J-A12032-15


                            2015 PA Super 184

ALBERT M. VOSBURG, III,                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

NBC SEVENTH REALTY CORP., AND
PITTSTON AREA INDUSTRIAL
DEVELOPMENT CORP.,

APPEAL OF: NBC SEVENTH REALTY
CORP.

                                                     No. 1552 MDA 2014


                 Appeal from the Order entered June 3, 2014,
              in the Court of Common Pleas of Luzerne County,
                      Civil Division, at No(s): 91-E-2002


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

DISSENTING OPINION BY ALLEN, J.:                 FILED SEPTEMBER 02, 2015

     I respectfully dissent from the Majority.

     The trial court, in its December 3, 2010 order, recounted the factual

and procedural background of this case as follows:

           [] The Complaint was filed [by Vosburg] in Equity to the
     above-captioned number on October 11, 2002 as a case in
     trespass, and conversion of the mineral rights held by [Vosburg].
     [Appellant and PAID] hold title to the surface rights of the parcel
     of land located in Pittston Township. However, [Vosburg] claims
     the rights to the alleged "Mineral Estate" retained by a
     reservation clause contained in Deed dated May 11, 1951 and
     recorded in Luzerne County Deed Book 1115, page 221.
     Although the title to the property has eventually passed to
     [Appellant and PAID], The Mineral Rights Reservation Clause has
     remained in [Vosburg’s] family with no subsequent conveyance
     by Deed of said reservation. An unrecorded 1976 Bill of Sale
     purportedly conveying said Reservation of Minerals Rights has
J-A12032-15


      been renounced and thus the mineral rights remain in [Vosburg]
      by alleged intestate inheritance.

            [PAID] received the surface right[s] to the property by
      Deed in 1999 [from the Estate of Michael Fritz]. Said Deed
      contained a standard subject to all reservations, restrictions …
      exceptions, etc. clause which thereby incorporated the Mineral
      Right[s] Reservation Clause of the 1951 Deed. On February 27,
      2002, [PAID] transferred the property to [NBC] by Deed which
      contained the same “subject to” clause.           After the 2002,
      transfer, [Appellant] initiated a large construction project on the
      property for industrial development.             The construction
      necessitated the excavation, processing and refill and grading of
      hundreds of thousands of tons of rock found on the site both on
      and under the surface of the property in question to a depth of
      approximately fifty (50) feet.

            [Vosburg’s] complaint alleges trespass to the Mineral
      Rights reserved by [Vosburg] and conversion of the rocks by
      [Appellant’s] removal, processing, and use of the processed
      rocks and sub-base and fill. The extent of [Vosburg’s] monetary
      damages attendant to the alleged trespass and conversion is not
      before the court.

Trial Court Opinion, 12/3/10, at 1-2 (underline in original).

      The initial 2002 complaint which the trial court referenced provides in

pertinent part:

      5. The Abstract of title to the property conveyed to PAID by the
      Fritz Estate Deed (the "Fritz Parcel Chain of Title") reveals that
      the mineral rights in the Fritz Parcel were previously excepted
      out and retained by Albert M. Vosburg and Katherine N. Vosburg,
      his wife, by virtue of their deed to Anthony Fritz dated May 11,
      1951 and recorded on May 12, 1951 in Luzerne County Deed
      Book 1115, page 221 (the "Vosburg to Fritz Deed") which deed
      contains the following language: "EXCEPTING AND RESERVING
      all coal and other mineral beneath the surface of said described
      land, with the right to mine and remove the same by subterrane
      mining." []

      7. [Vosburg] is the grandson of Albert M. Vosburg and Katherine
      N. Vosburg[.]


                                     -2-
J-A12032-15


       8. [PAID] conveyed to [Appellant] a parcel of real estate (the
       "PAID Property") which includes a portion of the Fritz Parcel, said
       portion being approximately 50 acres in size, along with other
       adjacent lands by that certain deed dated February 27, 2002 and
       recorded on March 1, 2002 in Luzerne County Deed Book 3002,
       page 57046 (the "PAID to [Appellant] Deed")[.]

       9. To the best of [Vosburg’s] knowledge, [Appellant] began
       excavating hardened shale1 from the Fritz Parcel on or about
       January 15, 2002, first under a Right of Entry granted to
       [Appellant] by PAID and then as the owner of a portion of the
       Fritz Parcel for the purposes of leveling by cutting and filling the
       area needed for [Appellant’s] land development project as
       approved by the Luzerne County Planning Commission involving
       the construction of a 1,010,180 square foot warehouse
       distribution facility and offices on 105.12 acres of land (the
       "Warehouse Distribution Facility Land Development") and to
       provide a suitable sub-base for the buildings, loading docks,
       parking areas, and access drives which are part of the
       Warehouse Distribution Facility Land Development Project.

