EQT Production v. Teska, R. ( 2016 )

J-A32023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EQT PRODUCTION COMPANY AND IN THE SUPERIOR COURT OF
EQUITRANS, L.P. PENNSYLVANIA
Appellee
v.
RONALD K. TESKA AND GIULIA
MANNARINO
Appellants No. 16 WDA 2015
Appeal from the Order December 3, 2014
In the Court of Common Pleas of Greene County
Civil Division at No(s): 217 of 2013
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED MARCH 17, 2016
Ronald K. Teska and Giulia Mannarino (“Landowners”) appeal, pro se,
from the order entered on December 3, 2014, which granted a motion for
summary judgment filed by Appellees, EQT Corporation, EQT Production
Company, Equitable Gas Company, and Equitrans (collectively, “EQT”), and
issued a permanent injunction, enjoining and restraining Landowners from
interfering with EQT’s right of entry upon their property and plugging
operation. On appeal, Landowners argue the court erred in granting the
motion for summary judgment and the permanent injunction. Based on the
following, we affirm.
A previous panel of this Court summarized most of the relevant facts
and procedural history of this case in the following manner:
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This case arises out of a dispute over a gas well located on
property currently owned by [Landowners]. On April 28, 1913,
Florence and G.E. Houston (the Houstons) and Carnegie Natural
Gas Company (Carnegie) entered into a lease. The lease, in
relevant part, provided that Carnegie had the right to mine for
gas, lay pipelines, and build tanks on the Houstons’ land. In
exchange, Carnegie agreed to provide the Houstons free gas
from any well drilled on the property as well as royalties.
Subsequently, Carnegie drilled a shallow well and provided free
gas to the Houstons. In 1992, the property, including the
mineral and gas rights, was purchased by [Landowners]; and, in
1999, Carnegie assigned its rights under the lease to EQT
Production Company. A gathering line owned by Equitrans
actually provided the free gas to [Landowners’] home.1
1
The relationship between [the EQT entities] was
explained during testimony from EQT Production Company
employee Mary Drummond in the hearing on the
preliminary injunction on August 20, 2012. EQT
Production Company is a gas production company and
produces gas from wells. Equitable Gas Company is a
separately operated entity that acts as a billing agent for
free gas customers. Equitrans is a separate company that
owns a “gathering line.” N.T., 8/20/2012, at 54-57. The
complaint asserted no separate claims against Equitrans.
In February 2011, [Landowners] noticed that a valve on the well
that fed the gathering line was in a closed position. Records
they obtained from the Pennsylvania Department of
Conservation and Natural Resources indicated that the well had
last produced gas for use in 2007. On February 28, 2011,
[Landowners] sent a certified letter to EQT Production Company
to inform them that the gas well had been abandoned, and they
returned a semi-annual royalty check. They also inquired about
the status of the lease. On October 13, 2011, EQT Production
Company filed a Release and Surrender of Oil and Gas Lease in
the Greene County Recorder of Deeds. On October 27, 2011,
EQT Production Company sent [Landowners] a certified letter
notifying [Landowners] that their free gas would be terminated
on November 7, 2011. That termination date was extended until
March 31, 2012. Equitable Gas Company sought for
[Landowners] to sign a Temporary Limited Service Agreement
(TLSA) and fill out an application in order to arrange gas service
for [Landowners]. Because [Landowners] disagreed with the
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manner in which Equitable Gas Company was treating them,
they filed a complaint with the Public Utility Commission (PUC).2
2
In October 2012, [Landowners] and Equitable Gas
Company “agreed to a negotiated Settlement Stipulation
prior to the scheduled PUC hearing resulting in
[Landowners] officially [becoming] paying Equitable Gas
Company customers and gas service was restored.”
[Landowners’] Brief at 16. Thus, there are no issues to
address regarding the [Landowners’] gas service.
Meanwhile, in March 2012, representatives of EQT Production
Company and [Landowners] met to discuss the transfer of the
gas well, as tests had indicated that the well was not depleted.
EQT Corporation notified [Landowners] that EQT Production
Company required them to complete certain steps to facilitate
transfer of ownership of the well; otherwise, EQT Production
Company would be legally required to plug the well.
[Landowners] disagreed with the need to complete those steps.
Because the discussions about the free gas and the transfer of
the well were not progressing, on July 26, 2012, EQT Production
Company sent a letter to [Landowners] advising them they
would be terminating their free gas service on August 13, 2012,
as well as moving forward with plugging the well.
