J-A24022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KENSINGTON CITIZENS            :           IN THE SUPERIOR COURT OF
    COMMITTEE, BY JEFF CARPENTER,  :                PENNSYLVANIA
    LIQUIDATING TRUSTEE            :
                                   :
                                   :
              v.                   :
                                   :
                                   :
    BARRY GLOVER, AS KNOWN HEIR TO :           No. 941 EDA 2019
    THE ESTATE OF PARTHENA I.      :
    JOHNSON A/K/A PARTHENA T.      :
    JOHNSON                        :
                                   :
                                   :
    APPEAL OF: ORIN CLYBOURN       :

               Appeal from the Order Entered February 11, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): January Term, 2017, No. 2166


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 10, 2019

        Appellant, Orin Clybourn, appeals from the February 11, 2019 Judgment

entered in the Philadelphia County Court of Common Pleas in this quiet title

action. After careful review, we affirm.

        We summarize the relevant facts as found by the trial court as follows.

On November 22, 1971, John Muldowney, Dorothy Anderson, Nives Milotich,

Marge Moore, and Kathryn Gruenbaum formed the Kensington Citizens

Committee (“KCC”).          By deed dated June 14, 1972, KCC acquired the



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*   Retired Senior Judge assigned to the Superior Court.
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properties   at   2554   and    2556   Frankford   Avenue,   Philadelphia   (the

“Properties”).

      In 2012, Appellee, Jeff Carpenter, and several other individuals in the

Kensington neighborhood formed Arcadia Commons (“Arcadia”) for the

purpose of turning blighted, empty properties in the neighborhood into parks

and community gardens.         Arcadia identified the Properties as a potential

location for a park. Appellee learned that KCC was the record owner of the

Properties, but that KCC was defunct. Accordingly, Arcadia requested that the

Pennsylvania Attorney General’s office file a petition as parens patriae seeking

an Order dissolving KCC and awarding the Properties to Arcadia under the

doctrine of cy pres.

      On February 29, 2016, the orphans’ court issued a Decree awarding title

to the Properties to Arcadia.       The court appointed Appellee Trustee in

Liquidation with authority to transfer title to the Properties to Arcadia.

Appellee spent the next several months negotiating with the City of

Philadelphia to satisfy outstanding liens against the Properties, one of which

arose from a slip and fall and the other of which related to some past-due

taxes. On August 22, 2016, before the transfer to Arcadia was effectuated,

however, Carpenter learned that someone had recorded a deed dated

December 12, 1990, purporting to transfer the Properties from KCC to

Parthena Johnson (the “Johnson Deed”).




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The Johnson Deed

       Parthena Johnson died in 1992. Appellant claimed that his uncle, Donald

Spradly, found the Johnson Deed while cleaning out Parthena Johnson’s

basement in 2013. The Johnson Deed—recorded nearly 26 years after it was

allegedly prepared and six months after the orphans’ court awarded the

Properties to Arcadia—purports to have been signed by the five incorporators

of KCC.     Samuel B, Wolfolk, a notary public of the City of Philadelphia

purportedly notarized the Johnson Deed.

       On December 1, 2016, Appellant recorded a deed dated November 30,

2016 purporting to transfer the Properties from Parthena Johnson’s estate to

him. Appellant asserted that he bought the Properties from his uncle, who

was the administrator of Parthena Johnson’s estate.

       On December 7, 2016, Appellee contacted Nives Milotich, one of the

KCC incorporators and an original KCC board member, to determine if she had

any knowledge of the Johnson Deed. Milotich responded that same day that

she knew nothing about it and that someone had forged her signature on the

Johnson Deed.       She also suggested that Muldowney’s signature may have

been forged because she believed that he had died years prior.

       On April 14, 2017, Appellee filed an Amended Complaint, raising claims

of Unjust Enrichment and Quiet Title, alleging that the Johnson Deed was a

forgery.1 Amended Complaint, 4/14/17, at ¶¶ 29-33. On August 22, 2017,
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1Appellee alleged that the KCC incorporators’ signatures and the signature of
Notary Wolfork were all forgeries.

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Appellant filed an Answer to the Amended Complaint, a Counterclaim, and a

Crossclaim. On September 11, 2017 and September 28, 2017, Appellee filed

a Reply to New Matter and Crossclaim.

