“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.”
How later courts described this case
- “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.”
- explaining rationale behind “directories” exception
- noting that “it is an owner’s duty to pay taxes” and failure to do so results in tax sale of owner’s land
Written by the judges who cited it.
The opinion
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, : (Judge Conner)
:
Plaintiff :
:
v. :
:
THOMAS E. PROCTOR HEIRS :
TRUST, :
:
Defendant :
MEMORANDUM
Plaintiff, Commonwealth of Pennsylvania, Pennsylvania Game Commission
(“Game Commission”), claims it owns both the surface and subsurface rights for
numerous tracts of land in Sullivan and Bradford Counties in northeastern
Pennsylvania. Defendant, Thomas E. Proctor Heirs Trust1 (“Proctor Trust” or “the
Trust”), disagrees, contending it holds superior title to the subsurface estates
underlying these tracts. A lengthy and complex legal battle has ensued,
culminating in a bench trial regarding subsurface ownership of the Josiah Haines
warrant—a bellwether tract of land in LeRoy Township, Bradford County. As we
explain in further detail herein, the court finds in favor of Proctor Trust.
1 The Margaret O.F. Proctor Trust was also a named defendant in this action
until April 13, 2021, when the court granted Proctor Trust’s concurred-in motion to
dismiss that entity. (See Docs. 212, 213).
I. Procedural History
The Game Commission initially filed this action in August 2012. Following
several rounds of Rule 12 motion practice, the Game Commission eventually filed
the operative second amended complaint in December 2014 seeking to quiet title to
2,481 acres in Sullivan and Bradford Counties in northeastern Pennsylvania. The
Trust counterclaimed, also seeking to quiet title and adding claims for conversion
and unjust enrichment. The Game Commission subsequently filed a counterclaim
for tortious interference. This protracted procedural history is outlined in a
February 2019 report and recommendation from Magistrate Judge Susan E.
Schwab, familiarity with which is presumed. (See Doc. 183 at 2 (citing Doc. 155 at 1-
10)).
Following a period of discovery, both parties moved for partial summary
judgment, seeking to quiet title to the subsurface estate of a single tract, the
bellwether 410-acre Josiah Haines warrant. The court denied summary judgment
based on material factual disputes regarding two issues: (1) whether the scope of
the 1907 assessment leading to the 1908 tax sale of the Josiah Haines warrant
included the subsurface estate, and (2) whether Calvin H. McCauley, Jr.,2 who
purchased the Josiah Haines warrant at the 1908 tax sale, was acting as an agent of
the Central Pennsylvania Lumber Company (“CPLC”). The court convened a one-
day bench trial in April 2021 to determine ownership of the subsurface estate of the
2 We refer to Calvin H. McCauley, Jr., as “McCauley” throughout this opinion.
We note, however, that several items in evidence also refer to his father, Calvin H.
McCauley. Where necessary, we use the appropriate suffix to differentiate between
father and son.
Josiah Haines warrant. After trial, the parties submitted proposed findings of fact
and conclusions of law. We now resolve outstanding evidentiary objections and set
forth our findings of fact and conclusions of law pursuant to Federal Rule of Civil
Procedure 52(a). See FED. R. CIV. P. 52(a).
II. Outstanding Evidentiary Objections3
During the April 2021 bench trial, the court admitted Joint Exhibits 2
through 29 without objection. (See 4/27/21 Tr. 9:13-20, 10:15-16; Joint Exs. 2-29).
Plaintiff’s Exhibits 3 through 35 were admitted without objection. (See 4/27/21 Tr.
133:22-135:5). Defense Exhibits 39, 40, and 42 were not admitted. (See id. at 115:18-
116:15). In addition to the objections raised in its pretrial brief, the Game
Commission reserved an objection to Joint Exhibits 30, 31, and 32 on grounds of
relevance, and possibly authenticity and hearsay, depending on their use at trial.
(See id. at 9:23-10:14). We consider the remaining evidentiary objections seriatim.
3 The court’s resolution of evidentiary objections is based on the parties’
pretrial exhibit list and briefing as well as argument during the April 2021 bench
trial. (See Docs. 204, 206, 214, 218). The factual narrative in Section III represents
the court’s findings of fact as derived from the record. Citations thereto include the
transcript of the bench trial convened on April 27, 2021, (“4/27/21 Tr. [page:line]”),
as well as stipulated facts, (Doc. 205 ¶ __), and exhibits introduced by both parties,
(“Joint Ex. __,” “Pl. Ex. __,” and “Def. Ex. __”).
A. Proctor Trust’s Objections
Proctor Trust contends several pages of the parties’ first joint exhibit, as well
as two of the Game Commission’s exhibits, contain inadmissible expert legal
conclusions. (See Doc. 206 at 1-3; Joint Ex. 1 at 1-6; Pl. Exs. 1, 2).
Admissibility of expert testimony is governed by Federal Rule of Evidence
702. See FED. R. EVID. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 588-89 (1993). The Third Circuit Court of Appeals has explained that “Rule 702
embodies a trilogy of restrictions on expert testimony: qualification, reliability and
fit.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)
(citation omitted). For expert testimony to “fit,” it must be “sufficiently tied to the
facts of the case, so that it ‘fits’ the dispute and will assist the trier of fact.” UGI
Sunbury, LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.
2020) (internal quotation marks omitted).
According to Rule 704, an expert’s opinion “is not objectionable just because
it embraces an ultimate issue.” See FED. R. EVID. 704. But an opinion on the
ultimate issue is not admissible if the opinion “would merely tell the [factfinder]
what result to reach.” See id. advisory committee’s notes to 1971 amendment. Rule
704 must also “be read in conjunction with Rule 702, which requires opinion
evidence to be helpful to the jury.” See Collie v. Wal-Mart Stores E., L.P., No. 1:16-
CV-227, 2017 WL 2264351, at *1 (M.D. Pa. May 24, 2017) (Conner, C.J.). Our court of
appeals further cautions that experts may not “testify as to the governing law of the
case.” See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006).
They also may not provide opinions “about the ultimate legal conclusion.” Patrick
v. Moorman, 536 F. App’x 255, 258 (3d Cir. 2013) (nonprecedential) (citing
Berckeley, 455 F.3d at 217; United States v. Leo, 941 F.2d 181, 196-97 (3d Cir. 1991)).
Allowing an expert to so testify effectively usurps the court’s role. Berckeley, 455
F.3d at 217.
1. Wilkinson Report
The Game Commission obtained a declaration and title report from J.C.
Wilkinson, III, an attorney with experience in “oil and natural gas title issues in
Pennsylvania.” (See Pl. Ex. 1 at 2). Wilkinson provides an expert opinion on the
scope of the 1908 tax sale to McCauley and the ownership of the subsurface estate of
the Josiah Haines warrant. (See id. at 3-7). The Trust continues to object to the
Wilkinson report, arguing it contains “legal opinion testimony.” (See Doc. 206 at 1-
4).
In a February 2019 report and recommendation, Magistrate Judge Susan E.
Schwab partially granted Proctor Trust’s motion to strike the Wilkinson report and
recommended striking portions of that evidence, reasoning that such testimony is
“not helpful to the court or factfinder.” (See Doc. 155 at 11-17 & nn.8-9). In our
April 2020 opinion, we expressed “complete agreement with Judge Schwab’s
analysis and conclusions” on the Wilkinson report and adopted them as our own.
(See Doc. 187 at 7 n.5). We continue to agree that the conclusions set forth in the
Wilkinson report regarding the legal effect of the 1908 tax sale and ownership of the
disputed subsurface rights impermissibly usurp our role in this quiet title action.
