Cavallo Mineral Partners v. EQT Production Company ( 2023 )

J-A15012-23
2023 PA Super 115CAVALLO MINERAL PARTNERS, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EQT PRODUCTION COMPANY, GARY : No. 834 WDA 2022
W. MCCHESNEY, AS TRUSTEE OF :
THE MCCHESNEY FAMILY :
REVOCABLE LIVING TRUST DATED :
FEBRUARY 12, 2013, VANTAGE :
ENERGY APPALACHIA, LLC, :
VANTAGE ENERGY APPALACHIA II, :
LLC, T & F EXPLORATION, LP AND :
THREE RIVERS ROYALTY, LLC. :
Appeal from the Order Entered June 22, 2022
In the Court of Common Pleas of Greene County
Civil Division at A.D. No. 60, 2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
OPINION BY MURRAY, J.: FILED: JUNE 26, 2023
Cavallo Mineral Partners, LLC (Appellant), appeals and petitions for
permission to appeal, the trial court’s order granting judgment on the
pleadings (JOP) in favor EQT Production Company (EQT) and Rice Drilling B
(Rice Drilling).1 The trial court entered JOP against Appellant, with prejudice,
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* Retired Senior Judge assigned to the Superior Court.
1As stated infra, Vantage Energy Appalachia, LLC (VEA), and Vantage Energy
Appalachia II, LLC (VEAII) merged with and into Rice Drilling. The remaining
defendants did not join the JOP motion filed by EQT and Rice Drilling.
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as to Appellant’s declaratory judgment action against EQT and Rice Drilling.
The trial court entered JOP against Appellant, without prejudice, as to
Appellant’s actions against EQT and Rice Drilling for ejectment and mense
profits, conversion, trespass and to quiet title. The trial court further denied,
without prejudice, Appellant’s motion for leave to file an amended complaint.
We quash the appeal as interlocutory and deny Appellant permission to
appeal.
On February 5, 2018, Appellant filed a complaint against EQT, Gary W.
McChesney (McChesney), as Trustee of the McChesney Family Revocable
Living Trust dated February 12, 2013 (the Trust), VEA, VEAII, T & F
Exploration, LP (T&F), and Three Rivers Royalty, LLC (Three Rivers)
(collectively, Defendants). Appellant filed an amended complaint on April 18,
2018. The trial court explained:
The allegations in the complaint arise from a deed conveyance
which took place on April 16, 1990 between Des Moine Field
[(Field)], widower, Grantor2 and [] McChesney and Judith Anne
McChesney [(Ms. McChesney)], his wife, Grantees [(collectively,
the McChesneys)]. This conveyance was [related] to
approximately 200 acres in Washington Township, Greene County
[(the Subject Property)]….
Trial Court Order, 6/22/22, at 2-3 (footnote added).
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2Field, as Grantor, executed the 1990 deed conveying certain interests to the
McChesneys, as Grantees.
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In its Amended Complaint,3 Appellant detailed the chain-of-title
supporting its claim to oil and gas interests underlying the Subject Property.
Appellant averred an April 15, 1977, deed (the 1977 Deed) conveyed the
Subject Property to Field and his wife, Catherine V. Field (Ms. Field)
(collectively, the Fields). Amended Complaint, 4/18/18, ¶ 12. The 1977 Deed
conveyed oil and gas interests underlying the Subject Property to the Fields.
Id. Ms. Field died on May 26, 1981, after which her interest in the Subject
Property vested in Field. Id. ¶ 14.
On April 16, 1990, Field conveyed by deed (the 1990 Deed) certain
interests in the Subject Property to the McChesneys. Id. ¶ 15. The 1990
Deed included the following clauses:
EXCEPTING and reserving, all the Pittsburgh or River Vein
of Coal, together with the necessary mining rights, in and
underlying the aforesaid tract of land, as heretofore conveyed by
Thomas J. Huffman. It is further understood and agreed that the
above tract … is sold subject to the terms of the oil and gas leases
now on the same, and is subject to all the conditions in said leases.
