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

J-S28027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUE C. CLUTTER AND ROY L. CLUTTER, IN THE SUPERIOR COURT OF

HER HUSBAND, PHIL L. LAPPING AND PENNSYLVANIA

NAOMA C. LAPPING, HIS WIFE, AND

JEFF L. LAPPING

v.

ALLEN C. BROWN, CAROL A. BROWN

PURDY, MELVA L. BROWN JOSEPH,

DELURA MAE BROWN CAULDER, JUDITH

L. FOULK BOWEN, CHARLES M. FOULK,

KENNETH E. FOULK, KEVIN A. FOULK,

JEFFREY N. KING, JANET L. VERMILLION

GEMMELL, JOANN VERMILLION MCVITTY,

JOHN D. TSCHURDY, A/K/A JOHN D.

TSCHUDY, ROSE MARY TSCHUDY HITES,

MARILYN JEAN LOWE, BARBARA ELLEN

COMSTOCK, IDELLA LOY, CALVIN

DECKARD, DWIGHT DECKARD, NORMA

SHIRK, SANDRA N. CLARK, PEGGY J.

COLE HAYNES, SHARON L. COLE VAN

BURSICK, LARRY COLE, DONALD

WILSON COLE, RONALD LEE COLE,

JOSEPH E. BORMAN, WILLIAM L.

BORMAN, SHERRY SHARLENE COLE

BOLES, LINDA S. CLARK LEMAY, BONNIE

LOU CLARK HEILMAN, DAVID N. CLARK,

GLORIA JEAN MILLER, FRANCIS J.

MILLER KIRK, JOANNE PRINCESS

CARLYL CLARK, WILLIS FRANKLIN

CLARK, JR., ROSE MAE CLARK RUDD,

CYNTHIA L. CLARK CAREY, JOHN

SHERMAN CLARK, RAY EUGENE CLARK,

TAMRA S. GALLANT PENIX, STEVEN RAY

GALLANT, DOUGLAS R. GALLANT, BRYAN

GALLANT, GARY LEE CLARK, RANDY J.

LOCKMAN, DAVID D. ADAMS, LINDA

GAIL ADAMS SMITH, BARBARA SUE

ADAMS, SARA A. MILLER OSTEEN, ELLEN

E. MOUNT, THEODORE A. MOUNT, MARY

J-S28027-17

E. MOUNT ALDERMAN, MARILYN J.

MOUNT KOEVAR, DAVID TOMEY,

HAROLD EUGENE MOUNT, NANCY

WISHON MURPHY, MICHAEL ALLEN

KUHNLE, JR., RACHEL M. KUHNLE, KELLY

MARIAH KUHNLE, THOMAS MCCOY, ERIN

MCCOY, MELISSA MARIE WISHON,

MARTIN W. WISHON, MELVIN J.

WISHON, JR., ANTHONY WAYNE MCCOY,

SR., NANCY KAY WISHON, MATTHEW

SAMUEL WISHON, PATRICIA LOUISE

VANSICKLE WHITE, CAROLYN SUE LUST

DYE, CAROL FRANCES VANSICKLE

HATFIELD, RALPH J. CELLAR, KATHRYN

L. CELLAR SULLIVAN, POLLY ANNE

HONNINGFORD KILGORE, DAVID ALAN

KILGORE, JENNIFER E. KILGORE MILAN,

BEVERLY JEAN KILGORE COX, CARL

NOGGLE, JR., CARL RICHARD

WOODRING, SARA L. WOODRING

CHANDLER, JANE ANN NOGGLE LEHNER,

ROBERT ALLEN NOGGLE, WILLIAM LEE

NOGGLE, SR., DOUGLAS ALLEN

FOREMAN, KATHERINE D. FOREMAN,

KRYSTAL S. FOREMAN ZEIGLER, JEFFREY

CARL NOGGLE, DANNY GENE NOGGLE,

JR., TRENTON ISAAC ROWLAND, TRAVIS

LEE ROWLAND, RACHEL CHANDLER,

A/K/A RAYCHAEL CHANDLER, LARRY D.

