The opinion
U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-1587
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA GAME COMMISSION,
Appellant
v.
THOMAS E. PROCTOR HEIRS TRUST,
under Declaration of Trust dated October 28, 1980,
which is recorded in Sullivan County in Book 1106,
at page 879, its successors and assigns
________________
Appeal from the U.S. District Court, M.D. Pa.
Judge Christopher C. Conner, No. 1:12-cv-01567
Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges
Submitted Sep. 22, 2025; Decided Jul. 31, 2026
________________
OPINION OF THE COURT
KRAUSE, Circuit Judge.1 In Galette v. New Jersey Transit
Corp., 607 U.S. 509 (2026), the Supreme Court clarified the
proper framework for determining whether a state-created
entity is an “arm of the state”—a status that carries significant
consequences for federal jurisdiction. One, at issue in Galette,
is that the entity then qualifies for sovereign immunity, but
another is that the entity is disqualified from state “citizenship”
for purposes of diversity jurisdiction. This appeal arises in the
latter context and requires us, for the first time, to consider how
Galette affects the framework we have historically applied and,
in so doing, we answer the question percolating in our district
courts as to whether Appellant, the Pennsylvania Game
Commission, is an “arm” or a citizen of the Commonwealth of
Pennsylvania.
Because we conclude, under an updated arm-of-the-state
analysis, that the Game Commission is a citizen, the Game
Commission properly invoked diversity jurisdiction and we
must reach the merits of this quiet title action. From that point,
the merits are resolved by the Pennsylvania Supreme Court’s
answer to our certification petition on a controlling question of
state law: The Thomas E. Proctor Heirs Trust retains an
ownership interest in the subsurface estate of the tract of land
1
This matter was originally heard on January 11, 2023, before
Judges Jordan, Phipps, and Roth, who certified a question of
state law to the Pennsylvania Supreme Court pursuant to
3d Cir. L.A.R. Misc. 110. While that matter was pending,
Judge Kent A. Jordan retired, and the panel was reconstituted
to include Judge Cheryl Ann Krause.
2
at issue, so we will affirm the District Court’s judgment in
favor of the Trust.
I. BACKGROUND
This appeal concerns the ownership rights to a single tract
of land, the Josiah Haines warrant, presenting “bellwether”
claims as to District Court litigation involving thousands of
acres of land with valuable oil and gas deposits in northeastern
Pennsylvania. Pa. Game Comm’n v. Thomas E. Proctor Heirs
Tr., No. 1:12-cv-1567, 2021 WL 5759030, at *1 (M.D. Pa.
Dec. 3, 2021). Bradford County sold the Josiah Haines warrant
at a public tax sale in 1908, and we are tasked with determining
the effect of that sale.
Title to the Josiah Haines warrant and its subsurface
resources passed through several hands before the 1908 tax
sale. In 1894, one year after Thomas E. Proctor, the Trust’s
predecessor, obtained title to the Josiah Haines warrant,
Proctor, Jonathan A. Hill, and their wives conveyed its surface
estate to the Union Tanning Company, while reserving the
subsurface estate—i.e., “all the minerals, coal, oil, gas, or
petroleum”—to themselves and their heirs.2 App. 313; 360-74.
2
Bradford County classified the Josiah Haines warrant as
“unseated land.” App. 169, 561. Prior to 1947, Pennsylvania
distinguished between seated land—which contained
residential structures or valuable personal property, or
produced a regular profit through cultivation, lumbering, or
mining—and unseated land—which was any “wild” land that
3
The Union Tanning Company paid taxes on the surface estate
until 1903, when it conveyed the Josiah Haines warrant,
subject to all prior exceptions and reservations, to its affiliate,
the Central Pennsylvania Lumber Company (CPLC).
The controversy underlying this appeal arose when CPLC
failed to pay taxes on the surface estate in 1907 and, because
of that tax default, Bradford County sold the Josiah Haines
warrant at a public tax sale in 1908. The purchaser at the tax
sale was Calvin H. McCauley, Jr., who had close ties to the
defaulting party; he had served as CPLC’s treasurer, real estate
agent, and assistant general solicitor since its inception in 1903.
Although McCauley nominally owned the Josiah Haines
warrant, CPLC continued to pay taxes on the surface estate in
the following years. And in 1910, McCauley and his wife
quitclaimed the land back to CPLC for just $1.00.
Ten years later, CPLC conveyed various tracts of land,
including the Josiah Haines warrant, to the Pennsylvania Game
Commission subject to the Trust’s prior reservations of its
subsurface rights in the 1894 and 1903 deeds. The Game
Commission and the Trust now seek to quiet title and obtain a
did not qualify as seated. Pa. Game Comm’n v. Thomas E.
Proctor Heirs Tr., 335 A.3d 1108, 1110 (Pa. 2025) (quoting
Herder Spring Hunting Club v. Keller, 143 A.3d 358, 364
(Pa. 2016)). Both seated and unseated land “could be severed
into surface and subsurface estates, which could be separately
assessed, taxed, and, if necessary, sold at tax sale.” Id. at
1111 n.3 (quoting Keller, 143 A.3d at 364).
4
declaration that they are the respective owners of the oil, gas,
and mineral rights associated with the subsurface estate of the
Josiah Haines warrant.
The Game Commission invoked the District Court’s
diversity jurisdiction to resolve this state-law question of
property ownership in federal court.3 Following discovery and
multiple motions for summary judgment, the District Court
ordered the parties to proceed to trial, noting that material
disputes of fact existed as to whether Bradford County assessed
the Josiah Haines warrant as seated or unseated land in 1907
and whether McCauley was acting as CPLC’s agent when he
purchased the warrant at the 1908 tax sale.
