J-A12012-17

                                  2017 PA Super 394


EVAN D. FORD AND MARGARET L. FORD                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

JOHN P. OLIVER AND CYNTHIA V.
OLIVER, HUSBAND AND WIFE, BLANE
PUSKARIC, ESQUIRE, EQT PRODUCTION
COMPANY AND EQUITRANS, L.P.

                                                      No. 670 WDA 2016


                  Appeal from the Order Dated March 22, 2016
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 15-13256

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY SOLANO, J.:                            FILED DECEMBER 14, 2017

       In this dispute over the validity of a deed, Appellants Evan D. Ford and

Margaret L. Ford appeal from the March 22, 2016 order sustaining the

preliminary objections of Appellees John P. Oliver and Cynthia V. Oliver;

Blane Puskaric, Esquire; EQT Production Company; and Equitrans, L.P., and

dismissing the Fords’ claims against Appellees with prejudice.1 We affirm.

       This case arises out of the 2001 sale of property by the Fords to

Appellee John P. Oliver. The Fords allege that they intended to sell only one

parcel of vacant land (“Parcel One”) to Oliver, and that, after the closing, the

____________________________________________
1
 The March 22, 2016 order became final and appealable on April 19, 2016,
when the trial court granted the Fords’ motion to discontinue the action
against the remaining defendants, Dale Property Services Penn, LLC and
Landco USA, Inc. See Pa.R.A.P. 341; Baker v. Cambridge Chase, Inc.,
725 A.2d 757, 762 (Pa. Super.), appeal denied, 745 A.2d 1216 (Pa. 1999).
J-A12012-17


closing agent erroneously included in the deed (the “Original Oliver Deed”)

the legal description not only of Parcel One, but also of another parcel, which

contained mineral rights (“Parcel Two”).2           The Fords learned the Original

Oliver Deed included both parcels in 2015, when they attempted to sell the

Parcel Two mineral rights to EQT and a representative of EQT informed them

that a third party had already transferred those rights to EQT.

       The Fords, who are siblings, received the two parcels of land at issue

in 1996, in a single deed from their mother (“the Original Ford Deed”).

Parcel One is approximately 50 acres of vacant land in Jefferson Hills,

Allegheny County, and it contains an exception for certain coal and mineral

rights.   Original Ford Deed, pp. 1-2.         Parcel Two consists of “ALL oil, gas,

coal or other minerals, together with all mining rights and other rights of any

nature or kind whatsoever . . . owned by the grantor . . . within the limits of

Allegheny County, Pennsylvania.” Id., p. 2 (capitalization in original).

       In the spring of 2001, the Fords listed Parcel One for sale. They allege

that they then had “no intention of selling any or all of the Parcel Two

Property and/or any oil, gas, coal or other mineral rights or other property

rights or interests in the 2001 sale.” Second Am. Compl. ¶ 16.



____________________________________________
2
  “Because this case was decided on preliminary objections, we rely on the
facts as alleged in the complaint, including its exhibits.” Khawaja v.
RE/MAX Cent., 151 A.3d 626, 627 n.1 (Pa. Super. 2016) (citation
omitted); see id. at 630 (“When considering preliminary objections, all
material facts set forth in the challenged pleadings are admitted as true, as
well as all inferences reasonably deducible therefrom” (citation omitted)).

                                           -2-
J-A12012-17


        In the fall of 2001, Appellee John P. Oliver entered into an agreement

with the Fords to purchase Parcel One for $22,000.3 The closing occurred on

September 14, 2001.             The U.S. Department of Housing and Urban

Development       (HUD)    settlement     statement   identified   the   property   as

“VACANT LAND ON ROUTE 51, JEFFERSON HILLS, PA 15025, JEFFERSON

HILLS BOROUGH, ALLEGHENY COUNTY.” Second Am. Compl. Ex. 4.

        At the closing, the Fords were not shown the deed and were told that

it had not yet been completed.             A representative of the closing agent,

Landco USA, Inc., provided the Fords with the signature page of the deed

only, which they signed.4 The Fords identify Appellee Puskaric as an agent

of Landco,5 but do not allege that he was the agent who provided them with

the signature page. Indeed, they state that Puskaric was not present at the

closing.    Puskaric, however, notarized all of the signatures on the deed.

Second Am. Compl. ¶¶ 18, 23-28, 30-31.

        “[A]t a later date,” the closing agent completed the Original Oliver

Deed and included legal descriptions of both Parcel One and Parcel Two in it.

Second Am. Compl. ¶ 19. The page containing the Fords’ signatures from

the September 14, 2001 closing was included as page 3. The deed recited
____________________________________________
3
    The Fords have been unable to locate a copy of this agreement.
4
  The Second Amended Complaint attaches a copy of the Original Oliver
Deed as Exhibit 3. The third page of the deed contains three paragraphs of
text, followed, in the middle of the page, by signature lines that contain the
Fords’ signatures. Below the Fords’ signatures are another paragraph of text
and a signature line for John Oliver.
5
    The Fords aver that Puskaric was also Oliver’s attorney.

                                           -3-
J-A12012-17


that the consideration for the transaction was $10,000, not $22,000.

Original Oliver Deed, p. 1.         While the Original Ford Deed contained the

headings “Parcel One” and “Parcel Two” preceding the descriptions of the

respective parcels, the Original Oliver Deed did not contain those headings.

Instead, it included the description of Parcel Two immediately after the

description of Parcel One and began that description with the words,

“TOGETHER WITH, INCLUDING ALL oil, gas, coal or other minerals . . . .”