On August 6, 2012, [Landowners] filed pro se a complaint for
declaratory judgment against [EQT]. In that complaint,
[Landowners] sought a declaration that they were the “owners of
all rights of every kind” with respect to the gas well, as well as
an order for EQT Production Company to transfer the “Operator’s
Permit” to them. Complaint, 8/6/2012, at 15-16. [Landowners]
also sought an injunction to prohibit [EQT] from discontinuing
their gas service. Id. at 16.
On August 10, 2012, [Landowners] filed a “Motion for
Emergency Injunctive Relief and Petition for Motion for
Preliminary Injunction Hearing.” On the same day, [EQT] filed
preliminary objections to [Landowners’] motion for injunctive
relief, as well as a motion for continuance of the preliminary
injunction hearing. On August 10, 2012, the trial court granted
[EQT’s] request for a continuance of the preliminary injunction
hearing and scheduled it for August 20, 2012. The order also
provided that EQT Production Company “shall not begin plugging
operation before that date.” Order, 8/10/2012.
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On August 17, 2012, [EQT] filed preliminary objections in the
nature of a demurrer to [Landowners’] complaint for declaratory
judgment. Specifically, [EQT] asserted, inter alia, that even if
the well had been abandoned, [Landowners] still had no right to
the fixtures associated with the well because Appellants do not
meet the definition of “owner” as prescribed by Pennsylvania
Department of Environmental Protection regulations.
Preliminary Objections to Complaint, 8/17/2012, at ¶¶ 16-27.
Moreover, [EQT] argued that as the owners of the well, they
were legally obligated to plug it. Id. at ¶¶ 32-39.
On August 20, 2012, the trial court held a hearing on the
preliminary injunction. On August 21, 2012, the trial court
entered an order overruling [EQT’s] preliminary objections to the
motion for injunctive relief, and dissolving the no-plug order of
August 10, 2012.
On November 1, 2012, the trial court sustained [EQT’s]
preliminary objections in the nature of a demurrer and dismissed
[Landowners’] complaint for declaratory judgment. Specifically,
the trial court concluded that [EQT] had the right to remove their
fixtures from [Landowners’] property and that [EQT] had no duty
to transfer ownership of the well to [Landowners]. See Trial
Court Opinion, 11/1/2012, at 2-3.
Teska v. EQT Corp., 82 A.3d 463 [1983 WDA 2012] (Pa. Super. 2013)
(unpublished memorandum at 1-5), appeal denied, 85 A.3d 484 (Pa. 2014)
(“Teska I”).1
On June 18, 2013, a panel of this Court affirmed the trial court’s order,
which sustained preliminary objections and dismissed Landowners’ complaint
____________________________________________
1
The remainder of facts and procedural history of this case have been
gleaned from the certified record and the parties’ briefs, since no updated
trial court opinion was filed. Rather, on January 8, 2014, the court entered
an order, resting on previously filed record and decision. See Order,
1/8/2014.
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for declaratory judgment. Pertinent to this appeal, the panel made the
following conclusions: (1) EQT, via its predecessor Carnegie Gas Company,
was the owner of the well; (2) it had the right to remove its own fixtures
from the land; and (3) it could have assigned or sold its ownership of the
well to Landowners but was under no obligation to do so. Id. at 6-9. The
Pennsylvania Supreme Court denied Landowners’ petition for allowance of
appeal on February 19, 2014.2
While Landowners’ appeal was pending, EQT attempted to commence
plugging operations but Landowners prohibited EQT personnel from
accessing the property. As a result, EQT filed a complaint in equity and
motion for preliminary injunction against Landowners on March 27, 2013,
seeking equitable relief in the form of an injunction that would allow them to
access the property for purposes of plugging the well. A hearing was held
on April 26, 2013 and May 17, 2013. On May 20, 2013, the court entered
____________________________________________
2
Landowners also filed a separate appeal from a separate order, which was
entered on October 22, 2013, raising the following issues: (1) the trial court
erred or abused its discretion in making the determination that “continued
payment of flat rate royalty by lessees on a nonproductive well, whose lease
was held by production and where lessors were not informed that production
had ceased, was not a representation but merely a ‘contractual obligation’”;
and (2) the trial court erred or abused its discretion in making the
determination that “continued payment of flat rate royalty by lessees on a
nonproductive well, whose lease was held by production and where lessors
were not informed that production had ceased, established a tenancy at will
without the knowledge and mutual consent of lessors.” Teska v. EQT
Corp., 106 A.3d 177 [1983 WDA 2012] (Pa. Super. 2014) (unpublished
memorandum at 4-5) (“Teska II”). A panel of this Court affirmed the trial
court’s decision.