Those factual disputes were resolved through a one-day
bench trial where the District Court reviewed over one hundred
exhibits and subsequently entered judgment in favor of the
Trust. It determined that “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,” and that
“McCauley was acting as CPLC’s agent at the 1908 tax sale,”
so under Pennsylvania law, CPLC could not use its agent to
acquire a better title at the tax sale. Pa. Game Comm’n, 2021
WL 5759030, at *18. Therefore, “McCauley’s purchase acted
3
The parties’ quiet title claims involve the Josiah Haines
warrant and various nearby tracts of land, but this appeal
focuses on the former. We do not opine on the parties’ quiet
title claims as to any other tracts of land.
5
as a redemption” of CPLC’s surface interest, leaving the
Trust’s subsurface interest untouched. Id.
At the Game Commission’s request and pursuant to
28 U.S.C. § 1292(b), the District Court certified a portion of its
post-trial judgment order for interlocutory appeal, specifying
the single question of controlling law that is now before us for
review:
Under Pennsylvania law in effect at all times
relevant to the instant quiet title dispute, did the
owner of an unseated surface estate have a legal
duty to pay taxes assessed on said surface estate,
thereby preventing the owner—or the owner’s
agent—from acquiring better title to the land at a
tax sale induced by the unseated surface owner’s
default?
App. 3. Meanwhile, the Commonwealth Court of
Pennsylvania was considering a case involving the same
parties and raising similar issues, so after hearing oral
argument, we initially held this appeal c.a.v. to allow the
Pennsylvania courts to resolve the issues of state law in the first
instance. But because the state court case was at a substantially
earlier stage of litigation and the Commonwealth Court had
stayed its proceedings pending our resolution of the Game
Commission’s request to certify the controlling legal question
to the Pennsylvania Supreme Court, we vacated our hold and
6
granted that certification request.4 The Pennsylvania Supreme
Court accepted the certification and, in a thorough and
carefully crafted opinion, held that Pennsylvania’s title wash
doctrine did not apply to the 1908 tax sale. See Pa. Game
Comm’n v. Thomas E. Proctor Heirs Tr., 335 A.3d 1108, 1110
(Pa. 2025). That is, it “determine[d] that the 1908 tax sale did
not constitute a title wash but, rather, acted as a mere
redemption of taxes owed and, as such, did not divest the
subsurface owners of their interest in the [Josiah] Haines
Warrant.” Id.
As we were poised to finally decide the issue, we identified
an open question regarding the propriety of diversity
jurisdiction and obtained supplemental briefing. At that point,
the Game Commission, which had alleged in its complaint that
it has Pennsylvania citizenship as “an independent state
commission of the Commonwealth of Pennsylvania,” App. 83,
changed its mind after receiving the Pennsylvania Supreme
4
We modified the certified question to the Pennsylvania
Supreme Court as follows:
[W]hether, on the record provided here, a 1908
tax sale of an unseated parcel of land, induced by
the surface owner’s failure to pay taxes on the
estate, and made to an agent of the defaulting
surface owner, constitutes a title wash, thereby
divesting the subsurface owner of his interest in
the estate.
Pa. Game Comm’n v. Thomas E. Proctor Heirs Tr.,
No. 22-1587, 2023 WL 8224102, at *1 (3d Cir. Oct. 11, 2023).
7
Court’s adverse opinion concerning the title wash doctrine and
asserted that it is an arm, not a citizen, of the Commonwealth.
The Trust, of course, maintained that the Game Commission is
a citizen and that the Pennsylvania Supreme Court’s decision
controls. We now proceed to address both our jurisdiction and
the answer to the controlling question of Pennsylvania law,
ultimately concluding that the Game Commission’s Hail Mary
argument cannot win the day.
II. JURISDICTION AND STANDARD OF REVIEW
Having concluded that the Trust and the Game Commission
are citizens of different states and the amount-in-controversy
requirement is satisfied, the District Court properly exercised
jurisdiction under 28 U.S.C. § 1332, and we accept jurisdiction
pursuant to 28 U.S.C. § 1292(b).5 We exercise plenary review
over issues of subject matter jurisdiction, reviewing legal
5
In this interlocutory appeal, “we may address any issue fairly
included within the [District Court’s] certified order because it
is the order that is appealable, and not the controlling question
identified by the district court.” Se. Pa. Transp. Auth. v.
Orrstown Fin. Servs. Inc., 12 F.4th 337, 344 (3d Cir. 2021)
(citation modified). Here, the certified order encompasses only
“Part IV.C of the memorandum and order” of the District Court
“dated December 3, 2021.” App. 3. Therefore, although our
review is not limited to the controlling question of law
articulated by the District Court, we “may not reach beyond the
certified order” to consider the District Court’s factual findings
or “other orders made in the case.” Yamaha Motor Corp. v.
Calhoun, 516 U.S. 199, 205 (1996).
8
conclusions de novo and factual findings for clear error.
Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 345
(3d Cir. 2013). The Pennsylvania Supreme Court’s opinion on
the certified question of state property law “constitutes
precedent that we are bound to follow.” Wirth v. Aetna U.S.
Healthcare, 469 F.3d 305, 311 (3d Cir. 2006).
III. DISCUSSION
Before addressing the merits of the District Court’s
certified question, we must confirm that the Game Commission
properly invoked the District Court’s subject matter
jurisdiction. The Game Commission’s complaint asserts that
the District Court had jurisdiction based on the diversity of the
parties under 28 U.S.C. § 1332, which extends federal courts’
limited subject matter jurisdiction to civil disputes between
“citizens of different States.” Id. § 1332(a)(1). But we have a
“continuing obligation to assess subject matter jurisdiction sua
sponte at all stages of the proceeding, even when parties do not
raise the issue,” Peace Church Risk Retention Grp. v. Johnson
Controls Fire Prot. LP, 49 F.4th 866, 869 (3d Cir. 2022), and
the citizenship status of the Game Commission is reasonably
in question. We therefore consider the question of jurisdiction
before turning to the merits.
A. Subject Matter Jurisdiction
Before Galette v. New Jersey Transit Corp., 607 U.S. 509
(2026), we had developed a rather elaborate arm-of-the-state
test using the so-called Fitchik factors, see Fitchik v. N.J.
