The Pennsylvania Superior Court recently weighed in on an interesting case involving due diligence required in the context of service by publication in a quiet title action when potentially interested parties to a litigation cannot be located.

In 1953, Joseph Stanley transferred all right, title and interest in property located in Susquehanna County, PA, subject to a reservation of mineral and gas rights. The present owners of the property, Donald R. Sisson and Mary Sisson,  purchased the property in 1986 subject to the same reservation of rights.

In 2010, a producer of natural gas, Chesapeake Appalachia, LLC, approached the Sissons with a proposed lease to extract shale gas. Chesapeake informed the Sissons of the cloud on title, prompting the Sissons to file a quiet title action in the Susquehanna County Court of Common Pleas in April 2010.

The Sissons obtained permission to perform service by publication, claiming that they were unable to locate any heirs of the original grantor. They submitted an affidavit informing the trial court of the steps taken to locate an heir, which included, among other things, reviewing records in the local Recorder of Deeds Office and "searching" the Internet.

In August 2010, the trial court entered a final order quieting title. Two months later, the last remaining sibling of Mr. Stanley filed a petition to open the judgment claiming improper service. The trial court agreed and opened the judgment. In June 2013, after more than two years of litigation, the trial court entered judgment in favor of the surviving sibling in response to a motion for judgment on the pleadings. The Sissons appealed to the Superior Court.

In affirming the trial court, the Superior Court held that the Sissons failed to exercise reasonable diligence to locate a living heir of the grantor. Among other things, the Sissons failed to:

  • Search public records in the Register of Wills Office, which would have revealed the grantor's will and beneficiaries;
  • Failed to perform a search of local death records or newspaper archives for the grantor's obituary, which also identified surviving relatives; and
  • Failed to set forth in detail efforts taken on Internet to identify an heir.

With respect to the last point, the Superior Court stated:  "[g]iven 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 . . . heir."

The Superior Court also considered the Sissons' argument that the original 1953 deed could not possibly have intended to reserve rights to Marcellus Shale gas when (a) the existence of Marcellus Shale gas was not known at the time, and/or (b) commercial exploration was not possible in 1953. The Superior Court rejected this argument holding that a clear reservation of rights referencing "gas" is enough.  

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