PITTSBURGH – A state court judge has partially sustained objections from defendants recently added to litigation from a Western Pennsylvania couple, who alleged that an energy company illegally encroached on their property to construct a natural gas pipeline.
Joseph R. Zandarski and Michelle L. Zandarski of Cabot first filed suit in the Allegheny County Court of Common Pleas on Jan. 3, 2022 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.”
In an answer and new matter filed on Feb. 11, 2022, 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, 2022 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.
On Dec. 9, plaintiff counsel put forth a motion to file an amended complaint and add six defendants to the case: Pine Run Midstream, LLC; Pine Run Gathering, LLC; UGI Energy Services, LLC; Stonehenge Energy Resources Holdings III, LLC; UGI Pine Run, LLC and UGI Corporation, based upon evidence uncovered in the initial discovery process which suggested these entities also exercise control over the pipeline on the property.
Allegheny County Court of Common Pleas Judge Daniel D. Regan granted the motion on Dec. 12.
The newly-added defendants filed preliminary objections in the suit on Jan. 30, arguing the plaintiff failed to state a claim against corporate defendants, failed to state a claim for private nuisance and failed to allege facts in support of an award of punitive damages.
“All claims against corporate defendants must be dismissed because plaintiffs have not alleged any legal or factual basis to hold corporate defendants liable for any of the causes of action in the complaint. Plaintiffs allege that it was ‘defendants PennEnergy and/or Pine Run Midstream” which refused to resolve the boundary dispute, entered plaintiffs’ property without permission, cleared the timber and installed the pipeline. Plaintiffs do not allege that the corporate defendants had any involvement with the pipeline. Plaintiffs also have not alleged any facts which would allow the Court to hold corporate defendants legally responsible for Pine Run Midstream’s actions as the complaint alleges nothing more than typical parent-subsidiary type relationships between Pine Run Midstream and the corporate defendants,” per the objections.
“Plaintiffs’ private nuisance claim should be dismissed as to the corporate defendants and Pine Run Midstream because the claim is based in physical trespass, not nuisance. Here, plaintiffs allege that defendants entered their property without permission to ‘wrongfully clear the land and timber on the plaintiffs’ property and begin construction of a gas pipeline.’ Plaintiffs further allege that the continued physical presence of the pipeline constitutes a trespass on their property. These claims clearly amount to allegations of physical ‘trespassory invasion’ of their property, not a nuisance. As to corporate defendants, plaintiffs claim only that corporate defendants had a corporate relationship with Pine Run Midstream which relationship arose long after the gas pipeline was allegedly installed on plaintiffs’ property. Without factual allegations showing that corporate defendants acted in an ‘outrageous’ manner, plaintiffs’ request for punitive damages as to the corporate defendants fails as a matter of law and should be stricken from the complaint.”
UPDATE
On May 22, Allegheny County Court of Common Pleas Judge Mary C. McGinley sustained two of the defendants’ preliminary objections and overruled another.
“The first preliminary objection is sustained in part. Count V – conversion of timber is dismissed as against the corporate defendants (Pine Run Gathering, LLC, UGI Corporation, UGI Energy Services, LLC, UGI Pine Run, LLC and Stonehenge Energy Resource Holdings III, LLC). The pleading is sufficient as to remaining counts, which relate to continuous conduct. The second preliminary objection – failure to state a claim for private nuisance is sustained for the reasons cited in the preliminary objections. Count II of the amended complaint (private nuisance) is dismissed,” McGinley said.
“The third preliminary objection as to an award of punitive damages is overruled. This issue as well as the issues raised through the first preliminary objection may be re-presented following period of discovery. Defendants shall plead to the amended complaint within 30 days.”
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 defendants are represented by Brian S. Kane of Burns White, also in Pittsburgh and Shoshana Schiller of Manko Gold Katcher & Fox, in Bala Cynwyd.
Allegheny County Court of Common Pleas case GD-22-000092
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com