NOGGLE, TERESA M. NOGGLE COOLEY,

LYNDA LEE NOGGLE DORNBIRER, A/K/A

LINDA LEE NOGGLE DORNBIRER, JOANN

VANSICKLE ORR, SANDRA KAY

VANSICKLE ORLETT, MARY ALICE

VANSICKLE BARTLEY, DONNA JEAN

VANSICKLE NILES, ELIZABETH MARIE

HINTON DELANEY, MINNIE F. HINTON

GAMBLE, JESSE EUGENE SIPES, VICKY

L. SIPES PIERCE, SHARON ELAINE SIPES

THOMPSON, KATHY SUE SIPES

WILLIAMS, JOHN WILLIS SIPES,

BERNICE JEAN SIPES MCCOY, CYNTHIA

LOUISE HAMMOND, DEBORAH SUE

SPITZ, PAMELA KAY HOGAN, JEAN ANN

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J-S28027-17

COPELAND INGRAM, CYNTHIA LOUISE

HAMMOND, LINDA LOU SIPES BROWN,

AND TIMOTHY SIPES

APPEAL OF: JANET L. VERMILLION

GEMMELL

No. 1542 WDA 2016

Appeal from the Order Entered September 13, 2016

In the Court of Common Pleas of Greene County

Civil Division at No(s): 68 AD 2014

BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 21, 2017

Janet L. Vermillion Gemmell appeals from the September 13, 2016

order entered in the Greene County Court of Common Pleas granting the

motion for summary judgment filed by Sue C. Clutter, Roy L. Clutter, Phil L.

Lapping, Naoma C. Lapping, and Jeff L. Lapping (“Landowners”). We affirm.

On December 28, 2015, Landowners filed a second amended

complaint to quiet title to a partial interest in royalties from the production

of oil and gas underlying two tracts of land located in Center Township,

Greene County, Pennsylvania.1 The parties submitted stipulated facts,

including the following:

B. The Plaintiffs’ Interest in the Property

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

Landowners filed suit against numerous defendants. Gemmell is the

only named appellant in this appeal. There is a related appeal, docketed at

1484 WDA 2016, which we address in a separate memorandum.

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1. Sue C. Clutter and Roy L. Clutter, her husband

(collectively “Clutter”) own in fee simple real property

located in Center Township, Greene County, Pennsylvania

totaling 48.6 acres (“Clutter Tract”).

2. Phil L. Lapping, Naoma C. Lapping, his wife, and Jeff L.

Lapping (collectively “Lapping”) own in fee simple real

property located in Center Township, Greene County,

Pennsylvania totaling 10.2 acres (the “Lapping Tract”).

3. The Clutter Tract and Lapping Tract (collectively

“Property”) are derived from a common source of title, a

March 28, 1919 Deed from Anna M. Brown, et vir, et al. to

Caleb M. Stewart (the “1919 Deed”) that was recorded on

April 3, 1919 in the Greene County Recorder of Deeds at

Book Volume 267, Page 413.

4. The Clutter’s source of title to the Clutter Tract through

to the 1919 Deed is derived through [a] series of

conveyances[.] . . .

5. The Lappings’ source of title to the Lapping Tract

through to the 1919 Deed is derived through [a] series of

conveyances[.] . . .

C. The Defendant’s Interest in the Property

6. The grantors under the 1919 Deed, were the children of

Louisa Day McVay, a/k/a Lou D. McVay: Anna M. Brown;

Herschel C. McVay; Mile E. McVay, a/k/a/ Milo E. McVay;

Clara L. Bonham; Millee F. McVay (collectively the “McVay

Heirs”), and their respective spouses.

7. The McVay Heirs acquired their interest in the Property

through [a] series of conveyances[.] . . .

8. The McVay Heirs are all deceased.

9. The Defendants, totaling 106 people, are the

descendants and/or legal heirs of the McVay Heirs.

10. The following Defendants (collectively the “Responding

Defendants”) have entered an appearance in this action,

through counsel, and file an answer to the Complaint:

a. Bryan Gallant, Gloria Jean Miller, Douglas

Gallant, Francis J. Miller Kirk, Steven Gallant, Ray

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Eugene Clark, Tamra S. Gallant Penix, a/k/a

Tamra Gallant Hancock, Polly Anne Kilgore, David

Alan Kilgore, Beverly Jean Kilgore Cox, Jennifer E.

Kilgore Milan, a/k/a Jennifer E. Milam, David N.

Clark, Linda S. Clark LeMay, Bonnie Lou Clark

Heilman, John D. Tschurdy, a/k/a John D.

Tschudy, Rose Mary Tschudy-Hites, Marilyn Jean

Lowe, Barbara Ellen Comstock, Sara L. Woodring

Chandler, Bernice Jean Sipes McCoy, Rose Mae

Clark Rudd, Cynthia L. Clark Carey, Joanne

Princess Carlyle Clark, Judith Foulk Bowen,

Charles M. Foulk, Kevin A. Foulk, John Sherman

Clark and Carolyn Sue Lust Dye by Answer to

Second Amended Complaint and Counterclaim,

dated March 17, 2016.

b. Larry Noggle and Theresa Cooley by Answer to

Second Amended Complaint, dated February 26,

2016;

c. Janet L. Vermillion Gemmell by Answer to

Second Amended Complaint, dated March 14,

2016; and

d. Marguerite Elain Sipes Britton by Answer to

Second Amended Complaint to be filed on or

before July 5, 2016.

