DONALD R. SISSON AND MARY SISSON, HIS WIFE, Appellants
JOSEPH STANLEY, HIS HEIRS SUCCESSORS, EXECUTORS, ASSIGNS, AND ANY PERSONS CLAIMING BY, THROUGH, OR FROM THEM, Appellees
Argued: April 1, 2014.
Appeal from the Order entered June 28, 2013. In the Court of Common Pleas of Susquehanna County. Civil Division at No: 2010-620 C.P. Before SEAMANS, J.
Stephen Pinnacoli, Scranton and Andrew J. Katsock, III, Wilkes Barre, for appellants.
Marion O'Malley, Montrose, for appellees.
BEFORE: DONOHUE, ALLEN, and STABILE, JJ. OPINION BY STABILE, J. DISSENTING OPINION BY DONOHUE, J.
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. 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 title 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:
I, Douglas P. Thomas, Esquire, having been duly sworn according to law, hereby depose and state that I am co-counsel for [Appellants], and that I have investigated the title and potential Defendant in this matter and that I have been unsuccessful in my attempts to locate the named Defendant and/or his heirs, successors, personal representatives and/or assigns by doing the following:
1. Checking the public records in the Offices of the Recorder of Deeds of Susquehanna County, Pennsylvania;
2. Searching local telephone directories for the named Defendants or individuals with similar names; and
3. Checking various internet sites for the names and possible locations of the named Defendants.
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 pretrial 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:
I. Should the lower court grant a Petition to Open a default judgment because of an insufficient search under Pa.R.C.P. 430 due to additional evidence being presented by the 'after-found' heirs, when the lower court already determined the Appellants conducted a sufficient good-faith investigation based upon Appellants' affidavit and a hearing in accordance with [Pa.R.C.P.] 430?
II. After a trial court rules on an affidavit of Good Faith Search pursuant to Pa.R.C.P. 430, notwithstanding said court's ability to inquire about or conduct a hearing relative to such affidavit, should said court entertain after-discovered evidence to overturn the initial ruling, even if such action by the court effectively casts a cloud on every title ever acquired via a quiet title action served by publication?
III. Is a Judgment on the Pleadings an acceptable ruling when the intent of the parties is put into question by the 'Dunham Rule,' and its progeny, and such intent, regarding the extent of the reservation, remains a material issue of fact?
Appellants' Brief at 6-7.
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 (Pa. Super. 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. 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 (Pa. Super. 1996). " Due process, reduced to its most elemental component, requires notice." PNC Bank, N.A. v. Unknown Heirs, 2007 PA Super 212, 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: " Service of process is not a mere technicality. Rather, constitutional due process requires that service of process be 'reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" 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 the normal
fashion. Pa.R.C.P. 430(a) (emphasis added).
Based on the foregoing, we agree with the trial court's conclusion that Lupold did not receive proper service of process. Under the rationale of Deer Park, Appellants' affidavit is facially deficient. An examination of each paragraph of this affidavit evidences a complete lack of due diligence and good faith to locate any of the named defendants to this action.
In paragraph 1, counsel indicates he searched the records in the Recorder of Deeds Office of Susquehanna County. In their action, Appellants named Joseph Stanley, his heirs, successors, executors, assigns, and any persons claiming by, through, or from them. One would presuppose that a good faith effort to locate heirs would include a search for records at the Register of Wills office. Although counsel notes that the Recorder of Deeds office in Susquehanna County also houses the Register of Wills, his affidavit only mentions a search of the Recorder of Deeds records. Counsel already had the relevant deeds to the property in which Joseph M. Stanley transferred real property to Pauline M. Battista subject to a reservation of rights in the underlying oil and gas. It is therefore not clear what counsel hoped to gain from his search of the Recorder of Deeds office. Regardless, the affidavit does not indicate in any manner that a relevant search was performed to locate any wills or other probate records. A good faith search for heirs should have included at least this basic research. Had this been done, counsel would have found, as the trial court noted, the will of E.J. Stanley, Joseph's father, which identified no fewer than twelve siblings to Joseph.
Concerning paragraph 2 of the affidavit, counsel apparently did not consider that some or all of Joseph M. Stanley's heirs could have moved since 1953. A search of local telephone directories is certain to be fruitless if any surviving heir is no longer local. Certainly, the age of the 1953 Deed and Appellants' naming all heirs as defendants suggests searches of other records, such as obituaries, should have been performed. In their petition to open and/or strike, Appellees assert a simple search of the local newspaper obituaries would have revealed Joseph's death and identified his surviving sister, nieces and nephews. Yet, counsel did not perform this seemingly logical search. We are not setting forth a per se rule requiring an obituary search for possible heirs, but in this case counsel's failure to check local death record resources illustrates how his efforts so clearly fell below the reasonable due diligence necessary to justify service by publication.
Finally, with regard to paragraph 3, counsel's complete failure to identify which Internet sites he visited or what searches he ran provides no basis upon which to ascertain if counsel exercised due diligence and good faith in his efforts to locate Joseph Stanley's heirs. Given the ease of identifying and using sophisticated Internet services to trace ancestry and family history, it is inconceivable that counsel, employing good faith efforts, was unable to locate a single Stanley heir.
Counsel's attempt to locate any of the named defendants to this action does not demonstrate even a minimal effort to conduct a search of those resources identified to the Note to Rule 430(a). Resources noted to Rule 430(a) ...