J-A01024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

ROBERT L.       KRIEG   AND    JOHN   J. : IN THE SUPERIOR COURT OF
SLINKOSKY,                               :      PENNSYLVANIA
                                         :
                  Appellants             :
                                         :
           v.                            :
                                         :
HAMLIN BANK & TRUST COMPANY,             :
                                         :
                  Appellee               : No. 652 WDA 2014

              Appeal from the Judgment entered April 16, 2014,
                  Court of Common Pleas, McKean County,
                     Civil Division at No. 1432 C.D. 2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 04, 2015

     Robert L. Krieg and John J. Slinkosky (collectively “Appellants”) appeal

from the April 16, 2014 judgment entered by the McKean County Court of

Common Pleas following its denial of Appellants’ request for a declaratory

judgment that they are the sole owners of a 60.5 acre tract of land in Otto

Township, McKean County, Pennsylvania (“the Property”).1         On appeal,

Appellants challenge the trial court’s determination that Hamlin Bank & Trust

Company (“Bank”) retained a 1/12 interest in the oil, gas and minerals in,

on, or under the Property and its finding that a tax sale did not extinguish


1
   Appellants filed their notice of appeal “from the [o]rder dated March 25,
2014 and entered on March 26, 2014” denying their post-trial motion. It is
well-settled law, however, that “[a]n appeal to this Court can only lie from
judgments entered subsequent to the trial court’s disposition of post-verdict
motions, not from the order denying post-trial motions.”         Fanning v.
Davne, 795 A.2d 388, 391 (Pa. Super. 2002) (citation omitted). We
therefore amended the caption accordingly.
J-A01024-15


the 1/12 interest excepted and reserved by the trustees of the estate of

William Bingham (“the Bingham Estate”) in the oil, gas and minerals of the

Property. Upon review, we conclude that because Appellants failed to join

Kendall Refining Company, the current holders of the Bingham Estate’s 1/12

interest, the trial court was without jurisdiction to entertain the declaratory

judgment action. We therefore vacate the trial court’s decision.2

      The trial court provided the following summary of the relevant facts

from the stipulated record:

               By deed dated December 15, 1882, the Bingham
            Estate conveyed [the Property] to Franklin S. Tarbell
            et. al. …. The deed contained a provision
            “[e]xcepting and reserving nevertheless out of this
            grant one equal one twelfth part or share of all
            Petroleum Coal Oil Rock or Carbon Oil and Gas or
            other valuable mineral or volatile substance which
            shall or may be discovered....” The deed also
            stated[,] “This conveyance is made and accepted
            subject to the foregoing reservation [meaning the
            reservation described above].” Prior to the deed, on
            August 31, 1877, Tarbell also signed a Release
            concerning the mineral rights[,] which stated[,]

               “...and by and which said Deed are reserved
               withheld and retained unto the Trustees of said
               Estate (Bingham) their successors and heirs


2
   Although neither the trial court nor the parties raised this jurisdictional
question, “it is well established that questions of jurisdiction may be raised
sua sponte.” In re J.A., __ A.3d __, 2015 WL 63002 , *7 n.11 (Jan. 6,
2015) (quoting Commonwealth v. Weathers, 95 A.3d 908, 912 (Pa.
Super. 2014)); see also Pilchesky v. Doherty, 941 A.2d 95, 101 (Pa.
Commw. Ct. 2008) (“Failure to join or serve parties as required by the
[Declaratory Judgment Act] is a jurisdictional defect, and may be raised by a
court on its own motion at any time, even on appeal. Where the defect
exists, dismissal is appropriate.”) (internal citations omitted).


                                     -2-
J-A01024-15


              and assigns to be delivered to them by the
              grantees in the said Deed named their heirs
              executors administrators or assigns the
              following manner part or share of all petroleum
              coal oil rock or carbon oil or other valuable
              mineral of volatile substance which are shall nr
              may be discovered excavated pumped or
              raised in upon or from the tract Of land
              mentioned...or any part thereof that is to Say
              one equal one twelfth part or share of all
              Petroleum...”

             By deed dated November 30, 1885, Franklin
          Tarbell conveyed to John Sullivan a portion, if not all,
          of the 60.5 acres described in previously mentioned
          deed. The deed made reference to the reservation in
          the 1882 deed as follows:

              “Also excepting and reserving unto said first
              parties their heirs and assigns all the
              Petroleum coal rock or carbon oil and gas and
              other   valuable     minerals   and    volatile
              substances...This conveyance being subject to
              the conditions contained in the Deed from the
              [unreadable word] of the Bingham Estate
              above referred to.”

