J-A07022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACK STANLEY, JR., AND ERIC STANLEY              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellants

                    v.

JACK D. STANLEY AND MAXINE
STANLEY, HUSBAND AND WIFE, SHANE
DEVER AND PAMELA STANLEY

                         Appellees                    No. 584 WDA 2015


               Appeal from the Order Entered March 9, 2015
              In the Court of Common Pleas of Greene County
                    Civil Division at No(s): AD-762-2014


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 28, 2016

      Appellants, Jack Stanley, Jr. and Eric Stanley, appeal from the March

9, 2015 order sustaining preliminary objections filed by Appellees, Jack D.

Stanley, Maxine Stanley, Shane Dever and Pamela Stanley, to their

amended complaint and dismissing the amended complaint.           After careful

review, we reverse and remand for further proceedings.

      We summarize the factual background of this case, as related in the

pleadings, as follows.     Appellees, Jack D. Stanley and Maxine Stanley

(Parents), are the parents of Appellants and Appellee, Pamela Stanley (Sons,

Daughter, or collectively Children).      Pamela Stanley is the mother of

Appellee, Shane Dever (Grandson). In January 2004, Parents determined to

convey, as a gift, their 40% interest in certain real estate located in Franklin
J-A07022-16


Township, Greene County, Pennsylvania (the Property) in equal shares to

Children. At the time, Parents instructed their accountant, William Kania, of

W.B. Kania & Associates, to prepare the deed to effect the transfer.1

Parent’s Federal Gift Tax return for 2004 reflected their gift of the real estate

to Children.      Notwithstanding the instructions to Kania, no deed was

prepared or executed at that time.             Nevertheless, commencing in January

2004, Children received 40% share of the rental income of the Property and

contributed 40% share of the expenses. In May 2012, Sons became aware

that a deed for transfer of the Property had not been executed.              Sons

therefore arranged for the preparation of a deed and sent it to Parents, who

resided in Florida, for execution.        The deed was executed and returned to

Sons for recording. However, the deed was “incorrectly executed” and was

consequently returned to Parents for correction. Parents never completed a

corrected deed.      Subsequently, by deed dated and recorded on May 28,

2013, Parents conveyed the Property to Grandson.2             After May 28, 2013,

through actions of Daughter, the 40% share of the income from the Property

has been paid to Grandson.

        Procedurally, this case progressed as follows.          The instant matter

commenced when Appellants filed a complaint on October 15, 2014 against

____________________________________________
1
    William Kania is a co-owner of the Property.
2
 The May 28, 2013 deed contained an erroneous county tax parcel number.
A corrective deed was recorded June 5, 2013.


                                           -2-
J-A07022-16


Appellees.    On November 4, 2014, Appellees filed preliminary objections,

averring Appellants failed to separate claims into distinct counts, failed to

plead a basis for monetary damages, failed to attach required writing, and

failed to plead with sufficient specificity.

       On November 25, 2014, prior to any argument or disposition of

Appellees’ preliminary objections, Appellants filed an amended complaint.

Therein, Appellants included a count to quiet title, two counts for conversion,

and a count for unjust enrichment. Appellees filed preliminary objections to

the amended complaint on December 12, 2014. Therein, Appellees included

an objection in the nature of a demurrer challenging the legal sufficiency of

Appellants’ averment of a gift of the subject real estate.3 Appellants filed a

response to the preliminary objections on January 2, 2015.       On March 9,

2015, after considering the preliminary objections, response and the parties’

briefs, the trial court sustained the demurrer, concluding that no delivery of

a deed to the subject property was made to Appellants, precluding a finding

that a gift was made. Trial Court Order, 3/9/15, at 1.      Appellants filed a

timely notice of appeal on April 7, 2015.4

____________________________________________
3
 Appellees also included an objection to Appellants’ unjust enrichment claim
and their claim for attorney fees.     Preliminary Objections to Plaintiffs’
Amended Complaint, 12/12/14, at 3. Those objections were subsequently
withdrawn. Trial Court Order, 3/9/15, at 1.
4
  Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -3-
J-A07022-16


      On appeal, Appellants raise the following issues for our review.

            1.    Whether the Trial Court erred in considering
            [Appellees’] Preliminary Objections to [Appellants’]
            Amended Complaint, which included an objection to
            the sufficiency of [Appellants’] quiet title action when
            [Appellees] could have, but failed to, raise this
            objection to the original Complaint?

            2.     Whether the Trial Court erred in sustaining
            [Appellees’] Preliminary Objection to the legal
            sufficiency of [Appellants’] quiet title claim contained
            in the Amended Complaint by determining that the
            gift to [Appellants] of the interest in the subject
            property was ineffective as a matter of law?

