Sisson v. Stanley
| Decision Date | 27 January 2015 |
| Docket Number | No. 1347 MDA 2013,1347 MDA 2013 |
| Parties | Donald R. SISSON and Mary Sisson, his Wife, Appellants v. Joseph STANLEY, his Heirs Successors, Executors, Assigns, and any Persons Claiming by, through, or from them, Appellees. |
| Court | Pennsylvania Superior Court |
Stephen Pinnacoli, Scranton and Andrew J. Katsock, III, Wilkes Barre, for appellants.
Marion O'Malley, Montrose, for appellees.
BEFORE: DONOHUE, ALLEN, and STABILE, JJ.
Appellants, Donald R. Sisson and Mary Sisson, appeal from the June 28, 2013 order granting the motion for judgment on the pleadings of Appellees, the heirs of Joseph Stanley. We affirm.
The parties dispute ownership of the right to mine Marcellus Shale gas underlying a 98.5 acre property (“the Property”) located in Susquehanna County, Pennsylvania. In 1953, Joseph Stanley transferred ownership of the Property to Pauline Battista subject to a reservation of “all of the oil and gas underlying the [Property].” Deed, 5/1/53.1 On March 6, 1986, Battista transferred the property to Appellants, subject to the same reservation.
Chesapeake Appalachia, LLC, approached Appellants with a proposed lease agreement that would allow Chesapeake to extract the shale gas underlying the Property. Chesapeake advised Appellants of a cloud in their title based on the reservations of rights in the 1953 and 1986 deeds. On April 27, 2010, Appellants filed an action to quiet title2 to clear the way for a profitable lease agreement with Chesapeake. The named defendants were “Joseph M. Stanley, his heirs, successors, executors, assigns, and any persons claiming by, through or from them.” Complaint to Quiet Title, 4/27/10, caption.
Also on April 27, 2010, Appellants filed a motion pursuant to Rule 430(a) of the Pennsylvania Rules of Civil Procedure requesting permission to serve the named defendants by publication. Appellants, by and through their counsel, conducted a brief search for defendants documented in a skeletal affidavit which in pertinent part states:
Affidavit, 4/27/10. The trial court granted Appellants' motion and on May 5, 2010 Appellants published a notice of the pending action in the Susquehanna County Independent, a local newspaper.
After no interested party came forward to defend against Appellants' action, the trial court entered an order and decree, dated July 12, 2010, providing that the named defendants were forever barred from asserting any interest in the Property unless they brought an action in ejectment within 20 days. Order and Decree, 7/12/10. Again, no interested party came forward and on August 2, 2010, the trial court entered final judgment against the named defendants, forever barring them from asserting any interest in the property.
On November 9, 2010, Rita Stanley Lupold (“Lupold”), claiming to be the sole surviving sibling of Joseph Stanley, came forward and filed a petition to open the judgment. Lupold alleged the trial court lacked jurisdiction to enter judgment because Appellants failed to effect proper service of process. The trial court agreed, and on December 28, 2010 entered an order opening the judgment. Thereafter, Lupold filed preliminary objections, dated January 14, 2011, to Appellants' complaint to quiet title. Appellants amended their complaint on February 3, 2011. Lupold filed preliminary objections to the amended complaint on February 22, 2011, and Appellants answered those objections on March 18, 2011. On July 28, 2011, the trial court entered an order overruling Lupold's preliminary objections. On August, 17, 2011, Lupold filed an answer, new matter, and counterclaim to Appellants' amended complaint. The new matter asserted that the applicable statute of limitations barred Appellants' complaint, and the counterclaim asserted that the pending action prevented Lupold from profiting from the shale gas. Answer, New Matter, and Counterclaim, 8/27/11, at ¶¶ 50–64. On September 8, 2011, Appellants answered the new matter and counterclaim. After the parties were unable to resolve the matter at an April 17, 2012 pre-trial conference, the trial court scheduled trial for August 27, 2012. Trial was continued several times and eventually scheduled for July 1, 2013.
On June 4, 2013, Lupold filed a motion for judgment on the pleadings, asserting that no viable legal theory exists upon which Appellants could obtain the relief they seek. Appellants answered that motion on June 19, 2013 and on June 28, 2013 the trial court granted Lupold's motion. This timely appeal followed. Appellants raise three assertions of error:
Appellants' first two assertions of error address the trial court's application of Pa.R.C.P. 430. Rule 430 governs motions for service by special order of court, including service by publication. Rule 430(a) provides that any such motion be “accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.” Pa.R.C.P. 430(a). The Note to Rule 430(a) provides as follows:
An illustration of a good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act [...], (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.”
Pa.R.C.P. 430(a), note.
In Deer Park Lumber, Inc. v. Major, 384 Pa.Super. 625, 559 A.2d 941 (1989), the plaintiff filed an affidavit that “failed to provide any indication of the types of procedures used to locate [the defendants].” Id. at 944.5 Nonetheless, the plaintiff offered testimony indicating that it searched deed books, tax records, will books, and a voter registration list in Wyoming County. Id. at 945. The plaintiff located a deed subjecting the property at issue to a reservation of rights and listing the defendants' address in Luzerne County. Id. The plaintiff filed its quiet title action in Wyoming County and made no effort to locate defendants in Luzerne County. Id.
Construing the Note to Rule 430(a), this Court wrote:
While by no means exhaustive, this Note is at least indicative of the types of procedures contemplated by the legislature when enacting Rule 430. In essence, it provides that more than a mere paper search is required before resort can be had to the publication provisions of Rule 430(b).
Id. at 946 (emphasis added). Another party interested in the land, and also in possession of the information from the deed, traveled to Luzerne County and located an heir of the defendants in less than one hour. Id. This Court concluded the plaintiff's failure to investigate outside of Wyoming County rendered its investigation inadequate. Id.
Due process of law requires an adequate investigation for interested parties. Courts have repeatedly expressed the importance of proper service of process. “Service of process by publication is an extraordinary measure and great pains should be taken to ensure that the defendant will receive actual notice of the action against him.” Fusco v. Hill Fin. Sav. Ass'n, 453 Pa.Super. 216, 683 A.2d 677, 680 (1996). “Due process, reduced to its most elemental component, requires notice.” PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 230 (Pa.Super.2007). In both Fusco and PNC, counsel sought permission for alternative service even though they were aware of the identity of a potentially interested defendant. The Fusco Court criticized counsel's action as “callous in the least and opportunistic at worst.” Fusco, 683 A.2d at 681.
As our federal courts have observed: Calabro v. Leiner, 464 F.Supp.2d 470, 471 (E.D.Pa.2006) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ). To this end, Rule 430(a) applies only where “service cannot be made ” in...
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Pennsylvania Superior Court Affirms Striking Of 24-Year-Old Default Judgment, And Holds That Leasing Is Not Enough To Claim Subsurface Rights By Adverse Possession
...of process on any defendant named in the 1988 action, the Superior Court relied heavily upon the recent decision of Sisson v. Stanley, 109 A.3d 265 (Pa. Super. 2015) (a different aspect of which is now before the Supreme Court). Northern Forests had served the named defendants by publicatio......