J-A26044-17


                        2018 PA Super 78

WOODHOUSE HUNTING CLUB, INC., A            IN THE SUPERIOR COURT
PENNSYLVANIA NON-PROFIT                              OF
CORPORATION, PLAINTIFF                          PENNSYLVANIA



                   v.

WILLIAM HOYT, MARK HOYT, EDWARD
C. HOYT, THEODORE R. HOYT, AND
GEORGE S. HOYT, T/D/B/A THE FIRM OF
HOYT BROTHERS AND THEIR UNKNOWN
HEIRS, SUCCESSORS, AND ASSIGNS,
DEFENDANTS




HOYT ROYALTY, LLC, TRUSTEES OF THE
MARGARET E. HAIGHT TRUST; KAROL
TARNOWSKI; THOMAS PEDDER
BISPHAM; SYDNEY WYNNE
WOODWARD; GERTRUDE WEBER; JOHN
WEDEL; MATT WEDEL; JAY WEDEL;
CAROLINE HOKE WEBER; HELEN HOYT
WEBER; VIRGINIA FOOTE HAGGERTY;
NATHAN CLARK SWEET; JOHN WEBER
SWEET; AND ALL OTHER UNKNOWN
HEIRS, SUCCESSORS AND ASSIGNS OF
WILLIAM HOYT, MARK HOYT, EDWARD              No. 327 MDA 2017
C. HOYT, THEODORE R. HOYT, AND
GEORGE S. HOYT, INDIVIDUALLY,
JOINTLY, AND/OR TRADING AS HOYT
BROTHERS, COUNTERCLAIM PLAINTIFFS

              v.


WOODHOUSE HUNTING CLUB A/K/A
WOODHOUSE HUNTING CLUB, INC. AND
CAMP WOODHOUSE HUNTING CLUB;
SWN PRODUCTION COMPANY, LLC; AND
CABOT OIL & GAS CORPORATION, F/K/A
J-A26044-17


CABOT OIL & GAS CORPORATION OF
DELAWARE AND CABOT OIL & GAS
CORPORATION OF WEST VIRGINIA, AND
WOODHOUSE HOLDING COMPANY,
COUNTERCLAIM DEFENDANTS

APPEAL OF: HOYT ROYALTY, LLC


               Appeal from the Order Entered February 7, 2017
                In the Court of Common Pleas of Tioga County
                     Civil Division at No(s): 0302-CV-2008


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

OPINION BY RANSOM, J.:                                FILED MARCH 29, 2018

      Appellant, Hoyt Royalty, LLC, appeals from the trial court’s order of

February 1, 2017, granting summary judgment in favor of Appellee,

Woodhouse Hunting Club (“Woodhouse”). After careful review, we affirm.

      We adopt the following statement of facts from three trial court opinions

issued in this matter, which are in turn supported by the record. See Trial

Court Opinion (TCO), 1/8/14, at 7-19; TCO, 2/7/17, at 1-5; TCO, 6/12/17, at

1-2. This is an action to quiet title, involving the subsurface oil and gas rights

to a tract of land consisting of nine hundred thirty-seven acres located in

Morris Township, Tioga County, Pennsylvania, for which Warrant No. 1179 was

issued in April 1792 (“the Property”).

      In 1891, William Hoyt, Mark Hoyt, Edward C. Hoyt, Theodore R. Hoyt,

and George S. Hoyt (“the Hoyts”) acquired title to the Property. In 1893, the

Hoyts conveyed the Property to Union Tanning Company. The deed reserved

ownership of the gas, oil, and mineral rights, and created a subsurface estate



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in favor of the Hoyts, their heirs, and assigns. The Hoyts did not notify the

Tioga County commissioner of the severance or their ownership in the

subsurface estate.

       Between 1893 and 1902, the Property was assessed as unseated land.1

On August 30, 1902, the Property was sold at tax sale due to the nonpayment

of taxes on both the surface and subsurface estates. The sale was recorded

in the Treasurer’s Sale Book of Unseated Lands by the Treasurer of Tioga

County to Morris Manufacturing Company. On November 17, 1902, after the

tax sale but prior to the recording of the tax sale deed, Union Tanning

Company executed a second deed to the surface rights of the Property in favor

of Morris Manufacturing Company,2 and purportedly reserved mineral and oil

rights in favor of the Hoyts and their heirs and assigns. The tax sale deed was

not recorded until January 1903.




