Foster, R. v. Dickson, R. ( 2017 )

J. A16024/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RICHARD C. FOSTER, II : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RENEE F. DICKSON, : No. 1553 WDA 2016
:
Appellant :
Appeal from the Order, September 12, 2016,
in the Court of Common Pleas of Washington County
Civil Division at No. 2015-8135
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 18, 2017
Renee F. Dickson (“Dickson”) appeals the September 12, 2016 order
of the Court of Common Pleas of Washington County that granted the
motion for judgment on the pleadings filed by Richard C. Foster, II
(“Foster”), and denied Dickson’s motion for judgment on the pleadings. The
trial court further ordered that 50 percent of the funds received for the
second pipeline (and any additional pipeline) should be paid to Foster. After
careful review, we affirm.
The trial court provided the following background information
regarding this dispute:
Plaintiff is Richard C. Foster, II and Defendant
is his sister, Renee F. Dickson. Their parents are
Richard C. Foster and Ermalee Foster, who once
* Retired Senior Judge assigned to the Superior Court.
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owned several tracts of land in Hopewell and Buffalo
Townships. On May 21, 2012 the elder Fosters
entered into a right of way agreement with
MarkWest Liberty Midstream & Resources, LLC. By
the terms of this agreement, the grantors conveyed
to the grantee a right of way and easement along a
specified route “to . . . install . . . one or more
pipelines for the gathering and transportation of
gas. . .”. At the same time, the parties to the right
of way agreement entered into a Confidential
Addendum, which specified the consideration for the
installation of the original pipeline and consideration
for additional pipeline or pipelines in the same
right-of-way.[Footnote 1]
On December 27, 2012 the Fosters conveyed
their land to [Dickson], by deed which contained the
following language:
Granting however to Grantee all
surface rights and payments for
surface use and damages, RESERVING
however to the grantor one-half (1/2) of
all future payments for the placement of
right of ways and/or pipelines across all
the above six (6) parcels.[Footnote 2]
Immediately after recording their deed to [Dickson],
the Fosters recorded an Assignment, by which they
assigned to [Foster] “all our one-half (1/2),
undivided interest, right, title and interest [sic] in
and to future payments for the placement of
right of ways and/or pipelines across, through
and under property situated in Buffalo and
Hopewell Townships . . . as reserved by RICHARD
C. FOSTER and ERMALEE FOSTER . . . as the
Grantors in the deed to [Dickson], dated
December 27, 2012. . .”
In 2013, MarkWest installed the initial pipeline
across the Dickson property and paid to the elder
Fosters the consideration for the pipeline specified in
the Confidential Addendum. In 2015, MarkWest
installed in the same right of way a second pipeline,
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and paid to [Dickson] one-half the consideration
specified in the Confidential Addendum. MarkWest
withheld and still holds the remaining half of the
consideration, while it waits for an agreement of the
parties or direction from this court as to distribution.
[Footnote 1]: This Addendum is so confidential that
it was not attached to the complaint, in spite of
Pa.R.C.P. 1019(i). [Dickson] has not objected to this
omission and there seems to be no dispute as to the
relevant language in the Addendum.
[Footnote 2]: On March 4, 2013, the Fosters
delivered a corrective deed to [Dickson] because the
earlier deed accidentally omitted a parcel. This deed
has exactly the same reservation quoted above
except that it refers to “all the above seven (7)
parcels.”
Trial court opinion, 9/12/16 at 1-2.
On December 21, 2015, Foster filed a complaint for declaratory
judgment. In the complaint, Foster asserted that MarkWest Liberty
Midstream & Resources, LLC (“MarkWest”), paid Dickson for 50 percent of
the proceeds received for the placement of the second pipeline across
Dickson’s property but retained the other 50 percent pending resolution of
the issue as to who was entitled to the funds: Foster or Dickson. Foster
claimed that he was entitled to the funds as they represented 50 percent
payment for the second pipeline constructed and installed inside the
right-of-way by MarkWest based on the 2012 Right of Way agreement, the
assignment to Foster, and the Confidential Addendum.
