probably
in the 1950’s), her father[,] Harry Tarabori[,] entered upon the
Atlantic Richfield [Company’s] property and appropriated an area
on the south side of School Street across from [Tarabori’s]
property for the parking of motor vehicles. This area can be
described as approximating forty-five feet on the north side of
School Street and extending depth[-]wise to about forty feet.
(8) Sometime in the 1960’s (ca. 1961) Harry Tarabori improved
the area in dispute by bringing in dirt, cinders, and stones and
placing these things in the parking area. During that same
period[,] he performed some excavation to raise the slope of the
parking area.
(9) In addition to the work done by [Tarabori’s] father, her
mother[,] during the 1960’s[,] planted evergreens around the
boundary of the parking area and also planted flowers and other
plants in the area. The evergreen trees that were planted by her
are still in existence today.
(10) [Tarabori’s] parents[,] as well as the rest of the family[,]
exercised exclusive possession and use of the parking area and
occasionally placed signs in the area advising others not to park
there and requesting others who might park there to move their
vehicles.
(11) [Members of Tarabori’s family] maintained the parking
area and cleared it of snow and ice when needed. These actions
occurred throughout the time the parking area existed.
(12) [Tarabori’s] original survey of the area being claimed was
done by Robert Cunningham [“Cunningham”] in December of
2014 and used the center of the evergreen tree line for the
survey points. It fronted almost 70 feet on School Street and
contained .58 of an acre. ([Tarabori] Exh. 4A)
(13) Subsequently[,] because of the eastern portion of the
survey on Exhibit 4A being located on the lands of [J.P.]
Kell[e]y, [] Cunningham revisited the area and changed his
original survey to reflect [J.P.] Kelley’s ownership[,] which
resulted in reducing the frontage on School Street to 43.84
-3-
J-A20042-16
feet[,] and the total area being claimed to .38 of an acre (1,635
sq. ft[.]). ([Tarabori] Exhibit 12)
(14) [Tarabori’s] father[,] Harry Tarabori[,] died on November
16, 1971. Her mother[,] Eleanor Tarabori[,] died on June 22,
2010.
(15) [Tarabori,] who was born in 1952[,] ceased being a
full[-]time resident of the home located on the property probably
around 1974[,] when she married. Since that time[,] she has
returned to stay at the property on a regular[,] but infrequent
basis.
(16) This use of the parking area has continued up to the
present time ….
(17) On March 8, 2004[,] [] Fisher acquired the Atlantic
Richfield property[,] including the parking area which is the
subject matter of these proceedings.
(18) [] Fisher[,] prior to 2011[,] had leased his property to [J.P.
Kelley,] which included a right of first refusal to purchase the
same.
(19) Kell[e]y thereafter questioned [Tarabori’s] right to use the
parking area[,] and attempted to block her use of the same,
thus resulting in the commencement of these proceedings.
Trial Court Opinion, 3/23/15, at 1-2 (footnote added). Fisher subsequently
leased the property to Kelley.
On December 2, 2011, Tarabori filed her Complaint to Quiet Title and a
Motion for injunctive relief against Fisher and Kelley.2 After a trial, the trial
court found in favor of Tarabori, and entered an Order quieting title with
2
Although not relevant to this appeal, Defendants filed Preliminary
Objections to Tarabori’s Complaint. Tarabori filed an Amended Complaint, to
which Defendants again filed Preliminary Objections. The trial court
dismissed Defendants’ Preliminary Objections, after which Defendants filed
an Answer and New Matter, and Tarabori filed a Reply to New Matter.
-4-
J-A20042-16
regard to disputed parking lot area. Trial Court Decision, 3/23/15.
Defendants filed Post-Trial Motions, which the trial court denied. The trial
court subsequently entered Judgment in favor of Tarabori, after which
Defendants filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Defendants present the following claim for our review:
Did the [t]rial [c]ourt err in entering Judgment in [Tarabori’s]
favor based upon adverse possession[,] when the property in
question was not included in the legal description of property
conveyed to [Tarabori] and [Tarabori] had been the owner for
less than twenty-one years?
Brief for Appellants at 4.
Defendants claim that the trial court improperly entered judgment in
favor of Tarabori based upon adverse possession. Id. at 14. First,
Defendants assert that Tarabori cannot “tack” the prior owner’s possession
of the use of the disputed property, because there is no “privity of estate.”
Id. According to Defendants, “a deed itself does not create privity of estate
between the grantor and the grantee for land that is outside of that land
which is described in the deed.” Id. at 15. Defendants argue that because
Tarabori failed to establish privity of estate, she failed to establish that she
possessed the disputed property for the requisite 21 years. Id.
