J-S75007-17

2018 PA Super 116

RANDY E. HOFFMAN AND SHERRY L. 

HOFFMAN, HIS WIFE 

Appellants

v.

SCOTT A. GONGAWARE AND KERN 

BROTHERS LUMBER COMPANY, 

A/K/A KERN BROTHERS LUMBER 

COMPANY, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 152 WDA 2017

Appeal from the Order January 10, 2017

In the Court of Common Pleas of Somerset County Civil Division at 

No(s): No. 503 Civil 2014

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.: FILED MAY 4, 2018

Randy E. Hoffman and Sherry L. Hoffman (“Appellants”) appeal from the 

trial court’s January 10, 2017 order sustaining the preliminary objections in 

the nature of a demurrer of Scott A. Gongaware and Kern Brothers Lumber 

Company (“Appellees”) and dismissing Appellants’ complaint. On appeal, 

Appellants argue that the trial court erred in concluding that their reservation 

of timber rights in a duly recorded deed constituted an interest in personal 

property, rather than land, and in finding that they forfeited this interest when 

they failed to remove the timber in a reasonable amount of time. After careful

review, we reverse and remand for further proceedings.

The trial court summarized the facts as follows:

[Appellants], Randy E. Hoffman and Sherry L. Hoffman, 

husband-and-wife, were the owners of a 20 acre parcel of land 
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on which a crop of timber existed in Lincoln Township, Somerset

County, together with a residence in which the [Appellants]

apparently resided. On October 12, 1977 [Appellants] conveyed 

the premises to Consolidation Coal Company by deed recorded in 

record book volume 812, page 646 and recorded on the following 

day [(“the 1977 Deed”)]. Of particular importance are the various 

“Exceptions and Reservations” which we shall include verbatim.

EXCEPTING AND RESERVING all coal and mining 

rights previously conveyed by predecessors in title.

ALSO EXCEPTING AND RESERVING unto the grantors, 

their heirs and assigns, all the oil and gas underlying 

the premises hereby conveyed and all necessary and 

convenient rights for the removal thereof, provided 

that such operations do not interfere with the coal 

mining operations of the grantee, its successors or 

assigns.

ALSO EXCEPTING AND RESERVING unto the grantors, 

their heirs and assigns, all of the timber on the 

premises hereby conveyed and all necessary and 

convenient rights for the removal thereof, provided 

that the grantors, their heirs and assigns, must 

exercise said right upon six (6) months written notice 

by the grantee, its successors or assigns, and 

provided further, that such operations by the 

grantors, their heirs and assigns, do not interfere with 

the coal mining operations of the grantee, its 

successors or assigns.

[1]

ALSO EXCEPTING AND RESERVING unto the grantors, 

their heirs and assigns, the right to remain at the 

residence located on the premises hereby conveyed, 

together with the full right to use and possession of 

an area constituting a 200 foot radius surrounding 

said residence, provided that: (1) the grantors, their 

____________________________________________

1 As discussed infra, the language of the 1977 Deed requires Appellees to 

provide written notice to Appellants, at which point Appellants have six months 

to remove the timber from the property. The 1977 Deed does not require

Appellants to provide notice to Appellees before Appellants exercise their right 

to the timber on the property.
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heirs and assigns, may remain on said premises at 

their sole risk and expense, with the understanding 

and agreement that the grantors, their heirs and 

assigns, shall pay to the grantee, its successors or

assigns, and advance annual rental of a sum equal to 

all taxes levied on all the premises hereby conveyed

used by the grantors, their heirs and assigns; (2) the 

grantee, its successors or assigns, shall have 

exclusive possession of the premises hereby conveyed 

upon six (6) months written notice to the grantors, 

their heirs and assigns, provided that in no event shall

the grantors, their heirs and assigns, [be] deprived of 

the use and possession of the aforesaid residence and 

surrounding area for a period less than nine months 

from October 12, [1977], (that is, notice by the 

grantee, its successors or assigns, to the grantors, 

their heirs and assigns, to remove from the aforesaid 

residence and surrounding area shall not be given 

within the first three (3) months after October 12, 

1977); (3) the grantors, their heirs and assigns, shall 

remove from the premises hereby conveyed on or 

before the expiration of the aforesaid notice. All crops, 

livestock and other removable personal property.

