Warren, C. v. Equitable Gas ( 2015 )

J-A01037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES S. WARREN, CHARLES A. IN THE SUPERIOR COURT OF
WARREN, AND PATRICIA SHAW PENNSYLVANIA
WARREN,
Appellants
v.
EQUITABLE GAS COMPANY, EQUITRANS,
EQUITABLE PRODUCTION COMPANY,
AND EQUITRANS, LP, FORMERLY
EQUITRANS PRODUCTION COMPANY,
Appellees No. 697 WDA 2014
Appeal from the Order entered April 22, 2014,
in the Court of Common Pleas of Greene County,
Civil Division, at No(s): AD 262 of 1991
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 4, 2015
Oil and gas rights lessors, Charles S. and Charles A. Warren, and
Patricia Shaw Warren, (“Appellants”), appeal from the trial court’s order
granting the motion for summary judgment filed by Equitable Gas Company,
Equitrans, Equitable Production Company, and Equitrans, LP, formerly
Equitrans Production Company, (collectively “Equitable”). We affirm.
The trial court recounted the factual and procedural background of this
action as follows:
[Appellants] are the owners of a tract of land located in
Center, Franklin, and Morris Townships containing 307.89 acres,
with exceptions. When Charles A. Warren first acquired the
tract, it had already been made subject to a lease dated August
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25, 1966, from E.R. Closser and Margaret Closser to [Equitable].
This lease provides in relevant part:
Lessor…hereby leases unto the lessee, for its exclusive
possession and use for the purpose of exploring and
operating for Natural Gas and Petroleum Oil, all that
certain tract…containing Three Hundred Eight --- (308)
acres, more or less.
THE LESSEE shall have during the term of this lease the
exclusive right to drill upon said land for natural gas and
petroleum oil including the right to clean out, drill deeper
and operate any abandoned or plugged well or wells
located on said land for the production of gas and/or oil, or
the use of said wells for the storage of gas, subject to all
the terms and conditions of this lease…; to inject gas for
storage purposes or repressuring in the substrata, and to
remove same therefrom by pumping or otherwise; the
right to construct and maintain piplelines…in connection
with the transportation of gas and oil produced from said
land or for the storage of gas therein;…
TO HAVE AND TO HOLD the said land and the privileges for
the said purposes for a period of Ten (10) Years from
September 1, 1967, and as long thereafter
commencement of operations as said land is operated for
the exploration or production of natural gas, or as gas or
oil is found in paying quantities, or stored thereunder, or
as long as said land is used for the storage of gas or the
protection of gas storage on lands of the general vicinity of
said land. The Lessee shall be the sole judge of when and
if said land is being used for the storage of gas or the
protection of gas storage on lands of the general vicinity of
said land.
AND IT IS AGREED, that the Lessee shall pay to the Lessor
for each and every well drilled upon said land, which
produces Natural Gas only, in a quantity sufficient for the
Lessee to convey to market, or any well used in connection
with the storage of gas under said land, a money royalty
computed at the rate of Three Hundred Dollars per
annum…and unless a well is previously completed upon
said land, the Lessee shall, beginning on the 1st day of
September, 1967, and continuing until a well is
completed…or this lease is used for the storage of gas or
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the protection of gas storage on lands in the general
vicinity of said land, pay to the Lessor quarterly in
advance, the sum of Seventy-seven and No/100…($77.00)
Dollars, as a carrying rent, in lieu of development…
When said land is used for the storage of gas (but there is
no well on said land), or for the protection of gas storage
on lands in the general vicinity, the Lessee covenants and
agrees to pay to the Lessor, quarterly, in advance, his
annual storage rent…Six Hundred Sixteen and
No/100…($616.00) Dollars at the rate of Two Dollars per
acre per annum until a well is completed or this lease is
surrendered.
In 1991, [Appellants] as succesors to the original lessors,
filed a Complaint alleging that [Equitable] “ha[s] not taken any
action to fulfill the covenants in Lease No. 2394-1 to produce
native gas and or oil on [Appellants’] property.” The Complaint
asked for money damages and rescission of the lease.