AND the Grantor, for himself, his heirs and assigns, EXCEPTS AND
RESERVES all coal and other minerals within and underlying the
above-described tract of land … not heretofore excepted and
reserved, or otherwise transferred by instruments of record,
together with the exclusive right to DEEP MINE and otherwise to
develop and work and process for market the same, and other
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3 When a trial court sustains judgment on the pleadings, our standard of
review is to determine whether, based on the facts the Appellant pled,
“the law makes recovery impossible.” Rice v. Diocese of Altoona-
Johnstown, 255 A.3d 237, 244 (Pa. 2021) (citation omitted). We regard as
true all well-pleaded allegations in Appellant’s amended complaint, as the non-
moving party, and consider only the factual allegations in the pleadings of EQT
and Rice Drilling which Appellant has admitted. See id.-3-
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coal now owned or leased or hereinafter acquired by Grantor, his
heirs or assigns….
The rights, easements, licenses, waivers and privileges
herein excepted and reserved are in enlargement of and not in
restriction of the rights incidental to the ownership of coal and
other minerals and the same shall not terminate by reason of the
completion of mining in and on the within described coal and
mineral property.
Grantor shall give written notice to Grantees before
conducting mining operations upon the Property, which notice
shall be delivered to Grantees, at least six (6) months prior to
commencement of such mining operations.
ALSO EXCEPTING AND RESERVING, for the benefit of
Grantees, his heirs and assigns, all oil and gas not
previously accepted, reserved or conveyed, together with
the right to mine and operate for the same.
Amended Complaint, Exhibit 2 (1990 Deed), at 2-4 (emphasis added).
Field died testate on February 22, 1993. Id. ¶ 18. His will was admitted
to probate in Allegheny County. Probate Volume 994, page 124. Field’s six
beneficiaries (the Field Heirs) were Oliver Field; Roy Field; Virginia Johnson;
Netty Lumly; Nola Craig; and Donald and Diane Cecchett, or their respective
survivors. See id.
Appellant averred that at the time of Field’s death, Field owned all the
oil and gas underlying the Subject Property. Amended Complaint, ¶ 23.
Therefore, Appellant claims all oil and gas interests in the Subject Property
passed equally in 1/6 shares to the Field Heirs. Id. Appellant averred it
acquired its oil and gas interests in the Subject Property through the Field
Heirs. Id. ¶ 24.
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The Amended Complaint describes oil and gas activities on the Subject
Property, all of which were recorded in Greene County. For example:
On February 28, 2003, the McChesneys executed an oil and gas
lease with T&F (the 2003 Lease). The 2003 Lease was recorded
in Greene County.
On August 29, 2007, the McChesneys executed an “Extension of
Lease with T&F. T&F drilled and operated a shallow oil and gas
well (McChesney No. 1 Well) on the Subject Property’s surface.
The extension was recorded in Greene County.
On February 20, 2009, T&F partially assigned its interests in the
2003 Lease … , which was recorded in Greene County.
Also on February 20, 2009, the assignee to T&F’s interests
assigned all of its interest in the 2003 Lease (and other leases) to
Range Resources Appalachia, which also was recorded in Greene
County.
On September 28, 2012, Range Resources-Appalachia assigned
its interest in the 2013 Lease (and other leases) to Vantage for
five years and as long as operations are conducted on the
properties.
On October 26, 2012, T&F assigned ownership of the McChesney
No. 1 Well to the McChesneys, as it no longer was producing.
On January 2, 2013, EQT executed two oil and gas leases with the
McChesneys with regard to the Subject Property: One lease
affected 50 acres, the other affected 150 acres. These leases were
recorded in Greene County.
On February 12, 2013, the McChesneys entered into two partial
assignments of royalty interest with T&F. The McChesneys
granted T&F a 2.25% interest in all royalties produced from the
Subject Property. These assignments were recorded in Greene
County.
On February 12, 2013, the McChesneys conveyed all oil and gas
interests underlying the Subject Property to McChesney, as
Trustee of the Trust. Ms. McChesney died on November 29, 2016.
