In Re: Estate of Plance, A., Appeal of: Plance, T.

J-A23013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ALFRED E. PLANCE, IN THE SUPERIOR COURT OF
JR., DECEASED PENNSYLVANIA

APPEAL OF: TIMOTHY W. PLANCE
No. 1379 WDA 2014

Appeal from the Order July 22, 2014
In the Court of Common Pleas of Beaver County
Orphans' Court at No(s): 04-13-00855

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 08, 2015

Timothy W. Plance appeals from the order entered in the Court of

Common Pleas of Beaver County, Orphans’ Court Division, that: (1)

declared that Joy Plance possesses superior title to the 146 acre farm known

as the Plance Farm (“Farm”); (2) revoked a prior order allowing the probate

of a photocopy of a will dated May 24, 2012; and (3) declared that Alfred E.

Plance (“Decedent”) died intestate. Upon careful review, we reverse and

remand for proceedings consistent with the dictates of this memorandum.

Decedent died on March 21, 2013, leaving a wife, Joy Plance (“Joy”),

and three children from his first marriage, Timothy Plance (“Timothy”),

Christopher Plance (“Christopher”) and Steven Plance (“Steven”). In 1990,

following his first wife’s death, Decedent became the sole owner of the Farm,

which is situated partly in Beaver County and partly in Washington County.

Decedent married Joy on April 25, 1994, after which time Joy sold her
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residence and invested $34,000 of the proceeds, plus $40,000 borrowed

from her father, to construct a boarding stable on the Farm. Decedent and

Joy operated the stable until approximately 2011 or 2012, when their health

failed.

On August 20, 2004, Decedent executed two land trust agreements for

the purpose of taking and holding title to the Farm. One trust was to hold

the portion of the Farm situated in Beaver County (“Beaver Trust”) and the

other was to hold the portion located in Washington County (“Washington

Trust”). Decedent and Timothy were each named 50% beneficiaries of the

trusts. That same day, Decedent executed two deeds with corresponding

real estate transfer tax forms, one transferring the Beaver County portion of

the Farm to the Beaver Trust and the other transferring the Washington

County portion to the Washington Trust. The trust documents and deeds

were prepared by and executed in the presence of Lawrence Bolind, Esquire,

who also notarized them. The deeds were given to Decedent but never

recorded.

On April 26, 2006, Decedent executed two deeds purporting to

transfer the Farm to himself and Joy as tenants by the entireties. Decedent

executed the deeds as grantor in his individual capacity and not as trustee of

the land trust agreements. Both deeds were recorded.

In 2012, Decedent and Joy executed an Oil, Gas and Coalbed Methane

Lease with respect to the entire 146 acre Farm in favor of Range Resources-

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Appalachia, LLC, and in return received a check in the amount of

$439,650.00, payable to Decedent and Joy as owners by the entireties.

In the Spring of 2012, Decedent was hospitalized and, upon his

release, Timothy and his wife, Shawna, made an appointment with their

attorney, Michael Werner, Esquire, for Decedent to execute a new will and

other estate planning documents. Timothy and Shawna accompanied

Decedent to meet with Attorney Werner. During the meeting, Decedent

showed Attorney Werner copies of the land trust agreements and deeds

from 2004, as well as the 2006 deeds from himself to himself and Joy.

Decedent also expressed concern regarding the disposition of the check from

Range Resources.1 Attorney Werner, being of the opinion that the 2004

deeds had effectively transferred the Farm to the trusts, advised Decedent

to request a stop-payment order on the Range Resources check because

Decedent and Joy, the payees named on the check, were not the true

owners of the Farm. Attorney Werner also testified that he advised

Decedent to record the 2004 deeds, but that doing so would “open up a very

large can of worms from which it would be very difficult to turn back.” N.T.

Trial, 5/19/14, at 42.

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1
Attorney Werner testified that Decedent told him the check had been
mailed to the residence he shared with Joy during the time he had been
hospitalized. Decedent “voiced serious concern about Joy obtaining that
check and his inability to access the . . . funds moving forward” due to
problems in Decedent’s relationship with Joy. N.T. Trial, 5/19/14, at 11.

