Bailey, D. v. Elder, G. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID C. BAILEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE A. ELDER, ET AL
APPEAL OF: HOYT ROYALTY, LLC
Appellant No. 79 MDA 2015
Appeal from the Order Entered December 10, 2014
in the Court of Common Pleas of Lycoming County
Civil Division at No(s): CV-2008-002327-QT
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 09, 2015
Appellant Hoyt Royalty, LLC (“Hoyt Royalty” or “Hoyt”, or collectively
with the other defendants/appellants1 “the Hoyts”) appeals the December
10, 2014 order of the Lycoming County Court of Common Pleas granting
Appellees David C. Bailey, individually, and David C. Bailey and Cecelia
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*
Retired Senior Judge assigned to the Superior Court.
1
Hoyt Royalty is the defendant in the underlying action, together with
George A. Elder, William Hoyt, Mary Hoyt, Mark Hoyt, Anna Hoyt, Edward
Hoyt, Cordelia Ida Hoyt, Theodore Hoyt, George Hoyt, Elk Tanning
Company, and Central Pennsylvania Lumber Company.
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Bailey as trustees of the David C. Bailey Trusts (collectively, “Appellees” or
“the Baileys”) summary judgment in their quiet title action. We affirm.2
This matter concerns the subsurface mineral rights to a 168-acre tract
of land in Lycoming County (“the Property”). In 1893, rights to the
Property’s subsurface gas and oil were severed from the surface estate by
means of the Hoyt/Elk Tanning Deed, which was duly recorded in the office
of the Lycoming County Recorder of Deeds.3 Following this 1893 severance,
the Hoyts maintained the oil and gas rights (“the subsurface estate or rights”
or “the oil and gas estate or rights”). The reservation of subsurface rights
appeared in subsequent deeds preceding 1910. However, the Hoyts did not
file a proof of the reservation or otherwise alert the county commissioners or
the board of taxation of the reservation.
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2
We note that, in addition to briefs from Hoyt Royalty and the Baileys, this
Court received, reviewed, and considered briefs from Appellees International
Development Corporation and Andarko E&P Onshore LLC, f/k/a Andarko E&P
Company LP, as well as an amicus curiae brief from SWN Production
Company, LLC. We further note that Chesapeake Appalachia, LLC, Statoil
USA Onshore Properties, Bonnell Run Hunting & Fishing Corporation, and
Mitsui E&P USA LLC elected not to file formal appellate briefs in this matter.
3
Over the years, the Property has been granted and conveyed by recorded
deed multiple times, most recently on April 13, 2012 to David C. Bailey, Sr.
and Cecelia J. Bailey, Trustees of the David C. Bailey, Sr. Trust, plaintiffs in
the underlying matter.
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In 1910, the Property was sold at a tax sale, and there was no attempt
by any party to redeem the Property following the tax sale. The Baileys
subsequently purchased the Property in 2001.
On October 7, 2008, David Bailey filed an action to quiet title of the
Property in an effort to seek a judicial determination of the ownership status
of the Property’s previously severed oil and gas estate. Bailey obtained a
default judgment by way of praecipe on January 21, 2009.
Over 4 years later, Hoyt Royalty filed a petition to strike and/or open
the default judgment. The trial court granted Hoyt’s petition and entered an
order opening Bailey’s default judgment on May 30, 2013.
In the Second Amended Complaint,4 filed July 19, 2013, the Baileys
alleged fee simple ownership of the Property’s previously-severed oil and gas
estate by abandonment (Count I), cleansing by a tax sale that occurred in
1910 (Count II),5 and cleansing by a tax sale that occurred in 1940 (Count
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4
The Second Amended Complaint identified David C. Bailey and David C.
Bailey and Cecelia Bailey, trustees of the David C. Bailey Trust, as plaintiffs,
and Anadarko E&P Co., LP, Chesapeake Appalachia, LLC, Mitsui E&P USA,
LLC, and Statoil USA Onshore Properties, Inc. as involuntary plaintiffs. Hoyt
Royalty’s December 21, 2013 Complaint to Join Additional Defendants joined
International Development Corporation and Bonnell Run Hunting and Fishing
Corp. as additional defendants.