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On May 14, 2013, VEA recorded a Second Amended Declaration
and Notice of Pooled Unit, which it recorded in the Recorder’s
office of Greene County, Pennsylvania. This Declaration indicated
that the size of VEAII’s drilling unit was almost 736 acres, of which
162.99 were from the Subject Property.
On February 27, 2015, with an effective date of December 20,
2011, VEA and VEAII executed a Third Amended Declaration and
Notice of Pooled Unit, which it recorded in Greene County.
On November 18, 2015, EQT executed a Declaration – Notice of
Allocation of Area, which it recorded in Greene County. EQT
indicated the size of that particular drilling unit as 640 acres, of
which 29.04 were from the Subject Property.
See Amended Complaint, ¶¶ 27-60. The amended complaint listed additional
notices and declarations involving the Subject Property, all of which were
recorded in Greene County. See id. ¶¶ 61-70. Appellant confirmed that
“numerous horizontal wells [] were drilled and [] operated by EQT[,]” which
required EQT to “physically enter the subsurface boundaries of the Subject
Property.” Id. ¶ 71. According to the Amended Complaint, Defendants were
removing, producing, and comingling oil and gas from the Subject Property.
Id. ¶¶ 72-78.
Appellant’s amended complaint asserted the following actions against
Defendants: (I) Quiet Title (against all Defendants); (II) Declaratory
Judgment (against all Defendants); (III) Trespass (against EQT); (IV)
Trespass (against VEA and VEAII); (V) Conversion (against all Defendants);
and (VI) Ejectment and Mesne Profits (against all Defendants).
During the spring of 2018, certain defendants filed preliminary
objections to Appellant’s amended complaint, which the trial court denied in
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part. See Trial Court Order, 9/7/20. Thereafter, each of the Defendants filed
answers and new matters.4 Appellant filed replies to the Defendants’
respective new matters.
On October 4, 2021, EQT and Rice Drilling filed the JOP motion
underlying this appeal. They alleged: (a) Appellant’s declaratory judgment
action is barred by the statute of limitations; (b) Appellant’s quiet title and
declaratory judgment actions are barred because equitable reformation of a
deed is unavailable as a remedy in quiet title and declaratory judgment
actions; and (c) Appellant’s actions for trespass, conversion and unjust
enrichment should be dismissed, as they are derivative of Appellant’s
declaratory judgment and quiet title actions. Motion for JOP, 10/4/21, at 7,
9-10. No other defendant joined the motion or filed a separate JOP
motion.
Appellant responded on November 5, 2021. Appellant and EQT and Rice
Drilling subsequently filed briefs supporting their respective positions. On
January 6, 2022, Appellant filed a motion for leave to file a second amended
complaint. Appellant sought leave to join the Field Heirs “whose undivided
interests in the oil and gas underlying the Subject Property had not been
purchased by [Appellant],” and “[t]o include additional averments related to
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4Rice Drilling filed an answer and new matter indicating VEA and VEAII had
merged with Rice Drilling. Rice Drilling Answer and New Matter, ¶¶ 5-6.
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EQT’s inconsistent deed interpretation regarding other oil and gas interests in
Greene County.” Motion for Leave to Amend, 1/6/22, ¶ 13.
On June 22, 2022, the trial court entered the JOP order at issue, which
provided:
1. The Court finds as a matter of law, the pleadings closed [in]
September 2020.
2. [EQT and Rice Drilling’s] Motion for Judgment on the Pleadings
that the [Appellant’s] declaratory judgment is barred by the
statute of limitations is granted. [Appellant’s] Declaratory
Judgment action is dismissed with prejudice.
3. [EQT and Rice Drilling’s] Motion for Judgment on the Pleadings
that [Appellant’s] Quiet Title Action Be Dismissed is granted.
The [Appellant’s] quiet title action is dismissed without
prejudice.
4. [EQT and Rice Drilling’s] Motion for Judgment on the Pleadings
Regarding [Appellant’s] Claim for Conversion, Trespass and
Ejectment is granted. [Appellant’s] claims for conversion,
trespass and ejectments are dismissed without prejudice.