____________________________________________


1 In short, “seated land” is land that has been 1) developed with residential
structures, 2) had personal property upon it that could be levied upon for
taxes, and 3) was producing regular profit through cultivation, lumbering, or
mining; “unseated land” is “wild” and underdeveloped,” or any other land that
does not fit the definition of “seated” land. See Herder Spring Hunting
Club v. Keller, 143 A.3d 358, 363-64, 380 n.2 (Pa. 2016). Taxes are imposed
on the land itself, in the name of the person to whom the original warrant was
issued. Id. at 364.

2 Although Morris Manufacturing Company was listed in the tax records as
being the owner of the Property between 1901 and 1902, the deed itself was
not executed until 1902, and not recorded until 1903.




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       In 1932, the Property was again sold at tax sale. C.C. Slaght Lumber

Company (“C.C. Slaght”), the record owner at the time, was allowed to

redeem the Property in 1935, despite the expiration of the two-year

redemption period. In May 1952, Woodhouse received title from C.C. Slaght.

In 1953, Morris Township separately identified a mineral estate associated

with Warrant 1179. In 1967, the Property was again sold at tax sale, but the

rights eventually reverted to Woodhouse.         Following several assignments

through which Woodhouse reserved the subsurface rights, Woodhouse is the

current record owner of the Property.3

       In 2011, Woodhouse commenced an action to quiet title against

Appellant, Hoyt Royalty, a Colorado-based LLC formed to acquire, own,

possess and manage all rights, title, and interests in the subsurface mineral

rights originally owned by the Hoyt brothers. Appellant claimed to possess an

83.9% interest in the subsurface rights to the Property.             Litigation

commenced, and Appellant joined additional defendants and filed a

counterclaim.

       In June 2013, Appellant filed a motion for summary judgment against

Woodhouse, arguing that the 1893 deed to Union Tanning Company severed

the natural gas, oil, and mineral rights from the 629.178-acre parcel of

disputed land.     In response, Woodhouse argued that the tax sale of 1902
____________________________________________


3 The trial court has meticulously and thoroughly documented the various
sales, assignments, and locations the deeds are recorded, as well as the
language of the deeds, dating back to 1792. We will not reproduce it in its
entirety here.

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extinguished the chain of title upon which Appellant relied, essentially

effectuating a “title wash.” In its response, Woodhouse proceeded solely on

the “title wash” theory and abandoned several other claims to quiet title raised

in the Complaint. The trial court granted the motion with respect to the claims

abandoned by Woodhouse, but denied the remaining issues raised by

Appellant.

      In November 2014, Woodhouse filed a motion for summary judgment,

and Appellant filed a countermotion.     All parties agreed to stay the action

pending the Pennsylvania Supreme Court’s decision in Herder Spring

Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016), which implicated similar

concerns.     Following the Herder Spring decision, the parties filed

supplemental briefs, and the court issued its decision. The trial court quieted

title in favor of Woodhouse as to the entire Property and enjoined Appellant

and its successors from asserting a contrary record title.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.          The trial court issued a

responsive opinion.

      On appeal, Appellant raises the following issues for our review:

      1. Whether summarily quieting title for those whose title to the oil
      and gas rests solely from earlier tax sales, rather than Appellant
      and its related parties, whose title flows directly from a duly
      recorded 1893 deed severance, is erroneous when, as the party
      with the burden of proof, the tax title claimants did not proffer the
      delivered treasurer’s deeds or other admissible evidence sufficient
      under the Statute of Frauds and prior case law to prove a legally
      superior title?


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     2. Whether the trial court erred in ruling the 1932 unseated land
     tax sale divested Appellant’s 1893 recorded subsurface title when
     the summary judgment record contained undisputed evidence
     that a duly documented redemption occurred, rendering the sale
     a nullity?

