East End Gun Club v. Kowalczyk, A. ( 2023 )

J-S18044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
EAST END GUN CLUB OF : IN THE SUPERIOR COURT OF
SCHUYLKILL HAVEN, PA : PENNSYLVANIA
:
:
v. :
:
:
ANNE C. KOWALCZYK, SUSAN C. :
STRANG, CYRUS PALMER DOLBIN, : No. 1624 MDA 2021
ELLEN MARIE DOLBIN :
:
Appellants :
Appeal from the Judgment Entered March 9, 2022
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): S-2019-2015
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 7, 2023
Anne C. Kowalczyk, Susan C. Strang, Cyrus Palmer Dolbin, and Ellen
Marie Dolbin (Appellants) appeal from the order entered in the Court of
Common Pleas of Schuylkill County, which granted quiet title to Appellee, East
End Gun Club of Schuylkill Haven, Pennsylvania (East End) of a 150-acre
property in Wayne Township, Pennsylvania, as made final by the entry of
judgment on March 9, 2022. Appellants raise a myriad of claims on appeal,
including, inter alia, trial court error in (1) failing to properly review the record;
(2) failing to apply the principle of acquiescence; (3) accepting the testimony
of a defense expert witness; and (4) improperly shifting the burden of proof
to them. Based on the following, we affirm.
J-S18044-22
At the outset, the crux of this appeal concerns a dispute over a 50-acre
tract of land (the Property) that is part of the East End Property, and has been
contested since 2009.1 As will be discussed in detail below, Appellants claim
ownership of the Property pursuant to a November 13, 2014, deed (the
Kowalczyk-Strang-Dolbin Deed) from Cyrus Palmer Dolbin2 to them. East End
also asserts ownership of the Property by a deed dated February 11, 1963
(the 1963 Deed), from Anthony Wallace, Leon W. Naus, George D. Naus, and
Maurice E. Umbenhaur, Trustees of and for the East End Gun Club (the
Trustees of East End) to East End. See East End Gun Club, 1458 MDA 2019
(unpub. memo. at 1-2). The 1963 Deed described the total property as
containing 150 acres and represented the acreage conveyed to the Trustees
of East End from Charles V. and Susan E. Strause, husband and wife, by deed
dated August 7, 1930 (the Strause Deed). Id. at 2. “However, the Strause
[D]eed described the property as containing 100 acres of land, ‘more or less.’”
See Trial Ct. Op., 1/31/22, at 1. It is those last three words — “more or less”
____________________________________________
1 Indeed, this Court has addressed appeals concerning this land in some
fashion three times before. See McGovern v. East End Gun Club of
Schuylkill County, PA, 1954 MDA 2013 (unpub. memo.) (Pa. Super. Sept.
25, 2014); Kowalczyk v. East End Gun Club of Schuylkill County, PA,
1303 MDA 2016 (unpub. memo.) (Pa. Super. Jan. 30, 2018); East End Gun
Club of Schuylkill County, PA v. Kowalczyk, 1458 MDA 2019 (unpub.
memo.) (Pa. Super. Oct. 5, 2020).
2 Cyrus Palmer Dolbin is a judge of the Court of Common Pleas of Schuylkill
County, which resulted in a full-bench recusal of that court. See Trial Ct. Op.,
1/31/22, at 2 n.1.
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— that Appellants take issue with as they assert that the Strause Deed only
provided East End with 100 acres, not 150 acres.
A prior panel of this Court summarized some of the relevant facts and
procedural history of this case as follows:
In September 1950, the Honorable (then attorney) Donald
Dolbin of the Schuylkill County Court of Common Pleas purchased
a parcel of land from the Schuylkill County Tax Claim Bureau at
an upset sale. The deed [(the 1950 Tax Claim Bureau Deed)]
reflects the property was owned by Alvin Heim and sold for
$90.00. Dolbin placed the title to the property in the names of
Anne Palmer Dolbin and Jane Palmer Craig, his wife and sister
(hereinafter “Sellers”). The property is landlocked and
unimproved.
Dolbin paid real estate taxes on the property until his death
in 2000. Thereafter, Dolbin’s son, the Honorable Cyrus Palmer
Dolbin, as one of the co-executors, paid the real estate taxes until
2008, when Sellers entered into an agreement of sale with [James
P. and Shana L. McGovern, husband and wife (the McGoverns)].
In 2010, the McGoverns divorced. Since then, James McGovern
has paid the taxes.
Pursuant to the terms of the agreement of sale, the
McGoverns were responsible for securing a registered survey of
the tract, securing an abstractor in order to establish the chain of
title, and proceeding with the action to quiet title. The McGoverns
acknowledged that the agreement of sale called for the sale of
75.8 acres, indicated in the tax assessment records, in contrast to
the 83-acre tract found in the [1950 Tax Claim Bureau Deed] to
Dolbin. The McGoverns further acknowledged that the registered
surveyor determined the tract was actually approximately 67
acres.
After signing the agreement of sale, the McGoverns walked
around the boundaries of the property and observed warning signs
posted by [East End]. Walter J. Manhart, the registered surveyor,
secured all the adjacent deeds, assessment maps, zoning maps
and surveys he could find. Using these instruments, Manhart
developed a legal description1 of the property in question; he
determined that the tract consisted of 67.904 acres. Additionally,
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he determined that in 1963, while East End was conducting a
survey of its land, it surveyed into its deed a 50-acre parcel of the
Dolbin tract.
__________________________
1 A legal description is a formal description of real property,
including a description of any part subject to an easement
or reservation, complete enough that a particular piece of
land can be located and identified. The description can be
made by reference to a government survey, metes and
bounds, or lot numbers of a recorded plat. Black’s Law
Dictionary 746 (8th ed. 2005).
__________________________
McGovern, 1954 MDA 2013 (unpub. memo. at 1-3) (record citation
omitted).3
On January 23, 2009, the McGoverns filed a complaint against East End
in quiet title and ejectment.4 “The McGoverns also alleged that they held title
by virtue of the deeds set forth in their chain of title, including the 1950 Tax
Claim Bureau Deed, and that [East End] had no basis to claim title because
the disputed land is not included in any deed by East End.” McGovern, 1954
MDA 2013 (unpub. memo. at 3).
In its answer, East End admitted that it acquired title by way of the
recorded 1963 Deed. See McGovern, 1954 MDA 2013 (unpub. memo. at 3).
____________________________________________
3 We will refer to this matter as “the 2014 McGovern decision.”
4 The matter was docketed at No. S-172-2009.
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“In that deed, the Trustees of East End conveyed to themselves 50 more acres
of land than was contained in the prior deed for the same land.” Id.
The matter proceeded to a hearing in 2013, where the McGoverns’
expert, Manhart, testified “that at no time did he specifically identify the 83
acres referenced in the tax claim deed.” See McGovern, 1954 MDA 2013
(unpub. memo. at 4).
Devon Henne, the expert testifying for East End, did not
perform a field survey but, instead, examined the legal description
of the property in order to identify the properties involved and to
try to come up with some kind of definition of the property. It
became apparent to Henne that the instant dispute was more of
a title dispute than a boundary dispute. Henne determined that
the disputed area, which was described in the Manhart survey,
was patented to James Everhart on November 19, 1841. Henne
asserted that the lack of an ability to trace title forward to East
End and the Dolbins creates, from Everhart, a cloud on the title
for both parties in the disputed area.
See McGovern, 1954 MDA 2013 (unpub. memo. at 4).
