J-A08012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RONALD M. KRAJEWSKI AND THERESA               IN THE SUPERIOR COURT OF
M. KRAJEWSKI, H.W.,                                 PENNSYLVANIA

                        Appellants

                   v.

FIDELITY NATIONAL TITLE INSURANCE
COMPANY, SUCCESSOR IN INTEREST TO
AMERICAN TITLE INSURANCE COMPANY,

                        Appellee                  No. 1350 EDA 2015


               Appeal from the Order Entered April 8, 2015
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2014-00369


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MAY 11, 2016

     Ronald M. and Theresa M. Krajewski appeal the order entered on April

8, 2015, wherein the trial court granted summary judgment in favor of the

Appellee herein, Fidelity National Title Insurance Company, successor in

interest to American Title Insurance Company. We affirm.

     This appeal has its genesis in a dispute concerning coverage under a

title insurance policy (the “policy”) purchased by Appellants.   The policy

covers property owned by Appellant located at 9 Cobalt Ridge Drive North,

Levittown, Pennsylvania (“9 Cobalt”).   The policy insures against loss or

damage sustained by reason of, inter alia, “Title to the estate or interest

described in Schedule A being vested otherwise than as stated therein . . .

* Retired Senior Judge assigned to the Superior Court.
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[and] any defect in or lien or encumbrance on such title[.]” Title Insurance

Policy, 2/28/89, unnumbered at 1. The interest referred to in Schedule A is

set forth in Schedule C, which reads,

            ALL THAT CERTAIN Lot, piece or parcel of land with the
      building and improvements thereon, situate, lying and being at
      Levittown, in the Township of Middletown, County of Bucks,
      Commonwealth of Pennsylvania shown and designated as Lot
      No. 7962-J on Subdivision Map of “Cobalt Ridge,” Levittown,
      Section 70 filed in the Office of the Recorder of Deeds of Bucks
      County, Pennsylvania on January 18, 1955 in Plan Book 9 Page
      16, as follows, to wit:

      BEGINNING at a point on the Northerly side of Cobalt Ridge
      Drive (56.00 feet wide) at a corner of Lot No. 7963-J thence
      extending from said point of beginning and extending along Lot
      No. 7963-J North 44 degrees 58 minutes 17 seconds East
      139.68 feet to a point; thence extending South 27 degrees 33
      minutes 11 seconds East 97 feet to a point, a corner of Lot No.
      7961-J; thence extending along the same South 59 degrees 07
      minutes 10 seconds West 120.87 feet to a point on the Northerly
      side of Cobalt Ridge Drive; thence extending along the same in a
      Westerly direction on the arc of a circle curving to the left,
      having a radius of 250.00 feet the arc distance of 63.50 feet to
      the first mentioned point and place of beginning.

      BEING THE SAME PREMISES WHICH Lawrence R. Michaels,
      Sheriff of the County of Bucks by his deed dated August 12,
      1988 and recorded in Deed Book 2844 Page 1163, did grant and
      convey unto Dennis Kulp.

Id. at Schedule C. This language duplicates the description of the property

in Appellants’ deed to 9 Cobalt as well as each deed in the chain of title to 9

Cobalt. The designated interest does not include a parcel of property located

behind 9 Cobalt, referred to as Lot 2.




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       Of import to our disposition are a number of documents purporting to

affect the property interests encompassed by ownership of Lot 2 and 9

Cobalt. On November 9, 1960, a subdivision agreement was signed by the

then-owners of Lot 2, Walter S. and Mary Heller, and Appellants’

predecessor in title to 9 Cobalt, James and Patricia Jones. The subdivision

agreement stated:

       That from and after the date of this Agreement that Lots No. 2
       through 6, as shown on the said subdivision plan of Walter S.
       Heller . . . shall hereinafter be joined with and shall never be
       severed from the following adjoining lots thereto . . .

       (a) Lot No. 2 shall be forever joined and never severed from
       Lot No. 7962-J [9 Cobalt] . . ..