D. Disputed title to a one-half royalty interest in the

oil and gas produced from the Property.

11. Louisa D. McVay and the McVay Heirs entered into an

Oil and Gas Lease with Ullom and Kent, with respect to

the Clutter Tract, dated June 1, 1901 and recorded on

October 9, 1903 in the Greene County Recorder of Deeds

at Book Volume 141, Page 412.

12. Louisa D. McVay entered into an oil and Gas Lease

with Ullom and Kent, with respect to the Lapping Tract,

dated June 1, 1901 and recorded on October 9, 1903 in

the Greene County Recorder of Deeds at Book Volume

141, Page 417.

13. Both of the June 1, 1901 Oil and Gas Leases (“1901

Leases”) contain identical terms.

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 A royalty for production of oil in an amount “the

equal one-eight (1/8th) part of all oil produced

and saved from said premises, to be delivered in

the pipeline to the credit of the [lessor] free of

charge . . .”

 A royalty for production of natural gas in an

amount of “Three hundred ($300) Dollars, each

year, payable quarterly in advance for the product

of each well while the same is being used off the

premises, . . .”

 A delay rental for holding the lease as follows

“In case no well is commenced within thirty days

from this date, then this grant shall immediately

become null and void as to both parties. Provided

that [lessee] may prevent said forfeiture from

quarter to quarter and no longer by paying to the

[lessor] in advance” $12.00 for the Clutter Tract

and $2.50 for the Lapping Tract “until such well is

completed.”

14. The 1919 Deed Contains the following clause:

Reserving, also from this conveyance one

half of the oil and gas royalty the party

of the second part, however, is to have

the quarterly rental which is paid from

quarter to quarter to prevent forfeiture of

the lease.

15. Production is no longer occurring under the 1901

Leases, and [Landowners] and Responding Defendants

have never received any royalties or delay rentals from

the 1901 Leases.

16. Clutter entered into an Oil and Gas Lease with EQT

Production Company (“EQT”), with respect to the

Clutter Tract, dated February 28, 2011, a

Memorandum of which was recorded on April 29, 2011

in the Greene County Recorder of Deeds at Book

Volume 438, Page 3532.

17. Phil L. Lapping and his spouse, Naoma Lapping

entered into an Oil and Gas Lease with EQT, with

respect to the Lapping Tract, dated March 2, 2011, a

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Memorandum of which was recorded on April 15, 2011

in the Greene County Recorder of Deeds at Book

Volume 438, Page 1945, and Jeff L. Lapping entered

into an Oil and Gas Lease with EQT, with respect to the

Lapping Tract, dated March 21, 2011, a Memorandum

of which was recorded on April 15, 2011 in the Greene

County Recorder of Deeds at Book Volume 438, Page

1974.

18. EQT is producing natural gas from the Property

under the leases that it entered into with

[Landowners].

19. EQT is paying one-half of the royalty for its

production from the Property to [Landowners], for their

respective tracts.

20. EQT is withholding payment of one-half of the

royalty based upon the royalty reservation contained in

the 1919 Deed.

Joint Stipulations, 7/5/16, at 1-7 (citations to record omitted).

On August 1, 2016, Landowners filed a summary judgment motion.

On September 1, 2016, Gemmell filed a response. On September 13, 2016,

the trial court granted Landowner’s motion. On October 12, 2016, Gemmell

filed a timely notice of appeal. On December 5, 2016, the trial court

directed Gemmell to file a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), which

Gemmell filed on the same day.2

____________________________________________

2

On October 7, 2016, the trial court ordered the defendants who had

filed a September 29, 2016 amended notice of appeal to file a Rule 1925(b)

statement. The trial court, however, did not issue a Rule 1925(b) order

following Gemmell’s October 12, 2016 notice of appeal. The December 5,

2016 order was the first order requiring Gemmell to file a Rule 1925(b)

statement.

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Gemmell raises the following issues on appeal:

1. Whether the trial court erred by failing to find that the

1919 reservation of one-half of the oil and gas royalty to

the grantors therein constituted an exception of an interest

in real property that passed by operation of law to the

heirs of the grantors, being all Defendants.

