J-A14041-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

RONALD L. WHISPELL,                      :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                Appellant                :
                                         :
         v.                              :
                                         :
BUCKHORN VOLUNTEER COMMUNITY             :
FIRE CO. NO. 1, A/K/A BUCKHORN           :
COMMUNITY VOLUNTEER FIRE CO.             :
NO. 1,                                   :
                                         :
                Appellee                 :        No. 1629 MDA 2013

           Appeal from the Judgment entered September 5, 2013
             in the Court of Common Pleas of Columbia County
                     Civil Division at No(s): 2008-CV-5

BEFORE: FORD ELLIOTT, P.J.E, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED AUGUST 11, 2014

      Ronald L. Whispell (Whispell) appeals from the September 5, 2013

judgment entered against him and in favor of Buckhorn Volunteer



sale of real property to Whispell. We affirm.

      The trial court summarized the history of this case as follows.

            The Defendant is the Buckhorn [], which had merged with,
      and assumed all the property and obligations of the Fernville
      Volunteer Fire Company in 2003. Fernville is a village located in
      Hemlock Township, Columbia County. The property so acquired
      included a small plot of land in Hemlock Township upon which
      had been erected a small fire station. Not being in need of
      another fire station, Buckhorn decided to list the property for
      sale.

           [Whispell] is the owner of a bar/restaurant in Columbia
      County, and was seeking to expand his operations to include a


* Retired Senior Judge assigned to the Superior Court.
J-A14041-14

     catering business and banquet hall. On June 10, 2004, the
     parties entered into a written sales agreement for the sale and
     purchase of the subject realty for a consideration of $70,000.
     The agreement contained two relevant contingencies: that
     Whispell be able to lease an adjoining parcel of land from
     Hemlock Township to use for parking, and that he obtain a
     zoning variance for his intended use of the building. Both
     contingencies were met, and settlement occurred on August 20,
     2004.

           The sales agreement also provided that Whispell had a
     right to obtain a survey of the subject property prior to
     settlement. Unwisely, he opted not to do so.

           Following settlement, Whispell took possession of the
     property and began to make the necessary alterations to convert
     the building into a commercial kitchen and banquet hall. In
     2007 he discovered that a portion of the structure he was
     working on was not on the lot he had purchased. Ultimately, the
     instant litigation ensued.

           At this point, it is necessary to review the history of the
     parcel in question. Francis and Mary Drinker owned a farm in
     Hemlock Township in the late Nineteenth Century. They decided
     to subdivide a large portion of the farm into small lots for a
     residential development. To that end, they hired a surveyor who
     drew a map with numerous plots for houses and streets (some
     with names, and some without). Although the map was drawn
     in 1893, it was not recorded in the office of the Recorder of
     Deeds of Columbia County until 1925. The map was labeled


          The first lot conveyed in the subdivision was lot number 1,
     which was sold to the Hemlock Township School District.
     Thereafter, a small school house was erected on the lot. The
     deed description calls for a parcel 50 feet wide and 150 feet

     designated in the Plot of Fernville. The deed further provides
     that the westerly boundary of the lot is a line beginning "on or
     alongside the gully or lane that runs between Fernville and the


          An examination of the recorded map, however, shows
     what appears to be a street beginning on Hemlock Alley,


                                   -2-
J-A14041-14

      intersecting and crossing Drinker Street and continuing along the
      entire 150 feet of the westerly edge of the subject parcel. What
      appears to be a street, however, is designated on the map as a


            Nearly a century later, and one room schoolhouses being
      no longer in vogue, Hemlock Township sold the parcel in 1982 to
      the Fernville Volunteer Fire Company.            The same deed
      description was used as in the 1893 deed. The fire company
      then demolished the school house and erected a cinderblock and
      brick structure for use as a fire station. Unfortunately, a portion
      of the new building (about 10 feet wide and 100 feet long)

      land was conveyed to Whispell in 2004, the old deed description
      was again used in the Special Warranty Deed. The 2004 deed

      the reversions... and all the estate, right title, interest, property
      claim and demand whatsoever of the

Trial Court Opinion, 6/17/2013, at 1-3.