     3. Whether the trial court erred in ruling the 1902 and 1932
     unseated land tax sales divested Appellant’s 1893 recorded
     subsurface title when a strict construction of the tax statutes
     reveals the term “lands” means only the surface estate and when
     the summary judgment record reveals Morris Township identified
     no severed subsurface estate until 1953, thereby confirming only
     the severed surface estate was assessed and intended to be sold
     at the 1902 and 1932 tax sales or, alternatively, creating a
     genuine material, factual issue precluding summary judgment?

     4. Whether summarily quieting title for those whose title to the oil
     and gas rests solely from earlier tax sales, rather than Appellant
     and its related party, whose title flows form a duly recorded 1893
     deed severance, is erroneous when the summary judgment record
     includes: (a) disputed evidence of “potential infirmities” and
     “other sale related defects” concerning the 1902 and 1932 tax
     sales, (b) a duly recorded admissible 1902 deed within the tax
     claimant’s chain of title which, being executed and recorded after
     the 1902 tax sale, does not mention it or any purportedly
     delivered treasurer’s deed but instead expressly acknowledges the
     recorded 1893 deed severance, and (c) an inadmissible 1909 deed
     which does not involve the property?

     5. Whether Pennsylvania’s unseated land tax [statutes] under
     which the 1902 and 1932 tax sales were made and quiet title has
     been summarily entered violate federal and state due process as
     applied to Appellant and its related parties, as the known owners
     of recorded, nonproducing oil, gas, and other subsurface interests,
     who received no personal notice of such sales, including the 1902
     tax sale which took place on a Saturday, August 30, 1902, in
     contravention of the statutes’ requirement that all sales occur on
     the second Monday in June?

     6. Whether the trial court erred in ruling Appellant is time-barred
     from defending its record title to the oil, gas, and other subsurface
     interests in a quiet title action the tax title claimants did not


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J-A26044-17


      commence until 2008 based on 1902 and 1932 tax sales for which
      no treasurer’s deeds exists?

Appellant’s Brief at 5-7 (suggested answers omitted).

      An action to quiet title is designed to resolve a dispute over the title to

real estate of which the plaintiff is in possession. See Moore v. Duran, 687

A.2d 822, 827 (Pa. Super. 1996). The plaintiff bringing a quiet title action has

the burden of proof and must recover on the strength of its own title. See

Herder Spring, 143 A.3d at 372.         With regard to motions for summary

judgment,

      the standards which govern summary judgment are well settled.
      When a party seeks summary judgment, a court shall enter
      judgment whenever there is no genuine issue of any material fact
      as to a necessary element of the cause of action or defense that
      could be established by additional discovery. A motion for
      summary judgment is based on an evidentiary record that entitles
      the moving party to a judgment as a matter of law. In considering
      the merits of a motion for summary judgment, a court views the
      record in the light most favorable to the nonmoving party, and all
      doubts as to the existence of a genuine issue of material fact must
      be resolved against the moving party. Finally, the court may grant
      summary judgment only when the right to such a judgment is
      clear and free from doubt. An appellate court may reverse the
      granting of a motion for summary judgment if there has been an
      error of law or an abuse of discretion . . . .

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa. 2005)

(citations omitted). To the extent this Court must resolve a question of law,

we shall review the grant of summary judgment in the context of the entire

record. Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015).

      As noted above, recently, the Pennsylvania Supreme Court decided

Herder Spring, and as this decision disposes of Appellant’s issues, we will



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J-A26044-17



discuss the Court’s holdings briefly. Herder Spring involved unseated land

sold at tax sale where the assessment did not specify whether it involved

surface or subsurface rights. Herder Spring, 143 A.3d at 360. The Court

held unequivocally that where neither the owner nor the purchaser reported

the transfer of the subsurface rights, the county would assess and tax the

warrant in its entirety.   Id.   At a tax sale, the entirety of the property is

conveyed, despite prior severance, if both estates have not been paid. Id. at

360-365.    “Courts interpreting Pennsylvania law have a long history of

accepting the concept of a tax sale reuniting severed estates of unseated

property and perfecting previously defective titles.” Id. at 368.