            3.    Whether the Trial Court erred in dismissing the
            Amended Complaint in its entirety when [Appellees]
            did not assert Preliminary Objections as to all of the
            causes of action contained therein?

            4.   Whether the Trial Court erred in dismissing the
            Amended Complaint in its entirety without providing
            [Appellants] with leave to amend the pleading?

Appellants’ Brief at 4.

      We first take note of the following principles, guiding our consideration

of these issues.

            [O]ur standard of review of an order of the trial court
            overruling or granting preliminary objections is to
            determine whether the trial court committed an error
            of law. When considering the appropriateness of a
            ruling on preliminary objections, the appellate court
            must apply the same standard as the trial court.

                  Preliminary objections in the nature of a
            demurrer test the legal sufficiency of the complaint.
            When considering preliminary objections, all material
            facts set forth in the challenged pleadings are
            admitted as true, as well as all inferences reasonably
            deducible therefrom. Preliminary objections which

                                     -4-
J-A07022-16


            seek the dismissal of a cause of action should be
            sustained only in cases in which it is clear and free
            from doubt that the pleader will be unable to prove
            facts legally sufficient to establish the right to relief.
            If any doubt exists as to whether a demurrer should
            be sustained, it should be resolved in favor of
            overruling the preliminary objections.

Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012), quoting

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).

      In their first issue, Appellants contend that Appellees waived their

preliminary objection in the nature of a demurrer to the quiet title count in

Appellants’ amended complaint.      Appellants’ Brief at 16.    They argue that

the grounds asserted in Appellees’ preliminary objections to the amended

complaint could have been raised in their preliminary objections to the

original complaint.    Id. at 16-17.       “Accordingly, where a preliminary

objection to an amended complaint attacks, for the first time, matters that

were raised in the original complaint, the objection has been waived.” Id. at

16, citing Pa. Dept. of Transp. v. Bethlehem Steel Corp., 380 A.2d 1308,

1310-1311 (Pa. Cmwlth. Ct. 1977) (holding that “[p]reliminary objections to

an amended complaint may not include matters which appeared in the

original”); see also Pa.R.C.P. 1028(b), (c) (providing in part that “[a]ll

preliminary objections shall be raised at one time,” but that “[i]f a party has

filed an amended pleading as of course, the preliminary objections to the

original pleading shall be deemed moot”).




                                      -5-
J-A07022-16


       This Court has clarified, however, that the foregoing rule is not

offended where the trial court did not rule on the original preliminary

objections before a party of its own volition files an amended pleading.

Martin v. Gerner, 481 A.2d 903, 906-907 (Pa. Super. 1984). In Martin,

the plaintiff objected to the defendant’s second set of preliminary objections,

filed after the plaintiff amended the original complaint, on the ground they

were not raised in the defendant’s original preliminary objections.     Id. at

906.    Because the trial court had not ruled on the original preliminary

objections before the plaintiff filed an amended complaint, we held as

follows.

            Goodrich-Amram succinctly sets forth the situation
            we have in this case at 2 Goodrich-Amram 2nd,
            1033: 6 as follows:

                  When the plaintiff voluntarily amends his
                  complaint to meet objections by the defendant
                  additional objections which may have been
                  available to the original complaint may be filed,
                  on the theory that the court has not yet ruled
                  on the preliminary objections. Until the court
                  enters an order based upon them, additional
                  objections and additional reasons may be
                  added, for this is not a serial objection. The
                  dilatory pleading is still confined to a single
                  stage.

Id. at 906-907 (Emphasis added in Martin).         Instantly, we confront the

same scenario and deem Martin to be controlling. We therefore conclude

the trial court did not err in addressing the merits of Appellees’ preliminary

objection in the nature of a demurrer.


                                     -6-
J-A07022-16


        In their second allegation of error, Appellants assert that the trial court

erred as a matter of law in concluding they failed to adequately plead that

Parents had completed the gift of the Property to Children. Appellants’ Brief

at 18.    Specifically, Appellants argue, “[b]ecause the Amended Complaint

sets forth clear and sufficient facts that, if proven, will establish that

[Children] are the true and correct owners of the [Property] pursuant to the

Gift, the Trial Court erred in granting [Appellants’] demurrer.” Id.

        The trial court found that Appellants “admit that delivery of a deed

never occurred.” Trial Court Opinion, 7/14/15, at 3. Because delivery is an

essential element in consummating a gift, the trial court concluded that

Appellants “have presented no evidence to cure this fatal defect in their

amended complaint and as such, their complaint is legally insufficient to

establish an ownership interest,” upon which their action is dependent. Id.

at 3.