             By Treasurer’s deed dated June 11, 1894, the
          land owned by John Sullivan was conveyed to D.
          Vaughn. The land was sold because taxes were
          unpaid. The deed stated,

              “...do grant, bargain and sell unto the said D.
              Vaughn his heirs and assigns, all that aforesaid
              tract of land together with all and singular the
              profits, privileges and advantages, with the
              appurtenances      thereunto    belonging,    or
              anywise appertaining; To have and hold said
              land and premises with the appurtenances
              unto said D. Vaughn...”

          The deed makes no mention of oil, gas, or mineral
          rights.



                                   -3-
J-A01024-15



             By deed dated July 1, 1964, Sturgis Ingersoll and
          Thomas Shipley, successor trustees of the Bingham
          Estate, conveyed “ALL of Grantors [sic] right, title
          and interest in and to the respective parts or shares
          hereinafter set forth of all Petroleum, Coal Oil, Rock
          or Carbon Oil, and Gas or other valuable mineral or
          volatile substance...all being in the County of Mckean
          [sic]...” to Kendall Refining Group. The conveyance
          included a 1/12th [sic] interest in Warrant number
          2089, Lot number 282, 60.5 acres situated in Otto
          Township. This is the same lot number described in
          the Tarbell and Sullivan deeds.

             By deed dated December 8, 1966, Clifford and
          Betty Burrows, together-doing-business-as, Burrows
          Pipe and Steel Supply conveyed to the First National
          Bank of Eldred, Pennsylvania, (hereinafter FNB)
          approximately 68.5 acres, of which the [Property]
          represented the majority. In addition to conveying
          the surface estate, the conveyance recited[,]
          “TOGETHER with all oil wells, machinery and
          equipment situate thereon, useful in the production
          of oil and gas from said property.” The First National
          Bank of Eldred, which was [Bank’s] predecessor,
          held title to the property until 1978.

              FNB conveyed the property via two deeds on July
          19, 1978, to Glenn and Robert Benson. By special
          warranty deed, FNB conveyed “ALL those certain
          pieces, parcels or lots of land situate...,” meaning
          the 60.5 acres, to Glenn and Robert Benson, tenants
          in common, “[e]xcepting and reserving unto the
          grantor their heirs and assigns, all the oil, gas and
          minerals in, under and upon the said land together
          with the right of ingress, egress and regress.” On
          the same date, FNB, by quitclaim deed, conveyed
          “...ALL the oil, gas and other minerals in on or under
          those certain parcels...” However, the FNB quitclaim
          deed contained the following clause, “EXCEPTING
          unto the grantor, their heirs and assigns, and
          successors in interest a one-twelfth (1/12th [sic])




                                  -4-
J-A01024-15


          interest in the oil, gas and other minerals, in on or
          upon the above described premises.”

             By deed dated December 18, 1978, Robert
          Benson conveyed to Glen Benson, the 60.5 acres.
          The deed contained the following, “UNDER AND
          SUBJECT to exceptions, restrictions, reservations,
          and easements contained in the chain of title...”
          along with a reference to the two July 1978 deeds
          mentioned above.

             By deed dated December 7, 1987, Glenn Benson
          conveyed the 60.5 acres to Forest Lands, Inc. The
          deed contained the following clause, “EXCEPTING
          and reserving unto the Grantor, their heirs and
          assigns, and successors in interest one-twelfth
          (1/12th [sic]) interest in the oil, gas and other
          minerals, in, on or upon the above described
          premises.”

             By deed dated January 24, 1989, Forest Lands,
          Inc. conveyed the 60.5 acres to Nicholas and Melva
          Malyak. The deed contained the following clause,
          “EXCEPTING and reserving unto Glenn R. Benson, his
          heirs and assigns, and successors in interest a one
          twelfth (1/12th [sic]) interest in the oil, gas and
          other minerals, in, or upon the above described
          premises.”

             [Appellants] took title to the property from
          Nicholas and Melva Malyak by deed dated November
          26, 2007. The deed had the following clause,
          “EXCEPTING AND RESERVING unto Glenn R. Benson,
          his heirs and assigns, and successors in interest, a
          one-twelfth (1/12th [sic]) interest in the oil, gas and
          other minerals, in, on or upon the above described
          premises.”

             [Appellants] also took title to the Benson 1/12
          interest in the oil, gas, and minerals by deed dated
          February 25, 2009. The deed stating: “Grantor does
          hereby release and quit claim to the said Grantees,
          as tenants in partnership: A ONE-TWELFTH (1/12)



                                   -5-
J-A01024-15


            INTEREST IN THE OIL, GAS AND OTHER
            MINERALS IN, ON OR UPON THE LAND AS
            DESCRIBED...”(emphasis included).

Trial Court Opinion and Order, 2/13/14, at 1-4 (footnotes containing record

citations omitted; emphasis supplied).