One who claims title by adverse possession
must prove actual, continuous, exclusive, visible, notorious,
distinct and hostile possession of the land for twenty-one
years.... However, under certain circumstances, the periods of
possession of prior owners may be added on to the period of
-5-
J-A20042-16
possession of the present owners [by] a process, called “tacking”
... but only where there is privity between [successive
occupants]. For [the Court’s] purposes, “privity” refers to a
succession of relationship to the same thing, whether created by
deed or other acts or by operation of law.
Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 35 (Pa.
Super. 2015) (quoting Baylor v. Soska, 658 A.2d 743, 744-45 (Pa. 1995)).
In Baylor, Robert and Lillian Baylor (“the Baylors”) claimed that they
held the disputed land, via adverse possession, by tacking the period that
their predecessor in title held the disputed land. Baylor, 658 A.2d at 743.
The Supreme Court held that the Baylors could not tack the period of time in
which their predecessor in title held the disputed land, because the
predecessor failed to identify the disputed land in her deed to the Baylors:
The only method by which an adverse possessor may convey the
title asserted by adverse possession is to describe in the
instrument of conveyance[,] by means minimally acceptable for
conveyancing of realty[,] that which is intended to be conveyed.
In this case, the predecessor in title did not meet this
requirement so far as regards the disputed tract.
Id. at 746. The Supreme Court explained that
[t]here is good reason for this requirement. Interested parties
have a right to discern from the record the state of the title of
any parcel of land. If tacking were to be permitted because of
vague, undefined “circumstances,” there could and most likely
would be no way for one not a party to the conveyance to know
this. But the law mandates that a person asserting a claim of
adverse possession make this assertion openly and notoriously
to all the world. There must be no secret that the adverse
possessor is asserting a claim to the land in question. Tioga
Coal Co. v. Supermarkets Gen. Corp., 519 Pa. 66, 75, 546
A.2d 1, 3 (1988) (Opinion Announcing the Judgment of the
Court). If the adverse possessor’s claim is to be passed on to a
successor in title, therefore, there must be some objective
-6-
J-A20042-16
indicia of record by which it can be discerned with some degree
of certainty that a claim of title by adverse possession is being
made and that the duration of this claim has been passed on to
a successor in title.
Baylor, 658 A.2d at 745-46.
In finding that Tarabori had established title by adverse possession,
the trial court stated the following:
[Tarabori] asserts that the adverse possession of the parking
area was a family endeavor including her, her siblings, and her
parents. It appears that her position embraces the notion that
all of them used the parking area during the creation of the
claim of adverse ownership of the area. The facts supporting
this theory are supported by the evidence of what she claims as
fifty years of adverse possession….
Trial Court Opinion, 3/23/15, at 3.3 Thus, the trial court appears to rely
upon evidence of the family’s use of the parking area as a circumstance that
would allow tacking Tarabori’s claim to that of her parents. Based upon the
Supreme Court’s express holding in Baylor, we conclude that this was error.
3
In its Opinion, the trial court distinguishes the holding of this Court in
Wolfe v. Porter, 592 A.2d 716 (Pa. Super. 1991). Trial Court Opinion,
3/23/15, at 3. In Wolfe, this Court held that “a grantee cannot tack his
grantor’s possession of land when the grantor does not convey such land to
him. The only recognized exception occurs where an intent to convey more
land than that described may be inferred from the circumstances or the deed
itself.” Wolfe, 592 A.2d at 718 (citation omitted). This Court stated,
“[t]here is no suggestion, however, that title by adverse possession was
perfected by adjudication or, indeed, that a claim of title by adverse
possession was ever made against the owners of the adjoining tract.” Id.
at 719. This Court did not infer that the “circumstances” claimed therein
could establish tacking. See id. In fact, this Court expressly recognized that
“[w]here title by adverse possession is inchoate, a deed by a grantor which
fails to convey such inchoate right is ineffective to create privity which allows
tacking.” Id.
-7-
J-A20042-16
Our review of the record discloses no deed in Tarabori’s chain of title
that “describe[d] in the instrument of conveyance[,] by means minimally
acceptable for conveyancing of realty[,] that which [was] intended to be
conveyed[,]” i.e., the disputed property. See Baylor, 658 A.2d at 746;
accord Zeglin v. Gahagen, 812 A.2d 558, 565 (Pa. 2002) (recognizing that
in Baylor, the Supreme Court “dismissed the portion of the privity rules
permitting the tacking based on acts or circumstances extrinsic to written
deeds.”). Without tacking, Tarabori cannot establish the 21-year period of
possession necessary to establish title through adverse possession. See
Northern Forests II, Inc., 130 A.3d at 35. Accordingly, Tarabori’s quiet
title action must fail.
On this basis, we reverse the judgment entered by the trial court, and
remand for entry of judgment in favor of Defendants.
Judgment is reversed. Case remanded for entry of judgment in favor
of Defendants. Superior Court jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2016
-8-