HomeMy WebLinkAbout02-22-06
CHARLES E. SHIELDS, III
ATTORNEY-AT-LAW
6 CLOUSER ROAD
Corner ofTrindle and Clouser Roads
MECHANICSBURG, PA 17055
GEORGE M. HOUCK
(1912-1991)
February 21, 2006
TELEPHONE (717) 766-0209
FAX (717) 795-7473
Honorable 1. Wesley Oler, Judge
Cumberland County Courthouse
Carlisle, P A 17013
Via Hand Delivery
Dear Judge Oler:
Please find enclosed herewith the PETITION FOR A RECORDABLE DECREE TO CLEAR
CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF
POSSIBLE LITIGATION. The Petitioners, Mr. and Mrs. DeAngelis, have discovered that they have
several problems with their various properties. The most difficult one involves the title to their real estate.
There are other significant problems involved with some financial instruments and tax issues which most
likely will not need to involve the Court. I have a c.P.A. and a tax lawyer working on those aspects of
their affairs.
As to the real estate title, there does not appear to be any simple way to accomplish clearing the
title and meeting the current goals of Mr. and Mrs. DeAngelis, both of whom are now in their eighties. I
have already discussed the mechanics of some of this with Bob Zeigler, Recorder of Deeds. I believe
everything is now properly detailed and set forth in proper order.
There are five (5) adult children involved. All of them have read and joined in the PETITION.
By disclaiming the title to the real estate and going this route, we can eliminate any argument that any title
or real property got into the Irrevocable Trust. There are other assets that clearly got into it, thus, making
any attempt to dissolve the trust more difficult. Doing such would create additional problems for my
clients that they can do without. The current approach as set forth at large in the PETITION will clear
the title and not create any additional problems for Mr. and Mrs. DeAngelis.
The Petitioners and their children, are all of the interested parties. Accordingly, we requested that
we be able to waive the expense and time involved with a hearing. We hope that everything will be clear
enough to obtain an ORDER in line with the Prayer of our PETITION. In the event you have any
questions, please advise. Thank you.
Very truly yours,
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Charles E. Shields III
Attorney-At-Law
CES/mjj
Enclosures
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INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF PENNSYLVANIA
DeANGELIS REVOCABLE REAL
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 - <0\\c'\
PETITION FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
AND NOW COME THE PETITIONERS: Joseph B. DeAngelis and Janet DeAngelis, his wife.
("Petitioners"), by and through their attorney-at-law, Charles E. Shields III, Esq., a member of
the Cumberland County and Pennsylvania Bars, maintaining his office at 6 Clouser Road,
Mechanicsburg, (Monroe Township) Cumberland County, Pennsylvania, 17055, and respectfully
pray for and request from your HONORABLE COURT a recordable decree to clear clouds from
title and to eliminate eminent exposure to the hazards of possible litigation. In support thereof,
Petitioners over the following:
PETITIONERS
1. Petitioners, Joseph B. DeAngelis and Janet DeAngelis, his wife, are adult individuals of full
capacity who currently reside at 420 Kent Drive, Mechanicsburg, (Upper Allen Township),
Cumberland County, Pennsylvania.
NATURE OF ISSUES BEFORE THE COURT
2. Petitioners purchased a residential dwelling house in their joint names, as Tenants by the
Entireties, at the above address, in June of 1976. Subsequently, in May of 1995 Petitioners quit-
claimed or attempted to quit-claim the said premises into themselves as Trustees of a revocable
real property trust. Later, in May of 2000, Petitioners, in their own names, attempted to make an
outright grant and conveyance of the said premises into an irrevocable trust. As will be set forth
herein more fully at large below the conveyancing and other actions taken in connection
therewith were replete with errors, oversights, and the like, all of which have given rise~to clouds
on the title to the premises and which expose Petitioners and the premises to eminent hazards of
litigation.
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JURISDICTION
3. Jurisdiction resides in your Honorable Court by virtue of several sections of Title 20,
generally referred to as the "Probate, Estates, and Fiduciaries Code" or more simply the "PEF
Code," as follows, to wit:
Section 711 (3)(ii) regarding inter-vivos trusts, the administration and distribution ofreal
property within such trusts, specifically including such trusts created under a deed and/or an
agreement;
Section 711 (12) regarding the control of fiduciaries, including trustees;
Section 711 (16) regarding the disposition of title to real estate to render it freely alienable,
including instances where title has been acquired by or resides in a Trust, the jurisdiction of
which trust is exercised through the Orphans' Court as is the case herein;
Section 712 (1) and (3) regarding a non-mandatory but available and exercisable jurisdiction of
the Orphans' Court regarding titles to real estate and other similar matters.
Your Honorable Court also jurisdiction by virtue of its powers of supervision over trustees of
inter-vivos trusts as relates to their several duties and powers regarding the possession and
administration, as well as distribution, of real estate in such trusts as is more fully set forth in
Sections 7131, and 7133,7141, and 7143 of the said PEF Code.
Additionally, jurisdiction resides in your Honorable Court as regards the power to grant and
declare relief where legal title to real estate is arguably otherwise inalienable as is more fully set
forth in Sections 8301 (3), 8302, 8304, and 8306 ofthe said PEF Code.
Jurisdiction also resides in your Honorable Court by virtue of the inherent equitable powers of
the Orphans' Court and the traditional and customary way of removing clouds on title such as
exist in the instant case. (See for example, W. Hall, A Manual on Title Searches and Passing
Titles in Pennsylvania (1934) with reference to the several methods of clearing up titles when a
petitioning party is in possession of land, as is set forth in Section 348 (c.) at page 246 as
follows:
"By a bill in equity to remove cloud on title. The relief afforded in this action is
by the directing of the instrument constituting the "cloud" or "blot" on
[Petitioners'] title to be delivered up and cancelled."
See, also, in this regard and as to the other issues set forth in this Petition more fully hereinbelow
the case ofOctoraro Water Co. v. Garrison, 271 Pa. 421, 427, 114 A. 638, 640 (1921) (copy
attached hereto as "Exhibit A").
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VENUE
4. Venue lies in Cumberland County, Pennsylvania as the situs of the two trusts herein involved
and as the county of residence of the settlors and grantors herein, as per the PEF Code, Sections
722, 724 (a); and 724 (b)(1)(i).
CHRONOLOGICAL HISTORY OF GRANTS.
CONVEYANCES. ESTABLISHMENT OF TRUSTS. AND THE LIKE
5. Dean P. Lorah and Dora R. Lorah, his wife, by their deed dated June 23, 1976 and recorded
the same date in the Office of the Recorder of Deeds in and for Cumberland County, in Deed
Book "Q," volume 26, page 587 granted and conveyed the instant premises to Petitioners (see a
certified true and correct copy of said deed attached hereto as "Exhibit B").
6. A true and correct description ofthe instant premises is as follows:
ALL THAT CERTAIN piece of parcel of land situate in the Township of Upper
Allen, County of Cumberland and State of Pennsylvania, bounded and described
as follows, to wit:
BEGINNING at a point on the northern line of Kim Acres Drive, said point
being referenced westwardly a distance of six hundred fifty-two and fifty-two
one-hundredths (652.52) feet from the centerline of Mt. Allen Drive; thence
along the northern line of Kim Acres Drive, South eighty-four (84) degrees fifty-
three (53) minutes West, a distance of one hundred (100) feet to a point; thence
North five (5) degrees seven (7) minutes West, a distance of one hundred thirty-
two (132) feet to a point; thence North eight-four (84) degrees fifty-three (53)
minutes East, a distance of ninety-four and seventy-eight one-hundredths (94.78)
feet to a point; thence South seven (7) degrees twenty-three (23) minutes East, a
distance of one hundred thirty-two and ten one-hundredths (132.10) feet to a
point on the northern line of Kim Acres Drive, the place of BEGINNING.
HAVING THEREON ERECTED a single brick dwelling known as No. 420
Kent Drive.
7. In or about the fall season of 1994, Petitioners attended a living trust seminar at the
Harrisburg Area Community College presented by among others, Thomas A. Hamilton, Esq., an
attorney then apparently registered and licensed to practice law within the Commonwealth of
Pennsy 1 vania.
8. As a result of various further representations made at said seminar, Petitioners, on advice of
the said Thomas A. Hamilton, proceeded to execute a quit-claim deed apparently from
themselves to a revocable property trust of which they served as Trustees and to themselves as
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trustees, the grantee clause reading: "The DeAngelis Revocable Property Trust, Joseph B.
DeAngelis and Janet DeAngelis, his wife (hereinafter called the Trustees). . .1"
9. The said quit-claim deed is dated May 10, 1995 and was recorded on June 8, 1995 in the
Recorder's Office aforesaid in Deed Book 123, page 312. (See a certified true and correct copy
of said deed attached hereto as "Exhibit C").
1 O. It is hornbook law that a Trust qua trust is not such an entity as can accept and hold a
conveyance of title, rather Trustees qua Trustees take and hold legal title for the benefit of the
beneficiaries of the trust who typically are regarded as owning or having equitable rights to the
thus bifurcated equitable title. (See, in this regard, 1 1. Palomar, Title Insurance Law (2004) at
Chapter 4, section 23; and the definitions of "Title," "equitable title," "legal title" in Black's Law
Dictionary (8th ed., 2004) at 1522 - 23 as well as the definitions of "trust" and "trustee" therein
at 1546 - 54).
11. The said quit-claim deed can charitably be called a curious amalgam of the old-style
common-law quit-claim deed format and the new "statutory form" of quit-claim deed. (See, in
this regard, 1 Ladner, Conveyancing in Pennsylvania (rev. 4th ed., Suppl. to 2005), at sections
9.02 and 9.07 and Forms 54 and 55 in volume 2 thereot). Nevertheless, Petitioners aver and
1 The use of trusts to hold property interests antedates the English common and goes back to at least Roman times.
Trusts have been used from time to time by most transactional/office attorneys for specified and limited purposes.
In the early 1950s there was an almost fad-like promotion and usage of revocable living trusts designed ostensibly to
avoid "probate" and estate settlement and administrative costs. In reality, the promotion of trusts on a wide scale
was generally combined with "attorney-bashing" and served as a way for financial salesmen and a few others to
promote the sale and maintenance of control over various financial instruments. Some of these various promotional
schemes led to charges for the unauthorized practice oflaw. As time went by and some of the trustors began to die
off, it became apparent that much of the ballyhoo and snake-oil promotion was simply false. The fad basically died
out and the use of these trusts went, for the most part, back into the hands of transactional / office attorneys where it
rightly belonged.
However, after the United States Supreme Court decided to overrule the State Bars and allow attorney advertising,
there was a resurgence of widespread promotion of revocable living trusts. In some instances, the promotional
means and flyers are even part of franchised operations. There have been a variety of sales methods employed
which vary from snake-oil ballyhoo to outright terror / fear and flagrant misrepresentation. Since much of this
promotion is now in the hands of attorneys, the general "attorney-bashing" has now often been modified to
"selective attorney-bashing" such as "your own attorney lacks the expertise to properly deal with these, etc."
Sometimes presenters go so far as to say "your own attorney will lie to you about these" - all of which is generally
designed to break the then present attorney-client bond. Otherwise, the presenter runs the significant risk that the
client would likely gladly accept the free meal and/or other inducements provided and then simply go to his own
attorney whom he would otherwise presumably trust to do the legal work for him.
The above comments are not aimed at all lawyers who prepare trusts nor at Mr. Hamilton, as trusts can often be a
valuable estate planning tool. Rather, the comments are aimed at those who act more like used car salesmen than
counselors and analysts. By appearance at least some of the more aggressive trust "salesmen" have reaped great
financial benefits by "selective attorney-bashing" and other related tactics. These assorted actions have now
attracted the attention of various state attorneys-general. A visit to the Pennsylvania Attorney-General's website
will show that approximately twenty (20) trust purveyors have been sued and/or prosecuted, including several
attorneys. The Attorney-General of Michigan, among others, has taken similar action. There are a large number of
books and articles on the subject. Among the most popular are Norman F. Dacey, How To Avoid Probate (1965)
and various later revised editions and John P. Huggard, J.D., Living Trust. Living Hell. Whv You Should Avoid
Living Trusts (1998).
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believe that the technically operative words of the release are effective to release if not
technically grant and convey Petitioners' interests in the premises from themselves as individuals
to themselves as Trustees of the said Trust.
12. The operative words of release in said quit-claim deed are as follows:
"WITNESSETH, That in conformity with the terms of a certain Declaration of
Trust executed by the Releasors [Petitioners] on the 17th day of December, 1994,
do by these presents release and forever Quit-Claim to ourselves as trustees under
the terms of such Declaration of Revocable Real Property Trust, all right, title,
interest, claim and demand whatsoever which we as Releasors [Petitioners] have
or ought to have in or to the property located at 420 Kent Drive. . . ."
13. The use of a quit-claim deed in this instance rather than a standard of grant and conveyance
is also curious in that: "Quitclaim deeds are used primarily to cure a defect in title, a questionable
title or to quiet a title affected by presumed or ambiguous interests in the grantor." Lesson 5 of
the Instructional Course of the Pennsylvania Land Title Institute called Fundamentals of
Pennsylvania Real Estate and Land Title Insurance Practice (1994 ed.).
14. The distinguishing characteristic of the quit-claim deed as it relates to any transfer is that it
transfers only the title or interest of the grantors rather than the property or the premises
themselves. Thus the quit-claim deed is not a deed of conveyance at all since it does not
transfer the property itself. (See 1 Ladner, Conveyancing in Pennsylvania (rev. 4th ed. Supp!.
To 2005), at section 9.02; and see, Greek Catholic Congregation of Borough ofOlyphant v.
Plummer, 338 Pa. 373, 12 A. 2d 435, 127 A. L. R. 1008 (1940) (Copy attached hereto as
"Exhibit D")). Thus, this manner of transfer in and of itself raises some issues as to the quality
and fullness of the rights and title to the actual property itself in the event of an attempted future
conveyance to any savvy third party, Petitioners having severed the chain of the warranty of title
previously running intact with the property2.
15. Additional problems arise in that Petitioners do not recollect having ever received a copy of
the Revocable Real Property Trust referred to in the said quit-claim deed. In any event,
Petitioners do not presently have a copy of the Trust.
16. One of the recitals to the aforesaid deed of May 10, 1995 states in pertinent part:
"This is a revocable transfer of property between the owners as grantors and the owners
as grantee beneficiaries and their lineal [sic] descendant [sic] children as contingent
beneficiaries, therefore the transfer is tax free."
2 During a phone conversation with Mr. Hamilton, counsel inquired of him as to whether he knew why so many
attorneys pushing trusts are using quit-claim deeds instead of the more standard deeds of grant and conveyance. His
theory was that since the use of such quit-claim deeds would bifurcate the title from the property so to speak, an
argument could be advanced that the transfer could be arguably not subject to realty transfer tax. The gist of the
argument would be that the transfer tax is on the transfer of property and not the mere release of an interest in title.
Counsel inquired of a now current employee and of a now former employee of the Realty Transfer Tax Division as
to whether they had ever heard such an argument advanced or addressed. The answer was no. They, like counsel, at
best, find this to be a strange argument and justification for a less than fully effective conveyance.
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17. The above recital, although not completely technically accurate, and although it could have
been more artfully drawn, seems to make sufficiently clear that Petitioners are the beneficiaries
of the said Revocable Real Property Trust.
18. However, without the original Declaration of Trust of December 17, 1994 there is no way to
confirm on the record in the Recorder of Deeds Office that there were and are no restrictions or
limitations on the Trustees general power of sale, exchange, or transfer. This creates an
impediment to and a problem for any future effort to grant and convey, assign, exchange, or
otherwise transfer the property and title to the premises. (See, regarding the general powers of
trustees to exercise their power over real estate when there are no restrictions or fetters imposed
by the Trust document, 2 Ladner, Conveyancing in Pennsylvania (rev. 4th ed., Supp!. to 2005) at
Section 22.10 which reads in pertinent part: "In general most of the statutory powers given to
trustees over real estate are substantially the same as those conferred on personal representatives.
Thus, unless otherwise provided in the trust instrument, a trustee has power to sell real estate at
public or private sale. . . as in the case of a personal representative." (emphasis added). See,
also in this regard, PEF Code, Section 7141. Ladner, at the same Section 22.10, further states in
pertinent part, "Where the trustee is not authorized by . . . the trust instrument to sell, or is denied
the power to do so by the trust instrument. . . he may sell for any purpose of administration or
distribution. . . or may exchange. . . any real estate, upon order of the court, after such notice
and upon such terms and security as the court may direct." (Emphasis added). See, also, in this
regard, PEF Code, Section 7133. Foran example of restrictive language as to sales in a
testamentary trust that led to a set aside of a sale of real estate by a trustee, see In re: Estate of
Banes, 452 Pa. 388, 305 A.2d 723 (1973) (copy attached hereto as "Exhibit E.")
19. It is standard procedure when filing a deed into Trustees in the Recorder's Office and
seeking an exemption from realty transfer tax to also provide a true and correct copy of the trust
instrument in question. This is so that the Department of Revenue may review the document as
to exactly whom the beneficiaries of any trust distribution are likely to be. The Department then
rules on the request for exemption. On August 26, 2005 Petitioners' Counsel spoke to Mr. Brian
Foster of the Pennsylvania Department of Revenue and was advised by him that the Department
shreds all such trust instruments approximately three (3) years from the date of submission.
20. Lack of a copy ofthe trust instrument to record with any future conveyances to prove that
there are no limitations or restrictions on the Trustees' power to sell or convey thus would
constitute a cloud upon Petitioners' title.
21. In an effort to find a means to cure such title problem and remove the cloud, counsel began a
search for Mr. Hamilton. Through assorted inquiries, counsel was able to track down Mr.
Hamilton. He is currently in Texas and is, as he termed it, dealing with "high-end" tax planning
and financial strategies, including off-shore vehicles. He now operates under the name of "Team
Hamilton." Mr. Hamilton originally had no recollection of providing any services to Mr. and
Mrs. DeAngelis regarding a trust and doubted and denied that he did until counsel supplied him
with various proofs of such activities on Mr. Hamilton's part. Such proofs included the
recording of the deed and related items by Mr. Hamilton. Based on assorted phone
conversations with Mr. Hamilton, counsel prepared an Affidavit for Mr. Hamilton to sign in
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front of a notary. Mr. Hamilton reviewed the proposed Affidavit, said he would make a "couple
of' minor adjustments and that he would be happy to sign. He later said he had signed and sent
the Affidavit to counsel. Despite repeated efforts by counsel and repeated guarantees by Mr.
Hamilton, counsel has not received the allegedly executed and notarized Affidavit. After several
months of such communications, counsel has now determined that optimism in this matter may
well be a form of delusional cowardice. (See representative items of correspondence attached
hereto as "Exhibit F.")
22. The AFFIDAVIT REGARDING THE TERMS AND CONDITIONS OF A LOST
REVOCABLE REAL PROPERTY TRUST prepared by counsel based on counsel's
discussions with Mr. Hamilton is attached hereto and incorporated herein by reference. (See
"Exhibit G.") Although, as immediately above related, it does not appear that a signed and
notarized copy is likely to be forthcoming, counsel nevertheless believes this AFFIDA VIT to be
true and accurate as to its contents. This averment is based not only on counsel's discussions
with Mr. Hamilton, per se, but also on counsel's own twenty (20) years plus experience in title
searching which has led him to request and examine many revocable living trust documents.
Rarely do special limitations appear and this is especially true of those resulting from sales
presentations. Most trusts generated by such sales presentations prove to be "cookie-cutter" and
genenc.
THE IRREVOCABLE TRUST
23. Subsequently, on April 26, 2000, as a result of another trust sales seminar, Petitioners
executed an additional Trust Agreement, titled "THE DeANGELIS F AMIL Y IRREVOCABLE
TRUST" with Petitioners as the Co-Settlors and as the Co-Trustees. The TRUST had been
prepared by Susan K. Candiello, Esq., then of the Law Offices of Gates & Associates, P.e., of
1013 Mumma Road, Suite 100, Lemoyne, P A 17043. (See a true and correct copy attached as
"EXHIBIT H.")
24. Approximately one week later, Petitioners, in their own individual rights and persons, and
not as co-Trustees of the aforesaid Revocable Real Property Trust nor in any other capacity
related to the said Revocable Real Property Trust, by their deed prepared by Ms. Candiello, dated
May 1,2000 and recorded May 9, 2000 in the Recorder's office aforesaid in Deed Book 220,
page 1055 granted and conveyed by a deed of special warranty the instant premises to
themselves as co-Trustees of the said Irrevocable Trust. (See a certified true and correct copy of
said deed attached hereto as "Exhibit I.")
25. The grantee clause in said deed reads: "Joseph B. DeAngelis and Janet DeAngelis, husband
and wife, Co-Trustees of the DeAngelis Family Irrevocable Trust dated April 26, 2000. . .