      Appellants filed a complaint for declaratory judgment on November 2,

2012, naming Bank as the only defendant. Therein, Appellants averred, in

relevant part, as follows:

            14. [Appellants] believe, and therefore aver, that the
            specific use of only the word “excepting” in the
            [1978] quit claim deed, while using the phrase
            “excepting and reserving” in the [1978] special
            warranty deed was a deliberate and specific use of
            language by [FNB] to put the grantees on notice of
            the previous Bingham reservation.

            15. [Appellants] believe, and therefore aver, that
            this “exception” was an exception of the prior one-
            twelfth (1/12) reservation of the Bingham Estate,
            and not to be interpreted as a new “reservation”
            unto [FNB].

            16. [Appellants] believe, and therefore aver, that the
            one-twelfth (1/12) reservation by the Bingham
            Estate of the oil, gas and mineral rights contained in
            the [1882 conveyance to Frank S. Tarbell] is a
            reservation of a non-participating royalty interest,
            which was divested as a result of the 1984
            Treasurer’s sale of [the Property].

Complaint, 11/2/12, ¶¶ 14-16.      Appellants requested that the trial court

enter a declaration barring Bank “from asserting any right, title, lien, or

interest in the oil, gas, or other minerals in, on or under [the Property]

based on the ‘exception’ contained in the 1978 oil, gas, and mineral deed”



                                    -6-
J-A01024-15


and “such further relief as may be appropriate under these circumstances.”

Complaint, 11/2/12, at 3.

         Bank filed an answer on November 21, 2012.               Appellants filed a

motion for judgment on the pleadings on April 22, 2013, and Bank filed a

response on May 13, 2013. The trial court denied the motion on May 23,

2013, based in part on the uncertainty surrounding “whether the 1894

treasurer’s sale impacted the 1/12th [sic] Bingham Estate interest.”               Trial

Court Opinion and Order, 5/23/13, at 4.          Thereafter, Appellants and Bank

filed multiple briefs before the trial court, along with stipulated exhibits and

facts.

         By order filed on February 13, 2014, the trial court found that Bank

“does have an interest in the oil, gas, and minerals in, on, or under [the

Property]” and dismissed Appellants’ complaint. Trial Court Order, 2/13/14.

In its opinion that accompanied the order, the trial court found “that the tax

sale would not have an effect on the Bingham’s 1/12 interest.” Trial Court

Opinion & Order, 2/13/14, at 9. The trial court left open the option for oral

argument in the matter, instructing the parties to file a motion for

reconsideration if either wished to exercise that option.

         On   February   21,   2014,    Appellants   filed   a   timely   motion    for

reconsideration, raising as error the trial court’s determinations with respect

to the existence of the 1/12 interests held by Bank and the successor to the

Bingham Estate, respectively.          The trial court granted reconsideration on



                                          -7-
J-A01024-15


February 27, 2014, scheduling the matter for oral argument in accordance

with its February 13 order.

     On March 14, 2014, the trial court denied reconsideration. Appellants

filed a motion for post-trial relief on March 24, 2014, which the trial court

denied on March 26, 2014.      Appellants filed a praecipe for the entry of

judgment on April 16, 2014, and a notice of appeal on April 22, 2014.

Appellants timely complied with the trial court’s order for the filing of a

concise statement of errors complained of on appeal pursuant to Rule of

Appellate Procedure 1925(b).    On May 29, 2014, the trial court entered a

statement in lieu of an opinion pursuant to Rule of Appellate Procedure

1925(a), referring this Court to its opinions filed on February 13 and March

14, 2014 for the “rationale for [its] decision.”   Rule 1925(a) Statement,

5/29/14, at 2.

     Appellants raise the following issues on appeal for our review:

        1. Whether the trial court erred in finding that
           []Appellants do not own the complete interest in all
           of the oil, gas and minerals in, on, or under [the
           Property]?

        2. Whether the trial court erred in finding that [Bank]
           has an interest in the oil, gas and minerals in, on, or
           under [the Property]?

        3. Whether the trial court erred in finding that [FNB],
           predecessor to [Bank], retained a 1/12 oil, gas and
           mineral interest in [the Property] for itself?




                                    -8-
J-A01024-15


         4. Whether the trial court erred in failing to construe
            the ambiguity in the deed documents related to [the
            Property] in favor of []Appellants?

Appellants’ Brief at 4.

      We review a declaratory judgment action for a clear abuse of

discretion or error of law. Erie Ins. Grp. v. Catania, 95 A.3d 320, 322 (Pa.

Super. 2014), appeal denied, 104 A.3d 4 (Pa. 2014).              “We may not

substitute our judgment for that of the trial court if the trial court’s

determination is supported by the evidence. … The application of the law,

however, is always subject to our review.” Id. (citations omitted).

