J. A24041/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANDREW JOHN KELLY :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

REPSOL OIL & GAS USA, LLC, 

AS SUCC. BY CONVERSION TO 

TALISMAN ENERGY USA, INC. 

AND NICHOLAS HALKIAS

:

:

:

:

:

v. :

:

PAUL A. KELLY, INDIVIDUALLY AND AS 

AGENT FOR ANDREW JOHN KELLY

:

: No. 37 MDA 2018

:

APPEAL OF: ANDREW JOHN KELLY :

Appeal from the Judgment Entered February 7, 2017,

in the Court of Common Pleas of Susquehanna County

Civil Division at No. 2013-584

ANDREW JOHN KELLY :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

REPSOL OIL & GAS USA, LLC, 

AS SUCC. BY CONVERSION TO 

TALISMAN ENERGY USA, INC. 

AND NICHOLAS HALKIAS

:

:

:

:

:

v. :

:

PAUL A. KELLY, INDIVIDUALLY AND AS 

AGENT FOR ANDREW JOHN KELLY

:

: No. 38 MDA 2018

:

APPEAL OF: PAUL A. KELLY :

Appeal from the Judgment Entered February 7, 2017,

In the Court of Common Pleas of Susquehanna County

Civil Division at No. 2013-584 CP
J. A24041/18

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BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 1, 2019

Andrew John Kelly and Paul A. Kelly,

1

individually and as agent for

Andrew John Kelly (collectively, “appellants”), appeal the February 7, 2018

judgment2that resulted from the June 12, 2017 order of the Court of Common 

Pleas of Susquehanna County that (1) entered judgment in favor of Paul Kelly, 

individually and as agent for Andrew Kelly, and Andrew Kelly against 

Nicholas Halkias with respect to Count I of the Interpleader Complaint, Void

Assignment – Failure of Consideration; (2) entered judgment in favor of 

Nicholas Halkias and against appellants with respect to Count II – Void 

Assignment – Violation of Fiduciary Duty/Fraud/Self-Dealing, Count III – Void 

Assignment – Improper Notarization, Count IV – Void Assignment –

Vagueness/Assignment Personal to Grantors, and Count V – Misappropriation 

of Royalties; and (3) with respect to Andrew Kelly’s complaint against 

Repsol Oil & Gas USA, LLC (“Repsol”), as successor by conversion to Talisman 

Energy USA, Inc. (“Talisman”), judgment was entered in favor of Repsol and 

 

1 Paul Kelly is the father of Andrew Kelly.

2 The captions originally stated that appellants appealed from an order entered 

December 6, 2017. However, in the December 6, 2017 order, the trial court 

denied post-trial motions. Appellants are actually appealing the February 7, 

2018 judgment. The captions have been amended accordingly.
J. A24041/18

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against Andrew Kelly as to Count I, Conversion, and Count II, Defamation of 

Title. After careful review, we affirm.

The trial court also declared void the assignment executed on June 24, 

2007, by James P. Halkias and Kerry Halkias, recorded at Instrument 

No. 200817634 in the Office of the Register of Wills and Recorder of Deeds for 

Susquehanna County; and the Recorder of Deeds was ordered to strike the 

document from the records of Susquehanna County. Similarly, the 

assignment executed on June 24, 2007 by James Halkias and Kerry Halkias, 

recorded at Instrument Number 201309151 in the Office of the Register of 

Wills and the Recorder of Deeds for Susquehanna County was declared void, 

and the Recorder of Deeds for Susquehanna County was ordered to strike the 

document from the records of Susquehanna County. 

Andrew Kelly was ordered to disgorge any and all royalty payments, 

made pursuant to either assignment to Nicholas Halkias. Repsol was ordered 

to furnish any and all royalty payments held in suspense pursuant to this 

matter to Nicholas Halkias, to cease any and all royalty payments made to 

Andrew Kelly under either assignment, and to furnish all future royalty 

payments to Nicholas Halkias. The trial court also scheduled a hearing for 

consideration of Respol’s petition for counsel fees and costs.3

 

3 The issue of counsel fees is not before this court in either of these appeals. 

However, appellants appealed the trial court’s award of counsel fees at 

Nos. 420 and 421 MDA 2018.
J. A24041/18

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The facts and procedural history, as gleaned from the extensive trial 

court opinion, are as follows: On May 8, 2013, Andrew Kelly filed a complaint 

against Talisman and sought royalty payments for oil and natural gas 

extracted from a parcel of real estate in Susquehanna County. According to 

the complaint, James Halkias purchased real estate (“Property”) in 

Susquehanna County in early 2006. On June 24, 2007, James Halkias and his 

wife, Kerry, executed an oil and gas lease with Fortuna Energy Company 

(“Fortuna”) where Fortuna would pay to extract oil and gas from the property. 

(Trial court opinion, 6/19/17 at 2.)

