J-S37004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES P. MCGOVERN AND SHANA L.                     IN THE SUPERIOR COURT OF
MCGOVERN                                                 PENNSYLVANIA

                         Appellants

                    v.

EAST END GUN CLUB OF SCHUYLKILL
COUNTY, PA; DEAN BICKEL; ALVIN
HEIM, A/K/A ALVIN A. HEIM, HIS HEIRS,
SUCCESSORS AND ASSIGNS; AND
BENJAMIN S. DEWALD; HIS HEIRS,
SUCCESSORS AND ASSIGNS

                         Appellees                    No. 1954 MDA 2013


               Appeal from the Order Entered October 4, 2013
              In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S-172-2009


BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 25, 2014



entered in the Court of Common Pleas of Schuylkill County denying their

petition to quiet title. Upon review, we affirm.

      In September 1950, the Honorable (then attorney) Donald Dolbin of

the Schuylkill County Court of Common Pleas purchased a parcel of land

from the Schuylkill County Tax Claim Bureau at an upset sale. The deed

reflects the property was owned by Alvin Heim and sold for $90.00.        See

1950 Tax Claim Bureau Deed, Exhibit 9; R.R. at 240a.        Dolbin placed the

title to the property in the names of Anne Palmer Dolbin and Jane Palmer
J-S37004-14




and unimproved.

      Dolbin paid real estate taxes on the property until his death in 2000.



co-executors, paid the real estate taxes until 2008, when Sellers entered

into an agreement of sale with the McGoverns.       In 2010, the McGoverns

divorced. Since then, James McGovern has paid the taxes.

      Pursuant to the terms of the agreement of sale, the McGoverns were

responsible for securing a registered survey of the tract, securing an

abstractor in order to establish the chain of title, and proceeding with the

action to quiet title.   The McGoverns acknowledged that the agreement of

sale called for the sale of 75.8 acres, indicated in the tax assessment

records, in contrast to the 83-acre tract found in the 1950 tax claim deed to

Dolbin. The McGoverns further acknowledged that the registered surveyor

determined the tract was actually approximately 67 acres.

      After signing the agreement of sale, the McGoverns walked around the

boundaries of the property and observed warning signs posted by East End

Gun Club of Sch

registered surveyor, secured all the adjacent deeds, assessment maps,

zoning maps and surveys he could find. Using these instruments, Manhart




                                     -2-
J-S37004-14



developed a legal description1 of the property in question; he determined

that the tract consisted of 67.904 acres. Additionally, he determined that in

1963, while East End was conducting a survey of its land, it surveyed into its

deed a 50-acre parcel of the Dolbin tract.

       The McGoverns filed an action seeking a court order requiring East

End,   Dean     Bickel,    Alvin   Heim        and   Benjamin   Dewald   (collectively,



asserting a claim to the land.        See Pa.R.C.P. 1060(b)(1). The McGoverns

also alleged that they held title by virtue of the deeds set forth in their chain

of title, including the 1950 Tax Claim Bureau Deed, and that Defendants had

no basis to claim title because the disputed land is not included in any deed

by East End.

       In its answer, East End admitted that it acquired title by way of

recorded deed dated February 11, 1963. See Answer to Complaint and New

Matter, 2/11/2009, at ¶ 11; R.R. at 24a, In that deed, the Trustees of East

End conveyed to themselves 50 more acres of land than was contained in

the prior deed for the same land. See Deed, 8/7/1930, recorded at Deed

Book 560, page 35 for 100 acres.               See also
____________________________________________


1
  A legal description is a formal description of real property, including a
description of any part subject to an easement or reservation, complete
enough that a particular piece of land can be located and identified. The
description can be made by reference to a government survey, metes and
                                                                                     th

ed. 2005).



                                           -3-
J-S37004-14



242a; Deed, 2/11/1963, recorded at Deed Book 1042, p. 1083, for 150

                                          R. at 243a.

      At trial, Manhart testified that at no time did he specifically identify the

83 acres referenced in the tax claim deed.

