Blackmon, D. v. Moore, Z. ( 2020 )

J-A24005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DOROTHY BLACKMON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACK MOORE, JR., ADMINISTRATOR :
OF THE ESTATE OF ZACK MOORE, :
SR. : No. 2127 EDA 2018
:
Appellant :
Appeal from the Judgment Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 160700895 July Term, 2016
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: February 7, 2020
Appellant, Zack Moore, Jr., administrator of the estate of Zack Moore,
Sr., appeals from the judgment entered on September 5, 2018, in favor of
Appellee, Dorothy Blackmon, and against Appellant after a non-jury trial in
Appellee’s action to quiet title.1 After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the June 20, 2018 order denying his
motion for post-trial relief; however, an appeal properly lies from the entry of
judgment, not from the order denying post-trial motions. See generally
Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa.
Super. 1995) (en banc). Although Appellant’s notice of appeal was filed
prematurely in the instant matter, judgment was subsequently entered on
September 5, 2018. A final judgment entered during the pendency of an
appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull
J-A24005-19
The trial court set forth the following summary of the procedural history
and relevant facts of this case in its Pa.R.A.P. 1925(a) opinion:
This case arises out of a dispute over whether an agreement
of sale for a home located at 2023 Wilder Street in Philadelphia,
Pennsylvania (“herein Subject Property”) was perfected in 1986
between [Appellee] and Zach Moore, Sr.[,] deceased.
Additionally, due to the fact that [Appellee] has lived in the subject
property undisturbed for thirty-two (32) years, a claim of adverse
possession was also brought by [Appellee] against [Appellant] and
considered by this [c]ourt.
On July 12, 2016, [Appellee] commenced the above-
captioned litigation by filing an action to quiet title. [Appellant]
filed preliminary objections on September 21, 2016, which were
overruled on December 1, 2016. [Appellant] filed an answer to
[Appellee’s] [c]omplaint on March 9, 2017. On July 17, 2017,
[Appellant] filed a motion in limine, invoking the Dead Man’s Act,
seeking to preclude [Appellee] from presenting any testimony
regarding any matter occurring before the death of Zack Moore[,]
Sr.1 On November 30, 2017, this case proceeded to a bench trial
before the Honorable Kenneth J. Powell[,] Jr. After trial ended,
this [c]ourt granted both parties an opportunity to file Findings of
Fact and Conclusions of Law. Both parties filed Findings of Fact
and Conclusions of Law. On June 7, 2018, this [c]ourt found in
favor of [Appellee]. On June 19, 2018, [Appellant] filed a post-
trial motion, which was denied by this [c]ourt on June 20, 2018….
1 42 Pa.C.S.[] § 5930.
[Appellee’s] son, George Blackmon, testified that they
moved into the property as renters in either 1974 or 1973[,] and
that he resided in the property until sometime on or around 2006.
Mr. Blackmon testified that his parents entered into an agreement
____________________________________________
Equipment and Supply Co., 787 A.2d 1050 (Pa. Super. 2001). Thus,
Appellant’s notice of appeal relates forward to September 5, 2018. See
Pa.R.A.P. 905(a)(5) (stating that a notice of appeal filed after a court’s
determination but before the entry of an appealable order/judgment shall be
treated as if it was filed after the entry of the appealable order/judgment and
on the date of entry). Hence, no jurisdictional defects impede our review. We
have adjusted the caption accordingly.
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with Zack Moore[,] Sr.[,] in 1985[,] to purchase the subject
property and that he directly witnessed the transaction. They
attempted to memorialize the agreement by deed but were unable
to because Zack Moore[,] Sr.[,] moved to South Carolina. Zack
Moore[,] Sr.[,] did not respond to [Appellee’s] request to do so.
Mr. Blackmon and his family have paid the property taxes and
utilities since 1986 and conducted maintenance of the property.
[Appellee] is disabled and installed a wheelchair ramp[] at the
[family’s] expense[,] to provide easier access to the subject
property. [Appellee] provided receipts to show payments they
have sent to the City of Philadelphia to pay the property taxes.
Mr. Blackmon helped his parents out with their finances at the
time of the alleged property transaction. Mr. Blackmon had never
met [Appellant] until he showed up to evict [Appellee] from the
subject property. [Appellee’s] daughter, Betty Collins, testified
that she was present for the sale of the subject property and it
was her understanding that her family owned it. Ms. Collins also
testified that her family pays the bills and makes the
improvements on the subject property. Her parents had a friendly
relationship with Zack Moore[,] Sr.
[Appellant] testified that his deceased father, Zack Moore[,]
Sr.[,] never lived in South Carolina. [Appellant] testified that he
lived with his father in Philadelphia. [Appellant] claimed that he
met [Appellee] and her family when he would accompany his
father to pick up rent from various rental properties he owned.
[Appellant] testified that his father’s body was transported
to South Carolina after he died. [Appellant] was notified by the
city of Florence, South Carolina[,] by letter[] in October of 2015[,]
that his father owned properties in Philadelphia.2 He testified that
his father’s real signature is not on the documents that [Appellee]
introduced as exhibits in this case. On [c]ross-[e]xamination[,]
[Appellant] testified that he never saw his father write out his full
name in cursive and that he wouldn’t know whether his father
spelled his name with a “K.” [Appellant] and Zack Moore[,] Sr.[,]
did not make payments on the property taxes for the subject
property between 1986 and 2012.
2 This date is disputed. [Appellee] elicited testimony from
[Appellant] about notice of these properties from the city of
Florence, South Carolina[,] as early as 2004.
Trial Court Opinion (“TCO”), 4/2/19, at 1-3 (citations to record omitted).
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On July 9, 2018, Appellant filed a timely notice of appeal, followed by a
timely, court-ordered Rule 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant raises the following issues for our review:
1. Whether the trial court lacked subject matter jurisdiction, as
[Appellee] failed to join an indispensable party, namely, the
Estate of George W. Blackmon, Sr.[,] which had interests in
both Count I and Count II of [Appellee’s] Complaint, as Mr.
