Bezjak v. Diamond

135 A.3d 623

2016 PA Super 57

Joseph A. BEZJAK and Mildred P. Bezjak, His Wife and Carl F. Bezjak, and Lara Bezjak, His Wife, Appellants

v.Minnie DIAMOND, her Heirs and Assigns, Pearl Stronko and Joseph J. Stronko, Jr., their Heirs and Assigns, Stella Tomasik, her Heirs and Assigns, William B. Diamond and Santina Diamond, their Heirs and Assigns, Rudolph Diamond, his Heirs and Assigns, Evelyn Diamond, also known as Sister Mary Karen Diamond, Emet Diamond, Jr., his Heirs and Assigns, Lottie Del Signore, her Heirs and Assigns, Adele Siba, her Heirs and Assigns, and the Nilan Connellsville Coal and Coke Company, its Successors and Assigns, Appellees.

No. 148 WDA 2015

Superior Court of Pennsylvania.

Argued Oct. 28, 2015.

Filed March 3, 2016.

Douglas S. Sholtis, Smithfield, for appellants.

Peter J. Daley, II, Brownsville, for appellees.

BEFORE: SHOGAN, OTT, and STABILE, JJ.

OPINION BY STABILE, J.:

Appellants, Joseph A. Bezjak and Mildred P. Bezjak, his wife, and Carl F. Bezjak and Lara Bezjak, his wife (collectively “Appellants”), appeal from the December 23, 2014 order entered in the Court of Common Pleas of Fayette County, denying their motion for summary judgment in their action to quiet title while granting the summary judgment motion filed by Appellees, Minnie Diamond, Pearl and Joseph J. Stronko, Jr., William B. and Santina Diamond, Rudolph Diamond, Evelyn Diamond also known as Sister Mary Karen Diamond, Emet Diamond, Jr., Lottie del Signore, Adele Siba, and all of their heirs and assigns (collectively “Diamond Heirs”), and the Nilan Connellsville Coal and Coke Company, its successors and assigns (“Nilan”).¹ Following review, we affirm.

In its December 23, 2014 Order and Opinion, the trial court explained:

At issue is the ownership of approximately 65 acres of land situate in Springhill Township, Fayette County, Pennsylvania. In their [c]omplaint seeking to [q]uiet [t]itle in themselves, [Appellants] acknowledge that [the Diamond Heirs] have an apparent legal interest in the property as shown by the land records pertaining thereto. Complaint, Paragraph 7. However, in the next paragraph of their complaint and in their [m]otion for [s]ummary [j]udgment, [Appellants] allege they are nevertheless entitled to summary judgment as a matter of law because they have adversely possessed the property for more than 21 years because they can tack the years of their possession since 2002 onto those of their predecessor in title, Pontorero and Sons Coal Company, which owned the land since 1977.

[Appellees], in their [m]otion for [s]ummary [j]udgment, ask this [c]ourt to dismiss with prejudice all of [Appellants'] claims in the [q]uiet [t]itle action on the basis that Pontorero and Sons Coal Company filed for bankruptcy in 1983, causing title and possession of the property to be transferred to the custody of the law, 11 U.S.C.A. [§] 541(a)(1), thus interrupting the alleged adverse possession of the property by [Appellants'] predecessor in title. [Appellees] also assert their co-tenancy as a second basis on which this [c]ourt should grant them summary judgment, claiming that actual notice of an intentional ouster must be given by an adverse claimant so as to establish adverse possession against a joint owner of property.

Trial Court Opinion and Order (“T.C.O.”), 12/23/14, at 1–2.

A review of the chain of title sets the background for the dispute between Appellants and Appellees. In 1939, Minnie Diamond, John Harding, Jr., and Rose Ermini purchased the subject property as tenants in common, each having a one-third interest. See Abstract of Title, Exhibit A to Appellants' Complaint, 7/23/10, at ¶ 9. Later that year, Rose Ermini and her husband conveyed Rose Ermini's one-third interest to Minnie Diamond. Id. In 1942, John Harding conveyed his one-third interest to Minnie Diamond's husband, Emet Diamond, Sr. Therefore, as of 1942, Minnie Diamond and Emet Diamond, Sr., owned two-third and one-third of the property, respectively, as tenants in common. Id. at ¶ 10.