      On January 2, 2008, Whispell filed a complaint against Buckhorn

seeking rescission of the contract by reason of mutual mistake, and

                                                                              After

obtaining leave of court, Whispell filed an amended complaint on September

24, 2009, adding claims for money damages based upon negligent

misrepresentation and fraud.1 On June 15, 2011, Whispell filed a petition for

leave to amend his amended comp


1
  Whispelll at no time attempted to cure the title defect by filing an action to
quiet title. The trial court noted that, in an effort to resolve this case,
Buckhorn itself filed such an action, including Whispell as a plaintiff. Trial
Court Opinion, 6/6/2013, at 5 n.1. Whispell objected and had himself
removed as a plaintiff. There is conflicting information in the record on the
status of the quiet title action. Compare id. (indicating that the quiet title
                                        with



                                      -3-
J-A14041-14

damage to [Whispell] as well as economic damage suffered by [Whispell] in



misrepresentation.   Petition to Amend Complaint, 6/15/2011, at ¶ 7.     By

order of August 11, 2011, the Honorable Thomas A. James, Jr., denied the



intends to include in the proposed amended [c]omplaint are not recoverable

damages under the cause of action

8/11/2011.

      On April 9, 2012, Judge James entered an order assigning the case to

the Honorable Brendan J. Vanston, who entered an order scheduling

discovery, dispositive motions, and trial.   On May 13, 2013, Whispell filed

pre-trial motions asking, inter alia, for Judge Vanston to reconsider Judge



                                    -trial motions by order of May 20, 2013.

Judge Vanston conducted a non-jury trial on June 6 and 7, 2013.

                                    -in-chief, Buckhorn moved for a directed

verdict.   The trial court granted the motion as to the fraud and negligent

misrepresentation counts. N.T., 6/6/2013, at 172. On June 11, 2013, Judge

Vanston returned a verdict in favor of Buckhorn and against Whispell on the

rescission claims.   Whispell filed post-trial motions, which Judge Vanston




                                    -4-
J-A14041-14

denied by order of August 28, 2013. On September 5, 2013, judgment was

entered on the verdict. Whispell timely filed a notice of appeal.2



               I.    Whether the [t]rial [j]udge erred in entering verdict
        and judgment for [Buckhorn] and against [Whispell] by
        concluding that since Hemlock Township did not open the
        gully[3]/lane to public travel within the relevant time period, title
        reverted to the adjoining owners in fee to [Buckhorn], and by
        extension, Whispell and Hicks.

              II.    Whether   the    [t]rial   [j]udge   erred   in
                                                               granting
                                                                      t
        pertaining to theories of negligent misrepresentation and fraud
        (Counts three and four) as [Whispell] had proven the elements
        of negligent misrepresentation and/or fraud and [Buckhorn]
        knew or should have known that the firehouse was constructed
        on property which was not owned by Buckhorn or by Fernville
        Fire Company.

              III.   Whether the [t]rial [j]udge erred in failing to grant


        to [a]mend his [c]omplaint.



        Whispell first argues that he is entitled to judgment notwithstanding

the verdict (JNOV) or a new trial on his rescission claims.

              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

2
  The trial court did not order Whispell to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and none was filed.
3
    The trial court and Whispell use alternate spellings: gully and gulley. For

used in the quoted source.


                                         -5-
J-A14041-14



     JNOV, we must consider all of the evidence admitted to decide if
     there was sufficient competent evidence to sustain the verdict.
     In so doing, we must also view this evidence in the light most
     favorable to the verdict winner, giving the victorious party the
     benefit of every reasonable inference arising from the evidence
     and rejecting all unfavorable testimony and inference.
     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. If any basis exists upon which the [court]
     could have properly made its award, then we must affirm the
     trial court's denial of the motion for JNOV. 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.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(quoting Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1147 48

(Pa. Super. 2013)).