Subdivision Agreement, 11/9/60, at 2.1

       Ownership of Lot 2 was subsequently transferred by delivery of a deed

dated March 14, 1961, and recorded March 16, 1961. This deed conveyed

Lot 2 from Walter S. and Mary M. Heller to James E. Jones (the “Heller to

Jones deed”).     The description of the property in the deed adhered to the

boundaries of Lot 2, without including any portion of 9 Cobalt. Nonetheless,

the deed professes to ensure that Lot 2 and 9 Cobalt “are hereby joined and

shall never be severed.” Lot 2 Deed, 3/14/61, at unnumbered 1-2.



____________________________________________


1
  The agreement was signed and executed on November 9, 1960. See
Subdivision Agreement, 11/9/60, at 3. It was recorded on June 27, 1961.



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      Finally, ownership of 9 Cobalt was assigned by delivery of a deed

dated March 20, 1961, and recorded March 22, 1961, wherein James and

Patricia Jones conveyed 9 Cobalt to themselves, creating a tenancy in the

entirety.     That deed included a metes and bounds description which

referenced only 9 Cobalt without incorporating the parcel known as Lot 2. It

also did not include any language calling for those lots to be “joined and

never severed.”

       In 1989, 9 Cobalt was sold to Dennis Kulp as a result of a mortgage

foreclosure.       Dennis Kulp, in turn, transferred ownership of 9 Cobalt to

Appellants.    Neither of the deeds involved in these transactions included

reference     to    or   a   metes   and   bounds   description   of   the   property

encompassing Lot 2. Shortly thereafter, James Jones conveyed ownership of

Lot 2 to Appellants’ neighbors, the owners of 5 Cobalt Ridge Road North,

Levittown, Pennsylvania (“5 Cobalt”).

       Appellants, believing themselves to be the rightful owners of Lot 2

based on the language contained in the March 14, 1961 Heller to Jones

deed, filed a claim with Appellee to defend their title. Appellee denied that

claim, averring that Lot 2 was not covered by the terms of the policy.

Appellants brought a quiet title action against the owners of 5 Cobalt to

obtain ownership of Lot 2.           They were unsuccessful.       Appellants then

brought suit against Appellee, arguing Appellee breached the policy by

failing to provide counsel in Appellants’ quiet title action.      Appellee moved

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for summary judgment, which was granted by the court below. This timely

appeal followed.

      Appellants present three questions for our review:

   1. Did the Trial Court commit reversible error by disregarding the
      well-settled rule that in construing the terms of a contract, the
      contract must be read in its entirety, giving effect to all of the
      contractual language, if at all possible?

   2. Did the Trial Court commit reversible error by relying upon the
      metes and bounds legal description attached to the Title Policy at
      Schedule C, and by failing to recognize that it is the interest in
      the land described by Schedule C, not the land itself, that is the
      real subject of the title insurance?

   3. Did the Trial Court commit reversible error by failing to
      determine that the 1961 Subdivision Agreement was a recorded
      instrument affecting the insured title, and that it was not
      excluded from coverage?

Appellant’s brief at 2.

      Our standard of review is as follows:

      An appellate court may reverse the entry of a summary
      judgment only where it finds that the lower court erred in
      concluding that the matter presented no genuine issue as to any
      material fact and that it is clear that the moving party was
      entitled to a judgment as a matter of law. In making this
      assessment, 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. As our inquiry involves solely questions of law,
      our review is de novo.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow



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      a fact-finder to render a verdict in favor of the non-moving
      party, then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.

2015) (en banc) (citation omitted). In the context of a breach of contract

action, Appellants must show there is a genuine issue of material fact

regarding whether there was a contract, the defendant breached it, or the

plaintiffs suffered damages from the breach.            McShea v. City of

Philadelphia, 995 A.2d 334, 340 (Pa. 2010).

