Hoffman, R. v. Gongaware, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RANDY E. HOFFMAN AND SHERRY L.: IN THE SUPERIOR COURT OF
HOFFMAN, HIS WIFE : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 920 WDA 2020
SCOTT A. GONGAWARE AND KERN :
BROTHERS LUMBER COMPANY A/K/A :
KERN BROTHERS LUMBER COMPANY, :
INC. :
Appeal from the Judgment Entered November 16, 2020
In the Court of Common Pleas of Somerset County Civil Division at
No(s): 503 Civil 2014
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED: APRIL 12, 2021
Appellants, Randy E. Hoffman and Sherry L. Hoffman, appeal from the
Judgment entered in the Somerset County Court of Common Please following
a non-jury trial verdict in favor of Appellees, Scott A. Gongaware (“Appellee”)
and Kern Brothers Lumber Company (“Kern”) (collectively, “Appellees”) in this
Conversion and Unjust Enrichment action in which the parties dispute the
nature of a reservation of timber rights in a deed. After careful review, we
affirm.
Facts
The facts, as gleaned from record, including the trial court’s January 10,
2017 and July 22, 2020 Opinions and the Opinion of a prior panel of this
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Court,1 are as follows. Appellants were the owners of a 20-acre parcel of land
(“the Property”) on which a crop of timber existed and Appellants had built a
home. On October 12, 1977, Appellants conveyed the Property to
Consolidation Coal Company (“Consol”) by a deed recorded the following day
(“the Deed”).2 Relevant to this appeal, the Deed contained an “Exception and
Reservation” clause (“the Timber Clause”) that reserved some rights to
Appellants, and to their heirs and assigns, to harvest timber from the Property
and required Consol to provide Appellants with six-months’ notice to harvest
the timber before Consol commenced strip-mining activities on the Property.3
Within two years of their conveyance of the Property to Consol, in either 1978
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1 See Hoffman v. Gongaware, 186 A.3d 453 (Pa. Super. 2018) (reversing
order sustaining preliminary objections and remanding for consideration of
parol evidence to construe reservation clause of Deed).
2 Consol was a business engaged in, among other things, strip-mining.
3 The relevant clause of the Deed provides as follows:
ALSO EXCEPTING AND RESERVING unto the grantors, their heirs
and assigns, all of the timber on the premises hereby conveyed
and all necessary and convenient rights for the removal thereof,
provided that the grantors, their heirs and assigns, must exercise
said right upon six (6) months written notice by the grantee, its
successors or assigns, and provided further, that such operations
by the grantors, their heirs and assigns, do not interfere with the
coal mining operations of the grantee, its successors or assigns.
Deed, 10/12/77.
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or 1979, Appellants “clear cut” and sold all of the Property’s marketable timber
pursuant to the Timber Clause.4
In 1984, Consol conveyed the Property, subject to the Timber Clause,
to its subsidiary Reserve Coal Properties Company. On June 28, 2004,
Reserve Coal Properties Company conveyed the Property to Appellee
Gongaware, “subject to all exceptions, reservations[,] and all other matters
affecting title as set forth in” the Deed.
In 2012, Appellants learned that Appellee Gongaware had entered into
an agreement with Kern to harvest timber from the Property, and that Kern
had harvested the timber for which Kern paid Mr. Gongaware $6,500.
Procedural History
In 2014, Appellants filed a Complaint against Appellees alleging
Conversion and Unjust Enrichment, and seeking damages, including statutory
treble damages under 42 Pa.C.S. § 8311(a)(2)(i) for the removal of the timber
without their consent.5
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4 Consol never provided Appellants with the specified six-month notice to
harvest the timber and never conducted the contemplated strip-mining
operations because the coal market “became challenged.” Trial Ct. Op.,
7/22/20, at 4-5.
5 Appellants also sought injunctive relief. However, because Appellee had sold
the Property in 2016 and the trial court viewed Appellant’s claim for injunctive
relief as implicating the current owner’s interest, Appellants withdrew the
claim for injunctive relief rather than join the current owner as a party to this
action.
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Appellees filed Preliminary Objections. The trial court sustained the
Preliminary Objections and dismissed the Complaint after finding that the
Timber Clause conveyed an interest in the timber as personal property to be
harvested within a short period of time after the conveyance, and did not grant
Appellants a perpetual interest in the land. Trial Ct. Op., 1/10/17, at 5
(unpaginated). Therefore, the court concluded, Appellants had “no property
interest, either real or personal, in the timber existing on the premises at the
commencement of these proceedings.” Id. at 6 (unpaginated).
