J. A16024/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RICHARD C. FOSTER, II                         :       IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
                    v.                        :
                                              :
RENEE F. DICKSON,                             :               No. 1553 WDA 2016
                                              :
                            Appellant         :


                Appeal from the Order, September 12, 2016,
            in the Court of Common Pleas of Washington County
                       Civil Division at No. 2015-8135


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED OCTOBER 18, 2017

      Renee F. Dickson (“Dickson”) appeals the September 12, 2016 order

of the Court of Common Pleas of Washington County that granted the

motion for judgment on the pleadings filed by Richard C. Foster, II

(“Foster”), and denied Dickson’s motion for judgment on the pleadings. The

trial court further ordered that 50 percent of the funds received for the

second pipeline (and any additional pipeline) should be paid to Foster. After

careful review, we affirm.

      The   trial   court    provided   the       following    background   information

regarding this dispute:

                  Plaintiff is Richard C. Foster, II and Defendant
            is his sister, Renee F. Dickson. Their parents are
            Richard C. Foster and Ermalee Foster, who once

* Retired Senior Judge assigned to the Superior Court.
J. A16024/17


          owned several tracts of land in Hopewell and Buffalo
          Townships. On May 21, 2012 the elder Fosters
          entered into a right of way agreement with
          MarkWest Liberty Midstream & Resources, LLC. By
          the terms of this agreement, the grantors conveyed
          to the grantee a right of way and easement along a
          specified route “to . . . install . . . one or more
          pipelines for the gathering and transportation of
          gas. . .”. At the same time, the parties to the right
          of way agreement entered into a Confidential
          Addendum, which specified the consideration for the
          installation of the original pipeline and consideration
          for additional pipeline or pipelines in the same
          right-of-way.[Footnote 1]

                 On December 27, 2012 the Fosters conveyed
          their land to [Dickson], by deed which contained the
          following language:

                       Granting however to Grantee all
                surface rights and payments for
                surface use and damages, RESERVING
                however to the grantor one-half (1/2) of
                all future payments for the placement of
                right of ways and/or pipelines across all
                the above six (6) parcels.[Footnote 2]

          Immediately after recording their deed to [Dickson],
          the Fosters recorded an Assignment, by which they
          assigned to [Foster] “all our one-half (1/2),
          undivided interest, right, title and interest [sic] in
          and to future payments for the placement of
          right of ways and/or pipelines across, through
          and under property situated in Buffalo and
          Hopewell Townships . . . as reserved by RICHARD
          C. FOSTER and ERMALEE FOSTER . . . as the
          Grantors in the deed to [Dickson], dated
          December 27, 2012. . .”

                 In 2013, MarkWest installed the initial pipeline
          across the Dickson property and paid to the elder
          Fosters the consideration for the pipeline specified in
          the Confidential Addendum.       In 2015, MarkWest
          installed in the same right of way a second pipeline,


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            and paid to [Dickson] one-half the consideration
            specified in the Confidential Addendum. MarkWest
            withheld and still holds the remaining half of the
            consideration, while it waits for an agreement of the
            parties or direction from this court as to distribution.


            [Footnote 1]: This Addendum is so confidential that
            it was not attached to the complaint, in spite of
            Pa.R.C.P. 1019(i). [Dickson] has not objected to this
            omission and there seems to be no dispute as to the
            relevant language in the Addendum.

            [Footnote 2]: On March 4, 2013, the Fosters
            delivered a corrective deed to [Dickson] because the
            earlier deed accidentally omitted a parcel. This deed
            has exactly the same reservation quoted above
            except that it refers to “all the above seven (7)
            parcels.”

Trial court opinion, 9/12/16 at 1-2.

      On December 21, 2015, Foster filed a complaint for declaratory

judgment.      In the complaint, Foster asserted that MarkWest Liberty

Midstream & Resources, LLC (“MarkWest”), paid Dickson for 50 percent of

the proceeds received for the placement of the second pipeline across

Dickson’s property but retained the other 50 percent pending resolution of

the issue as to who was entitled to the funds:      Foster or Dickson.   Foster

claimed that he was entitled to the funds as they represented 50 percent

payment for the second pipeline constructed and installed inside the

right-of-way by MarkWest based on the 2012 Right of Way agreement, the

assignment to Foster, and the Confidential Addendum.




