J-A04007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK BACHMANN, ELLEN M.                         IN THE SUPERIOR COURT OF
BACHMANN, ROBERT GAZY, LINDA                          PENNSYLVANIA
GAZY, DANIEL SMITH, DARRIN
JAVORNICKY, PHILLIP ALLEN, DENNIS
TUNNEY, RAND TUNNEY, WILLIAM
THOMAS, CHRISTY THOMAS, REGIS
ROHDE, MARJORIE ROHDE, JOSEPH
MULSHIN, DEBORAH MULSHIN,
RICHARD DADY, THOMAS DADY,
SHIRLEY FRANKOSKY, RODNEY ZABISH,
MICHAEL LEICHTY, GARY LEE STALEY,
DAVID BACHNER, TOMMIE LOU
BACHNER, WALLACE WOODHOUSE,
DEBRA WOODHOUSE, PAUL
SCHUMACHER, SUSAN SCHUMACHER,
CHRISTOPHER MCGARY, FRANKLIN
PLEIL, CITIZENS BANK OF
PENNSYLVANIA, JEREMY LAZZARI, ERIN
LAZZARI, AND MICHAEL GOETTLER,

                            Appellees

                       v.

EQT PRODUCTION COMPANY, INC.,

                            Appellant                No. 229 WDA 2014


                     Appeal from the Order January 8, 2014
              In the Court of Common Pleas of Washington County
                        Civil Division at No(s): 2012-488


BEFORE: BOWES, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 14, 2015


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A04007-15



      EQT Production Company, Inc. (“EQT”) appeals from the January 8,

2014 order granting plaintiffs herein summary judgment.        We reverse and

remand.

      On January 27, 2012, Mark and Ellen M. Bachmann instituted this

action to quiet title, for ejectment, and for a declaratory judgment against

EQT. The Bachmanns sought a declaration that EQT, as successor in interest

to Equitable Gas Company (“Equitable”), no longer owned the oil and gas

rights in their property located at 26 Rainey Road Extension, Eighty Four,

Pennsylvania.   The Bachmanns’ property consists of approximately forty-

nine acres and comprises a portion of a 133 acre plot of land subject to an

oil and gas lease owned by EQT.

      EQT’s oil and gas rights derive from a February 28, 1940 sale by

Jennie G. Myers to Equitable of the oil and gas rights to the 133 acres of

land that she owned. In the February 28, 1940 document, which was duly

recorded, Equitable was granted the oil and gas rights to 133 acres for a

period of one year from March 9, 1940, and thereafter “as long after the

commencement of operations as said land is operated for the exploration or

production of gas or oil, or as gas or oil is found in paying quantities thereon

. . . .” Lease, 2/28/40, at 2 (“Myers Lease.”). The document also provided

for certain royalty payments.

      In this lawsuit, the Bachmanns claimed that the lease was “void and of

no legal effect, and has expired by its own terms” since EQT “produced no

gas or oil under said Lease” and had made no royalty payments required by

                                     -2-
J-A04007-15



that document. Complaint, 1/27/12, at ¶ 7. The complaint failed to aver

that EQT did not conduct any operations for the exploration or production of

gas or oil. EQT filed an answer, new matter and counterclaim, to which the

Bachmanns responded.

      The Bachmanns filed a motion for summary judgment.            Two days

later, EQT filed a motion to either compel the joinder of indispensable parties

or, alternatively, for dismissal of the action. EQT noted that the Bachmanns

sought a declaration that the Myers Lease was void, the lease encompassed

133 acres of land, the land was subdivided, and other parties owned parcels

that were subject to the lease. EQT set forth that any declaration that the

Myers Lease was void would affect the royalty rights of all people currently

owning part of the subdivided 133 acres, that the Bachmanns had been

supplied the names of all the owners of the subdivided plot, and that the

Bachmanns neglected to join those parties as plaintiffs.     EQT’s motion for

joinder was granted, and thirty-one plaintiffs were added as additional

plaintiffs in an amended complaint in quiet title, ejectment, and declaratory

judgment.

      The amended complaint, which was filed on July 23, 2013, averred

that no royalties were paid to any plaintiff and that no gas was produced on

land owned by any plaintiff.     As with the first complaint, the amended

complaint failed to contain any averments that there were no operations

conducted by EQT for the exploration or production of gas on the 133 acres.




                                     -3-
J-A04007-15



       On August 20, 2013, EQT filed an answer to the amended complaint, a

new matter, and a counterclaim. It averred that the Myers Lease remained

valid and in full legal effect since the land subject to its terms had been

“operated for the exploration or production of gas or oil” or, alternatively,

that gas or oil had been found in paying quantities on the 133 acres.

Answer, New Matter, and Counterclaim, 8/20/13, at ¶ 64.             EQT further

averred that the Bachmanns had not received royalties since they had failed

to notify EQT, as required by the terms of the lease, that they purchased

part of the original Myers land.         In new matter and its counterclaim, EQT

alleged that operations for the exploration and production of natural gas

commenced in 1941 on the Myers land and had continued since that time.

Id. at ¶¶ 79, 80, 94, 95.