On September 11, 2013, the trial court5 denied relief, stating:
The [c]ourt is confronted with a claim and procedural history
seeking to [q]uiet [t]itle that appears substantially flawed at the
outset. . . . [W]e cannot find that [the McGoverns] sustained
[their] burden of proof as to the disputed 50 plus acres . . . [and]
we are not further persuaded that . . . East End has staked a
superior claim to the disputed 50 acre parcel warranting a decree
in its favor.
Opinion, 9/11/13, at 18. Moreover, the court concluded “that the prayed for
relief is denied and the status quo remain. Both parties should work toward
____________________________________________
5 Senior Judge John C. Uhler was presiding at the time.
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amicably untangling these complex title and boundary issues in a fashion
designed to facilitate future land transfers.” Id. at 19.
The McGoverns appealed, and a panel of this Court affirmed. See
McGovern, 1954 MDA 2013 (unpub. memo. at 1). The panel recognized that
while tax claim deeds “can be evidence of ownership and title, it does not
necessarily follow that all tax deeds qualify as prima facie evidence of good
title.” Id. at 7. Furthermore, the panel stated:
Here, the tax deed initially received by the Dolbins and then
subsequently passed on to the McGoverns merely contains a
description of the acreage of the property, a description of the
condition of the land, and the township in which the property is
located. The deed does not contain any other type of legal
description that would allow for a survey to accurately define
where the boundaries of the property exactly lie.
Id. Lastly, the panel determined:
The plaintiffs’ burden in an action in ejectment at law is
clear: they must establish the right to immediate exclusive
possession. Recovery can be had only on the strength of their
own title, not the weakness of defendant’s title. The crux of an
ejectment action, therefore, rests with the plaintiffs’ ability to
identify, by a preponderance of the evidence, the boundaries of a
parcel of land to which they are out of possession but for which
they maintain paramount title.
The McGoverns’ surveyor, Manhart, conceded during cross-
examination that he had not specifically identified the 83 acres
referenced in the tax claim deed. In this regard, plaintiff has the
burden of presenting definite and certain evidence of the boundary
of the property in controversy. Where the plaintiff is unable to
establish his boundary line by adequate legal proof, his action
must fail and he is not entitled to relief.
The McGoverns, and to some extent Henne, the expert hired
by East End, have cast doubt on the strength of the title held by
East End. In their brief, the McGoverns relied on the perceived
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relative weakness of, and cloud on, East End’s title to argue that
the court should quiet title in their favor. However, unless and
until the McGoverns have made a prima facie case by showing title
sufficient upon which to base a right of recovery, the burden does
not shift, and East End is not required to offer evidence of its title.
If the McGoverns fail to establish proof of title with the required
clarity, they cannot recover, no matter how defective East End’s
title may be.
For the reasons stated above, we are unable to conclude
that the trial court erred. The trial court properly found that the
McGoverns failed to meet the evidentiary standard that would
allow the burden of proving superior title to shift to East End Gun
Club. Because the McGoverns failed to make a prima facie
showing of good title, the trial court was in no position to weigh
the relative strength of the parties’ claims to the disputed area.
Therefore, the remaining claims of error made by the McGoverns
do not warrant further consideration.
McGovern, 1954 MDA 2013 (unpub. memo. at 8-9) (citations omitted).
Less than two months later, the Dolbins executed the Kowalczyk-
Strang-Dolbin Deed to Appellants. “The legal description was the same one
they used in the prior action, which [this] Court had found wanting.” Trial Ct.
Op., 1/31/22 at 4.
On March 11, 2015, Appellants filed with the Court of Common Pleas of
Schuylkill County a quiet title and ejectment action in which they claimed
superior title to East End over the Property. See East End Gun Club, 1458
MDA 2019 (unpub. memo. at 4). “Several months later, East End received a
Change in Assessment Notice from the Schuylkill County Tax Assessment
Office informing it of a reduction in its assessment given the reduction in the
acreage of East End’s property. East End deduced that Appellant[s’] quiet title
and ejectment action triggered the assessment reduction, prompting East End
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to contest the Board’s decision.” Id. The Board rejected East End’s challenge
and East End filed an assessment appeal to the court of common pleas on
October 7, 2015. See id. at 4-5.
On November 5, 2015, East End also commenced the present action,
seeking to quiet title its 150 acres, that included the Property. Appellants filed
an answer with new matter and counterclaim, alleging East End’s ownership
interest derived solely from the Strause Deed, which conveyed to the Trustees
100 acres “more or less.” East End Gun Club, 1458 MDA 2019 (unpub.
memo. at 5). “East End filed its Reply admitting that the Strause [D]eed is
within the chain of title but denying the implication that it owns less than the
land it has occupied since 1930.” Id. Several days later, the trial court
granted a petition filed by East End to intervene and added East End as a
defendant to Appellants’ quiet title action. See id. The court subsequently
consolidated Appellants’ quiet title action, East End’s quiet title action, and
East End’s assessment appeal. See id.
On December 7, 2015, Appellants filed preliminary objections, arguing:
(1) the 1963 deed, that was attached to East End’s complaint, incorporated
by reference the Strause Deed that conveyed only 100 acres of land “more or
less[;]” and (2) the language “more or less” could not include the additional
50 acres. Kowalczyk, 1303 MDA 2016 (unpub. memo. at 2). The trial court
denied Appellants’ preliminary objections, and they were granted permission
to appeal. A panel of this Court affirmed the trial court’s denial on the basis
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that the Strause Deed was not attached to East End’s complaint, or even
Appellants’ preliminary objections, and therefore constituted a speaking
demurrer. Id. at 4.
Thereafter, Appellants filed a motion for judgment on the pleadings in
May of 2018. In the motion, they argued that “East End could not, by a
conveyance to itself, acquire title to 150 acres of land when the previous deed
conveyed only 100 acres, more or less.” East End Gun Club, 1458 MDA
2019 (unpub. memo. at 5). East End filed its own motion for judgment on
the pleadings, arguing that Appellants’ claims were barred under the doctrines
of collateral estoppel and res judicata. See id. at 6. Appellants did not file a
response. See id. On July 30, 2019, the trial court treated East End’s motion
as uncontested and granted it, while also quieting its title to the Property,
granting its assessment appeal, and dismissing Appellants’ counterclaim and
its separate action to quiet title. See id. Appellants appealed, and a panel of
this Court vacated the trial court’s order on the basis that the court erred by
finding that East End’s motion was uncontested where Appellant had filed its
own, earlier, motion for judgment on the pleadings. Id. at 11-12. Moreover,
the panel determined: (1) East End’s right to succeed on its claim was “not
certain at the time” the court entered its order nor was Appellants’ position
“so lacking as to allow a court to deem East End’s complaint admitted and to
grant East End’s motion without findings as to the facts therein alleged[;]” (2)
the record did “not reflect a judicial determination by the trial court that East
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End established quiet title through its pleadings and exhibits[;]” and (3) the
principle of res judicata did not apply because the prior decision did not make
a determination “on whether East End had superior title to the McGovern[s’]
title, now held by Appellants, but the decision acknowledged that both
Appellants and East End’s own expert, Devon Henne, declared that East End’s
title was clouded.” Id. at 12-13.
Upon remand, the instant matter then proceeded to a non-jury trial,6
which was held on September 13, 2021. “At the outset, [Appellants] stated
they would rest upon the record in the previous action, . . . and not present
any additional evidence.” Trial Ct. Op., 1/31/22, at 4.