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On the other hand, Dickson claimed that she was entitled to the
remaining proceeds based on the December 27, 2012 deed and the March 4,
2013 corrective deed which provide that Dickson was entitled to payments
for “surface use and damages.” (See Deed, 12/27/12 at 6.)
Foster clarified the dispute, stating,
18. Put simply, if the remaining MarkWest monies
represent payment for “surface use and
damages,” then [Dickson] prevails.
Complaint for declaratory judgment, 12/21/15 at 5, ¶ 18. Foster sought a
declaration that he was entitled to the money held by MarkWest as the
money represented payment for placement of right-of-ways and/or pipelines
on the properties.
On February 5, 2016, Dickson filed an answer, new matter, and
counterclaim, and alleged that she was entitled to the remaining monies
held by MarkWest. On March 14, 2016, Foster replied and denied the
allegations. On May 20, 2016, Foster moved for judgment on the pleadings.
On June 28, 2016, Dickson moved for judgment on the pleadings. Each
sought the money held by MarkWest.
By order dated September 12, 2016, the trial court granted Foster’s
motion for judgment on the pleadings and denied Dickson’s motion for
judgment on the pleadings. The trial court further ordered that 50 percent
of the proceeds for the second pipeline and any additional pipeline be paid to
Foster. The trial court reasoned:
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Obviously in construing the meaning of a
document the court attempts to ascertain the intent
of the parties. Here, the parents conveyed an
easement or right of way to MarkWest. The
consideration for the conveyance was set forth in the
Confidential Addendum where is [sic] was described
as $35 per foot “in lieu of any and all damages
resulting from the construction of the aforesaid
pipeline,” and $35 per foot for each additional
pipeline. This in [sic] the only consideration recited,
other than the “Ten Dollars ($10.00) in hand paid”
set forth in the recorded right of way agreement. In
other words, [Dickson] argues that all of the money
paid by Mark West is for damages except for the
$10, and if so, it follows that the elder Fosters
intended for their son to get nothing. Instead, we
believe the much more logical reading of these
instruments instructs us to award the withheld
one-half to [Foster]. If all of the money paid by
MarkWest was damages to the surface, why even
reserve anything in the grant to [Dickson] and why
assign that reservation to [Foster]? It is possible
that MarkWest, or even some other pipeline
company, could inflict damages to the surface such
as by negligently departing from the agreed upon
easement. Such issues might support a claim for
damages by [Dickson] which would be of no concern
to [Foster].
The reservation provides that the Grantor (the
elder Fosters)[] or their assigns shall receive
one-half “of all future payments for the placement of
. . . pipeline across all of the above . . . parcels.”
Our understanding is that Mark West placed another
pipeline across these lands and paid for that
placement. One-half of that amount should go to
[Foster].
Id. at 3-4.
Dickson appealed to this court. On October 14, 2016, the trial court
ordered Dickson to file a statement of errors complained of on appeal,
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pursuant to Pa.R.A.P. 1925(b). On December 6, 2016, the trial court issued
an order that the “statement of issues” was adequately addressed in its
memorandum opinion dated September 12, 2016.
Before this court, Dickson contends that the trial court erred when it
granted Foster’s motion for judgment on the pleadings.
Entry of judgment on the pleadings is
permitted under Pennsylvania Rule of Civil Procedure
1034, which provides that “after the pleadings are
closed, but within such time as not to unreasonably
delay trial, any party may move for judgment on the
pleadings.” Pa.R.C.P. 1034(a). A motion for
judgment on the pleadings is similar to a demurrer.
It may be entered when there are no disputed issues
of fact and the moving party is entitled to judgment
as a matter of law.
Appellate review of an order granting a motion
for judgment on the pleadings is plenary. The
appellate court will apply the same standard
employed by the trial court. A trial court must
confine its consideration to the pleadings and
relevant documents. The court must accept as true
all well pleaded statements of fact, admissions, and
any documents properly attached to the pleadings
presented by the party against whom the motion is
filed, considering only those facts which were
specifically admitted.