See Berckeley, 455 F.3d at 217. To reiterate Judge Schwab, we will not consider
Wilkinson’s discussion of the “governing law” as it pertains to the Pennsylvania
Supreme Court’s opinion in Herder Spring Hunting Club v. Keller, 143 A.3d 358,
364 (Pa. 2016). We also will not consider Wilkinson’s legal conclusions (1) that the
Proctor Trusts do not have an interest in the subsurface estate; (2) that the
Commonwealth has title to the subsurface estate; (3) that 100% of both the surface
estate and the subsurface estate is vested in the Commonwealth; (4) that the 1908
tax sale resulted in a “Title Wash” that extinguished the prior reservation of oil, gas,
and mineral rights; and (5) that the 1920 deed from the CPLC to the Commonwealth
does not contain clear language of reservation in favor of CPLC. (See Doc. 155 at
16). We will not strike the other portions of the report. (See id. at 16-17).
2. Percheron Title Abstract
The parties submitted a joint exhibit comprised of several hundred pages
that begins with a six-page abstract by Percheron Title. (See Joint Ex. 1 at 1-6).
The other pages consist of, inter alia, maps, deeds, and unseated land books. (See
id. at 7-615). The Trust objects to only the first six pages of the exhibit for the same
reason it objects to the Wilkinson report, arguing it contains inadmissible legal
conclusions. (See Doc. 206 at 2-3). We agree with the Trust, as these pages also
contain conclusions about the effect of the 1908 tax sale and whether it effected a
title wash on the subsurface estate—a dispute that is at the heart of this quiet title
action. Percheron Title’s rendering of an opinion on this matter usurps the court’s
role. See Berckeley, 455 F.3d at 217. We will not consider the first six pages of the
parties’ first joint exhibit. (See Joint Ex. 1 at 1-6).
3. Sullivan County Title Report
The Game Commission submitted an exhibit related to the Commonwealth’s
purchase of numerous land tracts, including the Josiah Haines warrant, from
CPLC. (See Pl. Ex. 2 at 1). The Trust summarily contends “substantial portions” of
this exhibit are legal conclusions from the Game Commission’s title examiner, and
the other portions are not relevant to ownership of the Josiah Haines subsurface
estate. (See Doc. 206 at 3 n.2). The Trust does not, however, provide excerpts or
even pagination for the portions it considers “legal conclusions” from this 100-page
exhibit. (See id.) We “decline to root through the record” and make the Trust’s
argument for it, see Zimmermann v. NLRB, 749 F. App’x 148, 150 (3d Cir. 2019)
(nonprecedential) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)),
and therefore will deny the Trust’s objection. We will consider the exhibit to the
extent it contains relevant information about either the 1907 assessment or
McCauley’s status as an agent of CPLC.
B. Game Commission’s Collateral Estoppel Arguments
The Game Commission contends that Proctor Trust is collaterally estopped
from relitigating the issues currently before the undersigned due to two state-level
cases involving the Trust as a party, one of which also involves the Game
Commission. (See Doc. 214 at 1-3). The doctrine of collateral estoppel dictates that
“a question or fact distinctly put in issue and directly determined by a court of
competent jurisdiction . . . cannot be disputed in a subsequent suit between the
same parties or their privies.” Montana v. United States, 440 U.S. 147, 153 (1979).
Collateral estoppel specifically bars relitigation of an issue that was conclusively
determined in a prior adjudication and that was essential to the original
judgment. Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir. 1999); Venuto v. Witco
Corp., 117 F.3d 754, 758 (3d Cir. 1997). Collateral estoppel promotes fairness and
certainty, while preventing wasteful expenditure of resources on issues already
resolved through adversarial proceedings. See Allen v. McCurry, 449 U.S. 90, 94
(1980); Montana, 440 U.S. at 153–54; Witkowski, 173 F.3d at 198-99.
A federal court sitting in diversity in Pennsylvania must apply Pennsylvania
law with respect to issue preclusion. See Witkowski, 173 F.3d at 199. Pennsylvania
courts apply a four-part test derived from Section 27 of the Restatement (Second) of
Judgments to determine whether collateral estoppel bars a potential claim.
Witkowski, 173 F.3d at 199 (citing Pa. State Univ. v. County of Centre, 615 A.2d 303,
306 (Pa. 1992)). Relevant here, Pennsylvania courts have explained that when the
“judgment relied upon as a basis for the estoppel is itself inconsistent with one or
more previous judgments,” collateral estoppel may not be warranted. See Off. of
Disciplinary Couns. v. Kiesewetter, 889 A.2d 47, 52 (Pa. 2005) (citing Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 330 (1979)).
We reject the Game Commission’s collateral estoppel arguments related to
Keta Gas & Oil Co. v. Proctor, No. 1975 MDA 2018, 2019 WL 6652174 (Pa. Super. Ct.
Dec. 6, 2019), as well as Commonwealth v. Thomas E. Proctor Heirs Tr., No. 493
M.D. 2017, 2020 WL 256984 (Pa. Commw. Ct. Jan. 16, 2020). The Keta decision
affirmed a trial court’s decision on summary judgment where the trial court found
no genuine issues of material fact for trial on, inter alia, whether certain subsurface
reservations had been reported. See Keta, 2019 WL 6652174, at *3. This court,
however, already concluded in April 2020 that Proctor Trust has “proffered
competent evidence that Union Tanning and CPLC reported their unseated surface
interest to Bradford County Commissioners.” (See Doc. 183 at 27). We thus do not
consider the Keta decision preclusive because, unlike the trial court, we did not and
do not consider the Trust’s evidence speculative. Cf. Keta, 2019 WL 6652174, at *5.
Nor do we consider the 2021 Commonwealth Court opinion preclusive, as the
Pennsylvania Supreme Court has vacated that decision and remanded the case for
further proceedings. See Pennsylvania Game Comm’n v. Thomas E. Proctor Heirs
Tr., No. 12 MAP 2021, 2021 WL 5346728, at *1 (Pa. Nov. 17, 2021); (see also Doc. 221).
These opinions are “inconsistent with” our previous summary judgment opinion
providing the applicable law for trial, and preclusive effect is not warranted. See
Kieswetter, 889 A.2d at 52.
C. Game Commission’s Objections
1. Relevance Objections
“Evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence, and the fact is of consequence in
determining the action.” FED. R. EVID. 401. Evidence is relevant unless it has “no
tendency to prove [a consequential] fact.” Spain v. Gallegos, 26 F.3d 439, 452 (3d
Cir. 1994) (citation omitted). Relevance is a low bar. See Forrest v. Parry, 930 F.3d
93, 114 (3d Cir. 2019).
The Game Commission asserts a general relevance objection to all of the
Trust’s exhibits, claiming “these misperceived factual disputes are irrelevant and
immaterial as a matter of law.” (See Doc. 214 at 8). The Game Commission has
further lodged objections to nearly all of the 53 exhibits from the Trust on the
parties’ final joint exhibit list. (See Doc. 204; Doc. 214 at 9-37). We consider these
objections in several groupings depending on the substance of the evidence offered,
its purpose, the objection, and our ruling. If we do not rule on a particular
evidentiary item, we have not considered it in our analysis.
a. General Relevance
We overrule the Game Commission’s general objection for the reasons stated
in our summary judgment opinion, which sets forth the factual disputes to be
resolved at trial. As noted in that opinion, disputes regarding the scope of the 1907
assessment of the Josiah Haines warrant, as well as McCauley’s status as an agent
of CPLC, are both relevant and material to determining the current legal owner of
the subsurface estate. (See Doc. 183 at 23-43). The Game Commission’s objection is
preserved for appellate review. (See 4/27/21 Tr. 26:19-27:2).
b. Exhibits Offered in Relation to CPLC’s Reporting
Practices
The Trust has offered over a dozen exhibits in relation to the issue of
whether Union Tanning Company (“Union Tanning”) or CPLC properly reported
their surface interest in the Josiah Haines warrant pursuant to the Act of 1806, P.L.