Appellants filed an appeal to this Court, and we reversed the Order of
the trial court and reinstated Appellants’ Complaint.6 See Hoffman v.
Gongaware, 186 A.3d 453, 454 (Pa. Super. 2018) (“Hoffman I”).
On June 9, 2020, this matter proceeded to a non-jury trial at which the
court considered two primary issues: (1) whether the parties to the Deed
intended the Deed’s Timber Clause to create a perpetual interest in the land
or a personal property interest in the land; and (2) the appropriate measure
of damages, if any, under 42 Pa.C.S. § 8311.
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6 This Court held that “[t]he intent of the parties and the nature of the
reservation at issue cannot be determined based upon the pleadings and their
attachments in the instant case. Indeed, this is a fact specific inquiry and the
trial court will need to look to extrinsic or parol evidence in making its
determination. Thus, the matter is not properly disposed of by preliminary
objections in the nature of a demurrer.” Hoffman I, 186 A.3d at 461-62.
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At trial, Appellants presented their own testimony that they intended
the reservation contained in the Timber Clause to be for life.7 They also
presented the testimony of Joseph Policicchio, Esquire, the attorney who
drafted the Deed. Attorney Policicchio testified that he did not specifically
recall which parts of the Deed he had drafted, but he knew that, in the Timber
Clause, Appellants intended to retain a “perpetual right to the timber[.] N.T.,
6/9/20, at 97-98, 102-03. Attorney Policicchio also testified that he would
have included the “heirs and assigns” language in the Timber Clause whether
he was drafting it with the intent to create a real property interest or a
personal property interest. Id. at 107.
Appellees presented the testimony of William Stanhagen, who led
Consol’s acquisition division at the time it purchased the Property. Mr.
Stanhagen testified that he did not specifically recall the Deed but, generally,
when Consol purchased a property with a timber reservation like the Timber
Clause in the Deed it was a “one-time reservation” for the “timber that was
marketable at that time” and it expired as soon as that timber had been
removed. Id. at 192. Mr. Stanhagen explained that Consol had this policy
because, generally, after Consol had strip-mined a parcel, it would reclaim
and sell the property. Id. at 195. Allowing a grantor to retain a perpetual
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7 Appellants and Appellees both elicited testimony from Appellee Gongaware
who, although he had no first-hand knowledge of the parties’ intent at the
time of the Deed, testified to his understanding of Appellants’ interest in the
Property at the time Reserve Coal Properties Company conveyed it to him and
Appellants’ entitlement to treble damages under Section 8311.
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right to harvest any regenerated timber would make the property too difficult
to sell and significantly decrease its value. Id. Mr. Stanhagen also testified
that Consol included “heirs and assigns” language in all of its deeds that
reserved timber rights in the prior owner in the event that the prior owner
died before exercising its one-time right to harvest the timber. Id. at 200.
On July 22, 2020, the trial court issued an Opinion and Verdict in favor
of Appellees. After reviewing the testimony and evidence presented at trial,
completing an extensive survey of the case law pertaining to timber
reservations, and considering the Timber Clause in the context of the other
provisions in the Deed, the trial court concluded that the Timber Clause
created a personal property interest in the timber that terminated when
Appellants harvested the timber in either 1978 or 1979. Trial Ct. Op.,
7/22/20, at 17-24.
In particular, the trial court construed the language of the Timber Clause
to mean that the parties intended to transfer an “identifiable quantum of
timber—the timber on the premises at the time of the agreement—not timber
that the land would go on to produce.” Id. at 17. The court concluded that,
because the timber was personal property, Appellants had to remove it within
a reasonable time. The court also concluded that, based on the evidence that
Consol generally commenced strip mining within three years of acquiring
property, three years was the reasonable amount of time Appellants had to
remove the timber from the property. Id. at 23 n.11. Because Appellants did
not possess either a real or personal property interest in the Property in 2012
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when Appellee Gongaware and Kern timbered it, the court concluded that
Appellants were not entitled to any relief on their claims.
Appellants filed a timely Post-Trial Motion, primarily challenging the
weight the trial court gave to the evidence presented at trial, which Appellants
argued demonstrated that the intent of the parties was to create a permanent
reservation of timber rights. N.T. Hearing, 8/26/20, at 7-9. The trial court
denied Appellants’ Motion that same day. Following the entry of Judgment,
Appellants timely appealed.8
Appellants raise the following issues on appeal:
[1.] Whether the [l]ower [c]ourt erred in ruling and issuing a
verdict in favor of Appellees on the basis that Pennsylvania
[s]tatutory [l]aw and [j]urisprudence dictate that the [Timber
Clause] in the [D]eed was a reservation of land and thereby a
perpetual ownership right[?]