            Rescission is an equitable remedy, to be granted only
     where the parties to a contract can be placed in their former
     positions with regard to the subject matter of the contract. It is
     well known that the purpose of equitable rescission is to return
     the parties as nearly as possible to their original positions where
     warranted by the circumstances of the transaction.

Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa. Super. 1999)



only grounds upon which equity will permit rescission of an executed



                                    -6-
J-A14041-14

contract are fraud, mistake, failure of consideration, and quia timet[4]

Umbelina v. Adams, 34 A.3d 151, 158 (Pa. Super. 2011) (citations and



annulled in the absence of a showing fraud or mistake simply because a

                                                                        Id. at

160.

       The trial court held that Whispell was not entitled to the equitable

remedy of rescission because he suffered no harm as a result of

encroachment of the building onto adjoining land. This determination was

based upon application of the following statute.

       Any street, lane or alley, laid out by any person or persons in
       any village or town plot or plan of lots, on lands owned by such
       person or persons in case the same has not been opened to, or
       used by, the public for twenty-one years next after the laying
       out of the same, shall be and have no force and effect and shall
       not be opened, without the consent of the owner or owners of
       the land on which the same has been, or shall be, laid out.



streets have been laid out by the owners, but not used, from the servitude

             Rahn v. Hess

municipality does not open the street within the twenty-one year period set

forth in Section 1961, the abutting lot owners acquire the fee in the street to




4
  Quia timet
that allows a person to seek equitable relief from future probable harm to a
                           LACKS LAW DICTIONARY 1281 (8th ed. 2004).


                                     -7-
J-A14041-14

                    Leininger v. Trapizona, 645 A.2d 437, 440 (Pa. Cmwlth.

1994) (citing Rahn, supra).

      Whispell argu



to testimony that

      the gully was a drainage ditch. The maps and testimony indicate

      drains into the creek. If this was a lane or road, it would be a

      lane, and [Buckhorn] failed to establish that the adjoining

      or that the gully/lane had lost its private and/or public character,
      judgment should be entered for [Whispell], or a new trial should
      be granted.

                      -23 (citations to the reproduced record omitted).

      By focusing on the present condition of the land rather than the



                          reet.   As this Court explained in the context of a

similar statute applicable to boroughs,

            [m]ere formal acceptance of the dedication of a street (or
      other area for that matter) that exists only on paper does not,
      however, render the accepted area (street, sidewalk, etc.)

      acceptance of the dedication is akin to a municipality plotting or

      become a public thoroughfare, therefore, it is necessary to
      demonstrate that the street is actually opened by the

      street occurs when the street is actually graded and constructed.

Lillo v. Moore, 704 A.2d 149, 153 (Pa. Super. 1997) (citations omitted).




                                      -8-
J-A14041-14

      The plot of Fernville, which was drafted in 1893 and recorded in 1925,

showed a lane or gully running along the western boundary of the parcel in

question, which was lot number 1 carved out of the 154-acre plot that was

the original Drinker estate. This lane or gully is not given a name on the

plot. However, the trial court determined that the area was dedicated as a

lane, explaining as follows.

      Looking at the map, it appears to be so. The fact that it is
      unnamed is not determinative, as there are other streets and
      thoroughfares on the map which bear no names. Two factors,
      however, are persuasive: first, the deed which was made

                                                     bject property
      and across Drinker Street, is an opened, paved, public street.

      Drinker Street appears to be identical to the portion which is
      south of Drinker Street.

Trial Court Opinion, 6/17/2013, at 5. Thus, the evidence indicates that the



the testimony from all witnesses at trial was consistent in establishing that

                                             s not graded or paved. In fact,



other witnesses, establishes that it is a grassy area with a drainage pipe

running under it. N.T., 6/6/2013, at 35.

      Accordingly, the trial cou                        -half of that street

would be the property of [] Whispell, and the other half owned by a Susan




                                    -9-
J-A14041-14

32 feet wide. Therefore, attributing one-half of that width to Whispell cures

                              Id. at 4.



findings. Nonetheless, Whispell argues the determination that he has legal

                                                            es not resolve the

issue. Whispell claims that even if the public right of use of the lane was lost

by the failure to open it within 21 years, the individual property owners in

                                                                               .