According to the complaint, that same day, James Halkias allegedly 

executed an assignment that would give Andrew Kelly a 15% share of any oil 

and gas royalties from the property. The typed text of the assignment stated:

The undersigned, Grantors, do hereby assign 

TO 

Andrew John Kelly, Grantee, his heirs or assigns

Fifteen percent of any accrued royalties which may 

become due from any energy company as a result of 

oil or gas production concerning our lands.

For example: Royalty = $1,000 Kelly receives = $150

Witness our hands and seals this day of May, 2007 

intending to be legally bound.

Id. at 2-3. The assignment contained handwritten portions that included the 

names “James P. Halkias & Kerry Halkias (w)” written above the identification 

of the grantors. To the right side of the page is the notation: 

“Halkias 431.24.” (Id. at 2 n.2.) At some point, either Fortuna or its 
J. A24041/18

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successor, Talisman, voided the lease and it is not the subject of this litigation. 

(Id. at 3.)

On August 7, 2008, James Halkias entered into a second oil and gas 

lease with Alta Resources, LLC (“Alta”). At some point, Alta came under the 

control of Talisman. On September 22, 2010, James Halkias executed a fee 

simple warranty deed and deeded the property to his father, Nicholas Halkias. 

(Id.)

Late in 2012, Talisman paid 15% of royalties to Andrew Kelly in 

accordance with the assignment. In February 2013, Talisman received notice 

that the Halkias family questioned the validity of the assignment. Talisman 

then placed all future royalty payments in suspense. Because of this action, 

Andrew Kelly filed the complaint on May 8, 2013, and pled causes of action 

for conversion and defamation of title. (Id.)

On August 12, 2013, Talisman filed a petition for interpleader and 

asserted that it did not intend to keep the royalty payments but placed the 

funds in suspense until the trial court determined who was entitled to the 

royalties. On October 28, 2013, the trial court granted Talisman’s interpleader 

complaint and ordered Nicholas Halkias to file a complaint. On December 23, 

2013, Nicholas Halkias filed an interpleader complaint against appellants. In 

the interpleader complaint, Nicholas Halkias alleged that the assignment was 

invalid for various reasons, including contract law, tort, and misappropriation 

of royalties. Nicholas Halkias asked the trial court to strike the assignment 
J. A24041/18

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from the Office of the Register of Wills and the Recorder of Deeds of 

Susquehanna County and that royalties that had been paid to Andrew Kelly

be paid to Nicholas Halkias. Each appellant filed answers with new matter. 

(Id. at 3-4.)

The trial court conducted a non-jury trial on January 18-19, 2017. 

Andrew Kelly testified that he had seen the assignment before and that

handwriting on the document, which read “Halkias 431.24,” referred to the 

Property. Andrew Kelly further testified that even though he was listed as the 

grantee on the assignment and James Halkias was the grantor, Andrew Kelly 

had never met either Halkias. Andrew Kelly recognized the handwriting on 

the assignment as that of his father, Paul Kelly. Andrew Kelly also testified 

that he was to receive the royalties for estate planning purposes and the

payments were Paul Kelly’s fees for legal work for James Halkias. (Id. at 8-

9.)

Paul Kelly testified that James Halkias hired him, when Paul Kelly was a

practicing attorney,

4

to quiet title on two pieces of property that James Halkias

and a friend had purchased at a tax sale. Paul Kelly also testified that

James Halkias asked Paul Kelly to assist James Halkias in getting an oil and

gas lease for the property and that the assignment was Paul Kelly’s fee for 

doing the work on the oil and gas lease. Paul Kelly testified that he drafted 

the assignment at the direction of James Halkias even though Paul Kelly had 

 

4 Paul Kelly was later suspended from the practice of law.
J. A24041/18

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no documentary evidence of the instructions. Paul Kelly also testified that the 

phrase “our lands” in the assignment referred to the Property. Paul Kelly

testified that James Halkias was aware that the fee was 15% of any royalties 

for securing an oil and gas lease and that James Halkias agreed to it. 

Paul Kelly further testified that the handwriting on the assignment was already 

present at the time James Halkias executed it. (Id. at 9-12.) 

James Halkias testified that he and a friend purchased the property at a

tax sale in 2005, but that his father, Nicholas Halkias, actually paid the 

purchase price. James Halkias hired Paul Kelly to quiet title to the Property 

and paid him approximately $5,000. While the quiet title action was pending,

Paul Kelly telephoned James Halkias on July 24, 2007. When they met, 

Paul Kelly presented James Halkias with an oil and gas lease and the

assignment in a packet of documents. According, to James Halkias, Paul Kelly

told him that if James Halkias signed the documents, James Halkias would

receive $43,000 from an energy company even though the energy companies 

never drilled when these types of leases were signed. James Halkias testified 

that the assignment did not have any handwriting on it at the time 

James Halkias signed it. James Halkias believed that Paul Kelly was 

representing him in the quiet title action and not concerning an oil and gas

lease. James Halkias never received the promised money from the energy 

company. At some point, James Halkias received copies of the documents 

used to secure the oil and gas lease with Fortuna from Paul Kelly that were 
J. A24041/18

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marked void. Included in the packet was a copy of the assignment marked 

void. On August 7, 2008, James Halkias entered into an oil and gas lease with 

Alta. James Halkias later deeded the property to his father for $50,000. (Id.

at 13-15.)

