J-S28027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUE C. CLUTTER AND ROY L. CLUTTER,     IN THE SUPERIOR COURT OF
HER HUSBAND, PHIL L. LAPPING AND             PENNSYLVANIA
NAOMA C. LAPPING, HIS WIFE, AND
JEFF L. LAPPING



                 v.

ALLEN C. BROWN, CAROL A. BROWN
PURDY, MELVA L. BROWN JOSEPH,
DELURA MAE BROWN CAULDER, JUDITH
L. FOULK BOWEN, CHARLES M. FOULK,
KENNETH E. FOULK, KEVIN A. FOULK,
JEFFREY N. KING, JANET L. VERMILLION
GEMMELL, JOANN VERMILLION MCVITTY,
JOHN D. TSCHURDY, A/K/A JOHN D.
TSCHUDY, ROSE MARY TSCHUDY HITES,
MARILYN JEAN LOWE, BARBARA ELLEN
COMSTOCK, IDELLA LOY, CALVIN
DECKARD, DWIGHT DECKARD, NORMA
SHIRK, SANDRA N. CLARK, PEGGY J.
COLE HAYNES, SHARON L. COLE VAN
BURSICK, LARRY COLE, DONALD
WILSON COLE, RONALD LEE COLE,
JOSEPH E. BORMAN, WILLIAM L.
BORMAN, SHERRY SHARLENE COLE
BOLES, LINDA S. CLARK LEMAY, BONNIE
LOU CLARK HEILMAN, DAVID N. CLARK,
GLORIA JEAN MILLER, FRANCIS J.
MILLER KIRK, JOANNE PRINCESS
CARLYL CLARK, WILLIS FRANKLIN
CLARK, JR., ROSE MAE CLARK RUDD,
CYNTHIA L. CLARK CAREY, JOHN
SHERMAN CLARK, RAY EUGENE CLARK,
TAMRA S. GALLANT PENIX, STEVEN RAY
GALLANT, DOUGLAS R. GALLANT, BRYAN
GALLANT, GARY LEE CLARK, RANDY J.
LOCKMAN, DAVID D. ADAMS, LINDA
GAIL ADAMS SMITH, BARBARA SUE
ADAMS, SARA A. MILLER OSTEEN, ELLEN
E. MOUNT, THEODORE A. MOUNT, MARY
J-S28027-17


E. MOUNT ALDERMAN, MARILYN J.
MOUNT KOEVAR, DAVID TOMEY,
HAROLD EUGENE MOUNT, NANCY
WISHON MURPHY, MICHAEL ALLEN
KUHNLE, JR., RACHEL M. KUHNLE, KELLY
MARIAH KUHNLE, THOMAS MCCOY, ERIN
MCCOY, MELISSA MARIE WISHON,
MARTIN W. WISHON, MELVIN J.
WISHON, JR., ANTHONY WAYNE MCCOY,
SR., NANCY KAY WISHON, MATTHEW
SAMUEL WISHON, PATRICIA LOUISE
VANSICKLE WHITE, CAROLYN SUE LUST
DYE, CAROL FRANCES VANSICKLE
HATFIELD, RALPH J. CELLAR, KATHRYN
L. CELLAR SULLIVAN, POLLY ANNE
HONNINGFORD KILGORE, DAVID ALAN
KILGORE, JENNIFER E. KILGORE MILAN,
BEVERLY JEAN KILGORE COX, CARL
NOGGLE, JR., CARL RICHARD
WOODRING, SARA L. WOODRING
CHANDLER, JANE ANN NOGGLE LEHNER,
ROBERT ALLEN NOGGLE, WILLIAM LEE
NOGGLE, SR., DOUGLAS ALLEN
FOREMAN, KATHERINE D. FOREMAN,
KRYSTAL S. FOREMAN ZEIGLER, JEFFREY
CARL NOGGLE, DANNY GENE NOGGLE,
JR., TRENTON ISAAC ROWLAND, TRAVIS
LEE ROWLAND, RACHEL CHANDLER,
A/K/A RAYCHAEL CHANDLER, LARRY D.
NOGGLE, TERESA M. NOGGLE COOLEY,
LYNDA LEE NOGGLE DORNBIRER, A/K/A
LINDA LEE NOGGLE DORNBIRER, JOANN
VANSICKLE ORR, SANDRA KAY
VANSICKLE ORLETT, MARY ALICE
VANSICKLE BARTLEY, DONNA JEAN
VANSICKLE NILES, ELIZABETH MARIE
HINTON DELANEY, MINNIE F. HINTON
GAMBLE, JESSE EUGENE SIPES, VICKY
L. SIPES PIERCE, SHARON ELAINE SIPES
THOMPSON, KATHY SUE SIPES
WILLIAMS, JOHN WILLIS SIPES,
BERNICE JEAN SIPES MCCOY, CYNTHIA
LOUISE HAMMOND, DEBORAH SUE
SPITZ, PAMELA KAY HOGAN, JEAN ANN