Grantees. "
26. The operative words of the grant and conveyance in said special warranty deed are as
follows:
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"WITNESSETH, that said [Joseph B. DeAngelis and Janet DeAngelis, his wife], for and
in consideration of the sum of One ($1.00) Dollar, lawful money of the United States of
America, well and truly paid by the said [Joseph B. DeAngelis and Janet DeAngelis,
husband and wife, Co-Trustees of the DeAngelis Family Irrevocable Trust dated April
26, 2000] to the said [Joseph B. DeAngelis and Janet DeAngelis, his wife], at or before
the sealing and delivery of these presents, the receipt whereof is hereby acknowledged,
has hereby granted, bargained, sold, aliened, enfeoffed, released, conveyed and
confirmed, and by these presents does grant, bargain, sell, alien, enfeoff, release, convey
and confirm unto the said [Joseph B. DeAngelis and Janet DeAngelis, husband and wife,
Co- Trustees of the DeAngelis Family Irrevocable Trust dated April 26, 2000], their heirs,
successors, and assigns, ALL THA T CERTAIN piece or parcel of land situate in the
Township of Upper Allen, County of Cumberland and State of Pennsylvania, bounded
and described as follows: . . . ."
27. THE above words of grant are the old common law words typically used to grant and
convey a full and absolute fee simple estate which includes the title to the property and the
property itself. (See, in this regard. 1 Ladner, Conveyancing in Pennsylvania, Sections 9.03 and
9.04 (d) (rev. 4th ed., Supp!. to 2005)).
28. The quit-claim deed aforesaid (See Paragraph 14 above) technically and likely practically
served only to release or transfer the title in and to the property which the Petitioners held in their
own individual right into themselves as Trustees of the aforesaid Revocable Trust. It is
hornbook law that once the title has been released or transferred out that the releasor or transferor
of that title has no further title to release, transfer or grant and convey and that any attempt to do
so is null and void. Thus, placing this latest deed on record from Petitioners in their own
individual capacity to Petitioners in their capacity as Trustees of the said Irrevocable Trust places
a cloud on title because only Petitioners in their capacity as Trustees of the said Revocable Trust
have any legitimate right or claim to be able to convey the now bifurcated title to the property, if
not the actual property itself.
29. Additional problems arise to affect the title herein because of the use of a quit-claim deed in
the first instance. As related above, Petitioners, by the use of the quit-claim deed, arguably
bifurcated the title and the property or premises and then transferred only their rights in the title
to themselves as Trustees of the Revocable Trust but not their rights in the property itself. Thus,
Petitioners arguably retained the property in themselves. A curious set of circumstances at
best which typically would be at most an interesting bar exam question.
30. However, in the present circumstances, the sequence of the aforesaid deeding raises another
issue. Since Petitioners arguably retained in themselves as individuals the property itself, if not
the title to it, they can arguably transfer the property by a subsequent deed even without
transferring the title thereto. By virtue of the use of the old common law words of grant, the use
of an old fashioned habendum clause, and by the use of the special warranty clause in said deed
to the Trustees of the said Irrevocable Trust, the Petitioners have managed to transfer a record
title into themselves as Trustees of the Revocable Trust and to subsequently transfer the technical
and perhaps real and practical ownership rights to quiet enjoyment and occupancy of the
property to themselves as Trustees of the Irrevocable Trust. (See, in regard to the covenants
arguably raised and the effect of a special warranty clause in the instant case, 1 Ladner,
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Conveyancing in Pennsylvania, Sections 9.03; 9.04 (d); 9.05 (a); 9.05 (b); and 9.05 (c) (rev. 4th
ed., Supp!. to 2005)).
31. In ordinary circumstances the use of a standard deed of grant and conveyance after the use
of a quit-claim deed would make no practical difference since the aforesaid rights in property
would be of no practical or monetary value or use without the title thereto. However, in the
present instance the placing of this arguably bifurcated right of property into the records of the
Recorder's Office constitutes a strange and bizarre form of cloud on title.
32. The DeAngelis Family Irrevocable Trust (See Copy attached hereto as "Exhibit H") contains
a number of relevant clauses which further complicate the issues at hand.
33. Initial transfers and additional transfers of principal into the trust are irrevocable. See
paragraphs 1.01 and 1.02, and especially paragraph 2.01.
34. Petitioners are not in a position to transfer any part of the principal or corpus of the
Irrevocable Trust to themselves as individuals. See paragraphs 4.01, 4.02, and 4.03.
35. Petitioners are, however, in a position "to disclaim, in whole or in part, prior to its
acceptance by the Trustee, any interests in property for any reason. . . ." (emphasis added) as is
set forth in paragraph 1.03. There is no time limit set in the Deed of Trust to disclaim the interest
in question. Additionally, to constitute a bar to a disclaimer "a prior acceptance must be
affirmatively proved. The mere lapse of time, with or without knowledge of the interest on the
part of the disclaimant, shall not constitute an acceptance." (emphasis added) per PEF Code
Section 6206 (a).
36. Petitioners are not learned in the law and relied upon advice of and preparation of documents
by various counsel in an effort to simplify their estate plans and property holdings. Petitioners
have not been able to form the necessary intent to make an acceptance of any bifurcated title or
property, assuming in the worst case that such bifurcation was, in fact, accomplished by the deed
into Petitioners as Trustees of the Irrevocable Trust.
37. Petitioners take the position herein that the deed into themselves as Trustees of the
Irrevocable Trust fails for lack of understanding and intent and because by the general custom
and tradition of curing clouds on title such as are present herein, the entire deed should be
delivered up, nullified, cancelled and voided in the records of the Office of the Recorder of
Deeds. (See in this regard, the statement of jurisdiction in paragraph 3, especially the reference
therein to Hall, at sect. 348( c) at page 246 and the quotation therefrom and the Octaroro case
attached hereto as "Exhibit A.")
38. Additional technical problems exist in that by Irrevocable Trust paragraphs 4.03 and 4.04,
Petitioners' five (5) adult children are not only the vested remaindermen of the Irrevocable Trust
but have a general power of appointment of the broadest nature, scope, and power without any
limitation as to the time or extent of its exercise. In laymen's terms the majority agreement of
the children can, at any time, result in their taking all of the assets of the trust unto themselves in
their own right, title and interest absolutely.
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39. The five (5) adult children of Petitioners are, to wit:
A.) Gregory B. DeAngelis, an adult individual offull capacity, who currently resides at 22 Ryan
Road, Cranbury, NJ 08512-3314, DOB: 11/18/1955.
B.) Todd A. DeAngelis, an adult individual of full capacity, who currently resides at 2175
Berryhill, Harrisburg, PA 17107, DOB: 11/24/1957.
C.) Drew 1. DeAngelis, an adult individual of full capacity, who currently resides at 16017
Greenfield Drive, Richmond, VA 23235, DaB: 6/4/1963.
D.) Jodi D. DeAngelis, an adult individual of full capacity, who currently resides at 16017
Greenfield Drive, Richmond, VA 23235, DOB: 11/2/1967.
E.) Taralyn 1. Bradley, an adult individual of full capacity, who currently resides at 2207
Canterbury Drive, Mechanicsburg, PA 17055, DOB: 1/23/1965.
40. All of the above five (5) children have read this Petition and its Prayer and are in full
agreement with it and Consent and Join in this Petition and the Prayer herein and are specifically
agreeable with and join in the part of the prayer asking to waive a hearing hereon. Evidence of
each child's Joinder herein and consent hereto is evidenced by the Consent and Joinder forms
attached hereto.
SUMMARY
41. Petitioners purchased a residence in 1976. In 1995 Petitioners executed a quit-claim deed
from themselves as individuals to themselves as Trustees of a Revocable Trust. The quit-claim
deed arguably technically and practically bifurcated the title and the property into separate
spheres of legal ownership. Such would normally be only an abstruse question of the most
technical nature and of a de mininis effect at most. However, Petitioners in 2000, placed on
record a deed of grant and conveyance with common law words of grant, the usual covenants
implied thereby, a habendum clause, and a special warranty. Ordinarily, if such a deed of grant
had been executed by Petitioners in the first instance, Petitioners would have taken full and
absolute title and all rights and interest in and to the property as Trustees of the Revocable Trust.
Thus the subsequent deed from Petitioners in their own right to themselves as Trustees of the
Irrevocable trust would have been wholly and absolutely void for having tried to convey that
which they did not have. However, Petitioners use of a quit-claim deed arguably retained certain
rights to the property itself in Petitioners independent of the title, thus enabling them to
technically convey such property rights to themselves as Trustees of the Irrevocable Trust. Thus
a somewhat ordinary cloud on title became even more technical and complex than would
typically be the case. Additionally, the terms of the Irrevocable Trust prevent Petitioners from
simply redeeding the property to themselves.
10
.
Thus, Petitioners, in any capacity, lack a complete or perfected good and marketable legal title in
that the rights of ownership, possession, and actual or constructive possession are arguably
scattered and divided by the instruments now of record. Additionally, Petitioners, in any
capacity, lack a marketable title in that, as set forth above, the title is uninsurable in the regular
course and at regular rates and clearly exposes the property and the title thereto to the hazards of
litigation. (See, in these several regards, 1 Ladner, Conveyancing in Pennsylvania (rev. 4th ed.,
Suppl. to 2005), Sections 2.05; 2.06; 2.07; and 2.08).
42. A surrendering up and cancellation of the said deed from Petitioners in their individual
capacity to Petitioners in their capacity as trustees of the aforesaid Irrevocable Trust will
eliminate a cloud on the bifurcated legal title created by the recording of said deed.
43. In an abundance of caution, a recorded disclaimer by Petitioners as Trustees of the aforesaid
Irrevocable Trust will prevent any legal right to the property or its occupancy from vesting in
Petitioners as Trustees and any equitable rights that would follow the legal rights from vesting in
the five (5) children as remaindermen of the said Irrevocable Trust. Further, such disclaimer
would result in such legal rights in the property remaining in Petitioners in their own right, the
same rights to the property having been bifurcated from the legal title by virtue of the aforesaid
quit-claim deed to Petitioners in their capacity as Trustees of the Revocable Real Property Trust
aforesaid.
44. The dual results of such a surrender and cancellation and of such a disclaimer would be to
put the legal title in the premises in Petitioners as Trustees of the Revocable Real Property Trust,
the equitable title in Petitioners as the beneficiaries of the said Revocable Trust and the legal
rights to the property in Petitioners in their own individual capacities.
45. That state of divided title would still be subject to a cloud in that no true and correct copy of
the original Revocable Trust can be found to show that there was no limitation or restriction on
the right of the Trustees of the Revocable Trust to grant and conveyor to otherwise transfer the
legal title to themselves or to anyone else. Such cloud can be cured by a decree recognizing and
stating that there are not any restrictions or limitations upon Petitioners' rights as Trustees of the
said Revocable trust to grant and conveyor otherwise transfer to themselves or anyone else the
legal title.
46. Such an order will then work to allow Petitioners to grant and conveyor otherwise transfer
to themselves as individuals the legal title currently held by themselves as Trustees of the
Revocable Trust. This will then reunify the legal and equitable titles as well as any arguable
technical legal rights in the property itself back into Petitioners in their individual capacity.
Thus, a complete or perfected good and marketable legal and equitable title would then be held
by Petitioners in their individual capacities. (A proposed deed form is attached hereto as "Exhibit
1. ")
WHEREFORE, Petitioners respectfully request and pray that your Honorable Court enter an
ORDER that:
11
(a) Joseph B. DeAngelis and Janet DeAngelis, his wife, in their capacities as Trustees of the
DeAngelis Family Irrevocable Trust, shall surrender and deliver up to the Recorder of Deeds in
and for Cumberland County, Pennsylvania that certain deed from Joseph B. DeAngelis and Janet
DeAngelis, his wife, to themselves as Trustees of the said Irrevocable Trust, dated May 1, 2000
and recorded May 9, 2000, recorded in the Recorder's Office aforesaid in Deed Book 220, Page
1055. Said deed shall then be marked "cancelled and void and of no further force or effect." The
Recorder shall then proceed to make such marginal notations and/or to record such other items as
the Recorder may request to show such cancellation in the record of his office and to see to it
that the same are properly indexed.
(b) Joseph B. DeAngelis and Janet DeAngelis, his wife, in their capacities as Trustees of the
DeAngelis Family Irrevocable Trust, shall prepare and execute a Disclaimer of any interest in or
to the property at 420 Kent Drive, Mechanicsburg, Upper Allen Township, Cumberland County,
Pennsylvania in a form recordable by the Recorder of Deeds either separately or by attachment
to the Deed referred to herein below. Such disclaimer shall be considered to bar and prevent any
interests in the said property from being accepted by or entering into the possession or ownership
of the said Joseph B. DeAngelis and Janet DeAngelis, his wife, as Trustees aforesaid, and shall
further prevent any right or interest in the said property from being considered or deemed to have
entered into the said Trust or as having vested legally or equitably in the five (5) aforesaid
children or anyone else as the remaindermen of said Irrevocable Trust.
(c) Any arguable interest in the said remaindermen in or to the said property as such
remaindermen is hereby nullified and made void. The remaindermen, as remaindermen of the
said Irrevocable Trust, are hereby forever barred from asserting any interest or right in or to the
said property as remaindermen of the said Irrevocable Trust.
(d) It is hereby conclusively determined that there were no restrictions or limitations on Joseph
B. DeAngelis and Janet DeAngelis, his wife, as Trustees of the DeAngelis Revocable Property
Trust executed December 17, 1994, and referred to in that certain quit-claim deed from Joseph B.
DeAngelis and Janet DeAngelis, his wife, in their own individual rights to Joseph B. DeAngelis
and Janet DeAngelis, as Trustees of the said Revocable Property Trust. Said deed was dated
May 10, 1995 and recorded on June 8, 1995 in the Recorders' Office aforesaid in Deed Book
123, Page 312. Petitioners are thus free to grant and conveyor otherwise transfer the legal title
they hold as Trustees of the said Revocable Property Trust in order to reunify the legal title,
equitable title and other rights in and to the said property at 420 Kent Drive, Mechanicsburg,
Upper Allen Township, Cumberland County, Pennsylvania.
(e) Petitioners are more specifically authorized and empowered to make, sign, seal, and deliver a
deed from themselves as Trustees of the said Revocable Trust to themselves as individuals in a
form substantially similar to that proposed deed attached to the Petition herein, for the purpose of
creating a complete or perfected good and marketable legal and equitable title and a title which
will incorporate and include with it all rights of property in and to the said property at 420 Kent
Drive, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania.
12
(f) The ORDER may be recorded along with such deed and/or the other instruments referred to
herein in the Recorder's Office, the office of the Register of Wills in and for Cumberland County
and/or any other Office where such recording may be deemed helpful and appropriate.
(g) In view of the nature and contents of the Petition and the affinity of the parties thereto, no
hearing on the Petition is deemed necessary by the Court.
(h) Makes such other findings, authorizations, empowerments, and approvals as your Honorable
Court deems appropriate in the circumstances.
Respectfully submitted by,
clu.~v ~ JtJJA 1;
Charles E. Shields, III, Esquire
6 Clouser Road
Mechanicsburg, P A 17055
(717) 766-0209
PA S. Ct. ID No. 38513
13
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF PENNSYLVANIA
DeANGELIS REVOCABLE REAL
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
VERIFICATION
I, JOSEPH B. DeANGELIS, Petitioner in the attached Petition concerning the
DeAngelis Revocable Real Property Trust and DeAngelis Family Irrevocable Trust as co-Trustee
of both Trusts and in my individual capacity, hereby verify that the facts recited are true and
correct to the best of my knowledge, information and belief. I make this verification subject to
penalty for unsworn falsification to authorities (18 Pa. C.S.A. Section 4904).
M. /7, ~tJ~
I
i " /
V ' . l, /1 G/c (
J,~~~~~: ;eA~GELIS
(j'
(~ '/
{'-
~ ~A~:!!T
Witness
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF PENNSYL VANIA
DeANGELIS REVOCABLE REAL
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06-
VERIFICA TION
I, JANET DeANGELIS, Petitioner in the attached Petition concerning the DeAngelis
Revocable Real Property Trust and DeAngelis Family Irrevocable Trust as co-Trustee of both
Trusts and in my individual capacity, hereby verify that the facts recited are true and correct to
the best of my knowledge, information and belief. I make this verification subject to penalty for
unsworn falsification to authorities (18 Pa. C.S.A. Section 4904).
d~~
Witness
~~~~I~
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
CONSENT. AGREEMENT AND JOINDER TO PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
WHEREAS, I am an adult and mentally competent child of the Petitioners in the above-
captioned matter; and
WHEREAS, I have been provided with a copy of the said Petition For A Recordable
Decree To Clear Clouds From Title And To Eliminate Eminent Exposure To The Hazards Of
Possible Litigation; and
WHEREAS, I have studied the said Petition and have made an independent
determination that the objectives stated therein are consistent with and beneficial to the interests
of Petitioners and am fully aware that under the said Petition I may be giving up some arguable
rights in the premises;
WHEREFORE, be it known hereby, that I, Gregory B. DeAngelis, do hereby conjlnt,
agree to, and join in the above-referenced Petition by affixing my hand and seal this t-/._
day of ~h tv ('.... y' \../ ,2006.
I
Witnessed by: _______ ~
~~ G~fnP~
Sworn to and subscribed to
~
'f day of
Before me this
h~ rV:(~"7
, 2006.
Notf:-:,":.:'t: SeCii .
, Jay M. Zimrnerr'cc.n. Notary Pub!lc I
I Upper A:len TWD. ClImberiand County I
. My Commiss;(:r~ :::xplres Mar. 16,2006 I
-~-- ---.-----.--...---~.----.-______J
I" Off
/2~ho
, J;:; '/
ft.....{;:~t f '~n~e.2.~-A'..,--.-J
,/ ,/
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06-
CONSENT. AGREEMENT AND JOINDER TO PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
WHEREAS, I am an adult and mentally competent child of the Petitioners in the above-
captioned matter; and
WHEREAS, I have been provided with a copy of the said Petition For A Recordable
Decree To Clear Clouds From Title And To Eliminate Eminent Exposure To The Hazards Of
Possible Litigation; and
WHEREAS, I have studied the said Petition and have made an independent
determination that the objectives stated therein are consistent with and beneficial to the interests
of Petitioners and am fully aware that under the said Petition I may be giving up some arguable
rights in the premises;
WHEREFORE, be it known hereby, that I, Todd A. DeAngelis, do hereby consent,
agree to, an? join in the above-referenced Petition by affixing my hand and seal this ~~'
day of ~ ,2006.
Witnessed by: ~(#Ill~ < _
azd~J(r:,4tfL~1P _ ~
T D A. DeANGELIS
Sworn to and subscribed to
Before me this W day of
tl~~- ,2006.
~
I%tt6r &&~r
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS FAMILY
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
CONSENT. AGREEMENT AND JOINDER TO PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
WHEREAS, I am an adult and mentally competent child of the Petitioners in the above-
captioned matter; and
WHEREAS, I have been provided with a copy of the said Petition For A Recordable
Decree To Clear Clouds From Title And To Eliminate Eminent Exposure To The Hazards Of
Possible Litigation; and
WHEREAS, I have studied the said Petition and have made an independent
determination that the objectives stated therein are consistent with and beneficial to the interests
of Petitioners and am fully aware that under the said Petition I may be giving up some arguable
rights in the premises;
WHEREFORE, be it known hereby, that I, Drew J. DeAngelis, do hereby consent, agree
to, andjoin in the above-referenced Petition by affixing my hand and seal this 8-t<. day of
~t:>N1 ' 2006.
Witnessed by:
2t'e~
~~-
DREW J. De NGELIS 0-
-
Sworn to and subscribed to
Before me this ~ day of
J) bf\ UO.JI U.,. , 2006.
~ .
{~~~~ . . ,.
rn~ LG'-'YY\iYY\\~l.C5Y\ &pL~~: N~Ib.Qf) 3C~ ~1Q'l
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06-
CONSENT. AGREEMENT AND JOINDER TO PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
WHEREAS, I am an adult and mentally competent child of the Petitioners in the above-
captioned matter; and
WHEREAS, I have been provided with a copy of the said Petition For A Recordable
Decree To Clear Clouds From Title And To Eliminate Eminent Exposure To The Hazards Of
Possible Litigation; and
WHEREAS, I have studied the said Petition and have made an independent
determination that the objectives stated therein are consistent with and beneficial to the interests
of Petitioners and am fully aware that under the said Petition I may be giving up some arguable
rights in the premises;
WHEREFORE, be it known hereby, that I, Jodi D. DeAngelis, do hereby consent, agree
to, and jo!n in the above-referenced Petition by affixing my hand and seal this :3rd day of
~ ))n Itl Fl. / ' 2006.
Witnessed by:
~!
'/.11. t .ltvl
P- /d:/!if6&J
Sworn to and subscribed to
Before me this 3.c.E day of
k~J'r. ,2006. i
a~dv f~~19iP
, ,
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
CONSENT. AGREEMENT AND JOINDER TO PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS
FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE
TO THE HAZARDS OF POSSIBLE LITIGATION
WHEREAS, I am an adult and mentally competent child of the Petitioners in the above-
captioned matter; and
WHEREAS, I have been provided with a copy of the said Petition For A Recordable
Decree To Clear Clouds From Title And To Eliminate Eminent Exposure To The Hazards Of
Possible Litigation; and
WHEREAS, I have studied the said Petition and have made an independent
determination that the objectives stated therein are consistent with and beneficial to the interests
of Petitioners and am fully aware that under the said Petition I may be giving up some arguable
rights in the premises;
WHEREFORE, be it known hereby, that I, Taralyn 1. Bradley, do hereby consent, agree
to,JtI1djoin in the above-referenced Petition by affixing my hand and seal this .,3rd day of
(j~ ,2006.