5
Specifically, Count II alleged that (1) the Property was sold at a June 10,
1910 tax sale, (2) there was no separate assessment of the subsurface
taxes at the time of the sale, (3) the owner of the subsurface estate failed to
notify the tax Commissioner of the prior severance of the subsurface estate
at any time prior to the tax sale, (4) the taxes assessed at the tax sale
represented the assessed value of the entire unseated estate, and (5)
(Footnote Continued Next Page)
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III). The Baileys further alleged Hoyt lacked standing to challenge their title
because it cannot establish itself as a successor to the title of the subsurface
estate (Count IV). Hoyt filed an answer alleging that it was the owner of the
Property’s subsurface estate.6
On September 9, 2014, the Baileys filed a motion for summary
judgment that alleged the Hoyts were divested of their subsurface rights
following the Property’s 1910 tax sale because the Hoyts failed to report the
oil and gas estate to the county commissioners or tax authorities as required
by the Act of 1806. The Hoyts filed responses to the motion for summary
judgment that alleged that (1) the Property’s oil and gas estate was never
assessed for or subject to taxation, (2) the Hoyts were not required to report
their interest in the severed subsurface estate to the county commissioners
for the purpose of tax assessment, and (3) the tax sale did not comply with
notice and due process requirements.
On November 26, 2014, involuntary plaintiff Anadarko E&P Company,
LP (“Anadarko”) filed a motion to strike Hoyt’s second supplemental
response to the motion for summary judgment because, Anadarko claimed,
the supplemental response raised issues not previously raised in the
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(Footnote Continued)
neither the surface nor the subsurface estates were redeemed following the
1910 tax sale.
6
The Baileys claim Hoyt Royalty’s Answer admitted or failed to deny the
material allegations of the Complaint.
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pleadings. The Baileys joined the motion to strike. On December 8, 2014,
the trial court granted Anadarko’s motion to strike Hoyt’s second
supplemental response.
On December 10, 2014, the trial court granted the Baileys’ motion for
summary judgment, declaring them owners of the Property’s subsurface
estate as well as the surface estate. This appeal followed.
Appellant Hoyt Royalty raises the following three (3) claims for review:
1. Whether the trial court erred when it applied summary
judgment standards to the [Baileys’] motion, which in reality,
was a motion for judgment on the pleadings that was governed
by Pa.R.C.P. 1034?
2. Whether the trial court erred in granting judgment in favor of
the Baileys and concluding that Hoyt Royalty and its
predecessors-in-interest were divested of their duly recorded,
nontaxable oil and gas estate even though disputed issues of
fact and law exist as to whether further notice of the Hoyts’
recorded severance was required to be given under the Act of
1806 and whether notice of the 1910 tax assessment and sale
was statutorily proper or in violation of the Hoyts’ federal and
state due process rights?
3. Whether the trial court erred in striking Hoyt Royalty’s
November 21, 2014 response to the [Baileys’] September 9,
2014 motion without affording Hoyt Royalty an opportunity to
respond to the motion to strike or amend its pleadings to
address the claimed issue of whether the allegata and the
probate agree?
Hoyt Royalty’s Brief, p. 7.
This Court’s scope and standard of review on an appeal from the grant
of a motion for summary judgment is well settled:
Our scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is
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clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused
its discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Herder Spring Hunting Club v. Keller, 93 A.3d 465, 468
(Pa.Super.2014), reargument denied (July 11, 2014), appeal granted, 108
A.3d 1279 (Pa.2015) (quoting Shamis v. Moon, 81 A.3d 962, 968–69
(Pa.Super.2013)).
A. The 1910 tax sale extinguished the subsurface estate.
We first turn to Hoyt’s second claim in which they allege that the trial
court erred in determining that their predecessors-in-interest were divested
of the subsurface estate as a result of the 1910 tax sale. See Hoyt Royalty’s
Brief, pp. 19-51. They are incorrect.
The substantive aspects of Hoyt’s claims that the 1910 tax sale did not
extinguish the subsurface estate are controlled by Herder Spring Hunting
Club v. Keller, 93 A.3d 465, 468 (Pa.Super.2014), a factually and legally
indistinguishable case which Hoyt argues this Court incorrectly decided.
