J-A20019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KETA GAS & OIL COMPANY, A             :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA CORPORATION,             :        PENNSYLVANIA
 FORMERLY KETA REALTY COMPANY          :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 THOMAS E. PROCTOR, JAMES H.           :   No. 1939 MDA 2018
 PROCTOR, THOMAS E. PROCTOR,           :
 JR., ANNE PROCTOR RICE, EMILY         :
 PROCTOR MANDELL, LYDIA W.             :
 THACHER, AUGUSTA PROCTOR,             :
 ELLEN O. PROCTOR, SARAH JOSLIN,       :
 ABEL H. PROCTOR AND                   :
 MASSACHUSETTS GENERAL                 :
 HOSPITAL, HEIRS LEGATEES AND          :
 DEVISEES UNDER THE WILL OF            :
 THOMAS E. PROCTOR, AND ALL            :
 PERSONS CLAIMING UNDER OR             :
 THROUGH THE ABOVE, AND                :
 BRINKER HUNTING CLUB, A NON-          :
 PROFIT CORPORATION                    :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 ANADARKO E&P ONSHORE, LLC,            :
 SOUTHWESTERN ENERGY                   :
 PRODUCTION COMPANY, AND               :
 INTERNATIONAL DEVELOPMENT             :
 CORPORATION                           :
                                       :
                                       :
 APPEAL OF: TROUT RUN HUNTING &        :
 FISHING CLUB, INC., SUCCESSOR IN      :
 INTEREST TO BRINKER HUNTING           :
 CLUB                                  :

              Appeal from the Order Entered October 23, 2018
J-A20019-19



     In the Court of Common Pleas of Lycoming County Civil Division at
                        No(s): CV-1950-000571-QT


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                   FILED DECEMBER 06, 2019

      Appellant, Trout Run Hunting & Fishing Club, Inc. (“Trout Run”) appeals

the trial court’s order denying its motion to strike a default judgment entered

on March 14, 1951. We affirm.

      While the factual and procedural history of this case is extensive, we

instantly provide the following relevant summary as gleaned from the trial

court’s opinion and the certified record. In 1894, the Proctor family owned

the surface and subsurface rights to vast amounts of unseated lands in

Pennsylvania including the parcels identified as James Strawbridge Warrant

5665 (“W5665”) and as James Strawbridge Warrant 5667 (“W5667”). Only

W5665, consisting of approximately 948 acres, is at issue in this case.

      In 1894, Thomas Proctor and his wife conveyed their surface rights in

W5665 to Elk Tanning Company but reserved the subsurface rights for

themselves. In 1903, Elk conveyed the surface rights to Central PA Lumber

Company (“CPLC”). In 1908, Calvin H. McCauley, Jr. purchased both W5665

and W5667 at a tax sale, only to turn around and sell the properties back to

CPLC in 1910. Thereafter, CPLC purported to hold both the surface and

subsurface rights to W5665 due to the tax sale. In 1921, CPLC conveyed its

surface interest in W5665 to Lincoln Hunting and Fishing club but also

purported to reserve the subsurface rights to Proctor, even though Proctor’s


                                     -2-
J-A20019-19



rights were arguably divested by the tax sale (this deed is hereinafter referred

to as “the Lincoln deed”). For purposes of the instant case, the specific

language at issue in the Lincoln deed is as follows:

      EXCEPTING and RESERVING, Nevertheless, unto Thomas E.
      Proctor his heirs and assigns, all the natural gas, coal, coal oil,
      Petroleum, marble and all minerals of every kind and character in
      upon or under the said lands hereinbefore mentioned and
      described and every part thereof or which may at any time
      hereinafter be discovered … The above-mentioned minerals and
      mineral rights to be excepted and reserved as full as said minerals
      and mineral rights were excepted and reserved in deed from
      Thomas E. Proctor and wife above recited.

      In 1942, CPLC conveyed the subsurface rights to W5665, along with

other parcels, by quitclaim deed, to Keystone Tanning & Glue Company, who

in 1950 conveyed the same rights to Keta Realty Company (“Keta”). Lincoln

conveyed its surface rights to W5665 to Brinker Hunting Club in 1948.

      In 1950, Keta filed a complaint to quiet title to the subsurface rights to

W5665 and W5667. In the 1950 complaint, Keta recited the chain of title to

both W5665 and W5667, complete with references to the relevant deeds.

