J-A09024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUTHER D. LEONARD, JR., THOMAS J.             IN THE SUPERIOR COURT OF
OWENS, MARY OWENS, DONALD W.                        PENNSYLVANIA
LEONARD, WALTER E. LEONARD, LINDA
L. SLATTERY, WANDA J. DONALD, GARY
E. LEONARD, CARLA L. TERRY, L.J.
LEONARD, CHRISTOPHER M. LEONARD,
EDWARD OWENS, W. LEONARD AND
SONS, A PARTNERSHIP,

                   v.

P.M. NEWMAN, CENTRAL PENNSYLVANIA
LUMBER COMPANY, SUSQUEHANNA NEW
YORK RAILROAD COMPANY, C.H.LENTZ,
THEIR SUCCESSORS, HEIRS,
ADMINISTRATORS AND ASSIGNS OR
ANYONE CLAIMING BY, THROUGH OR
UNDER THEM,

                   v.

CARRIZO (MARCELLUS), LLC AND
RELIANCE MARCELLUS II, LLC,

                   v.

MICHAEL J. SOLOMON AND LORI A.
SOLOMON,

APPEAL OF: ROBERT P. HENDERSON, JR.
AND ANN B. HENDERSON


                                                  No. 1291 MDA 2016


                Appeal from the Order Entered June 29, 2016
              In the Court of Common Pleas of Sullivan County
                     Civil Division at No(s): 2012 CV 34


BEFORE: SHOGAN, OTT, and STABILE, JJ.
J-A09024-17


MEMORANDUM BY SHOGAN, J.:                              FILED JULY 17, 2017

     Ann and Robert Henderson, Jr. (“Hendersons”) appeal from the June

29, 2016 order granting summary judgment in favor of Intervenor

Defendants    Carrizo   Marcellus   LLC   and   Reliance   Marcellus,   II,   LLC

(collectively “Carrizo”), and establishing ownership of a disputed subsurface

estate in additional defendants Lori and Michael Solomon (“Solomons”). We

quash.

     Hendersons are the undisputed fee simple owners of unseated

(undeveloped) land in Fox Township, Sullivan County, which they purchased

in 1999 from P.M. Newman (“the Henderson Property”).            The Henderson

Property consists of 667 acres in the names of three warrants: Simpson

Warrant (381 acres), Lloyd Warrant (34 acres), Weitzel Warrant (251 acres).

A dispute regarding ownership of the subsurface estate of the Weitzel

Warrant underlies this appeal.

     In 1982, Solomons purportedly purchased the subsurface estate of the

Weitzel Warrant from the Sullivan County Commissioners, and they leased it

to Carrizo. However, Hendersons claim ownership of both the surface and

subsurface estates of the Weitzel Warrant. They assert that a reservation of

the subsurface estate in their deed is meaningless because, although once

severed, the surface and subsurface estates were reunited through a “tax




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wash sale”1 in 1906 or in 1949.                In contrast, Solomons argue that the

surface and subsurface estates of the Weitzel Warrant continued to be

assessed separately by Sullivan County after the 1906 and 1949 tax sales

and, therefore, the surface and subsurface estates were not reunited.

       Carrizo and Solomons each filed a motion for summary judgment.

Following a hearing on June 22, 2016, the trial court granted Carrizo’s

motion and, without expressly ruling on Solomons’ motion, found in their

favor as to ownership of the Weitzel Warrant subsurface estate. Hendersons

filed the instant appeal and, along with the trial court, complied with

Pa.R.A.P. 1925.

       Hendersons present the following questions for our consideration:

       1.     Whether the Order in Question, which disposed of all
              claims and all parties of the Fourth Amended Joinder
              Complaint, is a final appealable order.

       2.     Whether the trial court erred as a matter of law by failing
              to apply the requisite shifting burden for quiet title actions
              when it granted Carrizo’s Renewed Motion for Summary
              Judgment and awarded title of the oil and gas estate to the
              Solomons.