5. [Appellant’s] Motion for Leave to File Second Amended
Complaint is denied without prejudice.
Trial Court Order (JOP), 6/22/22 (emphasis added).
On July 5, 2022, Appellant filed a motion to certify the trial court’s JOP
order for immediate appeal. Motion to Certify, 7/5/22. Because the trial court
took no action, the motion was denied by operation of law. On July 20, 2022,
Appellant filed a notice of appeal at 834 WDA 2022. On September 2, 2022,
Appellant filed a petition for permission to appeal at 57 WDM 2022.
Consideration of Appellant’s petition for permission was deferred for merit
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panel consideration of Appellant’s appeal at 834 WDA 2022. Appellant and
the trial court complied with Pa.R.A.P. 1925.
On September 8, 2022, this Court issued a rule to show cause why the
appeal should not be quashed as interlocutory. Appellant responded, and on
December 7, 2022, this Court discharged the rule in a nonbinding order which
permitted this panel to revisit the jurisdictional issue.
On December 16, 2022, EQT and Rice Drilling filed a joint motion to
quash the appeal.5 Appellant filed an answer to the motion to quash.6
We first address Appellant’s notice of appeal. See Stahl v. Redcay,
897 A.2d 478, 485 (Pa. Super. 2006) (the “appealability of an order goes
directly to the jurisdiction of the Court asked to review the order.” (citation
omitted)).
[A]n appeal may be taken from: (1) a final order or an order
certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order
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5 McChesney, who had not participated in the JOP motion, filed a motion to
quash the appeal on December 20, 2022. T&F, which did not participate in
the JOP motion, filed correspondence indicating it joined the motion filed by
EQT and Rice Drilling. See Correspondence (T&F), 12/21/22.
6 The trial court granted judgment on the pleadings against Appellant as to its
declaratory judgment action, concluding declaratory judgment is barred by
the statute of limitations. Trial Court Opinion, 6/22/22, at 8. In its Petition
for Permission, Appellant did not seek review of this determination. Notably,
“an order in a declaratory judgment action, which merely dismisses one or
some of several alternative theories for relief without ultimately deciding the
case, is not appealable under Rule 341.” United States Orgs. for Bankr.
Alts., Inc. v. Dep't of Banking, 26 A.3d 474, 478 (Pa. 2011) (citing Pa.
Bankers Ass'n v. Pa. Dep't of Banking, 948 A.2d 790, 798 (Pa. 2008)).
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as of right (Pa.R.A.P. 311); (3) an interlocutory order by
permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
a collateral order (Pa.R.A.P. 313).
Id.; accord Z.P. v. K.P., 269 A.3d 578, 586 (Pa. Super. 2022).
Under our Rules of Appellate Procedure:
When more than one claim for relief is presented in an action, …
or when multiple parties are involved, the trial court … may enter
a final order as to one or more but fewer than all of the claims and
parties only upon an express determination that an immediate
appeal would facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other
form of decision that adjudicates fewer than all the claims
and parties shall not constitute a final order. In addition,
the following conditions shall apply:
(1) An application for a determination of finality under
paragraph (c) must be filed within 30 days of entry of the
order. During the time an application for a determination of
finality is pending, the action is stayed.
(2) Unless the trial court … acts on the application within 30
days after it is filed, the trial court or other government unit
shall no longer consider the application and it shall be
deemed denied.
(3) A notice of appeal may be filed within 30 days after entry of
an order as amended unless a shorter time period is
provided in Pa.R.A.P. 903(c). Any denial of such an
application is reviewable only through a petition for
permission to appeal under Pa.R.A.P. 1311.
Pa.R.A.P. 341(c) (emphasis added). The note to Rule 341 explains:
Where the … trial court refuses to amend its order to include the
express determination that an immediate appeal would facilitate
resolution of the entire case and refuses to enter a final order, a
petition for permission to appeal under Pa.R.A.P. 1311 of
the unappealable order of denial is the exclusive mode of
review.
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Pa.R.A.P. 341, note (emphasis added).
