J-A27023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA CARTER, AN ADULT              :  IN THE SUPERIOR COURT OF
INDIVIDUAL, CAROL BETH WILSON,         :        PENNSYLVANIA
AN ADULT INDIVIDUAL, JOHN ALLEN        :
WILSON, AN ADULT INDIVIDUAL            :
AND ELIZABETH WILSON, AN ADULT         :
INDIVIDUAL                             :
                                       :
                  Appellants           :
                                       :
            v.                         :
                                       :
RICHARD M. FANNING AND DEBRA J.        :
FANNING, HUSBAND AND WIFE,             :
JEFFREY J. DUTTON AND LISA A.          :
DUTTON, HUSBAND AND WIFE,              :
LARRY N. CERCIELLO AND KANDY S.        :
CERCIELLO, HUSBAND AND WIFE            :
                                       :
            v.                         :
                                       :
RANGE RESOURCES-APPALACHIA,            :
LLC                                    : No. 584 WDA 2017


                  Appeal from the Order March 16, 2017
           In the Court of Common Pleas of Washington County
                  Civil Division at No(s): No. 2014-5859


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                      FILED JANUARY 30, 2018

     Patricia Carter, Carol Beth Wilson, John Allen Wilson, and Elizabeth

Wilson (collectively “Appellants”), appeal from the order entered March 16,

2017. The order granted summary judgment in favor of Richard M. Fanning

and Debra J. Fanning, husband and wife, Jeffrey J. Dutton and Lisa A.

Dutton, husband and wife, and Larry N. Cerciello and Kandy S. Cerciello,
J-A27023-17


husband     and    wife    (collectively   “Appellees”),   and   Range   Resources-

Appalachia, LLC1 (“Intervenor-Appellee” or “Range”).2 We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

             On September 24, 2014, [Appellants], filed a four (4)
       count complaint against individual [Appellees] Fanning, Dutton
       and Cerciello. The Complaint requested that the Court quiet
       [Appellees’] Fanning, Dutton and Cerciello’s title either
       completely or by “one-half” in certain real property. The
       Complaint also sets forth claims of unjust enrichment and
       slander of title. [Appellants] contended that they succeeded to
       the title of Berdie Wilson, daughter of Hugh Hanna, a prior
       record owner of the Hanna Tract [or “the property”].
       [Appellants] advanced that Hugh Hanna made a parol gift of the
       oil and gas estate to Berdie Wilson. On November 26, 2014[,]
       this court granted Range’s petition to intervene as a party
       defendant.

             On November 24, 2014, [Appellees] Fanning, Dutton and
       Cerciello filed preliminary objections. On December 3, 2014
       Range filed separate preliminary objections. [Appellees] Fanning,
       Dutton and Cerciello alleged that the recorded “chain of title”
       from 1825 to 2014 does not indicate that a severance of oil and
       gas occurred. By virtue of three (3) separately recorded deeds
       and their record chain of title, [Appellees] Fanning, Dutton and
       Cerciello claim exclusive ownership of all right title and interest
       in the oil and gas [underlying] the Hanna Tract. (See Paragraphs
       3, 4 and 5 Fanning-Dutton Cerciello Preliminary Objections to
       the Original Complaint). [Intervenor-Appellee] Range filed
____________________________________________


1
  Range intervened as a current lessee of the oil and gas underlying the
property.
2
  As will be discussed in greater detail, the March 16, 2017 order disposed of
all claims and all parties, and it made final an earlier order sustaining
preliminary objections in favor of Appellees with respect to Count II of
Appellants’ Amended Complaint. Pa.R.A.P. 341(b)(1).




                                           -2-
J-A27023-17


     preliminary objections that included a demurrer and a claim of
     lack of specificity.

           On May 7, 2015, this court issued an opinion and order
     sustaining [Appellees’] preliminary objections. The court did not
     dismiss the action. Instead, [Appellants] were given twenty (20)
     days to file an amended complaint.

            On May 27, 2015[,] [Appellants] filed an Amended
     Complaint. In the Amended Complaint, [Appellants] reiterated
     their previous allegation that as the heirs of Berdie Wilson’s
     Estate[,] they owned “100%’’ of the oil and gas underlying the
     Hanna Tract. Specifically, Carter and Wilson asserted that Hugh
     Hanna “gifted” the oil and gas estate to Berdie Wilson. (See
     Amended Complaint ¶[¶] 57 and 58). [Appellants] did not plead
     the existence of a writing that specifically provided for the gift.
     Instead, [Appellants] alleged that circumstantial evidence
     demonstrated the existence of a parol gift. (See Amended
     Complaint ¶[¶] 11-56)[.] In the alternative, [Appellants] alleged
     that the “Will of Hugh Hanna severed the surface of the farm and
     the coal of the Property (Hanna Tract) from the oil and gas.”
     (See Amended Complaint ¶ 82) [Appellants] further alleged that
     the interests in the oil and gas passed “pursuant to the laws of
     intestacy.” (See Amended Complaint ¶ 83) [.] On that basis,
     [Appellants] assert they are the heirs of Berdie Wilson and
     entitled to a one-half interest in the oil and gas lying beneath the
     Property. (See Amended Complaint, ¶[¶] 83-85). [Appellants]
     filed preliminary objections to the Amended Complaint.2
           2
             On June 12, 2015, [Appellees] Fanning, Dutton and
           Cerciello filed objections which raised a demurrer to
           all 4 counts of the Amended Complaint; sought a
           more specific pleading with regard to the time, date
           and place of the alleged parol gift of oil and gas
           interests and moved to strike all counts of the
           complaint. On June 16, 2015[,] [Intervenor-
           Appellee] Range filed 4 objections to the Amended
           Complaint. In each, Range asserted a demurrer to
           each of the counts of the Amended Complaint.

           On December 31, 2015, this court issued a memorandum
     and order sustaining objections to Count II of [Appellants’]
     Amended Complaint and overruling all other objections.3 With
     regard to the dismissal of Count II of the Amended Complaint,

                                    -3-
J-A27023-17


       this court determined that [Appellants] insufficiently pleaded the
       severance of the oil and gas estate from the surface of the
       “Property.” More specifically, this court sustained preliminary
       objections to Count II of the original complaint and Count II of
       the amended complaint because neither the Hugh Hanna Will nor
       the later Deed of Distribution contained a reservation of oil and
       gas for the Hanna Tract. In Count II, [Appellants] pleaded “in
       the alternative.” (See Amended Complaint ¶ 80) [.] [Appellants]
       alleged that Hugh Hanna’s Will did not specifically provide for the
       distribution of the oil and gas estate and contained no residuary
       clause. On that basis, [Appellant] advanced that the oil and gas
       estate passed by the laws of intestacy and they had succeeded
       to Berdie Wilson’s one-half interest.
              3
                By Amended Order of January 6, 2016 this court
              confirmed that it did not grant [Appellants] further
              leave to amend their complaint.

              Relying on the Dunham Rule[3] and the decision of Butler v.
       Powers Estate ex.rel. [Warren], 65 A.3d 885, 896 ([Pa.] 2013)[,
       which reaffirmed the pronouncement in Dunham], this court
       could not overlook the significance of the absence of an oil and
       gas severance provision in the Deed of Distribution. Pursuant to
       the Dunham Rule, the express language of the Deed of
       Distribution showed that Berdie Wilson had conveyed her
       interests in her late father’s estate to include any inheritable
       interest in the Hanna Tract without a reservation of the oil and
       gas estate. Thus, [Appellants] could not rest their claim upon the
       laws of intestacy but would have to prove that the rights to the
       oil and gas estate were transferred to Berdie Wilson prior to
       Hugh Hanna’s death. Having previously afforded [Appellants] the
       opportunity to amend the original complaint for the same
       deficiency, this court found that a further amendment would not
       cure a “fatal defect” in [Appellants’] pleading of Count II.4
              4
                The parties when describing this court’s decision
              have consistently restricted the ruling to a
              determination of the intent of Hugh Hanna’s Will.
____________________________________________


3
  The Dunham Rule provides that a reference to minerals in a reservation of
rights in a private deed does not include oil and gas. Dunham & Shortt v.
Kirkpatrick, 101 Pa. 36 (Pa. 1882).



                                           -4-
J-A27023-17


          Such an interpretation is not entirely accurate. The
          following passages from this court’s last opinion
          determining preliminary objections provided:

          [Appellants] must plead that the intent of Hugh
          Hanna in executing his devise, and the intent of his
          heirs in executing the distribution, was to sever the
          oil and gas rights to the property. They have not
          pleaded such facts. Instead, they pleaded a pattern
          and practice of use over the land by Berdie Wilson
          and her heirs and assignees. They pleaded that the
          will and the deed of distribution did not provide for
          the distribution of oil and gas underlying the
          property, and this failure to address such a portion of
          Hugh Hanna’s estate evidences an intention to sever
          these interests. The established case law of the
          Commonwealth of Pennsylvania does not permit this
          assumption to be made; instead it requires the
          opposite. Hugh Hanna’s will and the Deed of
          Distribution demonstrate no intention to sever the oil
          and gas rights sufficient to overcome the Dunham
          Rule.

     (See Memorandum Opinion 12/31/2015)

           The parties conducted discovery with regard to Counts I,
     III and IV of the Amended Complaint. Those counts include an
     action to quiet title (Count I), a claim of unjust enrichment
     seeking the imposition of a constructive trust and an accounting
     (Count [III]), and an action seeking damages for slander of title
     (Count IV).

           Following discovery, both [Intervenor-Appellee Range] and
     [Appellees] filed motions for summary judgment.5 [Appellees
     Fanning and Cerciello] asserted in their motion that “The paucity
     of evidence to support [Appellants’] claim is alarming.” (See
     [Appellees’] Brief in Support p. 7) In summary, [Appellees]
     Fanning and Cerciello contend that no documentation or direct
     evidence supports [Appellants’] claim that Hugh Hanna prior to
     death, completed a parol inter vivos gift of oil and gas interests
     to Berdie Wilson. To the contrary, [Appellees] Fanning and
     Cerciello point out that the Property was encumbered by an oil
     and gas lease prior to Hugh Hanna’s ownership. Identified as the
     “Gourley Lease,” such lease was according to [Appellees]

                                   -5-
J-A27023-17


      Fanning and Cerciello subject to numerous assignments of
      record from 1889 to 1945. Such assignments did not include
      Berdie Wilson or her late husband Alex Wilson. [Appellees]
      Fanning and Cerciello charge that [Appellants’] claims are
      premised upon “unsupported inferences, conjecture and
      assumptions” that lack documentation memorializing, or the
      testimony of a living witness to the alleged oral gift. [Appellees]
      Fanning and Cerciello assert that the Statute of Frauds and the
      Pennsylvania Recording Act support the granting of summary
      judgment.
            5
               [Intervenor/Appellee Range] filed its motion on
            June 24, 2016. [Appellees] Fanning and Cerciello
            filed their motion for summary judgment on June 29,
            2016. [Appellees] Jeffrey Dutton and Lisa Dutton did
            not file a motion for summary judgment. The
            Dutton[s] requested that counsel representing
            [Appellees] Fanning and Cerciello withdraw from
            representation of the Duttons who wished to proceed
            pro se. Such withdraw of counsel was granted on
            April 4, 2016.

            In response, [Appellants] claim that “[t]he evidence
      garnered, when considered as a whole” demonstrates that Hugh
      Hanna made a gift of the oil and gas lying beneath the Hanna
      Tract to his daughter, Berdie Wilson. Specifically, [Appellants]
      allege that Berdie Wilson asserted dominion and control over the
      oil and gas during Hugh Hanna’s lifetime. On that basis,
      [Appellants] proffer that ‘‘Berdie Wilson’s actions with respect to
      the oil and gas underlying the Property evidenced her father’s
      intention to make an immediate gift of the oil and gas to her.”
      (See [Appellants’] Omnibus Brief p. 4)[.] Further, [Appellants]
      advance that the oil and gas lying beneath the property was not
      an asset of the estate of Hugh Hanna and was not “provided for”
      in Hugh Hanna’s Will. ([Appellants’] Omnibus Brief p. 8)[.]
      [Appellants] claim they are the descendants of Berdie Wilson and
      have “100% ownership over” the oil and gas underlying the
      Property.     [Appellants] assert that [Appellees’] summary
      judgment motions are nothing more than invitations for the
      court to weigh evidence. On this basis, [Appellants] contend that
      material issues of fact exist that a finder of fact at trial must
      determine.

Trial Court Opinion, 3/16/17, at 2-8.

                                     -6-
J-A27023-17


      On March 16, 2017, the trial court granted Appellees’ motions for

summary judgment, and dismissed Appellants’ Amended Complaint with

prejudice. The March 16, 2017 order made final all prior interlocutory orders

including the December 31, 2015 order that sustained Appellees’ preliminary

objections to Count II in Appellants’ Amended Complaint.      The March 16,

2017 order disposed of all claims and all parties pursuant to Pa.R.A.P.

341(b)(1), and on April 12, 2017, Appellants filed a timely appeal.        Both

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

      On appeal, Appellants raise the following issues for this Court’s

consideration:

      1. Did the Trial Court err when it granted summary judgment,
      dismissing Appellants’ Amended Complaint with prejudice, by
      usurping the factfinder role and weighing Appellants’ evidence to
      find that Appellants could not establish a parol inter vivos gift
      from Dr. Hugh Hanna to his daughter, Berdie Wilson?

      2. Did the Trial Court err when it sustained the preliminary
      objections in the nature of demurrer as to Count II of Appellants’
      Amended Complaint by finding that the oil and gas underlying
      the property was encompassed within the surface estate and
      was not severed by the Will of Dr. Hugh Hanna, when such
      conclusion was not supported by the plain language in the
      instrument itself, the testator’s intent, or the circumstances
      surrounding its execution?

      3. Did the Trial Court err when it sustained the preliminary
      objections in the nature of demurrer as to Count II of Appellants’
      Amended Complaint by finding that the oil and gas underlying
      the property did not pass pursuant to the laws of intestacy when
      the oil and gas was not distributed as part of Dr. Hanna’s Estate?

Appellants’ Brief at 5.




                                    -7-
J-A27023-17


       Appellants’ first issue challenges the trial court’s grant of summary

judgment. Our standard of review when evaluating a trial court’s grant or

denial of summary judgment is well settled:

       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. Only
       where there is no genuine issue as to any material fact and it is
       clear that the moving party is entitled to a judgment as a matter
       of law will summary judgment be entered. Our scope of review
       of a trial court’s order granting or denying summary judgment is
       plenary, and our standard of review is clear: the trial court’s
       order will be reversed only where it is established that the court
       committed an error of law or abused its discretion.

Hall v. CNX Gas Co., LLC, 137 A.3d 597, 601 (Pa. Super. 2016) (citation

omitted).

       The   trial   court   provided     an   exhaustive   analysis   and   rationale

supporting its order granting summary judgment.             Trial Court Opinion and

Order, 3/16/17, at 8-68. After review, we are satisfied that the trial court

thoroughly addressed and correctly disposed of Appellants’ first issue on

appeal.     Accordingly, we affirm the order granting summary judgment in

favor of Appellees on the basis of the trial court’s opinion.4




____________________________________________


4
  The parties are directed to attach a copy of the March 16, 2017 opinion
and order in the event of further proceedings.




                                           -8-
J-A27023-17


       In Appellants’ next two issues, they assail the trial court’s order

sustaining Appellees’ preliminary objections.5 Our standard of review for an

order sustaining preliminary objections in the nature of a demurrer is as

follows:

              A preliminary objection in the nature of a demurrer is
       properly granted where the contested pleading is legally
       insufficient. Preliminary objections in the nature of a demurrer
       require the court to resolve the issues solely on the basis of the
       pleadings; no testimony or other evidence outside of the
       complaint may be considered to dispose of the legal issues
       presented by the demurrer. All material facts set forth in the
       pleading and all inferences reasonably deducible therefrom must
       be admitted as true.

             In determining whether the trial court properly sustained
       preliminary objections, the appellate court must examine the
       averments in the complaint, together with the documents and
       exhibits attached thereto, in order to evaluate the sufficiency of
       the facts averred. The impetus of our inquiry is to determine the
       legal sufficiency of the complaint and whether the pleading
       would permit recovery if ultimately proven. This Court will
       reverse the trial court’s decision regarding preliminary objections
____________________________________________


5
  We note that while Appellants third issue concerns the laws of intestacy,
Appellants’ concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), never mentions intestacy. It is well settled that any
issue not raised in a court-ordered Pa.R.A.P. 1925(b) statement is deemed
waived on appeal.     Lazarski v. Archdiocese of Philadelphia, 926 A.2d
459, 464 (Pa. Super. 2007). However, to the extent that intestacy is fairly
suggested by the tangential issues set forth in the Pa.R.A.P. 1925(b)
statement, and in light of the fact that the trial court discussed intestacy in
disposing of Appellees’ preliminary objections, we will overlook this
deficiency.




