J-S15018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYER, J., AND BAYER, D.                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellees

                        v.

BAUER, F., AND SHOUP, M.

                             Appellants             No. 696 MDA 2014


              Appeal from the Order Entered on March 19, 2014
              In the Court of Common Pleas of Sullivan County
                       Civil Division at No.: 2009-CF-85


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:

      Appellants Florence E. Bauer and Mary Shoup appeal the trial court’s

March 18, 2014 order, which denied Appellants’ motion in limine seeking to

preclude the introduction of parol evidence in this declaratory judgment

action concerning mineral rights; nullified a deed purporting to transfer

mineral rights to Appellants; and declined to find any reservation of mineral

rights in the deed transferring the property at issue to Appellees James

Bayer and Diana Bayer (collectively, “the Bayers”). We affirm.

      The trial court has provided the following factual and procedural

history of this case:
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       [The Bayers] instituted this action [against Florence [E.] Bauer,
       individually and as executrix to the estate of Walter Bauer,1]
       seeking declaratory relief regarding the coal, oil, gas, [fire clay,]
       and all minerals and metal of whatever nature (hereinafter
       “mineral rights”) pertaining to fifty (50) acres of land situate in
       Cherry Township, Sullivan County, Pennsylvania (hereinafter
       “the premises”). In 1965[,] Florence [M.] Bauer and Walter
       Bauer, mother and son and both of whom are now deceased
       [hereinafter, “the Decedents”], acquired title as joint tenants to
       the [p]remises by deed of Andrew Horutz . . . . In 1978, [the
       Decedents] acquired title as joint tenants to the oils, gases and
       minerals pertaining to the premises by deed of Michael J.
       Lisowski et ux. . . .

       In the fall of 1993[,] [the Decedents] listed the premises for sale
       in the multi-list service. The multi-list advertisement did not
       specify any exception or reservation of any interest in the
       minerals.       To the contrary, the multi-list advertisement
       evidenced that mineral rights were included with the sale. The
       agreement of sale also did not specify any exception or
       reservation of any interest in the minerals. On April 21, 1994[,]
       [the Decedents] conveyed to [the Bayers] the premises . . . .
       The Deed contains the following language, which is the subject
       of this litigation:

          The Grantors herein are granted by the above set forth
          Deed all coal, oil, gas, fire[], clay and all minerals and
          metal of whatever nature to the above set forth
          [p]remises.

          Being the same premises described in a deed from Andrew
          Horutz, single[,] to [Decedents,] dated April 29, 1965[,]
          and recorded May 13, 1965, in Sullivan County . . . .

       The [Decedents] further received a deed from Michael J, Lisowski
       and Theresa A. Lisowski, his wife, dated November 14, 1978,
       and recorded in Sullivan County . . ., said deed conveying [the
       Lisowskis’] interest in all coal, oil, gas, [fire clay], and all
       minerals and metal of whatever nature to the above set forth
       premises.
____________________________________________


1
    Mary Shoup later was joined as an indispensable party defendant in an
amended complaint.



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     Florence M. Bauer predeceased Walter, thereby vesting title to
     the premises, including any claim by the Bauers to the title to
     the [mineral] rights, in Walter. Walter passed away on June 30,
     [2]006. Defendant Florence [E.] Bauer (hereinafter “Ms. Bauer”)
     is Florence M. Bauer’s daughter and Walter Bauer’s sister and is
     the executrix of both [Decedents’] estate[s].

     Ms. Bauer testified at her deposition that she had nothing to do
     with the subject property . . . in 1994, at the time it was sold [to
     the Bayers].      Despite testifying that [Walter, her brother,]
     owned and sold other properties, Ms. Bauer testified that her
     brother never excepted or reserved any other oil and gas rights
     out of any other property than the one at issue before [the trial
     court]. When asked about her basis of belief that the mineral
     rights did not transfer to [the Bayers] via the 1994 deed,
     Ms. Bauer testified that “Walter wouldn’t transfer anything”
     because “he wanted to hold on to the mineral rights[.”] The
     [trial court] finds this testimony somewhat inconsistent.

