IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW

 

RICHARD P. SCHOENER                :

                   Plaintiff                          :

                                                          :

                   vs.                                 :  NO. 2009-01704

                                                          :

GARY KEMBLE and JUDY              :

KEMBLE,                                          :

                   Defendant                     :

 

APPEARANCES:

 

John D. Enck, Esquire          For Plaintiff

 

Philip J. Edwards, Esquire             For Defendants

 

OPINION BY CHARLES, J.,  December 19, 2011

 

Irony has been defined as “the presentation of a contradiction between an action or expression and the context in which it occurs”. The above-referenced case was presented to us within the context of extensive prior litigation between the parties that was filed in 2005 and docketed to Action Number 2005-00431 (said litigation will hereafter be referred to as the “2005 LITIGATION”). The irony of this case is that we cannot allow Defendants to prevail in part because their current position contradicts one that they espoused in the 2005 LITIGATION.  In a very real sense, had Defendants not overreached in the 2005 LITIGATION[1], they would have had a much better opportunity to prevail today. As it is, we are constrained by the totality of information presented to simply declare:  Defendants have not sustained their burden of proof on the  counterclaim; they therefore cannot prevail.

 

I.        THE PARTIES

This is an unfortunate intra-family fight over the former family homestead located at 31 North Sheridan Road in Millcreek Township of Lebanon County. Because the relationship between the parties can be somewhat confusing, we will endeavor to promote clarity by setting forth the following chart that depicts the relationship between the various parties.

Calvin & Bertha      Schoener, Husband and Wife (Mrs. Schoener shall be      denoted as “BERTHA”)

Richard Schoener, Son (Hereinafter “RICHARD”)

Paul Schoener, Son (Hereinafter “PAUL”)

Judy Kemble, Daughter (Hereinafter “JUDY”)

Gary Kemble, Son-in-law (Hereinafter “GARY”)

Nancy Ream, Daughter

Susan Manning, Daughter

Ann Schoener, Daughter-in-law

 

II.       PROCEDURAL HISTORY

On March 30, 2005, JUDY and her husband initiated suit against RICHARD.  The Complaint sought specific performance of an alleged promise by RICHARD to deed the house to JUDY.  RICHARD responded to the Complaint by raising numerous legal and factual defenses.  Among those defenses were arguments based upon the Statute of Limitations and the Statute of Frauds.

After extensive pre-trial maneuvering, the 2005 LITIGATION proceeded to a bench trial on January 17, 2008.  During that trial, both parties described a conversation about 31 North Sheridan Road that was made in 1991. The parties’ version of that conversation was very different.  JUDY sought to enforce her version of the agreement.

On March 10, 2008, we rendered a verdict and authored an opinion in support of that verdict.  We dismissed the Complaint of JUDY and GARY against RICHARD based upon the Statute of Limitations and the Statute of Frauds.  In the process, we did not resolve the question of whether or to what extent a promise was made by RICHARD to JUDY in 1991.  We stated:  “We do not find it necessary to resolve the credibility conflict between the parties with respect to the details of the agreement between JUDY and RICHARD.  Suffice it to say that there was some sort of agreement between the parties that occurred in 1991…” (Slip Opinion at pg. 3, footnote 1).

Following our Opinion and Order of March 2008, GARY and JUDY appealed our decision to the Pennsylvania Superior Court.  The Superior Court stated:

[GARY and JUDY] did not act at that time [when they knew or should have known that they had a right to enforce RICHARD’s alleged promise] and instead waited nine years after Bertha’s death to take the appropriate steps to require Schoener to comply with his obligation. We reiterate that the burden is on the party seeking to invoke the discovery rule to establish its application.  Because the Trial Court’s factual findings regarding the Kembles’ lack of reasonable diligence is supported by competent evidence, we may not disturb it.

 

(Slip Opinion at pg. 9).  Accordingly, our decision based upon the Statute of Limitations was affirmed by the Superior Court.

