J-A22025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHELLY K. JOHNSTON                              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

DALTON T. JOHNSTON AND ROBERTA L
JOHNSTON, HIS WIFE; THOMAS M.
JOHNSTON

                            Appellee                 No. 91 MDA 2016


               Appeal from the Order Entered December 16, 2015
               In the Court of Common Pleas of Lycoming County
                   Civil Division at No(s): CV-2014-001995-CV


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 28, 2016

       Appellant Shelly K. Johnston (“Shelly”) appeals from the December 16,

20151 order, which denied her motion for summary judgment and granted

summary judgment in favor of Appellees Dalton T. Johnston (“Dalton”),

Roberta L. Johnston, his wife (“Roberta”), and Thomas M. Johnston

(“Thomas”) (collectively “Appellees”). After careful review, we affirm.

       The trial court set forth the relevant facts and procedural history of

this appeal as follows:

          In 1991, Donald Holtzman and Thomas Johnston proposed
          to essentially swap about 6 acres of land from their
          respective adjoining properties in Pine Township. The swap
____________________________________________


1
 The opinion is dated December 16, 2015 and stamped as filed December
17, 2015.
J-A22025-16


       involved two parcels accessed by an existing private right-
       of-way. By letter dated January 9, 1991 (1991 letter), the
       Lycoming County Planning Commission notified Donald
       Holtzman and Thomas Johnston that the Chairperson
       granted final plan approval of their two add lot subdivision
       in accordance with Section 2.033 E., of the Lycoming
       County Subdivision and Land Development Ordinance. The
       plan proposed to subdivide lot #1, containing 6.005 acres
       from land owned by Thomas Johnston to be added to
       adjoining lands owned by Donald Holtzman and to
       subdivide 6.012 acres from Donald Holtzman to be added
       to adjoining land owned by Thomas Johnston.

       That letter provided the following stipulation for approval.

          As a stipulation of subdivision approval, Donald
          Holtzman and Thomas Johnston, as Grantee, each
          are required to combine their addition lot with their
          existing property into one deed of record. If the
          parcels are described separately in the same deed,
          we require a note be placed in the deed that the two
          parcels are to be considered as one for subdivision
          purposes. This will preclude future conveyance of the
          property      without         prior      subdivision
          approval.[(emphasis added)]

       As required, a copy of the approved plan and approval
       letter were timely recorded in the County Register and
       Recorders office. The swap of the land occurred with
       Thomas [] and his wife, Beverley Johnston, now deceased,
       receiving a deed to the 6.012 acres of land (“addition lot”).
       However, Thomas[] did not combine the addition lot with
       his existing property into one deed as required by the
       stipulation. By deed dated December 21, 2001, Thomas
       []and his wife conveyed the exi[s]ting property to their
       now deceased son and his wife, [Shelly,] without mention
       of the addition lot. The deed lists the consideration for
       that conveyance as $1.00. By deed dated September 13,
       2011, Thomas Johnston conveyed the addition lot to his
       other son, [Dalton] and his wife, [Roberta].1
          1
           A deed dated May 17, 2013 and recorded on May
          31, 2013, labeled a corrected deed, purported to
          convey the addition lot from [Shelly] and her
          husband (now deceased) to themselves. Since a


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J-A22025-16


              deed dated September 13, 2011 was recorded as
              conveying title to the addition lot prior to the
              corrective deed, [Shelly] does not contend that the
              corrective deed gives her title. Instead, by this
              action, [Shelly] seeks to have that deed stricken as a
              legal nullity and require that a quit claim deed be
              filed to convey title of the addition lot to her.

          On July 31, 2014, [Shelly] filed a complaint to quiet title as
          to the addition lot, seeking to declare that [Dalton and
          Roberta] are barred from ascertaining any right, lien, title
          or interest in the Lot and requesting an Order to cancel the
          Deed which provides [Dalton and Roberta] with record
          ownership of the addition lot.[2]

          The parties filed cross-motions for summary judgment.
          [Shelly] contends that the deed dated September 13, 2011
          conveying the addition lot to Dalton and Roberta[]is a legal
          nullity as a matter of law because the stipulation for
          approval of the swap of addition lots set forth in the 1991
          letter was violated and no further approval was sought or
          obtained prior to separating the addition lot from the
          property existing at the time of the swap. [Appellees]
          contend that as a matter of law [Shelly] has no legal title
          to the addition lot because the deed conveying the existing
          property did not include the addition lot and the addition
          lot was subsequently conveyed by deed to [Dalton and
          Roberta]. [Appellees] contend that summary judgment
          should be entered in their favor along with a determination
          that [Dalton and Roberta] have legally valid title to the
          addition lot.



____________________________________________


2
  Pursuant to Pa.R.C.P. 1061(b)(3), an action to quiet title may be brought
“to compel an adverse party to file, record, cancel, surrender or satisfy of
record, or admit the validity, invalidity or discharge of, any document,
obligation or deed affecting any right, lien, title or interest in land[.]” Id. A
party may bring an action to quiet title under Pa.R.A.P. 1061(b)(3) when the
case at issue “involves a cloud” on the property and does not involve a
possessory interest. Kean v. Forman, 752 A.2d 906, 908 (Pa.Super.2000).




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Trial Court Opinion and Order denying Shelly’s motion for summary

judgment and granting summary judgment in favor of Appellees, filed

December 17, 2013, at 1-3.