                               -2-
J-S28027-17


COPELAND INGRAM, CYNTHIA LOUISE
HAMMOND, LINDA LOU SIPES BROWN,
AND TIMOTHY SIPES

APPEAL OF: JANET L. VERMILLION
GEMMELL

                                                         No. 1542 WDA 2016


               Appeal from the Order Entered September 13, 2016
                In the Court of Common Pleas of Greene County
                        Civil Division at No(s): 68 AD 2014


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                         FILED SEPTEMBER 21, 2017

       Janet L. Vermillion Gemmell appeals from the September 13, 2016

order entered in the Greene County Court of Common Pleas granting the

motion for summary judgment filed by Sue C. Clutter, Roy L. Clutter, Phil L.

Lapping, Naoma C. Lapping, and Jeff L. Lapping (“Landowners”). We affirm.

       On     December     28, 2015,      Landowners   filed   a   second   amended

complaint to quiet title to a partial interest in royalties from the production

of oil and gas underlying two tracts of land located in Center Township,

Greene County, Pennsylvania.1             The parties submitted stipulated facts,

including the following:

            B. The Plaintiffs’ Interest in the Property
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
       Landowners filed suit against numerous defendants. Gemmell is the
only named appellant in this appeal. There is a related appeal, docketed at
1484 WDA 2016, which we address in a separate memorandum.



                                           -3-
J-S28027-17


       1. Sue C. Clutter and Roy L. Clutter, her husband
       (collectively “Clutter”) own in fee simple real property
       located in Center Township, Greene County, Pennsylvania
       totaling 48.6 acres (“Clutter Tract”).

       2. Phil L. Lapping, Naoma C. Lapping, his wife, and Jeff L.
       Lapping (collectively “Lapping”) own in fee simple real
       property located in Center Township, Greene County,
       Pennsylvania totaling 10.2 acres (the “Lapping Tract”).

       3. The Clutter Tract and Lapping Tract (collectively
       “Property”) are derived from a common source of title, a
       March 28, 1919 Deed from Anna M. Brown, et vir, et al. to
       Caleb M. Stewart (the “1919 Deed”) that was recorded on
       April 3, 1919 in the Greene County Recorder of Deeds at
       Book Volume 267, Page 413.

       4. The Clutter’s source of title to the Clutter Tract through
       to the 1919 Deed is derived through [a] series of
       conveyances[.] . . .

       5. The Lappings’ source of title to the Lapping Tract
       through to the 1919 Deed is derived through [a] series of
       conveyances[.] . . .

       C. The Defendant’s Interest in the Property

       6. The grantors under the 1919 Deed, were the children of
       Louisa Day McVay, a/k/a Lou D. McVay: Anna M. Brown;
       Herschel C. McVay; Mile E. McVay, a/k/a/ Milo E. McVay;
       Clara L. Bonham; Millee F. McVay (collectively the “McVay
       Heirs”), and their respective spouses.