Blackmon, Sr.[,] and Mr. Moore, Sr.[,] were the only two
individuals identified on the document the trial court
considered to be the agreement of sale and Mr. Blackmon’s
[e]state has an interest in the allegations related to adverse
possession?
2. Whether the court erred in denying [Appellee’s] [m]otion in
[l]imine regarding the Dead Man’s Act and allowing [Appellee],
Mr. Blackmon, Jr.[,] and Betty Collins to testify as witnesses in
this matter, even though the Dead Man’s Act rendered them
incompetent to testify[?]
3. Whether the trial court erred in finding that a five[-]year
statute of limitations was not applicable to [Appellee’s] claim
for specific performance?
4. Whether the [c]ourt erred as a matter of law in finding in favor
of [Appellee] that “[o]n August 7, 1985, [Appellee] … and her
husband, now deceased, entered into an Agreement of Sale
with Zack Moore, Sr.[,]” as [Appellee] failed to produce any
evidence sufficient to satisfy the Statute of Frauds.
5. The [c]ourt erred in allowing testimony regarding the
purported signature of Mr. Blackmon on P-1 and P-2, as
[Appellee] did not introduce into testimony a handwriting
expert and Mr. Blackmon testified that his purported familiarity
with Mr. Moore’s signature was acquired for the current
litigation.
6. Whether the [c]ourt erred in finding that [Appellee] established
the elements of adverse possession by clear and convincing
evidence where it was decided by the Honorable Leo Tucker in
2013, that there were unpaid taxes on the property stemming
back from 200 [sic], and [Appellee] is at best a holdover
tenant?
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Appellant’s Brief at 11-12.
We apply the following standard of review to a non-jury trial verdict:
Our appellate role in cases arising from non[-]jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of the jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, [where] the issue … concerns a question of law, our
scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to facts of the case. The trial court, as the finder
of fact, is free to believe all, part or none of the evidence
presented. Issues of credibility and conflicts in evidence are for
the trial court to resolve; this Court is not permitted to reexamine
the weight and credibility determination or substitute our
judgment for that of the fact finder.
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks
omitted).
First, Appellant asserts that the estate of George W. Blackmon, Sr., has
an interest in the underlying action and that Appellee’s failure to join the
estate strips the trial court of subject matter jurisdiction. Appellant’s Brief at
14. Appellant bases his claim, however, on the erroneous conclusion that,
“[u]pon Mr. Blackmon’s death, his interest [in the subject premises] … would
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have passed to his [e]state, thereby rendering his [e]state an indispensable
party to this action.” Id. at 19.2 This claim is wholly without merit.
It is well-settled that:
Under Pennsylvania law, the failure to join an indispensable party
implicates the trial court’s subject matter jurisdiction. Sabella v.
Appalachian Dev. Corp., 103 A.3d 83, 90 (Pa. Super. 2014).
“Failure to join an indispensable party goes absolutely to the
court’s jurisdiction and the issue should be raised sua sponte.”
Barren v. Dubas, … 441 A.2d 1315, 1316 ([Pa. Super.] 1982)
(internal quotation marks and citations omitted).
Orman v. Mortgage I.T., 118 A.3d 403, 406 (Pa. Super. 2015).
“A party is 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.’” City of Phila. v.
Commonwealth, … 838 A.2d 566, 581 ([Pa.] 2003), quoting
Sprague v. Casey, … 550 A.2d 184, 189 ([Pa.] 1988). “If no
redress is sought against a party, and its rights would not be
prejudiced by any decision in the case, it is not indispensable with
respect to the litigation.” Grimme Combustion, Inc. v.
Mergentime Corp., … 595 A.2d 77, 81 ([Pa. Super.] 1991), citing
Sprague, supra. We have consistently held that a trial court
must weigh the following considerations in determining if a party
is indispensable to a particular litigation.
1. Do absent parties have a right or an interest related to
the claim?
2. If so, what is the nature of that right or interest?
____________________________________________
2 Appellant relies on Miller v. Benjamin Coal Co., 625 A.2d 66 (Pa. Super.
1993), in which the Court stated that in actions “intended to affect the title to
property which is either held or claimed by tenants by the entireties, both
spouses are indispensable parties and must be joined.” Appellant’s Brief at
17 (quoting Miller, 625 A.2d at 68). Miller is clearly distinguishable from the
present case, however, as both spouses in Miller were still living at the time
the action was brought. Instantly, Appellee is the only living spouse.
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3. Is that right or interest essential to the merits of the
issue?
4. Can justice be afforded without violating the due process
rights of absent parties?
Martin v. Rite Aid of Pa., Inc., 80 A.3d 813, 814 (Pa. Super.
2013); accord Mechanicsburg Area Sch. Dist. v. Kline, … 431
A.2d 953, 956 ([Pa.] 1981). “In determining whether a party is
indispensable, the basic inquiry remains ‘whether justice can be
done in the absence of a third party.’” Pa. State Educ. Ass’n v.
Commonwealth, … 50 A.3d 1263, 1277 ([Pa.] 2012), quoting
CRY, Inc. v. Mill Serv., Inc., … 640 A.2d 372, 375 ([Pa.] 1994).
Id. at 406-07.
Taking into consideration the foregoing principles, the trial court
concluded:
In this case, the only party who is claiming title over the
subject property is [Appellee]…. Appellant argues that the
[e]state of George W. Blackmon, Sr.[,] should have been joined.
However, George W. Blackmon, Sr.[,] is dead[,] so he is incapable
of claiming title over the subject property. Any interest that
George W. Blackmon, Sr.[,] had in the subject property would
have passed by operation of law, at the time of his death, to
[Appellee] because they were married, which made them tenants
by the entirety.[3] At issue in this case, is whether [Appellee], who
is very much alive and currently living at the subject property, can
satisfy the necessary burden to maintain her quiet title action.
