OPINION BY JENKINS, J.:
Northern Forests II, Inc. ("NF") filed an action to quiet title in 1988 and entered a default judgment in its favor in 1989. In 2013, the trial court ordered the judgment stricken as void ab initio due to lack of jurisdiction. Subsequently, NF filed an amended complaint alleging that it owned the subject property via adverse possession on the basis of the 1989 judgment. In an order entered on May 20, 2014 and clarified on June 16, 2014, the trial court sustained the preliminary objections of multiple defendants and dismissed the amended complaint for failure to state a cause of action.
NF and Ultra Resources, Inc. ("Ultra"), a lessee of NF, filed timely appeals from the order of dismissal. We affirm.
Pursuant to a deed dated June 24, 1987, NF acquired approximately 3,665 acres of land in Lycoming County designated as Warrants 1620, 1621, 1622 and 1626 ("the Property"). On December 12, 1988, NF filed an action to quiet title against five named defendants,
On December 13, 1988, one day after filing the complaint, NF's attorney filed a "motion and affidavit for leave to obtain service by advertisement". The affidavit consisted of one sentence in which the attorney averred that he "does not know the current whereabouts of the defendants, and the principals of the corporate entities are unknown, and he does not know any successors or assigns of the above or anyone claiming by, through or under them, or any of them." The affidavit requested that the court permit service "on the defendants, their successors and assigns, and anyone claiming by, through or under them or any of them by publication." The affidavit said nothing about whether the attorney did any investigation into the defendants' whereabouts before filing his motion for alternative service.
On December 16, 1988, the trial court granted NF's motion for alternative service. Subsequently, counsel for NF entered six separate publications in local newspapers relating to the complaint. Each publication stated that NF had filed an action to quiet title and identified the metes and bounds of the land subject to the quiet title action. None of these publications, however, named Moore, the Proctor Heirs, or Yates; they merely purported to notify the five named defendants and their "successors and assigns" about the lawsuit.
On February 6, 1989, counsel for NF filed a petition for judgment along with his affidavit that defendants had been served by publication but had not filed an answer "although the time [in] which to do so has expired." On February 10, 1989, the court entered a default judgment against all defendants "unless defendants, within thirty days of this order commence an action in ejectment." No defendant filed an action
Between 1989 and 2012, various energy companies entered into real estate transactions and oil/gas leases with regard to the Property. In late 2012 and early 2013, these energy companies—International Development Corporation ("IDC"), Southwestern Energy Production Company ("Southwestern"), Lancaster Exploration and Development Company ("Lancaster"), and two Anadarko entities, Anadarko E P Company and Anadarko Petroleum Corporation (collectively "Anadarko")—filed petitions to strike or open the judgment, alleging that they own certain subsurface rights in the Property as successors in interest to Moore, Yates and/or the Proctor Heirs.
In a memorandum and order dated February 8, 2013, the trial court struck NF's judgment on the ground that NF failed to make proper service of process on the original named defendants.
Subsequently, the trial court granted NF leave to file an amended complaint. On January 29, 2014, NF filed an amended complaint alleging three counts: (1) adverse possession for more than 21 years before 1988, (2) adverse possession based on the 1989 judgment, and (3) a declaratory judgment that NF owned the mineral rights, subject only to certain interests under or through NF. NF's amended complaint named over 90 defendants, including several of NF's successors and assigns whose interests are similar to NF's, viz., Ultra Resources ("Ultra"), Chesapeake Appalachia ("Chesapeake"), and Statoil USA ("Statoil").
Multiple defendants—Mountain Development Group, Inc., Cynthia McKenney, the Proctor Heirs, IDC and Lancaster—filed preliminary objections alleging that NF failed to state a cause of action. Anadarko and Southwestern both filed answers to the amended complaint and subsequently filed motions for summary judgment. Chesapeake and Statoil filed
In an opinion and order on May 20, 2014, the court sustained the preliminary objections and dismissed NF's amended complaint for failure to state a cause of action. On June 16, 2014, the court amended its order to clarify that the order of dismissal applied to all defendants.
NF raises the following issues on appeal:
Brief For NF, at 3-4. Ultra raises the following issues on appeal:
Brief For Ultra, at 4.
Preliminarily, we note that although Ultra failed to file a responsive pleading to NF's amended complaint below, this omission does not constitute a waiver of Ultra's arguments in this appeal, because NF's amended complaint did not include a notice to plead. See Pa.R.Civ.P. 1026(a) ("every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead").
