J-S38019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KENNETH G. KRASINSKY AND RONALD                  IN THE SUPERIOR COURT OF
G. KRASINSKY                                           PENNSYLVANIA

                          Appellants

                    v.

IRENE CHURA

                          Appellee                   No. 2207 MDA 2014


          Appeal from the Judgment Entered November 25, 2014
            In the Court of Common Pleas of Schuylkill County
                    Civil Division at No: S-2574-2011


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 09, 2015

      Appellants, Kenneth G. Krasinsky and Ronald G. Krasinsky, appeal

from the November 25, 2014 judgment entered in favor of Appellee Irene

Chura. We affirm.

      On September 2, 1999 Appellants purchased real property from

Appellee and her late husband, William J. Chura. According to the special

warranty deed (“the 1999 Deed”) that is the subject of this litigation,

Appellants received 111.37 acres of real property (“the Property”) located in

North Union Township, Schuylkill County, Pennsylvania. The purchase price

was $120,000.00.         Shortly after this transaction Appellants’ neighbors,

Angelo J. Tolotti, Jr. and Nancy M. Tolotti, posted “no trespassing” signs on a

portion of the Property. On October 2, 2010, Appellants filed an ejectment
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action against the Tolottis (the “Tolotti Action”).      The Tolotti Action

proceeded to a bench trial at which Appellants and the Tolottis presented

competing claims to ownership of a 42.47-acre portion of the Property. On

January 26, 2011, the trial court entered judgment in favor of the Tolottis.

Thus, Appellants acquired only 68.9 acres of property under the 1999 Deed.

       Appellants filed this action against Appellee on December 6, 2011

asserting causes of action for breach of contract, misrepresentation, and

fraud. Appellants sought to recoup the value of the additional 42.47 acres

they believed they purchased from Appellee and her late husband in 1999 as

well as attorneys’ fees. Appellee filed an answer and new matter on January

31, 2012. Appellants filed a reply to the new matter on February 21, 2012.

In a subsequent stipulation of counsel, dated March 12, 2012, the parties

stipulated that Appellee’s answer and new matter would include the

affirmative defense of statute of limitations.1

       Appellants filed a motion for summary judgment on June 10, 2013.

Appellee answered the motion on July 3, 2013, and the trial court denied

Appellants’ motion on August 5, 2013. Appellee filed a motion for summary

judgment on December 2, 2013, asserting, in part, that the statute of
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1
   In light of our analysis in the main text, we need not address Appellee’s
argument under the statutes of limitations applicable to contract and tort
actions. The deed at issue in this case is a written instrument filed under
seal and therefore subject to the twenty-year limitations period set forth in
42 Pa.C.S.A. § 5529(b); see Meadow Run/Mountain Lake Park Ass’n v.
Bantell, 985 A.2d 989, 992 (Pa. Cmwlth. 2009).



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limitations barred Appellants’ causes of action.        Appellants answered the

motion on December 27, 2013, and the trial court denied the motion on

March 17, 2014. The parties proceeded to a bench trial on October 1, 2014,

and on October 28, 2014, the trial court returned a verdict and entered

judgment in favor of Appellee.            Appellants filed a post-trial motion on

November 7, 2014 requesting the trial court to enter a judgment in their

favor or order a new trial.2         Appellee answered the post-trial motion on

November 20, 2014.            The trial court denied the post-trial motion on

November 25, 2014. This timely appeal followed.

       The heart of this dispute, according to Appellants, is Appellee’s failure

to deliver the 111.37 acres described in the 1999 deed. The Chura family,

acquired the Property pursuant to a deed recorded in 1968 (“the 1968

Deed”). The 1968 Deed described the property as containing 80.37 acres.3

The grantor on the 1968 Deed, Garth W. Felter, filed an affidavit (“the Felter
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2
  Rule 227.1 of the Rules of Civil Procedure permits litigants to file post-trial
motions within ten days of the entry of verdict, as Appellants did here.
Pa.R.C.P. 227.1(c)(1).      The trial court’s October 28, 2014 order,
simultaneously entering a verdict and judgment, is procedurally unusual.
Since Appellants filed a timely post-trial motion, we will treat the October
28, 2014 order as the verdict and the November 25, 2014 order as the
appealable final order, as it rendered the trial court’s premature entry of
judgment final and ripe for appeal.
3
  For reasons not relevant to this appeal, the trial court in the Tolotti Action
found that the 80.37 acres specified in the 1968 deed was inaccurate. As
noted in the main text, the result in the Tolotti Action left Appellants with
only 68.9 acres, not the 80.37 acres specified in the 1968 deed and several
subsequent deeds.