      The Declaratory Judgment Act provides courts with the “power to

declare rights, status, and other legal relations whether or not further relief

is or could be claimed. … [S]uch declarations shall have the force and effect

of a final judgment or decree.”    42 Pa.C.S.A. § 7532. The petitioner in a

declaratory judgment action must join all parties having any claim or

interest that would be affected by the declaration sought.       42 Pa.C.S.A. §

7540(a); see also Pa.R.C.P. 2227(a) (“Persons having only a joint interest

in the subject matter of an action must be joined on the same side as

plaintiffs or defendants.”).   The absence of an indispensable party to a

declaratory judgment action renders the court “powerless to grant relief.”

Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988); see also Mains v.

Futon, 224 A.2d 195, 196 (Pa. 1966) (“declaratory judgment proceedings

will not lie unless all the parties having an interest in the issue are joined”).



                                      -9-
J-A01024-15


“In Pennsylvania, an indispensable party is one whose rights are so directly

connected with and affected by litigation that he must be a party of record

to protect such rights, and his absence renders any order or decree of court

null and void for want of jurisdiction.” Columbia Gas Transmission Corp.

v. Diamond Fuel Co., 346 A.2d 788, 789 (Pa. 1975).

      Before the trial court and now on appeal, Appellants claim that they

own the complete interest in the oil, gas and minerals in, on and under the

Property. They challenge not only the interest allegedly held by Bank, the

named defendant in the declaratory judgment action, but also that of

Kendall Refining Company, which obtained in 1964 the 1/12 interest

originally excepted and reserved by the Bingham Estate.        See Complaint,

11/2/12, ¶ 16; Appellants’ Brief at 16-19.3     On appeal, they seek to have



3
   Although Appellants stated in their trial brief that “[t]he resolution of the
validity of the Bingham Estate’s 1/12 interest is immaterial to this case,”
Plaintiffs’ Trial Brief, 10/18/13, at 10, our review of the record proves that
statement to be disingenuous. Indeed, in their motion for reconsideration
and post-trial motion, Appellants assail the trial court’s conclusion that the
1/12 interest excepted and reserved by the Bingham Estate continued to
exist following the 1894 treasurer’s sale.          See Plaintiffs’ Motion for
Reconsideration, 2/21/14, ¶ 5 (“The [trial c]ourt erred and misapplied the
law in finding that the 1/12 interest excepted and excepted and reserved by
the Bingham Estate was a fractional interest, but then determined that the
1894 Treasurer’s sale did not divest the Bingham Estate’s 1/12 interest.
(Hutchinson v. Kline, 199 Pa. 564, 49 A. 312 (1901)[)]”); Plaintiffs’ Motion
for Post-Trial Relief, 3/24/14, ¶ 5 (“In finding that the 1/12 interest
excepted and excepted and reserved by the Bingham Estate was a fractional
interest, the [trial c]ourt erred and misapplied the law when the [trial c]ourt
found that the 1894 Treasurer’s sale did not divest the Bingham Estate’s
1/12 interest. The evidence presented to the [trial c]ourt includes the 1894
Unseated Treasurer’s sale and the absence of any separately assessed oil,


                                     - 10 -
J-A01024-15


this Court reverse the decision of the trial court and find that the 1894

treasurer’s sale extinguished the 1/12 interest in the oil, gas and minerals of

the Property excepted and reserved by the Bingham Estate.            Appellants’

Brief at 32.

      On this record, it is clear that Kendall Refining Company is an

indispensable party, as its rights with respect to its 1/12 interest in the

Property’s oil, gas and minerals is so directly connected with and affected by

the instant litigation that it must have been made a party to protect those

rights. Columbia Gas, 346 A.2d at 789. Appellants’ failure to join Kendall

Refining Company as a party to the underlying declaratory judgment action

renders both the trial court and this Court without jurisdiction to grant the

relief requested. See 42 Pa.C.S.A. § 7540(a); Pa.R.C.P. 2227(a); Sprague,

550 A.2d at 189; Mains, 224 A.2d at 196. As the trial court was without

jurisdiction to decide the declaratory judgment action before it, we vacate its

decision.

      Judgment vacated. Jurisdiction relinquished.


gas or mineral interests that were not under separate tax assessment under
the holding of Hutchinson v. Kline, 199 Pa. 564, 49 A. 312 (1901); see
also Proctor v. Sagamore Big Gam Hunting Club, 265 F.2d 196 (3d
Cir. 1959).”). On appeal, Appellants present extensive argument regarding
the trial court’s alleged error in failing to find that the 1894 treasurer’s sale
extinguished the 1/12 interest in oil, gas and minerals of the Property
originally excepted and reserved by the Bingham Estate. See Appellants’
Brief at 16-19. Moreover, in their prayer for relief on appeal, “Appellants
respectfully request[, inter alia,] that this Court hold that transfer of the
1894 treasurer’s deed acted as a ‘title wash,’ extinguishing any previously
severed subsurface interests.” Id. at 32.


                                     - 11 -
J-A01024-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2015




                          - 12 -
