J-A12032-15

2015 PA Super 184

ALBERT M. VOSBURG, III, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NBC SEVENTH REALTY CORP., AND 

PITTSTON AREA INDUSTRIAL 

DEVELOPMENT CORP.,

APPEAL OF: NBC SEVENTH REALTY 

CORP.

No. 1552 MDA 2014

Appeal from the Order entered June 3, 2014,

in the Court of Common Pleas of Luzerne County,

Civil Division, at No(s): 91-E-2002

BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

DISSENTING OPINION BY ALLEN, J.: FILED SEPTEMBER 02, 2015

I respectfully dissent from the Majority. 

The trial court, in its December 3, 2010 order, recounted the factual 

and procedural background of this case as follows:

[] The Complaint was filed [by Vosburg] in Equity to the 

above-captioned number on October 11, 2002 as a case in 

trespass, and conversion of the mineral rights held by [Vosburg]. 

[Appellant and PAID] hold title to the surface rights of the parcel 

of land located in Pittston Township. However, [Vosburg] claims 

the rights to the alleged "Mineral Estate" retained by a 

reservation clause contained in Deed dated May 11, 1951 and 

recorded in Luzerne County Deed Book 1115, page 221. 

Although the title to the property has eventually passed to 

[Appellant and PAID], The Mineral Rights Reservation Clause has 

remained in [Vosburg’s] family with no subsequent conveyance 

by Deed of said reservation. An unrecorded 1976 Bill of Sale 

purportedly conveying said Reservation of Minerals Rights has 
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been renounced and thus the mineral rights remain in [Vosburg] 

by alleged intestate inheritance.

[PAID] received the surface right[s] to the property by 

Deed in 1999 [from the Estate of Michael Fritz]. Said Deed 

contained a standard subject to all reservations, restrictions ... 

exceptions, etc. clause which thereby incorporated the Mineral 

Right[s] Reservation Clause of the 1951 Deed. On February 27, 

2002, [PAID] transferred the property to [NBC] by Deed which 

contained the same “subject to” clause. After the 2002, 

transfer, [Appellant] initiated a large construction project on the 

property for industrial development. The construction 

necessitated the excavation, processing and refill and grading of 

hundreds of thousands of tons of rock found on the site both on 

and under the surface of the property in question to a depth of 

approximately fifty (50) feet.

[Vosburg’s] complaint alleges trespass to the Mineral 

Rights reserved by [Vosburg] and conversion of the rocks by 

[Appellant’s] removal, processing, and use of the processed 

rocks and sub-base and fill. The extent of [Vosburg’s] monetary 

damages attendant to the alleged trespass and conversion is not

before the court.

Trial Court Opinion, 12/3/10, at 1-2 (underline in original).

The initial 2002 complaint which the trial court referenced provides in 

pertinent part:

5. The Abstract of title to the property conveyed to PAID by the 

Fritz Estate Deed (the "Fritz Parcel Chain of Title") reveals that 

the mineral rights in the Fritz Parcel were previously excepted 

out and retained by Albert M. Vosburg and Katherine N. Vosburg, 

his wife, by virtue of their deed to Anthony Fritz dated May 11, 

1951 and recorded on May 12, 1951 in Luzerne County Deed 

Book 1115, page 221 (the "Vosburg to Fritz Deed") which deed 

contains the following language: "EXCEPTING AND RESERVING 

all coal and other mineral beneath the surface of said described 

land, with the right to mine and remove the same by subterrane 

mining." []

7. [Vosburg] is the grandson of Albert M. Vosburg and Katherine 

N. Vosburg[.]
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8. [PAID] conveyed to [Appellant] a parcel of real estate (the 

"PAID Property") which includes a portion of the Fritz Parcel, said 

portion being approximately 50 acres in size, along with other 

adjacent lands by that certain deed dated February 27, 2002 and 

recorded on March 1, 2002 in Luzerne County Deed Book 3002, 

page 57046 (the "PAID to [Appellant] Deed")[.]

9. To the best of [Vosburg’s] knowledge, [Appellant] began 

excavating hardened shale1from the Fritz Parcel on or about 

January 15, 2002, first under a Right of Entry granted to 

[Appellant] by PAID and then as the owner of a portion of the 

Fritz Parcel for the purposes of leveling by cutting and filling the 

area needed for [Appellant’s] land development project as 

approved by the Luzerne County Planning Commission involving 

the construction of a 1,010,180 square foot warehouse 

distribution facility and offices on 105.12 acres of land (the 

"Warehouse Distribution Facility Land Development") and to 

provide a suitable sub-base for the buildings, loading docks, 

parking areas, and access drives which are part of the 

Warehouse Distribution Facility Land Development Project.

10. To the best of [Vosburg’s] knowledge, [PAID] has also 

excavated hardened shale from the Fritz Parcel, or plans to do so 

in the near future, to use as a suitable sub-base for the 

construction of an access road to serve the remainder of the 

Fritz Parcel and other lands owned by PAlD.