      On February 6, 2018, Appellee filed a Motion for Summary Judgment,

to which Appellant replied on March 30, 2018.       The trial court denied the

Motion on April 12, 2018.

      The trial court held a bench trial on October 24, 2018. Appellee testified

as liquidating administrator of KCC and presented the testimony of Milotich.

She testified that her signature on the Johnson Deed was a forgery and that

another Deed signatory, John Muldowney, had died years before he

purportedly signed the 1990 Johnson Deed. The court received in evidence a

certified copy of Muldowney’s death certificate indicating a date of death of

February 9, 1979—more than ten years before he purportedly signed the

Johnson Deed.

      Following trial, on November 6, 2018, the parties each submitted

Proposed Findings of Fact and Conclusions of Law. That same day, the trial

court entered a verdict in favor of Appellee, quieting title in properties and

holding that the Johnson Deed was a forgery.         On December 17, 2018,

Appellant filed a Post-Trial Motion. Following argument, the trial court denied

Appellant’s Motion.   The trial court entered judgment on the verdict on

February 19, 2019.

      This timely appeal followed.   Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

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      Appellant raises the following issue on appeal:

      Whether this Court should reverse the trial court’s denial of
      [Appellant’s M]otion for [P]ost-[T]rial relief and order judgment
      as a matter of law where [Appellee] failed to establish by clear
      and convincing evidence that the deed transferring title of [the
      Properties] to Parthena Johnson was a forgery?

Appellant’s Brief at 4.

      In support of this claim, Appellant presents two distinct arguments.

First, Appellant argues that the trial court erred in concluding that the Johnson

Deed is a forgery because Appellee failed to establish by clear and convincing

evidence that any of the signatures on the deed had been forged. Id. at 22-

25. Appellant essentially challenges the weight the court gave to Milotich’s

testimony that she had no knowledge of the Johnson Deed and her signature

on it was a forgery. Id. at 31-36. In an additional effort to challenge the

weight of the evidence, he also disputes that the evidence contained in

Muldowney’s death certificate established that it referred to the Muldowney

who was a KCC officer. Id. at 37.

      Second, he argues that, even if Appellee met his burden to establish

that Milotich’s and Muldowney’s signatures were forgeries, he failed to prove

that someone had forged all five of the signatures. Id. at 23-24. Appellant

then makes the novel argument that, even if Milotich’s and Muldowney’s

signatures were forgeries, as an incorporated non-profit any officer of KCC

could validly transfer title on behalf of the organization. Id. at 25-28 (citing




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The Act of 1972, Nov. 15 P.L. 1063, No. 271 § 7506(a)).2 He last avers that

the three other KCC officers whose signatures Appellee does not allege were

forgeries could have had any number of reasons to have signed the Johnson

Deed in Milotich’s and Muldowney’s names, and, without proving that those

officers intended to defraud, Milotich’s and Muldowney’s signatures were not

forgeries under the law. Id. at 28-30.

        In an appeal from a trial court’s verdict in a non-jury trial, our scope

and standard of review is as follows.

        Our standard of review in non-jury trials is to assess whether the
        findings of facts by the trial court are supported by the record and
        whether the trial court erred in applying the law. Upon appellate
        review the appellate court must consider the evidence in the light
        most favorable to the verdict winner and reverse the trial court
        only where the findings are not supported by the evidence of
        record or are based on an error of law. Our scope of review
        regarding questions of law is plenary.

        Moreover, the trial court’s findings are especially binding on
        appeal, where they are based upon the credibility of the witnesses,
        unless it appears that the court abused its discretion or that the
        court’s findings lack evidentiary support or that the court
        capriciously disbelieved the evidence.

Century Indemnity Co. v. OneBeacon Ins. Co., 173 A.3d 784, 802 (Pa.

Super. 2017) (citations and quotation marks omitted).

        We review a weight of the evidence claim in light of the following

guidelines:

        appellate review of a weight claim is a review of the trial court’s
        exercise of discretion, not of the underlying question of whether
        the verdict is against the weight of the evidence. Because the trial
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2   The legislature subsequently replaced this statute with 15 Pa.C.S. § 5506.

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      judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the evidence
      and that a new trial should be granted in the interest of justice.

Gold v. Rosen, 135 A.3d 1039, 1041-42 (Pa. Super. 2016) (citation omitted).

Further, the court “is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses.” Haan v. Wells, 103 A.3d 60, 70

(Pa. Super. 2014) (citation omitted).