At the close of the trial, appellants moved for compulsory non-suit. The 

trial court denied the motion. Following trial, the trial court issued the order 

from which these appeals arise. Appellants moved for post-trial relief. The

trial court denied the motion for post-trial relief. 

On January 5, 2018, appellants each appealed. By order filed 

January 19, 2018, the trial court directed Paul Kelly to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The same 

date, the trial court also directed Andrew Kelly to file a concise statement of

errors complained of on appeal. Each appellant complied with the order on 

February 2, 2018. On February 26, 2018, the trial court issued a statement 

pursuant to Pa.R.A.P. 1925(a) in which it stated that it had addressed the 

issues in the June 19, 2017 opinion and order. By per curiam order dated 

January 26, 2018, this court consolidated the appeals sua sponte.

Appellants5raise the following issues6for this court’s review:

[1.] Whether it was reversible error for the trial court 

to sua sponte raise the application of the 

 

5 Although each appellant filed a separate brief, the issues contained in each 

respective brief are identical.

6 Appellants have not numbered the issues in the briefs. However, this court 

will do so.
J. A24041/18

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discovery rule and fraudulent concealment 

doctrine when those defenses/doctrines were 

not properly plead [sic] in any of the pleadings 

of Nicholas Halkias?

[2.] Whether it was reversible error for the trial court 

to apply the discovery rule and fraudulent

concealment doctrines to invalidate the Halkias 

to Kelly Assignment when those doctrines were 

not applicable to the facts of this case?

[3.] Whether it was reversible error for the trial court 

to enter judgment in favor of Nicholas Halkias

on all counts except for Count 1 of his 

Interpleader Complaint when [appellants]

properly raised the defense of the statute of 

limitations in their responsive pleadings and the 

applicable statutes of limitations bar all of the 

claims of [Nicholas] Halkias?

[4.] Whether it was reversible error for the trial court 

to enter judgment in favor of [Nicholas] Halkias 

when [appellants] properly raised the defense 

that in Pennsylvania fraud is a personal action 

and therefore all of Nicholas Halkias’s fraud 

based claims are barred as a matter of law?

[5.] Whether it was reversible error for the trial court 

to enter judgment in favor of [Nicholas] Halkias 

when [Nicholas] Halkias lacked standing and the 

capacity to sue to bring claims that challenged 

the enforceability of the Halkias to Kelly 

Assignment?

[6.] Whether it was reversible error for the trial court 

to enter judgment in favor of [Nicholas] Halkias 

and determine that the assignment from 

James Halkias to Andrew John Kelly, which was 

the subject of the lawsuit below, when 

James Halkias never attempted to timely 

revoke/rescind the assignment as is required 

pursuant to applicable Pennsylvania law?
J. A24041/18

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[7.] Whether it was reversible error [for] the trial 

court to enter judgment in favor of 

Nicholas Halkias when the Halkias to Kelly 

[A]ssignment was sufficiently specific and met 

all legal requirements to be enforceable and to 

be binding upon [James] Halkias, his heirs, 

successors, and assigns?

[8.] Whether it was reversible error for the trial court 

to determine that improper notarization was a 

basis to invalidate the Halkias to Kelly 

[A]ssignment when the notarization of the 

assignment was not required for the assignment 

to be valid and enforceable and 

[Nicholas] Halkias did not establish that any 

improper notarization had occurred and did not 

have standing to challenge the purported 

improper notarization?

[9.] Whether it was reversible error for the trial court 

to enter judgment in favor of [Nicholas] Halkias 

when [Nicholas] Halkias failed to state any claim 

upon which relief could be granted and 

[appellants] proved their cases as a matter of 

law such that they were entitled to the relief 

requested by them?

[10.] Whether it was reversible error for the trial court 

to deny [appellants’] Joint Motion for Post Trial 

Relief when for the reasons stated in the Motion, 

all of which are incorporated herein by 

reference, [appellants] were entitled to the 

relief requested in the Motion as a matter of 

law?

Andrew Kelly’s brief at 7-8.

This court must apply the following standard of review:

Our appellate role in cases arising from non-jury trial 

verdicts is to determine whether the findings of the 

trial court are supported by competent evidence and 

whether the trial court committed error in any 

application of the law. The findings of the trial judge 
J. A24041/18

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in a non-jury case must be given the same weight and 

effect on appeal as the verdict of a jury, and the 

findings will not be disturbed on appeal unless 

predicated upon errors of law or unsupported by 

competent evidence in the record. Furthermore, our 

standard of review demands that we consider the 

evidence in a light most favorable to the verdict 

winner.

Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citation omitted).