9
Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989)
(en banc), and several subfactors we articulated over time,
see Maliandi v. Montclair State Univ., 845 F.3d 77, 83-84
(3d Cir. 2016), to structure our analysis, see, e.g., Patterson v.
Pa. Liquor Control Bd., 915 F.3d 945, 951-55 (3d Cir. 2019)
(outlining and applying the multifactor test). Given the
variation among the Courts of Appeals and state supreme
courts, however, the Supreme Court took up the issue and has
now provided valuable guidance. We will briefly review the
lessons of Galette and then apply them to the Game
Commission.
1. Guidance from the Supreme Court in Galette
In Galette, the Supreme Court resolved a disagreement
between two state supreme courts as to whether the New Jersey
Transit Corporation (NJ Transit) is an arm of New Jersey. It
first explored the features of NJ Transit, noting that New Jersey
“structured the entity as a body corporate and politic with
corporate succession,” located within the Department of
Transportation but “independent of any supervision or control
by the department.” Galette, 607 U.S. at 516 (citation
modified). New Jersey also gave NJ Transit “significant
authority,” including, among others, the powers to “sue and be
sued; enter into contracts; acquire or deal in and with real or
personal property; raise funds . . . ; adopt rules and regulations
as necessary; and exercise eminent domain powers.” Id. (citing
N.J. Stat. §§ 27:25-5, 27:25-13). But New Jersey tempered
that authority by empowering its Governor to veto any action
10
taken by NJ Transit’s board of directors, and the state expressly
disclaimed any liability for NJ Transit’s debts or liabilities in
the entity’s organic statute. See id. at 516-17 (citing N.J. Stat.
§§ 27:25-4(f), 27:25-17).
The Court then chronicled its arm-of-the-state precedents
and discerned that those cases “have consistently, and
predominantly, examined whether the State structured the
entity as a legally separate entity liable for its own judgments.”
Id. at 523-24. While those precedents “also suggest[ed] that
courts may consider the degree of control the State exerts over
the entity,” the Court warned that we “should do so with
caution” because “ultimate control of every state-created entity
resides with the State” and “gauging actual control” based on
various factors “can be a perilous inquiry.” Id. at 526 (citation
modified). It applied those considerations to NJ Transit,
emphasizing the entity’s corporate structure and “typical
corporate powers,” as well as New Jersey’s lack of formal
liability for the entity’s debts or liabilities. Id. at 529. And
based on those two primary considerations—legal separation
and source of liability funding—the Court determined that NJ
Transit “is a legally separate corporation and is responsible for
its own judgments,” and observed that New Jersey’s
“substantial amount of control over NJ Transit,” did not
“meaningfully affect” the conclusion that it is not an arm of the
state. Id. at 530.
Prior to Galette, our arm-of-the-state test centered on the
three factors we adopted in Fitchik v. N.J. Transit Rail
11
Operations, Inc., 873 F.2d 655 (3d Cir. 1989) (en banc);
namely, “(1) whether the payment of the judgment would
come from the state; (2) what status the entity has under state
law; and (3) what degree of autonomy the entity has.”
Patterson, 915 F.3d at 950 (quoting Karns v. Shanahan,
879 F.3d 504, 513 (3d Cir. 2018)). We previously treated these
three factors as “co-equal,” id. (citation modified), but the
Supreme Court’s analysis in Galette has since modified our
approach by placing nearly all the weight on the first two
factors and treating the autonomy factor as a distant third of
limited relevance, see 607 U.S. at 523-25.
While Galette altered the weight assigned to the three
Fitchik factors, the substance of those factors remains largely
intact. The “predominant[]” considerations identified in
Galette map onto our first two Fitchik factors: Whether an
entity is “liable for its own judgments” is covered by the
funding factor, and whether an entity is “legally separate” is
addressed by the status-under-state-law factor. Id. at 523-24.
And it is apparent from the Court’s analysis of NJ Transit that,
when it comes to identifying whether an entity “is a legally
separate corporation . . . responsible for its own judgments,”
id. at 530, the same subfactors we have historically looked at
remain pertinent, see Maliandi, 845 F.3d at 86, 91.
Going forward, then, to determine whether an entity is an
arm of the state, our analysis will predominantly focus on
(1) whether the entity is “liable for its own judgments,” and
(2) whether the state “structured the entity as a legally separate
12
entity.” Galette, 607 U.S. at 524. We may consider “with
caution” the degree of control exercised by the state over the
entity, but we will assign that consideration low probative
value and bear in mind that the Supreme Court “has never once
found a corporation that was liable for its own judgments to be
an arm of the State, even when the State had significant control
over the entity.” Id. at 526. The Fitchik factors and their
various subfactors will continue to guide our arm-of-the-state
analysis, and our precedents assessing those factors remain
authoritative. But at the balancing stage, consistent with
Galette, we will no longer treat the entity’s degree of autonomy
as co-equal with the predominant considerations.
2. Application of the Updated Arm-of-the-State Test to the
Game Commission
It is well established that “a State is not a ‘citizen’ for
purposes of . . . diversity jurisdiction,” nor are its constituent
entities that are “simply ‘the arm or alter ego of the State.’”
Moor v. County of Alameda, 411 U.S. 693, 717 (1973)
(emphasis added) (citing Postal Tel. Cable Co. v. Alabama,
155 U.S. 482, 487 (1894)). The test to determine whether an
entity is an arm of the state for diversity purposes “parallels”
our Eleventh Amendment sovereign-immunity analysis, Blake
v. Kline, 612 F.2d 718, 726 (3d Cir. 1979); see also Galette,
607 U.S. at 521 (citing Moor, 411 U.S. at 717-19)).6 So, we
6
Unlike sovereign immunity, however, the diversity of
citizenship required for federal courts to exercise subject
13
will apply our updated arm-of-the-state test, as refined by the
Supreme Court’s guidance in Galette, to determine whether the
Game Commission is an arm of Pennsylvania—i.e., whether it
is structured as “a legally separate entity liable for its own
judgments.”7 607 U.S. at 524.
a. Galette’s First Predominant Consideration: Liability for
Judgments Against the Entity
The first predominant consideration addresses “whether the
entity is liable for its own judgments”—specifically, whether
“any judgment against the entity must be satisfied out of the
state treasury.” Id. at 525 (citation modified). As discussed
below, we look to “(1) a state’s legal obligation to pay a money
judgment entered against the entity; (2) whether the agency has
money to satisfy the judgment; and (3) whether there are
specific statutory provisions that immunize the state from
matter jurisdiction “can never be forfeited or waived.”