On July 20, 2009, RICHARD initiated a Complaint in Ejectment against JUDY and GARY.  RICHARD’s Complaint also sought rent in the amount of $600.00 per month. In response, GARY and JUDY filed a counterclaim. The counterclaim sought confirmation of a life estate to the family homestead.  In the alternative, GARY and JUDY sought damages of $20,000.00 for improvements they made to the property during the time they lived therein.

On August 31, 2010, RICHARD filed a Motion for Partial Summary Judgment.  By an Opinion and Order dated March 7, 2011, we denied the Motion for Summary Judgment.  In the concluding portion of our opinion, we stated:

 

Simply stated, we decline to decide the essence of this case via summary judgment. While we question whether the Kembles will be able to produce proof of a life estate sufficient to prevail at trial, we cannot forestall their ability to try.  Accordingly, we will be denying RICHARD’s effort to defeat the Kembles’ life estate argument via a Motion for Summary Judgment.

 

At trial, we will permit the Kembles to pursue their argument that a life estate was created in 1991.  However, we will allow RICHARD to utilize the Kembles’ testimony during the 2005 LITIGATION as impeachment evidence. We will also allow RICHARD to raise and litigate his statute of frauds defense. The only issue that we will foreclose today is RICHARD’s argument based upon the statute of limitations. Otherwise, all other pending issues will abide trial.

 

(Slip Opinion at pgs. 18-19).

Trial in the above-referenced case occurred on September 26, 2011. Following trial, both parties submitted briefs in support of their respective positions.  The questions at issue in the above-referenced case are now before us for disposition.

 

III.      FACTS

Prior to 1991, RICHARD lived with his mother at the 31 North Sheridan Road real estate. By 1991, BERTHA was confined to a wheelchair as a result of a stroke and needed significant hands-on care.  Prior to 1991, RICHARD provided this care with only limited help from other family members.  During this time, BERTHA placed the real estate jointly in her name and RICHARD’s name.

By 1991, the responsibility to provide care for BERTHA became difficult for RICHARD. Therefore, RICHARD approached JUDY to ask for her help.  Both RICHARD and JUDY acknowledge that a conversation occurred in 1991 regarding care for BERTHA and the 31 North Sheridan Road property.  However, there is a stark difference of opinion with respect to the details of this conversation.

During the 2005 LITIGATION, JUDY provided the following testimony:

Q.      Now in terms of the understanding itself, what was your impression or your thoughts of the exact understanding as to the arrangement you had with Mr. Schoener?

 

A.      What were my thoughts I’m not sure.

 

Q.      What was your understanding?

 

A.      My understanding was we were to have the house given to us after my mother passed away.

 

(1/17/08 N.T. 15).  In contrast, RICHARD categorically denied that he ever agreed to transfer 31 North Sheridan Road to either GARY or JUDY (1/17/08 N.T. 86).  RICHARD did acknowledge that he had a conversation with PAUL about JUDY’s status at the family homestead.  RICHARD told PAUL that JUDY “could stay living there” (1/17/08 N.T. 109). He also acknowledged that he never established any sort of time limit or restriction on how long Judy could continue to reside in the North Sheridan Road property (1/17/08 N.T. 119). However, he denied that he ever offered JUDY a life estate in the property (1/17/08 N.T. 121).

The parties’ sister, Nancy Ream (hereafter “NANCY”), also testified during the 2005 LITIGATION.  NANCY testified that she heard RICHARD say that JUDY could live in the house “as long as she was alive” (1/17/08 N.T. 9-10).  An additional sibling, PAUL, also provided testimony during the 2005 LITIGATION.  PAUL stated that RICHARD was willing to allow JUDY to “have the house” (10/11/07 N.T. 10-11).  No legal references such as “deed” or “life estate” were included in PAUL’s testimony.  However, PAUL also described later conversations that he had with his sister and brother relating to a possible sale of the North Sheridan Road property (10/11/07 N.T. 13-15).