       7. The McVay Heirs acquired their interest in the Property
       through [a] series of conveyances[.] . . .

       8. The McVay Heirs are all deceased.

       9. The Defendants, totaling 106 people, are              the
       descendants and/or legal heirs of the McVay Heirs.

       10. The following Defendants (collectively the “Responding
       Defendants”) have entered an appearance in this action,
       through counsel, and file an answer to the Complaint:

                a. Bryan Gallant, Gloria Jean Miller, Douglas
                Gallant, Francis J. Miller Kirk, Steven Gallant, Ray


                                   -4-
J-S28027-17


               Eugene Clark, Tamra S. Gallant Penix, a/k/a
               Tamra Gallant Hancock, Polly Anne Kilgore, David
               Alan Kilgore, Beverly Jean Kilgore Cox, Jennifer E.
               Kilgore Milan, a/k/a Jennifer E. Milam, David N.
               Clark, Linda S. Clark LeMay, Bonnie Lou Clark
               Heilman, John D. Tschurdy, a/k/a John D.
               Tschudy, Rose Mary Tschudy-Hites, Marilyn Jean
               Lowe, Barbara Ellen Comstock, Sara L. Woodring
               Chandler, Bernice Jean Sipes McCoy, Rose Mae
               Clark Rudd, Cynthia L. Clark Carey, Joanne
               Princess Carlyle Clark, Judith Foulk Bowen,
               Charles M. Foulk, Kevin A. Foulk, John Sherman
               Clark and Carolyn Sue Lust Dye by Answer to
               Second Amended Complaint and Counterclaim,
               dated March 17, 2016.

               b. Larry Noggle and Theresa Cooley by Answer to
               Second Amended Complaint, dated February 26,
               2016;

               c. Janet L. Vermillion Gemmell by Answer to
               Second Amended Complaint, dated March 14,
               2016; and

               d. Marguerite Elain Sipes Britton by Answer to
               Second Amended Complaint to be filed on or
               before July 5, 2016.

       D. Disputed title to a one-half royalty interest in the
       oil and gas produced from the Property.

        11. Louisa D. McVay and the McVay Heirs entered into an
        Oil and Gas Lease with Ullom and Kent, with respect to
        the Clutter Tract, dated June 1, 1901 and recorded on
        October 9, 1903 in the Greene County Recorder of Deeds
        at Book Volume 141, Page 412.

        12. Louisa D. McVay entered into an oil and Gas Lease
        with Ullom and Kent, with respect to the Lapping Tract,
        dated June 1, 1901 and recorded on October 9, 1903 in
        the Greene County Recorder of Deeds at Book Volume
        141, Page 417.

        13. Both of the June 1, 1901 Oil and Gas Leases (“1901
        Leases”) contain identical terms.



                                 -5-
J-S28027-17


                A royalty for production of oil in an amount “the
               equal one-eight (1/8th) part of all oil produced
               and saved from said premises, to be delivered in
               the pipeline to the credit of the [lessor] free of
               charge . . .”

                A royalty for production of natural gas in an
               amount of “Three hundred ($300) Dollars, each
               year, payable quarterly in advance for the product
               of each well while the same is being used off the
               premises, . . .”

                A delay rental for holding the lease as follows
               “In case no well is commenced within thirty days
               from this date, then this grant shall immediately
               become null and void as to both parties. Provided
               that [lessee] may prevent said forfeiture from
               quarter to quarter and no longer by paying to the
               [lessor] in advance” $12.00 for the Clutter Tract
               and $2.50 for the Lapping Tract “until such well is
               completed.”

          14. The 1919 Deed Contains the following clause:

               Reserving, also from this conveyance one
               half of the oil and gas royalty the party
               of the second part, however, is to have
               the quarterly rental which is paid from
               quarter to quarter to prevent forfeiture of
               the lease.

          15. Production is no longer occurring under the 1901
          Leases, and [Landowners] and Responding Defendants
          have never received any royalties or delay rentals from
          the 1901 Leases.