11. At all times relevant to this complaint [Appellant and PAID] 

did not have or obtain the rights to remove minerals from the 

Fritz Parcel and the mineral rights in and to all minerals within 

the Fritz Parcel remained of record with Albert M. Vosburg and 

Katherine N. Vosburg[.]

12. At all times relevant to this complaint [Appellant and PAID] 

knew, or should have known from the deeds recorded in the 

public records of the Office of the Recorder of Deeds in and for 

Luzerne County, Pennsylvania, that they did not own any 

mineral rights in the Fritz Parcel and, therefore, had no right to 

excavate and use for their own benefit the hardened shale 

located in the Fritz Parcel.

____________________________________________

1 The parties have also referred to the disputed material as “rock,” and/or 

“sandstone” throughout their pleadings and briefs. 
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13. The hardened shale located in the Fritz Parcel and removed 

and converted to the use and benefit of [Appellant and PAID] 

was at all times and is today a mineral as defined under 

Pennsylvania law.

14. The hardened shale had and has a minimum value of in 

excess of $3.00 a ton.

15. [Vosburg’s] predecessor in interest, Burr B. Vosburg, sent a 

specimen of rock excavated from the Fritz Parcel to the United 

States Department of the Interior, Bureau of Mines in 1938 and 

received a determination letter stating the mineral composition 

of the rock to be hardened shale (the "Bureau of Mines Letter"), 

a copy of which letter is attached hereto and incorporated herein 

as Exhibit F.

16. [Appellant] has excavated and converted to its use and 

benefit well over one million tons of hardened shale with a 

minimum approximate value of $3,000,000.00.

17. [PAID] has excavated and converted to its use and benefit 

an unknown quantity of hardened shale with a minimum 

approximate value of $3.00 per ton. 

18. [PAID] has also benefitted from [Appellant’s] excavation 

and conversion of hardened shale from the Fritz Parcel as the 

presence of the hardened shale on the Fritz Parcel increased the 

purchase price received by PAID from [Appellant] for the entire 

property sold in so far as [Appellant] took into account in 

formulating the purchase price for the PAID real estate the 

savings to it of not having to purchase and truck the necessary 

minerals to the building site.

19. [Vosburg] and [his] predecessors in interest to the mineral 

rights in the Fritz Parcel have in the past, prior to the purchase 

of the Fritz Parcel by PAID, excavated and removed hardened 

shale from the Fritz Parcel by surface excavation and mining for 

resale and for their own use.

Complaint, 10/11/02, at 1-3. 

The above-referenced correspondence from the United States 

Department of the Interior Bureau of Mines provided in pertinent part:

Dear Mr. [Burr B.] Vosburg:
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In reply to your letter of April 30, with which you sent a 

specimen for determination:

The specimen is hardened shale and besides aluminum 

silicates contains a little lime carbonate and a little mica. 

It probably varies somewhat in composition from place to 

place and the lime carbonate especially may vary.

Yours faithfully,

John W. Finch,

Director

Correspondence, 5/18/38. 

In preliminary objections to Vosburg’s 2002 complaint, Appellant 

averred, inter alia, that “[Appellant], as the owner of the property, owns the 

surface of the land and, as the ‘surface owner,’ retains all rights to the 

minerals other than coal that are located in the portion of the ground 

between the coal seam and the surface.” Preliminary Objection[s] of 

[Appellant] to [Vosburg’s] Complaint, 12/2/02, at 2 (unnumbered).

In reply to Appellant’s preliminary objections, Vosburg averred:

6. Denied. [Appellant] went far beyond its legal right to use the 

surface of its property when it excavated by blasting hardened 

shale, a mineral, to a depth in excess of fifty (50’) feet and 

processed the hardened shale by means of a portable rock 

crusher brought onto the Fritz Parcel into various products 

including but not limited to shot rock, various grades of 

manufactured stone such as pipe bedding, 2B gravel, 2B 

modified stone, and Nos. 3, 4, and 5 stone used for rock lined 

drainage ditches. 

***

9. [Vosburg’s] predecessors in title to the mineral rights had 

entered into the Fritz Parcel by way of a Township Road which 

cut through the Fritz Parcel as shown on the Luzerne County Tax 

Maps, a copy of the relevant portion of which is attached hereto 
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and incorporated herein as Exhibit ‘A’, and had conducted open 

pit quarrying of hardened shale located upon the Fritz Parcel 

before and after the conveyance of the surface of the Fritz 

Parcel. 

[Vosburg’s] Answer to [Appellant’s] Preliminary Objections, 1/15/03, at 2. 