       10. To the best of [Vosburg’s] knowledge, [PAID] has also
       excavated hardened shale from the Fritz Parcel, or plans to do so
       in the near future, to use as a suitable sub-base for the
       construction of an access road to serve the remainder of the
       Fritz Parcel and other lands owned by PAlD.

       11. At all times relevant to this complaint [Appellant and PAID]
       did not have or obtain the rights to remove minerals from the
       Fritz Parcel and the mineral rights in and to all minerals within
       the Fritz Parcel remained of record with Albert M. Vosburg and
       Katherine N. Vosburg[.]

       12. At all times relevant to this complaint [Appellant and PAID]
       knew, or should have known from the deeds recorded in the
       public records of the Office of the Recorder of Deeds in and for
       Luzerne County, Pennsylvania, that they did not own any
       mineral rights in the Fritz Parcel and, therefore, had no right to
       excavate and use for their own benefit the hardened shale
       located in the Fritz Parcel.
____________________________________________


1
  The parties have also referred to the disputed material as “rock,” and/or
“sandstone” throughout their pleadings and briefs.



                                           -3-
J-A12032-15


     13. The hardened shale located in the Fritz Parcel and removed
     and converted to the use and benefit of [Appellant and PAID]
     was at all times and is today a mineral as defined under
     Pennsylvania law.

     14. The hardened shale had and has a minimum value of in
     excess of $3.00 a ton.

     15. [Vosburg’s] predecessor in interest, Burr B. Vosburg, sent a
     specimen of rock excavated from the Fritz Parcel to the United
     States Department of the Interior, Bureau of Mines in 1938 and
     received a determination letter stating the mineral composition
     of the rock to be hardened shale (the "Bureau of Mines Letter"),
     a copy of which letter is attached hereto and incorporated herein
     as Exhibit F.

     16. [Appellant] has excavated and converted to its use and
     benefit well over one million tons of hardened shale with a
     minimum approximate value of $3,000,000.00.

     17. [PAID] has excavated and converted to its use and benefit
     an unknown quantity of hardened shale with a minimum
     approximate value of $3.00 per ton.

     18. [PAID] has also benefitted from [Appellant’s] excavation
     and conversion of hardened shale from the Fritz Parcel as the
     presence of the hardened shale on the Fritz Parcel increased the
     purchase price received by PAID from [Appellant] for the entire
     property sold in so far as [Appellant] took into account in
     formulating the purchase price for the PAID real estate the
     savings to it of not having to purchase and truck the necessary
     minerals to the building site.

     19. [Vosburg] and [his] predecessors in interest to the mineral
     rights in the Fritz Parcel have in the past, prior to the purchase
     of the Fritz Parcel by PAID, excavated and removed hardened
     shale from the Fritz Parcel by surface excavation and mining for
     resale and for their own use.

Complaint, 10/11/02, at 1-3.

     The   above-referenced    correspondence    from   the   United     States

Department of the Interior Bureau of Mines provided in pertinent part:

     Dear Mr. [Burr B.] Vosburg:

                                    -4-
J-A12032-15


           In reply to your letter of April 30, with which you sent a
        specimen for determination:

            The specimen is hardened shale and besides aluminum
        silicates contains a little lime carbonate and a little mica.
        It probably varies somewhat in composition from place to
        place and the lime carbonate especially may vary.

                             Yours faithfully,

                             John W. Finch,

                             Director

Correspondence, 5/18/38.

     In preliminary objections to Vosburg’s 2002 complaint, Appellant

averred, inter alia, that “[Appellant], as the owner of the property, owns the

surface of the land and, as the ‘surface owner,’ retains all rights to the

minerals other than coal that are located in the portion of the ground

between the coal seam and the surface.”          Preliminary Objection[s] of

[Appellant] to [Vosburg’s] Complaint, 12/2/02, at 2 (unnumbered).

     In reply to Appellant’s preliminary objections, Vosburg averred:

     6. Denied. [Appellant] went far beyond its legal right to use the
     surface of its property when it excavated by blasting hardened
     shale, a mineral, to a depth in excess of fifty (50’) feet and
     processed the hardened shale by means of a portable rock
     crusher brought onto the Fritz Parcel into various products
     including but not limited to shot rock, various grades of
     manufactured stone such as pipe bedding, 2B gravel, 2B
     modified stone, and Nos. 3, 4, and 5 stone used for rock lined
     drainage ditches.

                                   ***

     9. [Vosburg’s] predecessors in title to the mineral rights had
     entered into the Fritz Parcel by way of a Township Road which
     cut through the Fritz Parcel as shown on the Luzerne County Tax
     Maps, a copy of the relevant portion of which is attached hereto

                                    -5-
J-A12032-15


      and incorporated herein as Exhibit ‘A’, and had conducted open
      pit quarrying of hardened shale located upon the Fritz Parcel
      before and after the conveyance of the surface of the Fritz
      Parcel.