644, 4 Sm. L. 346, § 1, repealed and replaced by 72 PA. STAT. AND CONS. STAT. ANN. §
5020-409. (See Def. Exs. 2-9, 44-47, 49-51). The Game Commission argues these
exhibits are irrelevant and immaterial. (See Doc. 214 at 13-37).4 As explained in our
summary judgment opinion, evidence concerning Union Tanning’s and CPLC’s
reporting practices are relevant to the instant dispute. (See Doc. 183 at 29-31). We
will summarize each documentary exhibit offered by the Trust, and the Game
Commission’s objection, in turn.
Exhibits 1, 2, 3, 8, and 47 are excerpts from land assessment books within
Bradford County, covering a range of years from 1895 to 1930. (See Def. Exs. 1-3, 8,
47). Exhibits 1 and 8 provide records from Leroy Township; Exhibit 2 from Barclay
Township; and Exhibit 3 from Overton Township. (See Def. Ex. 1-3). Exhibit 47
contains records from each of these townships. (See Def. Ex. 47). Exhibit 50 is a
recapitulation statement from the county commissioners to the Barclay Township
assessors in 1894, instructing assessors to return a list of, inter alia, “all property
taxable by law.” (See Def. Ex. 50 at 2). The Game Commission objects to Exhibits 2
and 3 because the Josiah Haines warrant is not located within those townships, to
Exhibit 8 because it concerns seated land, to Exhibit 47 because it contains
information after the tax sale occurred in 1908, and to Exhibit 50 because it does not
explain the 1908 tax sale. (See Doc. 214 at 13, 16, 32, 34).
We will overrule the objection to these exhibits. When land was still assessed
as seated and unseated in Pennsylvania, county land assessors were responsible for
4 Although the Game Commission initially objected to Exhibit 51 from the
Trust, (see Doc. 214 at 34), it withdrew this objection during trial, (see 4/27/21 Tr.
118:16-19). Exhibit 51 is a demonstrative exhibit which contains magnifications of
certain pages from the parties’ joint exhibits. (See Def. Ex. 51). We will admit this
exhibit to the extent it aids in reading these notations.
“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 Hunting Club v. Keller, 143 A.3d 358, 364 (Pa. 2016); see McCall v.
Lorimer, 4 Watts 351, 353 (Pa. 1835). The Trust has offered these exhibits to
demonstrate reporting practices and payment at the county level. (See 4/27/21 Tr.
30:14-32:11). We consider reporting practices within Bradford County, of both
seated and unseated lands, and the recapitulation statements used to assess
property, to be relevant to our resolution of this matter. We also do not consider
Exhibit 47 outside the relevant time period because we consider tax-payment
activity occurring on the Josiah Haines warrant in 1909 and 1910 to be relevant to
our analysis. (See also Doc. 183 at 28, 32-34).
We do not, however, consider Exhibits 4, 5, 6, 7, 9, or 49 relevant to the
instant dispute. (See Def. Exs. 4-7, 9, 49). Exhibit 4 is a Pennsylvania Supreme
Court paper book from a state court case in 1907 involving CPLC. (See Def. Ex. 4 at
1, 2). The testimony to which the Trust refers relates to Lycoming County rather
than Bradford County and does not reference the Josiah Haines warrant. (See id.
at 49-59). So too for Exhibits 5 and 6, which are letters from Proctor’s estate to the
Lycoming County treasurers, and the assessment books for McIntyre Township in
Lycoming County, respectively. (See Def. Exs. 5-6). Nor do we consider Exhibit 7,
which depicts the Commonwealth’s gas and oil development in 2007, to be relevant
to our analysis. (See Def. Ex. 7). We also will not consider Exhibit 9, which is
comprised of several news articles from the 1890s and early 1900s regarding
planned or ongoing coal operations during that time period, on tracts of land
formerly owned by Proctor and Hill. (See Def. Ex. 9 at 1, 7, 10). The Trust has not
proffered competent evidence that any coal mining occurred on the Josiah Haines
warrant during the relevant period. Finally, Exhibit 49 is a map of the “Schrader
Lands.” (See Def. Ex. 49 at 1). The parties do not dispute that Schrader Mining &
Manufacturing owned the Josiah Haines warrant prior to Proctor and Hill, and we
do not consider this map relevant to our analysis. (See Doc. 205 ¶¶ 3, 4).
Exhibits 44, 45, and 46 are sworn declarations from three individuals who are
custodians of different recordkeeping entities in the Commonwealth. Exhibit 44 is
from the Bradford County Historical Society; Exhibit 45 is from the office of the
Recorder and Register of Deeds for Bradford County; and Exhibit 46 is from the
Pennsylvania State Archives. (See Def. Ex. 44 ¶¶ 3, 4; Def. Ex. 45 ¶¶ 3, 5; Def. Ex. 46
¶¶ 3, 5). Each exhibit attests to the same fact, viz.—that the entity “does not possess
any notices to the Bradford County Board of Commissioners” from the 1890s
through the 1920s. (See Def. Ex. 44 ¶ 5; Def. Ex. 45 ¶ 6; Def. Ex. 46 ¶ 6). The Game
Commission objects that these declarations are irrelevant. We disagree. As noted
in our summary judgment opinion, legal ownership of the Josiah Haines subsurface
estate depends partially on whether certain interests were reported to the county
commissioners in Bradford County. (See Doc. 183 at 29-31). This information is
relevant to whether such records still exist or were retained by the entities that
originally received them over a century ago.
c. Exhibits Offered in Relation to McCauley
The Trust has offered over 30 exhibits in relation to McCauley and whether
he was acting as an agent for CPLC when he purchased the Josiah Haines warrant
at a tax sale in June 1908. The Game Commission argues these exhibits are
irrelevant and immaterial. (See Doc. 214 at 13-37). As noted above, we consider
McCauley’s relationship to CPLC to be highly relevant and material to resolving
this quiet title dispute. (See Doc. 183 at 23-43).
Exhibits 10, 11, 21, 23, 25, and 26 are documents from two court cases that
originated in the Potter County Court of Common Pleas. (See Def. Exs. 10, 11, 21,
23, 25, 26). Exhibits 12, 13, and 14 are CPLC’s corporate documentation from its
inception in 1903. (See Def. Exs. 12, 13, 14). Exhibits 15, 16, and 17 are letters to
McCauley in 1904 and 1905. (See Def. Exs. 15, 16, 17). Exhibits 18, 19, 20, and 22 are
Boyd’s Directory excerpts from 1906 through 1909 that contain listings for CPLC
and for McCauley. (See Def. Exs. 18, 19, 20, 22). Exhibit 24 is a page from the
United States Census in 1910 listing McCauley as a “lawyer” for a “lumber co.”