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Attorney Werner prepared a will and other documents for Decedent

based upon their discussion and Decedent returned, accompanied by

Shawna Plance, to execute the documents on May 24, 2012. The will

executed by Decedent included $1,000 bequests to each of his sons and

gave the residue to Timothy, with a gift over to Christopher. The will gave

nothing to Joy. Decedent named Timothy as his executor. Shawna testified

that Decedent gave to her the originals of the executed estate planning

documents and she placed them in a plastic file box, which remained in her

possession until August 2012.

Following the execution of Decedent’s estate planning documents,

Attorney Werner received several phone calls from Shawna Plance and

Decedent in which they gave him changing instructions as to stopping

payment on the Range Resources check and recording the 2004 deeds.

Ultimately, on July 9, 2012, Decedent instructed Attorney Werner not to

proceed further with the trusts, deeds or stopping payment on the check and

requested that Attorney Werner return to him the originals and all copies of

all documents in his possession. Attorney Werner did so on that same day.2

____________________________________________

2
Attorney Werner testified that, according to the cover letter he sent to
Decedent, the following documents were returned to Decedent: (1) an
original and one copy of the Beaver County land trust agreement; (2) an
original and one copy of the unrecorded 2004 Beaver County deed; (3) a
copy of the recorded 2006 Beaver County deed; (4) an original Washington
County land trust agreement; (5) an original and one copy of the unrecorded
2004 Washington County deed; (6) a copy of the recorded 2006 Washington
(Footnote Continued Next Page)

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In early August 2012, Decedent asked Shawna to give him the plastic

box containing his estate planning documents. Joy testified that when

Decedent returned home with the box, he told her that he, Timothy and

Shawna had had a falling out. She further testified that Decedent took the

plastic container out to the trash burner and burned its contents.

After Decedent’s death in March 2013, the original 2012 will could not

be located. Accordingly, Timothy filed a petition to probate a photocopy of

the will. Joy did not file a response to the petition. After a hearing which

was not transcribed, at which Joy’s counsel appeared to object to the prayer

of the petition, the Orphans’ Court concluded that the will “has been lost and

misplaced and that the testator has not destroyed the original with the

intention of revocation” and directed that the copy be admitted to probate.

Timothy was granted Letters Testamentary on October 2, 2013.

On November 21, 2013, Timothy filed a petition with the Orphans’

Court, alleging that Joy had either taken or refused to disclose the location

of certain property of the Decedent, including approximately $100,000 in

gold coins and a large portion of the proceeds of the Range Resources check.

Timothy further claimed that Joy had dissipated certain other assets of the

Decedent without his authorization, and that her actions made it impossible

for him to secure and/or inventory the Decedent’s property. Timothy

_______________________
(Footnote Continued)

County deed; and (7) a copy of the Range Resources lease. N.T. Trial,
5/19/14, at 50-51.

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requested, inter alia, that Joy be enjoined from alienating property of the

estate and be ordered to account for estate property previously dissipated.

In her response to Timothy’s petition, Joy denied that she improperly

disposed of estate assets and, in new matter, asserted that Decedent had

revoked his 2012 will by burning it and, as such, had died intestate. Joy also

asserted ownership of the Farm by virtue of the 2006 deed. Joy requested

that the 2012 will be declared to have been revoked.

Timothy filed a response to new matter in which he claimed that the

issue of the will’s destruction had already been litigated and decided by the

court in 2013 when it directed the admission of the photocopy to probate,

and that Joy’s claim was subject to the doctrines of res judicata and

collateral estoppel. He also asserted that the Farm was effectively

transferred to the land trusts by the 2004 deeds. Therefore, Timothy

claimed, the 2006 deed purporting to convey the Farm to Decedent and Joy

as tenants by the entireties was void.

The parties engaged in discovery and, on May 19-20, 2014, a trial was

held before the Orphans’ Court. By memorandum and decree dated July 22,

2014, the court held that Joy Plance “possesses the superior title to the

Plance [F]arm;” concluded that the previous order allowing the probate of a

photocopy of Decedent’s will had been entered improvidently; and declared

that Decedent died intestate. Timothy filed a timely notice of appeal on

August 19, 2014, followed by a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 28,

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2014, the Orphans’ Court filed its Rule 1925(a) opinion, in which it

addressed those issues raised by Timothy in his Rule 1925(b) statement that

had not been addressed in the court’s prior memorandum.