[2.] Whether the [l]ower [c]ourt erred when reviewing the nature
of the [D]eed and the intent of the parties who created the [D]eed
when [] Appellants, grantors therein, unequivocally testified they
intended to create a perpetual ownership in timber on the
premises[?]
[3.] Whether the [l]ower [c]ourt erred in failing to consider 21
P.S. § 521 as this statute creates a presumption that a timber or
bark clause vests an interest in land versus personalty[?]
Appellants’ Brief at 3.
Standard of Review
When reviewing a trial court’s decision after a non-jury trial, our
standard of review is well-established. “We may reverse the trial court only
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8The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) Statement
and the trial court did not file a Rule 1925(a) Opinion.
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if its findings of fact are predicated on an error of law or are unsupported by
competent evidence in the record. As fact finder, the judge has the authority
to weigh the testimony of each party’s witnesses and to decide which are most
credible.” Parker Oil Co. v. Mico Petro and Heating Oil, LLC, 979 A.2d
854, 856 (Pa. Super. 2009) (citation omitted). The trial judge’s findings must
be given the same weight and effect as a jury verdict and will not be disturbed
on appeal unless they are not supported by competent evidence in the record.
Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super. 2009). “Furthermore, our
standard of review demands that we consider the evidence in the light most
favorable to the verdict winner.” Id. (citation omitted).
This case involves the interpretation of a deed, which presents a
question of law. “Our standard of review over questions of law is de novo and
to the extent necessary, the scope of our review is plenary as this court may
review the entire record in making its decision.” Kripp v. Kripp, 849 A.2d
1159, 1164 n.5 (Pa. 2004).
When interpreting deeds, this Court’s primary objective must be
to ascertain and effectuate the intent of the parties. When the
language of the deed is free from ambiguity, the intent of the
parties must be determined from the language of the deed.
Conversely, when the language is ambiguous, intent is determined
by the situation and conduct of the parties, surrounding
circumstances, the object they had in view and the nature of the
subject matter. Further, if the language in a deed is ambiguous,
“then all of the attending circumstances existing at the time of
the execution of the instrument should be considered to aid in
determining the apparent object of the parties.” Starling v. Lake
Meade Prop. Owners Ass'n, Inc., [] 162 A.3d 327, 341 ([Pa.
]2017) (citation omitted; emphasis in original).
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Russo v. Polidoro, 176 A.3d 326, 329 (Pa. Super. 2017) (some citations and
quotation marks omitted).
It is well-settled:
Whether growing timber is to be regarded as personal property or
an interest in real estate in an agreement for its reservation or
sale depends on the nature of the contract and the intent of the
parties; that, if the agreement does not contemplate the
immediate severance of the timber, it is a contract for the sale or
reservation of an interest in land; but that, where the agreement
is made with a view to an immediate severance, the timber is to
be regarded as personal property.
Hoffman I, 186 A.3d at 461 (citing Strause v. Berger, 69 A.818 (Pa. 1908)).
In their first two issues, Appellants challenge the trial court’s
interpretation of the Deed.9 Appellants’ Brief at 15-21. Appellants essentially
challenge the weight the trial court gave to the evidence presented by the
parties and the court’s conclusion that the parties intended the Timber Clause
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9 To the extent that Appellants claim that the trial court erred in considering
parol evidence to aid in its interpretation of the Timber Clause, see Appellees’
Brief at 15-18, we decline to consider it. In Hoffman I, we determined that
the intent of the parties and the nature of the reservation at issue was not
discernable from the pleadings and their attachments, including the Deed’s
plain language. Hoffman I, 186 A.3d at 461. We, thus, concluded, that the
intent of the parties was a “fact specific inquiry” and directed the trial court,
on remand, to consider “extrinsic or parole evidence” to determine the parties’
intent. Id. Appellants did not further challenge this determination by filing a
Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
In light of this Court’s expressed and settled finding that the intent of the
parties was not clear from the plain language of the Deed, Appellants may not
re-raise this issue, challenging the finding of ambiguity in the instant appeal.
See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (explaining
that “upon a second appeal, an appellate court may not alter the resolution of
a legal question previously decided by the same appellate court[.]”).
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to reserve a time-limited personal property interest in the timber on the
Property. Id. at 18-21. In support of this position, Appellants argue that the
fact that Consol never strip-mined the Property or provided Appellants with
notice to timber it “suggests that the exception and reservation continued in
perpetuity.” Id. at 20. Appellants also argue that their own testimony and
that of Attorney Policicchio supports their claim that they intended to create a
perpetual right to harvest the timber.
