Clutter, S. v. Brown, A. Appeal of: Gemmell, J.

J-S28027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUE C. CLUTTER AND ROY L. CLUTTER, IN THE SUPERIOR COURT OF
HER HUSBAND, PHIL L. LAPPING AND PENNSYLVANIA
NAOMA C. LAPPING, HIS WIFE, AND
JEFF L. LAPPING
v.
ALLEN C. BROWN, CAROL A. BROWN
PURDY, MELVA L. BROWN JOSEPH,
DELURA MAE BROWN CAULDER, JUDITH
L. FOULK BOWEN, CHARLES M. FOULK,
KENNETH E. FOULK, KEVIN A. FOULK,
JEFFREY N. KING, JANET L. VERMILLION
GEMMELL, JOANN VERMILLION MCVITTY,
JOHN D. TSCHURDY, A/K/A JOHN D.
TSCHUDY, ROSE MARY TSCHUDY HITES,
MARILYN JEAN LOWE, BARBARA ELLEN
COMSTOCK, IDELLA LOY, CALVIN
DECKARD, DWIGHT DECKARD, NORMA
SHIRK, SANDRA N. CLARK, PEGGY J.
COLE HAYNES, SHARON L. COLE VAN
BURSICK, LARRY COLE, DONALD
WILSON COLE, RONALD LEE COLE,
JOSEPH E. BORMAN, WILLIAM L.
BORMAN, SHERRY SHARLENE COLE
BOLES, LINDA S. CLARK LEMAY, BONNIE
LOU CLARK HEILMAN, DAVID N. CLARK,
GLORIA JEAN MILLER, FRANCIS J.
MILLER KIRK, JOANNE PRINCESS
CARLYL CLARK, WILLIS FRANKLIN
CLARK, JR., ROSE MAE CLARK RUDD,
CYNTHIA L. CLARK CAREY, JOHN
SHERMAN CLARK, RAY EUGENE CLARK,
TAMRA S. GALLANT PENIX, STEVEN RAY
GALLANT, DOUGLAS R. GALLANT, BRYAN
GALLANT, GARY LEE CLARK, RANDY J.
LOCKMAN, DAVID D. ADAMS, LINDA
GAIL ADAMS SMITH, BARBARA SUE
ADAMS, SARA A. MILLER OSTEEN, ELLEN
E. MOUNT, THEODORE A. MOUNT, MARY
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E. MOUNT ALDERMAN, MARILYN J.
MOUNT KOEVAR, DAVID TOMEY,
HAROLD EUGENE MOUNT, NANCY
WISHON MURPHY, MICHAEL ALLEN
KUHNLE, JR., RACHEL M. KUHNLE, KELLY
MARIAH KUHNLE, THOMAS MCCOY, ERIN
MCCOY, MELISSA MARIE WISHON,
MARTIN W. WISHON, MELVIN J.
WISHON, JR., ANTHONY WAYNE MCCOY,
SR., NANCY KAY WISHON, MATTHEW
SAMUEL WISHON, PATRICIA LOUISE
VANSICKLE WHITE, CAROLYN SUE LUST
DYE, CAROL FRANCES VANSICKLE
HATFIELD, RALPH J. CELLAR, KATHRYN
L. CELLAR SULLIVAN, POLLY ANNE
HONNINGFORD KILGORE, DAVID ALAN
KILGORE, JENNIFER E. KILGORE MILAN,
BEVERLY JEAN KILGORE COX, CARL
NOGGLE, JR., CARL RICHARD
WOODRING, SARA L. WOODRING
CHANDLER, JANE ANN NOGGLE LEHNER,
ROBERT ALLEN NOGGLE, WILLIAM LEE
NOGGLE, SR., DOUGLAS ALLEN
FOREMAN, KATHERINE D. FOREMAN,
KRYSTAL S. FOREMAN ZEIGLER, JEFFREY
CARL NOGGLE, DANNY GENE NOGGLE,
JR., TRENTON ISAAC ROWLAND, TRAVIS
LEE ROWLAND, RACHEL CHANDLER,
A/K/A RAYCHAEL CHANDLER, LARRY D.