(See Def. Ex. 24). Exhibits 27 and 28 are copies of a notarized declaration by
McCauley in 1914, stating that he was acting in trust for CPLC and using CPLC
funds when he purchased six properties in Elk County from the county treasurer,
and that his name on the deeds “is used only in trust for” CPLC. (See Def. Exs. 27,
28). Exhibit 29 consists of several deeds whereby McCauley quitclaims dozens of
parcels of land (consisting of thousands of acres) to CPLC for $1.00. (See Def. Ex.
29). Exhibits 30 and 31 are letters from 1916 on CPLC “Legal Department”
letterhead from McCauley. (See Def. Exs. 30, 31). Exhibit 32 contains two
newspaper articles that mention McCauley’s positions within CPLC in 1913 and
1917. (See Def. Ex. 32). Exhibit 48 consists of two news articles from The
Williamsport Sun in 1907 and 1908. (See Def. Ex. 48). One refers to “Calvin H.
McCauley,” who in 1908 was admitted to the Lycoming County bar and appointed
“assistant general solicitor” for CPLC. (See id. at 1, 2).5 The other names a “Calvin
H. McCauley, Jr., of the Central Pennsylvania Lumber company,” as a visitor to
Ridgway, Pennsylvania in 1907. (See id. at 3, 4).
The Game Commission objects to all these documents on the basis of
relevance, arguing that they are not probative of McCauley’s status as CPLC’s
agent.6 We overrule these objections, noting that an agency relationship does not
require direct evidence “if it can be reasonably inferred from the circumstances of
the case.” Scott v. Purcell, 415 A.2d 56, 61 n.8 (Pa. 1980) (citing Yezbak v. Croce, 88
5 The Game Commission argues it would be improper to consider this article
to pertain to McCauley, Jr., when the suffix “Jr.” is not included and he had a father
of the same name who also held a leadership position in CPLC. (See Doc. 214 at 37;
4/27/21 Tr. 131:22-133:5). However, the Trust proffered other evidence indicating
McCauley, Sr., only ever held the position of “general solicitor” within the company.
(See Def. Ex. 53; 4/27/21 Tr. 136:24-137:21). We agree with the Trust on this point. It
would be fanciful to infer that McCauley, Sr., who was appointed general solicitor
when CPLC was formed in 1903, (see Def. Ex. 53 at 1, 2), and was further mentioned
as its general solicitor in December 1907, (see id. at 3, 5), was demoted to assistant
general solicitor less than two months later in February 1908, (see Def. Ex. 48 at 1,
2). We find that defense Exhibit 48 refers to McCauley, Jr., and not his father. We
will also overrule the Game Commission’s relevance objections to defense Exhibit
53. (See Doc. 214 at 36-37). This exhibit contains articles regarding McCauley, Sr.
that rebut the inference the Game Commission would have us draw from the lack of
a suffix in defense Exhibit 48.
6 The Game Commission also considers Exhibits 10 and 11 irrelevant
because, inter alia, they “do not mention McCauley, Jr.” (See Doc. 214 at 18-19).
This statement is incorrect—he is listed as an attorney of record for CPLC during
the appeal. (See Def. Ex. 11 at 2).
A.2d 80, 82 (Pa. 1952)). Each of these documents demonstrates McCauley’s
association with CPLC in the years surrounding the tax sale in 1908 and are
circumstantial evidence of his agency status. We thus consider this evidence
relevant to McCauley’s relationship with CPLC.
We will sustain, however, the Game Commission’s objections to some of the
evidence adduced by the Trust on relevancy grounds. Exhibit 33 is a collection of
letters between Proctor’s heirs and McCauley as well as others, and Exhibit 34 is a
map referenced in some of the correspondence. (See Def. Exs. 33, 34). Exhibit 35
consists of more correspondence referring to coal leases between 1913 and 1921.
(See Def. Ex. 35). McCauley is mentioned but is neither an author nor recipient of
any letter in this exhibit. (See id. at 11). Most of the letters in Exhibit 33 are
handwritten and illegible, as are several in Exhibit 35. (See Def. Ex. 33 at 1-16, 18-
22, 30; Def. Ex. 35 at 1-6, 16). The remaining letters, while typed and therefore
legible, reference mineral rights in tracts other than the Josiah Haines warrant.
(See e.g., Def. Ex. 33 at 24).
At trial, counsel for the Trust noted that the John Barron tract, referenced in
Exhibit 33, was also subject to the 1908 tax sale, and argued this material is relevant
to highlight the ongoing communications between McCauley and the Proctor heirs
following the tax sale, as well as evidence that Proctor’s heirs had active coal leases
following CPLC’s deed to the Game Commission. (See 4/27/21 Tr. 63:11-67:3). We
make no determination whether this information is relevant to other tracts, but the
Trust does not direct us to any letter where the Josiah Haines warrant is
mentioned. Furthermore, the maps in Exhibit 34 indicate that the area in which
coal was mined did not cover the Josiah Haines warrant. (See Def. Ex. 34 at 9). We
will not consider Exhibits 33 through 35 as they are not relevant to our resolution of
the instant dispute regarding the bellwether tract.
We will also not consider Exhibits 36, 37, 38, or 43 to the extent they contain
legal opinions about the effect of the 1908 tax sale. Two of these exhibits are 1931
letters from the Game Commission’s title examiner John E. Potter, one is a
response to Potter from A.F. Jones of CPLC, and one is a title examination excerpt
regarding certain tracts of land in Lycoming County. (See Def. Exs. 36, 37, 38, 43).
The letters contain Potter’s beliefs about the effect of a tax sale on tracts of land.
(See Def. Ex. 36 at 3-4; Def. Ex. 37 at 11-12; Def. Ex. 38 at 2). The title examination
excerpt is likewise the examiner’s belief about a purchase McCauley made. (See
Def. Ex. 43 at 8). These opinions are not relevant to our determination of
McCauley’s agency status.
2. Authenticity Objections
All admissible evidence must be authenticated. FED. R. EVID. 901(a). Similar
to relevance, the standard for authentication is “slight.” United States v. Turner,
718 F.3d 226, 232 (3d Cir. 2013) (citation omitted). An evidentiary item is
authenticated by “evidence sufficient to support a finding that the item is what the
proponent claims it is.” Id. at 232 (quoting FED. R. EVID. 901(a)). Once the
proponent makes a prima facie showing of authenticity, the evidence goes to the
factfinder. Id. (citation omitted). The proponent can use circumstantial evidence,
including the context in which the evidence was obtained and its contents, to
authenticate evidence. Id. at 232-33.
For ancient documents, Rule 901 provides an exemplar method for
authentication if the proponent can adduce evidence that the ancient document “is
in a condition that creates no suspicion about its authenticity; was in a place where,
if authentic, it would likely be; and is at least 20 years old when offered.” See FED.
R. EVID. 901(b)(8). In deciding authenticity, the court may also consider the
“appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item.” FED R. EVID. 901(b)(4).
The Game Commission objects to the authenticity of a series of defense
exhibits comprised of CPLC’s ledger books and letters interwoven within the books
that concern McCauley. (See Doc. 214 at 10-13). These ledger books and the letters
within them are in the possession of nonparty Lauri Sekerak, who testified about
her acquisition of the items. (See Joint Ex. 30). Sekerak, who worked as an
abstractor in Pennsylvania, testified that she came into possession of the ledger
books around 2005. (See Joint Ex. 30, Sekerak Dep. 7:12-8:5, 11:5-8). When Sekerak
learned that a Warren County law firm was dissolving, she offered to take the ledger
books from the firm’s library after learning they would otherwise be thrown away.