        On December 16, 2015, the trial court granted summary judgment in

favor of Appellees.3      On January 13, 2016, Shelly timely filed a notice of

appeal.4

         Shelly raises the following issues for our review:

           1. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
           LAW BY GRANTING SUMMARY JUDGMENT TO APPELLEES
           WITHOUT FINDING THAT THE APPELLEES’ DEED TO THE
           ADD-ON LOT WAS VALID AS A MATTER OF LAW. THE
           TRIAL COURT IMPOSED A BURDEN ON THE APPELLANT IN
           THIS REGARD BY REQUIRING THE APPELLANT TO “CITE A
           CASE OR STATUTE THAT PERMITS A COURT TO
           INVALIDATE A DEED BECAUSE THE DEED CONVEYS
           PROPERTY WITHOUT THE APPROPRIATE SUBDIVISION
           APPROVAL OR IN SPECIFIC VIOLATION OF A SUBDIVISION
           APPROVAL STIPULATION.” THE TRIAL COURT IMPOSED NO
           SUCH BURDEN ON THE APPELLEES WHEN CONSIDERING
           THE APPELLEES’ SUMMARY JUDGMENT MOTION ON THIS
           ISSUE[?]

           2. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
           LAW BY DETERMINING THAT APPELLANT HAD TO PROVE
           FRAUD, ACCIDENT OR MISTAKE TO INVALIDATE THE
           APPELLEES’ DEED TO THE ADD-ON LOT[?]
____________________________________________


3
  Shelly filed post-trial motions. Post-trial motions are improper following
the grant of a motion for summary judgment. See Pa.R.C.P. 227.1(c) Note
(“A motion for post-trial relief may not be filed to orders disposing of
preliminary objections, motions for judgment on the pleadings or for
summary judgment, motions relating to discovery or other proceedings
which do not constitute a trial.”).
4
    Both Shelly and the trial court complied with Pa.R.A.P. 1925.



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J-A22025-16


          3. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
          LAW BY REFUSING TO INVALIDATE THE APPELLEES’ DEED
          TO THE ADD-ON LOT FOR INTENTIONAL VIOLATION OF A
          RESTRICTIVE SUBDIVISION CONDITION PRECLUDING
          CONVEYANCE OF THE SAME[?]

          4. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
          LAW BY VALIDATING APPELLEES’ DEED TO THE ADD-ON
          LOT WHEN THAT DEED WAS IN DIRECT INTENTIONAL
          VIOLATION OF A RESTRICTIVE CONDITION OF THE
          SUBDIVISION APPROVAL CREATING THAT ADD-ON LOT[?]

Appellant’s Brief at 4.

      When reviewing an order granting or denying a summary judgment

motion,
          [w]e view the record in the light most favorable to the
          nonmoving 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. Our scope of review of a trial
          court’s order granting or denying summary judgment is
          plenary, and our standard of review is clear: the trial
          court’s order will be reversed only where it is established
          that the court committed an error of law or abused its
          discretion.

Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W.

Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).

      Appellant Shelly challenges the validity of the 2011 deed that

purported to convey the six-acre “add-on” lot from Thomas to his son Dalton

and his wife. In her first issue, Shelly argues the court erred by finding the

deed was valid in the first place and failing to find that the “add-on” was part

of the 200 acre lot (“the residue lot”) that Thomas gave to her and her

husband, Thomas’s son (now deceased), in 2001. She claims that Thomas

                                     -5-
J-A22025-16


was required to combine the residue lot with the “add-on” as a stipulation of

the original subdivision of the land. She claims this restriction is a covenant

that runs with the land, and that Thomas did not have any land to give

Dalton because he had already given it to her.       In her final three issues,

Shelly argues the court erred by refusing to invalidate the deed for the “add-

on.” She claims the court held her to the wrong standard to prove the deed

was invalid, and that the deed should be invalidated because Thomas

intentionally violated the restrictive covenant placed on the land by failing to

combine the deeds and by giving the “add-on” to Dalton.

      We observe:

         conveyance of real property by way of deed is
         presumptively valid and will not be set aside unless it is
         shown by clear and convincing evidence that the transfer
         was improperly induced by fraud or other misconduct on
         the part of the transferee or that the deed was ineffective
         to pass title, as, for example, where the deed was not
         delivered.

Wagner v. Wagner, 353 A.2d 819, 824 (Pa.1976).

      Here, in 1991, Thomas and his neighbor, Holtzman, swapped six-acre

lots of land from their adjoining properties.    As a stipulation to the sub-

division, they were both supposed to combine the six-acre lots into one

deed covering the adjoining properties. Thomas did not do this. In 2001,

Thomas gave the residue lot to his deceased son and Shelly.           In 2011,

Thomas gave the “add-on” lot to his other son, Dalton, and his wife. Even if

the deed for the “add-on” that Thomas gave to Dalton was not valid, Shelly


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J-A22025-16


would have no right to this land, because Thomas never combined the

deeds, and Shelly never owned the “add-on.”

     Thomas intended to give the “add-on” to Dalton, his son, as evidenced

by the deed.    He was not fraudulently induced into doing so, and the

presumption that the deed for the “add-on” is valid remains intact. Shelly’s

complaint that the court is putting the burden on her instead of on Appellees

is without merit. The trial court simply followed the law. It did not commit

an error of law or abuse its discretion in ruling on the cross motions for

summary judgment.      Thus, Shelly’s issues merit no relief, and we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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