Vosburg subsequently filed an amended complaint, which incorporated, inter 

alia, the foregoing averments regarding his predecessors’ entry onto the 

Fritz Parcel for quarrying purposes using the township road referenced 

above. See Amended Complaint, 1/15/03, at 4 (unnumbered). On June 11, 

2003, Vosburg filed a third amended complaint, which inter alia, added 

additional plaintiffs. 

In its answer and new matter to Vosburg’s third amended complaint, 

Appellant “denied that it excavated and converted to its use hardened shale 

in any significant amount from the Fritz Parcel.” Appellant’s Answer and 

New Matter [to Vosburg’s Third Amended Complaint], 7/1/03, at 6. 

Appellant further “denied that the hardened shale has a minimum value of in 

excess of $3.00 a ton. To the contrary, the value of hardened shale in place 

is a small fraction of $3 per ton.” Id. 

On June 10, 2010, Vosburg moved for partial summary judgment. 

See generally Vosburg’s Motion for Partial Summary Judgment, 6/10/10. 

In granting summary judgment in Vosburg’s favor and against Appellant, the 

trial court explained:

There are two questions presented to the Court[.] The 

first centers on the interpretation of the Mineral Rights 

Reservation of the 1951 Deed and its relationship, of any, to 

‘rock’. Secondly, if the Court finds said ‘mineral’ rights 
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applicable to ‘rock,’ is the processing of the rock and refilling and 

grading the subsurface of the land with the processed rocks a 

‘conversion’[?]

The Mineral Rights Reservation Clause of the 1951 Deed 

reads as follows:

‘... all coal and other mineral beneath the surface of said 

described land with the right to receive and remove the 

same by subterranean mining[.]’ (emphasis added).

A ‘mineral’ is defined as follows:

‘a naturally occurring, inorganic, crystalline solid with 

definite chemical composition and characteristic physical 

properties.’ Environmental Science, a Global Concern, 9th 

Ed., by William C. Cunningham, Mary Ann Cunningham 

and Barbara Woodsworth Saigo.

The Courts of the Commonwealth have defined ‘mineral’ in 

various cases as including stone and rock [Hendler v. Lehigh 

Valley R.R. Co., 58 A. 486 (Pa. 1904)] and everything not of 

the mere surface. [Highland v. Commonwealth of Pa., 161 

A.2d 390 (Pa. 1960)]. Upon review of these cases and the 

geological textbook definition, the Court finds rock to be a 

mineral.

Taking the Downey Declaration submitted by [Appellant 

and PAID], the ... operation included extensive excavation (‘cut 

and fill’) of 482,364 cubic yards, embankment work, regarding 

and filling. The description clearly was well beyond ‘surface’ 

work on the parcel. Further, the Downey Declaration confirms 

that the ‘rock’ was crushed and processed into a different form 

and the new form of rocks was used as fill. [Appellant and 

PAID’s] excavation activities even required bringing onsite an 

additional 12,800 cubic yards of off-site fill in order to reestablish the terrain at the surface. The excavation, processing 

and refilling of the parcel described by [Appellant and PAID’s] 

expert indicates a clear trespass of the Mineral Rights 

Reservation by [Vosburg]. 

As to the question of conversion by [Appellant and PAID], 

the term ‘conversion’ has been defined most recently in the 

Paves v. Corson case [765 A.2d 1128 (Pa. Super 2000)] as: 
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‘the deprivation of another's right of property in, or use or 

possession of a chattel without the owner's consent and 

without lawful justification.’ 

[Appellant and PAID] argue that the rock found on site 

remains on site albeit displaced and leveled and used as fill. 

However, the processing and crushing of the rocks themselves 

as described by Downey is a deprivation of [Vosburg’s] use or 

possession of the chattel (rock) itself. [Appellant and PAID] 

have transformed the nature and species of the various rock 

boulders. The rocks in their original non-processed, non-fill 

state could have had various other uses for [Vosburg] (e.g. 

walls, stabilizing support, etc). [Appellant and PAID] have 

completely possessed the rocks transforming them into fill for 

[Appellant and PAID’s] uses (industrial site development) and 

thereby deprived [Vosburg] of the use or possession of the rocks 

themselves. 

Trial Court Opinion, 12/3/10 at 2-4. 

Following the trial court’s issuance of its December 3, 2010 order, our 

Supreme Court published its opinion in Butler v. Charles Powers Estate,

65 A.3d 885, 898 (Pa. 2013), ruling that in interpreting private deed 

reservation clauses within the ambit of oil and gas actions, natural gas would 

not be considered a mineral because it was “non-metallic [in] nature.” On 

March 11, 2014, relying on Butler, Appellant moved to vacate the trial 

court’s December 3, 2010 order, and for summary judgment in Appellant’s 

favor. 