NOGGLE, TERESA M. NOGGLE COOLEY,
LYNDA LEE NOGGLE DORNBIRER, A/K/A
LINDA LEE NOGGLE DORNBIRER, JOANN
VANSICKLE ORR, SANDRA KAY
VANSICKLE ORLETT, MARY ALICE
VANSICKLE BARTLEY, DONNA JEAN
VANSICKLE NILES, ELIZABETH MARIE
HINTON DELANEY, MINNIE F. HINTON
GAMBLE, JESSE EUGENE SIPES, VICKY
L. SIPES PIERCE, SHARON ELAINE SIPES
THOMPSON, KATHY SUE SIPES
WILLIAMS, JOHN WILLIS SIPES,
BERNICE JEAN SIPES MCCOY, CYNTHIA
LOUISE HAMMOND, DEBORAH SUE
SPITZ, PAMELA KAY HOGAN, JEAN ANN
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COPELAND INGRAM, CYNTHIA LOUISE
HAMMOND, LINDA LOU SIPES BROWN,
AND TIMOTHY SIPES
APPEAL OF: JANET L. VERMILLION
GEMMELL
No. 1542 WDA 2016
Appeal from the Order Entered September 13, 2016
In the Court of Common Pleas of Greene County
Civil Division at No(s): 68 AD 2014
BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 21, 2017
Janet L. Vermillion Gemmell appeals from the September 13, 2016
order entered in the Greene County Court of Common Pleas granting the
motion for summary judgment filed by Sue C. Clutter, Roy L. Clutter, Phil L.
Lapping, Naoma C. Lapping, and Jeff L. Lapping (“Landowners”). We affirm.
On December 28, 2015, Landowners filed a second amended
complaint to quiet title to a partial interest in royalties from the production
of oil and gas underlying two tracts of land located in Center Township,
Greene County, Pennsylvania.1 The parties submitted stipulated facts,
including the following:
B. The Plaintiffs’ Interest in the Property
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*
Retired Senior Judge assigned to the Superior Court.
1
Landowners filed suit against numerous defendants. Gemmell is the
only named appellant in this appeal. There is a related appeal, docketed at
1484 WDA 2016, which we address in a separate memorandum.
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1. Sue C. Clutter and Roy L. Clutter, her husband
(collectively “Clutter”) own in fee simple real property
located in Center Township, Greene County, Pennsylvania
totaling 48.6 acres (“Clutter Tract”).
2. Phil L. Lapping, Naoma C. Lapping, his wife, and Jeff L.
Lapping (collectively “Lapping”) own in fee simple real
property located in Center Township, Greene County,
Pennsylvania totaling 10.2 acres (the “Lapping Tract”).
3. The Clutter Tract and Lapping Tract (collectively
“Property”) are derived from a common source of title, a
March 28, 1919 Deed from Anna M. Brown, et vir, et al. to
Caleb M. Stewart (the “1919 Deed”) that was recorded on
April 3, 1919 in the Greene County Recorder of Deeds at
Book Volume 267, Page 413.
4. The Clutter’s source of title to the Clutter Tract through
to the 1919 Deed is derived through [a] series of
conveyances[.] . . .
5. The Lappings’ source of title to the Lapping Tract
through to the 1919 Deed is derived through [a] series of
conveyances[.] . . .
C. The Defendant’s Interest in the Property
6. The grantors under the 1919 Deed, were the children of
Louisa Day McVay, a/k/a Lou D. McVay: Anna M. Brown;
Herschel C. McVay; Mile E. McVay, a/k/a/ Milo E. McVay;
Clara L. Bonham; Millee F. McVay (collectively the “McVay
Heirs”), and their respective spouses.
7. The McVay Heirs acquired their interest in the Property
through [a] series of conveyances[.] . . .
8. The McVay Heirs are all deceased.
9. The Defendants, totaling 106 people, are the
descendants and/or legal heirs of the McVay Heirs.
10. The following Defendants (collectively the “Responding
Defendants”) have entered an appearance in this action,
through counsel, and file an answer to the Complaint:
a. Bryan Gallant, Gloria Jean Miller, Douglas
Gallant, Francis J. Miller Kirk, Steven Gallant, Ray
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Eugene Clark, Tamra S. Gallant Penix, a/k/a
Tamra Gallant Hancock, Polly Anne Kilgore, David
Alan Kilgore, Beverly Jean Kilgore Cox, Jennifer E.
Kilgore Milan, a/k/a Jennifer E. Milam, David N.
Clark, Linda S. Clark LeMay, Bonnie Lou Clark
Heilman, John D. Tschurdy, a/k/a John D.