       3.     Whether the order granting summary judgment should be
              reversed because the trial court ignored the existence of
              genuine issues of material fact, including, whether a title
              wash occurred in 1906 or 1949 and, whether the
              subsurface rights to the Weitzel Warrant were redeemed in
              1947.
____________________________________________


1
  A “tax wash sale” or “title wash” describes the effect of early tax sales of
unseated land on a prior severance of a subsurface estate. Herder Spring
Hunting Club v. Keller, 143 A.3d 358, 366 (Pa. 2016).



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J-A09024-17



       4.     Whether the trial court committed an abuse of its
              discretion and/or erred as a matter of law by applying the
              Real Estate Tax Sale Law Act of July 7, 1947, P.L. 1368 to
              the alleged title wash in 1949, when it had not been
              adopted.

Hendersons’ Brief at 4.2

       Preliminarily, we address whether this appeal is from a final order.

              (b) Definition of Final Order.--A final order is any order
              that:

              (1) disposes of all claims and of all parties; or

              (2) RESCINDED

              (3) is entered as a final order pursuant to paragraph (c) of
              this rule.

              (c) Determination of finality.--When more than one
              claim for relief is presented in an action, whether as a
              claim, counterclaim, cross-claim, or third-party claim or
              when multiple parties are involved, the trial court or other
              government unit may enter a final order as to one or more
              but fewer than all of the claims and parties only upon an
              express determination that an immediate appeal would
              facilitate resolution of the entire case. Such an order
              becomes appealable when entered. In the absence of such
              a determination and entry of a final order, any order or
              other form of decision that adjudicates fewer than all the
              claims and parties shall not constitute a final order.

Pa.R.C.P. 341(b), (c). The Note to Rule 341 explains as follows:

       The 1992 amendment generally eliminates appeals as of right
       under Pa.R.A.P. 341 from orders not ending the litigation as to
____________________________________________


2
  The Commonwealth Court retains jurisdiction over cases involving the Real
Estate Tax Sale Law Act of 1947. Donaldson v. Ritenour, 571, 512 A.2d
686, 687 (Pa. Super. 1986).



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      all claims and as to all parties. Formerly, there was case law
      that orders not ending the litigation as to all claims and all
      parties are final orders if such orders have the practical
      consequence of putting a litigant out of court.

Pa.R.A.P. 341, Note.

      Hendersons argue that the trial court’s June 29, 2016 summary

judgment order was final because it put Hendersons out of court on all

claims raised in their Fourth Amended Joinder Complaint against all of the

joined defendants, Carrizo and Solomons.       Solomons do not “oppose this

Court’s interlocutory review of the trial court’s order.” Solomons’ Brief at 1.

      The trial court observed:
      1
         This is actually a motion for Partial Summary Judgment. The
      original complaint sought to quiet title as to the oil and gas
      rights to three tracts of land known as the Weitzel Warrant, the
      Lloyd Warrant, and the Simpson Warrant. The instant [summary
      judgment] motion concerns only the Weitzel Warrant land. The
      original Plaintiffs in the matter had no cognizable claim to the
      subsurface rights and Summary Judgment was entered against
      them in 2015.

Trial Court Opinion, 6/29/16, at 1 n.1.

      Our review of the record reveals that the original plaintiffs brought a

quiet title action as to the Simpson, Lloyd, and Weitzel Warrants against the

original named and unnamed defendants on February 1, 2012. International

Development Corporation (“IDC”) filed an answer and counterclaim on March

30, 2012, and an amended counterclaim on October 23, 2012, asserting an

interest in the Lloyd and Weitzel Warrants as successor of Central

Pennsylvania Lumber Company. Various heirs of P.M. Newman filed answers


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asserting an interest in all three warrants on April 2, 2012, and April 25,

2012. The plaintiffs answered IDC’s counterclaim on June 27, 2012, and its

amended counterclaim on November 8, 2012.           A default judgment was

entered against Susquehanna New York Railroad Company on September 7,

2012, because it failed to answer the original complaint.