As succinctly summarized by Vosburg: 

[A]s part of the briefing in advance of the trial court's 2014 

order, [Vosburg] submitted affidavits from ... Albert M. Vosburg 

Jr. and [Vosburg] stating the following evidence of the parties to 

the deeds’ intention that the reservation encompass:

1) that the grantor herein, Albert M. Vosburg, owned a stone 

quarry in the immediate neighborhood of the Fritz Parcel and 
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sold stone produced from this quarry [FN3: This quarry is 

referred to in the chain of title as the ‘Bown quarry,’ see deeds 

attached to Albert M. Vosburg Jr. Affidavit at R. 482a-484a.]; 

See Exhibit A, Second Affidavit of Albert M. Vosburg, Jr. at 114-

12, R. 474a-475a. See also exhibit B thereto, deed establishing 

that Albert M. Vosburg owned the Bown Quarry Property from 

1913-1969.

2) that Albert M. Vosburg actually employed Anthony Fritz in 

this stone quarry and had him sell stone as part of his 

employment duties; See ld. at ¶¶ 14-17, R. 476a.

3) that Albert M. Vosburg offered Anthony Fritz the surface of 

the Property for $5,000 and the Property with no mineral or rock 

reservations for $10,000. See Id. at ¶¶ 14-16, R. 476a. 

Because Mr. Fritz sold stone for Albert M. Vosburg, both parties 

understood that the same stone found in the neighboring quarry 

was likely under the Fritz property. Id.

4) Mr. Fritz and Albert M. Vosburg understood that the stone 

had commercial value because they both sold the stone to the 

Borough of Avoca. Id. at ¶¶ 12-17, R. 476a.

Vosburg’s Brief at 5-6. 

The trial court heard arguments on Appellant’s motion for summary 

judgment on May 27, 2014. On June 3, 2014, the trial court denied 

Appellant’s motion to vacate its prior order and for summary judgment; the 

trial court granted summary judgment to Vosburg. Following this Court’s 

September 18, 2014 order granting review of the trial court’s order, 

Appellant filed a timely notice of appeal.

Appellant’s issues on appeal concern the trial court’s determination 

that the term “mineral” within the private deed reservation clause includes 

rock. In reviewing Appellant’s claims, I recognize that:

In construing a deed or a contract, certain general 

principles must be kept in mind. First, it is the intention of the 
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parties at the time of entering in thereto that governs, and such 

intention is to be gathered from a reading of the entire 

contract[.] Philip Morris & Co. v. Stephano Bros., 1938, 331 Pa. 

278, 200 A.2d 605; Maxwell v. Saylor, 1948, 359 Pa. 94, 58 

A.2d 355. In addition, “Contracts must receive a reasonable 

interpretation, according to the intention of the parties at the 

time of executing them, if that intention can be ascertained from 

their language. (Citing cases). Where the language of a 

contract is contradictory, obscure, or ambiguous, or where its 

meaning is doubtful, so that it is susceptible of two 

constructions, one of which makes it fair, customary, and such 

as prudent men would naturally execute, while the other makes 

it inequitable, unusual, or such as reasonable men would not be 

likely to enter into, the interpretation which makes a rational and 

probable agreement must be preferred. [FN1: Emphasis ours] 

If one construction would make it unreasonable, while another 

would do justice to both parties, the latter will be adopted[.]” 

Percy A. Brown & Co. v. Raub, 1947, 357 Pa. 271, 287, 54 A.2d 

35, 43. It is also beyond controversy, that a written document 

must be construed most strongly against the parties drafting it[.] 

Cities Service Oil Co. v. Haller, 1958, 393 Pa. 26, 142 A.2d 163. 

It is equally well fixed in the law that a doubtful reservation or 

exception in a deed will be construed most strongly against the 

grantor and in favor of the grantee[.] Bundy v. Myers, 1953, 

372 Pa. 583, 94 A.2d 724; Sheffield Water Co. v. Elk T. Co., 

1909, 225 Pa. 614, 74 A. 742. This rule applies with special 

force to a reservation or exception which amounts to cutting 

down of the grant[.] Klaer v. Ridgway, 1878, 86 Pa. 529.

***

[] Further, the standard of interpretation to be applied is 

the meaning that would be attached by a reasonably intelligent 

person, acquainted with all operative usages, and knowing all 

the circumstances prior to and contemporaneous with the 

making of the contract[.] Restatement, Contracts § 320; 

Clearfield Development Corp. v. Devonian Co., 1956, 385 Pa. 

248, 122 A.2d 718. 

Wilkes-Barre Tp. School District v. Corgan, 170 A.2d 97, 98-99 (Pa. 

1961). 
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Initially, I find that Appellant’s reliance on Butler is misplaced. Butler

addresses private deed reservations of mineral rights, specifically natural 

gas, within an oil and gas agreement, which is inapposite to the scenario 

before us. The pronouncements of the Supreme Court in Butler reiterated 

that under Pennsylvania law, natural gas and oil are presumptively not 

minerals due to their non-metallic nature, and are thereby presumptively 

excluded from the term “mineral” within private deed reservation clauses. 