IN THE EVENT THAT the grantee, its successors or 

assigns, determines at any time to remove the 

residency [erected on] the premises hereby 

conveyed, the grantors, their heirs and assigns, shall 

have the right of first refusal relative to the sale of 

said residence, or any and all salvageable parts 

thereof, at the same purchase price as offered by any 

third party who has submitted and executed written 

offer to purchase the aforesaid residence and/or any 

part thereof, and grantee, its successors or assigns, 

shall submit a copy of such executed written offer to 

the grantors, their heirs and assigns, who shall have

sixty (60) days from the date of receipt of such written 

offer to either exercise or refuse to exercise the right 

to purchase the aforesaid residence or any part 

thereof for the same purchase price as set forth in said 

written offer.

The Grantee in [the 1977 Deed], Consolidation Coal 

Company, conveyed the premises under and subject to the 
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foregoing “Exception and Reservation” clauses in 1984 to an 

entity which ultimately became known as Reserve Coal Properties 

Company. On June 28, 2004, 27 years after [Appellants] 

conveyed away the premises, Reserve Coal Properties Company 

conveyed the property to [Appellee], Scott A. Gongaware, 

providing that the same was ---

UNDER AND SUBJECT to all exceptions, reservations 

and all other matters affecting title as set forth in the 

deed from Randy E. Hoffman and Sherry L. Hoffman, 

his wife, to Consolidation Coal Company dated 

October 12, 1977 and recorded in deed book volume

812, page 646.

There is no suggestion that Consolidation Coal Company or 

its successors ever gave [Appellants] notice to remove the 

timber. 

Sometime prior to 2012, [Appellee], Scott A. Gongaware, 

entered into an agreement with [Appellee], Kern Brothers 

Lumber Company, to harvest the timber upon the real estate. 

[Appellants] learned of the harvesting of timber in 2012, and for 

these purposes, it is undisputed that the harvesting was done 

without the knowledge or consent of [Appellants]. 

[Appellants] bring their action against both the [Appellee]

landowner, Scott A. Gongaware, and the timber removal 

contractee, Kern Brothers Lumber Company, for damages in 

conversion, unjust enrichment, and statutory treble damages 

under 42 Pa.C.S.A. §8311.

[Appellees] demur to the causes of action on the theory 

that [Appellants] had no actionable claim to the timber at the 

time [Appellees] commenced timber removal operations.

Trial Court Opinion, 1/10/17, at unnumbered 1–3. Finding that Appellants 

had “no property interest, either real or personal, in the timber existing on the 

premises at the commencement of these proceedings,” the trial court 

sustained Appellees’ preliminary objections and dismissed Appellants’ case. 
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Id. at unnumbered 6. Appellants filed a timely notice of appeal on January 19, 

2017. Both Appellants and the trial court have complied with Pa.R.A.P. 1925. 

On appeal, Appellants present the following questions for our review:

I. Whether the Lower Court erred in granting Appellees’

Preliminary Objection in the nature of a demurrer based on 

facts and factual inferences not made in the Appellants’

Complaint?

II. Whether the Lower Court erred in sustaining the Appellees’

Preliminary Objection in the nature of a demurrer as 

Appellants’ Complaint met the extremely low standard for 

surviving a demurrer?

III. Whether the Lower Court erred in sustaining the Preliminary 

Objection in the nature of a demurrer based on the 

reasoning that the timber reservation was that of personal 

property and that Appellants had to remove the timber in a 

reasonable amount of time?

IV. Whether the Lower Court erred in granting Appellees’

Preliminary Objection in the nature of a demurrer since 

under the facts pled Appellants can recover under every 

cause of action brought forth in the Complaint?

Appellants’ Brief at 3.