2. Whether the trial court erred by failing to find that the

exception of one-half of the oil and gas royalties in the

1919 Deed was not subject to any limiting conditions and

therefore passed by operation of law to the heirs,

successors and assigns of the McVay Heirs, being the

Defendants in the underlying action.

Gallant Appellants’ Br. at 7 (suggested answers omitted).3

Our scope and standard of review of a grant of summary judgment are

well-settled:

[O]ur scope of review is plenary, and our standard of

review is the same as that applied by the trial court . . . .

An appellate court may reverse the entry of a summary

judgment only where it finds that the lower court erred in

concluding that the matter presented no genuine issue as

to any material fact and that it is clear that the moving

party was entitled to a judgment as a matter of law. In

making this assessment, we view the record in the light

most favorable to the nonmoving party, and all doubts as

to the existence of a genuine issue of material fact must

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3

On January 26, 2017, this Court granted Gemmell’s application for

relief – notice of joinder, concluding that Gemmell may rely on the brief and

reproduced record filed by the appellants at docket 1484 WDA 2016. We

further ordered that the Prothonotary accept the brief attached to the

application for relief as Gemmells brief and docket the brief as filed on

January 17, 2017.

We have found that that appellants at docket 1484 WDA 2016 waived

their claims for failing to file a 1925(b) statement. However, we decline to

find Gemmell’s claims waived, where she filed a timely 1925(b) statement.

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be resolved against the moving party. As our inquiry

involves solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to

determine whether the record either establishes that the

material facts are undisputed or contains insufficient

evidence of facts to make out a prima facie cause of

action, such that there is no issue to be decided by the

fact-finder. If there is evidence that would allow a fact-

finder to render a verdict in favor of the non-moving party,

then summary judgment should be denied.

Ralston v. Ralston, 55 A.3d 736, 739 (Pa.Super. 2012) (quoting Brandon

v. Ryder Truck Rental, Inc., 34 A.3d 104, 107–08 (Pa.Super. 2011)).

Here, because the parties submitted stipulated facts, our review is limited to

determining whether the trial court erred in finding that summary judgment

was proper as a matter of law.

To determine whether the trial court properly granted summary

judgment, we must interpret the following clause in the 1919 deed:

Reserving, also from this conveyance one half of the oil

and gas royalty the party of the second part, however, is

to have the quarterly rental which is paid from quarter to

quarter to prevent forfeiture of the lease.

Joint Stipulations, Ex. C, at 415.4 We must determine whether this clause

constitutes an exception of the Property’s gas and oil from the deed or

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4

“Pennsylvania recognizes three discrete estates in land: the surface

estate, the mineral [or subsurface] estate, and the right to subjacent

(surface) support. Because these estates are severable, different owners

may hold title to separate and distinct estates in the same land.” Bastian

v. Sullivan, 117 A.3d 338, 344 (Pa.Super. 2015) (quoting Pa. Servs. Corp.

v. Tex. E. Transmission, LP, 98 A.3d 624, 629 (Pa.Super. 2014)).

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whether it is a reservation of the royalty payments received from the

extraction of gas and oil from the Property. If it is an exception, as Gemmell

contends, then it excepted a real-property right to the oil and gas from the

deed that would survive the death of the grantor. If, however, it is a

reservation, as Landowners contend and the trial court implicitly found, then

it reserved a right to personal property – the royalty payments – that did not

survive the death of the grantor.

When interpreting a deed:

[A] court’s primary object must be to ascertain and

effectuate what the parties themselves intended. The

traditional rules of construction to determine that intention

involve the following principles. First, the nature and

quantity of the interest conveyed must be ascertained

from the deed itself and cannot be orally shown in the

absence of fraud, accident or mistake. We seek to

ascertain not what the parties may have intended by the

language but what is the meaning of the words they used.

Effect must be given to all the language of the instrument,

and no part shall be rejected if it can be given a meaning.

If a doubt arises concerning the interpretation of the

instrument, it will be resolved against the party who

prepared it. To ascertain the intention of the parties, the

language of a deed should be interpreted in the light of the

subject matter, the apparent object or purpose of the

parties and the conditions existing when it was executed.

Ralston, 55 A.3d at 742 (alteration in original) (quoting Butler v. Charles

Powers Estate, 29 A.3d 35, 40 (Pa.Super. 2011)).

This Court has explained:

The terms “exception” and “reservation” have been used

interchangeably in deeds. Walker v. Forcey, 396 Pa. 80,

151 A.2d 601, 606 (1959). A reservation pertains to

incorporeal things that do not exist at the time the

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conveyance is made. Id. See Lauderbach–Zerby Co. v.