                                           -9-
J-A27023-17


     only where there has been an error of law or abuse of discretion.
     When sustaining the trial court’s ruling will result in the denial of
     claim or a dismissal of suit, preliminary objections will be
     sustained only where the case is free and clear of doubt.

           Thus, the question presented by the demurrer is whether,
     on the facts averred, the law says with certainty that no
     recovery is possible. Where a doubt exists as to whether a
     demurrer should be sustained, this doubt should be resolved in
     favor of overruling it.

           Where the complaint fails to set forth a valid cause of
     action, a preliminary objection in the nature of a demurrer is
     properly sustained. The complaint need not identify specific legal
     theories, but it must provide essential facts to support the claim.
     Assertions of legal rights and obligations in a complaint may be
     construed as conclusions of law, which have no place in a
     pleading.

Estate of Rothberg, 166 A.3d 378, 382 (Pa. Super. 2017) (citation

omitted).

     As noted above, the trial court sustained Appellees’ preliminary

objections to Count II of Appellants’ Amended Complaint.        In Count II of

their Amended Complaint, Appellants alleged, in relevant part, the following:

     81. The Will of Hugh Hanna severed the “surface of the farm”
     and the coal of the Property from the oil and gas, but did not
     provide for the distribution of the oil and gas underlying the
     Property.

     82. Because Hugh Hanna did not provide by specific bequest for
     distribution of the oil and gas underlying and being produced on
     the Property and because the Will did not contain a residuary
     clause, the oil and gas interest passed pursuant to the laws of
     intestacy.

     83. Hugh Hanna’s wife, Elizabeth Hanna, elected against the Will
     of Hugh Hanna. As a result, the sole intestate heirs of Hugh
     Hanna’s estate were Howard T.E. Hanna and Berdie H. Wilson,
     son and daughter, respectively.

                                    - 10 -
J-A27023-17



     84. The entirety of the oil and gas underlying the Property was
     owned, in equal shares, by Howard T.E. Hanna and Berdie H.
     Wilson.

     85. [Appellants] are the heirs of Berdie H. Wilson, and
     [Appellants] now own a one-half interest in the oil and gas
     underlying the Property.

     86. Despite this, through their actions, [Appellees] have
     continued to assert right, title and ownership over oil and gas
     underlying the Property through the execution of various oil and
     gas leases, such that the [Appellants’] right, title and interest in
     the oil and gas underlying the Property has been clouded and
     the [Appellants] have been precluded from fully enjoying their
     rights.

     87. [Appellees] have no right, title or ownership to [Appellants’]
     one-half interest [in the] oil and gas underlying the Property.

     88. [Appellants] are the rightful and legal owners of a one-half
     interest in the oil and gas underlying the Property and are
     therefore entitled to quiet enjoyment of their rights.

     89. Accordingly, [Appellants] request this Court quiet title to the
     one-half interest of the oil and gas underlying the Property in
     favor of [Appellants] and against [Appellees] and for any and all
     additional relief this Court deems just and proper.

     WHEREFORE, [Appellants] respectfully demand that this
     Honorable Court quiet title to the oil and gas underlying the
     Property, and award judgment in their favor and against
     [Appellees] as follows:

     I. Quieting Title to a one-half ownership interest in the oil and
     gas underlying the Property against [Appellees] and all persons
     claiming under [Appellees];

     II. For a decree to declare and adjudge [Appellants] own in fee
     simple the one-half (50%) ownership in the oil and gas
     underlying the Property and that [Appellees] have no estate,
     right, title, lien or interest in or to said property or any part
     thereof;


                                    - 11 -
J-A27023-17


     III. For decree to permanently bar [Appellees] and persons
     claiming under [Appellees] from asserting any estate right, title,
     lien or interest in or to the one-half interest of oil and gas
     underlying the Property adverse to [Appellants];

     IV. For such other relief as the Court may deem just and proper,
     including attorney’s fees and costs.

Appellants’ Amended Complaint, 5/27/15, at ¶¶ 81-89.

     While the trial court’s conclusions with respect to its rationale for

sustaining Appellees’ preliminary objections are referenced in the March 16,

2017 opinion adopted above, the trial court previously provided a thorough

explanation in its December 31, 2015 opinion following the filing of

Appellants’ Amended Complaint:

            Count II of the Amended Complaint alleges [Appellants]
     own a 50% interest in the property resulting from the laws of
     intestacy and an election Elizabeth Hanna took against the will of
     Hugh Hanna. [Appellants] claim that Hugh Hanna, by continually
     referring to the “surface” of his property in his will, “severed” the
     surface of the property from the oil and gas lying underneath.
     Amended Complaint ¶¶ 31, 32. Elizabeth Hanna’s election to
     take against the will resulted in an Orphans’ Court deed of
     distribution which did not include these allegedly severed oil and
     gas interests. As a result, [Appellants] claim they pass through
     the laws of intestacy in part to [Appellants]. Amended Complaint
     ¶ 36.

            While the argument flows logically, the Court addressed
     this logic in its previous order on preliminary objections:

           [Appellants’] argument has a certain logical force. …
           [O]il and natural gas generally exist in a
           subterranean realm. Therefore, the conveyance of
           the surface of property without any further
           description would by necessary implication appear to
           exclude a conveyance of oil and natural gas.
           However, as Justice Oliver Wendell Holmes, Jr. once


                                    - 12 -
J-A27023-17


          aptly observed, “The life of the law has not been
          logic. It has been experience.”

          May 7, 2015 Opinion and Order

           Pursuant to Pennsylvania law, a conveyance of “all surface
     and right of soil” has been interpreted to include gas and oil
     rights where no specific exception or reservation severed such
     rights. Yuscavage v. Hamlin, 391 Pa. 13, 15-16, 137 A.2d 242,
     243-244 (1958). ‘‘The situs of the gas and the methods utilized
     to extract gas do not support a deviation ... “from the principle,
     known as the Dunham Rule. Such has been a rule of property
     law “long acquiesced in” within the Commonwealth. Butler v.
     Charles Powers Estate ex. rel. Warren, 65 A.3d 885, 891-892,
     and 899 (Pa. 2013).

           The following portion of the Majority Opinion written by
     Justice Baer in Butler informs us that:

          The Dunham Rule is clear, dating back to Gibson [v.
          Tyson, 5 Watts 34 (Pa. 1836)], that the common,
          layperson understanding of what is and is not a
          mineral is the only acceptable construction of a
          private      deed.       Notwithstanding      different
          interpretations proffered by other jurisdictions, the
          rule in Pennsylvania is that natural gas and oil simply
          are not minerals because they are not of a metallic
          nature, as the common person would understand
          minerals. Gibson, 5 Watts at 41-42; see also
          Dunham, 101 Pa. at 44. The Highland [v.
          Commonwealth, 161 A.2d 390 (Pa. 1960)] decision
          made clear that the party advocating for the
          inclusion of natural gas within the deed
          reservation (here [a]ppellees) bears the
          burden of pleading and proving by clear and
          convincing evidence that the intent of the
          parties who executed the reservation was to
          include natural gas. 161 A.2d at 398-99. Critically,
          however, such intention may only be shown
          through parol evidence that indicates the intent
          of the parties at the time the deed was
          executed—in this case, 1881. Id. (emphasis added)




                                   - 13 -
J-A27023-17


     Butler v. Charles Powers Estate ex rel. Warren, 620 Pa. 1, 22-
     23, 65 A.3d 885, 898 (2013).

            [Appellants] must plead that the intent of Hugh Hanna in
     executing his devise, and the intent of his heirs in executing the
     distribution, was to sever the oil and gas rights to the property.
     They have not pleaded such facts. Instead, they pleaded a
     pattern and practice of use over the land by Berdie Wilson and
     her heirs and assignees. They pleaded that the will and the deed
     of distribution did not provide for the distribution of oil and gas
     underlying the property, and this failure to address such a
     portion of Hugh Hanna’s estate evidences an intention to sever
     these interests. The established case law of the Commonwealth
     of Pennsylvania does not permit this assumption to be made;
     instead it requires the opposite. Hugh Hanna’s will and the Deed
     of Distribution demonstrate no intention to sever the oil and gas
     rights sufficient to overcome the Dunham Rule.

           A demurrer does not admit the truth of averments in a
     complaint that conflict with exhibits. Where any inconsistency
     exists between the allegations of a complaint and a written
     instrument ... the latter will prevail. See Framlau v. County of
     Delaware, 223 Pa. Super. 272, 299 A.2d 335, 338 (Pa. Super.
     1972).

           In an era where the Dunham rule necessarily included oil
     and gas in the “surface” of a property, Hugh Hanna referred to
     his property’s surface to distinguish it from the coal interests he
     bequeathed to his grandchildren. See Amended Complaint ¶¶ 33,
     Exhibit E.

            “The general principles regulating the titles to upper and
     lower estates in the earth’s crust are pretty well settled by our
     own cases. The ownership of the surface carries with it, if
     there be no obstacle to the application of the general rule,
     title downward to the center of the earth and upward
     indefinitely.” See Delaware & Hudson Canal Co. v, Hughes, 183
     Pa. 66, 691 38 A. 568,569 (1897) (emphasis added). “It is true
     that ... severance (of oil and gas rights or the mineral estate) is
     generally made by deed or other conveyance, and that until so
     made the title to the land is regarded as an entirety,
     including minerals as well as the surface.” See Hyde v.
     Rainey, 223 Pa. 540, 545, 82 a. 781, 783 (1912) (emphasis
     added). The Dunham rule has been “unwavering in its clarity

                                   - 14 -
J-A27023-17


     that, absent the terms “oil” or “natural gas” being included
     within a reservation for mineral rights within a private deed, oil
     or natural gas simply are not encompassed within the
     reservation without clear and convincing parol evidence
     produced by the proponent of the reservation to the contrary.”
     Butler v. Charles Powers Estate ex rel. Warren, 620 Pa. 1, 19-
     20, 65 A.3d 885, 896 (2013).

            [Appellants] allege that the property had existing oil and
     gas wells that may have been producing oil and gas at the time
     of Hugh Hanna’s death. ¶ 41. They further allege that documents
     prepared before and after Hugh Hanna’s death indicate that the
     parties assessed the value of the “surface” of the property below
     that of what would be appropriate to include oil and gas. ¶¶ 42-
     45. [Appellants] argue under Count II that this indicates that a
     severance of the oil and gas was likely. However, Exhibit G
     demonstrates that Berdie Wilson signed and executed a
     distribution that conveyed to her no interest in the surface of the
     property at issue. This is fatal to [Appellants’] attempt to rebut
     the Dunham Rule’s presumption.1
           1
             A demurrer does not admit the truth of averments
           in a complaint that conflict with exhibits. Where any
           inconsistency exists between the allegations of a
           complaint and a written instrument ... the latter will
           prevail. See Framlau v. County of Delaware, 223 Pa.
           Super. 272, 299 A.2d 335, 338 (Pa. Super. 1972).

           Interpreted in this light, the will of Hugh Hanna and the
     Deed of Distribution indicate an intent to include the oil and gas
     rights to the property. The Court must defer to the experience
     of case law. [Appellees’] and Intervenor’s preliminary objections
     to Count II of the Amended Complaint are sustained.

Trial Court Opinion, 12/31/15, at 10-15.

     We agree with the trial court’s conclusions.     Appellants’ arguments

ignore the reality that the only reservation of mineral rights was for coal;

absent a separate reservation, the remaining subsurface rights remained

with the surface rights in the property. The property, which included the oil


                                   - 15 -
J-A27023-17


and gas rights, was conveyed to Appellees’ predecessors in interest, and

Appellants received no interest in the property. As such, we discern no error

of law or abuse of discretion in the trial court sustaining Appellees’

preliminary objections in the nature of a demurrer. Accordingly, we affirm

the final order entered in this matter on March 16, 2017.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




                                   - 16 -
                                                                                                     Circulated 01/16/2018 12:20 PM




                            IN THE COURT OF COMMON PLEAS OF
                           WASHINGTON COUNTY, PENNSYLVANIA
                                      CIVIL DIVIgION-


  PATRICIA CARTER,
                                                                               OP
  CAROL BETH WILSON,                                                     ECIITRY
                                                                                            011.
                                                                          AB3UDIC131021
  JOHN ALLEN WILSON AND
  ELIZABETH WILSON                                                        la"
                                                                          fi
                    PLAINTIFFS

                    VS.                                                                    2014-5859

 RICHARD M. FANNING,
 DEBRA J. FANNING,
 JEFFREY DUITON,
 LISA DUTTON,
 LARRY N. CERCIELLO AND
 KANDY S. CERCIELLO

                   DEFENDANTS


 AND

 RANGE RESOURCES -APPALACHIA, LLC

                  INTERVENOR/DEFENDANT



                                        OPINION AND ORDER
         Before the court are the summary judgment motions of the defendants. The

Plaintiffs', Carter and Wilson, filed an action to quiet title with regard to oil and

gas lying beneath an approximately 100 acre tract located in Donegal Township,

 Throughout this opinion the Plaintiff's, Patricia Carter, Carol Beth Wilson, john Allen Wilson and Elizabeth
Wilson shall be referred to as the "Carter and Wilson."
Washington County (Hereinafter referred to as the "Hanna Tract"). Carter and

                               r6irabirgarthrotTglfRadie-WilktirdifightWiof

Hugh Hanna. Carter and Wilson contend that prior to death Hugh Hanna gifted

"100% of the oil and gas" underlying the Hanna Tract to Berdie Wilson.


Procedural, History

      On September 24, 2014, Carter and Wilson, filed a four (4) count complaint

against individual defendants Fanning, Dutton and Cerciello. The Complaint

requested that the Court quiet Defendants Fanning, Dutton and Cerciello's title

either completely or by "one-half' in certain real property. The Complaint also

sets forth claims of unjust enrichment and slander of title. Carter and Wilson

contended that they succeeded to the title of Berdie Wilson, daughter of Hugh

Hanna, a prior record owner of the Hanna Tract. Carter and Wilson advanced that

Hugh Hanna made a parol gift of the oil and gas estate to Berdie Wilson. On

November 26, 2014 this court granted Range's petition to intervene as a party

defendant.


      On November 24, 2014, Defendants Fanning, Dutton and Cerciello filed

preliminary objections. On December 3, 2014 Range filed separate preliminary

objections. Defendants Fanning, Dutton and Cerciello alleged that the recorded

"chain of title" from 1825 to 2014 does not indicate that a severance of oil and gas


                                                                            2IPage
occurred. By virtue of three (3) separately recorded deeds and their record chain of

     DefendantlFanning, Dutton and

right, title and interest in the oil and gas to the Hanna Tract. (See Paragraphs 3, 4

and 5 Fanning-Dutton Cerciello Preliminary Objections to the Original

Complaint). Defendant Range filed preliminary objections that included a

demurrer and a claim of lack of specificity.

       On May   7,   2015 this court issued an opinion and order sustaining the

defendants' preliminary objections. The court did not dismiss the action. Instead,

Carter and Wilson were given twenty (20) days to file an amended complaint.


      On May 27, 2015 Carter and Wilson filed an Amended Complaint. In the

Amended Complaint, Carter and Wilson reiterated their previous allegation that as

the heirs of Berdie Wilson's Estate they owned "100%" of the oil and gas

underlying the Hanna Tract, Specifically, Carter and Wilson asserted that Hugh

Hanna "gifted" the oil and gas estate to Berdie Wilson. (See Amended Complaint

 57 and 58). Carter and Wilson did not plead the existence of a writing that

specifically provided for the gift. Instead, Carter and Wilson alleged that

circumstantial evidence demonstrated the existence of a parol gift. (See Amended

Complaint ¶ 11-56) In the alternative, Carter and Wilson alleged that the "Will of

Hugh Hanna severed the surface of the farm and the coal of the Property(Hanna

Tract) from the oil and gas." (See Amended Complaint ¶ 82) Carter and Wilson
       further alleged that the interests in the oil and gas passed "pursuant to the laws of

       tritestacy."- (See Ainende Zastnplami83)-011that basis,                Cater and' irslitiaster-
      they are the heirs of Berdie Wilson and entitled to a one-half interest in the oil and

       gas lying beneath the Property. (See Amended Complaint1183-85). The

      Defendants filed preliminary objections to the Amended Complaint.2


              On December 31, 2015, this court issued a memorandum and order

      sustaining objections to Count II of the Amended Complaint and overruling all

      other objections. 3 With regard to the dismissal of Count II of the Amended

      Complaint, this court determined that the Carter and Wilson insufficiently pleaded

      the severance of the oil and gas estate from the surface of the "Property." More

      specifically, this court sustained preliminary objections to Count II of the original

      complaint and Count II of the amended complaint because neither the Hugh Hanna

      Will nor the later Deed of Distribution contained a reservation of oil and gas for

      the Hanna Tract. In Count II, Carter and Wilson pleaded "in the alternative." (See

      Amended Complaint 1180) Carter and Wilson alleged that Hugh Hanna's Will did

      not specifically provide for the distribution of the oil and gas estate and contained



        On June 12, 2015, Defendants Fanning, Dutton and Cerciello filed objections which raised a
      demurrer to all 4 counts of the Amended Complaint; sought a more specific pleading with regard
      to the time, date and place of the alleged parol gift of oil and gas interests and moved to strike all
      counts of the complaint. On June 16, 2015 Defendant Range filed 4 objections to the Amended
      Complaint. In each, Range asserted a demurrer to each of the counts of the Amended Complaint.
      ' By Amended Order of January 6, 2016 this court confined that it did not grant Carter and
(,)   Wilson further leave to amend their complaint
                                                                                                 4jPage
 no residuary clause. On that basis, Carter and Wilson advanced that the oil and gas

 estate passed by the. Jaws ofmteitacy and they had succeeded to) die                    wivorrr -
one half interest.