After a long, long period of inactivity, an Amended
Complaint was filed by new counsel on June 21, 2011. This
version sought to explain the addition of additional defendants
related to the original defendants but still demanded the same
relief for the same reason. [Equitable] filed an Answer and New
Matter and Counterclaim, requesting a declaratory judgment that
the lease is valid and in effect. Much discovery followed. In
June of 2013, [Appellants] moved for summary judgment.
[Equitable] responded and filed their own Motion for Summary
Judgment to which [Appellants] responded. Both sides have
filed briefs in support of their positions and we have heard oral
argument.
Trial Court Opinion, 4/22/14, at 1-3.
On April 21, 2014, the trial court issued an order, which was docketed
on April 22, 2014, granting Equitable’s motion for summary judgment and
denying Appellants’ motion for summary judgment. Appellants filed this
timely appeal. Both the trial court and Appellants have complied with
Pa.R.A.P. 1925.
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Appellants present the following issues for our review:
WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING
TO FIND THAT THE GRANTING CLAUSE OF THE LEASE WAS FOR
PRODUCTION OF NATURAL GAS AND OIL AND [THAT] STORAGE
[WAS] A SECONDARY PURPOSE THAT COULD NOT DELAY
PRODUCTION INDEFINITELY?
WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING
TO FIND THAT THE LEASE WAS SEVERABLE BETWEEN
PRODUCTION AND STORAGE WHEN THE PRIMARY PURPOSE OF
THE LEASE WAS “EXPLORING AND OPERATING FOR NATURAL
GAS AND PETROLEUM OIL” AND SEPARATE CONSIDERATION
WAS GIVEN FOR BOTH PRODUCTION AND STORAGE?
WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING
TO FIND THAT [EQUITABLE] BREACHED THE IMPLIED
COVENANT TO OPERATE FOR NATURAL GAS AND OIL EVEN IN A
DUAL PURPOSE LEASE BY FAILING TO DRILL FOR OR PRODUCE
NATURAL GAS AND OIL DURING THE INITIAL LEASE TERM OR
FOR OVER THIRTY-FIVE YEARS THEREAFTER?
WHETHER THE COURT ABUSED ITS DISCRETION BY FAILING TO
FIND THAT [EQUITABLE] BREACHED THE LEASE BY ITS FAILURE
TO MAKE ANY LEASE PAYMENTS FOR OVER FOUR YEARS?
WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING
TO CONSIDER WHETHER LEASE TERMS COULD FAIRLY BE
CONSTRUED UNDER THE FACTS OF THIS CASE TO PERMIT
[EQUITABLE] TO HOLD DEVELOPMENT RIGHTS FOREVER BY
PAYING NOMINAL STORAGE PAYMENTS OF TWO DOLLARS PER
ACRE TO AN UNSCHOOLED FARMER OR WHETHER SUCH AN
INTERPRETATION WAS UNCONSCIONABLE?
WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING
TO FIND THE LEASE TERMS AMBIGUOUS, REQUIRING A
FAVORABLE CONSTRUCTION FOR LESSOR THAT MERE STORAGE
ALONE COULD NOT HOLD PRODUCTION RIGHTS INDEFINITELY
WHERE LESSEE DRAFTED THE LEASE?
Appellants’ Brief at 4-5.
We recognize:
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Our scope of review … [of summary judgment orders] … is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to judgment as a matter of law will
summary judgment be entered.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. Summary judgment is proper if, after the completion of
discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial would require
the issues to be submitted to a jury. Thus a record that
supports summary judgment will either (1) show the material
facts are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury. Upon
appellate review we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions. The
appellate Court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012)
(internal citation omitted).
Instantly, Appellant’s first, second, third, fifth, and sixth issues assert
that the trial court erred in granting summary relief in favor of Equitable
based on the trial court’s interpretation and construction of the lease.
