J-A04036-15


                            2015 PA Super 123

EVELYN H. BASTIAN,                      :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
               Appellee                 :
                                        :
                  v.                    :
                                        :
MARILYN Y. SULLIVAN, RUSSELL W.         :
REES, AND PAUL F. REES,                 :
                                        :
              Appellants                :   No. 1041 WDA 2014


                Appeal from the Order Entered May 21, 2014
              in the Court of Common Pleas of Potter County,
                    Civil Division, at No(s): 190 cv 2013

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                     FILED: May 22, 2015

      Marilyn Y. Sullivan, Russell W. Rees, and Paul F. Rees (Appellants)

appeal from the order entered on May 21, 2014, which granted summary

judgment in favor of Evelyn H. Bastian (Bastian) and against them.1    We

affirm.

      This case involves oil, gas, and mineral rights (OGMs) for the

subsurface estates of several parcels of property located in Potter County,

Pennsylvania. The following facts are uncontested.

      In 1921, Henry Wolz acquired three parcels of real estate in Potter

County.   In 1951, after the death of his wife, Henry Wolz conveyed these



1
 That order also denied Appellants’ motion for summary judgment against
Bastian.

*Retired Senior Judge assigned to the Superior Court.
J-A04036-15

three parcels to Birdella R. Haskins.   On July 20, 1951, Haskins conveyed

these three parcels to Henry Wolz, Carlton H. Wolz, and Eva Wolz Hunt as

joint tenants with the right of survivorship (JTWROS).   After the death of

Henry Wolz, 39.5 acres of this land were conveyed by Carlton H. Wolz and

Eva Wolz Hunt, and each of their spouses, to Joseph W. Sykora. That deed

contained the following language with respect to subsurface estate:

“EXCEPTING AND RESERVING, nevertheless, all of the oil, gas and minerals

in, on or under said property together with the necessary and convenient

rights of entry and re-entry for the purposes of recovering the same.” Deed

from Carlton Wolz and Eva Wolz Hunt to Sykora, 7/29/1954.

     On May 14, 1955, Eva Wolz Hunt and her husband conveyed three

parcels of land, approximately 12 acres, to Carlton Wolz and his wife. That

deed contained the following language with respect to the subsurface estate:

     EXCEPTING AND RESERVING, nevertheless, to Eva Wolz Hunt
     and Carlton Wolz all of the oil, gas and minerals in, on or under
     said property together with the necessary and convenient rights
     of entry and re-entry for the purposes of recovering the same.
     This deed is made under the Uniform Interparty Act for the
     purpose of creating a tenancy by the entireties in the above
     described parcels of land in the grantees.

Deed, 5/14/1955.

     On March 26, 1955, Carlton Wolz and Eva Wolz Hunt, along with their

spouses, conveyed 25.3 acres of the original Henry Wolz property to

Theodore Menken and Clara Menken.         That deed contained the following

language with respect to the subsurface estate:



                                    -2-
J-A04036-15

        EXCEPTING AND RESERVING, nevertheless, from the above
        described property all of the oil, gas and minerals in, on or under
        said property together with all storage rights and such rights of
        entry and re-entry as may be necessary and convenient for
        carrying out the terms of the excepting reservation.

               Any surface damage caused by the development of the
        above exception and reservation shall be paid to the grantees,
        their heirs or assigns.

Deed, 3/26/1955.

        Carlton Wolz died on March 10, 1959; Eva Wolz Hunt died on January

6, 1985; and, Carlton’s wife, Marguerite Wolz, died on June 7, 1985.

Bastian is the heir of Eva Wolz Hunt and claims title to the subsurface estate

for the entire original Henry Wolz property.         Appellants are the heirs of

Marguerite Wolz and claim title to the subsurface estate for fifty percent of

that property.

        On August 7, 2006, Appellants entered into an oil and gas lease for

that half interest with Anadarko E&P Company, LP (Anadarko). That lease

provided, inter alia, that the lessor had “full title to the premises and to all

the oil and gas therein at the time of granting this Lease.” Lease, 8/7/2006,

at 4. On August 30, 2011, Bastian leased 100 percent of the oil and gas in

the subsurface estate to Victory Energy Corporation (Victory).2

        On May 10, 2013, Bastian filed a complaint against Appellants with

counts for declaratory judgment, quiet title, and special injunctive relief. On


2
    That lease is not contained in the certified record.



                                        -3-
J-A04036-15

June 26, 2013, Appellants filed an answer, new matter, and counterclaim,

asserting counts for quiet title and declaratory judgment. After the close of

pleadings, on December 19, 2013, Bastian filed a motion for summary

judgment.     Appellants filed a cross-motion for summary judgment on

January 10, 2014. The trial court heard argument on these motions, and on

May 21, 2014, the trial court granted Bastian’s motion for summary

judgment and declared Bastian the exclusive owner of the subsurface estate

on the property.     The trial court denied Appellants’ motion for summary

judgment.

