Vosburg v. NBC Seventh Realty Corp.

• Decision Date: 02 September 2015
• Docket Number: No. 1552 MDA 2014,1552 MDA 2014
• Citation: 122 A.3d 393,2015 PA Super 184
• Parties: Albert M. VOSBURG, III, Appellee v. NBC SEVENTH REALTY CORP., and Pittston Area Industrial Development Corp., Appeal of NBC Seventh Realty Corp.
• Court: Pennsylvania Superior Court

122 A.3d 393

2015 PA Super 184

Albert M. VOSBURG, III, Appellee

v.NBC SEVENTH REALTY CORP., and Pittston Area Industrial Development Corp.

Appeal of NBC Seventh Realty Corp.

No. 1552 MDA 2014

Superior Court of Pennsylvania.

Argued April 15, 2015.

Filed Sept. 2, 2015.

Brian T. Feeney, Philadelphia, for appellant.

John J. Hovan and Aaron D. Hovan, Tunkhannock, for Vosburg, A., III, Vosburg, A., Jr. and Estate of Garey, appellees.

Sean P. McDonough, Moosic, for Vosburg, S., appellee.

BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

Opinion

OPINION BY BOWES, J.:

NBC Seventh Realty Corporation (“NBC”) appeals from the trial court's order denying its motion to vacate the trial court's order granting partial summary judgment¹ in favor of the heirs of Albert and Katherine Vosburg (collectively the “Vosburgs”)² and its own motion for summary judgment. We reverse and remand for the entry of summary judgment in favor of NBC.

This litigation involves property in Luzerne County that was conveyed by Albert M. and Katherine Vosburg to Anthony Fritz by deed (“Deed”) dated May 11, 1951. The Deed conveyed

all that certain piece or parcel of land situate in the Township of Pittston ... bounded and described as follows, to wit:

BEGINNING at a corner of land now or late of Norman Lampman in the east line of David Young Warrant; thence along said Warrant line North seventy and eight-tenths (70.8) rods to a stone corner; thence, East two-hundred twenty-six (226) rods to a stone corner; ...

EXCEPTING AND RESERVING all coal and other mineral beneath the surface of said described land, with the right to mine and remove the same by subterrane mining.

IT IS UNDERSTOOD AND AGREED that no buildings erected on said land, or field under cultivation, will be disturbed by said mining.

Being the same land described in a deed from Burr B. Vosburg, single to Albert M. Vosburg, male grantor herein, dated 18th of February, 1930, and recorded in the office of Recorder of Deeds in and for Luzerne County in Deed Book No. 1066, Page 631.

Deed, 5/11/51, at 1 (emphases supplied).

The Fritz parcel was subsequently sold to the Pittston Area Industrial Development Corporation (“PAID”).³ In 2002, NBC Realty purchased 105 acres of land from PAID to build a commercial distribution center. Approximately fifty of those acres consisted of the Fritz parcel, which was subject to the foregoing mineral rights reservation. Construction of the building, parking areas, and access roads necessarily involved excavation and regrading of the surface to accommodate this use. The contractors used crushed rock from the site and procured additional material from an off-site source as fill.

On October 11, 2002, Albert Vosburg III filed a complaint against NBC and PAID alleging that the aforementioned excavation and processing of rock on the site constituted trespass and conversion of the mineral rights estate. Specifically, he alleged that NBC and PAID exceeded their surface rights when they excavated hardened shale on the Fritz parcel to a depth of approximately fifty feet and removed and processed the rock for use as subbase and fill for the construction of the warehouse on the property. He contended that the hardened shale was a mineral under Pennsylvania law with a minimum value of $3.00 per ton.⁴

NBC denied that it removed any rock from the Fritz Parcel. It contended further that the rock herein was not a mineral because it was not metallic. Finally, NBC maintained that the rock herein, located on and near the surface, was not contemplated within the mineral reservation since it was not extractible by underground mining.

