J-A24004-17

2017 Pa Super 377

IN RE: G.J.K. & SONS, LLC AND SOUTH

OAKVIEW HOMEOWNERS ASSOCIATION

(BOOK 468, PAGE 2088)

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

APPEAL OF: G.J.K. & SONS, LLC

No. 1731 WDA 2016

Appeal from the Order Entered October 6, 2016

In the Court of Common Pleas of Greene County

Civil Division at No(s): 491 AD 2014

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY MOULTON, J.: FILED December 1, 2017

G.J.K. & Sons, LLC (“GJK”) appeals from the October 6, 2016 order of

the Greene County Court of Common Pleas granting Willard Hetrick’s “Motion

to Remove Deed from Record.” While we understand the trial court’s interest

in removing a purportedly fraudulent deed from the records of the Greene

County Recorder of Deeds, we conclude that the court lacked jurisdiction to

take such action. Accordingly, we are constrained to vacate the trial court’s

order and remand for the dismissal of the proceedings. The trial court set forth the factual and procedural history of this matter

as follows:

[GJK is] a developer of ten to fifteen residential building

lots known as “South Oakview” in Franklin Township,

Greene County. On each lot has been built a home. No

formal lot “Plan” was approved by either the Franklin
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Township or the Greene County Planning Commissions.

[GJK] sold lots one at a time until their final tract was the

one serving the access road, and at issue. Because this road

does not meet the required engineering standards, Franklin

Township never “accepted” this “Final Tract” and it has not

been dedicated as a public road. It is paved and suffering

from creeping neglect. . . . Willard Hetrick, a resident of a house built on a South

Oakview lot . . . had a General Warranty Deed prepared,

and on May 12, 2014, recorded it in the Greene County

Office of Recorder of Deeds. On its face, the Deed appears

to transfer ownership of this “Final Tract” roadway from

[GJK] to the “South Oakview Homeowner’s Association

[“Association”)].” However, the [Association] is a compete

fiction. It does not exist.

On June 30, 2014, on behalf of lot owner Willard Hetrick,

an attorney presented a “Motion to Strike Recorded Deed”

to then President Judge William R. Nalitz, who soon retired

without taking any formal action.[1] Later, as a new

President Judge, this Court received a “Letter of Inquiry”

from a second lot owner, Lenora Swiger, regarding the

status of the “Hetrick Petition” of which until then, we were

unaware. We directed the Swiger “Letter of Inquiry” be

docketed to the miscellaneous records of the Prothonotary

as a pro se “Motion” to consider Willard Hetrick’s “Petition[”]

seeking to have the Deed administratively removed from

the docket . . . .

No one disputes that [the Association] does not exist, but

that may not have been obvious to the clerks of the Office

of Recorder of Deeds.

On June 23, 2016, [GJK] submitted a Brief to this Court

arguing that because no action had been initiated by a

Complaint, or Writ of Summons, this Court’s consideration

of the matter was in violation of [the] Pennsylvania Rules of

Civil Procedure, and should be dismissed. . . . ____________________________________________

1 Hetrick’s motion was actually titled, “Motion to Remove Deed from

Record,” which was marked “refused” by Judge Nalitz. See Trial Ct. Dkt. at

1.
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On June 28[], 2016, this Court held an informal hearing

. . . on the record for the purpose of bringing together all

those who may have an interest in the “Swiger Letter,” and

the “Het[]rick Petition.” Given notice were the South

Oakview lot owners, Franklin Township officials, and Greene

County Officials, and [GJK]. This Court heard statements

from several who attended, including Counsel, and we

decided to continue the matter so as to provide all parties

ample time to attempt to mediate a resolution of the

circumstance.

On October 3, 2016, this Court held a Status Conference

with Counsel for [GJK], Franklin Township, and the County

of Greene. Recognizing that no progress had been made,

[GJK] renewed its Motion to Dismiss, which we granted.

On October 6, 2016, by Order, we also directed the

Recorder of Deeds to “strike” the Deed in question from the

recorded instruments docket, recognizing that the Deed

should never have been allowed to be recorded, in that it

failed to meet statutory requirements.