(See id. at 8:6-10:19). Proctor Trust proffered additional evidence in pretrial
briefing to explain why the ledger books were located in a law firm Warren County,
noting CPLC’s headquarters moved to Sheffield, in Warren County, until it closed
in 1941. (See Docs. 206-1, 206-2).
The Proctor Trust produced the original CPLC ledger books during the April
2021 bench trial for examination, and the court inspected the books containing the
letters at issue. (See 4/27/21 Tr. 82:3-83:25). The ledger books are organized by map
number into seven volumes. (See Sekerak Dep. 7:22-8:8:5). They contain maps for
CPLC tracts and corresponding ledger information for the tracts from the early
twentieth century. (See id. at 13:21-14:21). Relevant here, many tract pages contain
letters that have been affixed on or between a particular tract’s map and its ledger
entries. (See id. at 17:5-18:17). Some of these letters, offered by the Trust into
evidence, are dated between 1904 and 1916 and are either written by, or addressed
to, “Calvin H. McCauley, Jr.” (See Def. Exs. 15, 16, 17, 30, 31). Each letter had been
affixed onto certain pages of the ledger books. (See Sekerak Dep. 17:5-18 (Def. Ex.
15), 20:1-10 (Def. Ex. 16), 23:16-25 (Def. Ex. 17), 27:8-18 (Def. Ex. 30), 30:23-31:16 (Def.
Ex. 31)). One additional exhibit is an entry from the ledger book regarding the
Josiah Haines warrant. (See Def. Ex. 41). The court confirmed during trial that this
exhibit was also contained within the CPLC ledger books submitted for
examination. (See 4/27/21 Tr. 115:18-22).
During her deposition, Sekerak testified that each of the letter exhibits were
located in the ledger books on the same page as lots or tracts mentioned in the
letter. Exhibit 15 is a 1904 letter to McCauley regarding a Lot 146 in Hamilton
Township and was affixed in the CPLC ledger book on the page for Tract 146 in
Hamilton Township, and the ledger page references the letter itself. (See Sekerak
Dep. 18:13-19:1). Exhibit 16 is a 1905 letter to McCauley regarding the Alexander
McMullen warrant and was affixed to the ledger’s plat page for the Alexander
McMullen warrant. (See id. at 21:8-25). Exhibit 17 is a 1905 letter to McCauley on
CPLC letterhead regarding “warrant #5105” and is affixed to the ledger page on
“tract 5105” in Forest County. (See id. at 25:12-25). Exhibit 30 is a 1916 letter from
McCauley regarding a Lot 578 in Warren County and is affixed on a ledger page
regarding a “tract of land 578” in Warren County. (See id. at 28:25-29:6). Finally,
Exhibit 31 is a 1916 letter from McCauley regarding “Warrant 4737” in Ulysses
Township and is affixed on a ledger page regarding “tract 4737” in Ulysses
Township. (See id. at 32:13-17).
Based on Sekerak’s deposition testimony, as well as the court’s careful
examination of the ledger books and the letters contained therein, we will overrule
the Game Commission’s authenticity objection. Both the ledger books and the
letters within them contain “distinctive characteristics” that support the Trust’s
claim that they are, in fact, CPLC ledgers as well as letters to and from McCauley
during his tenure with CPLC. See FED. R. EVID. 901(b)(4). The letters were also
located in a place where, if authentic, such documents would be.7 Each letter was
carefully affixed and preserved within CPLC ledger books, and the ledger books
were located in the same county in Pennsylvania that CPLC was headquartered
until its closure. (See Docs. 206-1, 206-2). Finally, the ledger books and letters are
over a century old. The court’s inspection of the ledger books and letters within
them created no suspicion about their age or the circumstances in which they were
located. In sum, we find that the Trust has provided prima facie evidence to
7 The Game Commission observes that the letters were “glued into” the
ledger books and argues they should be considered with suspicion. (See Doc. 214 at
15). We disagree. Neither the ledger books nor the letters were in a condition that
creates suspicion about their authenticity. Sekerak attested that each letter
references a tract of land and is affixed to the ledger page matching that same tract.
(See Sekerak Dep. 15:14-32:25).
authenticate Exhibits 15, 16, 17, 30, 31, and 41, and we will not exclude them on
authenticity grounds.
3. Hearsay Objections
Hearsay is a “statement other than one made by a declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
FED. R. EVID. 801(c). Hearsay is inadmissible unless an exception enumerated in
the Federal Rules of Evidence applies. Agere Sys., Inc. v. Advanced Env’t Tech.
Corp., 602 F.3d 204, 232 (3d Cir. 2010).
The Game Commission objects to several exhibits as hearsay because they
are letters, newspaper articles, or other writings. (See Doc. 214 at 9-10). The Game
Commission alludes to “double hearsay” in its briefing, but provides no further
argument as to what statements within these documents it considers further
hearsay, and we again decline to make the Game Commission’s argument for it.
See Zimmermann, 749 F. App’x at 150 (citation omitted). The Trust responds that
(1) all of the challenged exhibits qualify as ancient documents and are therefore
excepted from the hearsay rule, and (2) the exhibits further qualify under other
hearsay exceptions. (See Doc. 206 at 8-9).
We agree with the Trust. Exhibits 15, 16, 17, 30, 31, and 41 are the
authenticated CPLC ledger book pages and letters affixed to them. They are
ancient documents and are excepted from the hearsay rule. See FED. R. EVID.
803(16); Langbord v. U.S. Dep’t of Treasury, 832 F.3d 170, 190 (3d Cir. 2016).
The Game Commission’s remaining hearsay objections similarly fail. Exhibit
12 is the First Annual Report of CPLC from 1903; it is also excepted as an ancient
document. See FED. R. EVID. 803(16). Exhibits 18, 19, 20, and 22 are excerpts from
Boyd’s Directory in 1906 through 1909. (See Def. Ex. 18-20, 22). These exhibits
qualify as ancient documents, and also qualify as “directories” because they are
“compilations that are generally relied on by the public.” See FED. R. EVID. 803(16),
803(17); see also United States v. Woods, 321 F.3d 361, 364 (3d Cir. 2003) (explaining
rationale behind “directories” exception). Exhibit 27 is a notarized declaration of
trust from 1914 signed by McCauley. (See Def. Ex. 27). This document is self-
authenticating as an acknowledged document, see FED. R. EVID. 902(8), and further
qualifies as an ancient document, see FED. R. EVID. 803(17). Exhibits 32, 48, and 53
are various news articles from the early twentieth century. (See Def. Ex. 32, 48, 53).
These documents are self-authenticating as newspapers or periodicals, see FED. R.
EVID. 902(6), and qualify as ancient documents, see FED. R. EVID. 803(17). We will
not exclude these exhibits on the grounds of hearsay.
III. Findings of Fact
A. CPLC Reported Its Surface Estate in the Josiah Haines Warrant
Prior to 1907
The Commonwealth of Pennsylvania warranted a tract of land to Josiah
Haines in 1793.8 (See Doc. 205 ¶ 1). The land encompassing the Josiah Haines
warrant is located in what is now LeRoy Township, Bradford County. (See id. ¶¶ 1,
3). In 1893, then-owner Schrader Mining & Manufacturing Company conveyed the
Josiah Haines warrant, along with other tracts, to Thomas E. Proctor and Jonathan
8 See Herder Spring, 143 A.3d at 360 n.3 (describing the warrant process by
which land was conveyed in Pennsylvania).