During the 2005 LITIGATION, testimony was presented regarding an offer by RICHARD to place JUDY’s name on the deed of the North Sheridan Road property. RICHARD testified that approximately one year after BERTHA died, he asked JUDY to “go on the deed with him” (1/17/08 N.T. 87).  RICHARD testified during the 2005 LITIGATION that JUDY was having marital difficulties and did not want GARY’s name placed on the deed to 31 North Sheridan Road (1/17/08 N.T. 87).  JUDY did not mention this conversation during the 2005 LITIGATION.

During the 2011 trial of the above-referenced case, RICHARD acknowledged that he permitted JUDY to reside in the North Sheridan Road property after BERTHA died. RICHARD admitted that he told JUDY that she could “stay in the property”; he denied that he promised JUDY the right to remain in the property for any specific duration.  He also categorically denied that he made any agreement to convey a legally-enforceable interest in the property to JUDY.

RICHARD testified that between BERTHA’s death in 1996 and 2007, GARY and JUDY resided at the 31 North Sheridan Road property without the need for paying rent.  During this period of time, GARY and JUDY paid all utilities, taxes and insurance with respect to the North Sheridan Road property.  However, a dispute arose regarding property insurance in September of 2007.  Shortly thereafter, RICHARD served an eviction notice upon GARY and JUDY on October 29, 2007. This eviction notice was held in abeyance until a final decision regarding the 2005 LITIGATION was rendered. Since September of 2007, RICHARD has paid all taxes and insurance on the 31 North Sheridan Road property. At no time between 1996 and the present have GARY and JUDY paid any rent to RICHARD.

At trial, neither party directly asked JUDY about the alleged promise of RICHARD to convey a life estate in the 31 North Sheridan Road property.  Therefore, this Court asked JUDY “straight up” about the specific nature of RICHARD’s promise.  JUDY responded that RICHARD told her “if you move in and care for mom, you can have the house if anything happens to mom”.

At the trial of the above-captioned dispute, JUDY acknowledged that RICHARD offered to place her name on the deed following BERTHA’s death.  She also acknowledged that she refused RICHARD’s offer.  When asked about a reason for this, she stated something to the effect that “I didn’t think we should do it because I was not sure how things would work out”.

During both the 2005 trial and the trial of this case, JUDY and GARY testified that they expended money to maintain and include the 31 North Sheridan Road property.  For example, JUDY and GARY testified that they replaced carpeting and flooring, installed a new hot water heater and remodeled the kitchen.

 

IV.     ACTION IN EJECTMENT

RICHARD’s Complaint is styled as an “action in ejectment”.  An action in ejectment is one in which a Plaintiff seeks to regain possession of real estate to which he has a “right of immediate possession”.  Siskos v. Britz, 790 A.2d 1000 (Pa. 2002).  An action of ejectment is the proper procedure for a property owner to recover possession of land that is possessed by someone who has no legal right to it.  Siskos, supra; Borough of Ulysses v. Mesler, 986 A.2d 224 (Pa.Cmwlth. 2009).

As a general proposition, a Plaintiff in an ejectment action must possess actual title to the land. See, e.g. Trustees of Salvation Army v. Lawson, 293 Pa. 459 (1928); Varnsdall v. Bradford Gas Company, 225 Pa. 338 (1909).  When a party establishes possession of fee simple title, that establishes a prima facie right to possession of the property.  See Bushin v. Whiting, 535 A.2d 1078 (Pa.Super. 1987); Krulac v. Commonwealth Pennsylvania Game Commission, 702 A.2d 621 (Pa.Cmwlth. 1997).

In this case, it is undisputed that RICHARD is the sole legal owner of 31 North Sheridan Road.  The deed to the property was marked and admitted as Exhibit 4.  At no time did GARY or JUDY deny RICHARD’s ownership of the 31 North Sheridan Road property.

We conclude that RICHARD has established his burden of proving ownership of the 31 North Sheridan Road property.  Accordingly, we conclude that RICHARD has established a prima facie right to possession of the 31 North Sheridan Road property.  Therefore, unless GARY and JUDY can sustain their burden of establishing a valid defense, RICHARD’s action in ejectment will have to be granted.