East End again presented the testimony of Henne, “who was received
as an expert in title abstract and land surveying work.” Trial Ct. Op., 1/31/22,
at 4.
[Henne] testified he reviewed the chain of title for the disputed
land, including an examination of various warrants, patents and
deeds from as early as 1793, abstracts of title from the State
Game Commission and surveys from as early as 1839, including
a 2007 survey done by the Dolbins’ expert, Walter Manhart. He
acknowledged the property was always contested. He also
conducted a “complete boundary survey” of the property in 2014,
which was after Senior Judge Uhler’s 2013 decision in the prior
action. He rejected [Appellants’] contention that a deed
conveying 100 acres cannot convey 150 acres. He explained
property can be described by reference to monuments, adjoinders
and courses and distances, and where, as here, a description may
be inconsistent, priority is given first to monuments, such as
____________________________________________
6 The matter was transferred to a visiting senior judge, the Honorable Arthur
R. Tilson.
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natural objects, landmarks or artificial monuments on the land,
then to adjoinders, such as adjoining property, and only then to
inconsistent courses and distances or, least reliable, a simple
recitation of acreage. Further, he criticized Manhart’s research
because it relied completely on tax maps prepared ten years after
the tax sale, which he said was not proper surveying protocol. He
said Manhart should have taken the chain of title back to a legal
description that could be plotted or conducted a title search in
order to connect that chain of title to an underlying title. Henne
concluded that to a reasonable degree of professional certainty
the disputed 50-acre parcel belonged to East End.
________________________
2 To the extent the legal description [did] not close, as
[Appellants] contend[ed], Henne attributed it to a
“typographical error” in that a course in distance was
omitted. He said it was, nonetheless, a “perfectly
acceptable surveying practice when a survey is clearly
referenced in a deed to refer to the survey itself in order to
correct the mistake that was made in the deed.”
Id. at 4-5 (record citations omitted).
On November 18, 2021, the trial court entered an order and opinion,
ultimately concluding that East End was entitled to an order quieting title to
the 150 acres, which included the Property. The court first noted that it
adopted East End’s September 22, 2021, findings of act and conclusions of
law. See Opinion and Order of Court, 11/18/21, at 1. It also adopted five
additional conclusions, which are as follows:
1. Even if not barred by res judicata and/or collateral estoppel,
[Appellants’] claim to title is based entirely on the claim of the title
from the tax sale deed of September 14, 1950 which, as noted by
[the 2014 McGovern decision], contains no legal description.
[The trial c]ourt finds the reasoning of [the 2014 McGovern
decision] to be persuasive, namely that a deed that contains no
legal description of the property being conveyed is of no force and
effect.
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2. Th[e trial c]ourt held a trial on September 13, 2021 and
[Appellants] offered no additional evidence in support of their
claim to title. [Appellants] have therefore failed to prove their
claim to title and their request to [q]uiet title set forth in their
[c]ounterclaim is therefore denied.
3. At the trial . . ., [East End] offered extensive evidence of grants
of property over the course of centuries that coincide with the
property claimed to be owned by it, with boundaries as described
in the survey attached . . . to [East End]’s [c]omplaint.
4. [Appellants] offered no contrary evidence, nor did they question
[East End]’s evidence. [The trial c]ourt agrees that [Appellants’]
sole argument as to defeat [East End]’s title is that the statement
in the 1930 Strause deed “100 acres more or less” is inconsistent
with the later survey showing 150 acres.
5. In light of [East End]’s evidence and in light of no showing that
the Strauses did not intend to convey 150 acres in the 1930
Strause deed, [East End] is entitled to an [o]rder quieting title to
the 150 acres in question.
Opinion and Order of Court, 11/18/21, at 1-2.
On March 9, 2022, judgment was entered in favor of East End and
against Appellants in accordance with the trial court’s November 11, 2021,
verdict.7 This timely appeal followed.
Appellants raise the following issues on appeal:
1. Whether the trial court abused its discretion in failing to review
the record from the previous trial of this matter. . ., which was
incorporated into the instant record by agreement of the
parties[?]
____________________________________________
7 Prior to judgment being entered, the matter was reassigned to Senior Judge
Edward D. Reibman by order of December 22, 2021, effective January 3,
2022. See Trial Ct. Op., 1/31/22, at 6 n.3.
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2. Whether the trial court erred in failing to recognize that [East
End] received only 100 acres in its deed from [the Strauses] in
1930[?]
3. Whether the trial court erred in failing to apply the principle of
acquiescence[?]
4. Whether the trial court erred in holding that [Appellants]
offered no evidence to contradict [East End]’s claim, when the trial
record from [the previous matter] contains significant evidence in
favor of [Appellants’] claim and contradictory to [East End]’s
evidence[?]
5. Whether the trial court erred in accepting the testimony of [East
End]’s expert, Devon Henne[?]
6. Whether the trial court erred in shifting the burden of proof to
[Appellants] to prove that [East End]’s grantor did not intend to
convey more than he did[?]
7. Whether the trial court erred in failing to apply the principle of
law that one cannot convey what one does not own[?]
8. Whether the trial court erred in ignoring the fact that the Tax
Claim Bureau of Schuylkill County acted pursuant to the Act of
Assembly in conveying to [Appellants’] predecessors in title 83
acres of which the disputed area was a part[?]
9. Whether the trial court erred in failing to give weight to the fact
that no challenge was ever made to the legitimacy of the Tax
Claim Bureau’s sale[?]
10. Whether the trial court erred in failing to find that [Appellants
are] presumptively the legitimate owner[s] of the said 83 acres of
which the disputed acreage is a part[?]
11. Whether the trial court erred by misconstruing [the 2014
McGovern decision], in holding that deeds not containing a full
metes and bounds description cannot convey title to real estate[?]
12. Whether the trial court erred in failing to recognize that the
description in [East End]’s deed is ineffective to convey [150]
acres of real estate because the description fails to close its
borders[?]
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13. Whether the trial court erred in failing to apply the principle of
law that an owner of real estate cannot disavow or impugn his/her
own deed[?]
Appellants’ Brief at 3-4. Based on the nature of Appellants’ claims, we will
address them as follows: (a) issues one and four will be addressed together;
(b) issues two and seven will be addressed together; (c) issue three; (d) issue
five; (e) issue six; (f) issues eight, nine, ten, eleven will be addressed
together; (g) issue twelve; and (h) issue thirteen.
On appeal from a non-jury trial, this Court's scope and standard of
review are as follows:
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 a 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 the facts of the case.
Bank of New York Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017)
(citation omitted).
(a) Issues One and Four
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In their first issue, Appellants contend that the trial court abused its
discretion by failing to review the record from the previous trial, which was
incorporated into the present record by the agreement of the parties. See
Appellants’ Brief at 18. They point to the following statement in the trial
court’s November 18, 2021, opinion and order: “[Appellants] offered no
contrary evidence, nor did they question [East End’s] evidence.” Opinion and
Order of Court, 11/18/21, at 2. Appellants claim that the August 2013 trial
transcript established that the McGoverns, via their predecessors in title, “paid
the real estate taxes on the premises[,]” and the transcript included “the
report of the title abstractor tracing the title back through a chain separate
and distinct from that of” East End. Appellant’s Brief at 18. Moreover, they
allege that their own expert’s testimony revealed that “he prepared a legal
description of the 67.9 acre parcel which he stated correctly identified the
property in question” and “he concluded that [the McGoverns’ predecessors]
were the owners of the premises including the 50 acre disputed area.” Id. at
19. Appellants maintain: “For the trial court to state that there was no
evidence contrary to, nor any question presented to [East End]’s evidence can
only lead to the conclusion that the trial court failed to examine the
incorporated record.” Id. Lastly, Appellant contend that while it is the
province of the fact-finder to decide the weight and credibility of evidence, the
trial court’s conclusion “makes clear that [it] failed to do so[.]” Id. at 20.