Witnessed by:
Utdu f<~.i4~ ~ 9- ~
TARALYNJ.BRADLEY
Sworn to and subscribed to
Before me this W day of
Ilkr ,2006.
~tdr~~&t)
L' ri
~~,.~~,.
Iv
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF JOSEPH B. DeANGELIS
1. On or about the 17M) day of ~r- , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngeli#,' his wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINA TE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am one of the said Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I am not indigent, necessitous, nor impoverished.
5. I have so far as I understand matters, never formed any intent to, nor do I believe I have
accepted any benefits from or in conjunction with the said IRREVOCABLE TRUST with
regard to the said premises or the title thereto.
6. I, as Co-Trustee of the said IRREVOCABLE TRUST, desire to officially disclaim any
and all legal and/or equitable rights, titles, and/or interests that I might arguably have in or to the
said residential premises by means of said IRREVOCABLE TRUST and the aforesaid certain
deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I JOSEPH B.
DeANGELIS, as Co-Trustee of the aforesaid IRREVOCABLE TRUST, do hereby disclaim
any and all legal and/or equitable rights, titles and/or interests that I as such Co-Trustee might
arguably have in or to the said residential premises at 420 Kent Drive, Mechanicsburg, Upper
Allen Township, Cumberland County, Pennsylvania by means of the aforesaid
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
2006.
I have hereunto set my hand and seal this /71tt day of
~
~!t~~
Witness
'^,
C~, J~A~;: i3' ti ([/1 y l" .
rPH tl. DeANGELIS
'\../~
1L~~
Witness
COMMONWEAL TH OF PENNSYL VANIA)
) SS:
COUNTY OF CUMBERLAND )
On this, the /71Q day of ~ . 2006, before me, the unders;gned
officer, personally appeared JOSEPH B. DeA ELlS, who being duly sworn according to law,
deposes and says that the foregoing Disclaimer is his act and deed and that he desires the same to be
recorded as such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
~fA&;zzr
Notary Public
My commission expires:
(SEAL)
COMMONWEALTH OF PENNSYLVANIA
NotarIal Seal
Charles E. Shields III, Nolary Pl.tlIic
Monroe Twp., Clmbertand ColIlty
My QxnrnIssion Expires June 20, 2008
Member, Pennsylvania Association Of Notaries
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS FAMILY
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF JANET. DeANGELIS
1. On or about the a...o day of ~ ' A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngelis, his wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am one ofthe said Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I am not indigent, necessitous, nor impoverished.
5. I have so far as I understand matters, never formed any intent to, nor do I believe I have
accepted any benefits from or in conjunction with the said IRREVOCABLE TRUST with
regard to the said premises or the title thereto.
6. I, as Co-Trustee of the said IRREVOCABLE TRUST, desire to officially disclaim any
and all legal and/or equitable rights, titles, and/or interests that I might arguably have in or to the
said residential premises by means of said IRREVOCABLE TRUST and the aforesaid certain
deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I JANET B. DeANGELIS,
as Co-Trustee of the aforesaid IRREVOCABLE TRUST, do hereby disclaim any and all legal
and/or equitable rights, titles and/or interests that I as such Co-Trustee might arguably have in or
to the said residential premises at 420 Kent Drive, Mechanicsburg, Upper Allen Township,
Cumberland County, Pennsylvania by means of the aforesaid IRREVOCABLE TRUST and the
aforesaid certain deed of conveyance.
2006.
I have hereunto set my hand and seal this :h.-cl day of R6tc-<"'-<-f_
t7
~~1d((L .
A ET. DeANGELIS ~
t!ltttltP. &~
Witness
4~b'~
Witness
COMMONWEAL TH OF PENNSYL VANIA)
) SS:
COUNTY OF CUMBERLAND )
On this, the ~~L day of ~ , 2006, before me, the undersigned
officer, personally appeared JANET DeANGELIS, who being duly sworn according to law, deposes
and says that the foregoing Disclaimer is her act and deed and that she desires the same to be recorded as
such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
tJM~~&p
Notary Public
My commission expires:
(SEAL)
.
.
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYL VANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF GREGORY B. DeANGELIS
1. On or about the ~ ti day of ;:;... 6 (\~c..V' 't , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngelis, His wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am an adult and mentally competent natural born child of the whole blood of the said
Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I have read the said PETITION and have signed and have had filed a CONSENT
AGREEMENT AND JOINDER TO PETITION FOR A RECORDABLE DECREE TO
CLEAR CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO
THE HAZARDS OF POSSIBLE LITIGATION, by which I have joined in said PETITION
and in the PRA YER thereof.
5. I am not indigent, necessitous, nor impoverished.
6. I have accepted no benefits from or in conjunction with the said IRREVOCABLE
TRUST.
7. I desire to officially disclaim any and all legal and/or equitable rights, titles, and/or
interests that I might arguably have in or to the said residential premises by means of said
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I GREGORY B.
DeANGELIS, the natural born child of the whole blood of the said Joseph B. DeAngelis and
Janet DeAngelis, his wife, do hereby disclaim any and all legal and/or equitable rights, titles
and/or interests that I might arguably have in or to the said residential premises at 420 Kent
Drive, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania by means of
the aforesaid IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
11Jl'! r
I have hereunto set my hand and seal this..., day of ,t,.1'l.u"Vty'
2006.
Wi~~~
~ 7//
/). /L! /~
L-llZb .
Witness
~y1!2~
:
..
COMMONWEAL TH OF PENNSYL VANIA)
)
COUNTY OF CUMBERLAND )
SS:
On this, the '/114 day of r&1"LL/ ~'l-t" , 2006, before me, the undersigned
officer, personally appeared GREGORY B. DeANGELIS, who being duly sworn according to law,
deposes and says that the foregoing Disclaimer is his act and deed and that he desires the same to be
recorded as such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
~......~~?
(:;:::,""'c:~."._~
Notary Public
,.......
My commission expires: Z- 7- 2~c;o
(SEAL)
I
I
Kirk M Wi~r N<~:";:
Upper All . ".c, O.2ry Fubr'c
en Twn r-. '
Myr--, "-', ~UlTI')"'H2nd
._ ".A),rnm.i,':.'~Jon '. ~~e~~ I I
~.
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF TODD A. DeANGELIS
1. On or about the ~ day of ~ , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngelis, his wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am an adult and mentally competent natural born child of the whole blood of the said
Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I have read the said PETITION and have signed and have had filed a CONSENT
AGREEMENT AND JOINDER TO PETITION FOR A RECORDABLE DECREE TO
CLEAR CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO
THE HAZARDS OF POSSIBLE LITIGATION, by which I have joined in said PETITION
and in the PRAYER thereof.
5. I am not indigent, necessitous, nor impoverished.
6. I have accepted no benefits from or in conjunction with the said IRREVOCABLE
TRUST.
7. I desire to officially disclaim any and all legal and/or equitable rights, titles, and/or
interests that I might arguably have in or to the said residential premises by means of said
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I TODD A. DeANGELIS,
the natural born child of the whole blood of the said Joseph B. DeAngelis and Janet DeAngelis,
his wife, do hereby disclaim any and all legal and/or equitable rights, titles and/or interests that I
might arguably have in or to the said residential premises at 420 Kent Drive, Mechanicsburg,
Upper Allen Township, Cumberland County, Pennsylvania by means of the aforesaid
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
I have hereunto set my hand and seal this ~/ day of ~__
2006. ~
t'kk 8~141lC Pi" . -~)
TODD A. DeANGELIS
~
Witness
,-:<,'. , ::7
/" / // // /. .
(C.. L (t;;&{~L(~f;%/a'dt?,;(':?'GL---
Witness
COMMONWEAL TH OF PENNSYL VANIA)
) SS:
COUNTY OF CUMBERLAND )
On this, the ~&'I day of ~d.<.->-- , 2006, before me, the undersigned
officer, personally appeared TODD A. DeANGELtS, who being duly sworn according to law, deposes
and says that the foregoing Disclaimer is his act and deed and that he desires the same to be recorded as
such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
~pAd'~
Notary Public
My commission expires:
(SEAL)
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF DREW J. DeANGELIS
#
1. On or about the () day of t:e-k>N~ , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngeli~is wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINA TE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am an adult and mentally competent natural born child of the whole blood of the said
Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I have read the said PETITION and have signed and have had filed a CONSENT
AGREEMENT AND JOINDER TO PETITION FOR A RECORDABLE DECREE TO
CLEAR CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO
THE HAZARDS OF POSSIBLE LITIGATION, by which I have joined in said PETITION
and in the PRAYER thereof.
5. I am not indigent, necessitous, nor impoverished.
6. I have accepted no benefits from or in conjunction with the said IRREVOCABLE
TRUST.
7. I desire to officially disclaim any and all legal and/or equitable rights, titles, and/or
interests that I might arguably have in or to the said residential premises by means of said
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I DREW J. DeANGELIS,
the natural born child of the whole blood of the said Joseph B. DeAngelis and Janet DeAngelis,
his wife, do hereby disclaim any and all legal and/or equitable rights, titles and/or interests that I
might arguably have in or to the said residential premises at 420 Kent Drive, Mechanicsburg,
Upper Allen Township, Cumberland County, Pennsylvania by means of the aforesaid
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
I have hereunto set my hand and seal this () H- day of ~VVP\l/
2006. (
2re~~.iwvJ
Witness
~~)W ~raJl
ttn s
~1~P
DREW J. De NGELIS
STATEOF VUL~lmLQ
COUNTY OF B Lry~~ 0
../
)
)
)
SS:
On this, the ~ day of , 2006, before me, the undersigned
officer, personally appeared DREW J. DeANGELIS, wh eing duly sworn according to law, deposes
and says that the foregoing Disclaimer is his act and deed and hat he desires the same to be recorded as
such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
~ry~ m L0.~
ot ry Public
My commission expires: tJDJ)J)'ntJu'L-- 'W /';), 00 ?;"
(SEAL)
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS F AMIL Y
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06 -
DISCLAIMER OF JODI D. DeANGELIS
1. On or about the JrJ.- day of RbYlA{{YLo' , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngelis, his wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINA TE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am an adult and mentally competent natural born child of the whole blood of the said
Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I have read the said PETITION and have signed and have had filed a CONSENT
AGREEMENT AND JOINDER TO PETITION FOR A RECORDABLE DECREE TO
CLEAR CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO
THE HAZARDS OF POSSIBLE LITIGATION, by which I have joined in said PETITION
and in the PRAYER thereof.
5. I am not indigent, necessitous, nor impoverished.
6. I have accepted no benefits from or in conjunction with the said IRREVOCABLE
TRUST.
7. I desire to officially disclaim any and all legal and/or equitable rights, titles, and/or
interests that I might arguably have in or to the said residential premises by means of said
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, I JODI D. DeANGELIS,
the natural born child of the whole blood of the said Joseph B. DeAngelis and Janet DeAngelis,
his wife, do hereby disclaim any and all legal and/or equitable rights, titles and/or interests that I
might arguably have in or to the said residential premises at 420 Kent Drive, Mechanicsburg,
Upper Allen Township, Cumberland County, Pennsylvania by means of the aforesaid
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
r--
{--( bn \. a {l. j
I have hereunto set my hand and seal this
,..'~
jw
day of
2006.
~~.t.~
(=-~")cll' lO &0 l'I(({;y/
JODI D. {;\NGELIS
~. " /,;/;7
/lrYh{~t:l..a~C?-r;U''-''
Witness
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF CUMBERLAND )
On this, the :3.u! day of ~ ,2006, before me, the undersigned
officer, personally appeared JODI D. DeANGEL , who being duly sworn according to law, deposes
and says that the foregoing Disclaimer is her act and deed and that she desires the same to be recorded as
such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
~/~,,-
Notary Public
My commission expires:
(SEAL)
INRE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
COMMONWEAL TH OF
DeANGELIS REVOCABLE REAL
PENNSYLVANIA
PROPERTY TRUST;
DeANGELIS FAMILY
IRREVOCABLE TRUST;
JOSEPH B. DeANGELIS
AND JANET DeANGELIS
HIS WIFE, Co-TRUSTEES
OF BOTH ABOVE TRUSTS
ORPHANS' COURT DIVISION
NO. 21 - 06-
DISCLAIMER OF TARALYN J. BRADLEY
1. On or about the 3 rd. day of j ~ , A.D. 2006,
Petitioners, Joseph B. DeAngelis and Janet DeAngelis, his wife, who reside at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania, filed a PETITION
FOR A RECORDABLE DECREE TO CLEAR CLOUDS FROM TITLE AND TO
ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF POSSIBLE LITIGATION
in an effort to, inter alia, clear a cloud from the title to their said residential property.
2. I am an adult and mentally competent natural born child of the whole blood of the said
Petitioners.
3. I am aware that I may arguably have some rights, legal and/or equitable, in or to the said
residential premises by virtue of a certain Trust styled "THE DeANGELIS F AMIL Y
IRREVOCABLE TRUST" and by the recording of a certain deed into that said TRUST as is
more fully set forth at large, most particularly, in Paragraphs 23 through 40, in the said
PETITION.
4. I have read the said PETITION and have signed and have had filed a CONSENT
AGREEMENT AND JOINDER TO PETITION FOR A RECORDABLE DECREE TO
CLEAR CLOUDS FROM TITLE AND TO ELIMINATE EMINENT EXPOSURE TO
THE HAZARDS OF POSSIBLE LITIGATION, by which I have joined in said PETITION
and in the PRAYER thereof.
5. I am not indigent, necessitous, nor impoverished.
6. I have accepted no benefits from or in conjunction with the said IRREVOCABLE
TRUST.
7. I desire to officially disclaim any and all legal and/or equitable rights, titles, and/or
interests that I might arguably have in or to the said residential premises by means of said
IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
NOW THEREFORE, intending to be legally bound hereby, r TARALYN J.
BRADLEY, the natural born child of the whole blood of the said Joseph B. DeAngelis and Janet
DeAngelis, his wife, do hereby disclaim any and all legal and/or equitable rights, titles and/or
interests that r might arguably have in or to the said residential premises at 420 Kent Drive,
Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania by means of the
aforesaid IRREVOCABLE TRUST and the aforesaid certain deed of conveyance.
r have hereunto set my hand and seal this J re:t day of j ~
2006.
~ !~a1P
Witness
~J (hL~
TARALYN J. B DLEY
;i"//', //'#'j.".. . . .' /
-( it {. 'i;',,/{ c: ((/( / V' 'c::Ct:~c::U ~
Witness
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF CUMBERLAND )
3rd ~-,r
On this, the \.-, day of ~ ' 2006, before me, the undersigned
officer, personally appeared T ARAL YN J. BRADLEY, who being duly sworn according to law,
deposes and says that the foregoing Disclaimer is her act and deed and that she desires the same to be
recorded as such.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day and year
aforesaid.
&t,t4 I! ~~)~
Notary Public
My commission expires:
(SEAL)
EXHIBIT A
PA-CS (Pennsylvania Cases)
114 A. 638
I
Date of Printing: Aug 27, 2005
(Cite as: 271 Pa. 421, 114 A. 638)
271 Pa. 421, 114 A. 638
Supreme Court of Pennsylvania.
OCTORARO WATER CO.
v.
GARRISON et al.
July 1, 1921.
Bill by the Octoraro Water Company against F.
Lynwood Garrison and others. Decree for
complainant, and defendants appeal.
Affirmed.
West Headnotes
Mines and Minerals €=;;:;>55(5)
260105(5)
In a deed conveying land described by metes and
bounds, and also all the mining rights on the lands of
grantor situated in two designated counties in
Pennsylvania and in Maryland, lying along a creek,
the limitation of the rights to those lying along the
creek applies only to the lands in Maryland, and the
deed conveys all mining rights in the designated
counties in Pennsylvania.
Mines and Minerals €=;;:;>55 (5)
260k55(5)
The written proceedings by which trustees were
authorized by a foreign court to convey the trust
property to plaintiff, and which clearly showed an
intention to transfer to plaintiff all the mining rights
of the trust estate in two designated counties in
Pennsylvania, confirms the construction of the deed
that the limitation of such rights to those lying
along the creek applied only to the rights in
Maryland.
Quieting Title €=;;:;>7 (2)
318k7(2)
A conveyance purporting to grant to defendants rights
which the grantor had previously granted to plaintiff
answers the definition of the term "cloud on title,"
which is a title or incumbrance apparently valid, but
in fact invalid.
**638 Appeal from Court of Common Pleas,
Lancaster County; A. B. * 422 Hassler, judge.
Argued before FRAZER, WALLING, SIMPSON,
KEPHART, SADLER, and SCHAFFER, JJ.
John N. Groff and John E. Malone, both of
Lancaster, for appellants.
John M. Coyle, of Lancaster, for appellee.
*423 SCHAFFER, J.
In this bilI in equity plaintiff alleged that three
certain deeds, one to F. Lynwood Garrison, another
by him to Chrome Mining Company, and the third
from the receivers of the Tyson Mining Company to
Chrome Mining Company, constitute a cloud on
complainant's title, and prays they be set aside and
annulled. The chancellor, after hearing, granted the
relief prayed for, and defendants have appealed.
The controversy in its final analysis, gets down to
the construction of a single paragraph in the deed to
plaintiff; its construction being helped and made
indubitable by giving consideration to the
circumstances leading up to the execution of this deed
and the one to the defendant Garrison, as evidenced by
certain other writings.
Jesse Tyson, surviving trustee of Isaac Tyson, Jr.,
in pursuance of the decree of the circuit court of
Baltimore City, Md., on December 13, 1904,
conveyed to plaintiff a tract of 461.8 acres of land
situated in Chester county, this state. In addition to
the land, which was described by metes and bounds,
the deed contains this further grant:
'Together with all water rights in said Octoraro
creek belonging or appertaining to the * 424
premises above described, and also all and singular
the mineral, mining, water, and other rights and
privileges in said Octoraro creek and in and upon
the lands situate in both Chester and Lancaster
counties, Pennsylvania, and in Maryland, lying in,
along said Octoraro creek, of whatsoever nature and
by whomsoever granted, reserved, acquired, and
owned by the said Isaac Tyson, Jr., during his
lifetime, the Tyson Mining Company, and the said
executors and trustees or the survivor of them.'
* * 639 If by the foregoing plaintiff acquired aU the
mining rights and privileges in and upon the lands
situate in both Chester and Lancaster counties, and in
addition such rights in Maryland, 'lying in, along
said Octoraro creek,' as the grantor was competent to
convey, then plaintiff is entitled to the relief it seeks;
while, on the other hand, if the expression 'lying in
along said Octoraro creek' qualifies not only the word
'Maryland' but also the words 'the lands situate in
both Chester and Lancaster counties,' plaintiff fails to
make out its case. In other words, if the mining
rights conveyed both in Chester and Lancaster
counties and in Maryland were those lying in and
along Octoraro creek, plaintiff can assert no rights
against defendants, who do not claim anything in ,md
along Octoraro creek, but do claim mining rights
under their grants in lands in Lancaster county not
Page 1
PA.CS (Pennsylvania Cases)
114 A. 638
Date of Printing: Aug 27, 2005
along Octoraro creek; whereas, if by the paragraph
quoted all the mineral rights of the grantor in Chester
and Lancaster counties were conveyed to plaintiff,
then defendants took nothing by the conveyance
which they produce, and their deeds purporting to
convey that which had already been assured to
plaintiff are a cloud on its title, which it has the right
to have removed.
As before stated, the deed to plaintiff is dated
December 13, 1904, and is from Jesse Tyson,
surviving trustee of the estate of Isaac Tyson, Jr.
Thirteen years later on November 16, 1917, Richard
H. Pleasants, as substituted trustee of the estate of
Isaac Tyson, Jr., conveyed to F. *425 Lynwood
Garrison, one of defendants, all the mining rights and
privileges in Lancaster county, belonging to the
estate of Isaac Tyson, Jr., and particularly those
reserved in three deeds for lands in that county not in
and along Octoraro creek. Garrison, on February 25,
1918, conveyed the mining rights thus acquired to
the Chrome Mining Company, the real appellant.
On June 28, 1918, Columbus O'Donnell Lee, Jacob
Lindley and Richard H. Pleasants receivers of the
Tyson Mining Company, executed a quitclaim deed
to the Chrome Mining Company for any interest that
the Tyson Mining Company may have in the mining
rights conveyed to the former. It is these three deeds
that plaintiff avers are a cloud on its title, and which
it seeks to have annulled.