See id., p. 2 (capitalization in original).      The Original Oliver Deed also

contained a “SUBJECT TO and TOGETHER WITH” clause under the Parcel

Two description that referenced oil and gas leases and other coal and

mineral rights, see id.; this clause had not been in the Original Ford Deed.

The Original Oliver Deed was recorded in January of 2002. The Fords claim

they were not sent the Original Oliver Deed and were unaware of its content.

       The Fords allege that, “[u]pon advice of prior counsel, [they]

attempted to clarify the title to the Parcel 2 property by having it re-

conveyed by their mother to them by deed dated July 9, 2007” (“the 2007

Ford Deed”). Second Am. Compl. ¶ 35. The Fords do not allege why they

needed to “clarify the title” at that time.6     The Fords aver that when they

executed and recorded the 2007 Ford Deed, they did not know that the legal
____________________________________________
6
  In their brief, the Fords state that their attorney “suggested that the Fords
would eventually need a new, clean, deed that reflected their continued
ownership of the . . . ‘Parcel Two’ Interests after the sale of . . . ‘Parcel 1,’
since both properties had been listed together on the Original Ford Deed.”
Fords’ Brief at 7. The Fords add that their attorney prepared the 2007 deed
incorrectly, as though the Fords’ mother still owned Parcel Two. Id.

                                           -4-
J-A12012-17


description of Parcel Two had been included in the Original Oliver Deed. Id.

¶ 36.

        At some point on or before March 9, 2009, the Original Oliver Deed

was amended (“Amended Oliver Deed”) to add the heading “*Parcel Two”

immediately prior to the text beginning “TOGETHER WITH, INCLUDING ALL

oil, gas, coal or other minerals . . . .”          The amendment added: “*The

purpose of this re-recording is to add the wording of Parcel Two to the legal

description which was omitted from the original deed recorded in [the

Washington County deed book].”                 Amended Oliver Deed, p. 2.    The

description of the property in the Original Oliver Deed was otherwise left

unchanged.       Oliver or Puskaric recorded the Amended Oliver Deed on

March 11, 2009. Second Am. Compl. ¶¶ 38-39 & Ex. 7. The Fords were not

notified of the amendment of the deed.

        On March 12, 2009, Oliver entered into a five-year oil and gas lease

granting Dale Property Services Penn, LLC, certain mineral rights to the

property described in the Original Ford Deed as Parcel One. The March 12,

2009 lease was recorded on March 17, 2009.             The Fords allege that they

“were not made aware of the purported sale of gas and other mineral rights

of [Parcel One] to Dale Property until early spring of 2015.”        Second Am.

Compl. at ¶¶ 46-47 & Ex. 8.7

____________________________________________
7
  Exhibit 8 to the Second Amended Complaint also contains a copy of a
February 19, 2009 lease from Oliver to Dale of mineral rights to four other
parcels in Forward Township, Allegheny County.


                                           -5-
J-A12012-17


       In 2012, the Fords attempted to lease various Parcel Two oil and gas

rights to EQT, but the two parties were unable to reach a final agreement.

       On June 27, 2014, Oliver entered into an oil and gas lease with EQT

for the mineral rights to Parcel One. On September 23, 2014, Oliver and his

wife, Cynthia V. Oliver,8 entered into a Subsurface Storage Easement

Agreement with Equitrans, granting Equitrans an exclusive and permanent

easement to transport, inject, store, retrieve, and withdraw gas from Parcel

One. This easement was recorded on December 17, 2014. On February 23,

2015 and May 2, 2015, the Olivers sold additional Parcel Two mineral rights

to EQT.

       In the spring of 2015, Evan D. Ford contacted EQT to discuss a

possible sale of part of Parcel Two.           A representative of EQT advised Ford

that these rights had already been transferred to EQT by a third party. The

Fords then learned that Oliver had transferred the Parcel Two mineral rights

to EQT and other parties.

       The Fords initiated this suit on August 4, 2015, and subsequently filed

a complaint, an amended complaint, and a second amended complaint. As

the trial court set forth in its opinion, the Fords asserted the following claims

in their Second Amended Complaint:

             Count One, against Defendants John and Cynthia Oliver,
       seeks Declaratory Relief that (a) the September 14, 2001 deed
       to John Oliver is void ab initio and should not have included the
____________________________________________
8
   The Second Amended Complaint does not state if or when Oliver
transferred his rights to his wife.

                                           -6-
J-A12012-17


     description of Parcel Two and (b) that the later deeds from John
     Oliver to his wife Cynthia Oliver and to Dale, and from John and
     Cynthia Oliver to EQT and Equitrans are also void ab initio.

             Count Two, against Defendants Dale, EQT and Equitrans,
     seeks Declaratory Relief that the transfers to Dale . . ., to EQT
     . . ., and to Equitrans . . . of parts of Parcel Two are the result of
     John Oliver’s fraudulent conduct, having been based on a void
     deed, and those deeds are also void ab initio. . . .

          Count Three, against Defendants Landco and Puskaric, for
     Malpractice related to the closing of the 2001 sale. . . .

            Count Four, against Puskaric only, for Malpractice for
     failing to review the title insurance, sales agreement and HUD-1
     (the Settlement Sheet) prior to the 2001 closing and also failing
     to send [the Fords] a copy of the March 11, 2009 re-recorded
     deed. [The Fords] also claim in this count that [Puskaric] altered
     the Original Oliver Deed at the direction of John Oliver to include
     Parcel Two.

            Count Five, against Defendants Landco and Puskaric, for
     negligence related to the closing of the 2001 sale and the
     inclusion of Parcel Two in the Original Oliver Deed. . . .