Specifically, the Supreme Court in Butler explained:

The [trial] court noted that Pennsylvania law has 

long recognized a rebuttable presumption that “if, in 

connection with a conveyance of land, there is a 

reservation or an exception of ‘minerals’ without any 

specific mention of natural gas or oil, ... the word 

‘minerals’ was not intended by the parties to include 

natural gas or oil.” Highland, 161 A.2d at 398 (citing 

Dunham, 101 Pa. at 44). This precept, commonly known as 

the Dunham Rule, may be rebutted by a challenger 

through clear and convincing evidence that the intent of 

the parties, at the time of the conveyance, was to include 

natural gas and/or oil. Id. at 400. The trial court finally 

stated that the notion that natural gas and oil are not, for 

purposes of private deed transfers, considered minerals is 

“entrenched” within Pennsylvania law. See C.C. Marvel, 

Annotation, Oil and gas as “minerals” within deed, lease, or 

license, 37 A.L.R.2d 1440, at *3.

***

The [Highland] Court ... recognize[ed], as did its 

predecessors, that mankind generally divided all known matter 

into three categories—animal, vegetable, and mineral—and that 

petroleum and natural gas are unquestionably minerals under 

that broad categorization. Id. at 398. Nonetheless, we 

reaffirmed that for deed reservations we must assume, absent 

evidence to the contrary, that mineral is a term of “general 

language, and presumably is intended in the ordinary popular 
J-A12032-15

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sense which it bears among English speaking people,” i.e.,

metallic substances and not oil and gas. Id. Thus, the 

Dunham Rule, a well-established and relied upon rule of 

property, continues to bind all situations in which a deed 

reservation does not expressly include oil or natural gas 

within the reservation. Id. at 398–99. Indeed, such a 

conclusion was demanded by the long-standing jurisprudence of 

this Commonwealth concerning property law: “A rule of 

property long acquiesced in should not be overthrown except for 

compelling reasons of public policy or the imperative demands 

of justice.” Id. at 399 n. 5 (quoting, e.g., Smith v. Glen Alden 

Coal Co., 347 Pa. 290, 32 A.2d 227, 234 (1943)).

***

We thus turn to the continuing viability of the Dunham

Rule, and we reaffirm that the rule continues to be the law of 

Pennsylvania. [] Notwithstanding this Court's recognition that 

various statutes, such as the Municipalities Planning Code, 

categorize natural gas as a mineral, as [a]ppellants aptly note, 

we recently reiterated that “Pennsylvania common law has 

applied a rebuttable presumption in the context of a 

private deed conveyance that the term ‘mineral’ does not 

include oil or gas.” Huntley, 964 A.2d at 858. We see no 

reason, nor has any party or court provided us with one, 

to depart from this entrenched rule.

***

The Dunham Rule is clear, dating back to Gibson, that the 

common, layperson understanding of what is and is not a 

mineral is the only acceptable construction of a private deed. 

Notwithstanding different interpretations proffered by 

other jurisdictions, the rule in Pennsylvania is that natural 

gas and oil simply are not minerals because they are not 

of a metallic nature, as the common person would 

understand minerals. Gibson, 5 Watts at 41–42; see also 

Dunham, 101 Pa. at 44. The Highland decision made clear that 

the party advocating for the inclusion of natural gas within the 

deed reservation (here [a]ppellees) bears the burden of pleading 

and proving by clear and convincing evidence that the intent of 

the parties who executed the reservation was to include natural 

gas. 161 A.2d at 398–99. Critically, however, such intention 

may only be shown through parol evidence that indicates the 
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intent of the parties at the time the deed was executed—in this 

case, 1881. Id.

Of course, in 1881, the law of Pennsylvania was Gibson

and Moore, supra pp. 889–90, which clearly stated two 

overarching principles: (1) anything of a non-metallic nature 

would not be considered a mineral for private deed purposes; 

Gibson, 5 Watts at 41–42; and (2) when interpreting private 

deeds and contracts, the “question is to be determined not by 

principles of science, but by common experience directed to the 

discovery of intention.” Moore, 2 Whart. at 493; see also 

Gibson, 5 Watts at 44. Both of these principles have been 

adopted and utilized by the courts implementing the Dunham

Rule. Accordingly, to the extent the Superior Court ordered an 

evidentiary hearing with expert testimony concerning Marcellus 

shale natural gas, and the scientific nature thereof, such an 

order violated the Dunham jurisprudence. Simply put, natural 

gas is presumptively not a mineral for purposes of private 

deeds.

Butler, 65 A.3d 885, 886-898 (Pa. 2013) (footnotes omitted) (emphasis 

supplied). Accordingly, Butler is not applicable, and I reject Appellant’s 

assertion that a reading of Butler supports vacating the trial court’s 

December 3, 2010 order or reversing the trial court’s June 3, 2014 order. 