The trial court’s June 22, 2022, order did not dispose of all claims of all
parties, and the court entered no express determination of finality. See
Pa.R.A.P. 341(c). In entering JOP against Appellant as to its quiet title action,
the trial court explained:
It thus appears [EQT and Rice Drilling] are correct, [Appellant]
must seek reformation of the deed and … this cannot be
accomplished by a quiet title action alone. The Court will therefore
dismiss the quiet title action without prejudice.
Trial Court Opinion, 6/22/22, at 10 (emphasis added). As the remaining
actions were predicated on the quiet title action, the trial court entered JOP
without prejudice as to those causes of action as well. The trial court further
confirmed it “remains open for amended pleadings by either party, that will
advance the case[.]” Trial Court Opinion, 6/22/22, at 13. Importantly, only
Rice Drilling and EQT filed a motion for JOP. The remaining defendants did
not join the motion. Under these circumstances, the trial court’s JOP order,
which failed to dispose of all claims of all parties, is not a final order under
Pa.R.A.P. 341(c).7
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7 Appellant does not argue the June 22, 2022, order is appealable under the
collateral order doctrine. See Pa.R.A.P. 313 (defining a “collateral order” and
recognizing this Court may exercise jurisdiction over an appeal of a collateral
order). In its Motion to Certify, Appellant recognized the JOP order
is an interlocutory order. Although the June 21 Order did not grant
leave to amend, the Memorandum stated that [Appellant] could
pursue further amendment of the pleadings and was not “out of
(Footnote Continued Next Page)
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Since the JOP order is not a final order under Pa.R.A.P. 341, we turn to
whether permissive interlocutory appeal under 42 Pa.C.S.A. § 702(b) is
appropriate. Section 702(b) states:
(b) INTERLOCUTORY APPEALS BY PERMISSION.--When a
court or other government unit, in making an interlocutory order
in a matter in which its final order would be within the jurisdiction
of an appellate court, shall be of the opinion that such order
involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal
to be taken from such interlocutory order.
Id. Rule of Appellate Procedure 1311 provides that an appeal may be taken
by permission from an interlocutory order for which the trial court has denied
certification pursuant to 42 Pa.C.S.A. § 702(b) or Pa.R.A.P. 341(c). Pa.R.A.P.
1311(a)(1)-(2). Permission to appeal must be filed within 30 days after entry
of the order denying certification or the date of deemed denial. Pa.R.A.P.
341(b).
The trial court filed its JOP order on June 22, 2022. Appellant filed its
motion to certify on July 5, 2022. See Pa.R.A.P. 341(c)(1). Appellant’s
certification motion was deemed denied 30 days later, on August 4, 2022.
See Pa.R.A.P. 341(c)(2). Appellant timely filed its petition on September 2,
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court” such that [Appellant] does not interpret the June 21, 2022
Order as dismissing all claims and all parties as required under
Pa.R.A.P. 341(b)(1).
Motion to Certify, ¶ 7 (citation and footnote omitted).
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2022, which the Superior Court docketed at 57 WDM 2022. The petition was
referred to this panel for disposition.
In seeking permission to appeal, Pa.R.A.P. 1312 requires a petitioner to
show: (1) “[W]hy the order involves a controlling question of law as to which
there is a substantial ground for difference of opinion”; (2) “that an appeal
from the order may materially advance the ultimate termination of the
matter”; and (3) “why the refusal of certification was an abuse of the trial
court’s … discretion that is so egregious as to justify prerogative appellate
correction[.]”8 Pa.R.A.P. 1312(a)(5)(ii).
Appellant first claims the trial court’s order involves a controlling
question of law dictating all questions of liability, and informing the existence
of the damages inquiry:
• If [Appellant] is right and the 1990 Deed’s Oil and Gas
Provision excepted and reserved the Subject Property’s oil and gas
in [] Field, then Appellant has oil and gas interests in the Subject
Property that are being clouded by [EQT and Rice Drilling
(Respondents),] and [Appellant] is being damaged by
[Respondents’] extraction and sale of oil and gas from the Subject
Property because the entire basis of the [Respondents’] oil and
gas development is premised on purported lease rights granted
by the McChesneys, who were the grantees in the 1990 Deed and
would have no oil and gas interests if the Subject Property’s oil
and gas was excepted and reserved in the 1990 Deed.
