EVAN D. FORD AND MARGARET L. FORD Appellants
JOHN P. OLIVER AND CYNTHIA V. OLIVER, HUSBAND AND WIFE, BLANE PUSKARIC, ESQUIRE, EQT PRODUCTION COMPANY AND EQUITRANS, L.P.
from the Order Dated March 22, 2016 In the Court of Common
Pleas of Allegheny County Civil Division at No(s): GD
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
dispute over the validity of a deed, Appellants Evan D. Ford
and Margaret L. Ford appeal from the March 22, 2016 order
sustaining the preliminary objections of Appellees John P.
Oliver and Cynthia V. Oliver; Blane Puskaric, Esquire; EQT
Production Company; and Equitrans, L.P., and dismissing the
Fords' claims against Appellees with
prejudice. We affirm.
case arises out of the 2001 sale of property by the Fords to
Appellee John P. Oliver. The Fords allege that they intended
to sell only one parcel of vacant land ("Parcel
One") to Oliver, and that, after the closing, the
closing agent erroneously included in the deed (the
"Original Oliver Deed") the legal description not
only of Parcel One, but also of another parcel, which
contained mineral rights ("Parcel
Two"). The Fords learned the Original
Deed included both parcels in 2015, when they attempted to
sell the Parcel Two mineral rights to EQT and a
representative of EQT informed them that a third party had
already transferred those rights to EQT.
Fords, who are siblings, received the two parcels of land at
issue in 1996, in a single deed from their mother ("the
Original Ford Deed"). Parcel One is approximately 50
acres of vacant land in Jefferson Hills, Allegheny County,
and it contains an exception for certain coal and mineral
rights. Original Ford Deed, pp. 1-2. Parcel Two consists of
"ALL oil, gas, coal or other minerals, together with all
mining rights and other rights of any nature or kind
whatsoever . . . owned by the grantor . . . within the limits
of Allegheny County, Pennsylvania." Id., p. 2
(capitalization in original).
spring of 2001, the Fords listed Parcel One for sale. They
allege that they then had "no intention of selling any
or all of the Parcel Two Property and/or any oil, gas, coal
or other mineral rights or other property rights or interests
in the 2001 sale." Second Am. Compl. ¶ 16.
fall of 2001, Appellee John P. Oliver entered into an
agreement with the Fords to purchase Parcel One for $22,
The closing occurred on September 14, 2001. The U.S.
Department of Housing and Urban Development (HUD) settlement
statement identified the property as "VACANT LAND ON
ROUTE 51, JEFFERSON HILLS, PA 15025, JEFFERSON HILLS BOROUGH,
ALLEGHENY COUNTY." Second Am. Compl. Ex. 4.
closing, the Fords were not shown the deed and were told that
it had not yet been completed. A representative of the
closing agent, Landco USA, Inc., provided the Fords with the
signature page of the deed only, which they
signed. The Fords identify Appellee Puskaric as an
agent of Landco,  but do not allege that he was the agent
who provided them with the signature page. Indeed, they state
that Puskaric was not present at the closing. Puskaric,
however, notarized all of the signatures on the deed. Second
Am. Compl. ¶¶ 18, 23-28, 30-31.
a later date, " the closing agent completed the Original
Oliver Deed and included legal descriptions of both Parcel
One and Parcel Two in it. Second Am. Compl. ¶ 19. The
page containing the Fords' signatures from the September
14, 2001 closing was included as page 3. The deed recited
that the consideration for the transaction was $10, 000, not
$22, 000. Original Oliver Deed, p. 1. While the Original Ford
Deed contained the headings "Parcel One" and
"Parcel Two" preceding the descriptions of the
respective parcels, the Original Oliver Deed did not contain
those headings. Instead, it included the description of
Parcel Two immediately after the description of Parcel One
and began that description with the words, "TOGETHER
WITH, INCLUDING ALL oil, gas, coal or other minerals . . .
." See id., p. 2 (capitalization in original).
