J-A26029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN MCDONALD, SR., AND JAMES            :    IN THE SUPERIOR COURT OF
 J. PURMAN, IV                            :         PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :    No. 504 WDA 2018
 CNX GAS COMPANY, LLC., BARRY L.          :
 MCCONNELL AND JEFFREY W.                 :
 MCCONNELL                                :

                   Appeal from the Order March 15, 2018
  In the Court of Common Pleas of Greene County Civil Division at No(s):
                             No. A.D. 769, 2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 10, 2018

      John   McDonald,    Sr.,   and   James   J.    Purman,   IV,   (collectively

“Appellants”), appeal from the order entered on March 15, 2018, granting

summary judgment in favor of CNX Gas Company, LLC., Barry L. McConnell,

and Jeffrey W. McConnell (collectively “Appellees”). Following our review of

the record, it is apparent that the order granting summary judgment does not

dispose of all claims and all parties. Accordingly, we quash this appeal and

remand for further proceedings.

      The trial court set forth the underlying facts and procedural history of

this matter as follows:

            According to the Complaint, [Appellant] McDonald is the
      owner of an undivided (90%) interest in 115+ acres located in
      Morris Township, Greene County, Pennsylvania. [Appellant]
J-A26029-18


     Purman owns a[n] undivided (10%) interest in 131+ acres located
     in Morris Township, Greene County, Pennsylvania. The Purman
     Land includes the McDonald Land.

          The Complaint sets forth claims for Declaratory Relief, an
     Accounting, Trespass and Ejectment.

          On December 14, 1977, Melvin M. McConnell and Hester L.
     McConnell entered into an Oil and Gas Lease with Consolidation
     Coal Company. [Appellees] Barry L. McConnell and Jeffrey W.
     McConnell are the heirs of the Lessors. [Appellee] CNX Gas
     Company, LLC, acquired the Lessee’s interest in the Lease.

           The primary term of the Lease is twenty-five years and can
     be extended by either (1) production or (2) drilling operations.
     Moreover, at the end of the primary term, the Lessee can elect to
     extend the Lease by an additional twenty-five years by paying the
     Lessor a renewal charge of $50.00 per acre. The Lease also grants
     specific rights to use the surface and allowed for unitizization [sic]
     with other properties.

           On February 17, 1993, Melvin M. McConnell and Hester L.
     McConnell conveyed a 131+ acre tract to James F. Kern and Nancy
     L. Kern. The conveyance was subject to the 1977 Lease and the
     Grantors excepted and reserved from the conveyance all the oil
     and gas rentals and royalties associated with the Lease.

           On November 15, 2002, Consolidation Coal Company
     exercised the option to extend the 1977 Lease. [Appellees] Barry
     McConnell and Jeffrey McConnell were issued checks in
     accordance with this option.

          On June 18, 2003 James F. Kern and Nancy L. Kern
     conveyed the property to [Appellant] John H. McDonald, Sr. and
     John H. McDonald, Jr.

          The conveyance was subject to the 1977 Lease and
     excepted and reserved all the oil and gas rentals and royalties
     from the 1977 Lease to the heirs of Melvin M. McConnell and
     Hester L. McConnell.

          On March 26, 2005, [Appellant] John H. McDonald Sr. and
     John H. McDonald Jr. conveyed 131+ acres to [Appellant] John H.
     McDonald Sr.

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J-A26029-18


            The conveyance was subject to the 1977 Lease and
       excepted and reserved all the oil and gas rentals and royalties
       from the 1977 Lease to the heirs of Melvin M. McConnell and
       Hester L. McConnell.

             On September 30, 2015, [Appellants] filed the Complaint.
       In response to the Complaint, [Appellees] have Counter-claimed
       seeking Declaratory Relief in favor of their rights. The matter is
       now before the [c]ourt on [Appellees’] Motion for Summary
       Judgment.

Trial Court Opinion and Order, 3/15/18, at unnumbered 1-3. At the conclusion

of the hearing, the trial court found that there were no genuine issues of

material fact, and it granted Appellees’ motion for summary judgment. Id. at

unnumbered 5. Appellants filed a timely notice of appeal on April 9, 2018.1

Both the trial court and Appellants have complied with Pa.R.A.P. 1925.

       It is well settled that an order granting summary judgment that disposes

of all claims and all parties is immediately appealable.      Smithbower v.

Southwest Cent. Rural Elec. Co-op., Inc., 542 A.2d 140, 141 n.1 (Pa.

Super. 1988). However, an order granting summary judgment that does not

dispose of all claims and all parties is not final and appealable. Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1153 (Pa. Super. 2009);

Pa.R.A.P. 341(b)(1).



____________________________________________


1Appellants filed a praecipe for the entry of judgment in this matter. Praecipe,
4/26/18. This praecipe for judgment was not necessary. Smithbower, 542
A.2d at 141 n.1. Nevertheless, Appellants’ appeal was filed within thirty days
of the entry of summary judgment, and it is therefore a timely appeal.
Pa.R.A.P. 903(a).


                                           -3-
J-A26029-18


        Here, the record reflects that although Appellees sought summary

judgment with respect to Appellant McDonald’s claims in their entirety,

Appellees sought only summary judgment on Counts III and IV involving

trespass and ejectment with respect to Appellant Purman.                Motion for

Summary Judgment, 10/30/17, at 11. Thus, the issue of Appellant Purman’s

ten-percent interest in the land and demand for an accounting was not

challenged by Appellees, and it was not disposed of by the trial court.2 Id.;

Complaint, 9/30/15, at Count II.

        Because the claim for an accounting has not yet been addressed, we are

without jurisdiction to hear this appeal. See Levitt v. Patrick, 976 A.2d 581,

588 (Pa. Super. 2009) (“If any claim remains outstanding and has not been

disposed of by the trial court, then it does not matter whether the claim is

classified as a counterclaim or a bifurcated claim, for the result is the same:

this Court lacks jurisdiction to entertain the appeal[.]”). Therefore, we are




____________________________________________


2   Appellees appear to recognize the lack of finality on this point:

        Accordingly, Appellant-Purman cannot maintain an action in
        trespass or ejectment against the McConnells or their lessee.
        Rather, assuming he can demonstrate his ownership interest, his
        only recourse is one in accounting for his fair share of the proceeds
        based on a reasonable royalty.

Appellees’ Brief at 11.



                                           -4-
J-A26029-18


constrained to quash the appeal and remand this matter to the trial court for

further proceedings.3

       Appeal quashed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2018




____________________________________________


3 To the extent that the March 15, 2018 order states that it dismisses the
complaint in its entirety, we reiterate that the issue of Appellant Purman’s
claims for an accounting relative to his interest in the land was not raised in
the motion for summary judgment. Thus, the trial court’s order dismissing
the complaint reveals that the trial court addressed the accounting issue in
Count II sua sponte, without the issue being raised in the motion for summary
judgment and without any discussion. It is well settled that trial courts are
not to act as advocates for the defendant. Yount v. Pa. Department of
Corrections, 966 A.2d 1115, 1119 (Pa. 2009). When the trial court
addresses an issue in favor of summary judgment sua sponte and grants
summary judgment, it risks depriving the trial court of the benefit of advocacy
on the issue, and it deprives the parties the opportunity to be heard. Id.


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