United States v. Cotton, 535 U.S. 625, 630 (2002).
7
Our inquiry is informed by reference to the characteristics of
analogous Pennsylvania entities that have been the subjects of
similar arm-of-the-state analyses. See, e.g., Christy v.
Pa. Turnpike Comm’n, 54 F.3d 1140, 1150 (3d Cir. 1995)
(holding that the Turnpike Commission is not an arm of the
state); Gerr v. Emrick, 283 F.2d 293, 297-98 (3d Cir. 1960)
(same); Pa. Hum. Rels. Comm’n v. USAir, Inc.,
615 F. Supp. 75, 78 (W.D. Pa. 1985) (holding that the
Pennsylvania Human Relations Commission (PHRC) is an arm
of the state).
14
liability for money judgments.” Patterson, 915 F.3d at 951
(citing Fitchik, 873 F.2d at 659).
i. The Commonwealth’s Legal Obligation to Pay a
Money Judgment Against the Game Commission
We focus our analysis of the Commonwealth’s obligation
to bear judgments against an entity on its “formal legal
liability.” Galette, 607 U.S. at 525 (emphasis added). If it
were apparent from the face of Pennsylvania’s statutory
provisions that the Commonwealth “is formally liable for
judgments against” the Game Commission, such that the Game
Commission’s liabilities would “necessarily undermine the
State’s ability to make choices about how to allocate the State
fisc,” the Game Commission would be “more likely to be an
arm of the State.” Id. Here, unlike in Galette, the relevant
statutory provisions do not expressly impose or disclaim such
obligations. Compare 607 U.S. at 529-30 (“New Jersey law
provides that ‘[n]o debt or liability of the corporation shall be
deemed or construed to create or constitute a debt, liability, or
a loan or pledge of the credit of the State.’” (quoting N.J. Stat.
§ 27:25-17)), with 34 Pa. Cons. Stat. § 301 et seq. (lacking any
similar language). Therefore, we must look beyond the
Commonwealth’s formal assumption of liabilities and consider
“the practical realities of state funding.” Galette, 607 U.S. at
534.
The Supreme Court cautioned against “[h]inging an entity’s
arm-of-the-State status to [such] practical realities,” in part,
because NJ Transit’s state funding oscillated from year to year,
15
risking “arbitrary distinctions.” Id. In contrast, this is not a
situation where we must “decide how much [state] funding is
enough” to prove financial entanglement with the state, id.,
because the Game Commission “receives no General Fund
money from the state’s annual budget,” Frequently Asked
Questions, Pa. Game Comm’n,
https://www.pa.gov/agencies/pgc/about-us/frequently-asked-
questions [https://perma.cc/4224-NQK2] (last visited Apr. 30,
2026); see also Vanderklok v. United States, 868 F.3d 189,
205 n.16 (3d Cir. 2017).
Rather than relying on appropriations from the General
Fund, the Game Commission has the exclusive right to expend
money from a “separate fund,” known as the Game Fund, “for
any contingent, incidental or other expenses of any kind or
description reasonably necessary in carrying on the work of the
commission.” 34 Pa. Cons. Stat. § 521(a); see id. § 522.
Money in the Game Fund primarily consists of revenues from
hunting and furtaking licenses, see 34 Pa. Cons. Stat. § 2709,
proceeds from the sale of mineral leases and similar grants to
use its lands, see id. §§ 725, 727, and federal wildlife
restoration funds, see id. § 324. The fact that independently
generated money in the Game Fund is intended to cover the
Game Commission’s expenses suggests that “[Pennsylvania]
is under no obligation to pay [the Game Commission’s] debts
or reimburse [the Game Commission] for judgments that it
pays,” and any state appropriation to the Game Commission
because of an adverse judgment “will be entirely the result of
discretionary action by the state.” Fitchik, 873 F.2d at 661
16
(citation modified); cf. Galette, 607 U.S. at 525 (“In contrast to
formal legal liability, an entity’s . . . expectation that the State
would cover its judgments if needed, has less relevance.”).
We confronted a similar situation in Christy v.
Pennsylvania Turnpike Commission, 54 F.3d 1140
(3d Cir. 1995), where the Turnpike Commission’s organic
statute likewise lacked express language about the
Commonwealth’s legal obligation to pay its judgments. There,
we remarked: “That four of the five established sources of the
Commission’s funding are not state-derived is, we think, even
in the absence of additional information, some support for the
conclusion that the Commission is not the alter ego of
Pennsylvania.” Christy, 54 F.3d at 1145. That support is even
stronger here, where none of the Game Commission’s funding
derives from the General Fund.
Although the Game Commission is subject to performance
audits and must submit annual estimates of its expenditures to
the Governor for approval, see 34 Pa. Cons. Stat. § 522, that
sort of “state regulation of the Commission’s funding” is “only
significant to the funding analysis where such control indicates
state ownership of the funds,” Christy, 54 F.3d at 1145-46;
see also Galette, 607 U.S. at 526 (noting that “[c]ontrol is not
especially probative”). And because the Commonwealth’s
oversight of the Game Commission’s expenditures from the
Game Fund—which “shall be used solely” by the Game
Commission, 34 Pa. Cons. Stat. § 521(a); see id. § 522(a)—
does not show “a financial interest on the part of Pennsylvania
17
that would be directly and adversely affected by the diminution
of the Commission’s funds,” that oversight “falls short of
indicating state ownership of the funds,” Christy, 54 F.3d
at 1146.8
ii. The Game Commission’s Ability to Satisfy a
Judgment Against It
Next, we consider “whether the entity has money to pay an
adverse judgment, and whether the entity has sources of
funding aside from state appropriations that could satisfy the
judgment.” Patterson, 915 F.3d at 951-52 (citation modified).
