LoveLovingLove v. Urban Property Solutions

J-S23019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LOVELOVINGLOVE, INC : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

URBAN PROPERTY SOLUTIONS, LLC :

:

Appellant : No. 338 EDA 2020

Appeal from the Judgment Entered January 9, 2020,

in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): No. 170400258.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 8, 2021

Urban Property Solutions, LLC (“the Real Estate Company”) appeals

from the judgment entered, partially in its favor and partially in favor of

LoveLovingLove, Inc. (“the Charity”). Following a non-jury trial, the trial court

quieted title to a piece of land (“the Property1”) in the Charity, because (1)

the Charity acquired title first and (2) the Real Estate Company was not a

subsequent bone fide purchaser for value. The trial court also ruled in favor

of the Real Estate Company on its counterclaim for unjust enrichment. For

the reasons that follow, we affirm.

In April of 2017, the Charity sued the Real Estate Company and Thomas

L. Miller for quiet title to two properties, including the one at issue here. The

Real Estate Company denied the Charity’s claims of ownership and asserted a

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The Property is at 675 North 41st Street, in the City of Philadelphia.

J-S23019-21

counterclaim of ownership of both properties. Failing that, it alternatively

brought a counterclaim for unjust enrichment, because the Real Estate

Company claimed to have paid certain liens on the properties.

Mr. Miller, who received service of process, did not participate in this

matter. The trial court therefore entered default judgment against him. Thus,

he no longer owns either property.

The matter proceeded to a bench trial, where the court found the facts

to be as follows:

[The Charity] was incorporated in 2009 by [Rashida]

Ali-Campbell . . . to improve Philadelphia communities and

to build an “Earthship” out of recycled cans and tires to help

meet the needs of the residents. This Earthship would

provide a poor neighborhood with a garden for growing

fresh food that the community could receive for free and a

rain-water filtration system.

[The Real Estate Company] is a holding company that

is used to purchase properties that are subject to liens and

other encumbrances, such as overdue taxes, water bills, and

other debts. Levar Clark [owns it]. At trial, both Levar . . .

and Javar Clark (“Mr. Clark”), an employee of [the

company], testified on [its] behalf.

A. Miller Conveys the Property to [the Charity]

[W]hile Ms. Ali-Campbell was participating in a radio

interview discussing the Earthship, [Thomas L.] Miller called

the radio station and offered to donate two of his properties

to [the Charity]. The two properties were the Property and

[another parcel on] 62nd Street. Mr. Miller could not

immediately locate the original deeds to the properties, but

he signed a hand-written agreement, dated August 29,

2013, to donate the properties to [the Charity], and he also

told Ms. Ali-Campbell that he would contact her once he

found them. N.T. at 25, 26-27; see also Exhibit P-1,

Handwritten Agreement Between Mr. Miller and Ms. Ali-

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Campbell to Donate Both Properties, Executed and Dated

8/29/2013).

In August 2014, approximately one year later, Mr.

Miller called Ms. Ali-Campbell, to notify her that he found

the original deed to the Property.

Ms. Ali-Campbell used language from the Original

Deed for the Property to draft a deed conveying the Property

from Mr. Miller to [the Charity]. On August 19, 2014, Mr.

Miller signed and had notarized the Typed Transfer Deed to

the Property. The Typed Transfer Deed to the Property lists

Thomas L. Miller as the grantor and [the Charity] as the

grantee of the Property.

[A few months later, they repeated that process with

respect to the 62nd Street Property. Ms. Ali-Campbell never

recorded either deed on behalf of the Charity.]

B. Miller Conveys the Property to [the Real Estate

Company]

On October 5, 2015, despite having already conveyed

both deeds to [the Charity], Mr. Miller entered into an

agreement of sale with [the Real Estate Company]

regarding both properties for a total of $2, but with the

condition that [the Real Estate Company] would satisfy all

liens and encumbrances on the properties. That same day,

Mr. Miller also signed deeds to convey the properties to [the

Real Estate Company. It] had both [of its] deeds recorded

with the Philadelphia Commissioner of Records on October

13, 2015 . . .

C. [The Charity’s] Possession, Signage, and

Improvement of the Property

From 2013 to 2015, [the Charity] organized groups to

clean the Property of trash and debris dumped on the lot,

such as litter, toilets, and mattresses. [It] also continuously

cut the grass and generally maintained the landscape of the

Property. [The Charity] also erected different signs on the

Subject Property.