Proctor and Brinker were among the named defendants to the complaint. The

sheriff properly served Brinker with the complaint, but Proctor was served via

publication because Keta claimed to be unable to identify or locate the Proctor

heirs. In any event, neither Proctor nor Brinker responded and in March 1951,

the court entered a default judgment (“1951 Default Judgment”) declaring,

inter alia, Keta the owner of all subsurface rights to W5665 and W5667.

Successors in interest to Keta include Southwestern Energy Production


                                     -3-
J-A20019-19



Company (“SWN”) and International Development Corporation (“IDC”), both

Appellees in the instant case. Trout Run is the successor in interest to Brinker.

       After the 1951 Default Judgment, the next judicial activity in this case

occurred in 2014 and 2015, when Proctor’s various heirs filed petitions to

strike/open the 1951 Default Judgment. The trial court denied Proctor’s

petition to strike, finding that Keta’s 1950 complaint to quiet title was not

deficient in regard to its description of the land and chain of title and that a

defect did not appear on the face of the record. However, the trial court did

issue an order to open the 1951 Default Judgment in 2015, finding that Keta

had engaged in fraud in 1950 in order to obtain the judgment by claiming to

be unaware of the Proctor heirs’ whereabouts. In essence, the court credited

the allegation that Keta engaged in unsuccessful negotiations with Proctor to

extinguish Proctor’s reserved subsurface rights and thereafter filed the quiet

title complaint regarding the same rights.

       In 2018, Trout Run filed a separate motion to strike the 1951 Default

Judgment. After hearing argument on the matter, the trial court dismissed

Trout Run’s motion in an October 23, 2018 order and memorandum opinion.1
____________________________________________


1We note that after the trial court opened the 1951 Default Judgment in 2015,
IDC, SWN, and Anadarko LLC (another successor in interest to Keta) filed
motions for summary judgment averring that the 1951 Default Judgment
should remain in place, while Proctor filed a response, raising a New Matter,
seeking to reverse the 1951 Default Judgment. The trial court, via the October
23, 2018 order here at issue, also disposed of all of the above referenced
motions by ultimately granting summary judgment in favor of Keta’s
successors in interest, thereby affirming the 1951 Default Judgment. Proctor



                                           -4-
J-A20019-19



Trout Run filed the instant timely appeal and raised the following issues for

our review:

       1) Whether the trial court erred as a matter of law, in dismissing Trout
          Run’s petition as moot, where no intervening circumstances or events
          eliminated the controversy arising under Keta’s Complaint to Quiet
          Title?

       2) Whether the trial court erred as a matter of law in applying the
          coordinate jurisdiction rule to bar relief for Trout Run based on
          another judge’s ruling on other parties’ petitions to strike that raised
          different issues, especially when Trout Run had no notice of any
          proceeding on those petitions and had no opportunity to present
          argument?

       3) Whether the trial court erred as a matter of law by failing to strike
          the default judgment where, applying established standards of deed
          interpretation, the only possible interpretation of the Lincoln Deed
          results in CPLC’s conveyance of the subsurface rights in Warrant
          5665 to Lincoln Hunting Club?

Trout Run’s Br. at 4.

       Because we deem Trout Run’s third issue to be dispositive, we begin by

addressing that claim. Trout Run argues the trial court erred by declining to

strike the 1951 Default Judgment. Specifically, Trout Run claims that the plain

language of the Lincoln Deed reserved the subsurface rights to W5665 to

Proctor, not CPLC. Therefore, Trout Run maintains that because Proctor’s

subsurface rights had been extinguished by a tax sale in 1908, well before

CPLC transferred its ownership to W5665 via the Lincoln Deed, CPLC legally

____________________________________________


has also filed an appeal from the trial court’s October 23, 2018 order, which
is currently before this Court, listed under 1975 MDA 2018.




                                           -5-
J-A20019-19



transferred fee simple title to W5665 to the grantee of the Lincoln Deed, the

Lincoln Hunting Club, a predecessor in interest to Brinker and ultimately, Trout

Run.

       In support of its contention, Trout Run points to 21 P.S. §§ 2-3 for the

proposition that absent a valid reservation of rights on the face of a deed, all

of the grantor’s rights in the subject property are conveyed via that deed.2

Accordingly, Trout Run avers that Keta’s 1950 complaint to quiet title was

insufficient to establish a cause of action because CPLC, Keta’s predecessor in

interest, did not reserve any subsurface rights in the Lincoln Deed and

therefore had no rights to sell to Keta. Instead, according to Trout Run, Keta

never had any subsurface rights to W5665 at any time because such rights

had been previously transferred in 1921, via the Lincoln Deed, to the Lincoln

Hunting Club, by operation of law, as the plain terms of that deed only made

a reservation to Proctor, which was ineffective due to the 1908 tax sale.