     Until January 28, 2009, when Ms. Bauer caused a deed to be
     recorded between the Estate of Walter . . . and Bauer to herself
     and her sister, Mary Shoup, Ms. Bauer, as executrix of the
     estates of Walter and Florence Bauer, did not acknowledge any
     interest in the mineral rights of the subject property. Ms. Bauer
     did not list any rights to subsurface rights in the inventory or the
     inheritance tax return she filed for either [of Decedents’] estates.
     In fact, Ms. Bauer testified that she was shocked when she
     became aware of [the Bayers’] lawsuit.

     In or around January 2009[, Ms. Bauer, as executrix of the
     estate of Walter Bauer,] executed and recorded a Deed
     purporting to convey the minerals [from Walter’s estate] to
     Defendants Florence E. Bauer[,herself,] and Mary R. Shoup . . . .
     Meanwhile, on or about May 24, 2008[, the Bayers] leased the
     minerals to Chesapeake Appalachia, LLC . . . .      Hence, the
     instant litigation.

     This matter came before the [trial court] for a non-jury
     trial, . . .[,] and the matter is now ripe for decision. Prior to the
     trial, [Appellants] filed a Motion in Limine requesting [the trial
     court] to consider only the plain language of the deed at issue,
     namely the deed transferring the premises from [the
     Decedents] . . . to [the Bayers]. In response, [the Bayers]
     assert that the deed on its face is ambiguous because it is
     susceptible to two or more reasonable constructions and[,] as


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       such[,] parol[] evidence must be considered. . . . [The trial
       court] agrees with [the Bayers] and [Appellants’] Motion in
       Limine shall be denied.

Trial Court Opinion, 3/19/2014, at 3-6 (citations omitted).        In its opinion,

the trial court explained that it reviewed parol evidence to resolve the

dilemma caused by the deed’s ambiguity.          Based upon that evidence, the

trial court construed the deed in favor of the Bayers and granted the Bayers

injunctive relief, securing their title to the contested mineral rights.

       On March 31, 2014, Appellants timely filed post-trial motions2 seeking

judgment notwithstanding the verdict, which the trial court denied on April

14, 2014. On April 15, 2014, Appellants filed the instant appeal. On April

16, 2014, the trial court entered an order directing Appellants to file a

concise statement of the errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellants timely complied. The trial court did not enter

a Rule 1925(a) opinion.        However, we find that the opinion accompanying

the trial court’s March 19, 2014 order adequately addresses each of the

issues raised by Appellants. Consequently, the issue is ripe for our review.

       Appellants present the following issues:
____________________________________________


2
      Post-trial motions must be filed within ten days of the trial court’s
service upon counsel of the order entering the verdict this case, which
occurred on March 19, 2014. See Pa.R.C.P. 227.1. Pursuant to that rule,
the failure to file post-trial motions results in waiver of all issues for
purposes of appeal. However, in this case, the tenth day after the service of
the verdict fell on Saturday March 29, 2014, effectively extending the
deadline to the following Monday, March 31, 2014.             Consequently,
Appellants timely filed their post-trial motion in this case.



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      1.    Did the trial court err by allowing parol[] evidence to be
      entered at trial to determine the meaning of all of the language
      in the Deed at issue and relying upon it in its verdict and
      opinion?

      2.    Did the trial court err in its reading of the language in the
      legal description of the Deed[,] to wit[:] “The Grantors herein
      are granted by the above-set forth Deed all coal, oil, gas, fire,
      clay, and all minerals and metal of whatever nature to the above
      set forth premises” by failing to find that it is a reservation
      clause in favor of [Appellants]?

      3.   Did the trial court abuse its discretion in relying upon
      speculation by [the Bayers’] witnesses as to who prepared the
      Deed, especially when it contradicted the written evidence?