Timothy raises the following issues for our review:

A. Under Pennsylvania law, does the Decedent’s execution and
acknowledgement of the 2004 deed transferred from the
Decedent as an individual to himself as Trustee constitute
delivery of the deed and effectively transfer title to the subject
property even if the deed was not recorded?

B. Under Pennsylvania law, does the doctrine of res judicata
preclude Joy Plance’s claim that the will was revoked when the
question of the will’s revocation was already addressed and
adjudicated in a prior hearing?

C. Under Pennsylvania law, does the doctrine of collateral
estoppel prevent [Joy] Plance from asserting a claim that the will
was revoked when the question of the will’s revocation was
already addressed and adjudicated in a prior hearing?

Brief of Appellant, at 4.

We begin by noting our standard of review:

When reviewing a decree entered by the Orphans’ Court, this
Court must determine whether the record is free from legal error
and the court’s factual findings are supported by the evidence.
Because the Orphans’ Court sits as the fact-finder, it determines
the credibility of the witnesses and, on review, we will not
reverse its credibility determinations absent an abuse of that
discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of
law on which the court relied are palpably wrong or clearly
inapplicable, we will reverse the court's decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014), quoting In re Estate

of Hooper, 80 A.3d 815, 818 (Pa. Super. 2013).

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Timothy’s first claim is that the Orphans’ Court erred by failing to find

that there was delivery of the 2004 deeds and that the Farm was effectively

transferred to the land trust. Timothy argues that the Decedent’s failure to

record the deeds is not dispositive, and the fact that Decedent, as grantor,

delivered the deeds to himself, as trustee, evidenced his intent to pass title

of the Farm to the trust.

The Orphans’ Court found as follows:

There is no dispute that the Decedent executed two (2) Trust
Agreements and two (2) Deeds that would transfer [the Farm]
into those Trusts, with the assistance of Attorney Lawrence
Bolind, and that the original documents were then given to
Decedent. Decedent retained possession of those documents
and had every chance to properly record the Deeds but failed to
do so. Subsequently, in 2006, the Decedent executed another
Deed that transferred ownership of the [Farm] to himself and
[Joy].

Due to these facts, it is clear that the Decedent never intended
to transfer the [Farm] into the Trusts. Not only did he not
record the documents that were in his possession, but he also
acted in direct contradiction to the Trusts’ supposed ownership of
the land by later transferring it to himself and [Joy]. For that
reason, [Joy] has a superior title to the [Farm].

Orphans’ Court Opinion, 7/22/14, at 40.

For the following reasons, we conclude that the 2004 deeds effectively

transferred the Farm to the land trusts.

Whether there has been delivery of a deed is a factual question
to be determined by the chancellor. Mower v. Mower, 367 Pa.
325, 80 A.2d 856 (1951); Abraham v. Mihalich, 330 Pa.Super.
378, 479 A.2d 601 (1984). If his finding is supported by
competent evidence, it is binding on this court. Abraham v.
Mihalich, supra; see also District Council 33 v. City of
Philadelphia, 354 Pa.Super. 176, 511 A.2d 818 (1986).

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Further, we accept his resolution of conflicts in testimony as well
as his assessment of the credibility of witnesses. In re
Kerwin's Estate, 371 Pa. 147, 89 A.2d 332 (1952); Abraham
v. Mihalich, supra.

In re Estate of Darlington, 527 A.2d 159, 160 (Pa. Super. 1987).

The recording of a deed raises the presumption of the deed’s validity.

Stiegelmann v. Ackman, 41 A.2d 679, 681 (Pa. 1945). However,

recording is not essential to establish the validity of a deed; title to real

estate may be passed by delivery of the deed to the grantee without

recording it. Sovereign Bank v. Harper, 674 A.2d 1085, 1092 (Pa. Super.