With the thought in mind that when Garrison
acquired whatever rights he obtained by the deed from
Pleasants in 1917 the deed to plaintiff had long been
of record, of which he had notice, it may be well to
look into the proceedings that led up to Garrison's
deed, which are part of the record and were conducted
in the circuit court of Baltimore. In the first place,
the trustees of the Isaac Tyson, Jr., estate had been
discharged by the court after the conveyance to
plaintiff upon their allegation that they had disposed
of all the property belonging to the estate; so a new
trustee had to be raised to make the conveyance to
Garrison. It was set forth in the petition for the new
trustee that the estate made no claim to any mining
rights, but that Garrison offered to pay to the estate
$100 for a grant of its interest in them in Lancaster
county, 'notwithstanding the fact that he has been
advised that all such interests have been disposed of
and that said estate makes no claim thereto.' The
petitioner asked only for an order to sell 'such
uncertain mining rights and claims' as the estate
might possess; and in his deed, for the consideration
named, the substituted trustee conveyed only the
mining rights and privileges 'which stilI remain a
part of the property of the said Isaac Tyson, Ir.' The
purchaser * 4 2 6 necessarily knew that what he was
acquiring was enveloped in doubt, and must have
realized he was buying a lawsuit.
[1] Agreeing with the chancellor who heard this
case, we are satisfied the proper construction of
plaintiffs deed is that for which it contends; that the
language of the grant clearly vests in plaintiff all
mining rights in Chester and Lancaster counties
which were possessed by its grantor, and that these
rights are not in those two counties limited, as they
are in the state of Maryland, to such as are in and
along Octoraro creek. If, however, there were doubt
on the question after reading the deed, a study of the
Writings which were preliminary to and led up to the
deed will resolve all doubts in plaintiffs favor.
[2] In the written agreement of sale with plaintiffs
representative, Huy, it is set forth that three things
are to be acquired: (1) The tract of land; (2) all the
land in Chester and Lancaster counties in which the
seller merely holds the mineral right; (3) all mineral
rights in other lands abutting on Octoraro creek.
When we look at the deed these three things are
conveyed--the tract of land, the mining rights upon
lands situate in Chester and Lancaster counties, and
the mineral rights in other lands abutting on Octoraro
creek, which were those in Maryland. In the petition
of the trustee to the circuit court of Baltimore for
authority to make the sale, he set forth that he had
received an offer from plaintiffs representative for the
land, 'provided, that at the same time all the mineral
rights and water rights owned by your petitioner in
lands located in either Chester or Lancaster counties,
in said state, are conveyed to said H. F. Huy free of
cost,' and in the decree of sale the court ordered the
trustee to convey the land 'together with all the
mineral rights and water rights belonging to said
petitioner in either Chester or Lancaster counties.'
There can be no question, in the light shed *427 by
these papers on the deed, that the instrument conveys
what plaintiff contends it does.
* * 640 The only result of the deed to Garrison was
to put a blot upon plaintiffs title, not to vest
anything in him or those claiming from him.
Nothing so certainly answers the definition of the
term 'cloud on title' as the placing on record of a deed
for that which another owns-- a grant which, although
it assumes to convey something, in reality conveys
nothing at all.
[3] The technical term 'cloud on title' is thus
defined:
Page 2
I
PA-CS (Pennsylvania Cases)
114 A. 638
Date of Printing: Aug 27, 2005
'A cloud upon title is a title or incumbrance
apparently valid but in fact invalid.' Words and
Phrases, First Series, vol. 2, p. 1233.
'A cloud on title has been defined as a semblance of
title, either legal or equitable, or a claim of a right
in lands, appearing in some legal form, which is,
in fact, invalid, or which it would be inequitable to
enforce.' 5 Ruling Case Law, 634.
'The general rule is that, if the title against which
relief is prayed is of such a character that, if
asserted by action, and put in evidence, it would
drive the true owner of the property to the
production of his own title in order to establish a
defense, it constitutes a cloud which he has a right
to have removed. The rule is that relief will be
granted in equity when the complainant shows a
perfect title, legal or equitable, and the title of the
defendant is shown to be invalid.' 5 Ruling Case
Law, 657.
'The jurisdiction of a court of equity to remove
clouds from title is an independent Source or head
of jurisdiction, and whenever a deed or other
instrument exists which may be vexatiously or
injuriously used against a party, after the evidence
to impeach or invalidate it is lost, or which may
throw a cloud or suspicion over his title or
interest, * * * a court of equity will afford relief by
directing the instrument to be delivered up and
canceled.' Heppenstall v. Leng, 217 Pa. 491, 66
At!. 991, 12 L. R. A. (N. S.) 652; Dull's Appeal,
113 Pa. 510, 6 At!. 540; Sears v. Scranton Trust
Co., 228 Pa. 126, 77 At!. 423, 20 Ann. Cas.
1145.
In reaching our conclusion as to the correct
construction of plaintiffs deed, we have disregarded
the oral testimony *428 as to what took place
before the execution of the agreement of sale;
plaintiffs rights find their vindication in its deed and
in the undisputed writings which led up to it. What
has been said disposes of the case.
All the assignments of error are overruled, and the
decree is affirmed, at appellants' cost.
271 Pa. 421, 114 A. 638
END OF DOCUMENT
Page 3
Date of Printing: AUG 27,2005
KEYCITE
HOctoraro Water Co. v. Garrison, 271 Pa. 421, 114 A. 638 (Pa., Jul 01, 1921)
History
,Direct History
Octoraro Water Co. v. Garrison, (Pa.Com.Pl. 1920) (TEXT NOT AVAIh~LE
ON WESTLAW)
Affirmed by
=> 2 Octoraro Water Co. v. Garrison, 271 Pa. 421, 114 A. 638 (Pa.
Jul 01, 1921)
Page 1
Date of Printing: AUG 27,2005
KEYCITE
HOctoraro Water Co. v. Garrison, 271 Pa. 421, 114 A. 638 (Pa., Jul 01, 1921)
Ci ting References
Positive Cases CU.S.A.)
***
Discussed
1 Liddick v. Louden, 1945 WL 1888, *8+, 52 Pa. D. & C. 402, 413+
(Pa.Com.PI. 1945) "
** Cited
2 Frontage, Inc. v. Allegheny County, 162 A.2d 1, 6, 400 Pa. 249, 257
(Pa. Jun 03, 1960)
3 Bank of Pittsburgh v. Purcell, 133 A. 31, 32, 286 Pa. 114, 117 (Pa.
Apr 12, 1926)
4 Heller v. Fishman, 123 A. 311, 314, 278 Pa. 328, 335 (Pa. Jan 07,
1924)
5 Goldstein v. Markovitz, 119 A. 739, 740, 276 Pa. 46, 48 (Pa. Jan 03,
1923)
6 Onorato v. Carlini, 116 A. 387, 388+, 272 Pa. 489, 492+ (Pa. Jan 03,
1922)
7 Sattler v. Philadelphia Title Ins. Co., 162 A.2d 22, 25, 192
Pa.Super. 337, 342 (Pa.Super. Jun 15, 1960)
8 Barrows v. Romaine, 1932 WL 3821, *3821, 17 Pa. D. & C. 457, 461
(Pa.Com.PI. 1932)
9 Happold v. Espenship, 1928 WL 5601, *4, 24 Del.Co. 55, 55, 15 Pa. D.
& C. 186, 188 (Pa.Com.PI. 1928)
10 Montgomery v. Mahjoubian, 1923 WL 4610, *2+, 3 Pa. D. & C. 833, 834+
(Pa.Com.PI. 1923) "
11 Miners Sav. Bank of Pittston, Pa. v. U.S., 110 F.Supp. 563, 572,
53-1 USTC P 9222, 9222, 43 A.F.T.R. 523, 523 (M.D.Pa. Feb 20,
1953) (NO. CIV. 2395)
* Mentioned
12 Phillips v. North Beaver Tp. School Dist., 1931 WL 4529, *4529, 17
Pa. D. & C. 420, 425 (Pa.Com.PI. 1931)
Secondary Sources CU.S.A.)
13 What constitutes cloud on title removable in equity, 78 A.L.R. 24, ~
24+ (1932)
Page 1
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il MADE... 23rd <by of June, /... 1[
:/ ;n ,h. ym n;n""n hood"d ond seventy-six (1976). II
ill; BETWEEN DEAN P. LORAH and DORA R. LORAH, his wife, of Upper Allen III
Ii Township, Cumherland County, PennsYlvania, GRANTORS and parties of
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WITNESSETH, That in consideration of FORTY-FOUR THOUSAND ($44,000.00)- _ _ _ _
- - - - - - - - - - - - - - - - - - - - - - - - Dollars,
in hand paid, the receipt whereof is hereby acknowledged, the said grantor S do hereby grant
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and convey to the said granteeS, their heirs and assigns,
ALL THAT CERTAIN piece or parcel of land situate in the Township of
Upper Allen, County of Cumherlnnd and State of Pennsylvania, bounded
and descrihed as follows:
BEGINNING at a point on the northern line of Kim Acres Drive, said
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grees seven (7) minutes West, a
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AND the said grantor will GENERALL Y
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W ARMNT AND FOREVER DEFEND
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IN WITNESS WIIEREOF, said grantor S h~e hercunto set / hands
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My Commission Expires May 15, .rg7~. ...;'.~':Y/ I
NOTARY puaLlc'.~j~.~.:.: ':,- I
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fal('fjDIV fr:jl., Pi, YOlk County
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whose name subscribed to the within II
executed the same for the purpose therein III
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On this, the 23rd
day of
June,
19 76, before me
a Notary Puhlic,
the undersigned officer, personally appeared DEAN P. LORAH ~ nORA R. tORAH, his wi fe,
known to me (or satisfactorily proven) to be the personS
QIommOttUtl'l11tq of JI~nnl1!Jlpanta }
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On this, the
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the undcrsigned officer, personally appearcd
known to me (or satisfactorily proven)
instrument, and acknowledged that
contained.
to be the person
IN WITNESS WHEREOF, I have hereunto set my hand and
seal.
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Oult-elalm Deed No. 664/5
Printed for anJ SolJ by John C. C1arl" Co., IJ21< Walnut St., Phila,
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/2b!LG/1. ~ ,,/-C-~' ~ ~ ~ 4,- H-;l Y.;l !-,;;?.;<tj
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I () 7J.. day of - m ~ in the year of our
Lord one thousand nine h1.tndred ~ - 2f~ ( <15)
m~tlU~en JOSEPH B. DeANGELIS and JANET16eANGELIS, his wife,
(hereinafter called the Releasors), of the one part
AND
THE DeANGELIS REVOCABLE REAL PROPERTY TRUST, JOSEPH B. DeANGELIS
and JANET DeANGELIS, his wife, (hereinafter called the Trustees),
of the other part,
miht.ess.etq, That in conformity with the terms of a certain
Declaration of Trust executed by the Releasors on the
17"'-"-. day of DpC'C::r??)pr , 1994, do by these presents
release and forever Quit-Claim to ourselves as trustees under the
terms of such Declaration of Revocable Real Property Trust, all
right, title, interest, claim and demand whatsoever which we as
Releasors have or ought to have in or to the property located at:
420 Kent Drive, City of Mechanicsburg, County of Cumberland, State
of Pennsylvania, and described as follows to wit:
ALL THAT CERTAIN piece or parcel of land situate in the
Township of Upper Allen, County of Cumberland and State of
Pennsylvania, bounded and described as follows to wit:
BEGINNING at a point on the northern line of Kim Acres Drive,
said point being referenced westwardly a distance of six hundred
fifty-two one-hundredths (652.52) feet from the center line of Mt.
Allen Drive; Thence along the northern line of Kim Acres Drive,
South eightY-four degrees (840) fifty-three minutes (53) West, a
distance of one hundred (100) feet to a point; Thence North five
degrees (50) seven minutes (7) West, a distance of one hundred
Thirty-two (132) feet to a point; Thence eightY-four degrees (840)
fifty-three minutes (53) East, a distance of ninety-four and
seventy-eight one-hundredths (94.78) feet to a point; Thence South
seven degrees (70) twenty-three minutes (23) East, a distance of
one hundred thirty-two and ten one-hundredths (132.10) feet to a
point on the northern line of Kim Acres Drive, the Place of
BEGINNING.
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HAVING thereon erected a single dwelling house No. 420 Kent
Drive.
BEING the same premises which DEAN P. LORAH and DORA R. LORAH,
his wife, by indenture dated June 23, 1976 and recorded in the
Office of the Recorder of Deeds in and for the County of Cumberland
on June 23, 1976, in Deed Book Q-26, Page 587, did grant and convey
unto JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife.
SUBJECT to restrictions as contained in prior deeds.
* This is a revocable transfer of property between the owners as
grantors and the owners as grantee beneficiaries and their linieal
decendant children as contingent beneficiaries, therefore the
transfer is tax free.
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hereditaments and
appertaining, and
profits thereof:
with all and singular, the tenements,
appurtenances thereto belonging, or in any wise
the reversions, remainders, rents, issues, and
AND also, all the estate, right, title, interest, property,
claim and demand whatsoever, as well in law as in equity, of the
said parties if the first part, of, in, or to the above-described
premises, and every part and parcel thereof, with appurtenances.
TO HAVE AND TO HOLD all and singular the above-
mentioned and described premises, together with the appurtenances,
as joint trustees forever: and we declare and agree that neither
we as individuals nor our heirs or assigns shall have or make any
claim upon such property.
IN WITNESS WHEREOF, the said parties of the
first part have hereunto set their hands and seals to this Deed
dated the day and year first written above.
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Signed Sealed & Delivered )
In the Presence of us: )
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COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
.;J~,'''e ..
On this, the \ \ day of {Y\Ci...~ ' , 1995,
before me, a Notary Public, the unders~ed off1cer, personally
appeared JOSEPH B. DeANGELIS and JANET DeANGELIS known to me or
satisfactorily proven to be the grantors whose names are subscribed
to the within instrument, and acknowledged that they executes same
for the purposes therein contained.
In witness whereof, I hereunto set my hand and official
J..;. Notarial Seal
:,.":- Judith A. Walter, Notary Public
:..JlMber Allen Twp., Cumberland County
',M'Y'tommission Expires May 12, 1998
~>"i!' :'.',: .' Member, Pennsylvania Assodation of Notaries
e~DK. i2:l PAGE
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EXHIBIT D
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PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug 27, 2005
(Cite as: 338 Pa. 373, 12 A.2d 435)
338 Pa. 373, 12 A.2d 435, 127 A.L.R. 1008
Supreme Court of Pennsylvania.
GREEK CATHOLIC CONGREGATION OF
BOROUGH OF OL YPHANT
v.
PLUMMER et aI.
March 25, 1940.
As Amended on Reargument April 15, 1940.
Appeal No. 16, January term, 1940, from judgment
of Court of Common Pleas, Lackawanna County,
No. 794, May term, 1938; Lewis, Judge.
Action in trespass by the Greek Catholic
Congregation of the Borough of Olyphant against
Emma A. Plummer, executrix of Edward E. Cannon,
deceased, and others, to recover damages for mining
and removing coal from plaintiffs land. From a
judgment for defendants, plaintiff appeals.
Affirmed.
West Headnotes
[ 1] Mines and Minerals ~7 1
260k71
An agreement of lease of coal, whereby lessors gave
no warranty as to their title to coal described in lease
but expressly stipulated that "it is given and accepted
subject to any failure of title", constituted a "sale"
and was in legal effect a "quitclaim deed" to such
coal, as respects lessors' liability for trespasses by
lessee after it was established that lessors held no
title to the property.
[2] Deeds ~25
120k25
[2] Deeds ~ 12 1
120k121
"Quitclaim deeds" 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, and
such deeds do not purport to convey anything more
than interests of grantor at time of their execution;
distinguishing characteristic of a "quit-claim deed"
being that it is a conveyance of interest or title of
grantor in and to property described rather than of the
property itself.
[3] Deeds ~25
120k25
Except for compelling reasons, courts should not
impose on grantors in quit claim deeds such
obligations as would check employment of such
deeds.
[ 4] Mines and Minerals ~7 1
260k71
A lessor of a coal mine is not responsible for
negligent mining by lessee which results in damage
to the surface.
[5] Mines and Minerals ~71
260k71
The mere collection of rents and royalties as part of
purchase price for coal conveyed under lease, which
in legal effect was a quitclaim deed, does not
constitute a "participation in mining" so as to render
grantors liable for trespass for such mining when it
was established that grantors held no title to property
quitclaimed.
[6] Mines and Minerals ~71
260k71
Where lease for mining coal executed in 1931
provided that "it is given and accepted subject to any
failure of title" and was in effect a "quitclaim deed",
both parties to lease understanding that question of
title was in dispute, and it was not until 1938 that it
became judicially established that lessors had no title
to the coal, such lessors were not liable to rightful
owners for trespasses committed by lessee in mining
and removing the coal.
[7] Pleading ~312
302k312
In determining whether statement of claim against
lessors of coal mine for trespass by lessee removing
coal stated cause of action, allegations that lessors
were mining and digging and aiding and abetting the
mining by lessee would be taken as mere conclusions
where allegations were based on lease, which was
attached to statement of claim and which warranted
no such conclusions.
[8] Contracts ~309(2)
95k309(2)
The law recognizes the doctrine of "frustration",
which holds that under the implied condition of the
continuance of a contract's subject matter, contract is
dissolved when subject matter is no longer available.
[9] Mines and Minerals ~7 1
260k71
Page 1
'.
PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug 27, 2005
Where lease for mining coal provided that "it is given
and accepted subject to any failure of title" and was in
effect a "quitclaim deed" both parties to lease
understanding that question of title was in dispute,
lessors were not liable to rightful owners for
trespasses on ground that they put lessee "under legal
obligation to mine the coal" because lessee
"covenanted and agreed to work the veins demised"
continuously and to remove all coal by diligent and
energetic prosecution of the business, since such
provisions were subject to limitation that when title
failed lease became inoperative.
[10] Mines and Minerals €;::;:I7 1
260k71
Lessors of coal mine which was leased subject to
failure of title, parties understanding that question of
title was in dispute, were not liable in trespass to
rightful owners because lessors sent a mining
engineer into the mine from time to time to inspect
and report on mining operations, since such a
provision for inspection of mining operations does
not make the lessor a "director" of the mining
operation.
Mines and Minerals €;::;:I7 1
260k71
Owner of coal lands was not liable for damages
resulting from subsidence of adjoining land on
ground that such damage was caused by negligent
conduct of mining operations by defendant's lessee,
in absence of proof that lessee conducted such
operations under supervision, direction, management
and control of defendant.
*374 **436 Argued before SCHAFFER, C. J.,
and MAXEY, DREW, LINN, STERN, BARNES,
and PATTERSON, JJ.
* 375 O'Malley, Hill, Harris & Harris, Walter L.
Hill, all of Scranton, for appellant.
Valentine L. Fine and William J. Fitzgerald, both
of Scranton (Kelly, Fitzgerald & Kelly, of Scranton,
of counsel), for appellees.
MAXEY, Justice.
Plaintiff brought an action in trespass against
defendants for the recovery of damages for the mining
and removal of coal from plaintiffs land.
The statement of claim avers that defendants mined
and dug from plaintiffs land, without the latter's
consent, 25,472 tons of coal of the value of $12,736,
knowing the same to be upon plaintiffs land, and
removed and converted the coal to their own use, and
did the mining through their agent, the Wilson Coal
Company, to which defendants had made a lease dated
May I, 1931, and, in addition to making the lease,
defendants aided and abetted their agent, and
participated in the mining of the coal, and required
their agent to account therefor to them and to pay
over proceeds thereof to them, and that they received
and retained such proceeds. Plaintiff claimed treble
damages of $38,208, with damages for detention
thereof.
The affidavit of defense raised questions of law in
that the mining was not done by defendants but by
their lessee, under the terms of the contract of May 1,
1931.
The court below held that the agreement 'constituted
a sale of the defendants' interest in the coal therein
described' and that plaintiffs statement of claim did
not set froth a cause of action, and entered judgment
in favor of defendants. This appeal followed.
The lease between Emma A. Plummer, executrix,
heir and devisee under the will of Edward E. Cannon,
deceased, et aI., and the Wilson Coal Company, set
forth that 'the Lessors have demised, leased and to
mine let unto the Lessee, all their right, title and
interest in and to the remaining coal [in certain veins]
lying and being * 3 7 6 in and under that part of the
Samuel Callender Tract.' The tract containing the
coal demised was described as 'a division of the
Edward London Warrant and situate in the Borough of
Blakely, County of Lackawanna'. Its boundaries are
stated but its acreage is not. As to the tenure.. it was
provided that the lessee would 'remove all the coal
therefrom which can be mined, stripped and removed
by a diligent and energetic prosecution of the
business', The lease further provides: 'It is
understood and agreed that this lease is given and
accepted subject to any failure of title to any part of
said coal or otherwise, and that said Lessee, its
successors and assigns, assume sole and entire
responsibility in the mining of the coal hereunder,
without any liability in the lessors under any
circumstances whatsoever.' The lease then provides
for the payment of rent and royalty based upon the
tonnage of coal taken out.
**437 [1] It is the contention of the defendants
that the relationship between them and the Wilson
Coal Company is that of grantor- grantee and that the
lease referred to above was in legal effect a quit-claim
deed to such coal. The defendants gave no waITanty
as to their title to the coal described in the lease, but,
on the other hand, the lease expressly stipulated, as
above noted, that 'it is given and accepted subject to
any failure of title.' It is clear that this agreement of
Page 2
"
PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug 27, 2005
lease constituted a sale of the coal in the veins leased
until 'all the coal' was removed: Hosack v. Crill,
204 Pa. 97, 53 A. 640.
The coal of whose mining plaintiffs complain was
the coal whose ownership was decided by this court
in Greek Catholic Congregation of Olyphant v.