In Herder Spring, a landowner – Keller – sought to quiet title and
moved for summary judgment on his rights to surface and subsurface rights.
In 1894, Keller acquired the property at a tax sale. In 1899, he transferred
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the surface rights of the property to others by deed but horizontally severed7
the property, reserving the subsurface rights for himself and his heirs in a
recorded deed. Keller did not notify the county commissioners or the board
of tax assessment of this horizontal severance. The property was then
transferred on numerous occasions. Significantly, the Centre County
Commissioners acquired the property in 1935 via a Treasurer’s sale at which
the property had been offered for unpaid taxes. In 1941, the Centre County
Commissioners sold the property to Max Herr, who died intestate in 1944.
Herr’s widow sold the property to the Herder Spring Hunting Club in 1959,
“subject to all exceptions and reservations as are contained in the chain of
title.”
The trial court found Keller’s subsurface rights were recorded, and that
the Herder Spring Hunting Club was aware of the reservation of rights, so
Keller’s heirs/successors were entitled to the subsurface estate. This Court
disagreed.
The Superior Court determined that, “[b]ecause of the age of these
transfers, the resolution of this matter turns upon an arcane point of law,
involving the interpretation of § 1 of Act of 1806, March 28, P.L. 644, 4
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7
“Horizontally severed land separates surface from subsurface rights;
vertically severed land subdivides an estate into lots.” Herder Spring, 93
A.3d at 469 n.5.
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Sm.L. 346, retitled as 72 P.S. § 5020-409 [].” Herder Spring, 93 A.3d at
468.
The Act of 1806 provided:
It shall be the duty of every person hereafter becoming a holder
of unseated lands, by gift, grant or other conveyance, to furnish
to the county commissioners, or board for the assessment and
revision of taxes, as the case may be, a statement signed by
such holder, or his, her, or their agent, containing a description
of each tract so acquired, the name of the person or persons to
whom the original title from the Commonwealth passed, and the
nature, number and date of such original title, together with the
date of the conveyance to such holder, and the name of the
grantor, within one year from and after such conveyance, and on
failure of any holder of unseated lands to comply with the
injunctions of this act, it shall be the duty of the county
commissioners to assess on every tract of land, respecting which
such default shall be made when discovered, four times the
amount of the tax to which such tract or tracts of land would
have been otherwise liable, and to enforce the collection thereof,
in the same manner that taxes due on unseated lands are or
may be assessed and collected: Provided, That nothing in this
section shall be construed as giving greater validity to
unexecuted land warrants than they are now entitled to, nor to
the detriment of persons under legal disabilities, provided such
person or persons comply with the foregoing requisitions within
the time or times limited, respectively, after such disability shall
be removed.
1933, May 22, P.L. 853, art. IV, § 409. The Herder Spring Court
explained:
The Act required persons who acquired unseated land[8] to
furnish a statement describing that land to the county
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8
“The distinction of seated and unseated land was part of Pennsylvania tax
assessment law prior to 1961. Unseated land was unoccupied and
unimproved whereas seated land contained permanent improvements as
(Footnote Continued Next Page)
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commissioners, or the board for the assessment and revision of
taxes, so that a proper tax assessment could be levied.
Herder Spring, 93 A.3d at 468-69.
The Herder Spring Court then reviewed the state of the law as it
existed at the relevant time periods. The Court summarized the law as
follows:
The relevant case law established that the acts taken by the
commissioners regarding the tax sale were presumed to comport
with applicable statutes and regulations, subject to contrary
proof produced within two years of the foreclosure. The person
who severed rights to unseated land was under an affirmative
duty imposed by statute to inform the county commissioners or
appropriate tax board of that severance, thereby allowing both
portions of the property to be independently valued. If
information regarding the severance of rights to unseated
property is not given to the commissioners, then any tax
assessment for that unseated property must logically be based
upon the property as a whole.
If a parcel of unseated land was valued as a whole, and the
taxes on that land were not paid, thereby subjecting that
property to seizure and tax sale, then all that was valued,
surface and subsurface rights, were sold pursuant to any tax
sale, absent proof within two years, of the severance of rights.
Herder Spring, 93 A.3d at 471-72 (footnote omitted).