      Devon Henne, the expert testifying for East End, did not perform a

field survey but, instead, examined the legal description of the property in

order to identify the properties involved and to try to come up with some

kind of definition of the property.         It became apparent to Henne that the

instant dispute was more of a title dispute than a boundary dispute. Henne

determined that the disputed area, which was described in the Manhart

survey, was patented to James Everhart on November 19, 1841.                 Henne

asserted that the lack of an ability to trace title forward to East End and the

Dolbins creates, from Everhart, a cloud on the title for both parties in the

disputed area.

      The McGoverns preserved numerous issues for appellate review:

      I.    Whether the trial court clearly erred in concluding that the
            McGoverns failed to introduce prima facie evidence of title
            by a preponderance of the evidence, and should have
            entered verdict to quiet title in their favor?

            a.
                 is prima facie evidence of title?

            b. Whether      the   trial    court failed to   consider the
                                                                 surveyor,
                 Walter Manhart?

            c. Whether East End Gun Club failed to show superior
               title?



                                           -4-
J-S37004-14


           d. Whether       the   trial   court   erred   in   denying   the


                evidence?

           e. Whether the trial court erred in failing to render a
              verdict in favor of either party and in suggesting that
              the parties return to the status quo and amicably
              resolve the matter themselves?

           f.
                a nonsuit and directed verdict are inconsistent with


     II.   Whether the trial court erred in concluding that the
           McGoverns failed to properly serve two of the four
           defendants?

           a.
                defendants is conclusive and cannot be challenged?

           b. Whether a party who accepts service as the agent
              for the other defendants cannot be allowed to
              challenge that service on the eve of trial?

           c. Whether the trial court erred in suggesting that the
              McGoverns could at this point reopen the record to
              secure proper service?

                      -4.

     The trial court stated:

     The court is confronted with a claim and procedural history
     seeking to quiet title that appears substantially flawed at the
     outset. Implicitly we are called upon to discern which of the two
                                                                -depth
     discussion, for example, as to whether plaintiff is a party in
     possession is unnecessarily academic in light of this record.
     Simply stated, we cannot find that plaintiff sustained his burden
     of proof as to the disputed 50 plus acres nor the remaining 17
     acres which remaining acreage has not directly been challenged
     by East End. Additionally, we are not further persuaded that
     Defendant East End has staked a superior claim to the disputed
     50[-]acre parcel warranting a decree in its favor.


                                          -5-
J-S37004-14



       We need look no further than the 1950 tax claim deed to determine

that the McGoverns did not satisfy their evidentiary burden.        In order to

meet that burden, the McGoverns first had to establish a prima facie

showing of title allowing for the burden of proving superior title to shift onto

East End Gun Club.

       The burden of proof in a quiet title action is upon the plaintiff.

Montrenes v. Montrenes, 613 A.2d 983, 984 (Pa. Super. 1986).                  The



                                                 See Brief of Appellants, at 18.

The McGoverns cite three cases in support of this claim.      The first, Curtis

Building Co., Inc. v. Tunstall, 343 A.3d 389, 394-94 (Pa. Cmwlth. 1975),

involved an action to quiet title and obtain possession of property. There,



made out a prima facie case of tax sal

the McGoverns cite is Hughes v. Chaplin, 135 A.2d 200, 202 (Pa. 1957).

There, our Supreme Court found that the plaintiff had established a prima
                                                                       2
                                                                           Lastly,

in support of their argument that a tax deed is prima facie evidence of good

title, the McGoverns cite Clark v. Weinberg, 393 A.2d 507 (Pa. Cmwlth.