Although this subfactor does not address “whether the State
would be formally obligated to pay the entity’s judgments,”
Galette, 607 U.S. at 534, it informs our determination of
whether an entity will bear its own judgments where, as here,
its organic statute is silent as to formal liability.
As discussed above, “all moneys in the Game Fund
are . . . appropriated to the [Game Commission],” 34 Pa.
Cons. Stat. § 522(a), and those funds are substantial, see
8
See also Galette v. New Jersey Transit Corp., 607 U.S.
509, 530 (2026) (determining that the State’s “substantial
amount of control over” the entity—including gubernatorial
veto authority—“does not change the overall conclusion” that
the entity is not an arm of the state); Fitchik, 873 F.2d at 660
(explaining that the Governor’s ability to influence the entity’s
revenue-raising efforts by exercising veto power over its
operations did not indicate state ownership of the entity’s
money).
18
Pennsylvania Office of the Budget, 2025-26 Governor’s
Executive Budget (2025), at E21-2; cf. Vanderklok, 868 F.3d
at 205 n.16. The Game Commission also “need not ‘request
funds from the state coffers in order to meet shortfalls caused
by adverse judgments,’” Bolden v. Se. Pa. Transp. Auth.,
953 F.2d 807, 819 (3d Cir. 1991) (en banc) (quoting
Fitchik, 873 F.2d at 661), because it can cover any shortfall by
raising certain fees or by decreasing its expenses, 34 Pa. Cons.
Stat. §§ 725, 2904(c).
These facts suffice to show that the Game Commission
could independently pay a judgment against it. See Christy,
54 F.3d at 1146-47 (noting that the Turnpike Commission’s
ability to increase revenue through toll rates or decrease
expenses demonstrated its ability to satisfy a judgment against
it).9
iii. The Commonwealth’s Immunization from the Game
Commission’s Debts and Liabilities
When analyzing the final funding subfactor, we ask
“whether the state has immunized itself from the entity’s
debts.” Patterson, 915 F.3d at 952; see Galette, 607 U.S.
9
See also Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 305
(3d Cir. 2008) (observing that a transportation agency could
raise fares to satisfy a judgment); Fitchik, 873 F.2d at 661
(same); cf. USAir, 615 F. Supp. at 77 (“The PHRC is entirely
dependent on Commonwealth for its funding because the
PHRA makes no provision for the collection of fines.”).
19
at 530 (highlighting that, under New Jersey law, “[n]o debt or
liability of [NJ Transit] shall be deemed or construed to create
or constitute a debt . . . of the State” (quoting N.J. Stat.
§ 27:25-17)). The Game Code provides that “any contingent,
incidental or other expenses of any kind or description
reasonably necessary in carrying on the work of the [Game
Commission]” should be paid from the Game Fund. 34 Pa.
Cons. Stat. § 521. Although there is no statutory provision, as
there was in Galette, see 607 U.S. at 529-30, expressly
immunizing the Commonwealth from responsibility for the
Game Commission’s debts and liabilities, we have previously
rejected the argument “that the absence of a blanket disclaimer
is significant,” Christy, 54 F.3d at 1147. So, in the absence of
such an express disclaimer of liability or an indication that the
Commonwealth is under any affirmative obligation to pay for
judgments against the Game Commission, see Section
II.A.2.a.i, this subfactor carries little weight.
* * *
In sum, because the Game Commission is “responsible for
its own judgments,” with payment coming from the Game
Fund rather than the state treasury, the first predominant
consideration indicates that the Game Commission is not an
arm of the state. Galette, 607 U.S. at 530.
20
b. Galette’s Second Predominant Consideration: Separate
Legal Status of the Entity
The second predominant consideration requires us to
determine whether Pennsylvania structured the Game
Commission “as part of itself or as legally independent.”
Galette, 607 U.S. at 525; see Fitchik, 873 F.2d at 662. Four
subfactors guide our analysis: “(1) how the law treats the
agency generally; (2) whether the agency is separately
incorporated; (3) whether the agency can sue and be sued in its
own right; (4) and whether it is immune from state taxation.”
Patterson, 915 F.3d at 953; see also Galette, 607 U.S.
at 528-30 (considering several of these subfactors).
i. Overall Treatment Under Pennsylvania Law
First, we look to Pennsylvania’s statutes and opinions from
its state courts to assess the Game Commission’s general
treatment under state law. Pennsylvania statutes define the
Game Commission as an “independent administrative
commission,” 34 Pa. Cons. Stat. § 301(a), or an “independent
agency,” 71 P.S. § 732-102, that is “not subject to the policy
supervision and control of the Governor,” 2 Pa. Cons. Stat.
§ 101. The Game Commission possesses “the hallmarks of
separate legal personhood,” Galette, 607 U.S. at 530, including
the powers to sue in its own name, 34 Pa. Cons. Stat. § 322(a);
enter contracts, 34 Pa. Cons. Stat. §§ 302(f), 323; acquire
property for its own use, albeit not in its own name, 34 Pa.
Cons. Stat. §§ 701, 706; collect licensing fees, 34 Pa. Cons.
Stat. § 2709; and raise proceeds from the sale of rights and
21
natural resources under its purview, 34 Pa. Cons. Stat. § 727;
see also Galette, 607 U.S. at 529 (citing NJ Transit’s power to
sue and be sued, make contracts, acquire property, set and
collect fares, and raise funds as evidence of its legal
separateness); Christy, 54 F.3d at 1148 (noting that the powers
to sue and enter contracts are “traits not at all characteristic of
an arm of the state”).
No doubt, some statutory provisions give inconsistent
signals about the Game Commission’s status by granting it
attributes of sovereignty. For example, the Game Commission
may exercise eminent domain when acquiring property,
employ personnel to exercise law enforcement powers, and
enact regulations to ensure proper use of its lands. See 34 Pa.