      Appellants timely filed a notice of appeal, and both Appellants and the

trial court complied with Pa.R.A.P. 1925. Appellants set forth the following

questions for our review.

           1. Did the [trial court] have subject matter jurisdiction in
      this equity action which included a claim for declaratory
      judgment in the absence of two indispensable parties?

             2.    Did the [trial court] err in concluding that the joint
      tenancy with the right of survivorship was not severed by the
      acts of the joint tenants?

            3.     Did the [trial court] err in concluding that Carlton
      Wolz and Eva Wolz Hunt held the reserved oil, gas and mineral
      rights as joint tenants with the right of survivorship?

Appellants’ Brief at 2.

      We first consider Appellants’ indispensable party issue as it implicates

this Court’s jurisdiction.   The trial court concluded that this issue was

waived, “as it was not previously raised before” the trial court. Trial Court



                                     -4-
J-A04036-15

Opinion, 7/17/2014, at 2.3   However, it is well-settled that “[t]he issue of

the failure to join an indispensable party cannot be waived.” Sabella v.

Appalachian Dev. Corp., 103 A.3d 83, 90 (Pa. Super. 2014) (internal

quotations omitted). Accordingly, we address this issue on appeal.

      Because the question of whether a court has subject matter

jurisdiction is a question of law, our standard of review is de novo and the

scope of our review is plenary.   Mazur v. Trinity Area School District,

961 A.2d 96, 101 (Pa. 2008).

      Our Supreme Court has previously determined:

      [U]nless all indispensable parties are made parties to an action,
      a court is powerless to grant relief. Thus, the absence of such a
      party goes absolutely to the court’s jurisdiction. A party is
      indispensable when his or her rights are so connected with the
      claims of the litigants that no decree can be made without
      impairing those rights. A corollary of this principle is that a
      party against whom no redress is sought need not be joined. In
      this connection, if the merits of a case can be determined
      without prejudice to the rights of an absent party, the court may
      proceed.

Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988) (internal citations

omitted).

      The determination of an indispensable party question involves the

following considerations:

      1. Do absent parties have a right or interest related to the
      claim?


3
  The trial court was incorrect in this regard. This issue was raised during
the argument on summary judgment. N.T., 4/24/2014, at 5-6.


                                    -5-
J-A04036-15

     2. If so, what is the nature of that right or interest?

     3. Is that right or interest essential to the merits of the issue?

     4. Can justice be afforded without violating the due process
     rights of absent parties?

Mechanicsburg Area School District v. Kline, 431 A.2d 953, 956 (Pa.

1981).4

     Appellants argue that both Victory and Anadarko are indispensable

parties to this action because their leases would be affected by the outcome

of this case. “It was certain that any judgment entered on the [motions for

summary judgment] would either declare Anadarko’s lease void or reduce

Victory’s lease by half.” Appellants’ Brief at 10. Bastian responds that the

crux of the aforementioned test is “whether or not the rights of the other



4
  We recognize that both the complaint and counterclaim asserted claims for
declaratory judgment, and Appellants argue that we must consider the
following provision of the Declaratory Judgments Act in our analysis:

     When declaratory relief is sought, all persons shall be made
     parties who have or claim any interest which would be affected
     by the declaration, and no declaration shall prejudice the rights
     of persons not parties to the proceeding. In any proceeding
     which involves the validity of a municipal ordinance or franchise,
     such municipality shall be made a party and shall be entitled to
     be heard.

42 Pa.C.S. § 7250(a). Appellants’ Brief at 10. However, looking to the
substance of both the complaint and counterclaim, the count for declaratory
judgment does not state any specific averments not contained already in the
quiet title count. Accordingly, we analyze this issue as a quiet title action
only.




                                     -6-
J-A04036-15

party are ‘essential’ to the merits of the case.” Bastian’s Brief at 4. Bastian

contends that the “lessee gas companies have no direct essential interest

with regard to title so as to prevent justice from being effectuated among

the litigants.” Id. at 6.