We review a weight of the evidence claim with the following in mind:
[a]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Gold v. Rosen, 135 A.3d 1039, 1041-1042 (Pa. Super. 2016) (citation
omitted). Further, the court “is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.” Haan v. Wells,
103 A.3d 60, 70 (Pa. Super. 2014) (citation omitted).
Because the Timber Clause did not itself “conclusively define the nature
of the conveyance,” the court considered extrinsic evidence, including
testimony presented by the parties. Trial Ct. Op. at 18. After considering this
testimony, the trial court determined that the parties intended to treat the
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timber as personal property and to grant Appellants a right to remove mature
and already-existing timber within a definite period. Id. at 17, 19.
The court was persuaded that the parties intended to create a
temporary, and not perpetual right to harvest timber by evidence that: (1)
the parties agreed on the purchase price for the Property before they
contemplated the Timber Clause, and did not change the purchase price after
adding the Timber Clause; (2) Consol only conferred a perpetual right to
harvest timber under extraordinary circumstances, which were not present in
this case; (3) after Appellants clear-cut the Property in 1978 or 1979, they
took no further action indicting they retained a perpetual right in the Property;
(4) the parties entered into the agreement with the understanding that Consol
would commence strip-mining activities within three years, strip-mining would
destroy any unharvested timber, and the Property may never again produce
timber; and (5) granting Appellants a perpetual right to indefinitely timber the
Property would have impeded Consol’s ability to resell the Property and would
have rendered the Property less valuable. Id. at 18-24. In sum, the court
credited “objective indications” of the parties’ intent over Appellant’s “now-
purported intentions.” Id. at 23.
Competent evidence in the record supports the trial court’s findings. We
cannot and will not reweigh the evidence relied upon by the court when it
concluded that: (1) the Deed provided Appellants with the right to remove all
timber existing on the Property at the time the parties executed the Deed; (2)
because the parties intended strip-mining to begin on the Property within two
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or three years of 1977, Appellants could not harvest any timber beyond those
temporal limitations; (3) the Deed severed the timber from the Property,
creating a personal property interest that Appellant’s had a reasonable time
to exercise; (4) Appellants exercised their right to the timber when they clear-
cut the Property in 1978 or 1979; and (5) at the time Appellee Gongaware
hired Kern to harvest the then-existing timber on the Property, Appellants did
not possess any interest, either personal or real, in the Property’s timber. Id.
at 23-24. Accordingly, Appellants’ first two issues garner no relief.
In their final issue, Appellants aver that the trial court erred in entering
Judgment in favor of Appellees because, under Pennsylvania statutory law, a
reservation of timber rights constitutes an interest in land, not personal
property. Appellants rely on the statute governing timber deeds, which
states:
It shall be lawful for the owner or owners of land, timber or bark,
or for any person or persons having an interest therein, to grant,
bargain and sell, or contract to sell, by deed, conveyance or
contract in writing, signed by the grantor or grantors therein, and
proved or acknowledged by them, as now required by law of this
commonwealth for the signing and acknowledging of deeds, all or
any right, title, claim or interest such grantor or grantors may
have in or to any standing or growing timber, or the bark thereon,
upon any lands in this commonwealth; and any such deed,
conveyance or contract shall be taken and deemed as a deed,
conveyance or contract conveying and vesting an interest in land.
21 P.S. § 521 (emphasis added).
As aptly noted by the trial court, notwithstanding the language of
Section 521, Pennsylvania case law has held that not all timber deeds create
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an interest in land. Trial Ct. Op. at 12-16 (discussing Zitney v. Appalachian
Timber Products, Inc., 72 A.3d 281 (Pa. Super. 2013); McClintock’s
Appeal, 71 Pa. 365, 366 (1872); Wilson v. Irvin, 1 Pennyp. 203 (Pa. 1881);
Patterson v. Graham, 30 A. 247 (Pa. 1894); Havens v. Pearson, 6 A.2d
84 (Pa. 1939)).
Appellants have not developed their argument that the trial court erred
by not simply applying Section 521 and entering Judgment in their favor with
any discussion of the preceding authority or explanation for their conclusion
that the trial court erred in relying on it. See Pa.R.A.P. 2119(a) (requiring
that the argument section of an appellate brief include discussion of and
citation to pertinent authority). Instead, Appellants merely assert that the
trial court has “ignore[d] the statutory law and instead relie[d] on extrinsic
evidentiary assumptions.” Appellants’ Brief at 22. Accordingly, we find
Appellants’ third issue waived. See, e.g., In re Estate of Whitley, 50 A.3d
203, 209-10 (Pa. Super. 2012) (explaining that the failure to cite relevant
legal authority constitutes waiver of the claim on appeal).
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2021
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