We also note that although Chesapeake and Statoil jointly filed a brief raising the same issues as NF and Ultra, Chesapeake and Statoil cannot obtain relief in this Court because they failed to file a notice of appeal from the June 16, 2014 order of dismissal.
We address the first two issues in NF's and Ultra's briefs together, because they boil down to one question: did the trial court properly strike the 1989 judgment entered in favor of NF? We answer this question in the affirmative.
This Court's review of an order striking a judgment "is limited to whether the trial court manifestly abused its discretion or committed an error of law." Koresko & Associates, P.C. v. Farley, 826 A.2d 6, 7 (Pa.Super.2003).
A petition to strike a judgment
Osprey Portfolio, LLC v. Izett, 32 A.3d 793, 795-96 (Pa.Super.2011).
In this case, two jurisdictional defects appear on the face of the record, either of which constituted sufficient reason to strike NF's judgment: NF failed to join indispensable parties in its 1988 action to quiet title, and NF failed to make proper service of process on any defendant in the 1988 quiet title action. We discuss each defect in turn.
The failure to join an indispensable party is a non-waivable defect that implicates the trial court's subject matter
A party is indispensable
Orman v. Mortgage I.T., 118 A.3d 403, 406-07 (Pa.Super.2015).
Although the trial court did not decide whether NF failed to join indispensable parties, we will address this issue because of its jurisdictional nature. Sabella, 103 A.3d at 90; Barren, 441 A.2d at 1316. Moore, Yates and the Proctor Heirs owned subsurface rights on the Property at the time of NF's quiet title action. NF sought in its quiet title action to divest Moore, Yates and the Proctor Heirs of their ownership rights, but the record is clear that NF failed to join these persons as defendants. Because they obviously were indispensable parties, NF's failure to join them as defendants mandated that NF's judgment be stricken. Orman, 118 A.3d at 406-07 (citing Hartzfeld, 552 A.2d at 310).
NF claims that it failed to name Moore, Yates and the Proctor Heirs as defendants in 1988 due to conveyancing errors committed by their predecessors in title. Specifically, NF contends: (1) a deed to a prior title holder, Keta Gas and Oil Company, was erroneously listed in the Grantor's Index of the Recorder of Deeds as a deed to Reta Gas and Oil Company; and (2) Astra Oil and Gas Corp., a prior title holder, failed to file a separate instrument identifying the change of its corporate name from Astra Oil and Gas Corp. ("Astra") to KGA Industries, Inc. ("KGA"), in accordance with required recording practices of Lycoming County. These errors, NF claims, prevented it from learning that (1) Keta Realty Co. conveyed its
In the trial court, NF suggested that its act of naming Keta Gas and Oil Company as a defendant along with Keta's "heirs and assigns" made NF's complaint and judgment valid against successors in title such as Moore, Yates and the Proctor Heirs. Again, we demur. Notice "is a fundamental requirement of due process," but notice is adequate only when it is "reasonably calculated to inform a party of the pending action and provides [him with] an opportunity to present objections to the action." Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 587 Pa. 590, 902 A.2d 366, 383 (2006). Naming a predecessor in title and his "heirs and assigns" is not reasonably calculated to notify a successor in interest of the lawsuit. The complaint must name the successor in interest individually, not merely group him within the category of "heirs and assigns". See Ress v. Barent, 378 Pa.Super. 397, 548 A.2d 1259, 1265 (1988) (upon concluding that Sadye and Sanford, two heirs of company founder, had standing to sue successor company, panel ordered Sadye and Sanford to amend complaint to aver that they are the sole heirs and assigns, or, in the alternative, to aver "the names of all heirs and assigns").
The second jurisdictional defect on the face of the record is NF's failure to make proper service of process on any defendant in its 1988 action. Although the trial court issued an order in 1989 permitting NF to serve all interested parties via publication, the record demonstrates that this order was issued in error, for NF failed to provide any justification for serving process in this "extraordinary" manner. Sisson v. Stanley, 109 A.3d 265, 270 (Pa.Super.2015).