First, a large, vinyl sign was erected in 2014, (a year

after Mr. Miller conveyed the Property to [the Charity] and

a full year before he conveyed [it] to [the Real Estate

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Company]), and later a large, wooden sign in March of 2015,

(seven months before Mr. Miller conveyed the Subject

Property to [the Real Estate Company]). N.T. at 37, 40;

see also Exhibit P-6 Photograph of Earth Ship Tire

Ring/Foundation; Exhibit P-7 Photographs of Volunteers

Working on Lot; Exhibit P-8 Photograph of Earthship Sign

#1, Vinyl; Exhibit P-10 Photograph of Large Wooden

Earthship Sign & Volunteers, Summer 2015; Exhibit P-11

Photograph #2 of Earthship Wooden Sign, Blueprint Sign, &

Website, March 2015; Exhibit P-13, Photograph of Earthship

Wall, and Signs of Principles and Website. The large, vinyl

sign clearly states the following: “Environmentally Friendly

Retaining Walls. Community Garden/Volunteer Driven

Neighborhood Beautification Project” and includes a website

for the Earthship. Exhibit P-8, Photograph of Earthship Sign

#1; see also N.T. at 42.

The large, wooden sign on the Property displayed the

name of [the Charity], [its] website address, blueprints,

contact information, mission statement, names of

volunteers and plans for the Earthship structure. [That]

sign remained on the Property even throughout the time of

trial. One of the signs clearly displayed the blueprint of

plans and exact dimensions for the structure specifically

drafted for the Earthship on the Property. N.T. at 38, 45,

77; see also Exhibit P-10 Photograph of Large Wooden

Earthship Sign & Volunteers, Summer 2015; Exhibit P-11

Photograph #2 of Earthship Wooden Sign, Blueprint Sign, &

Website, March 2015. The plans were custom-made for the

[Charity] by an architect and approved by an engineer. In

total, there were approximately six or seven signs installed

and visible on the Property.

[The Charity] organized workshops with volunteer

groups from the community and Temple University students

to teach them how to turn tires and cans into the walls or

foundation of the Earthship. [It] organized groups to begin

building the Earthship garden walls out of the tires in a U-

shape and neatly stacked the unused tires by size on the

lot. [The Charity] also added to an existing garden on the

lot and planted tomatoes, basil, and peppers.

[Ms. Ali-Campbell] spoke to the neighbors and

business owners near the Property, notified them that [the

Charity] was the new owner, and explained the Earthship

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plan to them. A corner store next to the Property permitted

[the Charity] to use its water and electricity during events

and when groups were working on the lot. The corner store

even displayed in its window one of [the Charity’s] fliers to

show support. Further, there was a large amount of

publicity and media attention covering the Earthship and the

project’s progress, including on the radio, on cable, Mine TV,

and also articles in The Metro, The Philadelphia Inquirer,

Grid Magazine, and Philly.com, several of which mentioned

the address of the Property . . .

[The Real Estate Company’s agent,] Mr. Clark, . . .

inspected the Property and observed evidence of [the

Charity’s] possession. He took three pictures of the

Property prior to [buying the Property from Mr. Miller], all

of which were entered into evidence See N.T. at 182-83,

184-85 Exhibit D-5. Mr. Clark . . . took the pictures from

across the street and visually inspected the property while

standing on the sidewalk next to the lot. The third picture

[that he took appears below:

Real Estate Company’s Ex. D.

That picture] shows a large, unobstructed, wooden

sign situated on the left side of the lot with [the Charity’s]

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name, website address, and other information inscribed on

it. In the same photograph, there is a smaller sign

underneath the large sign that displays the blueprint

diagram of the Earthship Project.

Mr. Clark testified that he did not see the large sign

on the property, despite standing on the sidewalk next to

the lot. [He] also testified that the Property looked like an

“abandoned lot [with] a lot of trash,” “debris,” and tires “just

thrown there.” N.T. at 185, 188.

