Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Thomas E. Proctor Heirs Trust

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF : CIVIL ACTION NO. 1:12-CV-1567

PENNSYLVANIA, PENNSYLVANIA :

GAME COMMISSION, : (Chief Judge Conner)

:

Plaintiff :

:

v. :

:

THOMAS E. PROCTOR HEIRS :

TRUST and MARGARET PROCTOR :

TRUST, :

:

Defendants :

MEMORANDUM1

Millions of acres of Pennsylvania land are situated above the Marcellus

Shale, an underground sedimentary rock formation spanning multiple states and

containing massive reserves of natural gas. Experts conservatively value that gas in

the hundreds of billions of dollars. Relatively new methods of drilling—most

notably hydraulic fracturing or “fracking”—have unlocked the potential to tap these

subsurface gas reserves. To no one’s surprise, the ability to reach this lucrative

natural resource has engendered sophisticated ownership disputes like the one

before this court.

1 This memorandum is issued in accordance with the court's order (Doc. 182)

of April 21, 2020, granting defendants’ motion for reconsideration. This

memorandum supersedes the court's vacated memorandum (Doc. 165) of December

18, 2019, in all respects.

Plaintiff, Commonwealth of Pennsylvania, Pennsylvania Game Commission

(“Game Commission”), claims that it owns both the surface and subsurface rights

for numerous tracts of land in Sullivan and Bradford Counties in northeastern

Pennsylvania. Defendants, Thomas E. Proctor Heirs Trust and Margaret O.F.

Proctor Trust (collectively, “Proctor Trusts”) disagree, contending that they hold

superior title to the subsurface estates underlying these tracts. A lengthy and

complex legal battle has ensued, culminating in cross-motions for partial summary

judgment regarding a bellwether tract of land in Bradford County. (Docs. 94, 123).

Chief Magistrate Judge Susan E. Schwab issued an extensive report, (Doc. 155),

recommending that the cross-motions for summary judgment be denied. Both

parties have filed objections to Judge Schwab’s report.

I. Factual Background and Procedural History2

We need not repeat the comprehensive factual and procedural background

Judge Schwab supplied, (see Doc. 155 at 1-10, 19-24), familiarity with which is

presumed. The following is a consolidated version of undisputed facts most

pertinent to the parties’ objections and pending Rule 56 disputes. These factual

2 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.

A party opposing a motion for summary judgment must file a separate statement

of material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. Id. Unless otherwise

noted, the factual background herein derives from the parties’ Rule 56.1 statements

of material facts. (See Docs. 95, 121, 125, 129). To the extent the parties’ statements

are undisputed or supported by uncontroverted record evidence, the court cites

directly to the Rule 56.1 statements.

details primarily relate to the Josiah Haines warrant—the bellwether tract that is

the focus of cross-motions for partial summary judgment.

In 1893, Schrader Mining & Manufacturing Company conveyed the Josiah

Haines warrant—located in LeRoy Township, Bradford County—to Thomas E.

Proctor (“Proctor”) and Jonathan A. Hill (“Hill”). (Doc. 95 ¶ 5). The following year,

Proctor and Hill and their wives deeded the property to Union Tanning Company

(“Union Tanning”), “reserving” the subsurface rights to minerals, oil, gas, coal, and

petroleum (hereinafter “mineral rights” or “subsurface estate”).3 (Id. ¶¶ 8-9). This

conveyance effectively severed the surface and subsurface estates of the Josiah

Haines warrant, vesting those rights in separate owners. In 1903, Union Tanning

conveyed its surface ownership interest in the Josiah Haines warrant to Central

Pennsylvania Lumber Company (“CPLC”), excepting the rights to certain tree bark

and conveying the property “subject to” all prior exceptions and reservations. (Id.

¶¶ 13-15). In June 1908, Calvin H. McCauley, Jr. (“McCauley”), purchased the

3 Proctor and Hill used the term “reserving” in their 1894 deed to Union

Tanning, but they should have used “excepting” with regard to their preservation of

mineral rights. The terms “reservation” and “exception” have distinct legal

meanings. A reservation in a deed creates a new right or interest in real property

that did not previously exist at the time of the conveyance. See Lauderbach-Zerby

Co. v. Lewis, 129 A. 83, 84 (Pa. 1925). A common example of a reservation is a newly

created easement for the grantor in land conveyed, which right did not exist before

the conveyance. See, e.g., Baptist Church in Great Valley v. Urquhart, 178 A.2d 583,

586 (Pa. 1962). An exception, on the other hand, retains for the grantor title to an

existing interest excluded from the transfer. See Lauderbach-Zerby Co., 129 A. at

84; Ralston v. Ralston, 55 A.3d 736, 741-42 (Pa. Super. Ct. 2012). An exception “is

always part of the thing granted, it is the whole of the part excepted” from the

conveyance. Lauderbach-Zerby Co., 129 A. at 84. Hence, it is more accurate to

state that Proctor and Hill “excepted” the mineral rights from their conveyance to

Union Tanning.

Josiah Haines warrant at the Bradford County treasurer’s sale (hereinafter “tax

sale” or “treasurer’s sale”) when the property was sold to recover unpaid taxes for

1907. (Id. ¶¶ 23, 25). Exactly what interest—whether only surface rights or both the

surface and subsurface estates—this 1908 tax sale conveyed is the gravamen of the

instant dispute.

In December 1910, McCauley and his wife—in consideration of a recited

payment of $1.00—quitclaimed all interest in numerous properties, including the

Josiah Haines warrant, to CPLC. (Id. ¶ 31). Finally, in 1920, CPLC conveyed its

interest in the warrant to the Game Commission, “subject to” the prior 1894 Proctor

and Hill mineral rights exception and any exceptions or reservations in the 1903

deed from Union Tanning to CPLC. (Id. ¶¶ 37-38).

Since 1980, Proctor’s heirs, who comprise the Proctor Trusts, have been

leasing the Josiah Haines warrant for oil and gas development. (Id. ¶¶ 46-47). The

Proctor Trusts and the Game Commission now seek to quiet title to the subsurface

estate of the warrant, asking the court to enter judgment as a matter of law as to

ownership thereof.

II. Legal Standards

A. Review of a Magistrate Judge’s Report and Recommendation

When a party objects to a magistrate judge’s report and recommendation, the

district court must review de novo the challenged portions of the report. 28 U.S.C.

§ 636(b)(1)(C); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); LOCAL RULE OF

COURT 72.3. Uncontested portions of the report are reviewed for “clear error on the

face of the record.” Clouser v. Johnson, 40 F. Supp. 3d 425, 430 (M.D. Pa. 2014)

(quoting Cruz v. Chater, 990 F. Supp. 375, 375-78 (M.D. Pa. 1998) (quoting FED. R.

CIV. P. 72(b) advisory committee’s note to 1983 amendment)).

B. Summary Judgment

Through summary adjudication, the court may dispose of those claims

that do not present a “genuine dispute as to any material fact” and for which a

jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a).

The burden of proof tasks the non-moving party to come forward with “affirmative

evidence, beyond the allegations of the pleadings,” in support of its right to relief.

Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court is to view the evidence “in

the light most favorable to the non-moving party and draw all reasonable inferences

in that party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir.

2014). This evidence must be adequate, as a matter of law, to sustain a judgment in

favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-89 (1986). Only if this threshold is met may the cause of action proceed.

See Pappas, 331 F. Supp. 2d at 315.

Courts are permitted to resolve cross-motions for summary judgment

concurrently. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008);

see also Johnson v. Fed. Express Corp., 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014);

10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2720 (3d

ed. 2015). When doing so, the court is bound to view the evidence in a light most

favorable to the non-moving party with respect to each motion. FED. R. CIV. P. 56;

Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245

(3d Cir. 1968)).

III. Discussion

The parties’ numerous objections to Judge Schwab’s report4 can be distilled

into several fundamental disagreements: first, whether Judge Schwab was correct

in determining that there is a genuine dispute of material fact as to the character—

seated or unseated—of the land constituting the Josiah Haines warrant when

assessed in 1907 and sold at the 1908 tax sale; second, whether there is a material

factual dispute regarding an agency relationship between the 1908 tax-sale

purchaser (McCauley) and CPLC; third, whether language in the 1920 deed

prevented the Game Commission from obtaining title to the subsurface estate; and

4 The parties filed their cross-motions for partial summary judgment shortly

after the Supreme Court of Pennsylvania issued its seminal decision in Herder

Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016). Judge Schwab, aware of the

importance of Herder Spring, provided a detailed recitation of the facts and

holdings of that case. (See Doc. 155 at 4-8). Accordingly, we presume familiarity

with Herder Spring and the “title wash” concept discussed at length therein. See

Herder Spring, 143 A.3d at 366-68.

fourth, whether federal due process concerns affect the validity of the 1908 tax sale.5

We address these intricate disputes seriatim.

A. Character of the Land

The Game Commission’s claim to the subsurface estate underlying the Josiah

Haines warrant relies entirely on the premise that the 1908 tax sale “washed” the

title and rejoined the previously severed surface and subsurface estates, thereby

giving good title to the entire warrant to McCauley, the tax-sale purchaser.

According to the Game Commission, Herder Spring’s endorsement of the title-wash

phenomenon squarely answers the ownership claims in this case. The Game

Commission contends that because the warrant was unseated and assessed as such,

and because there is no evidence that Proctor and Hill reported their subsurface

interest for separate assessment to the Bradford County commissioner, the warrant

5 Judge Schwab also addresses the Proctor Trusts’ motion to strike the Game

Commission’s expert evidence and recommends striking portions of that evidence.

(See Doc. 155 at 11-17 & nn.8-9). The Game Commission objects to this

recommendation, but after de novo review we are in complete agreement with

Judge Schwab’s analysis and conclusions, and we will adopt them as our own. In

particular, we note that the Game Commission misapprehends Rule 56 standards

and procedure when it repeatedly claims that the court is “the trier of fact.” (See,

e.g., Doc. 142 at 1, 5, 10; Doc. 158 at 17, 19). The court is not the trier of fact in this

case. That task is the sole province of a jury, and indeed a jury trial has been

demanded. (See Doc. 66 at 29). The court’s role at summary judgment is to

determine whether a genuine dispute of material fact exists such that trial is

required. See Anderson, 477 U.S. at 249. We acknowledge the Game Commission’s

related assertion that its expert’s report merely seeks to clarify the complex title-

transfer issues in this case. Nevertheless, we agree with Judge Schwab that the

conclusions set forth in the report regarding the legal effect of the 1908 tax sale and

ownership of the disputed mineral rights impermissibly usurp the role of the court

in this quiet title action.

was properly assessed as a whole in 1907 and sold as a whole at the 1908 treasurer’s

sale.

