J-A01024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROY C. RAIDA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellant

v.

JAMES L. KUSNER

Appellee No. 390 WDA 2013

Appeal from the Order February 5, 2013 In the Court of Common Pleas of Butler County

Civil Division at No(s): A.D. No. 2007-10418

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J. FILED MAY 13, 2014

Roy C. Raida appeals from the order entered in the Court of Common

Pleas of Butler County, granting summary judgment in favor of James L.

Kusner and denying Raida’s motion for summary judgment. Upon careful

review, we affirm based on the opinion authored by the Honorable Marilyn J.

Horan.

On March 16, 2007, Raida filed a complaint seeking to eject Kusner

from a parcel of land, known as “Parcel No. 1,” over which Raida claimed

ownership pursuant to a deed from the Butler County Tax Claim Bureau. In

his answer, new matter and counterclaim for quiet title, Kusner averred that

the land in question actually forms a portion of the property deeded to

Kusner’s predecessors in interest on March 19, 1951, and that the Butler

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County authorities erred by essentially creating a non-existent parcel of

property on the assessment maps.

Following discovery, both parties filed motions for summary judgment.

The trial court granted summary judgment in favor of Kusner, denied it as to

Raida, and ordered that the Butler County Department of Assessment

Mapping remove Parcel No. 1 from the map, having determined it was

rightfully part of Kusner’s property. This timely appeal followed, in which

Raida raises the following issues for our review:

1. Whether the [t]rial [c]ourt erred in interpreting the Kusner Deed language to include all of the property [n]orth of the

Hooker-Karns City Road when the Deed itself indicated that the described parcel was only a “portion of the larger

tract lying [n]orth of the Karns City to Hooker State Road.”

2. Whether Raida was required to locate his claimed tract, especially in light of admissions made by [Kusner’s]

predecessors in interest in recorded rights of way.

3. Whether the prima facie case established by [Raida] relative to the [e]jectment action was rebutted by

[Kusner].

4. Whether [Kusner], or [Kusner’s] [p]redecessors in [i]nterest, admitted that the tract owned by [Raida]

existed to the [w]est of [Kusner’s] tract as noted in [r]ights of [w]ay recorded of record.

5. Whether [Kusner], or [Kusner’s] [p]redecessors in

[i]nterest, failure [sic] to object to the 1985 [t]ax [s]ale that vested title in the property in [Raida] and therefore

[Kusner] and/or [Kusner’s] predecessors in interest acted as a waiver [sic].

6. Whether the fact that [Raida] paid property tax on the

property for years, with the knowledge of [Kusner], was relevant to the issues before the [c]ourt.

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7. Whether the trial court erred in finding that there were not

two separate parcels of land located [n]orth of the Karns City-Hooker State Road which were separately assessed

and separately sold. One of said parcels was sold at a tax sale in 1985 and had been separately taxed for some

twenty[-]five years, all with the knowledge of Kusner.

Brief of Appellant, at 6.

We begin by noting:

In reviewing an order granting summary judgment, 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: [A]n 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 nonmoving 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.

Thus, our responsibility as an appellate court is to determine

whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out

a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow

a fact-finder to render a verdict in favor of the non-moving

party, then summary judgment should be denied.

Korman Commer. Props. v. Furniture.com, LLC, 81 A.3d 97, 99-100

(Pa. Super. 2013), quoting Harris v. NGK N. Am., Inc., 19 A.3d 1053,

1063 (Pa. Super. 2011).

Although Raida raises numerous claims on appeal, the crux of his case

is that the 1951 deed to Kusner’s predecessors in interest does not convey

all of the prior owner’s land “[n]orth of the Karns City to Hooker State

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Road,” but only a portion thereof. The deed language in question reads as

follows:

All that certain parcel or tract of land situate in Fairview Township, Butler County, Pennsylvania, bounded and described

as follows, to-wit:

On the North by lands of Dawson or others; on the East by Robert Stroup; on the South by the Karns City to Hooker State

Road; and on the West by formerly Campbell, now Sherrick, containing 10 acres, more or less, and being a part of a larger

tract of land conveyed to the first parties hereto by deed of Florella A. Wallace, Lucille Hodgson and David M. Hodgson, her

husband, dated July 7, 1950 and recorded in the Recorder’s Office in and for Butler County in Deed Book Vol. 604, page 173,

and being that portion of the larger tract lying north of the Karns City to Hooker State Road.

Deed, 3/19/51 (emphasis added).

The trial court concluded, and we agree, that the 1951 deed

transferred to Kusner’s predecessors in interest all land owned by the

grantors, W.B. Say and his wife, north of the Karns City-Hooker State Road.

The language utilized in the deed is clear and unambiguous.1 Raida’s

contention that the words “that portion of the larger tract” are equivalent in

meaning to “a portion of the larger tract” is, simply, grammatically

untenable.

____________________________________________

1 “All the language of the deed must be given effect and when the language

of the deed is clear and unambiguous the intent of the parties must be gleaned solely from its language.” In re Conveyance of Land Belonging

to Du Bois, 335 A.2d 352 (Pa. 1975).

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Further, Raida’s reliance on the language describing Kusner’s parcel as

“containing 10 acres, more or less” is unavailing. “Evidence of the acreage

of land, especially where, as in this case, the number of acres is followed by

the words ‘more or less’ has little weight as against specific boundaries and

is in its nature an uncertain method of description and often a mere

estimate.” Dawson v. Coulter, 106 A. 187, 188 (Pa. 1919). See also

Hoover v. Jackson, 524 A.2d 1367, 1372 (Pa. Super. 1987), citing id.

(where courses and distances, as well as lines of adjoiner, stated in deed are

sufficiently specific so that they could be located on ground, trial court did

not err in relying upon deed description in preference to recital of acreage).

We have reviewed the record, the trial court opinions, the briefs and

the relevant law and conclude that the two opinions authored by Judge

Horan correctly and thoroughly dispose of the meritless claims raised by

Raida on appeal. Accordingly, we affirm on the basis of Judge Horan’s

opinions and direct the parties to attach copies of those opinions in the event

of further proceedings in this matter.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/2014