Applying this law to the facts, the Herder Spring Court determined:
_______________________
(Footnote Continued)
indicate a personal responsibility for taxes.” Herder Spring, 93 A.3d at
466. The Act of 1806 “treated [seated lands] differently from unseated
lands . . . because seated lands are assessed by survey or warrant numbers,
regardless of the owners whose names if used at all are only for the purpose
of description.” Id. at 469 (internal quotations and citation omitted).
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Because the Kellers originally obtained the property through an
1894 tax sale, they obtained the rights to the property as a
whole, and the tax assessors would continue to value the
property as a whole unless otherwise informed. When the
property was horizontally severed in 1899, the Kellers never
informed the county commissioners of their retention of the
subsurface rights to the land after selling the surface rights.
Pursuant to the Act, it was their affirmative duty to do so. In
1935, the treasurer obtained the rights to the property pursuant
to a treasurer’s sale. Because the horizontal severance had
never been reported to the commissioners, the property
continued to be taxed as a whole, just as it had been when the
Kellers obtained the property at tax sale. Therefore, the
treasurer obtained the property as a whole and transferred it to
the commissioners as a whole.
Herder Spring, 93 A.3d at 472 (internal citations omitted).9 The Court
then determined the trial court erred in granting the Kellers the subsurface
rights, vacated the trial court’s order, and remanded the case for the trial
court to award the subsurface rights to Herder Spring Hunting Club.10
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9
The Herder Spring Court also noted the Act’s provided remedy – a four-
fold increase in the tax assessment for the failure to inform the
commissioners of the severance rights – did not apply in situations where
there was a Treasurer’s or tax sale. Herder Spring, 93 A.3d at 471 n.10.
10
The Herder Spring Court recognized this result would likely not occur
under modern law as follows:
[W]e are aware that our resolution of this matter is at odds with
modern legal concepts. This resolution may be seen as being
unduly harsh. However, at the time of the relevant
transactions—the seizure of the property for failure to pay tax
and the subsequent Treasurer’s sale—this was the appropriate
answer. We do not believe it proper to reach back, more than
three score years, to apply a modern sensibility and thereby
undo that which was legally done.
Herder Spring, 93 A.3d at 473.
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The instant matter presents the same factual and legal scenario as
Herder Springs: a recorded horizontal severance, governed by the Act of
1806, which was not reported to the county commissioners or tax
authorities, followed by a tax sale. Accordingly, Herder Spring controls.11
Accordingly, because the subsurface estate was extinguished by the 1910
tax sale and failure to redeem the severance rights within the allotted two
years, the Baileys own the entire property, both the surface and subsurface
rights. Therefore, the trial court did not err in granting the Baileys summary
judgment.
B. The trial court correctly applied the summary judgment standard
to the Bailey’s motion.
Hoyt also argues that the Baileys’ summary judgment motion was
actually a motion for judgment on the pleadings, and therefore the trial
court erred in applying summary judgment standards. See Hoyt Royalty’s
Brief, pp. 17-18. This claim affords Hoyt no relief.
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11
Regardless of Hoyt’s suggestion that Herder Spring was incorrectly
decided, we are bound by the case. See Commonwealth v. Beck, 78 A.3d
656, 659 (Pa.Super.2013) (a panel of this Court cannot overrule another
panel). The fact that our Supreme Court has granted review of Herder
Spring does not alter its precedential value unless and until the Supreme
Court overrules this Court’s determination. See Marks v. Nationwide Ins.
Co., 762 A.2d 1098, 1101 (Pa.Super.2000) (noting that, despite having
been granted a petition for allowance of appeal, a decision remains
precedential unless and until it is overturned by the Pennsylvania Supreme
Court).
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Pennsylvania Rule of Civil Procedure 1035.2 governs motions for
summary judgment and provides, in relative part:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or
defense which could be established by additional discovery
or expert report . . .
Pa.R.C.P. 1035.2. For summary judgment purposes, “[a] material fact is
one that directly affects the outcome of the case.” Kuney v. Benjamin
Franklin Clinic, 751 A.2d 662, 664 (Pa.Super.2000).
