J-A22030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA ROBINSON AND WILLIAM                    IN THE SUPERIOR COURT OF
ROBINSON, HER HUSBAND,                                 PENNSYLVANIA

                            Appellants

                       v.

ELIZABETH OSBORN A/K/A ELIZABETH
ANN OSBORN, INDIVIDUALLY AND AS
THE EXECUTRIX OF THE ESTATE OF
FLORA KRACKE, DECEASED

                            Appellee                 No. 1996 MDA 2014


               Appeal from the Order Entered November 5, 2014
             In the Court of Common Pleas of Susquehanna County
                      Civil Division at No(s): 2011-00337


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 07, 2015

        This appeal concerns the interpretation of a 1968 deed executed by

Sydney Carpender in favor of John Kracke and Flora Kracke (“the Krackes”).

In the trial court, Carpender’s descendants, appellants Patricia and William

Robinson (“the Robinsons”), argued that the deed entitled them to purchase

a small parcel of land (the “Property”) from the Krackes for $15,000.00. The

trial court determined that the Robinsons had no right to purchase the

Property and granted judgment on the pleadings to Elizabeth Osborn,



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*
    Retired Senior Judge assigned to the Superior Court.
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personal representative of the estate of Flora Kracke. For the reasons that

follow, we vacate the judgment and remand for further proceedings.

     The history of this case begins with a deed executed by Sydney

Carpender in 1964 (“1964 Deed”) transferring the Property, a .4 acre parcel

of land within the Johnson Farm, to the Krackes in return for $100.00. The

1964 Deed provided in relevant part:

     And it is covenanted by the Grantees, for themselves, their
     heirs and assigns, and this deed is accepted on the express
     condition, that should said Grantees in their lifetime desire to
     convey said property, it shall be first tendered to the Grantor or
     his heirs or assigns, and conveyed to them at their option, upon
     the payment of the cost to the Grantees of any building or
     improvement that may be placed upon said property at a figure
     not to exceed the sum of $15,000.00, regardless of the cost of
     said improvements, provided that the cost of any improvements
     made on the premises by the Grantor for Grantees or
     contributions given to the Grantees by the Grantor for such
     improvements shall be deducted from the repurchase price. In
     the event of the death of said Grantees while in possession of
     said property, the fee title thereof together with improvements
     thereon shall revert to said Grantor, his heirs or assigns,
     provided that there shall be tendered to said survivors estate
     within six months after death, the cost to the Grantees of any
     improvements to said property, provided that the cost of any
     improvements made on the premises by the Grantor for
     Grantees or contributions given to the Grantees by the Grantor
     for such improvements shall be deducted from the repurchase
     price or the sum of $15,000.00 which ever sum is the lesser. If
     tender is not to made within said six months, the fee title to
     said property shall vest in the estate of said surviving Grantee.

On October 3, 1968, Sydney Carpender executed a second deed to the

Krackes (“1968 Deed”), the center of the dispute in this case.     The 1968

deed provided:



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     It is the intention of the grantor in this instrument of October 3,
     1968 to release, remise and quitclaim to the grantees, their
     heirs and assigns certain rights established in and held pursuant
     to the deed for the subject premises, which said deed was from
     Sydney B. Carpender, widower, to John D. Kracke and Flora A.
     Kracke, husband and wife, dated October 14, 1964, and
     recorded in Susquehanna County Deed Book 304, at page 271
     (which deed is included herein by reference) the certain rights
     hereby released, remised and quitclaimed are as follows:

     The right on the part of the grantor, his heirs or assigns or
     representatives, to deduct from the repurchase price the cost of
     any improvements contributed by the grantor or caused to be
     contributed to the subject premises by the grantor, and
     inasmuch as it was the intention of the grantor to contribute
     Fifteen Thousand ($15,000.00) Dollars to the grantees for
     improvements to the subject realty, and the total contribution
     has exceeded Fifteen Thousand ($15,000.00) Dollars, the
     grantor hereby further partially releases the grantees from the
     provision that the grantor, his heirs or assigns or
     representatives may repurchase the property for a sum reduced
     by the cost of the improvements made by the grantees. It is,
     therefore, the privilege of the grantor for himself and his
     representatives, to repurchase the described premises (if under
     the conditions of the deed of October 14, 1964, Deed Book No.
     304, page 271, the named grantees or those so entitled decide
     to sell) for Fifteen Thousand ($15,000.00) Dollars without
     deductions.    All other rights and privileges vested in the
     grantor, his heirs, assigns or representatives, in the deed of
     October 14, 1964, Deed Book No. 304, page 271; shall remain
     in the grantor, his heirs, assigns or representatives.