"The rules relating to service of process must be strictly followed," because "jurisdiction of the court over the person of the defendant is dependent upon proper service having been made." Sharp v. Valley Forge Med. Center & Heart Hosp., Inc., 422 Pa. 124, 221 A.2d 185, 187 (1966). Pa.R.Civ.P. 410 provides the general service provisions for actions involving real property: "In actions involving title to [or] interest in . . . real property, original process shall be served upon the defendant in the manner provided by [Pa.R.Civ.P.] 400 et seq." Pa.R.Civ.P. 410(a). Proper service usually requires handing a copy to the defendant or to other individuals enumerated in Pa.R.Civ.P. 402(a). Other rules apply in limited circumstances. See, e.g., Pa.R.Civ.P. 404 (service outside the Commonwealth).
If service is unsuccessful under these rules, the plaintiff may move for leave to make alternative service under Pa.R.Civ.P. 430. Rule 430 provides in relevant part:
Rule 430 "applies only where
Because "service by publication is the exception, not the rule," the plaintiff must first meet the requirements of Rule 430(a) to avail itself of the publication provisions within Rule 430(b). Deer Park Lumber, Inc. v. Major, 384 Pa.Super. 625, 559 A.2d 941, 945 (1989). Rule 430(a) prescribes that a motion for leave to make alternative service must include "an affidavit stating the nature and extent of the investigation undertaken to locate the defendant." Deer Park, 559 A.2d at 944. The affidavit must demonstrate that the plaintiff exhibited "due diligence and good faith" in attempting to locate the defendants. Sisson, 109 A.3d at 271. One illustration of a good faith effort involves "(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." Note, Pa.R.Civ.P. 430(a). While this illustration "[is] by no means exhaustive, [it] is at least indicative of the types of procedures [intended under] 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)." Deer Park, 559 A.2d at 946.
Here, NF's counsel's affidavit totally failed to describe what efforts he made to discover the whereabouts of any person holding an interest in the Property. Therefore, the trial court properly struck the judgment due to NF's failure to satisfy the requisites for service of process by publication.
The analysis in Sisson, a recent Rule 430 decision, is especially pertinent to our decision. The parties in Sisson disputed ownership of the right to mine Marcellus Shale gas underlying property in Susquehanna County. 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]." In 1986, Battista transferred the property to the Sissons, subject to the same reservation. Chesapeake Appalachia, LLC, approached the Sissons with a proposed lease agreement that would allow Chesapeake to extract shale gas underlying the property. Chesapeake advised the Sissons of a cloud in their title based on the reservations in the 1953 and 1986 deeds. The Sissons filed an action to quiet title naming as defendants "Joseph M. Stanley, his heirs, successors, executors, assigns, and any persons claiming by,
Three months later, Joseph Stanley's widow filed a petition to open, alleging that the trial court lacked jurisdiction to enter judgment because the Sissons failed to effect proper service of process. The trial court agreed and entered an order opening judgment. Subsequently, the court dismissed the Sissons' action under the statute of limitations. This Court affirmed, reasoning that "[the Sissons' attorney's] 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." Id. at 271 (emphasis added). The Court analyzed the affidavit as follows:
Id. at 271-72. Furthermore:
Id. at 272-73.
Finally, in a footnote, the Court commented that "no discovery, evidentiary hearing or fact finding was necessary" to determine whether the affidavit satisfied Rule 430(a), because the affidavit was "facially deficient." Id. at 271 n. 6.
We have quoted Sisson at length to drive home the fact that counsel's investigation in Sisson was more extensive than NF's counsel's investigation in the present case. Because Sisson held that counsel's affidavit was "facially deficient", logic dictates that NF's counsel's affidavit is facially deficient as well.
NF and Ultra maintain that the trial court's order was erroneous based on Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967). We find Myers distinguishable. The defendant corporation in Myers moved to strike the judgment on the ground that the plaintiff did not serve the defendant in compliance with rules governing service on corporations, because the person whom the plaintiff served with process was only an independent contractor and not an agent of the corporation, and the location of service was the independent contractor's own office but not the defendant's office. The Supreme Court held that a motion to strike the judgment was not a proper vehicle for relief, because the alleged errors in service were not evident on the face of the record but could only be supported with facts outside the record. Through this decision, Myers appeared to suggest that the defendant could only seek relief in a petition to open judgment, not a petition to strike. In this case, two fatal defects were evident on the face of the record: NF's failure to join indispensable parties and its failure to effectuate proper service of process. Therefore, in contrast to Myers, a motion to strike was the appropriate remedy.