          16. Clutter entered into an Oil and Gas Lease with EQT
          Production Company (“EQT”), with respect to the
          Clutter   Tract,   dated    February   28,   2011,   a
          Memorandum of which was recorded on April 29, 2011
          in the Greene County Recorder of Deeds at Book
          Volume 438, Page 3532.

          17. Phil L. Lapping and his spouse, Naoma Lapping
          entered into an Oil and Gas Lease with EQT, with
          respect to the Lapping Tract, dated March 2, 2011, a

                                  -6-
J-S28027-17


               Memorandum of which was recorded on April 15, 2011
               in the Greene County Recorder of Deeds at Book
               Volume 438, Page 1945, and Jeff L. Lapping entered
               into an Oil and Gas Lease with EQT, with respect to the
               Lapping Tract, dated March 21, 2011, a Memorandum
               of which was recorded on April 15, 2011 in the Greene
               County Recorder of Deeds at Book Volume 438, Page
               1974.

               18. EQT is producing natural gas from the Property
               under the leases that it entered into with
               [Landowners].

               19. EQT is paying one-half of the royalty for its
               production from the Property to [Landowners], for their
               respective tracts.

               20. EQT is withholding payment of one-half of the
               royalty based upon the royalty reservation contained in
               the 1919 Deed.

Joint Stipulations, 7/5/16, at 1-7 (citations to record omitted).

       On August 1, 2016, Landowners filed a summary judgment motion.

On September 1, 2016, Gemmell filed a response. On September 13, 2016,

the trial court granted Landowner’s motion. On October 12, 2016, Gemmell

filed a timely notice of appeal.           On December 5, 2016, the trial court

directed Gemmell to file a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), which

Gemmell filed on the same day.2
____________________________________________


       2
        On October 7, 2016, the trial court ordered the defendants who had
filed a September 29, 2016 amended notice of appeal to file a Rule 1925(b)
statement. The trial court, however, did not issue a Rule 1925(b) order
following Gemmell’s October 12, 2016 notice of appeal. The December 5,
2016 order was the first order requiring Gemmell to file a Rule 1925(b)
statement.



                                           -7-
J-S28027-17



       Gemmell raises the following issues on appeal:

           1. Whether the trial court erred by failing to find that the
           1919 reservation of one-half of the oil and gas royalty to
           the grantors therein constituted an exception of an interest
           in real property that passed by operation of law to the
           heirs of the grantors, being all Defendants.

           2. Whether the trial court erred by failing to find that the
           exception of one-half of the oil and gas royalties in the
           1919 Deed was not subject to any limiting conditions and
           therefore passed by operation of law to the heirs,
           successors and assigns of the McVay Heirs, being the
           Defendants in the underlying action.

Gallant Appellants’ Br. at 7 (suggested answers omitted).3

       Our scope and standard of review of a grant of summary judgment are

well-settled:

           [O]ur scope of review is plenary, and our standard of
           review is the same as that applied by the trial court . . . .
           An appellate court may reverse the entry of a summary
           judgment only where it finds that the lower court erred in
           concluding that the matter presented no genuine issue as
           to any material fact and that it is clear that the moving
           party was entitled to a judgment as a matter of law. In
           making this assessment, we view the record in the light
           most favorable to the nonmoving party, and all doubts as
           to the existence of a genuine issue of material fact must
____________________________________________


       3
         On January 26, 2017, this Court granted Gemmell’s application for
relief – notice of joinder, concluding that Gemmell may rely on the brief and
reproduced record filed by the appellants at docket 1484 WDA 2016. We
further ordered that the Prothonotary accept the brief attached to the
application for relief as Gemmells brief and docket the brief as filed on
January 17, 2017.

      We have found that that appellants at docket 1484 WDA 2016 waived
their claims for failing to file a 1925(b) statement. However, we decline to
find Gemmell’s claims waived, where she filed a timely 1925(b) statement.



                                           -8-
J-S28027-17


           be resolved against the moving party. As our inquiry
           involves solely questions of law, our review is de novo.

