J-A24004-17

                              2017 Pa Super 377



IN RE: G.J.K. & SONS, LLC AND SOUTH                IN THE SUPERIOR COURT
OAKVIEW HOMEOWNERS ASSOCIATION                               OF
(BOOK 468, PAGE 2088)                                   PENNSYLVANIA




APPEAL OF: G.J.K. & SONS, LLC

                                                      No. 1731 WDA 2016


              Appeal from the Order Entered October 6, 2016
              In the Court of Common Pleas of Greene County
                    Civil Division at No(s): 491 AD 2014


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:                            FILED December 1, 2017

      G.J.K. & Sons, LLC (“GJK”) appeals from the October 6, 2016 order of

the Greene County Court of Common Pleas granting Willard Hetrick’s “Motion

to Remove Deed from Record.” While we understand the trial court’s interest

in removing a purportedly fraudulent deed from the records of the Greene

County Recorder of Deeds, we conclude that the court lacked jurisdiction to

take such action. Accordingly, we are constrained to vacate the trial court’s

order and remand for the dismissal of the proceedings.

      The trial court set forth the factual and procedural history of this matter

as follows:
            [GJK is] a developer of ten to fifteen residential building
         lots known as “South Oakview” in Franklin Township,
         Greene County. On each lot has been built a home. No
         formal lot “Plan” was approved by either the Franklin
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           Township or the Greene County Planning Commissions.
           [GJK] sold lots one at a time until their final tract was the
           one serving the access road, and at issue. Because this road
           does not meet the required engineering standards, Franklin
           Township never “accepted” this “Final Tract” and it has not
           been dedicated as a public road. It is paved and suffering
           from creeping neglect. . . .

               Willard Hetrick, a resident of a house built on a South
           Oakview lot . . . had a General Warranty Deed prepared,
           and on May 12, 2014, recorded it in the Greene County
           Office of Recorder of Deeds. On its face, the Deed appears
           to transfer ownership of this “Final Tract” roadway from
           [GJK] to the “South Oakview Homeowner’s Association
           [“Association”)].” However, the [Association] is a compete
           fiction. It does not exist.

              On June 30, 2014, on behalf of lot owner Willard Hetrick,
           an attorney presented a “Motion to Strike Recorded Deed”
           to then President Judge William R. Nalitz, who soon retired
           without taking any formal action.[1]       Later, as a new
           President Judge, this Court received a “Letter of Inquiry”
           from a second lot owner, Lenora Swiger, regarding the
           status of the “Hetrick Petition” of which until then, we were
           unaware. We directed the Swiger “Letter of Inquiry” be
           docketed to the miscellaneous records of the Prothonotary
           as a pro se “Motion” to consider Willard Hetrick’s “Petition[”]
           seeking to have the Deed administratively removed from
           the docket . . . .

              No one disputes that [the Association] does not exist, but
           that may not have been obvious to the clerks of the Office
           of Recorder of Deeds.

               On June 23, 2016, [GJK] submitted a Brief to this Court
           arguing that because no action had been initiated by a
           Complaint, or Writ of Summons, this Court’s consideration
           of the matter was in violation of [the] Pennsylvania Rules of
           Civil Procedure, and should be dismissed. . . .
____________________________________________


       Hetrick’s motion was actually titled, “Motion to Remove Deed from
       1

Record,” which was marked “refused” by Judge Nalitz. See Trial Ct. Dkt. at
1.

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             On June 28[], 2016, this Court held an informal hearing
         . . . on the record for the purpose of bringing together all
         those who may have an interest in the “Swiger Letter,” and
         the “Het[]rick Petition.”    Given notice were the South
         Oakview lot owners, Franklin Township officials, and Greene
         County Officials, and [GJK]. This Court heard statements
         from several who attended, including Counsel, and we
         decided to continue the matter so as to provide all parties
         ample time to attempt to mediate a resolution of the
         circumstance.

            On October 3, 2016, this Court held a Status Conference
         with Counsel for [GJK], Franklin Township, and the County
         of Greene. Recognizing that no progress had been made,
         [GJK] renewed its Motion to Dismiss, which we granted.

             On October 6, 2016, by Order, we also directed the
         Recorder of Deeds to “strike” the Deed in question from the
         recorded instruments docket, recognizing that the Deed
         should never have been allowed to be recorded, in that it
         failed to meet statutory requirements.