We will first address appellants’ contention that the trial court committed 

reversible errors of law by failing to enter judgment in their favor because the 

applicable statute of limitations barred each and every claim and cause of 

action of Nicholas Halkias. (Andrew Kelly’s brief at 25.)

7

 

Appellants assert that the original assignment was recorded in 2008, 

and therefore James Halkias and then Nicholas Halkias were on notice of the 

terms of the assignment from no later than the recording of the assignment 

forward as a matter of law. Appellants assert that first James Halkias and 

then Nicholas Halkias were on constructive notice that their property was 

subject to the assignment. Appellants argue that the trial court erroneously 

relied on the discovery rule and fraudulent concealment doctrine to estop 

appellants from raising the affirmative defense of the statute of limitations 

and to hold that the statute of limitations did not begin to run until the end of 

 

7 The sections in the argument section of the briefs of each appellant do not 

directly correspond to the enumerated issues in the statement of questions 

involved. As a result, this court has reordered the arguments to reflect more 

accurately the order presented in the statement of questions involved. 

Appellants essentially address their first three issues together.
J. A24041/18

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2012 or the beginning of 2013, which contradicted the trial court’s 

December 22, 2016 order and opinion. Appellants further argue that 

Nicholas Halkias did not properly raise the fraudulent concealment doctrine 

and the discovery rule in replies to new matters of each appellant. Appellants 

assert that neither Halkias exercised due diligence to discover that the 

assignment had been recorded. Further, appellants argue that the trial court’s 

ruling violated the law of the case doctrine as it reversed its earlier ruling. 

The trial court addressed these issues in its opinion:

In Pennsylvania, actions based upon fraud have a 

two-year statute of limitations, while actions for 

declaratory relief or actions sounding in contract law 

have a four-year statute of limitations. 42 Pa.C.S.[A.]

§§ 5524-5525. . . . It is the duty of the party 

asserting a cause of action to use all reasonable 

diligence to properly inform themselves of the facts 

and circumstances upon which the right of recovery is 

based and to institute suit within the prescribed

period. Schaffer v. Larzelere, 189 A.2d 267, 269 

(Pa. 1963). “Thus, the statute of limitations begins to 

run as soon as the right to institute and maintain a 

suit arises; lack of knowledge, mistake or 

misunderstanding do not toll the running of the 

statute of limitations.” Pocono International 

Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d

468, 471 (Pa. 1983). Generally, once the prescribed 

statutory period has expired, the complaining party is 

barred from bringing suit. Colonna v. Rice, 664 A.2d 

979, 980-81 (Pa. Super. 1995) (citing Hayward v. 

Medical Center of Beaver County, 608 A.2d 1040, 

1042-43 (Pa. 1992)).

However, the statute of limitations doctrine is not 

absolute. Two exceptions are germane to this matter:

the doctrine of fraudulent concealment and the 

discovery rule. The doctrine of fraudulent 

concealment is based on a theory of estoppel, and 
J. A24041/18

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provides that the defendant may not invoke the 

statute of limitations, if through fraud or concealment, 

he causes the plaintiff to relax his vigilance or deviate 

from his right of inquiry into the facts. Fine v. 

Checcio, 870 A.2d 850, 860 (Pa. 2005) (citation 

omitted). Fraudulent concealment does not require 

fraud in the strictest sense encompassing an intent to 

deceive, but rather, fraud in the broadest sense, 

which includes an unintentional deception. “It is clear 

that a ‘defendant’s conduct need not rise to fraud or 

concealment in the strictest sense, that is, with an 

intent to deceive; unintentional fraud or concealment 

is sufficient.’” Krapf v. St. Luke’s Hosp., 4 A.3d 

642, 650 (Pa.Super. 2010) (quoting Molineux v. 

Reed, 532 A.2d 792, 794 (Pa. 1987)). Our Supreme 

Court has held that a “statute of limitations that is 

tolled by virtue of fraudulent concealment begins to 

run when the injured party knows or reasonably

should know of his injury and its cause.” Fine, 870 

A.2d at 861.

If through fraud or concealment the defendant causes 

the plaintiff to relax his or her vigilance or deviate 

from his or her right of inquiry, the defendant is 

estopped from invoking the bar of the statute of 

limitations. Lange v. Burd, 800 A.2d 336, 339 

(Pa.Super. 2002) (citing Molineux, 532 A.2d at 794). 

For the doctrine of fraudulent concealment to be 

applicable, “[a] defendant must have committed some 

affirmative independent act of concealment upon 

which [a] plaintiff[] justifiably relied.” Krapf, 4 A.3d 

at 650 (citing Lange, 800 A.2d at 339); see also

Kingston Coal Co. v. Felton Mining Co. Inc., 690 

A.2d 284, 291 (Pa. Super. 1997). Mere mistake or

misunderstanding is insufficient. Molineux, 532 A.2d 

at 794. Also, mere silence in the absence of a duty to 

speak cannot suffice to prove fraudulent concealment. 