Wilson Coal Co., 329 Pa. 341, 198 A. 841. That
there was a substantial dispute as to the ownership of
this coal is indicated by the litigation which gave rise
to that case. The question of ownership hinged on an
interpretation of a deed from Samuel Callender to
Newell Callender, dated January 16, 1850. When the
lease of May 1, 1931, was made, both parties to it
understood that the question of Lessors' *377 title
was in dispute. If Samuel Callender, the grantor in
the 1850 deed to his son, Newell Callender, died
seised of a reversionary interest in the coal in
question, the Wilson Coal Company obtained a good
title to the coal when it secured its lease from those
who claimed under Samuel Callender, i. e. the
defendants below. It was not until our decision on
March 21, 1938 that it became judicially established
that Samuel Callender did not die seised of a
reversionary interest in the coal in question and that
therefore the Wilson Coal Company had no title to
the coal it mined under color of the 1931 lease's
authority.
In view of the substantial dispute as to the
ownership of the coal in controversy, there is no
question as to the good faith of the Lessor in this
matter. The coal which was later adjudged to belong
to the plaintiffs in this action was only a portion of
the acreage of coal subject to the 1931 lease. Since
this lease was in effect, if not in form, a quit-claim
deed, the question before us comes down to this: Is
the grantor in a quit-claim deed liable for trespasses
committed by his grantee on the property subject to
the deed after it is established that the grantor held no
title to the property quit-claimed?
[2J[3J Both on reason and authority this question
must be answered in the negative. 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.
It does not purport to convey anything more than the
interest of the grantor at the time of its execution.
16 Am.Jur. p. 560, sec. 219: 'The distinguishing
characteristic of a quitclaim deed is that it is a
conveyance of the interest or title of the grantor in
and to the property described, rather than of the
property itself.' If persons who in good faith believe
that they have title to real estate or possibility of
title to real estate cannot convey whatever right or
title they have in such real estate without being
answerable in trespass should it later be decided that
they had no * 3 7 8 title and the person to whom the
conveyance was made exercised an owner's right in
the property, the use of quit-claim deeds will be
greatly curtailed. Their long continued employment
indicates that they serve a useful purpose and, except
for compelling reasons, courts should not impose on
the grantors in quit-claim deeds such obligations as
would check the employment of such deeds. There is
nothing in a quit-claim deed which should incite the
grantor therein to commit a trespass by exercising
dominion over property he did not own. If there is
any doubt of his ownership, he proceeds at his own
peril and not at the peril of the party who quit-
claimed to him. He is supposed to know the law,
and the law is that 'a quitclaim deed is one which
purports to convey, and is understood to convey,
nothing more than the interest or estate of which the
grantor is seised or possessed, if any, at the time'. 18
c.J. p. 156, sec. 32.
In the few instances where the question has arisen,
courts have taken the view that 'one who merely sells
property to which he has no title is not liable for
trespasses committed by his vendee'. 63 c.J. p. 934,
sec. 77.
[4J It is settled law in this Commonwealth that the
Lessor of a coal mine is not responsible in trespass
for the negligent mining by his lessee which results
in damage to the surface. In Hill v. Pardee, J!43 Pa.
98, 22 A. 815, this court held that in such a case the
disturbance of a right of surface support is a tort for
which the party which did the mining and not the
Lessor was responsible. In Offerman v. Starr, 2 Pa.
394, 44 Am.Dec. 211, this court said **438 in an
opinion by Chief Justice Gibson: 'Respondeat
superior is inapplicable to an owner of land, for acts
of negligence in a business not conducted by him and
for his account. What had these defendants to do
with the direction of the business or the coal when it
was mined? Lewis covenanted to sink the slope,
erect the engine, to take out a certain number of tons
each year, according to the most approved method of
mining, and carry it to the landing; and to pay a
certain sum per ton for it. So *379 far the
defendants had nothing to do with the business, but
to receive their rent. But they reserved a right to
visit and examine the manner in which the business
should be carried on in the mine; and to resume the
possession should the tenant refuse to furnish
statements of the amount taken out, or pay the rent.
Page 3
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PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug 27, 2005
These clauses do not constitute a reservation of the
possession or a right to interfere with the direction of
the business. The right of visit was to enable them
to see whether the tenant was performing his
engagements, in order to found process against him if
he were breaking them; and the right to resume the
possession was to put an end to the business
altogether. The lease was analogous in all respects
to the lease of a farm with a clause of re-entry for bad
farming, or non-payment of rent. On no principle,
then, could the acts of Lewis be imputed to his
lessors'.
[5][6] Appellant cites two Pennsylvania cases in
which the Lessor was held liable for damage caused
by its lessee: Dundas v. Muhlenberg's Executors, 35
Pa. 351, and Telford Coal Co. v. Prothero et aI., 24
Pa. D. & C. 183. The court below correctly
determined that the facts in those cases were not
applicable to the facts in this case. In the former
case, this court, in an opinion by Chief Justice
Lowrie, said: 'The charge of the court was in
substance that, in order to entitle the plaintiff to
recover against the defendants, it must appear, not
only that they were landlords of Bittinger, who took
out the coal, but also that they participated in the
act of going into the plaintiffs' land to get it. We
think this instruction is quite accurate, and is
sustained by most familiar authorities.' This court
said further: 'Such being the facts found by the jury
[all italics supplied], the defendants are trespassers
with Bittinger; * * * and, the tort being waived, may
be sued in assumpsit for the value of the coal taken.'
In the second case cited by appellant, which is a
lower court case, the lessors actually supervised and
directed the removal of the coal and were personally
present when it was being removed. The court stated
in * 380 that case: 'The mining operations were
carried on under the directions of W. B. Prothero, and
after his death under the directions of Harry B.
Prothero. The engineer in charge during all the
operations was L. R. Owen, who was acting for the
lessors. One of the lessees testified that no map was
ever furnished, but that the work was directed by the
engineer and the Protheros. Harry B. Prothero was in
the mine frequently when the plaintiffs coal was
being mined.' The difference between the facts in
those two cases and the facts in the case at bar
obvious. The defendants in those cases participated
directly in the torts. In the instant case there was no
such participation. Mere collection of 'rents and
royalties' as a part of the purchase price does not
constitute a participation in the mining.
[7] The allegations in plaintiffs statement of claim
and which are quoted in paragraph two of this
opinion as to defendants' mining and digging from
plaintiffs land and 'aiding and abetting' the mining
by the Wilson Coal Company would sufficiently
plead a cause of action, were it not based (as we
understand from the argument of appellant's counsel
[FNl] it is based) on the lease itself, which lease is
attached to plaintiffs statement. The language of the
lease warrants no such conclusion, and therefore we
must treat the allegation of defendants' 'mining and
digging' coal and 'aiding and abetting their agent, the
Wilson Coal Company' in doing so as mere legal
conclusions and not as averments of facts.
FNI. In appellant's paper book appears the
following statements: 'The defendants acted in
concert with the mining company in making
the lease and in requiring accounting and
payment of proceeds of mining. They not
only requested or procured or incited their
lessee to do the mining but put their lessee
under legal obligation to them to mine the
plaintiff's
coal, and to pay them royalties thereon, and
they received and retained the royalties. * * *
The case is not at all one of non-participation,
for the participation was as real and substantial
and remunerative as if it had been physical.'
* 3 81 Appellant cites section 158, 'Comment 1', p.
363, of Restatement of Torts. In this 'comment' it is
set forth that 'if the actor * * 439 has commanded or
requested a third person to enter land in the
possession of another, the actor is responsible for the
third person's entry if it be a trespasser.' It is self-
evident that one who merely quit-claims his right,
title and interest (if any) in land to another for a
consideration does not come within the description of
an actor who 'commands or requests' a third person to
enter another's land. When A quit-claims to B he is
not 'intentionally causing' B to commit a trespass on
the land in respect to which A quit-claimed whatever
title or interest (if any) he had. If B proceeds to
exercise dominion over that land, he does so at his
own peril, and if it is shown that A had no title or
interest in the land he quit-claimed, B's quit-claim
deed is no defense to an action of trespass nor does
that deed make A a joint tort-feasor with B. In
Robinson v. Vaughton & Southwick, 34
Eng.Com.Law Rep. 718, it was held that if A gives
B leave to go on a field, in which A has no right and
B goes there, this will not make A liable as a co-
trespasser with B.
In the case of Power v. Foley, Newfoundland
Page 4
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PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug 27, 2005
Reports, 1897-1903, p. 540, the Supreme Court of
Newfoundland held, in an opinion by Justice
Emerson: 'A mere sale of property, to which a man
has no title, does not of itself carry with it a cause of
action against the seller, even though the purchaser
subsequently trespasses on and converts the property
to his own use. It must first be proved that the
defendants actually took possession of the property in
question, or exercised actual dominion over it, or
delivered it to the trespassers in some other manner
than by the mere delivery of a document purporting
by its alleged construction to convey a title. In order
to fasten a liability on defendants in this action for
legal damage, * * * these defendants must have
actually by themselves, or their agents or servants,
wilfully trespassed upon the plaintiffs property, and
taken * 3 8 2 down the house and converted the goods
to their own use, or wrongfully deprived the plaintiff
of them. Has this been proved?' This question was
answered in the negative. The following cases were
cited: England v. Cowley, L.R. 8 Ex. 126, and
Owen v. Legh, 3 B. & Ald. 470.
Appellant contends that the defendants were
trespassers because they put the lessee 'under legal
obligation to mine the plaintiff's coal.' This
obligation arose, so it is argued, from the fact that
the lessee 'covenanted and agreed to work the veins
demised' continuously and to remove 'all the coal
therefrom which can be mined by a diligent and
energetic prosecution of the business.'
[8] The answer to this contention is that the
provision in the lease as to diligent mining is subject
to the condition that the title of the lessors does not
fail. The lease (as already noted herein) was
expressly 'given and accepted subject to any failure of
title to any part of said coal'. Failure of title to the
coal ipso facto terminated the lessee's agreement to
mine it. There is in the law the doctrine of
'frustration,' which holds that under the implied
condition of the continuance of a contract's subject
matter, the contract is dissolved when the subject
matter is no longer available. In Nitro Powder Co.
v. Agency of Canadian Car & Foundry Co., 233
N.Y. 294, 135 N.E. 507, 508, Judge Pound said:
'When people enter into a contract which is dependent
for the possibility of its performance on the
continual availability of a specific thing, and that
availability comes to an end by reason of
circumstances beyond the control of the parties, the
contract is prima facie regarded as dissolved.' See
also Clarksville Land Co. v. Harriman, 68 N.H. 374,
44 A. 527, and Howell v. Coupland, 1 Q. B. 258.
In the leading English case of Tamplin Steamship
Co., Ltd., v. Anglo-Mexican Pet. Products Co.,
Ltd., 2 A. C. 397, it is said at 403: 'A court can and
ought to examine the contract and the circumstances
in which it was made, not of course to vary, but only
to explain it, in order to see * 3 8 3 whether or not,
from the nature of it the parties must have made their
bargain on the footing that a particular thing or state
of things would continue to exist. And if they must
have done so, then a term to that effect will be
implied, though it be not expressed in the contract.'
[9J In the lease now under review what the lessors
said to the lessee, in effect, was this: 'We do not
guarantee title to the coal we are quit-claiming. If
the title proves to be good, you are obligated to mine
the coal diligently,' etc. It was reasonably assumed
that if the title failed, the owner of the coal would
take appropriate action to stop its mining. The lease
provisions quoted by appellant were not either
commands, directions or incitements to commit
trespasses upon another's property. These provisions
were subject to the limitation **440 that when title
failed the lease became inoperative.
[1OJ Appellant also contends that because the
defendants sent a mining engineer into the mine from
time to time to inspect and report to the lessor on the
mining operations, they 'aided and abetted and
participated in the mining and digging out of the said
coal as fully and effectually as they individually could
have done had they been present in person.' In
making this contention the appellant is asking this
court to attribute to a well recognized custom in
respect to mining 'leased' coal a legal significance the
custom does not have. Lessors of coal, whose
remuneration depends on the tonnage mined, are
properly vigilant in seeing to it that none of the coal
is wasted by reckless, unskilful mining and to this
end they customarily reserve the right to inspect the
workings either by themselves or by a competent
mining engineer. That such a provision does not
make the lessor a 'director' of the mining operation
was expressly held by this court in Offerman v.
Starr, 2 Pa. 394, 44 Am.Dec. 211, supra. In Miles
v. Pennsylvania Coal Co., 217 Pa. 449, 66 A. 764,
10 Ann.Cas. 871, this court held that a provision
giving the lessor the right to enter the workings for
inspection of the * 3 84 mining 'does not change the
character of the instrument', i. e., the coal lease.
The case of McCloskey et al. v. Powell et al., 123
Pa. 62, 16 A. 420, 421, 10 Am.St.Rep. 512, cited
by appellant, is easily distinguishable from the case
at bar. In that case there was no quit-claim deed
Page 5
r
'.
..
PA-CS (Pennsylvania Cases)
12 A.2d 435
Date of Printing: Aug27, 2005
involved. Certain dealers in cherry timber sent their
agent, Ryder, into Elk County to purchase such
timber. Ryder found two tracts of cherry timber
supposedly owned by Powell. The latter promised to
have his lines run. The line as run included a large
part of the grove of cherry timber which Ryder
wanted, but the true line excluded the whole of it.
Powell advised Ryder that a survey had been made
and the cherry found to be on his land. Powell then
sold on a contract all the merchantable cherry, etc.,
timber standing on two tracts of land including '260
acres west of the true line'. The timber was removed
under the contract and Powell was paid for it. The
owners brought an action in trespass q. c. f. against
Powell et al. At the trial the court below refused this
request of plaintiffs: 'If the jury believe from the
evidence that [the defendant] Powell procured the west
line of his lands to be so run and marked as to
include some two hundred and sixty acres of the land
belonging to the plaintiffs, * * * and caused said line
* * * to be pointed out as his line * * * [that] he
Powell would be liable to the plaintiffs as a co-
trespasser.' This court, in reversing the court below,
said: '[Powell] caused the line to be pointed out, and
said, in legal effect: 'This land is mine. These
timber trees are mine. I will sell them to you, and
you shall cut and remove them, and pay me ten
dollars per thousand feet for the cherry as it now
stands on the stump.' * * * The mistake was
Powell's * * *. He sold what he did not own, and
took pay for it. He put his vendees on the ground to
cut the trees. By his contract he authorized and
directed the work done under it. * * * The point
should have been affirmed.' The difference between
the facts in that case and those in this case are
obvious.
The judgment is affirmed.
338 Pa, 373, 12 A.2d 435, 127 A.L.R. 1008
END OF DOCUMENT
Page 6
EXHIBIT E
PA-CS (Pennsylvania Cases)
305 A.2d 723
(Cite as: 452 Pa. 388, 305 A.2d 723)
452 Pa. 388, 305 A.2d 723
Supreme Court of Pennsylvania.
In re ESTATE of J. Walter BANES,
Deceased.
Appeal of Robert C. BANES.
May 23, 1973.
Rehearing Denied June 25, 1973.
Decedent's son, a named successor trustee to
decedent's testamentary trust and a remainder
beneficiary to his estate, filed a petition to set aside
the conveyance of a portion of a tract of land
contained in the trust and to remove decedent's widow
as trustee of the trust. The Orphans' Court Division,
Common Pleas Court, Montgomery County, No.
68625, Alfred Taxis, Jr., J., dismissed the petition,
and the son appealed. The Supreme Court, No. 55
January Term, 1973, Roberts, J., held that where
decedent's will specifically prohibited his trustee from
selling the trust realty as long as a certain lease of
that property was operative, but lessee with an
option to buy and the trustee, without court approval
or notice to beneficiaries of the trust, sold a small
portion of the tract to pay estate expenses after
negotiating a release of the lessee's rights, the trustee
had violated the intentions of the decedent to preserve
the property for the ultimate benefit of the trust's
beneficiaries, the purchaser of the tract sold was not a
bona fide purchaser without knowledge of
circumstances, and the sale should be set aside.
Reversed and remanded.
West Headnotes
[ 1] Wills E;:::;:;>4 3 5
409k435
[1] Wills E;:::;:;>439
409k439
[1] Wills E;:::;:;>440
409k440
[1] Wills E;:::;:;>441
409k44 1
[1] Wills E;:::;:;>442
409k442
Testator's intent unless unlawful shall prevail, and
shall be ascertained from consideration of language
contained in will, scheme of distribution,
Date of Printing: Aug 29, 2005
circumstances surrounding testator at time he made
will, and existing facts; and canons of construction
will be resorted to only if language of will is
ambiguous or conflicting or testator's intent is for
any reason uncertain.
[2] Executors and Administrators E;:::;:;>327
162k327
Where decedent's will specifically forbade sale of trust
realty as long as lease was operative, but lessee had
option to purchase tract for very low sum if it were
offered for sale, and decedent's will indicated intention
to preserve value of tract for benefit of trust's
beneficiaries, sale of small portion of tract by
decedent's executrix trustee to pay expenses of
administration and debts of estate required prior court
approval. 20 P.S. ~~ 320.963, 3353.
[3] Executors and Administrators E;:::;:;>339
162k339
Where decedent's will forbade sale of trust realty as
long as lease remained operative and lessee could
exercise option to buy, but executrix trustee
nonetheless purported to sell portion of tract for
$110,000 to pay debts amounting to less than
$10,000, 75% of purchase price was paid to lessee
for release of option, and remainder beneficiaries were
neither given notice of sale nor afforded opportunity
to pay debts or advance alternative plan to avoid sale,
facts did not justify departure from terms of will nor
court approval of purported sale. 20 P.S. S 320.963.
[ 4] Executors and Administrators E;:::;:;>3 4 3
1 62k343
Before court orders sale of asset in estate in order to
pay debts of estate or costs of administration, heirs
should have opportunity of showing that claims are
not well founded, or of paying just debts and
avoiding sale.
[5] Trusts E;:::;:;>231 (1)
390k23 1(1)
(Formerly 390kl(1))
Test of forbidden self-dealing of fiduciary is whether
he had personal interest in subject transaction of such
substantial nature that it might have affected his
judgment in material connection.
[6] Trus~ ~231(1)
390k231(1)
Where there is self-dealing on part of fiduciary, it is
immaterial to question of liability whether he acted
Page 1
"
PA-CS (Pennsylvania Cases)
305 A.2d 723
without fraudulent intent or whether price received for
sale of trust property was fair and adequate, since rule
against self-dealing is not intended to be remedial of
actual wrong, but preventive of possibility thereof.
[7] Trusts €=;:;::>357(2)
390k357(2)
Where purchaser of small tract of land from trustee of
testamentary trust knew that will creating
testamentary trust prohibited sale of property of
which tract was a part, and that sale was made
without court approval, it was not a bona fide
purchaser for value, and sale made to pay expenses of
administration and debts of estate could be set aside.
[8] Executors and Administrators €=;:;::> 148
162k148
To be "bona fide purchaser" of realty from executrix
trustee guilty of breach of trust in making sale,
purchaser must have paid value therefor without
knowledge of attendant circumstances constituting
breach.
[9] Trusts €=;:;::>167
390k167
Where, although trustee, who was also beneficiary
and creditor of trust, breached her fiduciary duty in
making sale of trust realty, she acted in good faith
and in reliance upon competent counsel, court did not
abuse discretion in refusing to remove her as trustee.
**724 *390 Jules Pearlstine, Larry J. Schwartz,
Pearls tine, Salkin, Hardiman, Robinson & Hunn,
Lansdale, for appellant.
Joseph E. Lastowka, Jr., Kassab, Cherry &
Archbold, Chester, for appellee, Shell Oil Co.
Philip D. Weiss, McTighe, Brown, Weiss, Bonner
& Stewart, P.c., Norristown, for appellee, Inez M.
Barnes, Trustee of Testamentary Trust.
*389 Before JONES, C.J., and EAGEN, O'BRIEN,
ROBERTS, POMEROY, NIX and MANDERINO,
n.
* 3 9 0 OPINION OF THE COURT
ROBERTS, Justice.
J. Walter Banes died on October 25, 1962, leaving a
will which was duly probated. The will designated
decedent's wife, Inez Banes, appellee, as trustee-
executrix. Thereafter, the first and final account was
filed on November 1, 1967, and adjudicated on May
28, 1968.
Decedent's estate consisted primarily of a 22-acre
tract of land located in Montgomery and Horsham
Date of Printing: Aug 29, 2005
Townships. In 1950, decedent and his first wife,
Reba Banes, leased the property[FN1] to the 309
Drive-In * * 7 2 5 Corporation. [FN2] The lease
entitles the lessee to extend the terms of the lease
until the year 2024. It further provides that '(i)n the
event that the Lessors shall desire to sell the demised
premises and to offer the said premises for sale, the
Lessee shall have the first option to purchase the
demised premises for the sum of Forty Thousand
Dollars ($40,000).'
FN I. A portion of the property immediately
adjoining the residence
was excluded from the lease.
FN2. In June, 1969, the assets of the 309
Drive-In Corporation were transferred to V. C.
Smith, the present lessee.