1996) (citation omitted). “[N]o particular form or ceremony is necessary to

effect delivery; it is sufficient if the grantor evidences his intention in any

manner to put the document into the ownership of the other party and

thereby to relinquish all control of it thereafter.” City Stores Co. v.

Philadelphia, 103 A.2d 664, 666 (Pa. 1954). “The delivery may be inferred

from the circumstances; it may be accomplished by words alone, by acts, or

by both, and it is not necessary that actual manual investiture be proved.”

Id. at 666-67. “It is the general rule that there is a presumption, [in] the

absence of proof to the contrary, that a deed was executed and delivered on

the day it was acknowledged[.]” Herr v. Bard, 50 A.2d 280, 281-82 (Pa.

1947) (citation omitted). However, the presumption arising from “signing,

sealing and acknowledging a deed is delivered, accompanied by manual

possession by the grantee, . . . is not irrebuttable[.]” Cragin’s Estate, 117

A. 445, 446 (Pa. 1922). The “presumption may be overcome by evidence

that no delivery was in fact intended, and none made.” Id.

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Joy argues that no delivery occurred. However, in the cases she cites

in support of this position, the grantor and grantee were different

individuals. Conversely, here, grantor and grantee were the same

individual, the Decedent, acting in two different capacities. Accordingly,

indicia of delivery such as “relinquishment of control,” see Abraham,

supra, or delivery to a third party with instructions to pass on to the

grantee, see Fiore v. Fiore, 174 A.2d 858 (Pa. 1961), are not relevant to

our analysis. Joy also cites Clauer v. Clauer, 22 Pa. Super. 395 (1903), for

the proposition that “[w]here a Grantor retains possession of a Deed during

his lifetime and does not record it there is no delivery.” Brief of Appellee, at

11. However, there, again, the grantor and grantee were separate

individuals and, thus, Clauer is distinguishable on its facts.

The trial court placed great weight on the fact that Decedent did not

record the deeds. See Trial Court Opinion, 7/22/14, at 40 (“Decedent

retained possession of [the deeds and trusts] and had every chance to

properly record the Deeds but failed to do so.”). However, as noted above,

the failure to record the deeds is not dispositive. Decedent, as grantor,

executed, acknowledged and delivered the deeds to himself, as

trustee/grantee of two trusts he executed that same day. This was sufficient

to pass title to the trusts. Harper, supra. Joy presented no evidence to

rebut the presumption that, at the time Decedent executed and

acknowledged the deeds and delivered them to himself as trustee, he

intended to transfer ownership of the Farm to the trusts. Accordingly, the

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Orphans’ Court erred in finding that title to the Farm did not vest in the

trusts by virtue of the 2004 deeds.

Joy also argues that, even if delivery occurred, she is a subsequent

bona fide purchaser for value by virtue of the 2006 deeds and, thus, she

possesses superior title to the Farm. In support of this claim, she cites to 21

P.S. §§ 351 and 444, which provide as follows:

§ 351. Failure to record conveyance

All deeds, conveyances, contracts, and other instruments of
writing wherein it shall be the intention of the parties executing
the same to grant, bargain, sell, and convey any lands,
tenements, or hereditaments situate in this Commonwealth,
upon being acknowledged by the parties executing the same or
proved in the manner provided by the laws of this
Commonwealth, shall be recorded in the office for the recording
of deeds in the county where such lands, tenements, and
hereditaments are situate. Every such deed, conveyance,
contract, or other instrument of writing which shall not be
acknowledged or proved and recorded, as aforesaid, shall be
adjudged fraudulent and void as to any subsequent bona fide
purchaser or mortgagee or holder of any judgment, duly entered
in the prothonotary's office of the county in which the lands,
tenements, or hereditaments are situate, without actual or
constructive notice unless such deed, conveyance, contract, or
instrument of writing shall be recorded, as aforesaid, before the
recording of the deed or conveyance or the entry of the
judgment under which such subsequent purchaser, mortgagee,
or judgment creditor shall claim. Nothing contained in this act
shall be construed to repeal or modify any law providing for the
lien of purchase money mortgages.

