J-S45012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIMBER RIVER DEVELOPMENT                       IN THE SUPERIOR COURT OF
CORPORATION,                                         PENNSYLVANIA

                         Appellant

                    v.

JOHN A. MCANINCH,

                         Appellee                  No. 1207 WDA 2015


                 Appeal from the Order Entered July 16, 2015
              In the Court of Common Pleas of Jefferson County
                    Civil Division at No(s): 1001-2009 CD


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 16, 2016

     Appellant, Timber River Development Corporation, appeals from the

order entered on July 16, 2015 entering judgment in favor of John A.

McAninch (McAninch) with regard to a 30-acre tract of land located in

Jefferson County, Pennsylvania. Upon review, we affirm.

     The trial court summarized the pertinent facts of this case as follows:

        In a deed dated March 13, 1906, Frank and Ester Milton
        conveyed to F.J. Jerome the 30 acres of property that is
        now the subject of [this appeal]. On June 13, 1927, F.J.
        Jerome divided the 30-acre parcel into two tracts, one
        containing 11.221 acres and the other containing 18.779
        acres. The former he deeded to The New York Central
        Railroad Co. and the latter to Savings & Trust Company of
        Indiana (“S&T”).     The New York Central Railroad Co.
        subsequently merged into Consolidated Rail Corp.
        (“Consolidated”), which thus became the owner of the
        11.221-acre tract. S&T conveyed the other 18.779 acres to
        Consolidated by deed dated April 6, 1982, thereby giving
        Consolidated the full 30 acres once owned by Frank Milton.

*Retired Senior Judge assigned to the Superior Court.
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       An undated railroad valuation map, designated as
       V.228A/29, depicts the 30 acres as two separate parcels
       belonging to Frank Milton, but with the acreage undivided.
       The parties stipulated to its authenticity as the valuation
       map referenced in [Appellant’s] chain of title. Reference to
       that and other valuation maps first appeared in a 1991 deed
       whereby Consolidated conveyed multiple parcels of land to
       Mountain Laurel Railroad Co. Purporting to transfer, inter
       alia, “ALL as generally shown on the Grantor’s Valuation
       Maps V228A/18 through 228A/30 inclusive,” Consolidated
       included the subject 30 acres in that conveyance.

       Subsequent deeds between Mountain Laurel and Pittsburgh
       [&] Shawmut Railroad Co., Pittsburgh & Shawmut and
       Kovalchick Corp., and Kovalchick Corp. and [Appellant]
       either explicitly or implicitly incorporated the parcels
       represented in valuation map V.228A/29.          As well as
       describing the property by reference to the valuation maps,
       the deed from Consolidated to Mountain Laurel referred to
       the conveyance as “BEING a part or portion of the same
       premises which … [the] Trustees of the Property of Penn
       Central Transportation Company, Debtor, by Conveyance
       Document No. PC-CRC-RP-185, dated March 30, 1976 …
       granted and conveyed unto Consolidated Rail Corporation.”
       S&T was still the title owner of 18.779 of the subject 30
       acres on March 30, 1976. Except by reference to [valuation
       map V.228A/29], [Appellant’s] chain of title does not denote
       a 30-acre tract. Nor does it contain reference to 18.779 or
       11.221 acres.

       By deed dated September 22, 1988, Samuel and Ruth
       Serian acquired the aforementioned 18.779 acres pursuant
       to their purchase at a tax sale held by the Tax Claim Bureau
       of Jefferson County. Listed as containing 18.78 acres, more
       or less, and identified as tax parcel 32-342-0103, its
       designated boundaries were “[o]n the North by Rail Road
       Tracks; [o]n the East by P. McGiffin; [o]n the South by
       Redbank Creek; [and] [o]n the West by J. MacAninch and
       GRC Mining.” Consolidated received notice of the tax sale,
       as well as a letter apprising it of its right to claim the sum of
       $4,293.45 within 3 years of the date of the sale.

       Using the same description contained in the deed by which
       they received the property, Samuel and Ruth Serian

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       granted it to Stacey Shively by deed dated April 15, 1993.
       Ms. Shively re-conveyed it to William Simpson Lumber Co.
       (“Simpson”) 6 days later and Simpson sold it to McAninch
       and Robin Muller [sic] via quit-claim deed less than two
       months after that. The deed to McAninch and Mullen,
       contained the following expanded description of the
       property:

          BEGINNING at a point in the center of Red Bank
          Creek being the Northeast corner of the premises
          hereby conveyed and the Southeast corner of lands
          formerly of Ella E. Furgeson now John A. McAninch
          and Robin A. Mullen; thence in a Southerly, Westerly
          and Northerly direction in a semi-circular line along
          Red Bank Creek to a point in the intersection of Red
          Bank Creek and line of land formerly of Samuel
          Lucas now John A. McAninch and Robin A. Mullen;
          thence Easterly along land formerly of Samuel Lucas
          now John A. McAninch and Robin A. Mullen and land
          formerly of Joseph McGiffin now John A. McAninch
          and Robin A. Mullen, to a point the place beginning;
          CONTAINING 30 Acres, more or less.