        Relying on the Dunham Rule and the decision of Butler v. Powers Estate ex.

rel, 65 A.3d 885, 896 (2013), this court could not overlook the significance of the
absence of an oil and gas severance provision in the Deed of Distribution.

Pursuant to the Dunham Rule, the express language of the Deed of Distribution

showed that Berdie Wilson had conveyed her interests in her late father's estate to

include any inheritable interest in the Hanna Tract without a reservation of the oil

and gas estate. Thus, Carter and Wilson could not rest their claim upon the laws of

intestacy but would have to prove that the rights to the oil and gas estate were

transferred to Berdie Wilson prior to Hugh Hanna's death. Having previously

afforded Carter and Wilson the opportunity to amend the original complaint for the

same deficiency, this court found that a further amendment would not cure a "fatal

defect" in Carter and Wilson's pleading of Count 11             4




 The parties when describing this court's decision have consistently restricted the ruling to a
determination of the intent of Hugh Hanna's Will. Such an interpretation is not entirely accurate.
The following passages from this court's last opinion determining preliminary objections
provided:

               The Plaintiffs must plead that the intent of Hugh Hanna in executing his
       devise, and the intent of his heirs in executing the distribution, was to sever the oil
       and gas rights to the property. They have not pleaded such facts. Stead, they
       pleaded a pattern and practice of use over the land by Berdie Wilson and her heirs
                                                                                            51Pago
        The parties conducted discovery with regard to Counts I, III and IV of the

 .Amended CdniPlatirTholerZOTiliffiliErirdi an action to quiet title (Counf                    a

 claim of unjust enrichment seeking the imposition of a constructive trust and an

 accounting (Count II), and an action seeking damages for slander of title (Count

IV).


       Following discovery, both Defendant -Range Resources and Defendants -

Fanning and Cerciello filed motions for summary judgment.5 Fanning and

Cerciello asserted in their motion that "The paucity of evidence to support the

Plaintiffs' claim is alarming." (See Fanning and Cerciello Brief in Support p. 7) In

summary, Fanning and Cerciello contend that no documentation or direct evidence

supports Carter and Wilson's claim that Hugh Hanna, prior to death, completed a

parol inter vivos gift of oil and gas interests to Berdie Wilson. To the contrary,

Fanning and Cerciello point out that the Property was encumbered by an oil and

       and assignees. They pleaded that the will and the deed of distribution did not
       provide for the distribution of oil and gas underlying the property, and this failure
       to address such a portion of Hugh Hanna's estate evidences an intention to sever
       these interests. The established case law of the Commonwealth of Pennsylvania
       does not permit this assumption to be made; instead it requires the opposite. Hugh
       Hanna's will and the Deed of Distribution demonstrate no intention to sever the
       oil and gas rights sufficient to overcome the Dunham Rule.

(See Memorandum Opinion 12/31/2015)


'Defendant Range Resources filed its motion on June 24, 2016. Defendants Fanning and
Cerciello filed their motion for summary judgment on June 29, 2016. Defendants Jeffrey button
and Lisa Dutton did not file a motion for summary judgment. The Dutton Defendants requested
that counsel representing Fanning and Cerciello withdraw from representation of the buttons
who wished to proceed pro se, Such withdraw of counsel was granted on April 4, 2016.
                                                                                                   .
                                                                                          6IPage
gas lease prior to Hugh Hanna's ownership. Identified as the "Gourley Lease,"

such lease was according to Fanning and Cerciello subject to numerous

assignments of record from 1889 to 1945. Such assignments did not include

Berdie Wilson or her late husband Alex Wilson. Fanning and Cerciello charge that

Carter and Wilson's claims are premised upon "unsupported inferences, conjecture

and assumptions" that lack documentation memorializing, or the testimony of a

living witness to the alleged oral gift. Fanning and Cerciello assert that the Statute

of Frauds and the Pennsylvania Recording Act support the granting of summary

judgment.

      In response, Carter and Wilson claim that "The evidence garnered, when

considered as a whole" demonstrates that Hugh Hanna made a gift of the oil and.

gas lying beneath the Hanna Tract to his daughter, Berdie Wilson. Specifically,

Carter and Wilson allege that Berdie Wilson asserted dominion and control over

the oil and gas during Hugh Hanna's lifetime. On that basis, Carter and Wilson

proffer that "Berdie Wilson's actions with respect to the oil and gas underlying the

Property evidenced her father's intention to make an immediate gift of the oil and

gas to her." (See Plaintiffs' Omnibus Brief p. 4) Further, Carter and Wilson

advance that the oil and gas lying beneath the property was not an asset of the

estate of Hugh Hanna and was not "provided for" in Hugh Hanna's Will. (Carter

and Wilson Omnibus Brief p. 8) Carter and Wilson claim they are the

                                                                             iiiPage
 descendants of Berdie Wilson and have "100% ownership over " the oil and gas

underlying the Property.   der ant       Nikon aSseitthattlie-detidantsi summ

judgment motions are nothing more than twin invitations for the court to weigh

evidence. On this basis, Carter and Wilson contend that material issues of fact

exist that a finder of fact at trial must determine.


Summary Judgment

       Summary judgment is properly granted where "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law." Pa.RC.P. 1035(b). An entry of

summary judgment may be granted only in cases where the right is clear and free

from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d

279, 280 (1989).


      The moving party has the burden of proving the nonexistence      of any genuine

issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-204,

412 A.2d 466, 468-69 (1979). The record must be viewed 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. Davis v. Peruwoil




                                                                             8rPage
         Co., 438 Pa. 194, 264 A.2d 597 (1970) as cited in Marks v. Tasman, 527 Pa. 132,

nr--= --114-35;73-8gXlii 2037206 (1991).

               Where the non-moving party bears the burden of proof on an issue, he may

        not merely rely on his pleadings or answers in order to survive summary judgment.

        Failure of a non-moving party to adduce sufficient evidence on an issue essential to

        his case and on which it bears the burden of proof establishes the entitlement of the

        moving party to judgment as a matter of law. JP Morgan Chase Bank, N.A, v.

        Murray, 63 A.3d 1258, 1261-62 (Pa.Super.2013) (quoting Murphy v. Duquesne

        Univ. of the Holy Ghost 565 Pa. 571, 777 A.2d 418, 429 (2001)). Where there is

        no genuine issue   of material fact and the moving party is entitled to relief as a

        matter of law, summary judgment may be entered. Thompson v. Ginkel, 2014 PA

        Super 125, 95 A.3d 900, 904 (Pa. Super. 2014).

              The ultimate inquiry in deciding a motion for summary judgment is whether

        the admissible evidence in the record, considered in the light most favorable to the

        respondent to the motion, fails to establish a prima facie case. Johnson v. Harris,

        419 Pa.Super. 541, 548-49, 615 A.2d 771, 775 (1992) citing Liles v, Balmer 389     ,




       Pa.Super. at 454, 567 A.2d at 692 (1989). The court below, nevertheless, could

       give weight to the affidavit only to the extent that it set forth matter that would be

       admissible into evidence. McFadden v. Am. Oil Co., 215 Pa.Super. 44, 50, 257



                                                                                       9   Page
A.2d 283, 287 (1969). This principle is also set forth in Pa.R.C.P. 1035.4 which



              Supporting and opposing affidavits shall be made on personal
       knowledge, shall set forth such facts as would be admissible in
       evidence, and shall show affirmatively that the signer is competent to
       testify to the matters stated therein. Verified or certified copies of all
       papers or parts thereof referred to in an affidavit shall be attached
       thereto or sewed therewith. The court may permit affidavits to be
       supplemented or opposed by depositions, answers to interrogatories,
       or further affidavits.

Pa.R.C.P. No. 1035.4.


       The non-moving party is entitled to the benefit of all reasonable inferences.

Elder v. Nationwide Ins. Co., 410 Pa.Super. 290, 294, 599 A.2d 996, 998 (1991)

citing Samarin v. GAF Corporation. 391 Pa.Super. 340, 571 A.2d 398 (1989).

       In doing so, a trial court appropriately disregards hearsay or inadmissible

evidence when determining a motion for summary judgment. In Liles, the non-

moving party attempted to prove the occurrence of an accident through the

admission of a police report and hospital records. The following passage from

Liles is instructive in this regard:

      rt is readily apparent that there is a dispute of fact in this case. The
      real issue is whether the plaintiff can produce evidence sufficient to
      establish prima facie that the accident occurred as she has alleged.
      We agree with the trial court that plaintiff has failed to demonstrate
      that the police accident report and the hospital records are admissible
      as business records to prove the manner in which the accident
      occurred. To satisfy the requirements of the Uniform Business

                                                                               10IPage
      Records in Evidence Act, 42 Pa.C.S. § 6108(b), a report must: (1)
    ..have_been made at oranear the tittle of the events it purports to relate;
       (2) be generated as a regular practice of the business; and (3) be
      trustworthy as to the source of information or the method or
       circumstances of preparation. Ganster v. Western Pennsylvania Water
       Co, 349 Pa.Super. 561, 569, 504 A.2d 186, 189-190 (1985). Here, the
      plaintiff has not shown that the sources of the information appearing
       in the police and hospital records were trustworthy. See: Hreha v.
      J3enscoter, 381 Pa.Super. 556, 565-567, 554 A.2d 525, 529-530
       (1989).
       We also agree with the trial court that plaintiff, contrary to her
       assertion, cannot prove her cause of action by showing that on prior
      occasions the dog was unrestrained and chased passing vehicles.
      Evidence of prior lack of restraint which permitted the dog to run into
      the street is not relevant to prove a negligent lack of control of the dog
       at the time of the accident. See, e.g.: Levant v. L. Wasserman Com
      Inc. 445 Pa. 380, 382-383, 284 A.2d 794, 796 (1971); Roney v.
      Clearfield Co. Grange Ins. Co, 332 Pa. 447, 449, 3 A.2d 365, 366
      (1939); Baumeister v. Baugh & Sons Co, 142 Pa.Super. 346, 353, 16
      A.2d 424, 427 (1940). Appellant, moreover, is unable to show that the
      Balmers habitually allowed their dog to run free to chase passing
      vehicles. Whether evidence of habit "is admissible to show what
      occurred in a specific instance depends on the 'invariable regularity'
      of the usage or habit." Baldrldge v. Matthews, 378 Pa. 566, 570, 106
      A.2d 809, 811 (1954); Aurand v. Universal Carloading & Distributing
      Co. 131 Pa.Super. 502, 507, 200 A. 285, 287 (1938); Packel and
      Poulin, Pennsylvania Evidence § 406, p. 186 (1987). Here there is no
      evidence that the dog habitually was allowed to run free to chase
      passing vehicles.


Liles v. Balmer, 389 Pa.Super. 451, 455-56, 567 A.2d 691, 692-93 (1989)


      More recently, the Superior Court, in Rosenberry v. Evans, 48 A.3d 1255,

1264 (Pa. Super. 2012), held that inadmissible hearsay could not be used to defeat

a motion for summary judgment. The Superior Court explained:


                                                                            .111Page
       Mother testified that after her son was injured, she heard rumors from
       Dtde_Calmon that the_clog had previously:attacker:14S killed a poodle,
       Deposition of Rhonda Rosenberry, 10/12/10, at 21-22. She contends
       that the fact that Landlord lived in the community should permit the
       inference that he also heard the rumors and, thus, knew the dog had
       violent propensities.
       Landlord counters that, such testimony constitutes inadmissible
       hearsay and cannot be used to defeat summary judgment. Samarin v.
       GAF Corp., 391 Pa.Super. 340, 571 A.2d 398, 402 (1989). We agree.
       Mother had no personal knowledge of the facts underlying the rumors,
       and we will not rely upon inadmissible hearsay to find a genuine
       issue of material fact. If witnesses existed who could have
       substantiated the truth of the rumor, it was Mother's burden to
       establish those facts on the record.


Rosenberry v. Evans, 2012 PA Super 91, 48 A.3d 1255, 1264 (Pa. Super. 2012).


       The "quantum of evidentiary facts which must be adduced to preclude

summary judgment is not the same as required       at trial...." See, McFadden v.

American Oil Company. 215 Pa.Super. 44, 257 A.2d 283 (1969) For instance, as

explained by the Superior Court in Elder v. Nationwide Ins. Co., 410 Pa.Super.

290, 599 A.2d 996 (1991), evidence presented by a non-moving party to establish

fraud need not rise to a level of clear and convincing, although that is the standard

to be applied at trial. However, the evidence must reasonably support the inference

sought to be drawn therefrom in order that the non-moving party may resist a

motion for summaryjudgment. Where the facts presented in a case "cannot be said

to rise to such a level" summary judgment is appropriate. Elder v. Nationwide Ins

Co 410 Pa.Super. 290, 299, 599 A.2d 996, 1000 (1991).

                                                                            1211311:ge
         Later, the Superior Court in InfoSAGE, Inc. v. Mellon Ventures. L.P., 896

-At2d 616 (Pa: Supert2006) held that-the-ndiaVitlg pirlyniffitildduTe-d-Videntr'

 of such a quality that a jury could return a favorable verdict to the non-moving

party on the issue or issues challenged by a summary judgment request. In support

of their ruling, the Superior Court cited the following passage from Ertel v. Patriot -

News Co., 544 Pa. 93, 100-02, 674 A.2d 1038, 1042 (1996)         :



         Allowing non-moving parties to avoid summary judgment where they
         have no evidence to support an issue on which they bear the burden of
         proof runs contrary to the spirit of [Pennsylvania Rules of Civil.
         Procedure 1035.1-.5]. We have stated that the 'mission of the
         summary judgment procedure is to pierce the pleadings and to assess
         the proof in order to see whether there is a genuine need for a trial.'
         We have a summary judgment rule in this Commonwealth in order to
         dispense with a trial of a case (or, in some matters, issues in a case)
         where the party lacks the beginnings of evidence to establish or
         contest a material issue.... Forcing parties to go to trial on a meritless
         claim under the guise of effectuating the summary judgment rule is a
         perversion of that rule.
         *   * * * *

         Thus, we hold that a non-moving party must adduce sufficient
         evidence on an issue essential to his case and on which he bears the
         burden of proof such that a jury could return a verdict in his favor.

InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 625-26 (Pa. Super.

2006).

      The evidence relied upon by the non-moving party need not be direct

evidence, but may be circumstantial evidence and the inferences reasonably

deducible therefrom. Cade v. McDanel, 451 Pa.Super. 368, 679 A.2d 1266, 1271

(1996). "Such circumstantial evidence and its reasonable inferences 'must be

                                                                                 01Page
adequate to establish the conclusion sought and must so preponderate in favor of

thatconclusionasto outweigh in the mind of the fact -finder any other evidence

and reasonable inferences therefrom which are inconsistent therewith.' It is also

well-settled that a court reviewing the propriety of a summary judgment motion

must be mindful that a jury may not be permitted to reach its verdict on the basis of

speculation or conjecture." InfoSAGE., Inc. v. Mellon Ventures, L.P., 896 A.2d

616, 626 (Pa. Super. 2006) (Internal citations omitted)


      In light of these principles, this court has examined the pleadings, deposition

transcripts, Answers to Interrogatories, Responses to Request for Admission and

numerous attached documents all submitted by the parties.


CHAIN OF LIME

      Both parties have submitted numerous recorded documents from the chain

of title for the Hanna Tract. Pa.R.E. 803 (14) provides recorded property

documents are admissible as an exception to the hearsay rule as follows:

             The record of a document purporting to establish or affect an
      interest in property, as proof of the content of the original recorded
      document and its execution and delivery by each person by whom it
      purports to have been executed, if the record of a public office and an
      applicable statute authorizes the recording of documents of that kind
      in that office.