      4.     Did the trial court err[,] in that its verdict was contrary to
      the weight of the evidence produced at trial[,] and misapply the
      facts to the law?

Brief for Appellants at 7.

      Appellants’ first two issues as stated essentially challenge the court’s

determination as a matter of law that the language of the instrument at

issue was ambiguous, leading the court to consider parol evidence in

gleaning the intent of the parties to that instrument. Appellants’ second two

issues go to the trial court’s weighing of the evidence introduced at trial.

Accordingly, we address Appellants’ first two issues in tandem.

      The trial court opinion and the arguments of the parties are most

easily addressed in the full context of the language of the two deeds

discussed at length by the trial court and the parties.       The first in time,

which is the deed transferring the mineral rights from the Lisowskis to the

Decedents, provides, in relevant part, as follows:




                                      -5-
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      WITNESSETH, that the [Lisowskis], for and in consideration of
      the sum of $1.00 . . . have remised, released and quit-claimed,
      and by these presents do remise, release and forever quit-claim
      unto [the Decedents], their heirs and assigns,

      ALL that certain lot, piece or parcel of land . . . bounded and
      described as follows:

      [metes and bounds of the Property]

      BEING AND INTENDING to describe the same premises conveyed
      to [the Lisowskis] by deed from Joseph Saunders and Anna
      Saunders, his wife, and James Saunders and Millie Saunders, his
      wife, being the heirs-at-law of Lewis Troioni and Ellen Troioni,
      said deed dated October 4, 1978 and recorded November 20,
      1978 in Sullivan County . . .

      [The Lisowskis] herein are granted by the above set forth deed
      all coal, oil, gas, fire clay and all minerals and metal of whatever
      nature to the above set forth premises.            It is the specific
      intention of this deed to convey to the [Decedents], their heirs,
      executors and assigns, sole and complete ownership of all
      surface and subterranean rights to the above described premises
      and further to extinguish any and all rights reserved by Lewis
      Troioni and Ellen Troioni in the above described premises.

Deed, recorded 12/11/1978, at 1.

      The deed by which the Bayers obtained title to the Property, the

interpretation of which is directly presented by this case, provides, in

relevant part, as follows:

      WITNESSETH, that in consideration of the sum of seventy
      thousand and no/100 Dollars ($70,000), in hand paid, the
      receipt whereof is hereby acknowledged; [the Decedents] do
      hereby grant and convey to [the Bayers], their heirs, and
      assigns,

      [metes and bounds of the Property]

      The [Decedents] herein are granted by the above set forth deed
      all coal, oil, gas, fire, clay and all minerals and metal of whatever
      nature to the above set forth premises.


                                      -6-
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     Being the same premises described in a deed from Andrew
     Horutz, single[,] to [the Decedents,] dated April 29, 1965, and
     recorded May 13, 1965, in Sullivan County Deed Book Volume
     76 at page 286.

     The [Decedents] further received a deed from Michael J. Lisowski
     and Theresa A. Lisowski, his wife[,] dated November 14, 1978,
     and recorded in Sullivan County Deed Book 91 at page 697, said
     deed conveying their interest in all coal, oil, gas, fire, clay and all
     minerals and metal of whatever nature to the above set forth
     premises.

Deed, recorded 4/28/1994, at 1.

     Two legal standards govern our review in this matter.          Because the

Bayers sought and obtained declaratory judgment, “our scope of review is

narrow”:

     [W]e are limited to determining whether the trial court’s findings
     are supported by substantial evidence, whether an error of law
     was committed or whether the trial court abused its discretion.
     The test is not whether we would have reached the same result
     on the evidence presented, but whether the trial court’s
     conclusion can reasonably be drawn from the evidence. Where
     the trial court’s factual determinations are adequately supported
     by the evidence we may not substitute our judgment for that of
     the trial court.