* * * * *

[The trial court found] that the testimony of Mr. Clark

lack[ed] credibility and [was] contradicted by the very

photographs taken by him that day. First, Mr. Clark testified

that he did not see the sign “at the time,” despite its distinct

visibility in the photograph that he himself had taken and

submitted [into evidence]. N.T. at 189-90 (“Question: So,

you just looked at the quote trash and debris, is that

correct? Answer: Correct. Question: So, the signs meant

nothing to you, is that right? Answer: I didn’t pay any

attention to them. So, I guess not.”). Clearly prominent in

the [above] photograph . . . is a large, wooden sign placed

on the property by the [the Charity] that glaringly displays

[the Charity’s] name, contact information, website, mission

for the lot, as well as rough plans for the structure it sought

to construct on the Subject Property. See Exhibit D-5,

Three Photographs from 2015; Exhibit P-10, Photograph of

Large Wooden Earthship Sign & Volunteers, Summer 2015;

Exhibit P-11, Photograph #2 of Earthship Wooden Sign,

Blueprint Sign, & Website, March 2015; Exhibit P-13,

Photographs of the Can Wall & Signage.

The testimony of Mr. Clark observing tires just

“thrown there,” plus “a lot of trash” and “debris” on the

Property [was] also directly contradicted by the

photographs taken by him that day. The photographs taken

by Mr. Clark showed the tires located on the Property were

arranged neatly into stacks ranging from two to nine tires

high and by size, which strongly indicated they were not just

illegally dumped on the property. See Exhibit D-5, Three

Photographs from 2015. If the tires were just “thrown

there" or illegally dumped, they would not be stacked neatly

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by size and would likely be strewn about the Property. The

second photograph taken by Mr. Clark also clearly shows the

tires placed in a wall-like shape and staggered, with the

second level offset from the first level, indicating some type

of structure was being built there. See Exhibit D-5, Three

Photographs from 2015. Additionally, absent from all three

photographs is a visual of any trash or debris other than the

tire stacks, which directly contradicts Mr. Clark’s testimony

and indicates that the Property was being maintained by a

possessor. See Exhibit D-5, Three Photographs from 2015.

* * * * *

[Finally, in support of its claim for unjust enrichment,

the Real Estate Company] submitted copies of checks and

receipts for the delinquent, Real Estate taxes in the amounts

of $3,831.07, and also for the overdue water and sewer bills

in the amount of $4,938.65. Exhibit D-8, Tax Review Board

Bill and Receipt; Exhibit D-10 Receipt & Bill for Water,

Sewer, and Real Estate Taxes (“Receipt for Water/Sewer &

Taxes”).

However, [the Real Estate Company] did not establish

payment of the additional amount of $20,658.09 with any

receipts or proof of payment, and instead only supplied a

bill and copy of check from “BEAR & CO.” Exhibit D-10,

Receipt for Water/Sewer & Taxes. [The company] did not

submit a receipt or other proof, as [it] did for the other

amounts, that the check was ever paid toward a lien on the

property. Further, the bill submitted as Exhibit D-9 has a

section entitled “amount paid” that remains blank,

indicating that [the Real Estate Company] did not send the

amount due. Exhibit D-9, Delinquent Tax Statement Bill.

Trial Court Opinion, 12/29/20, at 4-8, 16-19 (emphasis in original) (some

citations to the record omitted) (footnotes omitted).

Based on the foregoing facts, the trial court initially determined that the

Real Estate Company had notice of the Charity’s possession and ownership of

the Property before buying it from Mr. Miller. Thus, the court ruled that the

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Real Estate Company was not a subsequent bona fide purchaser of the

Property. The court quieted title to the Property in the Charity.

Conversely, the trial court quieted title to the 62nd Street Property in the

Real Estate Company because it deemed the company a subsequent bona fide

purchaser of that parcel.2 The court likewise ruled in favor of the Real Estate

Company on its counterclaim for unjust enrichment. The court found that

equity compelled the Charity to reimburse the Company for whatever liens

upon the Property the Real Estate Company paid after buying it from Mr.

Miller. In its non-jury decision, the trial court awarded the Real Estate

Company $4,938.65.

The company filed post-trial motions seeking judgment as a matter of

law. It renewed its request for title to the Property, and, in the alternative, it

asked the trial court to increase its unjust-enrichment award to $31,087.46.

After reaffirming that the Real Estate Company was not a subsequent

bona fide purchaser of the Property, the trial court granted, in part, the motion

for additur. The court explained that “Upon reviewing Exhibit D-8, [the Real

Estate Company] did submit a receipt for Real Estate Taxes paid on February

10, 2017, in the amount of $3,831.07; this was added to the original, unjust-

enrichment award based upon Exhibit D-9, showing a receipt for payment of

Real Estate Taxes and overdue water bills in the amount of $4,938.65 paid on

____________________________________________

2 The Charity has not appealed that portion of the trial court’s decision.

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May 23, 2017.” Trial Court Order, 12/16/19, at 1 n.1. The court’s post-trial

increase brought the judgment against the Charity to $8,769.22.

