J-A27022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMIE L. BANCROFT, JAN MARIE            :     IN THE SUPERIOR COURT OF
DASIN BANCROFT, SUE HUTCHINS,           :          PENNSYLVANIA
EXECUTOR OF THE ESTATE OF               :
THELMA CARNS, DECEASED, JACK R.         :
CLUTTER, DEBBIE CLUTTER, PATRICIA       :
A. CLUTTER, ROLAND L. CLUTTER,          :
ELDON D. DAY, ROBERT EISIMINGER,        :
CARRY M. HEADLEY, JASON K.              :
HEADLEY, JOHN A. HILL, CAROL J.         :
HILL, ELAINIE K. JACKSON, ROXINE L.     :
MARSHALL, BILLY W. MARSHALL,            :
BRANDY A. NEUENDORF, MICHAEL K.         :
NEUENDORF, MARY A. STREBEL, ERMA        :
J. THOMAS, ROBIN G. ZIROLL,             :
                                        :
                       Appellants       :
                                        :
           v.                           :
                                        :
CONSOL PENNSYLVANIA COAL                :
COMPANY,                                :
                                        :
                       Appellee         :     No. 21 WDA 2014


           Appeal from the Order Entered December 20, 2013,
          In the Court of Common Pleas of Washington County,
                     Civil Division, at No. 2013-634.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 18, 2014

     Jamie Bancroft et al., the heirs of Cora Rutan (the “Heirs”), appeal the

order sustaining the preliminary objections of Consol Pennsylvania Coal

Company (“Consol”). We affirm.
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      Cora Rutan inherited a one-half interest in the coal estate1 beneath

141 acres, more or less, in East Findley Township, Washington County (the

“Tract”) from her mother, Birdie F. Finley, in November 1930.               The

remaining one-half interest in the coal estate was owned by Leonard Clark

(one-quarter interest) and Maude Manon (one-quarter interest). A tax sale

of the coal interest resulted in the Treasurer of Washington County issuing

three Treasury Deeds on April 25, 1940, to the Washington County

Commissioners, followed by a conveyance of the coal interest from the

Washington County Commissioners to Charles E. Hackney (“Hackney”),

Consol’s predecessor in interest.    Consol’s Brief in Support of Preliminary

Objections, 8/1/13, at Exhibits D and E. Because the Commissioners’ deed

did not include reference to the support estate associated with the Tract,



1
  Pennsylvania recognizes three discrete estates in land: the surface estate,
the mineral estate, and the right to subjacent (surface) support.
Pennsylvania Services Corp. v. Texas Eastern Transmission, LP, 98
A.3d 624, 629 (Pa. Super. 2014) (citing Hetrick v. Apollo Gas Co., 608
A.2d 1074, 1077 (Pa. Super. 1992)).              These estates are severable;
therefore, different owners may hold title to separate and distinct estates in
the same land. Id. “Where there is a separation of the minerals from the
surface, the owner of the mineral estate owes a servitude of sufficient
support to the superincumbent estate.” Id. (quoting Smith v. Glen Alden
Coal Co., 32 A.2d 227, 235 (Pa. 1943)). This servitude of subjacent
support is a separate estate in land and is referred to as the “third” estate.
Id. While “[i]t is well established under Pennsylvania law that it is the
owner of the surface land who has the proprietary right to support of the
surface[,] ... [i]t is equally well settled that this right may be waived either
expressly or by implication.” Consolidation Coal Co. v. White, 875 A.2d
318, 327 (Pa. Super. 2005).



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Hackney filed a quiet title action in November 1944 to determine who owned

the support estate. Hackney documented service of process by the sheriff

on the two in-county defendants, Leonard Clark and Maude Manon, and by

certified mail/return receipt and publication on Cora Rutan, who lived out of

county. The trial court issued a rule to show cause why title to the coal and

support estates should not be quieted in favor of Hackney. Cora Rutan did

not respond to the rule; therefore, judgment was entered against her. 2 The

Washington County Commissioners then issued a second deed to Hackney,

thereby formalizing his right to all title and interests in the coal and support

estates associated with the Tract. Id. at Exhibit G.

      Nearly seventy years later, the Heirs filed a complaint for declaratory

judgment seeking an order declaring that they own the right of support

associated with the Tract. Consol filed preliminary objections in the nature

of a demurrer, claiming that the Heirs “are not entitled to the relief sought in

the Complaint as a matter of law because the right of support previously was

conveyed and quieted in the name of [Hackney, Consol’s] predecessor in

title.” Preliminary Objections, 4/1/13, at § 11.

      Relying on Cora Rutan’s failure to answer the rule, the trial court

sustained   Consol’s   preliminary   objections    and   dismissed   the   Heirs’




2
  At oral argument before this panel, the Heirs abandoned their position that
Cora Rutan did not receive notice of the quiet title action.

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complaint.   This appeal followed, in which the Heirs present the following

questions:

            Should the trial court have granted [Consol’s] demurrer
      and dismissed the complaint?

      1.   Can the trial court conclude that the treasurer deeds
      conveyed the right of support based on the public records?

