Petition for Writ of Certiorari — Trustees of the Thomas E. Proctor Heirs Trust, Petitioner v. Keta Gas & Oil Company, et al.

Supreme Court briefFeb 17, 2021

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No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------TRUSTEES OF THE

THOMAS E. PROCTOR HEIRS TRUST,

Petitioners,

KETA GAS & OIL COMPANY, ANADARKO E&P

ONSHORE, LLC, SWN PRODUCTION COMPANY,

INTERNATIONAL DEVELOPMENT CORPORATION,

AND TROUT RUN HUNTING & FISHING CLUB, INC.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Pennsylvania Superior Court

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------LAURA A. LANGE

1670 Sturbridge Drive

Sewickley, PA 15143

(847) 800-8334

lange@proctortrust.com

PAUL K. STOCKMAN

Counsel of Record

KAZMAREK MOWREY CLOUD

LASETER LLP

One PPG Place, Suite 3100

Pittsburgh, PA 15222

(404) 333-0572

pstockman@kmcllaw.com

Counsel for Petitioners

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

The Due Process Clause of the Fourteenth Amendment requires state governments to provide adequate

notice before depriving a citizen of his or her property.

U.S. Const. amend. XIV; Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306 (1950); Jones v. Flowers,

547 U.S. 220, 234 (2006). In this case, Pennsylvania

courts once again have disregarded this constitutional

requirement and ignored this Court’s precedent by permitting the deprivation of Petitioners’ property following notice given solely through newspaper publication,

a method of notice that this Court views as little more

than a “feint,” Mullane, 339 U.S. at 315, even though

state ofﬁcials actually knew the identities and whereabouts of the interested parties.

This case presents the following question for this

Court’s review:

Does the Pennsylvania court’s refusal to apply

“preconceived notions of what is reasonable in the age

of the Internet,” in the context of a tax sale where the

only notice given to a known owner was by publication

in local newspapers, justify the categorical disregard of

this Court’s decision in Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306 (1950), which also preceded the “age of the Internet” by decades yet held notice by publication was inadequate where the identity

of the property owner was known?

PARTIES TO THE PROCEEDING

Petitioners in this Court, defendants-appellants

below, are Charles Rice Kendall and Ann P. Hochberg,

trustees of the Thomas E. Proctor Heirs Trust (the

“PHT”). (The Margaret O.F. Proctor Trust (the “MPT”),

whose trustees were also defendants-appellants below,

distributed its oil and gas interests to its beneﬁciaries,

and those beneﬁciaries subsequently conveyed those

interests to the PHT; accordingly, the PHT has succeeded to the rights of the MPT and the MPT is no

longer a party in interest.) The PHT owns the oil and

gas interests of the late Thomas E. Proctor and his wife

Emma Proctor, and is successor to the interests of original named defendants Thomas E. Proctor, James H.

Proctor, Thomas E. Proctor, Jr., Anne Proctor Rice,

Emily Proctor Mandell, Lydia W. Thacher, Augusta

Proctor, Ellen O. Proctor, Sarah Joslin, and Abel H.

Proctor.

Respondents are Anadarko E&P Onshore, LLC

(“Anadarko”), SWN Production Company, LLC (“SWN”)

and International Development Corporation (“IDC”),

all intervenors-plaintiffs-appellees below, and all successors to the original named plaintiff Keta Gas & Oil

Company (“Keta”), and Trout Run Hunting & Fishing

Club, Inc. (“Trout Run”), successor to original defendant

Brinker Hunting Club and an intervenor-defendantappellee below. Keta, the original named plaintiff, no

longer has any interest in the property rights at issue,

and appears to be defunct, but nominally remains a

party.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner and its trustees and beneﬁciaries are

individuals. There are no publicly held companies with

an interest in the matter.

RELATED CASES

Keta Gas & Oil Company v. Thomas E. Proctor et al.,

No. 571, Dec. Term, 1950, Court of Common Pleas,

Lycoming County, Pennsylvania. Judgment entered

October 22, 2018.

Keta Gas & Oil Company v. Thomas E. Proctor et al.

(Appeal of Trout Run Hunting & Fishing Club, Inc.,

as successor to Brinker Hunting Club), No. 1939 MDA

2018, Pennsylvania Superior Court. Judgment afﬁrming trial court entered December 6, 2019.

Keta Gas & Oil Company v. Thomas E. Proctor et al.

(Appeal of Trustees of the Thomas E. Proctor Heirs

Trust and Trustees of the Margaret O.F. Proctor Trust),

No. 1975 MDA 2018, Pennsylvania Superior Court.

Judgment afﬁrming trial court entered December 6,

2019.

Keta Gas & Oil Company v. Thomas E. Proctor et al.

(Appeal of Trout Run Hunting & Fishing Club, Inc.,

as successor to Brinker Hunting Club), No. 125 MAL

2020, Pennsylvania Supreme Court. Judgment denying petition for allowance of appeal entered September

22, 2020.

TABLE OF CONTENTS

Page

INTRODUCTION ...................................................

OPINIONS BELOW ...............................................

JURISDICTION .....................................................

CONSTITUTIONAL PROVISION INVOLVED ....

STATEMENT..........................................................

Factual Background .....................................

Procedural history .......................................

REASONS FOR GRANTING THE WRIT .............

A. The decision below ﬂouts this Court’s decisions in Mullane and Mennonite ................. 11

1. This Court’s Due Process Clause jurisprudence clearly requires personal notice to be provided to known individuals

prior to depriving them of their property ......................................................... 13

2. The decision below cannot be reconciled

with this Court’s precedent ................... 17

This is a recurring and important issue,

and this case is a good vehicle for addressing it ............................................................. 22

Summary reversal is warranted .................

CONCLUSION .......................................................

TABLE OF CONTENTS – Continued

Page

APPENDIX

Appendix A

Order in the Supreme Court of

Pennsylvania, Middle District (September 22, 2020) ........................... App. 1

Appendix B

Opinion in the Superior Court of

Pennsylvania, Middle District (December 6, 2019) ............................. App. 3

Appendix C

Order and Opinion in Support of

Opinion and Order of October 22,

2018, in Compliance with Rule

1925(a) of the Rules of Appellate

Procedure in the Court of Common

Pleas of Lycoming County, Pennsylvania (January 8, 2019) ......... App. 23

Appendix D

Opinion and Order in the Court

of Common Pleas of Lycoming

County, Pennsylvania (October

22, 2018) ...................................... App. 26

Appendix E

Order in the Superior Court of

Pennsylvania denying reargument

(February 11, 2020) .................... App. 44

Appendix F

Excerpts from Margaret O.F. Proctor Trust’s Answer and New Matter to Keta Gas & Oil Company’s

Complaint in Action to Quiet Title

(July 20, 2015) ............................ App. 46

TABLE OF CONTENTS – Continued

Page

Appendix G

Excerpts from Margaret O.F. Proctor Trust’s and Thomas E. Proctor

Heirs Trust’s Answer and New

Matter to Anadarko E&P Onshore, LLC’s Counterclaims and

Counterclaim Against All Intervenors (March 10, 2016) ............. App. 49

Appendix H Excerpts from Thomas E. Proctor

Heirs Trust’s and Margaret O.F.