“An appeal from an order granting preliminary objections in the nature 

of demurrer is subject to plenary review.” Erdely v. Hinchcliffe and Keener, 

Inc., 875 A.2d 1078, 1081 (Pa. Super. 2005). When determining whether 

the trial court properly sustained the preliminary objections, this Court will 

examine the “averments in the complaint, together with the documents and 

exhibits attached thereto.” Id. Further:

The impetus of our inquiry is to determine the legal sufficiency of 

the complaint and whether the pleading would permit recovery if 

ultimately proven. This Court will reverse the trial court’s decision 
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regarding preliminary objections only where there has been an 

error of law or abuse of discretion. When sustaining the trial 

court’s ruling will result in the denial of claim or a dismissal of suit, 

preliminary objections will be sustained only where the case is free 

and clear of doubt.

Clausi v. Stuck, 74 A.3d 242, 246 (Pa. Super. 2013) (quoting Conway v. 

The Cutler Group, Inc., 57 A.3d 155, 157–158 (Pa. Super. 2012)). “If any 

doubt exists as to whether a demurrer should be sustained, it should be 

resolved in favor of overruling the preliminary objections.” Haun v. 

Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011)

(quoting Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003)).

In support of their first issue, Appellants contend that the trial court 

erred when it relied on “facts and factual inferences” not contained in the 

complaint. Appellants’ Brief at 9. Specifically, Appellants argue that the trial 

court erred when it found that the property at issue was conveyed for 

“anticipated coal operations” because the complaint was void of any factual 

averments indicating the same. Id. at 9–10 (quoting Trial Court Opinion, 

1/10/17, at unumbered 5). 

Although Appellants did not make any averments regarding the 

anticipated operations on the property, they attached a copy of the 1977 Deed 

to their complaint. Complaint, 4/22/2015, Exhibit B.2 The 1977 Deed 

____________________________________________

2 Appellants also attached a copy of the 2004 Special Warranty Deed, which 

conveyed the land from Reserve Coal Properties (an affiliate of Consolidation 

Coal Company) to Appellee Gongaware, to their complaint. Complaint, 

4/22/2015, Exhibit A.
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contained the following language, “EXCEPTING AND RESERVING all coal 

mining rights previously conveyed by predecessors in title.” Id. at Exhibit B. 

Additionally, the 1977 Deed addressed the Appellants’ ability to harvest the 

timber from the land as follows, “grantors . . . must exercise said right upon 

six (6) months written notice by the grantee . . . and provided further, that 

such operations by the grantors . . . do not interfere with the coal mining

operations of the grantee . . .” Id. (emphasis added). We also note that 

the 1977 Deed includes a reservation of the grantors’ rights relating to the oil 

and gas underlying the property, which allowed grantors to remove the oil and 

gas, so long as those operations do not interfere with coal mining operations. 

Id. The trial court properly considered the appended 1977 Deed and, in view 

of the above quoted language, did not err when it found that the property was 

conveyed for anticipated coal operations. See, e.g., Detweiler v. School 

Dist. Of Borough of Hatfield, 104 A.2d 110, 113 (Pa. 1954) (finding no 

error where trial court considered agreements attached to defendant’s 

demurrer because those agreements were acknowledged and relied upon by 

plaintiffs to establish their claims). 

The trial court also concluded, however, that “[c]oal mining operations, 

for surface mining, would be inconsistent with the preservation of timber due 

to the requirement to remove the surface overburden above the coal seam.”

Trial Court Opinion, 1/10/17 at unnumbered 5. Appellants allege that the trial 

court went beyond the permitted scope of material when it determined that 
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the property was to be used for surface mining, as opposed to underground 

mining. Appellants’ Brief at 9–10. We agree. Neither the complaint nor the 

appended 1977 Deed indicates that the property was to be used for surface 

mining. It is not clear whether this information was contained in documents 

not properly before the court on preliminary objections or simply an 

unsupportable inference made by the trial court. Regardless, it was an 

impermissible consideration in deciding preliminary objections in the nature 

of a demurrer and tainted the trial court’s conclusion that Appellants did not 

have an actionable claim, as discussed in more detail below.