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In their fourth claim, Appellants argue the trial court erred in finding
that they offered no evidence to contradict East End’s claim. See Appellants’
Brief at 33. Appellants reference their first argument and state they provided
“abundant” evidence to support their claim:
testimony regarding the acquisition of title initially by the
[Sellers], then to the McGoverns, the payment of taxes on the
assessed value of 83 acres of vacant land; documentary in the
form of maps, drawings and title report; and expert testimony
from a professional surveyor who walked the property and opined
that title to what was described in the 1950 [Tax Claim Bureau
Deed] as 83 acres (but which, when surveyed on the ground and
aerially resulted in 67.9 acres) is in the [Sellers] and their
successors and includes the 50 acre disputed area.
Id. at 34. They allege “there is no support for finding that [Appellants]
presented no contrary evidence to [East End]’s and did not question [East
End]’s evidence [; rather] the exact opposite is true if the trial court had
reviewed the prior record.” Id. at 34-35.
In dismissing the allegation that it did not consider the prior record, the
trial court stated, “The parties agreed to incorporate the record of the prior
action [at No. S-172-2009] into the present action. There is no evidence the
court failed to consider it.” Trial Ct. Op., 1/31/22, at 6.
We agree with the trial court’s determination as the record is replete
with evidence the trial court was aware of the prior record and took it into
consideration. At the beginning of September 2021 trial, counsel for
Appellants informed the court that he would be relying on the record of the
No. S-172-2009 action. See N.T., 9/13/21, at 5. The 2014 McGovern
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decision was marked as an exhibit during East End’s case-in-chief. See id. at
65. Moreover, the following exchange occurred between the court and the
parties relating to the No. S-172-2009 action:
THE COURT: And we know [Appellants have] rested. And I’m
supposed to review previous testimony; am I correct? Is that one
of the reasons you didn’t present -- produce any other evidence?
[Appellants’ Counsel]: Yes, Your Honor. Our testimony is included
in the record of [No. S-172-2009].
THE COURT: Okay.
[Appellants’ Counsel]: And the exhibits attached thereto.
Id. at 87. Additionally, in its November 18, 2021, opinion and order, the court
specifically references the reasoning of the 2014 McGovern decision as
“persuasive[.]” Opinion and Order of Court, 11/18/21, at 1. As such,
Appellants’ argument is not supported by the record.
Moreover, to the extent that Appellants claim the court erred by
specifically stating that they “offered no contrary evidence, nor did they
question [East End’s] evidence[,]”8 we note their argument is misplaced. It
is clear the court meant they presented no new evidence to challenge East
End’s supplemental evidence. Unlike Appellants, East End did not rest on the
evidence they presented in the No. S-172-2009 action. Their expert, Henne,
referred to new evidence at the trial, including testimony concerning a
____________________________________________
8 Opinion and Order of Court, 11/18/21, at 2.
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“complete boundary survey” of the property that was completed in 2014,9 an
addendum report completed in February 2015,10 and a survey report
completed in August of 2021.11 Appellants’ counsel did not question Henne
about this supplemental evidence; rather, counsel mainly focused on the
“more or less” language of the Strause Deed. See N.T., 9/13/21, at 73-87.
Accordingly, the trial court’s comment, while slightly ambiguous, was directed
at Appellants’ failure to challenge East End’s supplemental evidence — and did
not imply that Appellants failed to question any of the evidence. Accordingly,
Appellants’ first and fourth arguments fail.
(b) Issues Two and Seven
In their second argument, Appellants claim the court erred in failing to
recognize that East End received only 100 acres in the Strause Deed. See
Appellants’ Brief at 20. They state:
The only theory on which [East End] can base an expansion
of a grant of “100 acres, more or less” into 150 acres is reliance
on the phrase “more or less” in the description contained in the
[Strause D]eed, that the reference to “100 acres” is an
approximation, and that the grant in fact consisted of 150 acres.
Id. at 21. Appellants rely on Marino v. Moffa, 68 Pa. Super. 621 (Pa. Super.
1918), Pittsburgh Outdoor Advertising Co. v. Surowski, 64 A.2d 854 (Pa.
____________________________________________
9 See N.T., 9/13/21, at 16, 58-59.
10 See id. at 60-62.
11 See id. at 67.
- 18 -
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Super. 1949), Pencil v. Buchart, 551 A.2d 302 (Pa. Super. 1988), for the
notion that the words “more or less” are words of “safety and precaution
intended to overcome some slight or unimportant accuracy.” Appellants’ Brief
at 22 (citation omitted). Moreover, they point to Dawson v. Coulter, 106 A.
187 (Pa. 1919), for the principle that “more or less has little weight as against
specific boundaries and is in its nature an uncertain method of description and
often a mere estimate.” Pencil, 551 A.2d at 307, quoting Dawson, 106 A.
at 188. Appellants contend:
The holdings in these cases bear directly on the legal sufficiency
of [East End]’s claim in the instant case: the manifest intent of
the grantor controls. [East End]’s grantor intended a grant of 100
acres subject to minor variation, hence the disclaimer “more or
less.” A landowner cannot extend a 280 feet call by an additional
35 feet, a 15% differential, by relying on the phrase “more or less”
as in Pittsburgh Outdoor Advertising; nor can the owner of a
tract described as 31 acres, more or less, acquire title to 40.29
acres, a 29% differential, on the basis of a survey as in Buchart
vs. Pencil. A fortiori [East End] cannot, as a matter of law,
increase its acreage from 100 to 150, a 50% differential, by
relying on the words “more or less” in its description since the
intent of [East End]’s grantor to convey 100 acres was clearly
manifest in the [Strause D]eed.
Appellants’ Brief at 26.
Relatedly, in their seventh issue, Appellants allege the trial court erred
in failing to apply the principle of law that one cannot convey what one does
not own. See Appellants’ Brief at 40. They refer to their second argument
and contend:
[I]t is only commonsense that one may not convey, even to
oneself, what one does not own. Title to real estate can be
acquired in only three ways, by inheritance, by conveyance or by
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adverse possession. There is no claim that East End acquired its
interest by inheritance or by adverse possession, so those issue[s]
can be set aside. East End’s claim must rise or fall on a theory
that it acquired title to 150 acres by conveyance, that is, through
the 1930 [Strause Deed] to the trustees of the East End Gun Club
which conveyed a tract of “100 acres, more or less.”
The issue then presented is whether a survey can convert
100 acres, more or less to 150 acres. A survey never conveys
title. Nor can deeding property to oneself increase one’s holdings
beyond what one acquired by conveyance.
Id. at 40. They claim that East End should be left with what it bargained for
— 100 acres. Id. at 41.
We begin with our well-settled standard of review:
When reviewing an equitable decision, like a quiet-title action,3
our scope and standard of review are deferential. As this Court
has explained:
We will reverse only where the trial court was palpably
erroneous, misapplied the law, or committed a manifest
abuse of discretion. Where there are any apparently
reasonable grounds for the trial court’s decision, we must
affirm it. Moreover, the function of this Court on an appeal
from an adjudication in equity is not to substitute our view
for that of the lower tribunal; [we are] to determine whether
a judicial mind, on due consideration of all the evidence, as
a whole, could reasonably have reached the conclusion of
that tribunal . . . when reviewing the results of a non-jury
trial, we are bound by the trial court’s findings of fact, unless
those findings are not based on competent evidence.
