McGovern, J. & S. v. East End Gun Club ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES P. MCGOVERN AND SHANA L. IN THE SUPERIOR COURT OF
MCGOVERN PENNSYLVANIA
Appellants
v.
EAST END GUN CLUB OF SCHUYLKILL
COUNTY, PA; DEAN BICKEL; ALVIN
HEIM, A/K/A ALVIN A. HEIM, HIS HEIRS,
SUCCESSORS AND ASSIGNS; AND
BENJAMIN S. DEWALD; HIS HEIRS,
SUCCESSORS AND ASSIGNS
Appellees No. 1954 MDA 2013
Appeal from the Order Entered October 4, 2013
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-172-2009
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 25, 2014
entered in the Court of Common Pleas of Schuylkill County denying their
petition to quiet title. Upon review, we affirm.
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
reflects the property was owned by Alvin Heim and sold for $90.00. See
1950 Tax Claim Bureau Deed, Exhibit 9; R.R. at 240a. Dolbin placed the
title to the property in the names of Anne Palmer Dolbin and Jane Palmer
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and unimproved.
Dolbin paid real estate taxes on the property until his death in 2000.
co-executors, paid the real estate taxes until 2008, when Sellers entered
into an agreement of sale with 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 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
Gun Club of Sch
registered surveyor, secured all the adjacent deeds, assessment maps,
zoning maps and surveys he could find. Using these instruments, Manhart
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developed a legal description1 of the property in question; he determined
that the tract consisted of 67.904 acres. Additionally, 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.
The McGoverns filed an action seeking a court order requiring East
End, Dean Bickel, Alvin Heim and Benjamin Dewald (collectively,
asserting a claim to the land. See Pa.R.C.P. 1060(b)(1). 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 Defendants had
no basis to claim title because the disputed land is not included in any deed
by East End.
In its answer, East End admitted that it acquired title by way of
recorded deed dated February 11, 1963. See Answer to Complaint and New
Matter, 2/11/2009, at ¶ 11; R.R. at 24a, 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. See Deed, 8/7/1930, recorded at Deed
Book 560, page 35 for 100 acres. See also
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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
th
ed. 2005).
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242a; Deed, 2/11/1963, recorded at Deed Book 1042, p. 1083, for 150
R. at 243a.
At trial, Manhart testified that at no time did he specifically identify the
83 acres referenced in the tax claim deed.
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.
The McGoverns preserved numerous issues for appellate review:
I. Whether the trial court clearly erred in concluding that the
McGoverns failed to introduce prima facie evidence of title
by a preponderance of the evidence, and should have
entered verdict to quiet title in their favor?
a.
is prima facie evidence of title?
b. Whether the trial court failed to consider the
surveyor,
Walter Manhart?
c. Whether East End Gun Club failed to show superior
title?
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d. Whether the trial court erred in denying the
evidence?
e. Whether the trial court erred in failing to render a
verdict in favor of either party and in suggesting that
the parties return to the status quo and amicably
resolve the matter themselves?
f.
a nonsuit and directed verdict are inconsistent with
II. Whether the trial court erred in concluding that the
McGoverns failed to properly serve two of the four
defendants?
a.
defendants is conclusive and cannot be challenged?
b. Whether a party who accepts service as the agent
for the other defendants cannot be allowed to
challenge that service on the eve of trial?
c. Whether the trial court erred in suggesting that the
McGoverns could at this point reopen the record to
secure proper service?
-4.
The trial court stated:
The court is confronted with a claim and procedural history
seeking to quiet title that appears substantially flawed at the
outset. Implicitly we are called upon to discern which of the two
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discussion, for example, as to whether plaintiff is a party in
possession is unnecessarily academic in light of this record.
Simply stated, we cannot find that plaintiff sustained his burden
of proof as to the disputed 50 plus acres nor the remaining 17
acres which remaining acreage has not directly been challenged
by East End. Additionally, we are not further persuaded that
Defendant East End has staked a superior claim to the disputed
50[-]acre parcel warranting a decree in its favor.
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We need look no further than the 1950 tax claim deed to determine
that the McGoverns did not satisfy their evidentiary burden. In order to
meet that burden, the McGoverns first had to establish a prima facie
showing of title allowing for the burden of proving superior title to shift onto
East End Gun Club.
The burden of proof in a quiet title action is upon the plaintiff.
Montrenes v. Montrenes, 613 A.2d 983, 984 (Pa. Super. 1986). The
See Brief of Appellants, at 18.
The McGoverns cite three cases in support of this claim. The first, Curtis
Building Co., Inc. v. Tunstall, 343 A.3d 389, 394-94 (Pa. Cmwlth. 1975),
involved an action to quiet title and obtain possession of property. There,
made out a prima facie case of tax sal
the McGoverns cite is Hughes v. Chaplin, 135 A.2d 200, 202 (Pa. 1957).
There, our Supreme Court found that the plaintiff had established a prima
2
Lastly,
in support of their argument that a tax deed is prima facie evidence of good
title, the McGoverns cite Clark v. Weinberg, 393 A.2d 507 (Pa. Cmwlth.
1978). In that action to quiet title, the Commonwealth Court held that the
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2
County treasurer deed is synonymous with a tax deed. See Beacom v.
Robinson, 43 A.2d 640 (Pa. Super. 1945).
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description of property was sufficient to identify property to tax collectors
and the public notwithstanding the contention that the description was
insufficient. Id. at 509. While these cases all indicate that 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.
The Clark decision is especially relevant here. In Clark, the tax deed
contained various details describing the location of the property. For
example, the deed included a lot and a block number. Id. at 510. The
deed also contained the name of the former property possessor, which made
the property more identifiable. Id.
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. The
1909 deed suffers from a similar lack of legal description that would suffice
for prima facie evidence of good title.
It is well established that no tax sale of land is valid unless both the
assessment and the conveyance by the treasurer contain sufficient
descriptions to identify and disclose the property taxed and sold. Bannard
v. New York State Natural Gas Corp., 293 A.2d 41 (Pa. 1972). While the
present dispute does not involve the validity of the tax sale, for the tax deed
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to qualify as adequate prima facie evidence of good title, which would shift
the burden of proving superior title to East End, it is still necessary for the
deed to contain a sufficient description.
The plaintiffs' burden in an action in ejectment at law is clear: they
must establish the right to immediate exclusive possession. See, e.g.,
Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984); Harbor
Marine Co. v. Nolan, 366 A.2d 936 (Pa. Super. 1976). Recovery can be
had only on the strength of their own title, not the weakness of defendant's
title. See Artz v. Meister, 123 A. 501 (Pa. 1924); Ratajski v. West Penn
Manufacturing & Supply Corp., 182 A.2d 243 (Pa. Super. 1962). The
crux of an ejectment action, therefore, rests with the plaintiffs' ability to
identify, by a preponderance of the evidence, see Hallman, 482 A.2d at
1288 (citing Rook v. Greenewald, 22 Pa.Super. 641, 643 (1903)), the
boundaries of a parcel of land to which they are out of possession but for
which they maintain paramount title.
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examination that he had not specifically identified the 83 acres referenced in
the tax claim deed. Trial Court Opinion, 9/11/2013, at 11. 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. Hallman v. Turns, 482 A.2d 1284, 1288, (Pa.
Super. 1984) (citing Skillman v. Magill, 98 Pa. Super. 72 (1930)).
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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 relative weakness of, and cloud
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 defe Fried,
supra at 6; see Doman v. Bogan, 592 A.2d. 104, 108 (Pa. Super. 1991).
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
Therefore, the remaining claims of error made by the McGoverns do not
warrant further consideration.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/25/2014
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