PITTSBURGH – A Western Pennsylvania couple who alleged that an energy company illegally encroached on their property to construct a natural gas pipeline, have hit back at the company’s denials that it committed negligence, trespass and other offenses.
Joseph R. Zandarski and Michelle L. Zandarski of Cabot filed suit in the Allegheny County Court of Common Pleas on Jan. 3 versus Penn Energy Resources, LLC, of Pittsburgh.
The Zandarskis, the suit explained, own property on two adjacent parcels in Cabot, one of which contains their home, where they reside with their two minor children and have since March 2012.
“Defendant Penn Energy moved onto property in close proximity to the plaintiffs’ home and began constructing oil and gas production pad sites in early 2017. In late 2019, the plaintiffs discovered that the defendant appeared to have staked areas on the plaintiffs’ property to designate the construction of a gas pipeline. The plaintiffs, by and through counsel, advised the defendant, through its counsel, that it appeared as though the defendant was preparing to conduct actions that would encroach and trespass upon the plaintiffs’ property,” the suit said.
“On Dec. 4, 2019, the defendant, by and through counsel, advised the plaintiffs, by and through counsel, that the defendant did not believe the area it had staked where it intended to conduct its activity was on plaintiffs’ property. Despite knowing that the plaintiffs had informed the defendant that the activities that it intended to conduct were on plaintiffs’ property, the defendant knowingly and intentionally proceeded with those activities on or about the week of Jan. 6, 2020.”
On Jan. 7 and Jan. 15, 2020, the plaintiffs’ counsel delivered emails to counsel for the defendant setting forth the existence of a trespass and in the latter message, explaining that the plaintiffs were arranging a survey to confirm the trespass had occurred.
“In response to the plaintiffs’ request to negotiate the boundary dispute, the defendant simply denied the existence of any trespass and refused to postpone construction of its gas pipeline. After the defendant refused the plaintiffs’ multiple requests to resolve the disputed boundary, the defendant, its agents, servants, workmen and/or employees, contractors and/or sub-contractors, wrongfully cleared the land and timber on the plaintiffs’ property and began construction of a gas pipeline. John E. Dusheck is a registered Pennsylvania surveyor who performed the original survey of the parcel and surrounding real property in 2009. In June of 2020, Mr. Dusheck conducted a survey to ascertain whether the defendant installed a pipeline on the plaintiffs’ property,” the suit stated.
“Mr. Dusheck’s survey confirmed that the defendant’s claimed right-of-way and pipeline intruded upon the plaintiffs’ real property in the southwestern portion of parcel number 90-1F69-35A-0000. In spite of the plaintiffs’ explicit requests to rectify their legitimate boundary dispute prior to the pipeline’s construction, the defendant wrongfully disregarded the plaintiffs’ rights by installing a pipeline on the plaintiffs’ property.”
UPDATE
In an answer and new matter filed on Feb. 11, Penn Energy Resources denied that it encroached or trespassed on the plaintiffs’ property, or that it wrongfully cleared the land and timber on plaintiffs’ property to begin construction of a gas pipeline.
“Plaintiffs’ claims may be barred by the applicable statute of limitations. Plaintiffs’ compliant fails to state a claim upon which relief may be granted. Plaintiffs’ claims may be barred by the statute of repose. Plaintiffs’ claims are barred by the defense of laches. Plaintiffs’ claims may be barred by the economic loss doctrine,” the company’s new matter stated.
“Plaintiffs have failed to mitigate any and all alleged damages, and said failure is a bar and/or limitation on any potential recovery. Plaintiffs have failed to plead their claim with the requisite particularity. Plaintiffs’ trust class claims are barred as Penn Energy had lawful right of entry. Penn Energy acted in a reasonable, prudent and non-negligible manner at all times relevant and material hereto and in accordance with all local and state ordinances. Plaintiffs’ claims may be barred or reduced by the doctrines of res judicata, collateral estoppel, accordant satisfaction, waiver and/or release and discharge, if applicable as may be indicated through discovery.”
The new matter added that the plaintiffs’ claims may be barred by the doctrine of privilege, the doctrine of necessity, as Penn Energy had an implied easement of surface rights to conduct the operations alleged in plaintiffs’ complaint, as Penn Energy’s operations were reasonably necessary to the extraction of oil and gas from the mineral estate, and as Penn Energy’s rights related to its operations were exercised without a substantial burden to plaintiffs.
The defendants further argued that claims for punitive damages should be stricken.
In a Feb. 16 reply, plaintiff counsel argued that the defendant’s new matter asserted conclusions of law to which no response was required, and that the construction in question did intrude on the plaintiffs’ property.
For counts of negligence, private nuisance, intentional trespass to real property, negligent trespass to real property, conversion of timber and equitable relief, the plaintiffs are seeking the removal of the gas pipeline from the plaintiffs’ property, the restoration of the plaintiffs’ land to the condition before the installation of the gas pipeline, an adjudication that the defendant be enjoined from further trespasses onto the plaintiffs’ property, compensatory and punitive damages in excess of the arbitration limits of Allegheny County, pre-judgment and post-judgment interest, costs, statutory damages and any other legal and/or equitable remedies as this Court deems just.
The plaintiffs are represented by James G. Bordas III and Luca D. DiPiero of Bordas & Bordas, in Pittsburgh.
The defendant is represented by Brian S. Kane of Burns White, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-000092
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com