Therefore, Trout Run posits that Keta’s 1951 complaint to quiet title was fatally

deficient on its face. We disagree.

       “A petition to strike a judgment and a petition to open a judgment are

separate and distinct remedies.” U.S. Bank Nat’l Ass’n for Pa. Hous. Fin.

Agency v. Watters, 163 A.3d 1019, 1027 (Pa.Super. 2017). “A petition to

____________________________________________


2 21 P.S. § 2 provides, “the words ‘grant and convey,’ or either one of said
words, shall be effective to pass to the grantee . . . fee simple title.” 21 P.S.
§ 3 states, “All deeds . . . unless an exception or reservation be made
therein, shall be construed to include all the estate, right, title . . . of the
grantor . . . .”

                                           -6-
J-A20019-19



open a judgment seeks to re-open a case following a default judgment in order

to assert a meritorious defense; a motion to strike a judgment ‘is the remedy

sought by one who complains of fatal irregularities appearing on the face of

the record.’” Id. at 1027-28 (quoting Cameron v. Great Atl. & Pac. Tea

Co., 26 A.2d 715, 717 (Pa. 1970)).

      When reviewing a petition to strike, this court employs a de novo

standard of review. Id. at 1028 n.9. Further, a petition to strike is not a matter

that involves a trial court’s discretion and “is not a chance to review the merits

of the allegations of a complaint.” Oswald v. WB Pub. Square Assocs., LLC,

80 A.3d 790, 794 (Pa.Super. 2013). Indeed, a petition to strike may only be

granted when there is a fatal defect on the face of the record. Cintas Corp.

v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa. 1997). “When

deciding if there are fatal defects on the face of the record for the purposes of

a petition to strike a judgment, a court may only look at what was in the

record when the judgment was entered.” Id. at 917.

      In addition, where the factual allegations, liberally construed, support

the cause of action, the judgment that the movant seeks to strike should not

be considered irregular on its face. Maiorana v. Farmers & Merchants

Bank, 466 A.2d 188, 191 (Pa.Super. 1983). To prevail on a quiet title claim,

a claimant must demonstrate title by a fair preponderance of the evidence.

Hallman v. Turns, 482 A.2d 1284, 1287-88 (Pa.Super. 1984). To this end,

prima facie proof of title is sufficient until an adverse party presents superior

title. Id. at 1287.

                                      -7-
J-A20019-19



      In this case, Trout Run baldly sets forth the argument that the trial court

erred by failing to strike the 1951 Default Judgment due to its contention that

Keta’s quiet title complaint “failed to state a cause of action.” Trout Run’s Br.

at 14. However, we conclude that Trout Run’s averment constitutes a thinly

veiled attempt to argue the merits of Keta’s 1950 complaint to quiet title and

not a challenge to any fatal defect on the face of the record and therefore

Keta’s appeal must fail. See Oswald, 80 A.3d at 794.

      In its 1950 complaint to quiet title, Keta set forth a prima facie claim for

title, complete with a description of the chain of title, which was sufficient to

present a cause of action in a quiet title proceeding. See Hallman, 482 A.2d

at 1287-88; Maiorana, 466 A.2d at 191. Thus, Trout Run’s contention that

the 1951 Default Judgment was facially defective due to Keta’s failure to state

a claim lacks merit.

      Moreover, we note that Trout Run fails to provide evidence of any other

irregularity that would constitute a defect of the face of the record, as required

to strike a judgment. See U.S. Bank Nat’l Ass’n, 163 A.3d at 1027; Cintas

Corp., 700 A.2d at 919. Trout Run does not dispute that its predecessor in

interest, Brinker, had proper notice of the 1951 Default Judgment and does

not explain why it should not be bound by Brinker’s failure to object at the

relevant time. Further, Trout Run does not address why it waited more than

65 years from the 1951 Default Judgment to take any action, during which

time it is beyond cavil that multiple parties relied on that judgment, including

the instant Appellees.

                                      -8-
J-A20019-19



     Accordingly, we conclude that the trial court did not err by denying Trout

Run’s petition to strike the 1951 Default Judgment because Trout Run failed

to present evidence of a fatal defect of the face of the record. Therefore, we

need not address Trout Run’s alternative arguments set forth in its first two

issues on appeal.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/06/2019




                                    -9-