      Where the owner did not challenge the assessment and the tax sale

within the initial two-year redemption period, a challenge to the propriety of

the tax sale may not be heard, and if the land is not redeemed within that

period, then both surface and subsurface rights are extinguished. Id. at 374-

75 (citing Act of 1815, § 4, as set forth at 72 P.S. § 6091). The Court held

that there was no estoppel by deed where the language of the deed stated it

was subject to “all exceptions and reservations as are contained within the

chain of title,” and where title was extinguished by a prior tax sale. Herder

Spring, 143 A.3d at 378. Finally, the Court held that notice by publication

for tax sales of unseated lands was “reasonable given the difficulties of

ascertaining ownership information relating to unseated owners,” the

protection afforded by the two-year redemption period, and that such notice




                                      -8-
J-A26044-17



did not deprive a property owner of due process. Id. With those principals

in mind, we now turn to Appellants’ issues on appeal.

      First, Appellant claims that the trial court erred in quieting title in favor

of Woodhouse, because the Woodhouse parties did not meet their burden of

proving a superior tax title to the Property’s subsurface rights.             See

Appellant’s Brief at 32.     Appellant argues that because no delivered or

recorded copies of the treasurer’s deeds for the 1902 and 1932 tax sales were

submitted as part of the record, the trial court’s holding violates the Statute

of Frauds and disregards Pennsylvania case law. Id. at 32-33.

      It is well-settled that the plaintiff bringing a quiet title action has the

burden of proof and must recover on the strength of its own title. See Herder

Spring, 143 A.3d at 372. In tax sales, a tax title claimant does not acquire

superior title until he first obtains a treasurer’s deed. See Gault’s Appeal,

33 Pa. 94, 99 (Pa. 1859); see also City of Scranton v. O’Malley

Manufacturing Co., 19 A.2d 269, 271 (Pa. 1941). When unseated land is

sold, the treasurer must acknowledge the deed in open court. See Osmer v.

Sheasley, 68 A. 965, 389-90 (Pa. 1908); see also Goodman v. Sanger, 91

Pa. 71 (Pa. 1879).

      At the time of the 1902 tax sale, our Supreme Court noted that there

was no legislation requiring the purchaser to record the deed or make an

official record of his purchase, other than the acknowledgment of the deed by

the treasurer in open court. Osmer, 68 A. at 390. Further, at the time, tax

deeds were properly admitted into evidence where the prothonotary’s minutes

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J-A26044-17



showed that the county treasurer had acknowledged the deeds in open court

and the record of the treasurer’s deed showed that the plaintiff’s deed was

amongst them. See Central Pennsylvania Lumber Co. v. Bristol, 95 A.

383, 383-84 (Pa. 1915).

       Further, in its examination of the relevant law, the trial court cited Bell

v. Provance, 430 A.2d 391, 392-93 (Pa. Commw. 1981),4 where the

Commonwealth Court of Pennsylvania held that, “[t]he existence of a

Treasurer’s Deed establishes prima facie lawful title in the grantee by a

rebuttable presumption of the regularity of the acts of public officials . . .”

Even where the deed cannot be produced, where the record contains “reliable

indicia” that a sale occurred comporting with the terms of the Act, this was

sufficient evidence. Id. at 393.

       The Statute of Frauds provides that “a purported transfer of an

ownership interest in real property is not enforceable unless evidenced in

writing and signed by the party granting the interest.” Zuk v. Zuk, 55 A.3d

102, 107 (Pa. Super. 2012) (internal citations and quotations omitted).

However, “the Statute of Frauds relating to interests in land is a declaration

of public policy and can be waived if it is not raised in the pleadings of a case.”

Birdsboro Mun. Auth. v. Reading Co. & Wilmington & N. R.R., 758 A.2d

____________________________________________


4Although a decision of the Commonwealth Court is not binding upon this
Court, it can be considered as persuasive authority.” Nw. Sav. Bank v.
Knapp, 149 A.3d 95, 98 n.3 (Pa. Super. 2016) (citation omitted).




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222, 226 (Pa. Super. 2000). Appellant, due to its failure to raise the issue of

the Statute of Frauds in its pleadings, has waived the issue. Id. at 226 (noting

that the defense should be raised, at least, in any pretrial pleading); see also

Pa.R.C.P. 1017 (pleadings allowed).5

       Regardless,     this   issue   is   meritless.   We   find   persuasive   the

Commonwealth Court’s decision in Bell, essentially stating that so long as the

record contains reliable indicia that the sale occurred comporting with the

terms of the Act, that evidence is sufficient to find a deed issues. See Bell,

430 A.2d at 392-93. Although Appellant argues that no further evidence of

the deed was introduced, citing in support Grakelow v. Nash, 98 Pa. Super.