Cons. Stat. §§ 303(a), 322(c)(10), 701, 901. But the Supreme
Court explained that a state’s decision to delegate to an entity
“substantial plenary public powers, such as the power to
operate a police force, exercise eminent domain power, and
promulgate regulations,” is not the concern of the
arm-of-the-state test. Galette, 607 U.S. at 532 (citation
modified). We focus “not on whether the entity serves public
functions, but rather on whether the State has chosen to serve
those public functions through its own apparatus or through
that of a legally separate entity.” Id. And we have already
recognized that such attributes of sovereignty are not
particularly salient, as they were also true of the Turnpike
Commission, see Christy, 54 F.3d at 1148; 74 Pa. Cons. Stat.
§ 8107, where we still concluded “[o]n balance” that the
second predominant consideration “weigh[ed] slightly in favor
22
of the conclusion that the [Turnpike] Commission is not an
arm of the Commonwealth of Pennsylvania,” Christy, 54 F.3d
at 1148.
While Pennsylvania’s statutory provisions favor the
conclusion that the Game Commission is not structured as an
arm of the state, we are cognizant that several Pennsylvania
state courts, including its Supreme Court, have concluded that
the Game Commission is entitled to sovereign immunity.
See, e.g., Bannard v. N.Y. State Nat. Gas Corp., 172 A.2d 306,
313 (Pa. 1961); Roe v. Pa. Game Comm’n, 147 A.3d 1244,
1252 (Pa. Commw. Ct. 2016); Holland v. Pa. Game Comm’n,
No. 4 M.D. 2011, 2011 WL 10819503, at *2 (Pa. Commw. Ct.
Sept. 14, 2011).
Nevertheless, the United States Supreme Court has relied
heavily on whether the State imbued the entity “with the
traditional corporate powers to sue and be sued, hold property,
make contracts, and incur debt,” Galette, 607 U.S. at 524, and
here, the Game Commission “has all the hallmarks of separate
legal personhood, . . . which all indicate that it is not an arm of
the State,” id. at 530. We therefore conclude that this subfactor
weighs in favor of concluding that the Game Commission is
not an arm of the state.
ii. Separate Corporate Existence
The Supreme Court has emphasized that an entity’s
corporate form, though “not dispositive,” Galette, 607 U.S.
at 530, is “particularly salient” evidence that a state created it
23
as a legally separate entity, id. at 524. Indeed, the Court
suggested that, when a state chooses to establish an entity as a
corporation, we “should presume that the corporation . . . is no
longer part of the State itself.” Id. at 524-25. But we
acknowledge an entity as separately incorporated only “when
there is statutory language explicitly stating the same,”
Patterson, 915 F.3d at 953, and there is no explicit statutory
provision stating that the Game Commission is separately
incorporated. Thus, this subfactor favors a determination that
the Game Commission is an arm of the state.
iii. Ability to Sue and Be Sued
An entity is less likely to be an arm of the state if it can sue
and be sued in its own name. See Maliandi, 835 F.3d at 94;
see also Galette, 607 U.S. at 529-31 (discussing the import of
NJ Transit’s sue-and-be-sued authority). The Game Code
provides that the Game Commission has explicit authority
“to enforce, by proper actions and proceedings, the laws of this
Commonwealth relating thereto.” 34 Pa. Cons. Stat. § 322(a).
Like the Turnpike Commission, the Game Commission has an
unrestricted power to sue and be sued that is “not at all
characteristic of an arm of the state.” Christy, 54 F.3d at 1148;
see 74 Pa. Cons. Stat. § 8107(a)(3).10
10
Cf. USAir, 615 F. Supp. at 77 (holding that the PHRC is an
arm of the state, in part because its “power to sue is limited to
filing ‘petitions in court’ to secure enforcement of its orders”
(quoting 43 Pa. C.S. § 960)).
24
True, the Game Commission is subject to the
Commonwealth Attorneys Act, see 71 P.S. § 732-101 et seq.,
which requires the Attorney General to represent independent
agencies, including the Game Commission, unless “it is more
efficient or otherwise is in the best interest of the
Commonwealth” to “authorize the General Counsel or the
counsel for an independent agency to initiate, conduct or
defend any particular litigation or category of litigation in his
stead,” 71 P.S. § 732-204(c). Yet the option to be represented
by the Attorney General is not dispositive of this subfactor
because the Game Commission may request authorization for
its agency counsel to represent the entity instead and, if such a
request is denied, to intervene as a matter of right on behalf of
the Game Commission. Id. § 732-403. Because the Turnpike
Commission is likewise subject to the Act but is not considered
an arm of Pennsylvania, id. § 732-102; see Christy, 54 F.3d at
1150, this subfactor counsels that the Game Commission is not
either.
iv. Immunity from State Taxation
We have also held that an entity’s immunity from state
taxation weighs in favor of determining that it is an arm of the
state. See Maliandi, 845 F.3d at 95; Christy, 54 F.3d at 1148.
But an explicit statutory provision exempting the entity from
taxation points in the other direction because, “[h]ad the state
legislature regarded the [entity] as the Commonwealth itself[,]
it would have been utterly superfluous to give an express tax
exemption.” Darby v. L. G. De Felice & Son, Inc., 94 F. Supp.
25
535, 537 (E.D. Pa. 1950) (recognizing that the Turnpike
Commission’s statutory tax exemption was a “very important”
attribute supporting diversity jurisdiction). While the Supreme
Court did not address NJ Transit’s tax status in Galette, the
Court noted that its “discussion [was] not intended to exhaust
all considerations that may be relevant to the arm-of-the-State
analysis, and instead focuse[d] on the considerations most
pertinent” to that entity. 607 U.S. at 527 n.5. So at least where,
as here, the entity is not separately incorporated and we cannot
“presume” that it “is no longer part of the State itself,” we will
continue to analyze this subfactor. Id. at 524-25.