The Original Oliver Deed also contained a "SUBJECT TO
and TOGETHER WITH" clause under the Parcel Two
description that referenced oil and gas leases and other coal
and mineral rights, see id.; this clause had not
been in the Original Ford Deed. The Original Oliver Deed was
recorded in January of 2002. The Fords claim they were not
sent the Original Oliver Deed and were unaware of its
Fords allege that, "[u]pon advice of prior counsel,
[they] attempted to clarify the title to the Parcel 2
property by having it re-conveyed by their mother to them by
deed dated July 9, 2007" ("the 2007 Ford
Deed"). Second Am. Compl. ¶ 35. The Fords do not
allege why they needed to "clarify the title" at
that time. The Fords aver that when they executed and
recorded the 2007 Ford Deed, they did not know that the legal
description of Parcel Two had been included in the Original
Oliver Deed. Id. ¶ 36.
point on or before March 9, 2009, the Original Oliver Deed
was amended ("Amended Oliver Deed") to add the
heading "*Parcel Two" immediately prior to the text
beginning "TOGETHER WITH, INCLUDING ALL oil, gas, coal
or other minerals . . . ." The amendment added:
"*The purpose of this re-recording is to add the wording
of Parcel Two to the legal description which was omitted from
the original deed recorded in [the Washington County deed
book]." Amended Oliver Deed, p. 2. The description of
the property in the Original Oliver Deed was otherwise left
unchanged. Oliver or Puskaric recorded the Amended Oliver
Deed on March 11, 2009. Second Am. Compl. ¶¶ 38-39
& Ex. 7. The Fords were not notified of the amendment of
the deed. On March 12, 2009, Oliver entered into a five-year
oil and gas lease granting Dale Property Services Penn, LLC,
certain mineral rights to the property described in the
Original Ford Deed as Parcel One. The March 12, 2009 lease
was recorded on March 17, 2009. The Fords allege that they
"were not made aware of the purported sale of gas and
other mineral rights of [Parcel One] to Dale Property until
early spring of 2015." Second Am. Compl. at ¶¶
46-47 & Ex. 8.
2012, the Fords attempted to lease various Parcel Two oil and
gas rights to EQT, but the two parties were unable to reach a
27, 2014, Oliver entered into an oil and gas lease with EQT
for the mineral rights to Parcel One. On September 23, 2014,
Oliver and his wife, Cynthia V. Oliver,  entered into a
Subsurface Storage Easement Agreement with Equitrans,
granting Equitrans an exclusive and permanent easement to
transport, inject, store, retrieve, and withdraw gas from
Parcel One. This easement was recorded on December 17, 2014.
On February 23, 2015 and May 2, 2015, the Olivers sold
additional Parcel Two mineral rights to EQT.
spring of 2015, Evan D. Ford contacted EQT to discuss a
possible sale of part of Parcel Two. A representative of EQT
advised Ford that these rights had already been transferred
to EQT by a third party. The Fords then learned that Oliver
had transferred the Parcel Two mineral rights to EQT and
Fords initiated this suit on August 4, 2015, and subsequently
filed a complaint, an amended complaint, and a second amended
complaint. As the trial court set forth in its opinion, the
Fords asserted the following claims in their Second Amended
Count One, against Defendants John and Cynthia Oliver, seeks
Declaratory Relief that (a) the September 14, 2001 deed to
John Oliver is void ab initio and should not have
included the description of Parcel Two and (b) that the later
deeds from John Oliver to his wife Cynthia Oliver and to
Dale, and from John and Cynthia Oliver to EQT and Equitrans
are also void ab initio.
Count Two, against Defendants Dale, EQT and Equitrans, seeks
Declaratory Relief that the transfers to Dale . . ., to EQT .
. ., and to Equitrans . . . of parts of Parcel Two are the
result of John Oliver's fraudulent conduct, having been
based on a void deed, and those deeds are also void ab
initio. . . .
Count Three, against Defendants Landco and Puskaric, for
Malpractice related to the closing of the 2001 sale. . . .
Count Four, against Puskaric only, for Malpractice for
failing to review the title insurance, sales agreement and
HUD-1 (the Settlement Sheet) prior to the 2001 closing and
also failing to send [the Fords] a copy of the March 11, 2009
re-recorded deed. [The Fords] also claim in this count that
[Puskaric] altered the Original Oliver Deed at the direction
of John Oliver to include Parcel Two.