Appellants contend that the trial court erred in its construction of the lease,
in determining that the lease’s gas storage and production provisions were
not severable, in concluding that Equitable did not breach an implied
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covenant to produce gas, in not deeming the lease unconscionable, and in
determining that the lease was not ambiguous. Based on our review of the
record and applicable jurisprudence, we cannot agree with Appellants’ claims
of error. We find that the trial court correctly determined that the lease
allowed for gas to be stored on the property, as well as produced, such that
Equitable’s continued gas storage without gas production activities allowed
for the lease’s term to continue, even in the absence of gas production.
The trial court reasoned:
The Clossers, the original lessors, owned the land in fee
simple and had the right to convey it to anyone in whatever
complete or partial fashion that they wished. They chose to
lease the oil and gas within and under their land to [Equitable]
on August 25, 1967. A lease of oil and gas in the ground is a
sale of an estate in fee simple until all of the available oil and
gas are removed, or upon some other specified act. The lessor
retains only an interest in the rents and royalties which is
personal property. Snyder Brothers, Inc. v. Yohe, 676 A.2d
1226 (Pa. Super. 1996). The interest granted to the lessee is a
fee simple determinable. The lessor retains a reversionary
interest. Higbee Corp. v. Kennedy, 428 A.2d 592 (Pa. Super.
1981).
The specified events that must occur for the oil and gas to
revert in this case to [Appellants] are found in the Habendum
clause which sets forth the term of the lease. The lease first
establishes a primary terms of ten years. If the lessee did
nothing and if it paid to the lessors “carrying rent” of one dollar
per acre per year the lease would have expired after ten years,
on August 31, 1977, and on that date the oil and gas would have
reverted to [Appellants]. But something else did happen; the
lessee began storage operations on the land, and those
operations are one of the events that permit lessee to retain its
interest in oil and gas, because the lease extended “ …for and
during a period of Ten (10) Years from September 1, 1967, and
… as long as said land is used for the storage of gas or the
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protection of gas storage on lands in the general vicinity of said
land.”
Trial Court Opinion, 4/22/14, at 4-5.
The trial court’s analysis is supported by our prior decision in
Pomposini v. T.W. Phillips Gas and Oil Co., 580 A.2d 776 (Pa. Super.
1990). In Pomposini, we denied a lessee’s right to store, rather than
produce gas, and explained:
The Supreme Court of Pennsylvania has observed that,
“the traditional oil and gas lease is far from the simplest of
property concepts.” Brown v. Haight, 435 Pa. 12, 15, 255 A.2d
508, 510 (1969). A conveyance of the subsurface oil and gas
results in a severance of the mineral interests from the surface
rights and conveys to the grantee a corporeal interest in the oil
and gas underlying the grantor's property. Smith v. Glen Alden
Coal Co., 347 Pa. 290, 299, 32 A.2d 227, 232 (1943); Barnsdall
v. Bradford Gas Co., 225 Pa. 338, 343, 74 A. 207, 208 (1909).
Here, however, [the lessor] merely demised an interest in the oil
and gas, albeit for as long as there remained oil and gas to be
produced in paying quantities. The severance of the mineral
rights under these circumstances must be narrowly construed.
The right to extract gas did not include the right to use the
cavernous spaces owned by the lessor for the storage of gas in
the absence of an express agreement therefor. Cf. Chartiers
Block Coal Co. v. Mellon, 152 Pa. 286, 296, 25 A. 597, 598
(1893); Emeny v. U.S., 188 Ct.Cl. 1024, 412 F.2d 1319, 1323,
(1969). See also: Ellis v. Arkansas Louisiana Gas Co., 450
F.Supp. 412, 420 (E.D.Okla.), aff'd, 609 F.2d 436, cert. denied,
445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 239 (1978) and
McGinnis, Some Legal Problems in Underground Gas Storage, 17
Institute on Oil & Gas Law & Taxation 23, 51 (1966) (right to
store should not be implied or presumed in the absence of clear
evidence of such intent). Because the lessee did not acquire an
estate in the caverns and was not authorized to store gas on
plaintiff's land, the trial court correctly held that the lessee was
liable for the unauthorized storage of gas on [lessor’s] land.