            Count Six, against Puskaric only, for negligence for failing
     to review the documents related to the transactions and thereby
     failing to discover the alleged inconsistencies among them, and
     also by failing to send [the Fords] a copy of the March 11, 2009
     re-recorded deed.

           Count Seven, against Dale, for negligence in its review of
     the chain of title. . . .

           Count Eight, against EQT and Equitrans, for negligence,
     based on their failures (a) to properly review the chain of title,
     (b) to question the deed recorded on March 11, 2009, which was
     a photocopy of the Original Oliver Deed with the word “Parcel
     Two” typed in, (c) to contact the [Fords] regarding the insertion
     of “Parcel Two” in the re-recorded photocopy, (d) to “properly
     pay the rightful owners” for the real estate they received.

          Count Nine, against John Oliver, Landco and Puskaric, for
     fraud or misrepresentation, based on the conduct alleged


                                     -7-
J-A12012-17


       regarding the 2001 deed to Mr. Oliver and the re-recording of an
       altered photocopy in 2009. . . .

Trial Ct. Op., 10/24/16, at 3-4.

       All of the defendants except Landco filed preliminary objections to the

Fords’ Second Amended Complaint. Among other grounds, the defendants

relied on the statute of limitations.9 EQT and Equitrans also asserted that

the Fords failed to state a claim for either declaratory relief or negligence.

After oral argument on March 22, 2016, the trial court sustained the

preliminary objections of the Olivers, Puskaric, Equitrans, and EQT “on the

basis of the applicable statutes of limitations” and dismissed the Fords’

Second Amended Complaint against those defendants with prejudice. Order,

3/22/16.     Dale had asked to be dismissed from the case upon providing

proof that it had not operated on the property in dispute; its preliminary

objections were therefore continued.

       On April 6, 2016, the Fords filed a motion to remove defendants Dale

and Landco from the case. The trial court granted that motion on April 19,
____________________________________________
9
   A statute of limitations defense must be raised in new matter, not in
preliminary objections. See Pa.R.Civ.P. 1030(a). However, “[w]here a
party erroneously asserts substantive defenses in preliminary objections
rather than to raise these defenses by answer or in new matter, the failure
of the opposing party to file preliminary objections to the defective
preliminary objections, raising the erroneous defenses, waives the
procedural defect and allows the trial court to rule on the preliminary
objections.” Richmond v. McHale, 35 A.3d 779, 782 (Pa. Super. 2012)
(citing Duquesne Slag Products v. Lench, 415 A.2d 53 (Pa. 1980)); see
also S.J. v. Gardner, 167 A.3d 136, 138 (Pa. Super. 2017). The Fords did
not object to the raising of the statute of limitations defense by way of
preliminary objections, and therefore the trial court properly reached the
issue.

                                           -8-
J-A12012-17


2016, thereby rendering its March 22, 2016 order final. On May 6, 2016,

the Fords filed a timely notice of appeal.

       On October 24, 2016,10 the trial court filed an opinion in which it

explained its decision. The court stated:

             [The Fords] admit never receiving a copy of the 2001 deed
       that they knew was to be sent to them after it was finalized after
       the closing and then recorded. They admit, sub silentio, doing
       nothing from 2002 to Spring of 2015 to obtain a copy of the
       deed they expected to receive and did not. Their explanation,
       that they believed Puskaric had a fiduciary duty to them even
       though they never met him and he merely (and apparently
       improperly) had notarized their signatures, which they
       themselves nevertheless acknowledge as theirs, is unreasonable.
       Such a long delay with no reasonable explanation bars the two
       counts for declaratory relief.

              We also      considered      the   other   relevant   statutes   of
       limitations:

             Count Three, against Landco and Puskaric for Malpractice
       should have been filed no later than two years after [the Fords]
       reasonably should have known the copy of the 2001 deed had
       not been sent to them. There is no merit to the contention that
       the limitations period as a matter of law did not start to run until
       the Spring of 2015.

             Count Four, against Puskaric only for Malpractice is
       similarly time-barred. The claim in this count that the failure to
       send [the Fords] a copy of the March 11, 2009 re-recorded and
       altered deed was also malpractice is time-barred as well.

             Count Five, against Landco and Puskaric for Negligence
       related to the 2001 closing is also similarly time-barred.

             Count Six, against Puskaric only, for Negligence related to
       the 2001 closing is similarly time-barred.
____________________________________________
10
     On November 2, 2016, the trial court issued a statement correcting
clerical errors in its original opinion. All references to the trial court opinion
in this opinion refer to the corrected opinion.

                                           -9-
J-A12012-17



            Count Seven, against Dale for Negligence [was withdrawn
      by the Fords].

             Count Eight, against EQT and Equitrans, for their allegedly
      negligent failure to properly review the chain of title is time
      barred by the Recording Statute. We also concluded that their
      title was not void ab initio since the Declaratory Judgment
      counts were time-barred. We also noticed during our review of
      the Second Amended Complaint (but did not rule) that neither of
      these Defendants had any duty to Plaintiffs to review the chain
      of title and this was another, unstated, reason why we properly
      dismissed this count with prejudice.

            Count Nine, against Oliver, Landco and Puskaric, for
      Fraud/Misrepresentation related to the 2001 closing. The six-
      year limitations period, applying the Discovery Rule, reasonably
      would have expired well before 2015. We properly concluded
      that this claim is time barred.