1978). In that action to quiet title, the Commonwealth Court held that the

____________________________________________


2
 County treasurer deed is synonymous with a tax deed. See Beacom v.
Robinson, 43 A.2d 640 (Pa. Super. 1945).



                                           -6-
J-S37004-14



description of property was sufficient to identify property to tax collectors

and the public notwithstanding the contention that the description was

insufficient. Id. at 509. While these cases all indicate that tax deeds can be

evidence of ownership and title, it does not necessarily follow that all tax

deeds qualify as prima facie evidence of good title.

      The Clark decision is especially relevant here.      In Clark, the tax deed

contained various details describing the location of the property. For

example, the deed included a lot and a block number.             Id.   at 510.   The

deed also contained the name of the former property possessor, which made

the property more identifiable. Id.

      Here, the tax deed initially received by the Dolbins and then

subsequently passed on to the McGoverns merely contains a description of

the acreage of the property, a description of the condition of the land, and

the township in which the property is located. The deed does not contain

any other type of legal description that would allow for a survey to

accurately define where the boundaries of the property exactly lie.              The

1909 deed suffers from a similar lack of legal description that would suffice

for prima facie evidence of good title.

      It is well established that no tax sale of land is valid unless both the

assessment    and   the   conveyance      by   the   treasurer   contain   sufficient

descriptions to identify and disclose the property taxed and sold. Bannard

v. New York State Natural Gas Corp., 293 A.2d 41 (Pa. 1972). While the

present dispute does not involve the validity of the tax sale, for the tax deed

                                       -7-
J-S37004-14



to qualify as adequate prima facie evidence of good title, which would shift

the burden of proving superior title to East End, it is still necessary for the

deed to contain a sufficient description.

      The plaintiffs' burden in an action in ejectment at law is clear: they

must establish the right to immediate exclusive possession.        See, e.g.,

Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984); Harbor

Marine Co. v. Nolan, 366 A.2d 936 (Pa. Super. 1976). Recovery can be

had only on the strength of their own title, not the weakness of defendant's

title. See Artz v. Meister, 123 A. 501 (Pa. 1924); Ratajski v. West Penn

Manufacturing & Supply Corp., 182 A.2d 243 (Pa. Super.             1962). The

crux of an ejectment action, therefore, rests with the plaintiffs' ability to

identify, by a preponderance of the evidence, see Hallman, 482 A.2d at

1288 (citing Rook v. Greenewald, 22 Pa.Super. 641, 643 (1903)), the

boundaries of a parcel of land to which they are out of possession but for

which they maintain paramount title.

                                                                              -

examination that he had not specifically identified the 83 acres referenced in

the tax claim deed. Trial Court Opinion, 9/11/2013, at 11. In this regard,

plaintiff has the burden of presenting definite and certain evidence of the

boundary of the property in controversy.     Where the plaintiff is unable to

establish his boundary line by adequate legal proof, his action must fail and

he is not entitled to relief. Hallman v. Turns, 482 A.2d 1284, 1288, (Pa.

Super. 1984) (citing Skillman v. Magill, 98 Pa. Super. 72 (1930)).

                                     -8-
J-S37004-14



      The McGoverns, and to some extent Henne, the expert hired by East

End, have cast doubt on the strength of the title held by East End. In their

brief, the McGoverns relied on the perceived relative weakness of, and cloud



However, unless and until the McGoverns have made a prima facie case by

showing title sufficient upon which to base a right of recovery, the burden

does not shift, and East End is not required to offer evidence of its title. If

the McGoverns fail to establish proof of title with the required clarity, they

cannot recover, no matter how defe                                      Fried,

supra at 6; see Doman v. Bogan, 592 A.2d. 104, 108 (Pa. Super. 1991).

      For the reasons stated above, we are unable to conclude that the trial

court erred.   The trial court properly found that the McGoverns failed to

meet the evidentiary standard that would allow the burden of proving

superior title to shift to East End Gun Club. Because the McGoverns failed to

make a prima facie showing of good title, the trial court was in no position to

weigh the relative strength of

Therefore, the remaining claims of error made by the McGoverns do not

warrant further consideration.

            Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary Date: 9/25/2014

                                     -9-