[Vosburg’s] Answer to [Appellant’s] Preliminary Objections, 1/15/03, at 2.

Vosburg subsequently filed an amended complaint, which incorporated, inter

alia, the foregoing averments regarding his predecessors’ entry onto the

Fritz Parcel for quarrying purposes using the township road referenced

above. See Amended Complaint, 1/15/03, at 4 (unnumbered). On June 11,

2003, Vosburg filed a third amended complaint, which inter alia, added

additional plaintiffs.

      In its answer and new matter to Vosburg’s third amended complaint,

Appellant “denied that it excavated and converted to its use hardened shale

in any significant amount from the Fritz Parcel.”   Appellant’s Answer and

New Matter [to Vosburg’s Third Amended Complaint], 7/1/03, at 6.

Appellant further “denied that the hardened shale has a minimum value of in

excess of $3.00 a ton. To the contrary, the value of hardened shale in place

is a small fraction of $3 per ton.” Id.

      On June 10, 2010, Vosburg moved for partial summary judgment.

See generally Vosburg’s Motion for Partial Summary Judgment, 6/10/10.

In granting summary judgment in Vosburg’s favor and against Appellant, the

trial court explained:

             There are two questions presented to the Court[.] The
      first centers on the interpretation of the Mineral Rights
      Reservation of the 1951 Deed and its relationship, of any, to
      ‘rock’.   Secondly, if the Court finds said ‘mineral’ rights

                                     -6-
J-A12032-15


     applicable to ‘rock,’ is the processing of the rock and refilling and
     grading the subsurface of the land with the processed rocks a
     ‘conversion’[?]

           The Mineral Rights Reservation Clause of the 1951 Deed
     reads as follows:

        ‘... all coal and other mineral beneath the surface of said
        described land with the right to receive and remove the
        same by subterranean mining[.]’ (emphasis added).

           A ‘mineral’ is defined as follows:

        ‘a naturally occurring, inorganic, crystalline solid with
        definite chemical composition and characteristic physical
        properties.’ Environmental Science, a Global Concern, 9th
        Ed., by William C. Cunningham, Mary Ann Cunningham
        and Barbara Woodsworth Saigo.

        The Courts of the Commonwealth have defined ‘mineral’ in
     various cases as including stone and rock [Hendler v. Lehigh
     Valley R.R. Co., 58 A. 486 (Pa. 1904)] and everything not of
     the mere surface. [Highland v. Commonwealth of Pa., 161
     A.2d 390 (Pa. 1960)]. Upon review of these cases and the
     geological textbook definition, the Court finds rock to be a
     mineral.

           Taking the Downey Declaration submitted by [Appellant
     and PAID], the … operation included extensive excavation (‘cut
     and fill’) of 482,364 cubic yards, embankment work, regarding
     and filling. The description clearly was well beyond ‘surface’
     work on the parcel. Further, the Downey Declaration confirms
     that the ‘rock’ was crushed and processed into a different form
     and the new form of rocks was used as fill. [Appellant and
     PAID’s] excavation activities even required bringing onsite an
     additional 12,800 cubic yards of off-site fill in order to re-
     establish the terrain at the surface. The excavation, processing
     and refilling of the parcel described by [Appellant and PAID’s]
     expert indicates a clear trespass of the Mineral Rights
     Reservation by [Vosburg].

           As to the question of conversion by [Appellant and PAID],
     the term ‘conversion’ has been defined most recently in the
     Paves v. Corson case [765 A.2d 1128 (Pa. Super 2000)] as:




                                     -7-
J-A12032-15


            ‘the deprivation of another's right of property in, or use or
            possession of a chattel without the owner's consent and
            without lawful justification.’

            [Appellant and PAID] argue that the rock found on site
         remains on site albeit displaced and leveled and used as fill.
         However, the processing and crushing of the rocks themselves
         as described by Downey is a deprivation of [Vosburg’s] use or
         possession of the chattel (rock) itself. [Appellant and PAID]
         have transformed the nature and species of the various rock
         boulders. The rocks in their original non-processed, non-fill
         state could have had various other uses for [Vosburg] (e.g.
         walls, stabilizing support, etc).  [Appellant and PAID] have
         completely possessed the rocks transforming them into fill for
         [Appellant and PAID’s] uses (industrial site development) and
         thereby deprived [Vosburg] of the use or possession of the rocks
         themselves.

Trial Court Opinion, 12/3/10 at 2-4.

         Following the trial court’s issuance of its December 3, 2010 order, our

Supreme Court published its opinion in Butler v. Charles Powers Estate,

65 A.3d 885, 898 (Pa. 2013), ruling that in interpreting private deed

reservation clauses within the ambit of oil and gas actions, natural gas would

not be considered a mineral because it was “non-metallic [in] nature.” On

March 11, 2014, relying on Butler, Appellant moved to vacate the trial

court’s December 3, 2010 order, and for summary judgment in Appellant’s

favor.