A. Hill. (See id. ¶¶ 4, 5; Joint Ex. 3). The next year, Proctor and Hill and their wives
conveyed the surface estate of the Josiah Haines warrant, along with other tracts, to
Union Tanning. (See Doc. 205 ¶ 6; Joint Ex. 4). The 1894 deed to Union Tanning
expressly “reserved” the subsurface rights to minerals, oil, gas, coal, and petroleum
(hereinafter “mineral rights” or “subsurface estate”) to the tracts contained in the
deed.9 (See Joint Ex. 4 at 13; Doc. 205 ¶¶ 6, 7; Doc. 220 ¶ 13). In the 1894 deed,
Proctor and Hill also retained the land of several warrants less those warrants’
“bark rights.” (See Joint Ex. 4 at 2; Doc. 220 ¶ 14). The warrants retained by
Proctor and Hill in the 1894 deed were the Henry Beck, John Graff, Thomas
Dundas, and James Biddle warrants. (See Doc. 220 ¶ 14). Proctor died the same
year and the defendant, Proctor Trust, is his successor in interest to the Josiah
Haines warrant. (See Doc. 205 ¶¶ 8-10).
LeRoy Township assessment records from 1896 through 1903 reflect Union
Tanning’s ownership in the Josiah Haines warrant. (See Def. Ex. 1). In 1896, the
Josiah Haines warrant is assessed to “U.T. Co.” (See id. at 3). In 1898, the Josiah
Haines warrant is included under “unseated lands ass[’]ed to the Union Tanning
Company.” (See id. at 7). LeRoy Township assessment records from this period
also reflect the lands retained by Proctor in the 1894 deed. (See Def. Ex. 1 at 8).
9 As noted in our summary judgment opinion, it is more accurate to say
Proctor and Hill “excepted” the mineral rights from their conveyance to Union
Tanning, rather than that they “reserved” them. (See Doc. 183 at 3 n.3 (citing
Lauderbach-Zerby Co. v. Lewis, 129 A. 83, 84 (Pa. 1925))).
Namely, the Beck, Graff, Dundas, and Biddle warrants continued to be assessed for
taxes to Proctor and Hill. (See id. at 8, 10, 11, 12, 13).
In 1903, Union Tanning conveyed its surface ownership interest in the Josiah
Haines warrant to CPLC, excepting the rights to certain tree bark and conveying
the property “subject to” all prior exceptions and reservations. (See Doc. 205 ¶¶ 11-
12; Joint Ex. 5). From 1894 through 1902, Union Tanning paid taxes on the Josiah
Haines warrant, which was assessed as unseated in LeRoy Township. (See Joint
Ex. 8 at 10, 14; Joint Ex. 9 at 2, 6, 10, 14, 18; Joint Ex. 10 at 2, 5). From 1903 through
1906, CPLC paid taxes on the same warrant. (See Joint Ex. 10 at 8, 11, 14; Joint Ex.
11 at 2; see also Joint Ex. 11 at 1 (“C P L Co means Central Pennsylvania Lumber
Co.”)). Taxes assessed against the Josiah Haines warrant for 1907 were not paid.
(See Doc. 205 ¶ 13; Joint Ex. 12 at 3).10
As the LeRoy Township assessment records attest, tax officials were aware of
Union Tanning’s surface interest created by the 1894 deed. Starting in 1894, tax
assessments on the Josiah Haines warrant were levied against, and paid by, Union
Tanning. (See Def. Ex. 1 at 7). Meanwhile, the county commissioners continued to
assess taxes on the lands that had been “retained” in the 1894 deed against Proctor
10 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 Joint Ex. 8 at 14; Joint Ex. 9 at 2). That error
was corrected in 1897, (see Joint Ex. 9 at 6), and the entries remained accurate
through 1901, (see id. at 10, 14, 18; Joint Ex. 10 at 2). 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 Joint Ex. 10 at 5, 8,
11, 14; Joint Ex. 11 at 2). For tax years 1907 and 1908, the name is once more
corrected to “Josiah Haines.” (See Joint Ex. 11 at 5, 9).
and Hill. (See Def. Ex. 1 at 8, 10, 11, 12, 13). After Union Tanning conveyed its
surface interest in the Josiah Haines warrant to CPLC in 1903, CPLC was then
assessed, and paid, taxes on the warrant from 1903 to 1906. (See Joint Ex. 10 at 8,
11, 14; Joint Ex. 11 at 2). The evidence of record therefore demonstrates that both
Union Tanning and CPLC reported their surface ownership interests in the Josiah
Haines warrant to county commissioners. (See Doc. 220 ¶ 33).
B. Calvin H. McCauley, Jr., Had a Long-Time Association with CPLC
On June 8, 1908, the Josiah Haines warrant was sold to Calvin H. McCauley,
Jr., to recover the unpaid 1907 taxes. (See Doc. 205 ¶¶ 15-16; Joint Ex. 11 at 5). In
December 1910, McCauley and his wife quitclaimed all interest in numerous
properties, including the Josiah Haines warrant, to CPLC for $1.00. (See Doc. 205 ¶
16). In 1920, CPLC conveyed its interest in the warrant, along with other
properties, to the Game Commission. (Id. ¶¶ 17-18).
At CPLC’s formation in 1903, corporate documentation listed McCauley as
the company’s treasurer. (See Def. Ex. 13 at 2; Def. Ex. 14 at 1). CPLC’s first annual
report lists McCauley as its real estate agent. (See Def. Ex. 12 at 3). In 1904 and
1905 correspondence contained in CPLC’s ledger books, McCauley is addressed as
“R.E. Agt., C.P.L. Company.” (See Def. Ex. 15 at 1; Def. Ex. 16 at 1). Internal
correspondence from CPLC’s “Land and Timber” superintendent dated December
1905 is addressed to McCauley as a “real estate agent” and is stamped with a date of
receipt by “Central Penna Lum. Co. Real Estate Dept.” (See Def. Ex. 17 at 1). The
CPLC ledger book, which contains the company’s bark-peeling records on the
Josiah Haines warrant as well as its own internal record of “land sales,” makes no
mention of McCauley’s purported ownership of the tract; instead, it only lists the
1920 sale to the Commonwealth. (See Def. Ex. 41 at 1). Finally, an excerpt from the
Game Commission’s title abstract contains a schedule of taxes for the Josiah Haines
warrant. (See Pl. Ex. 2 at 40-42). Its listing for 1907 associates McCauley with
CPLC, listing both McCauley and CPLC as the warrant’s “owner” in 1907 and in
1908, two and three years before McCauley quitclaimed the property back to CPLC.
(See id. at 42).
Several public documents confirm McCauley’s association with CPLC as
well. For example, Boyd’s Directory entries from 1906 through 1909 list McCauley
as a real estate agent, assistant general solicitor, or attorney at the same address as
CPLC. (See Def. Exs. 18, 19, 20, 22). The change in McCauley’s title from attorney
to assistant general solicitor in the 1908 Boyd’s listing is supported by the February
1908 news article noting his appointment as “assistant general solicitor for the
Central Pennsylvania Lumber Company.” (See Def. Ex. 48 at 1). McCauley also
appeared as an attorney for CPLC, and as a notary public for CPLC’s president, in
several state court proceedings from 1908 through 1910. (See Def. Ex. 11 at 2; Def.
Ex. 21 at 7; Def. Ex. 23 at 2; Def. Ex. 25 at 1; Def. Ex. 26 at 1, 6). The 1910 United
States census lists McCauley’s occupation as “lawyer” for a “lumber co.” (See Def.
Ex. 24 at 1).
Other actions by McCauley demonstrate his affiliation with CPLC. 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, all in
consideration for $1.00. (See Def. Ex. 29 at 1, 4, 12). The same 1910 sale at which
McCauley quitclaimed the Josiah Haines warrant included 44 additional tracts.