                                                                            141Page
     The documents submitted which establish the chain of title for the Hanna Tract and

-    for the properties later   ---purchase-d   by the Plaintiffs were in allinstances documents

     recorded in either the Recorder of Deeds Office or admitted to probate in the

    Register of Wills Office of Washington County. As such, those documents are

     admissible pursuant to Pa.R.E. 803(14). Consideration of those documents to

    determine the present motion is appropriate and reveals the following.

            On May 3, 1889 John and Mary Gourley, then the owners of what later

    became known as the Hanna Tract, entered into a lease with W.E. Brooks and J.B.

    Duffy "for the sole and only purpose of drilling...for petroleum oil and gas." (See

    Range App. Ex. 6, DBV 150 page 309-310) On February 18, 1894 Brooks and

    Duffy sold and assigned this lease to Victor Oil Company. (See Range App. Ex. 7,

    DBV 201 page 119). On April           1,    1901, Victor Oil sold the lease back to J.B.

    Duffy for the sum of $5,000.00. In this recorded instrument, the parties recited

    that the Victor Oil Company "has drilled and is now operating two oil wells on

    said land " This transfer to Mr. Duffy included the "lease and all rights

    thereunder, together with said two wells." (See Range App. Ex. 7, DBV 250 Page

    622).

            On April 9, 1901 J.B. Duffy for the stem of $8,950.00 sold and assigned all

    of his right, title and interest to the oil and gas lease for what would become the




                                                                                        151Page
Hanna Tract. (See Range App. Ex. 7, DBV 252, page 88 "Second Parcel"). This

transfer to John Preston and W.C.McBrideincluded:

      ...all the oil wells, carpenter's rigs, engines, boilers, tubing, casing,
      steam, gas and water lines, tankage fittings, connections, tools and
      appurtenances now situate upon said leasehold(s)

On April 10, 1901, John and Mary Gourley entered into a modification of lease

with Preston and McBride. Such modification contemplated the drilling of

additional wells and included a graduated royalty schedule based upon daily

production of oil. (See Range App. Ex. 7, DBV 250 page 632)

       On February 9, 1903 Hugh Hanna purchased the 100 acre tract "together

with all...the reversions and remainders; rents, issues and profits." (See Ex. A

Amended Complaint). This deed contained no clause which mentioned the oil and

gas lease held by Preston and McBride. The deed included no clause excepting

and reserving any mineral, coal, oil and or natural gas rights.

       On January 31, 1905 John Preston assigned all of his right, title and interest

to two (2) "oil bearing farms" known as the Lindly and Gourley farms. By the

assignment W.C. McBride received all of Preston's interest. (See Range App. Ex.

7, DBV 341 page 154) Within a decade, on March 20, 1914, W.C. McBride and

his wife Katherine assigned all of their right, title and interest to the Gourley lease




                                                                                  16IP.ge
      to the Delk Investment Corporation of Missouri. (See Range App. Ex. 7, DBV 688
S
      page 555).

             On October 21, 1923 Hugh Hanna died. (See Amended Complaint Ex. E).

      Mr. Hanna died testate. No evidence has been provided of any written assignment,

      deed or other transfer of the oil and gas rights Hugh Hanna obtained from the

     Gourleys to his daughter Berdie Wilson. Hugh Hanna's Last Will and Testament,

     though colorfully written, contains no specific mention of any prior gift of the oil

     and gas rights to Berdie Wilson. By his will, Hugh Hanna bequeathed to his

     surviving spouse, Elizabeth, and his son Howard Thomas E. Hanna:

             ...the surface ofthe farm on which I reside, share and share alike with
             all its outbuildings, including the mansion house, wash house, old
             brick house, barn, sheep shed, etc., which I value at $32,000, upon the
            following conditions, that they are to pay Francis Wilson the sum of
            $1,000.00 within one year of my death. And if they are not satisfied
            with this, they may apply to the pole cat hunters of McConnells Mills,
            who visited my farm in Chartiers Twp. from 125 to 150 times under
            the cover of darkness, committing all kinds of depredations, putting
            pole cats in my wells, and giving me a dose of croton oil, and cutting
            my harness to pieces, and finally, but not least, burning my sheep shed
            and its contents, which I valued at $4,000.00

    (See Amended Complaint Ex. E). In her deposition, plaintiff Carol Wilson

    contended that this bequest to was Hugh Hanna's "way of saying" that he had

    already gifted the oil and gas to Berdie Wilson. (See Range App. Ex.           5   p. 59-60



    'Though this assignment was executed by the McBride's on March 20, 1914, The assignment
    was not recorded until June 6, 1945. The assignment recited not only property in Washington
    County, Pennsylvania but also for leaseholds in West Virginia, Ohio, Missouri and Illinois.

                                                                                         17IPage
      and 63) In the same document, Hugh Hanna bequeathed to Berdie Wilson as
                                                                                                   rt=



                    ...12 shares of "bank stock" in the Citizens Trust Co. of
             Canonsburg and all the money I have in said Citizen's Trust Co.'s
             Bank, in Canonsburg. I also give to Berdie H. Wilson, my daughter
             all the government bonds amounting to $1500.00 in the lock box of
             Alexander Wilson in the Claysville National Bank, and all cash that I
             have in the Claysville National Bank at the time of my death.

      Id. No specific mention of oil and gas interests is present in the Will.

             On February 22, 1924 Elizabeth Hanna filed an "Election To Take Against

      Will." She did so because Hugh Hanna did not account for the payment of

      creditors in his Will. (See Amended Complaint,       En. H and I)
             On June 30, 1926 Elizabeth Hanna, Hugh Hanna's widow, Howard T.E.

      Hanna, her son, Berdie Wilson, her daughter and George B. Lyle, the Guardian of

      the estates of minors Ruth Wilson and Francis Wilson, executed and recorded a

      Deed of Distribution regarding the assets of the Hugh Hanna Estate. In describing

      its purpose the Deed of Distribution recited   "...in order to vest the title to said real

      estate in accordance with said "Exhibit A" this instrument is executed

      acknowledged and delivered."

            According to this "Deed of Distribution" Hugh Hanna's interests in real

      estate were granted and conveyed to Elizabeth Hanna, Howard T.E. Hanna, Francis

      Wilson and Ruth Wilson. Elizabeth Hanna and Howard T. E. Hanna each

      received a one-half (1/2) interest in the Hanna Tract described as the "... surface of
C.)
                                                                                      113Page
  the farm on which I reside, share and alike, with all its outbuildings, including the

--manstotrhouseT-washthonWold-hiick house:Yarn sheepished, etc..."

  Wilson, Ruth Wilson and Elizabeth Hanna each received a one-third (1/3) interest

  in the coal underlying the Hanna Tract and to a Pittsburgh vein of coal underlying

  a 61 acre tract of land in Buffalo Township Washington County. (See Amended

  Complaint Ex. G, DBV 541 at Pg. 325)

          According to the schedule of distribution, labeled "Exhibit A", Berdie

  Wilson received from her father's estate the share having the greatest value, being

  $8,603.86. Such share did not include any interest in real estate. Such share did

 include 12 shares of stock in the Citizens Trust Co. valued at $3600.00 and a

  Savings Account in the same bank having a value of $ 5,151.12. (See Amended

 Complaint Ex. G).

        Elizabeth Hanna died testate on November 10, 1927. (See Amended

 Complaint Exhibit I) According to the Will of Elizabeth Hanna, all of her property

 passed to Howard T.E. Hanna, her son. (See Amended Complaint Exhibit H)

       The Defendants, Fanning, Dutton and Cerciello, each now own a portion of

 the Hanna Tract which Howard T.E. Hanna inherited from his father, Hugh, and

 mother, Elizabeth, On November 29, 1932 Howard T.E. Hanna sold 13.29 acres of

 Hanna Tract to Francis H. Wilson. The recorded deed for this conveyance recited

 the following:


                                                                             1.91Page
       The above described tract of 13.2949 acres hereby conveyed is a part
       of a larger_tract otland containing
                                         101, acres, more er less, which was
       conveyed to Hugh Hanna by Mary J. Gourley etal.by deed dated
       February 9, 1903, and recorded in Deed Book No. 295, page 192.

      The said Hugh Hanna died on October 21, 1923 leaving a will in
      which be specifically devised said larger tract (of which the land
      hereby conveyed is a part) to certain devisees in said will named. For
      further information, reference is made to said will, as the same
      appears of record in Will Book No. 30, page 453. On June 29, 1926,
      by an agreement of that date, which is recorded in Deed Book No.
      531, page 324, the devisees and legatees under said will made an
      adjustment of their respective interests in the real and personal estate
      of the testator, whereby, inter alia, the title to said recited larger
      tract (excepting the underlying coal) became vested as follows: An
      undivided one-half thereof in Elizabeth A. Hanna, the testator's
      widow, and the other undivided one-half in said Howard T.B. Hanna."

(See Amended Complaint Ex. I) (Emphasis Added). This recital made no mention

of the oil and gas estate having been previously severed from Hugh Hanna Tract.
On April 25, 1949 Howard T.E. Hanna sold the remaining 87.6175 acres to Robert

and Frances Loughman. This conveyance included a similar recital concerning the

distribution of the Estate of Hugh Hanna to that set forth in deed to Francis Wilson

with the following additional language:

       ...The value ofthe entire estate, real and personal, was submitted to
      the Orphans' Court of Washington County, at No. 11 August Term,
      1924, A.A, for distribution ; the effect of which agreement was to
      construe the word "surface" in the devise to Howard T.E. Hanna
      on said vvill, as the land in opposition to the coal and including all
     else.




                                                                          2O   Page
(See Amended Complaint Ex.      T,   DBV 756, page 25-26) (Emphasis Added)      .   The

riefeidaltrailffing, Dutton and Cerciello true title to their reipectzve properties

back to this conveyance from Howard T.E. Hanna to the Loughman.

Quiet Title

       Carter and Wilson have filed a quiet title action to dispute the validity of the

Defendants' interests in the oil and gas estates on the Farming, Dutton and

Cerciello properties. The scope of permissible actions to Quiet Title is found at

Pa.R.C.P. No. 1061which provides:

   (a) Except as otherwise provided in this chapter, the procedure in the action to
       quiet title from the commencement to the entry ofjudgment shall be in
       accordance with the rules relating to a civil action.

   (b)The action may be brought        '




  (1) to compel an adverse party to commence an action of ejectment;
  (2) where an action of ejectment will not lie, to determine any right, lien, title
  or interest in the land or determine the validity or discharge of any document,
  obligation or deed affecting any right, lien, title or interest in land;
  (3) to compel an adverse party to file, record, cancel, surrender or satisfy of
  record, or admit the validity, invalidity or discharge of, any document,
  obligation or deed affecting any right, lien, title or interest in land; or
  (4) to obtain possession of land sold at a judicial or tax sale.


Carter and Wilson contend that they have 100 % ownership of the oil and gas

estate for properties derived from the Hanna Tract. Carter and Wilson assert Hugh

Hanna, by means of a parol inter vivos gift, gave title to Berdie Wilson. For these

reasons, Carter and Wilson seek a decree that the Defendants have "no estate,


                                                                             211Page
 right, title, lien or interest in or to" the oil and gas estate's lying beneath the

 Fanning, Dutton anrCet-irelio propettiei,

       The burden of proof in an action to quiet title is on the plaintiff. Cox's. Inc.

 v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541-542 (1952); Grace Building Co.,

Inc. y. Parchinaki, 78 Pa.CmwIth, 187, 191, 467 A.2d 94, 96 (1983). In such an

 action., the plaintiff can recover only on the strength of his or her own title and not

upon the weakness of the defendant's title. Albert v. Lehigh Coal & Navigation

Co., 431 Pa. 600, 607, 246 A.2d 840, 843 (1968); Carratelli v. Castrodale, 185

Pa.Super. 426, 429, 137 A.2d 805, 806 (1958) as cited in Montrenes v. Montrenes,

355 Pa.Super. 403, 405-06, 513 A.2d 983, 984 (1986).


       In this case, Carter and Wilson are unable to point to any deed or other

document that conveyed the oil and gas lying beneath the Hanna Tract to Berdie

Wilson. Instead, Carter and Wilson have rested the strength of their title upon the

occurrence of an oral gift of land that occurred approximately 100 years ago. To

meet their burden in this action, Carter and Wilson must demonstrate that Hugh

Hanna made a parol inter vivos gift of the oil and gas estate to Berdie Wilson.


PAROL INTER VIVOS GIFT OF AN INTEREST IN LAND

      In order to effectuate an inter vivos gift there must be evidence of an

intention to make a gift and a delivery, actual or constructive, of a nature sufficient



                                                                                22   ft age
not only to divest the donor of all dominion over the property but also invest the

donee with complete control over the subject-matter of the gift. In re Pyewe      's


Estate, 334 Pa. 154,   5   A.2d 123; In re Rynier's Estate, 347 Pa. 471, 32 A.2d 736. It

is the claimant's burden to prove by clear and satisfactory evidence that a gift in

fact was made. Sullivan v. Hess, 241 Pa. 407, 88 A. 544; In re Kata's Estate, 363

Pa. 539, 70 A.2d 351; Lochinger v. Hanlon, 348 Pa. 29, 39, 33 A.2d 1. Cf, In re

Campbell's Estate, 61 Pa.Dist. & Co. 19. (Emphasis Added).


No Evidence of a Declaration of Gift

       Carter and Wilson argue that "subsequent acts as well as the facts and

circumstances surrounding the gift" establish Hugh Hanna's donative intent to

make an immediate gift of oil and gas to Berdie Wilson. Carter and Wilson did not

provide any evidence of an actual declaration of a gift by Hugh Hanna to Berdie

Wilson.

      The court has reviewed and considered each of the cases cited in Carter and

Wilson's Omnibus Brief concerning donative intent. The cases cited by Carter and

Wilson do not support their extrapolation of long-standing legal principles.

In the cases cited by Carter and Wilson, either by a writing such as a signature card

or other written instrument, the essentials of a gift inter vivos were proven.




                                                                              231Page
           For instance, Carter and Wilson cited the case of Ashley v. Ashley, 393 A.2d

    637, 639 (Pa. 1978) for the pm-poses of defining donative intent. Though correctly

    citing the black letter principle that such intent is an intention to make an

    immediate gift and transfer ownership, Carter and Wilson neglected to discuss the

    facts of Ashley. In Ashley, evidence of both a donor's oral and written

    representations regarding the gift of shares of stock to his wife was offered. No

    such evidence regarding Hugh Hanna's oral and written representations was

    offered by Carter and Wilson.

          Carter and Wilson also cited In re Secary's Estate, 407 Pa. 162, 166-67, 180

    A.2d 572, 574 (1962) for the principle that parol evidence is admissible to prove

0   donative intent. The difficulty in applying this principle is that Carter and Wilson

    do not offer parol evidence of a declaration by Hugh Hanna     of a gift to Berdie

    Wilson. Further, Carter and Wilson broadly paraphrase a holding that dealt with

    an inter vivos gift of the contents of a safety deposit box where the alleged donor

    and donee executed a written lease. The Supreme Court in Secary explained:


          Where an owner of a safe deposit box and his donee execute a
          contract or lease which recites that the property therein is the joint
          property of the lessees, with right of survivorship, and that the lessees
          acknowledge the receipt of two keys to said box -this creates a prima
          facie case of a valid inter vivos gift of a joint interest (with right of
          survivorship) in said property. The majority view appears to be that
          parol evidence is admissible (a) to prove an intention, or lack of
          intention, to make a gift as well as (b) delivery or failure of delivery,

                                                                                    24IPage
           because the instrument is considered to be incomplete or (sometimes)
                      CLEurjanickls_Estate,a-37,1PA.:±484,10_0=Aai8_5.EQWever,___
           it is established that the parol evidence which is necessary to disprove
           such gift must be clear, precise and [convincing]. Cf. Fudanick's
           Estate, 375 PA. 484, 100 A.2d 85, supra; In re Fell's Estate, 369 Pa.
           597, 87 A.2d 310, supra; Mader v. Stemler, 319 Pa. 374, 179 A. 719,
           supra; Dempsey v. First National Bank of Scranton, 359 Pa. 177, 58
           A.2d 14, supra.

    In re Secary's Estate. 407 Pa. 162, 166-67, 180 A.2d 572, 574 (1962). In response

    to the motion for summary judgment, Carter and Wilson have not provided

    evidence that Hugh Hanna and Berdie Wilson executed a contract or a lease that

    recited their joint ownership of the oil and gas estate lying beneath the Property.

           Carter and Wilson correctly state that donative intent may be more readily

    found in cases involving gifts of personal property from parents to children. Aside

    from being cases that involve personal as opposed to real property, such cases are

    also factually different from this dispute.

