The Superior Court recently weighed in with an interesting decision involving due diligence in the context of service by publication when potentially interested parties to a litigation cannot be located. See Sisson v. Stanley, No. 1347 MDA 2013 (Pa. Super. Ct., Jan. 27, 2015).
In 1953, Joseph Stanley transferred all right, title, and interest in real property located in Susquehanna County, Pennsylvania to Pauline Battista, subject to a reservation of mineral and gas rights. The present owners of the property, Donald R. Sisson and Mary Sisson, acquired the property in 1986 from Battista subject to the same reservation.
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. In their quiet title action, the Sissons sought, in part, to extinguish the reservation rights retained by Stanley and/or his heirs.
The Sissons obtained permission to perform service by publication, claiming that they were unable to locate any heirs of Mr. Stanley. The Sissons submitted an affidavit informing the trial court of the steps taken to locate an heir, which included:
- Checking the public records in the Recorder of Deeds;
- Searching local telephone directories for individuals with similar names; and
- Checking various internet sites for the names and possible locations of Stanley and/or his heirs, executors, and assigns.
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 granted the petition 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 in locating a living heir of Mr. Stanley. Among other things, the Sissons failed to:
- Search public records in the Register of Wills office, which would have revealed Mr. Stanley’s will and beneficiaries;
- Perform a search of local death records or newspaper archives for Mr. Stanley’s obituary, which identified his surviving relatives; and
- Set forth in detail efforts taken on internet to identify Mr. Stanley’s heirs.
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.