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an order denying the preliminary injunction, due, in part, to the fact that
Landowners’ appeal in the related matter was pending.3
On October 14, 2014, after Landowners’ appeal was decided, EQT filed
a motion for summary judgment, arguing: (1) EQT’s clear right to relief is
demonstrated by the fact that it is the statutory owner of the well and is
legally obligated to plug the well; (2) equitable relief is necessary because
monetary damages alone would not prevent Landowners from interfering
with its statutory requirement to plug the well and its harm cannot be
monetarily assessed; and (3) EQT would face a significantly greater injury
from the denial of a permanent injunction because, without it, EQT would
face regulatory fines, significant financial liability, and responsibility for
environmental, health, and safety issues related to the well’s current
condition. See EQT’s Motion for Summary Judgment, 10/14/2014, at 6-12.
On November 20, 2014, Landowners filed an opposition to EQT’s
motion for summary judgment, alleging: (1) EQT, as statutory “owner,” did
not come to court with clean hands because they intentionally overlooked
their legal obligation to plug the well for many years and their present
interest in plugging it was retaliatory; (2) EQT is not entitled to equitable
relief because there was an adequate administrative remedy available, there
was no actual harm to EQT, and because plugging the well is no longer
____________________________________________
3
During this time, the presiding judge retired, and President Judge
Toothman was appointed to handle the matter.
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statutorily required; and (3) Landowners face far greater injury if the
injunction is granted than if it is not granted because plugging the well will
be environmentally hazardous and all of EQT’s future liability could be easily
transferred. See Landowners’ Opposition to EQT’s Motion for Summary
Judgment, 11/20/2014, at 8-16.
On December 3, 2014, the trial court granted the motion for summary
judgment and issued a permanent injunction, enjoining and restraining
Landowners from denying or interfering with EQT’s right of entry upon the
property and its plugging operations. This pro se appeal followed.4
In Landowners’ first issue, they contend the court erred in granting
EQT’s motion for summary judgment and in making the determination that
no genuine issue of material fact regarding the plugging of the gas well still
exists. See Landowners’ Brief at 13. They state that ownership of the well
is not the only material fact at issue in this case, and assert there are two
other equally important issues: (1) the environmental issues arising out of
the plugging of the well; and (2) the irreparable harm Landowners could
suffer. Id. Landowners allege the plugging of well would result in negative
environmental consequences, including the contamination or diminution of
their domestic household water supply. Id. at 14. As proof, they point to
____________________________________________
4
The court did not order Landowners to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless,
Landowners filed a concise statement on January 29, 2015.
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the fact that a spring on their property was lost due to the plugging of a gas
well on an adjacent property. Id. Additionally, Landowners assert that
“[a]lthough this case involves the same gas well and parties as the prior
cases, the issue still under dispute is not identical to the issues resolved
previously as it does not revolve around ‘ownership’ of or rights to the gas
well but rather the consequences/necessity of its plugging.” Id.
Landowners claim they deserve “the opportunity to conduct discovery to get
more information about EQT’s decision and their motives behind it.” Id.5
____________________________________________
5
Landowners also imply that because the current presiding judge took over
the case after the declaratory judgment proceedings were decided, he was
“unfamiliar with the case” since he “did not sit throughout the past
proceedings and was not involved in the earlier rulings or a close
examination of all of the issues.” Landowners’ Brief at 15. This allegation is
self-defeating because as stated above, Landowners claim the issue that is
still in dispute “is not identical to the issues resolved previously as it does
not revolved around ‘ownership’ of or rights to the gas well[.]” Id.
Therefore, it would be of no consequence if the presiding judge was not the
same individual as ownership is not at issue. Moreover, other than bald
allegations, Landowners do not present any evidence that the presiding
judge was not well-prepared or acquainted with the pertinent facts and law.
Moreover, Landowners contend (1) they were barraged with court
filings by EQT, which they claim bordered on frivolous, (2) they “have
erroneously been waiting for some direction from the court regarding the
start of [d]iscovery,” and (3) “they certainly cannot be expected to be as
familiar with the court process.” Id. at 16-17. We point to the following:
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
(Footnote Continued Next Page)
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We observe our well-settled standard of review as follows:
Our scope of review of an order granting summary judgment is
plenary. [W]e 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 a 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. ...
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
[fact-finder]. 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.
Pa. Servs. Corp. v. Tex. E. Transmission, LP, 98 A.3d 624, 629 (Pa.
Super. 2014), quoting DeArmitt v. New York Life Ins. Co., 3 A.3d 578,
585-86 (Pa. Super. 2013) (citations and quotation marks omitted).
Furthermore, Pennsylvania Rule of Civil Procedure 1035.2 provides the
standard for granting a motion for summary judgment, as follows:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
_______________________
(Footnote Continued)
In re Ullman, 995 A.2d 1207, 1211-1212 (Pa. Super. 2010).