Minnie Diamond died intestate in 1943. Deposition of Appellee, Evelyn Diamond, also known as Sister Mary Karen Diamond, 2/27/14, at 10.² Upon Minnie Diamond's death, one-third of her share was transferred to her husband and the remaining two-third share was divided among her six children. Consequently, as of that time, Emet Diamond, Sr., owned a five-ninth share of the property (1/3 + [1/3 of 2/3] ) and Minnie Diamond's children collectively owned a four-ninth share (2/3 of 2/3). See Abstract of Title, Exhibit A to Appellants' Complaint, 7/23/10, at ¶ 10.

In 1977, Emet Diamond, Sr., and his second wife, Anna Diamond, conveyed their interest in the property to Pontorero and Sons Coal Company. Id. at 11. In 1983, Pontorero and Sons filed for bankruptcy. Id. Joseph Bezjak purchased the property out of the bankruptcy in 1999 as documented in the 2002 deed from the bankruptcy trustee to Appellants. Id. at 11–12.³

Appellants acknowledge they did not engage counsel for the purchase of the property and did not secure title insurance. Deposition of Joseph Bezjak, 2/28/14, at 35. They assumed there would be no problem with the title. Id. However, they deny a lack of due diligence, contending the property was “rightfully and completely owned by their family for years.” Appellants' Response to Appellees' Motion for Summary Judgment, 10/8/14, at ¶ 23. They further concede they had no knowledge of the Diamond Heirs' interest in the property until approximately 2010, when the instant litigation commenced. Id. at ¶ 25. They also admit they never ejected any Diamond Heirs from the property. Deposition of Joseph Bezjak, 2/28/14, at 43; Deposition of Carl Bezjak, 2/27/14, at 55–56.⁴

After the pleadings were closed, both Appellants and Appellees filed motions for summary judgment. The trial court heard oral argument on the parties' motions on October 14, 2014. On December 23, 2014, the court issued its opinion and order, denying Appellants' summary judgment motion while granting Appellees' motion and dismissing Appellants' claims with prejudice. T.C.O., 12/23/14. This timely appeal followed. Appellants filed their concise statement of issues complained of on appeal pursuant to Pa.R.A.P.1925(b). In response to Appellants' Rule 1925(b) statement, the trial court issued a supplemental opinion. Supplemental Opinion, 2/23/15.

In this appeal, Appellants present four issues for our consideration:

1. Whether the Appellees were entitled to Summary Judgment based upon Appellants['] failure to met (sic ) the requisite twenty-one (21) year statutory period for Adverse Possession.

2. Whether the Appellants were, in fact, entitled to Summary Judgment based upon Adverse Possession for the property and mineral/oil and gas rights.

3. Whether the Appellants have, in fact, ousted the Appellees.

4. Whether the Appellants are entitled to the property and mineral/oil and gas rights based upon Mutual Mistake in a deed, the Intention of the Parties, and/or Warranty in a prior deed.

Appellants' Brief at 7.⁵

We begin by setting forth this Court's scope and standards of review. As an en banc panel of this Court recently reiterated:

When reviewing a trial court's grant of summary judgment, our standard and scope of review are as follows:

Our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follows: An appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.

Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa.Super.2015) (en banc ) (additional citations omitted). With respect to the denial of summary judgment, “[w]e review the trial court's denial of summary judgment for an abuse of discretion or error of law.” Ramsay v. Pierre, 822 A.2d 85, 90 (Pa.Super.2003).

Appellants' first two issues involve adverse possession. Appellants first argue the trial court erred by granting summary judgment in favor of the Diamond Heirs based on Appellants' failure to satisfy the requisite twenty-one year period for adverse possession. Appellants next contend the trial court erred by denying Appellants' motion based on adverse possession of the property. This Court has recognized:

Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another's property by operation of law. Accordingly, the grant of this extraordinary privilege should be based upon clear evidence. Edmondson v. Dolinich, 307 Pa.Super. 335, 453 A.2d 611, 614 (Pa.Super.1982) (“It is a serious matter indeed to take away another's property. That is why the law imposes such strict requirements of proof on one who claims title by adverse possession.”) One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years. Each of these elements must exist; otherwise, the possession will not confer title.

Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa.Super.2010), appeal denied, 610 Pa. 600, 20 A.3d 489 (2011) (quoting Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa.Super.2008) (additional citations omitted)).

In Showalter, this Court decided—as a matter of first impression—that a record owner's filing of bankruptcy interrupts the continuity of possession and defeats a claim of adverse possession. With no Pennsylvania case law on point, this Court followed the lead of the trial court and looked for guidance from a factually similar...