Rather, I find that Butler reiterates the well-settled precept that the 

interpretation of the “coal and other mineral” clause within the private deed 

at issue here is “to be determined not by principles of science, but by 

common experience directed to the discovery of intention.” Butler, 65 A.3d 

at 898. In engaging in a “discovery of intention,” I acknowledge that 

“[w]hile it is true that a reservation or exception in a deed will be construed 

against the grantor, it is equally true that this reservation and exception 

must be taken into account when attempting to interpret the deed as a 

whole and glean the intention of the parties therefrom.” New Charter Coal 
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Co. v. McKee, 191 A.2d 830, 835 (Pa. 1963) citing Wilkes-Barre 

Township, 170 A.2d at 99.

In analyzing the phrase “or other mineral” vis á vis sand, our Supreme 

Court determined that sand was excluded in the following scenario, and 

explained:

The first question presented by this case is whether the 

sand, the taking of which is the trespass sued for, is a mineral, 

within the meaning of the deed between the parties. In the 

broadest sense, as belonging to one of the three great 

divisions of matter—animal, vegetable, and mineral—sand, 

of course, is a mineral. In the more restricted scientific 

sense, sand may or may not be a mineral, according to 

what it is composed of. In the language of mineralogists, air 

and water are minerals, while granite and similar rocks are not 

minerals, but aggregations of minerals. So it is of sand. It may 

be wholly of grains of silex or other mineral, or it may be of 

several mixed together, and therefore in the technical sense only 

grains of rock. It is perfectly clear that the parties here did not 

use the word ‘mineral’ in either of the foregoing senses. The 

first grantor with whom we are concerned, the Northern Coal & 

Iron Company, conveyed the land to Jumper, reserving ‘all coal 

and other minerals, in, under and upon said land’; Jumper 

conveyed to defendant with a similar reservation; and the 

subsequent deed by defendant to plaintiff conveyed the ‘surface’ 

of the land, ‘excepting and reserving as fully and entirely as in 

the said [preceding] indenture is excepted and reserved, and 

further excepting and reserving all the gravel necessary for any 

fill or ballast for the railroad,’ etc. If the word ‘mineral’ had been 

used in either of the senses already mentioned, it would, as a 

matter of course, have included gravel, and the additional 

special reservation of the gravel shows that the parties did not 

consider it as included in the preceding general reservation. But 

there is another, and what may be called the commercial 

sense, in which the word ‘mineral’ is used, and in which, 

having reference to its supposed etymology of anything 

mined, it may be defined as any inorganic substance 

found in nature, having sufficient value, separated from 

its situs as part of the earth, to be mined, quarried, or dug 

for its own sake or its own specific uses. That is the 
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sense in which it is most commonly used in conveyances 

and leases of land, and in which it must be presumed that 

it was used by these parties in the deed in question. ‘Coal 

and other minerals’—the expression used—indicate 

substances which, like coal, have a value of their own, 

apart from the rest of the land, sufficient to induce the 

expense and labor of severance for their own sakes. 

These the grantor intended, and expressed the intention, 

to except from his grant and reserve to himself. While 

coal was the principal and perhaps the only thing clearly 

in view, yet the reservation was not meant to be limited 

to that, for then the addition ‘and other minerals’ would 

be superfluous and misleading. A vein of fine marble 

would clearly be reserved, and so, probably, if near 

enough a market to have a value, would be granite or 

limestone, or other building material, potter’s or porcelain 

clay, and the like. Sand might or might not be in this 

category. A vein of pure white quartz sand, valuable for making 

glass or other special use, would be within the reservation, while 

common mixed sand, merely worth digging and removing as 

material for grading, would not be. The referee has found that 

the sand which is the subject of the present contention was of 

this latter character, and was taken and used, not for any 

intrinsic value or use of its own, but as part of earth and other 

material to fill up the roadbed to the proper grade. So regarded 

and used, it was not within the reservation.

Hendler v. Lehigh Valley R.R. Co., 58 A. 486, 487 (1904) (emphasis 

supplied).

Appellant states that Hendler was overruled by Hall v. Delaware, L 

& W, R & Co., 113 A. 669, 670-671 (Pa. 1921). See Appellant’s Brief at 

20. However, a close reading of Hall reflects that the Supreme Court did 

not overrule Hendler’s analysis of the term “mineral,” nor did they overrule 

Hendler’s requirement of an examination of the deed’s language, the intent 

of the parties as expressed therein, and the attendant circumstances to the 
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deed’s execution, prior to including a disputed mineral within a reserved 

mineral estate.