Trial Ct. Op. at 9-10. The trial court concluded:

            We properly dismissed all counts against the Olivers,
      Puskaric, EQT, and Equitrans based on the expiration of the
      various statutes of limitations, as well as the lack of any duty
      owed to [the Fords] by Puskaric (who cannot be regarded as
      having had an attorney-client relationship with them), EQT or
      Equitrans[]. Leave to amend was properly not offered as no
      amendment was proffered that would change the result.

            Declaratory relief was properly denied as untimely. The
      2001 Original Oliver Deed was not void ab initio nor was it
      criminally fraudulent because it included both parcels from the
      prior deed to the [Fords]. At best, it might have been voidable
      had [the Fords] acted promptly and reasonably to protect their
      rights.

            Since the 2001 deed to Mr. Oliver was not void ab initio,
      the deeds from him and his wife to EQT and Equitrans were also
      not void.

            Similarly, there is no viable cause of action based on the
      questionable “re-recording” in March 2009 of an apparent
      photocopy of the 2001 deed with the words “Parcel Two” typed
      in.   This was allegedly filed by Defendants Puskaric and

                                    - 10 -
J-A12012-17


         Matrix[11]. If this was fraudulent conduct, it is not fraud as to
         [the Fords].

Id. at 10-11.

         In this appeal, the Fords raise the following issues, as stated in their

brief:

         1. Did the lower [c]ourt err in sustaining the Defendants’
         preliminary objections in the nature of a demurrer, stating that
         the deed dated September 14, 2001 and filed in the Office of the
         Recorder of Deeds of Allegheny County on January 9, 2002, as
         unilaterally amended and recorded in the Office of the Recorder
         of Deeds of Allegheny County . . . without authorization by or
         notice to [the Fords] by Defendant, John P. Oliver and his agent,
         Attorney Blane Puskaric, on March 9, 2009, was subject to any
         statute of limitations instead of finding the fraudulent deed void
         ab initio?

         2. Did the lower [c]ourt err in sustaining the preliminary
         objections in the nature of a demurrer filed on behalf of EQT
         Property Management and Equitrans, L.P., based on the
         expiration of the statute of limitations, since any attempt to
         transfer the property to Defendant Oliver initially was fraudulent
         and void, ab initio, and accordingly, Defendant Oliver had no
         interest in the subject realty that could be conveyed?

         3. Alternatively, did the lower [c]ourt err by failing to find that
         the discovery rule exception tolled the statute of limitations until
         the [Fords] discovered the actions of Defendant, John P. Oliver,
         and his agents in the spring of 2015?

         4. Did the lower [c]ourt err in sustaining the preliminary
         objections in the nature of a demurrer with respect to its finding
         that the statute of limitations had expired using the “discovery
____________________________________________
11
  The Fords alleged that Matrix Property Settlements, LLC was the “agent or
representative” of Oliver that recorded the Amended Oliver Deed on
March 11, 2009, and they named Matrix as a defendant. Am. Compl. at ¶
33. They also alleged that Puskaric was “the sole principal of Matrix.” Id. at
¶ 34. A judgment of non pros was entered against the Fords with respect to
Matrix because the Fords failed to timely file a certificate of merit. See
Pa.R.Civ.P. 1042.7.

                                          - 11 -
J-A12012-17


      exception” as recognized by Pennsylvania law, where this is an
      issue which must be decided by the jury?

      5. Did the lower [c]ourt err in refusing to recognize that the
      deeds in question in this matter did in fact constitute “forged”
      deeds under Pennsylvania law?

      6. Alternatively, did the lower [c]ourt err in sustaining the
      preliminary objections in the nature of a demurrer [with] respect
      to its finding that 21 P.S. Section 357 provided constructive
      notice of a purported fraudulent transfer of property to the true
      owner of said property even though there was nothing to alert
      the true owner of the purported transfer or to otherwise cause
      him to make inquiry as to the status of his property at the Office
      of the Recorder of Deeds? . . .

Fords’ Brief at 3-5.

      We apply the following standard of review:

      Our standard of review of an order of the trial court overruling or
      granting preliminary objections is to determine whether the trial
      court committed an error of law.          When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Khawaja v. RE/MAX Cent., 151 A.3d 626, 630 (Pa. Super. 2016) (citation

omitted).




                                     - 12 -
J-A12012-17


                            The Statute of Limitations
                            (Issues 1, 3, 4, 5, and 6)

       With the exception of their claims against EQT and Equitrans,12 all of

the Fords’ issues relate to the trial court’s ruling that their claims are barred

by the applicable statutes of limitations. The Fords do not argue that their

claims were brought within the limitations periods. Rather, they argue that

no statute of limitations applies to their claims or, in the alternative, that the

discovery rule tolled the limitations periods.

       The Fords brought the following claims: declaratory judgment,

malpractice, negligence, and fraud. This Court has held that a declaratory

judgment action is subject to a four-year statute of limitations. Wagner v.

Apollo Gas Co., 582 A.2d 364, 366 (Pa. Super. 1990) (relying on “catch all”

statute of limitations set forth at 42 Pa.C.S. § 5525(8)); see also Zourelias

v. Erie Ins. Grp., 691 A.2d 963, 964 n.2 (Pa. Super. 1997), appeal

denied, 706 A.2d 1214 (Pa. 1998).                  The statute of limitations for the

malpractice,13 negligence, and fraud claims is two years. See 42 Pa.C.S. §

5524(7) (prescribing two-year limitations period for “[a]ny other action or
____________________________________________
12
   The Fords’ claims against EQT and Equitrans relate to acts that occurred in
2014 and 2015. Therefore, those claims are not barred by the statute of
limitations.
13
   A malpractice action may be brought in contract or tort. See Wachovia
Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007). The statute
of limitations is two years for a tort claim and four years for a contract claim.
See id. The Fords asserted a tort claim, so the two-year statute of
limitations applies. The result here would not change if the four-year statute
were applicable.