* 391 Decedent's will conveyed this tract of hmd--as
part of the residue-- to:
'. . . my trustees hereinafter named, IN TRUST, to
hold, invest and reinvest the same, to collect the
income, and after paying all expenses incident to
the management of the Trust, to pay the net
income quarterly, or in other convenient
installments, unto my wife, Inez M. Banes, as
long as she shall live; and upon her death to pay
the income annually on December Fifteenth to my
surviving issue per stirpes, until twenty years
following the death of the last surviving grandchild
of mine who was living at the time of my death.
Upon such termination, the principal of the Trust
shall be divided per stirpes among my issue then
living.'
In March 1970, Inez Banes, without court approval
or notice to the interested parties (decedent's children
and grandchildren), negotiated the sale of
approximately I 1/2 acres of the 22-acre tract of land
in order to pay the estate's debts and administration
expenses of $9,400. The trustee-executrix first
obtained a release from the lessee as to the 1 1/2
acres and then sold the parcel to Shell Oil Company,
appellee, for $110,000. Under the terms of the
agreement the lessee received, after deduction for
settlement expenses, 75% Of the proceeds ($75,000),
while the estate received 25% Of the amount.[FN3]
FN3. The agreement provided that there would
be no reduction in the lessee's rent.
The instant action was commenced in June, 1970,
when appellant, Robert Banes, decedent's son--a
named successor trustee and a remainder beneficiary--
filed a petition to set aside the conveyance and
remove Inez Banes as trustee. Appellant urged in his
petition that the decedent's will specifically
prohibited the sale of the property. The orphans'
Page 2
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PA-CS (Pennsylvania Cases)
305 A.2d 723
court, however, dismissed the petition. Exceptions
were timely filed and on May *392 22, 1912, the
court reaffirmed its determination denying the
petition. This appeal followed and we reverse.
[I] As this Court said in Pearson Estate, 442 Pa.
In, 180,275 A.2d 336, 339 (1971) (quoting from
Carter Estate, 435 Pa. 492, 496--497, 257 A.2d 843,
845 (1969)):
"The law and the legal principles governing the
interpretation of wills is well settled, but their
application to poorly or ambiguously drawn wills
(especially to holographic wills and lengthy
testamentary trusts) is often difficult. The
pertinent principles may be thus briefly summarized:
A testator's intent, unless unlawful, shall prevail;
that intent shall be ascertained from a consideration
of (a) all the language contrained in his will, and (b)
his scheme of distribution, and (c) the circumstances
surrounding him at the time he made his will, and (d)
the existing facts; and (e) canons of construction will
be resorted to only if the language of the will is
ambiguous or conflicting or the testator's intent is
for any reason uncertain. ..."
Accord, Benson Estate, 447 Pa. 62, 68, 285 A.2d
101, 104 (1971); Jessup Estate, 441 Pa. 365, 276
A.2d 499 (1970).
Here, decedent's will grants the trustee the general
power'. . . (i) (t)o sell at public or private sale, for
cash or credit, with or without security, to exchange
or to partition property and to give options for sales
or exchanges.' However, paragraph * * 7 2 6 seventh
expressly prohibits sale of the 22-acre leased
premises while the lease remains 'operative.' That
paragraph states:
'SEVENTH: I Direct that while a certain Lease to
the 309 Drive-In Corporation, dated January 16,
1950, shall remain operative, my Trustee, or
Trustees, shall not convey nor offer for sale my
real estate situate in the Townships of
Montgomery and Horsham, bounded on the
Northwest by Evans Road, on the East by
Bethlehem Pike, and on the South and Southwest
by Welsh Road.' (Emphasis added.)
* 3 9 3 The orphans' court held that paragraph
seventh did not prohibit sale of the 1 1/2 acres and,
thus, court approval was not required as provided in
the Act of April 18, 1949, P.L. 512, art. IX, s 963,
20 P.S. s 320.963. [FN4] The court reasoned that
since the lessee released his interest in the 1 1/2
acres, the lease was no longer 'operative' as to that
parcel. Therefore, the court concluded, the trustee had
authority, under her general powers, to sell the
Date of Printing: Aug 29, 2005
property, despite paragraph seventh's prohibition.
FN4. Section 963 provides:
'When the trustee is not authorized to do so by
this act or is denied the power to do so by the
trust instrument or when it is advisable: that the
sale have the effect of a judicial sale, he may
sell, for any purpose of administration or
distribution, any real or personal property of
the trust, at public or private sale, or may
pledge, mortgage, lease, or exchange any such
property, or grant an option for the sale, lease,
or exchange of any such property, under order
of the court, upon such terms and upon such
security and after such notice as the court shall
direct, whenever the court shall find that such
sale, pledge, mortgage, lease, exchange, or
option is for the best interests of the trust.'
Act of April 18, 1949, P.L. 512, art. IX, s
963, 20 P.S. s 320.963 (footnote omitted).
It should be noted that Section 963 has been
repealed and replaced by Act of June 30, 1972,
P.L. _n, No. 164, s 3353, 20 P.S. s 3353.
We are unable to agree with this determination. The
court properly stated:
'Decedent was obviously aware that if the trustee
was to offer the real estate for sale, the option of
the lessee would be thereby activated, in which
case the lessee would have the right to buy the
valuable asset for only $40,000. The restriction in
the will was therefore to avoid activating lessee's
option.' (Emphasis added.)
[2] The court, however, failed to give effect to
decedent's desire to avoid activating the lessee's
option because he wanted to insure that the trust and
its beneficiaries--rather than the lessee--received the
full value of the * 3 9 4 property and the benefits of
appreciation, if and when it was sold. Here, the trust
received only one-fourth the value of the land. The
remaining amount was paid to the lessee for release
of his interest in the I 1/2 acre portion of the
property. Paragraph seventh was clearly designed to
avoid such a result. We must conclude that the will
prohibits sale of any of the 22 acres while the lease
remains 'operative' as to any portion of the property.
To hold otherwise would divert the major pOltion of
the proceeds of the sale from the trust to the lessee--
as payment for his release--and, thus, defeat decedent's
testamentary intention and scheme of distribution.
Since, as we have concluded, the terms of the trust
instrument deny the trustee the power to sell the
property, court approval is required prior to sale. Act
of April 18, 1949, P.L. 512, art. IX, s 963, 20 P.S.
s 320.963. [FN5] The court, relying on Mintz
Trust, 444 Pa. 189,282 A.2d 295 (1971), stated that
Page 3
"
PA-CS (Pennsylvania Cases)
305 A.2d 723
'even assuming there was a deviation from the will',
it would now, two years after the sale, approve the
sale nunc pro tunc.
FN5. Id.
* * 7 27 In Mintz Trust, supra at 201, 282 A.2d at
301, we said:
'Furthermore, it is well established that an orphans'
court possesses the power to approve a deviation
from the express terms of a trust nunc pro tunc, if
it reviews the subject as if the question had been
presented to the court at the time the investments
were made. See Henry's Estate, 341 Pa. 439, 444,
19 A.2d 66, 69 (1941); Restatement (Second) of
Trusts s 167, comments e, f (1959).'
[3][4] We hold, however, that the facts here do not
justify a departure from the express terms of the
decedent's will. The trustee sold a piece of property
worth $110,000 to pay debts amounting to less than
$10,000. The interested parties were neither given
notice of the March, 1970, sale nor afforded an
opportunity to pay * 395 the debts or advance
alternative action and, thus, avoid a sale.
'The heirs should have the opportunity of showing
that claims are not well founded, or to pay just
debts and avoid a sale. Where the indebtedness is
denied, it must be duly established before any order
of sale is made: . . .'
5 Hunter, Pennsylvania Orphans' Court
Commonplace Book, Sales of Real Estate by Order
of Court s 3(b) at 288 (1959). See also Noonan
Estate, 163 Pa.Super. 70, 60 A.2d 374 (1948), affd,
361 Pa. 26, 63 A.2d 80 (1949).
[5] Moreover, appellee, Inez Banes, was in the
conflicting positions of trustee, beneficiary, and
creditor. Without notice to the other interested
parties or court approval, she sold the property for
the purpose of satisfying a debt which the estate
owed to her. [FN6] In Noonan Estate, 361 Pa. 26,
31,63 A.2d 80, 83 (1949), this Court stated:
FN6. The record does not reveal whether Inez
Banes requested payment from the estate during
the two years after the final account and prior
to the sale of the property.
'The test of forbidden self-dealing is whether the
fiduciary had a personal interest in the subject
transaction of such a substantial nature that it
Might have affected his judgment in material
connection. Downing Estate, supra, (162
Pa.Super. 354) at p. 359, (57 A.2d 710,) citing
Scott on Trusts, Vol. 2, s 170.12, p. 877, and
Restatement, Trusts, s 170(1), Comment h.'
(Emphasis in original.)
Date of Printing: Aug 29, 2005
[6] Here, there is no affirmative showing that the
trustee-creditor acted in bad faith or with fraudulent
intent. But, as the Court said in Noonan Estate:
'Where there is self-dealing on the part of a
fiduciary, it is immaterial to the question of his
liability in the premises whether he acted without
fraudulent intent or whether the price received for
his sale of trust property was fair and adequate: see
Tracy v. Central Trust Company, 327 Pa. 77, 79,
192 A. 869, citing Everhart v. Searle, 71 Pa. 256,
260, where the following was approvingly * 3 9 6
quoted from Hare and Wallace's Notes, 1 Lead.
Cases in Eq., p. 210,--'It matters not that there was
no fraud meditated and no injury done; The rule
(forbidding self-dealing) is not intended to be
remedial of actual wrong, but preventive of the
possibility of it."
Id. at 32, 63 A.2d at 84 (emphasis added). See also
Comerford Estate, 388 Pa, 278, 130 A.2d 458 (1957)
, Restatement, Second, Trusts s 170 (1959).
[7] [8] Finally, we note that appellee, Shell Oil
Company, having purchased the property in March,
1970--prior to court approval--with complete
knowledge of paragraph seventh's prohibition, is not
a bona fide purchaser for value. 'To be such, (it)
must have paid value for the property Without
knowledge of the attendant circumstances
constituting the executor's breaches.' Noonan Estate,
supra, 361 Pa. at 33, 63 A.2d at 84 (emphasis added).
* * 728 'If the trustee in breach of trust transfers trust
property to a person who takes with notice of the
breach of trust, the transferee does not hold the
property free of the trust, although he paid value for
the transfer.' Restatement, Second, Trusts s 288
(1959).
[9] It must be concluded that the court erred in
failing to set aside the conveyance. However, since
appellate, Inez Banes, acted in good faith and in
reliance upon competent counsel, we find no abuse of
discretion in the court's refusal to remove her as
trustee. See Mintz Trust, supra, 444 Pa. at 200--
201,282 A.2d at 301.
Decree of the orphans' court approving the March,
1970, conveyance, is reversed and the record remanded
for proceedings consistent with this opinion. Each
party pay own costs.
452 Pa. 388, 305 A.2d 723
END OF DOCUMENT
Page 4
EXHIBIT F
"
BjZ1/4,r:"
CHARLES E. SHIELDS, III
ATTORNEY-AT-LA W
6 CLOUSER ROAD
Corner ofTrindle and Clouser Roads
MECHANICSBURG, PA 17055
GEORGE M. HOUCK
(1912-1991)
TELEPHONE (717) 766-0209
FAX (717) 795-7473
August 29,2005
Mr. Thomas A. Hamilton, Esq.
4132 Willingham Court
Keller, TX 76248
By 1 st Class Mailing with Certificate of Mailing
Re: Revocable Real Property Trust,
Joseph and Janet DeAngelis, Trustees
Dear Mr. Hamilton:
Please be advised that I represent Joseph and Janet DeAngelis, of 420 Kent Drive,
Mechanicsburg, PA 17055. I am trying to locate the Thomas A. Hamilton who formerly
practiced law in the Harrisburg area circa 1994. If you are not the same Thomas A. Hamilton,
would you be so kind as to so advise me. I have provided a self-addressed stamped envelope for
your convemence.
If you are the same Thomas A. Hamilton, I write to try to obtain information regarding a
Revocable Real Property Trust, which was evidently prepared by you and dated December 17,
1994. A quitclaim deed was subsequently made from Mr. and Mrs. DeAngelis to themselves as
Trustees. Since that time, as a result of actions taken some years later, a cloud on title has arisen.
In the process of checking their entire title back to their own purchase deed of 1976, I inquired as
to whether they have a copy of the Trust document. I inquired because we need to be able to
show or to at least provide an Affidavit that the Trust document contained no limitations or
restrictions on the general power and ability of a Trustee to sell real estate. All the title
companies I have checked with regard the lack of a true copy of the Trust document as a
potential problem in that there is no fully satisfactory way to prove there was no limitation or
restriction on the power of sale. Accordingly, they will not insure any conveyance from the
Trustees.
Mr. and Mrs. DeAngelis do not have a copy of the Trust document, cannot remember
ever having one, and do not remember anything as to whether any file copies might still exist.
Mr. and Mrs. DeAngelis said they think they retained your services through a seminar put on at
Harrisburg Area Community College.
If you do not know where there might be a copy, are you in a position to make an
Affidavit that the Trusts prepared by you at this time period typically used standard language, did
not contain any limitations or restrictions on the sale power of the Trustees and that it is highly
unlikely or virtually a sure thing that the Trust document in question would likewise contain no
such limitations or restrictions. Any help you can provide would be most sincerely appreciated.
"
Mr. Thomas A. Hamilton, Esq.
August 29,2005
Page 2
Also, as a personal professional question, do you know why quitclaim deeds are often
used with transfers into trusts rather than a standard grant and conveyance?
Thank you for your kind attention to this matter. It is most sincerely appreciated.
Very truly yours,
~~~
Charles E. Shields III
Attorney-At-Law
CES/mjj
"
!Je~j
U.S. POSTAL SERVICE CERTIFICATE OF MAILING
MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAil, DOES NOT
PROVIDE FOR INSURANCE - POSTMASTER
pr; AN6l IS
Received From:
Affix fee here in stamps
or meter postage and
post mark. Inquire of
Postmaster for current
III
j1
I
I
17055
PS Form 3817, Mar. 1989
'.
Tue, Sep 6, 2005 3:02 PM
Subject: Affidavit
Date: Tuesday, September 6, 2005 3: 02 PM
From: Charles Shields III <beamercs@epix.net>
To: <teamhamilton@lscom.net>
Dear Mr. Hamilton,
Per our discussion on September 2, 2005, attached is a draft affidavit for your review.
Please let me know if you should have any changes that need to be made.
Thank you for your kind assistance in this matter.
Very truly yours,
Charles E. Shields, III
Page 1 of 1
I "
fJa~' .
9/27/bf
Subject: Re: Affidavit
Date: Tuesday, September 27,2005 2:17 PM
From: TOM AND MICHELLE HAMILTON <teamhamilton@1scom,net>
To: Charles Shields III <beamercs@epix.net>
Charles,
I made the necessary minor changes and I am sending the signed origincal to
you this week.
Regards ,
Tom
Thomas A. Hamilton, Esq.
4132 Willingham Court
Keller, Texas 76248
817-741-1589
----- Original Message
From: "Charles Shields III" <beamercs@epix.net>
To: <teamhamilton@lscom.net>
Sent: Tuesday, September 06, 2005 2:04 PM
Subject: Affidavit
> Dear Mr. Hamilton,
>
> Per our discussion on September 2, 2005, attached is a draft affidavit for
> your review. Please let me know if you should have any changes that need
> to
> be made.
>
> Thank you for your kind assistance in this matter.
>
> Very truly yours,
> Charles E. Shields, III
>
>
Page 1 of 1
"
a~. . r/271"~
Subject: Re: Affidavit
Date: Tuesday, September 27, 2005 4:46 PM
From: Charles Shields <beamercs@epix.net>
To: TOM AND MICHELLE HAMILTON <teamhamilton@lscom.net>
> Charles,
>
> I made the necessary minor changes and I am sending the signed origincal to
> you this week.
>
> Regards,
>
> Tom
>
>
> Thomas A. Hamilton, Esq.
> 4132 Willingham Court
> Keller, Texas 76248
> 817-741-1589
> ----- Original Message
> From: "Charles Shields III" <beamercs@epix.net>
> To: <teamhamilton@lscom.net>
> Sent: Tuesday, September 06, 2005 2:04 PM
> Subject: Affidavit
>
>
>> Dear Mr. Hamilton,
>>
>> Per our discussion on September 2, 2005, attached is a draft affidavit for
>> your review. Please let me know if you should have any changes that need
>> to
>> be made.
>>
>> Thank you for your kind assistance in this matter.
>>
>> Very truly yours,
>> Charles E. Shields, III
>>
>>
>
>
Great. Thank you very much. Your kind help is most sincerely appreciated. Chas. Shields III.
Page 1 of 1
"
lS/31/tI};-
Thu, Nov 17,2005 2:02 PM
Subject: Affidavit re: DeAngelis Trust
Date: Monday, October 31, 2005 4:56 PM
From: Charles Shields III <beamercs@epix.net>
To: "teamhamilton@lscom.net" <teamhamilton@lscom.net>
Conversation: Affidavit re: DeAngelis Trust
Dear Mr. Hamilton,
As of this date, we have not received your Affidavit in the office with regard to the
above-mentioned client.
Kindly send your Affidavit to my office as soon as possible as we would like to finalize
all documents pertaining to the DeAngelis Estate Planning.
Should you have any questions or concerns, please call (717) 766-0209 or email me. Thank
you for your kind assistance in this matter.
Very truly yours,
Charles E. Shields, III
Page 1 of 1
I "
11//7 /8S'
Thu, Nov 1?, 2005 2:02 PM
Subject: DeAngelis Family Trust
Date: Thursday, November 17, 2005 1: 58 PM
From: Charles Shields III <beamercs@epix.net>
To: "teamhamilton@lscom.net" <teamhamilton@lscom.net>
Conversation: DeAngelis Family Trust
Dear Mr. Hamilton:
We are ready to file the Petition of which we spoke. To date, have not received your
Affidavit as previously discussed. Please advise as to when we may receive it. from your
office.
Thank you for your kind assistance and cooperation regarding this matter.
Very truly yours,
Charles E. Shields, III
Page 1 of 1
,
.
~~t&
j
1'/I'1/"r
Subject: Re: DeAngelis Family Trust
Date: Thursday, November 17, 2005 2: 12 PM
From: TOM AND MICHELLE HAMILTON <teamhamilton@1scom,net>
To: Charles Shields III <beamercs@epix,net>
I believe I sent that to you about a month ago. I will confirm and get back
to you.
Regards,
Tom
Original Message -____
From: "Charles Shields III" <beamercs@epix.net>
To: <teamhamilton@lscom.net>
Sent: Thursday, November 17, 2005 12:58 PM
Subject: DeAngelis Family Trust
> Dear Mr. Hamilton:
>
> We are ready to file the Petition of which we spoke. To date, have not
> received your Affidavit as previously discussed. Please advise as to when
> we may receive it from your office.
>
> Thank you for your kind assistance and cooperation regarding this matter.
>
> Very truly yours,
> Charles E. Shields, III
>
>
>
Page 1 of 1
"
Please Note:
If the Court would like copies of counsel's
notes of telephone conversations
between Charles E. Shields, III, Esquire
and
Thomas A. Hamilton, Esquire,
please advise as we can make these readily available.
EXHIBIT G
I
AFFIDA VIr REGARDING THE TERMS AND CONDITIONS OF
A LOST REVOCABLE REAL PROPERTY TRUST
I, THOMAS A. HAMIL TON, ESQ., being duly sworn according to law, depose and saith
as follows, to wit:
1. I am currently a member in good standing of the Bar of the State of Texas and have an
address of 4132 Willingham Court, Keller, Texas 76248.
2. In and during the years 1994 and 1995 I was a member in good standing of the Bar of
the Commonwealth of Pennsylvania.
3. In or about the Fall of 1994 I put on a seminar at Harrisburg Area Community College
regarding the use of living trusts as part of estate planning, tax planning, and estate settlement
packages available to clients and potential clients.
4. As a result of said Seminar, upon information and belief provided to me by a recital in
the hereinafter mentioned deed, I prepared a Revocable Living Trust commonly called and
referred to as THE DeANGELIS REVOCABLE REAL PROPERTY TRUST with JOSEPH B.
DeANGELIS and JANET DeANGELIS, his wife, as the Trustees thereof.
5. Further, upon such information and belief, the said Trust was executed on the 17th day
of December, 1994.
6. Upon information and belief, in or about the month of May, 1995, I prepared a quit-
claim deed by which JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife, as
Releasors, released and forever quit-claimed to themselves, as Trustees of the aforesaid Trust, all
right. title, interest, claim and demand which they had in their residential property located at 420
Kent Drive, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania.
7. The aforesaid quit-claim deed was dated May 10, 1995 and was recorded by me in the
Office of the Recorder of Deeds in and for Cumberland County on June 8, 1995 in Deed Book
123, Page 312. I have no independent recollection of this recording in particular. Rather, the
information and belief related hereto is provided by the public records including the Recorder's
day book which indicates the instrument was delivered by me.
8. According to then standard procedures, a copy of the said Trust would have been
provided along with the deed for the purpose of review by the Pennsylvania Department of
Revenue for the purpose of making a determination as to the applicability or lack thereof of
realty transfer tax.