TCO at 8. We agree.
The trial court found that Appellee and her husband, now deceased,
entered into an agreement of sale on August 7, 1985, with Zack Moore, Sr.,
____________________________________________
3 “It is axiomatic that the death of a tenant by the entireties results in
ownership by the surviving spouse of the interest held by the deceased and
that spouse.” Vargas v. Brinton, 451 A.2d 687, 690 (Pa. Super. 1982). “To
find that the death of a spouse results in the surviving spouse owning less
than the share owned by the couple by tenants by the entireties, would render
such tenancies meaningless.” Id.
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and that they held their interest in the property as tenants by the entireties.
See Order, 6/6/18 at 1 ¶2; TCO at 8. It is settled law in Pennsylvania that
“[t]he purchaser becomes equitable owner of the land upon execution of the
contract; the seller retains legal title merely as security for payment of the
unpaid purchase money.” Zitzelberger v. Salvatore, 458 A.2d 1021, 1023
(Pa. Super. 1983) (emphasis added). See also Yannopoulos v. Sophos,
365 A.2d 1312, 1314 (Pa. Super. 1976).4 Thus, despite the fact that Zack
Moore, Sr.[,] failed to memorialize the sale with the recording of a deed,
Appellee and her husband became the equitable owners of the property at the
time the sale agreement was executed. Upon his death, it is clear that George
W. Blackmon’s interest in the property passed to Appellee and, therefore, his
____________________________________________
4 In Yannopoulos, this Court explained:
The moment an agreement of sale is executed and delivered it
vests equitable title to the realty in the purchaser. The sellers are
then relegated to the position of trustees of the real estate,
holding the bare legal title for the purchasers who become
trustees for the balance of the purchase money for the sellers.
Kerr et al. v. Day, 14 Pa. 112 (1850). Although legal title
remains with the sellers until the deed is executed, the equitable
interest passes to the purchasers and the sellers’ interest becomes
personal property even though legal title remains as security for
its payment. Foster v. Harris, 10 Pa. 457 (1849); Spratt v.
Greenfiled, … 124 A. 126 ([Pa.] 1924).
Yannopoulos v. Sophos, 365 A.2d at 1314. See also In re Highberger’s
Estate, 360 A.2d 580, 581 (Pa. 1976) (recognizing that “the execution of an
agreement of sale of real property converts, through the doctrine of equitable
conversion, the seller’s interest into personalty and the buyer’s interest into
realty. The seller is said to hold legal title as trustee for the purchaser”).
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estate is not an indispensable party to this action. Accordingly, we discern no
abuse of discretion or error of law by the trial court.
Next, Appellant argues that the trial court erred in denying his Motion
in Limine regarding the Dead Man’s Act and allowing Appellee, Mr. Blackmon,
Jr., and Betty Collins to testify at trial. Appellant’s Brief at 11. Appellant
contends that, under the Dead Man’s Act, Appellee, Mr. Blackmon, Jr., and
Betty Collins “should have been declared incompetent to testify regarding
matters occurring before the death of Zack Moore, Sr.” Id. at 20. We deem
Appellant’s claim to be wholly without merit.
We begin our analysis of this issue by setting forth the following well-
established principles:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. Northeast Fence & Iron Works, Inc.
v. Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007).
“It gives the trial judge the opportunity to weigh potentially
prejudicial and harmful evidence before the trial occurs, thus
preventing the evidence from ever reaching the jury.” Parr v.
Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014)…. A trial
court’s decision to grant a motion in limine “is subject to an
evidentiary abuse of discretion standard of review.” Id.
In re Fiedler, 132 A.3d 1010, 1023 (Pa. Super. 2016).
The Dead Man’s Act provides, in relevant part, as follows:
Except as otherwise provided in this subchapter, in any civil
action or proceeding, where any party to a thing or contract
in action is dead, … and his right thereto or therein has
passed … to a party on the record who represents his
interest in the subject in controversy, neither any surviving
or remaining party to such thing or contract, nor any other
person whose interest shall be adverse to the said right of
such deceased…, shall be a competent witness to any matter
occurring before the death of said party….
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42 Pa.C.S. § 5930. “The rationale behind the Dead Man’s Act is
that the law should not permit the surviving party to testify since
he could lie and attempt to testify favorably to himself and
adversely to the deceased party, knowing the other party is
incapable of contradicting the fallacious testimony.”
Punxsutawney Mun. Airport Authority v. Lellock, 745 A.2d
666, 670 (Pa. Super. 2000). The Dead Man’s Act is an exception
to the general rule of evidence in this Commonwealth that “no
interest or policy of law … shall make any person incompetent as
a witness.” Larkin v. Metz, … 580 A.2d 1150, 1152 ([Pa. Super.]
1990) (citing 42 Pa.C.S. § 5921).
Under the Dead Man’s Act[,] three conditions must exist
before the surviving party or witness is disqualified: “(1)
the deceased must have had an actual right or interest in
the matter at issue, i.e.[,] an interest in the immediate
result of the suit; (2) the interest of the witness—not simply
the testimony—must be adverse; (3) a right of the deceased
must have passed to a party of record who represents the
deceased’s interest.” In re Hendrickson’s Estate, … 130
A.2d 143, 146-47 ([Pa.] 1957); Weschler v. Carroll, [578
A.2d 13 (Pa. Super. 1990)].
Larkin, 580 A.2d at 1152.
Fiedler, 132 A.3d at 1024. Appellant, as the party challenging the
competency of the witnesses, has the burden of proving incompetency. See
Pagnotti v. Old Forge Bank, 631 A.2d 1045, 1046 (Pa. Super. 1993) (citing
In re Estate of Rider, 409 A.2d 397 (Pa. 1979)). We further note that the
Dead Man’s Act “applies only to oral testimony.” Larkin, 580 A.2d at 1153.
