J-S38019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KENNETH G. KRASINSKY AND RONALD 

G. KRASINSKY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

IRENE CHURA

Appellee No. 2207 MDA 2014

Appeal from the Judgment Entered November 25, 2014

In the Court of Common Pleas of Schuylkill County

Civil Division at No: S-2574-2011

BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2015

Appellants, Kenneth G. Krasinsky and Ronald G. Krasinsky, appeal 

from the November 25, 2014 judgment entered in favor of Appellee Irene 

Chura. We affirm. 

On September 2, 1999 Appellants purchased real property from 

Appellee and her late husband, William J. Chura. According to the special 

warranty deed (“the 1999 Deed”) that is the subject of this litigation, 

Appellants received 111.37 acres of real property (“the Property”) located in 

North Union Township, Schuylkill County, Pennsylvania. The purchase price 

was $120,000.00. Shortly after this transaction Appellants’ neighbors, 

Angelo J. Tolotti, Jr. and Nancy M. Tolotti, posted “no trespassing” signs on a 

portion of the Property. On October 2, 2010, Appellants filed an ejectment 
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action against the Tolottis (the “Tolotti Action”). The Tolotti Action 

proceeded to a bench trial at which Appellants and the Tolottis presented 

competing claims to ownership of a 42.47-acre portion of the Property. On 

January 26, 2011, the trial court entered judgment in favor of the Tolottis. 

Thus, Appellants acquired only 68.9 acres of property under the 1999 Deed. 

Appellants filed this action against Appellee on December 6, 2011 

asserting causes of action for breach of contract, misrepresentation, and 

fraud. Appellants sought to recoup the value of the additional 42.47 acres 

they believed they purchased from Appellee and her late husband in 1999 as 

well as attorneys’ fees. Appellee filed an answer and new matter on January 

31, 2012. Appellants filed a reply to the new matter on February 21, 2012. 

In a subsequent stipulation of counsel, dated March 12, 2012, the parties 

stipulated that Appellee’s answer and new matter would include the 

affirmative defense of statute of limitations.1 

Appellants filed a motion for summary judgment on June 10, 2013. 

Appellee answered the motion on July 3, 2013, and the trial court denied 

Appellants’ motion on August 5, 2013. Appellee filed a motion for summary 

judgment on December 2, 2013, asserting, in part, that the statute of 

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1

 In light of our analysis in the main text, we need not address Appellee’s 

argument under the statutes of limitations applicable to contract and tort 

actions. The deed at issue in this case is a written instrument filed under 

seal and therefore subject to the twenty-year limitations period set forth in 

42 Pa.C.S.A. § 5529(b); see Meadow Run/Mountain Lake Park Ass’n v. 

Bantell, 985 A.2d 989, 992 (Pa. Cmwlth. 2009). 
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limitations barred Appellants’ causes of action. Appellants answered the 

motion on December 27, 2013, and the trial court denied the motion on 

March 17, 2014. The parties proceeded to a bench trial on October 1, 2014, 

and on October 28, 2014, the trial court returned a verdict and entered 

judgment in favor of Appellee. Appellants filed a post-trial motion on 

November 7, 2014 requesting the trial court to enter a judgment in their 

favor or order a new trial.2 Appellee answered the post-trial motion on 

November 20, 2014. The trial court denied the post-trial motion on 

November 25, 2014. This timely appeal followed. 

The heart of this dispute, according to Appellants, is Appellee’s failure 

to deliver the 111.37 acres described in the 1999 deed. The Chura family, 

acquired the Property pursuant to a deed recorded in 1968 (“the 1968 

Deed”). The 1968 Deed described the property as containing 80.37 acres.3 

The grantor on the 1968 Deed, Garth W. Felter, filed an affidavit (“the Felter 

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2

 Rule 227.1 of the Rules of Civil Procedure permits litigants to file post-trial 

motions within ten days of the entry of verdict, as Appellants did here. 

Pa.R.C.P. 227.1(c)(1). The trial court’s October 28, 2014 order, 

simultaneously entering a verdict and judgment, is procedurally unusual. 

Since Appellants filed a timely post-trial motion, we will treat the October 

28, 2014 order as the verdict and the November 25, 2014 order as the 

appealable final order, as it rendered the trial court’s premature entry of 

judgment final and ripe for appeal. 