9. Upon information and belief provided to me by Charles E. Shields, III, Esq., a
member in good standing of the Bar of the Commonwealth of Pennsylvania, the Department of
Revenue shredded their copy of the said Trust some years ago and Mr. & Mrs. DeAngelis have
no copy of the said Trust.
I "
10. Further, upon information and belief provided to me by Mr. Shields, a copy of this
Trust is needed to prevent or to remove a cloud on the title in that something is needed to show
of record that said Trust contained no restrictions or limitations upon the general right of the
Trustees to freely alien, sell, grant, convey, or otherwise transfer the ownership of the real
property within the said Trust.
11. I have searched my files and have found no copy of the said Trust.
12. I can state and say unequivocally that, although I have no particular or special
recollection of this particular Trust or of the contents thereof, my standard and routine procedure
regarding the preparation of such Trusts as referred to herein in and during the year 1994 was to
prepare a fully discretionary trust that allowed for and permitted total power in the Settlors
during their lifetimes of revocation and amendment. These trusts further provided for full and
absolute powers in the Trustees to sell, grant, convey~ or otherwise transfer all rights, titles, and
interests in and to real property held by them in their capacities as Trustees. I am therefore
certain that this particular Trust would not have contained any restrictions or limitations or the
general power of Trustees to sell, grant, conveyor otherwise transfer all rights, titles, and
interests in and to real property.
Deponent further saith not:
IN WITNESS WHEREOF, I, THOMAS A HAMIL TON, affix my hand and seal this
day of A.D. 2005.
THOMAS A. HAMIL TON
(Seal)
IN WITNESS WHEREOF, the said THOMAS A. HAMIL TON, has appeared before me,
a Notary Public in Tarrant County, in and for the State of Texas, has been duly sworn and has
verified to me the above stated contents of this affidavit. Accordingly, I have signed as a Notary
Public in and for said state and have affixed my seal hereto.
NOTARY PUBLIC
EXHIBIT H
. .
"
THE
DeANGELIS FAMILY
IRREVOCABLE TRUST
THIS TRUST AGREEMENT is executed in triplicate on this 26th day of April, 2000, by
and between JOSEPH B. DeANGELIS and JANET DeANGELIS, now of 420 Kent Drive,
Mechanicsburg, Cumberland County, Pennsylvania 17055 (herein called "Settlors" or "Co-Settlors")
and JOSEPH B. DeANGELIS and JANET DeANGELIS, nowof420 Kent Drive, Mechanicsburg,
Cumberland County, Pennsylvania 17055 (herein called "Trustees" or "Co-Trustees").
ARTICLE I. TRUST ESTATE
1.01. Initial Principal. Settlors, desiring to establish an irrevocable trust, do hereby
irrevocably transfer, assign and deliver to the Trustees and their successors, and assigns the assets
listed on Schedule A, attached hereto and made a part hereof As further evidence of such
assignment, the Settlors have executed or will execute or cause to be executed such other instruments
as may be required for the purposes of completing the assignment or transfer of title to such property
to the Trustees. The Trustees accept such transfer and assignment to themselves as Trustees, and
undertake to hold, manage, invest and reinvest the assets of this Trust, and to distribute the income
and principal of the Trust in accordance with the provisions of this Agreement.
1.02. Additional Principal. The Settlors and any other person or persons, with the consent
of the Trustees, shall have the right at any time to make additions to the corpus of this Trust or any
share thereof hereby established. All such additions shall be held, governed, and distributed by the
Trustees in accordance with the terms and conditions of this Agreement. The Trustee, in its sole
discretion, may require, as a prerequisite to accepting property, that the transferring party provide
evidence satisfactory to the Trustee that (i) the property is not contaminated by any hazardous or
toxic materials or substances; and (ii) the property is not being used and has never been used for any
activities directly or indirectly involving the generation, use, treatment, storage, disposal, release or
discharge of any hazardous or toxic materials or substances.
1.03. Disclaimer. The Trustee shall have the right to disclaim, in whole or in part, prior to
its acceptance by the Trustee, any interests in property for any reason, including but not limited to
a concern that such property could cause potential liability under any federal, state, or local
environmental law.
ARTICLE II. IRREVOCABILITY OF TRUST
2.01. Irrevocability. Settlors have been advised of the consequences ofan irrevocable trust
and hereby declare that this Trust shall be irrevocable and shall not be altered, amended, revoked, or
terminated by Settlors or any other person or persons.
'.
ARTICLE III. LIFE INSURANCE POLICIES
3.01. General Provisions. If any insurance policies are transferred into this Trust, the
Trustees shall be vested with all right, title, and interest in and to the transferred policies of insurance,
and are authorized and empowered to exercise and enjoy, for the purposes ofthe Trust herein created
and as absolute owner of such policies of insurance, all the options, benefits, rights and privileges
under such policies, including the right to borrow upon and to pledge them for a loan or loans. The
Trustees take all rights, title, and interest in and to the above stated insurance policies subject to any
prior split-dollar life insurance agreement and assignments, which may be in effect at the time of
transfer. The insurance companies which have issued policies are hereby authorized and directed to
recognize the Trustees as absolute owners of such policies of insurance and as fully entitled to all
options, rights, privileges, and interests under such policies, and any receipts, releases, and other
instruments executed by the Trustees in connection with such policies shall be binding upon all
persons interested in this Trust. The Settlors hereby relinquish all rights, title, interest and powers
in such policies of insurance which Settlors may own and which rights, title, interest and powers are
not assignable, and will, at the request of the Trustees, execute all other instruments reasonably
required to effectuate this relinquishment.
3.02. Payment of Premiums. The Trustees shall be under no obligation to pay the
premiums which may become due and payable under the provisions of any policy of insurance which
may be transferred or assigned to this Trust, or to make certain that such premiums are paid by the
transferor of such policy, or to notify any persons of the nonpayment of such premiums, and the
Trustees shall be under no responsibility or liability of any kind in case such premiums are not paid,
except the Trustees shall apply any dividends received on such policies to the payment of premiums
thereon. Upon notice at any time during the continuance of this Trust that the premiums due upon
such policies are in default, or that premiums which will become due will not be paid, either by the
transferor or by any other person, the Trustees, within their sole discretion, may apply any cash values
attributable to such policy to the purchase of paid-up insurance or of extended insurance, or may
borrow upon such policy for the payment of premiums due thereon, or may accept the cash values
of such policy upon the policy's forfeiture. In the event that the Trustees receive the cash value of
such policy upon its forfeiture for nonpayment of premiums, the amount received shaH be added to
the corpus of this Trust, and shall be administered according to the terms of this Agreement. If the
insured under such policies of insurance, becomes totally and permanently disabled within the
meaning of any policies and because thereof the payment of premiums, or any of them, shaH during
the pendency of such disability, be waived, the Trustees, upon receipt of such knowledge, shall
promptly notify the insurance company which has issued such policies, and shall take any and all steps
necessary to make such waiver of premium provision effective.
3.03. Duties of Trustees With Re~ard to Life Insurance Policies. The Trustees shall be
under no obligation or duty whatever except with respect to the safekeeping of such policies of
insurance and the duty to receive such sums as may be paid to them, in accordance with the
requirements of this Trust, by the companies issuing such policies, and to hold, manage and disburse
such proceeds subject to the terms of this Agreement. Upon the death of the insured, the Trustees
2
"
shall make reasonable efforts to carry out the provisions of this Agreement, including the maintenance
or defense of any suit, provided, however, the Trustees shall be under no duty to maintain or enter
into any litigation unless its expenses, including counsel fees and costs, have been advanced or
guaranteed in an amount and in a manner reasonably satisfactory to the Trustees. The Trustees may
repay any advances made by them or reimburse themselves for any such fees and costs from any
corpus or income of this Trust.
ARTICLE IV. TRUST DISTRIBUTIONS
4.01. Trust Princioal. The entire corpus of this Trust, including the assets initially
transferred to this Trust, subsequent additions to this Trust, and the proceeds of any sale, exchange
or investment of such Trust assets, shall be used for the purposes herein contained.
4.02. Income Distribution. During the Settlors' lifetimes, the Trustees shall distribute all
of the net income of the trust to, or for the benefit of, JOSEPH B. DeANGELIS and JANET
DeANGELIS, for and during the remainder of their lives, and the Trustees shall distribute all of the
net income of the Trust to, or for the benefit of, the survivor of them during the survivor's lifetime,
provided that ifeither JOSEPH B. DeANGELIS or JANET DeANGELIS should be admitted into
a long-term care facility for a period of time greater than thirty (30) days, then the Trustees shall
distribute all of the net income of the trust to, or for the benefit of, JOSEPH B. DeANGELIS or
JANET DeANGELIS, whichever of them is not residing in a long-term care facility. In the event
both JOSEPH B. DeANGELIS and JANET DeANGELIS should be residing in a long-term care
facility for a period of time greater than thirty (30) days, the Trustees shall discontinue distribution
of all income to both of them, and shall accumulate any and all of the net income of the trust, and
shall add such net income to the principal of the trust. The Trustees shall make no distribution of
principal to, or for the benefit of, the Settlors.
4.03. Princioal Distributions. Upon the death of both Settlors, the Trust shall terminate.
Upon termination, the remaining trust estate shall be distributed to the Settlors' children, in equal
shares, per stirpes.
4.04. General Power of Appointment. Settlors' children, GREGORY B. DeANGELIS,
TODD A. DeANGELIS, DREW J. DeANGELIS, JODI D. DeANGELIS and TARAL YN J.
BRADLEY, are hereby granted the general power to jointly appoint some or all of the principal of
this Trust to themselves, their estates, their creditors, the creditors of their estate, in such proportions
and upon such terms (in trust, outright gifts, or in any other manner) as they shall deem advisable,
provided that this power shall not be exercisable under their Wills and that this power shall only be
exercisable by a majority of the Settlors' then-living children. If the Settlors' children, GREGORY
B. DeANGELIS, TODD A. DeANGELIS, DREW J. DeANGELIS, JODI D. DeANGELIS and
TARALYN J. BRADLEY fail, either in whole or in part, to exercise this general power of
appointment herein granted, the unappointed principal shall continue in trust and shall be administered
according to the terms of this Trust.
3
, "
ARTICLE V, POWERS OF TRUSTEES
5,01. General powers. In addition to such other powers and duties as may have been
granted elsewhere in this Trust, but subject to any limitations contained elsewhere in this Trust, the
Trustees shalJ have the following powers and duties:
A. In the management, care and disposition of this Trust, the Trustees shall have the power
to do all things and to execute such deeds, instruments, and other documents as may be deemed
necessary and proper, including the following powers, all of which may be exercised without order
of or report to any court:
( 1 ) To selJ, exchange, or otherwise dispose of any property, real, personal or
mixed, wheresoever located, at any time held or acquired hereunder, at public or
private sale, for cash or on terms as may be determined by the Trustees, without
advertisement, including the right to lease for any term notwithstanding the period of
the Trust, and to grant options, including an option for a period beyond the duration
of the Trust.
(2) To invest all monies in such stocks, bonds, secuntles, investment
companies or trust shares, mortgages, notes, choses in action, real estate,
improvements thereon, and other property as the Trustees may deem best, without
regard to any law now or hereafter in force limiting investments of fiduciaries; except
that the Trustees may not invest in any stock or securities issued by the corporate
Trustee or issued by a parent or affiliate company of such Trustee.
(3) To retain for investment any property deposited with the Trustees
hereunder; except that the Trustees may not retain for investment any stock or
securities in the corporate Trustee or in a parent or affiliate company of such Trustee.
(4) To vote in person or by proxy any Corporate stock or other security and
to agree to or take any other action in regard to any reorganization, merger,
consolidation, liquidation, bankruptcy or other procedure or proceedings affecting any
stock, bond, note or other security held by this Trust.
(5) To use lawyers, real estate brokers, accountants and any other agents, if
such employment is deemed necessary or desirable, and to pay reasonable
compensation for their services.
(6) To compromise, settle or adjust any claim or demand by or against the
Trust and to agree to any rescission or modification of any contact or agreement
affecting the Trust.
4
, '.
(7) To renew any indebtedness, as well as to borrow money, and to secure
the same by mortgaging, pledging or conveying any property of the Trust, including
the power to borrow from the Trustees (in the Trustees' individual capacity) at a
reasonable rate of interest.
(8) To retain any business interest transferred to the trustee, as shareholder,
security holder, creditor, partner or otherwise, for any period of time whatsoever,
even though the interest may constitute all or a large portion of the trust principal; to
comply with the provisions of any agreement restricting transfer of the interest; to
participate in the conduct of the related business or rely upon others to do so, and to
take or delegate to others discretionary power to take any action with respect to its
management and affairs which an individual could take as outright owner of the
business or the business interest, including the voting of stock (by separate trust or
otherwise regardless of whether that separate trust will extend for a term within or
beyond the term of the trust) and the determination of all questions of policy; to
execute and amend partnership agreements; to participate in any incorporation.,
reorganization, merger, consolidation, sale of assets, recapitalization, liquidation or
dissolution of the business, or any change in its nature, or in any buy-sell, stock
restriction, or stock redemption agreements; to invest in additional stock or securities
of, or make secured, unsecured, or subordinated loans to, the business with trust
funds; to take all appropriate actions to prevent identify, or respond to actual or
threatened violations of any environmental law or regulation thereunder; to elect or
employ with compensation, as directors, officers, employees, or agents of the
business, any persons, including a trustee of any trust held under this instrument, or
any director, officer, employee, or agent of a corporate trustee of any trust held
under this instrument, without adversely affecting the compensation to which that
trustee would otherwise be entitled; to rely upon reports of certified public
accountants as to the operations and financial condition of the business, without
independent investigation; to deal with and act for the business in any capacity
(including in the case of a corporate trustee any banking or trust capacity and the
loaning of money out of the trustee's own funds) and to be compensated therefor; and
to sell or liquidate the business or any interest in the business.
(9) To register any stock, bond or other security in the name of a nominee,
without the addition of words indicating that such security is held in a fiduciary
capacity, but accurate records shall be maintained showing that the stock, bond or
other security is a trust asset and the Trustees shall be responsible for the acts of the
nommee.
(10) To merge this Trust with any other trust created in my Will or otherwise,
with similar provisions and purposes and the same beneficiary or beneficiaries, but
only to the extent that the merger of the trusts will not cause the imposition of gift tax
or generation-skipping tax, federal or otherwise.
5
, "
(l I) To set aside as a separate trust, to be held and administered upon the
same terms as those governing the remaining trust property, any interests in property,
for any reason, including but not limited to a concern that such property could cause
potential liability under any federal, state, or local environmental law.
B. Whenever the Trustees are directed to distribute any trust principal in fee simple to a
person who is then under twenty-one (21) years of age, the Trustees shall be authorized to hold such
property in trust for such person until he becomes twenty-one (2 I ) years of age, and in the meantime
shall use such part of the income and the principal of the trust as the Trustees may deem necessary
to provide for the proper support and education of such person in the standard ofliving to which he
has become accustomed. If such person should die before becoming twenty-one (21) years of age,
the property then remaining in trust shall be distributed to the personal representative of such person's
estate.
C. In making distributions from the Trust to or for the benefit of any minor or other person
under a legal disability, the Trustees need not require the appointment of a guardian, but shall be
authorized to payor deliver the distribution to the custodian of such person, to payor deliver the
distribution to such person without the intervention of a guardian, to payor deliver the distribution
to the legal guardian of such person if a guardian has already been appointed, or to use the
distribution for the benefit of such person.
D. In the distribution of the Trust and any division into separate trusts and shares, the
Trustees shall be authorized to make the distribution and division in money or in kind or in both,
regardless of the basis for income tax purposes of any property distributed or divided in kind, and the
distribution and division made and the values established by the Trustees shall be binding and
conclusive on all persons taking hereunder. The Trustees may in making such distribution or division
allot undivided interests in the same property to several trusts or shares.
E. I f at any time after Settlors' death the total fair market value of the assets of any trust
established or to be established hereunder is so small that the corporate Trustee's annual fee for
administering the trust would be equal to or less that the minimum annual fee set forth in the Trustee's
regularly published fee schedule, then the Trustee in its discretion shall be authorized to terminate
such trust or to decide not to establish such trust, and in such event the property then held in or to
be distributed to such trust shall be distributed to the persons who are then or would be entitled to
the income of such trust. If the amount of income to be received by such persons is to be determined
in the discretion of the Trustee, then the Trustee shall distribute the property among such of the
persons to whom the Trustee is authorized to distribute income, and in such proportions, as the
Trustee in its discretion shall determine.
F. The Trustees shall be authorized to lend or borrow, including the right to lend to or
borrow from the Settlors' estate, at an adequate rate of interest and with adequate security and upon
such terms and conditions as the Trustees shall deem fair and equitable.
6
I "
G. The Trustees shall be authorized to sell or purchase, at the fair market value as determined
by the Trustees, any property to or from Settlors' estate, the estate of Settlor's spouse, or any trust
created by Settlor or Settlor's spouse during life or by will, even though the same person or
corporation may be acting as executor of Settlor's estate or the estate of Settlor's spouse or as trustee
of any other such trusts and as the Trustees of this Trust.
H. The Trustees shall have discretion to determine whether items should be charged or
credited to income or principal or allocated between income and principal as the Trustees may deem
equitable and fair under all the circumstances, including the power to amortize or fail to amortize any
part or all of any premium or discount, to treat any part or all of the profit resulting from the maturity
or sale of any asset, whether purchased at a premium or at a discount, as income or principal or
apportion the same between income and principal, to apportion the sales price of any asset between
income and principal, to treat any dividend or other distribution on any investment as income or
principal or to apportion the same between income or principal, to charge any expense against income
or principal or apportion the same, and to provide or fail to provide a reasonable reserve against
depreciation or obsolescence on any asset subject to depreciation or obsolescence, all as the Trustees
may reasonably deem equitable and just under all of the circumstances.
I. The Trustees are hereby authorized and empowered to purchase such insurance policies
as they deem appropriate.
5.02. V otin!! bv Trustees. When the authority and power under this Trust is vested in two
(2) or more Trustees or Co- Trustees, the authority and power under this Trust or granted by law shall
be vested in, and exercised by, each of the Trustees individually or all of the Trustees jointly, such that
each Trustee may act independently, or the trustees may act jointly, in the administration or under the
terms of the Trust agreement.
5.03. Trustees Power to Deal with Environmental Hazards. The Trustee shall have the
power to use and expend the trust income and principal to (i) conduct environmental assessments,
audits, and site monitoring to determine compliance with any environmental law or regulation
thereunder; (ii) take all appropriate remedial action to contain, clean up or remove any environmental
hazard including a spill, release, discharge or contamination, either on its own accord or in response
to an actual or threatened violation of any environmental law or regulation thereunder; (iii) institute
legal proceedings concerning environmental hazards or contest or settle legal proceedings brought
by any local, state, or federal agency concerned with environmental compliance, or by a private
litigant; (iv) comply with any local, state or federal agency order or court order directing an
assessment, abatement or cleanup of any environmental hazards; and (v) employ agents, consultants
and legal counsel to assist or perform the above undertakings or actions. Any expenses incurred by
the trustee under this paragraph may be charged against income or principal as the trustee shall
determine.
7
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ARTICLE VI. SPENDTHRIFT PROVISION
6.01. General Provision. No beneficiary shall have the power to anticipate, encumber or
transfer his interest in the Trust Estate in any manner other than by the valid exercise ofa Power of
Appointment. No part of the Trust Estate shall be liable for or charged with any debts, contacts,
liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a
beneficiary.
ARTICLE VII. CONSTRUCTION OF TRUST
7.01. Choice of Law. This Trust shall be administered and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania.
7.02. Code. Unless otherwise stated, all references in this Trust to section and chapter
numbers are to those of the Internal Revenue Code of] 986, as amended, or corresponding provisions
of any subsequent federal tax laws applicable to this Trust.
7.03, Other Terms. Unless the context otherwise requires, the use of one or more genders
in the text includes all other genders, and the use of either the singular or the plural in the text
includes both the singular and the plural.
7.04. CaDtions, The captions set forth in this Agreement at the beginning of the various
divisions hereof are for convenience of reference only and shall not be deemed to define or limit the
provisions hereof or to affect in any way their construction and application.
7.05. Situs of Trust. The Trust shall have its legal situs in Cumberland County,
Pennsylvania.
ARTICLE VIII.
COMPENSA TION OF TRUSTEES AND
APPOINTMENT OF SUCCESSOR TRUSTEES
8.01. Compensation. The Trustees shall receive as their compensation for the services
performed hereunder that sum of money, based on an hourly charge or percentage rate, which the
Trustees normally and customarily charge for performing similar services during the time which they
perform these services.
8.02. Removal of Trustees. Settlors, or the survivor of them, may remove the Trustees,
or any of them, at any time or times, with or without cause, upon thirty (30) days' written notice given
to the current Trustees. Upon the death of both Settlors, a majority of the current income
beneficiaries may remove the Trustees, or any of them, at any time or times, with or without cause,
upon thirty (30) days' written notice given to the Trustees. Upon the removal of the Trustees, a
successor Trustee shall be appointed in accordance with the terms set forth in Paragraph 8.03.