Here, the Game Commission is not immune from state
taxes in the traditional sense, as the Game Code expressly
requires it to “make payments in lieu of taxes” on its property.
34 Pa. Cons. Stat. § 708. Although these payments in lieu of
taxes might impose a lower financial burden on the Game
Commission than ordinary property taxes, the express statutory
requirement that it pay some form of property assessment to
the Commonwealth strongly suggests that the General
Assembly did not “regard[] the Commission as the
Commonwealth itself.” Darby, 94 F. Supp. at 537. So, this
subfactor also points toward a determination that the Game
Commission is not an arm of the state.
* * *
Our analysis of the second predominant consideration
involves countervailing considerations. On the one hand, the
Game Commission’s entitlement to sovereign immunity in
26
several Pennsylvania courts and its lack of a separate corporate
existence somewhat favor the conclusion that the entity is an
arm of the state. On the other hand, the Game Commission’s
“traditional corporate powers,” Galette, 607 U.S. at 524,
including its ability to sue and be sued, and its express lack of
complete immunity from state taxation strongly suggest it is an
independent citizen of the Commonwealth. On balance, the
moderate leaning of the first subfactor and conclusive nature
of the third and fourth subfactors, contrasted with the second,
which we know is “not dispositive,” id. at 530, weigh against
the conclusion that the Game Commission is an arm of
Pennsylvania.
c. Galette’s Subordinate Consideration: Degree of State
Control Over the Entity
While our arm-of-the-state analysis focuses
“predominantly” on “whether the State structured the entity as
a legally separate entity liable for its own judgments,” Galette,
607 U.S. at 523-24, we may also, cautiously and to a lesser
extent, consider what was formerly the third Fitchik factor:
“the degree of control the State exerts over the entity,”
id. at 526. Here, the Game Commission’s autonomy from
“oversight and control exerted by a State’s governor and
legislature,” Maliandi, 845 F.3d at 96, does not “meaningfully
affect” its status or “change the overall conclusion” because it
also points towards independence, Galette, 607 U.S. at 530.
The Game Commission is defined as an independent
agency “not subject to the policy supervision and control of the
27
Governor.” 2 Pa. Cons. Stat. § 101; cf. Galette, 607 U.S. at 530
(observing that NJ Transit is statutorily “independent of any
supervision or control” of the transportation department, but its
actions are subject to a gubernatorial veto). Although all nine
of its members are appointed by the Governor, with the advice
and consent of the Senate, and must meet certain statutory
qualifications, the Director of the Commission is selected by
and serves “at the pleasure of” its members. 34 Pa. Cons. Stat.
§§ 301, 302(a); see also Galette, 607 U.S. at 530 (noting that
the Governor can appoint and remove NJ Transit’s board
members); 74 Pa. Cons. Stat. § 8105(b), (e) (stating that the
Turnpike Commission’s members are appointed by the
Governor, with the advice and consent of the Senate, but its
Chairman is elected by the members).
The Game Commission also has “the power and duty to
take all actions necessary for the administration and
enforcement of this title,” 34 Pa. Cons. Stat. § 322(b),
including the power to “enact and enforce regulations,” id.
§ 322(c)(10); see also Galette, 607 U.S. at 516 (stating that
NJ Transit can “adopt rules and regulations as necessary”);
74 Pa. Cons. Stat. § 8107(a)(5) (authorizing the Turnpike
Commission to enact “rules and regulations for its own
governance”). And the Director exercises “sole control” over
the administration of Game Commission property, with no
obligation to obtain prior approval from the Governor or
legislature. 34 Pa. Cons. Stat. § 721(a); see 74 Pa. Cons.
Stat. § 8105(f) (explaining that actions by the Turnpike
Commission are taken “solely” upon approval of its members).
28
What oversight the Governor and General Assembly
exercise is largely constrained to the Game Commission’s
financial matters. For example, the Game Commission must
submit legislative performance audits every three years, submit
an annual report on its budget to a legislative committee, and
obtain approval from the Governor of its estimated
expenditures from the Game Fund before those funds are paid
out. See 34 Pa. Cons. Stat. § 522(b)-(c); see also 74 Pa. Cons.
Stat. §§ 8121, 8204 (requiring the Turnpike Commission to
submit annual revenue reports to the General Assembly and to
undergo performance audits). Such financial oversight does
not negate financial independence. See supra Section
III.A.2.a.i.
Moreover, unlike the Turnpike Commission, the Game
Commission is not required to adhere to a legislatively devised
code of conduct, see 74 Pa. Cons. Stat. § 8204(a), or to provide
a supervisory executive department with an opportunity to
review and approve its contracts or agreements prior to
execution, see id. § 8120(b). Instead, it may enact and
administer its own regulations, execute contracts and leases,
acquire and develop its property, and issue licenses with a high
degree of autonomy. Although the Commonwealth Attorneys
Act authorizes the Attorney General to “review for form and
legality” all the Game Commission’s contracts, that review is
limited to determining whether the contract is in improper
form, not statutorily authorized, or unconstitutional. 71 P.S.
§ 732-204(f). And the Game Commission is free to disagree
29
with the Attorney General and appeal his determination to the
Commonwealth Court. Id.
Thus, the autonomy of the Game Commission, though
minimally probative, weighs in favor of independence.
* * *
Under our updated arm-of-the-state test, the Game
Commission is not an arm of Pennsylvania because
Pennsylvania law “structured [it] as a legally separate entity
liable for its own judgments,” and its degree of autonomy only
further supports that conclusion. Galette, 607 U.S. at 524.
Although the Game Commission is entitled to sovereign
immunity in Pennsylvania courts, is not formally incorporated,
and lacks express liability for its own judgments, its legal and
financial independence demonstrates that it is properly
understood as a citizen of Pennsylvania for purposes of
diversity jurisdiction. And as the Trust and the Game
Commission are “citizens of different States,” the District
Court properly exercised diversity jurisdiction under 28 U.S.C.
§ 1332. We therefore proceed to the merits of the appeal.
