In Re: G.J.K. & Sons, LLC Appeal of: G.J.K. & Sons

J-A24004-17
2017 Pa Super 377
IN RE: G.J.K. & SONS, LLC AND SOUTH IN THE SUPERIOR COURT
OAKVIEW HOMEOWNERS ASSOCIATION OF
(BOOK 468, PAGE 2088) PENNSYLVANIA
APPEAL OF: G.J.K. & SONS, LLC
No. 1731 WDA 2016
Appeal from the Order Entered October 6, 2016
In the Court of Common Pleas of Greene County
Civil Division at No(s): 491 AD 2014
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED December 1, 2017
G.J.K. & Sons, LLC (“GJK”) appeals from the October 6, 2016 order of
the Greene County Court of Common Pleas granting Willard Hetrick’s “Motion
to Remove Deed from Record.” While we understand the trial court’s interest
in removing a purportedly fraudulent deed from the records of the Greene
County Recorder of Deeds, we conclude that the court lacked jurisdiction to
take such action. Accordingly, we are constrained to vacate the trial court’s
order and remand for the dismissal of the proceedings.
The trial court set forth the factual and procedural history of this matter
as follows:
[GJK is] a developer of ten to fifteen residential building
lots known as “South Oakview” in Franklin Township,
Greene County. On each lot has been built a home. No
formal lot “Plan” was approved by either the Franklin
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Township or the Greene County Planning Commissions.
[GJK] sold lots one at a time until their final tract was the
one serving the access road, and at issue. Because this road
does not meet the required engineering standards, Franklin
Township never “accepted” this “Final Tract” and it has not
been dedicated as a public road. It is paved and suffering
from creeping neglect. . . .
Willard Hetrick, a resident of a house built on a South
Oakview lot . . . had a General Warranty Deed prepared,
and on May 12, 2014, recorded it in the Greene County
Office of Recorder of Deeds. On its face, the Deed appears
to transfer ownership of this “Final Tract” roadway from
[GJK] to the “South Oakview Homeowner’s Association
[“Association”)].” However, the [Association] is a compete
fiction. It does not exist.
On June 30, 2014, on behalf of lot owner Willard Hetrick,
an attorney presented a “Motion to Strike Recorded Deed”
to then President Judge William R. Nalitz, who soon retired
without taking any formal action.[1] Later, as a new
President Judge, this Court received a “Letter of Inquiry”
from a second lot owner, Lenora Swiger, regarding the
status of the “Hetrick Petition” of which until then, we were
unaware. We directed the Swiger “Letter of Inquiry” be
docketed to the miscellaneous records of the Prothonotary
as a pro se “Motion” to consider Willard Hetrick’s “Petition[”]
seeking to have the Deed administratively removed from
the docket . . . .
No one disputes that [the Association] does not exist, but
that may not have been obvious to the clerks of the Office
of Recorder of Deeds.
On June 23, 2016, [GJK] submitted a Brief to this Court
arguing that because no action had been initiated by a
Complaint, or Writ of Summons, this Court’s consideration
of the matter was in violation of [the] Pennsylvania Rules of
Civil Procedure, and should be dismissed. . . .
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Hetrick’s motion was actually titled, “Motion to Remove Deed from
1
Record,” which was marked “refused” by Judge Nalitz. See Trial Ct. Dkt. at
1.
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On June 28[], 2016, this Court held an informal hearing
. . . on the record for the purpose of bringing together all
those who may have an interest in the “Swiger Letter,” and
the “Het[]rick Petition.” Given notice were the South
Oakview lot owners, Franklin Township officials, and Greene
County Officials, and [GJK]. This Court heard statements
from several who attended, including Counsel, and we
decided to continue the matter so as to provide all parties
ample time to attempt to mediate a resolution of the
circumstance.
On October 3, 2016, this Court held a Status Conference
with Counsel for [GJK], Franklin Township, and the County
of Greene. Recognizing that no progress had been made,
[GJK] renewed its Motion to Dismiss, which we granted.
On October 6, 2016, by Order, we also directed the
Recorder of Deeds to “strike” the Deed in question from the
recorded instruments docket, recognizing that the Deed
should never have been allowed to be recorded, in that it
failed to meet statutory requirements.