Appellants’ remaining issues focus on the trial court’s ultimate 

conclusion that Appellants did not have an interest in the timber Appellees 

harvested. More specifically, they argue that the trial court erred in finding

that the timber-reservation clause contained in the 1977 Deed constituted a 

reservation of personal property. The trial court further found that because 

the timber-reservation clause was an interest in personal property, Appellants 

had to remove the timber within a reasonable time. The trial court concluded 

that Appellants failed to do so, and that their rights to the timber were thus 

extinguished. Trial Court Opinion, 1/10/17, at unnumbered 5–6. 

Appellants aver, to the contrary, that the timber-reservation clause 

constitutes a reservation in realty, not personal property, and point to the 

language contained in the 1977 Deed. Appellants’ Brief at 13. Appellants 

assert that the language reserving rights for “their heirs and assigns” in the 
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timber-reservation clause gives Appellants a perpetual right to enter the 

property and remove the timber. Id. at 13–14. They argue that the second 

part of the conveyance, which provides that the grantors, heirs, and assigns 

must exercise the right to remove the timber upon six months of the grantees’

written notice, constitutes a condition subsequent. Id. at 14. Appellants 

assert that written notice by Appellees, followed by Appellants’ failure to 

remove the timber over the subsequent six months, is the only way that 

Appellant’s interest in the timber can be extinguished pursuant to the terms 

of the Exception and Reservation clause in the 1977 Deed. Id. Because 

Appellees have not given any such notice to them, Appellants contend the 

condition subsequent has not occurred, and their right to the timber on the 

property has not been extinguished. Id. 

Appellants further aver that the trial court erred in granting the 

Appellees’ preliminary objections because, under Pennsylvania statutory law,

a reservation of timber rights constitutes an interest in land, not personal 

property. Appellants’ Brief at 16. Appellants rely on the statute governing 

timber deeds, which states:

It shall be lawful for the owner or owners of land, timber or bark, 

or for any person or persons having an interest therein, to grant, 

bargain and sell, or contract to sell, by deed, conveyance or 

contract in writing, signed by the grantor or grantors therein, and 

proved or acknowledged by them, as now required by law of this 

commonwealth for the signing and acknowledging of deeds, all or 

any right, title, claim or interest such grantor or grantors may 

have in or to any standing or growing timber, or the bark thereon, 

upon any lands in this commonwealth; and any such deed, 
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conveyance or contract shall be taken and deemed as a deed, 

conveyance or contract conveying and vesting an interest in land.

21 P.S § 521 (emphasis added).3

Although the majority of case law addressing whether timber should be 

considered real or personal property was handed down over 100 years ago, 

those holdings remain valid law and inform our decision in this case. Notably, 

this Court recently addressed this issue and analyzed Section 521 in Zitney 

v. Applachian Timber Products, 72 A.3d 281 (Pa. Super. 2013). Although 

the Court ultimately held that a contract for the sale of timber to be removed 

within twenty-four months was a contract for the sale of personal property, 

the court extensively discussed Section 521 and the relevant case law. 

The Zitney Court noted that Section 521 was enacted in 1895, and was 

“bookended” by two cases, Appeal of McClintock, 71 Pa. 365 (Pa. 1872)

(decided before the enactment of Section 521) and Havens v. Pearson, 6 

A.2d 84 (Pa. 1939) (decided after the enactment of Section 521). Citing 

McClintock and Havens, the Zitney Court noted “that despite the general 

categorization of 21 P.S. §521, not all timber contracts constitute contracts 

for the sale of land.” Zitney, 72 A.3d at 287–288. Justice Wecht, a former 

____________________________________________

3 Appellants included a discussion of Section 521 in their brief in response to 

Appellees’ preliminary objections. The trial court, however, failed to discuss,

analyze, or even mention Section 521 in its opinion sustaining Appellees’

preliminary objections. Indeed, in that opinion, the trial court relied primarily 

on a case, Appeal of McClintock 71 Pa. 365 (Pa. 1872), which was handed 

down well before Section 521 was enacted in 1895.
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member of our Court and author of the Zitney opinion, summarized the facts 

and relevant principles established by these cases, as follows:

In McClintock’s Appeal, John Strawbridge conveyed 130 

acres of land to Lafayette McClintock, but reserved “all the pine 

and hemlock timber, also the mineral that may be found on said 

premises, to his own use and advantage.” 71 Pa. at 366. The 

reservation further provided that, in the event that McClintock 

wanted to “clear any part of the land,” Strawbridge was to remove 

the timber within thirty days after being notified of McClintock’s 

intentions. Id. Upon Strawbridge’s death, McClintock was named 

as the administrator of Strawbridge’s estate. During inventory of 

the estate, a question arose as to whether the timber reserved on 

the property now owned by McClintock constituted personal 

property of the estate. An auditor was appointed, and he 

determined that the timber was personal property. The Orphans’

Court agreed with the auditor. Id. at 365–66.

Our Supreme Court affirmed the Orphans’ Court, holding 

that “[i]n agreements for the reservation or sale of growing 

timber, whether the timber is to be regarded as personal property 

or an interest in real estate, depends on the nature of the contract 

and the intent of the parties.” Id. at 366. The Court explained 

the basis for its rule as follows:

If the agreement does not contemplate the 

immediate severance of the timber it is a contract for 

the sale or reservation of an interest in land, and until 

actual severance the timber in such cases passes to 

the heir, and not to the personal representative. But 

when the agreement is made with a view to the 

immediate severance of the timber from the soil, it is 

regarded as personal property, and passes to the 

executor and administrator, not the heir.

* * *

But in the case at hand it is manifest that the 

parties intended by their contract to divide the pine 

and hemlock from the freehold, and give to it the 

quality of a chattel. It was not to be taken off at 

discretion, as to the time. By the express terms of 

the deed the vendee of the land had the right to 
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require the removal on giving, and the vendor was 

bound to take it off on receiving thirty days’ notice.

The timber must, therefore, be regarded as a chattel, 

which passed to the administrator.

* * *

If the reservation had been of a perpetual right 

to enter on the land and cut all the pine and hemlock 

timber growing thereon, then it would be ... regarded 

as an interest in land. 

Id. at 366–67.

Our Supreme Court reaffirmed these legal distinctions in 

reviewing the nature of the timber removal contracts in Havens. 

In that case, W.H. Pearson owned, by written contract, the timber 

growing on 1,300 acres of land owned by someone else. The 

contract provided Pearson twenty years to cut and remove the 

timber. Havens, 6 A.2d at 85. Following a lien and a judgment, 

the property was purchased through a sheriff’s sale by O.S. 

Havens. Pearson continued to remove timber from the property 

after Havens took ownership of it. Havens sought an injunction 

preventing Pearson from continuing to remove the timber. Id. at 

86. As in the case sub judice, the question became whether the 

timber contract was for the sale of land or of goods. If the contract 

was for goods, the timber would not have been subject to the lien, 

judgment, and subsequent sale.

Although the Supreme Court ultimately held that the 

contract in Havens was for a sale of land, permitting Havens to 

enjoin Pearson from removing the timber, the Court applied the 

following principles:

Ordinarily a contract for the sale of standing 

timber to be cut and removed, or one that gives the 

purchaser discretion as to the time of removal, is a 

sale of land within the meaning of the Statute of 

Frauds. Where, however, timber is to be cut and 

[removed] by the purchaser within a definite or 

reasonable time, it becomes a question of the 

intent of the parties as to whether a sale of 

realty, the creation of a chattel real, or a sale of 

personalty was intended. It has been stated in 

many of our cases that the contract to be a sale of 
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personalty must intend an ‘immediate severance’; it 

would be more accurate to say that the real test is, 

considering the nature and extent of the land, the 

number of feet of merchantable timber and the time 

given for removal, whether the vendor intended the 

vendee to have an interest in the standing timber as 

land, or whether he contemplated a removal within a 

time reasonably necessary therefor, in which case the 

vendee would have a chattel interest.

Id. at 86 (citations and footnote omitted; emphasis added). To 

illustrate these principles, the Havens Court cited Robbins v. 