NF and Ultra argue at great length that "equitable considerations" preclude striking the 1989 judgment—i.e., in the past quarter century, so many people have transacted business in reliance on the 1989 judgment that it would be unjust to strike the judgment now, notwithstanding any defect in the record in 1989. The defendants could have attacked the judgment years earlier, NF proclaims, so it is unfair for them to attack it now. In support of this theory, NF cites Judge Spaeth's concurrence in Tice v. Nationwide Ins. Co., 284 Pa.Super. 220, 425 A.2d 782, 787-92 (1981), multiple decisions from other jurisdictions, and the Restatement (Second) of Judgments § 75, all of which posit that a court may properly deny relief from a void judgment when (1) the petitioner has tarried too long before moving for relief, (2) the judgment winner might suffer prejudice, and (3) innocent third parties deserve protection for relying on the judgment. This argument misses the mark. Unlike fine wine, void judgments in Pennsylvania do not improve with age; void ab initio, void for all time. Romberger v. Romberger, 290 Pa. 454, 139 A. 159, 160 (1927) (a void judgment is a "mere blur on the record, and which it is the duty of the court of its own motion to strike off,
Having determined that the trial court's order striking the 1989 judgment was proper, we turn to the final two questions in NF's brief along with the final question in Ultra's brief, because they all concern the same subject: whether the trial court properly sustained the defendants' preliminary objections to the amended complaint and dismissed the amended complaint for failure to state a cause of action.
The applicable scope and standard of review is as follows:
Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-09 (Pa.Super.2012) (citations omitted).
Count I of NF's amended complaint is an action for adverse possession of all subsurface rights by adverse possession. One who claims title by adverse possession
Baylor v. Soska, 540 Pa. 435, 658 A.2d 743, 744-45 (1995). In Baylor, the Baylors claimed that they held the disputed land via adverse possession by tacking the period that their predecessor in title held the disputed land. The Supreme Court held
Id. at 746.
NF's claim of adverse possession in Count I is defective for the same reason as the Baylors' claim of adverse possession in Baylor. The 1987 deed to NF does not purport to convey subsurface rights or any adverse possession of subsurface rights. Nor does the amended complaint allege any facts which show that NF's predecessor in interest intended to convey any adverse possession interest in subsurface rights. As a result, NF's claim of adverse possession fails as a matter of law.
Count II of the amended complaint contends that adverse possession arises from the stricken 1989 judgment. The trial court correctly rejected this argument. First, as one Pennsylvania federal court recently held, a judgment does not satisfy the adverse possession elements of visible and notorious possession. Hoffman v. Arcelormittal Pristine Resources, 2011 WL 1791709 (W.D.Pa.2011).
In Hoffman, the plaintiff/grantee's deed contained an exception giving the grantor oil and gas subsurface rights. Nevertheless, the plaintiff leased subsurface rights to various persons in 1971, 1981 and 2006. She claimed that by virtue of leasing the subsurface rights and recording the leases, she exercised adverse possession over the subsurface. The court disagreed:
Id., 2011 WL at 1791709, *6-7. We concur with Hoffman's determination that merely recording a judgment does not support a claim for adverse possession.
Anadarko and the Proctor Heirs point out, and we agree, that Count II fails for a second reason—a void judgment, such as the 1989 judgment herein, is a legal nullity that has no force and effect. First Seneca Bank v. Greenville Distributing Company, 367 Pa.Super. 558, 533 A.2d 157, 162 (1987) ("a void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based thereon"). Under this broad precept, NF cannot exploit the void 1989 judgment for any purpose, including acquisition of title by adverse possession.
Count III of the amended complaint is an action for declaratory judgment that NF owns the subsurface right under the Property. Because the trial court properly dismissed Counts I and II, NF's request in Count III to declare its rights on the basis of Counts I and II necessarily fails as well.
Based on the foregoing reasons, we affirm the trial court's order dismissing NF's amended complaint against all defendants.
Order affirmed.
Sisson v. Stanley, ___ Pa. ___, 121 A.3d 956 (2015). Despite this order, this Court's decision in Sisson continues to remain good law. See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000) (decision of Superior Court remains precedential until it has been overturned by Supreme Court). Moreover, the issue on which the Supreme Court granted allocatur has no bearing on the present case, for in this case, the trial court did not "conduct[] its own investigation of public records" or "decide[] disputed issues of material fact" in the course of striking NF's judgment. The trial court simply found, quite correctly, that NF's counsel's Rule 430(a) affidavit was deficient on its face.