• If [Appellant] is wrong and the 1990 Deed did not except
and reserve the Subject Property’s oil and gas, then Mr. Field did
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8 An abuse of discretion “occurs only where the trial court renders a judgment
that is (1) manifestly unreasonable, arbitrary, or capricious; or (2) fails to
apply the law; or (3) was motivated by partiality, prejudice, bias, or ill will.”
Page Publ’g v. Hemmerich, 287 A.3d 948, 954 (Pa. Super. 2022).
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not retain those oil and gas rights and [Appellant] never acquired
them, meaning that [Appellant] had no interests in any of the
Subject Property’s oil and gas.
Petition for Permission at 19.
Appellant asserts the trial court misapprehended the Commonwealth
Court’s holding in County of Allegheny v. County of Allegheny
(Allegheny), 719 A.2d 1 (Pa. Cmwlth. 1998).9 Petition for Permission at 21.
According to Appellant, the Commonwealth Court
concluded that the presence of the exception and reservation
provision signified the grantor’s intent that the oil, gas and
minerals would not pass to the grantee. That gives effect to the
fundamental nature of an exception and reservation, which
withholds property interest from the conveyance to the grantee.
Id. at 21. Appellant describes the substantive issue presented to the trial
court as whether the language of the 1990 Deed conveyed oil and gas
interests to EQT and Rice Drilling (Respondents), or whether interests
remained vested in Field. See id. at 22-27. According to Appellant,
Allegheny
stands for the proposition that identification of property interests
in an exception and reservation provision signifies an intent that
those interests are excepted and reserved; meaning that they are
not conveyed to the grantee….
Id. at 22. Appellant maintains the trial court’s interpretation
failed to give any effect to the presence of the words “excepting
and reserving” in the 1990 Deed’s oil and gas provision and
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9 “Although decisions of the Commonwealth Court are not binding on this
Court, they may provide persuasive authority.” Barrett v. M&B Med.
Billing, 291 A.3d 371, 376 n.4 (Pa. Super. 2022).
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errantly looked within that exception and reservation provision to
discern a purported intent to convey the oil and gas.”
Id. at 27.
Respondents counter that Appellant
[t]akes the inconsistent positions that the exception and
reservation clause at issue in the 1990 Deed contains a scrivener’s
error, while contemporaneously asserting that the parties’ intent
can be discerned notwithstanding this alleged error. That is
not the case. To rectify a scrivener’s error, the writing must be
reformed based on a showing of evidence of the parties’ intent—
which is exactly what the Trial Court’s [JOP] Order anticipated
would happen here. But rather than amending its action to seek
reformation of the 1990 Deed, in accordance with the
Interlocutory Order, Petitioner instead seeks to skip over that part
entirely (likely because the evidence that would be adduced
suggests that the McChesneys are the proper owners of the oil
and gas rights). As things stand, the only thing the Petition will
accomplish is piecemeal appellate review.
Answer to Petition for Permission at 5-6 (emphasis added). According to
Respondents, Appellant asks this Court to interpret the 1990 Deed’s alleged
“scrivener’s error” as a matter of law, or to reform the 1990 Deed. Id. at 6.
Respondents argue Appellant’s claim of a scrivener’s error “cannot coexist with
[Appellant’s] claim that the plain language of the deed reflects the intent of
the parties.” Id. at 7.
Appellant’s “controlling question of law” requires interpretation of the
1990 Deed. When interpreting deeds, “the court’s primary object must be to
ascertain and effectuate what the parties intended.” Murphy v. Steve
Karnek, 160 A.3d 850, 858-59 (Pa. Super. 2017) (citations and quotation
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marks omitted). Although Appellant relies on Allegheny to support its claim,
its reliance is misplaced.