Lange, 800 A.2d at 339 (citing Sevin v. Kelshaw, 

611 A.2d 1232, 1236 (Pa. Super. 1992); see also

Krapf, 4 A.3d at 650. The burden of proving such 

fraud or concealment, by evidence which is clear, 

precise and convincing, is upon the asserting party. 

Lange, 800 A.2d at 339 (citing Nesbitt v. Erie 

Coach Company, 204 A.2d 473 (Pa. 1964)).
J. A24041/18

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At trial, James Halkias presented testimony regarding 

alleged concealment of the Assignment by Paul Kelly, 

which we find credible. Indeed, James Halkias

testified that during the execution of the Assignment 

and the Fortuna lease, Paul Kelly stated he would 

receive “free money” in the amount of $43,000.00, 

and that energy companies never drill. Further, 

James Halkias testified that he simply signed the 

documents where Paul Kelly, his then counsel-ofrecord in a pending quiet title action, told him to sign. 

James Halkias never received the promised “free 

money” from the energy companies, and instead 

received “void” copies of the Fortuna lease and 

Assignment from Paul Kelly. James Halkias testified 

that upon receiving the “void” documents, he believed 

the Fortuna lease situation was over, and blocked it 

out of his mind. Unbeknownst to he [sic] and his 

father, however, Paul Kelly recorded the Assignment. 

Thereafter, royalties were paid by Talisman to Andrew 

Kelly pursuant to the Assignment and the Alta lease, 

despite James Halkias having no dealings with 

Paul Kelly in regards to the Alta lease. Finally, the

discovery of the royalties being paid to Andrew Kelly 

was not known to the Halkiases until late 2012 or early 

2013.

Based upon our review of the testimony presented at 

trial, we find the doctrine of fraudulent concealment 

serves to estop [appellants] from invoking the statute 

of limitations as a bar to Nicholas Halkias’[s] claims. 

Indeed, credible trial testimony from James Halkias

presents an “affirmative independent act of 

concealment” upon which he and his father justifiably 

relied. Krapf, 4 A.3d at 650 (citing Lange, 800 A.2d 

at 339). Based upon Paul Kelly’s statements, 

James Halkias believed he was entitled to “free 

money” which he never received, and believed that 

energy companies never drilled upon lands. Further, 

James Halkias believed that the Fortuna lease 

situation [w]as over due to the “void” documents 

received from Paul Kelly, despite Paul Kelly’s

recordation of the Assignment.
J. A24041/18

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These are clear affirmative acts by Paul Kelly upon 

which James Halkias justifiably relied to relax his 

vigilance into inquiry of any injury, under Krapf, 

Lange, Kingston Coal, and Fine. Indeed, 

Paul Kelly’s actions rise above the “unintentional fraud 

or concealment” which would invoke the doctrine of 

fraudulent concealment. Krapf, 4 A.3d at 650 (citing 

Molineux, 532 A.2d at 794). It is “clear, precise and

convincing” that Paul Kelly committed these acts and 

that they were relied upon by James Halkias. Lange, 

800 A.2d at 339 (citing Nesbitt, 204 A.2d at 473). 

Accordingly, we find the doctrine of fraudulent 

concealment estops [appellants] from invoking the

statute of limitations as a bar to Nicholas Halkias’[s]

claims.

A second exception to the statute of limitations 

doctrine is the discovery rule. The discovery rule 

provides that where the existence of the injury is not 

known to the complaining party and such knowledge 

cannot reasonably be ascertained within the

prescribed statutory period, the limitations period 

does not begin to run until the discovery of the injury 

is reasonably possible. Schaffer, 189 A.2d at 270. 

The discovery rule arises from the inability of the 

injured party, despite the exercise of reasonable 

diligence, to know of the injury or its cause. Pocono 

International, 468 A.2d at 471. Its purpose is to 

exclude the period of time during which the injured 

party is reasonably unaware that an injury has been 

sustained so that people in that class have essentially 

the same rights as those who suffer an immediately 

ascertainable injury. Pounds v. Lehman, 558 A.2d 

872, 874 (Pa. Super. 1989). “The standard of

reasonable diligence is an objective or external one 

that is the same for all individuals. It is not a

subjective standard.” Colonna, 664 A.2d at 980-81 

(citation omitted). Further, the level of reasonable 

knowledge required is 1) knowledge that one has been

injured; and 2) that his injury has been caused by 

another party’s conduct. Id. (citing Cathcart v. 

Keene Industrial Insulation, 471 A.2d 493, 500 

(Pa. Super. 1984) (en banc)). The failure to make 

inquiry when information is available is failure to 
J. A24041/18

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exercise reasonable diligence as a matter of law. 

Baumgart v. Keene Building Products

Corporation, 633 A.2d 1189, 1193 (Pa.Super. 1993), 

allocatur denied, 645 A.2d 1311 (Pa. 1994).

At trial, testimony was presented regarding the 

discovery of the alleged injury sustained by 

Nicholas Halkias. James Halkias testified he assists 

his father with the management of his financial affairs. 