We will affirm the grant of such a motion only
when the moving party’s right to succeed is certain
and the case is so free from doubt that the trial
would clearly be a fruitless exercise.
Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa.Super. 2012)
(citations omitted).
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Dickson argues that the trial court misconstrued the 2012 deed and
that she owns a 50 percent interest in the payment for the placement of
pipelines and 100 percent of the surface rights and payments for surface use
and damages. Dickson asserts that either she has already been paid for her
100 percent interest in the payment for surface use of damages and she is
owed for her 50 percent interest in the payment for the placement of the
pipeline or she has been paid for her 50 percent interest in the placement of
the pipeline and is owed for her 100 percent interest in the payment for
surface use and damages. Before the trial court, Dickson argued that the
escrowed monies represented payment for surface use and damages. She
believes that under the Confidential Addendum,1 the $35 per foot that
MarkWest is paying for the construction of a second pipeline goes completely
for surface use and damages to the property which is used as a farm.
In contrast, Foster argues that, under the 2012 deed, the Fosters
unambiguously conveyed the properties to Dickson, including all surface
rights and payments for surface use and damages. In the same deed, the
Fosters reserved one-half of their right, title, and interest in and to future
1
Although both parties referred to the Confidential Addendum before the
trial court and Foster attaches it to his brief, the Confidential Addendum was
not attached to any pleading and was not part of the record before the trial
court. While this court can consider the references to the Confidential
Addendum contained in the record, it cannot review the Confidential
Addendum itself. “It is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not a part of the record in the case.”
Smith v. Smith, 637 A.2d 622, 623 (Pa.Super. 1993).
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payments for the placement of rights-of-way and/or pipelines across,
through, and under the properties owned by Dickson. The Fosters then
assigned this interest to Foster. Foster concludes that under the plain
meaning of the deed and assignment, Dickson and Foster would each
receive 50 percent of the monies paid, as each is entitled to a 50 percent
interest in payments made for the placement of pipelines. In other words,
Foster reaches the same conclusion as the trial court.
As this court stated in Dieter v. Fidelcor, Inc., 657 A.2d 27(Pa.Super. 1995), when interpreting a contract, “a court must be guided by
the paramount goal of contract interpretation: ‘to ascertain and give effect
to the parties’ intent.’” Id. at at 29 (citation omitted). That intent must be
ascertained from the language of the written agreement. Id. “‘In the
absence of technical terminology, we give the words used in the agreement
their plain and ordinary meaning.’” Id. (citation omitted).
Additionally, we note that “[w]hen determining whether a contract is
ambiguous, a court must view the contract as a whole and not its discrete
units. Halpin v. LaSalle Univ., 639 A.2d 37, 39 (Pa.Super. 1994),
allocatur denied, 668 A.2d 1133 (Pa. 1995). Clauses seemingly in conflict
should be construed, if possible, as consistent with one another. Flatley by
Flatley v. Penman, 632 A.2d 1342, 1344 (Pa.Super. 1993), allocatur
denied, 641 A.2d 586 (Pa. 1994).
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This court agrees with the trial court’s interpretation of the deed. The
deed explicitly states that the Fosters reserved 50 percent of the amount
received for the placement of pipelines on or across the parcels in the future.
The assignment then granted the Fosters’ interest to Foster. In 2015,
MarkWest built another pipeline. By the plain meaning of the language in
the deed, the Fosters and Dickson were to split equally the payment from
MarkWest for construction of a new pipeline. By the clear language in the
assignment, any interest that would go to the Fosters would now go to
Foster. As a result, Foster was entitled to 50 percent of the total amount as
the trial court determined. Further, as the trial court stated, if Dickson had
a claim for some sort of damage to her property, she could make that claim
against MarkWest or a subsequent entity that placed another pipeline on her
property. The trial court did not err.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2017
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