Nebesho v. Brown, 846 A.2d 721, 725-726 (Pa. Super. 2004)
(citations and some punctuation omitted).
_____________________
3 Quiet title is a legislatively created action that the Supreme
Court of Pennsylvania eventually incorporated into the Rules
of Civil Procedure. See Pa.R.C.P. 1061-1067. Although of
statutory origins, a suit to quiet title is actually an equitable
proceeding “descended from two suits in chancery — the bill
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of peace and the bill to remove cloud.” Enhancing the
Marketability of Title: The Suit to Quiet Title, 68 YALE L.J.
1266 (1959).
Calisto v. Rodgers, 271 A.3d 877, 881 (Pa. Super. 2022) (en banc).
We repeat the law concerning quiet title (with which the parties are well
acquainted): “An action to quiet title is designed to resolve a dispute over the
title to real estate of which the plaintiff is in possession. The plaintiff bringing
a quiet title action has the burden of proof and must recover on the strength
of its own title.” Woodhouse Hunting Club, Inc. v. Hoyt, 183 A.3d 453,
457 (Pa. Super. 2018) (citations omitted).
As mentioned above, the crux of Appellants’ appeal is the effect of the
“more or less” language as it relates to the Strause Deed. When interpreting
a deed, this Court previously has explained:
[A] court’s primary object must be to ascertain and effectuate
what the parties themselves intended. The traditional rules of
construction to determine that intention involve the following
principles. First, the nature and quantity of the interest conveyed
must be ascertained from the deed itself and cannot be orally
shown in the absence of fraud, accident or mistake. We seek to
ascertain not what the parties may have intended by the language
but what is the meaning of the words they used. Effect must be
given to all the language of the instrument, and no part shall be
rejected if it can be given a meaning. If a doubt arises concerning
the interpretation of the instrument, it will be resolved against the
party who prepared it. . . . To ascertain the intention of the
parties, the language of a deed should be interpreted in the light
of the subject matter, the apparent object or purpose of the
parties and the conditions existing when it was executed. . . .
In the absence of fraud, accident or mistake, the nature and
quantity of the real estate interest conveyed must be ascertained
from the deed itself and cannot be shown by parol. When the
language of the deed is clear and free from ambiguity, the intent
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of the parties must be determined from the language of the deed.
With respect to unambiguous deeds, a court must ascertain what
is the meaning of the words used, not what may have been
intended by the parties as shown by parol.
Wright v. Misty Mt. Farm, LLC, 125 A.3d 814, 818-19 (Pa. Super. 2015)
(citations omitted).
In rejecting Appellants’ arguments, the trial court found the following:
Henne concluded East End’s chain of title was not limited to
100 acres when that chain included the Strause [D]eed that
conveyed 100 acres “more or less” and a prior will in the chain,
the Bartolet will, referred to 100 acres “and so forth.” Henne
determined the boundaries of East End’s property as determined
by its chain of title and then measured it. It contained 150 acres.
[Appellants] presented no evidence to contradict those
references. See, Phillips v. Crist, 33 Pa. Super. 445, 450 (1907)
(“Description of land by quantity does not amount to a covenant
that the land shall equal the quantity measured in the deed. The
grantee has a right to all the land within the boundaries”).
Trial Ct. Op., 1/31/22, at 8.
A review of the record supports the trial court’s conclusion. At the
September 2021 trial, East End’s expert, Henne, testified that East End’s title
to the 150 acres, including the Property, was derived from the following, inter
alia: (1) an 1875 will bequeath from Abraham Bartolet to his son, Benjamin
Bartolet;12 (2) an 1888 sheriff’s sale and resulting deed that conveyed the
property to Winfield Hendricks;13 (3) an 1889 conveyance from Winfield
____________________________________________
12 N.T., 9/13/21, at 33.
13 Id. at 33-34.
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Hendricks to Fietta Bartolet (the wife of Benjamin);14 (4) an 1924 transfer
from the Estate of Fietta Bartolet to Mary J. Bartolet;15 (5) an 1925 transfer
from Mary J. Bartolet to Charles Strause;16 and (6) an 1930 transfer from
Charles Strause to the Trustees of East End.17 Henne confirmed that his
research strategy was to “circumvent or go around the property that’s in
question and see who owned all the other property and that if they could get
the descriptions of all of those[,] he could figure out what the parameters of
the disputed property are.” N.T., 9/13/21, at 46.
Henne read the description of the Strause Deed into the record, which
is recited in full, as follows:
All that certain tract of farmland together with all of the buildings
located thereon situate in the Township of Wayne, County of
Schuylkill, and State of Pennsylvania and bordering along the road
at the foot of the Blue Mountains in said township. Bounded and
described as follows: On the north and west by land now or late
of Milton Scholl, on the east by land of Augustus N. Brensinger,
and on the south by the land or lands now or late of J. M. Kauffman
and others containing in acreage, 100 acres more or less.
____________________________________________
14 Id. at 35.
15 Id.
16 Id. at 35-36.
17 Id. at 36-37.
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N.T., 9/13/21, at East End Exhibit 2 (Research Report Prepared for East End
Gun Club of Schuylkill Haven, 10/4/10, at 19).18 See also id. at 35-37.
Henne responded in the affirmative that it was his “opinion to a
reasonable degree of professional certainty that the land that is referred to as
the disputed parcel belong[ed] to East End[.]” N.T., 9/13/21, at 72. He noted,
“Although [East End]’s title is not without flaws, [it] has an unbroken chain of
ownership back to the Bartolet’s.” Id. at 82.
On cross-examination, Henne testified to the proper surveying
protocols, indicating that adjoiners or monumentation received the top
priority, then dimensions, bearings and distances, and “finally acreage.” N.T.,
9/13/21, at 73-74. He further stated, “Acreage is the last of the priorities that
a surveyor needs to consider when establishing the boundaries of a piece of
property.” Id. at 74. Additionally, when asked about the “more or less”
language, Henne explained: “[W]hatever the definition would be based on the
monumentation or the adjoiners calls in the description. That acreage is
nothing more than an estimate. Until the property is defined by a survey, you
cannot have an accurate estimation of the acreage that’s in that.” Id. at 85.
He stated that based on that survey, the amount of land “can increase
dramatically” or “decrease dramatically.” Id. Henne also indicated that when
____________________________________________
18 We note that the language of the deed was taken from the 1925 deed from
Mary J. Bartolet to Charles Strause but no one disputes that the Strause deed
uses essentially the same language.
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the Trustees of East End deeded the property to East End, that was the first
time the land was surveyed “since it was devised in Abraham Bartolet’s will”
and “this was simply a matter of surveying what they owned based on the
interpretation of that will and the adjoining calls that were made throughout
the history of the title. This was the first time anyone could come up with an
accurate depiction of how many acres they had.” Id.
Henne also discussed the Kowalczyk-Strang-Dolbin Deed, which was
based on the 1950 Tax Claim Bureau Deed. N.T., 9/13/21, at 38. He testified
that he discovered through his chain of title research that the property
involved in that transaction “might” be “at an entirely different location.” Id.
at 44-45. Henne stated the “configuration end[ed] up looking considerably
different than disputed [parcel,]” otherwise known as the Property. Id. at 45.