     On October 1, 1968, just two days before the execution of the 1968

Deed, Sydney Carpender executed his last will and testament.               In

paragraph FIFTH(b) of the will, Sydney Carpender devised to his son, James

Carpender, all rights that he possessed at the time of his death to the

Johnson Farm (the land on which the Property is situated).      On June 28,

1974, Sydney Carpender died.       His will was probated in Susquehanna


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County, and his rights to the Johnson Farm were transferred upon his death

to James Carpender.

     James Carpender died in 1982.        Paragraph FIRST A(3) of James

Carpender’s Will devised the interests reserved in the 1964 Deed, as

modified by the 1968 Deed, to Pauline Carpender, James Carpender’s wife.

In 1986, Pauline Carpender executed a deed transferring the rights in the

1964 Deed, as modified by the 1968 Deed, to herself and her children,

including appellant Patricia Robinson.      In 2001, Pauline Carpender,

appellant Patricia Robinson and her siblings transferred to appellants

Patricia and William Robinson multiple parcels of real property and the

rights identified in the 1964 Deed, as modified by the 1968 Deed.

     The Krackes maintained possession of the Property throughout their

lives. John Kracke died in 1974. Flora Kracke, as sole surviving spouse,

possessed the Property until her death in 2010. On November 22, 2010,

Flora Kracke’s will was admitted for probate, and the Register of Wills

awarded letters testamentary to appellee Elizabeth Osborn, Flora Kracke’s

granddaughter and sole heir.

     On November 22, 2010, the Robinsons’ attorney sent a letter to

counsel for Flora Kracke’s estate, along with a cashier’s check in the amount

of $15,000.00, purporting to purchase the Property in accordance with the

1964 Deed. Counsel for Flora Kracke’s estate returned the cashier’s check




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to the Robinsons’ attorney and refused to honor the Robinsons’ alleged

rights.

      The Robinsons filed a civil action against Osborn alleging breach of

contract, ejectment and the right to declaratory relief.     At the close of

pleadings, Osborn moved for judgment on the pleadings on the ground that

Sydney Carpender alone had the right to repurchase the Property. Osborn

argued that the 1968 Deed modified the 1964 Deed by quitclaiming the

right of Sydney Carpender’s heirs and assigns to repurchase the Property.

Sydney Carpender’s will compelled the same result, Osborn contended,

because it had no language specifically identifying any continuing interest in

real property owned by the Krackes.      The Robinsons responded that the

1968 Deed did not defeat their right under the 1964 Deed to repurchase the

property upon the death of the last surviving Kracke spouse.

      On November 5, 2014, the trial court entered an opinion and order

granting judgment on the pleadings in favor of Osborn. The trial court held

that the 1968 deed (1) unambiguously limited the right to repurchase the

Property to Sydney Carpender and his representatives but (2) precluded his

heirs and assigns from repurchasing the Property after the death of the

surviving Kracke spouse. Trial Court Opinion, at 8.

      The Robinsons filed a timely notice of appeal. The trial court did not

order the Robinsons to file a Pa.R.A.P. 1925(b) statement, electing instead




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to file a Pa.R.A.P. 1925(a) statement which incorporated its November 5,

2014 opinion by reference.

     The Robinsons raise three questions in this appeal:

     1. Whether the trial court’s order granting Osborn’s motion for
     judgment on the pleadings should be reversed because the trial
     court incorrectly applied the 1968 deed language quitclaiming
     certain rights to repurchase the subject property at the time of
     its sale by the Krackes to the separate and distinct right granted
     to Carpender’s heirs and assigns in the 1964 deed allowing for
     the acquisition of the subject property by the heirs and assigns
     at the time of Flora Kracke’s death?

     2. Whether the trial court’s order granting Osborn’s motion for
     judgment on the pleadings should be reversed because the trial
     court misinterpreted the only sentence of the 1968 deed upon
     which it relied, to the exclusion of the deed’s other text, to
     incorrectly conclude that Carpender quitclaimed his heirs and
     assigns’ right to acquire the subject property upon Flora Kracke’s
     death?

     3. Whether the trial court’s order granting Osborn’s motion for
     judgment on the pleadings should be reversed because the trial
     court incorrectly interpreted Carpender’s will as not addressing
     his heirs’ right to acquire the subject property even though the
     will specifically devised Carpender’s property rights to his son
     and the will contained a residuary clause?