This timely appeal followed.

The Real Estate Company raises three issues:

1. The trial court erred as a matter of law, because [the

Real Estate Company] recorded its deed and [the

Charity] did not; further, there was [no] evidence

presented that [the Real Estate Company] was on

record notice of a conveyance to [the Charity].

2. The trial court erred as a matter of law, because [the

Charity’s] evidence did not meet the high bar required

to put [the Real Estate Company] on constructive

notice of a possessory or equitable claim due to the

condition of the lot and alleged signage at [the

Property].

3. The trial court erred as a matter of law when it found

that [the Charity] was unjustly enriched in the amount

of $8,769.22, and not the full amount of $31,087.46

....

Real Estate Company’s Brief at 8. We address the first two issues together,

because they both ask whether the Real Estate Company was a subsequent

bona fide purchaser of the Property. We then address the third issue.

First, the Real Estate Company claims that the trial court erred, as a

matter of law, because, in its view, it was a subsequent bona fide purchaser.

However, the argument section of the Real Estate Company’s Brief reveals

that its dispute with the trial court’s decision is a factual one that falls outside

our scope of review.

When reviewing a non-jury decision our appellate role is limited:

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to determine whether the findings of the trial court are

supported by competent evidence and whether the trial

court committed error in any application of the law. The

findings of fact of the trial judge must be given the same

weight and effect on appeal as the verdict of a jury. We

consider the evidence in a light most favorable to the verdict

winner. We will reverse the trial court only if its findings of

fact are not supported by competent evidence in the record

or if its findings are premised on an error of law.

Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547,

549–50 (Pa. Super. 2004), appeal denied, 876 A.2d 392 (Pa. 2005) (citations

omitted).

Finding that the physical appearance of the Property notified the Real

Estate Company that the Charity possessed it, the learned Judge Nina W.

Padilla of the Court of the Common Pleas of Philadelphia County opined as

follows:

The main issue in this case is whether [the Charity]

was in actual possession of the Property and whether the

improvements by [the Charity] placed [the Real Estate

Company] on constructive notice of [the Charity’s] property

interests. As described below, [the Charity] submitted

extensive evidence of obvious possession and

improvements on the Property, and therefore [gave the

Real Estate Company] constructive notice of possession.

The general rule in Pennsylvania is that, in order for a

land conveyance to be valid and transfer title, all deeds and

conveyances must be recorded in the county where the land

sits. The Pennsylvania Recording Statute, in relevant part,

states the following:

All deeds . . . shall be recorded in the office for the

recording of deeds in the county where such lands

. . . are situate. Every such deed . . . which shall not

be acknowledged or proved and recorded, as

aforesaid, shall be adjudged fraudulent and void as to

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any subsequent bona fide purchaser . . . without

actual or constructive notice . . . .

21 Pa.C.S.A. § 351.

“The Pennsylvania recording statute . . . protects

subsequent purchasers by giving a subsequent bona fide

purchaser for value without notice of a prior transaction

priority over the equitable estate of the first owner.” Long

John Silver's, Inc. v. Fiore, 386 A.2d 569, 572-73 (Pa.

Super. Ct. 1978) (citing Lund v. Heinrich, 189 A.2d 581

(Pa. 1963)). To qualify as a bona fide purchaser, the

subsequent buyer “(1) must be without notice of the prior

equitable interests of others,” Long John Silver's, 386

A.2d at 572-73 (citing Overly v. Hixson, 82 A.2d 573 (Pa.

Super. 1951)); (2) “must pay valuable consideration . . .

and (3) must act in good faith.” Poffenberger v.

Goldstein, 776 A.2d 1037, 1042 (Pa. Cmwlth. 2001)

(emphasis in original) (citing Carnegie Natural Gas Co. v.

Braddock, 597 A.2d 285, 288 (Pa. Cmwlth. 1991)).

Here, it is undisputed that [the Charity] did not record

the deed for the Property and that [the Real Estate

Company] did record [its] deed for the Property . . .

However, [the trial court found that it was] not a bona fide

purchaser, because [the Real Estate Company had]

constructive notice of [the Charity’s] possession.