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

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

v. Ryder Truck Rental, Inc., 34 A.3d 104, 107–08 (Pa.Super. 2011)).

Here, because the parties submitted stipulated facts, our review is limited to

determining whether the trial court erred in finding that summary judgment

was proper as a matter of law.

       To determine whether the trial court properly granted summary

judgment, we must interpret the following clause in the 1919 deed:

           Reserving, also from this conveyance one half of the oil
           and gas royalty the party of the second part, however, is
           to have the quarterly rental which is paid from quarter to
           quarter to prevent forfeiture of the lease.

Joint Stipulations, Ex. C, at 415.4 We must determine whether this clause

constitutes an exception of the Property’s gas and oil from the deed or


____________________________________________


       4
        “Pennsylvania recognizes three discrete estates in land: the surface
estate, the mineral [or subsurface] estate, and the right to subjacent
(surface) support. Because these estates are severable, different owners
may hold title to separate and distinct estates in the same land.” Bastian
v. Sullivan, 117 A.3d 338, 344 (Pa.Super. 2015) (quoting Pa. Servs. Corp.
v. Tex. E. Transmission, LP, 98 A.3d 624, 629 (Pa.Super. 2014)).



                                           -9-
J-S28027-17



whether it is a reservation of the royalty payments received from the

extraction of gas and oil from the Property. If it is an exception, as Gemmell

contends, then it excepted a real-property right to the oil and gas from the

deed that would survive the death of the grantor.        If, however, it is a

reservation, as Landowners contend and the trial court implicitly found, then

it reserved a right to personal property – the royalty payments – that did not

survive the death of the grantor.

      When interpreting a deed:

         [A] court’s primary object must be to ascertain and
         effectuate what the parties themselves intended. The
         traditional rules of construction to determine that intention
         involve the following principles. First, the nature and
         quantity of the interest conveyed must be ascertained
         from the deed itself and cannot be orally shown in the
         absence of fraud, accident or mistake. We seek to
         ascertain not what the parties may have intended by the
         language but what is the meaning of the words they used.
         Effect must be given to all the language of the instrument,
         and no part shall be rejected if it can be given a meaning.
         If a doubt arises concerning the interpretation of the
         instrument, it will be resolved against the party who
         prepared it. To ascertain the intention of the parties, the
         language of a deed should be interpreted in the light of the
         subject matter, the apparent object or purpose of the
         parties and the conditions existing when it was executed.

Ralston, 55 A.3d at 742 (alteration in original) (quoting Butler v. Charles

Powers Estate, 29 A.3d 35, 40 (Pa.Super. 2011)).

      This Court has explained:

         The terms “exception” and “reservation” have been used
         interchangeably in deeds. Walker v. Forcey, 396 Pa. 80,
         151 A.2d 601, 606 (1959). A reservation pertains to
         incorporeal things that do not exist at the time the

                                    - 10 -
J-S28027-17


        conveyance is made. Id. See Lauderbach–Zerby Co. v.
        Lewis, 283 Pa. 250, 129 A. 83, 84 (1925) (reservation is
        creation of a right or interest that did not exist prior to
        grant). However, even if the term “reservation” is used, if
        the thing or right reserved is in existence, then the
        language in fact constitutes an exception. Walker, 151
        A.2d at 606; Silvis v. Peoples Natural Gas Co., 386 Pa.
        453, 126 A.2d 706, 708 (1956) (where no new rights are
        created, language treated as exception). If there is a
        reservation, it ceases at the death of the grantor, because
        the thing reserved was not in existence at the time of
        granting and the thing reserved vests in the grantee. Id.
        An exception, on the other hand, retains in the grantor the
        title of the thing excepted. Id. Because the exception
        does not pass with the grant, it demises through the
        grantor’s estate absent other provisions. Id. at 709.