          For example, Carter and Wilson cite McClements v, McClements, 191 A,2d

    814, 816 (Pa. 1963) which is distinguishable on its facts. McClements involved a

    dispute over ownership of shares of corporate stock between the widow and the

    sons of a decedent. Ownership of the disputed shares had been transferred to the

    sons according to the books of the corporation. Citing its earlier decision in

    Brightbill v. Boeshore, the Supreme Court reiterated that "under certain

    circumstances, the transfer of the registration of stock ownership on the books of
a
                                                                                251   Page
the corporation in itself constitutes a legal and sufficient delivery. McClements v.

McCleiiientr41r lc:257;261;       191 -A.2 a 814, 81511 6t1r9631:-

      In this instance, no such documentary proof of a transfer of ownership of the

oil and gas estate of the "Hugh Hanna Tract" has been provided. In regards to

matters involving real estate interests, the transfer of such ownership rights is

recorded in the Recorder of Deeds Office. Conspicuously absent from the

evidence Carter and Wilson have asked this court to consider are any recorded

documents, to include memorandums, which establish the alleged gift of an oil and

gas estate to Berdie Wilson. (See Range App. Ex.. 5, p. 213 lines 7-14)

      The quantum of evidence necessary to circumstantially prove an oral inter

vivos gift is more than suspicion and conjecture. For instance in Wagner, the

Supreme Court found significant actions the donor had taken in and around a

specific date. The _Wagner Court explained:


             Accepting as true, as did the trial court, the testimony of Mr.
      Aston, Eugene, Jr., and Marjorie, we are satisfied that the record
      supports a finding that appellant made or caused to be made delivery
      by gift to three of his children of the entire outstanding capital stock
      of the Realty Corporation. When on November 27, 1970, Aston's
      secretary, pursuant to appellant's instructions, recorded on the
      books of the corporation the issuance of shares to the three
      children, no share certificates had yet been issued. At the same
      time that this recording was made, blank share certificates were
      given, again with appellant's consent, to Wagner, Jr., and
      Marjorie for their signatures as officers of the corporation.
      Delivery was thereby made of whatever ownership rights Mr.
      Wagner may have then held in the corporation; he had done all

                                                                             26 Rage
       that was possible to put the corporation beyond his control.9 That
       being so, it itreleyantthat the share certificatesyvere_thereafter kept._       _
                     is           A gift having been once completed by
       delivery, return of the subject matter to the donor will not of itself
       negate the transaction. Brown, Personal Property s 39 at 92-93 (1955);
       see also Thompson v. Curwensville Water Co., 400 Pa. 380, 162 A.2d
       198 (1960).

Wagner v. Wagner, 466 Pa. 532, 539-41, 353 A.2d 819, 823 (1976) (Emphasis

Added). Unlike Wagner, Carter and Wilson have offered no evidence that Hugh

Hanna gave instructions that title documents for the oil and gas estate be prepared

and given to Berdie Wilson. Carter and Wilson offered no evidence that Hugh

Hanna communicated in any manner with any person his intention to transfer his

oil and gas rights to Berdie Wilson.

       Lastly, Carter and Wilson also cited Brightbill v. Boeshore, 385 Pa. 69, 122

A.2d 38 (1956). Brightbill was a dispute over the ownership of 670 shares of stock

in a family owned business between a surviving spouse and her step-daughter.

Prior to death, Miles Brightbill executed a written property settlement agreement

with his first wife which provided for the delivery of 370 shares of stock to Mr.

Brightbill's daughter, Kathryn Boeshore. Later, Mr. Brightbill assigned his

remaining 670 shares in the family business to Ms. Boeshore. Ms. Boeshore took

possession of the stock certificates for the 670 shares. Nonetheless, Mr. Brightbill

for the remainder of his life received the dividends for the 670 shares, paid taxes

on those dividends, and voted the shares of stock at corporate meetings.


                                                                            271Page
 Additionally, the corporate records did not indicate a change in the ownership of

   e stock hadoccurred, corporate tax returns continuedo tndxcate Mr. Bnghbill-        =a
 owned the stock and corporate by-laws provided that a transfer of all the stock was

to be considered a resignation. Brightbill v. Boeshore, 385 Pa. 69, 76, 122 A.2d

38, 42 (1956). The Supreme Court upheld the lower court's ruling that a valid gift

of the 670 shares to Boeshore had occurred. The Court reiterated a long-standing

principle that:

       `A gift inter vivosof stock, when once made, cannot be revoked or
       recalled by the donor without the consent of the donee, nor can the
       subsequent acts of the donor to which the donee is not a party and to
       which he does not consent, affect his title, although, of course, the
       donee may return the stock, thus releasing any right of ownership.

Brightbill v. Boeshore, 385 Pa. 69, 78-79, 122 A.2d 38, 43 (1956).

       Unlike Brightbill, no evidence was presented of Hugh Hanna delivering an

unrecorded deed, lease or other writing that transferred his oil and gas rights to

Berdie Wilson. To the contrary, Carter and Wilson maintain the gift was an oral

one.

Circumstantial Evidence Concerning Oral Gift

       The requirements for the creation of a valid parol gift of land are "well

established." Fuisz v. Fuisz, 527 Pa. 348, 352-53, 591 A.2d 1047, 1049 (1991). In

Fuisz, the Court detailed the following requirements: 1.) evidence of the gift must

be direct, positive, express, and unambiguous; 2.) possession of the land must be

                                                                            2.81Page
    taken at the time or immediately after the gift is made, and such possession must

    be exclusive, open, notorious, adverse, and continuous; and 1) the donee must

    make valuable improvements on the property for which compensation in damages

    would be inadequate.? In Fuisz. Chief Justice Flaherty further explained:

          Thus, Yarnall clearly established that the elements of a parol gift of
          land must be established by evidence which is direct, positive,
          express, and unambiguous. Underlying this requirement is a view that
          delivery of a deed, as is generally necessary under the Statute of
          Frauds, 33 P.S. § 1, is the normal and proper means for conveying
          title to real property. Only where it is abundantly clear, leaving
          nothing to speculation, that a parol gift has occurred does Yarnell
          permit recognition of the gift. The stringent requirements of Fantail
          exist to encourage persons to transfer properties in the proper
          manner, by means of deeds, and to foreclose the claims of those
          who might otherwise assert questionable claims of ownership in
          others' properties.

Fuisz v. Fuisz, 527 Pa. 348, 352-53, 591       Aid 1047,    1049 (1991) (Emphasis

Added). Further, where the alleged parol gift of land is between parent and child,

evidence of an "even more clear and weighty nature" is required than is necessary

where the alleged gift was between unrelated persons. Id. citing Yarnell Estate, 376

Pa. at 589-90, 103 A.2d at 758. Rany v. Shimelc, 360 Pa. at 318, 62 A.2d at 48.

         The depositions of Carol Beth Wilson and Jade Carter demonstrate that the

Plaintiffs are not able to prove through circumstantial evidence the existence of a




7See also omitted citations of Yarna,Estate, 376 Pa. 582, 590,103 A.2d 753, 758 (1954) and
Parry v. alma. 360 Pa. 315, 62 A.2d 46 (1948).
                                                                                   291Pa.ge
      parol inter vivos gift 8 When asked in what year the gift occurred, Carol Wilson

     responded "That I can't tell you." (See Range App. Ex. 5, p.15) When asked what

     the circumstances "were around the gift," Carol Wilson testified "I don't know."

     (See Range App. Ex. 5, p.15) No deed, court order, recorded or written document

     memorializes the gift. (See Range App. Ex. 5, p. 16,201 and 213) Sadie Carter's

     testimony concerning the date and circumstances surrounding the gift was no more

     precise. Ms. Carter testified:


                   The gifting of the oil and gas property that Hugh had to his
           daughter and her husband, Alex Wilson, either it would be given as a
           gift for marriage, as a wedding gift, since Alex was an oil producer.
           In lieu of giving livestock, if he had been a farmer, the gift was oil and
           gas. And that was during the time frame ---any time frame, between
           the time that Hugh Hanna purchased the property in 1903 to the time
           that the printing of the farm map in 1911, with two wells showing
           clearly in the Hanna property at that time. (Emphasis added)

     (See Range App. Ex. 11, p. 24-25). Ms. Carter added that she was unable to locate

     a marriage certificate for Alex and Berdie Wilson but "assumed" they were

     married in 1910. (See Range App. Ex. 11, p. 26) Jade Carter also admitted "I have

     no written evidence that the gift occurred." (See Range App. Ex. 11, p. 27 lines 8-


     'Berdie Wilson was the paternal grandmother of Plaintiffs Patricia Carter, John
     Allen Wilson and Carol Beth Wilson. (See Range App. Ex. 5, p. 1-12 and 14).
     Berdie Wilson died in 1976. (See Range App. Ex. 5, p. 14) . Jacie Carter is the
     daughter of Plaintiff, Patricia Carter, and though having no experience in real
     estate title abstracting, conducted research in. the Recorder of Deeds and Tax
     assessment Offices of Washington County. (See Range App. Ex. 11, p. 21-22) The
     Plaintiffs relied upon Ms. Jacie Carter's research in making their claim. (See
lJ   Range App. Ex. 5, p. 25 ,lines 18-24, and 28-29)
                                                                                 301Pa ge
 9) When asked       if the alleged gift was to Berdie Wilson, alone, or included Alex
 Wilson as a co -done; Ms. Carter responded "I can't differentiate whether it went

 to one person or another." (See Range App. Ex. 11, p. 38) Carol Wilson has no

 personal knowledge of the gift because she was not "even born yet." She did not

 have conversations with the persons involved concerning the gift. (See Range App.

 Ex.   5   p.67)


           In addition to not knowing the date of the gift, Carol Wilson does not know

the facts and circumstances surrounding the alleged oral gift. (See Range App. Ex.

5,   p. 17) Carol Wilson knows of no witness to the alleged gift. (See Range App.

Ex. 5, p. 17) The plaintiffs had no conversations with Berdie Wilson concerning

the alleged oral gift from her great grandfather. (See Range App. Ex. 5, p.     18   and

67 and Ex. 11, p.    42) Carol Wilson acknowledged that she never heard Berdie
Wilson say that she owned the oil and gas. Berdie Wilson's Will and her estate

documents made no mention of any ownership of oil and gas rights for the Hanna

Tract. (See Range App. Ex. 5, p. 45 and 201) Following Berdie Wilson's death in

1976 until 2014, when the original complaint was filed in this matter, Carter and

Wilson filed no actions claiming their ownership of the Hanna Tract's oil and gas.

(See Range App. Ex. p. 205-206) Berdie Wilson recorded no documents reflecting

the transfer of oil and gas rights to Berdie Wilson and from Hugh Hanna. (See

Range App. Ex. 5, p. 213)

                                                                              31(Page.
        Both in answers to interrogatories and during her deposition testimony,

 Carol Wilson confirmed that the Carter and Wilson claims are based upon

 circumstantial inferences to be drawn from multiple documents. She specifically

 identified exhibits attached to the Amended Complaint, being Exhibits

 B,C,D,E,F,G,X,Y,Z, and AA thru ICK, and those Bates stamp documents 001-0047

provided through discovery. (See Range App. Ex. 5, p. 184-187, and attached Ex.

A, p.6 Answers to Interrogatories 6 thru 13).9 These documents can be categorized

as follows: tax returns for Berdie and Alex Wilson; Hugh Hanna Estate related

documents; well records from DEP; the personal papers of Berdie Wilson;

documents regarding Alex Wilson; obituaries; documents concerning other

properties owned by Hugh Hanna; tax assessment property cards from 1934; maps;

documents provided by a library; the accounting of a guardian for Berdie Wilson's

children and the testimony of Fred Gashel.


Tax Return Evidence


        Carter and Wilson rely upon unsigned and unauthenticated tax returns,

Exhibits B, C and D for Alex Wilson and Berdie Wilson. Neither Carol Wilson nor

Jade Carter had any personal knowledge of the preparation of these documents.


'The parties stipulated that Carol Beth Wilson was designated as the representative for all
Plaintiffs. As such the parties agreed that testimony from other named Plaintiffs would be
cumulative. The parties stipulated that the trial testimony of other named Plaintiffs is bound and
limited by the testimony of Carol Beth Wilson. (See Range App. Ex. 9)

                                                                                       321Page
 Putting aside the evidentiary challenges to the proper admission of those

 documents at trial, the contents of the documents do not prove that Berdie Wilson

 received the oil and gas estate as a gift from her father.


       Exhibit B, an unsigned 1920 Tax Return, does contain a reference to rent

 and royalty income. (See Amended Complaint Ex.            BP However, Carol Wilson
agreed the 1920 return did not indicate where the oil producing income came from

(See Range App. Ex, 5, p. See Range App. Ex. 5, p.33) and did not reflect oil and

gas well royalty income. (See Range App. Ex. 5, p. 35)


       With regard to Exhibit C, an unsigned income tax return for 1921, and

Exhibit D, an unsigned 1925 Federal Tax Return offierdie Wilson, neither when

considered, alone or together with all other evidence, demonstrates that Berdie and

Alex Wilson derived oil and gas income from the Hanna Tract or made permanent

improvements to it. With regard to Exhibit C, Carter and Wilson do not know from

where the rents and royalties were derived. (See Range App. Ex. 5, p.42-43)

Carol Wilson could not relate such oil and gas income to the oil and gas under the

Hanna Tract (See Range App. Ex. 5, p.46) Exhibit D contained no indication that

the income shown was attributable to oil and gas came from the Hanna Tract (See

Range App. Ex. 5, p.51-53 and 56-57)



 The writing in the "Income From Rents and Royalties" section of the return was not legible.

                                                                                     33IPage
             These tax returns do not support Carter and Wilson's claim that Berdie and

      Alex Wilson "made permanent improvements to the oil and gas underlying..." the

      Hanna Tract." For the 1921 return, nothing on the return indicates that expenses

      labeled "Labor," "Depletion," and "Automobile" were incurred in operation of oil

      wells and an "associated pipeline" on the Hanna Tract. (See Amended Complaint

     Ex. C) The deductions set forth in Exhibit D also do not refer to the Hanna Tract.

      (See Amended Complaint Ex. 1-) line 8) These returns do not provide support for

     the assertion by Carter and Wilson that Berdie and Alex Wilson labored to produce

     oil and gas from the Hanna Tract. Exhibits B, C and D to the Amended Complaint

     do not support Carter and Wilson's claim that Berdie Wilson made valuable

     improvements to the Hanna Tract.


            Carter and Wilson did not attach to their Amended Complaint the unsigned

     1919 Tax Return purported to be that of Alex Wilson. (See Range App. Ex. 10,

     being "Carter 0048-0051" and Ex.       11   p. 151) Similar to Exhibits B, C, and D this

     court could find no reference to the Hanna Tract on the return. Under the section

     entitled "Income From Rents and Royalties" there exists an entry for "Oil Lease."

     In a box that requires the taxpayer to identify the "Name and Address of Tenant,

     Lessee, Etc." the words "Managed by self' appear. No evidence was presented

     that established that the Gourley Lease had been terminated prior to 1915. Instead,
as
     " See Carter and Wilson Omnibus Brief p. 34.

                                                                                    341Page
W.C. McBride received an assignment in 1905 and himself assigned his interest in

 1914 to the Delk Investment Corporation. Ifincome had been derived from oil and

gas production on the Hanna Tract, one would expect that the person receiving that

income would report it and attribute it to either W.C. McBride or the Delk

Investment Corporation. No such entries are found in Alex Wilson's 1919 Return

or in the later returns being Exhibits B,   C and D.

       Carol Wilson stated that her grandfather and grandmother had oil and gas

leases for multiple properties. (See Range App. Ex. 5, p. 55 lines 15-18) Carol

Wilson and her fellow plaintiffs contend that Berdie and Alex Wilson were oil

producers who owned and operated the Claysville Oil Company. (See Carter and

Wilson Omnibus Brief, p.     13   and Range App. Ex. 5, p. 125-126) However, lade

Carter conceded the plaintiffs had not uncovered any documents that supported a

conclusion that Berdie and Alex Wilson owned the Claysville Oil Company. Ms.

Carter stated "There was no business incorporation documentation, no(sic), I could

locate. But that still doesn't acknowledge that because the documentation cannot

be found, that they were not the owners and it was not their business." (See Range

App. Ex   11 p. 50   -51) Ms. Carter and the Plaintiffs concluded that a reference to

the source of Alex Wilson's income from "Salaries, Wages and Commissions" on

a tax return proved his ownership    of the Claysville Oil Company. (See Range App.



                                                                             35[Page
 Ex. 11, p. 66-73 and 119-120)12 To End that the mere reporting of income on a line

of a t                      y used irdetar                 AT-ea:frailb

 not the principal of a business enterprise is an unreasonable inference. To

 circumstantially conclude that Alex and Berdie Wilson owned the Claysville Oil

 Company when no documents provide actual support for such a claim is an

 exercise in sophistry.