         As succinctly summarized by Vosburg:

         [A]s part of the briefing in advance of the trial court's 2014
         order, [Vosburg] submitted affidavits from … Albert M. Vosburg
         Jr. and [Vosburg] stating the following evidence of the parties to
         the deeds’ intention that the reservation encompass:

         1) that the grantor herein, Albert M. Vosburg, owned a stone
         quarry in the immediate neighborhood of the Fritz Parcel and

                                        -8-
J-A12032-15


      sold stone produced from this quarry [FN3: This quarry is
      referred to in the chain of title as the ‘Bown quarry,’ see deeds
      attached to Albert M. Vosburg Jr. Affidavit at R. 482a-484a.];
      See Exhibit A, Second Affidavit of Albert M. Vosburg, Jr. at 114-
      12, R. 474a-475a. See also exhibit B thereto, deed establishing
      that Albert M. Vosburg owned the Bown Quarry Property from
      1913-1969.

      2) that Albert M. Vosburg actually employed Anthony Fritz in
      this stone quarry and had him sell stone as part of his
      employment duties; See ld. at ¶¶ 14-17, R. 476a.

      3) that Albert M. Vosburg offered Anthony Fritz the surface of
      the Property for $5,000 and the Property with no mineral or rock
      reservations for $10,000.      See Id. at ¶¶ 14-16, R. 476a.
      Because Mr. Fritz sold stone for Albert M. Vosburg, both parties
      understood that the same stone found in the neighboring quarry
      was likely under the Fritz property. Id.

      4) Mr. Fritz and Albert M. Vosburg understood that the stone
      had commercial value because they both sold the stone to the
      Borough of Avoca. Id. at ¶¶ 12-17, R. 476a.

Vosburg’s Brief at 5-6.

      The trial court heard arguments on Appellant’s motion for summary

judgment on May 27, 2014.         On June 3, 2014, the trial court denied

Appellant’s motion to vacate its prior order and for summary judgment; the

trial court granted summary judgment to Vosburg.       Following this Court’s

September 18, 2014 order granting review of the trial court’s order,

Appellant filed a timely notice of appeal.

      Appellant’s issues on appeal concern the trial court’s determination

that the term “mineral” within the private deed reservation clause includes

rock. In reviewing Appellant’s claims, I recognize that:

            In construing a deed or a contract, certain general
      principles must be kept in mind. First, it is the intention of the

                                      -9-
J-A12032-15


     parties at the time of entering in thereto that governs, and such
     intention is to be gathered from a reading of the entire
     contract[.] Philip Morris & Co. v. Stephano Bros., 1938, 331 Pa.
     278, 200 A.2d 605; Maxwell v. Saylor, 1948, 359 Pa. 94, 58
     A.2d 355. In addition, “Contracts must receive a reasonable
     interpretation, according to the intention of the parties at the
     time of executing them, if that intention can be ascertained from
     their language.      (Citing cases).    Where the language of a
     contract is contradictory, obscure, or ambiguous, or where its
     meaning is doubtful, so that it is susceptible of two
     constructions, one of which makes it fair, customary, and such
     as prudent men would naturally execute, while the other makes
     it inequitable, unusual, or such as reasonable men would not be
     likely to enter into, the interpretation which makes a rational and
     probable agreement must be preferred. [FN1: Emphasis ours]
     If one construction would make it unreasonable, while another
     would do justice to both parties, the latter will be adopted[.]”
     Percy A. Brown & Co. v. Raub, 1947, 357 Pa. 271, 287, 54 A.2d
     35, 43. It is also beyond controversy, that a written document
     must be construed most strongly against the parties drafting it[.]
     Cities Service Oil Co. v. Haller, 1958, 393 Pa. 26, 142 A.2d 163.
     It is equally well fixed in the law that a doubtful reservation or
     exception in a deed will be construed most strongly against the
     grantor and in favor of the grantee[.] Bundy v. Myers, 1953,
     372 Pa. 583, 94 A.2d 724; Sheffield Water Co. v. Elk T. Co.,
     1909, 225 Pa. 614, 74 A. 742. This rule applies with special
     force to a reservation or exception which amounts to cutting
     down of the grant[.] Klaer v. Ridgway, 1878, 86 Pa. 529.

                                   ***

           [] Further, the standard of interpretation to be applied is
     the meaning that would be attached by a reasonably intelligent
     person, acquainted with all operative usages, and knowing all
     the circumstances prior to and contemporaneous with the
     making of the contract[.]     Restatement, Contracts § 320;
     Clearfield Development Corp. v. Devonian Co., 1956, 385 Pa.
     248, 122 A.2d 718.

Wilkes-Barre Tp. School District v. Corgan, 170 A.2d 97, 98-99 (Pa.