      Appellants’ contentions all rely upon one line of reasoning. Hence, we

consider them together. Appellants claim the 1961 subdivision agreement

created an “interest” in Lot 2 causing it to become “appurtenant” to 9

Cobalt. Appellant’s brief at 22-24. Thus, Appellants contend, the trial court

erred by not interpreting the word “interest” in the title policy to include the

alleged interest in Lot 2.   As a result, Appellants continue, the trial court

further erred by only considering the metes and bounds description of the

land in the policy in determining whether it covered alleged defects in the

title to Lot 2; rather, the title policy should be read to protect against

suspected defects in the title to 9 Cobalt and Lot 2 by way of the supposed

interest 9 Cobalt holds in Lot 2.    Therefore, by not protecting Appellants’

interest in Lot 2, Appellants argue that Appellee breached the terms of the

policy.




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      Appellee counters that Lot 2 is a wholly separate parcel of land, was

not included in the description of covered property in the policy, and thus

was not insured. Appellee’s brief at 9. Appellee emphasizes the clear and

unambiguous terms of the policy, which indicate that it expressly insured

Appellants’ interest in 9 Cobalt as described in Schedule A (which relies on

the description of land provided in Schedule C). Appellee also points to the

language contained in Appellants’ deed from Kulp, and all prior deeds in the

chain of title, which all include identical descriptions of 9 Cobalt and no

reference to Lot 2. Id. at 10. Thus, Appellee maintains, it owed no duty to

Appellants in regard to the alleged interest in Lot 2.

      The trial court found that Appellee did not breach the policy since it

insured 9 Cobalt and not Lot 2.      Trial Court Opinion, 8/10/15, at 6.     The

court determined it was indisputable that the metes and bounds description

provided within the terms of the policy did not include Lot 2. Id. at 9. As

the scope of coverage only extends to insured land, as described within the

policy, the trial court concluded Appellee owed no duty to Appellants

regarding Lot 2. Id.

      With regard to the 1961 subdivision agreement, the court implicitly

determined that it had not created an interest in Lot 2 in 9 Cobalt. The court

observed that there was no hostile claim in property owned by Appellants.

Id. at 11. Rather, Appellants’ neighbors purchased Lot 2, and were declared

its rightful owners in the prior litigation.   Id.   In addition, at no point did

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Appellants pay consideration for Lot 2 or secure its deed. Id. Since there

was no hostile claim on property owned by Appellants, the court concluded

there could be no breach of the policy because title to 9 Cobalt was not

“vested as otherwise stated.”     Id.   Therefore, the court found summary

judgment was properly granted in favor of Appellee. We agree.

      In a previous case before this court, Appellants argued, inter alia, that

they owned Lot 2 by virtue of the restrictive covenant contained in the Heller

to Jones Deed. See Krajewski v. Jakubowicz, 998 A.2d 994 [2216 EDA

2008] (Pa.Super. 2010) (unpublished memorandum at 3). In that case, we

reasoned that, when Walter and Mary Heller conveyed Lot 2 to James Jones,

they could place a restrictive covenant, such as the one at issue here, on

that property. Id. at 6. However, we noted the restrictive language applied

to both Lot 2 and 9 Cobalt, as it prohibited each lot from being severed from

the other lot. Id. Since Walter and Mary Heller did not own 9 Cobalt at the

time of the conveyance, we concluded that they could not restrict that

property. Thus, the restrictive language in the deed to Lot 2 was legally

inoperative.   Id.    As such, the owners of 5 Cobalt were ultimately

ascertained to be the rightful owners of Lot 2.

      In the case sub judice, Appellants have produced a document

purporting to overcome this Court’s prior ruling.      The 1961 subdivision

agreement declares a promise by Walter and Mary Heller, as owners of Lot

2, and James and Patricia Jones, as owners of 9 Cobalt, that those

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properties “shall be forever joined and never severed.”      1961 Subdivision

Agreement, unnumbered at 2.        Appellants contend that this agreement

between the owners of Lot 2 and 9 Cobalt is sufficient to render Lot 2

“appurtenant” to 9 Cobalt. Appellant’s brief at 24. Thus, Appellants would

have us hold that whether the restrictive covenant in the deed to Lot 2 is

legally inoperative is irrelevant, as the 1961 subdivision agreement had

already created an interest in 9 Cobalt as contained within the Heller to

Jones deed when the landowners signed that agreement.

     We observe “a landowner may limit his or her private use and

enjoyment of real property by contract or agreement.”             Vernon Tp.