Tschudy, Rose Mary Tschudy-Hites, Marilyn Jean
Lowe, Barbara Ellen Comstock, Sara L. Woodring
Chandler, Bernice Jean Sipes McCoy, Rose Mae
Clark Rudd, Cynthia L. Clark Carey, Joanne
Princess Carlyle Clark, Judith Foulk Bowen,
Charles M. Foulk, Kevin A. Foulk, John Sherman
Clark and Carolyn Sue Lust Dye by Answer to
Second Amended Complaint and Counterclaim,
dated March 17, 2016.
b. Larry Noggle and Theresa Cooley by Answer to
Second Amended Complaint, dated February 26,
2016;
c. Janet L. Vermillion Gemmell by Answer to
Second Amended Complaint, dated March 14,
2016; and
d. Marguerite Elain Sipes Britton by Answer to
Second Amended Complaint to be filed on or
before July 5, 2016.
D. Disputed title to a one-half royalty interest in the
oil and gas produced from the Property.
11. Louisa D. McVay and the McVay Heirs entered into an
Oil and Gas Lease with Ullom and Kent, with respect to
the Clutter Tract, dated June 1, 1901 and recorded on
October 9, 1903 in the Greene County Recorder of Deeds
at Book Volume 141, Page 412.
12. Louisa D. McVay entered into an oil and Gas Lease
with Ullom and Kent, with respect to the Lapping Tract,
dated June 1, 1901 and recorded on October 9, 1903 in
the Greene County Recorder of Deeds at Book Volume
141, Page 417.
13. Both of the June 1, 1901 Oil and Gas Leases (“1901
Leases”) contain identical terms.
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 A royalty for production of oil in an amount “the
equal one-eight (1/8th) part of all oil produced
and saved from said premises, to be delivered in
the pipeline to the credit of the [lessor] free of
charge . . .”
 A royalty for production of natural gas in an
amount of “Three hundred ($300) Dollars, each
year, payable quarterly in advance for the product
of each well while the same is being used off the
premises, . . .”
 A delay rental for holding the lease as follows
“In case no well is commenced within thirty days
from this date, then this grant shall immediately
become null and void as to both parties. Provided
that [lessee] may prevent said forfeiture from
quarter to quarter and no longer by paying to the
[lessor] in advance” $12.00 for the Clutter Tract
and $2.50 for the Lapping Tract “until such well is
completed.”
14. The 1919 Deed Contains the following clause:
Reserving, also from this conveyance one
half of the oil and gas royalty the party
of the second part, however, is to have
the quarterly rental which is paid from
quarter to quarter to prevent forfeiture of
the lease.
15. Production is no longer occurring under the 1901
Leases, and [Landowners] and Responding Defendants
have never received any royalties or delay rentals from
the 1901 Leases.
16. Clutter entered into an Oil and Gas Lease with EQT
Production Company (“EQT”), with respect to the
Clutter Tract, dated February 28, 2011, a
Memorandum of which was recorded on April 29, 2011
in the Greene County Recorder of Deeds at Book
Volume 438, Page 3532.
17. Phil L. Lapping and his spouse, Naoma Lapping
entered into an Oil and Gas Lease with EQT, with
respect to the Lapping Tract, dated March 2, 2011, a
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Memorandum of which was recorded on April 15, 2011
in the Greene County Recorder of Deeds at Book
Volume 438, Page 1945, and Jeff L. Lapping entered
into an Oil and Gas Lease with EQT, with respect to the
Lapping Tract, dated March 21, 2011, a Memorandum
of which was recorded on April 15, 2011 in the Greene
County Recorder of Deeds at Book Volume 438, Page
1974.
18. EQT is producing natural gas from the Property
under the leases that it entered into with
[Landowners].
19. EQT is paying one-half of the royalty for its
production from the Property to [Landowners], for their
respective tracts.
20. EQT is withholding payment of one-half of the
royalty based upon the royalty reservation contained in
the 1919 Deed.
Joint Stipulations, 7/5/16, at 1-7 (citations to record omitted).
On August 1, 2016, Landowners filed a summary judgment motion.
On September 1, 2016, Gemmell filed a response. On September 13, 2016,
the trial court granted Landowner’s motion. On October 12, 2016, Gemmell
filed a timely notice of appeal. On December 5, 2016, the trial court
directed Gemmell to file a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), which
Gemmell filed on the same day.2
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2
On October 7, 2016, the trial court ordered the defendants who had
filed a September 29, 2016 amended notice of appeal to file a Rule 1925(b)
statement. The trial court, however, did not issue a Rule 1925(b) order
following Gemmell’s October 12, 2016 notice of appeal. The December 5,
2016 order was the first order requiring Gemmell to file a Rule 1925(b)
statement.
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Gemmell raises the following issues on appeal:
1. Whether the trial court erred by failing to find that the
1919 reservation of one-half of the oil and gas royalty to
the grantors therein constituted an exception of an interest
in real property that passed by operation of law to the
heirs of the grantors, being all Defendants.