Consolidation Coal Co. v. White, 875 A.2d 318, 325 (Pa. Super. 2005)

(quoting Pressley v. The Travelers Prop. Cas. Corp., 817 A.2d 1131,

1137 (Pa. Super. 2003)).

     Because this action called upon the trial court to interpret a deed, our

review further is governed by the following standard:

     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

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J-S15018-15


        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. Id. We seek to ascertain not what the parties may
        have intended by the language but what is the meaning of the
        words they used. Id. Effect must be given to all the language
        of the instrument, and no part shall be rejected if it can be given
        a meaning. Id. If a doubt arises concerning the interpretation
        of the instrument, it will be resolved against the party who
        prepared it. Id. . . . 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. Id.

White, 875 A.2d 318 at 326-27 (citations modified). Where language in a

deed     is   ambiguous,   i.e.,   consistent   with   two   or   more   reasonable

interpretations, the court may review parol evidence to resolve the

ambiguity.     Baney v. Eoute, 784 A.2d 132, 136 (Pa. Super. 2001) (citing

Samuel Rappaport Family P’ship v. Meridian Bank, 657 A.2d 17, 21

(Pa. Super. 1995)).

        The court found the 1994 deed allegedly conveying only the surface

rights to the premises to the Bayers to be ambiguous.              Consequently, it

denied Appellants’ motion to preclude the introduction of parol evidence,

heard said parol evidence during the bench trial, and relied upon it in

resolving the ambiguous language in favor of the Bayers, based upon the

court’s inferences regarding the parties’ intentions. The court also indicated

that the same result was compelled independently by the principle that

ambiguous language must be construed against the party who drafted the

deed.     The parties disputed whether counsel for the Bayers or for the

Decedents had drafted the contested deed.              The court determined that

                                        -8-
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counsel for the Decedents had done so.       Compare T.C.O. at 10 (citing

testimony supporting the Bayers’ interpretation of the deed in support of its

ruling) with id. (“In this case, the deed was drafted by counsel for

[Decedents] and because [the trial court] finds that said deed is ambiguous,

it must be construed against them.”).

     Appellants are correct, as per the principles set forth, supra, that the

trial court’s review of parol evidence is proper only in the event that the

court properly found that the language of the 1994 deed conveying the

premises from the Decedents to the Bayers was ambiguous. The language

found by the trial court to be ambiguous comes immediately after the

description of the premises’ metes and bounds: “The Grantors herein [, i.e.,

the Decedents,] are granted by the above set forth deed all coal, oil, gas,

[fire clay] and all minerals and metal of whatever nature to the above set

forth premises.”   Deed, 4/28/1994, at 1.   The parties’ and the trial court

acknowledge that this language closely resembles language in the 1978

deed conveying the contested mineral rights from the Lisowskis to the

Decedents, which provides that “[t]he Grantors[, i.e., the Lisowskis,] herein

are granted by the above set forth deed all coal, oil, gas, fire clay and all

minerals and metal of whatever nature to the above set forth premises.”

Deed, 12/11/1978, at 1.    The parties’ dispute primarily focuses upon the

placement of this language. In the 1994 deed, the language directly follows

the description of the metes and bounds.     Consequently, its reference to

“the above set forth deed” lacks a referent because no deed whatsoever is

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J-S15018-15



alluded to in the preceding text of the deed. Conversely, in the 1978 deed,

the language appears after a description of a preceding deed conveying the

premises from the Saunders to the Lisowskis.

       Distilling the question to its essence, the ambiguity concerns whether,

as the Bayers maintain, that language constituted a mere recital, i.e., an

account of the chain of title by which Decedents came to possess their

interest in the premises, or, as Appellants maintain, a reservation of rights,

i.e., an indication of the parties’ intent that certain interests in the premises

were not to be transferred by the deed.3 Any ambiguity on this point would

justify the trial court’s reliance upon parol evidence.