Proctor Trust’s Consolidated Brief

in Opposition to Intervening Plaintiffs’ Motions for Summary Judgment (July 9, 2018) ..................... App. 54

Appendix I

Excerpts from Brief of Appellants

(Pa. Super. Ct. March 6, 2019) ... App. 56

Appendix J

Excerpts from Petition for Allowance of Appeal (Pa. March 11,

2020) ........................................... App. 59

Appendix K

Excerpts from Exhibit 1, Appendix of Evidence [in opposition to

Respondents’ motions for summary

judgment] (July 9, 2018) ............ App. 62

Appendix L

Exhibit 2, Appendix of Evidence

[in opposition to Respondents’ motions for summary judgment] (July

9, 2018) ........................................ App. 88

Appendix M Excerpts from Exhibit 10, Appendix of Evidence [in opposition to

Respondents’ motions for summary

judgment] (July 9, 2018) ............ App. 89

vii

TABLE OF CONTENTS – Continued

Page

Appendix N Excerpts from Exhibit 11, Appendix of Evidence [in opposition to

Respondents’ motions for summary

judgment] (July 9, 2018) ............ App. 92

Appendix O

Exhibit 23, Appendix of Evidence

[in opposition to Respondents’ motions for summary judgment] (July

9, 2018) ........................................ App. 95

Appendix P

Excerpts from Complaint – Action to Quiet Title (December 3,

1950) ........................................... App. 98

viii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

City of N.Y. v. N.Y., New Haven

& Hartford R.R. Co.,

344 U.S. 293 (1953) .................................................16

Grady v. North Carolina,

575 U.S. ___, 135 S. Ct. 1368 (2015)

(per curiam) .............................................................29

Harper v. Virginia Dep’t of Taxation,

509 U.S. 86 (1993) ...................................................13

Jones v. Flowers,

547 U.S. 220 (2006) .................................................20

Martinez v. Illinois,

572 U.S. ___, 134 S. Ct. 2070 (2014)

(per curiam) .............................................................29

Maryland v. Kulbicki,

577 U.S. ___, 136 S. Ct. 2 (2015)

(per curiam) .............................................................29

Mennonite Board of Missions v. Adams,

462 U.S. 791 (1983) ......................................... passim

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ......................................... passim

N.Y. Nat. Gas Corp. v. Swan-Finch Gas Dev. Corp.,

278 F.2d 577 (3d Cir. 1972) .....................................26

Pavan v. Smith,

582 U.S. ___, 137 S. Ct. 2075 (2017) .......................28

Pa. Game Comm’n v. Thomas E.

Proctor Heirs Trust,

455 F. Supp. 3d 127 (M.D. Pa. 2019) .......................23

TABLE OF AUTHORITIES – Continued

Page

Robinson v. Hanrahan,

409 U.S. 38 (1972) ...................................................20

Schroeder v. City of N.Y.,

371 U.S. 208 (1962) .................................................16

Schweiker v. Hansen,

450 U.S. 785 (1981) .................................................28

Shaffer v. Heitner,

433 U.S. 186 (1977) .................................................26

Strickland v. Washington,

466 U.S. 668 (1984) .................................................29

Walker v. City of Hutchinson,

352 U.S. 112 (1956) ..................................... 12, 16, 18

Wearry v. Cain,

577 U.S. ___, 136 S. Ct. 1002 (2016)

(per curiam) .............................................................28

STATE CASES

Aarco Oil & Gas Co. v. EOG Resources, Inc.,

20 So. 3d 662 (Miss. 2009).......................................25

Bailey v. Elder,

No. 08-02327, 2014 WL 11045888

(Pa. Ct. C. P. Dec. 10, 2014) .....................................23

City of Philadelphia v. Miller,

49 Pa. 440 (1865) ......................................... 10, 19, 20

TABLE OF AUTHORITIES – Continued

Page

Cornwall Mt. Invs., L.P. v. Thomas E.

Proctor Heirs Trust,

158 A.3d 148 (Pa. Super. Ct.), appeal denied,

172 A.3d 594 (table) (Pa. 2017), cert. denied,

138 S. Ct. 1698 (2018) .............................................23

Day v. Johnson,

31 Pa. D. & C. 3d 556 (C.C.P. 1983).........................26

F.H. Rockwell & Co. v. Warren County,

77 A. 665 (Pa. 1910)...................................................8

Herder Spring Hunting Club v. Keller,

143 A.3d 358 (Pa. 2016) .................................. passim

Jordan v. Jensen,

391 P.3d 183 (Utah 2017)........................................25

Kline v. Hull,

10 Law. L.J. 74 (C.C.P. 1951) ...................................26

Leonard v. Newman,

No. 1291 MDA 2016, 2017 WL 3017066

(Pa. Super. Ct. July 17, 2017) ..................................23

New Shawmut Mining Co. v. Gordon,

43 Pa. D. & C. 2d 477 (C.C.P. 1963).........................26

Owens v. Tergeson,

363 P.3d 826 (Colo. App. 2015) ................................25

Quantum Res. Mgmt., L.L.C. v.

Pirate Lake Oil Corp.,

112 So. 3d 209 (La. 2013) ........................................24

Robinson Twp. v. Commonwealth,

83 A.3d 901 (Pa. 2013) ............................................22

TABLE OF AUTHORITIES – Continued

Page

Spigelmyer v. Colony,

No. 1602 MDA 2015, 2016 WL 4876216

(Pa. Super. Ct. July 26, 2016) ..................................23

T.H. McElvain Oil & Gas Ltd. P’ship v.

Benson-Montin-Greer Drilling Corp.,

388 P.3d 240 (N.M. 2016), cert. denied,

137 S. Ct. 1584 (2017) ....................................... 13, 24

Wilson v. A. Cook Sons Co.,

148 A. 63 (Pa. 1929)...................................................6

Woodhouse Hunting Club, Inc. v. Hoyt,

183 A.3d 453 (Pa. Super. Ct. 2018) .........................23

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV ...................................... passim

28 U.S.C. § 1257(a) ........................................................5

Act of March 28, 1806, P.L. 644, 4 Sm.L. 346, § 1,

72 P.S. § 5020-409 .....................................................7

Act of March 13, 1815, P.L. 177, § I, 72 P.S.

