J-A09030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PEGGY HOOKER, SUBSTITUTE : IN THE SUPERIOR COURT OF
ADMINISTRATRIX D.B.N., FOR THE : PENNSYLVANIA
ESTATE OF EDWARD C. WAGNER :
:
:
v. :
:
:
MARY B. WAGNER, A/K/A MARY B. : No. 1243 WDA 2017
SHAULIS, ROSE M. BLOUGH AND :
KENNETH E. BLOUGH, AND S&T :
BANK :
:
:
APPEAL OF: ROSE M. BLOUGH AND :
KENNETH E. BLOUGH :
Appeal from the Order August 1, 2017
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): 5606 OF 2008
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 14, 2018
Appellants, Rose M. Blough and Kenneth E. Blough, appeal from the
Order entered in the Westmoreland County Court of Common Pleas granting
the Motion for Summary Judgment filed by Appellee, Peggy Hooker, Substitute
Administratrix D.B.N., for the Estate of Edward C. Wagner, and denying
Appellants’ Motion for Summary Judgment. We affirm.
This case involves a dispute over the survivorship interest of certain real
properties in which the Decedent, Edward C. Wagner, was a co-owner. The
Deeds to the properties at issue identify the Grantees as “Edward C. Wagner
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and Mary B. Wagner, his wife,”1 and “Edward C. Wagner and Mary B. Wagner,
husband and wife.”2 After Decedent died intestate in September 2005,3 Mary
Wagner transferred the subject real estate to Appellants, her daughter and
son-in-law.
On May 27, 2008, Tammy Wagner, then Administratrix of the estate of
Edward C. Wagner,4 filed a Complaint in Action to Quiet Title against
Appellants, alleging that, at the time of his death, (1) Decedent was still legally
married to Sandra Kelly, also known as Sandra Wagner,5 and (2) because
Decedent was not legally married to Mary B. Wagner at the time of his death,
he owned the properties at issue as a tenant in common with Mary B. Wagner.
As such, the Administratrix contended that Mary B. Wagner could only convey
one-half interest of the properties at issue after Decedent’s death, and that
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1 Westmoreland County Recorder of Deeds Book Vol. 3626, Page 117,
recorded November 5, 1998.
2 Westmoreland County Deed Books, Instr: 200204020022563.
3Appellants allege that Decedent died intestate, and the record is devoid of
any will for Decedent.
4On February 26, 2014, Tammy Wagner, the first Administratrix of Decedent’s
estate who initiated the Quiet Title Action, was removed and Peggy Hooker
was appointed Substituted Administratrix. R.R. at 2a.
5 Decedent and Sandra married in 1975 and separated in 1980, but never
divorced.
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the estate of Decedent owns the remaining one-half interest of the properties.
Appellants filed a Motion to Dismiss the Quiet Title Action.
On March 18, 2015, the trial court entered an Order and Decree that
Sandra J. Wagner did not forfeit her right to an intestate share of Decedent’s
estate pursuant to Section 2106(a) of Pennsylvania’s Probate, Estates and
Fiduciaries Code,6 and is the sole intestate heir of Decedent pursuant to
Section 2102(1).7
Appellants and Appellee then filed Cross-Motions for Summary
Judgment in which each asked the trial court to determine whether Decedent
and Mary B. Wagner owned the properties at issue as tenants in common or
as joint tenants with a right of survivorship. On August 1, 2017, the court
entered an Order granting Appellee’s Motion for Summary Judgment and
found that Appellants hold title to the properties at issue as tenants in common
with the estate of Decedent.
This timely appeal followed. Appellants and the trial court complied with
Pa.R.A.P. 1925.
Appellants raise the following six issues on appeal:
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6 20 Pa.C.S. § 2106(a)(1) (“A spouse who, for one year or upwards previous
to the death of the other spouse, has willfully neglected or refused to perform
the duty to support the other spouse, or who for one year or upwards has
willfully and maliciously deserted the other spouse, shall have no right or
interest under this chapter in the real or personal estate of the other spouse.”)
7 20 Pa.C.S. § 2102(1) (“The intestate share of a decedent’s surviving spouse
is[, i]f there is no surviving issue or parent of the decedent, the entire intestate
estate.”)
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1. Did the [l]ower [c]ourt err in granting [Appellees’] Motion for
Summary Judgment?
2. Did the [l]ower [c]ourt err in finding that it was restricted to
the language in the Deeds in determining the outcome of the
case?