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affidavit”) in this action indicating that the Chura family requested a

corrective deed reflecting a boundary line that would increase the size of the

Property from 80.37 to 111.37 acres. Felter refused to execute a corrective

deed, believing the boundary described in the 1968 Deed was correct. In

response to Appellants’ requests for admission, Appellee admitted the facts

averred in the Felter affidavit.

       William J. Chura initially acquired a partial interest in the Property by

the execution of a deed in 1976 (“the 1976 Deed”). According to the 1976

Deed, the Property consisted of 80.37 acres.      In 1989 Appellee, Willam J.

Chura, and two other members of the Chura family executed a corrective

deed (“the Corrective Deed”), based upon a survey prepared by Stanley J.

Gorski,4 (the Gorski Survey). According to the Gorski Survey, the Property

consisted of 111.37 acres, more or less. Appellee’s late husband provided

the Gorski survey to Appellants during the negotiation of the 1999 real

estate transaction.      The 1999 Deed references all of the above-described

deeds and several others.

       Based on these facts, Appellants alleged Appellee breached a contract

to sell 111.37 acres of real estate for $120,000.00. Appellants also alleged

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4
    On February 9, 2012, Appellee filed a complaint joining Gorski as an
additional defendant. On September 19, 2012, Gorski filed a motion for
summary judgment and neither party responded. The trial court granted the
motion on December 12, 2012. Appellee did not pursue the matter any
further.



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that Appellee and William J. Chura committed fraud by purportedly selling

property they knew they did not own. Finally, Appellants alleged a cause of

action for misrepresentation based upon representations from Appellee and

William J. Chura that the Property consisted of 111.37 acres.

      We review an order denying a motion for judgment notwithstanding

the verdict and/or new trial as follows:

            A JNOV can be entered upon two bases: (1) where the
      movant is entitled to judgment as a matter of law; and/or, (2)
      the evidence was such that no two reasonable minds could
      disagree that the verdict should have been rendered for the
      movant. When reviewing a trial court’s denial of a motion for
      JNOV, we must consider all of the evidence admitted to decide if
      there was sufficient competent evidence to sustain the verdict. .
      . . Concerning any questions of law, our scope of review is
      plenary. Concerning questions of credibility and weight accorded
      the evidence at trial, we will not substitute our judgment for that
      of the finder of fact. . . . A JNOV should be entered only in a
      clear case.

              Our review of the trial court’s denial of a new trial is
      limited to determining whether the trial court acted capriciously,
      abused its discretion, or committed an error of law that
      controlled the outcome of the case.               In making this
      determination, we must consider whether, viewing the evidence
      in the light most favorable to the verdict winner, a new trial
      would produce a different verdict. Consequently, if there is any
      support in the record for the trial court’s decision to deny a new
      trial, that decision must be affirmed.

J.W.S. Delavau, Inc. v. E. Am. Transp. & Warehousing, Inc., 810 A.2d

672, 679-80 (Pa. Super. 2002), appeal denied, 827 A.2d 430 (Pa. 2003).

      The trial court held that Appellants’ breach of contract, fraud and

misrepresentation causes of action merge into the deed.         The trial court

cited Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650 (Pa. Super.


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1999), in which this Court explained: “The doctrine of merger ‘holds that all

warranties and representations in connection with a sale or other transaction

made prior to or contemporaneous with a deed are merged into the deed

and that unless therein expressly provided for, they are forever lost.’” Id. at

661 n.8 (quoting Elderkin v. Gaster, 288 A.2d 771, 774 n.11 (Pa. 1972)).

The trial court found, based on the law of fact pleading in Pennsylvania, that

Appellants’ complaint sufficiently set forth a cause of action for breach of the

special warranty in the 1999 deed.             Trial Court Opinion, 3/17/14, at 4-5

(citing Pa.R.C.P. 1019(a)); Grossman v. Barke, 868 A.2d 561, 568-69 (Pa.

Super. 2005), appeal denied, 889 A.2d 89 (Pa. 2005)). Appellants do not

develop any argument to dispute the trial court’s application of this merger

doctrine.