§§ 5981, 6001 ................................................... 5, 8, 20

RULES

Sup. Ct. R. Rule 10(b) .................................................25

Sup. Ct. R. Rule 10(c) ..................................................22

xii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Joel R. Burcat & Megan E. Albright, ‘Title Washing’ in Pennsylvania Is Alive and Well, The Legal Intelligencer, Aug. 25, 2016...............................24

Mark Prokopchak, Renewing Respect For Record

Notice: Cleaning Up The Pennsylvania Title

Wash, 2 Tex. A&M J. Prop. L. 533 (2015) ...............23

Nicole R. Snyder Bagnell & Stephanie L. Hadgkiss,

Eastern Shale Plays – A Game Plan for Success, 55 Rocky Mtn. Min. L. Inst. 32-1, § 32.03

(2009) .......................................................................23

Jonathan W. Still, Note, The Constitutionality of

Notice by Publication in Tax Sale Proceedings,

84 Yale. L.J. 1505 (1975) .........................................26

INTRODUCTION

It has been a bedrock principle of this Court’s

due process jurisprudence for 70 years that states

may not deprive persons of their property without

providing notice that was “reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). It has

been equally clear that constructive notice through

publication in local newspapers is rarely sufﬁcient, for

“[c]hance alone brings to the attention of even a local

resident an advertisement in small type inserted in the

back pages of a newspaper, and if he makes his home

outside the area of the newspaper’s normal circulation

the odds that the information will never reach him are

large indeed.” Id. at 315. “Notice” of that sort is little

more than a “feint,” a “mere gesture” that in most cases

does not satisfy the Fourteenth Amendment. Id.

Despite this Court’s repeated commands, the

courts of Pennsylvania have countenanced a blanket

exception to Mullane and its progeny. This case – the

most recent in a series of unconstitutional decisions –

sanctioned a 1908 tax sale that deprived the PHT of oil

and gas rights that today are worth millions of dollars,

executed without any attempt at direct, individualized

notice. Here, taxing authorities knew the identities of

the non-resident owners of the oil and gas rights at

issue, the PHT’s predecessors in interest, but officials

made no attempt of any sort to provide those owners

with any individualized or actual notice of the tax

assessments, or of the tax sale that purportedly divested them of their property.

The decision below, in approving this outcome,

ignored Mullane entirely. Rather, it relied solely on

a Pennsylvania Supreme Court precedent, Herder

Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016),

to hold that constructive notice of tax sales always

satisﬁes due process. Herder Spring, in turn, gave only

lip service to Mullane and its progeny, and instead relied on an 1865 Pennsylvania decision and an 1815

statute.

In short, Pennsylvania courts have abrogated the

PHT’s federal due process rights by applying state law

that not only precedes Mullane, but that in fact predates the ratiﬁcation of the Fourteenth Amendment itself. These courts have avoided this Court’s precedents

under the guise of a refusal to apply “preconceived notions of what is reasonable in the age of the Internet.”

Herder Spring, 143 A.3d at 379. But Mullane itself is

from the pre-Internet era, as are many of this Court’s

other decisions consistently admonishing that notice

by publication is insufﬁcient where the identity of the

owner was – as here – known or readily ascertainable.

Since Mullane, the Court has had to reiterate periodically that the government is under an obligation

to provide reasonably individualized notice to property

owners before depriving them of their property. Once

again, this Court needs to emphasize that it meant

what it said in Mullane and subsequent cases: notice

by generalized publication is rarely sufﬁcient, particularly where the identity of the owner is known.

The PHT thus urges this Court to review the judgment below and provide much-needed certainty to

property owners, tax collectors and courts across the

country, to ensure that constitutional mandates are

recognized as recurrent ownership disputes dispose of

billions of dollars of oil and gas rights. Pennsylvania is

not alone in divesting recorded subsurface owners of

their property through tax sales for which only constructive notice by publication was given.

Indeed, this case presents recurring issues of increasingly signiﬁcant importance, and it is critical that

this Court prevent further disregard of its due process

precedents. Tens of thousands of acres of subsurface

rights in Pennsylvania alone have been subjected to

similar tax sales without notice to the property owners.

Moreover, with the nationwide boom in unconventional

oil and gas drilling, property owners throughout the

country are facing the same issue: discovering after

the fact that their property was taken without any attempt at individualized notice. Settling the question

presented here is essential to clarifying property rights

that are subject to a number of pending and impending

disputes. Similar tax sales affecting severed oil, gas

and mineral rights litter tax books across the country,

and have already been the subject of a number of existing disputes. Signiﬁcant interests are at stake: the

value of the oil and gas rights at issue in this case alone

are valued in the millions of dollars, and the PHT has

already been deprived of oil and gas rights, through tax

sales approved by Pennsylvania courts, that are valued

in the hundreds of millions of dollars.

For all these reasons, the Court should grant the

petition for a full hearing on the merits. In the alternative, and at a minimum, the Court should summarily reverse the decision below, as it is clearly in error

and ﬂouts this Court’s Fourteenth Amendment precedents.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the Pennsylvania Superior Court

afﬁrming the judgment of the Court of Common Pleas

of Lycoming County is reported summarily at 225 A.3d

1140 (Table), and reproduced at App. 3-22. The order

denying reargument is reproduced at App. 44-45. The

order of the Pennsylvania Supreme Court denying the

Petition for Allowance of Appeal is reported at 239 A.3d

23 (Table) and is reproduced at App. 1-2. The opinions

and orders of the Court of Common Pleas of Lycoming

County are not reported and are reproduced at App.

23-43.

---------------------------------♦---------------------------------

JURISDICTION

The Pennsylvania Superior Court entered an opinion and order on December 6, 2019, and denied rehearing or reargument by order dated February 11, 2020.

App. 3-22, 44-45. The Pennsylvania Supreme Court denied a Petition for Allowance of Appeal on September

22, 2020. App. 1-2. Pursuant to this Court’s March 19,

2020 Order, this petition was due within 150 days. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

Because this petition calls into question the constitutionality of a Pennsylvania state statute, the Act

of March 13, 1815, P.L. 177, 72 P.S. §§ 5981, 6001, as applied, 28 U.S.C. § 2403(a) may apply, and this petition is

being served on the Attorney General of Pennsylvania.

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States

Constitution provides, as relevant here, that:

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law. . . .

---------------------------------♦---------------------------------

STATEMENT

A. Factual Background

This case involves a forced tax sale of private property without any effort at the individualized notice required under this Court’s precedents, in violation of

the Due Process Clause of the Fourteenth Amendment.

It stems from a dispute over the ownership of oil, natural gas and minerals beneath two tracts of land in Lycoming County, Pennsylvania known as Warrants 5665

and 5667 (the “Premises”).

