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Hoffman v. Gongaware

Superior Court of Pennsylvania

May 4, 2018

RANDY E. HOFFMAN AND SHERRY L. HOFFMAN, HIS WIFE Appellants
v.
SCOTT A. GONGAWARE AND KERN BROTHERS LUMBER COMPANY, A/K/A KERN BROTHERS LUMBER COMPANY, INC.

          Appeal from the Order January 10, 2017 In the Court of Common Pleas of Somerset County Civil Division at No(s): No. 503 Civil 2014

          BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

          OPINION

          SHOGAN, J.

         Randy E. Hoffman and Sherry L. Hoffman ("Appellants") appeal from the trial court's January 10, 2017 order sustaining the preliminary objections in the nature of a demurrer of Scott A. Gongaware and Kern Brothers Lumber Company ("Appellees") and dismissing Appellants' complaint. On appeal, Appellants argue that the trial court erred in concluding that their reservation of timber rights in a duly recorded deed constituted an interest in personal property, rather than land, and in finding that they forfeited this interest when they failed to remove the timber in a reasonable amount of time. After careful review, we reverse and remand for further proceedings.

         The trial court summarized the facts as follows:

[Appellants], Randy E. Hoffman and Sherry L. Hoffman, husband-and-wife, were the owners of a 20 acre parcel of land on which a crop of timber existed in Lincoln Township, Somerset County, together with a residence in which the [Appellants] apparently resided. On October 12, 1977 [Appellants] conveyed the premises to Consolidation Coal Company by deed recorded in record book volume 812, page 646 and recorded on the following day [("the 1977 Deed")]. Of particular importance are the various "Exceptions and Reservations" which we shall include verbatim.
EXCEPTING AND RESERVING all coal and mining rights previously conveyed by predecessors in title.
ALSO EXCEPTING AND RESERVING unto the grantors, their heirs and assigns, all the oil and gas underlying the premises hereby conveyed and all necessary and convenient rights for the removal thereof, provided that such operations do not interfere with the coal mining operations of the grantee, its successors or assigns.
ALSO EXCEPTING AND RESERVING unto the grantors, their heirs and assigns, all of the timber on the premises hereby conveyed and all necessary and convenient rights for the removal thereof, provided that the grantors, their heirs and assigns, must exercise said right upon six (6) months written notice by the grantee, its successors or assigns, and provided further, that such operations by the grantors, their heirs and assigns, do not interfere with the coal mining operations of the grantee, its successors or assigns.[1]
ALSO EXCEPTING AND RESERVING unto the grantors, their heirs and assigns, the right to remain at the residence located on the premises hereby conveyed, together with the full right to use and possession of an area constituting a 200 foot radius surrounding said residence, provided that: (1) the grantors, their heirs and assigns, may remain on said premises at their sole risk and expense, with the understanding and agreement that the grantors, their heirs and assigns, shall pay to the grantee, its successors or assigns, and advance annual rental of a sum equal to all taxes levied on all the premises hereby conveyed used by the grantors, their heirs and assigns; (2) the grantee, its successors or assigns, shall have exclusive possession of the premises hereby conveyed upon six (6) months written notice to the grantors, their heirs and assigns, provided that in no event shall the grantors, their heirs and assigns, [be] deprived of the use and possession of the aforesaid residence and surrounding area for a period less than nine months from October 12, [1977], (that is, notice by the grantee, its successors or assigns, to the grantors, their heirs and assigns, to remove from the aforesaid residence and surrounding area shall not be given within the first three (3) months after October 12, 1977); (3) the grantors, their heirs and assigns, shall remove from the premises hereby conveyed on or before the expiration of the aforesaid notice. All crops, livestock and other removable personal property.
IN THE EVENT THAT the grantee, its successors or assigns, determines at any time to remove the residency [erected on] the premises hereby conveyed, the grantors, their heirs and assigns, shall have the right of first refusal relative to the sale of said residence, or any and all salvageable parts thereof, at the same purchase price as offered by any third party who has submitted and executed written offer to purchase the aforesaid residence and/or any part thereof, and grantee, its successors or assigns, shall submit a copy of such executed written offer to the grantors, their heirs and assigns, who shall have sixty (60) days from the date of receipt of such written offer to either exercise or refuse to exercise the right to purchase the aforesaid residence or any part thereof for the same purchase price as set forth in said written offer.
The Grantee in [the 1977 Deed], Consolidation Coal Company, conveyed the premises under and subject to the foregoing "Exception and Reservation" clauses in 1984 to an entity which ultimately became known as Reserve Coal Properties Company. On June 28, 2004, 27 years after [Appellants] conveyed away the premises, Reserve Coal Properties Company conveyed the property to [Appellee], Scott A. Gongaware, providing that the same was ---
UNDER AND SUBJECT to all exceptions, reservations and all other matters affecting title as set forth in the deed from Randy E. Hoffman and Sherry L. Hoffman, his wife, to Consolidation Coal Company dated October 12, 1977 and recorded in deed book volume 812, page 646.
There is no suggestion that Consolidation Coal Company or its successors ever gave [Appellants] notice to remove the timber.
Sometime prior to 2012, [Appellee], Scott A. Gongaware, entered into an agreement with [Appellee], Kern Brothers Lumber Company, to harvest the timber upon the real estate. [Appellants] learned of the harvesting of timber in 2012, and for these purposes, it is undisputed that the harvesting was done without the knowledge or consent of [Appellants].
[Appellants] bring their action against both the [Appellee] landowner, Scott A. Gongaware, and the timber removal contractee, Kern Brothers Lumber Company, for damages in conversion, unjust enrichment, and statutory treble damages under 42 Pa.C.S.A. §8311.
[Appellees] demur to the causes of action on the theory that [Appellants] had no actionable claim to the timber at the time [Appellees] commenced timber removal operations.

         Trial Court Opinion, 1/10/17, at unnumbered 1-3. Finding that Appellants had "no property interest, either real or personal, in the timber existing on the premises at the commencement of these proceedings, " the trial court sustained Appellees' preliminary objections and dismissed Appellants' case. Id. at unnumbered 6. Appellants filed a timely notice of appeal on January 19, 2017. Both Appellants and the trial ...


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