3

 For reasons not relevant to this appeal, the trial court in the Tolotti Action 

found that the 80.37 acres specified in the 1968 deed was inaccurate. As 

noted in the main text, the result in the Tolotti Action left Appellants with 

only 68.9 acres, not the 80.37 acres specified in the 1968 deed and several 

subsequent deeds. 
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affidavit”) in this action indicating that the Chura family requested a 

corrective deed reflecting a boundary line that would increase the size of the 

Property from 80.37 to 111.37 acres. Felter refused to execute a corrective 

deed, believing the boundary described in the 1968 Deed was correct. In 

response to Appellants’ requests for admission, Appellee admitted the facts 

averred in the Felter affidavit. 

William J. Chura initially acquired a partial interest in the Property by 

the execution of a deed in 1976 (“the 1976 Deed”). According to the 1976 

Deed, the Property consisted of 80.37 acres. In 1989 Appellee, Willam J. 

Chura, and two other members of the Chura family executed a corrective 

deed (“the Corrective Deed”), based upon a survey prepared by Stanley J. 

Gorski,4(the Gorski Survey). According to the Gorski Survey, the Property 

consisted of 111.37 acres, more or less. Appellee’s late husband provided 

the Gorski survey to Appellants during the negotiation of the 1999 real 

estate transaction. The 1999 Deed references all of the above-described 

deeds and several others. 

Based on these facts, Appellants alleged Appellee breached a contract 

to sell 111.37 acres of real estate for $120,000.00. Appellants also alleged 

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4

 On February 9, 2012, Appellee filed a complaint joining Gorski as an 

additional defendant. On September 19, 2012, Gorski filed a motion for 

summary judgment and neither party responded. The trial court granted the 

motion on December 12, 2012. Appellee did not pursue the matter any 

further.
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that Appellee and William J. Chura committed fraud by purportedly selling 

property they knew they did not own. Finally, Appellants alleged a cause of 

action for misrepresentation based upon representations from Appellee and 

William J. Chura that the Property consisted of 111.37 acres. 

We review an order denying a motion for judgment notwithstanding 

the verdict and/or new trial as follows: 

A JNOV can be entered upon two bases: (1) where the 

movant is entitled to judgment as a matter of law; and/or, (2) 

the evidence was such that no two reasonable minds could 

disagree that the verdict should have been rendered for the 

movant. When reviewing a trial court’s denial of a motion for 

JNOV, we must consider all of the evidence admitted to decide if 

there was sufficient competent evidence to sustain the verdict. . 

. . Concerning any questions of law, our scope of review is 

plenary. Concerning questions of credibility and weight accorded 

the evidence at trial, we will not substitute our judgment for that 

of the finder of fact. . . . A JNOV should be entered only in a 

clear case.

Our review of the trial court’s denial of a new trial is 

limited to determining whether the trial court acted capriciously, 

abused its discretion, or committed an error of law that 

controlled the outcome of the case. In making this 

determination, we must consider whether, viewing the evidence 

in the light most favorable to the verdict winner, a new trial 

would produce a different verdict. Consequently, if there is any 

support in the record for the trial court’s decision to deny a new 

trial, that decision must be affirmed.

J.W.S. Delavau, Inc. v. E. Am. Transp. & Warehousing, Inc., 810 A.2d 

672, 679-80 (Pa. Super. 2002), appeal denied, 827 A.2d 430 (Pa. 2003). 

The trial court held that Appellants’ breach of contract, fraud and 

misrepresentation causes of action merge into the deed. The trial court 

cited Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650 (Pa. Super. 
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1999), in which this Court explained: “The doctrine of merger ‘holds that all 

warranties and representations in connection with a sale or other transaction 

made prior to or contemporaneous with a deed are merged into the deed 

and that unless therein expressly provided for, they are forever lost.’” Id. at 

661 n.8 (quoting Elderkin v. Gaster, 288 A.2d 771, 774 n.11 (Pa. 1972)). 

The trial court found, based on the law of fact pleading in Pennsylvania, that 

Appellants’ complaint sufficiently set forth a cause of action for breach of the 

special warranty in the 1999 deed. Trial Court Opinion, 3/17/14, at 4-5 

(citing Pa.R.C.P. 1019(a)); Grossman v. Barke, 868 A.2d 561, 568-69 (Pa. 

Super. 2005), appeal denied, 889 A.2d 89 (Pa. 2005)). Appellants do not 

develop any argument to dispute the trial court’s application of this merger 

doctrine. 