On June 10, 2010,⁵ the Vosburgs moved for partial summary judgment on two issues. First, they asked the court to rule that they are the owners of the mineral estate.⁶ Second, they sought a determination that PAID and NBC's use of the property constituted a trespass of their mineral estate and conversion of the minerals located therein. The trial court applied the scientific definition of a mineral and held as a matter of law that rock was a mineral. It then concluded that the cut and fill work of NBC and PAID constituted a trespass of the mineral rights reservation, and the crushing of the rock for use as fill and support was a conversion. On December 3, 2010, the court granted partial summary judgment in favor of the Vosburgs.

On March 11, 2014, NBC sought to vacate the trial court's December 3, 2010 order and moved for summary judgment in its favor based upon the Supreme Court's decision in Butler v. Charles Powers Estate, 620 Pa. 1, 65 A.3d 885, 898 (2013). Following oral argument, the trial court denied the motion to vacate. This Court granted NBC's petition for review of the order on September 18, 2014, resulting in the instant appeal. NBC presents two issues for our review:

1. Is it error under Pennsylvania law for a trial court to construe the term “mineral” in a private deed reservation to include rock on the basis that rock is within the scientific understanding of “mineral”?

2. Is it error under Pennsylvania law for a trial court to hold that a plaintiff owns rock based upon a private deed reservation for “coal and other mineral” where the parties to the deed did not include “rock” in the text of the deed and the plaintiff did not plead or produce clear and convincing proof that the parties to the deed intended to include rock within the reservation?

Appellant's brief at 2.

Both of NBC's issues implicate the propriety of the trial court's grant of partial summary judgment in favor of the Vosburgs.

Our scope of review ... of summary judgment orders ... is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law will summary judgment be entered.

Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of his cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Thus a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Upon appellate review we are not bound by the trial court's conclusions of law, but may reach our own conclusions. The appellate Court may disturb the trial court's order only upon an error of law or an abuse of discretion.

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa.Super.2012) (internal citations omitted).

NBC contends first that the trial court erred as a matter of law in holding that rock is a mineral based solely upon the scientific definition of mineral. It argues that our Supreme Court in Butler rejected the scientific definition when construing the meaning of minerals in reservations in private deeds and confirmed that the meaning is “to be determined not by principles of science, but by common experience directed to the discovery of intention.” Butler, 65 A.3d at 898. According to NBC, in reaffirming that a reservation of “coal and other mineral” in a private deed presumptively does not include natural gas and oil, the Butler Court acknowledged that the common layperson's understanding of “mineral” encompasses only materials that are metallic in nature, such as gold, silver, iron, copper

, and lead. See Gibson v. Tyson, 5 Watts 34 (Pa.1836) ; Dunham v. Kirkpatrick, 101 Pa. 36 (1882). NBC relies upon this language in Butler in support of its contention that the non-metallic rock at issue is presumptively not a mineral.

Additionally, NBC contends that it is clear from the language of the Deed reservation that only coal and minerals beneath the surface that could be removed and mined “subterrane” were included in the reservation. Rock that could only be quarried rather than deep-mined was not contemplated within the mineral reservation.

Our courts have wrestled for almost two centuries with the meaning of the term “mineral” in private deeds and conveyances. In Dunham, supra, the Court acknowledged that virtually all inorganic materials are minerals in the general sense, but that the meaning of the word as used in a deed reservation or grant had to be limited in order to leave something for the other party. The Dunham Court reasoned:

It is true that petroleum is a mineral; no discussion is needed to prove this fact. But salt and other waters, impregnated or combined with mineral substances, are minerals; so are rocks, clays and sand; anything dug from mines or quarries; in fine, all inorganic substances are classed under the general name of minerals: Bou. L. Dic.; Wor. Dic.; Dana's Geology; Grey's Botany. But if the reservation embraces all these things, it is as extensive as the grant, and therefore void. If, then, anything at all is to be retained for the vendor, we must, by some means, limit the meaning of the word “minerals.”

Dunham at 44.

In Gibson, one of the early cases to address the issue, the question was whether a reservation in a deed of “all mineral or magnesia of any kind” ... “and all bricks and blocks of soapstone,” included chrome. Gibson, at 41. The Court noted at the outset that agreements should be construed according to the meaning and understanding of the parties at the time they entered into them. While recognizing that minerals were usually of a “metallic nature,...