Whispell argues that,


      Drinker Subdivision have a cause of action against [him]
      because the firehouse is encroaching on the gully.       These
      homeowners may file an action to have [Whispell] enjoined from
      interfering with their use of the gully as easement holders.

      never use the property as intended or convey the same because
      the entire Drinker Subdivision has an easement over the gully.
      Whispell can also be enjoined from ever utilizing the property.

Id.

be in violation of the Hemlock Township zoning side-

Id.

      Whispell is correct that th

easement or right of use in such lanes or alleys is lost as the result of the

passage of such time and lack of use, the purely private rights of easement

of individual property owners in the plan of lots to use the alley or way [are]

                     Riek v. Binnie, 507 A.2d 865, 867 (Pa. Super. 1986)



                                     - 10 -
J-A14041-14

(emphasis in original).    However, Whispell points to nothing that would

substantiate his stated concerns.

      The case cited by Whispell involves not a paper alley which by his



which other landowners had used for ingress and egress despite the fact that

it was never formally accepted as a street.     Riek

Appellees own properties on either side of the private drive, known as

Francis Alley, and sought to prevent the Appellants from using that road for



appear that any homeowner in the Drinker Subdivision has ever used the



flooding, that at some point was filled in over a drainage pipe.          N.T.,

6/6/2013, at 35, 203.     Not only is it not used by the general public as a

street, evidence offered by Whispell at trial establishes that the township will




point to any evidence in the record to substantiate his claim that he is in




people who




                                     - 11 -
J-A14041-14

it, do not convince us that the trial court abused its discretion in holding that

Whispell was not entitled to the equitable remedy of rescission.



verdict as to his claim of negligent misrepresentation.5


      verdict, our scope of review is limited to determining whether
      the trial court abused its discretion or committed an error of law
      that controlled the outcome of the case. A directed verdict may
      be granted only where the facts are clear and there is no room
      for doubt. In deciding whether to grant a motion for a directed
      verdict, the trial court must consider the facts in the light most
      favorable to the nonmoving party and must accept as true all

      adverse testimony.

Berg v. Nationwide Mut. Ins. Co., Inc., 44 A.3d 1164, 1170 (Pa. Super.

2012) (citations and quotation marks omitted).

      The elements of a claim for negligent misrepresentation are as follows.

      Negligent misrepresentation requires proof of: (1) a
      misrepresentation of a material fact; (2) made under
      circumstances in which the misrepresenter ought to have known
      its falsity; (3) with an intent to induce another to act on it; and
      (4) which results in injury to a party acting in justifiable reliance
      on the misrepresentation.            The elements of negligent
      misrepresentation differ from intentional misrepresentation in

5
 In his statement of questions presented, Whispell also claims the trial court
erred in directing the verdict on his fraudulent misrepresentation claim.

he did not produce evidence to sustain that claim. See N.T., 6/6/2013, at

             -- that there was an encroachment and still sold it to Mr.

not that Buckhorn had knowledge that it did not own all of the property on

27.    Accordingly,   we    address   only     his   argument   as   to   negligent
misrepresentation.


                                      - 12 -
J-A14041-14

      that the misrepresentation must concern a material fact and the
      speaker need not know his or her words are untrue, but must
      have failed to make a reasonable investigation of the truth of
      these words. Moreover, like any action in negligence, there
      must be an existence of a duty owed by one party to
      another.

Milliken v. Jacono, 60 A.3d 133, 141 (Pa. Super. 2012) (quoting Heritage

Surveyors & Engineers, Inc. v. National Penn Bank, 801 A.2d 1248,

1252 (Pa.Super.2002)) (emphasis added in Milliken).



evidence.   Whispell first points to a 1982 letter from the zoning board

solicitor to the chairman of the zoning board in which he addressed the

subjects of reconstruction of the fire hall and the possibility of vacating an

unopened alley. N.T., 6/6/2013, at 82. Next, Whispell points to a Labor and

Industry (L&I) document from 1983 that references the subject lot as being

70 feet wide, rather than 50 feet wide as indicated in the deed.