      In reviewing a judgment entered in a quiet title action, this Court is

limited to determining “whether the findings of fact are supported by

competent evidence, whether an error of law has been committed, and

whether there has been a manifest abuse of discretion.” Regions Mortg.,

Inc. v. Muthler, 889 A.2d 39, 41 (Pa. 2005) (citation and quotation marks

omitted). This Court “will not reverse a determination of the trial court in a

quiet title action absent an error of law or capricious disregard of the

evidence.” Birdsboro Mun. Authority v. Reading Co. and Wilmington &

Northern R.R., 758 A.2d 222, 225 (Pa. Super. 2000) (citations and quotation

marks omitted).

      A forged or fraudulent “instrument is not binding on any person and is

wholly inoperative to transfer any title or right to property whether the holder

is an innocent or guilty purchaser.”    Harris v. Harris, 239 A.2d 783 (Pa.

1968). See also Stanko v. Males, 135 A.2d 392 (Pa. 1957) (affirming order



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that set aside a deed that was forged by owner’s wife); Reck v. Clapp, 98

Pa. 581 (Pa. 1881) (a forged deed cannot pass title of a property).

      In its Rule 1925(a) Opinion, the trial court summarized the evidence

upon which it relied when concluding that the signatures of Milotich and

Muldowney were forgeries as follows:

      One of [the five original incorporators of KCC,] Nieves Milotich,
      testified at trial that she had no knowledge of the Johnson [D]eed
      and [that] the signature appearing on the [D]eed was not her
      own. The [c]ourt found Milotich to be credible and concluded
      [that] her signature on the Johnson [D]eed was a forgery.

      Milotich further testified that another of the KCC incorporators
      whose name appeared on the [D]eed, John Muldowney, had died
      many years before he allegedly signed the [D]eed. The [c]ourt
      received in evidence a certified copy of the death certificate for
      John Muldowney indicating a date of death of February 9, 1979.
      The address given for Muldowney on the death certificate was
      2533 Webb Street, Philadelphia. This was the same address given
      for Muldowney in KCC’s Articles of Incorporation. Furthermore,
      Milotich testified [that] she believed [that] Muldowney lived
      somewhere near Richmond Street. 2533 Webb Street is near
      Richmond Street. Milotich said she believed Muldowney died
      sometime in the late 1970’s or 1980’s.

Trial Ct. Op., 5/14/19, at 3-4.

      The trial court credited the testimony of Milotich and the documentary

evidence of Muldowney’s death when it concluded that neither of those

individuals signed their own signatures on the Johnson Deed. Accordingly,

the court opined that “the evidence that at least two of the signatures on the

Johnson [D]eed were forged was clear and convincing.        Conseqently, the

Johnson [D]eed is null [and] void ab initio.” Id. at 4. Appellant asks us to

reassess the credibility of Milotich’s testimony and reweigh the evidence


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presented at trial. We cannot and will not do so. We discern no abuse of

discretion in the trial court’s conclusion that Milotich’s and Muldowney’s

signatures on the Johnson Deed were forgeries.

       Appellant also argues, in the alternative, that because KCC is an

incorporated non-profit, any one of whose officers had authority to bind the

corporation as long as any of the signatures on the Johnson Deed were valid,

the Deed was a valid conveyance instrument, even if forged signatures also

appeared on the Deed. Appellant’s Brief at 25-27.        Essentially, Appellant

suggests that, because Pennsylvania law does not require the signatures of all

of KCC’s corporate officers, we should sever the forged signatures from the

non-forged signatures to render the Johnson Deed valid.

       Appellant has not, however cited any controlling authority in support of

the claim that severing the forged signatures from the non-forged signatures

would render the Johnson Deed valid. We, therefore, affirm the trial court’s

conclusion that Milotich’s and Muldowney’s forged signatures voided the

Johnson Deed ab initio, thus, rendering it wholly inoperative to transfer title

to the Properties.3, 4
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3 To the extent that Appellant also argues that Appellee failed to prove that
the Johnson Deed had been forged because the he did not present evidence
that the forgers intended to defraud, we find this argument waived as
Appellant has raised it for the first time on appeal. See Pa.R.A.P. 302 (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”).

4 In light of our disposition, we need not address Appellant’s claim that,
because the Johnson Deed was not a forgery and had been recorded first in
time, the trial court erred in not entering Judgment in his favor.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




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