(See id. at 8-11). In 1914, McCauley executed a notarized declaration stating he was
acting in trust for CPLC when he purchased six properties in Elk County from the
county treasurer using funds provided by CPLC. (See Def. Ex. 27 at 2).
After he quitclaimed the Josiah Haines warrant (and other tracts) to CPLC in
1910, McCauley continued to be associated with CPLC for several years. For
example, news articles in 1913 and 1917 note McCauley was elected to CPLC’s
Board of Directors. (See Def. Ex. 32 at 2, 6). The CPLC ledger books also contain
correspondence on McCauley’s personalized CPLC letterhead to an engineer in
1916. (See Def. Ex. 30, 31). We do not hesitate to find that McCauley had a long and
well-documented employment with CPLC.
IV. Conclusions of Law
The plaintiff in a quiet title action must recover on the strength of its own
title, not the weakness of the defendant’s title. See Herder Spring, 143 A.3d at 372
(citing Albert v. Lehigh Coal & Navigation Co., 246 A.2d 840, 843 (Pa. 1968)). The
plaintiff has the burden to prove title by a preponderance of the evidence. See
Montgomery County v. MERSCORP Inc., 795 F.3d 372, 374 n.2 (3d Cir. 2015) (citing
Moore v. Dep’t of Env’t Res., 566 A.2d 905, 907 (Pa. Commw. Ct. 1989)).
A. CPLC Complied with the Act of 1806
Under Pennsylvania law, “there may be three separate estates in land: the
surface, the right of support, and the subsurface mineral rights.” United States v.
3,218.9 Acres of Land, More or Less, Situated in Warren Cnty., 619 F.2d 288, 291 (3d
Cir. 1980) (citing Pa. Bank & Tr. Co. v. Dickey, 335 A.2d 483, 485 (Pa. Super. Ct.
1975); Smith v. Glen Alden Coal Co., 32 A.2d 227, 234 (Pa. 1943)). Thus, a single
tract of land can be “severed and owned by different persons.” 3,218.9 Acres of
Land, 619 F.2d at 291. 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.
Although unseated land was considered “wild,” it could still be “severed into
surface and subsurface estates.” Id. at 364 (citation omitted).
Pennsylvania distinguished between seated and unseated land for tax-
collection purposes. See id. at 363. County land assessors determined whether land
was seated or unseated and then reported that determination to the county
commissioners for appropriate taxation. Id. at 364; see McCall, 4 Watts at 353.
Owners of land designated as seated could be held personally liable for the taxes
assessed on their plot. Herder Spring, 143 A.3d at 364. If land was deemed
unseated, taxes were “imposed on the land itself,” and owners were not held
personally liable if they failed to pay the taxes owed. Id.; Northumberland County
v. Phila. & Reading Coal & Iron Co., 131 F.2d 562, 565-66 (3d Cir. 1942).
In the early 1800s, many unseated landowners failed to pay the taxes due on
their land. See Herder Spring, 143 A.3d at 354. Instead of trying to impose personal
liability for unpaid taxes on these unseated lands, Pennsylvania enacted statutes
whereby the unseated land could simply be sold to pay the delinquent taxes. Id. at
365. We review the Act of 1804 and the Act of 1806 as relevant to the case at bar.
The Act of 1804 constitutes the origin of tax-sale “title-washing.” See id. at
366. According to Section 5:
[S]ales of unseated land, for taxes that are now due ...
shall be in law and equity valid and effectual, to all intents
and purposes, to vest in the purchaser or purchasers of
lands sold as aforesaid, all the estate and interest therein,
that the real owner or owners thereof had at the time of
such sale, although the land may not have been taxed or
sold in the name of the real owner.
Id. at 366 (quoting Act of 1804, April 3, P.L. 517, 4 Sm. L. 201, § 5). This allowed a
tax sale to “extinguish[] all previous titles” to the land that was assessed and sold
for delinquent taxes. See id. at 366 (quoting Reinboth v. Zerbe Run Improvement
Co., 29 Pa. 139, 145 (Pa. 1858)). When unseated land was severed into surface and
subsurface estates, those separate estates “could be separately assessed, taxed, and,
if necessary, sold at tax sale.” Id. at 364 (citing F. H. Rockwell & Co. v. Warren
County, 77 A. 665, 666 (Pa. 1910)).
The Act of 1806 imposed a reporting requirement in connection with
unseated land, stating “it shall be the duty of every holder of unseated lands” to
provide the county commissioners with a signed statement describing the tract of
land and “the name of the person or persons to whom the original title from the
commonwealth passed, and the nature, number, and date of such original title.” Id.
at 368 (quoting 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). For those
transfers occurring after the law’s passage, a person “becoming a holder of
unseated land” was required to “furnish a like statement, together with the date of
the conveyance to such holder, and the name of the grantor, with in one year.” See
id. Failure to comply with this reporting requirement resulted in a penalty equal to
“four times the amount of tax” owed on the land. See id. at 368. The Act of 1806
obligated then-current unseated landowners to provide the commissioners with
information about their property. See id. The Act of 1806 also required subsequent
owners of unseated land to provide information about newly acquired property
interests. See id. To state the obvious, the statutory purpose was “to allow the
commissioners to impose an appropriate tax.” Id. at 369. Owners were also
responsible for reporting a severance of the original warrant or a division due to
such severance, because “assessors would treat unseated lands ‘entirely in
reference to the original warrants, when not otherwise directed by the owners.’” Id.
at 370 (quoting Hutchinson v. Kline, 49 A. 312 (Pa. 1901) (per curiam)). In other
words, unseated land, while severable, was “assessed and taxed as a whole” unless
owners informed the commissioners differently. Id. If the owners did report a
severance, assessors could then separately assess and tax the subsurface estate if it
had value. See id. at 368.
We have already found as a matter of fact that CPLC reported its interest in
the surface estate of the Josiah Haines warrant. We conclude as a matter of law
that CPLC complied with the Act of 1806 by “inform[ing] the commissioners of the
land owned to allow the commissioners to impose an appropriate tax.” See Herder
Spring, 143 A.3d at 369. According to the statute, one who is “becoming a holder of
unseated land” must report his interest. Herder Spring, 143 A.3d at 368 (citation
omitted). In Herder Spring, the record contained “no evidence” that the previous
surface or subsurface owner reported their respective unseated interest to county
commissioners following severance of the warrant at issue. See id. 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. In stark contrast, the tax assessment records in this
matter are competent evidence establishing CPLC’s compliance with the Act of
1806. Cf. Herder Spring, 143 A.3d at 360. Thus, CPLC’s compliance with the
reporting requirements of the Act of 1806 meant that the commissioners of
Bradford County were “otherwise directed” to assess the surface and subsurface
estates of the Josiah Haines warrant separately. See Herder Spring, 143 A.3d at 370
(quoting Hutchinson, 49 A. 312). This critical deviation from the facts of Herder
Spring forecloses the argument that the 1908 tax sale at issue must have included
the whole warrant.
The Game Commission contends that there is “no evidence establishing that
the severance was ever reported to Bradford County Commissioners.” (See Doc.
219 ¶ 20). As we stated in our summary judgment opinion, this argument is merely
semantics; reporting a surface estate for separate taxation and reporting a
“severance” is a distinction without a difference. (See Doc. 183 at 30). The
assessment books make clear that Union Tanning and CPLC were assessed taxes
on the Josiah Haines warrant and paid those taxes. The Game Commission still
offers 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. The Trust has
provided declarations from various records custodians confirming that the initial
correspondence that served as notice to the County Commissioners cannot be
located in various archives. (See Def. Exs. 44, 45, 46).
