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BOROUGH ELIZABETH v. AIM SHER CORPORATION (07/08/83)

filed: July 8, 1983.

THE BOROUGH OF ELIZABETH, A PENNSYLVANIA MUNICIPAL CORPORATION
v.
AIM SHER CORPORATION, A CORPORATION, APPELLANT



No. 545 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil at No. G.D. 81 30315.

COUNSEL

Eugene J. Julian, Washington, for appellant.

Jay Harris Feldstein, Pittsburgh, for appellee.

Spaeth, Brosky and Montemuro, JJ.

Author: Spaeth

[ 316 Pa. Super. Page 98]

This is an appeal from a decree declaring appellee to be the owner in fee simple of a tract of land. We affirm.

On March 20, 1956, Elsa and Henry Cooling conveyed a tract of land on the east bank of the Monongahela River in the Borough of Elizabeth, Allegheny County, to James F. Hosmer. Hosmer died on December 14, 1961, leaving a will giving all his property to his widow, Eleanor Mae Hosmer. On February 17, 1976, Mrs. Hosmer offered to deed the Monongahela River tract to appellee, the Borough of Elizabeth, in satisfaction of her liability for past property taxes.

While appellee investigated whether the County and School District would excuse Mrs. Hosmer's tax liability, one Edward J. Toth offered to buy the tract. On March 14, 1977, in exchange for $150.00 Mrs. Hosmer executed a deed prepared by Mr. Toth, conveying the tract to appellant, Aim-Sher Corporation. Appellant's articles of incorporation had not been filed, and were not filed until April 24, 1978.

Sometime during 1980 -- the date is not clear from the record -- appellee advised Mrs. Hosmer of its willingness to excuse her tax liability, and on September 2, 1980, she executed a second deed, conveying the Monongahela River tract to appellee for "the purpose . . . [of] mak[ing] a gift of the . . . premises to the Borough of Elizabeth." After this conveyance, appellant advised appellee that it claimed the tract under Mrs. Hosmer's first deed. Appellee then brought this declaratory judgment action seeking a determination of which party holds title to the tract. The lower court ruled in appellee's favor.

-1-

Appellant argues that James F. Hosmer's will giving all his property to Eleanor Mae Hosmer was ineffective to

[ 316 Pa. Super. Page 99]

    convey the Monongahela River tract. This argument lacks merit. 20 ...


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