Opinion Pursuant to 1925, 1/12/17, at 2-3 (unpaginated) (“1925(a) Op.”).
In his Pennsylvania Rule of Appellate Procedure 1925(a) opinion,
President Judge Farley Toothman stated that he granted GJK’s motion to
dismiss because “a civil action must be commenced by the filing of a Praecipe
for a Writ of Summons, or a Complaint, and because neither was filed,” the
trial court “erred in allowing the dispute to proceed.” Id. at 4. Judge
Toothman nevertheless determined that, as the president judge, he was
authorized to strike the defective deed due to his “obligation, and privilege, to
promote confidence in recorded records.” Id. at 6. On November 7, 2016,
GJK timely appealed to this Court.
GJK raises the following issues on appeal:
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1. Whether an action can be commenced in Pennsylvania by
filing a “Motion to Remove Deed” as opposed to filing a
praecipe for a writ of summons, a complaint, or an
agreement for an amicable action?
2. Whether findings of fact and/or conclusions of law in
proceedings in an action commenced by means other
than the filing of a praecipe for a writ of summons, a
complaint, or an agreement for an amicable action are
legally valid?
3. Whether the Honorable Farley Toothman, President
Judge of Greene County, exceeded his authority in
striking the Deed in order to “maintain the integrity of
the docket of the Recorder of Deeds” of Greene County
in the absence of a properly commenced action?
4. Whether the trial court reached factual findings and legal
conclusions in its “Opinion Pursuant to [Rule] 1925” that
deprived [GJK] of its right to due process?
GJK’s Br. at 5-6 (trial court answers omitted).
GJK first asserts that because this action was not properly commenced
under the Pennsylvania Rules of Civil Procedure, the trial court lacked
jurisdiction to take any action in the matter. We agree.
Pennsylvania Rule of Civil Procedure 1007 provides that “[a]n action
may be commenced by filing with the prothonotary (1) a praecipe for a writ
of summons, or (2) a complaint.” Pa.R.C.P. 1007; see also Pa.R.C.P. 1063
(stating that action to quiet title shall be commenced by filing of complaint
with prothonotary);2 Pa.R.C.P. 1061(b)(2), (3) (providing that quiet title
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Rule 1063 was amended on June 27, 2017, and became effective on
2
October 1, 2017. The new rule permits a quiet title action to be commenced
only by complaint and no longer allows such an action to be commenced by
agreement for an amicable action. See Pa.R.C.P. 1063 Explanatory Cmt.
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action may be brought to determine validity of “deed affecting any right, lien,
title or interest in land” or to “compel an adverse party to . . . cancel . . . any
deed”).
Here, Hetrick commenced this action by filing with the trial court a
“Motion to Remove Deed from Record.”3 As our Supreme Court has
recognized, however, “[n]owhere do the rules [of civil procedure] provide for
commencing an action by a petition.” Hartmann v. Peterson, 265 A.2d 127,
128 (Pa. 1970). “With no complaint, summons or amicable agreement to
bring [an] action within the power to act of the court below, [the court] has
no power to make any order whatsoever, including an order allowing the filing
of a complaint nunc pro tunc.” Id.; see also In re Casale, 517 A.2d 1260,
1263 (Pa. 1986) (“[A]n action brought by petition and rule, neither authorized
by statute nor auxiliary to jurisdiction already obtained and not designed to
correct the court’s own records, is a nullity and confers no jurisdiction on the
court.”) (footnote omitted); Wm. Garlick & Sons, Inc. v. Lambert, 287
A.2d 143, 144 (Pa. 1972) (stating that “a petition is only permitted where it
is ancillary to an already pending action”). Here, the trial court dismissed the
action as not properly commenced, but then ordered that the deed be stricken
despite the absence of a properly commenced action. Because the trial court
lacked jurisdiction, we conclude that its order was a nullity. Accord In re
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Notably, Hetrick filed this motion not with the prothonotary, but with
3
then-President Judge Nalitz, who correctly refused the motion as procedurally
improper. The prothonotary docketed both the motion and the refusal order
on June 30, 2014.