                                          - 13 -
J-A12012-17


proceeding to recover damages for injury to person or property which is

founded on negligent, intentional, or otherwise tortious conduct or any other

action or proceeding sounding in trespass, including deceit or fraud, except

an action or proceeding subject to another limitation specified in this

subchapter”).14

       As the Supreme Court explained in Dalrymple v. Brown, 701 A.2d

164 (Pa. 1997):

       [T]he statute of limitations begins to run as soon as the right to
       institute and maintain a suit arises; lack of knowledge, mistake
       or misunderstanding do not toll the running of the statute of
       limitations.   The statute of limitations requires aggrieved
       individuals to bring their claims within a certain time of the
       injury, so that the passage of time does not damage the
       defendant’s ability to adequately defend against claims made.

701 A.2d at 167 (quotation marks and citations omitted). For most of the

Fords’ claims, the statute of limitations, if applicable, would begin to run on

September 14, 2001 (the date of the closing on the allegedly fraudulent

Original Oliver Deed) or in January 2002, when the Original Oliver Deed was

recorded. At that time, the right to institute a suit under Dalrymple had

arisen. The two-year statute of limitations for the Fords’ claims regarding

the Amended Oliver Deed would begin to run no later than March 11, 2009,

the date that deed was recorded.
____________________________________________
14
   The trial court appears to have believed that a six-year statute of
limitations applied to the fraud claim. See Trial Ct. Op. at 10. This Court
has held, however, that “[a]n action to recover damages for injury to person
or property which sounds in fraud is governed by a two-year statute of
limitations.” Toy v. Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. 2004)
(referencing 42 Pa.C.S. § 5524(7)), aff’d, 928 A.2d 186 (Pa. 2007).

                                          - 14 -
J-A12012-17


        The Fords initiated this suit on August 4, 2015, well after all applicable

statutes of limitations expired. We therefore proceed to consider the Fords’

arguments that either (1) no statute of limitations applied to their claims, or

(2) the discovery rule tolled the statutes of limitations until the Fords

discovered the alleged error in the Original Oliver Deed in the Spring of

2015.

                    Void Deeds and the Statute of Limitations
                                 (Issues 1, 5)

        The Fords’ first contention is that no statute of limitations applies to

their claims because the Original Oliver Deed was forged and therefore was

void ab initio.    According to the Fords, the Original Oliver Deed and the

Amended Oliver Deed are “legal nullities” because the Fords “never intended

to sell or offered to sell or otherwise transfer [Parcel Two] to Oliver, or any

other party, prior to early spring of 2015.” Fords’ Brief at 12. The Fords

contend that there was never an agreement to sell Parcel Two to Oliver. Id.

        The trial court concluded that “[t]he 2001 Original Oliver Deed was not

void ab initio nor was it criminally fraudulent because it included both

parcels from the prior deed to the [Fords].        At best it might have been

voidable had [the Fords] acted promptly and reasonably to protect their

rights.” Trial Ct. Op. at 11. Because the 2001 Original Oliver Deed was not

void ab initio, the trial court concluded that the subsequent deeds were also

not void. Id. We agree.




                                      - 15 -
J-A12012-17


      “A forged instrument being of record for a long period of time does not

estop the     injured party from asserting the        fraud and securing       its

cancellation.”   Thees v. Prudential Ins. Co. of Am. of Newark, 190 A.

895, 896 (Pa. 1937) (addressing deed with forged signatures).           However,

not every fraud is a forgery.    In Commonwealth v. Sankey, 22 Pa. (10

Harris) 390 (Pa. 1853), the Pennsylvania Supreme Court explained:

      Forgery is the fraudulent making or altering of a writing to the
      prejudice of another’s right. . . . If every trick, or false pretence,
      or fraudulent act by which a person is induced to put his name to
      a paper which he would not otherwise have signed, is to be
      called a forgery, where shall we stop, and what shall be the rule?
      . . . [F]rauds perpetrated for the purpose of getting papers
      signed [are not forgeries].

Id. at 395.

      Here, the Fords allege that they agreed to sell Parcel One to the

Olivers and attended a closing in 2001 at which they “were not presented

with a completed deed containing specific real property descriptions, but

instead, were presented only with the signature page that they were

requested to sign.” Second Am. Compl. ¶ 25; see id. ¶ 18. They accepted

the $22,000 purchase price and “signed the blank signature page[] to the

incomplete Deed.”     Id. ¶¶ 27-28.      Later, the Original Oliver Deed was

prepared, and it included language that conveyed both Parcels One and Two.

It also included the signature page signed by the Fords; critically, the Fords

admit that the signatures on that page really are theirs. The Fords say they

never were provided with a copy of the Original Oliver Deed, id. ¶ 33, and

their pleading makes clear that they never tried to do anything about that

                                     - 16 -
J-A12012-17


failure before 2015, when they learned that they did not own the mineral

rights that they then wanted to sell, id. ¶¶ 55-57, 59. On these facts, even

if we accept the Fords’ contention that the addition of the description of

Parcel Two to the 2001 deed was done in a deliberate effort to defraud

them, there was no “forgery.” There was only the Fords’ admitted, willing

signature of a blank document, followed by their failure to do anything to

find out what they signed.