3. Did the language in the Deeds conveying the subject property
to Edward C. Wagner and Mary B. Wagner coupled with the
testimony of the attorney who drafted the October 22, 1998 Deed
[Richard F. Flickenger], that at the time of the transaction he
believed Edward and Mary Wagner were husband and wife,
establish by a preponderance of the evidence in this case that it
was the intent of Edward and Mary Wagner to take the subject
property as tenants by the entirety instead of tenants in common?
4. Should the [l]ower [c]ourt have permitted [Appellants] to
present additional evidence at trial, beyond the language in the
Deeds, as to the intention of Edward and Mary Wagner to take the
subject property as “tenants by the entireties?”
5. Should the [l]ower [c]ourt have permitted [ ] Appellants to
produce witnesses and evidence at a trial in the Quiet Title Action
to establish Edward and Mary Wagner’s intent to establish a right
of survivorship when they acquired title to the subject premises
by two (2) separate Deeds describing them as husband and wife?
6. Should the [l]ower [c]ourt have denied [Appellee’s] Motion for
Summary Judgment on the basis that there were genuine issues
of material fact as to the necessary elements of the cause of action
or defense that could be established by additional discovery and
at [t]rial?
Appellants’ Brief at 7-8.8
Standard and Scope of Review
The Pennsylvania Supreme Court has delineated our standard of review
of an order granting summary judgment as follows:
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8 We remind Appellants’ counsel to adhere to Pa.R.A.P. 1925(b)(4) and expect
future filings under this rule to be more concise than Appellants’ Concise
Statement of Errors in this matter.
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[A]n appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. But the
issue as to whether there are no genuine issues as to any material
fact presents a question of law, and therefore, on that question
our standard of review is de novo. This means we need not defer
to the determinations made by the lower tribunals. To the extent
that this Court must resolve a question of law, we shall review the
grant of summary judgment in the context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations
omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.
(citation omitted); see also Pa.R.C.P. No. 1035.2(1). “When considering a
motion for summary judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the non-moving
party.” Summers, 997 A.2d at 1159 (citation omitted). “In so doing, the
trial court must resolve all doubts as to the existence of a genuine issue of
material fact against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free from all doubt.”
Id. (citation and internal quotation marks omitted).
Issue 1 – The trial court’s grant of Summary Judgment in favor
of Appellee
Appellants first contend that the trial court erred as a matter of law
when it granted Appellee’s Motion for Summary Judgment because there were
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genuine issues of material fact and they required additional discovery and a
trial. We disagree.
The determination of the right to survivorship is a question of law and
therefore our standard of review is de novo. In re Estate of Quick, 905 A.2d
471, 474 (Pa. 2006).
The relevant rights of survivorship are defined as follows. When
individuals own property as tenants in common, they “own and possess in
equal shares an undivided interest in the whole property.” In re Engel's
Estate, 198 A.2d 505, 507 (Pa. 1964). In other words, “there is unity of
possession but separate and distinct titles.” In re Estate of Quick, supra,
at 490. Further, “tenants in common are presumed to hold equal shares in
the property, and this presumption stands until it is rebutted by competent
evidence.” Moore v. Miller, 910 A.2d 704, 709 (Pa. Super. 2006) (citations
omitted).
When individuals hold property as joint tenants with right of
survivorship, title “to that property vests equally in those persons during their
lifetimes, with sole ownership passing to the survivor at the death of the other
joint tenant.” In re Estate of Quick, supra, at 474. A joint tenancy with
right of survivorship must be created by express words or by necessary
implication, but there are no particular words that must be used in its creation.
Id. (internal citations omitted).
By statute in Pennsylvania, survivorship in joint tenancies does not exist
unless the instrument creating the estate expressly provides that survivorship
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should exist. See Edel v. Edel, 424 A.2d 946, 948 (Pa. Super. 1981) (citing
Act of March 31, 1812, 20 P.S. § 121, renumbered as 68 P.S. § 110 (1972)).
“Since the passage of the Act of 1812, the question of survivorship has
become a matter of intent, and in order to engraft the right of survivorship on
a co-tenancy which might otherwise be a tenancy in common, the intent to do
so must be expressed with sufficient clarity to overcome the statutory
presumption that survivorship is not intended.” Id. at 948 (internal citations
omitted).