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(1) whenever there is no genuine issue of any material fact as to
a necessary element of the cause of action or defense which
could be established by additional discovery or expert report, or
(2) 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.
Pa.R.C.P. 1035.2.
Additionally, Rule 1035.3 of the Pennsylvania Rules of Civil Procedure
states in pertinent part:
Rule 1035.3. Response. Judgment for Failure to Respond
(a) Except as provided in subdivision (e), the adverse party may
not rest upon the mere allegations or denials of the pleadings
but must file a response within thirty days after service of the
motion identifying
(1) one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion or from
a challenge to the credibility of one or more witnesses testifying
in support of the motion, or
(2) evidence in the record establishing the facts essential to the
cause of action or defense which the motion cites as not having
been produced.
Pa.R.C.P. 1035.3(a)(1)-(2).
Turning to the present matter, with respect to EQT’s motion for
summary judgment, the issue was whether EQT was entitled to a permanent
injunction based on its property interest in the well. As will be discussed in
more detail with our analysis of the second issue, we briefly note the
following:
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To be entitled to a permanent injunction, a party must
establish a clear right to relief, and must have no adequate
remedy at law, i.e., damages will not compensate for the
injury. Unlike a preliminary injunction, a permanent
injunction does not require proof of immediate irreparable
harm.
Liberty Place Retail Assocs., L.P. v. Israelite Sch. of
Universal Practical Knowledge, 2014 Pa. Super. 233, 102 A.3d
501, 505-06 (Pa. Super. 2014) (internal citations omitted).
PA Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1013
(Pa. Super. 2015).
Landowners acknowledge that EQT is the owner of the well, which also
was affirmed by the courts in prior decisions. See Landowners’ Brief at 13,
17; Teska I, supra. Nevertheless, they state there are two outstanding
genuine issues of material fact: (1) the environmental issues arising out of
the plugging of the well; and (2) the irreparable harm they could suffer. Id.
However, in their brief, Landowners only discuss the alleged negative
environmental consequences. Id. at 14.6 As stated above, in support of
their claim regarding environmental harm, they merely point to the fact that
a spring on their property was lost due to the plugging of a gas well on an
adjacent property.
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6
The fact that Landowners did not make any arguments regarding
irreparable harm is of no consequence since “a permanent injunction does
not require proof of immediate irreparable harm.” PA Energy Vision, LLC,
120 A.3d at 1013.
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A review of the record reveals that other than meager allegations
made in the pleadings, the only evidence regarding the environmental harm
is Landowners’ Exhibit C, which was introduced at the hearing on the motion
for summary judgment. Exhibit C is a May 23, 2012, letter from Brian J.
Lohr, a geologic specialist of the District Mining Office, to Christopher
Rabbitt, of Consol Pennsylvania Coal Company, LLC, concerning the approval
of a water supply replacement plan. At the hearing, the following exchange
took place regarding the exhibit and the spring:
[LANDOWNERS]: The relevance, if I may explain, is the
fact that this is a claim for the spring that disappeared due to
the well that was plugged so close to it on our property. The
spring was on our property. The well that was plugged on the
neighbor’s property, DeSimone, caused the spring to practically
disappear. We talked to Consol [Energy] about it, and they filed
paperwork with [the Pennsylvania Department of Environmental
Protection (“DEP”)] to try to find a resolution to this
consequence.
THE COURT: Well, okay. But listen. Remember what
we’re here for. And I think what you’re telling me is that on the
neighboring property there was a well plugging operation. And
that that well plugging operation interfered with the spring that
you relied on for your water supply?
[LANDOWNERS]: The spring was not to our house; the
spring was actually watering our Blueberry plants.
THE COURT: Okay. You had an interest in it?
[LANDOWNERS]: Yes.
THE COURT: And the spring was on your property?
[LANDOWNERS]: Yes.
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THE COURT: Okay. And if somebody interfered with
something you had by its activities, then you might have some
cause of action against that entity. That isn’t this entity, and
that’s not this well. And the purpose of this is to show what?
That it might interfere with something else?
[LANDOWNERS]: Yes. The fact that our domestic
household water supply well is much closer to the well that they
want to plug than our spring was to this well that was plugged.
THE COURT: Okay.
[LANDOWNERS]: That there is the potential for some kind
of damage to our household water supply. And that is also
verified by the fact that the state requires that water samples be
taken before wells are altered.
THE COURT: They told me they asked you for a water
sample, and you refused.
[LANDOWNERS]: We refused because of the case that is
still pending.
…
[LANDOWNERS]: But, Your Honor, if you allow the
plugging to go on, it’s like putting a man in the electric chair
before his DNA hearing occurs to prove he’s innocent.