Farwell, 193 Pa. 37, 44 A. 260 (1899), which held that a six- to 

seven-year window to remove timber demonstrated that the 

parties intended the contract to be one for the sale of personal 

property, and Patterson et al. v. Graham et al.,164 Pa. 234, 30 

A. 247 (1894), in which the Pennsylvania Supreme Court held that 

a five-year period to remove timber evinced the intent to create a 

contract for the sale of personal property. However, the Court 

contrasted those cases with Wilson v. Irvin, 1 Pennyp. 203 (Pa.

1881), in which the Court held that a nine-year period to remove 

timber created a contract for the sale of land. Havens, 6 A.2d at 

86.

Zitney, 72 A.3d at 287–288. (citations edited for clarity). The Zitney Court 

also noted that, “[p]er McClintock and Havens, the critical term is the time 

period within which the timber is to be removed.” Zitney, 72 A.3d at 289.

Thus, pursuant to well established precedent:

[W]hether growing timber is to be regarded as personal property 

or an interest in real estate in an agreement for its reservation or 

sale depends on the nature of the contract and the intent of the 

parties; that, if the agreement does not contemplate the 

immediate severance of the timber, it is a contract for the sale or 

reservation of an interest in land; but that, where the agreement 

is made with a view to an immediate severance, the timber is to 

be regarded as personal property. 

Strause v. Berger, 220 Pa. 367, 370 (Pa. 1908); see also McClintock, 71 

Pa. at 366 (“If the agreement does not contemplate the immediate severance 
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of the timber it is a contract for the sale or reservation of an interest in 

land...”). Indeed, as Appellees state in their brief, “The right to harvest timber 

depends on the nature of the contract and the intent of the parties . . . .” 

Appellees’ Brief at 3; see also McClintock, 71 Pa. at 366 (“In agreements 

for the reservation or sale of growing timber, whether the timber is to be 

regarded as personal property or an interest in real estate, depends on the 

nature of the contract and the intent of the parties.”).

The instant case involves a reservation of timber rights in a deed, not 

a timber contract. The deed meets the requirements of the Statue of Frauds 

and was duly recorded as a property interest. Even more importantly, the 

inclusion of the “heirs and assigns” and “successors and assigns” language 

relating to both Appellants and Appellees in the timber-reservation clause is 

evidence that Appellants’ interest in the timber is not a short-term, personalproperty interest. See, e.g., Strycker v. Richardson, 77 Pa. Super. 252 

(Pa. Super. 1921) (finding easement which included “heirs and assigns”

constituted a perpetual easement and was not limited to the named grantee). 

Indeed, there was no question that the timber-reservation was included in 

Gongaware’s deed and that he had notice. Significantly, the language of the 

deed did not contemplate the immediate severance of the timber. In fact, it 

appears that over thirty-five years passed before the cutting of the timber 

became an issue. We further note that there is no language in the timberreservation that requires Appellants to provide notice or seek permission from 
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Appellees prior to entering the property and removing the timber. Under these 

circumstances, we conclude it was premature for the trial court to bar 

Appellants’ claims.

The intent of the parties and the nature of the reservation at issue 

cannot be determined based upon the pleadings and their attachments in the 

instant case. Indeed, this is a fact specific inquiry and the trial court will need 

to look to extrinsic or parole evidence in making its determination. Thus, the 

matter is not properly disposed of by preliminary objections in the nature of a 

demurrer. See, e.g., Bouchon v. Citizen Care, Inc., 176 A.3d 244, 254

(Pa. Super. 2017) (“In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the averments in 

the complaint, together with the documents and exhibits attached thereto, in 

order to evaluate the sufficiency of the facts averred.”); Kane v. State Farm 

Fire and Cas. Co., 841 A.2d 1038, 1041 (Pa. Super. 2003) (“When 

considering the grant of preliminary objections in the nature of a demurrer, 

this Court must resolve the issues solely on the basis of the pleadings; no 

testimony or other evidence outside the complaint may be considered.”).

Thus, the trial court erred when it sustained Appellees’ preliminary objections.

Order reversed. Case remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2018