The covenant of warranty is one of six covenants of title that 

traditionally accompany a transfer of real estate.5 Juniata Valley Bank, 

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5

 The Juniata Valley Bank Court described the six covenants as follows: 

The covenant of seisin is the grantor’s promise that he 

owns the property interest he purports to convey to the grantee. 

The covenant of the right to convey is the grantor’s promise that 

he has the power and authority to transfer the interest to the 

grantee. The covenant against encumbrances protects against 

the existence of physical or title encumbrances other than those 

acknowledged in the deed. Physical encumbrances include 

encroachments or easements. Title encumbrances include 

mortgages, leases, liens and unpaid property taxes. By the 

covenant of warranty, the grantor promises to compensate the 

grantee for any monetary losses occasioned by the grantor’s 

(Footnote Continued Next Page)
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736 A.2d at 661 n.7. The covenant of warranty has three variations, a 

general warranty, a special warranty and a quitclaim deed. Id. The 1999 

Deed is special warranty deed. As such, it requires the grantor to “warrant 

and defend the [transferred] property, and every part thereof, unto the said 

grantee [...] against the lawful claims of the grantor or grantors, and all 

persons claiming by, through or under him or them.” 21 P.S. § 6 

(emphasis added).6 In other words, the grantor of a special warranty deed 

“agrees to defend the title to the property against any adverse claimant with 

a superior interest in the land claiming through the grantor.” Leh, 331 A.2d 

at 762. This occurs, for example, if the grantee can show the grantor 

(Footnote Continued) _______________________

failure to convey the title promised in the deed. There are three 

variations to the covenant of warranty, and property may be 

conveyed through a special warranty, general warranty or 

quitclaim deed. The covenant of quiet enjoyment is the 

grantor’s promise that the grantee’s possession will not be 

disturbed by any other claimant with a superior lawful title. 

Finally, the covenant of further assurances requires the seller to 

take affirmative steps to cure any defects in the grantor’s title. 

Juniata Valley Bank, 736 A.2d at 661 n.7 (emphasis added). We confine 

our analysis to the covenant of warranty, as Appellants have not raised any 

issues under the other five covenants of title. 

6

 A general warranty, in contrast, requires the grantor to defend the grantee 

against the “lawful claims and demands of all persons whomsoever.” 21 

P.S. § 5. In a quitclaim deed, the grantor simply releases any right or 

interest he has in the subject property. 21 P.S. § 7; Greek Catholic 

Congregation of Borough of Olyphant v. Plummer, 12 A.2d 435, 437 

(Pa. 1940) (“Quit-claim deeds, long known to the law, are used when a 

party wishes to sell or otherwise convey an interest he may think he has in 

land but does not wish to warrant his title.”).
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“caused or allowed a lien or encumbrance to burden the land at the time of 

transfer.” Id. 

Thus, Appellee offered, and Appellants accepted, a deed whereby 

Appellee and William J. Chura, as grantors, promised to defend Appellees 

only against the lawful claims of persons claiming through Appellee and 

William J. Chura. The 1999 Deed expressly referenced prior deeds in the 

Chura’s chain of title, including the 1989 Corrective Deed, the 1976 Deed 

and the 1968 Deed. 

The Tolotti Action involved competing claims of title to a portion of the 

Property. As set forth above, Appellee relied on the Gorski Survey in 

executing the 1989 Corrective Deed, through which Appellee, her late 

husband and several other members of the Chura family claimed title to 

111.37 acres rather than the 80.37 acres identified in prior deeds in the 

Chura family’s chain of title. The Tolottis relied on their own chain of title. 

The Tolottis ultimately proved the Gorski Survey was inaccurate. The 

Tolottis therefore did not assert a superior claim of title “by and through” 

Appellee. Rather, the Tolottis claim to the disputed portion of the Property 

was independent of, and in direct contradiction to, Appellee’s claim under 

the Corrective Deed. Under these circumstances, the covenant of special 

warranty was inapplicable because the Tolottis did not assert a claim by and 

through Appellee and her late husband as grantors. 
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Given the foregoing analysis, the trial court did not err in refusing to 

enter judgment in Appellants’ favor, nor did the court err in refusing to grant 

a new trial. Appellants’ arguments to the contrary simply do not recognize 

the effect of the covenant of special warranty set forth in the 1999 Deed. 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015