THE COURT: [Landowners], nobody is going to get hurt.
[LANDOWNERS]: Oh, Your Honor, I disagree.
THE COURT: You might be inconvenienced and you might
suffer monetary loss. Nobody is going to get hurt.
[EQT’S COUNSEL]: If I may, Your Honor. I think the
Court hit the nail on the head with this line of questioning, that I
think it’s not relevant or germane to the issue before the Court,
and I think I’m going to object to this line of questioning so that
we can move on with the testimony that’s relevant to the case
before the Court.
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THE COURT: Well, let me ask you this: Are you prepared
to offer expert testimony that plugging this well will interfere
with your domestic water supply?
[LANDOWNERS]: No. But there is no one that can offer
testimony that it won’t, I don’t believe.
…
[LANDOWNERS]: I think our point is that we don’t believe
their right to relief is clear, because we still have a legal
controversy about who actually has the rights to this well. And
they want to plug it, and we want to use it. It’s the same issue
as the case that’s pending.
And there’s the possibility of contamination or diminishing
of water supplies. That’s why our neighbors’ water supplies
have to be tested and why our water supply does.
…
THE COURT: Well, if what you are attempting to show, is
that because an interruption of water supply occurred when a
well was plugged on a neighbor’s property, that makes it more
likely than not that this plugging operation will interfere with
your water supply, then I’m going to agree with [EQT’S counsel]
that’s irrelevant to this proceeding.
N.T., 4/26/2013-5/17/2013, at 72-79.
Based on Landowners’ paucity of evidence presented at the hearing,
we find their allegation amounts to a bald, speculative assertion that there
would be negative environmental consequences to the plugging of the well.
As pointed out by the trial court, Landowners have not presented any expert
opinions or reports that plugging would have any relevant, negative results.
They merely have presented evidence that the plugging of a well on
another person’s property affected the spring that supplies water to
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Landowners’ blueberry plants. Contrary to Rule 1035.3, Landowners did not
meet their burden of presenting evidence that established facts essential to
their defense to EQT’s right to access the well on their property.
Moreover, to the extent that Landowners request more time to conduct
discovery to determine EQT’s motives, we are guided by the following:
We … recognize that “the party seeking discovery is under an
obligation to seek discovery in a timely fashion.” Reeves v.
Middletown Athletic Ass'n, 866 A.2d 1115, 1124
(Pa.Super.2004); see Fort Cherry School Dist. v. Gedman,
894 A.2d 135, 140 (Pa.Super.2006) (reasoning “[t]he
Pennsylvania Rules of Civil Procedure do not give [parties] an
unlimited amount of time to conduct discovery”). However, this
Court has unequivocally stated that the purpose of Rule 1035.2
“is to eliminate cases prior to trial where a party cannot make
out a claim or defense after relevant discovery has been
completed; the intent is not to eliminate meritorious claims
prematurely before relevant discovery has been completed.”
Burger v. Owens Illinois, Inc., 966 A.2d 611, 618
(Pa.Super.2009), quoting Gerrow, supra at 781–782.
Moreover, “[t]he adverse party must be given adequate time to
develop the case and the motion [for summary judgment] will be
premature if filed before the adverse party has completed
discovery relevant to the motion.” Id.
Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d
916, 928-929 (Pa. Super. 2011) (footnote omitted).
Here, Landowners have had ample opportunity to request discovery
since the matter initially began in August of 2012. Moreover, we find that
evidence of EQT’s alleged “motives” is irrelevant to the question of whether
the plugging of the well will have a negative environmental impact, and does
not, therefore, raise a genuine issue of material fact. Additionally, from our
review of the record and the briefs, it appears that this is the first time that
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Landowners are making a discovery request. See Pa. R.A.P. 302 (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”). While Landowners claim they are not familiar with the
judicial process, we reiterate they have
chosen to proceed pro se and [they] cannot expect our court [or
the trial court] to act as [their] attorney. See Commonwealth
v. Sanford, 299 Pa.Super. 64, 445 A.2d 149, 150 (1982) (“We
decline to become appellant’s counsel. When issues are not
properly raised and developed in briefs, when the briefs are
wholly inadequate to present specific issues for review, a court
will not consider the merits thereof.”)
First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 337-38 (Pa.
Super. 1999). Accordingly, we conclude Landowner’s first argument
warrants no relief.
In Landowners’ second issue, they contend the court erred in issuing
the permanent injunction for various reasons: (1) the evidence submitted
by EQT does not satisfy all three of the elements required for a permanent
injunction, (2) administrative remedies have not been exhausted; and (3)
EQT has not come before the court with “clean hands.” Landowners’ Brief at
17.