316 (1930),6 the trial court noted that the following evidence regarding the

1902-03 deed was introduced:

       In the present case, Woodhouse Club has produced the minutes
       of the Tioga County Court recorded in the Prothonotary’s Office
       that show the acknowledgement in open court of the treasurer’s
       deed conveying the property to Morris Manufacturing Company.
       Woodhouse Club has further provided the records from the
       Treasurer’s Register Book under August 30, 1902, reflecting the
       tax sale of the property in Warrant 1179 to Morris Manufacturing
       Company. Furthermore, in Morris Manufacturing Company’s deed
____________________________________________


5 While Appellant’s new matter avers that no admissible evidence exists
regarding the 1902 treasurer’s deed, Appellant does not mention the statute
of frauds, nor does it aver the statute as a defense. See Answer and New
Matter, at ¶¶ 105-106. Instead, Appellant asserts that the claims are barred
“by the parole evidence rule.” See Answer and New Matter, at ¶ 165.

6 In Grakelow, our Court noted that it was the title claimant’s evidentiary
burden to put in evidence the deed and the record of the court showing that
his acknowledgment of the deed was taken in open court. Grakelow, 98 Pa.
Super. at 324; but see Bell, 430 A.2d at 392-93.

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J-A26044-17


      to Spicer and Vandegrift in 1909, Morris Manufacturing references
      the tax sale of 1902 as the source of its title corroborating the
      records of the Toga Treasurer.

See TCO, 1/8/14, at 34-35. Thus, Appellee established prima facie evidence

of the entry of the 1902 deed, and the court did not err in so finding, and in

entering summary judgment in Appellee’s favor. See Osmer, 68 A. at 390;

see Central Pennsylvania Lumber Co., 95 A.3d at 383-84; see also

Swords, 883 A.2d at 566–67.

      Second, Appellant claims that quiet title based on the 1932 tax sale is

erroneous because a redemption occurred, rendering the sale a nullity. See

Appellant’s Brief at 42. Appellant argues that the redemption gave no new

title to C.C. Slaght: rather, it wiped out the tax sale in its entirety. Id. at 46.

Further, Appellant argues that the time period for redemption was five years

rather than two years, as the land was sold to county commissioners. Id. at

44. Essentially, Appellant contends that because C.C. Slaght held a title less

than fee simple, redemption only served to “revive” the title as it was, i.e.,

with Appellant’s reservation. Id. at 43.

      Initially, we note that Appellant’s challenge to the 1932 tax sale is of

limited persuasiveness because as discussed supra, there was evidence of the

delivery of the 1902 deed. Further, the trial court properly determined that

the 1902 tax sale effectuated a title wash of the land and divested Appellant

of its interests. See TCO, 1/8/14, at 24-35. Logically, even if a redemption

occurred, it could not restore an interest that did not exist. Nevertheless,




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insofar as Appellant challenges the quality of Woodhouse’s title, we will

address it herein.

       At the time of the 1932 sale, the effect of a redemption was to set aside

that tax sale and restore title as though the sale had not been made. Yocum

v. Zahner, 29 A. 778, 779 (Pa. 1894).              When the statutory time limit is

exceeded and the landowner does not redeem the land, the title of the county

following a tax sale is absolute and unqualified. See Lee v. Jeddo Coal Co.,

84 Pa. 74, 79 (1877). Contrary to Appellant’s argument, at the time of the

tax sale, the redemption period had been amended to two years.                 See

Babcock Lumber Co. v. Faust, 39 A.2d 298, 302 (Pa. Super. 1944) (noting

that the Act of May 9, 1889 acted to amend the redemption period for

unseated lands to two years); see also Act of July 8, 1885, P.L. 268, 72 P.S.

§ 6111 et seq., as amended by the Act of May 9, 1889, P.L. 141, § 1, 72 P.S.

§ 6113.