1961).




                                   - 10 -
J-A12032-15



     Initially, I find that Appellant’s reliance on Butler is misplaced. Butler

addresses private deed reservations of mineral rights, specifically natural

gas, within an oil and gas agreement, which is inapposite to the scenario

before us. The pronouncements of the Supreme Court in Butler reiterated

that under Pennsylvania law, natural gas and oil are presumptively not

minerals due to their non-metallic nature, and are thereby presumptively

excluded from the term “mineral” within private deed reservation clauses.

     Specifically, the Supreme Court in Butler explained:

           The [trial] court noted that Pennsylvania law has
     long recognized a rebuttable presumption that “if, in
     connection with a conveyance of land, there is a
     reservation or an exception of ‘minerals’ without any
     specific mention of natural gas or oil, ... the word
     ‘minerals’ was not intended by the parties to include
     natural gas or oil.”       Highland, 161 A.2d at 398 (citing
     Dunham, 101 Pa. at 44). This precept, commonly known as
     the Dunham Rule, may be rebutted by a challenger
     through clear and convincing evidence that the intent of
     the parties, at the time of the conveyance, was to include
     natural gas and/or oil. Id. at 400. The trial court finally
     stated that the notion that natural gas and oil are not, for
     purposes of private deed transfers, considered minerals is
     “entrenched” within Pennsylvania law. See C.C. Marvel,
     Annotation, Oil and gas as “minerals” within deed, lease, or
     license, 37 A.L.R.2d 1440, at *3.

                                   ***

            The [Highland] Court … recognize[ed], as did its
     predecessors, that mankind generally divided all known matter
     into three categories—animal, vegetable, and mineral—and that
     petroleum and natural gas are unquestionably minerals under
     that broad categorization.    Id. at 398.    Nonetheless, we
     reaffirmed that for deed reservations we must assume, absent
     evidence to the contrary, that mineral is a term of “general
     language, and presumably is intended in the ordinary popular


                                   - 11 -
J-A12032-15


     sense which it bears among English speaking people,” i.e.,
     metallic substances and not oil and gas.       Id.    Thus, the
     Dunham Rule, a well-established and relied upon rule of
     property, continues to bind all situations in which a deed
     reservation does not expressly include oil or natural gas
     within the reservation. Id. at 398–99. Indeed, such a
     conclusion was demanded by the long-standing jurisprudence of
     this Commonwealth concerning property law:           “A rule of
     property long acquiesced in should not be overthrown except for
     compelling reasons of public policy or the imperative demands
     of justice.” Id. at 399 n. 5 (quoting, e.g., Smith v. Glen Alden
     Coal Co., 347 Pa. 290, 32 A.2d 227, 234 (1943)).

                                  ***

           We thus turn to the continuing viability of the Dunham
     Rule, and we reaffirm that the rule continues to be the law of
     Pennsylvania. [] Notwithstanding this Court's recognition that
     various statutes, such as the Municipalities Planning Code,
     categorize natural gas as a mineral, as [a]ppellants aptly note,
     we recently reiterated that “Pennsylvania common law has
     applied a rebuttable presumption in the context of a
     private deed conveyance that the term ‘mineral’ does not
     include oil or gas.” Huntley, 964 A.2d at 858. We see no
     reason, nor has any party or court provided us with one,
     to depart from this entrenched rule.

                                  ***

           The Dunham Rule is clear, dating back to Gibson, 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 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



                                  - 12 -
J-A12032-15


      intent of the parties at the time the deed was executed—in this
      case, 1881. Id.

            Of course, in 1881, the law of Pennsylvania was Gibson
      and Moore, supra pp. 889–90, which clearly stated two
      overarching principles: (1) anything of a non-metallic nature
      would not be considered a mineral for private deed purposes;
      Gibson, 5 Watts at 41–42; and (2) when interpreting private
      deeds and contracts, the “question is to be determined not by
      principles of science, but by common experience directed to the
      discovery of intention.”    Moore, 2 Whart. at 493; see also
      Gibson, 5 Watts at 44. Both of these principles have been
      adopted and utilized by the courts implementing the Dunham
      Rule. Accordingly, to the extent the Superior Court ordered an
      evidentiary hearing with expert testimony concerning Marcellus
      shale natural gas, and the scientific nature thereof, such an
      order violated the Dunham jurisprudence. Simply put, natural
      gas is presumptively not a mineral for purposes of private
      deeds.

Butler, 65 A.3d 885, 886-898 (Pa. 2013) (footnotes omitted) (emphasis

supplied).    Accordingly, Butler is not applicable, and I reject Appellant’s

assertion that a reading of Butler supports vacating the trial court’s

December 3, 2010 order or reversing the trial court’s June 3, 2014 order.