Brief For Appellant, at 6. We will address the first two questions together,

because they concern the same subject matter -- the proper construction of

the 1968 deed.

     In an appeal of an order granting judgment on the pleadings, we

must determine

     whether the     trial court abused its discretion or committed an
     error of law.   Our scope of review is plenary. In reviewing a trial
     court’s grant   of summary judgment, we apply the same standard
     as the trial     court, reviewing all the evidence of record to

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     determine whether there exists a genuine issue of material fact.
     We view the record in the light most favorable to the non-
     moving party, and all doubts as to the existence of a genuine
     issue of material fact must be resolved against the moving party.
     Only where there is no genuine issue as to any material fact and
     it is clear that the moving party is entitled to a judgment as a
     matter of law will summary judgment be entered. All doubts as
     to the existence of a genuine issue of a material fact must be
     resolved against the moving party. Upon appellate review, we
     are not bound by the trial court’s conclusions of law, but may
     reach our own conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797–98 (Pa.Super.2012).

     When construing a deed,

     a court’s primary object must be to ascertain and effectuate
     what the parties themselves intended. Mackall v. Fleegle, 801
     A.2d 577, 581 (Pa.Super.2002). The traditional rules of
     construction to determine that intention involve the following
     principles. First, the nature and quantity of the interest conveyed
     must be ascertained from the deed itself and cannot be orally
     shown in the absence of fraud, accident or mistake. [] We seek
     to ascertain not what the parties may have intended by the
     language but what is the meaning of the words they used. []
     Effect must be given to all the language of the instrument, and
     no part shall be rejected if it can be given a meaning. [] If a
     doubt arises concerning the interpretation of the instrument, it
     will be resolved against the party who prepared it. [] ... To
     ascertain the intention of the parties, the language of a deed
     should be interpreted in the light of the subject matter, the
     apparent object or purpose of the parties and the conditions
     existing when it was executed.

     [Consolidation Coal Co. v.] White, 875 A.2d [318,] 326–27
     [(Pa.Super.2005)]. However, “[w]here the language of a
     contract is contradictory, obscure, or ambiguous, or where its
     meaning is doubtful, so that it is susceptible of two
     constructions, one of which makes it fair, customary, and such
     as prudent men would naturally execute, while the other makes
     it inequitable, unusual, or such as reasonable men would not be
     likely to enter into, the interpretation which makes a rational and
     probable agreement must be preferred.” Wilkes–Barre



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      Township School District v. Corgan, [], 170 A.2d 97, 98–99
      (1961).

Consol Pennsylvania Coal Co. v. Farmers Nat. Bank of Claysville, 960

A.2d 121, 128 (Pa.Super.2008), reversed on other grounds, 969 A.2d 565

(Pa.2009) (emphasis in original in part and added in part). An ambiguity in

the deed “permit[s] the consideration of extrinsic evidence to interpret the

intent of the parties to the … deed.”      Id. at 130; see also Doman v.

Brogan, 592 A.2d 104, 109 (Pa.Super.1991) (“where there exists an

uncertainty due to the use of vague or ambiguous language, resort may be

had to extrinsic or parol evidence to explain - but not vary - the written

word”). “Resort might also be had to the subsequent acts of the parties as

bearing on the interpretation they placed on the instrument.” Doman, 592

A.2d at 109.    “Where the terms of a deed will admit of two reasonable

interpretations (patent ambiguity) ... [its] construction, as a rule, should be

submitted to the jury as a question of fact.” Id. at 111.

      Although the 1964 deed is unambiguous, the 1968 deed contains an

ambiguity that requires resolution by a factfinder. This ambiguity precludes

the entry of judgment on the pleadings in favor of Osborn.

      The 1964 deed provides two means for Sydney Carpender and his

heirs and assigns to repurchase the Property. First, if the Krackes desired to

convey the Property during their lifetimes, they were required to offer the

property to Sydney Carpender, or his heirs and assigns, for repurchase in

the amount of $15,000.00 less any sum that Sydney Carpender paid for

improvements on the Property or gave to the Krackes to make such

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improvements.1 Second, within six months of the death of the last surviving

Kracke spouse, Sydney Carpender, or his heirs and assigns, had the option

to repurchase the Property by paying the estate of the last surviving Kracke

spouse $15,000.00 less deductions.