Estate Documents for Hugh Hanna


         Numerous documents concerning Hugh Hanna's Estate were offered by

Carter and Wilson to show the existence of a material issue of fact. Those

documents included exhibits attached to their Amended Complaint, being Exhibits

E, F, G, HET,   12,   J1 and KK and to their Answers to Interrogatories being labeled

Carter 0027-0028.


         Carter 0027-0028 is a draft of Hugh Hanna's Will. (See Range App. Ex. 5,

p. 168,   and Ex. 12) Carol Wilson explained that this draft shows Hugh Hanna was

"specific" in directing the disposition of his property and "that he would not have

missed something of oil and gas if he meant it to go anywhere other than he


12The 1925 Tax Return, purported by Carter and Wilson to be Berdie Wilson's, did not include a
reference to the Claysville Oil and Gas Company or to income in the form of salaries, wages and
commissions. In the 1925 return only the "sale of oil" was reported as "other income," (See
Amended Complaint Ex. D and Range App. Ex. 10) In later testimony, Jule Carter conceded
that entries on Alex Wilson's Estate Documents did not show that he owned the Claysville Oil
and Gas Company ( See Range App. Ex. 11, p. 119-120).
                                                                                    361Page
     already gifted it to my grandmother." (See Range App. Ex. 5, p. 168 lines 9-19)

       ar0      soh iicknoWleciged-thi   draftailaid not state that Hugh Hanna
     previously gifted the oil and gas to Berdie Wilson. (See Range App. Ex. 5, p. 168

     lines 20-23)


             With regard to Exhibits E, F and G, these documents are Hugh Hanna's

     probated Last Will and Testament, Elizabeth Hanna's Election to take against the

     Will and the Deed of Distribution executed by Hugh Hanna's heirs. None of these

     documents contains an express reference to a severed oil and gas estate having

     been previously "gifted" to Berdie Wilson.


             Exhibit M is correspondence from Howard T.E. Harm to I.N. Miller the

     Executor of the Estate of Hugh Hanna. In the document, Howard T.E, Hanna

     gives an accounting of revenues and expenses from a joint venture involving sheep

     that Howard T.E. Emma and Hugh Hanna conducted. (See Range App. Ex.           11    p.

     130) Carol Wilson explained that the lack    of a similar accounting from Berdie

     Wilson to Executor Miller demonstrated that Berdie Wilson and Hugh Hanna were

     not in business together to produce oil. (See Range App. Ex. 5, p. 148) Ms.

     Wilson, however, acknowledged that the fact that Hugh Hanna was not in the

     business of producing oil and gas did not preclude him from owning the oil and gas

     lying beneath the Hanna Tract. (See Range App. Ex. 5, p. 148-149)

p)
                                                                                 37 IP   age
        With regard to Exhibit II, the document appears to be the First and Final

 Administrator's Account for Hugh Hanna, According to Carol Wilson this

 document revealed that from the date of Hugh Hanna's death in 1923 to 1924 he

had income of $257.64 and it was not derived from oil and gas royalties. (See

Range App. Ex. 5, p. 146) Carol Wilson acknowledged it was possible that any

oil and gas well on the Hanna Tract may have stopped producing during this

period. (See Range App. Ex. 5, p.148).


        Exhibit KK is correspondence from Attorney R.W. Knox to Berdie Wilson

concerning appraised values for the Hanna Tract, both surface and coal, and a 34

acre tract of coal located in Buffalo Township. (See Range App. Ex. 11, p. 130-

131) Carol Wilson explained that the significance of this document shows that the

Hanna Tract's oil and gas was not separately valued for inheritance tax purposes

and "So therefore, the estate did not own the oil and gas." (See Range App. Ex. 5,

p. 149 lines 3-13)13 Ms. Wilson did not know whether the oil and gas estate was

separately assessed for property tax purposes by Washington County. (See Range

App. Ex, 5, p.149-150). However, Carter and Wilson adamantly maintained in

their Omnibus Brief, that the Will of Hugh Hanna and the administration and




 "This claim is factually incompatible with the Carter and Wilson's assertion that the oil and gas
 estate was not distributed through Hugh Hanna's Estate and by operation the laws of intestacy
they own a portion of the oil and gas estate underlying the Hanna Tract,
                                                                                        381Page
distribution of his estate did not provide for the disposition of the oil and gas

estate. (See Ornnibus Brief at 14-T0)


       In support of this claim, Carter and Wilson cite Hyde v. Rainey. 233 Pa. 540,

82 A. 781 (1912). The decision in Hyde, was arrived at by the Court in order to

give effect to all portions of the testator's Will. The Court explained, "...but the

conclusion reached is the only one which gives force and effect to every part of

the wilL It does no violence to the language used; it makes the will consistent in all

of its parts; and, in our opinion, carries out the manifest intention of the testatrix."

Hyde v. Rainey, 233 Pa. 540, 549, 82 A. 781, 784 (1912). (Emphasis Added).


      However, the language of the testator's Will in Hyde differs significantly

from that of Hugh Hanna. In Hyde, the testator's Will provided:

      The fifth item of the will was as follows: 'I will and bequeath to my
      son Harmon H. Rainey all that tract of land situated in Nottingham
      Township, Washington county, Penna., on which I now reside subject
     to the above named bequests which he is to pay to my daughters
     Lydia Bebout and Maria J. McGregor, and one hundred dollars to
     John Dixon will be hereinafter mentioned. The above named farm
     contains two hundred and twenty acres more or less, together with all
     the farming implements which I possess, including one two horse
     wagon, one four horse wagon and one spring wagon, and at the death
     of my son Harmon H. Rainey the above bequest is to descend to his
     children.'
     The sixth item of the will was as follows: 'It is my will that if the farm
     on which I reside shall be leased for the purpose of mining for coal,
     gas or oil that the proceeds of the lease shall be divided between my
     four children, viz.: Sarah K Hyde, Lydia A. Bebout, Maria J.
     McGregor and Harmon H. Rainey, share and share alike.'


                                                                              39)   age
ttre-ctt-- !Walt                        8i-A:781(1912)7(EMPlie,S4Aided)114,1-

         Will contained no similar express reference to oil and gas, An express mention of

         coal being severed and previously given by gift to Howard T.E. Hanna is set forth.

         Conspicuously absent from Hugh Hanna's Will is any mention of a previous gift of

         oil and gas to Berdie Wilson. This distinction is critical as the following passage      of

         the Hyde opinion makes clear:

               It is true that the severance is generally made by deed or other
               conveyance, and that until so made the title to the land is regarded
               as an entirety, including minerals as well as surface. But that the
               severance can be made by will is not an open question in this state; for
               it was expressly so decided in Christy v. Christy, 162 Pa. 485, 29 Atl.
               781.

         Hyde v. Rainey, 233 Pa. 540, 545, 82 A. 781, 783        (1912).   As discussed above,

         neither the Hanna Tract's chain of title nor Hugh Hanna's Will includes any

         express severance of the oil and gas estate from the entirety      of the Hanna Tract.

         Giving full force and effect to the scheme of distribution set forth in Hugh Hanna's

         Will does not require one to conclude that Berdie Wilson owned the oil and gas

         lying beneath the property.

               With regard to Exhibit HH, this document is the inventory for the Hugh

         Hanna Estate. (See Range App.   Ex. 11, p. 129)       According to Carol Wilson the

         inventory contained no indication of any oil or gas being produced or any wells

         being valued. (See Range App. Ex.    5, p.   143)   Carol Wilson stated that the

                                                                                         40[Page
       Inventory shows no oil as being an asset of Hugh Hanna's Estate. (See Range App.

       Ex. 5, p. 146) However, the Inventory-and-Apprat-sement did not disclose any real

       estate holdings for Mr. Hanna.


                Carter and Wilson contend that the lack of any specific mention of the oil

       and gas estate in Hugh Hanna's Will or in other Estate flings supports their claim

      of a prior parol inter vivos gift of realty to Berdie Wilson. They emphasize that

      Hugh Hanna merely provided fin the disposition of "surface" of the Hanna Tract.

      Such a conclusion is erroneous.

                The Supreme Court in Rogers Estate, 3791 a. 494, 495- 496, 108 A.2d 924

      stated:


                   In the settlement of a decedent's estate disputed title to property
             should not be determined upon exceptions to an inventory and
             appraisement which happens not to include the property claimed on
            behalf of the estate. The function and object of an inventory and
            appraisement in a decedent's estate is to fix presumptively the
            existence of property in the possession of the fiduciary and the value
            thereof. This is only prima facie evidence of ownership and value.
            Such listing does not affect the true ownership and value.

      Id. (Emphasis added and citations omitted).

            Thus, the lack of any mention of any real estate interest to include an oil and

      gas estate does not preponderate in favor of the conclusion that such failure to

      mention is due to a prior gift of the oil and gas estate to Berdie Wilson. The

      absence of a reference to ownership of the oil and gas estate in the Inventory could
(2)
                                                                                   411Page
 be due to a variety   of other circumstances. Simple oversight, neglect or some

purpose other than the unsupported cairn that at some unknown prior time Hugh

Hanna gifted the oil and gas estate to Berdie Wilson, each could explain the lack of

a   reference to the Hanna Tract in the Inventory. All such possibilities including the

alleged parol inter vivos gift are nothing more than base speculation. The evidence

as accumulated and submitted by the parties does not permit any conclusion to be

reasonably drawn from the lack of a reference to any real estate holdings of Hugh

Hanna in his Estate Inventory.


        Moreover, in Highland v. Corn., 400 Pa. 261, 282, 161 A.2d 390, 401

(1960), the Pennsylvania Supreme Court rejected arguments similar to those now

made by Carter and Wilson      .   Highland involved four parties vying for natural gas

and oil rights. One claimant, Shawmut, made an argument similar to that advanced

by Carter and Wilson. Specifically, Shawmut claimed that the combination of the

absence of a specific reference to natural gas in a deed to a competing claimant

(Thompson) along with a reference to the "surface" as being conveyed indicated

the grantor (Arnold) had previously sold his interest in the oil and gas to

Shawmut's predecessor in title. Shawmut contended the use of the word "surface"

in a later deed from Arnold's personal representatives proved that Arnold at his

death was already divested of any ownership in the natural gas. The Supreme

Court rejected that argument and held that the "burden was upon the Shawmut

                                                                              42 P
 group to show, by clear and convincing evidence, that the parties intended that

 natural gas be included within the prior deed to Shawmut's predecessor in title.

 The Supreme Court found significant that "Neither the language of the deeds, the

 surrounding circumstances nor the subsequent conveyances made by Arnold and

 his successors in title demonstrate such intent." Highland v. Corn., 400 Pa. 261,

 279-80, 161 A.2d 390, 400 (1960).


       A second clainint in Highland, "the Arnold Group", argued they owned the

rights to the disputed property in part because of a lack of reference to oil and gas

rights in estate documentation. In Highland, supra., the personal representative of

an estate had previously sought court approval for the sale of realty. In the petition

for such approval, the executor asserted that an attached schedule, "C", was a full,

correct statement of all the real estate of the testator. The executor's schedule C

did not Iist the rights to natural gas. Instead, the executor described the four

parcels by a metes and bounds description prefaced by the words "Surface Only."

On this basis, the Arnold Group, argued that the sale approved by the court did not

include natural gas interests. The Supreme Court did not agree. Specifically, the

Court held:


      A reference to Schedule 'C', [attached to the executor's petition for
      the sale] indicates that it was prefaced as a 'full, correct statement of
      all the real estate of [Arnold] * * * which has come to the knowledge
      of his executors'. The Arnold group now argues that the rights to the

                                                                             131Page
        natural gas were never listed by Arnold's personal representatives in
        the_petitionlor,salei=thatncLauthority.tuzseasuchrights wasimpesteti
        and that no such authority was granted by the court.
       Even though the descriptions of Parcels 1, 2, 3 and 4 were prefaced as
        `surface. only.',.yet Arnold's personalseprepcntatiyep, both in their
       petition and attached schedule, did represent to the court that they had
       listed all of Arnold's interest in realty in Clearfield County. There can
       be no doubt, from an examination of the court proceedings which led
       up to the petition for sale and to the sale itself, that Arnold's personal
       representatives, in order to liquidate his indebtedness, fully intended
       to sell all of Arnold's interest in realty in Clearfield County of
       whatever nature and there is no suggestion, expressed or implied, that
       there was to be a severance of the natural gas rights from the realty.


Highland v. Corn., 400 Pa. 261, 282, 161 A.2d 390, 401 (1960) (Emphasis Added).


       Thus, the mere reference in a conveyance to the "surface" of realty does not

in and of itself reflect an intention to sever the surface from the oil and gas estate.

Moreover, the lack of a reference to a severed oil and gas estate in Hugh Hanna's

Will does not prove that he completed a parol inter vivos gift of the oil and gas

estate to a specific person, namely Berdie Wilson. Much more evidence is

necessary to arrive at that conclusion.

      In Exhibit G, the Deed of Distribution executed by Berdie Wilson, she and

Hugh Hanna's other heirs declared a different intention. Specifically, they

explained their purposes as follows:

              AND WHEREAS, the failure of the testator to provide for the
      payment of his debts or for the expenses of settling his estate, and
      also, the election of his widow to take against said will, rendered
      impossible the distribution of said estate, real and personal, in all

                                                                              44IPage
         respects as intended and provided by said testator, and therefore, all of
      -the.persons_interested as devisees _andJegatenndetsaid :wilLagreed
         upon a distribution of said estate, real and personal, adjusted to the
         circumstances and approaching as nearly as possible to that which the
        testator directed in his will. _This was accomplished by placing a
        money value upon all of testator's estate, realandpersonal, the
         agreed value of the real estate being the valuation placed upon it for
        transfer inheritance tax purposes, and the agreed value of the personal
        estate being the valuation placed upon it by the appraisers thereof for
        administration purposes. The entire estate, real and personal, was
        then submitted by agreement to the Orphan's Court of Washington
        County, Pennsylvania and distribution was made by said Court as
        though the entire balance for distribution had consisted ofmoney.
        See Decree of Distribution at No. 141 August Term, 1924, A.A. of
        said Court.

(See Amended Complaint Ex. G being DBV 541 page 325) (Emphasis Added).

The Deed of Distribution shows a clear intention by Berdie Wilson and her fellow

heirs to dispose of the entire Hugh Hanna Estate. Though Berdie Wilson and the

other heirs made provisions in the Deed of Distribution to secure the coal rights

previously given to Howard T. E. Hanna they made no similar provision for oil and

gas rights being distributed to Berdie Wilson.°



L4Carter and Wilson In their "Sur-Reply Brief' argue that reliance upon evidence of the payment
of taxes and disclosure in an estate inventory may be relied upon to establish evidence of
ownership. They cite Herder Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016), rea
denied. 137 S.Ct. 641 (2017). Having reviewed Herder, this court can find no portion of the
clear and straight forward opinion that can be fairly read to support Carter and Wilson's
interpretation.
        In Herder., Justice Baer framed the issue before the court as follows:

       The parties' claims rise or fall based upon whether a 1935 tax sale resulted in the
       transfer of the entire property or merely the surface rights. After extensive review
       of the historical law regarding tax sales of unseated land in. Pennsylvania, we
       conclude that the tax sale related to the entire property at issue, including both the

                                                                                          45IPage
            actuand subsurface etterei:7Afirill be-ell -tinted after-discussion of the
        relevant law, the critical question in this case is whether the 1935 and 1941 sales
        involved the entire Eleanor Siddons Warrant or merely the surface rights

Herder Spring Hunting Club v. Keller, 143 A.3d at 359 and 361. The plaintiff in Herder Spring,
contended that a 1935 tax sale "extinguished any prior reserved estates in concurrence with the
longstanding policy of 'title -washing.' "In furtherance of its argument, Herder Spring observed
that the deed from the Centre County Commissioners to Herr did not reference only the "surface
estate" but rather the Eleanor Siddons Warrant." Herder Spring Hunting Club v. Keller, 143 A.3d
at 361. Justice Baer on behalf of the majority stated:

       we reject the Keller Heirs' claim that the reference to the "land surveyed to Ralph
       Smith" in the 1936 Deed from the Treasurer to the County Commissioners
       indicated that the deed was limited to the surface estate. Instead, we recognize
       that unseated land was assessed and taxed in the name of the Warrant, and any
       reference to the presumed -current owner, such as Ralph Smith, was merely used
       for descriptive purposes.

Herder Spring Hunting Club v. Keller, 143 A.3d at 373. Justice Baer explained that real estate
tax on unseated land was the liability of the land rather than the owners. "Therefore, if the
property was assessed as a whole property and none of the owners paid the tax, then the property
would be sold as a whole to satisfy that tax." Herder Spring Hunting Club v. Keller, 143 A.3d at
375.

Justice Baer added:

       We reiterate that the caselaw conneels that unseated land should be assessed
       according to the original warrant, absent direction from the owners, and that a tax
       sale conveys the property covered by the assessment.