The Note to Pa.R.C.P. 1035.2 explains:
Rule 1035.2 sets forth the general principle that a motion for
summary judgment is based on an evidentiary record which
entitles the moving party to judgment as a matter of law.
The evidentiary record may be one of two types. Under
subparagraph (1), the record shows that the material facts are
undisputed and, therefore, there is no issue to be submitted to a
jury.
An example of a motion under subparagraph (1) is a motion
supported by a record containing an admission. By virtue of the
admission, no issue of fact could be established by further
discovery or expert report.
...
Only the pleadings between the parties to the motion for
summary judgment must be closed prior to filing the motion.
Pa.R.C.P. No. 1035.2, Note. Further, “[t]he timing of the motion is
important. Under Rule 1035.2(1), the motion is brought when there is no
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genuine issue of any material fact . . . which could be established by
additional discovery or expert report.” Pa.R.C.P. 1035.2, 1996 Explanatory
Comment (internal quotations omitted).
Here, Appellees properly moved for summary judgment. The trial
court correctly determined that summary judgment is appropriate in this
matter because Hoyt’s pleadings and discovery responses do not dispute any
material facts and no additional discovery will bolster Hoyt’s defenses. Hoyt
effectively claims first, that they were never informed of Lycoming County’s
assessment of taxes against the oil subsurface estate and the county’s
intention to sell the estate for failure to pay taxes. This argument is
irrelevant, however, because Hoyt admits it never placed the county
commissioners on notice of their severed estate rights and did not redeem
their interest within two years of the tax sale. See Herder Springs, supra.
Next, Hoyt argues that, absent a formal tax assessment, the Hoyts were
under no obligation to redeem following the 1910 tax sale. This argument is
a legal conclusion, not a material fact, and therefore does not create a
factual jury question.12 Likewise, Hoyt’s third argument, that the 1910 tax
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12
Further, the Herder Spring Court addressed this argument and found it
unconvincing. As the Court explained:
This argument is unavailing. First, the import of the Act is that it
allows the tax assessors the opportunity to independently assess
a value of severed rights. That opportunity was never given to
Centre County. One cannot say that the mineral rights were
never valued when the commissioners were not given the
(Footnote Continued Next Page)
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sale violated the Hoyts’ federal and state due process rights is also a legal
conclusion, not a matter of material fact, and therefore does not prevent
summary judgment.
The pertinent facts of this matter are not in dispute. Rather, Hoyt
debates (1) whether they were required to give the county commissioners
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(Footnote Continued)
opportunity to independently value them. Next, that argument
has been rejected by our Supreme Court, which stated:
Appellant further argues that even though a taxing
body purports to assess an entire mineral estate,
only minerals known to exist at the time and place
are actually valued by the assessors, taxed and later
sold if taxes become delinquent. Acceptance of this
proposition would undoubtedly lead to confusion and
speculation, for no one would know what had
actually been sold. Attempts to prove that accessors
[sic] did or did not know of the presence of oil or gas
when they assessed ‘minerals’ at some point in the
past would lead to protracted collateral investigation
and litigation. It is true, of course, that an assessor
can tax only that which had value. Rockwell v.
Warren County, [] 77 A. 665 ([Pa.]1910); if no gas
or oil exists, the mineral rights should not be taxed
as if they did. Nevertheless, an assessment or sale
believed to be improper because of overvaluation
cannot be collaterally attacked fifty years later. The
owner must petition immediately for exoneration.
Wilson v. A. Cook Sons, Co., [s]upra, [] 148 A.
63[, 65] [([Pa.]1929)].
Bannard v. New York State Natural Gas Corporation, [] 293
A.2d 41 ([Pa.]1971). We note that Bannard also recognizes the
requirement to promptly challenge a tax sale. See Morton,
supra.
Herder Spring, 93 A.3d at 472 n.11.
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notice of the horizontal severance, which they admit they did not provide,
(2) whether the tax sale was proper, although there is no dispute that no
taxes were paid on the property, and (3) whether notice of the tax sale was
adequately/properly given, although there is no dispute that notice through
publication was actually given.
Because Hoyt does not raise any disputed issues of material fact, the
trial court properly granted the Baileys’ summary judgment motion.13
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13
Hoyt challenges the correct application of relevant law, but not material
facts. Therefore, the Baileys would have been entitled to judgment under
the standard for a motion for judgment on the pleadings as well.