      Carrizo was permitted to intervene by stipulation on July 29, 2013,

and filed a counterclaim and new matter on August 2, 2013.        Thereafter,

plaintiffs and IDC filed responsive pleadings.    Upon hearing by word of

mouth about the original complaint, Hendersons answered said complaint on

May 13, 2014, as successors in interest of P.M. Newman, and then filed a

new matter to IDC’s counterclaim on August 11, 2014.          IDC answered

Hendersons’ new matter on August 25, 2014.           Plaintiffs unsuccessfully

moved for summary judgment against Hendersons and Carrizo with regard

to the Simpson Warrant. Motion for Partial Summary Judgment, 12/22/14;

Order of Court, 7/22/15.     Carrizo moved for summary judgment against

plaintiffs and Hendersons with regard to the Weitzel and Simpson Warrants.

Cross Motion for Summary Judgment, 3/16/15.

      Hendersons moved to have Solomons joined as parties with an interest

in the Weitzel Warrant on January 9, 2015.          The trial court granted

Hendersons’ motion on June 26, 2015, and Henderson filed a joinder

complaint against Solomons on July 24, 2015.      Solomons filed preliminary

objections to the plaintiff’s complaint on August 7, 2015, and to Hendersons’


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joinder complaint on September 2, 2015.      Hendersons also moved to join

George Sharp as a party with an interest in the Lloyd Warrant on March 30,

2015, which motion the trial court granted on September 22, 2015.

      Title to the subsurface estate of the Simpson Warrant was decided in

favor of Hendersons by order granting summary judgment in favor of Carrizo

and Hendersons.       Order, 7/22/15.       Four   of   the   Leonard plaintiffs

discontinued their claims in the original complaint on August 31, 2015. The

remaining claims of the original complaint were dismissed by order

sustaining Solomons’ preliminary objections. Order, 9/28/15.

      As of October of 2015, IDC, Hendersons, Solomons, and Carrizo

remained as parties with an interest in the Weitzel Warrant. Although not

yet joined by complaint, George Sharp remained as a party with an interest

in the Lloyd Warrant, as did IDC.

      Following a volley of amended joinder complaints by Hendersons and

preliminary   objections   by   Solomons,   Solomons     filed   an   answer   to

Hendersons’ Fourth Amended Joinder Complaint on February 4, 2016, as

well as new matter and counterclaims for slander of title and tortious

interference with a contractual relationship. Carrizo filed its answer and new

matter to the Fourth Joinder Complaint on February 19, 2016. In response,

Hendersons filed preliminary objections to Solomons’ counterclaims, replied

to Carrizo’s new matter, and replied to Solomons’ new matter on February

24, 2016, March 28, 2016, and June 9, 2016, respectively. The trial court


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sustained Hendersons’ preliminary objections, thereby dismissing Solomons’

counterclaims without prejudice. Order, 5/25/16.

      Solomons and Carrizo filed motions for summary judgment on April

29, 2016, and May 2, 2016, respectively, asserting that Hendersons had not

sustained their burden of proof with regard to their claim of ownership to the

subsurface estate of the Weitzel Warrant. The trial court granted Carrizo’s

motion for summary judgment and, without expressly granting Solomons’

motion for summary judgment, determined that Solomons were owners of

the subsurface estate of the Weitzel Warrant.

      As of Hendersons’ July 27, 2016 notice of appeal from the June 29,

2016 entry of summary judgment in favor of Carrizo and Solomons:

      Four of the original plaintiffs had discontinued their claims.

      The trial court had dismissed all claims asserted by the remaining
      original plaintiffs in the original complaint against all defendants, from
      which no appeal was taken.

      The trial court had resolved all claims related to the Simpson Warrant,
      from which no appeal was taken.

      The trial court sub silencio disposed of IDC’s counterclaim against the
      original plaintiffs with regard to ownership of the subsurface estate of
      the Weitzel Warrant.

      The trial court had not expressly disposed of IDC’s counterclaim
      against the original plaintiffs with regard to ownership of the
      subsurface estate of the Lloyd Warrant.

      The trial court had yet to address Hendersons’ potential claims against
      George Sharp regarding the subsurface estate of the Lloyd Warrant.




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       Based on the foregoing procedural posture of this case, we conclude

that the trial court’s June 29, 2016 summary judgment order is not a final

order because it did not dispose of all claims and of all parties; nor was it

entered as a final order pursuant to Pa.R.A.P. 341(c). Pa.R.A.P. 341(b)(1),

(3).

       This appeal is not from a final order.   Hence, we are constrained to

quash.

       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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