In Allegheny, Cosgrove-Meehan Coal Company of Pennsylvania sought
to convey certain property to James Morrow, Jr., through a 1942 deed. Id.
at 4. The deed included the following language:
EXCEPTING AND RESERVING to the Cosgrove-Meehan Coal
Corporation, its successors and assigns, all the coal, gas, oil,
limestone and other minerals and the right of said Cosgrove-
Meehan Coal Corporation, its successors and assigns, to enter
upon said premises or any part thereof for the purpose of mining,
drilling and carrying away said coal, gas, oil, limestone and other
minerals, and to perform all acts incident and appertaining
thereto.
Id. (emphasis added). However, the Cosgorove-Meehan Coal Corporation
“was a Delaware corporation and a separate legal entity from the Cosgrove-
Meehan Coal Company of Pennsylvania[,]” and not a party to the 1942 deed.
Id. The Commonwealth Court ruled the 1942 deed could not convey interests
to a nonparty:
In this case, the language is not ambiguous. It is clear what
the parties intended by their words. The intent was that
James Morrow, Jr.[,] not receive the right to mine coal. It is not
that the language of the deed is ambiguous, just that there
is a legal rule against attempting to accomplish by the
language herein utilized what the parties wanted to
accomplish, namely, reserve/except an interest in a non-
party to the deed. Thus, the rule of construing a deed most
favorably to the grantee simply does not have application here
insofar as that rule applies only where the language is ambiguous.
To construe the language of the deed as the County contends
would be to frustrate the intent of the parties to the deed. This
we cannot do.
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Id. (emphasis added). Here, by contrast, the 1990 Deed did not convey
interests to a nonparty. The proposed controlling question of law cannot be
resolved simply by adherence to Allegheny.
In its “Appellant’s Brief,” Appellant argues:
“Grantees” is obviously a scrivener’s typographical error because
it is incompatible with the controlling “excepting and reserving”
language.
Appellant’s Brief at 54-55. We recognize “mistake of a scrivener in preparing
a deed … may be established by parol evidence and the instrument reformed
accordingly.” In re Mihordin, 162 A.3d 1166, 1172 (Pa. Super. 2017)
(citation omitted). Whether the mistake be unilateral or bilateral, “the proof
of the mistake must be established by evidence that is clear, precise,
convincing, and of the most satisfactory character.” Id. Such determination
must be made by the trial court. Based on the record before us, it cannot be
made as a matter of law at this stage of the proceedings.
While Appellant claims immediate appeal is necessary to resolve this
controlling question of law, it ignores the fact that relief remains available to
Appellant, i.e., interpretation of the 1990 Deed in light of the alleged
scrivener’s error. Indeed, at this juncture, we cannot determine whether the
trial court will deem the 1990 Deed’s provision a “scrivener’s error” justifying
reformation of the deed. Thus, this appeal is premature and would result in
“piecemeal determinations.” See Fried v. Fried, 501 A.2d 211, 215 (Pa.
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1985) (stating that the law “abhors piecemeal determinations and the
consequent protraction of litigation”).
Further, immediate appeal will not materially advance the ultimate
termination of this matter. Appellant argues:
If the Subject Order is affirmed, then that has the effect of ending
this case, subject to an appeal to the Pennsylvania Supreme
Court. [Appellant] is unaware of any facts beyond the content of
the 1990 Deed to evidence the parties’ intent that could be the
basis for a reformation claim that [Appellant] could attempt to
pursue.
Petition for Permission at 8-9. However, the trial court expressly entered
judgment on the pleadings without prejudice. Trial Court Order, 6/22/22,
at 10. Again, the trial court’s order did not foreclose the grant of relief to
Appellant.
Upon careful review, we discern no abuse of discretion by the trial court
in declining to certify its JOP order for immediate appeal. This outcome
comports with Pennsylvania courts’ longstanding and well-documented policy
against piecemeal litigation. See Pa. Bankers Ass'n, 948 A.2d at 798
(recognizing Supreme Court’s “well-documented efforts of avoiding piecemeal
litigation.”).
Appeal quashed. Petition for permission to appeal denied.
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J-A15012-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
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