          The Southern portion of the above premises was
          conveyed by F.J. Jerome et ux. to the New York
          Central Railroad Co. by merger later Consolidated
          Rail Corporation as 11.221 Acres by deed dated June
          13, 1927 and recorded in the Office of the Recorder
          of Deeds for Jefferson County, Pennsylvania, in Deed
          Book 186, page 471. The Northern portion of the
          premises was conveyed by Savings and Trust
          Company of Pennsylvania, to Consolidated Rail
          Corporation, by deed dated April 6, 1982 as 18.779
          Acres and recorded as aforesaid in Deed Book 481,
          page 743.      The Tax Claim Bureau of Jefferson
          County, Pennsylvania, conveyed the premises at
          18.7 Acres and property of Consolidated Rail
          Corporation by Tax Claim Deed to Samuel Serian and
          Ruth Serian, his wife, dated December 29, 1988 and
          recorded as aforesaid in Deed Book 529, page 730,
          for delinquent 1986 taxes. Samuel Serian et ux.
          conveyed the premises to Stacey Shively, by deed
          dated April 15, 1993 and recorded as aforesaid in
          Record Book 3, page 487. Stacey Shively conveyed

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              the premises as 18.78 Acres to William Simpson Co.,
              Inc., by deed dated April 21, 1993 and recorded as
              aforesaid in Record Book 4, page 371.

         The final deed in [McAninch’s] chain of title purported to
         transfer the entire 30 acres solely to [him].

         Since 1993, McAninch has been in possession of and paid
         taxes on the subject property. Current Tax Claim records
         indicate that the subject property was first assessed as
         18.78 acres in 1988 but was later changed to 30 acres, the
         “18.78” having been red-lined and replaced with “30.” The
         assessment card did not indicate when or why the change
         was made, and the current director could not testify as to
         the former director’s policy for allowing such changes. That
         was the only record the director produced with respect to
         the subject property; she could not locate any independent
         record, including an exempt card, relating to the 11.221
         acres first conveyed to The New York Railroad Co. She
         testified that current records only went back to 1957. Tax
         parcel 32-342-0103 was eventually consolidated into tax
         parcel 32-342-0102, which is comprised of 77.69 acres
         assessed to McAninch.        On March 6, 2007, McAninch
         entered into an oil and gas lease authorizing … drilling
         operations for the production of oil and gas on all of tax
         parcel 32-342-0102.

Trial Court Findings of Fact 1/12/15, at 1-3 (brackets in the original,

footnote incorporated, and bullet-point format and record citations omitted).

       In September 2009, Appellant filed an action to quiet title to several

parcels of land, including the 30-acre plot currently at issue as described

more fully above.1       On June 1, 2015, the trial court held a bench trial on

Appellant’s action to quiet title to the disputed 30-acre plot.   On June 12,
____________________________________________


1
  On January 13, 2015, the trial court granted Appellant’s motion for partial
summary judgment with respect to other parcels of land as set forth in
Appellant’s complaint. That determination is not in dispute.



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2015, the trial court entered a verdict for McAninch.           On June 22, 2015,

Appellant filed a motion for post-trial relief. The trial court denied relief by

order entered on June 24, 2015.                On July 16, 2015, Appellant filed a

praecipe for the entry of final judgment. This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         I.     Whether the trial court erred and abused its discretion
                in finding the evidence presented by [Appellant] did
                not sufficiently set forth, by a preponderance of the
                evidence, prima facie title to the 11.221 acre portion
                of the 30-acre tract at issue in Count I of [Appellant’s]
                complaint.

         II.    Whether the trial court erred, and committed an error
                of law, in quieting title in favor of the Appellee, John
                McAninch, when McAninch failed to present evidence
                of superior title to that presented by [Appellant].

Appellant’s Brief at 4.

