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HIGBEE CORPORATION AND EDWARD B. SERVOV v. WILLIAM H. KENNEDY (05/22/81)

filed: May 22, 1981.

THE HIGBEE CORPORATION AND EDWARD B. SERVOV, EXECUTOR OF THE ESTATE OF EDNA N. HIGBEE, DECEASED
v.
WILLIAM H. KENNEDY, EXECUTOR OF THE ESTATE OF MARY A. KENNEDY, DECEASED, WILLIAM H. KENNEDY, MARY BELLE FITZGIBBONS, ESTELLA MARGARET KEEFE, CHARLES J. KENNEDY, OLIVER L. KENNEDY AND JAMES J. KENNEDY, INDIVIDUALS, AND THEIR HEIRS, SUCCESSORS AND ASSIGNS, AND ALL OTHER INTERESTED PERSONS. APPEAL OF JAMES J. KENNEDY. THE HIGBEE CORPORATION AND EDWARD B. SERVOV, EXECUTOR OF THE ESTATE OF EDNA N. HIGBEE, DECEASED V. JAMES J. KENNEDY, AND MARY N. KENNEDY, HIS WIFE. APPEAL OF JAMES J. KENNEDY. THE HIGBEE CORPORATION V. JAMES J. KENNEDY AND MARY N. KENNEDY, HIS WIFE. APPEAL OF JAMES J. KENNEDY



No. 715 April Term, 1979, No. 728 April Term, 1979, No. 729 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, Nos. GD 79-5560, GD 78-29349, and GD 78-29348.

COUNSEL

John P. Vetica, Jr., Pittsburgh, for appellant.

David M. Priselac, Pittsburgh, for appellees.

Price, Brosky and Montgomery, JJ.

Author: Price

[ 286 Pa. Super. Page 105]

This appeal arises from the trial court's order sustaining appellee's demurrer to appellant's answer and new matter. Appellant, James J. Kennedy [hereinafter Kennedy], contends that the trial court erred in determining that his interest in the disputed tract of land was a fee simple determinable. For the following reasons we agree with appellant and, therefore, reverse the order and remand for further proceedings consistent with this opinion.

To determine the propriety of an order granting a preliminary objection in the nature of a demurrer, we must "[accept] as true all well-pleaded averments of fact of the party against whom the motion is granted and [consider] against him only those facts that he specifically admits. Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966)." Beckman v. Dunn, 276 Pa. Super. 527, 531, 419 A.2d 583, 585 (1980). "Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964)." Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979). Such "a motion for judgment on the pleadings can only be granted where the moving party's right to prevail is so certain that it is clear that a trial would be a fruitless exercise." Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 172, 381 A.2d 164, 169 (1977). Toms v. Bev-Maid, Inc., 420 Pa. 562, 218 A.2d 300 (1966); Rogoff v. The Buncher Co., 395 Pa. 477, 151 A.2d 83 (1959).

Viewed in this fashion the pleadings in this case disclose the following facts. Appellee, the Higbee Corporation [hereinafter Higbee], owns approximately nine acres of property in Bethel Park, Allegheny County, Pennsylvania. Kennedy and Higbee both claim under color of title a narrow strip of land that passes through Higbee's property.*fn1

[ 286 Pa. Super. Page 106]

Seeking to acquire clear title to the entire tract Higbee filed an action to quiet title and a complaint in equity against Kennedy. Higbee subsequently filed an action to quiet title against all possible claimants. These actions were consolidated for trial in May of 1979.*fn2 Higbee raised preliminary objections in the nature of a demurrer to Kennedy's answer and new matter.

The trial court relied upon the following provision contained in the original grant to Kennedy's property in reaching its determination.

To have and to hold the said piece of land above-described the hereditaments and premises hereby granted or mentioned and intended so to be with the appurtenances unto the said party of the second part his heirs and assigns to and for the only proper use and behoof of the said party of the second part his heirs and assigns forever provided the party of the second part his heirs and assigns wishes to make use of it for the purpose of a road. The party of the second part agrees to keep a good fence around the above-mentioned lot, failing to do so forfeits his claim, whenever the party of the second part wishes to give up his claim to said lot he is to have full privilege to remove all fencing materials whenever the party of the second part his heirs and assigns fails to fulfill this agreement the land is to revert to the party of the first part.

Slip op. at 2-3 (emphasis added). The court held that the above language created a fee simple determinable, the breach of which would cause title to revert to the grantor or his ...


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