2. Whether the trial court erred by failing to find that the
exception of one-half of the oil and gas royalties in the
1919 Deed was not subject to any limiting conditions and
therefore passed by operation of law to the heirs,
successors and assigns of the McVay Heirs, being the
Defendants in the underlying action.
Gallant Appellants’ Br. at 7 (suggested answers omitted).3
Our scope and standard of review of a grant of summary judgment are
well-settled:
[O]ur scope of review is plenary, and our standard of
review is the same as that applied by the trial court . . . .
An appellate court may reverse the entry of a summary
judgment only where it finds that the lower court erred in
concluding that the matter presented no genuine issue as
to any material fact and that it is clear that the moving
party was entitled to a judgment as a matter of law. In
making this assessment, we view 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
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3
On January 26, 2017, this Court granted Gemmell’s application for
relief – notice of joinder, concluding that Gemmell may rely on the brief and
reproduced record filed by the appellants at docket 1484 WDA 2016. We
further ordered that the Prothonotary accept the brief attached to the
application for relief as Gemmells brief and docket the brief as filed on
January 17, 2017.
We have found that that appellants at docket 1484 WDA 2016 waived
their claims for failing to file a 1925(b) statement. However, we decline to
find Gemmell’s claims waived, where she filed a timely 1925(b) statement.
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be resolved against the moving party. As our inquiry
involves solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to
determine whether the record either establishes that the
material facts are undisputed or contains insufficient
evidence of facts to make out a prima facie cause of
action, such that there is no issue to be decided by the
fact-finder. If there is evidence that would allow a fact-
finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Ralston v. Ralston, 55 A.3d 736, 739 (Pa.Super. 2012) (quoting Brandon
v. Ryder Truck Rental, Inc., 34 A.3d 104, 107–08 (Pa.Super. 2011)).
Here, because the parties submitted stipulated facts, our review is limited to
determining whether the trial court erred in finding that summary judgment
was proper as a matter of law.
To determine whether the trial court properly granted summary
judgment, we must interpret the following clause in the 1919 deed:
Reserving, also from this conveyance one half of the oil
and gas royalty the party of the second part, however, is
to have the quarterly rental which is paid from quarter to
quarter to prevent forfeiture of the lease.
Joint Stipulations, Ex. C, at 415.4 We must determine whether this clause
constitutes an exception of the Property’s gas and oil from the deed or
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4
“Pennsylvania recognizes three discrete estates in land: the surface
estate, the mineral [or subsurface] estate, and the right to subjacent
(surface) support. Because these estates are severable, different owners
may hold title to separate and distinct estates in the same land.” Bastian
v. Sullivan, 117 A.3d 338, 344 (Pa.Super. 2015) (quoting Pa. Servs. Corp.
v. Tex. E. Transmission, LP, 98 A.3d 624, 629 (Pa.Super. 2014)).
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whether it is a reservation of the royalty payments received from the
extraction of gas and oil from the Property. If it is an exception, as Gemmell
contends, then it excepted a real-property right to the oil and gas from the
deed that would survive the death of the grantor. If, however, it is a
reservation, as Landowners contend and the trial court implicitly found, then
it reserved a right to personal property – the royalty payments – that did not
survive the death of the grantor.
When interpreting a deed:
[A] court’s primary object must be to ascertain and
effectuate what the parties themselves intended. The
traditional rules of construction to determine that intention
involve the following principles. First, the nature and
quantity of the interest conveyed must be ascertained
from the deed itself and cannot be orally shown in the
absence of fraud, accident or mistake. We seek to
ascertain not what the parties may have intended by the
language but what is the meaning of the words they used.
Effect must be given to all the language of the instrument,
and no part shall be rejected if it can be given a meaning.
If a doubt arises concerning the interpretation of the
instrument, it will be resolved against the party who
prepared it. To ascertain the intention of the parties, the
language of a deed should be interpreted in the light of the
subject matter, the apparent object or purpose of the
parties and the conditions existing when it was executed.
Ralston, 55 A.3d at 742 (alteration in original) (quoting Butler v. Charles
Powers Estate, 29 A.3d 35, 40 (Pa.Super. 2011)).
This Court has explained:
The terms “exception” and “reservation” have been used
interchangeably in deeds. Walker v. Forcey, 396 Pa. 80,
151 A.2d 601, 606 (1959). A reservation pertains to
incorporeal things that do not exist at the time the
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conveyance is made. Id. See Lauderbach–Zerby Co. v.