Prior to 1894, Thomas E. Proctor acquired substantial tracts of forest land in Pennsylvania, including the

Premises, in connection with his leather tanning business. See App. 4. In an October 1894 Deed, recorded in

the public deed records of Lycoming County, Pennsylvania, Mr. Proctor along with his wife Emma Proctor conveyed the surface estate to Elk Tanning Company, but

excepted and reserved unto himself, his heirs and assigns “all the natural gas, coal, coal oil, petroleum, marble and all minerals of every kind and character in, upon,

or under the said land” (the “Proctor Exception”). App. 5,

29, 66-70, 99-100. The deed expressly stated that the

Proctors were residents of Boston, Massachusetts. App.

66. When Mr. Proctor died later that year, his heirs inherited the excepted subsurface estate. App. 99.

The Proctor Exception created a separate estate,

subject to a separate assessment if appropriate. See,

e.g., Wilson v. A. Cook Sons Co., 148 A. 63, 64 (Pa. 1929)

(“where there is a divided ownership of the land there

ought to be a divided taxation”).

In 1903, Elk Tanning Company conveyed its

interests in the surface estate, “subject to all . . . reservations . . . contained in the deeds,” to Central

Pennsylvania Lumber Company (“CPLC”). App. 5, 7073, 100.

In June 1908, Calvin H. McCauley, Jr. (CPLC’s

general assistant solicitor) purchased the Premises at

a tax sale, occasioned by CPLC’s failure to pay taxes

assessed in 1907. App. 5, 30, 100.

There is no evidence in the record of any attempt to give actual notice to the record owners of

the subsurface, Thomas E. Proctor or his heirs, even

though, at the time of the 1908 tax sale, Lycoming

County taxing authorities unquestionably knew that

Proctor’s heirs claimed an interest in the subsurface

and that they resided in Boston:

•

The deed to Elk Tanning Company in which

Proctor excepted and reserved his subsurface

rights was ﬁled in the Lycoming County deed

records, available in the very court house in

which the County Commissioners and County

Treasurer had their ofﬁces. See App. 66-70,

99-100.

•

Proctor’s will, identifying his heirs, was also

ﬁled in Lycoming County’s public records. See

App. 99.

•

Unchallenged evidence reﬂected that Proctor’s and his heirs’ attorneys and agents directly and regularly communicated with the

Lycoming County Treasurer’s ofﬁce with regard to payments of taxes on Proctor properties (before, during and after the time period

at issue here). See App. 64-66, 73-87, 95-97.

•

Unsurprisingly, then, County and township

assessment records reﬂected Proctor’s and his

heirs’ ownership, including the ownership of

subsurface rights speciﬁcally. See, e.g., App.

85-94.1

Because reporting of interests for assessment and taxation,

by statute, was made to county ofﬁcials, see Act of March 28, 1806,

P.L. 644, 4 Sm.L. 346, § 1, 72 P.S. § 5020-409, who then provided

the information to township assessors, township records necessarily ref lect actual knowledge on the part of county ofﬁcials.

The lack of individualized notice, in the face of tax

ofﬁcials’ actual knowledge, was purportedly justiﬁed

by the legal fiction that taxes assessed against unimproved (“unseated”) property were assessed solely

against the property itself in rem, rather than against

the owners. Accordingly, the statutory regime in place

at the time required only notice by publication in local

newspapers. And even this purported “notice” was not

required to name the owners of the property to be sold.

See generally Herder Spring, 143 A.3d at 363-66; Act of

March 13, 1815, P.L. 177, 72 P.S. § 6001.

Nor was there anything else associated with the

assessment or ensuing sale that would indicate that

the separate, previously-severed subsurface estate was

in jeopardy. Indeed, an assessment and sale of subsurface rights under the circumstances would have violated then-existing Pennsylvania law. See generally

F.H. Rockwell & Co. v. Warren County, 77 A. 665 (Pa.

1910) (prohibiting the assessment and taxation of subsurface rights in the absence of any basis for their valuation). Where subsurface rights could be taxed, they

were, and in those instances the Proctor heirs paid the

assessments. See, e.g., App. 89-94.

Two years later, McCauley subsequently quitclaimed the Premises back to CPLC, along with 55

other tracts, for $1. App. 5, 30. Respondents all claim

their interests through CPLC. App. 6.

B. Procedural history

Keta originally brought this action in November

1950, seeking to quiet title to the subsurface rights at

issue, contending that the 1908 tax sale had extinguished the Proctor exception and reunited the surface

and mineral estates. Immediately thereafter, Keta obtained a fraudulent default judgment, by submitting a

false afﬁdavit in favor of service by publication. (Keta

swore that it did not know the whereabouts of the defendants, when it in fact was negotiating at the time

with the Proctor heirs over a potential lease of the

Premises.) When Keta’s fraud came to light, the trial

court opened the judgment, and the matter proceeded

on the merits. App. 6-7. The PHT and MPT speciﬁcally

alleged, in (inter alia) their counterclaim against all intervenor-plaintiffs, that the tax sale was void because

“the heirs of Thomas E. Proctor did not receive constitutionally-sufﬁcient notice,” and that “notice by publication alone violated the due process guarantees of the

. . . United States Constitution[ ].” App. 47, 50, 51.

After discovery, the trial court entered a summary

judgment in favor of Respondents in October 2018.

App. 26-43. The trial court did not address the PHT’s

and MPT’s contention that the absence of individualized notice rendered the tax sale constitutionally defective, asserted in their consolidated brief in opposition

to intervenors-plaintiffs’ motions for summary judgment. App. 55.

The PHT and MPT timely appealed the trial court’s

judgment, contending inter alia that the tax sale

violated the Fourteenth Amendment because of the

lack of any effort to provide individual notice. App.

57-58. On December 6, 2019, after briefing and argument, the Superior Court afﬁrmed the trial court’s

summary judgment. App. 3-22. In rejecting the PHT’s

and MPT’s due process argument, the Superior Court

agreed that there was no evidence of any attempt at

individualized notice. Even so, the court believed that

constructive notice by publication alone was nonetheless consistent with the Fourteenth Amendment’s due

process guarantees.

In ruling that published notice satisﬁed Due Process, the Superior Court did not cite Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), or

any of this Court’s other precedents. Instead, the court

relied solely on the Pennsylvania Supreme Court’s

prior decision in Herder Spring Hunting Club v. Keller,

143 A.3d 358 (Pa. 2016), reading Herder Spring to hold

that notice by publication was per se sufﬁcient under

all circumstances. App. 20-21. Herder Spring, in turn,

relied on an 1815 Pennsylvania statute prescribing the

requisite notice and City of Philadelphia v. Miller, 49

Pa. 440 (1865), which held that the statutory notice by

publication was permissible because of “the difﬁculties

of ascertaining ownership information relating to unseated landowners and the protection provided by the

[statute’s two-year] redemption period.” 143 A.3d 378.

The Herder Spring court did so even though both the

statute and Miller pre-dated not only Mullane, but also

the enactment of the Fourteenth Amendment itself.

The Herder Spring court justiﬁed its conclusion by

stating that it would not apply “preconceived notions

of what is reasonable in the age of the Internet,” id.,

even though Mullane itself predated the Internet by

decades.