“Written evidence offered by an adverse surviving party is not rendered
incompetent by the Dead Man’s Act and is admissible.” Id. Moreover, the
Dead Man’s Act does not render incompetent testimony which identifies
written instruments signed by the deceased prior to his death. See McHenry
v. Stapleton, 278 A.2d 892, 895 (Pa. 1971).
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As to Appellant’s claim that the trial court should have barred Appellee’s
testimony regarding matters which occurred before the death of Zack Moore,
Sr., the court expressly stated that it did not take her testimony into
consideration. See TCO at 11. Following is a thorough explanation provided
by the trial court as to why it permitted Appellee to testify at trial and as to
its finding that Appellee’s testimony was not admissible under the Dead Man’s
Act:
In this case, [Appellant] filed a Motion in Limine to preclude
[Appellee] from testifying about any matter occurring before the
death of the decedent, Zack Moore, Sr., on July 17, 2017.
[Appellant] cited the Dead Man’s Act as the dispositive authority
barring [Appellee’s] testimony. This motion was filed well over
one year prior to this case being assigned to this court.
[Appellant] did not notify this court of its existence until shortly
after this trial commenced. Puzzled by [Appellant’s] lack of
preparation, this court decided to hear all the testimony before
making a determination about whether certain testimony from
[Appellee] and her witnesses would be barred by the Dead Man’s
Act….
Furthermore, this court had an additional consideration.
[Appellee] appeared in court in a hospital gurney and was clearly
in poor health. Due to the amount of effort it took to get
[Appellee] into the courtroom, it would not have been fair to
reschedule the trial or put [Appellee] through undue delay,
because [Appellant] decided to present this court with a … motion
requiring extensive research on the morning of trial.
This court determined that the testimony of [Appellee]
would not be admissible under the Dead Man’s Act. This court did
not consider her testimony.
Id. at 10-11 (unnecessary capitalization omitted; emphasis added).
In response to Appellant’s claims regarding the testimony of George
Blackmon, Jr., and Betty Collins, however, the court opined:
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[T]his court did consider the testimony of [Appellee’s] two
witnesses, George Blackmon[, Jr.,] and Betty Collins. Neither of
them are parties to this litigation. This court also considered the
exhibits introduced by [Appellee], because the Dead Man’s Act
only applies to oral testimony. Larkin, 580 A.2d at 1153. It was
[Appellant’s] burden under Pagnotti[,] supra[,] to show this
court why their testimony should be disqualified. [Appellant] did
not meet that burden. No testimony was elicited during direct-
examination or cross-examination showing that either witness has
a pecuniary interest in the outcome of this trial that would
disqualify them under the Dead Man’s Act. [Appellant] submitted
no substantive exhibits or oral argument in support of this
argument either. Furthermore, [Appellant’s] motion in limine
provided very little in the way of analysis apart from opining that
[Appellee’s] interest is “adverse.” [Appellant] has provided
nothing but bald allegations and conclusions of law in [his] quest
to disqualify these witnesses. Thus, [he] did not meet [his]
burden to disqualify George Blackmon[, Jr.,] and Betty Collins.
This court was free to consider their testimony.
Id. at 11-12 (emphasis added). We discern no error of law or abuse of
discretion by the trial court. Additionally, we deem Appellant’s claim regarding
the inadmissibility of the testimony of George Blackmon, Jr., and Betty Collins
under the Dead Man’s Act to be waived due to Appellant’s failure to properly
preserve this issue.5 See Pa.R.A.P. 302(a) (stating “[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal”).
Appellant also argues that the trial court erred in deciding that
Appellee’s claim for specific performance was not barred by the statute of
limitations. Appellant’s Brief at 24. More specifically, Appellant avers that an
action for specific performance of a contract for sale of real property must be
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5 Appellant’s Motion in Limine sought to preclude only Appellee’s testimony as
to any matters occurring prior to the death of Zack Moore, Sr. The motion is
devoid of any discussion regarding the testimony of George Blackmon, Jr.,
and/or Betty Collins.
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commenced within five years of the date that the agreement of sale was made.
Id. at 25 (citing 42 Pa.C.S. § 5526; Lamb v. Allegheny County Inst. Dist.,
69 A.2d 117 (Pa. 1949)). Appellant notes that Appellee’s quiet title action
was filed in 2016, “more than five years from the date of the purported
agreement of sale.” Id.
To begin, we note that Section 5526 provides, in relevant part:
The following actions and proceedings must be commenced within
five years:
…
(2) An action for specific performance of a contract for sale
of real property or for damages for noncompliance
therewith….
42 Pa.C.S. § 5526(2).
We further recognize:
“The statute of limitations begins to run as soon as the right
to institute and maintain a suit arises; lack of knowledge, mistake
or misunderstanding do not toll the running of the statute of
limitations.” Schaffer v. Larzelere, … 189 A.2d 267, 269 ([Pa.]
1963); Pocono Int’l Raceway v. Pocono Produce, … 468 A.2d
468, 471 ([Pa.] 1983). The statute of limitations requires
aggrieved individuals to bring their claims within a certain time of
the injury, so that the passage of time does not damage the
defendant’s ability to adequately defend against claims made….
The “discovery rule,” so-called, is an exception to the
requirement that a complaining party must file suit within the
statutory period. The discovery rule provides that where the
existence of the injury is not known to the complaining party and
such knowledge cannot reasonably be ascertained within the
prescribed statutory period, the limitations period does not begin
to run until the discovery of the injury is reasonably possible.
Hayward [v. Medical Ctr.], … 608 A.2d [1040,] … 1043 [(Pa.
1992)]; Schaffer, … 189 A.2d at 270…. [T]he rule is an equitable
one, which excludes the period of time during which the injured
party is reasonably unaware that an injury has been sustained so
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that people in that class have essentially the same rights as those
who suffer an immediately ascertainable injury. Hayward, … 608
A.2d at 1043.
Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (emphasis omitted).
Whether the statute has run on a claim is usually a question
of law for the trial judge, but where the issue involves a factual
determination, the determination is for the jury. Smith v. Bell
Telephone Co. of Pennsylvania, … 153 A.2d 477, 481 ([Pa.]
1959). Specifically, the point at which the complaining party
should reasonably be aware that he has suffered an injury is
generally an issue of fact to be determined by the [fact-finder];
only where the facts are so clear that reasonable minds cannot
differ may the commencement of the limitations period be
determined as a matter of law. Sadtler v. Jackson-Cross Co.,
… 587 A.2d 727, 732 ([Pa. Super.] 1991).
Hayward, 608 A.2d at 1043. Moreover,
it is not relevant to the discovery rule’s application whether
or not the prescribed period has expired; the discovery rule
applies to toll the statute of limitations in any case where a party
neither knows nor reasonably should have known of his injury and
its cause at the time his right to institute suit arises.
***
[A] statute of limitations, like all statutes, must be read with
reason and common sense; that its application to a given set of
circumstances, must not be made to produce something that the
General Assembly could never have intended; and that its
interpretation must be guided by the presumption in the Statutory
Construction Act that the legislature does not intend a result that
is absurd, impossible of execution or unreasonable. Ayers [v.
Morgan], 154 A.2d [788,] 789 [(Pa. 1959)]. See 1 Pa.C.S. §
1922(1)….
Fine v. Checcio, 870 A.2d 850, 859-60 (Pa. 2005).
In accordance with the foregoing principles, the trial court held:
Here, it would be inequitable to apply a statute of limitations to
[Appellee], due to the fact that [Appellee] lived in this property
undisturbed for thirty years until [Appellant] appeared out of
nowhere attempting to claim the property in 2016. [Appellee] had
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no reason to file an action to quiet title at any time prior to
[Appellant’s] intervention because she believed that the property
was in her possession, purchased legally from Zack Moore[,] Sr.
Zack Moore[,] Sr.[,] never held up his end of the bargain to
memorialize the agreement of sale by deed, even after [Appellee]
asked him to come back from South Carolina to finish the deal.
The testimony is clear that [Appellee] and her family lived their
lives in the subject property without any interference from Zack
Moore[,] Sr.[,] or [Appellant] for decades. Thus, because
[Appellee] was only made aware of the title issue after [Appellant]
intervened on behalf of Zack Moore[,] Sr.’s estate, this [c]ourt
determined that it could not punish [Appellee] for the sins of Zack
Moore[,] Sr.
TCO at 12-13. (citations to record omitted). The application of the discovery
rule here results in the tolling of the statute of limitations until 2016, when
Appellee became aware of the dispute regarding her ownership of the subject
premises.6 Appellee immediately thereafter proceeded with the filing of an
action to quiet title in July of 2016, well within the applicable statute of
limitations period. See 42 Pa.C.S. § 5526(2). Thus, we discern no abuse of
discretion or error of law in the trial court’s finding that Appellee’s claim is not
barred by the statute of limitations.
Moreover, we believe that equity demands the application of the
discovery rule in this matter, considering that the agreement of sale has been
substantially performed by Appellee. All that is remaining to be completed is
____________________________________________
6 We acknowledge that Appellee was aware that Zack Moore, Sr., failed to
execute a deed following the execution of the sale agreement. However, for
the purpose of applying the discovery rule in this matter, we ascertain that
the “injury” did not exist until Zack Moore, Jr., intervened on behalf of his
father’s estate and claimed title to the property.
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the transfer of legal title by execution of a deed.7 We presume that the
legislature would never have intended for Appellant to be able to successfully
assert the statute of limitations as an affirmative defense to bar Appellee’s
claim to quiet title where Appellee has complied with the sale agreement,
requested a deed from Zack Moore, Sr., and the failure to execute the deed
falls solely on Zack Moore, Sr.
In his next two issues, Appellant avers the trial court erred in finding
that the two rent book pages produced by Appellee at trial were sufficient to
satisfy the Statute of Frauds and that the documents were authenticated.
Appellant’s Brief at 27. After careful review, we deem Appellant’s claims to
be meritless.
As we have previously explained:
“The Statute of Frauds instructs that a purported transfer of an
ownership interest in real property is not enforceable unless
evidenced in writing and signed by the [party] granting the
____________________________________________
7 In Payne v. Clark, 187 A.2d 769 (Pa. 1963), the Court stated:
From the moment an agreement of sale of real estate is executed
and delivered it vests in the grantee what is known as an equitable
title to the real estate. See Ladner on Conveyancing in
Pennsylvania, § 5:26 (3d ed. 1961)…. [I]f the terms of the
agreement are violated by the vendor, the vendee may go into a
court of equity seeking to enforce the contract and to compel
specific performance. Borie v. Satterthwaite, … 37 A. 102
([Pa.] 1897); and Agnew v. Southern Ave. Land Co., … 53 A.
752 ([Pa.] 1902).
Id. at 770-71.
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interest.” Trowbridge v. McCaigue, 992 A.2d 199, 201 (Pa.
Super. 2010). “A writing required by the Statute of Frauds need
only include an adequate description of the property, a recital of
the consideration and the signature of the party to be charged
[with performing].” Id. A description of the property will satisfy
the Statute of Frauds where it describes a particular piece or tract
of land that can be identified, located, or found. Phillips v.
Swank, … 13 A. 712 ([Pa.] 1888). “A detailed description is not
necessary, where the description shows that a particular tract is
within the minds of the contracting parties, and intended to be
conveyed.” Id. at … 715. Regarding the signature element,
“there is no requirement in the Statute [of Frauds] or the
decisional law that a signature be in any particular form. Instead,
the focus has been on whether there is some reliable indication
that the person to be charged with performing under the writing
intended to authenticate it.” Hessenthaler v. Farzin, … 564
A.2d 990, 993 ([Pa. Super.] 1989) (holding mailgram which
appellants sent to appellees confirming sale of real estate
constituted “signed writing” for purposes of Statute of Frauds
where appellants identified themselves in mailgram, declared their
acceptance, and identified property and consideration involved).