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      On the other hand, Dickson claimed that she was entitled to the

remaining proceeds based on the December 27, 2012 deed and the March 4,

2013 corrective deed which provide that Dickson was entitled to payments

for “surface use and damages.” (See Deed, 12/27/12 at 6.)

      Foster clarified the dispute, stating,

            18.   Put simply, if the remaining MarkWest monies
                  represent payment for “surface use and
                  damages,” then [Dickson] prevails.

Complaint for declaratory judgment, 12/21/15 at 5, ¶ 18. Foster sought a

declaration that he was entitled to the money held by MarkWest as the

money represented payment for placement of right-of-ways and/or pipelines

on the properties.

      On February 5, 2016, Dickson filed an answer, new matter, and

counterclaim, and alleged that she was entitled to the remaining monies

held by MarkWest.      On March 14, 2016, Foster replied and denied the

allegations. On May 20, 2016, Foster moved for judgment on the pleadings.

On June 28, 2016, Dickson moved for judgment on the pleadings.           Each

sought the money held by MarkWest.

      By order dated September 12, 2016, the trial court granted Foster’s

motion for judgment on the pleadings and denied Dickson’s motion for

judgment on the pleadings. The trial court further ordered that 50 percent

of the proceeds for the second pipeline and any additional pipeline be paid to

Foster. The trial court reasoned:



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                     Obviously in construing the meaning of a
              document the court attempts to ascertain the intent
              of the parties.     Here, the parents conveyed an
              easement or right of way to MarkWest.              The
              consideration for the conveyance was set forth in the
              Confidential Addendum where is [sic] was described
              as $35 per foot “in lieu of any and all damages
              resulting from the construction of the aforesaid
              pipeline,” and $35 per foot for each additional
              pipeline. This in [sic] the only consideration recited,
              other than the “Ten Dollars ($10.00) in hand paid”
              set forth in the recorded right of way agreement. In
              other words, [Dickson] argues that all of the money
              paid by Mark West is for damages except for the
              $10, and if so, it follows that the elder Fosters
              intended for their son to get nothing. Instead, we
              believe the much more logical reading of these
              instruments instructs us to award the withheld
              one-half to [Foster]. If all of the money paid by
              MarkWest was damages to the surface, why even
              reserve anything in the grant to [Dickson] and why
              assign that reservation to [Foster]? It is possible
              that MarkWest, or even some other pipeline
              company, could inflict damages to the surface such
              as by negligently departing from the agreed upon
              easement. Such issues might support a claim for
              damages by [Dickson] which would be of no concern
              to [Foster].

                     The reservation provides that the Grantor (the
              elder Fosters)[] or their assigns shall receive
              one-half “of all future payments for the placement of
              . . . pipeline across all of the above . . . parcels.”
              Our understanding is that Mark West placed another
              pipeline across these lands and paid for that
              placement. One-half of that amount should go to
              [Foster].

Id. at 3-4.

      Dickson appealed to this court. On October 14, 2016, the trial court

ordered Dickson to file a statement of errors complained of on appeal,



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pursuant to Pa.R.A.P. 1925(b). On December 6, 2016, the trial court issued

an order that the “statement of issues” was adequately addressed in its

memorandum opinion dated September 12, 2016.

      Before this court, Dickson contends that the trial court erred when it

granted Foster’s motion for judgment on the pleadings.

                  Entry of judgment on the pleadings is
            permitted under Pennsylvania Rule of Civil Procedure
            1034, which provides that “after the pleadings are
            closed, but within such time as not to unreasonably
            delay trial, any party may move for judgment on the
            pleadings.”     Pa.R.C.P. 1034(a).     A motion for
            judgment on the pleadings is similar to a demurrer.
            It may be entered when there are no disputed issues
            of fact and the moving party is entitled to judgment
            as a matter of law.