Lewis, 283 Pa. 250, 129 A. 83, 84 (1925) (reservation is

creation of a right or interest that did not exist prior to

grant). However, even if the term “reservation” is used, if

the thing or right reserved is in existence, then the

language in fact constitutes an exception. Walker, 151

A.2d at 606; Silvis v. Peoples Natural Gas Co., 386 Pa.

453, 126 A.2d 706, 708 (1956) (where no new rights are

created, language treated as exception). If there is a

reservation, it ceases at the death of the grantor, because

the thing reserved was not in existence at the time of

granting and the thing reserved vests in the grantee. Id.

An exception, on the other hand, retains in the grantor the

title of the thing excepted. Id. Because the exception

does not pass with the grant, it demises through the

grantor’s estate absent other provisions. Id. at 709.

Ralston, 55 A.3d at 741-42. The Pennsylvania Supreme Court has found

that:

[T]he rule in Pennsylvania that the lease of coal in place

with the right to mine and remove all of it for a stipulated

royalty vests in the lessee a fee. It is a necessary

corollary that if the fee to the severed coal is vested in the

lessee no interest in the coal as real property remains in

the lessor and that his only interest therein is personal

property. The lessor’s interest in the lease is properly

termed a possibility of reverter.

Smith v. Glen Alden Coal Co., 32 A.2d 227, 233 (Pa. 1943) (footnote

omitted). Further, this Court has stated:

A lease of minerals in the ground is a sale of an estate in

fee simple until all the available minerals are removed; this

leaves the lessor with only an interest in the royalties to be

paid under the lease, which are personal property.

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Snyder Bros., Inc. v. Peoples Nat. Gas Co., 676 A.2d 1226, 1230

(Pa.Super. 1996) (emphasis omitted).5

We conclude that the 1919 Deed created a reservation of the royalty

payments from the oil and gas leases then in effect. The 1919 Deed

“reserv[ed]” one-half of the “royalty” payments, not one-half of the oil and

gas itself. The payments, unlike the oil and gas, were “incorporeal things

that [did] not exist at the time the conveyance [was] made.” Ralston, 55

A.3d at 741.6 Therefore, the deed created a reservation of a right to

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5

Gemmell relies on Duquesne Natural Gas Co. v. Fefolt, in which

this Court held that:

We agree with the court below that the property interest

reserved, viz: ‘. . . one-eighth (1/8th) part of all gas sold

from each well . . .’ as is described in the oil and gas lease

in this case is real property. Penn-Ohio Gas Company v.

Franks' Heirs, 322 Pa. 233, 185 A. 280 (1936);

Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 A. 207,

26 L.R.A., N.S., 614 (1909). If the transfer of the oil and

gas rights to the company conveys realty it seems to

clearly and logically follow that the reservation clearly set

forth in the agreement of a portion of that gas and oil to

the grantors must also be realty even though payment was

provided by royalties on delivery.

198 A.2d 608, 610 (Pa.Super. 1964). However, as discussed above, the

Pennsylvania Supreme Court and the more recent cases from this Court

support the conclusion that the reservation of royalties from the production

of coal and from the production of oil and gas creates a personal right, not a

property right.

6

When interpreting a similar deed provision, the Court of Common

Pleas of Washington County explained:

(Footnote Continued Next Page)

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personal property that did not survive the death of the grantor. See Smith,

32 A.2d at 301; Snyder Bros., Inc., 676 A.2d at 1230. Accordingly, we

conclude that the trial court did not err as a matter of law in granting

Landowner’s summary judgment motion.

Order affirmed.

_______________________

(Footnote Continued)

In such a lease, the oil and gas money payments are not

for the minerals in place but are payable only when

produced or raised to the surface. Hence, when part of

this royalty is reserved by the grantor, something is

effected which was not in esse before. Although provision

had been made for payment of royalties, they are not

actually payable until the oil and gas are raised to the

surface in paying quantities; and although payments had

already been made to the grantors before grant of the land

to Wyels, and thereafter until the death of both Mr. and

Mrs. Luellen, yet each payment would be dependent upon

continued production of the wells, and is not due until the

minerals, gas and oil, are separated from the land and

raised to the surface. Hence, something new has been

created, a money royalty dependent upon continuing

production. It is, therefore, properly classified as a

“reservation”, and in order to pass this right or royalty to

the heirs must necessarily have words of inheritance

attached. Since none was employed, the reservation of

the right to royalties ceased on the death of the grantors.

In re Luellen Estate, 43 Pa.D.& C.2d 467, 473-74 (C.P. Washington 1967).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/2017

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