Herder Spring Hunting Club v. Keller, 143 A.3d at 375.

Justice Baer set forth the limitations regarding the holding in Herder as follows:

       We observe that the holding in this case applies to a very limited subset of cases
        involving quiet title actions for formerly unseated land sold at a tax sale prior to
        1947. Indeed, within this subset of cases, the decision would not govern those tax
       sales which specified whether the assessment involved the surface or the mineral
       rights. Additionally, the Keller Heirs contend that it would not apply to tax sales
       where the severance occurred after the tax assessment, as our prior cases address
       such scenarios. Furthermore, it would not apply where owners can meet the
       adverse possession standard, which the trial court found Herder Spring missed.
       Therefore, this case has limited application, though substantial significance to
       those to which it applies.

                                                                                         461Page
        Well Records

               Carter and Wilson submitted documents, Exhibits X and Z, benag well

       record? for two (2) wells on the Hanna Tract. Carter and Wilson contended these

       records demonstrated there were producing wells on the Hanna Tract. They argued

       that Alex Wilson was "an oil producer" and that these documents proved that Alex

       and Berdie Wilson were operating oil wells on the Hanna Tract. For these reasons,

       Carter and Wilson claim Hugh Hanna must have given his oil and gas rights to

       Berdie Wilson.

              With regard to Exhibit X to the Amended Complaint, Carter and Wilson

       assert these are well records from DEP for two (2) wells labeled L.L. Hilberry #               1



410    and #2. (See Range App. Ex. 5 p. 81-82 and Ex. 11, p. 99-104) Hilberry is the last

      name of an owner of the Hanna Tract, who is in the chain of title for the Individual

      Defendants, Fanning, Dutton and Cerciello. Carol Wilson's belief is that Alex

      Wilson drilled the wells during his lifetime because he was "an oil producer." (See

      Range App. Ex. 5, p. 87 lines 8-15)


             However, Carol Wilson admitted the well records did not indicate that

      Berdie Wilson owned or operated the wells or owned the property upon which the

      Herder Spring Hunting Club v. Keller, 143 A.3d at 378-79.
      In the dispute before this lower court, important is the fact that no evidence was presented which
      claimed that Carter and Wilson rest their claims upon a tax sale of unseated land. No evidence
      was presented that the Hanna Tract was unseated land.



                                                                                             .471Page
ati   wells were found. (See Range App. Ex. 5, p. 91-92) Carol Wilson had no
               -    _
      knowledge of when the wells stopped firoducing.

      Wilson had never seen the wells. (See Range App. Ex. 5, p. 95-96) Carol Wilson

      conceded the wells were not producing. (See Range App. Ex. 5, p.85) Carol

      Wilson's comments about the wells identified as Hilberry #       1   and # 2 were not

      based upon any information she received from DEP. (See Range App. Ex.             5   p. 83-

      84 and 85 lines 15-24) Carol Wilson acknowledged that: i) she lacked production

      records for the Hilberry #   1   Well and Hilberry #2, ii) had no records of the well

      being drilled, iii) possessed no knowledge of when the well was drilled, iv) knew

      of no records that demonstrated her grandfather Alex Wilson drilled the wells, and

      v) had no documentation as to the identity of the operator of the well (See Range

      App. Ex. 5, p. 86 and p. 89 and Ex. 11, p. 103-104).


            With regard to Exhibit Z, Carter and Wilson asserted that it was a

      photograph of Berdie Wilson at a well -site. Carol Wilson acknowledged. "but we

      have nothing to state that it is on that farm (Hanna Tract)." (See Range App. Ex. 5,

      p.97-98) Jacie Carter similarly conceded that the photograph could have been of a

      property other than the Hanna Tract. (See Range App. Ex. 11, p. 107) Further,

      Carol Wilson was unable to positively identify Berdie Wilson as being the lady in

      black depicted in the photograph. (See Range App. Ex. 5, p. 99-100) Carol Wilson

      admitted she did not know what well is depicted in the photograph but simply
.)

                                                                                      48    Page
 assumed that the well depicted was on the Hanna Tract (See Range App. Ex. 5, p.

 101-102).


Berdie Wilson's Personal Papers

       Carter and Wilson provided several documents, being Exhibits AA, BB, and

"Carter 0044-0047, that were discovered by Jacie Carter. Carter and Wilson

advanced that these documents supported their claim.


       With regard to Exhibit AA, a hand written receipt that Jacie Carter found in

the personal papers of Berdie Wilson, no reasonable inference can be drawn that it

relates to oil and gas income derived from the Hanna Tract. Both Carol Wilson

and Jack Carter conceded there was no indication on the document that such

financial reporting concerned or related to the wells on the Hanna Tract or that

Berdie Wilson owned the wells (See Range App. Ex. 5, p.105-106, 112, and 115

and Ex.   11   p. 110).


      Exhibit BB is purportedly a letter from D.L. Thomas to Alex Wilson dated

July 6, 1916. Carol Wilson stated the letter "may or may not relate to the farm

(Hanna Tract)." (See Range App. Ex. 5, p. 115) Jack Carter explained that the

letter dealt with a division order for two properties adjacent to the Hanna Tract,

being the I.E. Worrell Farm and the I.N. Miller Farm. (See Range App. Ex. 11, p.

111) However, Exhibit BB does show that Alex Wilson had a lease for other

                                                                            491Page
 properties to include a tract identified as the J.E. Worrell Farm (See Range App.

 Ex. 5, p.ii.7) Exhibit BB shows that Alex Wilson may have been "involved wit1S

 wells on other properties." (See Range App. Ex. 5, p. 118) Exhibit BB shows Alex

 Wilson may have had sources of oil and gas income from properties but not the

Hanna Tract. (See Range App. Ex. 11, p. llHines 7.25)


       Carter 0044-0045 are documents indicating "income from oil" (0044) and

the existence of a "lease." (0045) (See Range App. Ex. 5, p. 178) Carol Wilson

admitted these two documents do not specifically indicate any relationship to the

Hanna Tract. (See Range App. Ex. 5, p. 179)


       Carter 0046 was described by Carol Wilson as having been "done in prep for

that final settlement" of the Hugh Hanna Estate. (See Range App. Ex. 5, p. 179 and

Ex. 12) Carol Wilson noted the document did not specifically mention oil and gas

interests. (See Range App. Ex. 5, p. 181)

      Carter 0047 is a copy of checks in Berdie Wilson's handwriting and an

envelope. (See Range App. Ex. 5, p. 180-181) Carter and Wilson never explained

the significance of these documents as they relate to the Hanna Tract. Instead, a

reference is made to Miller and Worrell and "1916 Statements." Jacie Carter

explained that the checks were included as "an example of Berdie Wilson's

handwriting." (See Range App. Ex. 11, p. 149)


                                                                          50   113   ag e
Alex Wilson Documents


      Carter and Wilson also offered numerous documents related to Alex Wilson,

Berdie Wilson's husband. (See Amended Complaint Exs. CC, DD, BE, FP and

Range App. Ex. 12, Bates Stamp Carter 0018, and 0021-0022). As explained

below, these documents do not provide any basis upon which to draw an inference

that Hugh Hanna gave his oil and gas rights to Berdie Wilson.


       Exhibit CC is a deed from John and Clara Worrell to Alex 13.WiIson for 75

acres and 136 perches located in Buffalo Township, and is not related to the Hanna

Tract. (See Range App. Ex.    11 p.   112) In this conveyance, the grantor, John

Worrell, excepted and reserved "oil and gas together with the right of drilling for,

producing and transporting the same." (See Amended Complaint Ex. CC and

Range App. Ex. 5, p. 123).


      Exhibit DD was identified by Carol Wilson and Janie Carter as being the

Inventory and Appraisement of the Alex B. Wilson Estate and the First and Final

Account of Berdie Wilson (See Amended Complaint Ex. DID, Range App. Ex. 5, p.

123-124 , Ex. 11, p. 114 ) Carol Wilson conceded 'she did not know if any part of

Alex B. Wilson's inventory related to oil and gas interests in the Hanna Tract and

acknowledged that no part of the Inventory stated that Alex B. Wilson had an

interest in the oil and gas lying beneath the Hanna Tract (See Range App. Ex. 5, p.

                                                                            51IPage
            126 lines 13-24- p, 127 line 8, and p. 131 lines 5-9 and 17-21) Carol Wilson

-   ,---_--atimitted that the Inventory and Appraisement did not showthatBelditi Wilsorrhad

            an ownership interest in the oil and gas "under the" Hanna Tract. (See Range App.

           Ex. 5, p.127 lines 20-23).15


                   Exhibit EE is an obituary for Alex B. Wilson that Jade Carter obtained from

           a library. (See Range App. Ex, 11 p. 126) Carol Wilson admitted the obituary does

           not indicate Alex Wilson owned oil and gas wells located on the Hanna Tract. She

           further conceded the obituary did not state that Alex Wilson owned the oil and gas

           on the Hanna Tract or that Berdie Wilson produced oil and gas "under the

           property" (Hanna Tract) (See Range App. Ex.             5   g. 137-138).


                   Exhibit FT is a 193 8 letter regarding Alex B. Wilson's leases addressed to

           Mr. G. Ross Sproat concerning Workmen's Compensation insurance. (See Range

           App. Ex. 11, p. 126) Jacie Carter confessed that the letter "as stated" did not relate

           to the Hanna    Tract (See Range App. Ex. 11, p. 126 lines 16-18) Instead, Carter

           commented "I would say these are referencing the Miller-Worrell leases..." (See

              Jacie Carter contended that a reference to "398.26" barrels of oil was related to the Hanna
           Tract. She stated "I would state that the line item 39842 barrels of oil, is related to the property
           (Hanna Tract), due to the fact that it doesn't state a lease name with that line item." (See Range
           App. Ex. II, p. 117, lines 18-22). This pattern of thawing an inference of ownership from a lack
           of evidence of ownership was also repeated by Carol Wilson during her deposition testimony.
           Nonetheless, on this parteular point Carol Wilson conceded she did not know where the barrels
           came from and what a $65 check from Preston Oil Co. was attributable to. (See Range App. Ex.
           p. 123-124 and 132).



                                                                                                    521Page
at     Range App. Ex.    11 p. 127)   Carol Wilson conceded she did not know what leases
kir
       the workmen's compensation pohcy covered, (See Range App. Ex. 5-p. 140). Cams

       Wilson contends that this document shows that Berdie Wilson continued Alex

       Wilson's oil and gas business because it is "a logical assumption." Carol Wilson

       Conceded nothing on the letter stated that Berdie Wilson was continuing the oil and

       gas business of her husband. (See Range App, Ex. 5, p. 141) Further, Carol

       Wilson never recalls Berdie Wilson stating that she and Alex Wilson owned the

      Claysville Oil Company (See Range App. Ex. 5, p. 45).


             Carter 0018 is an assignment of 118th working interest in an oil and gas lease

      for property located in Buffalo Township, Washington County from Hannah

      Connors et.   at to Alex B. Wilson. (See Range App. Ex.    12) This document does

      not involve the Hanna Tract. In this assignment, Alex B. Wilson has an individual

      interest in the lease and does not transact business through the Claysville Oil

      Company. facie Carter stated the significance of these documents is that Alex

      Wilson "was an oil producer in the region adjacent to the Hanna property." (See

      Range App. Ex. 11, p. 137, lines 16-20)


            Carter 0021-0022 (See Range App. Ex. 12) is an oil and gas lease for

      property in Buffalo Township. (See Range App. Ex. 5, p. 160) In this lease, Alex




                                                                                 53IPage
 B. Wilson has an individual interest in the lease and does not transact business

                                                             Sri 61).- --s-
 Obituaries

       Aside from the Alex Wilson obituary, Carter and Wilson offered two (2)

 other obituaries as evidence to support their claim.


       Exhibit GG is a newspaper obituary reporting the death and ftmeral of Hugh

 Hanna. Carol Wilson conceded this document did not show that Hugh Hanna

 gifted property to Berdie Wilson. (See Range App. Ex. 5, p. 142) Further, Carol

Wilson acknowledged that Hugh Hanna could have had oil and gas leases for the

Hanna Tract. (See Range App. Ex. 5, p. 143).


       Carter 0026 is an obituary for Howard T.E. Hanna. (See Range App. Ex. 12)

Carol Wilson could not explain the relevancy of the document to her claim other

than it being "information." (See Range App. Ex. 5, p. 167-168)


Other Property Documents for Hugh Hanna

      Carter and Wilson argued that documents regarding other real estate owned

by Hugh Hanna during his lifetime supported their claim.

       In Carter 001-002, 005-007, 008 and 009-011, Carter and Wilson provide a

variety of property documents related to Hugh Hanna and real estate other than the

                                                                          54)Page
 Hanna Tract. (See Range App. Ex.12) Carter 001-002 is a deed of James Clark,

 assignee of Alexander Henderson; to Hugh-Hantia-forptoprrty lotatecl    utairtters
 (not Donegal) Township, Washington County. Carter 005-007 is a copy of an oil
                                                                                      -   -
 and gas lease between Hugh Hanna and the Philadelphia Company and related to

the Chartiers' Property. Carter 008 is an oil pipeline agreement for the Chartiers

Property. Carter 009-011 being the Deed conveying the Chartiers' property from

Hugh and Elizabeth Hanna to William Bedillion which included a clause making

the conveyance subject to the oil and gas lease that Hugh Hanna had executed in

favor of the Philadelphia Company. Carol Wilson explained that such evidence

"...demonstrates that he was knowledgeable of oil and gas, and he even gave out a

lease on that property. So it was not that he was naive to the fact of how oil and

gas works. Therefore, he gifted the oil and gas under his property to my

grandmother, rather than lease it out to someone else." (See Range App. Ex. 5, p.

151-153 and Ex. 11 p. 132-133) Such an inference does not naturally and logirtally

flow from the evidence of Hanna's ownership, oil and gas leasing and later sale of

the Chartiers Township property, whether considered as an isolated fact or in

combination with all other facts and circumstances presented in this case. Such a

speculative inference is an Olympian leap of logic.




                                                                           .55IPage
 Tax Assessment Documentation for the Hanna Tract

-=---Carter0012-0017-(See Range App. Ex.1-2) are -triennial assessment-cards        -




 from Washington County. Carol Wilson could not explain the probative value of

 these documents. (See Range App. Ex. 5, p. 154-156) Jade Carter explained that

the assessment cards for the Hanna Tract in 1934 referenced only the surface of the

property and for that reason Howard T.E. Hanna only owned the surface and not

the oil and gas estate.


Maps


       Carter 0023 (See Range App. Ex. 12) is a map from the Pennsylvania

Department of Environmental Protection. Carol Wilson had no personal

knowledge concerning the map and specifically what it depicted. She testified that

Janie Carter, her niece, discovered the map. (Range App. Ex. 5, p. 163-164)   lade
Carter testified that the map depicted two wells on the Hanna Tract. (See Range

App. Ex. 11 p. 138).


       The map provides no support for the claim that Hugh Hanna made an oral.

gift of oil and gas rights to Berdie Wilson.




                                                                        56   Raga
Range Offer

       In support of their claim, Carter and Wilson also submitted several

documents from Range Resources representatives.


       Carter 0024 (See Range App. Ex. 12) is a document labeled "Offer to

Lease" with a Range Resources trademark. The offer is addressed to the "Wilson

Hanna Heirs" regarding Townships "Chartiers, Donegal, Morris" and stated "will

lease the property in Chartiers and Donegal subject to title. Further research is

needed in Morris." (See Range App. Ex. 12) Carol Wilson explained that this

offer was given to her at a meeting with the Ward Group in Claysville. At that

time, Range Resources was to have leases for the Carter and Wilson plaintiffs to

sign. However, Range could not locate the leases and provided Carol Wilson the

offer "so we had a record of being there and that they were willing to lease to us."

(See Range App. Ex.   5, p. 164)   Wilson continued that the offer showed "that they

acknowledge we had an interest hi the property or we thought we had an interest in

the property." (See Range App. Ex. 5, p. 164-165)


      Jacie Carter, however, testified differently. Ms. Carter conceded that Range

provided Carter and Wilson no lease and were offering a lease subject to "further

research." (See Range App. Ex.     11   p. 139-140) This document does not

specifically support the claim that Hugh Hanna completed 0. parol inter vivos gift

                                                                             571   Page
 of the oil and gas estate to Berdie Wilsons. The document plainly stated that it was

lisubjectio_title.2--No.material terms such as -length   of tenwamount of royalty
precise location of property were set forth in the offer.