The Proctor Trusts counter that there is ample evidence that the Josiah

Haines warrant was actually seated in character when it was assessed for 1907

taxes. Thus, it was improperly sold as unseated at the 1908 treasurer’s sale.

According to the Proctor Trusts, the 1908 treasurer’s sale was void because of this

error, and the sale did not divest Proctor and Hill of their subsurface rights. Judge

Schwab found that there is a genuine dispute of material fact regarding the

character of the land when classified as unseated by the county assessor in 1907,

precluding summary judgment.

Our analysis of this classification dispute is informed by Pennsylvania’s

historical treatment of land as seated and unseated. Prior to 1947, Pennsylvania’s

real property taxing practices varied depending on whether land was noticeably

occupied or developed (“seated”) or wild and undeveloped (“unseated”). Herder

Spring, 143 A.3d at 363-64. This distinction directly impacted the parcel owner’s

potential tax liability. Owners of seated land could be held personally liable for the

taxes assessed on their plot. Id. at 364. Because unseated land was deemed to be in

its natural condition and owners often resided in another county or state, taxes for

unseated lands were “imposed on the land itself”; owners were not held personally

responsible. Id.; Northumberland County v. Phila. & Reading Coal & Iron Co., 131

F.2d 562, 565-66 (3d Cir. 1942). The county in which the unseated land was located,

consequently, could sell that land at a treasurer’s sale to recover any unpaid taxes—

“the logical method of collection.” See Northumberland County, 131 F.2d at 565-66.

County land assessors were responsible for “travers[ing] the county” to

determine whether land was seated or unseated and for reporting such distinctions

to the county commissioners for taxation purposes. Herder Spring, 143 A.3d at 364;

see also McCall v. Lorimer, 4 Watts 351, 353 (Pa. 1835). It was the duty of the

assessor to designate the land as seated if the assessor found “such permanent

improvements as indicate a personal responsibility for the taxes,” and, if no such

improvements were evident, to designate the land as “unseated.” Hutchinson

v. Kline, 49 A. 312, 313 (Pa. 1901) (per curiam); Dolph v. Everhart, 19 A. 431, 432-33

(Pa. 1890). Hence, the distinction between seated and unseated land was in the

“eye of the assessor.” Hutchinson, 49 A. at 313; Stoetzel v. Jackson, 105 Pa. 562, 567

(1884).

To prompt a “seated” designation, the appearance of the land itself must

have indicated a visible “substantial occupancy.” See Rosenburger v. Schull, 7

Watts 390, 394 (Pa. 1838). Substantial occupancy was evidenced by regular and

continuous use of the land. Watson v. Davidson, 87 Pa. 270, 270 (1878); see George

v. Messinger, 73 Pa. 418, 422-23 (1873). Importantly, neither actual residence nor

developments made to increase the value of the land were prerequisites to seating a

tract. Watson, 87 Pa. at 271, 274. Land could be seated if the property was used for

resource-extraction endeavors like lumbering or mining, so long as the landowner

or agent “carrie[d] on the business for so long a time and in such a manner

continuously, from year to year, as to show an actual and permanent occupancy of

the tract.” Id. at 274; see Herder Spring, 143 A.3d at 363 (citing Robert Grey

Bushong, Pennsylvania Land Law, Vol. 1 § 469(II) at 500-01 (1938)).

1. Game Commission’s Objection

The Game Commission objects to Judge Schwab’s determination that a

genuine dispute of material fact exists as to the character of the land for the 1907

assessment. The Game Commission contends that evidence offered by the Proctor

Trusts is insufficient as a matter of law to find the Josiah Haines warrant seated in

1907, and that Judge Schwab erred by holding otherwise. We disagree.

As Judge Schwab noted, the Proctor Trusts have proffered competent

evidence that significant bark-peeling and lumbering activities occurred on the

Josiah Haines warrant in 1905, 1906, and 1907. In 1905, tanbark6 was harvested

from 60 acres of the warrant, yielding 300,900 net tons of bark and 189,500 feet of

hemlock lumber. (Doc. 95 ¶ 18). The following year, tanbark was harvested from

201 acres, producing 1,000,000 net tons of bark. (Id. ¶ 19). Finally, in 1907, tanbark

was harvested from 149.5 acres, yielding 104,300 net tons of bark. (Id. ¶ 20).

What both parties fail to observe is that, when these annual bark-peeling

figures are added together, they equal 410.5 acres—the exact acreage of the Josiah

Haines warrant. (See, e.g., Doc. 97-1 at 43; Doc. 98-1 at 70, 71, 92, 101). In other

words, by 1907, CPLC had stripped the entire Josiah Haines warrant—section by

section—of all its hemlock bark. This conclusion is buttressed by CPLC’s plat

6 The bark from hemlock, which contains high levels of tannin, was utilized

extensively in the tanning industry in northeastern United States in the 1800s and

early 1900s. For an expansive discussion of this process, see Hugh O. Canham,

Hemlock and Hide: The Tanbark Industry in Old New York, NORTHERN WOODLANDS,

Summer 2011, https://northernwoodlands.org/articles/article/hemlock-and-hide-the-

tanbark-industry-in-old-new-york.

“No. 15,” which divides the warrant into three distinct sections and indicates that a

different portion was “peeled as of” 1905, 1906, and 1907, resulting in the whole

warrant being peeled by 1907. (See Doc. 104-7 at 2). It is likewise corroborated by

the December 9, 1920 affidavit of A.R. Spicer, “First Vice President” and “General

Land & Timber Superintendent” of CPLC, who averred that “all of the Hemlock

bark has been removed from” the “410.5” acres comprising the Josiah Haines

warrant. (Doc. 98-1 at 100-01).

It is true that the Proctor Trusts have provided little in the way of describing

how the land may have appeared to an assessor following CPLC’s bark-peeling

activities. Nonetheless, scholars have indicated that hemlock peeling could have

substantial effects on the character of the land. As explained by Hugh O. Canham,

emeritus professor of forest and resource economics at the S.U.N.Y. College of

Environmental Science and Forestry, the common method of harvesting tanbark

was to cut down the hemlock trees, strip their bark, and leave the wood—which was

less desirable than pine—to “rot in the forest.” Canham, Hemlock and Hide: The

Tanbark Industry in Old New York, supra note 6. This process resulted in “clearcut”

hemlock forests and “denuded hillsides, with rotting hemlock trees stripped of their

bark[.]” Id. “Each acre of these woods produced only twelve cords of bark,

meaning that the average tannery consumed more than one hundred acres each

year. Immense waste resulted, as the strippers took only the bark, leaving the

bared logs to rot in the woods.” Robert Kuhn McGregor, Changing Technologies

and Forest Consumption in the Upper Delaware Valley, 1790-1880, 32 J. FOREST HIST.

69, 77 (1988). Indeed, tanneries’ extensive hemlock-bark consumption “devastated

large portions of the region’s forests.” Id. Additionally, due to the dusk-to-dawn

nature of peeling work, bark peelers would “set up camps in the forest” during the

peeling season, harvesting tanbark and sending it off to tanneries via horse-drawn

wagons or sleds. Canham, Hemlock and Hide: The Tanbark Industry in Old New

York, supra note 6.7

We have little doubt that a reasonable juror could find that when the Josiah

Haines warrant was assessed for taxes in 1907, the appearance of the land to the eye

of the assessor could have implicated a “seated” designation. There is significant

evidence regarding “actual and permanent occupancy of the tract, with the use

thereof,” such that the assessor’s classification of the tract as unseated could

reasonably be questioned. See Watson, 87 Pa. at 270, 274. The Game Commission’s

argument that the facts in this case differ from those in Messinger and Watson is

unavailing. Under Pennsylvania law, what matters is not the type of improvement

or business being carried on, but “the permanent occupancy and possession with

the means afforded thereon for the collection of taxes.” Id. at 274. We cannot say

that timber removal coupled with sustained and comprehensive bark-peeling

activities on the Josiah Haines warrant would be insufficient to seat the land. Judge

Schwab’s determination on this account is not erroneous.

7 We do not rely on the cited scholarly articles as evidence in this case. We

provide this information simply to demonstrate that, were we to “give [the Proctor

Trusts] an opportunity to properly support or address” the bark-peeling process

and its effects on the land, such evidence could be supplemented. See FED. R. CIV.

P. 56(e)(1). We need not take this step, however, because of our conclusion in

Section III(A)(2), infra.

2. Permissibility of the Classification Challenge

Whether the Proctor Trusts can assert this argument to attack the 1908

treasurer’s deed over a century after the assessment and tax sale is a different

matter. After exhaustive review of relevant state and federal cases, as well as the

legislative history of the applicable statute, we conclude that the Proctor Trusts’

challenge is foreclosed by law.

Our starting point is the critical statute at issue, the Act of June 3, 1885 (“Act

of 1885 or “the Act”), P.L. 71, § 1, which provides:

All sales of seated or unseated lands within this

commonwealth which shall hereafter be made for

arrearages of taxes due thereon, shall be held, deemed

and taken to be valid and effective irrespective of the fact

whether such lands were seated or unseated at the time of

the assessment of such taxes. Provided, That nothing in

this act contained shall validate or authorize the sale of

any land which was in fact seated at the time of the

assessment of the taxes thereon, in any case where there

was sufficient personal property on the premises to pay

all the taxes assessed thereon, liable under the laws of this

commonwealth to have been seized therefor.

72 PA. STAT. AND CONS. STAT. ANN. § 5933. The first sentence of the Act generally

puts an end to attacking the validity of tax sales based on “the fact” of whether the

land was really seated or unseated at the time of its assessment. Its phrasing is

clear and unambiguous. However, the second sentence—the exception to the

general rule—has injected needless confusion into state and federal jurisprudence.