       Based on this precedent, C.C. Slaght had until June 13, 1934 to redeem

the property. They did not. Accordingly, absolute title vested in the county

and divested any subsurface interests that may have remained following the

1902 tax sale, and summary judgment was properly entered.7 See Babcock

Lumber Co., 39 A.2d at 302; Swords, 883 A.2d at 566–6.


____________________________________________


7Although the record indicates that the property was permissively redeemed
outside of the time period for redemption, the fact remains that absolute title
vested in the county following the expiration of the time period for redemption.
See, e.g., Goodman v. Sanger, 85 Pa. 37, 41 (Pa. 1877).

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      Third, Appellant argues that summary judgment was improper, as a

strict construction of the unseated land tax statutes does not authorize a title

wash of a recorded non-producing, severed subsurface estate.               See

Appellant’s Brief at 46-47. Additionally, Appellant argues that the subsurface

estate is not “lands” per the meaning of the statute because there was no

evidence that a mineral estate was assessed until 1953. Id. at 46. Appellant

argues that even though this issue was decided by Herder Spring, the

Herder Spring Court erred by not utilizing a strict construction approach and

instead relying upon prior case law. Id. at 46-47.

      The reservation in the 1893 deed included all minerals and mineral

rights, oil and gas “in, on or under any of said premises, with the right to

mine, bore for, and remove the same.” See Deed, April 22, 1893, at 1. As

we noted before, Herder Spring controls. Herder Spring, 143 A.3d at 360.

In that case, where the assessment of the land does not specify whether it

involved surface or subsurface rights, the tax sale conveys the property in its

entirety. Id. The instant case also involves the sale of unseated land where

the assessment did not specify whether it involved surface or subsurface

rights.     As in Herder Spring, the tax sale conveyed the property in its

entirety.

      Nevertheless, Appellant employs a tortured argument to contend that

the subsurface estate was a non-land, fugacious interest in oil and gas, not

an interest in the “lands.”   See Appellant’s Brief at 49-50. We reject this

contention.      The tax sale of unseated lands also validly extinguishes

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subsurface oil and gas rights, as the owner has the duty to notify the taxing

authority of their separate interest in oil and gas, regardless of the

development of that interest. See Cornwall Mt. Invs., L.P. v. Thomas E.

Proctor Heirs Trust, 158 A.3d 148, 156-57 (Pa. Super. 2017).

      Accordingly, summary judgment was proper, as the tax sale conveyed

the oil and gas rights in their entirety. See Swords, 883 A.2d at 566–67;

Herder Spring, 143 A.3d at 360; Cornwall Mt. Invs., L.P., 158 A.3d at

156-57.

      In its fourth and fifth issues, Appellant contends that summary

judgment for a tax sale claimant is erroneous where there exists disputed

evidence of notice infirmities and other sale-related defects and avers its due

process rights were violated.   See Appellant’s Brief at 53, 58.     Appellant

acknowledges that Herder Spring reiterated that collateral attacks on a tax

sale may not be raised after the redemption period has passed. Id. at 53054,

58.   However, Appellant argues that in the instant case, there were no

delivered treasurer’s deeds for the tax sales, and thus, the Hoyts and their

heirs were not provided with actual notice. See Appellant’s Brief at 53-54,

58.

      Herder Spring noted that procedural defects could not be raised and

the sale could not be collaterally attacked. Herder Spring, 143 A.3d at 374.

Further, the Herder Spring Court found that the notice requirements under

the Act of 1815 did not violate due process.      Id. at 378.   Regardless of

Appellant’s arguments regarding the validity of the deeds and notice of the

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tax sale, the trial court properly entered summary judgment based on this

precedent. Id. at 374, 378; see also Swords, 883 A.2d at 566–67.

      Sixth, Appellant claims that the court erred in finding Appellant was

time-barred from defending its 1893 title based on jurisdictional defects to

Appellee’s claims. See Appellant’s Brief at 66. However, as we have noted,

this issue is again controlled by Herder Spring, which stated clearly that

petitioners may not raise tax sale defects as a defense to a quiet title action

outside of the redemption period.    See Herder Spring, 143 A.3d at 374;

Cornwall Mt. Invs., L.P., 158 A.3d at 160. Accordingly, the court did not

err in granting summary judgment. Swords, 883 A.2d at 566–67.

      Judgment affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




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