              A valid inter vivos gift of real estate has two
              components: “(1) a donative intent upon the part of
              the grantor [and] (2) a delivery of the deed to the
              grantee, either actual or constructive, which divested
              the donor of all dominion over the property and
              invested the donee therewith.” Fiore v. Fiore, 405
              Pa. 303, 305-06, 174 A.2d 858, 859 (1961).

In re Padezanin, 937 A.2d 475, 480 (Pa. Super. 2007).

              Without a complete delivery during the lifetime of
              the donor, there can be no valid gift inter vivos.
              Though every other step be taken that is essential to
              the delivery of the gift, if there is no delivery; the
              gift must fail. Intention cannot supply it; words
              cannot supply it; actions cannot supply it. It is an

                                        -7-
J-A07022-16


             indispensable requisite, without which the gift fails,
             regardless of consequence.

In re Stewart’s Estate, 163 A. 754, 756 (Pa. 1932) (internal quotation

marks and citations omitted).      However, “the recording of a deed is not

essential to its validity or to the transition of the title.” Fiore, supra at 859.

Therefore, the ability to record a deed is not an element of delivery or of

perfecting a gift, because recording concerns constructive              notice to

subsequent    purchasers,   mortgagors,     or   creditors.    See     Matter   of

Pentrack’s Estate, 405 A.2d 879 (Pa. 1979).

      After a thorough review of the pleadings, we conclude the trial court

failed to apply all “inferences reasonably deducible” from the allegations in

Appellants’ amended complaint relative to delivery of the alleged gift.

Specifically, Appellants averred as follows.

             14. In May, 2012 [Appellants] caused a deed for
             the [Property] to be prepared to memorialize of
             record in Greene County, Pennsylvania the transfer
             of ownership of the [Property] gifted to the
             [Children] on January 3, 2004 at the suggestion of
             William Kania and at the direction of [Parents] and
             delivered same to [Parents] for execution and
             delivery for recording in the Office of the recorder of
             Deeds of Greene County, Pennsylvania.

             15. The deed referred to in Paragraph 14 hereof
             was executed and returned to [Appellant] Jack
             Stanley, Jr. for delivery and recording by
             [Parents]. The said deed was incorrectly executed
             by [Parents]. Upon being informed of the error in
             execution they advised [Appellant] Jack Stanley, Jr.
             they would correctly execute and deliver the deed
             when they returned to Pennsylvania from Florida.


                                      -8-
J-A07022-16


              16. Despite causing a new deed for the gifted
              [Property] to be prepared by [Appellants] and
              delivering same to [Parents] for execution and
              delivery upon return to Pennsylvania as represented,
              [Parents] have refused and/or neglected to execute
              and deliver the deed to the gifted [Property] to
              [Children] for recording.

Amended Complaint, 11/25/14, at 4-5 ¶¶ 14-16 (emphasis added).

       In the foregoing paragraphs, Appellants aver that the May 2012 deed

was executed by Parents, albeit “incorrectly.”     It is a reasonable inference

from the entire pleading, however, that Parents signed the deed in sufficient

manner to accomplish the gift of the Property, but not in a manner that

permitted proper recording of the deed.5            Additionally, the amended

complaint clearly avers that Parents sent the May 2012 deed to Jack

Stanley, Jr., thus constituting delivery of the gift. Id. Therefore, the trial

court’s conclusion, that Appellants conceded that delivery of the deed never

took place, is unsupported.           The averments in the paragraphs of the

amended complaint, relied on by the trial court, arguably refer to Parents’

refusal to complete a corrected deed of the already completed gift.       See,

e.g., id. at 5 ¶¶ 18, 20.


____________________________________________
5
  We recognize that Appellants’ amended complaint is not specific about how
the execution of the May 2012 deed was incorrect and that a copy of the
May 2012 deed was not attached. However, Appellees, in their preliminary
objections to Appellants’ amended complaint did not include an objection for
failure to attach a writing upon which a claim is based, or for insufficient
specificity in the pleading. See Preliminary Objections to Plaintiffs’ Amended
Complaint, 12/12/14, at 1-4.


                                           -9-
J-A07022-16


       We determine that, when viewing the amended complaint under the

proper standard, this is not a case in “which it is clear and free from doubt

that the pleader will be unable to prove facts legally sufficient to establish

the right to relief.” See Richmond, supra. We consequently conclude the

trial court erred in sustaining Appellees’ preliminary objection in the nature

of a demurrer, and in dismissing Appellants’ amended complaint.           We

therefore reverse the trial court’s March 9, 2015 order and remand for

further proceedings.6

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judge Jenkins joins the memorandum.

       Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016




____________________________________________
6
  Because of our disposition of Appellants’ second issue, we need not
address their remaining claims of error.


                                          - 10 -