Henne then confirmed Appellants’ property was “entirely outside of the
disputed parcel” and did not “encroach at all on any lands owned” by East
End. Id.
Upon review, we conclude that the trial court’s decision is supported by
competent evidence in the record. See Calisto, 271 A.3d at 881. At trial,
East End offered evidence of the Strause Deed, as well as its 1963 deed,
indicating that its 150 acres included the Property. It also offered the expert
testimony of Henne, whom the trial court found credible, who opined that the
language of the Strause Deed required him to first examine the wording
regarding monumentation, as well as the bearing and distances, and that this
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language was sufficiently specific so that it could determine the location of the
disputed area. See Hoover v. Jackson, 524 A.2d 1367, 1371-72 (Pa. Super.
1987) (“Evidence of the acreage of land, especially where, as in this case, the
number of acres is followed by the words ‘more or less’ has little weight as
against specific boundaries and is in its nature an uncertain method of
description and often a mere estimate. Where, however, . . . a doubt exists
as to the actual location of the boundary and the writing contains no words to
definitely fix the line by either metes and bounds or monuments on the
ground, evidence of acreage becomes a material factor in the determination
of the intention of the parties . . . .”) (citation omitted). As such, evidence of
the acreage was not a material factor.19
Furthermore, as pointed out by the trial court, Appellants failed to
present any evidence rebutting these presentations, and only focused on the
“more or less” language. Therefore, we concluded the trial court did not err
when it relied upon the deed description in preference to the amount of
acreage, including the language “more or less,” recited in the Strause Deed.
Accordingly, Appellants’ second and seventh arguments fail.
(c) Issue Three
____________________________________________
19 Accordingly, Appellants’ reliance on Marino and those other cases is
misplaced because acreage did not become a material factor.
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In their third argument, Appellants complain that the trial court erred in
failing to apply the principle of acquiescence. See Appellants’ Brief at 28.
They assert that from the time East End acquired the 100 acres via the Strause
Deed and then the 1963 Deed, “it took no action to correct any supposed
defect in its description. It allowed [the Property] to remain part of or be
absorbed into another party’s holdings[,]” which were ultimately sold to the
Palmers via the 1950 Tax Claim Bureau Deed. Id. at 30. Moreover, they
state that it was not until 2009 when East End initiated “the first formal legal
action by which [it] gave notice that it was disavowing its acquiescence in
holding 100 acres.” Id. at 31. Appellants suggest: “Courts should not be in
the business of redrawing boundary lines of real estate and adding or
subtracting acreage where time and the parties have demonstrated their
settled agreement as to those dimensions.” Id. They state that pursuant to
Adams Twp. v. Richland Twp., 154 A.3d 250 (Pa. 2017), “where a factfinder
cannot ascertain the boundary line after hearing and review of extensive
evidence, resort to the doctrine of acquiescence may resolve the dispute and
bring an end to the uncertainty.” Appellants’ Brief at 31-32 (citation omitted).
They claim the testimony “establishes that clear boundary lines cannot be
ascertained” and that we “should apply the doctrine and hold that [East End]
owns 100 acres and [Appellants] own[ ] 67.9 acres according to the
boundaries the parties and their predecessors have observed and in which
they have acquiesced for decades.” Id. at 32.
- 27 -
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The establishment of a boundary line by acquiescence for
the statutory period of [21] years has long been recognized in
Pennsylvania.
Two elements are prerequisites: 1) each party must have claimed
and occupied the land on his side of the line as his own; and 2)
such occupation must have continued for the statutory period of
[21] years. As recognized by the Superior Court and the common
pleas court, the doctrine functions as a rule of repose to quiet title
and discourage vexatious litigation.
Zeglin v. Gahagen, 812 A.2d 558, 561 (Pa. 2002) (footnote & citations
omitted; paragraph break added).
Notably, a review of the record reveals that Appellants never raised this
claim in their answer and new matter, nor did they raise it at the September
2021 trial. See Answer of Appellants, 3/26/18 at 5-6 (unpaginated).
Moreover, in their brief, Appellants fail to point to whether they reserved this
claim with the trial court. See Appellants’ Brief at 28-33. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”); see also Pa.R.C.P. 1032(a) (a party generally
waives all defenses and objections which are not presented either by
preliminary objection, answer or reply).
Nevertheless, as East End points out, “the doctrine of acquiescence is
employed where a fact finder cannot determine the location of a boundary”
line. See East End’s Brief at 33. The underlying dispute here does not concern
the location of a boundary; rather, it involves competing quiet title claims to
the Property. It merits mention that when East End’s counsel questioned
Henne as to why his 2010 report, which was completed for the No. S-172-
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2009 action, did not focus on title issues or include a survey, Henne described
the difference between quiet title and boundary disputes, stating:
There’s a fine line between a title dispute and a boundary dispute.
A boundary dispute involves a clear situation where two parties
are actually arguing over a line.
And in this case, the research indicated that we had two parties
arguing over an entire piece of property. And in my mind, the
research indicated that this was more of a title dispute than a
boundary dispute. We weren’t arguing over measurements. We
were arguing over ownership.
N.T., 9/13/21, at 20. As such, even if Appellants had properly preserved the
claim, it would not have been applicable because the matter did not implicate
quiet title for boundary lines, which is necessary for a doctrine of acquiescence
defense argument, but quiet title for acreage of land.20 Accordingly,
Appellants’ third claim is unavailing.
(d) Issue Five
In their fifth claim, Appellants contend the trial court erred in accepting
Henne’s expert testimony. See Appellants’ Brief at 35. They argue:
Over objection the [trial c]ourt allowed [East End]’s expert,
Henne, to testify as to his “opinion” as to what land was to be
conveyed in the [Strause] deed [to the Trustees of East End]. It
is submitted that this testimony should not have been admitted
and must not be relied upon in determining the intentions of a
____________________________________________
20 Moreover, as the trial court found: “The record indicates East End utilized
the [Property] for hunting and also paid taxes on the property, thereby
indicating it did not acquiesce in limiting its holding to 100 acres, and it rose
to defend its claim when challenged by [Appellants].” Trial Ct. Op., 1/31/22,
at 8.
- 29 -
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grantor in conveying land. Opinion testimony has long been held
to be unreliable. . . .
Expert testimony has value only when facts upon which it
relies have been proven. The intent of [East End]’s grantor has
not been proven, and indeed cannot be proven, as it was
expressed in a deed created by the grantor more than 91 years
ago. [East End]’s expert opinion is spun out of thin air in order to
hypothesize what the parties should have done, or could have
done 91 years ago, if they had had the benefit of the expert’s
advice.
It is submitted that the only objective evidence of [East
End]’s grantor’s intent is the [Strause D]eed itself. The expert
opined that [East End]’s grantor really meant to convey what the
expert would have done. This is rank speculation and is
impossible to contradict except by saying that it is absurd and
ridiculous. Obviously, Henne was not present when the Strause
[D]eed was executed in 1930 so he can have no personal
knowledge of the grantor, Strause’s, intent yet he opines that
Strause’s intent was to grant 150 acres when his deed provides
only 100 acres; nor is his opinion uncontradicted as it is
contradicted by the deed itself; nor are there such assumed facts
in the record to proffer such an opinion.
Id. at 36-37. They maintain Henne’s testimony amounted to
“hypothecations” and the court erred by allowing “such speculation and
whimsical testimony.” Id. at 37-38.
“Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court[.]” Parr v. Ford Motor Co., 109 A.3d 682, 690
(Pa. Super. 2014) (en banc) (citation omitted). “[E]xpert testimony must be
based on more than mere personal belief, and must be supported by reference
to facts, testimony or empirical data.” Snizavich v. Rohm & Haas Co., 83
A.3d 191, 195 (Pa. Super. 2013) (citations & quotation marks omitted). The
- 30 -
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standard for admissibility of expert testimony is governed by Pennsylvania
Rule of Evidence 702, which provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702(a)-(c).
Notably, Appellants’ argument does not attack the three requirements
set forth in Rule 702. Moreover, East End emphasizes that Appellants
requested the testimony and evidence from the No. S-172-2009 action be
incorporated and admitted at the September 2021 trial and in the prior action,
Henne was already qualified as an expert witness. See East End’s Brief at 35.
As East End points out: “Appellants cannot complain that . . . Henne lacks the
qualifications to testify as an expert, yet in the same breath introduce
testimony and evidence admitted in the [No. S-172-2009 action] wherein . .
. Henne was qualified as an expert.” Id.Additionally, as mentioned above, Appellants submit that the only
objective evidence of East End’s intent is the Strause Deed. Contrary to their
assertion, Henne did rely on objective evidence — the language of the Strause
- 31 -
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Deed at the time the land was conveyed to East End’s predecessor. Moreover,
he also relied on “previous description[s] where they were recited [to] connect
them [in order] to understand what the intent was to be conveyed here.” N.T.,
9/13/21, at 35. As analyzed infra, Henne provided specialized knowledge as
to how the deed should be interpreted. Thus, Henne’s testimony parallels
Appellant’s stance regarding the Strause Deed. Accordingly, Appellant’s fifth
argument has no merit.
(e) Issue Six
In their sixth claim, Appellants argue the trial court erred in shifting the
burden of proof to them to demonstrate that East End’s grantor did not intend
to convey more than he did. See Appellants’ Brief at 38. Specifically, they
aver:
By placing on [Appellants] the burden of presenting
evidence that Strause did not intend to transfer 150 acres of land
to [East End], the trial court misapplied the law requiring a plaintiff
to bear the burden of proving superior title to a preponderance of
evidence, and instead placed on [Appellants] the impossible
burden of proving a negative: that the grantor in a deed created
more than 90 years before the trial did not intend to convey the
disputed area.
Id. at 39.
Initially, we point out that Appellants filed a quiet title action regarding
the Property in March of 2015, which was consolidated with East End’s quiet
title action that was filed in November of 2015. Appellants ignore the fact that
they technically share the same burden of proof with East End.
- 32 -
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Moreover, we recognize that the plaintiff bears the initial burden of proof
for a prima facie case involving a quiet title action. See Woodhouse Hunting
Club, Inc., 183 A.3d at 457. “Until and unless the plaintiff has made a prima
facie case by showing title sufficient upon which to base a right of recovery,
the defendant is not required to offer evidence of his title.” Hallman v.
Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984). In other words, once the
plaintiff demonstrates a prima facie claim of title, the burden of proof then
shifts to the defendant to present evidence to establish his own title.
Here, the trial court found East End presented “extensive evidence of
grants of property over the course of centuries that coincide with the property
claim to be owned by it[.]” Opinion and Order of Court, 11/18/21, at 1.
Consequently, the burden shifted to Appellants to present evidence to
establish their own title. See Hallman, 482 A.2d at 1287. As the court
correctly determined, Appellants did not offer any “additional evidence in
support of their claim to title[,]” and therefore, they “failed to prove their claim
to title[.]” Opinion and Order of Court, 11/18/21, at 1. The record supports
the trial court’s conclusion and Appellants’ sixth claim warrants no relief.
(f) Issues Eight, Nine, Ten, and Eleven
In their eighth argument, Appellants assert the court erred in “failing to
acknowledge the 1950 Tax Claim Bureau [D]eed as prima facie evidence of
title to the premises including the disputed area.” Appellant’s Brief at 41.
They maintain that “[i]t is beyond dispute that the tax sale deed is conclusive
- 33 -
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proof of ownership and title.” Id. at 42 (citation omitted). Additionally, they
state:
The Tax Claim Bureau . . . acted within its authority and issued a
valid deed to [Appellants’] predecessors in 1950 without objection
from [East End] or any other adjoining owner. The description
was sufficiently specific for the Tax Assessment Office to assess
the land and to plot the land on the assessment map. Indeed,
none of the deeds in [East End]’s chain of title prior to the straw
conveyance to itself contain a metes and bounds description,
either.
Id. (record citation omitted).
In their nineth argument, Appellants suggest that the court erred in
failing to give weight to the fact that no challenge was ever made to the
legitimacy of the Tax Claim Bureau’s sale. See Appellants’ Brief at 43. To
support their claim, they simply state:
As argued above, since no challenge to the Tax Claim Bureau
[D]eed issued in 1950 to [Appellants’] predecessors in title was
ever challenged by [East End] or by any other property owner,
that deed must be conclusively presumed to be definitive of the
83 acre tract therein conveyed. The time for objection to the Tax
Claim Bureau’s deed has long since passed and no objection
should now be entertained.
Id. at 43.
In Appellants’ tenth claim, they allege the trial court erred in failing to
find that they were presumptively the legitimate owners of 83 acres of land,
which included the Property. See Appellants’ Brief at 43. They claim:
The trial court's failure to recognize that the Tax Claim
Bureau acted with full statutory authority granted to it by the Real
Estate Tax Sale Law, and that the time for objection to the
issuance of the 1950 has long since expired, led the trial court to
conclude erroneously that there was no presumptive ownership of
- 34 -
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the disputed area in [Appellants’ deed]. This is contrary to law.
The Tax Claim Bureau deed is conclusive proof of ownership and
title and is prima facie evidence of title[.]
Id. at 43-44.
In their eleventh argument, they contend the trial court erred by finding
that the 1950 Tax Claim Bureau Deed was not conclusive evidence of title,
which they claim “is based on a misinterpretation of the [the 2014 McGovern
decision], in holding that deeds not containing a full metes and bounds
description cannot convey title to real estate.” Appellants’ Brief at 44
(footnote omitted). They allege that the “deed description . . . was sufficiently
specific to allow the county assessment office to assess the property for taxes
and to configure its location on the county tax map” and “to allow a
professional engineer to plot out the precise boundaries of the parcel.” Id.
(record citation omitted). Further, they state the 1950 Tax Claim Bureau Deed
“should therefore have been found to conclusively . . . establish ownership of
the premises including the disputed area[.]” Id. at 44-45.
In rejecting these claims, the trial court determined:
[Appellants] contend the trial court erred in failing to find
the Tax Claim Bureau acted pursuant to law in conveying 83 acres
of land that included the [Property] and that no challenge was
ever made to the legitimacy of the Tax Claim Bureau’s power to
convey real estate. Those issues were not before the court; there
was no challenge to the authority of the Tax Claim Bureau to
convey real estate or its actions in having conducted the upset
sale and issued a deed to the Dolbins. The issue was whether the
Tax Claim Bureau’s description of the property was sufficient to
identify it. In the prior action, the court found the tax deed merely
contained a description of the acreage of the property, the
condition of the land and that it was located in Wayne Township.
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It did not contain any other type of legal description that would
allow for a survey to accurately define its boundaries. See, e.g.,
[Bannard] v. New York State Natural Gas Corp., 293 A.2d 41(Pa. 1972) (tax sale of land invalid where description of land is
not sufficient to identify property taxed and sold).