       The covenant of warranty is one of six covenants of title that

traditionally accompany a transfer of real estate.5         Juniata Valley Bank,

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5
    The Juniata Valley Bank Court described the six covenants as follows:

             The covenant of seisin is the grantor’s promise that he
       owns the property interest he purports to convey to the grantee.
       The covenant of the right to convey is the grantor’s promise that
       he has the power and authority to transfer the interest to the
       grantee. The covenant against encumbrances protects against
       the existence of physical or title encumbrances other than those
       acknowledged in the deed.         Physical encumbrances include
       encroachments or easements.          Title encumbrances include
       mortgages, leases, liens and unpaid property taxes. By the
       covenant of warranty, the grantor promises to compensate the
       grantee for any monetary losses occasioned by the grantor’s
(Footnote Continued Next Page)


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736 A.2d at 661 n.7.          The covenant of warranty has three variations, a

general warranty, a special warranty and a quitclaim deed. Id. The 1999

Deed is special warranty deed. As such, it requires the grantor to “warrant

and defend the [transferred] property, and every part thereof, unto the said

grantee […] against the lawful claims of the grantor or grantors, and all

persons claiming by, through or under him or them.”               21 P.S. § 6

(emphasis added).6 In other words, the grantor of a special warranty deed

“agrees to defend the title to the property against any adverse claimant with

a superior interest in the land claiming through the grantor.” Leh, 331 A.2d

at 762.    This occurs, for example, if the grantee can show the grantor

                       _______________________
(Footnote Continued)

      failure to convey the title promised in the deed. There are three
      variations to the covenant of warranty, and property may be
      conveyed through a special warranty, general warranty or
      quitclaim deed.     The covenant of quiet enjoyment is the
      grantor’s promise that the grantee’s possession will not be
      disturbed by any other claimant with a superior lawful title.
      Finally, the covenant of further assurances requires the seller to
      take affirmative steps to cure any defects in the grantor’s title.

Juniata Valley Bank, 736 A.2d at 661 n.7 (emphasis added). We confine
our analysis to the covenant of warranty, as Appellants have not raised any
issues under the other five covenants of title.
6
   A general warranty, in contrast, requires the grantor to defend the grantee
against the “lawful claims and demands of all persons whomsoever.” 21
P.S. § 5. In a quitclaim deed, the grantor simply releases any right or
interest he has in the subject property. 21 P.S. § 7; Greek Catholic
Congregation of Borough of Olyphant v. Plummer, 12 A.2d 435, 437
(Pa. 1940) (“Quit-claim deeds, long known to the law, are used when a
party wishes to sell or otherwise convey an interest he may think he has in
land but does not wish to warrant his title.”).



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“caused or allowed a lien or encumbrance to burden the land at the time of

transfer.” Id.

      Thus, Appellee offered, and Appellants accepted, a deed whereby

Appellee and William J. Chura, as grantors, promised to defend Appellees

only against the lawful claims of persons claiming through Appellee and

William J. Chura.   The 1999 Deed expressly referenced prior deeds in the

Chura’s chain of title, including the 1989 Corrective Deed, the 1976 Deed

and the 1968 Deed.

      The Tolotti Action involved competing claims of title to a portion of the

Property.   As set forth above, Appellee relied on the Gorski Survey in

executing the 1989 Corrective Deed, through which Appellee, her late

husband and several other members of the Chura family claimed title to

111.37 acres rather than the 80.37 acres identified in prior deeds in the

Chura family’s chain of title. The Tolottis relied on their own chain of title.

The Tolottis ultimately proved the Gorski Survey was inaccurate.           The

Tolottis therefore did not assert a superior claim of title “by and through”

Appellee. Rather, the Tolottis claim to the disputed portion of the Property

was independent of, and in direct contradiction to, Appellee’s claim under

the Corrective Deed.    Under these circumstances, the covenant of special

warranty was inapplicable because the Tolottis did not assert a claim by and

through Appellee and her late husband as grantors.




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      Given the foregoing analysis, the trial court did not err in refusing to

enter judgment in Appellants’ favor, nor did the court err in refusing to grant

a new trial. Appellants’ arguments to the contrary simply do not recognize

the effect of the covenant of special warranty set forth in the 1999 Deed.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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