      The Supreme Court of Pennsylvania has said, “If a party, who can

read, will not read a deed put before him for execution . . . he is guilty of

supine negligence, which . . . is not the subject of protection, either in equity

or at law.”      Yohe v. Yohe, 353 A.2d 417, 420 (Pa. 1976) (citations

omitted). “We cannot rescind conveyances merely because one party later

claims that he did not understand what he was signing when there was

nothing to prevent him from merely reading the deed to discover its

contents.” Id.

      At most, the Fords have alleged that they were induced into signing

the deed under a false pretense that the deed would include language

limiting the conveyance to only Parcel One.        That is not forgery.     See

Sankey, 22 Pa. at 395. The Fords’ failure to read the deed and seek relief

from its terms until 2015 — nearly fourteen years after they signed it —

precludes them from now having the deed declared void.          See Yohe, 353

A.2d at 420.



                                     - 17 -
J-A12012-17


      The Fords primarily rely on cases from other jurisdictions. See Fords’

Brief at 13-14, citing Faison v. Lewis, 32 N.E.3d 400 (N.Y. 2015);

Cameron Estates, Inc. v. Deering, 123 N.E.2d 621 (N.Y. 1954); MZRP,

LLP v. Huntington Realty Corp., No. 35692, 2011 WL 12455342 (W. Va.,

Mar. 10, 2011) (unpublished memorandum).              These decisions are not

binding on us, but we may use them “for guidance to the degree we find

them useful and not incompatible with Pennsylvania law.”              Newell v.

Montana West, Inc., 154 A.3d 819, 823 and n.6 (Pa. Super. 2017)

(citation omitted).   We conclude that none of these decisions support a

holding in favor of the Fords because they are factually distinguishable from

this case.

      In Faison, the Court of Appeals of New York held that the plaintiff’s

claim seeking to set aside a mortgage was not barred by the statute of

limitations because the plaintiff had alleged that the grantor’s signature on

the deed to the mortgaged property was forged.            32 N.E.3d at 401-02.

Recognizing that, under New York law, a forged deed is “void at its

inception,” the court distinguished between the forged deed that was alleged

in that case and a deed in which the signature was authentic, but obtained

by fraudulent means:

             A forged deed that contains a fraudulent signature is
      distinguished from a deed where the signature and authority for
      conveyance are acquired by fraudulent means. In such latter
      cases, the deed is voidable. The difference in the nature of the
      two justifies this different legal status. A deed containing the
      title holder’s actual signature reflects the assent of the will to the
      use of the paper or the transfer, although it is assent induced by

                                     - 18 -
J-A12012-17


       fraud, mistake or misplaced confidence. Unlike a forged deed,
       which is void initially, a voidable deed, until set aside, . . . has
       the effect of transferring the title to the fraudulent grantee, and
       . . . being thus clothed with all the evidences of good title, may
       incumber the property to a party who becomes a purchaser in
       good faith.

Id. at 403 (quotation marks and citations omitted). Here, the Fords admit

that their signatures are genuine, and claim only that they were fraudulently

induced into signing the Original Oliver Deed.       Thus, under Faison, the

Original Oliver Deed would be voidable and not, as the Fords claim, void.

See id.

       In Cameron Estates and MZRP, the courts held that a tax deed was

void where, although the basis for the sale was delinquent taxes, there was

in fact no tax delinquency on the property.        See Cameron Estates, 123

N.E.2d at 624; MZRP, 2011 WL 12455342, at *4-5.                Unlike Cameron

Estates and MZRP, in which the sellers never had legal authority to sell the

property at issue, here the Fords owned both Parcel One and Parcel Two,

and thus had legal authority to sell both.15

       The Fords also rely on the definition of forgery set forth in the

Pennsylvania Crimes Code:


____________________________________________
15
   For similar reasons, the Fords’ reliance on Northern Forests II, Inc. v.
Keta Realty Co., 130 A.3d 19 (Pa. Super. 2015), is misplaced.                 In
Northern Forests II, this Court held that a void judgment was “a legal
nullity that has no force or effect,” and therefore could not be used to
establish adverse possession. Id. at 35-36. The judgment at issue was void
ab initio because the court did not have jurisdiction to enter it. Id. at 29-35.
To the extent Northern Forests II, which did not pertain to the validity of
a deed, is relevant here, it does not support the Fords’ argument.

                                          - 19 -
J-A12012-17


        (a) Offense defined.—A person is guilty of forgery if, with
        intent to defraud or injure anyone, or with knowledge that he is
        facilitating a fraud or injury to be perpetrated by anyone, the
        actor:

               (1) alters any writing of another without his authority;

               (2) makes, completes, executes, authenticates, issues or
               transfers any writing so that it purports to be the act of
               another who did not authorize that act, or to have been
               executed at a time or place or in a numbered sequence
               other than was in fact the case, or to be a copy of an
               original when no such original existed; or

               (3) utters any writing which he knows to be forged in a
               manner specified in paragraphs (1) or (2) of this
               subsection.

18 Pa.C.S. § 4101(a). The Fords argue that this definition shows that “[t]he

act     of   ‘forgery’   encompasses    substantially   more   than   unauthorized

signatures.”      Fords’ Brief at 28.    However, they fail to explain how the

definition of criminal forgery supports their argument that the conduct they

have alleged renders the Original Oliver Deed “forged,” and, in the absence

of such an explanation, we fail to see how the Crimes Code definition applies

here.

        Finally, the Fords rely on State v. Shurtliff, 18 Me. 368 (Me. 1841).