The Superior Court also discounted the PHT’s and

MPT’s effort to distinguish Herder Spring, rejecting

the evidence – not available to the court in Herder

Spring – showing that Proctor and his heirs’ identities

were known to tax authorities. The court incorrectly

stated that the PHT did not “provide any factual support regarding the supposed ease of locating Proctor’s

heirs in regards to the 1908 tax sale,” characterizing

the PHT’s and MPT’s undisputed evidence as “impermissible speculation or conjecture.” App. 21.

On February 11, 2020, the Superior Court denied

the PHT’s and MPT’s petition for reargument. App. 4445.

On September 22, 2020, the Pennsylvania Supreme Court denied the PHT’s Petition for Allowance

of Appeal, App. 1-2, in which the PHT and MPT argued

the tax sale effected an unlawful deprivation of property rights without due process of law, App. 60-61.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

A. The decision below flouts this Court’s decisions in Mullane and Mennonite.

It is undisputed that the only notice the local government attempted to provide, before divesting the

Proctor heirs of their property rights, was published

notice in local newspapers, even though the heirs’ identity was not only readily ascertainable from public records, but in fact was actually known to local ofﬁcials.

This plainly fails to satisfy the due process requirements this Court set forth in Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306 (1950) and

Mennonite Board of Missions v. Adams, 462 U.S. 791

(1983). Under those decisions, constructive notice, by

itself, does not constitute “due process of law” when the

identity of the owner is known. See also, e.g., Walker v.

City of Hutchinson, 352 U.S. 112, 116 (1956) (published

notice was constitutionally insufﬁcient when landowner’s name “was known to the city and was on the

ofﬁcial records,” such that “even a letter would have

apprised him that his property was about to be taken

and that he must appear if he wanted to be heard as to

its value”).

Despite this Court’s clear instruction to the contrary in those cases and others, the decision below refused to analyze whether reasonable efforts could have

been made that would have actually notiﬁed the Proctor heirs of the tax sale. Instead, relying on Pennsylvania precedent, it held that published notice was in

every case sufﬁcient to satisfy due process. While this

conclusion, grounded on the decision in Herder Spring,

was purportedly based on the standards “of the era,”

the “era” at issue here (a 1908 tax sale) is indistinguishable in any material respect from the circumstances prevailing in Mullane (a 1947 trust proceeding).

The Pennsylvania court’s refusal to consider “what is

reasonable in the age of the Internet” was thus a thinly

veiled means of evading this Court’s precedents while

purporting to apply them.2

This failure to adhere to this Court’s authority is

all the more inexplicable given that there was ample,

undisputed record evidence showing that taxing authorities not only could have identiﬁed the true owners, but that they in fact did know those owners’

identities and whereabouts (and indeed had directly

corresponded with the owners by mail).

1. This Court’s Due Process Clause jurisprudence clearly requires personal notice to be provided to known individuals

prior to depriving them of their property.

The Superior Court, in rejecting the PHT’s argument that the 1908 tax sale was void because the

constructive notice provided was constitutionally deﬁcient, announced a bright-line rule that constructive

notice through publication for in rem tax sales always

comports with due process requirements, regardless of

what the record in fact shows about the identity and

In light of this Court’s decision in Harper v. Virginia Dep’t

of Taxation, 509 U.S. 86 (1993), there can be no dispute that Mullane applies retroactively to the tax sale at issue here. “When this

Court applies a rule of federal law to the parties before it, that

rule is the controlling interpretation of federal law and must be

given full retroactive effect in all cases still open on direct review

and as to all events, regardless of whether such events predate or

postdate our announcement of the rule.” 509 U.S. at 97 (emphasis

added). See, e.g., T.H. McElvain Oil & Gas Ltd. P’ship v. BensonMontin-Greer Drilling Corp., 388 P.3d 240, 249-50 (N.M. 2016),

cert. denied, 137 S. Ct. 1584 (2017).

location of interested parties. As a result, the Superior

Court’s decision violates Mullane, Mennonite, and this

Court’s subsequent cases applying those decisions.

Over sixty years ago in Mullane, this Court held

that it could not regard the likelihood that the sort of

notice that occurred here would reach the intended

party as “more than a feint.” 339 U.S. at 315. The case

considered what sort of notice the Due Process Clause

required be given to two classes of trust beneﬁciaries.

As to beneﬁciaries whose interests or whereabouts

could not be ascertained with due diligence, the Court

held that notice by newspaper publication was sufﬁcient. Id. at 317. But as to those beneﬁciaries whose

identities and place of residence were known, however,

notice only by publication was unconstitutional because such notice was not “reasonably calculated to

reach those who could easily be informed by other

means at hand.” Id. at 319. The Court found “no tenable ground for dispensing with a serious effort to inform them personally . . . , at least by ordinary mail to

their record addresses.” Id. at 318.

Mullane requires notice that is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.” Mullane, 339 U.S. at 314. As the Court explained, “when

notice is a person’s due, process which is a mere gesture is not due process. The means employed must be

such as one desirous of actually informing the absentee

might reasonably adopt to accomplish it.” Id. at 315.

Of import here, Mullane speciﬁcally rejected the

notion that ofﬁcials could dispense with individual notice by characterizing a proceeding as a matter in rem,

holding that “the requirements of the Fourteenth

Amendment . . . do not depend upon a classiﬁcation for

which the standards are so elusive and confused generally.” Rather:

Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other

issues, or the reasoning which underlies them,

we do not rest the power of the State to resort

to constructive service in this proceeding upon

how its courts or this Court may regard this

historic antithesis.

Id. at 312-13.

Unsurprisingly, given this clear holding in Mullane, over thirty years later in Mennonite this Court

held that notice by publication to a known mortgagee

“did not meet the requirements of the Due Process

Clause of the Fourteenth Amendment.” 462 U.S. at 800.

Similar to the facts in this case, Mennonite arose from

a quiet title action brought by a purchaser of property

at a tax sale. Also like this case, the mortgagee received

no actual notice of the sale, and none was attempted.

Instead, the local government only posted notice in the

local courthouse and published notice prior to the sale.

Id. at 794.

The Court held that this lack of actual notice violated the Due Process Clause because the identity of

the mortgagee was known. Speciﬁcally, it held that

“[n]otice by mail or other means as certain to ensure

actual notice is a minimum constitutional precondition

to a proceeding which will adversely affect the liberty

or property interests of any party . . . if its name and

address are reasonably ascertainable.” Id. at 800 (ﬁrst

emphasis added). Mennonite emphasized that the government may not avoid “the relatively modest administrative burden of providing notice by mail.” Id. at

799-800. In sum, the government’s use of the “less reliable forms of notice” by publication “is not reasonable

where, as here, ‘an inexpensive and efﬁcient mechanism such as mail service is available.’ ” Id. at 799 (citation omitted).