      Rather, I find that Butler reiterates the well-settled precept that the

interpretation of the “coal and other mineral” clause within the private deed

at issue here is “to be determined not by principles of science, but by

common experience directed to the discovery of intention.” Butler, 65 A.3d

at 898.      In engaging in a “discovery of intention,” I acknowledge that

“[w]hile it is true that a reservation or exception in a deed will be construed

against the grantor, it is equally true that this reservation and exception

must be taken into account when attempting to interpret the deed as a

whole and glean the intention of the parties therefrom.” New Charter Coal

                                    - 13 -
J-A12032-15



Co. v. McKee, 191 A.2d 830, 835 (Pa. 1963) citing Wilkes-Barre

Township, 170 A.2d at 99.

     In analyzing the phrase “or other mineral” vis á vis sand, our Supreme

Court determined that sand was excluded in the following scenario, and

explained:

             The first question presented by this case is whether the
     sand, the taking of which is the trespass sued for, is a mineral,
     within the meaning of the deed between the parties. In the
     broadest sense, as belonging to one of the three great
     divisions of matter—animal, vegetable, and mineral—sand,
     of course, is a mineral. In the more restricted scientific
     sense, sand may or may not be a mineral, according to
     what it is composed of. In the language of mineralogists, air
     and water are minerals, while granite and similar rocks are not
     minerals, but aggregations of minerals. So it is of sand. It may
     be wholly of grains of silex or other mineral, or it may be of
     several mixed together, and therefore in the technical sense only
     grains of rock. It is perfectly clear that the parties here did not
     use the word ‘mineral’ in either of the foregoing senses. The
     first grantor with whom we are concerned, the Northern Coal &
     Iron Company, conveyed the land to Jumper, reserving ‘all coal
     and other minerals, in, under and upon said land’; Jumper
     conveyed to defendant with a similar reservation; and the
     subsequent deed by defendant to plaintiff conveyed the ‘surface’
     of the land, ‘excepting and reserving as fully and entirely as in
     the said [preceding] indenture is excepted and reserved, and
     further excepting and reserving all the gravel necessary for any
     fill or ballast for the railroad,’ etc. If the word ‘mineral’ had been
     used in either of the senses already mentioned, it would, as a
     matter of course, have included gravel, and the additional
     special reservation of the gravel shows that the parties did not
     consider it as included in the preceding general reservation. But
     there is another, and what may be called the commercial
     sense, in which the word ‘mineral’ is used, and in which,
     having reference to its supposed etymology of anything
     mined, it may be defined as any inorganic substance
     found in nature, having sufficient value, separated from
     its situs as part of the earth, to be mined, quarried, or dug
     for its own sake or its own specific uses. That is the

                                    - 14 -
J-A12032-15


      sense in which it is most commonly used in conveyances
      and leases of land, and in which it must be presumed that
      it was used by these parties in the deed in question. ‘Coal
      and other minerals’—the expression used—indicate
      substances which, like coal, have a value of their own,
      apart from the rest of the land, sufficient to induce the
      expense and labor of severance for their own sakes.
      These the grantor intended, and expressed the intention,
      to except from his grant and reserve to himself. While
      coal was the principal and perhaps the only thing clearly
      in view, yet the reservation was not meant to be limited
      to that, for then the addition ‘and other minerals’ would
      be superfluous and misleading. A vein of fine marble
      would clearly be reserved, and so, probably, if near
      enough a market to have a value, would be granite or
      limestone, or other building material, potter’s or porcelain
      clay, and the like.        Sand might or might not be in this
      category. A vein of pure white quartz sand, valuable for making
      glass or other special use, would be within the reservation, while
      common mixed sand, merely worth digging and removing as
      material for grading, would not be. The referee has found that
      the sand which is the subject of the present contention was of
      this latter character, and was taken and used, not for any
      intrinsic value or use of its own, but as part of earth and other
      material to fill up the roadbed to the proper grade. So regarded
      and used, it was not within the reservation.

Hendler v. Lehigh Valley R.R. Co., 58 A. 486, 487 (1904) (emphasis

supplied).

      Appellant states that Hendler was overruled by Hall v. Delaware, L

& W, R & Co., 113 A. 669, 670-671 (Pa. 1921). See Appellant’s Brief at

20. However, a close reading of Hall reflects that the Supreme Court did

not overrule Hendler’s analysis of the term “mineral,” nor did they overrule

Hendler’s requirement of an examination of the deed’s language, the intent

of the parties as expressed therein, and the attendant circumstances to the




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deed’s execution, prior to including a disputed mineral within a reserved

mineral estate.