      With respect to the aforementioned test, there is no question that both

Victory and Anadarko have a “right or interest related to the claim.”

Mechanicsburg, 431 A.2d at 956. We agree with Bastian, though, that the

key issue to resolve is whether that right is “essential to the merits” of the

case. Id. If Appellants did not own half of the subsurface estate, then they

could not lease it to Anadarko. Similarly, if Bastian did not own the whole

subsurface estate, but only owned half, she could only lease half to Victory.

Neither Victory nor Anadarko has any right separate and apart from Bastian

or Appellants. Accordingly, the parties that have positions essential to the

case are Appellants and Bastian. Therefore, we hold that neither Anadarko

nor Victory is an indispensable party in this case, and the trial court had

jurisdiction to entertain the matter.

      We now turn to the merits of this case. Appellants set forth a series of

arguments as to how the trial court erred in interpreting the deeds at issue.

We consider Appellants’ issues mindful of our well-settled review of orders

granting summary judgment.

            [O]ur scope of review is plenary, and our standard of
      review is the same as that applied by the trial court.... An
      appellate court may reverse the entry of a summary judgment



                                        -7-
J-A04036-15

     only where it finds that the lower court erred in concluding that
     the matter presented no genuine issue as to any material fact
     and that it is clear that the moving party was entitled to a
     judgment as a matter of law. In making this assessment, we
     view the record in the light most favorable to the nonmoving
     party, and all doubts as to the existence of a genuine issue of
     material fact must be resolved against the moving party. As our
     inquiry involves solely questions of law, our review is de novo.

            Thus, our responsibility as an appellate court is to
      determine whether the record either establishes that the
      material facts are undisputed or contains insufficient evidence of
      facts to make out a prima facie cause of action, such that there
      is no issue to be decided by the fact-finder. If there is evidence
      that would allow a fact-finder to render a verdict in favor of the
      non-moving party, then summary judgment should be denied.

Ralston v. Ralston, 55 A.3d 736, 739 (Pa. Super. 2012) (internal

quotations and citations omitted).

      We first point out that “Pennsylvania recognizes three discrete estates

in land: the surface estate, the mineral [or subsurface] estate, and the right

to subjacent (surface) support.      Because these estates are severable,

different owners may hold title to separate and distinct estates in the same

land.” Pennsylvania Servs. Corp. v. Texas E. Transmission, LP, 98 A.3d

624, 629 (Pa. Super. 2014) (citations omitted). The trial court defined the

issue in this case as “whether the subsequent conveyances of the surface

estates extinguished subsurface survivorship rights held by Carlton Wolz and

Eva Wolz Hunt following the death of Henry Wolz.” Trial Court Opinion,

5/21/2014, at 7. The trial court went onto analyze these conveyances.

      It is clear that the original conveyance to Mr. Wolz and his two
      children through a straw person[, Birdella Haskins,] was a



                                     -8-
J-A04036-15

      conveyance of [JTWROS] and this is not disputed by
      [Appellants]. Said conveyance was for land approximately 75
      acres in size. Henry Wolz died within seven months [and] his
      children had conveyed 39.5 acres to Sykora and excepted and
      reserved the underlying subsurface [OGMs].          The Sykora
      conveyance was followed by a conveyance of 12.03 acres to
      Carlton Wolz and his wife as tenants by the entirety, with a
      similar exception and reservation clause. Carlton Wolz, Eva Wolz
      [Hunt,] and their spouses then conveyed 25.3 acres to the
      Menkens with, once again, an exception and reservation clause.
      Subsequently, Carlton Wolz died in 1959 while Eva Wolz Hunt
      lived until January 6, 1985.

Id. at 7-8 (footnote omitted).

      Appellants contend that the “JTWROS was severed by the joint act of

both joint tenants when the Sykora, Menken and Wolz Deeds were executed

and delivered.” Appellants’ Brief at 13. They argue that these deeds “clearly

evidence the breakage of at leas[t] three of the unities[;] time, title, and

interest[;]” thus, the execution of these deeds converted the JTWROS of

Carlton Wolz and Eva Wolz Hunt into a tenancy in common. Id. at 17.

Specifically, Appellants point to the fact that Carlton Wolz and Eva Wolz Hunt

included their respective spouses as grantors. The trial court disagreed and

concluded that “[t]here is no indication in any of the deeds that the grantors

intended to terminate the [JTWROS] estate.” Trial Court Opinion, 5/21/2014,

at 8. We agree with the trial court.