Though Mullane and Mennonite are clear enough,

they are not the only cases where this Court, long

before “the age of the Internet,” has reiterated that notice by publication is constitutionally unsound. See

Schroeder v. City of N.Y., 371 U.S. 208, 211, 212-13

(1962) (notice by posting and publication is insufﬁcient

where the property owner’s identity was “readily ascertainable” from deed records); Walker, 352 U.S. at 116

(notice only by publication is insufﬁcient where the

property owners were listed in ofﬁcial records); City of

N.Y. v. N.Y., New Haven & Hartford R.R. Co., 344 U.S.

293, 296 (1953) (“Notice by publication is a poor and

sometimes a hopeless substitute for actual service of

notice.”).

2. The decision below cannot be reconciled

with this Court’s precedent.

The decision below is impossible to square with

the unbroken line of authority just discussed. The Superior Court inexplicably held that due process required no more than notice by publication in a local

Pennsylvania newspaper. But it is undisputed that the

taxing authorities knew both that the subsurface

rights were owned by Thomas Proctor and his heirs,

and that they resided in Boston. See supra at 7.

Thus, under Mullane and its progeny, the government was required to take reasonable steps to notify

the Proctor heirs. See Mennonite, 462 U.S. at 800 (if

a party’s name and address are “reasonably ascertainable,” notice by mail or equally effective means

is required). Instead, it took no steps at all beyond

the general publication that this Court has so often

condemned.

None of the Superior Court’s proffered reasons

for rejecting the PHT’s due process arguments withstand scrutiny. Its analysis was limited to a single

paragraph, and never even cited Mullane or its progeny. App. 20-21. Rather than looking to this Court’s

precedents to resolve the PHT’s Fourteenth Amendment claim, the decision below relied solely on

Herder Spring. Similar to this case, Herder Spring

involved a 1935 tax sale that stripped the owners of

severed subsurface rights of their property interest

and provided only published notice of the sale.

Herder Spring held that such notice satisﬁed Mullane and its progeny. The case initially acknowledged

that Mullane “broke with past precedent allowing notice by publication for in rem cases,” 143 A.3d at 376,

but it then fell back almost immediately on that very

past precedent under the pretense of considering “the

constraints of the era.” Id. at 377. Vaguely alluding to

“preconceived notions of what is reasonable in the age

of the Internet,” id. at 378, it held that published notice

was adequate because that notice complied with an

1815 Pennsylvania statute pertaining to in rem tax

sales – the very distinction that Mullane rejected. See

339 U.S. at 312-13 (discussed supra at 15).

Of course, Mullane, Mennonite, and this Court’s

other cases rejecting notice by publication were all decided well before “the age of the Internet,” but they still

rejected the sufﬁciency of notice by publication. For example, in 1956 this Court emphasized that “[i]t is common knowledge that mere newspaper publication

rarely informs a landowner of proceedings against

his property.” Walker, 352 U.S. at 116. Though Herder

Spring purported to apply Mullane retroactively, in actuality it created a complete end-run around the decision under the guise of looking to “the constraints of

the era.” This critical error is carried over into the

Superior Court’s decision below.3 The Superior Court

The disregard of this Court’s precedents is even more egregious in this case than in Herder Spring. In Herder Spring, the

court emphasized that there was no evidence that the local government had been informed of the subsurface owners’ reservation. 143 A.3d at 360. Here, by contrast, the undisputed evidence

of record shows that taxing authorities knew the identities and

neglected to proffer any explanation why the published

notice in a local newspaper, when the government

knew both the owners’ identity and that they did not

live locally, were “means . . . such as one desirous of actually informing the [owner] might reasonably adopt

to accomplish it.” Mullane, 339 U.S. at 315.

Herder Spring also relied heavily on the pre-Mullane decision of City of Philadelphia v. Miller, 49 Pa.

440 (1865), even though – incredibly – that decision

pre-dated the enactment of the Fourteenth Amendment. Miller is not only antiquated, however; it also

is ﬂatly inconsistent with this Court’s ensuing pronouncements. For example, while Miller posited that

even if an owner “received no notice of the sale, it required of him no great measure of diligence to look after his interests” and redeem the property within an

allotted time period, 49 Pa. at 451, Mennonite speciﬁcally rejected such a contention, holding that “a party’s

ability to take steps to safeguard its interest does not

relieve the State of its constitutional obligation.” 462

U.S. at 799.4

location of the subsurface owner (and indeed had been directly

dealing with those interested parties). See supra at 7.

Even if it were not irrelevant as a legal matter, Miller’s reliance on what might be reasonably expected of the property

owner has no application as a factual matter here, given that (as

discussed above) the Proctor heirs would have had no reason, under then-prevailing law, to be on guard for the potential sale of

their rights because of the surface owner’s non-payment. See supra at 6, 8.

Herder Spring and Miller all pointed to the fact

that published notice purportedly complied with an

1815 Pennsylvania statute. Act of March 13, 1815, P.L.

177, § I, 72 P.S. §§ 5981, 6001. But this Court has

clearly stated that due process “require[s] the government to consider unique information about an intended recipient regardless of whether a statutory

scheme is reasonably calculated to provide notice in

the ordinary case.” Jones v. Flowers, 547 U.S. 220, 230

(2006). See also Robinson v. Hanrahan, 409 U.S. 38, 40

(1972) (published notice of an in rem vehicle sale is insufﬁcient when state knows that owner is jailed). Even

if reliance on the 1815 statute were appropriate in certain cases (for example, where the identity of landowners was truly unknown, and not ascertainable from

public records), the facts of this case cannot render reliance on that statute compliant with the Due Process

Clause.

After all, as explained above, the notice required

to comply with the Due Process Clause must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.” Mennonite, 462 U.S. at 795 (citation omitted).

Here, there is no evidence that the government attempted to but was unable to locate the Proctor heirs.

In fact, as shown above, the record revealed, as a matter that was not in dispute, that Lycoming county ofﬁcials had both constructive and actual knowledge of

Proctor’s interest:

•

As an initial matter, taxing authorities could

have obtained relevant information – Proctor’s and his heirs’ interest and residence in

Boston – by reviewing records kept in another

room in the very same county courthouse.

•

Beyond that, however, the evidence reﬂects

that they actually knew about Proctor’s and

his heirs’ interest, and had direct dealings

with their agents speciﬁcally relating to taxes

on Proctor’s and his heirs’ unseated interests.5

In any event, Pennsylvania courts’ entrenched approach offends the Due Process Clause and this Court’s

clear precedents providing for the constitutional protection of property rights. Allowing the decision below

to stand would open the door for other courts to pursue a similarly unapologetic path of disregarding this

Even though this evidence was never called into question,

the Superior Court discounted it entirely as “speculation or conjecture,” purportedly because the PHT did not “present any factual support regarding the supposed ease of locating Proctor’s

heirs.” App. 23. This is not only incorrect, but also, more broadly,

fundamentally misses the point: because the record below reveals

no effort at providing individualized notice, there is no need to

surmise as to whether any such notice might or might not have

reached its intended recipients. (If, for example, the record reﬂected a notice by mail that was returned as undeliverable, or

that the Proctor interest was unrecorded in the deed books, this

would be a much different case.)