Importantly:
The purpose of the Statute [of Frauds] is to prevent the
possibility of enforcing unfounded, fraudulent claims by
requiring that contracts pertaining to interests in real estate
be supported by written evidence signed by the party
creating the interest. Pennsylvania courts have emphasized
that the Statute is not designed to prevent the performance
or enforcement of oral contracts that in fact were made.
Therefore[:]
[W]e should always be satisfied with some note or
memorandum that is adequate … to convince the
court that there is no serious possibility of
consummating fraud by enforcement. When the mind
of the court has reached such a conviction as that, it
neither promotes justice nor lends respect to the
statute to refuse enforcement because of informality
in the memorandum or its incompleteness in detail.
Id. at 992-93 (internal citations and quotation marks omitted)
(emphasis in original).
Zuk v. Zuk, 55 A.3d 102, 107 (Pa. Super. 2012) (emphasis omitted).
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Here, Appellant contends that the Statute of Frauds precludes Appellee
from establishing an agreement of sale or title to the subject premises.
Appellant’s Brief at 29. In support of his argument, Appellant declares that
“[t]he purported agreement of sale contained an inadequate description of the
property[,] and there was no deed executed by the [d]ecedent transferring
the property.” Id.
In response to Appellant’s assertions, the trial court opined:
In all, two documents indicating the agreement of sale for
the subject property were offered by [Appellee] to overcome the
Statute of Frauds. [Appellee’s] Exhibit 1 [(“P-1”)] is a page from
a rent book dated August 7, 1985[,] containing entries logged by
her family. The page contains the following language[:]
“Received from George Blackmon, six hundred & fifty dollars for
down payment on 2023 Wilder Street.” The page contains Zack
Moore[,] Sr.’s signature. [Appellee’s] Exhibit 2 [(“P-2”)] is a page
from a rent book dated May 19, 1986. The page contains the
following language[:] “Cash Price $2800 Paid, Received from
George Blackmon[,] eighteen hundred twenty-nine dollars & fifty-
eight cents for the property 2023 Wilder Street.” The page
contains Zack Moore[,] Sr.’s signature and a balance of $157.00,
which corresponds to the adjoining page, showing a rent balance
of $157.42.
The two exhibits are somewhat crude, but they contain a
description of the property,[8] the essential terms of the
____________________________________________
8 The designation of a property by street and number is sufficient to satisfy
the Statute of Frauds where a recorded deed containing the metes and bounds
description of the property and indicating the seller’s title in the property
exists. Sawert v. Lunt, 62 A.2d 34 (Pa. 1948). See also Suchan v. Swope,
53 A.2d 116, 118 (Pa. 1947) (holding that a description of the subject-matter
of the sale as “my farm” on the vendor’s receipt for hand-money was sufficient
to satisfy the Statute of Frauds where it was clear that the parties knew what
was intended by “my farm” and all that was necessary was to refer to the
deed by which the vendor acquired title in order to ascertain the metes and
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agreement[,] and it is signed by Zack Moore[,] Sr. This [c]ourt
was satisfied that the exhibits overcame the Statute of Frauds.
However, the mere removal of the Statute of Frauds does not
necessarily compel a finding that a contract was entered into.
[Appellee] presented testimony from her children, George
Blackmon[, Jr.,] and Betty Collins[,] to support this finding[,] and
this [c]ourt found their testimony to be credible.
[George] Blackmon[, Jr.,] testified that he was living in the
subject property while attending college in 1985[,] when this
agreement was entered into. He helped his parents with financial
issues in the home and was a witness to the transaction. He
provided context about the transactions and discussed his
personal knowledge about the relationship his family had with
Zack Moore[,] Sr. Mr. Blackmon was also familiar with Zack
Moore[,] Sr.’s signature, as a result of helping his family out with
this transaction and other rental transactions. Betty Collins,
[Appellee’s] daughter[,] also testified that she was familiar with
Zack Moore[,] Sr.[,] and it was her understanding from living in
the subject property that it was purchased from Zack Moore[,] Sr.
She testified that she saw Zack Moore[,] Sr.[,] sign the rent book.
This [c]ourt found their testimony to be credible and ample
enough to show that an agreement of sale for the subject property
occurred between [Appellee] and Zack Moore[,] Sr…. Appellant
provided his own testimony, and that of his sister and mother to
rebut [Appellee’s] assertion that Zack Moore[,] Sr.’s signature in
the rent book is authentic. This [c]ourt did not find the testimony
of … Appellant and his witness[es] credible.
TCO at 13-14 (citations to record omitted).
With regard to Appellant’s claim that Appellee failed to satisfy the
Statute of Frauds because the writings produced as evidence of the sale
agreement did not include a deed, we note that “[a]ppellate arguments which
fail to adhere to [the Rules of Appellate Procedure] may be considered waived,
____________________________________________
bounds for conveyance purposes). Here, the record contains a copy of the
recorded deed which originally conveyed the subject premises to Zack Moore,
Sr., on September 15, 1970, and included the metes and bounds description
of the property. See Complaint, Exhibit D.
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and arguments which are not appropriately developed are waived.” Coulter
v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014). “[I]t is an appellant’s
duty to present arguments that are sufficiently developed for our review. The
brief must support the claims with pertinent discussion, with references to the
record[,] and with citations to legal authorities.” In re R.D., 44 A.3d 657,
674 (Pa. Super. 2012). “We will not act as counsel and will not develop
arguments on behalf of an appellant.” Id. As Appellant fails to develop his
argument and fails to cite to any legal authority in support of his assertion,
we deem this claim to be waived. 9
Additionally, Appellant avers that the documents relied on by the court
were not properly authenticated, based on his assertion that “[George]
____________________________________________
9 Even if Appellant had properly preserved this issue, we reiterate that the
Statute of Frauds provides that “[a] writing … need only include an adequate
description of the property, a recital of the consideration and the signature of
the party to be charged [with performing].” Trowbridge, supra.