He testified he and his father did not discover that 

funds were missing from royalty payments until late 

2012 or early 2013. He also testified that he believed 

the Subject Property was not subject to any other 

document other than the Alta lease, as he had 

received a voided copy of the Fortuna lease and the 

Assignment in the mail from Paul Kelly. We find this 

testimony credible based upon our impression of 

James Halkias on the witness stand during trial. 

Further, his testimony is supported by the fact that 

Talisman did not pay royalties to Andrew Kelly until 

late 2012, as only then did Talisman begin to extract 

natural gas from the Subject Property. Also, Talisman 

stopped the payments in early 2013, when it was 

notified by the Halkias family that the Assignment by 

which Andrew Kelly was being paid was being 

contested.

Based upon the testimony and evidence at trial, we 

find the statute of limitations on Nicholas Halkias’[s]

claims did not begin to run until late 2012 or early 

2013, when James Halkias found his father was not 

receiving all royalties from oil or gas extracted from 

the Subject Property. We credit the testimony of 

James Halkias, who testified he believed the Fortuna 

lease and the accompanying Assignment were 

inoperative sometime prior to 2010. We find the 

existence of this economic injury was not known to 

Nicholas Halkias until he began to receive royalty 

payments, which did not occur until Talisman began 

to extract natural gas from the Subject Property. We 

find Nicholas and James Halkias exercised reasonable 

diligence in discovering this economic injury under our 

Commonwealth’s case[ ]law, as they had no way of 
J. A24041/18

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knowing of any injury unless and until they began to 

receive royalty payments they could verify.

We note our conclusion on statute of limitations 

grounds herein, based upon the doctrine of fraudulent 

concealment and the discovery rule, comports with 

our December 22, 2016 Opinion and Order, where we 

addressed statute of limitations in the context of 

Nicholas Halkias’[s] proposed amendment and 

James Halkias’[s] proposed joinder to the 

Interpleader Complaint. In that Opinion, we utilized 

September 22, 2010 as the latest date the statute of 

limitations could have begun to run, based on the 

facts available to us in the pleadings and motions. 

See generally December 22, 2016 Opinion and Order 

(Harlacher Sibum, J.) (Specially Presiding). In that 

Opinion, we found that based on this date, 

Nicholas Halkias’[s] Proposed Amendments to the

Interpleader Complaint were barred by Pennsylvania 

case[ ]law and the statute of limitations. We stated, 

“Most importantly, however, each of the Proposed

Amendments is time barred under the statute of 

limitations by at least two years.” Further, we found

that James Halkias’[s] proposed joinder to this action 

was barred, where we stated, ‘Were we to permit his 

joinder, [appellants] would enjoy a complete defense 

to James Halkias’[s] claims on statute of limitations 

grounds.’ We reiterate that this conclusion was based 

on our use of September 22, 2010 as the latest date 

the statute of limitations began to run. Our 

December 22, 2016 Opinion and Order did not, 

however, address the statute of limitations in the

context of an affirmative defense to 

Nicholas Halkias’[s] case-in-chief asserted by 

[appellants], but rather solely in the context of 

Nicholas Halkias’[s] proposed amendment and

James Halkias’[s] proposed joinder to the lnterpleader 

Complaint.

Notwithstanding our December 22, 2016 Opinion and 

Order, the testimony and evidence presented at trial 

shows the doctrine of fraudulent concealment serves 

to estop [appellants] from invoking the statute of 

limitations as a bar to Nicholas Halkias’[s] claims, and 
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discovery of the economic injury did not occur until 

late 2012 or early 2013. In short, our December 22, 

2016 Opinion and Order was not based upon the

testimony and evidence at trial, but rather upon the 

pleadings and motions available to us at that time, 

due to the parties’ failure to provide evidence at the 

November 14, 2016 hearing. By contrast, under our 

Commonwealth’s discovery rule, the trial testimony 

and evidence establishes a discovery date of the 

economic injury in late 2012 or early 2013, while the 

doctrine of fraudulent concealment serves to estop 

[appellants] from invoking the statute of limitations 

as a defense to Nicholas Halkias’[s] claims.

Trial court opinion, 6/19/17 at 23-30 (footnote and citations to record 

omitted).

The trial court clearly and ably explained its reasoning for determining 

that under the discovery rule, the trial testimony and evidence established a 

discovery date of economic injury in late 2012 or early 2013 while the doctrine 

of fraudulent concealment estopped appellants from invoking the statute of 

limitations as a defense to the claims of Nicholas Halkias. 

The trial court opinion did not address at all or, at least in any detail, 

appellants’ claim that the trial court erred when it raised the application of the 

discovery rule and the fraudulent concealment doctrine when those defenses 

were not properly pled in any of the pleadings of Nicholas Halkias. Appellants 

refer to Rule 1032(a) of the Pennsylvania Rules of Civil Procedure which 

provides that a party waives all defenses and objections which are not 

presented by preliminary objection, answer, or reply, subject to some

objections which are not applicable here. Pa.R.C.P. 1032(a). Appellants argue 
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that Nicholas Halkias did not properly raise the defenses to the applicability of 

the statute of limitations such as the fraudulent concealment doctrine and the 

discovery rule in replies to the new matters of appellants in that no facts were 

pled to trigger the discovery rule and fraudulent concealment doctrine.