In short, the Superior Court’s summary disregard of the

PHT’s evidence does not counsel against this Court’s review, because this Court’s precedents make clear that it is irrelevant, for

constitutional purposes, whether hypothetical notice that was

never attempted would in fact have succeeded, so long as an attempt at such notice was, as here, reasonably practicable based

on the information available to public ofﬁcials.

Court’s clear constitutional precedents, simply in the

interest of expediency, or to favor the interests of local voters over non-resident landowners. This Court

should grant review to foreclose that destabilizing

path.

In short, because the decision below disregards

binding United States Supreme Court precedent and

the underlying constitutional norms that this Court

has consistently upheld, this Court should grant review. Sup. Ct. R. 10(c) (certiorari warranted where “a

state court . . . has decided an important federal question in a way that conﬂicts with relevant decisions of

this Court”).

B. This is a recurring and important issue, and

this case is a good vehicle for addressing it.

Pennsylvania courts’ repeated refusal to apply

Mullane and its progeny to tax sales has enormous

practical signiﬁcance. Title to subsurface oil and gas

rights has increasingly come into dispute in recent

years, as the value of those rights has risen dramatically. See, e.g., Robinson Twp. v. Commonwealth, 83

A.3d 901, 914-15 (Pa. 2013) (describing the development of natural gas extraction in Pennsylvania). In

this case alone, the oil and gas rights at issue are worth

millions of dollars. And this case implicates but a small

portion of the valuable subsurface rights in Pennsylvania. Pennsylvania overlies a large portion of the Marcellus Shale, an underground rock formation whose

embedded natural gas is valued conservatively in the

hundreds of billions of dollars. Nicole R. Snyder

Bagnell & Stephanie L. Hadgkiss, Eastern Shale Plays

– A Game Plan for Success, 55 Rocky Mtn. Min. L. Inst.

32-1, § 32.03 (2009).

The troubling fact pattern underlying this case is

unfortunately not uncommon in Pennsylvania, as exhibited by Herder Spring and the cases that have repeatedly applied it to sanction “title wash” tax sales

that expropriate subsurface property rights without

due process.6 See, e.g., Woodhouse Hunting Club, Inc. v.

Hoyt, 183 A.3d 453 (Pa. Super. Ct. 2018); Cornwall Mt.

Invs., L.P. v. Thomas E. Proctor Heirs Trust, 158 A.3d

148 (Pa. Super. Ct.), appeal denied, 172 A.3d 594 (table)

(Pa. 2017), cert. denied, 138 S. Ct. 1698 (2018); Leonard

v. Newman; Spigelmyer v. Colony, No. 1602 MDA 2015,

2016 WL 4876216 (Pa. Super. Ct. July 26, 2016); Bailey

v. Elder, No. 79 MDA 2015, 2015 WL 6954488 (Pa. Super. Ct. Nov. 9, 2015), appeal denied, 145 A.3d 722 (table) (Pa. 2016), cert. denied, 137 S. Ct. 641 (2017). See

also Pa. Game Comm’n v. Thomas E. Proctor Heirs

Trust, 455 F. Supp. 3d 127 (M.D. Pa. 2019) (rejecting a

due process argument but denying summary judgment

on state law grounds).

Nor has Pennsylvania’s approach gone without

justiﬁable criticism. See also Mark Prokopchak, Renewing Respect For Record Notice: Cleaning Up The

“A ‘tax wash sale’ or ‘title wash’ describes the effect of early

tax sales of unseated land on a prior severance of a subsurface

estate.” Leonard v. Newman, No. 1291 MDA 2016, 2017 WL

3017066 at *1 n.1 (Pa. Super. Ct. July 17, 2017) (citing Herder

Spring, 143 A.3d at 166).

Pennsylvania Title Wash, 2 Tex. A&M J. Prop. L. 533,

560 (2015) (“Punishing record mineral estate owners

by divestment of their property interest for allegedly

not . . . paying taxes on minerals that are nearly impossible to value or assess until extracted is anathema

to both current law and common sense.”).

Even if the type of scenario here, and state courts’

failure to apply Mullane, were limited to Pennsylvania,

certiorari would be warranted, given that tens of thousands of acres of land in Pennsylvania are likely implicated by Herder Spring alone. See, e.g., Joel R. Burcat

& Megan E. Albright, ‘Title Washing’ in Pennsylvania

Is Alive and Well, The Legal Intelligencer, Aug. 25,

2016, available at https://www.saul.com/sites/default/

files/sites/default/files/documents/Legal%20Intel%20

article%20BurcatAlbright_082516.pdf.

But the significance of the issue is not limited to

just one state. With the boom in unconventional oil

and gas exploration in recent years, the issue is coming to the forefront in courts throughout the country.

In recent years, a number of state courts have upheld

the divestiture of severed subsurface property rights

when the only “notice” given to the subsurface owner

was constructive notice by publication. See, e.g., T.H.

McElvain Oil & Gas Ltd. P’ship v. Benson-MontinGreer Drilling Corp., 388 P.3d 240, 249-50 (N.M. 2016)

(upholding 1948 quiet title judgment of a reserved

subsurface right where the only notice was by publication, misreading Mullane), cert. denied, 137 S. Ct. 1584

(2017); Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil

Corp., 112 So. 3d 209 (La. 2013) (refusing to apply

Mullane and Mennonite to a 1925 tax sale of severed

mineral rights), cert. denied, 134 S. Ct. 197 (2013);

Aarco Oil & Gas Co. v. EOG Resources, Inc., 20 So. 3d

662, 668-69 (Miss. 2009) (upholding 1942 tax sale divesting subsurface owners where only the surface owners received record notice).

Importantly, however, this is an issue on which

state courts have disagreed. Not every court treats this

Court’s holdings in such a careless fashion. See Jordan

v. Jensen, 391 P.3d 183 (Utah 2017) (applying Mennonite to hold that due process prevented divestiture of

mineral rights through unnoticed 2000 tax sale); Owens v. Tergeson, 363 P.3d 826 (Colo. App. 2015) (applying Mullane to overturn default judgment in 1973

quiet title action). This conﬂict among the states further shows that this Court’s intervention is needed,

to ensure that important constitutional safeguards apply uniformly throughout the nation. See Sup. Ct. R.

10(b) (certiorari warranted where “a state court of last

resort has decided an important federal question in a

way that conﬂicts with the decision of another state

court of last resort”).