In Northumberland County v. Philadelphia and Reading Coal & Iron Co.,

131 F.2d 562 (3d Cir. 1942), the court of appeals examined this exception in the

context of a corporate-reorganization bankruptcy appeal; the case did not involve

validity of a tax-sale title. The debtor coal company claimed that, because land

which it had owned but had failed to pay taxes on for years 1937 and 1938 had been

assessed as unseated, it was not liable for those taxes and was not obligated to pay

them as an administrative expense. Northumberland County, 131 F.2d at 563-64.

The county rejoined that, although placed on the unseated list, the land was “in fact

seated” and the county had evidence to prove it; thus, the coal company was

obligated to pay the county approximately $174,000 in overdue taxes. Id. at 564.

The court described the question before it as “whether there is personal liability on

the part of the owner for taxes assessed upon Pennsylvania land which has been

assessed as unseated but which was at the time of assessment in fact seated.” Id.

After a lengthy recitation of tax treatment of unseated land in Pennsylvania,

the court agreed with the county. Id. at 564-66. It explained that the Act of 1885,

“while validating sales of lands as seated or unseated which were not so in fact,

made it clear that the validation did not extend to lands which were in fact seated if

there was sufficient personal property on the premises liable to pay the taxes.” Id.

at 567. The court then broadly pronounced, “The act . . . clearly contemplated

that the true character of the land as seated should always be open to inquiry in

determining the validity of proceedings taken to collect the taxes upon it.” Id.

(emphasis added). The court thus held that it was error to reject “evidence as to the

actual character of the land” at the time of assessment and remanded the case for a

further hearing to “determine whether the lands here in controversy were in fact

seated or unseated.” Id. at 568.8

Conspicuously absent from the Northumberland County decision is any

discussion of Pennsylvania cases which interpreted and applied the Act. See id. at

564-68 & nn.12-15 (citing Pennsylvania cases dating from 1822 to 1869). The

Northumberland County court mentions only a single Pennsylvania case postdating

the Act: Dolph v. Everhart, 19 A. 431 (Pa. 1890). See id. at 566, 568 n.19. But Dolph

is cited merely to describe how a tract is determined to be seated or unseated, not

when or how challenges to such a determination can be asserted following a tax sale

of the land, as informed by the Act of 1885. See id.

This omission is a glaring one. Multiple Pennsylvania appellate court cases

have directly addressed ramifications of the Act of 1885 on assessor classifications of

land as well as the validity of subsequent tax-collection proceedings. Most notably,

eight months before the Third Circuit decided Northumberland County, the

Pennsylvania Supreme Court analyzed these salient issues in Scott v. Bell, 25 A.2d

308 (Pa. 1942). Scott is directly on point and it controls our determination in the

instant case.

8 The Northumberland County court’s reliance on numerous Pennsylvania

cases predating the Act of 1885 undoubtedly informed this conclusion. See id. at

564-68 & nn.12-15 (citing Pennsylvania cases spanning from 1822 to 1869). Those

decisions, which permitted fact-intensive challenges to assessors’ classification of

land (and often resulted in tax titles being invalidated), were part of the impetus for

the Act. See Scott v. Bell, 25 A.2d 308, 309, 310 (Pa. 1942).

In Scott, the state supreme court considered whether the deed from a

treasurer’s sale of unseated land could be attacked as invalid by proffering evidence

that “the lots when assessed were in fact seated land.” Scott, 25 A.2d at 309. The

trial judge had considered evidence of the land’s appearance and found, as a fact,

that the land was unseated in character. Id. Based on this factual finding, the trial

court held that the treasurer’s sale passed good title to the tax-sale purchaser. Id.

The supreme court concluded that such factual findings were unnecessary

because the Act of 1885 controlled and validated the treasurer’s deed. Id. The court

first observed that, prior to the Act’s passage, “the sale of land as unseated when it

was in fact seated, or the converse, passed no title[.]” Id. (citations omitted). But by

enacting this statute,

the legislature in effect provided . . . that where land was

“regularly assessed, either as seated or unseated, and

where the procedure leading up to the sale was regular

and followed the assessment, then the sale so made should

be valid and effective, ‘irrespective of the fact whether

such lands were seated or unseated at the time of the

assessment;’ in other words, irrespective of whether the

assessor, in determining the status of the property made a

mistake or not.” That act made an important change in

the law by validating sales which followed the assessment

and it furnished some protection to purchases at tax sales

by foreclosing litigation as to whether the assessor had

erred in determining whether the land was in fact seated or

unseated, a question which was often close and technical.

Id. (emphasis added) (quoting Pittsburgh Hunting Club v. Snyder, 51 Pa. Super.

174, 182 (1912)). Prior to the Act of 1885, the court explained, determining whether

land was seated or unseated in character was “highly technical” and often created

an issue of fact for the jury, which “led to so much litigation that the tax titles were

looked on with suspicion and the collection of taxes was made difficult.” Id. The

Act of 1885 was intended to address these concerns and to “declare that . . . it

should not be necessary or material to go behind the assessment and inquire into its

correctness.” Id. at 310 (alteration in original) (quoting Snyder, 51 Pa. Super. at

181).

Scott provides insight not only into the legislative intent behind the Act of

1885, but also as to what its exception means. Scott implies that the exception

operated to invalidate tax sales in the rare situation where land was regularly

assessed as seated or unseated but then sold at a tax sale as the opposite, failing to

“follow” its assessment. See id. at 309 (citing Snyder, 51 Pa. Super. at 182). A

perfect illustration of these circumstances is provided in Snyder, the Pennsylvania

Superior Court case cited extensively by Scott.

In Snyder, the land at issue had been regularly assessed as seated from 1894

to 1900 and the hunting club owners had paid the taxes levied on them each year.

Snyder, 51 Pa. Super. at 178. In 1900, although the land was again assessed as

seated and placed on the seated list, the county supervisor, “either by mistake or

ignorance of his proper function,” returned the land as unseated to the county

treasurer for an unpaid road tax. Id. The property was then sold as unseated for

unpaid 1900 taxes by the county treasurer at a 1902 tax sale, and the hunting club

owners challenged the validity of that sale. Id. at 176, 178.

In holding that the treasurer’s deed did not pass title to the tax-sale

purchaser, the Snyder court was careful to explain why the Act of 1885 did not

validate the sale. See id. at 180-83. Prior to passage of the Act, the court noted,

“there naturally arose many contests as to whether or not a tract assessed, returned

and sold as unseated, was in point of fact seated land, or vice versa.” Id. at 181. The

court then reviewed the statute and its effect on such disputes, explaining that,

except in “the single instance covered” by the Act’s exception, “it should not be

necessary or material to go behind the assessment and inquire into its correctness.”

Id. at 181-82 (emphasis added). The court reasoned that when land is regularly

assessed as seated or unseated, and “where the procedure leading up to the sale

was regular and followed the assessment,” the tax sale would be valid and effective

“irrespective of whether the assessor, in determining the status of the property made a

mistake or not.” Id. (emphasis added). The case before the Snyder court was one of

those rare situations where the treasurer’s sale was invalid, despite the Act of 1885,

because the property at issue had been “suddenly shifted from its assessed class to

the other[.]” Id. at 182. That is, the land had been regularly characterized and

assessed as seated, but then suddenly sold by the county treasurer as unseated.

Because the sale did not follow the assessment, it was void. Id.

Similarly, in Weaver v. Meadville Lumber Manufacturing Co., 61 Pa. Super.

167 (1915), the court examined the validity of a tax sale for land assessed as seated

but “improperly returned as unseated” and “placed on the unseated land tax return

and sold as unseated land[.]” Weaver, 61 Pa. Super. at 169. The court found that

such a sale was void. Id. at 171 (citing Snyder, 51 Pa. Super. 174). The Weaver

court explained that the Act of 1885 “provided that the fact whether lands were

seated or not at the time of assessment, should not invalidate the assessment, in

other words, when a sale followed the assessment it was valid whether the assessor

had correctly named the land or not[.]” Id. at 170 (emphasis added). The court

reasoned that “[w]hen the assessor has by virtue of his office stamped the land as

seated or unseated, that fixes the method to be employed thereafter in the collection

of taxes against it.” Id. at 171. “[T]he class wherein [the land] was placed should be

consistently followed and . . . there could be no passage from one class to the other

or shifting from one class to the other” during tax-sale proceedings. Id. In

circumstances like Weaver and Snyder, where the tract was improperly shifted

from one classification to the other and did not follow the assessment, the

subsequent tax sale was not effective to pass title even when considering the Act of

1885. See id. at 170-71.

Finally, in Blair v. Pennsylvania Turnpike Commission, 33 A.2d 490 (Pa.

Super. Ct. 1943), which postdates Northumberland County, the Superior Court

examined the same issue: whether land clearly characterized and assessed as

seated, which was later sold as unseated for unpaid taxes, could convey good title to

the tax-sale purchaser. Blair, 33 A.2d at 493. Relying on Scott, the court held that

such a sale was ineffective to pass title. Id. The court reasoned that the Act of 1885

generally validated tax sales “where the land is regularly assessed, either as seated

or unseated, and where the procedure leading up to the sale is regular and follows

the assessment . . . whether the land was seated or unseated at the time of the

assessment.” Id. (citing Scott, 25 A.2d 308). The Blair court cautioned, however,

that “the sale must follow the assessment in order to be valid, and there can be no

valid sale of land for taxes on unseated land, where the assessment was on seated

land.” Id. (emphasis added). The court further emphasized that there existed

“ample personal property” on the land in the form of cut stone to pay any taxes

owed. Id.

The only case we have uncovered reaching a different result is Bannard

v. New York State Natural Gas Corp., 293 A.2d 41 (Pa. 1972). Bannard is easily

distinguishable. In Bannard, a newly created subsurface estate—which had no

development, improvement, or mineral extraction until 1957—was assessed and

erroneously placed on the seated list in 1900. Bannard, 293 A.2d at 44, 49-50. The

surface tract also appeared on the seated list that year. Id. at 44. In 1901, the seated

list indicated that the mineral estate had been moved to the unseated list, but there

is no evidence that this change in designation ever occurred. Id. Thus, from 1901 to

1915, the mineral estate continued to be assessed as seated and to appear on the

seated list. Id. at 44-45.

