J-A09030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 PEGGY HOOKER, SUBSTITUTE               :   IN THE SUPERIOR COURT OF
 ADMINISTRATRIX D.B.N., FOR THE         :        PENNSYLVANIA
 ESTATE OF EDWARD C. WAGNER             :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 MARY B. WAGNER, A/K/A MARY B.          :   No. 1243 WDA 2017
 SHAULIS, ROSE M. BLOUGH AND            :
 KENNETH E. BLOUGH, AND S&T             :
 BANK                                   :
                                        :
                                        :
 APPEAL OF: ROSE M. BLOUGH AND          :
 KENNETH E. BLOUGH                      :

                   Appeal from the Order August 1, 2017
  In the Court of Common Pleas of Westmoreland County Civil Division at
                           No(s): 5606 OF 2008


BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY DUBOW, J.:                           FILED AUGUST 14, 2018

     Appellants, Rose M. Blough and Kenneth E. Blough, appeal from the

Order entered in the Westmoreland County Court of Common Pleas granting

the Motion for Summary Judgment filed by Appellee, Peggy Hooker, Substitute

Administratrix D.B.N., for the Estate of Edward C. Wagner, and denying

Appellants’ Motion for Summary Judgment. We affirm.

     This case involves a dispute over the survivorship interest of certain real

properties in which the Decedent, Edward C. Wagner, was a co-owner. The

Deeds to the properties at issue identify the Grantees as “Edward C. Wagner
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and Mary B. Wagner, his wife,”1 and “Edward C. Wagner and Mary B. Wagner,

husband and wife.”2 After Decedent died intestate in September 2005,3 Mary

Wagner transferred the subject real estate to Appellants, her daughter and

son-in-law.

       On May 27, 2008, Tammy Wagner, then Administratrix of the estate of

Edward C. Wagner,4 filed a Complaint in Action to Quiet Title against

Appellants, alleging that, at the time of his death, (1) Decedent was still legally

married to Sandra Kelly, also known as Sandra Wagner,5 and (2) because

Decedent was not legally married to Mary B. Wagner at the time of his death,

he owned the properties at issue as a tenant in common with Mary B. Wagner.

As such, the Administratrix contended that Mary B. Wagner could only convey

one-half interest of the properties at issue after Decedent’s death, and that




____________________________________________


1 Westmoreland County Recorder of Deeds Book Vol. 3626, Page 117,
recorded November 5, 1998.

2   Westmoreland County Deed Books, Instr: 200204020022563.

3Appellants allege that Decedent died intestate, and the record is devoid of
any will for Decedent.

4On February 26, 2014, Tammy Wagner, the first Administratrix of Decedent’s
estate who initiated the Quiet Title Action, was removed and Peggy Hooker
was appointed Substituted Administratrix. R.R. at 2a.

5 Decedent and Sandra married in 1975 and separated in 1980, but never
divorced.




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J-A09030-18



the estate of Decedent owns the remaining one-half interest of the properties.

Appellants filed a Motion to Dismiss the Quiet Title Action.

       On March 18, 2015, the trial court entered an Order and Decree that

Sandra J. Wagner did not forfeit her right to an intestate share of Decedent’s

estate pursuant to Section 2106(a) of Pennsylvania’s Probate, Estates and

Fiduciaries Code,6 and is the sole intestate heir of Decedent pursuant to

Section 2102(1).7

       Appellants and Appellee          then filed Cross-Motions for Summary

Judgment in which each asked the trial court to determine whether Decedent

and Mary B. Wagner owned the properties at issue as tenants in common or

as joint tenants with a right of survivorship. On August 1, 2017, the court

entered an Order granting Appellee’s Motion for Summary Judgment and

found that Appellants hold title to the properties at issue as tenants in common

with the estate of Decedent.

       This timely appeal followed. Appellants and the trial court complied with

Pa.R.A.P. 1925.

       Appellants raise the following six issues on appeal:

____________________________________________


6 20 Pa.C.S. § 2106(a)(1) (“A spouse who, for one year or upwards previous
to the death of the other spouse, has willfully neglected or refused to perform
the duty to support the other spouse, or who for one year or upwards has
willfully and maliciously deserted the other spouse, shall have no right or
interest under this chapter in the real or personal estate of the other spouse.”)

7 20 Pa.C.S. § 2102(1) (“The intestate share of a decedent’s surviving spouse
is[, i]f there is no surviving issue or parent of the decedent, the entire intestate
estate.”)

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J-A09030-18


       1. Did the [l]ower [c]ourt err in granting [Appellees’] Motion for
       Summary Judgment?

       2. Did the [l]ower [c]ourt err in finding that it was restricted to
       the language in the Deeds in determining the outcome of the
       case?