Ralston, 55 A.3d at 741-42. The Pennsylvania Supreme Court has found

that:

        [T]he rule in Pennsylvania that the lease of coal in place
        with the right to mine and remove all of it for a stipulated
        royalty vests in the lessee a fee.        It is a necessary
        corollary that if the fee to the severed coal is vested in the
        lessee no interest in the coal as real property remains in
        the lessor and that his only interest therein is personal
        property. The lessor’s interest in the lease is properly
        termed a possibility of reverter.

Smith v. Glen Alden Coal Co., 32 A.2d 227, 233 (Pa. 1943) (footnote

omitted). Further, this Court has stated:

        A lease of minerals in the ground is a sale of an estate in
        fee simple until all the available minerals are removed; this
        leaves the lessor with only an interest in the royalties to be
        paid under the lease, which are personal property.




                                    - 11 -
J-S28027-17



Snyder Bros., Inc. v. Peoples Nat. Gas Co., 676 A.2d 1226, 1230

(Pa.Super. 1996) (emphasis omitted).5

       We conclude that the 1919 Deed created a reservation of the royalty

payments from the oil and gas leases then in effect.             The 1919 Deed

“reserv[ed]” one-half of the “royalty” payments, not one-half of the oil and

gas itself.   The payments, unlike the oil and gas, were “incorporeal things

that [did] not exist at the time the conveyance [was] made.” Ralston, 55

A.3d at 741.6       Therefore, the deed created a reservation of a right to

____________________________________________


       5
        Gemmell relies on Duquesne Natural Gas Co. v. Fefolt, in which
this Court held that:

           We agree with the court below that the property interest
           reserved, viz: ‘. . . one-eighth (1/8th) part of all gas sold
           from each well . . .’ as is described in the oil and gas lease
           in this case is real property. Penn-Ohio Gas Company v.
           Franks' Heirs, 322 Pa. 233, 185 A. 280 (1936);
           Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 A. 207,
           26 L.R.A., N.S., 614 (1909). If the transfer of the oil and
           gas rights to the company conveys realty it seems to
           clearly and logically follow that the reservation clearly set
           forth in the agreement of a portion of that gas and oil to
           the grantors must also be realty even though payment was
           provided by royalties on delivery.

198 A.2d 608, 610 (Pa.Super. 1964). However, as discussed above, the
Pennsylvania Supreme Court and the more recent cases from this Court
support the conclusion that the reservation of royalties from the production
of coal and from the production of oil and gas creates a personal right, not a
property right.
       6
        When interpreting a similar deed provision, the Court of Common
Pleas of Washington County explained:

(Footnote Continued Next Page)


                                          - 12 -
J-S28027-17



personal property that did not survive the death of the grantor. See Smith,

32 A.2d at 301; Snyder Bros., Inc., 676 A.2d at 1230.         Accordingly, we

conclude that the trial court did not err as a matter of law in granting

Landowner’s summary judgment motion.

      Order affirmed.




                       _______________________
(Footnote Continued)

          In such a lease, the oil and gas money payments are not
          for the minerals in place but are payable only when
          produced or raised to the surface. Hence, when part of
          this royalty is reserved by the grantor, something is
          effected which was not in esse before. Although provision
          had been made for payment of royalties, they are not
          actually payable until the oil and gas are raised to the
          surface in paying quantities; and although payments had
          already been made to the grantors before grant of the land
          to Wyels, and thereafter until the death of both Mr. and
          Mrs. Luellen, yet each payment would be dependent upon
          continued production of the wells, and is not due until the
          minerals, gas and oil, are separated from the land and
          raised to the surface. Hence, something new has been
          created, a money royalty dependent upon continuing
          production.     It is, therefore, properly classified as a
          “reservation”, and in order to pass this right or royalty to
          the heirs must necessarily have words of inheritance
          attached. Since none was employed, the reservation of
          the right to royalties ceased on the death of the grantors.

In re Luellen Estate, 43 Pa.D.& C.2d 467, 473-74 (C.P. Washington 1967).



                                           - 13 -
J-S28027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




                          - 14 -
