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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A01037-15


     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



                                     -6-
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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

                                      -8-
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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.


                                     -9-
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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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J-A01037-15


         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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J-A01037-15



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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J-A01037-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2015




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