 

V.      KEMBLES’ COUNTERCLAIM

GARY and JUDY allege that they are entitled to a life estate or an “irrevocable lifetime license”.  Under either theory, GARY and JUDY argue that RICHARD cannot eject them so long as JUDY remains alive. Essentially, GARY and JUDY claim that they have a right to reside in the 31 North Sheridan Road property for the duration of JUDY’s life.  In response, RICHARD argues that GARY and JUDY have not sustained their burden of proving the existence of a life estate or an irrevocable license. In addition, RICHARD argues that the Statute of Frauds bars the Counterclaim proffered by GARY and JUDY.  On both arguments, we agree with RICHARD.

 

(1)     GARY and JUDY have not proven the existence of an

          enforceable agreement in 1991                                           

 

A life estate is defined by Black’s Law Dictionary as:  “An  estate held only for the duration of a specified person’s life…”  Black’s Law Dictionary, 9^th Ed., definition of life estate at pg. 628.  Generally, a life estate creates a right of exclusive possession to real estate during the conveyee’s life.  See, e.g. Weslowski v. Vonaddio, 37 Pa. D & C 2d 150 (1965): McDonald v. McDonald, 256 Pa. 304 (1917).  In contrast to the legally enforceable ownership right created by a life estate, an exclusive possession licensee possesses “a purely personal privilege to live on the land…but not to exercise exclusive possession and enjoyment…”  Sparrow v. Airport Parking Company of America, 289 A.2d 87 (Pa.Super. 1972) at pg. 91.

In a case like this where a life estate or a possessory license is alleged to have been created during the life of the transferor, the creation of the possessory interest must be accomplished via an agreement supported by consideration.  See, e.g. Dailey’s Chevrolet, Inc. v. Worster Realties, Inc., 458 A.2d 956 (Pa.Super. 1983); Cole v. Elwood Power Company, 216 Pa. 283 (1907).  As with any agreement, proof of the terms must be established with clarity.  See, e.g. Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601 (Pa.Super. 2009).  Moreover, as the Allegheny County Court of Common Pleas has eloquently stated:

Of course, one who claims a right in the land of another arising orally, rather than by legal instrument, properly has a burden of proof that is heavier than normal, and, in this case [involving an alleged personal possession license], the Court has charged Plaintiffs with a burden of proof  by evidence that is clear, strong, and convincing.

 

Sherry v. Harrison, 55 Pa. D & C 2d 230, 236 (1972).[2]

In this case, we have little doubt that some sort of conversation was conducted between JUDY and RICHARD pertaining to the North Sheridan Road property in 1991.  We just do not believe that JUDY has met her burden of establishing that the conversation rose to the level of an agreement that conveyed a life estate or a personal possession license.  We reach this finding for many reasons, including the following:

(1)     No direct evidence exists of such an agreement between JUDY and RICHARD.  From the outset of the 2005 LITIGATION, JUDY has consistently claimed that RICHARD promised her title to the North Sheridan Road property and not a life estate.[3]  Although RICHARD has made statements acknowledging his willingness to allow JUDY to live in the North Sheridan Road property, at no time did RICHARD acknowledge that he promised a life estate or a possessory license that would last for any period of time.  The closest the Kembles have come to establishing the existence of an agreement was the testimony of NANCY.  NANCY testified that she heard RICHARD say that JUDY could live at the North Sheridan Road property until she died.  However, this was a statement made by RICHARD years after the purported 1991 agreement.[4] While NANCY’s testimony is certainly circumstantial evidence that an agreement of some sort existed, it was not direct proof of the existence of a contract.

(2)     The claim of GARY and JUDY in this litigation contradicts the claim that they made in the 2005 LITIGATION.  In the 2005 LITIGATION, GARY and JUDY claimed that RICHARD promised them title to the North Sheridan Road property in 1991.  In this litigation, they claim that RICHARD promised them a life estate during the same conversation.  Both cannot be true.  The fact that GARY and JUDY have made inconsistent claims is a factor that we will weigh against their current claim for relief.