       3. Did the language in the Deeds conveying the subject property
       to Edward C. Wagner and Mary B. Wagner coupled with the
       testimony of the attorney who drafted the October 22, 1998 Deed
       [Richard F. Flickenger], that at the time of the transaction he
       believed Edward and Mary Wagner were husband and wife,
       establish by a preponderance of the evidence in this case that it
       was the intent of Edward and Mary Wagner to take the subject
       property as tenants by the entirety instead of tenants in common?

       4. Should the [l]ower [c]ourt have permitted [Appellants] to
       present additional evidence at trial, beyond the language in the
       Deeds, as to the intention of Edward and Mary Wagner to take the
       subject property as “tenants by the entireties?”

       5. Should the [l]ower [c]ourt have permitted [ ] Appellants to
       produce witnesses and evidence at a trial in the Quiet Title Action
       to establish Edward and Mary Wagner’s intent to establish a right
       of survivorship when they acquired title to the subject premises
       by two (2) separate Deeds describing them as husband and wife?

       6. Should the [l]ower [c]ourt have denied [Appellee’s] Motion for
       Summary Judgment on the basis that there were genuine issues
       of material fact as to the necessary elements of the cause of action
       or defense that could be established by additional discovery and
       at [t]rial?

Appellants’ Brief at 7-8.8

       Standard and Scope of Review

       The Pennsylvania Supreme Court has delineated our standard of review

of an order granting summary judgment as follows:
____________________________________________


8 We remind Appellants’ counsel to adhere to Pa.R.A.P. 1925(b)(4) and expect
future filings under this rule to be more concise than Appellants’ Concise
Statement of Errors in this matter.

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J-A09030-18



      [A]n appellate court may reverse a grant of summary judgment if
      there has been an error of law or an abuse of discretion. But the
      issue as to whether there are no genuine issues as to any material
      fact presents a question of law, and therefore, on that question
      our standard of review is de novo. This means we need not defer
      to the determinations made by the lower tribunals. To the extent
      that this Court must resolve a question of law, we shall review the
      grant of summary judgment in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations

omitted).

      A trial court may grant summary judgment “only in those cases where

the record clearly demonstrates that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.” Id.

(citation omitted); see also Pa.R.C.P. No. 1035.2(1). “When considering a

motion for summary judgment, the trial court must take all facts of record and

reasonable inferences therefrom in a light most favorable to the non-moving

party.” Summers, 997 A.2d at 1159 (citation omitted). “In so doing, the

trial court must resolve all doubts as to the existence of a genuine issue of

material fact against the moving party, and, thus, may only grant summary

judgment where the right to such judgment is clear and free from all doubt.”

Id. (citation and internal quotation marks omitted).

      Issue 1 – The trial court’s grant of Summary Judgment in favor
      of Appellee

      Appellants first contend that the trial court erred as a matter of law

when it granted Appellee’s Motion for Summary Judgment because there were




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J-A09030-18



genuine issues of material fact and they required additional discovery and a

trial. We disagree.

      The determination of the right to survivorship is a question of law and

therefore our standard of review is de novo. In re Estate of Quick, 905 A.2d

471, 474 (Pa. 2006).

      The relevant rights of survivorship are defined as follows.          When

individuals own property as tenants in common, they “own and possess in

equal shares an undivided interest in the whole property.”       In re Engel's

Estate, 198 A.2d 505, 507 (Pa. 1964). In other words, “there is unity of

possession but separate and distinct titles.” In re Estate of Quick, supra,

at 490. Further, “tenants in common are presumed to hold equal shares in

the property, and this presumption stands until it is rebutted by competent

evidence.” Moore v. Miller, 910 A.2d 704, 709 (Pa. Super. 2006) (citations

omitted).

      When individuals     hold property as joint tenants with right of

survivorship, title “to that property vests equally in those persons during their

lifetimes, with sole ownership passing to the survivor at the death of the other

joint tenant.” In re Estate of Quick, supra, at 474. A joint tenancy with

right of survivorship must be created by express words or by necessary

implication, but there are no particular words that must be used in its creation.

Id. (internal citations omitted).

      By statute in Pennsylvania, survivorship in joint tenancies does not exist

unless the instrument creating the estate expressly provides that survivorship

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should exist. See Edel v. Edel, 424 A.2d 946, 948 (Pa. Super. 1981) (citing

Act of March 31, 1812, 20 P.S. § 121, renumbered as 68 P.S. § 110 (1972)).