As the facts underlying these cases indicate, localities across the nation have disposed of severed subsurface rights in ways that pose signiﬁcant concerns

under Mullane and its progeny. Now that those longundeveloped rights are of sudden value, courts are

forced to confront the due process issues that have

arisen. Although the economic magnitude of this issue nationwide is difficult to calculate, the value in

Pennsylvania and this case alone demonstrates the

signiﬁcant interests at stake. More critically, the Constitutional protection of a person’s property has an intrinsic value that cannot be measured in dollars. The

cavalier approach taken by the court below in permitting this deprivation of property cannot be countenanced.7

The decision below in effect upholds a governmentsanctioned expropriation of valuable real property

Any concern about repose or the disruption of settled expectations are overblown, and do not excuse the unconstitutional

deprivation of property without due process.

First, there is no basis for the supposition that tax sale purchasers knew that a sale of the surface would also convey a

subsurface interest severed before the assessment, or that purchasers relied on that knowledge (particularly where, as here, the

relevant post-tax sale deeds reiterated the prior Proctor Exception). Until Herder Spring, the weight of precedent held otherwise. See, e.g., N.Y. Nat. Gas Corp. v. Swan-Finch Gas Dev. Corp.,

278 F.2d 577, 579-80 (3d Cir. 1972); Day v. Johnson, 31 Pa. D. &

C. 3d 556 (C.C.P. 1983); New Shawmut Mining Co. v. Gordon, 43

Pa. D. & C. 2d 477 (C.C.P. 1963); Kline v. Hull, 10 Law. L.J. 74

(C.C.P. 1951).

Second, the application of due process requirements to tax

sales “would not necessarily defeat all titles based on tax deeds.

First, not every deed would be challenged; the owner may in fact

have abandoned the property. Second, the doctrine of adverse possession would defeat challenges to most other deeds.” Jonathan

W. Still, Note, The Constitutionality of Notice by Publication in

Tax Sale Proceedings, 84 Yale. L.J. 1505, 1517 (1975).

Third, a mistaken desire for the preservation of historical

outcomes should not outweigh constitutional guarantees. After

all, “traditional notions of fair play and substantial justice can be

as readily offended by the perpetuation of ancient forms that are

no longer justiﬁed as by the adoption of new procedures that are

inconsistent with the basic values of our constitutional heritage.”

Shaffer v. Heitner, 433 U.S. 186, 212 (1977).

rights that offends this Court’s articulations of what

“due process of law” requires. Pennsylvania courts’ decisions communicate clearly that due process is nothing more than an empty promise whenever it might be

inconvenient to recognize, or where it might favor outof-state landowners to the detriment of local voters.

This is plainly a matter of substantial public importance justifying this Court’s attention. Deferring

review will only lead to further chaos and uncertainty.

This case is also a good vehicle for emphasizing

that state courts must faithfully apply Mullane and its

guarantees of minimal due process. The record below

is “clean.” There is no evidence to suggest that tax ofﬁcials made any effort to provide individualized notice;

rather, the Pennsylvania court’s reasoning rested

solely on Herder Spring’s conclusion that Mullane did

not alter the prior 1865 decision that notice by publication is constitutionally adequate. Accordingly, there

is no need for the Court to wade into nuanced questions as to the sufﬁciency of governmental efforts to

notify interested parties.

Nor are there any factual issues that raise a legitimate question as to whether an attempt at individualized notice was impossible or impracticable, see

Mullane, 339 U.S. at 317, such as an unrecorded deed

or a confused chain of title.8 Here, it is undisputed that

See Herder Spring, 143 A.3d at 377 (justifying notice by

publication because “ownership of unseated land was often contested,” and because “it frequently occurs that the owner’s deed is

not recorded, his name is not registered, he is not known, no one

is in actual possession, and there is no apparent owner or reputed

both the deed embodying the Proctor Exception and

the will identifying Proctor’s heirs were ﬁled in Lycoming County’s public records. See App. 66-70, 99. Further, both tax records and undisputed testimony

contemporaneous with the tax sale showed that the

Proctor heirs’ interest in the property and their general whereabouts were actually known. See App. 64-66,

73-97. This case therefore presents the Court with the

opportunity to reafﬁrm the applicability of Mullane

and Mennonite without confronting any fact-bound issues or state-law defenses.

C. Summary reversal is warranted.

Though the question presented warrants full consideration on the merits, at a minimum this Court

should grant certiorari and summarily reverse the decision below as it is directly contrary to this Court’s

Fourteenth Amendment precedents. Summary reversal is appropriate in situations in which “the law is settled and stable, the facts are not in dispute, and the

decision below is clearly in error.” Pavan v. Smith, 582

U.S. ___, ___, 137 S. Ct. 2075, 2079 (2017) (Gorsuch, J.,

dissenting) (quoting Schweiker v. Hansen, 450 U.S. 785,

791 (1981) (Marshall, J., dissenting)). See, e.g., Pavan v.

Smith, 582 U.S. ___, ___, 137 S. Ct. 2075, 2076-77

(2017) (per curiam) (summarily reversing state supreme court’s failure to follow this Court’s precedent);

Wearry v. Cain, 577 U.S. ___, ___, 136 S. Ct. 1002, 1007

owner in the neighborhood of the property” (citations and internal

quotations omitted)).

(2016) (per curiam) (summarily reversing decision

where the “lower courts have egregiously misapplied

settled law.”); Maryland v. Kulbicki, 577 U.S. 1, 2 (2015)

(per curiam) (summarily reversing because the court

below applied Strickland v. Washington, 466 U.S. 668

(1984), “in name only”); Grady v. North Carolina, 575

U.S. 306, 309-10 (2015) (per curiam) (summarily reversing a judgment inconsistent with this Court’s recent

Fourth Amendment precedents); Martinez v. Illinois,

572 U.S. 833, 843 (2014) (per curiam) (summarily reversing state court decision that “r[an] directly counter

to our precedents”).

As described in the preceding sections, all three of

these criteria are easily satisﬁed here, and the fact pattern underlying this case has arisen with frequency in

recent years as subsurface rights have become increasingly valuable. Summary reversal is appropriate not

only to rectify the unlawful seizure of property worth

millions of dollars that occurred here, but to reiterate

that courts nationwide must actually apply, rather

than avoid, the mandates of Mullane and its progeny.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons, the petition for a writ of certiorari should be granted. In the alternative, the petition

should be granted and the judgment below summarily

reversed.

Respectfully submitted,

PAUL K. STOCKMAN

Counsel of Record

KAZMAREK MOWREY CLOUD

LASETER LLP

One PPG Place, Suite 3100

Pittsburgh, PA 15222

(404) 333-0572

pstockman@kmcllaw.com

LAURA A. LANGE

1670 Sturbridge Drive

Sewickley, PA 15143

(847) 800-8334

lange@proctortrust.com

February 17, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.