8
# "
8.03. Appointment of Successor Trustee. The Trustees, or any of them, may resign at any
time upon thirty (30) days' written notice given to the Settlors, or the survivor of them, or in the event
of the death of both Settlors, upon thirty (30) days' written notice given to the current income
beneficiary or beneficiaries (including a beneficiary's natural or legal guardian or legal representative),
hereunder. Upon the death, resignation, removal or incapacity of the Trustees, then the Settlors'
child, T ARAL YN J. BRADLEY, shall become the successor trustee. Upon the death, resignation,
removal or incapacity of T ARAL YN J. BRADLEY, then additional successor trustees may be
appointed by the Settlors or the survivor during Settlors' lifetimes, or, after Settlors' deaths, by a
majority of the current income beneficiaries. Any successor trustee shall be a financially sound and
competent Corporate trustee or issue of the Settlors. Any successor trustee thus appointed, or, if the
Trustees shall merge with or be consolidated with another corporate fiduciary, then such Corporate
fiduciary, shall succeed to all the duties and to all the powers, including discretionary powers, herein
granted to the Trustees.
8.04. Exoneration of Trustee. No Trustee shall be liable for any loss or depreciation in
value sustained by the Trust as a result of the Trustee retaining any property upon which there is later
discovered to by hazardous materials or substances requiring remedial action pursuant to any federal,
state, or local environmental law, unless the Trustee contributed to the loss or depreciation in value
through willful default, willful misconduct, or gross negligence.
8.05. Indemnification of Trustee UOOD Distribution. Notwithstanding any contrary
provision in this Trust Agreement, the Trustee may withhold a distribution to a beneficiary until
receiving from the beneficiary an indemnification an agreement in which the beneficiary agrees to
indemnify the Trustee against any claims filed against the Trustee as an "owner" or "operator" under
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as from time
to time amended, or any regulation thereunder.
ARTICLE IX. PERPETUITIES CLAUSE
9.01. General Provision. Notwithstanding anything to the contrary in this Trust, each
disposition J have made here, legal or equitable, to the extent it can be referred in its postponement
of becoming a vested interest to a duration measured by some life or lives in being at the time of my
death is definitely to vest in interest, although not necessarily in possession, not later that twenty-one
(21) years after such lives (and any period of gestation involved); or, to the extent it cannot be
referred in any such postponement to such lives, is to so vest not later than twenty-one (21) years
from the time of my death.
9
,
ARTICLE X.
ACQUISITION OF UNITED STATES TREASURY BONDS
ELIGIBLE FOR TAX PAYMENT; PAYMENT OF TAXES, FUNERAL
EXPENSES, AND EXPENSES OF ADMINISTRATION
10.01. Acauisition of Bonds. The Trustees may, at any time, without the prior approval or
direction ofthe Settlors and whether or not the Settlors are able to manage their own affairs, acquire
United States Treasury Bonds selling at a discount, which bonds are redeemable at their par value
plus accrued interest thereon for the pUrposes of applying the proceeds to the payment of the United
States estate tax on the Settlors' estate; and the Trustee may borrow from any lender, including itself,
with or without security, to so acquire these bonds.
10.02. Payment of United States Estate Tax bv Bond Redemotion. The Settlors direct
that any United States Treasury Bonds which may be redeemed at their par value plus accrued
interest thereon for the purpose of applying the proceeds to the payment of the United States estate
tax imposed on the Settlors' estates, and which are held by the Trustees, shall, to the extent of the
amount determined to be required for payment of the estate tax, be distributed to the legal
representative of the Settlors' estates to be used by the legal representative ahead of any other assets
and to the fullest extent possible to pay the estate tax.
10.03. Payment of Death Taxes and Other Estate Settlement Costs. After the Trustees
have complied with paragraph 10.02, above, and ascertained from the legal representative that all
such bonds have been redeemed in payment of the United States estate tax, the Trustees shall also
ascertain from the legal representative whether the legal representative has sufficient assets to pay the
remaining legacy, succession, inheritance, transfer, estate and other death taxes or duties (except the
additional estate tax imposed by Section 2032(c), or corresponding provisions of the Internal
Revenue Code of 1986 applicable to the Settlors' estates and imposing the tax) levied or assessed
against the Settlors' estates (including all interest and penalties thereon), all of which taxes, interest
and penalties are hereafter referred to as the death taxes, interest and penalties. If the legal
representative advises the Trustees that insufficient funds exist to pay all the death taxes, interest and
penalties, the Trustees shall then pay to the legal representative from the trust property, an amount
equal to all the death taxes, interest and penalties in excess of the funds available to the legal
representative for this purposes, which payments are to be made without apportionment. In making
the payments, the Trustees shall use only those assets or their proceeds which are includable in the
Settlors' gross estates for purposes of the United States estate tax and shall not impair the marital
portion without first exhausting the entire non-marital Portion.
If the Executors of the Settlors' Estates, in such Executor's sole discretion, shall determine
that appropriate assets ofSettlors' estates are not available in sufficient amount to pay (I) the Settlors'
funeral expenses, and (2) expenses of administering the Settlors' estates, the Trustees shall, upon the
request of the Executor of the Settlors' estates, contribute from the principal of the trust estate the
amount of such deficiency; and in connection with any such action the Trustees shall rely upon the
written statement of the Executor of the Settlors' estates as to the validity and correctness of the
10
. "
amounts of any such expenses, and shall furnish funds to such Executor so as to enable such Executor
to di scharge the same, or to discharge any part of all thereof itself by making payment directly to the
person entitled or claiming to be entitled to receive payment thereof No consideration need be
required by the Trustees from the Executor of Settlors' estates for any disbursement made by the
Trustees pursuant hereto, nor shall there be any obligation upon such Executor to repay to the
Trustees aoy of the funds disbursed by it hereunder, aod ail amounts disbursed by the Trustee,
pursuant to the authority hereby conferred upon it shall be disbursed without any right in or duty
Upon the Trustees to seek or obtain contribution or reimbursement from any person or property on
account of such payment. The Trustees shall not be responsible for the application of any funds
delivered by it to the Executor of the Settlors' estates pursuant to the authority herein granted, nor
shall the Trustees be subject to liability to any beneficiary hereunder on account of any payment made
by it pursuant to the provisions hereof
IN WITNESS WHEREOF, the Settlors and Trustees have hereunto set their hands and seals
as of the day and year first above written.
WITNESS:
n
c!27r;:-,_~ I~~r\ ~
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/" iOSE~H B. DeANGELIS, SETTLOR
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J CL\t/ ' I c' e 'lIJ--t.L., (SEAL)
.fAiNET DeANGELIS; SETTLOR
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11
# "
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
On this, the cJJl!. day of April, 2000, before me, a Notary Public, the undersigned officer,
personally appeared JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife, known to me
(or satisfactorily proven) to be the persons whose names are subscribed to the within Trust
Agreement, and acknowledged that they executed the same for the purposes therein contained.
SS:
IN WITNESS WHEREOF, I have set my hand and official Seal.
){(i)(1jJ(U,
Notary Public
My Commission Expires:__
Notarial Seal
Teri L. Walker, Notary Pu~ii(; l
Lemovne Bore, Cumberlar;,d '-'OU;'lt~" t
, My Commission Expires Ja". 20. ~OO." i
, IvIC'7i:J9:, Pennsylvania ASSOCiation at Nct::nes
The foregoing Trust Agreement was delivered, and is hereby accepted, at Mechanicsburg,
Pennsylvania, on April r4(p ,2000.
WrTNESS:
~A' \ \tf~ct~
c<~c<~~
(SEAL)
PH B. DeANGELIS, TRUSTEE
.6-JA~
(SEAL)
RUSTEE
12
. ;
i
SCHEDULE" A"
SCHEDULE
REFERRED TO IN THE ANNEXED
TRUST AGREEMENT
DA TED APRIL 26th, 2000
FROM JOSEPH B. DeANGELIS AND JANET DeANGELIS,
SEITLORS
TO JOSEPH B. DeANGELIS AND JANET DeANGELIS,
TRUSTEES
PROPERTY DESCRIPTION:
13
EXHIBIT I
117172-2
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TAX PARCEL NO. 42-28-2421-224
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DEE D '00 flAY 9 PrJ Y 20
THIS DEED is made the i -Cday of May, in the year two thousand (2000).
BETWEEN JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife, now of 420 Kent
Drive, Mechanicsburg, Cumberland County, Pennsylvania ] 7055, parties of the first part,
GRANTORS,
AND
JOSEPH B. DeANGELIS and JANET DeANGELIS, husband and wife, Co-Trustees of THE
DeANGELIS FAMILY IRREVOCABLE TRUST dated April 26, 2000, parties of the second
part, GRANTEES.
WITNESSETH, that said parties ofthe first part, for and in consideration of the sum of One ($1.00)
Dollar, lawful money of the United States of America, well and truly paid by the said parties of the
second part to the said parties of the first part, at or before the sealing and delivery of these presents,
the receipt whereof is hereby acknowledged, has hereby granted, bargained, sold, aliened, enfeoffed,
released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff,
release, convey and confirm unto the said parties of the second part, their heirs, successors and
assigns,
ALL THA T CERTAIN piece or parcel of/and situate in the Township of Upper Allen, County of
Cumberland and State of Pennsylvania, bounded and described as follows:
BEGINNING at a point on the northern line of Kim Acres Drive, said point being referenced
westwardly a distance of six hundred fifty-two and fifty-two one-hundredths (652.52) feet from the
center line ofMt. Allen Drive; thence along the northern line of Kim Acres Drive, South eighty-four
(84) degrees fifty-three (53) minutes West, a distance of one hundred (100) feet to a point; thence
North five (5) degrees seven (7) minutes West, a distance of one hundred thirty-two (132) feet to a
point; thence North eighty-four (84) degrees fifty-three (53) minutes East, a distance of ninety-four
and seventy-eight one-hundredths (94.78) feet to a point; thence South seven (7) degrees twenty-
three (23) minutes East, a distance of one hundred thirty-two and ten one-hundredths (132.10) feet
to a point on the northern line of Kim Acres Drive, the Place of BEGINNING.
HA VING THEREON ERECTED a single brick dwelling known as No. 420 Kent Drive.
BEING the same premises which Dean P Lorah and Dora R. Lorah, his wife, by their deed dated
and recorded June 23, 1976, in the Cumberland County Recorder's Office in Book Q26, at Page
587, granted and conveyed to Joseph B. DeAngelis and Janet DeAngelis, his wife, Grantors herein.
SUBJECT to restrictions as contained in prior deeds.
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THIS IS A TRANSFER FOR NOMINAL CONSIDERA TION TO TRUSTEES OF A LIVING
TRUST AND IS THEREFORE EXEMPT FROM THE PAYMENT OF REALTY
TRANSFER TAX.
TOGETHER with all and singular the buildings and improvements, ways, streets, alleys, driveways,
passages, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances,
whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the
reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest,
property, claim, and demand whatsoever of the said Grantors, as well at law as in equity, of, in, and
to the same.
TO HAVE AND TO HOLD, the said Jot or piece of ground above-described, with all and singular
the buildings and improvements thereon erected, hereditaments and premises hereby granted, or
mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and
assigns, to and for the only proper use and behoof of the said Grantees, their heirs and assigns
forever.
AND the said Grantors, for themselves, their heirs, executors and administrators, do covenant,
promise and agree, to and with the said Grantees, their heirs and assigns, by these presents, that they,
the said Grantors, and their heirs, all and singular the hereditaments and premises hereby granted or
mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and
assigns, against them, the said Grantors and their heirs, and against all and every person and persons
whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her,
them or any of them, shall and will, subject as aforesaid, SPECIALLY WARRANT AND
FOREVER DEFEND.
IN WITNESS WHEREOF, the said parties of the first part have hereunto set their hands and seals,
the day and year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF
(SEAL)
BOOK 220 ?~&i10 56
.. '.
.
COMMONWEAL TH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
SS:
On this, the ~ day of May, 2000, before me, a Notary Public for the Commonwealth of
Pennsylvania, the undersigned officer, personally appeared JOSEPH B. DeANGELIS and JANET
DeANGELIS, his wife, known to me (or satisfactorily proven) to be the persons whose names are
subscribed to the within instrument, and acknowledged that they executed the same for the purpose
therein contained.
IN WITNESS WHEREOF, I have set my hand and notarial seal.
i" 1':'
J-fuJ {Jjjfv J
Notary Public -
My Commission Ex ires:
Notarial Seal
Teri L. Walker, Notary PUblic
Lemoyne Bora, Cumberland County
My Commission Expires Jan. 20, 2003
Member, Pennsylvania Association at Notaries
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COMMONWEAL TH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
SS:
RECORDED in the Office for Recording of Deeds, etc., in and for said County, in Deed Book
No. d.:1C , Page i C~
WITNESS my hand and official seal this C1 day of 7Y7(~ .
~rr
,2000.
Recorder of Deeds
-Mar. 2:~ 1
QI PACe' (}57
. '
~
CERTIFICA TE OF RESIDENCE
I hereby certify that the present residence of the Grantees herein is as follows:
Joseph B. DeAngelis and Janet DeAngelis
Trustees of The DeAngelis Family Irrevocable Trust
420 Kent Street
Mechanicsburg, PA 17055
RETURN DEED TO:
The DeAngelis Family Irrevocable Trust
Joseph B. DeAngelis and Janet DeAngelis, Trustees
420 Kent Street
Mechanicsburg, PA 17055
BaDK 220 p~[i10 58
EXHIBIT J
..
Tax Parcel No.
THIS INDENTURE
Made the
and six (2006).
day of
in the year two thousand
BETWEEN
JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife, of Upper Allen
Township, Cumberland County, Pennsylvania, in their capacities of Co-Trustees
of "THE DeANGELIS FAMILY REVOCABLE PROPERTY TRUST,"
Grantors,
and
the same said JOSEPH B. DeANGELIS and JANET DeANGELIS, his wife, in
their individual capacities, Grantees.
WHEREAS, by divers grants and conveyances a cloud has appeared upon the title to the
hereinbelow described premises; and
WHEREAS, in an effort to remove said cloud, the said Grantors and Grantees herein,
have filed a PETITION FOR A RECORnABLE DECREE TO CLEAR CLOUDS FROM
TITLE AND TO ELIMINATE EMINENT EXPOSURE TO THE HAZARDS OF
POSSIBLE LITIGATION in the Court of Common Pleas of Cumberland County, Pennsylvania,
Orphans' Court Division, which is docketed to No. 21-06- and which sets forth the
background events leading to this deed more fully at large; and
WHEREAS, after review of said PETITION, , 1. has issued an
ORDER dated the day of , A.D. 2006, which provided for, inter
alia, the delivering up and cancellation of a certain deed purporting to convey title into the
Grantors herein, as Co-Trustees of the "DeANGELIS FAMILY IRREVOCABLE TRUST,"
dated May 1, 2000 and recorded May 9, 2000 in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania in Deed Book 220, Page 1055 (copy of said ORDER is
attached hereto and recorded herewith); and
WHEREAS, as per the terms of said ORDER, the said DeAngelises have executed a
disclaimer of any interest in or to the said premises as Trustees of the "DeANGELIS FAMILY
IRREVOCABLE TRUST" (copy of said Disclaimer is attached hereto and recorded herewith);
and
WHEREAS, the five (5) children of the said Grantors, to wit: Gregory B. DeAngelis,
Todd A. DeAngelis, Drew 1. DeAngelis, Jodi D. DeAngelis, and Taralyn 1. Bradley, in an
abundance of caution, have also executed Disclaimers of any interest in or to the premises by
virtue of their having been named remaindermen in the aforesaid IRREVOCABLE TRUST
(copies of said Disclaimers are attached hereto and recorded herewith); and
WHEREAS, in accordance with the terms of said ORDER, the said Grantors are
specifically authorized and empowered to make, sign, seal and deliver this deed from themselves,
in their capacities as Trustees of the "DeANGELIS FAMILY REVOCABLE PROPERTY
TRUST" aforesaid to themselves in their individual capacities, to create a complete or perfected
good and marketable legal and equitable title and a title which will incorporate and include with it
all rights of property in and to the said premises at 420 Kent Drive, Mechanicsburg, Upper Allen
Township, Cumberland County, Pennsylvania.
..
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that the said JOSEPH B.
DeANGELIS and JANET DeANGELIS, his wife, in their capacities as Trustees of the
"DeANGELIS REVOCABLE PROPERTY TRUST,"; as aforesaid, for and in consideration of
the sum of ONE and No/tOO ($1.00) DOLLAR and other good and valuable considerations, to
them in hand paid by the said Grantees, at and before the ensealing and delivery hereof, the receipt
whereof is hereby acknowledged, have granted, bargained, sold, aliened, released, and confirmed,
and by these presents, by virtue of the power and authority in them vested by the Fiduciaries Act of
the Commonwealth of Pennsylvania, and by virtue of their own inherent powers and authorities
vested in them by the laws of this Commonwealth, do grant, bargain, sell, alien, release, and
confirm unto the said Grantees, their heirs and assigns:
ALL THA T CERTAIN piece or parcel ofland situate in the Township of
Upper Allen, County of Cumberland and Commonwealth of Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a point on the northern line of Kim Acres Drive, said
point being referenced westwardly a distance of six hundred fifty-two and fifty-
two one-hundredths (652.52) feet from the centerline of Mt. Allen Drive; thence
along the northern line of Kim Acres Drive, South eighty-four (84) degrees fifty-
three (53) minutes West, a distance of one hundred (100) feet to a point; thence
North five (5) degrees seven (7) minutes West, a distance of one hundred thirty-
two (132) feet to a point; thence North eight-four (84) degrees fifty-three (53)
minutes East, a distance of ninety-four and seventy-eight one-hundredths (94.78)
feet to a point; thence South seven (7) degrees twenty-three (23) minutes East, a
distance of one hundred thirty-two and ten one-hundredths (132.10) feet to a point
on the northern line of Kim Acres Drive, the place of BEGINNING.
HA VING THEREON ERECTED a single brick dwelling known as No.
420 Kent Drive.
BEING THE SAME PREMISES which Dean P. Lorah and Dora R. Lorah, his wife, by
their deed dated June 23, 1976 and recorded the same date in the Recorder of Deeds Office
aforesaid in Deed Book "Q", Volume 26, Page 587, granted and conveyed the instant premises to
the Grantors herein in their individual capacities.
AND ALSO BEING THE SAME PREMISES or more particularly an interest in the
title hereto, which the Grantors herein, in their individual capacities quit-claimed to "The
DeAngelis Revocable Real Property Trust", Joseph B. DeAngelis and Janet DeAngelis, his wife
(hereinafter called the Trustees)," by that certain quit-claim deed dated May 10,1995 and recorded
June 8, 1996 in the Recorders Office aforesaid in Deed Book 123, Page 12.
AND ALSO FURTHER BEING THE SAME PREMISES, or more particularly stated:
an interest in the property of the premises and purportedly the title thereto which the Grantors
herein, in their individual capacities, and not as Trustees of the said Revocable Real Property Trust
nor in any other capacity related to the said Revocable Real Property Trust, by their deed dated
May 1,2000 and recorded May 9, 2000 in the Recorder's Office aforesaid in Deed Book 220, Page
1055 attempted to grant and convey to themselves as Co-Trustees of the DeAngelis Family
Irrevocable Trust.
THIS TRANSACTION IS REALTY TRANSFER TAX EXEMPT AS BEING A
TRANSFER FOR NO OR NOMINAL ACTUAL CONSIDERATION WHICH CORRECTS
A TRANSFER PREVIOUSLY RECORDED AND REMOVES A CLOUD ON TITLE TO
THE PREMISES HEREIN INVOLVED.
TO HAVE AND TO HOLD the said message or tenement and tract of land,
hereditaments and premises hereby granted and released, or mentioned and intended so to be, with
...
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the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only proper use
and behoof of the said Grantees, their heirs and assigns, forever.
AND THE SAID GRANTORS, Co-Trustees as aforesaid, their heirs, successors, and
assigns do covenant, promise and agree to and with the said Grantees, their heirs and assigns, by
these presents, that the Grantors have not done, committed any act, matter or thing whatsoever
whereby the premises hereby granted, or any part thereof, is, are, shall or may be impeached,
charged or encumbered in title, or otherwise howsoever.
IN WITNESS WHEREOF, the said parties of the first part have hereunto set their hands
and seals to this Deed dated the day and year first written above.
Signed, sealed and delivered
in the presence of:
(SEAL)
JOSEPH B. DeANGELIS, Co-Trustee of
"THE DeANGELIS FAMILY REVOCAB1,E
PROPERTY TRUST"
(SEAL)
JANET DeANGELIS, Co-Trustee of
"THE DeANGELIS FAMILY REVOCABLE
PROPERTY TRUST"
...
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I
"
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COMMONWEAL TH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
: SS.
On this, the day of , A.D. 2006, before me
the undersigned officer, personally appeared JOSEPH DeANGELIS and JANET DeANGELIS,
his wife, known to me (or satisfactorily proven) to be the person whose names are subscribed to
the within instrument, and acknowledged that they executed the same in the capacities therein set
forth an for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
CERTIFICATE OF RESIDENCE
I HEREBY CERTIFY that the precise residence of the Grantees is:
420 Kent Drive, Mechanicsburg, PAl 7055.
Attorney for Grantee