      2.    Can the trial court conclude that the quiet title action filed
      at 181 November Term, 1945 AD validly established title in
      Charles E. Hackney?

      3.   Can the trial court conclude that the tax sale included the
      support estate?

The Heirs’ Brief at 2–3.

      “[A]n order granting preliminary objections in the nature of a demurrer

is a final order and is, therefore, appealable to this Court immediately.”

D’Elia v. Folino, 933 A.2d 117, 121 (Pa. Super. 2007).         Our standard of

review of a trial court’s order granting preliminary objections in the nature of

a demurrer is de novo and our scope of review is plenary.         Krajewski v.

Gusoff, 53 A.3d 793, 802 (Pa. Super. 2012).

      When reviewing the dismissal of a complaint based upon
      preliminary objections in the nature of a demurrer, we treat as
      true all well-pleaded material, factual averments and all
      inferences fairly deducible therefrom. Where the preliminary
      objections will result in the dismissal of the action, the objections
      may be sustained only in cases that are clear and free from
      doubt.   To be clear and free from doubt that dismissal is
      appropriate, it must appear with certainty that the law would not
      permit recovery by the plaintiff upon the facts averred. Any
      doubt should be resolved by a refusal to sustain the objections.




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      Moreover, we review the trial court’s decision for an abuse of
      discretion or an error of law.

Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. 2005) (citation omitted).

“The impetus of our inquiry is to determine the legal sufficiency of the

complaint and whether the pleading would permit recovery if ultimately

proven.” Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d 1071,

1073 (Pa. Super. 2004) (citation omitted).

      We consider the Heirs’ second issue dispositive of this appeal. Upon

review of that issue, we discern no basis for disturbing the trial court’s order.

      The Heirs initiated this action, seeking a declaration of their right to

the support estate, because they claim the tax deeds—which were silent as

to the support estate—did not convey the right of support. Therefore, the

Heirs contend, all subsequent actions premised on the initial tax sale were

invalid as to a conveyance of title to the support estate. The Heirs’ Brief at

10–12; N.T., 12/17/13, at 10–15. Consol, however, argues that the Heirs

are barred from attacking its title by reason of Hackney’s post tax-sale

action to quiet title. Consol’s Brief at 11–13; N.T., 12/17/13, at 5, 8–9. We

agree with Consol. Consol proffers that a rule absolute is a final judgment

from which an appeal lies and that a notice of appeal shall be filed within

thirty days after the entry of the order from which the appeal is taken.

Consol’s Brief at 12 (citing Notley’s Petition, 106 A. 716 (Pa. 1919), and

Pa.R.A.P. 903(a), respectively).


                                       -5-
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      Here, following the tax sale and the Commissioner’s conveyance to

Hackney, Hackney filed an action to quiet title to the coal and support

estates associated with the Tract.    The trial court issued a rule requiring

Cora Rutan to take action within thirty days. Cora Rutan received notice of

the rule, but she did not challenge Hackney’s claims within the thirty-day

period. Therefore, the trial court made the rule absolute:

      …and it further appearing that no one has appeared or answered
      the said rule; it is ORDERED AND DECREED that the rule issued
      on the 9th day of October, 1945 is hereby made absolute as to all
      persons named in the said rule, and generally upon all other
      persons who have or claim to have any right, title interest
      in, or claim against the said described land; and it is further
      ORDERED AND DECREED that hereafter all rights and claims of
      those persons with respect to the said described land shall be
      totally barred, and any deficiency or defects whereby the
      land was acquired at the Treasurer’s sale and the
      Commissioner’s sale, from the filing of the claim or lien up to
      and including the actual sale and delivery of the deed to such
      land shall not hereafter be asserted, and the title of the
      petitioner, Charles E. Hackney, shall be and is hereby
      adjudicated and decreed valid and indefeasible as against
      all such persons with respect to all such claims.

Final Decree, 1/21/46 (emphasis supplied).     This procedure was compliant

with the rules of court. See Pa.R.C.P. 1066(b)(1) (“Upon granting relief to

the plaintiff, the court (1) shall order that the defendant be forever barred

from asserting any right, lien, title or interest in the land inconsistent with

the interest or claim of the plaintiff set forth in the complaint, unless the

defendant takes such action as the order directs within thirty days

thereafter.”).


                                      -6-
J-A27022-14



     Based on the foregoing, we conclude the Heirs’ are barred from

contesting Consol’s title to the support estate.   The claims they now raise

could have—and should have—been presented in response to Hackney’s

quiet title action. However, Cora Rutan failed to appear or answer the rule

issued in Hackney’s quiet title action, and she did not appeal from the order

making the rule absolute.     See Pa.R.A.P. 903 (“[T]he notice of appeal

required by Rule 902 (manner of taking appeal) shall be filed within 30 days

after the entry of the order from which the appeal is taken.”).    Thus, we

further conclude the trial court did not err in sustaining Consol’s demurrer

because the Heirs’ claims would not permit recovery even if ultimately

proven. Brosovic, 841 A.2d at 1073.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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