Opinion Pursuant to 1925, 1/12/17, at 2-3 (unpaginated) (“1925(a) Op.”).

In his Pennsylvania Rule of Appellate Procedure 1925(a) opinion,

President Judge Farley Toothman stated that he granted GJK’s motion to

dismiss because “a civil action must be commenced by the filing of a Praecipe

for a Writ of Summons, or a Complaint, and because neither was filed,” the

trial court “erred in allowing the dispute to proceed.” Id. at 4. Judge

Toothman nevertheless determined that, as the president judge, he was

authorized to strike the defective deed due to his “obligation, and privilege, to

promote confidence in recorded records.” Id. at 6. On November 7, 2016,

GJK timely appealed to this Court.

GJK raises the following issues on appeal:
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1. Whether an action can be commenced in Pennsylvania by

filing a “Motion to Remove Deed” as opposed to filing a

praecipe for a writ of summons, a complaint, or an

agreement for an amicable action?

2. Whether findings of fact and/or conclusions of law in

proceedings in an action commenced by means other

than the filing of a praecipe for a writ of summons, a

complaint, or an agreement for an amicable action are

legally valid?

3. Whether the Honorable Farley Toothman, President

Judge of Greene County, exceeded his authority in

striking the Deed in order to “maintain the integrity of

the docket of the Recorder of Deeds” of Greene County

in the absence of a properly commenced action?

4. Whether the trial court reached factual findings and legal

conclusions in its “Opinion Pursuant to [Rule] 1925” that

deprived [GJK] of its right to due process?

GJK’s Br. at 5-6 (trial court answers omitted).

GJK first asserts that because this action was not properly commenced

under the Pennsylvania Rules of Civil Procedure, the trial court lacked

jurisdiction to take any action in the matter. We agree.

Pennsylvania Rule of Civil Procedure 1007 provides that “[a]n action

may be commenced by filing with the prothonotary (1) a praecipe for a writ

of summons, or (2) a complaint.” Pa.R.C.P. 1007; see also Pa.R.C.P. 1063

(stating that action to quiet title shall be commenced by filing of complaint

with prothonotary);

2 Pa.R.C.P. 1061(b)(2), (3) (providing that quiet title

____________________________________________

2 Rule 1063 was amended on June 27, 2017, and became effective on

October 1, 2017. The new rule permits a quiet title action to be commenced

only by complaint and no longer allows such an action to be commenced by

agreement for an amicable action. See Pa.R.C.P. 1063 Explanatory Cmt.
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action may be brought to determine validity of “deed affecting any right, lien,

title or interest in land” or to “compel an adverse party to . . . cancel . . . any

deed”).Here, Hetrick commenced this action by filing with the trial court a

“Motion to Remove Deed from Record.”3 As our Supreme Court has

recognized, however, “[n]owhere do the rules [of civil procedure] provide for

commencing an action by a petition.” Hartmann v. Peterson, 265 A.2d 127,

128 (Pa. 1970). “With no complaint, summons or amicable agreement to

bring [an] action within the power to act of the court below, [the court] has

no power to make any order whatsoever, including an order allowing the filing

of a complaint nunc pro tunc.” Id.; see also In re Casale, 517 A.2d 1260,

1263 (Pa. 1986) (“[A]n action brought by petition and rule, neither authorized

by statute nor auxiliary to jurisdiction already obtained and not designed to

correct the court’s own records, is a nullity and confers no jurisdiction on the

court.”) (footnote omitted); Wm. Garlick & Sons, Inc. v. Lambert, 287

A.2d 143, 144 (Pa. 1972) (stating that “a petition is only permitted where it

is ancillary to an already pending action”). Here, the trial court dismissed the

action as not properly commenced, but then ordered that the deed be stricken

despite the absence of a properly commenced action. Because the trial court

lacked jurisdiction, we conclude that its order was a nullity. Accord In re

____________________________________________

3 Notably, Hetrick filed this motion not with the prothonotary, but with

then-President Judge Nalitz, who correctly refused the motion as procedurally

improper. The prothonotary docketed both the motion and the refusal order

on June 30, 2014.
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Corr. of Official Records with Civ. Action, 404 A.2d 741, 742-43

(Pa.Cmwlth. 1979) (en banc) (reversing trial court order directing recorder of

deeds to remove oil and gas leases from public records, where trial court

lacked jurisdiction because suit was improperly commenced by petition and

rule).