With respect to the elements of a permanent injunction, Landowners
state that while EQT’s right to the well may be clear, it “has not submitted
adequate evidence that [it] would suffer any injury or harm that could not
be monetarily compensated if the gas well is not plugged” and it “also failed
to provide evidence that greater injury would result if the Permanent
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Injunction [was not] granted.” Id. at 18. Landowners’ argument focuses on
EQT’s claim that it would face the harm of fines from the regulatory agency,
the DEP, for being in violation of the plugging requirement. Landowners
allege EQT abandoned the well in 2007, and state they have been in contact
with DEP employees regarding the “abandonment” and plugging of the well
and “EQT has not been fined to date and it is very unlikely [it] ever will be.”
Id. at 19. Additionally, Landowners obscurely claim,
[A] more than reasonable amount of time has passed since the
plugging was statutorily required. EQT did not have any
concerns about [its] liability or possible environmental hazards
due to the well not being plugged, as required, for the many
years [it was] in violation of this statute. Now [it is] playing the
role of a prudent, concerned operator and alleging an urgent
necessity to avoid injury and harm because the well is required
to be plugged. In fact, circumstances have changed. A
[Department of Transportation (“DOT”)] certified plumber has
run a gas line from the gas well and it is now producing gas for
domestic household use. Because the well is no longer
statutorily abandoned (i.e. not producing in the prior 12
months), the plugging is now no longer statutorily required.
Id. (reproduced record citations omitted).
Lastly, with respect to their “unclean hands” argument, Landowners
point to the following: (1) EQT “intentionally ignored the plugging
requirement as this operation would have alerted [them] to the fact that
their lease, which was held by production with no provisions to extend it
without production, was no longer valid” and is evidenced by the fact that
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EQT continued the lease by payment of the semi-annual royalty;7 (2) EQT
refused “to negotiate terms of the well transfer;”8 and (3) EQT does not
qualify for injunction because “there is an administrative remedy provided by
the Oil and Gas Act” contained in 58 Pa.C.S. § 3251.9, 10
As noted supra,
[t]o be entitled to a permanent injunction, a party must
establish a clear right to relief, and must have no adequate
remedy at law, i.e., damages will not compensate for the injury.
J.C. Ehrlich Co. v. Martin, 2009 Pa. Super. 127, 979 A.2d 862,
864 (Pa. Super. 2009) (quoting Pestco, Inc. v. Associated
Prods., 2005 Pa. Super. 276, 880 A.2d 700, 710 (Pa. Super.
2005)).
…
The grant or denial of a permanent injunction is a question of
law. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659,
664 & n.4 (Pa. 2002). Regarding the trial court’s legal
determination, our standard of review is de novo, and our scope
of review is plenary. Id.; J.C. Ehrlich, 979 A.2d at 864. As in
all equity matters, however, we must accept the trial court’s
factual findings and give them the weight of a jury verdict where
they are supported by competent evidence. RESPA of Pa., Inc.
v. Skillman, 2001 Pa. Super. 30, 768 A.2d 335, 339 (Pa. Super.
____________________________________________
7
Landowners’ Brief at 20.
8
Id. at 21.
9
Id. Landowners cite “52 Section 601.501” in their brief, which does not
produce any statutory provision. Id. They also reference page nine in their
answer to EQT’s complaint, which does cite Section 3251. Therefore, we will
use that citation in our analysis.
10
Landowners also complain for the first time that the terms of the
permanent injunction “are unreasonable and are physically impossible for
anyone to comply.” Id. at 22. Because they did not raise this claim with
the trial court, it is waived on appeal. See Pa.R.A.P. 302.
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2001), abrogated on other grounds by Buffalo Township, 813
A.2d at 664 n.4.
Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal
Practical Knowledge, 102 A.3d 501, 505-506 (Pa. Super. 2014).
Initially, we note that contrary to Landowners’ unrelenting insinuation
that EQT had abandoned its interest in the well prior to filing its October 12,
2011, release and surrender of oil and gas lease documentation, the trial
court found EQT was still the owner of the well and its fixtures, which was
affirmed by this Court and the Pennsylvania Supreme Court. See Teska I,
supra. As such, EQT’s ownership established a clear right to relief. See
Buffalo Twp., supra (upheld finding that railroad did not abandon right-of-
way property, the property did not revert to landowners merely because of
nonuse, and therefore, the trial court properly enjoined the landowners from
interfering with property interest).11 Moreover, EQT established that as the
____________________________________________
11
We also note in Buffalo Twp., the Supreme Court opined on
abandonment in terms of an easement interest as follows:
In evaluating whether the user abandoned the property, the
court must consider whether there was an intention to abandon
the property interest, together with external acts by which such
intention is carried into effect. In order to establish the
abandonment of a right-of-way, the evidence must show that
the easement holder intended to give up its right to use the
easement permanently. Such conduct must consist of some
affirmative act on his part which renders use of the easement
impossible, or of some physical obstruction of it by him in a
manner that is inconsistent with its further enjoyment. Mere
nonuse by the railroad does not amount to abandonment.