Lewis, 283 Pa. 250, 129 A. 83, 84 (1925) (reservation is
creation of a right or interest that did not exist prior to
grant). However, even if the term “reservation” is used, if
the thing or right reserved is in existence, then the
language in fact constitutes an exception. Walker, 151
A.2d at 606; Silvis v. Peoples Natural Gas Co., 386 Pa.
453, 126 A.2d 706, 708 (1956) (where no new rights are
created, language treated as exception). If there is a
reservation, it ceases at the death of the grantor, because
the thing reserved was not in existence at the time of
granting and the thing reserved vests in the grantee. Id.
An exception, on the other hand, retains in the grantor the
title of the thing excepted. Id. Because the exception
does not pass with the grant, it demises through the
grantor’s estate absent other provisions. Id. at 709.
Ralston, 55 A.3d at 741-42. The Pennsylvania Supreme Court has found
that:
[T]he rule in Pennsylvania that the lease of coal in place
with the right to mine and remove all of it for a stipulated
royalty vests in the lessee a fee. It is a necessary
corollary that if the fee to the severed coal is vested in the
lessee no interest in the coal as real property remains in
the lessor and that his only interest therein is personal
property. The lessor’s interest in the lease is properly
termed a possibility of reverter.
Smith v. Glen Alden Coal Co., 32 A.2d 227, 233 (Pa. 1943) (footnote
omitted). Further, this Court has stated:
A lease of minerals in the ground is a sale of an estate in
fee simple until all the available minerals are removed; this
leaves the lessor with only an interest in the royalties to be
paid under the lease, which are personal property.
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Snyder Bros., Inc. v. Peoples Nat. Gas Co., 676 A.2d 1226, 1230
(Pa.Super. 1996) (emphasis omitted).5
We conclude that the 1919 Deed created a reservation of the royalty
payments from the oil and gas leases then in effect. The 1919 Deed
“reserv[ed]” one-half of the “royalty” payments, not one-half of the oil and
gas itself. The payments, unlike the oil and gas, were “incorporeal things
that [did] not exist at the time the conveyance [was] made.” Ralston, 55
A.3d at 741.6 Therefore, the deed created a reservation of a right to
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5
Gemmell relies on Duquesne Natural Gas Co. v. Fefolt, in which
this Court held that:
We agree with the court below that the property interest
reserved, viz: ‘. . . one-eighth (1/8th) part of all gas sold
from each well . . .’ as is described in the oil and gas lease
in this case is real property. Penn-Ohio Gas Company v.
Franks' Heirs, 322 Pa. 233, 185 A. 280 (1936);
Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 A. 207,
26 L.R.A., N.S., 614 (1909). If the transfer of the oil and
gas rights to the company conveys realty it seems to
clearly and logically follow that the reservation clearly set
forth in the agreement of a portion of that gas and oil to
the grantors must also be realty even though payment was
provided by royalties on delivery.
198 A.2d 608, 610 (Pa.Super. 1964). However, as discussed above, the
Pennsylvania Supreme Court and the more recent cases from this Court
support the conclusion that the reservation of royalties from the production
of coal and from the production of oil and gas creates a personal right, not a
property right.
6
When interpreting a similar deed provision, the Court of Common
Pleas of Washington County explained:
(Footnote Continued Next Page)
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personal property that did not survive the death of the grantor. See Smith,
32 A.2d at 301; Snyder Bros., Inc., 676 A.2d at 1230. Accordingly, we
conclude that the trial court did not err as a matter of law in granting
Landowner’s summary judgment motion.
Order affirmed.
_______________________
(Footnote Continued)
In such a lease, the oil and gas money payments are not
for the minerals in place but are payable only when
produced or raised to the surface. Hence, when part of
this royalty is reserved by the grantor, something is
effected which was not in esse before. Although provision
had been made for payment of royalties, they are not
actually payable until the oil and gas are raised to the
surface in paying quantities; and although payments had
already been made to the grantors before grant of the land
to Wyels, and thereafter until the death of both Mr. and
Mrs. Luellen, yet each payment would be dependent upon
continued production of the wells, and is not due until the
minerals, gas and oil, are separated from the land and
raised to the surface. Hence, something new has been
created, a money royalty dependent upon continuing
production. It is, therefore, properly classified as a
“reservation”, and in order to pass this right or royalty to
the heirs must necessarily have words of inheritance
attached. Since none was employed, the reservation of
the right to royalties ceased on the death of the grantors.
In re Luellen Estate, 43 Pa.D.& C.2d 467, 473-74 (C.P. Washington 1967).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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