       The trial court’s conclusion that the 1994 deed is ambiguous is stated,

but is not developed in detail. See T.C.O. at 9. However, the trial court’s

review of the parties’ arguments, which precedes its assertion that the 1994

deed was ambiguous, roughly suggests its basis for so concluding. Therein,

the court discusses the parties’ respective views of the import of the

similarity of language between the 1978 deed and the 1994 deed and the

____________________________________________


3
       A “recital” is language entered into a deed “for the purpose of calling
attention to the links in the chain of title . . . rather than for the purpose of
completely identifying the property conveyed.” See Craig v. Craig, 56
Pa. D. & C.4th 353, 355 (Butler Cty. 2002) (quoting Fid. Mortgage Guar.
Co. v. Bobb, 160 A.2d 120, (Pa. 121 1932)). “A reservation is the creation
of a right or interest [that] had no prior existence as such in a thing or part
of a thing granted.”       Baptist Church in Great Valley v. Urquhart,
178 A.2d 583, 586 (Pa. 1962) (quoting Lauderbach-Zerby Co. v. Lewis,
129 A. 83, 84 (Pa. 1925)).



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respective placement of that language, the latter of which differs in

potentially meaningful ways. See T.C.O. at 7-9.

      It is not clear, based upon our review of Pennsylvania precedent, that

prior deeds are not extrinsic evidence that must be disregarded unless and

until ambiguity is found in the deed directly at issue.       However, in cases

where we have found no such ambiguity, we have relied nonetheless upon

earlier deeds in the chain of title making that determination.       See, e.g.,

Wyskinski     v.   Mazzotta,   472   A.2d     680,   683-84   (Pa. Super. 1984);

cf. Wagner v. Landisville Camp Meeting Ass’n, 24 A.3d 374, 378-79

(Pa. Super. 2011) (considering the lack of a habendum clause in the chain of

title preceding the contested title without expressly finding ambiguity).

      In any event, given that the crux of this case inheres upon the precise

meaning of the above-quoted language from the 1994 deed, we find that the

trial court did not err in deeming that deed ambiguous vis-à-vis the mineral

rights language because the reference to the “above stated deed” is

inherently unclear given the absence of any such “above stated deed”

located above the reference.    That language reasonably suggests that the

clause was intended as part of a recital, just as its placement reasonably

suggests that the clause was intended as a reservation of the mineral rights

in favor of the Decedents.     That lack of clarity, standing alone, renders

appropriate the trial court’s decision to seek clarification by reference to




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parol evidence, including the language of the 1978 deed.4                 Because

Appellants’ first two issues depend upon their claim that the trial court

improperly deemed the 1994 deed ambiguous on its face, these issues lack

merit.

       Appellants’ remaining two issues challenge the trial court’s denial of

their post-trial motion for judgment notwithstanding the verdict, and solely

implicate the trial court’s weighing of the parol evidence that we have

determined the court properly admitted.            “We will reverse a trial court’s

grant or denial of a judgment notwithstanding the verdict only when we find

an abuse of discretion or an error of law that controlled the outcome of the

case. Further, the standard of review for an appellate court is the same as

that for a trial court.”       Campo v. St. Luke’s Hosp., 755 A.2d 20, 23

(Pa. Super. 2000) (citations and internal quotation marks and modifications

omitted). Under the circumstances presented, “[j]udgment notwithstanding

the verdict can be entered only if the . . . evidence is such that no two

reasonable minds could disagree that the outcome should have been

rendered in favor of the movant.” Mitchell v. Moore, 729 A.2d 1200, 1203

(Pa. Super. 1999).      “In reviewing the sufficiency of the evidence[,] we are

required to view the evidence in the light most favorable to the verdict

winners.” Ferry v. Fisher, 709 A.2d 399, 402 (Pa. Super. 1998).

____________________________________________


4
      We may affirm the trial court’s ruling “on any correct basis.” Rambo
v. Greene, 906 A.2d 1232, 1235 n.4 (Pa. Super. 2006).