      When two or more persons hold property as [JTWROS], title to
      that property vests equally in those persons during their
      lifetimes, with sole ownership passing to the survivor at the
      death of the other joint tenant. In contrast, a tenancy in
      common is an estate in which there is unity of possession but
      separate and distinct titles. The essence of a JTWROS is the four



                                       -9-
J-A04036-15

     unities: interest, title, time, and possession. A JTWROS must be
     created by express words or by necessary implication, … , but
     there are no particular words which must be used in its creation.
     In fact, courts have found the intent to create a JTWROS trumps
     the use of imprecise or improper language in creating it.

                                     ***

     Intent is equally as significant when addressing the severance of
     a JTWROS as it is when considering whether a JTWROS was
     created. A joint tenancy is severed when one or more of the
     four unities is destroyed. [I]t is well settled in this state that a
     joint tenancy with right of survivorship is severable by the
     action, voluntary or involuntary, of either of the parties. An
     involuntary severance requires an act which effectively divests
     the joint tenant’s interest, such as an attachment execution on a
     joint tenancy, or an assignment in trust or by judgment and
     execution.... A voluntary severance, such as is alleged here,
     occurs when one of the joint tenants takes affirmative steps to
     create a tenancy in common. For example, [a] joint tenant may
     obtain a severance or separation of the property or a decree
     granting partition and obtain thereby an undivided fee interest in
     one-half of the property. [A]lthough a voluntary act on the part
     of one of the joint tenants is adequate to work a severance, that
     act must be of sufficient manifestation that the actor is unable to
     retreat from his position of creating a severance of the joint
     tenancy.

In re Estate of Quick, 905 A.2d 471, 474-75 (Pa. 2006) (citations and

quotations omitted).

     The issue here is whether the inclusion of the spouses as grantors on a

deed transferring a portion of the surface estate is an “affirmative step”

that amounts to an act that is “of sufficient manifestation” of the intent to

create a tenancy in common for the subsurface estate. Id. Appellants have

not cited any case law to persuade us that merely including spouses on

these deeds for surface estate transfers does so.     In fact, all three deeds



                                    - 10 -
J-A04036-15

contain language to except and reserve rights to the subsurface estate,

which, if anything, indicates the exact opposite intent as that posited by

Appellants.   Accordingly, Appellants are not entitled to relief on this basis.

     Appellants next contend that the clauses which excepted and reserved

rights to the OGMs in the subsurface estate in and of themselves severed

the JTWROS, because they contain “no provision for survivorship between

Carlton Wolz and Eva Wolz Hunt.” Appellants’ Brief at 22.

     The terms “exception” and “reservation” have been used
     interchangeably in deeds. A reservation pertains to incorporeal
     things that do not exist at the time the conveyance is made.
     However, even if the term “reservation” is used, if the thing or
     right reserved is in existence, then the language in fact
     constitutes an exception. If there is a reservation, it ceases at
     the death of the grantor, because the thing reserved was not in
     existence at the time of granting and the thing reserved vests in
     the grantee. An exception, on the other hand, retains in the
     grantor the title of the thing excepted. Because the exception
     does not pass with the grant, it demises through the grantor’s
     estate absent other provisions.

Ralston, 55 A.3d at 741-42 (citations omitted).

     In other words, the issue of survivorship turns on whether the clause

involves an exception or a reservation. Coal, oil, timber, gas, and minerals

are all corporeal things already in existence; thus, they squarely meet the

requirements to be an exception, rather than a reservation. See Ralston,

55 A.3d at 742 (“[P]aragraph 1 speaks to coal, oil, timber, gas and minerals.

These are things that are corporeal, and in existence prior to the deed.

Paragraph 1 did not create a new right. Therefore, paragraph 1 created an




                                     - 11 -
J-A04036-15

exception.”).   Thus, we agree with the trial court that “the excepting and

reservation language as to the [OGMs] constituted an exception as to the

subsurface estate and as such, retained the nature of the estate as it was

granted, namely a [JTWROS].” Trial Court Opinion, 5/21/2014, at 8.

Accordingly, Appellants are not entitled to relief.

      Having concluded that the proper parties were present in this case to

litigate a dispute in title; that transfers of the surface estate did not impact

the subsurface estate; and, the clause in the deed created an exception,

rather than a reservation, we affirm the order of the trial court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/22/2015




                                     - 12 -