       Both of Appellant’s issues focus on the trial court’s decision to quiet

title to a specific parcel of land in favor of McAninch and, therefore, we will

examine them together. Primarily, Appellant notes that the subject 30-acres

of property was “divided into two separate parcels in 1927, an 11.221 acre

parcel and an 18.79 acre parcel.” Id. at 13. “While initially claiming title to
____________________________________________


2
    On August 3, 2015, Appellant filed a notice of appeal. On August 14,
2015, the trial court entered an order pursuant to Pa.R.A.P. 1925(b)
directing Appellant to file a concise statement of errors complained of on
appeal. Appellant complied timely on September 2, 2015. On September 3,
2015, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) relying
on its prior rationale as expressed in its findings of fact, entered on January
12, 2015, and its denial of Appellant’s motion for post-trial relief, filed on
June 24, 2015.



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the 18.79 acre portion of the original 30 acre tract, [Appellant] has conceded

that the 18.79 parcel traveled a different chain of title from 1927, ultimately

being sold by the Tax Claim Bureau of Jefferson County as the property of

Consolidated Railroad predecessor[-]in[-]title to [] McAninch.” Id. at 13-14.

      Appellant claims, however, that the trial court erred by determining

Appellant did not establish prima facie title to the 11.221 acre parcel by a

preponderance of the evidence.     Id. at 15.    Appellant avers it presented

evidence of “record chain of title to the 11.221 acres beginning in 1927 as

said parcel was described as Parcel 9 on [] Railroad Valuation Maps, and

incorporated into the deeds of record by reference thereto.”        Id. at 13.

Appellant maintains that the trial court’s determination that the railroad

valuation map was not credible evidence was contrary to its prior decision

granting Appellant’s partial motion for summary judgment with regard to the

other parcels at issue.   Id. at 19.   Appellant contends that Consolidated

conveyed the 11.221-acre parcel to Mountain Laurel Railroad, Mountain

Laurel Railroad then conveyed the property to Kovalchick, and Kovalchick

ultimately conveyed the property to Appellant. Id. at 16-17.

      In its second issue presented, Appellant claims “[t]he trial court’s

decision to enter a verdict in favor of McAninch could not be supported by

competent evidence unless McAninch entered evidence of a direct line of title

that was superior to that offered by [Appellant].”     Id. at 22.    It further

argues that “[o]ther than his 1993 deed that conveyed a revised, expanded


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description of the 18.788 acres, McAninch has no record claim of title to the

11.211 acre panel.” Id.

      “[W]hen reviewing a trial court's decision in a quiet title action, an

appellate court must determine whether the findings of fact that led to the

legal conclusion of abandonment of a property interest were supported by

competent evidence.” Thompson v. Maryland and Pennsylvania R.R.

Preservation Soc., 612 A.2d 450, 452, (Pa. Super. 1992) (internal citation

omitted). “Ordinarily, an appellate court will not reverse a determination of

the trial court in a quiet title action absent an error of law or capricious

disregard of the evidence.”       Id.    Moreover, “[i]t is not the role of an

appellate court to pass on the credibility of witnesses; hence we will not

substitute our judgment for that of the fact[-]finder.”           Agostinelli v.

Edwards, 98 A.3d 695, 704 (Pa. Super. 2014).

      The burden of proof in a quiet title action is upon the plaintiff.

Montrenes v. Montrenes, 613 A.2d 983, 984 (Pa. Super. 1986).                   “To

prevail in an action to quiet title, the plaintiff must demonstrate title by a fair

preponderance of the evidence.”         Poffenberger v. Goldstein, 776 A.2d

1037, 1041 (Pa. Cmwlth. 2001). This Court previously determined:

        This rule places upon the plaintiff the burden of proving a
        prima facie title, which proof is sufficient until a better title
        is shown in the adverse party. […] Until and unless the
        plaintiff has made a prima facie case by showing title
        sufficient upon which to base a right of recovery, the
        defendant is not required to offer evidence of his title. If it is
        admitted or shown that both parties derive their title from a
        common source, neither party need prove anything

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       regarding the prior title to that property. Further, if the
       plaintiff traces title to himself from the common source, he
       thereby makes out a prima facie case in his favor, calling
       upon the defendant to prove his alleged title if he wishes to
       defeat the plaintiff's apparent ownership.

Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984).

     In quieting title, the trial court determined:

       Neither party appears to possess a better claim of title to
       the 11.221 acres [in dispute].

       The Tax Claim Bureau purported to convey parcel 32-342-
       0103 as 18.78 acres and originally assessed it that way.
       Without explanation, that assessment later changed to 30
       acres and never reverted back. Current tax records thus
       show that McAninch owns all 30 acres, not just 18.78 of
       them. His deeds – the 1993 deed and the 1996 deed –
       likewise recited 30 acres, as well as a detailed description of
       the property not theretofore evidenced in the preceding
       deeds. That evidence did not establish conclusively that
       McAninch in fact owned the additional 11.221 acres, though,
       as it offered no indication as to how they got added to the
       assessment or the deeds.