Volunteer Fire Dept., Inc. v. Connor, 855 A.2d 873, 879 (Pa.Super.

2004) (citation omitted). However,

     restrictive covenants on the use of land interfere with an owner’s
     free use and enjoyment of real property and, therefore, are not
     favored by the law. Because land use restrictions are not
     favored in the law, they are to be strictly construed, and nothing
     will be deemed a violation of such a restriction that is not in plain
     disregard of its express words . . . [a]lthough the law may
     disfavor restrictions on an owner’s free use and enjoyment of
     real property, restrictive covenants are legally enforceable.

Id. (citations and internal quotations omitted).        As a general rule, a

restrictive covenant may be discharged if there has been acquiescence in its

breach by others, or an abandonment of the restriction. Id. at 880.          We

need not determine whether the 1961 subdivision agreement created an

interest in Lot 2 inuring to the owners of 9 Cobalt. Rather, we find that even



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if one had been created, it was abandoned shortly thereafter.         Instead,

James Jones and James and Patricia Jones retained, and exercised, free and

unrestricted use of both Lot 2 and 9 Cobalt, respectively.

       Here, James Jones and James and Patricia Jones abandoned the

restrictive covenant by not including the covenant in the conveyance of 9

Cobalt, creating a tenancy in the entirety on March 20, 1961.             This

conveyance occurred six days after the purchase of Lot 2 by James Jones

from Walter and Mary Heller. It does not include the restrictive covenant,

and additionally, the transaction itself plainly disregards the covenant’s

express words.2 We infer from this that, having the deeds to Lot 2 and 9

Cobalt in hand, James Jones and James and Patricia Jones intended to treat

the lots as separate parcels, thus abandoning the covenant to treat them “as

joint and never severed.”

       The intent to abandon the restrictive covenant is further evidenced by

the fact James and Patricia Jones made no attempt to add the restrictive

language to the 9 Cobalt deed in the intervening 27 years before foreclosure

of the mortgage on the property. Furthermore, in 1989, James Jones sold

Lot 2 to the owners of 5 Cobalt, not 9 Cobalt, which stands as additional
____________________________________________


2
  That is, by conveying 9 Cobalt to themselves as tenants in the entirety,
James and Patricia Jones affected a change in ownership of the parcel
individually and separately from Lot 2, in direct violation of the terms of the
restrictive covenant.




                                          - 10 -
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evidence that he did not intend the parcels to be treated as joint property,

and never severed.

       In summary, notwithstanding the restrictive language contained in the

1961 subdivision agreement and the Lot 2 deed, James Jones’ conduct

following his assumption of ownership of Lot 2 demonstrates that he

abandoned that covenant.3 Hence, Appellants have not identified evidence

that supports facts essential to their position, i.e. that Appellee breached the

terms of the policy by not defending the title to Lot 2.

       Having found that Appellants could not acquire an interest in Lot 2

when they purchased 9 Cobalt, we discern no error on the part of the lower

court in determining there were no genuine issues of material fact that

would preclude the grant of summary judgment to Appellee.            The 1961

agreement did not affect the insured title to 9 Cobalt, as any supposed

interest created by that document was abandoned. Thus, the court did not

err in determining the “interest” in land insured by the policy was accurately

set out in the metes and bounds description provided in schedule C.
____________________________________________


3
  That the subdivision agreement was recorded after these conveyances is of
no moment. The evidence of record indicates James and Patricia Jones
signed and executed the agreement on November 9, 1960. There is no
evidence, and Appellants did not argue, that James and Patricia Jones
personally caused the subdivision agreement to be recorded on June 27,
1961. The evidence of record more strongly supports the inference that
James and Patricia Jones abandoned the restrictive covenant in March 1960,
after gaining dominion over both parcels.




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Furthermore, there was no error in finding Appellee owed no duty to

Appellants in regard to Lot 2 under the policy. For these reasons, summary

judgment in favor of Appellee was properly granted. Therefore, we shall not

disturb the trial court’s order.

      Order affirmed.

      Judge Olson Joins the majority.

      Judge Strassburger Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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