(3)     As a very general observation, people who articulate vague and conclusory claims are less credible than those who recount detailed specific words and events.  In this case, JUDY testified in the 2005 LITIGATION as to her “understanding” that the house was to be turned over to her when BERTHA passed away.  She did not describe a specific point in time when RICHARD communicated specific words at a specific location in a specific context.  During trial in the instant case, we again found it curious that JUDY provided conclusory language rather than a specific recollection of events. In fact, we found the lack of specific testimony to be so curious that we choose to ask the specific question that JUDY had avoided answering.  We asked JUDY to “straight up” tell us exactly what RICHARD promised to her. After a pregnant pause, JUDY proclaimed in a cautious manner: “If you move in and care for mom, you can have the house if anything happens to mom.”  Bluntly stated, we did not believe this testimony.

(4)     Both JUDY and RICHARD acknowledged that at some point following BERTHA’s death, JUDY refused RICHARD’s offer to have her name placed on the deed to the North Sheridan Road Property.  We found JUDY’s refusal of RICHARD’s offer and the reasons given for that refusal to be illuminating.  If in fact JUDY truly believed that she was entitled to a life estate, we doubt that she would have refused an offer that would have legally cemented her entitlement to live in the subject premises. In addition, JUDY used characteristically vague language to explain her decision that did not adequately explain her thought process to us.  Glaring by its omission was any reference by JUDY to her entitlement to a life estate.  Had RICHARD in fact offered a life estate to JUDY, and had JUDY truly believed that her entitlement to a life estate protected her ability to live in the residence for the rest of her life, the life estate issue would have arisen when RICHARD offered to place JUDY’s name on the deed. That it did not – even according to JUDY – is a factor of circumstantial evidence that casts doubt upon the Kembles’ claim for a life estate.

Simply stated, we do not believe that GARY and JUDY have sustained their burden of proving that RICHARD uttered an enforceable promise in 1991.  While RICHARD may have expressed the intention he had at the time to permit JUDY to reside in the 31 North Sheridan Road property, that statement of intention could not and did not rise to the level of an offer that could create an enforceable life estate contract. For this reason alone, we will deny GARY and JUDY’s counterclaim.

 

VI.     STATUTE OF FRAUDS

Pennsylvania’s statute of frauds is found at 33 P.S. § 1.  Having been enacted in 1772, the Statute of Frauds is one of the oldest laws to remain in existence within this Commonwealth.  Stripped to its essence, the Statute of Frauds requires that agreements pertaining to real estate must be set forth in writing.

The purpose of the Statute of Frauds is to “prevent fraud”.  See Burns v. Baumgardner, 449 A.2d 590 (Pa.Super. 1982). Stated differently, the Statute of Frauds is intended to prevent the assertion of verbal understandings – especially those that are vague – in order to prevent injustice from occurring.  Davis v. Hillman, 135 A.2d 254 (Pa. 1926).  The scope and purpose of the statute of frauds was discussed extensively in the case of Empire Properties v. Equireal, Inc., 674 A.2d 297 (Pa.Super. 1996).  There, the Court stated:

The statute of frauds does not void those oral contracts relating to land which fail to comply with the statute’s formal requirements.  It is to be used as a shield and not a sword, as it is designed to prevent frauds, not to encourage them.  Therefore, even though an oral contract for the sale of real estate may not be specifically enforced, it may form the basis for an action to recover damages.

 

Id. at pg. 302.

 

GARY and JUDY rely upon the case of Zlotziever v. Zlotziever, 49 A.2d 779 (Pa. 1946) in support of their position that RICHARD’s alleged verbal statements create a life estate or an irrevocable license.  Zlotziever was a divorce case that involved the enforceability of an oral agreement to transfer real estate between a divorcing husband and wife. Although the agreement was in fact oral, the Pennsylvania Supreme Court upheld the agreement because the husband had admitted under oath that he did in fact make the agreement that his wife had claimed was made.