In 1916, the mineral tract was sold as unseated by the county treasurer for

unpaid 1913 and 1914 taxes. Id. at 45. The Bannard court held that the mistaken

placement of the undeveloped mineral tract on the seated list did not invalidate the

treasurer’s sale of the property as unseated, finding that “unseated” was the

manner in which the mineral tract “should have been assessed for tax purposes.”

Id. at 50 (citing Act of 1885; Blair, 33 A.2d at 493; Scott, 25 A.2d 308). The court

concluded that “because of the [Act of 1885], the assessment of the tract on the

seated list was not fatal to the title acquired” from the 1916 treasurer’s sale. Id.

Blair, however, holds the opposite, to wit: “[T]he sale must follow the assessment in

order to be valid, and there can be no valid sale of land for taxes on unseated land,

where the assessment was on seated land.” Blair, 33 A.2d at 493; see also Snyder,

51 Pa. Super. at 182 (explaining that a tract cannot be “suddenly shifted from its

assessed class to the other” at a tax sale). Because the mineral estate had unseated

characteristics and was supposed to be moved to the unseated list but erroneously

never was, the Bannard court found that such a minor error was not a fatal defect

to the treasurer’s deed acquired by the tax-sale purchaser. See Bannard, 293 A.2d

at 44, 50. The facts of Bannard are obviously different from the case at bar, and we

do not waver in our application of Scott to the instant issue. See infra pp. 22-23.

Legislative history from the time of the Act’s passage in the Pennsylvania

Senate is consonant with our conclusions. When asked to explain the bill,

Pennsylvania Senator James Wilson Lee provided the following synopsis:

There is a division of lands in making assessments into

seated and unseated. That distinction is very clear in the

law, but it is very little understood by assessors. Very

frequently land is assessed as seated when it is really

unseated, and assessed as unseated when it is really

seated. As every one knows who is acquainted with this

law, if the land is sold as unseated when it is really seated,

that is a defect in the title and no title is passed. In

counties like Venango, tract numbers are not kept very

distinctly, there is a great deal of land that is not assessed

properly, there is hardly one sale in ten that is valid, simply

because of this defect in assessment. The lands are sold as

seated when they are actually unseated, and sold as

unseated when they are actually seated. That renders the

treasurer’s sale invalid. There is no reason why that sort of

defect should render the sale invalid. . . . It renders many

treasurers’ sales uncertain and, there should be some

amendment provided.

LEGIS. REC., S. 110th Assy., 1st Sess., at 2089 (Pa. May 28, 1885) (emphasis added).

Senator Lee’s remarks indicate that assessors frequently misclassified land and that

these classification errors were creating numerous title defects, engendering

uncertainty in tax-sale titles. Hence, the backdrop of the Act of 1885 adds clarity to

its purpose, namely: to remedy title-defect issues created by assessors’ chronic

misclassifications of land.

Pennsylvania cases, together with the Act’s legislative history, counsel that

assessor-classification mistakes, which occurred regularly, are irrelevant so long as

the tax sale was regular and followed the assessment. The Act drastically reduces

the need “to go behind the assessment and inquire into its correctness.” Scott, 25

A.2d at 310 (quoting Snyder, 51 Pa. Super. at 181). In sum, it permits a challenge to

the validity of tax-sale proceedings based on the land’s classification only in rare

circumstances where (1) land was characterized and assessed as seated and then

improperly sold for unpaid taxes as unseated, or vice versa; and (2) in the case of

seated land being sold as unseated, there was sufficient personal property on the

land to pay the taxes.

The case sub judice is nearly identical to Scott, which compels our conclusion

on this state-law issue. See West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)

(“[T]he highest court of the state is the final arbiter of what is state law. When it has

spoken, its pronouncement is to be accepted by federal courts as defining state

law[.]”); Hunt v. U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir. 2008) (“[T]he state’s

highest court is the best authority on its own law.” (citation omitted)). From 1895 to

1907, the Josiah Haines warrant was assessed as unseated and regularly appeared

on the Bradford County unseated assessment books. (See Doc. 99-1 at 15; Doc. 100-

1 at 3, 7, 11, 15, 19; Doc. 101-1 at 3, 6, 9, 12, 15; Doc. 102-1 at 3, 6). The property was

then sold as unseated at the 1908 treasurer’s sale for unpaid 1907 taxes, following its

regular unseated designation and assessment. The Proctor Trusts contend that the

assessor’s classification of the warrant in 1907 was a mistake because substantial

bark-peeling and logging activities seated the land, and, consequently, the 1908

treasurer’s sale of the land as unseated was void. This contention is the

quintessential post-hoc, fact-intensive challenge to the assessor’s classification (and

validity of the subsequent tax sale) that is foreclosed by the Act of 1885 and Scott.

Even if the Bradford County assessor was mistaken about the character of

the Josiah Haines warrant in 1907, the Proctor Trusts cannot challenge the validity

of the treasurer’s sale by proffering evidence that the assessor misclassified the

tract. See Scott, 25 A.2d at 309; Snyder, 51 Pa. Super. at 182; Keta Gas & Oil Co.

v. Proctor, No. 1975 MDA 2018, 2019 WL 6652174, at *3-4 (Pa. Super. Ct. Dec. 6,

2019) (nonprecedential) (citing Scott, 25 A.2d at 309). Permitting this specific

method of collateral attack would ignite endless litigation concerning technical,

fact-based determinations made by assessors in centuries past. See Scott, 25 A.2d

at 309. It would concomitantly call into question the validity of innumerable tax-

sale titles that followed such assessments. These are the precise problems the

General Assembly endeavored to remedy by passing the Act of 1885. See id. at 309,

310.

B. Agency and 1908 Treasurer’s Sale

The parties’ second fundamental point of contention involves the intricacies

of the 1908 tax sale. The Proctor Trusts assert that McCauley, the tax-sale

purchaser, was acting as an agent for CPLC when he bought the Josiah Haines

warrant from the county treasurer. They maintain that his purchase of the

property at the tax sale—for a sum that equaled the unpaid taxes and costs—

amounted to nothing more than a redemption, giving CPLC exactly the same title it

held prior to the treasurer’s sale.9 In other words, CPLC, through McCauley,

redeemed its surface interest only and did not divest Proctor and Hill of their

subsurface rights.

Judge Schwab found that there is a genuine dispute of material fact as to

McCauley’s status as an agent for CPLC. Judge Schwab also determined that if the

land were unseated in character, it would not matter whether McCauley was an

agent of CPLC; the 1908 tax sale was not a redemption because CPLC was not

barred from acquiring both the surface and subsurface estates at the sale (whether

directly or through an agent).

The Game Commission argues that Judge Schwab erred by concluding that

there is a genuine factual dispute as to whether McCauley was acting as CPLC’s

agent. The Proctor Trusts challenge Judge Schwab’s conclusion that if the land

were unseated, McCauley’s status as an agent is irrelevant.

1. Question of Agency

We begin with a brief recitation of the title-transfer details. In 1894, the

surface and subsurface estates of the Josiah Haines warrant were severed when

Proctor and Hill conveyed the surface estate to Union Tanning and retained the

mineral rights. CPLC bought the surface estate from Union Tanning in 1903.

9 A redemption operates to “set aside or annul” the tax sale, leaving the title

“precisely as though the sale had not been made.” Yocum v. Zahner, 29 A. 778, 779

(Pa. 1894).

When taxes were not timely paid on the Josiah Haines warrant in 1907, the

property10 was sold by the county treasurer at the 1908 unseated-land tax sale for

unpaid 1907 taxes. McCauley purchased the property at that tax sale and, two years

later, quitclaimed it to CPLC, who later conveyed it to the Game Commission.

The corresponding tax records from the Bradford County unseated land

assessment books provide the following relevant information. Each year from 1895

to 1902, Union Tanning paid taxes to Bradford County on the Josiah Haines

warrant.11 (Doc. 99-1 at 15; Doc. 100-1 at 3, 7, 11, 15, 19; Doc. 101-1 at 3, 6).

Beginning in 1903 and continuing through 1906, CPLC regularly paid the taxes on

the property. (Doc. 101-1 at 9, 12, 15; Doc. 102-1 at 3). For the 1907 tax year, the

notation in the assessment books where tax-payment information was normally

entered indicates that the property was “sold” on June 8, 1908, to “Calvin H.

McCauley Jr.” (Doc. 102-1 at 6). Thereafter, for tax years 1908 through 1910, taxes

on the Josiah Haines warrant were once again regularly paid by CPLC. (Doc. 102-1

at 10; Doc. 104-1 at 3, 6).

10 As noted earlier, exactly what interest in the Josiah Haines warrant was

conveyed at the 1908 tax sale is the ultimate issue in this case and is discussed in

detail infra.

11 For tax years 1895 and 1896, the Bradford County unseated land

assessment books inadvertently referred to the 410-acre Josiah Haines warrant as

the “Joseph Haines” warrant. (See Doc. 99-1 at 15; Doc. 100-1 at 3). That error was

corrected in 1897, (see Doc. 100-1 at 7), and the entries remained accurate through

1901, (see id. at 11, 15, 19; Doc. 101-1 at 3). Beginning in 1902 and continuing

through 1906, the tract is again mislabeled as the “Joseph Haines” or “Joseph

Hines” warrant in the unseated assessment books. (See Doc. 101-1 at 6, 9, 12, 15;

Doc. 102-1 at 3). For tax years 1907 through 1910, the name is once more corrected

to “Josiah Haines.” (See Doc. 102-1 at 6, 10; Doc. 104-1 at 3, 6).

The Game Commission posits that, because the evidence of McCauley’s

agency proffered by the Proctor Trusts was not “in the public record of Bradford

County” and thus not available to a title examiner, it has no bearing whatsoever on

the validity of the 1908 tax-sale title. (See Doc. 157 ¶¶ 30-34; Doc. 158 at 15).

According to the Game Commission, the public record of Bradford County at the

time of the 1908 tax sale “is the only relevant record,” so there is no evidence

probative of McCauley’s purported agency. (Doc. 158 at 16). For this sweeping

proposition, the Game Commission relies exclusively on Proctor v. Sagamore Big

Game Club, 166 F. Supp. 465 (W.D. Pa. 1958), aff’d, 265 F.2d 196 (3d Cir. 1959). That

reliance is misplaced.