Furthermore, we note that our Supreme Court has consistently held that “a
failure to record documents demonstrating a conveyance is not dispositive of
whether the documents effectuated a valid conveyance.” MERSCORP, Inc.
v. Delaware County, 207 A.3d 855, 867 (Pa. 2019) (internal quotation
marks and brackets omitted). The purpose of Pennsylvania’s land recording
statutes is “to protect subsequent bona fide purchasers by providing notice of
conveyances and any other restrictions on land and guarding against a
fraudulent title.” Id. at 866 (emphasis added) (citing, inter alia,
Montgomery County, Pa. v. MERSCORP Inc., 795 F.3d 372 (3d. Cir. 2015)
(holding that Pennsylvania recording statutes do not create a mandatory duty
to record every conveyance but, rather provide instructions for “preserv[ing]
the property holder’s rights as against a subsequent bona fide purchaser”).
Thus, the lack of a deed in the present case, where no third-party, bona-fide
purchaser or creditor is involved, would not invalidate the conveyance of the
property between Appellant and Appellee.
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Blackmon[, Jr.,] learned about [Zack] Moore[, Sr.]’s signature in anticipation
of litigation[,] which is barred by the Pennsylvania Rules of Evidence….”
Appellant’s Brief at 29; see also id. at 30 (citing Pa.R.E. 901(b)(3) (stating
that when there is a question of authenticity, a specimen used for comparison
must be authenticated)); id. (citing Pa.R.E. 901(b)(2) (indicating that
handwriting evidence may be authenticated by “a non[-]expert’s opinion that
handwriting is genuine, based on a familiarity with it that was not acquired for
the current litigation”)).
To the contrary, the record reflects that the documents were properly
authenticated. “[George] Blackmon[, Jr.,] provided ample testimony to show
that he was familiar with Zack Moore[,] Sr.’s signature and that he witnessed
Zack Moore[,] Sr.[,] sign the rent[]book and the pages containing the
contested agreement of sale.” TCO at 15. After re-producing a portion of
George Blackmon, Jr.’s testimony regarding his knowledge of the disputed
transaction and of Zack Moore, Sr.’s signature, the trial court concluded:
Mr. Blackmon was clearly discussing an attempt to validate Mr.
Moore Sr.’s signature on certain receipts or entries in the
rent[]book, not on [P-1 and P-2,] which captured the contested
sale of the subject property in this matter. This [c]ourt
determined that Mr. Blackmon’s testimony about visiting the
pension board[10] is confined purely within the context of
____________________________________________
10 At trial, George Blackmon, Jr.[,] testified:
We did an extensive background in terms of validating [Zack
Moore, Sr.’s] signature through the pension department[,]
through the City of Philadelphia and FOP. I am not a handwriting
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validating Mr. Moore[,] Sr.’s signature on certain pages of the
rent[]book which are not germane to whether this signature on
the agreement of sale is authentic. Mr. Blackmon testified that he
was a witness to the agreement of sale and that he saw Mr.
Moore[,] Sr.[,] sign it. So did Mr. Blackmon’s sister. This [c]ourt
found the testimony about his personal knowledge credible. Mr.
Blackmon couldn’t possibly have acquired this firsthand
knowledge in anticipation of litigation in 1986 over thirty years
ago unless he is also a wizard or jedi with the ability to see into
the future. Since []Appellant conducted no discovery in this case
and didn’t cross-examine Mr. Blackmon about whether he
possesses such an ability, alas, we will never truly know.
Id. at 18 (footnote omitted). After careful review, we determine that the
record supports the trial court’s finding of a valid agreement of sale.
Lastly, Appellant avers that Appellee failed to establish the elements of
adverse possession. He asserts that Appellee’s use of the subject premises
was “in subordination to Mr. Moore, Sr.[,]” that Appellee “resided in the
property as if she was a tenant[,]” and that the record is devoid of any
evidence of change in the character of Appellee’s tenure from permissive to
hostile. Appellant’s Brief at 30, 32-33. Based on our conclusion that the trial
court properly found a valid agreement of sale between the parties, we deem
this issue to be moot. However, even if the sale agreement had been invalid,
the record clearly belies Appellant’s claims.
____________________________________________
expert, but we did go through the painstaking process of trying to
make sure this signature was validated…. We did contact the
pension board … to provide us with copies of and signature of Mr.
Moore, Sr.[,] so that we could have a handwriting expert from the
Philadelphia Police Department to validate the signatures that are
here on the receipt and the signatures that are on Mr. Moore[,]
Sr.’s retirement papers as it relates to the City of Philadelphia.
TCO at 17 (quoting N.T. Trial, 11/30/17, at 43-44).
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“Adverse possession is an extraordinary doctrine which permits one to
achieve ownership of another’s property by operation of law.” Flannery v.
Stump, 786 A.2d 255, 258 (Pa. Super. 2001). “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.
Each of these elements must exist; otherwise, the possession will not confer
title.” Id. (internal citations omitted). “Where the possession, at its inception,
is permissive, … [adverse possession] will not begin to run against the real
owner until there has been some subsequent action of disseizin or open
disavowal of the true owner’s title….” Id. at 260 (internal quotation marks,
citations, and emphasis omitted).