(Footnote Continued Next Page)
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owner and operator of the well, it was legally required to plug the well in
conformity with DEP regulations. See 58 Pa.C.S. § 3203 (defining “owner”
and “operator”); see also 25 Pa. Code § 78.91 (“Upon abandoning a well,
the owner or operator shall plug the well under §§ 78.92 -- 78.98 or an
approved alternate method under section 211 of the act (58 P.S. § 601.211)
to stop the vertical flow of fluids or gas within the well bore[.]”); 58 Pa.C.S.
§ 3220 (“Upon abandoning a well, the owner or operator shall plug it in the
manner prescribed by regulation of the department to stop vertical flow of
fluids or gas within the well bore, unless the department has granted
inactive status for the well or it has been approved by the department as an
orphan well.”).
Likewise, EQT also demonstrated that an injunction was necessary
because the harm that was occurring, Landowners’ interference with its
property interest, could not be monetarily assessed. As EQT notes, it faces
fines because it “would be noncompliant with state and local environmental
laws, and unable to exercise [its] legal rights in accessing and controlling
[its] property.” EQT’s Brief at 24. See 58 Pa.C.S. § 3255(a) (“A person
_______________________
(Footnote Continued)
Buffalo Twp., 813 A.2d at 664-665 (internal citations and quotation marks
omitted).
Turning to the present matter, other than allegations of nonuse,
Landowners have not put forth any other argument to establish that EQT
effectively abandoned its property interest in the well.
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violating a provision of this chapter commits a summary offense and, upon
conviction, shall be sentenced to pay a fine of not more than $ 1,000 or to
imprisonment of not more than 90 days, or both. Each day during which the
violation continues is a separate and distinct offense.”); 58 Pa.C.S. § 3256
(“In addition to other remedies available at law or in equity for a violation of
this chapter, a regulation of the department, a departmental order or a
permit condition, the department, after a hearing, may assess a civil penalty
regardless of whether the violation was willful. The penalty shall not exceed
$ 25,000 plus $ 1,000 for each day during which the violation continues or,
in the case of a violation arising from the construction, alteration or
operation of an unconventional well, $ 75,000 plus $ 5,000 for each day
during which the violation continues.”).
To the extent Landowners claim EQT has not been fined and will not be
fined in the future, their argument amounts to nothing more than
speculation as they rely on bald assertions alleged in their pleadings12 and
did not present any other evidence to support their contention. Moreover,
with regard to Landowners’ challenge that plugging is now no longer
statutorily required because Landowners procured a plumber to run a gas
line from the gas well and it is now producing gas for domestic household
____________________________________________
12
See Landowners’ Answer to EQT’s Complaint in Civil Action and Claims
for Injunctive and Other Equitable Relief and New Matter, 6/18/2013, at 7;
Landowners’ Opposition to EQT’s Motion for Summary Judgment,
11/20/2014, at 13.
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use, we find this issue without merit for several reasons. First, it appears
that in addition to prohibiting EQT access to the well, Landowners are further
harming EQT’s legally-recognized property interest in the well by adapting it
without EQT’s consent. Second, as EQT points out,13 Landowners do not
point to any statutory provision, which permits their unauthorized
modification.
Lastly, with respect to Landowner’s “unclean hands” argument, we are
guided by the following: The Pennsylvania Supreme Court has explained the
doctrine of unclean hands as “a self-imposed ordinance that closes the doors
of a court of equity to one tainted with inequitableness or bad faith relative
to the matter in which he seeks relief, however improper may have been the
behavior of the defendant.” Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa.
1999), citing Shapiro v. Shapiro, 204 A.2d 266, 268 (1964).
In Lucey v. W.C.A.B. (Vy-Cal Plastics PMA Group), 732 A.2d 1201
(Pa. 1999), the Supreme Court further discussed what constitutes unclean
hands as follows:
The doctrine of unclean hands is derived from the
unwillingness of a court to give relief to a suitor who has
conducted himself so as to offend the moral sensibilities of the
judge, and the doctrine has nothing to do with the rights and
liabilities of the parties. In re Estate of Pedrick, 505 Pa. 530,
544, 482 A.2d 215, 222 (1984). This maxim is far more than a
mere banality. It is a self-imposed ordinance that closes the
doors of a court of equity to one tainted with iniquity or bad faith
____________________________________________
13
EQT’s Brief at 24.