We first note that Sagamore is a six-decades-old case from the Western

District of Pennsylvania that is not binding on this court. More importantly, it is

entirely inapposite. In Sagamore, following a 1914 tax sale at which McCauley

purchased the at-issue property, he conveyed the parcel to bona fide third-party

buyers, the Eisenhuths.12 Sagamore, 166 F. Supp. at 479. He did not quitclaim the

property back to CPLC following the two-year redemption period, as occurred in

the case at bar.

The Game Commission takes the Sagamore court’s focus on the public

record out of context. In Sagamore, the court was concerned with the contents of

12 As in the case sub judice, CPLC was the record owner prior to the 1914 tax

sale. See Sagamore, 166 F. Supp. at 479. We note that there was a prior tax sale of

the property, see id. at 468-69, but this fact has no bearing on the Game

Commission’s “public record” argument.

the public record because the dispositive agency-related question was whether the

Eisenhuths could have known of McCauley’s alleged agency and any possible title

defect it may have created. See id. at 479-80. Finding that the public record

controlled, the court referenced cases addressing notice of title defects in relation to

good-faith purchasers for value. Id. (citing Pa. Range Boiler Co. v. City of

Philadelphia, 23 A.2d 723 (Pa. 1942); Woods v. Farmere, 7 Watts 382, 385 (Pa. 1838)).

Sagamore and the cases it cites are irrelevant to our analysis because there was no

independent, third-party purchaser in the matter at bar. McCauley quitclaimed the

property back to CPLC for a recited payment of $1.00. Consequently, and unlike

the Eisenhuths in Sagamore, CPLC would have had actual notice of McCauley’s

agency if such a relationship existed. The public record, therefore, is not “the only”

relevant source of information or evidence on the question of agency.

We agree with Judge Schwab that the Proctor Trusts have put forth

considerable evidence that McCauley was acting as an agent for CPLC when he

bought the Josiah Haines warrant at the 1908 tax sale. (See generally Doc. 95 ¶ 26).

For instance, from 1904 to 1916, McCauley purchased at tax sales more than 100

properties that were previously owned by CPLC and later quitclaimed those tracts

back to CPLC. (See id. ¶ 27). CPLC’s articles of incorporation and other internal

documents, as well as additional historical records predating the tax sale, identify

McCauley as CPLC’s “Real Estate Agent.” (See id. ¶ 26(a)-(i); Doc. 121 ¶ 26(a)-(i)).

McCauley also appeared as an attorney for CPLC in state court proceedings shortly

after the time of purchase. (Doc. 95 ¶ 26(l)). In 1914, McCauley even executed a

notarized declaration stating that he was acting in trust for CPLC when he

purchased six properties in Elk County from the county treasurer using funds

provided by CPLC. (Id. ¶ 26(o)). Perhaps most significantly, following McCauley’s

acquisition of the tract at the 1908 tax sale, CPLC, not McCauley, paid the property

taxes in 1908, 1909, and 1910. (Doc. 102-1 at 10; Doc. 104-1 at 3, 6). The Game

Commission proffers no reason why a corporation would pay real estate taxes for

land it purportedly did not own. That this foregoing evidence was not recorded and

publicly available to a title examiner is of no moment. CPLC—McCauley’s alleged

principal—bought the property from McCauley in 1910 and had actual notice of any

purported agency that existed.13

2. Effect of Purported Agency

The question becomes whether the existence of an agency relationship

between McCauley and CPLC has any legal significance for the validity or scope of

the 1908 treasurer’s deed. We have already determined that the tract’s unseated

classification is not subject to the Proctor Trusts’ specific collateral attack, so our

analysis is necessarily confined to unseated land only. After comprehensive review

of the relevant law, we conclude that—under the facts of this case—McCauley’s

13 We are unconcerned with notice to subsequent buyers, namely the Game

Commission. The issue, as we discuss in more depth below, is what effect an

agent’s purchase may have on an unseated tax sale induced by his principal’s

default. Notice of a potential agency-related defect for later buyers is irrelevant

under circumstances like those presented here. If the tax sale acted as a

redemption only, there would be no rejoined subsurface to convey to subsequent

buyers. Proctor and Hill, moreover, recorded their excepted mineral interest when

it was originally severed. (See Doc. 97-1 at 6 (“PGCP 013632”)). So, if the title were

not washed but a later deed purported to convey the entire warrant, any buyer

would have had record notice of the existing Proctor and Hill exception. See 21 PA.

STAT. AND CONS. STAT. ANN. § 351.

agency status is relevant and material to determining what interest in the Josiah

Haines warrant was conveyed by the 1908 tax sale.

a. Scope of the 1907 Assessment

Judge Schwab determined that the record is devoid of evidence showing that

the 1907 assessment encompassed anything but the entire Josiah Haines warrant.

(See Doc. 155 at 70-83). Judge Schwab reasoned that there is no evidence that

Proctor and Hill ever separately reported their subsurface interest to the county

commissioners, that the mineral rights were ever independently assessed, that any

separate taxes were imposed or paid thereon, or that any challenge was raised to

the absence of a separate assessment. (See id.) Although we agree with these

findings, we conclude that other record evidence establishes a material factual

dispute as to the scope of the 1907 assessment and related 1908 tax sale.

Specifically, the Proctor Trusts have proffered competent evidence that

Union Tanning and CPLC reported their unseated surface interest to Bradford

County commissioners as required by the Act of March 28, 1806 (“Act of 1806”), P.L.

644, 4 Sm. L. 346, § 1, repealed and replaced by 72 PA. STAT. AND CONS. STAT. ANN.

§ 5020-409.14 That evidence consists primarily of numerous entries in the Bradford

County unseated land assessment books, which identify Union Tanning and CPLC

14 For a thorough discussion of the Act of 1806’s reporting requirements, see

Herder Spring, 143 A.3d at 368-69. Notably, Herder Spring held that this statute

imposed a duty to report only on one “becoming a holder of unseated land”; thus,

unseated landowners who severed and conveyed a portion of their property had no

affirmative duty to report their remaining interest because they were not

“becoming” holders of unseated land. Id. at 360, 368, 372 (quoting Act of 1806).

as the entities to which taxes were assessed and who subsequently paid those taxes.

See supra p. 25 and note 11.

The Game Commission has offered no alternative explanation as to how

Union Tanning and CPLC were named in the unseated assessment books and paid

assessed taxes if those entities had not reported their ownership interests to

Bradford County officials. And the Game Commission concedes that there is no

evidence that Union Tanning or CPLC improperly reported owning more than the

surface estate. (See Doc. 120 at 32; Doc. 162 at 7; Doc. 173 at 9). The Game

Commission argues, nonetheless, that the pertinent inquiry is whether a

“severance” was reported to county commissioners, and that the Proctor Trusts

have proffered no such evidence. (Doc. 120 at 26-29; Doc. 173 at 3-4). We find this

argument to be one of semantics rather than substance. Reporting a surface estate

for separate taxation or reporting a “severance” is a distinction without a

difference.

The facts in the instant case thus stand in sharp contrast to Herder Spring,

where there was “no evidence” that either party reported their respective unseated

interest to county commissioners following severance of the warrant at issue. See

Herder Spring, 143 A.3d at 360. Under such circumstances, the court concluded,

the warrant must have been assessed as a whole (and sold as a whole) because

county officials had never been directed otherwise. Id. at 360, 372, 375.

The same conclusion cannot be reached in the case at bar because there is

evidence that Union Tanning and CPLC reported their unseated surface interest to

Bradford County commissioners. In other words, there is record evidence that the

county commissioners were “otherwise directed by the owners” to assess separate

estates rather than the entire Josiah Haines warrant. Id. at 372. Accordingly, and

unlike Herder Spring, we cannot find as a matter of law that the 1907 assessment

must have encompassed the entire warrant. There is a genuine dispute of material

fact as to what was assessed in 1907 and sold in 1908.15

b. Duty to Pay Taxes on Unseated Land

Even if we could definitively conclude that the county treasurer properly

offered the entire Josiah Haines warrant at the 1908 tax sale, what was offered for

sale is not dispositive as to what interest this tax sale effectively conveyed.

Pennsylvania law instructs that “one cannot, by a purchase at a tax sale caused by

his failure to pay taxes which he owed the state, or which he was otherwise legally

or morally bound to pay, acquire a better title, or a title adverse to that of other

parties in interest[.]” Powell v. Lantzy, 34 A. 450, 451 (Pa. 1896) (emphasis added)

15 The Proctor Trusts argue that summary judgment must be granted in their

favor because, under any set of facts surrounding CPLC’s reporting, the law

mandates that no title wash occurred at the 1908 tax sale. For example, if CPLC

properly reported its surface interest, the law required the 1907 assessment to be

limited to CPLC’s surface estate; thus, any assessment and attempted sale of the

whole warrant—which was severed and separately owned by different parties—

would be invalid and transfer nothing at the tax sale. See Fisk v. Corey, 21 A. 594,

595 (Pa. 1891) (“A sale of several tracts of land, by the county treasurer, for the

payment of taxes as one tract, and for a gross sum, will confer no title upon the

purchaser; each tract must be sold separately.”). Or, if CPLC improperly reported

that it owned more than the surface, it would be equitably barred from gaining a

better title at a tax sale caused by its failure to pay 1907 taxes. See infra Section

III(B)(2)(b) (discussing Powell v. Lantzy, 34 A. 450 (Pa. 1896)). If CPLC failed to

report at all, it would be in violation of the Act of 1806 and, again, would be

precluded from improving its title at the 1908 tax sale. The problem with the

Proctor Trusts’ arguments is that they assume disputed factual predicates, such as

McCauley’s agency, which we cannot do at the Rule 56 stage of proceedings. See id.

(citing Chambers v. Wilson, 2 Watts 495 (Pa. 1834); Coxe v. Wolcott, 27 Pa. 154

(1856)). This rule “rests upon the principle that one cannot profit by his own wrong,

and build up or acquire a title founded upon his own neglect of duty.” Id. Instead,

such a purchase “operates as a payment only,” i.e., a redemption. Id. (citation

omitted). Application of this rule is limited to cases where the purchaser had some

preexisting duty—arising by law, contract, or equity—to pay the taxes. Id.