      Indeed, in Silver v. Bush, 62 A. 832 (Pa. 1906), the Supreme Court

emphasized that “[t]he variations in the scope of the word [mineral] arise

from the connection and application in which it is used,” and the “cardinal

test of the meaning of any word in any particular case is the intent of the

parties using it.” Id. at 833-834. Specifically, the Silver Court explained:

             The crucial question here, as in all contracts, is, what was
      the sense in which the parties used the word? Mineral is not per
      se a term of art or of trade, but of general language, and
      presumably is intended in the ordinary popular sense which it
      bears among English speaking people. It may in any particular
      case have a different meaning, more extensive or more
      restricted, but such different meaning should clearly appear as
      intended by the parties. A very recent discussion of the subject
      was had in Hendler v. Lehigh Valley R. R. Co., 209 Pa. 256, 58
      Atl. 486, 103 Am. St. Rep. 1005, where it was shown that while
      the word ‘mineral’ has a very broad meaning, already alluded to,
      and also a more restricted scientific use, it has also a commercial
      sense, in which it is most commonly used in conveyances and
      leases of land, and in which it may be presumed to be used in
      such instruments. In that sense it may include any inorganic
      substance found in nature having sufficient value separated from
      its situs as part of the earth to be mined, quarried, or dug for its
      own sake or its own specific uses. But, though it may include all
      such substances, it does not necessarily do so. Appellant cites
      the case as authority for the view that whatever comes within
      the terms of that description must necessarily be included under
      the word ‘mineral.’ But this is an untenable inference. Th[e]
      [Hendler] decision announced no new principle, nor any
      departure from the line of previous decisions. As already said,
      there is no discrepancy in the cases. The cardinal test of the
      meaning of any word in any particular case is the intent of
      the parties using it, and all that Hendler v. R. R. Co. did
      was to apply that test to the word ‘mineral’ in the deeds
      on which the case turned.             The substance there in
      question was sand, and it was shown that it might or

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J-A12032-15


       might not be within the definition of mineral in the
       commercial sense, according to the circumstances and the
       intent of the parties.

Silver v. Bush, 62 A. at 833 (Pa. 1906) (emphasis supplied).

        Citing Hendler and Silver, the United States District Court in the

Western District of Pennsylvania recently reasoned in PAPCO, Inc. v. U.S.,

814 F.Supp.2d 477 (W.D. Pa. 2011) 2:

          In the analysis of whether a substance is a “mineral” within
       the scope of a mineral reservation, the crucial question is:
       “What was the sense in which the parties used the word?” Silver
       v. Bush, 213 Pa. 195, 62 A. 832, 833 (1906); see also Highland
       v. Commonwealth, 400 Pa. 261, 161 A.2d 390, 398 (1960). []
       A mineral has been defined broadly as “everything not of the
       mere surface, which is used for agricultural purposes; the
       granite of the mountain as well as metallic ores and fossils, are
       comprehended within it.” Griffin v. Fellows, 81 1/2 Pa. 114,
       1873 WL 11950, *9 (Pa. 1873). It can also be defined by
       evidence of the parties’ knowledge of the type of minerals
       present on the land at the time of conveyance. See Gibson,
       1836 WL 2957 at *5, 7 (Court stated “it appears ... that both
       parties ... came to the knowledge of the fact that the mineral
       called chrome ... was found on this tract,” and combined with
       the language of the deed, the Court found that chromate was
       included within the mineral reservation).

          A mineral may also be defined in the commercial sense, in
       which a mineral is “any inorganic substance found in nature,
       having sufficient value, separated from its situs as part of the
       earth, to be mined, quarried, or dug for its own sake or its own
       specific use.” Hendler v. Lehigh Valley R.R. Co., 209 Pa. 256, 58
____________________________________________


2
  “While ‘federal court decisions do not control the determinations of the
Superior Court,’ whenever possible, Pennsylvania courts ‘follow the Third
Circuit [courts] so that litigants do not improperly ‘walk across the street’ to
achieve a different result in federal court than would be obtained in state
court.” Parr v. Ford Motor Co., 109 A.3d 682, 693 n.8 (Pa. Super. 2014)
(en banc) (internal citations omitted).



                                          - 17 -
J-A12032-15


     A. 486, 487 (1904) (overruled on other grounds by Hall v.
     Delaware, Lackawanna & W. R.R. Co., 270 Pa. 468, 113 A. 669
     (1921)). When the parties intend to define minerals by its
     commercial sense, substances included within this definition
     have their own value that is apart from the rest of the land.
     Hendler, 58 A. at 487.

        The [Hendler] court went on to further state that such
     substances as granite, limestone, clay, and other building
     material would also be within a mineral reservation if they had a
     commercial value. Id. Therefore, since the sand did not have
     any commercial value, the court ruled that the parties did not
     intend to include the sand within the mineral reservation. Id.

        As in Hendler, the language in the Jamieson Deed indicates
     the parties’ intention to include as “minerals” substances that
     have their own value apart from the land. Hendler, 58 A. at
     487. The Jamieson Deed reserved “all the oil, natural gas, glass
     sand and minerals of every kind and description whatsoever.”
     Jamieson Deed at 439. The specific reservation of oil, natural
     gas, and glass sand indicates that the parties intended that
     substances that have commercial value are within the scope of
     the reservation. Hendler, 58 A. at 487. Thus, the critical
     question is whether “sandstone” has commercial value and is
     included within the mineral reservation of the Deed.