Count Five, against Defendants Landco and Puskaric, for
negligence related to the closing of the 2001 sale and the
inclusion of Parcel Two in the Original Oliver Deed. . . .
Count Six, against Puskaric only, for negligence for failing
to review the documents related to the transactions and
thereby failing to discover the alleged inconsistencies among
them, and also by failing to send [the Fords] a copy of the
March 11, 2009 re-recorded deed.
Count Seven, against Dale, for negligence in its review of
the chain of title. . . .
Count Eight, against EQT and Equitrans, for negligence, based
on their failures (a) to properly review the chain of title,
(b) to question the deed recorded on March 11, 2009, which
was a photocopy of the Original Oliver Deed with the word
"Parcel Two" typed in, (c) to contact the [Fords]
regarding the insertion of "Parcel Two" in the
re-recorded photocopy, (d) to "properly pay the rightful
owners" for the real estate they received.
Count Nine, against John Oliver, Landco and Puskaric, for
fraud or misrepresentation, based on the conduct alleged
regarding the 2001 deed to Mr. Oliver and the re-recording of
an altered photocopy in 2009. . . .
Trial Ct. Op., 10/24/16, at 3-4.
the defendants except Landco filed preliminary objections to
the Fords' Second Amended Complaint. Among other grounds,
the defendants relied on the statute of
limitations. EQT and Equitrans also asserted that the
Fords failed to state a claim for either declaratory relief
or negligence. After oral argument on March 22, 2016, the
trial court sustained the preliminary objections of the
Olivers, Puskaric, Equitrans, and EQT "on the basis of
the applicable statutes of limitations" and dismissed
the Fords' Second Amended Complaint against those
defendants with prejudice. Order, 3/22/16. Dale had asked to
be dismissed from the case upon providing proof that it had
not operated on the property in dispute; its preliminary
objections were therefore continued.
April 6, 2016, the Fords filed a motion to remove defendants
Dale and Landco from the case. The trial court granted that
motion on April 19, 2016, thereby rendering its March 22,
2016 order final. On May 6, 2016, the Fords filed a timely
notice of appeal.
October 24, 2016,  the trial court filed an opinion in
which it explained its decision. The court stated:
[The Fords] admit never receiving a copy of the 2001 deed
that they knew was to be sent to them after it was finalized
after the closing and then recorded. They admit, sub
silentio, doing nothing from 2002 to Spring of 2015 to
obtain a copy of the deed they expected to receive and did
not. Their explanation, that they believed Puskaric had a
fiduciary duty to them even though they never met him and he
merely (and apparently improperly) had notarized their
signatures, which they themselves nevertheless acknowledge as
theirs, is unreasonable. Such a long delay with no reasonable
explanation bars the two counts for declaratory relief.
We also considered the other relevant statutes of
Count Three, against Landco and Puskaric for Malpractice
should have been filed no later than two years after [the
Fords] reasonably should have known the copy of the 2001 deed
had not been sent to them. There is no merit to the
contention that the limitations period as a matter of law did
not start to run until the Spring of 2015.
Count Four, against Puskaric only for Malpractice is
similarly time-barred. The claim in this count that the
failure to send [the Fords] a copy of the March 11, 2009
re-recorded and altered deed was also malpractice is
time-barred as well.
Count Five, against Landco and Puskaric for Negligence
related to the 2001 closing is also similarly time-barred.
Count Six, against Puskaric only, for Negligence related to
the 2001 closing is similarly time-barred.
Count Seven, against Dale for Negligence [was withdrawn by
Count Eight, against EQT and Equitrans, for their allegedly
negligent failure to properly review the chain of title is
time barred by the Recording Statute. We also concluded that
their title was not void ab initio since the
Declaratory Judgment counts were time-barred. We also noticed
during our review of the Second Amended Complaint (but did
not rule) that neither of these Defendants had any duty to
Plaintiffs to review the chain of title and this was
another, unstated, reason why we properly dismissed this
count with prejudice.
Count Nine, against Oliver, Landco and Puskaric, for
Fraud/Misrepresentation related to the 2001 closing. The
six-year limitations period, applying the Discovery Rule,
reasonably would have expired well before 2015. We ...