The Proctor Trusts maintain that CPLC breached its duty to pay 1907 taxes

on its land, caused the 1908 tax sale, and then used McCauley—its agent—to

attempt to improve its title by purchasing the warrant at that tax sale with the

subsurface purportedly rejoined. They contend that Powell explicitly bars this

practice, and therefore CPLC merely redeemed its surface interest at the tax sale.

The viability of this redemption-only argument hinges on whether CPLC had a duty

to pay the 1907 taxes on its unseated surface estate.

We briefly reiterate the relevant title history. CPLC bought the surface rights

from Union Tanning, which had purchased the newly created surface estate from

Proctor and Hill. There is competent evidence, primarily from the Bradford County

unseated land assessment books, that both Union Tanning and CPLC properly

reported their unseated surface interest to county commissioners as required by the

Act of 1806. It is also uncontested that in 1907, CPLC did not pay the assessed taxes

“due and owing,” thereby causing the property to be sold by the Bradford County

treasurer at the 1908 tax sale. (See Doc. 124 at 4; Doc. 125 ¶ 17).

We further observe that there is substantial evidence that CPLC deliberately

and strategically defaulted on its 1907 taxes. In the early 1900s, CPLC owned vast

amounts of land in Bradford County and beyond. (See, e.g., Docs. 99-1, 100-1, 101-1,

102-1, 104-1); Sagamore, 166 F. Supp. at 469; Cornwall Mountain Invs., L.P.

v. Thomas E. Proctor Heirs Tr., 158 A.3d 148, 150-51 (Pa. Super. Ct. 2017). The

corporation would fastidiously pay annual taxes assessed on its properties but then

suddenly fail to do so, causing a tax sale. (See Doc. 95 ¶ 16; Doc. 102-1 at 6; see

generally Docs. 99-1, 100-1, 101-1, 102-1, 104-1). CPLC’s president attested, as part

of the Game Commission’s purchase of other land, that CPLC “regularly and

continuously paid all taxes assessed and payable.” (Doc. 95 ¶ 16(e)). That is, of

course, until it didn’t. For the Josiah Haines warrant, default occurred in 1907, the

very same year that CPLC completed its extensive bark-peeling activities on the

tract. Even the Game Commission’s title attorney, in 1930s correspondence to

CPLC, asserted that CPLC’s defaults were strategic. (See Doc. 153 ¶¶ 63, 65, 67).

Viewing this evidence in a light most favorable to the Proctor Trusts, as

required at the Rule 56 stage, we are left with the following rendition of facts.

CPLC, surface owner of the unseated Josiah Haines warrant, reported its surface

interest pursuant to the Act of 1806 and regularly paid assessed taxes from 1903

through 1906. In 1907, after stripping the entire warrant of its valuable tanbark,

CPLC intentionally failed to pay the taxes assessed and due. As expected, CPLC’s

default induced a treasurer’s sale of the land the following year. CPLC then

employed McCauley, its agent, to (1) purchase that property, (2) hold it for the two-

year redemption period, and then (3) quitclaim it back to CPLC. With the title

ostensibly washed and the surface and subsurface rejoined, Proctor and Hill’s

mineral rights were extinguished and were now vested in CPLC. The entire

warrant, i.e., the reunited surface and subsurface, was subsequently conveyed to

the Game Commission approximately ten years later.

It is generally true that the owner of a surface or subsurface estate is not

barred from obtaining better title at a treasurer’s sale. See Herder Spring, 143 A.3d

at 367 (quoting Powell, 34 A. at 451 (quoting Coxe v. Gibson, 27 Pa. 160 (1856))). But

the Game Commission has not identified, and the court has not found, a case

applying this proposition to circumstances mirroring those presented here. No case

squarely considers whether, under the foregoing facts, an agent who purchases at a

tax sale induced by his principal’s default takes good title to the entire property or

simply redeems his principal’s prior interest.

For example, in Powell, the unpaid taxes that induced the treasurer’s sale

arose prior to the ownership of, and through no fault of, the tax-sale purchaser who

owned the surface estate at the time of the sale. See Powell, 34 A. at 451, 452.

Neither the surface nor the subsurface owner had a legal duty to pay the overdue

taxes, which had accrued on the land prior to severance during ownership by a

different individual. Id. In Hutchinson, taxes on unseated lands went unpaid in

1890 and 1891, before any involvement or ownership by the eventual 1892 tax-sale

purchaser. Hutchinson, 49 A. at 317. In Sagamore, delinquent taxes from 1892

induced the 1894 tax sale that divested Proctor of the interest he purchased in 1893.

Sagamore, 166 F. Supp. at 468-69, 476. And in Herder Spring, a bona fide third

party bought the entire warrant from the county, which the county had acquired in

fee simple at a tax sale after the prior surface and subsurface owners failed to report

their separate interests or pay taxes thereon. Herder Spring, 143 A.3d at 360-61.

Reinboth v. Zerbe Run Improvement Co., 29 Pa. 139 (1858), also presents

materially different circumstances. There, the 1840 tax-sale purchaser, Christopher

Geiger, held claim to the subject property based on prior conveyances, but there

were other putative owners who claimed title to portions of that land. Reinboth, 29

Pa. at 140, 144-45. The property went through two tax sales, one in 1824 and

another in 1840. Id. at 144-45. The 1824 tax-sale buyer was an unrelated third party

who purchased in good faith, and in 1829, Geiger directed his attorney to purchase

the property from the third-party buyer. Id. Geiger’s attorney then sought a

treasurer’s deed for the tract at the 1840 tax sale to eliminate any doubts as to

superiority of Geiger’s title. See id. at 142, 145. Reinboth is clearly distinguishable

because the first tax-sale purchaser was an independent third party.

A final case requiring consideration is Coxe v. Gibson, 27 Pa. 160 (1856), the

decision quoted by Powell for the proposition that “there [i]s nothing in reason or

law to prevent the holder of a defective title from purchasing a better one at a tax

sale.” Powell, 34 A. at 451 (quoting Gibson, 27 Pa. at 160, 165). In Gibson, William

A. Williams bought the subject property at a tax sale in 1850 for unpaid 1848 and

1849 taxes. Gibson, 27 Pa. at 160. Williams made the tax-sale purchase at the

direction of Eli Felt, who had privately purchased the same land in August 1848 and

conveyed it to the defendants early the following year. Id. at 162. Felt directed the

tax-sale purchase to “confirm and strengthen” his own title, which he had already

transferred to new buyers. Id. The Pennsylvania Supreme Court held that Felt was

not prohibited from perfecting, at a treasurer’s sale, his 1848 title, which he may

have deemed “suspicious” and “defective” due to possible fraud by its grantor. Id.

at 165. But again, Gibson is materially different because the unpaid taxes at least

partially accrued when Felt was not the owner, and because the tax-sale purchase

was intended to cure any title defects caused by potential fraud of a prior owner.

Finding no case on point, we revert to the original question raised by Powell:

whether CPLC owed any duty to pay the 1907 taxes such that McCauley’s

purchase—if he were an agent of CPLC—acted merely as a redemption. This issue

is purely a matter of state law, and we believe it has ramifications for other pending

and future real property disputes in the Commonwealth. In the absence of

controlling precedent, it is our task to predict how Pennsylvania courts would rule

if confronted with this issue. After careful consideration, we conclude that CPLC

owed a legal duty to pay taxes on its unseated surface estate; hence, CPLC could

not use an agent to “acquire a better title, or a title adverse to that of other parties

in interest,” at a tax sale prompted by its own default. Powell, 34 A. at 451.

It is beyond peradventure that unseated landowners faced no personal

liability for failing to pay taxes assessed on unseated land. Pennsylvania’s highest

court has repeatedly affirmed this legal principle for nearly 200 years. As early as

1822, the Pennsylvania Supreme Court acknowledged that “taxes on unseated

lands[] have never . . . been considered a charge on the person of the owner.” Burd

v. Ramsay, 9 Serg. & Rawle 109, 114 (Pa. 1822). In 1841, the court explained that

“the land itself, and not the owner of it, is debtor for the public charge,” and is

looked to for any overdue payment. Strauch v. Shoemaker, 1 Watts & Serg. 166, 175

(Pa. 1841) (quoting Fager v. Campbell, 5 Watts 287, 288 (Pa. 1836)). Fifty-five years

later, the Powell court reiterated that when taxes were assessed on unseated land,

“there was no personal responsibility on the owner therefor. The land alone was

liable.” Powell, 34 A. at 451 (citing Hunter v. Cochran, 3 Pa. 105 (1846) (per curiam);

Russel v. Werntz, 24 Pa. 337 (1855); Logan v. Washington County, 29 Pa. 373 (1857)).

In 1972, the Bannard court explained that, as to unseated land, “it is immaterial that

the name of the owner as given in the assessment is inaccurate, since no personal

liability is involved; the land, not the owner, is looked to for payment of delinquent

taxes.” Bannard, 293 A.2d at 49. Herder Spring recently reaffirmed this premise,

stating that “tax on unseated land was the liability of the land rather than the

owners.” Herder Spring, 143 A.3d at 375 (citations omitted).

Personal liability, however, is quite different than a duty to pay taxes.

Personal liability is a potential consequence for breaching a duty, such as failing to

pay taxes on seated land. See id. at 364 (citation omitted). Simply because the

Commonwealth imposed no personal liability or “personal responsibility” (as it was

sometimes referred to) on unseated landowners for failure to pay assessed taxes

does not mean that those owners had no duty to pay taxes in the first place.

To the contrary, courts in the Commonwealth have long recognized an

unseated landowner’s duty to pay taxes. In Herder Spring, the Pennsylvania

Supreme Court reaffirmed that, while the tax-sale regime for unseated land may

have appeared “harsh and severe” for landowners, “[a] vigilant owner has nothing

to fear. All he has to do is to pay his taxes, and this he is bound to do upon every

principle of equality and justice.” Herder Spring, 143 A.3d at 366 (emphasis added)

(quoting Strauch, 1 Watts & Serg. at 176). The Herder Spring court likewise quoted

M’Coy v. Michew, 7 Watts & Serg. 386 (Pa. 1844), for similar reasoning: “If there be

hardship, it is one which can easily be avoided by performing the duty which the

law imposes upon [the owner], to return the land and pay his taxes.” Id. at 369

(emphasis added) (alteration in original) (quoting M’Coy, 7 Watts & Serg. at 391).