The assessment books and the notations contained within them are likely the
only remaining public records of any notification to county commissioners. (See
4/27/21 Tr. 50:10-51:20). Although the Game Commission underscores the absence
of tax levies on the Josiah Haines subsurface estate during Union Tanning’s and
CPLC’s ownership of the surface estate, this fact has very limited evidentiary value.
In Herder Spring, the state supreme court observed that subsurface estates were
not taxed unless they were determined to have distinct and cognizable tax value; if
they “had no value,” they were not subject to levy. See Herder Spring, 143 A.3d at
368. Furthermore, the Trust correctly points out that the assessment books contain
no indication that either Union Tanning or CPLC was ever assessed a four-fold
penalty for failing to report. (See Doc. 220 ¶ 33); Herder Spring, 143 A.3d at 368.
Finally, we have received no evidence that Union Tanning or CPLC improperly
reported owning more than the surface estate. We conclude that Union Tanning
and CPLC properly reported their interest in the surface estate of the Josiah Haines
warrant, thus complying with the Act of 1806.
To be clear, however, we do not find as a matter of law that only the surface
estate was assessed in 1907 or offered for sale by the treasurer in 1908. The record
is unclear on the parameters of the 1907 assessment and the 1908 sale. It is
conceivable that the Proctor heirs also defaulted, or the treasurer erroneously
offered the entire warrant at the 1908 tax sale. Our conclusion on this issue merely
serves to reinforce the distinction between the facts of this case and those in Herder
Spring. Nevertheless, as noted in our summary judgment opinion: “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.” (See Doc. 183 at
31). As we conclude below, CPLC’s compliance with the Act of 1806, combined with
McCauley’s status as an agent of CPLC, as well as CPLC’s breach of its duty to pay
1907 taxes on the Josiah Haines warrant, rendered McCauley’s 1908 purchase a
mere redemption.
B. McCauley Acted as CPLC’s Agent During the 1908 Tax Sale
The existence of a principal-agent relationship is a question for the
factfinder. See 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)). Such a relationship “results from the consent of one [] that another may
act on his behalf.” Lincoln Ave. Indus. Park v. Norley, 677 A.2d 1219, 1222 (Pa.
Super. Ct. 1996) (citing Smalich v. Westfall, 269 A.2d 476, 480 (Pa. 1970)). The
agency relationship “requires no special formalities.” McIlwain v. Saber Healthcare
Grp., Inc., 208 A.3d 478, 485 (Pa. Super. Ct. 2019). Nor must it be in writing. See
Falconer v. Mazess, 168 A.2d 558, 560 (Pa. 1961). An agency relationship’s existence
need not be proven by direct evidence “if it can be reasonably inferred from the
circumstances of the case.” See Scott v. Purcell, 415 A.2d 56, 61 n.8 (Pa. 1980)
(citing Yezbak v. Croce, 88 A.2d 80, 82 (Pa. 1952)).
We find that McCauley acted as an agent of CPLC in the 1908 tax sale of the
Josiah Haines warrant. See Lincoln Ave., 677 A.2d at 1222 (citing Smalich, 269 A.2d
at 480). The evidence offered by the Trust allows us to “reasonably infer” an
agency relationship from the unique circumstances of this case, where the
individuals with personal knowledge of an agency relationship agency are no longer
living. See Scott, 415 A.2d at 61 n.8 (citation omitted).
Principally, we emphasize an undisputed fact: after McCauley purchased the
Josiah Haines warrant at a June 1908 tax sale, CPLC—not McCauley—paid taxes on
the Josiah Haines warrant in 1908 and 1909. (See Joint Ex. 11 at 9; Def. Ex. 47 at 2).
Other record evidence originating with CPLC confirms this conclusion, including
CPLC’s corporate documentation naming McCauley in its leadership, CPLC’s
ledger books that conspicuously lack any record of the purported sale to McCauley,
and CPLC internal correspondence to and from McCauley while he worked for the
company. (See Def. Exs. 12-17, 30-32, 41). We further note that public documents,
including Boyd’s Directory excerpts, court filings, newspaper articles, and
McCauley’s own notarized declaration reinforce our conclusion. (See Def. Exs. 11,
18-23, 25-27, 48). In much the same way McCauley declared he was acting “in trust
for” CPLC when he made tax purchases in Elk County, we conclude he was acting
on behalf of CPLC when purchasing the Josiah Haines warrant in Bradford County.
(See Def. Ex. 27 at 2).
C. Because CPLC Breached Its Duty to Pay 1907 Taxes, McCauley’s
Purchased as CPLC’s Agent Effected Only a Redemption
It is uncontested that in 1907, CPLC did not pay the assessed taxes on the
Josiah Haines warrant, thereby causing the property to be sold by the Bradford
County treasurer at the 1908 tax sale. (See Doc. 205 ¶¶ 13, 15). Default occurred in
1907, the very same year that CPLC records indicate the company completed its
bark-peeling activities on the tract. (See Def. Ex. 41 at 1). In June 1908, McCauley
purchased the Josiah Haines warrant for $49.36, an amount equal to the delinquent
taxes for 1907. (See Doc. 205 ¶ 16; Joint Ex. 2 at 72).
We held in our summary judgment opinion that CPLC had a duty to pay
taxes on its surface interest in the unseated Josiah Haines warrant in 1907. (See
Doc. 183 at 31-43). We restate the bulk of our previous legal analysis herein, as it
undergirds our current findings.
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) (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.
There is no case precedent which 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
currently owned the surface estate. 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 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 Gibson, 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 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—since he was 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 Phila. 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 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 June 6, 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 supreme 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 noted 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, 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 1887.11 Had the
Herder Spring court intended such drastic outcomes, it would have made its
11 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
McCoy, 7 Watts & Serg. at 391).
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.
We find unpersuasive the Game Commission’s arguments against the
existence of a legal duty to pay taxes on unseated land, as reiterated in its bench
trial memorandum. (See Doc. 219 at 17-25). The Game Commission argues that we
have misinterpreted the Powell case. (See id. at 17-21). 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.
Furthermore, the fact that CPLC had no duty to pay taxes on the subsurface
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. We therefore conclude, as we did in our summary judgment opinion, that
CPLC as an unseated landowner had a legal duty to pay taxes assessed on its land.
In the matter sub judice, CPLC was the undisputed surface owner of the
Josiah Haines warrant prior to the 1908 tax sale. (See Doc. 205 ¶ 11). Thus, CPLC
had an affirmative duty to pay taxes assessed on its interest in the surface estate,
and breached its duty by failing to pay those taxes in 1907. (See id. ¶ 13). We
reiterate that 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. See Powell, 34 A. at 451. McCauley was acting as CPLC’s agent at the 1908
tax sale, and therefore the rule set forth in Powell applies here. CPLC’s purchase
through McCauley effectuated nothing more than a redemption of its surface
interest. See id. 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). Since McCauley’s purchase acted as a redemption, it left the
title as it stood before the sale was made. See id. at 779. Thus, Proctor’s subsurface
interest in the Josiah Haines warrant was not extinguished at the tax sale, and the
Proctor Trust continues to hold its interest in the subsurface estate.
V. Conclusion
We find in favor of Proctor Trust on the issue of ownership of the subsurface
estate of the Josiah Haines warrant. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: December 3, 2021