It is clear that Appellee has established all of the requisite elements of
adverse possession in the present matter.11 We adopt Appellee’s analysis, in
relevant part, as follows:
[Appellee] moved into [the] property in 1973 as a renter. In
1986, [Appellee] stopped [paying] rent[,] as she believed she
purchased [the] property from [Zack] Moore, Sr. Witness
testimony and evidence was presented at trial that [Appellee] paid
taxes from 1986 onward…. [Appellee] has kept up with the
general maintenance of the property[,] as well as improvement to
[the] home. [Appellee] submitted receipts for roof repair,
replaced windows[,] and [the] widening [of] the entrance to
accommodate [a] handicap ramp. Further, [Zack] Moore, Jr.[,]
testified that there is no record of Zack Moore[,] Sr.[,] or [his]
____________________________________________
11We note that the trial court provided a thorough alternative analysis in
support of a finding of adverse possession, in the event that this Court
concluded that the parties did not enter into an agreement of sale. Because
we are satisfied that Appellee met her burden of establishing a valid sale
agreement, we need not reproduce the trial court’s analysis here.
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estate … making any home improvements, paying any property
taxes[,] or performing any general maintenance on the property
since 1986.
[Appellee’s] ownership has been visible and notorious where all
reasonable persons were on notice [that] the property was
[possessed by her]. There was testimony that [Appellee] and her
family had regular family social event[s] and would regularly put
up holiday decoration[s]. There was further testimony that
[Appellee] and her family were friendly with their neighbors.
Additionally, [Appellee] has appeared before [the] court of
common pleas to avoid [a] sheriff’s sale [of the] property and
entered into an agreement to pay [property] taxes.
[Appellee’s] possession was distinct and exclusive. [Appellee]
testified that she believed that she purchased the property from
Zack Moore, Sr.[,] and acted in accordance with th[e] belief that
it was her property. [Appellant] testified that he nor his realtor
was allowed entry and that [Appellee’s] son told him that
[Appellee] purchased [the] property.
[Appellee’s] possession has been hostile. [Appellee] … asserted
her ownership rights adverse to that of [the] true owner and all
others. [Appellee] and her husband purchased [the] property
from Zack Moore[,] Sr.[,] for $2800. Despite the transfer not
being finalized, [Appellee] believed that the property was hers and
conducted herself and her activities surrounding the property
accordingly.
[Appellee’s] possession of the property has been continuous and
uninterrupted in excess of the 21-year statutory period.
[Appellee] and her family have possessed the property for 31
years.
Appellee’s Brief at 5-6 (unpaginated; citations to record omitted).
In response to Appellant’s allegation that Appellee’s use of the property
remained permissive and not hostile, we further expand on the hostile
possession element.
When considered as an element of adverse possession, “hostile”
is a word of art. “While the word ‘hostile’ has been held not to
mean ill will or hostility, it does imply the intent to hold title
against the record title holder.” Possession may be hostile even
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though the claimant knows of no other claim. 1 P.L.E. Adverse
Possession § 41, 433-34.
Schlagel v. Lombardi, 486 A.2d 491, 494 (Pa. Super. 1984).12 In Schlagel,
this Court stated that “[t]he fact that [the] appellant was under the false
impression that he owned the land does not automatically mean that his
possession was not ‘hostile.’” Id. This Court explained:
It is true that some jurisdictions hold that the possessor’s
mistaken belief in his ownership negatives the existence of
a necessary hostile intent…. These jurisdictions identify
hostility with the common-law tort of disseizin, i.e., forcible
ouster. The theory is that one who does not know he is in
possession of another’s land cannot harbor the specific
intent to oust the other out of his land. But most
jurisdictions deem the animus of the possessor irrelevant.
Rather, they look to the actual physical facts of the
possession to determine if such circumstances of notoriety
exist so that the true owner is put on notice. They represent
a belief that the nature of the possession alone is what is
important and that a sufficiently notorious possession will
always be enough to alert the owner. Therefore, the
____________________________________________
12 We further note:
Hostile possession, for purposes of an adverse possession claim,
does not connote or require ill will, malevolence, animosity, or
enmity but rather is an assertion of ownership adverse to that of
the true owner. Hostility of possession means that one in
possession of land claims the exclusive right to that land or
occupies it as its owner. Such possession thus imports that the
claimant is in possession as owner, in contradistinction to holding
in recognition of or subordination to the true owner. Possession
is hostile if the possessor holds and claims the property as his or
her own, whether by mistake or willfully.
3 Am.Jur.2d Adverse Possession § 40.
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hostility is implied if all other elements have been
established.
Pennsylvania follows the majority view. See, e.g., Dimura
v. Williams, … 286 A.2d 370 ([Pa.] 1972); Adams v.
Tamaqua Underwear Co., … 161 A. 416 ([Pa. Super.]
1932).
Lyons v. Andrews, … 313 A.2d 313, 316-17 ([Pa. Super.] 1973).
See also Burns v. Mitchell, … 381 A.2d 487 ([Pa. Super.] 1977).
Schlagel, 486 A.2d at 494 (internal citations omitted). Based on the
foregoing analysis of relevant case law, the Schlagel Court held that “it was
error for the lower court to deny [the] appellants’ adverse possession claim
on the basis that their mistaken belief in their ownership negated the existence
of the necessary hostile intent.” Id.
Similarly, in the instant matter, Appellee’s belief that she owned the
subject premises would not negate the existence of the requisite hostile intent.
The record clearly establishes sufficiently notorious possession to put
Appellant on notice of Appellee’s physical possession of the property. Having
proven all of the other elements of adverse possession, hostility is implied.
See Flannery, 786 A.2d at 258 (noting that “our [S]upreme [C]ourt has
stated that hostility may be implied where all of the remaining elements of
adverse possession have been established and where there is no evidence
tending to prove or disprove hostility”) (citing Myers v. Beam, 713 A.2d 61,
62 (Pa. 1998)). Thus, if the sale agreement were invalid, we would discern
no abuse of discretion or error of law in the trial court’s granting of Appellee’s
adverse possession claim.
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Accordingly, we affirm the judgment entered on September 5, 2018 in
favor of Appellee.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/20
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