And in Breisch v. Coxe, another case involving taxation of unseated land, the court

explicitly stated that “the payment of taxes is a duty, and a failure to perform it is the

fault of the owner.” Breisch v. Coxe, 81 Pa. 336, 346 (1876) (emphasis added); see

also Mayor of Philadelphia v. Riddle, 25 Pa. 259, 263 (1855) (noting that “it is an

owner’s duty to pay taxes” and failure to do so results in a tax sale of owner’s land).

The legal duty of owners to pay taxes on unseated land, which was firmly

established in the common law, was subsequently codified by statute. In 1887,

Pennsylvania’s General Assembly passed the Act of June 6, 1887, which mandates:

That after June first, [1888], all taxes levied upon unseated

lands, within the counties of this Commonwealth, shall be

paid by the owner or owners of such unseated lands within

the year for which the same are levied; and in case of the

refusal or failure of any person or persons, companies or

bodies corporate, owner or owners of such unseated lands

to pay the taxes so levied within the year for which the

same are levied and collectible, then interest at the rate of

six per centum, per annum, is to be charged upon the

amount of said taxes, or any part thereof, remaining due

and unpaid from and after the first day of the year

following that for which said taxes were levied until the

same has been paid in full, or the land sold as now

provided by law for the sale of unseated lands: Provided,

No interest shall be charged upon taxes levied for the

years [1886] and [1887].

Act of 6 June, 1887, P.L. 363, No. 248, § 1 (codified at 72 PA. STAT. AND CONS. STAT.

ANN. § 5781) (emphasis added). The plain language of this statute unambiguously

obligates unseated landowners to pay assessed taxes within a year of levy. Id.

We acknowledge that, at several points in the Herder Spring decision, the

court uses language—albeit in dicta—which could be read to infer that there was no

duty to pay taxes on unseated land. Nevertheless, when put in proper context, we

do not believe that such remarks were meant to contradict longstanding legislation

or state court precedent.

For instance, the Herder Spring court states that “[t]he owner of unseated

land . . . was not personally responsible for the payment of taxes, which were

instead imposed on the land itself, in the name of the person to whom the original

warrant had been issued.” Herder Spring, 143 A.3d at 364. However, this

statement is followed by multiple citations to state supreme court decisions

indicating that there was no personal liability for taxes on unseated land. See id.

(citing Strauch, 1 Watts & Serg. at 175; Bannard, 293 A.2d at 49). As explained by a

prominent treatise on tax titles, the idea of taxes being “imposed on” or “against”

the land, or that the land alone was liable for taxes, “means no more than that taxes

assessed upon a specific parcel of real estate can only be collected by a process

having for its object the condemnation and sale of the land.” HENRY CAMPBELL

BLACK, A TREATISE ON THE LAW OF TAX TITLES: THEIR CREATION, INCIDENTS,

EVIDENCE, AND LEGAL CRITERIA § 167 (2d ed. 1893). Later in the opinion, the Herder

Spring court notes that the Powell decision “explained the duty, or lack thereof, of

landowners to pay taxes[.]” Herder Spring, 143 A.3d at 367. Although this language

appears broad at first blush, it relates directly to the facts of Powell v. Lantzy,

where neither the surface nor the subsurface owner had any obligation to pay

overdue taxes that had accrued on the property when owned in whole by a different

individual. Id. (quoting Powell, 34 A. at 451).

In sum, we read this dicta within its context and find that it does not

represent a reversal of precedent or an abrogation of the Act of 1887.16 Had the

Herder Spring court intended such drastic outcomes, it would have made its

holdings clear and explicit. Instead, these statements simply affirm the

noncontroversial axiom that there was no personal liability on unseated landowners

who failed to pay taxes.

The Game Commission’s arguments against the existence of a legal duty to

pay taxes on unseated land are unpersuasive. It posits that neither CPLC nor

McCauley had a duty to pay taxes on the Proctor and Hill subsurface estate to keep

it from being sold at a tax sale. This is true, of course, because after severance, the

surface and subsurface of the Josiah Haines warrant were separate estates subject

to separate taxation. See Herder Spring, 143 A.3d at 364, 369; Powell, 34 A. at 451-

52. But this sleight-of-hand argument ignores the critical fact that CPLC held its

16 This is especially true when, in the same opinion, the court explicitly states

that unseated landowners were bound to pay their taxes “upon every principle of

equality and justice,” id. at 366 (quoting Strauch, 1 Watts & Serg. at 176), and could

avoid the loss of their land at tax sales by performing the “duty” imposed by the law

on unseated landowners: “to return the land and pay the taxes,” id. at 369 (quoting

M’Coy, 7 Watts & Serg. at 391).

own surface interest for which it was legally bound to pay taxes—an estate which

the Game Commission claims was also sold at the 1908 tax sale.17

That CPLC had no duty to pay taxes on a separate estate it did not own does

not render the Powell rule irrelevant. In Powell, the tax-sale purchaser had no

other option to protect his surface interest except to buy the entire property at the

tax sale. See Powell, 34 A. at 452 (“Lantzy was in a position in which he was obliged

to pay a claim which he did not personally owe, and which was, in part, a charge

upon the land of another, from whom he could not require repayment, or to buy or

lose his title.”). That is simply not the situation here. All CPLC had to do to protect

its surface interest was pay its taxes. If Bradford County incorrectly assessed the

entire warrant in 1907, rather than separate estates, CPLC could have challenged

that assessment prior to the tax sale or following the sale during the statutory

redemption period. See Herder Spring, 143 A.3d at 366. What CPLC could not do

is utilize its own default to gain a better title at a tax sale, i.e., “build up or acquire a

title founded upon [its] own neglect of duty.” Powell, 34 A. at 451.

17 It bears repeating that, in Powell, the surface owner bought the entire

property at a tax sale induced by default of a prior owner who had failed to pay

taxes assessed on the tract as a whole. Powell, 34 A. at 451, 452. And in Herder

Spring, the buyer was a bona fide third party who purchased the entire warrant

because none of the prior surface or subsurface owners had reported their separate

interest to county commissioners or paid the taxes owed, thus causing a tax sale of

the entire property. Herder Spring, 143 A.3d at 360-61. Neither tax-sale buyer was

under any obligation to pay the overdue taxes that caused the treasurer’s sales in

those cases, so the Powell rule did not apply. The Game Commission’s repeated

reliance on the outcome in Powell and Herder Spring, therefore, is misplaced

because the facts of the case at bar are entirely different.

The Game Commission also maintains that if CPLC violated its statutory

duty to pay taxes on unseated land, then so did Proctor and Hill. There are two

problems with this argument. First, unlike the extensive tax-assessment and tax-

payment documentation that exists for CPLC, there is no record evidence that taxes

were ever assessed or went unpaid on the Proctor and Hill mineral estate. As the

court in Breisch explained, while the landowner has a duty to pay taxes, he cannot

perform this duty unless he is informed by taxing authorities of what payment is

owed. Breisch, 81 Pa. at 346. The absence of a separate subsurface assessment may

be because Proctor and Hill never reported their severed mineral interest to county

officials (although not statutorily required), or it may be because there was nothing

of value to assess. Regardless, and even if Proctor and Hill were deemed to have

violated their duty to pay subsurface taxes, there is another critical flaw with the

Game Commission’s finger-pointing argument: only the Game Commission, as

CPLC’s successor-in-interest, is claiming to have acquired a better title at a tax sale

induced by CPLC’s breach. In other words, Powell’s rule—barring the breaching

party from acquiring better title—appertains only to the Game Commission, not the

Proctor Trusts.

Finally, the Game Commission contends that the Act of 1887 did not impose

an “absolute ‘duty’” to pay taxes on unseated land because landowners could refuse

to pay and would only be subject to a charge of interest or sale of their land. (Doc.

173 at 12). This argument conflates duty with consequence. The mere fact that

unseated landowners who refused to pay taxes faced no personal liability for their

breach does not mean that the duty to pay taxes never existed.

We conclude that unseated landowners had a legal duty to pay taxes on their

land. Because CPLC was the undisputed surface owner of the Josiah Haines

warrant prior to the 1908 tax sale and had an affirmative duty to pay taxes on its

interest, the rule set forth in Powell potentially applies.18 Hence, the question of

McCauley’s agency (or lack thereof) is highly relevant and material. If McCauley

were acting as CPLC’s agent at the 1908 tax sale, which was induced by CPLC’s

failure to pay 1907 taxes, CPLC’s purchase through McCauley effectuated nothing

more than a redemption of its surface interest. See Powell, 34 A. at 451. However,

whether McCauley was acting as CPLC’s agent is a question of fact, not a question

of law, and must be resolved by a jury. See Ellison v. Hosie, 23 A. 455, 455 (Pa. 1892)

(per curiam); Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. Ct. 2013) (citing

Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 602 A.2d 1348, 1351 (Pa. Super.

Ct. 1992)). We thus find that material factual disputes regarding (1) the scope of the

1907 assessment and (2) McCauley’s alleged agency compel denial of the parties’

Rule 56 motions.

C. Other Objections

The parties raise several additional objections to the report, but we find them

meritless. After de novo review, we generally agree with Judge Schwab’s outcomes

18 Because we find that there was a legal duty to pay taxes on unseated land,

we need not discuss the Proctor Trusts’ related argument that a contractual duty to

pay taxes arose from the deed between Union Tanning and CPLC. (See generally

Doc. 171 at 9-10).

on these issues. We briefly set forth the parties’ objections and why we are

overruling them.

1. Deed Language Identifying Proctor and Hill Exception

The Proctor Trusts maintain that the 1920 deed from CPLC to the Game

Commission specifically identifies the 1894 Proctor and Hill mineral estate

exception, thereby estopping the Game Commission from claiming that the

subsurface estate was conveyed in the 1920 transfer. (See Doc. 160 at 20-25 (citing

and distinguishing, inter alia, Herder Spring, 143 A.3d at 378)). Judge Schwab

rejected this argument. (See Doc. 155 at 83-96).

We need not duplicate Judge Schwab’s excellent analysis, but instead hit the

high notes. The 1920 deed uses the words “subject to” before describing the

Proctor and Hill exception. (See Doc. 95 ¶ 38). We find that this unambiguous

language represents a protective measure taken by the grantor to guard against

breach-of-warranty claims. See Burns v. Baumgardner, 449 A.2d 590, 593 (Pa.