In Teacher v. Kijurina, 76 A.2d 197 (Pa. 1950), our Supreme Court
addressed “whether the real estate acquired by deed in which the granting
clause merely named the grantees as ‘Nick Kijurina and Sarah Kijurina his
wife[,]’ when in fact they were not married, operated to convey an estate of
tenancy in common or vested an estate with incident of survivorship in the
nature of a joint tenancy.” Id. at 200. The Teacher Court held that the
language “and Sarah his wife” creates an estate by entireties, i.e., an estate
with a right of survivorship, if the grantees were in fact husband and wife.
Their intent to create such estate could not be imputed, however, where they
were not in fact married but merely living together. Thus, a tenancy in
common without right of survivorship was created. See id. at 202.
In Estate of Bruce, 538 A.2d 923 (Pa. Super. 1988), the court applied
the holding in Teacher to a case that is factually similar to the instant matter.
In that case, a decedent had not divorced his previous wife, and the property
deeds at issue with his second “spouse” contained only the phrase, “David A.
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Bruce and Ruth E. Bruce, his wife.” Id. at 926-27. They did not contain any
words that indicated the intent of the right of survivorship. Id. In following
Teacher, the Estate of Bruce court found:
There are no words in the deeds to which meaning can be given
that would enable us to conclude that the parties intended a joint
tenancy with right of survivorship. … The deeds here lack the
specificity necessary to create a survivorship right and the facts
present on the record do not disclose that the intent of David
Bruce was to do so.
Id. at 927 (internal citations omitted).
Given the record’s undisputed facts, Teacher and Bruce are dispositive
of the instant matter. Appellants do not dispute, and the record reflects, that
Decedent and Sandra J. Wagner were lawfully married in 1975 and never
divorced. Appellants concede that Decedent and Mary B. Wagner were not
married at the time of Decedent’s passing. Moreover, Appellants concede that
as the “informant” on Decedent’s death certificate, Mary B. Wagner indicated
that Decedent was “never married,” i.e., that she did not believe that she and
Decedent were married at the time of his death. The deeds at issue contain
only the language of “husband and wife” and “his wife;” they contain no
language that either creates an inference of the Decedent’s and Mary B.
Wagner’s intent to create a right of survivorship for Mary B. Wagner or rebuts
the statutory presumption against her right of survivorship in the properties.
For the foregoing reasons, as a matter of law and as set forth in Teacher
and Bruce, Mary B. Wagner did not have rights of survivorship in the
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properties at issue and was a tenant in common with Decedent. Accordingly,
the trial court correctly granted Appellee’s Motion for Summary Judgment and
denied Appellants’ Motion for Summary Judgment.
Issues 2-5 – Did the trial court err by not allowing Appellants to
introduce parol evidence to demonstrate the intent of Decedent
and Mary B. Wagner when they acquired title of the two
properties at issue?
Appellants’ issues 2 through 5 all contemplate the same question:
should the trial court have allowed Appellants to introduce additional evidence
other than the deeds themselves in order to prove that Decedent and Mary B.
Wagner intended to take the disputed parcels of land as joint tenants with a
right of survivorship? Based on Pennsylvania’s well-established case law, we
agree with the trial court and find that the unambiguous language of the deeds
at issue controls and, thus, admitting parol evidence would be improper.
As discussed supra, the language of the deed, and not the intent of the
parties, determines if the surviving deed holder retains joint tenancy with right
of survivorship. “[When t]he language of the deed is clear and unambiguous[,
...] the intent of the grantees must be gleaned solely from its language.”
Teacher, 76 A.2d at 200. “In [the] absence of fraud, accident[,] or
mistake[,] parol evidence is inadmissible to vary or limit the scope of
a deed's express covenants and the nature and quantity of the interest
conveyed must be ascertained by the instrument itself and cannot be
orally shown.” Moore v. Miller, 910 A.2d 704, 708 (Pa. Super. 2006)
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(emphasis in original). Thus, “parol evidence [can] not be relied upon or
referenced to alter a conveyance to two people as tenants in common.” Id.
Here, Appellants did not introduce any evidence of fraud, accident, or
mistake that occurred when the disputed deeds were created. Moreover,
Appellants did not assert, and the trial court did not find, that there was
ambiguity in the deeds themselves that would properly allow for the
introduction of extrinsic evidence. Accordingly, the trial court did not err by
basing its decision solely on the deeds themselves.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2018
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