In Pennsylvania, a subsequent purchaser is not a

“bona fide purchaser” entitled to protection of the Recording

Statute, if the purchaser is affected with constructive notice

of possession. The law in Pennsylvania has long been

settled:

Either actual or constructive notice is sufficient to

prevent the subsequent purchaser from acquiring the

status of a bona fide purchaser. Because constructive

notice is not limited to instruments of record, a

subsequent purchaser may be bound by

constructive notice of a prior unrecorded

agreement. This is true because the subsequent

purchaser could have learned of facts that may affect

his title by inquiry of persons in possession or others

who the purchaser reasonably believes know such

facts.

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Long John Silver's, Inc., 386 A.2d at 572-73 (emphasis

added).

Therefore, “when a purchaser is affected with

constructive notice he or she is no longer a bona fide

purchaser and is no longer afforded the protection of the

recording statute.” Malamed v. Sedelsky, 80 A.2d 853,

855 (Pa. 1951). A subsequent purchaser is affected with

constructive knowledge of facts that, at the time of

purchase, “they could have learned by inquiry of the person

in possession and of others who, they had reason to believe,

knew of facts which might affect title.” Mid-State Bank &

Tr. Co. v. Globalnet Int'l, Inc., 735 A.2d 79, 85 (Pa.

1999) (quoting Lund, 189 A.2d at 584).

In other words, “visible possession was notice of the

title sufficient to put purchasers on notice and require

inquiry upon their part.” Allison v. Oligher, 14 A.2d 569,

569 (Pa. Super. 1940) (citing Harris v. Bell, 10 Serg. & R.

39, 43 (Pa. 1823); Hymen v. Gatta, 33 Pa. Super. 438,

440 (Pa. Super. 1907) (“An unrecorded deed, with

possession taken thereunder and maintained, is sufficient

notice to subsequent purchasers.”; Hottenstein v. Lerch,

104 Pa. 454, 461 (Pa. 1883)); see also Malamed, 80 A.2d

at 855 (“It is the duty of a purchaser of real property to

make inquiry respecting the rights of the party in possession

and failing to do so they are affected with constructive

notice of such facts as would have come to his knowledge in

the proper discharge of that duty.”) (citing Lazarus v.

Lehigh & Wilkes-Barre Coal Co., 92 A. 121 (Pa. 1914);

Atlantic Refining Co. v. Wyoming Nat. Bank, 51 A.2d

719, (Pa. 1947); Sidle v. Kaufman, 557, 29 A.2d 77 (Pa.

1942); Kinch v. Fluke, 166 A. 905 (Pa. 1933)).

Under Pennsylvania law, to constitute constructive

notice, the possession must be exclusive, open, notorious,

and distinct. See Malamed, 80 A.2d at 855 (“Excusive

possession . . . was sufficient constructive notice.”); see

also Overly, 82 A.2d at 575 (“The possession of one

holding under an unrecorded deed, in order to be effective

as against a subsequent purchaser, must be open,

notorious, distinct, and unequivocal.”) . . .

Here, [the Real Estate Company] is not afforded the

protection of the Recording Statute, because [it had]

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constructive notice of possession by [the Charity,] and,

therefore, is not a bona fide purchaser. Extensive evidence

of [the Charity’s] actual possession was submitted at trial to

establish that [the Real Estate Company] was placed on

constructive notice, including evidence submitted by [the

company, itself].

[The trial court then provided a multiple-page list of

facts supporting its finding of constructive notice to the Real

Estate Company. These facts have substantial support in

the trial record, and the Real Estate Company does not

assert otherwise.]

[Also, the Real Estate Company] submitted evidence

and testimony establishing possession by [the Charity] of

the Property that was continuous, extensive, open, and

notorious.

The following is a list of evidence submitted by [the

Real Estate Company] at trial of the obvious possession by

[the Charity] of the Property:

1. [Mr. Clark] inspected the property and observed

evidence of [the Charity’s] obvious possession.

2. [H]e took three pictures of the Property prior to

purchasing the lot.

3. These pictures were admitted into evidence as

Exhibit D-5.

4. Mr. Clark testified that he took the pictures from

across the street and visually inspected the

Property while standing on the sidewalk next to

the lot.

5. In the third photograph of Exhibit D-5, even

from across the street of the Property, clearly

present in the left-hand corner of the lot is a

large, wooden sign prominently displaying the

name and website of [the Charity], and also a

second sign with the blueprint for the Earthship.

See Exhibit D-5, Three Photographs from 2015.

6. Mr. Clark testified that he did not see the large

sign on the Subject Property despite standing

on the sidewalk next to the lot . . .