Super. Ct. 1982) (collecting cases); W. W. Allen, Annotation, Conveyance “subject to”

restrictions set forth in a recorded or other indicated instrument as imposing the

restrictions on the land conveyed, 84 A.L.R. Fed. 2d 780 § 2 (2011). It does not, as the

Proctor Trusts maintain, express an intent to limit the conveyance or reinvigorate

the Proctor and Hill subsurface interest. See Burns, 449 A.2d at 593. We recognize

that the agreement of sale utilizes different wording, which is more likely to

demonstrate an intent to create a new exception in Proctor and Hill. (See Doc. 95

¶ 35). However, the unambiguous language of the deed controls, not parol evidence

from the contract of sale. See Starling v. Lake Meade Prop. Owners Ass’n, 162 A.3d

327, 341 (Pa. 2017).19

If the 1908 tax sale extinguished the mineral rights of Proctor and Hill, there

was no subsurface reservation or exception to which the 1920 conveyance was

subject. Specifically naming the 1894 Proctor and Hill exception would not alter

this outcome. A title wash would render surplusage the “subject to” language in the

1920 deed identifying exceptions or reservations predating the tax sale,

representing nothing more than “a wise precaution on the part of the grantor.” See

Burns, 449 A.2d at 593 (citation omitted); Herder Spring, 143 A.3d at 378. If,

however, no title wash occurred, the subsurface estate never vested in CPLC and

could not be transferred by the 1920 deed to the Game Commission. See supra p. 28

note 13.

2. Due Process

The Proctor Trusts insist that Judge Schwab erred when concluding that

notice by publication of the 1908 tax sale satisfied federal procedural due process

requirements. This constructive notice, as Judge Schwab explained, conformed to

the prevailing practice and statutory requirements of the time. (See Doc. 155 at 54

19 We additionally observe that creation of a new exception of mineral rights

in Proctor and Hill in the 1920 deed is untenable. Proctor and Hill were not parties

to that conveyance and, if there had been a title wash, became strangers to the title

following the 1908 tax sale. See In re Condemnation by Cty. of Allegheny of Certain

Coal, Oil, Gas, Limestone, Mineral Props., 719 A.2d 1, 3-4 (Pa. Commw. Ct. 1998).

When a deed attempts to reserve or except some interest in a third party, at least

one Pennsylvania appellate court has held that the interest remains with the

grantor. See id. at 4.

& n.14); 72 PA. STAT. AND CONS. STAT. ANN. §§ 6001, 6002 (repealed in part by Act of

March 9, 1847, P.L. 278 § 1); Herder Spring, 143 A.3d at 365, 376, 377.

At the outset, we reject the Game Commission’s contentions that the Proctor

Trusts’ due process claim arises under 42 U.S.C. § 1983 or is barred by the statute of

limitations in the Act of 1815. As part of their quite title action, the Proctor Trusts

assert that the lack of adequate notice (i.e., due process) rendered the 1908 tax sale

void ab initio, which is a jurisdictional defect immune to statute-of-limitations

challenges. (See Doc. 155 at 44-49); Benoit v. Panthaky, 780 F.2d 336, 338-39 (3d Cir.

1985); Kendall v. Lancaster Expl. & Dev. Co., 323 F. Supp. 3d 664, 681 (M.D. Pa.

2018) (citing Kean v. Forman, 752 A.2d 906, 908 (Pa. Super. Ct. 2000)). The Proctor

Trusts’ due process claim is not grounded in Section 1983 and is not barred by any

limitations period invoked by the Game Commission.

As to the merits of the claim, we find that notice by publication was

constitutionally adequate under the unique circumstances of this case. The Proctor

Trusts rely heavily on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306

(1950), and Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), to support

their due process challenge. Yet Mullane acknowledges that notice by publication

is constitutionally permissible when “it is not reasonably possible or practicable to

give more adequate warning.” Mullane, 339 U.S. at 317; see also Greene v. Lindsey,

456 U.S. 444, 449 (1982). Mennonite explains that constructive notice is sufficient if

the interested party “is not reasonably identifiable.” Mennonite, 462 U.S. at 798.

Such a situation could occur when persons whose property rights may be affected

are “missing or unknown,” and in those situations, use of an “indirect and even a

probably futile means of notification” is all that is possible and required. Mullane,

339 U.S. at 317 (citations omitted). Ultimately, notice is constitutional when, “with

due regard for the practicalities and peculiarities of the case,” the notice provided

reasonably conveys the necessary information and affords “a reasonable time for

those interested to make their appearance.” Id. at 314-15.

It is crucial to bear in mind the circumstances surrounding the 1908 tax sale,

because procedural due process questions are necessarily fact specific. See Tulsa

Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 484 (1988); Wright v. Corning, 679

F.3d 101, 108 (3d Cir. 2012) (citation omitted). At the time of sale, unseated land was

treated much differently than its seated counterpart. When unseated land was sold

for unpaid taxes, identification of the current owner or owners was irrelevant,

because unseated land was typically described in reference to its original

warrantee. See Herder Spring, 143 A.3d at 364; Heft v. Gephart, 65 Pa. 510, 516

(1870); Strauch, 1 Watts & Serg. at 175. “[I]t is immaterial, at the moment of sale,

what may be the state of the ownership [of the unseated land], or how many

derivative interests may have been carved out of it. With these the public has no

concern.” Strauch, 1 Watts & Serg. at 175. The identity of owners was often

unknown as well. See Morton v. Harris, 9 Watts 319, 325 (Pa. 1840) (noting that

“assessors and commissioners cannot know of all the transfers of title [of unseated

land] which take place”); Herder Spring, 143 A.3d at 365-66, 378. County taxing

authorities instead relied on reporting by unseated landowners to determine how

taxes were assessed and how property was advertised for sale when those taxes

went unpaid. See Herder Spring, 143 A.3d at 368 (citing Act of 1804 and Act of

1806); Heft, 65 Pa. at 516-17. Accordingly, when tax payment lapsed on unseated

land, the county treasurer had no reason or obligation to search public records for

ownership interests in the parcel to be sold. See Herder Spring, 143 A.3d at 368-69

(citing Stoetzel, 105 Pa. at 567). Unseated tax-sale procedures, moreover, were well

established by 1908. For nearly a century, unseated land had been regularly sold

for delinquent taxes by county treasurers through identical methods and at the

same time of year, the second Monday in June on even-numbered years. Id. at 365;

72 PA. STAT. AND CONS. STAT. ANN. § 5981.

This antiquated process no longer exists; nevertheless, it was the system in

place at the time of the tax sale and the reasons for that system are relevant to the

adequacy of the notice provided. Pennsylvania’s historical treatment of unseated

land reflects “the practicalities and peculiarities” of the situation and informs

whether the notice given conveyed the required information to Proctor such that he

could make his appearance. Mullane, 339 U.S. at 314-15. In conducting a due

process assessment, courts must “look to the realities of the case” presented, and

the effect of notice “must be judged in light of its practical application to the affairs

of men as they are ordinarily conducted.” Greene, 456 U.S. at 450-51.

Notice by publication here—while not the best possible notice—was

constitutionally sufficient. Proctor was not a real estate novice. Per contra, he

owned and regularly conveyed vast amounts of real property in Pennsylvania.20

There can be no doubt that Proctor was aware of the tax treatment of unseated land

and how unseated land ordinarily was assessed, taxed, advertised, described, and

disposed of by county treasurers for unpaid taxes. (See, e.g., Doc. 95 ¶ 6(a), (d)).

The United States Supreme Court has noted that individual characteristics of the

intended notice recipient may be relevant to the due process analysis. See Jones

v. Flowers, 547 U.S. 220, 230 (2006) (citations omitted). Even less sophisticated

unseated landowners were likely aware of these well-established procedures.

Furthermore, the advertisements placed in Bradford County newspapers for the

sale of the Josiah Haines warrant followed customary practice and provided the

date, time, and place of sale. (See Doc. 95 ¶ 24 & citations). Advertisements ran

weekly from the beginning of April through the first week in June, giving Proctor

more than adequate time to appear and to raise any objection he may have had to

the sale. (See id.); 72 PA. STAT. AND CONS. STAT. ANN. §§ 6001, 6002.

For treasurers’ sales in the 1800s and early 1900s, it was “not reasonably . . .

practicable to give more adequate warning” to unseated property owners. Mullane,

339 U.S. at 317. Notice by publication was the type of notice required, expected,

and relied upon at the time, and for good reason. Such notice was “reasonably

20 See, e.g., Herder Spring, 143 A.3d at 367 n.10; Cornwall Mountain, 158 A.3d

at 150-51; N. Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 25 n.4 (Pa. Super. Ct.

2015); Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 180 & n.3 (Pa. Super.

Ct. 2013); Sagamore, 265 F.2d at 201-02; Sagamore, 166 F. Supp. at 475, 477; Lester

L. Greevy Jr. & John A. Shoemaker, Shale Gas Ownership—Tax-Sale Titles: An

Historical Perspective of the Pennsylvania Title Wash, 85 PA. B. ASS’N Q. 106, 111, 112

(2014); (Doc. 95 ¶ 6).

calculated to apprise interested” unseated landowners of the pending tax sale and

“afford them an opportunity to present their objections.” Id. at 314 (citations

omitted). Stated differently, notice by publication was “reasonably certain to

inform those affected.” Dusenbery v. United States, 534 U.S. 161, 170 (2002)

(quoting Mullane, 339 U.S. at 315). We hold that, under the totality of the

circumstances, the constructive notice provided in this case satisfies the procedural

due process requirements of the Fourteenth Amendment. Thus, if the subsurface

estate was properly sold at the 1908 tax sale, the Proctor Trusts cannot attack that

sale on due process grounds.

IV. Conclusion

For these reasons, the court finds that there are genuine disputes of material

fact that preclude summary judgment for either party. These disputes include what

interest was assessed in 1907 and sold at the 1908 tax sale, as well as whether

McCauley was acting as CPLC’s agent at that sale. Accordingly, we will deny the

parties’ cross-motions for partial summary judgment. An appropriate order shall

issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: April 21, 2020