There was no need for the court to find [Appellants] were
presumptively the owners of the 83 acres. Even if it had, the court
concluded title to the disputed 50 acres was in East End based
upon Henne’s boundary survey and examination of East End’s
unbroken chain of title.
Trial Ct. Op., 1/31/22, at 7-8.
We agree with the trial court’s well-reasoned analysis while providing
the following additional comments. First, there is no evidence the trial court
incorrectly ignored the 1950 Tax Claim Bureau Deed or questioned its validity.
Second, we note that the law of the case doctrine states that a court
involved in the later phases of a litigated matter should not reopen questions
“decided by another judge of that same court or by a higher court in the earlier
phases of the matter.” Morgan v. Petrol Products Equip. Co., 92 A.3d 823,
827 (Pa. Super. 2014) (citation omitted).
Here, in support of their assertion that they provided substantial
evidence to support their quiet title claim, Appellants essentially ask us to
revisit the same evidence that was before this Court in the 2014 McGovern
decision — the 1950 Tax Claim Bureau Deed and their predecessors’ expert’s
(Manhart) testimony. However, it merits mention that in that prior decision,
the panel considered this evidence and rejected these assertions, concluding:
(1) the 1950 Tax Claim Bureau Deed did not satisfy the McGoverns’
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evidentiary burden because while “tax deeds can be evidence of ownership
and title, it does not necessarily follow that all tax deeds qualify as prima facie
evidence of good title[;]”21 (2) the 1950 Tax Claim Bureau Deed did not
include a sufficient description because it “merely contain[ed] a description of
the acreage of the property, a description of the condition of the land, and the
township in which the property is located [but did] not contain any other type
of legal description that would allow for a survey to accurately define where
the boundaries of the property exactly lie[;]” 22 (3) Manhart “conceded” that
he “had not specifically identified the 83 acres referenced in the tax claim
deed.”23 We decline to reopen the issue of whether the 1950 Tax Claim Bureau
Deed provided sufficient proof for Appellants to quiet title to the Property.24
Accordingly, these four arguments fail, and we need not address them further.
____________________________________________
21 McGovern, 1954 MDA 2013 (unpub. memo. at 6-7).
22 Id. at 7.
23 Id. at 8.
24 One could also conclude that these claims are precluded based on collateral
estoppel.
[O]nce a court has decided an issue of fact of law necessary to its
judgment, that decision may preclude relitigation of the issue in a
suit on a different cause of action involving a party to the first
case. This doctrine is known as issue preclusion, or more
traditionally, as collateral estoppel.
* * *
(Footnote Continued Next Page)
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(g) Issue Twelve
In their twelfth claim, Appellants assert the trial court erred in failing to
recognize that East End’s deed description was “ineffective to convey” 150
acres of land because “the description fail[ed] to close its borders.”
Appellants’ Brief at 45. Specifically, they state: “An examination of the deed
from [East End] to itself in 1963 revealed that the description did not close
and was out 402 feet north and south and 168 feet east and west.” Id. (record
citation omitted). Relying on Petition of Twp. Of N. Versailles, 190 A. 350(Pa. Super. 1937), they conclude that because East End’s deed description
does not close, “it cannot prevail against the [the Kowalczyk-Strang-Dolbin
Deed]” that Appellants recorded in 2014, which they claim “contains a legally
____________________________________________
In Pennsylvania, issue preclusion is appropriately invoked when
four conditions are met: First, the issue determined in the prior
action is identical to that presented in the subsequent action;
second, the previous judgment is final on the merits; third, the
party against whom the defense is invoked was a party or in
privity with a party in the first action; and fourth, the party against
whom estoppel is asserted had a full and fair opportunity to litigate
the issue on its merits in the prior action
Rue v. K-Mart Corp., 691 A.2d 498, 500 (Pa. Super. 1997) (en banc)
(citation & quotation marks omitted). Here, the sufficiency issue determined
in the prior action is identical to the one presented in the present action.
Second, the prior judgment was final on the merits. Third, Appellants were in
privity to the McGoverns as subsequent landowners. Fourth, the McGoverns
had a full and fair opportunity to litigate the issue on its merits in the prior
action.
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sufficient description created by a professional engineer.” Id. at 46 (record
citation omitted).
In addressing this claim, the trial court found the following:
[T]o the extent the legal description does not close, as
[Appellants] contend, Henne attributed it to a “typographical
error” in that a course in distance was omitted. He said it was,
nonetheless, a “perfectly acceptable surveying practice when a
survey is clearly referenced in a deed to refer to the survey itself
in order to correct the mistake that was made in the deed.”
Trial Ct. Op., 1/31/22, at 8 (record citation omitted).
We agree with the trial court’s determination. Moreover, it merits
mention that Appellants’ reliance on Petition of Twp. Of N. Versailles is
misplaced. In that case, the township petitioned to ascertain the location of
a disputed boundary line with a neighboring borough. In their brief, Appellants
cite the following passage from the case:
Regarding the Miller-Martin description, the lower court calls
attention to the fact that it will not close by more than 33 feet. As
stated in the first opinion: “Because of its inaccuracies, the Miller-
Martin description cannot prevail as against the McKinney survey
and description, which accurately close. . .”
Petition of Twp. Of N. Versailles, 190 A. at 354; see also Appellants’ Brief
at 45. However, Appellants omitted the remainder of the court’s
determination:
[T]he Miller-Martin description cannot prevail as against the
McKinney survey and description, which accurately close, rest with
exactitude upon fixed objects and are reasonably corroborated by
the plans of railroad and steel companies, and by the description
in deed from Matlack to Carnegie Steel Co., in 1892.
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Id. As East End points out, this Court “did not rule that unclosed boundaries
are per se void[.]” East End’s Brief at 45. Appellants have failed to present
other case law that would persuade us otherwise.
Moreover, the survey at issue is the 1961 survey completed by Eliot
Ziegler for East End Gun Club prior to the 1963 Deed. See N.T., 9/13/21, at
47. Appellants fail to explain how the survey affects Henne’s research and
conclusion that the Property “belong[ed] to East End[.]” N.T., 9/13/21, at 72.
Accordingly, their penultimate issue fails.
(h) Issue Thirteen
In their final claim, Appellants argue the trial court “erred in failing to
apply the precept of law that an owner of real estate cannot disavow or impugn
his/her own deed.” Appellants’ Brief at 46 (emphasis omitted). They allege:
A deed is the definitive document by which the quality of
title and quantity of real estate held by a property owner is
determined. To allow a property owner to vary by fiat the quality
of title or the quantity of area conveyed in one’s deed impugns
the sanctity of the document and destroys the certainty required
in conveyancing.
Id. Moreover, they state East End attempted to “convey to itself greater
acreage, therefore greater rights, than it acquired in [the Strause Deed]” and
such “an attempt to disavow its own deed” is not permitted. Id. at 47.
As discussed above, East End established that it owned the Property
pursuant to the Strause Deed and subsequent 1963 Deed. Moreover, while
the deeds may have referenced “100 acres more or less,” East End presented
substantial evidence that that language in the deeds actually equated to 150
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acres, when the land was properly surveyed. Contrary to Appellants’
suggestion, there is no evidence to support their assertion that East End is
attempting to convey to itself greater acreage than it acquired via the Strause
Deed. Accordingly, their final argument has no merit.
Judgment affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge McLaughlin did not participate in the consideration or decision of
this matter.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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