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Pomposini, 580 A.2d at 778-779. In contrast to Pomposini, the instant
lease did have “an express agreement” for the storage of gas, such that the
trial court did not err in finding that Equitable could use the land for that sole
purpose pursuant to the lease, even though the lease also allowed for gas
production.
We further find that the trial court aptly determined that the provisions
in the lease’s granting clause concerning the production of gas and the
storage of gas should not be severed, such that Equitable could proceed in
only using the land for gas storage. The trial court explained:
[T]he introductory phrase [within the lease stating] “for the
purpose of exploring and operating for Natural Gas” does not
create a severable lease, nor does it require the lessee to
produce oil and gas or suffer loss of the lease for failure to do so.
As has been said many times, the intent of the parties controls.
Obviously, at the time of the execution of the lease in 1967 the
lessee, [Equitable], was much interested in storage rights.
Storage rights are mentioned in five separate paragraphs in the
lease. It is difficult to believe that E.R. Closser and Margaret
Closser signed the lease without being acutely aware that
storage rights were repeatedly discussed. The fact that in one
place in the lease production rights were mentioned where
storage rights were not is a slender reed on which to base an
argument that the lease was intended to be severable.
Trial Court Opinion, 4/22/14, at 13-14. Our Supreme Court’s decision in
Jacobs v. CNG Transmission Corp., 772 A.2d 445 (Pa. 2001), supports
the trial court’s rationale in determining that the contract was not severable.
The High Court explained:
[T]here is no bright line rule requiring that a court first find that
the intent of the parties is unclear as to entirety/severability
before it may look to factors such as the conduct of the parties
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and the character of the consideration to determine whether an
agreement is entire or severable. The central task is to
ascertain the intent of the parties. That intent may be apparent
from the explicit language of the contract,… or it may be obvious
from a “construction” of the agreement, including the nature of
the consideration[.] In short, principles of construction may
reveal the intent of the parties no less than the actual language
addressing entirety/severability. Thus … this Court holds that,
absent express language that a contract is entire, a court may
look to the contract as a whole, including the character of the
consideration, to determine the intent of the parties as to
severability and may also consider the circumstances
surrounding the execution of the contract, the conduct of the
parties, and any other factor pertinent to ascertaining the
parties' intent. The court need not make a specific predicate
finding of ambiguity before undertaking the inquiry - indeed, if
the contract were crystal clear as to the parties' intent,
severability likely would not be a contested issue.
Jacobs, 772 A.2d at 452. Here, the lease does not specifically state that
the provisions are severable. Consonant with Jacobs, the trial court
considered whether the gas storage provisions were severable from the gas
production terms by examining the lease’s language, the multiple gas
storage provisions in the lease, the circumstances surrounding the lease’s
execution, and the discernible intent of the original contracting parties which
could be derived from the lease. In doing so, the trial court found that the
contract was not severable. We find no error by the trial court in reaching
this determination based on our own review of the lease and the record.
See Southwestern Energy Production Co. v. Forest Resources, LLC,
83 A.3d 177, 187 (Pa. Super. 2013) (internal citation omitted) (“It is well-
settled that clauses in a contract should not be read as independent
agreements thrown together without consideration of their combined effects.
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Terms in one section of the contract, therefore, should never be interpreted
in a manner which nullifies other terms in the same agreement.”).
Likewise, we do not find that Equitable breached an implied covenant
to produce, rather than to store, gas on the property. Our Supreme Court
held:
An implied covenant to develop the underground resources
appropriately exists where the only compensation to the
landowner contemplated in the lease is royalty payments
resulting from the extraction of that underground resource.
Where, however, the parties have expressly agreed that
the landowner shall be compensated if the lessee does not
actively extract the resource, then the lessee has no implied
obligation to engage in extraction activities.