Pennsylvania Rule of Civil Procedure 1034 provides:
Rule 1034. Motion for Judgment on the Pleadings
(a) After the relevant pleadings are closed, but within such time
as not to unreasonably delay the trial, any party may move for
judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be
proper on the pleadings.
Pa.R.C.P. 1034. “A motion for judgment on the pleadings will be granted
where, on the facts averred, the law says with certainty that no recovery is
possible.” Metcalf v. Pesock, 885 A.2d 539, 540 (Pa.Super.2005).
Entry of judgment on the pleadings is appropriate when there
are no disputed issues of fact and the moving party is entitled to
judgment as a matter of law. Our scope of review is plenary and
we will reverse only if the trial court committed a clear error of
law or if the pleadings disclose facts that should be submitted to
a trier of fact. We accept as true all well-pleaded allegations in
the complaint.
Sisson v. Stanley, 109 A.3d 265, 274 (Pa.Super.2015) (internal quotations
and citation omitted).
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C. The trial court properly struck Hoyt Royalty’s November 21, 2014
second response to the motion for summary judgment.
Finally, Hoyt claims the trial court improperly granted Anadarko’s
motion to strike Hoyt’s Second Supplemental Response to the Baileys’
Motion for Summary Judgment. See Hoyt Royalty’s Brief, pp. 51-57.
Specifically, Hoyt claims (1) Anadarko lacked standing to strike Hoyt’s
response, (2) Hoyt raised the issue of improper notice in its pleadings, and
(3) the trial court should have allowed Hoyt to amend the pleadings if it felt
notice was not properly raised. Id. This claim does not afford Hoyt relief.
First, a determination of whether or not Anadarko had standing is
irrelevant. The Baileys filed a motion to strike for identical reasons.
Therefore, even if the trial court ruled Anadarko had no standing, it could
have simply struck the response based on the Baileys’ motion, whose
standing Hoyt does not challenge.
Second, Hoyt’s claim that the trial court erred by not allowing Hoyt to
amend the pleadings to include an allegation that Hoyt did not receive the
mandated 60-day notice of the tax sale is unconvincing.
This Court has explained the legal principles underlying the review of a
grant or denial of leave to amend the pleadings as follows:
[Pennsylvania] Rule [of Civil Procedure] 1033 allows a party to
amend his or her pleadings with either the consent of the
adverse party or leave of the court. Leave to amend lies within
the sound discretion of the trial court and the right to amend
should be liberally granted at any stage of the proceedings
unless there is an error of law or resulting prejudice to an
adverse party.
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The policy underlying this rule of liberal leave to amend is to
insure that parties get to have their cases decided on the
substantive case presented, and not on legal formalities.
Moreover, we have held:
Even where a trial court sustains preliminary objections on
their merits, it is generally an abuse of discretion to
dismiss a complaint without leave to amend. There may,
of course, be cases where it is clear that amendment is
impossible and where to extend leave to amend would be
futile. However, the right to amend should not be withheld
where there is some reasonable possibility that
amendment can be accomplished successfully. In the
event a demurrer is sustained because a complaint is
defective in stating a cause of action, if it is evident that
the pleading can be cured by amendment, a court may not
enter a final judgment, but must give the pleader an
opportunity to file an amended pleading.
Hill v. Ofalt, 85 A.3d 540, 557 (Pa.Super.2014) (emphasis in original)
(internal quotations and citation omitted).
Although Pa.R.C.P. 1033 permits liberal granting of pleading
amendments, the requested amendment to add the tax sale 60-day notice
claim would have been futile. As the trial court explained:
[Hoyt] also contends in its Second Supplemental Response, that
the 60-day notice period was not observed. While the Second
Supplemental Response has been stricken, the court wishes to
note that this objection is also barred by the two-year
redemption period.
Trial Court Opinion, p. 8 n.10.
Because the proposed amendment would not have raised a viable
argument for Hoyt, the trial court’s refusal to allow the amendment was
does not represent error.
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For the preceding reasons, we affirm the trial court’s December 10,
2014 order granting the Baileys’ summary judgment motion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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