Documents received from a library


       Carter 0025 (See Range App. Ex, 12) is a document with references to both

Ancesnycora and the 1940 United States Census. Carol Wilson confessed to

having no direct knowledge of the document. The document states that Francis

Wilson, the son of Berdie and Alex Wilson, was employed as a "pumper." Carol

Wilson stated that Francis Wilson was her father and that he was in the "oil

business, which is after the fact, so ---it's a family business in other words." (See

Range App. Ex. 5, p. 166) Janie Carter acknowledged the document was not

received from the U.S. Census Bureau but from a library, (See Range App. Ex. 11,

p. 143-144)


      This court is unable to draw any reasonable inference from this document

that supports the Plaintiffs' claims.


Accountings of the Guardian for Berdie Wilson's Children


      Carter 0029-0034 and Carter 0035-43 are, respectively, a final account and a

statement of expenses of George B. Lysle(sic) as guardian for Ruth Wilson and


                                                                              581 -Page
       Francis H. Wilson, minors. (See Range App. Ex. 11, p. 144-147) Carol Wilson

       stated that Ruth Wilson was her aunt and was The daughter of Berdie-Wilson.--(See

       Range App. Ex. 5, 169-170, 172-173) Carol Wilson claimed that she believed, but

       had no direct knowledge, that Berdie Wilson provided the information for the

       Lysle(sic) accounting because she was the mother of Francis and Ruth Wilson and

       was the person providing their support. (See Range App. Ex. 5 p. 174, p. 176 lines

       21-24 and p. 177 lines 14-16 and 177-178) Carol Wilson conceded that the entries

       on this document specifically do not relate to the Hanna Tract and that the oil

      referenced on the account could be from "any property." (Range App. Ex. 5, p. 171

      lines 18-24) Carol Wilson acknowledged her belief was based upon the

      assumption that the oil came from the Hanna Tract because she and the other
410
      plaintiffs "know of no other property they could have owned." (See Range App.

      Ex. 5, p. 172) Though the absence of evidence can itself be probative of an issue,

      the absence of specific proof as to where oil income is derived does not

      demonstrate ownership of a specific interest in subsurface oil and gas lying

      beneath a particular tract of land.


            With regard to these documents and Berdie Wilson's payment of income

      taxes, Carter and Wilson argue that the Supreme Court's ruling in the Estate of

      Alien , 488 Pa. 415, 412 A.2d 833 (1980) supports the claim they are making. In

      Estate of Allen, the court concluded that a decedent's receipt of income for three

                                                                                  59   IP   age
certain properties was indicative of his ownership in the absence of other evidence

                    -SpecifallSlthe'All-eftCotutexplairirod:'"'n-
       ...appellants argue that with respect to three parcels of real property
       the Orphans' Court's confirmation of the accountand adjudication was
      premature and not based upon the testimony of record. The three
      parcels of realty, all situate in Philadelphia, were listed by the auditor
      in the account as filed, but were noted in the account as having been
      "included as memorandum only. Rents have been collected, but
      ownership has not been determined." In the event, ownership never
      was determined, and the court below, in its adjudication dismissing
      appellants' objections to the account, merely noted "the auditor has
      been informed that it is impossible to determine to whom these
      properties are titled and belong."
      ...Instantly the only finding upon which the decree rests is that
      title to the realty at issue is impossible of ascertainment.
      The court -appointed auditor is empowered to convene hearings,
      administer oaths, and take testimony. In re Krepinevich's Estate, 433
     Pa. 78, 248 A.2d 844 (1969); Act of June 30, 1972, P.L. 508, No. 164,
      s 2, 20 Pa.C.SA. s 754. Moreover, auditors are empowered to issue
      subpoenas with or without a clause of duces tecum. Act of June 30,
      1972, P.L. 508, No. 164, s 2, 20 Pa.C.S.A. a 753. The record of the
     instant case reveals no hearing was held to ascertain title to the realty
     at issue. No subpoenas were issued. There is no evidence of record
     which would indicate the auditor attempted to ascertain the
     record owners of the properties via title search. There is no
     evidence of record which would indicate the auditor contacted the
     municipal taxing authority to determine who had been paying
     taxes on the properties. In short, the record is barren of
     competent, credible evidence to support the finding that
     ownership of the realty is impossible of ascertainment, on which
     finding the decree of the Orphans' Court, in turn, rests.
     On the contrary, the record contains evidence, notably, although not
     merely, the fact that income derived from the properties at issue was
     reported by decedent on his federal personal income tax returns,
     which could indicate ownership by testator.
     In the absence of evidence to support the findings upon which the
     decree rests, we vacate the decree and remand for a determination,


                                                                            60iPa.ge
       insofar as is in fact possible, of the state of decedent's interest in the
       contested properties.


 Estate of Allen, 488 Pa. 415, 426-27, 412 A.2d 833, 838-39 (1980) (emphasis

 added).

       The facts   of AUcn are distinguishable from this case in two (2) respects.

First, the evidence advanced by Carter and Wilson does not specifically indicate

the oil and gas income in the guardian's final account was derived from oil and gas

produced from the Hanna Tract. Such income is not attributed to any particular

property. In Allen, the auditor determined the rents were derived from and

reported to federal tax authorities as income produce from the three (3) properties

in question. Second, evidence from the chain of title demonstrates that record title

for the properties is in the Defendants Fanning, Cerciello and Dutton. In Allen, the

record before the Supreme Court lacked such evidence.

      Carter and Wilson contended in their Omnibus Brief that Berdie Wilson's

support came from oil and gas income derived from the Hanna Tract. However,

Carol Wilson's testimony did not support that claim. Carol Wilson testified that

she assumed that because Alex Wilson was an oil producer, Berdie Wilson lived

off the money he generated and invested it in AT & T stock. (See Range App. Ex.

5, p. 188-189) Carol Wilson claimed that such income that permitted her to later

prudently purchase blue chip stock was derived from wells on the Hanna Tract.


                                                                               61IPage
 (See Range App. Ex. 5, p. 190) When asked to identify the documents that proved

 such's. clam; Carol Wilson merely -referred to Amended Complaint Exhibits B

 through G, X through Z, AA through KK, and Carter -Wilson Bates Stamped

 Documents 001-0047. (See Range App. Ex. 5, p. 189-190)

 Gashel Testimony


       Carter and Wilson both in their Omnibus Brief and at argument claimed that

the testimony of Fred Gashel supported their allegations that Berdie Wilson

exercised dominion and control over the Hanna Tract. A review of Mr. Gashel's

deposition testimony demonstrates he has no personal knowledge of such actions

by Berdie Wilson.

       Mr. Gashel was born in 1933 and lived across from the Hanna Tract during

his youth. Mr. Gashel knew Howard T.E. Hanna who lived on the Hanna Tract.

According to Mr. Gashel, Berdie Wilson lived "elsewhere" on Petroleum Avenue.

(See Range App. Ex. 13, p. 9-10 and 12-13) Mr. Gashel testified he knew

"nothing" about the ownership of oil and gas under the Hanna Tract. (See Range

App. Ex. 13, p. 18) He stated he never talked to Howard T.E. Hanna or Berdie

Wilson regarding the oil and gas rights to the Hanna Tract. Mr. Gashel testified

that he had no knowledge that Berdie Wilson was "gifted the oil and gas," no

"idea" who owned the oil and gas and never saw Berdie Wilson on the property

operating an oil and gas well. (See Range App. Ex. 13, p.26)

                                                                          62-1.P a   ge
             Mr. Gashel stated that through "hearsay" he heard a "story" concerning

-Berdie Wilson"pu              g   halt" ta an effort by LT%an-Hilb-e-ity to -run a gas line

  from the wells on the Hanna Tract to his home. According to the "story," a

  gentleman named Leo Bane learned of Mr. Bilberry's efforts to connect his home

  on the Hanna Tract to a gas well on the property. As related by Mr. Cashel, Mr.

 Bane went to Berdie Wilson because she had ownership of the property and Berdie

  Wilson stopped Hilberry from doing so. (See Range App. Ex. 13, p. 19-23) Mr.

 Gashel acknowledged he had no personal knowledge of such facts and he could not

 remember who told him the "story." (See Range App. Ex. 13, p.19 and 24)

            Mr. Gashel's recounting of the Berdie Wilson Logan Hilberry "story" is

 inadmissible hearsay. See Pa.R.E.            §   801. An unknown declarant told Mr. Gashel

 the "story" out of court. The Pennsylvania Supreme Court has previously ruled

 that similar such evidence concerning an alleged gift is not admissible from known

 declarants, See In re Donsavage's Estate, 420 Pa. 587, 598-99, 218 A.2d 112, 120

 (1966). In Donsavage's Estate, two witnesses, Travis and Girton, testified that a

 donee, Mockler, told them she received stock certificates from a decedent,

 Donsavage. The Supreme Court held such testimony was inadmissible hearsay.16


 16   In Donsavage, the Court explained:

           It was an attempt to prove by these witnesses not what the decedent said to them
           but what Mrs. Mockler said the decedent had said to her. In Hartley v. Weideman,
           175 Pa. 309, 317, 34 A. 625, 626, we said: 'It is text law that the declarations of a
           party must be proved by one who heard them. It will not do to show by A. that B.
                                                                                            631Page
            The testimony of Fred Gashel does not support the claim that Berdie Wilson

-==exerciseddominionandcontrol over the oiI -ancd-gaisle-Cited-on the HilniirTract.
     No evidence of a parol inter vivos gift

            A lower court finding of inter vivos gift is not supportable where there is

     insufficient evidence establishing with necessary precision "just when, where or

     under what circumstances such declarations were made, or when such gift was In

     fact made." Where the declarations relied upon are entirely too loose and vague to

     prove an inter vivos gift, such declarations do not constitute clear and convincing

     evidence of an inter vivos gift. Tomayko v. Carson, 368 Pa. 379, 383-84, 83 A.2d

     907, 909 (1951) (Emphasis Added).

           As the Supreme Court in In re Yarnall's Estate, 376 Pa. 582, 588, 103 A.2d

     753, 757 (1954) directed:

            The Statute of Frauds Act of March 21, 1772, 1 Sm.L. 389, § 1, 33
           P.S. § 1, requires a transfer of title to real estate to be in `* * * writing,
           or by act and operation of law.' There may be a valid parol inter vivos
           gift of an interest, in whole or part, of real estate, where such gift is

           told him that he heard C. make a certain statement, if it is C. who is to be affected
           by the testimony. This evidence should have been excluded.' See also: Johnson v.
           Peoples Cab Co., 386 Pa. 513, 515, 126 Aid 720....

           In the case at bar, although the declarations sought to be shown were those of the
           decedent and against decedent's interest, they were allegedly made to the donee of
           the gift and were sought to be shown by witnesses who did not hear the
           declarations made by the decedent but heard the donee of the gift state that the
           decedent bad declared to her.


    In re Donsavage's Estate, 420 Pa. 587, 598-99, 218 A.2d 112, 120 (1966)

                                                                                             641Page
      followed not only by a change of possession, but by the making of
      such permanent improvements on the property as could not be
      compensated in damages.

In re Yamall's Estate, 376 Pa. at 588, 103   Aid at 757 (1954).   The Yarnell Court

noted that repairs and maintenance to property did not amount to the type

permanent improvements necessary to prove a parol gift of a real estate interest.

Yarnell, 376 Pa. at 582 , 103 a.2d at 759.

      Other Pennsylvania appellate courts have come to a similar conclusion. In

Lang v. Lang, 140 Pa.Super. 356, 359, 14 Aid 216, 218 (1940), the Superior

Court found insufficient an alleged donee's claim of a parol gift where she and her

husband moved into the property and began certain work to improve the property.

In Zigmantanis v. Zigmantanis, 797    Aid 990 (Pa. Super. 2002), the Superior
Court found insufficient evidence that: i) an alleged donor on several occasions

told several witnesses that his home was to go to his son Edward; ii) Edward paid

household bills for the donor; iii) Edward lived in the home with his parents for 22

years; iv) Edward made substantial improvements to the property; and v) Edward

paid both the inheritance tax and the mortgage for the property. See Zigmantanis

v. Zigmantanis, 797 A.2d at 992-94.

      The evidence by Carter and Wilson have presented falls far short of that

found to be insufficient in Yarnell, Lang and Zigmantanis. Carter and Wilson

offered no evidence that Berdie Wilson made permanent improvements to the


                                                                            65iPage
 Hanna Tract, paid bills associated to the property or occupied the property. Both

 theOhaintifttle-eihdenceind thilestinionroffred Gashel demonstrate -that

 Howard T.E. Hanna occupied the property. Carter and Wilson did not allege nor

 offer evidence that established precisely when, where and under what

 circumstances Hugh Hanna made a declaration of gift and when such gift of the oil

 and gas estate was made to Berdie Wilson. Carter and Wilson advance that such a

 gift occurred during Hugh Hanna's "lifetime?' (See Carter and Wilson Omnibus

 Brief. P. 4). They posit that the "totality of facts and circumstances" to include

 "timing, surrounding circumstances, and subsequent acts establish the act of the

 gift." (See Carter and Wilson Omnibus Brief, p. 2). As discussed at length above,

the totality of those circumstances do not reasonably lead to the conclusions Carter

and Wilson assert.

        Carter and Wilson have argued that the court, at the summary judgment

stage, should apply a less exacting standard than that set forth in Yarnell, Fuisz.

Tomayko, Zigmantanis and Lang. Carter and Wilson contend the mere existence

of an issue of fact suffices. This argument somewhat misses the mark.             17   The

Superior Court in Manley v. Manley, 238 Pa.Super. 296, 357 A.2d 641 (1976)

explained:


"After several weeks of reading, reviewing and considering the voluminous pleadings,
discovery responses, deposition transcripts, aged documents and briefs this court has been unable
to identify a disputed material fact between the parties, The parties are not disputing what the
facts are. Instead, they have hotly contested what the facts mean.

                                                                                       66IPage
       The Statute of Frauds, 33 P.S. s 1, prohibits the creation of interests or
       estates in any land by parol. Its obvious purpose is to prevent the
                 tif verTiaruiiderstanrulgsTaiid tootiitatethebigitafFicirs""s'
      fraud and perjury. 'It is not a mere rule of evidence. It is a declaration
       of public policy': Holland Furnace Co. v. Keystone Dehyd. Co., 151
      Pa..Super. 495, 499;30 A.2d 872, 874: A Writing signed by the parties
      is required, and even courts of equity, though dispensing with the
      form, firmly demand the substance.' Brotman v. Brannan, supra, 353
      Pa. at 573, 46 A.2d at 177. The failure of the moving party to sustain
      this heavy burden with respect to each and every element is fatal to
      his claim: 'It is no answer to say that the credibility of witnesses is
      for the jury, and they may disbelieve the testimony if they see fit
      to do so. That argument will not avail in this class of cases, for the
      question here is as to the character of the proof, because it is
      offered for the purpose of creating title to land by parol. It must
      conform to certain requirements, and if it does not, it will not
      suffice to create such a title; and of this the court must judge.' Erie
      & W.V.& Co. v. Knowles, supra, 117 Pa. at 86, 11 A. at 256.

Manley v. Manley, 238 Pa.Super. 296, 306-10, 357 A.2d 641, 646-48 (1976).

(Emphasis Added).

      Having done so, this Court concludes the admissible evidence in the record,

considered in the light most favorable to Carter and Wilson, fails to establish a

prima facie case that Hugh Hanna during Ms lifetime made an oral gift of his oil

and gas rights to Berdie Wilson.

CONCLUSION

      In the case before this court, the admissible facts presented by Carter and

Wilson do not reasonably support the inferences Carter and Wilson invite this

court to draw. Contrary to Carter and Wilson's assertions in their Omnibus Brief



                                                                             6.71P a g e
and at argument, the Defendants have not invited the court to engage in trial level




       Instead, the Defendants have asked this court to examine the evidence

submitted by the plaintiffs and determine if a prima facie case exists. In doing so,

this court may consider " ...the admissions of the opposing part)7(non-moving

part)) or the opposing party's own witnesses..." and the entry of summary

judgment may be based on such oral testimony. Lineberger v. Wyeth f/k/a

American Home Products Corporation, 894 A.2d 141 (2006) as cited in

TnfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 631 (Pa. Super, 2006).

Further, where allegations in an amended complaint are based principally on

speculation and conjecture, summary judgment is appropriate. InfoSAGE, Inc. v.

Mellon Ventures, L.P., 896 A.2d 616, 639 (Pa. Super. 2006).


      This dispute is such a case. For these reasons, summary judgment is

appropriate with regard to the remaining counts in the Amended Complaint.




                                             BY THE COURT

                                                     II
                                             MICHAEL, LUCAS



                                                                           68IPage
                                         ORDER

     Wisiacitilii-se     tb   'air&Mir:air/0 lrfOi thrreis-Unicsiefb'
above opinion, the Defendants Motions for Summary Judgment are
                                                               GRANTED.
The Plaintiffs' Amended Complaint is dismissed with prejudice.




                                            BY THE COURT




                                                                    694Page