Jacobs, 772 A.2d at 455 (emphasis supplied). Given that the lease
expressly provides for separate rates to be paid for production and for gas
storage, we conclude that the trial court did not err in determining that the
lease did not obligate Equitable to produce gas from the land.
We further discern no error in the trial court’s construction that
Equitable’s ongoing gas storage activities extended the lease term to the
present day. Specifically, the trial court indicated “[b]ecause we find … that
the lease is not severable and because the land has been used for the
storage of gas or for the protection of the storage of gas since its primary
term, the lease continues to this day.” Trial Court Opinion, 4/22/14, at 13.
We agree with the trial court, and recognize:
[A] lease is in the nature of a contract and is controlled by
principles of contract law. J.K. Willison v. Consol. Coal Co.,
536 Pa. 49, 54, 637 A.2d 979, 982 (1994). It must be
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construed in accordance with the terms of the agreement
as manifestly expressed, and “[t]he accepted and plain
meaning of the language used, rather than the silent
intentions of the contracting parties, determines the
construction to be given the agreement.” Id. (citations
omitted). Further, a party seeking to terminate a lease
bears the burden of proof. See Jefferson County Gas Co.
v. United Natural Gas Co., 247 Pa. 283, 286, 93 A. 340,
341 (1915).
T.W. Phillips Gas and Oil Co. v. Jedlicka, 42 A.3d 261, 267
(Pa.2012).
Caldwell v. Kriebel Resources Co., LLC, 72 A.3d 611, 614 (Pa. Super.
2013). Here, the trial court interpreted the plain meaning of the lease’s
granting clause and correctly construed the lease as continuing as long as
Equitable either produced or stored gas on the land.
Further, we are not persuaded by Appellants’ argument that the trial
court’s lease interpretation and construction was unconscionable. Appellant
correctly cites the following precepts relevant to a determination of
unconscionability:
Unconscionability is a "defensive contractual remedy which
serves to relieve a party from an unfair contract or from an
unfair portion of a contract." Germantown Mfg. Co. v.
Rawlinson, 491 A.2d 138, 145 (Pa. Super. 1985) (quoting D.
Dobbs, Handbook on the Law of Remedies 707 (1973)). The
party challenging a contract provision as unconscionable
generally bears the burden of proving unconscionability. Bishop
v. Washington, 480 A.2d 1088, 1094 (Pa. Super. 1984).
In evaluating claims of unconscionability, courts generally
recognize two categories, procedural, or "unfair surprise,"
unconscionability and substantive unconscionability. See
Ferguson v. Lakeland Mut. Ins. Co., 596 A.2d 883, 885 (Pa.
Super. 1991); Bishop, 480 A.2d at 1095; Germantown, 491 A.2d
at 145-46. Procedural unconscionability pertains to the process
by which an agreement is reached and the form of an
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agreement, including the use therein of fine print and convoluted
or unclear language. See E. Allan Farnsworth, Contracts 4.28
(2d Ed. 1990). This type of unconscionability involves, for
example, "material, risk shifting contractual terms which "are
not typically expected by the party who is being asked to 'assent'
to them." Germantown, 491 A.2d at 145-146. Substantive
unconscionability refers to contractual terms that are
unreasonably or grossly favorable to one side and to which the
disfavored party does not assent. See Id., at 145-147;
Denlinger, Inc. v. Dendler, 608 A.2d 1061, 1068 (Pa. Super.
1992). Thus, "unconscionability requires a twofold
determination: that the contractual terms are unreasonably
favorable to the drafter and that there is no meaningful choice
on the part of the other party regarding acceptance of the
provisions." Bensalem Township v. International Surplus Lines
Ins. Co., 38 F.3d 1303, 1312 (3d Cir.1994) (quoting Worldwide
Underwriters Ins. Co. v. Brady, 973 F.2d 192, 196 (3d Cir.
1992)).
