Appeal from the Order of the Board of Property in the case of Kaiser Energy, Inc., Raymond E. Wisner and Vivian I. Wisner, his wife, and Robert H. Wisner and Sally Wisner, his wife v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. BP-84-04.
Scott O. Mears, Mears and Smith, for petitioners, Raymond E. Wisner, et ux.
Milton V. Munk, Jr., for petitioners, Robert H. Wisner, et ux.
Joseph L. Robinson, for petitioner, Kaiser Energy, Inc.
Amy L. Putnam, Assistant Counsel, for respondent.
Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino concurs in result only.
Raymond E., Vivian I., Robert H. and Sally Wisner have petitioned for our review of an adjudication of the Board of Property (Board) which resolved a title dispute between the Wisners and the Commonwealth regarding an approximately 419-acre tract of land located in Fairfield and Derry Townships, Westmoreland County. The Board concluded that the Commonwealth, acting through the Pennsylvania Department of Environmental Resources, possesses good title to the property and is the fee simple owner of the subject tract. We affirm.*fn1
The instant matter originated with the filing of a petition for declaratory judgment with the Board by Kaiser Energy, Inc. and the Wisners which sought a determination as to whether the Commonwealth or the Wisners had good title to certain land on which Kaiser Energy, Inc. desired to lease the mineral rights to oil and gas. The parties have stipulated to the pertinent chains of title as set forth in an amended abstract of title which appears of record.
The first issue raised by the Wisners is whether the Board erred in placing the burden of proof on them in this matter. The Wisners' claim was filed within the Board's jurisdiction "to hear and determine cases involving the title to land or interest therein brought by persons who claim an interest in the title to lands occupied or claimed by the Commonwealth."*fn2 We think it is clear that, as the moving party, the Wisners must bear the burden of establishing their claim to title. The Board regarded the petition before it as one in the nature of ejectment.*fn3 While we believe that the requested relief
was actually in the nature of an action to quiet title, as opposed to ejectment, see 3 Goodrich-Amram 2d § 1061(b):2 (1976), under either view the Wisners' burden would be the same, to wit, to establish their title by a fair preponderance of the evidence.*fn4 Hallman v. Turns, 334 Pa. Superior Ct. 184, 482 A.2d 1284 (1984); Grace Building Co. v. Parchinski, 78 Pa. Commonwealth Ct. 187, 467 A.2d 94 (1983). The Wisners' initial burden is to establish a prima facie case by showing title sufficient to base a right to recovery. Hallman ; 30 P.L.E. Quieting Title § 21 (1960). Moreover, whether the matter sounds in ejectment or quiet title, the moving party must ...