        Unlike the sand in Hendler, sandstone located in the
     Allegheny National Forest has its own commercial value apart
     from the land. Sandstone was regarded as a commercially
     valuable mineral at the time of the conveyance of the Jamieson
     Deed. Pennsylvania's Mineral Heritage: The Commonwealth at
     the Economic Crossroads of Her Industrial Development (1944),
     Attachment 10 to Ex. A to Pl.'s Br. Supp. (noting longstanding
     stone industry in Pennsylvania, including “1.4 million tons of
     sandstone ... produced ... for commercial purposes” in 1930, the
     same year the Jamieson Deed was executed, at 50–51, and
     commercial use of sandstone for highway construction, at 156,
     193). The parties of the Jamieson Deed were likely aware of the
     commercial value of sandstone, and that sandstone was present
     on the Jamieson Tract. As such, we find that since the parties to
     the Jamieson Deed intended to include commercially valuable
     minerals within the mineral reservation, and because sandstone
     was regarded as a commercially valuable mineral at the time of
     the Jamieson Deed conveyance, sandstone is within the scope of


                                  - 18 -
J-A12032-15


      the mineral reservation of the Jamieson Deed. Therefore, the
      sandstone at issue in this case belongs to PAPCO.

PAPCO, Inc. v. U.S., 814 F.Supp.2d at 477.

      Here, applying the cardinal test emphasized in Silver to the instant

deed, and mindful of the sound rationale espoused in the Hendler and

Papco decisions, I find that the challenged rock was reserved within

Vosburg’s mineral estate, and I would affirm the trial court’s interpretation

of the term “mineral” within the deed’s reservation clause as inclusive of

rock. Hendler, 58 A. at 487 (material would “clearly be reserved” where it

had its own value as “building material,” and “sufficient value separated

from its situs as part of the earth to be mined, quarried or dug for its own

sake or its own specific uses,” and not just as a common material which was

moved superficially to fill and regrade the land); see also Papco, 814

F.Supp.2d at 495 (material was a reserve mineral where the material was “a

commercially valuable mineral at the time,” where parties to the deed “were

likely aware of the commercial value of” the material, that “[t]he challenged

material” was present on the [land,]” and where the “parties to the [deed]

intended to include commercially valuable minerals within the mineral

reservation”).    The phrase “coal and other mineral” within the deed’s

reservation clause signifies the intent to reserve commercially valuable

assets.   Deed, May 11, 1951, at 1 (emphasis supplied).                There was

documented knowledge well before the execution of the 1951 deed that rock

was   present    on   the   property’s    surface   and   subterraneously.   See



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J-A12032-15



Correspondence, United States Department of the Interior Bureau of Mines,

5/18/38.

      In Hendler, the fact finding referee determined that the disputed sand

was not a reserved mineral because it was “merely worth digging and

removing as material for grading” which was “part of the earth … to fill up

the roadbed to the proper grade” without “any intrinsic value or use of its

own.” Hendler, 58 A at 487. By contrast in this case, and as recognized by

the trial court, the rock has value and use of its own. As pled by Vosburg,

the rock was the subject of open pit quarrying by Vosburg’s predecessors.

See Complaint, 10/11/02 at 3; Amended Complaint, 1/15/03, at 3-4. While

Appellant denied that the rock at issue was hardened shale or even as

valuable as pled by Vosburg, Appellant nonetheless conceded, in the

alternative, that there was some value to the rock. See Appellant’s Answer

and New Matter [to Vosburg’s Third Amended Complaint], 7/1/03, at 6

(Appellant “denied that the hardened shale has a minimum value of in

excess of $3.00 a ton. To the contrary, the value of hardened shale in place

is a small fraction of $3 per ton.”). Moreover, the rock had value as building

material, and was “extensive[ly] excavat[ed]” by Appellant for such purpose

down to approximately 50 feet below the ground. See Trial Court Opinion,

12/3/10, at 3-4; see also Hendler, supra (categorizing a material as a

mineral in the commercial sense, if it had “value” as a “building material …

and the like”). I agree with the trial court that the “rocks in their original

non-processed, non-fill state could have had various other uses for

                                    - 20 -
J-A12032-15



[Vosburg] (e.g. walls, stabilizing support, etc).”      Trial Court Opinion,

12/3/10, at 4. Therefore, I would affirm the trial court’s determination that

the challenged rock was reserved within Vosburg’s mineral estate.

     In sum, I would affirm the trial court’s June 3, 2014 order which

denied summary relief to Appellant and which declined to vacate the

December 3, 2010 order granting summary judgment to Vosburg.




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