       [Appellant’s] evidence, on the other hand, was not any
       stronger.

       Once again, the first distinct reference to the 30 acres
       appeared in the 1991 deed from Consolidated to Mountain
       Laurel. As the [trial court] indicated, though, that evidence
       was demonstrably faulty. Not only had the 1988 tax sale
       clearly divested Consolidated of 18.779 of those acres,
       thereby making it impossible for [Consolidated] to transfer
       [the acreage] to Mountain Laurel, but the conveyance was
       also suspicious insofar as the deed referred to the 30 acres
       “as part or portion of the same premises which … [the]
       Trustees of the Property of Penn Central Transportation
       Company, Debtor, by Conveyance Document No. PC-CRC-
       RP-185, dated March 30, 1976 … granted and conveyed
       unto Consolidated Rail Corporation” when Consolidated did
       not actually acquire S&T’s 18.779 acres until 1982. That
       being the case, the [trial court was] unwilling to accept the

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        1991 deed and accompanying valuation map as credible
        evidence that Consolidated in fact conveyed the other
        11.221 acres to Mountain Laurel.

        Outside of the valuation map, [Appellant did not provide
        evidence or] reference to the specific acreage here at issue.
        Absent the valuation map, therefore, the record was devoid
        of evidence that any portion of the 30 acres once belonging
        to Frank Milton ever became part of [Appellant’s] chain of
        title. Accordingly, while McAninch’s claim to the 11.221
        acres is not as strong as his claim to the 18.779 acres,
        [Appellant’s] failure to establish a stronger title precludes a
        verdict in its favor.

Findings of Fact, 6/12/15, at 5-6 (emphasis added).

      Moreover, in its order denying Appellant’s motion for post-trial relief,

the trial court further stated:

        Although [the trial court] relied on the valuation map in
        granting partial summary judgment in [Appellant’s] favor, it
        was not the map alone that attested to [Appellant’s]
        ownership; it was merely corroborative of and coincided
        with other evidence of title. Conversely, [valuation map]
        V228A/29, as [the trial court] explained in its trial opinion,
        was the only evidence suggesting that [Appellant] had
        acquired Frank Milton’s 30 acres. Whereas the record was
        clear that Consolidated in fact did not own at least 18.779
        of those acres, [the trial court] was unwilling to accept the
        conveyance as proof that it owned and could convey the
        remaining 11.221 acres in the absence of other,
        corroborative evidence.     Ultimately, therefore, [the trial
        court] concluded that [Appellant] did not establish a prima
        facie title, which meant that the parcel remained in
        [McAninch’s] possession as a matter of law.

Order of Court, 3/24/15, at 1.

      Upon review, we discern no error of law or capricious disregard of the

evidence. Here, Appellant relied upon a railroad valuation map showing the

two divided parcels as a single 30-acre tract of property coupled with a 1991

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deed purporting to convey the subject 18.779 acres from Consolidated to

Mountain Laurel.        However, as the trial court noted, Consolidated was

divested of that tract of land in a tax sale in 1988. As such, the trial court

found the subsequent 1991 deed from Consolidated to Mountain Laurel was

erroneous on its face because it purported to convey all 30 acres of the

property without mention of the two parsed parcels. Thus, the trial court did

not find the later 1991 deed from Consolidated to Mountain Laurel credible

and, therefore, Appellant failed to produce evidence that the disputed

property was conveyed to Appellant’s predecessors.3 We will not usurp that

credibility determination.       Thus, the only other evidence before the trial

court was the railroad valuation map as referenced by the 1991 deed.

However, this evidence was not enough to establish a prima facie case that

Appellant had chain of title to the 11.221 acres.      As the trial court noted,

the 1991 valuation map showed two parcels totaling 30 acres.          However,

there is no dispute that the 30-acres were divided and then later rejoined.

Thus, the trial court determined that a valuation map showing a single tract

of land in 1991 was simply not corroborated.             We discern no error.

Accordingly, we agree that Appellant failed to establish a prima facie case by



____________________________________________


3
   In granting partial summary judgment on other property in dispute, the
trial court found other deeds relevant. However, those deeds are not
applicable in this line of conveyances.



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showing title sufficient upon which to base a right of recovery and Appellant

is not entitled to relief.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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