In Gotwalt v. Dellinger, 577 A.2d 623 (Pa.Super. 1990), this court 

stated that Rule 1029(d) of the Pennsylvania Rules of Civil Procedure:

governs when a party must file a responsive pleading 

to an averment contained in a new matter or other 

pleading. Rule 1029(d) provides that averments in a 

pleading to which no responsive pleading is required 

shall be deemed to be denied. If a party’s new matter 

does not contain facts supporting an affirmative 

defense, but rather contains merely conclusions of 

law, no denial is required because such averments are 

deemed to be denied. Because such averments are 

deemed to be denied, they are, therefore, in issue, 

and no judgment may be entered based upon a 

party’s failure to respond to those averments.

Gotwalt, 577 A.2d at 626.

Here, each appellant in new matter merely stated that the action was 

barred by the applicable statute of limitations. As this was a conclusion of law 

without facts supporting the affirmative defense, Nicholas Halkias was not 

required to respond under Pa.R.C.P. 1029(d). Because he did not have to 

respond, Nicholas Halkias cannot be precluded from presenting evidence at 

trial regarding the discovery rule and the fraudulent concealment doctrine on 

the basis that he did not raise those issues in response to each appellant’s

new matter.
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Appellants next contend that the trial court erred when it entered 

judgment in favor of Nicholas Halkias when appellants properly raised the 

defense that fraud was a personal action such that Nicholas Halkias’s claims 

based on fraud were barred as a matter of law.

The trial court found that appellants waived this issue because neither 

appellant raised the issue in preliminary objections. Challenges to a litigant’s 

capacity to sue must be raised either in an answer or in preliminary objections. 

In re Estate of Alexander, 758 A.2d 182, 189 (Pa.Super. 2000).

Here, appellants did not raise the issue of standing in either an answer

or preliminary objections, though each appellant raised standing in new 

matter. Technically, appellants did waive the issue.

Assuming arguendo that appellants preserved this issue, this court 

determines that the trial court did not err or abuse its discretion, when it 

determined that Nicholas Halkias had standing to bring the fraud-based 

actions.

We have stated as a general policy that “[a] party 

seeking judicial resolution of a controversy in this 

Commonwealth must, as a prerequisite, establish that 

he has standing to maintain the action.” Bergdoll v. 

Kane, 557 Pa. 72, 731 A.2d 1261, 1268 (1999) 

(citation omitted). Our Commonwealth’s standing 

doctrine is not a senseless restriction on the utilization 

of judicial resources; rather, it is a prudential, 

judicially-created tool meant to winnow out those

matters in which the litigants have no direct interest 

in pursuing the matter. Such a requirement is critical 

because only when “parties have sufficient interest in 

a matter [is it] ensure[d] that there is a legitimate 
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controversy before the court.” In re T.J., 559 Pa. 

118, 739 A.2d 478, 481 (1999).

In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003) (footnote omitted).

In practical terms, we are assured that there is a 

legitimate controversy if the proponent of a legal 

action has somehow been “aggrieved” by the matter 

he seeks to challenge. Independent State Store 

Union v. Pennsylvania Liquor Control Board, 495 

Pa. 145, 432 A.2d 1375 (1981). A litigant can 

establish that he has been “aggrieved” if he can show 

that he has a substantial, direct and immediate 

interest in the outcome of the litigation in order to be 

deemed to have standing. Bergdoll[, supra].

Id. at 136, 821 A.2d at 1243. 

Here, Nicholas Halkias acquired the property from his son, 

James Halkias. Under the applicable lease, Respol agreed to pay royalties to 

James Halkias for the extraction of oil and/or gas from the property.

As the trial court stated in its opinion, a covenant to pay royalties runs 

with the land. Nigro v. Don-Mar Corp., 85 A.2d 21, 22 (Pa. 1951). In 

addition, when a grantor, after entering into such a royalty agreement, 

conveys his interest in the property, the grantee receives the right to receive 

the royalty unless the grantor expressly reserves such royalty. Appeal of 

Baird, 6 A.2d 306, 312 (Pa. 1939).

The trial court concluded:

Applying our Supreme Court’s longstanding case[ 

]law, as embodied in Nigro and Baird, 

Nicholas Halkias took possession of the right to 

receive royalty payments from the Subject Property 

upon execution of the deed. The deed shows no 

express reservation for any oil and gas royalty interest 
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from the grantor. Therefore, Nicholas Halkias is 

entitled to bring suit concerning any royalty payments 

from the Subject Property not paid to him since that 

deed was executed, as he would be “aggrieved” by not 

receiving a royalty payment he would be entitled to as 

record owner of the Subject Property. Finally, 

Nicholas Halkias continues to own the Subject 

Property, as evidenced by Interpleader Defendant’s 

Exhibit 2 and other testimony at trial. In short, the 

deed from which Nicholas Halkias took ownership of 

the Subject Property gives him capacity to bring suit 

for recovery of oil and gas royalties from the Subject 

Property under our Commonwealth’s standing 

doctrine. 