       The parties agree that the 1968 deed changed the repurchase price

from $15,000.00 less deductions to a flat sum of $15,000.00. The parties

disagree, however, as to which persons held the right of repurchase under

the 1968 deed. The Robinsons argue that the same persons held the right

of repurchase under the 1968 deed as under the 1964 deed: Sydney

Carpender or his heirs and assigns. Osborn argues that Sydney Carpender

and his “representatives”, but not his “heirs and assigns”, are the only

persons holding the right of repurchase under the 1968 deed.

       The dispute centers on the following language in the 1968 deed:

       [T]he grantor hereby further partially releases the grantees from
       the provision that the grantor, his heirs or assigns or
       representatives may repurchase the property for a sum reduced
       by the cost of the improvements made by the grantees. It is,
       therefore, the privilege of the grantor for himself and his
       representatives, to repurchase the described premises (if under
       the conditions of the [1964] deed, the named grantees or those
       so entitled decide to sell) for … $15,000.00 … without
       deductions. All other rights and privileges vested in the grantor,
       his heirs, assigns or representatives, in the [1964] deed shall
       remain in the grantor, his heirs, assigns or representatives.


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1
  For convenience, we will refer to this formula as “$15,000.00 less
deductions”.



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Osborn contends that the phrase, “it is ... the privilege of the grantor for

himself and his representatives, to repurchase the described premises,”

removes Sydney Carpender’s heirs and assigns from the class of persons

who hold the right of repurchase.     The Robinsons respond that the entire

passage merely changed the repurchase price from $15,000.00 less

deductions to $15,000.00 in the event the Krackes wished to sell the

Property during their lifetimes.   In support of this premise, the Robinsons

point to the parenthetical in the passage: “It is, therefore, the privilege of

the grantor for himself and his representatives, to repurchase the described

premises (if under the conditions of the [1964 deed], the named grantees or

those so entitled decide to sell) for ... $15,000.00 ... without deductions.”

The Robinsons insist that there is no language that modifies the terms of

transfer upon the death of the surviving Kracke spouse. Upon the death of

the surviving Kracke spouse, the Robinsons claim, the final sentence of the

passage controls: “All other rights and privileges vested in the grantor, his

heirs, assigns or representatives, in the [1964 deed] shall remain in the

grantor, his heirs, assigns or representatives.”

      Both Osborn’s and the Robinsons’ construction of the 1968 deed is

reasonable. Under the language highlighted by Osborn, Sydney Carpender,

the grantor, might have intended to limit the right of repurchase to himself

and his representatives upon the death of the surviving Kracke spouse;

under the language highlighted by the Robinsons, he might have intended


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for the right of repurchase to include his heirs and assigns as well. Thus, the

1968 deed is ambiguous and requires consideration of parol or extrinsic

evidence to interpret Sydney Carpender’s intent as grantor.             Consol

Pennsylvania Coal Co., Doman, supra.

       In their final issue on appeal, the Robinsons assert that the trial court

erred in granting judgment on the pleadings to Osborn on the ground that

Sydney Carpender’s will lacked language which specifically referenced any

right to repurchase the Property. According to the Robinsons, although the

will does not specifically devise the interest reserved in the 1964 will, the

trial court overlooked that the will devised all rights to James Carpender that

Sydney Carpender held with regard to the Johnson Farm, of which the

Property is a part. Alternatively, the Robinsons continue, any real property

rights held by Sydney Carpender passed to his heirs through the will’s

residuary clause.2

       It is premature for this Court to decipher the meaning of the will. We

have held above that the trial court erred by determining that the 1968 deed

unambiguously precludes Sydney Carpender’s heirs and assigns from

repurchasing the Property after the death of the surviving Kracke spouse.

Because the trial court misconstrued the deed, an error at the very center of

____________________________________________


2
  See Braman's Estate, 258 A.2d 492, 494 (Pa.1969) (general residuary
clause in will “carries every interest, known or unknown, immediate or
remote, unless such interest is clearly excluded”).



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this dispute, our wisest course of action is to remand this case for further

proceedings in which the parties have the opportunity to present parol or

extrinsic evidence to explain the deed’s meaning. Sydney Carpender’s will is

one piece of extrinsic evidence that the parties might elect to proffer for the

purpose of explaining the meaning of the deed.           The trial court should

determine the admissibility of the will and all other evidence, and the

factfinder should determine the weight to accord the evidence and the

proper meaning of the 1968 deed.

      Judgment    vacated.     Case   remanded     for    further   proceedings.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2015




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