                   Appellate review of an order granting a motion
            for judgment on the pleadings is plenary.        The
            appellate court will apply the same standard
            employed by the trial court. A trial court must
            confine its consideration to the pleadings and
            relevant documents. The court must accept as true
            all well pleaded statements of fact, admissions, and
            any documents properly attached to the pleadings
            presented by the party against whom the motion is
            filed, considering only those facts which were
            specifically admitted.

                 We will affirm the grant of such a motion only
            when the moving party’s right to succeed is certain
            and the case is so free from doubt that the trial
            would clearly be a fruitless exercise.

Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa.Super. 2012)

(citations omitted).




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      Dickson argues that the trial court misconstrued the 2012 deed and

that she owns a 50 percent interest in the payment for the placement of

pipelines and 100 percent of the surface rights and payments for surface use

and damages. Dickson asserts that either she has already been paid for her

100 percent interest in the payment for surface use of damages and she is

owed for her 50 percent interest in the payment for the placement of the

pipeline or she has been paid for her 50 percent interest in the placement of

the pipeline and is owed for her 100 percent interest in the payment for

surface use and damages. Before the trial court, Dickson argued that the

escrowed monies represented payment for surface use and damages. She

believes that under the Confidential Addendum,1 the $35 per foot that

MarkWest is paying for the construction of a second pipeline goes completely

for surface use and damages to the property which is used as a farm.

      In contrast, Foster argues that, under the 2012 deed, the Fosters

unambiguously conveyed the properties to Dickson, including all surface

rights and payments for surface use and damages. In the same deed, the

Fosters reserved one-half of their right, title, and interest in and to future



1
   Although both parties referred to the Confidential Addendum before the
trial court and Foster attaches it to his brief, the Confidential Addendum was
not attached to any pleading and was not part of the record before the trial
court. While this court can consider the references to the Confidential
Addendum contained in the record, it cannot review the Confidential
Addendum itself. “It is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not a part of the record in the case.”
Smith v. Smith, 637 A.2d 622, 623 (Pa.Super. 1993).


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payments for the placement of rights-of-way and/or pipelines across,

through, and under the properties owned by Dickson.           The Fosters then

assigned this interest to Foster.     Foster concludes that under the plain

meaning of the deed and assignment, Dickson and Foster would each

receive 50 percent of the monies paid, as each is entitled to a 50 percent

interest in payments made for the placement of pipelines. In other words,

Foster reaches the same conclusion as the trial court.

         As this court stated in Dieter v. Fidelcor, Inc., 657 A.2d 27

(Pa.Super. 1995), when interpreting a contract, “a court must be guided by

the paramount goal of contract interpretation: ‘to ascertain and give effect

to the parties’ intent.’” Id. at at 29 (citation omitted). That intent must be

ascertained from the language of the written agreement.          Id.   “‘In the

absence of technical terminology, we give the words used in the agreement

their plain and ordinary meaning.’” Id. (citation omitted).

         Additionally, we note that “[w]hen determining whether a contract is

ambiguous, a court must view the contract as a whole and not its discrete

units.     Halpin v. LaSalle Univ., 639 A.2d 37, 39 (Pa.Super. 1994),

allocatur denied, 668 A.2d 1133 (Pa. 1995). Clauses seemingly in conflict

should be construed, if possible, as consistent with one another. Flatley by

Flatley v. Penman, 632 A.2d 1342, 1344 (Pa.Super. 1993), allocatur

denied, 641 A.2d 586 (Pa. 1994).




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      This court agrees with the trial court’s interpretation of the deed. The

deed explicitly states that the Fosters reserved 50 percent of the amount

received for the placement of pipelines on or across the parcels in the future.

The assignment then granted the Fosters’ interest to Foster.         In 2015,

MarkWest built another pipeline. By the plain meaning of the language in

the deed, the Fosters and Dickson were to split equally the payment from

MarkWest for construction of a new pipeline. By the clear language in the

assignment, any interest that would go to the Fosters would now go to

Foster. As a result, Foster was entitled to 50 percent of the total amount as

the trial court determined. Further, as the trial court stated, if Dickson had

a claim for some sort of damage to her property, she could make that claim

against MarkWest or a subsequent entity that placed another pipeline on her

property. The trial court did not err.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/28/2017




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