“Since the passage of the Act of 1812, the question of survivorship has

become a matter of intent, and in order to engraft the right of survivorship on

a co-tenancy which might otherwise be a tenancy in common, the intent to do

so must be expressed with sufficient clarity to overcome the statutory

presumption that survivorship is not intended.” Id. at 948 (internal citations

omitted).

      In Teacher v. Kijurina, 76 A.2d 197 (Pa. 1950), our Supreme Court

addressed “whether the real estate acquired by deed in which the granting

clause merely named the grantees as ‘Nick Kijurina and Sarah Kijurina his

wife[,]’ when in fact they were not married, operated to convey an estate of

tenancy in common or vested an estate with incident of survivorship in the

nature of a joint tenancy.” Id. at 200. The Teacher Court held that the

language “and Sarah his wife” creates an estate by entireties, i.e., an estate

with a right of survivorship, if the grantees were in fact husband and wife.

Their intent to create such estate could not be imputed, however, where they

were not in fact married but merely living together.        Thus, a tenancy in

common without right of survivorship was created. See id. at 202.

      In Estate of Bruce, 538 A.2d 923 (Pa. Super. 1988), the court applied

the holding in Teacher to a case that is factually similar to the instant matter.

In that case, a decedent had not divorced his previous wife, and the property

deeds at issue with his second “spouse” contained only the phrase, “David A.

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J-A09030-18



Bruce and Ruth E. Bruce, his wife.” Id. at 926-27. They did not contain any

words that indicated the intent of the right of survivorship. Id. In following

Teacher, the Estate of Bruce court found:

      There are no words in the deeds to which meaning can be given
      that would enable us to conclude that the parties intended a joint
      tenancy with right of survivorship. … The deeds here lack the
      specificity necessary to create a survivorship right and the facts
      present on the record do not disclose that the intent of David
      Bruce was to do so.

Id. at 927 (internal citations omitted).

      Given the record’s undisputed facts, Teacher and Bruce are dispositive

of the instant matter. Appellants do not dispute, and the record reflects, that

Decedent and Sandra J. Wagner were lawfully married in 1975 and never

divorced. Appellants concede that Decedent and Mary B. Wagner were not

married at the time of Decedent’s passing. Moreover, Appellants concede that

as the “informant” on Decedent’s death certificate, Mary B. Wagner indicated

that Decedent was “never married,” i.e., that she did not believe that she and

Decedent were married at the time of his death. The deeds at issue contain

only the language of “husband and wife” and “his wife;” they contain no

language that either creates an inference of the Decedent’s and Mary B.

Wagner’s intent to create a right of survivorship for Mary B. Wagner or rebuts

the statutory presumption against her right of survivorship in the properties.

      For the foregoing reasons, as a matter of law and as set forth in Teacher

and Bruce, Mary B. Wagner did not have rights of survivorship in the



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J-A09030-18


properties at issue and was a tenant in common with Decedent. Accordingly,

the trial court correctly granted Appellee’s Motion for Summary Judgment and

denied Appellants’ Motion for Summary Judgment.

      Issues 2-5 – Did the trial court err by not allowing Appellants to
      introduce parol evidence to demonstrate the intent of Decedent
      and Mary B. Wagner when they acquired title of the two
      properties at issue?

      Appellants’ issues 2 through 5 all contemplate the same question:

should the trial court have allowed Appellants to introduce additional evidence

other than the deeds themselves in order to prove that Decedent and Mary B.

Wagner intended to take the disputed parcels of land as joint tenants with a

right of survivorship? Based on Pennsylvania’s well-established case law, we

agree with the trial court and find that the unambiguous language of the deeds

at issue controls and, thus, admitting parol evidence would be improper.

      As discussed supra, the language of the deed, and not the intent of the

parties, determines if the surviving deed holder retains joint tenancy with right

of survivorship. “[When t]he language of the deed is clear and unambiguous[,

...] the intent of the grantees must be gleaned solely from its language.”

Teacher, 76 A.2d at 200.      “In [the] absence of fraud, accident[,] or

mistake[,] parol evidence is inadmissible to vary or limit the scope of

a deed's express covenants and the nature and quantity of the interest

conveyed must be ascertained by the instrument itself and cannot be

orally shown.”     Moore v. Miller, 910 A.2d 704, 708 (Pa. Super. 2006)




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(emphasis in original).   Thus, “parol evidence [can] not be relied upon or

referenced to alter a conveyance to two people as tenants in common.” Id.

      Here, Appellants did not introduce any evidence of fraud, accident, or

mistake that occurred when the disputed deeds were created.         Moreover,

Appellants did not assert, and the trial court did not find, that there was

ambiguity in the deeds themselves that would properly allow for the

introduction of extrinsic evidence. Accordingly, the trial court did not err by

basing its decision solely on the deeds themselves.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




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