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relative to the matter in which he seeks relief. This doctrine is
rooted in the historical concept of a court of equity as a vehicle
for affirmatively enforcing the requirement of conscience and
good faith. Thus, while equity does not demand that its suitors
shall have led blameless lives as to other matters, it does require
that they shall have acted fairly and without fraud or deceit as to
the controversy in issue. See Id. (citing Shapiro v. Shapiro,
415 Pa. 503, 506-507, 204 A.2d 266, 268 (1964) (quoting
Precision Instrument Mfg. Co. v. Automotive Maintenance
Mach. Co., 324 U.S. 806, 814-815, 65 S. Ct. 993, 997-998, 89
L. Ed. 1381 (1945))).
Lucey, 732 A.2d at 1204-1205.
The application of the doctrine to deny relief is within the
discretion of the [trial court], and in exercising [its] discretion
the [trial court] is free not to apply the doctrine if a
consideration of the entire record convinces [it] that an
inequitable result will be reached by applying it.
In re Bosley, 26 A.3d 1104, 1114 (Pa. Super. 2011), quoting Stauffer v.
Stauffer, 351 A.2d 236, 245 (Pa. 1976). “The bar of unclean hands is
applicable in Pennsylvania only where the wrongdoing of the plaintiff directly
affects the equitable relationship subsisting between the parties and is
directly connected with the matter in controversy.” Id., 351 A.2d at 244.
See also Equibank v. Adle, Inc., 595 A.2d 1284, 1287 (Pa. Super. 1991)
(“The doctrine does not bar relief to a party merely because his conduct in
general has been shown not to be blameless.”).
Here, Landowners’ claim that EQT was allegedly deceitful by ignoring
the plugging requirement and continuing to pay them royalties is disproved
by the fact that in the earlier declaratory judgment action, the trial court
concluded, and a panel of this Court agreed, that the continued payments by
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EQT of the flat rate royalty on the nonproductive gas well were not evidence
of a fraudulent misrepresentation because the lease was still in effect at the
time EQT proferred the lease payments. See Teska II, supra.
Furthermore, their argument that EQT acted with unclean hands by
purportedly refusing to negotiate terms of the well transfer is contradicted
by the fact that in Teska I, the panel determined EQT could have assigned
or sold its ownership of the well to Landowners, but was under no
obligation to do so. See Teska I, supra. Other than a bald assertion that
EQT included additional provisions designed to maintain involvement in the
future operation of the well, Landowners also do not present any factual
evidence that EQT acted fraudulently or deceitfully with respect to the
negotiations. See Lucey, supra.
Lastly, Landowners argue EQT does not qualify for injunctive relief
because there is an administrative remedy provided by Section 3251 of the
Oil and Gas Act.14 This contention, however, is similarly unavailing. As EQT
____________________________________________
14
Section 3251 provides, in pertinent part:
The department or any person having a direct interest in a
matter subject to this chapter may, at any time, request that a
conference be held to discuss and attempt to resolve by mutual
agreement a matter arising under this chapter. Unless otherwise
provided, conferences shall be held within 90 days after a
request is received by the department, and notice shall be given
by the department to all interested parties. A representative of
the department shall attend the conference and the department
may make recommendations. An agreement reached at a
(Footnote Continued Next Page)
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points out,15 Chapter 32 of Oil and Gas Act deals with oil and gas resource
development and does not concern disputes involving well ownership. See
58 Pa.C.S. § 3202 (declaration of purpose of chapter). Moreover, as stated
supra, EQT was under no legal obligation to assign its property interest to
Landowners and therefore, a conference remedy under Section 3251 was not
applicable to the present matter. While EQT may have not been amenable
in negotiations, Landowners have not demonstrated any wrongdoing on
EQT’s part directly affected the equitable relationship between the parties
and was directly connected with the matter at hand. Stauffer, 351 A.2d at
244. Therefore, Landowners’ second argument also fails.
Accordingly, we conclude the trial court did not err in granting EQT’s
motion for summary judgment and issuing a permanent injunction against
Landowners.
Order affirmed.
_______________________
(Footnote Continued)
conference shall be consistent with this chapter and, if approved
by the department, it shall be reduced to writing and shall be
effective, unless reviewed and rejected by the department within
ten days after the conference. The record of an agreement
approved by the department shall be kept on file by the
department and copies shall be furnished to the parties. The
scheduling of a conference shall have no effect on the
department's authority to issue orders to compel compliance
with this chapter.
58 Pa.C.S. § 3251(a).
15
See EQT’s Brief at 30-31.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2016
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