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      We may quickly set aside Appellants’ third issue. That issue concerns

Appellants’ claim that the trial court erroneously concluded, based upon the

evidence, that the Decedents’ attorneys prepared the 1994 deed and that,

because it is ambiguous, the deed must be construed in favor of the Bayers.

As noted, supra, the trial court cited this principle as an alternative basis for

relief, sufficient but not necessary to its ruling. Because we find sufficient

the court’s principal basis for so ruling—that the parol evidence indicated

that the clause in question was intended as part of the deed’s recital

language rather than as a reservation—we need address only that question,

which Appellants take up as their fourth issue. Accordingly, the third issue

does not require our review.

      Appellants’ argument in support of their fourth issue is garbled.        It

contains a handful of challenges to the evidence that the trial court relied

upon in concluding that the Decedents intended to convey, and the Bayers

to obtain, the mineral rights, but entangles that argument variously with

redundant assertions reiterating their challenges to the trial court’s finding of

ambiguity in the first instance and the court’s reliance upon the principle

that ambiguous language must be interpreted against the drafting party.

See Brief for Appellants at 30-33.     We find that the trial court’s analysis

adequately rebuts Appellants’ argument in this regard:

      [The Bayers] assert that [Appellants] testified at their
      depositions that they have no personal knowledge, whatsoever,
      pertaining to [Decedent’s] conveyance of the Premises to [the
      Bayers]; [Decedents] are not available to testify as to their
      intent[;] and that the agreement of sale and the multi-list

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      advertisement indicate that [the Decedents] intended to convey
      the mineral rights.

      Pursuant to correspondence received by [the trial court] from
      [Appellants’] counsel, [Appellants] assert that if [the trial court]
      is to consider any parole evidence, the only evidence to be
      considered is that the [premises were] listed for [$89,000]; that
      on the listing agreement between [Decedents] and [Appellants]
      there was a box labeled minerals and the word yes was included
      in the box[;] and that [the Bayers] actually purchased the
      [Premises] for [$70,000]. Based upon this, [Appellants] assert,
      there was a reduction in price and the only plausible reason is
      that the mineral rights were not conveyed to [the Bayers].

      In response to this assertion, [the Bayers] called Mary Lou Klem,
      a real estate salesperson for America’s Choice who was involved
      in the transaction between [the Decedents] and [Appellants].
      Ms. Klem testified that the multi-list [listing] did include the
      mineral rights.    When asked if the price reduction was a
      reflection of the mineral rights not being conveyed, Ms. Klem
      responded[,] “No. I can remember very well and I’ll say this
      very honestly back in that era, there was never a negotiating—
      mineral rights negotiations because it was not an issue.”

      Upon review of the entire record, including the testimony of
      record and the deposition[s] of [Appellants], [the trial court]
      agrees with [the Bayers]. [The Bayers] testified that when they
      were looking to purchase a property in 1994, Ms. Klem made
      sure that the properties contained the mineral rights, pursuant
      to [the Bayers’] wishes. The multi-list advertisement clearly
      states that the mineral rights to the premises would be
      conveyed.        [Appellant Ms. Bauer] never listed any . . .
      subsurface rights in the inventory or the inheritance tax return
      she filed for either [Decedent’s] estate.

T.C.O. at 9-10 (footnote and citations omitted).

      Appellants do not dispute that the evidence cited by the trial court

finds support in the record. Nor do they establish that such evidence was

insufficient in its own right to support the trial court’s conclusion that the

parties to the transfer mutually intended to convey the mineral rights with


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the Premises. Instead, Appellants simply challenge the evidence relied upon

by the trial court by referring this Court to the contrary evidence Appellants

submitted during the trial. In effect, Appellants ask us to substitute our own

view of the cold record for that of the trial court. We are constrained by our

standard of review from doing so.             Accordingly, Appellants’ generalized

challenge   to    the   trial   court’s   denial   of   their   motion   for   judgment

notwithstanding the verdict on the basis of the court’s weighing of the trial

evidence fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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