Indeed, in Silver v. Bush, 62 A. 832 (Pa. 1906), the Supreme Court 

emphasized that “[t]he variations in the scope of the word [mineral] arise 

from the connection and application in which it is used,” and the “cardinal 

test of the meaning of any word in any particular case is the intent of the 

parties using it.” Id. at 833-834. Specifically, the Silver Court explained:

The crucial question here, as in all contracts, is, what was 

the sense in which the parties used the word? Mineral is not per 

se a term of art or of trade, but of general language, and 

presumably is intended in the ordinary popular sense which it 

bears among English speaking people. It may in any particular 

case have a different meaning, more extensive or more 

restricted, but such different meaning should clearly appear as 

intended by the parties. A very recent discussion of the subject 

was had in Hendler v. Lehigh Valley R. R. Co., 209 Pa. 256, 58

Atl. 486, 103 Am. St. Rep. 1005, where it was shown that while 

the word ‘mineral’ has a very broad meaning, already alluded to, 

and also a more restricted scientific use, it has also a commercial 

sense, in which it is most commonly used in conveyances and 

leases of land, and in which it may be presumed to be used in 

such instruments. In that sense it may include any inorganic

substance found in nature having sufficient value separated from 

its situs as part of the earth to be mined, quarried, or dug for its 

own sake or its own specific uses. But, though it may include all 

such substances, it does not necessarily do so. Appellant cites 

the case as authority for the view that whatever comes within 

the terms of that description must necessarily be included under 

the word ‘mineral.’ But this is an untenable inference. Th[e] 

[Hendler] decision announced no new principle, nor any

departure from the line of previous decisions. As already said, 

there is no discrepancy in the cases. The cardinal test of the 

meaning of any word in any particular case is the intent of 

the parties using it, and all that Hendler v. R. R. Co. did 

was to apply that test to the word ‘mineral’ in the deeds 

on which the case turned. The substance there in 

question was sand, and it was shown that it might or 
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might not be within the definition of mineral in the 

commercial sense, according to the circumstances and the 

intent of the parties.

Silver v. Bush, 62 A. at 833 (Pa. 1906) (emphasis supplied). 

 Citing Hendler and Silver, the United States District Court in the 

Western District of Pennsylvania recently reasoned in PAPCO, Inc. v. U.S.,

814 F.Supp.2d 477 (W.D. Pa. 2011) 2: 

In the analysis of whether a substance is a “mineral” within 

the scope of a mineral reservation, the crucial question is: 

“What was the sense in which the parties used the word?” Silver 

v. Bush, 213 Pa. 195, 62 A. 832, 833 (1906); see also Highland 

v. Commonwealth, 400 Pa. 261, 161 A.2d 390, 398 (1960). [] 

A mineral has been defined broadly as “everything not of the 

mere surface, which is used for agricultural purposes; the 

granite of the mountain as well as metallic ores and fossils, are 

comprehended within it.” Griffin v. Fellows, 81 1/2 Pa. 114, 

1873 WL 11950, *9 (Pa. 1873). It can also be defined by 

evidence of the parties’ knowledge of the type of minerals 

present on the land at the time of conveyance. See Gibson,

1836 WL 2957 at *5, 7 (Court stated “it appears ... that both 

parties ... came to the knowledge of the fact that the mineral 

called chrome ... was found on this tract,” and combined with 

the language of the deed, the Court found that chromate was 

included within the mineral reservation).

A mineral may also be defined in the commercial sense, in 

which a mineral is “any inorganic substance found in nature, 

having sufficient value, separated from its situs as part of the

earth, to be mined, quarried, or dug for its own sake or its own

specific use.” Hendler v. Lehigh Valley R.R. Co., 209 Pa. 256, 58

____________________________________________

2

“While ‘federal court decisions do not control the determinations of the 

Superior Court,’ whenever possible, Pennsylvania courts ‘follow the Third 

Circuit [courts] so that litigants do not improperly ‘walk across the street’ to 

achieve a different result in federal court than would be obtained in state 

court.” Parr v. Ford Motor Co., 109 A.3d 682, 693 n.8 (Pa. Super. 2014) 

(en banc) (internal citations omitted). 
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A. 486, 487 (1904) (overruled on other grounds by Hall v. 

Delaware, Lackawanna & W. R.R. Co., 270 Pa. 468, 113 A. 669 

(1921)). When the parties intend to define minerals by its 

commercial sense, substances included within this definition 

have their own value that is apart from the rest of the land. 

Hendler, 58 A. at 487.

The [Hendler] court went on to further state that such 

substances as granite, limestone, clay, and other building 

material would also be within a mineral reservation if they had a 

commercial value. Id. Therefore, since the sand did not have 

any commercial value, the court ruled that the parties did not 

intend to include the sand within the mineral reservation. Id.

As in Hendler, the language in the Jamieson Deed indicates 

the parties’ intention to include as “minerals” substances that 

have their own value apart from the land. Hendler, 58 A. at

487. The Jamieson Deed reserved “all the oil, natural gas, glass 

sand and minerals of every kind and description whatsoever.” 