Appellants’ Brief at 31-32. Appellants maintain “[t]here is no evidence here
that the lessor was anything other than a landowner, a sheep and cattle
farmer, unschooled in the ways of oil and gas leases, while the lessee was
and is in the business of the same.” Id. at 33. However, Appellants
concede, as they must, that “it is true that inequity in bargaining power,
alone, is not a basis upon which to invalidate a clause in the contract[.]” Id.
at 34. Appellants assert “there can be no question that lessors could not
have understood and assented to what would boil down to a storage only
lease.” Id. However, as Equitable states, and our review of the record
confirms, Appellants’ deposition testimonies belie this argument:
The Oil and Gas Lease at issue (the "Lease") was executed
on August 25, 1967, by lessors E.R. and Margaret Closser and
lessee Equitable Gas Company. R. 540a. The Clossers were the
in-laws of Plaintiff Charles A. Warren and the grandparents of
Plaintiff Charles S. Warren. R. 549a. [Appellants] have been
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deeded the property subject to the Lease (the "Property"). R.
61a-69a. Equitable Production Company and Equitrans, L.P.
("Equitable"), through assignments, are the current Lessees. R.
556a.
The Clossers are deceased, and never gave deposition
testimony in this matter. R. 787a. Charles S. Warren admitted
that he never spoke with the Clossers about the Lease. R. 787a
(C.S. Warren Dep. 13:2-4). He also admitted he has no
information about the intent of the parties when they entered
into the Lease, and does not know if "storage of gas was an
important element of the lease when it was entered into in
1967." R. 792a (C.S. Warren Dep. 48:14-24). Nor does his
wife, Plaintiff Patricia Warren, have any insight. R. 850a (P.S.
Warren Dep. 9:10-13, 9:23-24, admitting that outside of what
she had been told by her husband, she had knowledge of no
relevant facts and had not even read the Lease).
Similarly, Charles A. Warren admitted that he had never
had any discussions with the Clossers regarding the Lease or oil
and gas operations on the Property. R. 853a (C.A. Warren Dep.
7:23-8:3). He too possesses no information about the Clossers'
intentions when they signed the Lease. R. 855a (C.A. Warren
Dep. 16:20-23). He does not know "whether production of gas
was a priority at the time the lease was entered into." Id. (C.A.
Warren Dep. 17:5-11). He admitted he has "[n]o idea what the
purpose of the Lease was. Id. (C.A. Warren Dep. 16:24- 17:4);
see also R. 858a (C.A. Warren Dep. 30:2-3, same).
Equitable’s Brief at 2-3. Thus, we are not persuaded that Appellants have
met their burden of proving that the lease was unconscionable.
As to Appellants’ fourth issue, we find that the record refutes
Appellants’ contention that the trial court erred in not finding that Equitable
breached the lease “by its failure to make any lease payments for over four
years.” Appellants’ Brief at 4. The trial court observed that after Charles A.
Warren became a widower, and despite repeated requests from Equitable,
Charles A. Warren did not “send a copy of his [new] deed [to Equitable
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following his wife’s death], nor did he furnish a copy of his taxpayer
identification number.” Trial Court Opinion, 4/22/14, at 15. Because of
Charles A. Warren’s inaction, Equitable withheld payments, which the trial
court found “prudent under the circumstances, and … not a basis for
forfeiture of the lease.” Id. at 16. We agree with the trial court. See
Brakeman v. Potomac Insurance Company, 344 A.2d 555, 559 (Pa.
Super. 1975) (“The law abhors a ‘forfeiture’ almost as devoutly as nature
abhors a vacuum.”). After Equitable secured a copy of the deed, Equitable
resumed payments. Having played a role in not receiving monies from
Equitable, equity denies Charles A. Warren the forfeiture he is requesting.
See First Commonwealth Bank v. Heller, 863 A.2d 1153, 1159 (Pa.
Super. 2005) (internal citation omitted) (“[C]ourts [asked to grant equitable
remedies] will not relieve a party from the consequences of error due to his
own ignorance or carelessness when there were available means which
would have enabled him to avoid the mistake if reasonable care had been
exercised.”).
In sum, based on our review of the record and applicable
jurisprudence, we affirm the trial court’s order granting summary judgment
in favor of Equitable.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2015
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