Trial court opinion, 6/19/17 at 22-23 (citation omitted).

Appellants next contend that it was reversible error for the trial court to 

enter judgment in favor of Nicholas Halkias and determine that the 

assignment from James Halkias to Andrew Kelly when James Halkias never 

attempted to revoke the assignment. 

However, in making this argument, appellants ignore the credibility

determinations of the trial court. The trial court explicitly found James Halkias

to be credible and credited his testimony over that of Paul Kelly. In a non-jury 

trial, the fact-finder is free to believe all, part, or none of the evidence, and 

this court will not disturb the credibility determinations of the trial court. 

Assessments of credibility and conflicts of evidence are for the trial court to 

resolve. Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916 

(Pa.Super. 2017). Because of these credibility determinations, the trial court 

found that there was no agreement for Paul Kelly to secure an oil and gas 

lease for James Halkias, and consequently, there was no agreement for 
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James Halkias to sign the assignment. (Trial court opinion, 6/19/17 at 36.) 

Because there was no valid assignment, James Halkias did not have to revoke 

the assignment.

Appellants next contend that it was reversible error for the trial court to 

enter judgment in favor of Nicholas Halkias when the assignment was 

sufficiently specific and met all legal requirements to be enforceable and 

binding upon James Halkias, his heirs, successors, and assigns.

The objective in interpreting instruments relating to oil and gas interests 

is to determine the intention of the parties. Syzmanowski v. Brace, 987 

A.2d 717, 720 (Pa.Super. 2009), appeal denied, 997 A.2d 1179 (Pa. 2010).

Once again, appellants ignore the credibility determinations of the trial 

court. Appellants argue that the assignment clearly describes the Property to 

consist of 431.24 acres. However, the trial court found credible 

James Halkias’s testimony that the handwriting including this designation of 

the size of the Property was not present on the assignment form when 

James Halkias signed it. (Trial court opinion, 6/19/17 at 37-38.) The trial 

court concluded that the handwriting was added after the execution of the 

assignment. (Id. at 39.)

In the alternative, appellants argue that if this court determines that the 

documents do not sufficiently identify the interest conveyed, there is sufficient 

parol evidence to establish both the interest conveyed and the lands from 

which the interest derives because the 431.24-acre parcel was the only 
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property of its kind owned at the time of the conveyance, and the only 

property owned by James Halkias individually at any time in Susquehanna 

County. However, there is nothing on the assignment to indicate that the 

property was located in Susquehanna County, and the trial court found that 

James Halkias owned 100 pieces of property, which made a reference to 

“our lands” in the assignment ambiguous. (Trial court opinion, 6/19/17

at 45.) Once again, appellants ignore the trial court’s credibility 

determinations which led it to conclude that there was no intent to assign 

royalties from James Halkias to Andrew Kelly.

Appellants next contend that it was reversible error for the trial court to 

determine that improper notarization was a basis to invalidate the assignment 

when the notarization of the assignment was not required for the assignment 

to be valid and enforceable and Nicholas Halkias did not establish that any 

improper notarization had occurred.8

In Count III of his interpleader complaint, Nicholas Halkias asserted that 

the assignment should be void on grounds of improper notarization. The trial 

court found that the assignment was the result of fraud. Furthermore, the 

trial court found that James Halkias credibly testified that no other person was 

present when he executed the assignment. The trial court found that the

assignment was not notarized at the time of execution but after the fact.

 

8 Appellants also allege that Nicholas Halkias lacked standing. However, we 

have already determined that Nicholas Halkias did have standing.
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In challenging this determination, appellants essentially raise 

arguments that we have already discounted, such as the standing of 

Nicholas Halkias, the lack of a timely effort to rescind the assignment, and the 

running of the statute of limitations. The trial court did not err or abuse its 

discretion when it ordered that the assignment be struck.

Appellants next contend that the trial court committed reversible error

when it entered judgment in favor of Nicholas Halkias when Nicholas Halkias

failed to state any claim upon which relief could be granted and appellants 

proved their cases as a matter of law such that they were entitled to the relief 

they requested. As we have already determined that the trial court did not 

err, we need not address this issue.9

Judgment affirmed.

Ott, J. joins this Memorandum.

McLaughlin, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/1/2019

 

9 Appellants waive their last issue, whether it was reversible error for the trial 

court to deny appellants’ joint motion for post-trial relief when appellants do 

not address the issue in the argument section of their brief. See 

Commonwealth v. J.F., 800 A.2d 942, 946 n.10 (Pa.Super. 2002).