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Ford v. Oliver

Superior Court of Pennsylvania

December 14, 2017

EVAN D. FORD AND MARGARET L. FORD Appellants
v.
JOHN P. OLIVER AND CYNTHIA V. OLIVER, HUSBAND AND WIFE, BLANE PUSKARIC, ESQUIRE, EQT PRODUCTION COMPANY AND EQUITRANS, L.P.

         Appeal from the Order Dated March 22, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 15-13256

          BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

          OPINION

          SOLANO, J.

         In this 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.[1] We affirm.

         This 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").[2] The Fords learned the Original

         Oliver 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.

         The 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).

         In the 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.

          In the fall of 2001, Appellee John P. Oliver entered into an agreement with the Fords to purchase Parcel One for $22, 000.[3] 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.

         At the 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.[4] The Fords identify Appellee Puskaric as an agent of Landco, [5] 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]t 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 content.

         The 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.[6] 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.

         At some 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.[7]

          In 2012, the Fords attempted to lease various Parcel Two oil and gas rights to EQT, but the two parties were unable to reach a final agreement.

         On June 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, [8] 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.

         In the 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 other parties.

         The 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 Complaint:

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.

         All of the defendants except Landco filed preliminary objections to the Fords' Second Amended Complaint. Among other grounds, the defendants relied on the statute of limitations.[9] 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.

         On 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.

         On October 24, 2016, [10] 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 limitations:
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 the Fords].
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 ...

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