B. Ownership of the Josiah Haines Warrant
The Pennsylvania Supreme Court granted our petition for
certification and answered the certified question of state law—
i.e., whether the 1908 tax sale divested the Trust of its interest
in the subsurface estate—in the negative, see Pa. Game
Comm’n v. Thomas E. Proctor Heirs Tr., 335 A.3d 1108
30
(Pa. 2025), and its central holdings govern our resolution of
this interlocutory appeal, see Bohus v. Restaurant.com, Inc.,
784 F.3d 918, 925 (3d Cir. 2015).11
The Pennsylvania Supreme Court determined that “the
1908 tax sale did not constitute a title wash but, rather, acted
as a mere redemption of taxes owed and, as such, did not divest
the subsurface owners of their interest in the [Josiah] Haines
Warrant.” Pa. Game Comm’n, 335 A.3d at 1110.12 The Court
began its analysis by explaining the process of title washing
under Pennsylvania law, “whereby the sale of unseated land
at a tax sale extinguished all prior titles in the property and
granted the tax sale purchaser exclusive title” to both the
surface and subsurface estates. Id. at 1117; see id. at 1117-18
(citing Herder Spring Hunting Club v. Keller, 143 A.3d 358,
368 (Pa. 2016)). While the holder of a defective title could
generally purchase a better title at a tax sale, there is a narrow
exception for a tax sale caused by the purchaser’s own failure
to pay taxes. Id. at 1118 (citing Powell v. Lantzy, 34 A. 450,
451 (Pa. 1896)). The rule in that circumstance, known as the
Powell rule, is that “one cannot, by a purchase at a tax sale
caused by his failure to pay taxes . . . , acquire a better title, or
11
We express our appreciation to the Pennsylvania Supreme
Court for granting our petition.
12
When considering the certified question of state law, the
Pennsylvania Supreme Court properly accepted as true the
District Court’s factual findings, as well as its determination
that McCauley was acting as CPLC’s agent. See Pa. Game
Comm’n, 335 A.3d at 1112 n.4, 1113 n.8.
31
a title adverse to that of other parties in interest.” Powell,
34 A. at 451.
To determine whether McCauley’s purchase triggered that
narrow exception, the Court had to answer a novel question:
“whether owners of unseated land had a legal duty to the state
to pay the taxes assessed on their land.” Pa. Game Comm’n,
335 A.3d at 1118. Powell held only that owners of unseated
land had no obligation to pay taxes assessed prior to their
ownership; it did not decide whether owners of unseated land
generally owed a duty to pay assessed taxes. The Court then
reviewed its caselaw that could “be read as holding such a duty
both did and did not exist,” and harmonized those cases by
“distinguish[ing] between landowners’ duty and their potential
liability for failing to perform that duty.” Id. at 1120-21. It
held that owners of unseated land owed a duty to the state to
pay taxes levied on their land but were not liable for those
taxes, such that the landowners “could not be personally
compelled to make satisfaction for the taxes.” Id. at 1122.
Instead, the land itself could be held liable through a tax sale.
Finally, the Court applied its legal conclusions to the facts
of this case and determined that CPLC owed a duty to the
Commonwealth to pay taxes on the Josiah Haines warrant but
failed to do so in 1907. Therefore, the Powell Rule applied and
“the existence of that duty resulted in McCauley,” as CPLC’s
agent, “being barred from purchasing the entirety of the
[Josiah] Haines Warrant at the 1908 tax sale.” Id. at 1123.
Instead, McCauley’s purchase “operated merely as a payment
32
of the taxes owed by CPLC, resulting in a redemption of
CPLC’s pre-existing title in the warrant’s surface rights” and
leaving intact the Trust’s interest in the subsurface estate. Id.
The Pennsylvania Supreme Court’s opinion “on matters of
Pennsylvania state law constitutes precedent that we are bound
to follow,” so we will answer the question certified for our
interlocutory review in accord with the Court’s holding. Wirth,
469 F.3d at 311. On this record, the 1908 tax sale of the Josiah
Haines warrant—to McCauley, CPLC’s agent, and induced by
the failure of CPLC, the surface estate owner, to pay taxes on
the unseated land—did not constitute a title wash and,
therefore, did not divest the Trust of its interest in the
subsurface estate.13
13
We recognize the potentially significant consequences of the
outcome of this bellwether case, as raised by amici curiae, as
well as the distinctly local quality of the issues before us, and
we certified the controlling question of state law to the
Pennsylvania Supreme Court for those reasons. Given the
diverse citizenship of the parties and our “virtually unflagging
obligation to hear and decide cases within [our] limited
jurisdiction,” Borowski v. Kean Univ., 68 F.4th 844,
850 (3d Cir. 2023) (citation modified), we merely apply the
Pennsylvania Supreme Court’s precedential guidance to the
dispute that the Game Commission chose to litigate in federal
court.
33
IV. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s judgment in favor of the Trust on the issue of
subsurface ownership of the Josiah Haines warrant, and we
will remand for further proceedings consistent with this
opinion.
Counsel for Appellant
Bradley C. Bechtel
William C. Martson
PENNSYLVANIA GAME COMMISSION
Michael J. Scarinci [Argued]
OFFICE OF ATTORNEY GENERAL OF PENNSYLVANIA
Counsel for Amici Curiae EQT AMD LLC and EQT
ARO LLC in Support of Appellant
Richard L. Armezzani
Daniel T. Brier
John B. Dempsey [Argued]
MYERS BRIER & KELLY
Daniel T. Donovan
Gabrielle Durling
Aaron L. Nielson
KIRKLAND & ELLIS
34
Counsel for Amicus Curiae International Development
Corp in Support of Appellant
Robert J. Burnett
HOUSTON HARBAUGH
Counsel for Amicus Curiae Pennsylvania Department
of Conservation and Natural Resources in Support of
Appellant
Curtis C. Sullivan
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Counsel for Appellee
Christopher R. Healy
Justin G. Weber
TROUTMAN PEPPER LOCKE
Laura A. Lange [Argued]
35