In Shurtliff, the Supreme Judicial Court of Maine held that where a grantor

was shown a draft of a deed and later signed a deed in which the property

description had been changed from the draft, the later deed was forged. Id.

370-71.       The Fords cite no Pennsylvania decision that has adopted this

expansive view of forgery. As the U.S. Supreme Court later recognized, the

definition of forgery in Shurtliff is not universal.      See Moskal v. United

                                        - 20 -
J-A12012-17


States, 498 U.S. 103, 115-16 (1990) (noting disagreements with Shurtliff

among jurisdictions).16       But even if we were to agree with Shurtliff, we

would hold that the decision does not apply here because, unlike the victim

in Shurtliff, the Fords do not allege that they were shown one deed and

then given an altered version to sign.

       In sum, we agree with the trial court that the 2001 Original Oliver

Deed was not forged and not void ab initio. At most, the deed was voidable.

To have the voidable deed declared void, the Fords had to bring an action

seeking that relief within the limitations period applicable to declaratory

judgment actions. We thus agree with the trial court’s rejection of the Fords’

contention that no statute of limitations applied to their claims.

                                  The Discovery Rule
                                   (Issues 3, 4, 6)

       The Fords argue that even if statutes of limitations applied, they were

tolled until early 2015 by the discovery rule. The Fords further contend that

whether the discovery rule applies should not have been decided on

preliminary objections because that is a fact issue that must be submitted to

a jury.

       The trial court held that, even if the discovery rule applied, the Fords

did not act with reasonable diligence because they had no reasonable

explanation for “doing nothing from 2002 to Spring of 2015 to obtain a copy
____________________________________________
16
  The trial court in Sankey expressed disagreement with Shurtliff. See
Sankey, 22 Pa. at 393.      In affirming the lower court’s decision, the
Pennsylvania Supreme Court did not mention Shurtliff.

                                          - 21 -
J-A12012-17


of the deed they expected to receive and did not.” Trial Ct. Op. at 9. 17 The

trial court found the Fords’ purported explanation — that they believed

Puskaric had a fiduciary duty to them — was unreasonable and legally

insufficient. Id. We agree.

       We have explained:

       [W]here the complaining party is reasonably unaware that his or
       her injury has been caused by another party’s conduct, the
       discovery rule suspends, or tolls, the running of the statute of
       limitations. To successfully invoke the discovery rule, a party
       must show the inability of the injured, despite the exercise of
       due diligence, to know of the injury or its cause. A party fails
       to exercise reasonable diligence when it fails to make an inquiry
       when the information regarding the injury becomes available.


____________________________________________
17
  Contrary to the argument made by the Fords on their sixth issue, the trial
court did not charge the Fords with constructive notice of the contents of the
Original Oliver Deed as a result of its recording under Section 2 of the 1931
Recording Act, 21 P.S. § 357, which provides:

     The legal effect of the recording of such agreements shall be to
     give constructive notice to subsequent purchasers, mortgagees,
     and/or judgment creditors of the parties to said agreements of the
     fact of the granting of such rights or privileges . . ., and the rights
     of the subsequent purchasers, mortgagees, and/or judgment
     creditors of the parties to said agreements shall be limited thereby
     with the same force and effect as if said subsequent purchasers,
     mortgagees, and/or judgment creditors had actually joined in the
     execution of the agreement or agreements aforesaid.

In its opinion, the trial court stated, “[w]hile the Recording Statute was also
raised, we note that its express language refers only to ‘subsequent
purchasers, mortgagees and/or judgment creditors,’ such as EQT and
Equitrans, not to the actual parties to the Original Oliver Deed.” Trial Ct.
Op. at 7; see id. at 8 (agreeing with Fords that recording statute does not
apply to Fords). The trial court’s conclusion that the statutes of limitations
had expired therefore was not based on a finding that the Recording Act
provided the Fords with constructive notice of the contents of the Original
Oliver Deed. We therefore find no merit in the Fords’ sixth claim.

                                          - 22 -
J-A12012-17


     Mistake, misunderstanding, or lack of knowledge in themselves
     do not toll the running of the statute.

            Whether the statute of limitations has run on a claim is a
     question of law for the trial court to determine; however,
     application of the discovery rule involves a factual determination
     as to whether a party was able, in the exercise of reasonable
     diligence, to know of his injury and its cause.         Therefore,
     application of the rule ordinarily must be decided by a jury.
     Where, however, reasonable minds would not differ in
     finding that a party knew or should have known [i]n the
     exercise of reasonable diligence of his injury and its
     cause, the court determines that the discovery rule does
     not apply as a matter of law. The standard of reasonable
     diligence is an objective one.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 279 (Pa.

Super. 2016) (emphasis added and quotation marks and citations omitted);

see Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005).

     The Fords signed a deed in 2001 and have not alleged facts

demonstrating that they exercised “reasonable diligence” in discovering that

the deed’s property description was erroneous. We agree with the trial court

that, after signing a deed without seeing its property description or other

content, the Fords were under an obligation to find out what they signed and

to make sure that it was accurate.    They easily could have satisfied that

obligation by, for example, obtaining a copy of the Original Oliver Deed and

reading it between September 2001 and the spring of 2015. Their failure to

find out what they had signed was unreasonable as a matter of law, and this

question did not require factual assessment by a jury. “[R]easonable minds

would not differ in finding that” the Fords “should have known on the

exercise of reasonable diligence” of the alleged error in the Original Oliver

                                   - 23 -
J-A12012-17


Deed long before the spring of 2015. See Mariner Chestnut, 152 A.3d at

279. Thus, the trial court did not err in holding that the Fords’ claims would

be untimely even if the discovery rule applied.