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Corr. of Official Records with Civ. Action, 404 A.2d 741, 742-43
(Pa.Cmwlth. 1979) (en banc) (reversing trial court order directing recorder of
deeds to remove oil and gas leases from public records, where trial court
lacked jurisdiction because suit was improperly commenced by petition and
rule).
In his Rule 1925(a) opinion, Judge Toothman contended that despite
the lack of a properly commenced civil action, he was authorized to strike the
deed from the record under section 325(e) of the Judicial Code, 42 Pa.C.S.
§ 325(e). We disagree.
Section 325(e) provides:
(e) Powers of the president judge.—Except as
otherwise provided or prescribed by this title, by general
rule or by order of the governing authority, the president
judge of a court shall:
(1) Be the executive and administrative head of the
court, supervise the judicial business of the court,
promulgate all administrative rules and regulations, make
all judicial assignments, and assign and reassign among the
personnel of the court available chambers and all physical
facilities.
(2) Exercise the powers of the court under section
2301(a)(2) (relating to appointment of personnel).
42 Pa.C.S. § 325(e). The plain language of section 325(e) authorizes the
president judge to regulate and oversee the business and operation of the
common pleas court and court personnel. It does not mention non-judicial
county offices such as the recorder of deeds. See 1 Pa.C.S. § 1921(b) (“When
the words of a statute are clear and free from all ambiguity, the letter of it is
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not to be disregarded under the pretext of pursuing its spirit.”). Contrary to
Judge Toothman’s conclusion, nothing in the language of section 325(e)
authorizes the president judge to ensure the accuracy of instruments recorded
with the recorder of deeds absent a properly commenced legal action.
We recognize a trial court has the inherent power to correct mistakes in
its own records. See Davis v. Cmwlth. Trust Co., 7 A.2d 3, 5 (Pa. 1939).
However, documents recorded with the recorder of deeds are distinct from
judicial records filed with the prothonotary. See Delco Ice Mfg. Co. v. Frick
Co., 178 A. 135, 137 (Pa. 1935) (“Judicial records have been defined as those
associated with the progress of litigated cases. . . . [W]e have distinguished
between a judicial record and a record made pursuant to a statute in the office
of the recorder of deeds for the purpose of giving constructive notice.”); Corr.
of Official Records, 404 A.2d at 743 (recognizing that although trial court
has inherent ability to correct its own records, that power does not extend to
instruments recorded with recorder of deeds). Accordingly, we conclude that
the trial court lacked authority to strike the purportedly defective deed from
the record.4
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4 The Greene County Planning Commission (“Commission”), a
participant in both the proceedings below and this appeal, raised in its brief
some of the concerns that undoubtedly led President Judge Toothman to take
the action he did:
[I]t is now a foregone conclusion that the Deed in question
is fraudulent, and the conveyance of this land which makes
up the development’s road system should not be reinstated
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Order vacated. Case remanded for dismissal of the proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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and further mislead any party who may rely on it. Moreover,
once a Deed is filed, the public is entitled to rely upon the
accuracy of that Deed. Here, where the parties knowingly
and willfully prepared and filed a fraudulent Deed, the
purpose of the recording statutes is defeated. Not only that,
the public’s confidence in the accuracy of the Recorder of
Deed’s office is undermined.
. . . The Trial Court’s decision to strike the fraudulent
Deed from [the] record . . . protects any subsequent
purchasers of this land who, if the Deed is restored to the
Recorder of Deeds, will in essence attempt to purchase land
from an entity that does not exist. Additionally, and more
to the point, a litigant will find it difficult if not impossible to
impose liability on a fictional association for the
undeveloped road within this development.
Commission’s Br. at 11.
We make no determination concerning the accuracy of these
representations, largely because the proceedings that might support the
factual claims were a nullity. Nevertheless, we note that GJK does not contend
that an interested homeowner, or indeed a county or municipal entity, could
not file a proper action giving the trial court jurisdiction to adjudicate the
legitimacy of the deed. Nor do we express any view as to whether the Greene
County Recorder of Deeds could take appropriate corrective action in the
absence of litigation.
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