We do not find that Zlotziever compels the conclusion that GARY and JUDY would have us reach. In Zlotziever, the parties agreed upon the language of the verbal conveyance.  In this case, the parties do not.  In Zlotziever, the language itself evidenced a clear intent to transfer an ownership interest in real estate. In this case, the language described by GARY and JUDY is anything but clear.

This is precisely the type of case that the statute of frauds was enacted to address.  In this case, Plaintiffs ask us to enforce an undocumented and unwitnessed verbal “agreement” that is not at all clear in its terms or scope. Under these circumstances, we hold that enforcement of the Statute of Frauds will more likely prevent fraud than facilitate it. Accordingly, we hold that the Kembles’ alleged verbal agreement with RICHARD is barred by the Statute of Frauds.  For this reason also, we will deny the Kembles’ counterclaim.

 

V.      PARTIES’ CLAIMS FOR DAMAGES

Both sides have asked us to award monetary damages. RICHARD requested an award of rental for the property of $600.00 per month.[5] The Kembles have requested reimbursement for all of the repairs and improvements they made to the North Sheridan Road property during the time they called it home.  After careful consideration of both parties’ arguments, we will be denying both parties’ requests.

As strange as it may seem, both RICHARD and the Kembles have derived benefits as a result of what has occurred since BERTHA’s death in 1996.  GARY and JUDY have used the North Sheridan Road premises as a residence rent-free for fifteen years. The pecuniary benefit this has provided to GARY and JUDY is obvious.  During the same period of time, RICHARD has seen his property appreciate in value.  At a time when RICHARD was living at places within and outside the Commonwealth of Pennsylvania he did not have to worry about security, maintenance and upkeep of the North Sheridan Road property.  In addition, for many years, RICHARD was not even required to pay utility, tax and insurance expenses.

We will not engage in a qualitative analysis of whether RICHARD or the Kembles benefited more from past events.  We will simply conclude that both sides did derive economic and non-economic benefits that render an award of damages from one to the other unwarranted and unjust. Accordingly, we will deny the claims of both sides for an award of monetary damages.

 

VI.     CONCLUSION

With respect to the primary issue that is now before us, we will be entering an Order re-affirming RICHARD’s ownership of 31 North Sheridan Road.  At the same time, we will be rejecting the Kembles’ claim that RICHARD conveyed a life estate/possessory license.  The net result of these two conclusions will be a verdict in favor of RICHARD and against the Kembles with respect to RICHARD’s Complaint in Ejectment.

Up until today’s date, we will not require either side to pay monetary damages to the other.  However, effective January 1, 2012, the Kembles will be required to pay RICHARD $600.00 per month plus pro-rated real estate taxes and pro-rated insurance until such time as the Kembles vacate the 31 North Sheridan Road property.

Because of the unique circumstances of this case, we will not permit RICHARD to immediately enforce our verdict of ejectment. RICHARD must realize that 31 North Sheridan Road has been the Kembles’ home for fifteen years. Transitioning their lives away from North Sheridan Road will be neither, simple, easy nor expeditiously accomplished.  For this reason, we will be affording the Kembles with nine months to vacate the 31 North Sheridan Road premises.[6]  Provided that the Kembles pay rent, utilities, taxes, and insurance as outlined above, they will be permitted to retain possession of the North Sheridan Road property until September 1, 2012.

To protect RICHARD, we will permit RICHARD and/or his representatives to conduct a personal inspection of the 31 North Sheridan Road property and create a video record of its condition and contents.  When the Kembles vacate the premises on or before September of 2012, we expect that the premises will be relinquished in a condition substantially similar to the condition it is in today.

With all of the above being said, we would like to end by reiterating our hope that RICHARD and JUDY will find a way to reconcile their differences. From the commencement of this litigation, we always believed that a fair compromise of this intra-family dispute could be accomplished via a long-term lease arrangement for the Kembles at a rate below fair market value.  We believe such an agreement would be fair to both sides.  Perhaps more important, such an arrangement would honor BERTHA’s memory.

Having rendered the above editorial comments, we will enter an Order consistent with the foregoing.