                    Claims Against EQT and Equitrans
                               (Issue 2)

      Because the claims against EQT and Equitrans are based on events in

2014 and 2015, we disagree with the trial court to the extent it concluded

that these claims are barred by the statute of limitations. However, we may

affirm the trial court’s decision on any basis, and we affirm on alternate

bases here. See Mariner Chestnut, 152 A.3d at 277.

                       Count Two (Declaratory Relief)

      In Count 2, the Fords sought to rescind any leases by Oliver to EQT

and Equitrans on the ground that the Original Oliver Deed conveying the

property that he purported to lease was void ab initio. The trial court held

that the Fords were not entitled to this relief because their premise was

false: the Original Oliver Deed was not void ab initio. See Trial Ct. Op. at

11.   We agree.   As discussed above, the Fords’ factual allegations do not

support their argument that the Original Oliver Deed was void. Accordingly,

the Fords are not entitled to the derivative relief against EQT and Equitrans

that they claimed should flow from a declaration that the deed was void.

Count 2 therefore was properly dismissed.




                                    - 24 -
J-A12012-17


                          Count Eight (Negligence)

      In Count 8, the Fords claimed that EQT and Equitrans were negligent

in entering into leases with Oliver because a proper review of the chain of

title or other investigation would have disclosed that Oliver did not own the

property he purported to lease. The trial court stated that neither EQT nor

Equitrans owed a duty to the Fords, “and this was another, unstated, reason

why we properly dismissed [Count Eight] with prejudice.” Trial Ct. Op. at

10. Again, we agree with the trial court.

      Under Pennsylvania law—

         In order to hold a defendant liable for negligence, the
         plaintiff must prove the following four elements: (1) a
         legally recognized duty that the defendant conform to a
         standard of care; (2) the defendant breached that duty;
         (3) causation between the conduct and the resulting
         injury; and (4) actual damage to the plaintiff.

Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 101 (Pa. Super.

2017) (citation omitted). The Fords’ negligence claim fails to meet the first

of these requirements. They cite no Pennsylvania law recognizing a duty of

a party like EQT or Equitrans on facts similar to those at issue here, and we

see no basis for creating new legal duties on these facts.

      In their preliminary objections, EQT and Equitrans contended that the

Fords’ negligence claim failed to state a claim upon which relief could be

granted because the Fords could not establish that EQT and Equitrans owed

the Fords a duty of care. Prelim. Objs. of EQT at ¶¶ 41-45; Prelim. Objs. of

Equitrans at ¶¶ 42-46. The Fords failed to respond to this contention. See


                                    - 25 -
J-A12012-17


Fords’ Brief in Opp’n to Prelim. Objs. of EQT, Equitrans, and Dale, at III(C)

(“There may be a basis for the negligence claim against these parties”

(excess capitalization removed)).          The Fords did not identify any statute

imposing such a duty and never explained their theory as to why EQT and

Equitrans owed them any duty. See id.; Second Am. Compl. at ¶ 113-116.

The Fords’ brief to this Court still fails to provide any legal basis for a duty

by EQT or Equitrans that could give rise to negligence liability.18

       “In the negligence arena, in the absence of a relevant statute, the

determination whether to impose affirmative common-law duties as a

predicate to civil liability is a matter of law.” Alderwoods (Pennsylvania),

Inc. v. Duquesne Light Co., 106 A.3d 27, 33 n.4 (Pa. 2014) (citation

omitted).    The Supreme Court of Pennsylvania has cautioned that “unless

the   justifications   for   and   consequences     of   judicial   policymaking   are

reasonably clear with the balance of factors favorably predominating, we will

not impose new affirmative duties.”            Seebold v. Prison Health Servs.,

Inc., 57 A.3d 1232, 1245 (Pa. 2012). The following factors are relevant in

determining whether to recognize a duty: “(1) the relationship between the

parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk

imposed and foreseeability of the harm incurred; (4) the consequences of
____________________________________________
18
   At page 25 of their brief, the Fords assert: “The Fords believe and have
averred facts that will show that one or both of these [EQT and Equitrans]
had or should have had knowledge that the Fords never knowingly and
voluntarily transferred ownership of the Allegheny County Mineral Interests
to Oliver.” The brief thus relies on the Fords’ “belief” regarding the parties’
knowledge, not on a claim that EQT or Equitrans had a duty to investigate.

                                          - 26 -
J-A12012-17


imposing a duty upon the actor; and (5) the overall public interest in the

proposed solution.”     Alderwoods, 106 A.3d at 33 (citation omitted).

Recognition of a new legal duty in light of these factors requires creation of a

record that would inform the broad policy judgments that must underlie that

creation, and there must be a “concrete and substantial justification” for

such action. Seebold, 57 A.3d at 1246, 1250-51; see Newell, 154 A.3d at

832-36. Here, the Fords have made no argument for creation of a new duty

under the Alderwoods framework, and they provide no analysis of the five

factors identified by the Supreme Court as the benchmarks for this

endeavor.    In the absence of such an argument, we discern no basis for

creation of a new duty on the part of EQT or Equitrans here. We therefore

agree with the trial court that the Fords’ negligence claim against EQT and

Equitrans was properly dismissed because EQT and Equitrans owed no duty

to the Fords.

      For the foregoing reasons, we affirm the trial court’s order sustaining

Appellees’ preliminary objections and dismissing the Fords’ Second Amended

Complaint.

      Order affirmed.




                                     - 27 -
J-A12012-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2017




                          - 28 -