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7. Mr. Clark also testified that the Property looked

like an “abandoned lot with a lot of trash,”

“debris,” and tires “just thrown there.” (N.T. at

p. 185:10-15; p. 188:18-25).

[As previous stated, the trial court rejected Mr. Clark’s

testimony of ignorance as incredible and contrary to the

very photographs that Mr. Clark took of the Property.]

Therefore, the [Real Estate Company received]

constructive notice of [the Charity’s] possession of the

Property and is not afforded the protection of a bona fide

purchaser under the Recording Statute. [The Real Estate

Company] had a duty to “make inquiry respecting the rights

of the party in possession,” and the failure to do so affects

[the company] with “constructive notice of such facts as

would have come to his knowledge in the proper discharge

of that duty.” Malamed, 80 A.2d at 855. The “visible

possession” of [the Charity] is sufficient to put [the Real

Estate Company “on notice and require inquiry upon their

part.” Allison, 14 A.2d at 569. After seeing the signs and

other evidence of [the Charity’s] possession, [the Real

Estate Company] had a duty to inquire into the possessory

rights of [the Charity] and failed to do so . . . .

Trial Court Opinion, 12/29/20, at 10-17 (some emphasis, punctuation, and

citations omitted).

Notwithstanding the trial court’s detailed, fact-driven analysis, the Real

Estate Company contends that it “was without notice of the prior equitable

interests of the [Charity].” Id. at 18. The company believes the “trial court

erred in accepting evidence of a handmade, cryptic sign on the far reaches of

the lot and activity well before [the Real Estate Company’s] purchase of the

Property as indicia of possession.” Id. at 19. “A cryptic sign in ‘reclaimed

wood’ that was admittedly vandalized and tires in a U-shape is not significant

enough to put a purchaser on constructive notice of possession.” Id. at 20.

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These assertions reflect the Real Estate Company’s self-serving view of

the evidence, erroneously presented to this Court in the light most favorable

to the company. This revisionist version of the facts ignores a simple truth:

when reviewing a post-trial motion for judgment as a matter of law, this Court

must “view [the] evidence in the light most favorable to the verdict winner,

giving the victorious party the benefit of every reasonable inference arising

from the evidence and rejecting all unfavorable testimony and inference.”

Wilson v. Transp. Ins. Co., 889 A.2d 563, 569 (Pa. Super. 2005). The Real

Estate Company’s arguments that it had no notice of the Charity’s possession

go to the weight of the evidence, not to its sufficiency.

“[W]e dispose of this [issue] by noting that credibility determinations

are for the finder of fact and, accordingly, in the case sub judice, the trial court

was free to believe all, some, or none of [Mr. Clark’s] testimony.” K.B. v.

Tinsley, 208 A.3d 123, 128 (Pa. Super. 2019). As discussed in the trial

court’s opinion, supra, the finder of fact determined that no reasonable

person could have overlooked the Charity’s two signs and its partial erection

of the Earthship when Mr. Clark inspected and photographed the land. Indeed,

the trial court found Mr. Clark’s testimony that he did not notice those tell-

tale hallmarks of the Charity’s possession to be incredible. See Trial Court

Opinion at 16-17.

Upon reviewing this cold record of conflicting factual contentions, we are

unable to substitute our judgment of Mr. Clark’s credibility (or, rather, his lack

thereof) for the in-person observations of the trial judge. The Real Estate

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Company’s attempt to recast the record in its favor affords it no appellate

relief. The trial court’s fact-based judgment that the company had

constructive notice and, therefore, was not a subsequent bona fide purchaser

must be upheld on appeal.

The Real Estate Company’s final assertion (that the trial court’s post-

trial grant of additur was insufficient) fares no better. Again, the company

would have us substitute our view of the facts for that of the trial court. The

Real Estate Company indicates it “testified that it paid the real estate tax sold

by Department of Revenue to U.S. Bank . . . in the amount of $20,658.09.”

Real Estate Company’s Brief at 22.

The trial court disbelieved that testimony, because the company “did

not submit a receipt or other proof, as it did for the other amounts” that the

trial court awarded. Trial Court Opinion, 12/29/20, at 18-19. In other words,

the court accepted the written evidence of the Real Estate Company as proof

of what it paid, but the court dismissed the company’s testimonial evidence of

what it allegedly paid as incredible.

Credibility determinations are not reviewable. See K.B., supra.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/8/2021

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