Opinion Pursuant to 1925, 1/12/17, at 2-3 (unpaginated) (“1925(a) Op.”).

      In his Pennsylvania Rule of Appellate Procedure 1925(a) opinion,

President Judge Farley Toothman stated that he granted GJK’s motion to

dismiss because “a civil action must be commenced by the filing of a Praecipe

for a Writ of Summons, or a Complaint, and because neither was filed,” the

trial court “erred in allowing the dispute to proceed.”       Id. at 4.   Judge

Toothman nevertheless determined that, as the president judge, he was

authorized to strike the defective deed due to his “obligation, and privilege, to

promote confidence in recorded records.” Id. at 6. On November 7, 2016,

GJK timely appealed to this Court.

      GJK raises the following issues on appeal:



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           1. Whether an action can be commenced in Pennsylvania by
              filing a “Motion to Remove Deed” as opposed to filing a
              praecipe for a writ of summons, a complaint, or an
              agreement for an amicable action?

           2. Whether findings of fact and/or conclusions of law in
              proceedings in an action commenced by means other
              than the filing of a praecipe for a writ of summons, a
              complaint, or an agreement for an amicable action are
              legally valid?

           3. Whether the Honorable Farley Toothman, President
              Judge of Greene County, exceeded his authority in
              striking the Deed in order to “maintain the integrity of
              the docket of the Recorder of Deeds” of Greene County
              in the absence of a properly commenced action?

           4. Whether the trial court reached factual findings and legal
              conclusions in its “Opinion Pursuant to [Rule] 1925” that
              deprived [GJK] of its right to due process?

GJK’s Br. at 5-6 (trial court answers omitted).

       GJK first asserts that because this action was not properly commenced

under the Pennsylvania Rules of Civil Procedure, the trial court lacked

jurisdiction to take any action in the matter. We agree.

       Pennsylvania Rule of Civil Procedure 1007 provides that “[a]n action

may be commenced by filing with the prothonotary (1) a praecipe for a writ

of summons, or (2) a complaint.” Pa.R.C.P. 1007; see also Pa.R.C.P. 1063

(stating that action to quiet title shall be commenced by filing of complaint

with prothonotary);2 Pa.R.C.P. 1061(b)(2), (3) (providing that quiet title


____________________________________________


       Rule 1063 was amended on June 27, 2017, and became effective on
       2

October 1, 2017. The new rule permits a quiet title action to be commenced
only by complaint and no longer allows such an action to be commenced by
agreement for an amicable action. See Pa.R.C.P. 1063 Explanatory Cmt.

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action may be brought to determine validity of “deed affecting any right, lien,

title or interest in land” or to “compel an adverse party to . . . cancel . . . any

deed”).

       Here, Hetrick commenced this action by filing with the trial court a

“Motion to Remove Deed from Record.”3              As our Supreme Court has

recognized, however, “[n]owhere do the rules [of civil procedure] provide for

commencing an action by a petition.” Hartmann v. Peterson, 265 A.2d 127,

128 (Pa. 1970).       “With no complaint, summons or amicable agreement to

bring [an] action within the power to act of the court below, [the court] has

no power to make any order whatsoever, including an order allowing the filing

of a complaint nunc pro tunc.” Id.; see also In re Casale, 517 A.2d 1260,

1263 (Pa. 1986) (“[A]n action brought by petition and rule, neither authorized

by statute nor auxiliary to jurisdiction already obtained and not designed to

correct the court’s own records, is a nullity and confers no jurisdiction on the

court.”) (footnote omitted); Wm. Garlick & Sons, Inc. v. Lambert, 287

A.2d 143, 144 (Pa. 1972) (stating that “a petition is only permitted where it

is ancillary to an already pending action”). Here, the trial court dismissed the

action as not properly commenced, but then ordered that the deed be stricken

despite the absence of a properly commenced action. Because the trial court

lacked jurisdiction, we conclude that its order was a nullity. Accord In re
____________________________________________


       Notably, Hetrick filed this motion not with the prothonotary, but with
       3

then-President Judge Nalitz, who correctly refused the motion as procedurally
improper. The prothonotary docketed both the motion and the refusal order
on June 30, 2014.