21 P.S. § 351.

§ 444. All deeds made in the state to be acknowledged and
recorded within ninety days

All deeds and conveyances, which, from and after the passage of
this act, shall be made and executed within this commonwealth

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of or concerning any lands, tenements or hereditaments in this
commonwealth, or whereby the title to the same may be in any
way affected in law or equity, shall be acknowledged by the
grantor . . . and shall be recorded in the office for the recording
of deeds where such lands, tenements or hereditaments are
lying and being, within ninety days after the execution of such
deeds or conveyance, and every such deed and conveyance that
shall at any time after the passage of this act be made and
executed in this commonwealth, and which shall not be proved
and recorded as aforesaid, shall be adjudged fraudulent and void
against any subsequent purchaser or mortgagee for a valid
consideration[.]

21 P.S. § 444. Joy asserts that her “valid consideration” was the investment

of “substantial sums of her own funds into the development and operation of

the Farm where she worked side-by-side with her husband for nineteen

years.” Brief of Appellee, at 13. Citing Ludwig Rys v. Weronika Rys, 99

Pa. Super. 339 (1930), Joy also asserts that “natural love and affection

between spouses is considered valid consideration in the marriage or family

context.” Id. For the following reasons, Joy’s argument fails.

A grantee of land is a bona fide purchaser if, at the time of sale, he

was: (1) without notice of an adverse interest and (2) gave value for the

purchase of the land. Roberts v. Estate of Pursley, 718 A.2d 837, 841

(Pa. Super. 1998). Here, although Joy may years ago have invested her

own funds into the improvement of the Farm, she has failed to demonstrate

that she paid valid consideration at the time the deeds were actually

executed, such that she could be considered a bona fide purchaser for value.

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The deeds themselves recite only nominal consideration in the amount of

one dollar.3 Nor has Joy either argued or demonstrated that Decedent

agreed to accept her prior investment in the property as past consideration

for the conveyance. Rather, it appears that Decedent simply attempted to

make a gift of an undivided one-half interest the property to Joy.

Moreover, Joy’s reliance on Rys is inapt. Rys concerned a husband’s

claim that his wife fraudulently induced him to title property in their joint

names, despite the fact that the consideration paid for the property

consisted solely of husband’s funds. The question at issue in the current

matter, whether the wife was a bona fide purchaser for value, did not arise

in Rys and thus, the case is inapplicable here.

For the foregoing reasons, we conclude that: (1) the 2004 deeds

effectively passed title to the Farm to the trusts and (2) Joy is not a bona

fide purchaser for value and does not possess superior title to the Farm.
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3

The expression of a nominal consideration in a deed is resorted
to by conveyancers to avoid the inconvenience of setting forth
the real consideration when that is difficult to set forth briefly, or
of a private nature, and to comply with a usage that arose
because a deed of bargain and sale, under the statute of uses,
originally operated merely to create a resulting trust for the
grantor, unless supported by a valuable consideration, which, it
was formerly held, must be a pecuniary one. It is well known
that the nominal consideration of one dollar is regarded by all as
having served its purpose by its mere mention in the instrument
and that it almost never changes hands[.]

Dohan v. Yearicks, 98 A. 611, 611 (Pa. 1916)

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Timothy’s final two issues will be addressed together. These claims

assert that the Orphans’ Court erred by considering – and ultimately

agreeing with – Joy’s claim that Decedent destroyed his will by burning it

and, thus, the duplicate will admitted to probate was revoked and Decedent

actually died intestate. Timothy asserts that the questions of revocation was

adjudicated in a prior proceeding and, thus, the doctrines of res judicata and

collateral estoppel barred the court from revisiting the issues.

Under the doctrine of res judicata, a party is barred from litigating

claims that were or could have been raised in a prior action which resulted in

a final judgment on the merits, so long as the claims derive from the same

cause of action. Balent v. City of Wilkes-Barre, 669 A.2d 309, 315 (Pa.

1955). Res judicata applies when, in two actions, there is: (1) an identity in

the thing sued upon (2) identity in the cause of action (3) identity of persons

and parties to the action, and (4) identity of the capacity of the parties suing

or sued. In re Jones & Laughlin Steel Corp., 477 A.2d 527, 530-31 (Pa.