      Finally, Whispell relies upon a series of minutes of meetings of

Hemlock Township supervisors in 2003 which indicate that the township

manager, Stephanie Haney, was tasked with researching the deeds to the

fire hall lot and the lot behind or beside it as it related to access to parking.

N.T., 6/6/2013, at 97-98.     One document Haney reviewed in investigating

the availability of parking was a geographic information system (GIS) map

which showed a line running through the fire hall. Id. at 92. Haney testified

that she did not pay much attention to the line:




                                     - 13 -
J-A14041-14

                                              -to-foot accurate, so it
           -- I mean, for instance, you can even see there are lines
                                                     e me as odd. I
      mean, they --


                                      ***



Id.

      Whispell points to no evidence that Buckhorn had actual knowledge of

the contents of these documents.6         His claim rests upon evidence that

indicates that these documents were available to Buckhorn. See, e.g., N.T.,

6/6/2013, at 155 (Buckhorn president Scott Trough testifying that, after

receiving discovery requests in the instant case, he found the 1983 L&I




on the commercial property information sheet that it provided to Whispell

prior to the sale, that there were no encroachments or boundary line



of misrepresenting a material fact.

6
  As indicated in note 3, supra, Whispell conceded at trial that he had
produced no evidence that Buckhorn sold the property to Whispell knowing
that it did not own the property on which the building was built. Each
Buckhorn witness Whispell called testified that the first time Buckhorn
became aware of any boundary problem was after it sold the property to
Whispell. See N.T., 6/6/2013, at 122 (Buckhorn fire chief Kenneth Wenner
was unaware of any boundary problem until after the sale); id. at 138-39
(first assistant fire chief Michael Vandine had no knowledge of boundary
dispute until Whispell brought it up); id. at 148 (Buckhorn president Scott
Trough was unaware of any boundary issue until Whispell so indicated).


                                      - 14 -
J-A14041-14

       The documents relied upon by Whispell arguably show that Hemlock

Township and the Fernville Fire Company had reason to know of a defect in

the title to the property. However, Hemlock Township was not involved in

                                                                 -13. No one

from the Fernville Fire Company advised Buckhorn of any encroachment of

the building onto adjoining land. Id. at 144. Whispell does not argue, let

alone cite any authority to establish, that the knowledge of the township or

Fernville Fire Company is for some reason imputed to Buckhorn.

       Buckhorn did not review or catalogue the old documents it received

from Fernville Fire Company at the time of the 2002 merger until the instant

litigation began. Id. at 145, 155. Whispell makes no effort to cite authority

supporting his apparent claim that, to exercise reasonable care, Buckhorn

had a duty to investigate for title defects.7

       Because Whispell failed to offer evidence that Buckhorn knew or, upon

performance of a duty of reasonable care owed to him, should have known

that it misrepresented a material fact, the trial court did not err in granting




7
    The only indication of any standard of care in property transfers is



6/6/2013, at 30.   Similarly, Whispell cancelled his title insurance after the
                                                                        Id. at
47. Whispell offers no explanation why Buckhorn should have been more
diligent when it acquired the property from Fernville Fire Company than he
was when he bought it from Buckhorn.


                                      - 15 -
J-A14041-14




claim.

      With his final question, it is unclear whether Whispell is challenging (1)

                                                        nial of leave to amend

the amended complaint, or (2) the denial of leave to amend the amended

complaint to expound upon the damages Whispell suffered as a result of



our determinat

motion for a directed verdict on the fraud and negligent misrepresentation

claims, the issue is moot.     See, e.g., Zitney v. Appalachian Timber

Products, Inc., 72 A.3d 281, 290 (Pa. Super. 2013) (holding challenge to

limitation on damages is moot where fact-finder determined that defendant

had no liability).

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2014




                                    - 16 -