In his Rule 1925(a) opinion, Judge Toothman contended that despite

the lack of a properly commenced civil action, he was authorized to strike the

deed from the record under section 325(e) of the Judicial Code, 42 Pa.C.S.

§ 325(e). We disagree.

Section 325(e) provides:

(e) Powers of the president judge.—Except as

otherwise provided or prescribed by this title, by general

rule or by order of the governing authority, the president

judge of a court shall:

(1) Be the executive and administrative head of the

court, supervise the judicial business of the court,

promulgate all administrative rules and regulations, make

all judicial assignments, and assign and reassign among the

personnel of the court available chambers and all physical

facilities.

(2) Exercise the powers of the court under section

2301(a)(2) (relating to appointment of personnel).

42 Pa.C.S. § 325(e). The plain language of section 325(e) authorizes the

president judge to regulate and oversee the business and operation of the

common pleas court and court personnel. It does not mention non-judicial

county offices such as the recorder of deeds. See 1 Pa.C.S. § 1921(b) (“When

the words of a statute are clear and free from all ambiguity, the letter of it is
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not to be disregarded under the pretext of pursuing its spirit.”). Contrary to

Judge Toothman’s conclusion, nothing in the language of section 325(e)

authorizes the president judge to ensure the accuracy of instruments recorded

with the recorder of deeds absent a properly commenced legal action. We recognize a trial court has the inherent power to correct mistakes in

its own records. See Davis v. Cmwlth. Trust Co., 7 A.2d 3, 5 (Pa. 1939).

However, documents recorded with the recorder of deeds are distinct from

judicial records filed with the prothonotary. See Delco Ice Mfg. Co. v. Frick

Co., 178 A. 135, 137 (Pa. 1935) (“Judicial records have been defined as those

associated with the progress of litigated cases. . . . [W]e have distinguished

between a judicial record and a record made pursuant to a statute in the office

of the recorder of deeds for the purpose of giving constructive notice.”); Corr. of Official Records, 404 A.2d at 743 (recognizing that although trial court

has inherent ability to correct its own records, that power does not extend to

instruments recorded with recorder of deeds). Accordingly, we conclude that

the trial court lacked authority to strike the purportedly defective deed from

the record.4

____________________________________________

4 The Greene County Planning Commission (“Commission”), a

participant in both the proceedings below and this appeal, raised in its brief

some of the concerns that undoubtedly led President Judge Toothman to take

the action he did:

[I]t is now a foregone conclusion that the Deed in question

is fraudulent, and the conveyance of this land which makes

up the development’s road system should not be reinstated
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Order vacated. Case remanded for dismissal of the proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2017

____________________________________________ and further mislead any party who may rely on it. Moreover,

once a Deed is filed, the public is entitled to rely upon the

accuracy of that Deed. Here, where the parties knowingly

and willfully prepared and filed a fraudulent Deed, the

purpose of the recording statutes is defeated. Not only that,

the public’s confidence in the accuracy of the Recorder of

Deed’s office is undermined.

. . . The Trial Court’s decision to strike the fraudulent

Deed from [the] record . . . protects any subsequent

purchasers of this land who, if the Deed is restored to the

Recorder of Deeds, will in essence attempt to purchase land

from an entity that does not exist. Additionally, and more

to the point, a litigant will find it difficult if not impossible to

impose liability on a fictional association for the

undeveloped road within this development.

Commission’s Br. at 11.

We make no determination concerning the accuracy of these

representations, largely because the proceedings that might support the

factual claims were a nullity. Nevertheless, we note that GJK does not contend

that an interested homeowner, or indeed a county or municipal entity, could

not file a proper action giving the trial court jurisdiction to adjudicate the

legitimacy of the deed. Nor do we express any view as to whether the Greene

County Recorder of Deeds could take appropriate corrective action in the

absence of litigation.