Super. 1984) (citation omitted). “The essential inquiry (in determining

whether res judicata is applicable) is whether the ultimate and controlling

issues have been decided in a prior proceeding in which the parties had an

opportunity to appear and assert their rights.” In re Estate of Velott, 529

A.2d 525, 528 (Pa. Super. 1987) (citation omitted). The purposes behind

the doctrine are to conserve limited judicial resources, establish certainty

and respect for court judgments, and protect the party relying upon the

judgment from vexatious judgment. Radakovich v. Radakovich, 846 A.2d

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709, 715 (Pa. Super. 2004). In keeping with these purposes, the doctrine

must be liberally construed and applied without technical restriction. Id.

Here, the prior action was Timothy Plance’s petition to admit a

photocopy4 of the Decedent’s May 21, 2012 will. At issue in this action was

whether the will was revoked or destroyed by the testator. As here, “where

a [testator] retains the custody and possession of [his] will and, after [his]

death, the will cannot be found, a presumption arises, in the absence of

proof to the contrary, that the will was revoked or destroyed by the

[testator].” In re Estate of Janosky, 827 A.2d 512, 519 (Pa. Super. 2003)

(citation omitted). Thus, Timothy bore the burden of rebutting the

presumption that Decedent had revoked the 2012 will.

Timothy served his petition upon Joy’s counsel on August 14, 2013, in

anticipation of presenting it at the August 27, 2013 motions hearing. Joy

filed no responsive pleading to Timothy’s petition, but was represented by

counsel at the hearing. No notes of testimony from the motions hearing

exist. However, at the conclusion of the hearing, the court issued an order

finding that the Decedent had not “destroyed the original [will] with the

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4
In order to probate a copy of a lost will, the proponent of the copy must
prove that: (1) the testator duly and properly executed the original will; (2)
the contents of the will were substantially as appears on the copy of the will
presented for probate; and (3) when the testator died, the will remained
undestroyed or revoked by him. Burns v. Kabboul, 595 A.2d 1153, 1167-
68 (Pa. Super. 1991) (citation omitted). Here, the only question at issue
was whether the Decedent had revoked his will prior to his death.

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intention of revocation.” Orphans’ Court Order, 8/27/13. Joy did not appeal

and, thus, it became a final order.

Subsequently, after letters testamentary had been granted to Timothy

on the 2012 will, Joy again raised the issue of revocation in her new matter

to Timothy’s petition for relief. Joy claimed that Decedent had revoked the

will by burning it. In his response to new matter, Timothy raised the

doctrines of res judicata and collateral estoppel, claiming the issue had

already been decided by order dated August 27, 2013, admitting a

photocopy of the will to probate.

The four identities of res judicata are present in this matter. The

thing sued upon and cause of action in both actions – i.e., whether or not

Decedent had revoked his 2012 will – were the same. The parties were

identical, as were their capacities. In the prior action, Joy could have

litigated whether Timothy rebutted the presumption that Decedent revoked

his will, but failed to file a response to his petition. She had a further

opportunity to raise the issue in motions court, where she was represented

by counsel. Moreover, once the court entered its order finding that

Decedent had not revoked the will, Joy declined to file an appeal.

Accordingly, there was a final judgment entered on the merits by a court of

competent jurisdiction and Joy was barred by the doctrine of res judicata

from relitigating the same cause of action in a subsequent suit. As such, the

Orphans’ Court erred in addressing the question of revocation a second time.

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Similarly, Joy’s claim is also barred by the doctrine of collateral

estoppel. Collateral estoppel, which is closely related to res judicata, bars

the re-litigation of issues where:

(1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was
a party or in privity with a party in the prior case; (4) the party
or person privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the
prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.

Radakovich, 846 A.2d at 715.

As stated above, the same issue was before the court in both actions,

i.e., whether Decedent had revoked his 2012 will. In both cases, the parties

were identical and each had a full and fair opportunity to litigate the issue.

Finally, the court issued a final judgment on the merits in the first action,

and the determination as to the issue of revocation was essential to that

judgment. Joy did not appeal that ruling. Thus, the court erred in revisiting

the issue.

Order reversed. Case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2015

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