Jamieson Deed at 439. The specific reservation of oil, natural 

gas, and glass sand indicates that the parties intended that 

substances that have commercial value are within the scope of 

the reservation. Hendler, 58 A. at 487. Thus, the critical 

question is whether “sandstone” has commercial value and is 

included within the mineral reservation of the Deed.

Unlike the sand in Hendler, sandstone located in the 

Allegheny National Forest has its own commercial value apart 

from the land. Sandstone was regarded as a commercially 

valuable mineral at the time of the conveyance of the Jamieson 

Deed. Pennsylvania's Mineral Heritage: The Commonwealth at 

the Economic Crossroads of Her Industrial Development (1944), 

Attachment 10 to Ex. A to Pl.'s Br. Supp. (noting longstanding 

stone industry in Pennsylvania, including “1.4 million tons of 

sandstone ... produced ... for commercial purposes” in 1930, the 

same year the Jamieson Deed was executed, at 50–51, and 

commercial use of sandstone for highway construction, at 156, 

193). The parties of the Jamieson Deed were likely aware of the 

commercial value of sandstone, and that sandstone was present 

on the Jamieson Tract. As such, we find that since the parties to 

the Jamieson Deed intended to include commercially valuable 

minerals within the mineral reservation, and because sandstone 

was regarded as a commercially valuable mineral at the time of 

the Jamieson Deed conveyance, sandstone is within the scope of 
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the mineral reservation of the Jamieson Deed. Therefore, the 

sandstone at issue in this case belongs to PAPCO.

PAPCO, Inc. v. U.S., 814 F.Supp.2d at 477. 

Here, applying the cardinal test emphasized in Silver to the instant 

deed, and mindful of the sound rationale espoused in the Hendler and 

Papco decisions, I find that the challenged rock was reserved within 

Vosburg’s mineral estate, and I would affirm the trial court’s interpretation 

of the term “mineral” within the deed’s reservation clause as inclusive of 

rock. Hendler, 58 A. at 487 (material would “clearly be reserved” where it 

had its own value as “building material,” and “sufficient value separated 

from its situs as part of the earth to be mined, quarried or dug for its own 

sake or its own specific uses,” and not just as a common material which was 

moved superficially to fill and regrade the land); see also Papco, 814 

F.Supp.2d at 495 (material was a reserve mineral where the material was “a 

commercially valuable mineral at the time,” where parties to the deed “were 

likely aware of the commercial value of” the material, that “[t]he challenged 

material” was present on the [land,]” and where the “parties to the [deed] 

intended to include commercially valuable minerals within the mineral 

reservation”). The phrase “coal and other mineral” within the deed’s 

reservation clause signifies the intent to reserve commercially valuable 

assets. Deed, May 11, 1951, at 1 (emphasis supplied). There was 

documented knowledge well before the execution of the 1951 deed that rock 

was present on the property’s surface and subterraneously. See
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Correspondence, United States Department of the Interior Bureau of Mines, 

5/18/38. 

In Hendler, the fact finding referee determined that the disputed sand 

was not a reserved mineral because it was “merely worth digging and 

removing as material for grading” which was “part of the earth ... to fill up 

the roadbed to the proper grade” without “any intrinsic value or use of its 

own.” Hendler, 58 A at 487. By contrast in this case, and as recognized by 

the trial court, the rock has value and use of its own. As pled by Vosburg, 

the rock was the subject of open pit quarrying by Vosburg’s predecessors. 

See Complaint, 10/11/02 at 3; Amended Complaint, 1/15/03, at 3-4. While 

Appellant denied that the rock at issue was hardened shale or even as 

valuable as pled by Vosburg, Appellant nonetheless conceded, in the 

alternative, that there was some value to the rock. See Appellant’s Answer 

and New Matter [to Vosburg’s Third Amended Complaint], 7/1/03, at 6 

(Appellant “denied that the hardened shale has a minimum value of in 

excess of $3.00 a ton. To the contrary, the value of hardened shale in place 

is a small fraction of $3 per ton.”). Moreover, the rock had value as building 

material, and was “extensive[ly] excavat[ed]” by Appellant for such purpose 

down to approximately 50 feet below the ground. See Trial Court Opinion, 

12/3/10, at 3-4; see also Hendler, supra (categorizing a material as a 

mineral in the commercial sense, if it had “value” as a “building material ... 

and the like”). I agree with the trial court that the “rocks in their original 

non-processed, non-fill state could have had various other uses for 
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[Vosburg] (e.g. walls, stabilizing support, etc).” Trial Court Opinion, 

12/3/10, at 4. Therefore, I would affirm the trial court’s determination that 

the challenged rock was reserved within Vosburg’s mineral estate. 

 In sum, I would affirm the trial court’s June 3, 2014 order which 

denied summary relief to Appellant and which declined to vacate the 

December 3, 2010 order granting summary judgment to Vosburg.