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J-A24004-17



Corr. of Official Records with Civ. Action, 404 A.2d 741, 742-43

(Pa.Cmwlth. 1979) (en banc) (reversing trial court order directing recorder of

deeds to remove oil and gas leases from public records, where trial court

lacked jurisdiction because suit was improperly commenced by petition and

rule).

         In his Rule 1925(a) opinion, Judge Toothman contended that despite

the lack of a properly commenced civil action, he was authorized to strike the

deed from the record under section 325(e) of the Judicial Code, 42 Pa.C.S.

§ 325(e). We disagree.

         Section 325(e) provides:
              (e) Powers of the president judge.—Except as
           otherwise provided or prescribed by this title, by general
           rule or by order of the governing authority, the president
           judge of a court shall:

               (1) Be the executive and administrative head of the
           court, supervise the judicial business of the court,
           promulgate all administrative rules and regulations, make
           all judicial assignments, and assign and reassign among the
           personnel of the court available chambers and all physical
           facilities.

             (2) Exercise the powers of the court under section
           2301(a)(2) (relating to appointment of personnel).

42 Pa.C.S. § 325(e).      The plain language of section 325(e) authorizes the

president judge to regulate and oversee the business and operation of the

common pleas court and court personnel. It does not mention non-judicial

county offices such as the recorder of deeds. See 1 Pa.C.S. § 1921(b) (“When

the words of a statute are clear and free from all ambiguity, the letter of it is



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not to be disregarded under the pretext of pursuing its spirit.”). Contrary to

Judge Toothman’s conclusion, nothing in the language of section 325(e)

authorizes the president judge to ensure the accuracy of instruments recorded

with the recorder of deeds absent a properly commenced legal action.

       We recognize a trial court has the inherent power to correct mistakes in

its own records. See Davis v. Cmwlth. Trust Co., 7 A.2d 3, 5 (Pa. 1939).

However, documents recorded with the recorder of deeds are distinct from

judicial records filed with the prothonotary. See Delco Ice Mfg. Co. v. Frick

Co., 178 A. 135, 137 (Pa. 1935) (“Judicial records have been defined as those

associated with the progress of litigated cases. . . . [W]e have distinguished

between a judicial record and a record made pursuant to a statute in the office

of the recorder of deeds for the purpose of giving constructive notice.”); Corr.

of Official Records, 404 A.2d at 743 (recognizing that although trial court

has inherent ability to correct its own records, that power does not extend to

instruments recorded with recorder of deeds). Accordingly, we conclude that

the trial court lacked authority to strike the purportedly defective deed from

the record.4
____________________________________________


       4 The Greene County Planning Commission (“Commission”), a
participant in both the proceedings below and this appeal, raised in its brief
some of the concerns that undoubtedly led President Judge Toothman to take
the action he did:

           [I]t is now a foregone conclusion that the Deed in question
           is fraudulent, and the conveyance of this land which makes
           up the development’s road system should not be reinstated



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J-A24004-17



       Order vacated.       Case remanded for dismissal of the proceedings.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/1/2017



____________________________________________


          and further mislead any party who may rely on it. Moreover,
          once a Deed is filed, the public is entitled to rely upon the
          accuracy of that Deed. Here, where the parties knowingly
          and willfully prepared and filed a fraudulent Deed, the
          purpose of the recording statutes is defeated. Not only that,
          the public’s confidence in the accuracy of the Recorder of
          Deed’s office is undermined.

             . . . The Trial Court’s decision to strike the fraudulent
          Deed from [the] record . . . protects any subsequent
          purchasers of this land who, if the Deed is restored to the
          Recorder of Deeds, will in essence attempt to purchase land
          from an entity that does not exist. Additionally, and more
          to the point, a litigant will find it difficult if not impossible to
          impose liability on a fictional association for the
          undeveloped road within this development.

Commission’s Br. at 11.

       We make no determination concerning the accuracy of these
representations, largely because the proceedings that might support the
factual claims were a nullity. Nevertheless, we note that GJK does not contend
that an interested homeowner, or indeed a county or municipal entity, could
not file a proper action giving the trial court jurisdiction to adjudicate the
legitimacy of the deed. Nor do we express any view as to whether the Greene
County Recorder of Deeds could take appropriate corrective action in the
absence of litigation.

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