       Before answering the new matter and counterclaim to the amended

complaint, the Bachmanns,1 on September 11, 2013, filed a motion for

summary judgment. They set forth the following. A gas well known as API

# 37-125-00713 was drilled on their property, and no production from that

well occurred from December 2006 to December 2010. That well was the

only one drilled on the 133 acres to support the lease. During discovery, the

Bachmanns had requested that EQT “designate the appropriate person to
____________________________________________


1
   After joining the additional thirty-one plaintiffs, the Bachmanns, who were
still represented by the same lawyer, referred to those parties as et al. in
their subsequent pleadings. Thus, we consider these filings as initiated
primarily by the Bachmanns.



                                           -4-
J-A04007-15



discuss operations and maintenance of API No. 37-125-00713,” and EQT

designated Robert Gum.            Supplement to Plaintiffs’ Brief in Support of

Plaintiffs’ Motion for Summary Judgment Counterclaim, 11/8/13, at ¶ 3. At

his deposition, Mr. Gum related that the only maintenance performed on

that well was the placement of a meter on it in November 2010.                     In

response     to   the   Bachmanns’       request   “to   designate   an   appropriate

representative of EQT to testify concerning production of the subject well

[API No. 37-125-00713], EQT offered Debbi Dominguez.”                Id. at 4.   Ms.

Dominguez stated that she was unaware of any activity, other than the

placement of the meter, performed on the well.                Ms. Dominguez also

provided a production history for API No. 37-125-00713. That history was

included in the record and indicated that the well in question produced no oil

or gas from December 31, 2006, to December 1, 2010. Gas was produced

from that well starting again in December 2010.2

       EQT responded to the September 11, 2013 motion for summary

judgment filed by the Bachmanns. It noted that the motion was premature
____________________________________________


2
   On appeal, Appellees incorrectly assert that EQT designated
representatives for purposes of establishing production and operations “on
the Jenny Myers Lease from December 2006 through November 2010.”
Appellees’ brief at 7. The motion for summary judgment refutes this
assertion and sets forth that the designated representatives were only
familiar with operations and production relating to the well on the land.
There is no indication in the record that either Mr. Gum or Ms. Dominguez
were asked to be designated representatives as to operations conducted for
exploration of gas or as to operations conducted for the production of gas on
the 133 parcel subject to the Myers Lease.



                                           -5-
J-A04007-15



since the pleadings were not closed and that there was no documentation to

support the factual averments contained therein.       EQT also argued the

Bachmanns failed to meet their burden of proof in several material respects.

First, the motion discussed only actual gas and oil production, made no

allegation that EQT failed to conduct operations for the exploration of gas,

and made no averments that EQT did not perform operations for the

production of gas.

         Finally, EQT noted that it had not had the opportunity to take

necessary discovery regarding the thirty-one plaintiffs joined on July 29,

2013.     EQT stated that it intended to take discovery from those new

plaintiffs on various topics, including, but not limited to, their receipt and

acceptance of payments for the production of gas from EQT pursuant to the

Myers Lease.     On November 11, 2008, the Bachmanns replied to EQT’s

counterclaim and new matter and submitted, in a supplement, the necessary

depositions and documents to support the factual averments in their motion

for summary judgment.

        This appeal followed the grant of the Bachmanns’ motion for summary

judgment and the trial court’s declaration that the Myers Lease was no

longer valid due to a lack of the production of gas for four years on the well

drilled under the Myers Lease.   EQT raises these averments on appeal:

              1. Whether the trial court erred in granting summary
        judgment to the plaintiffs where the plaintiffs Motion for
        Summary Judgment was filed without evidentiary support and
        before the pleadings were closed, and was granted before EQT


                                    -6-
J-A04007-15


      had the opportunity to take discovery from the thirty-one new
      plaintiffs added as parties by the plaintiffs' Amended Complaint;

            2. Whether the trial court erred in granting summary
      judgment to the plaintiffs where (a) the plaintiffs' Motion for
      Summary Judgment was based on the lack of production of oil
      and/or gas from the leased premises, (b) the lease at issue
      remained in effect as long as operations were conducted for the
      exploration and/or production of oil and/or gas or oil and/or gas
      was found in paying quantities and (c) issues of fact existed as
      to whether operations for the exploration and/or production of
      oil and/or gas were continuously conducted on the leased
      premises.

Appellant’s brief at 5.

      We agree with both of EQT’s contentions and therefore reverse the

grant of summary judgment in favor of the plaintiffs herein.     Initially, we

outline our standard and scope of review.

             Our scope of review is plenary, and our standard of review
      is the same as that applied by the trial court. Our Supreme Court
      has stated the applicable standard of review as follows: An
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that
      the matter presented no genuine issue as to any material fact
      and that it is clear that the moving party was entitled to a
      judgment as a matter of law. In making this assessment, 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. As our
      inquiry involves solely questions of law, our review is de novo.

            Thus, our responsibility as an appellate court is to
      determine whether the record either establishes that the
      material facts are undisputed or contains insufficient evidence of
      facts to make out a prima facie cause of action, such that there
      is no issue to be decided by the fact-finder. If there is evidence
      that would allow a fact-finder to render a verdict in favor of the
      non-moving party, then summary judgment should be denied.




                                    -7-
J-A04007-15



Reinoso v. Heritage Warminster SPE LLC, 2015 WL 161934, 3

(Pa.Super. 2015) (en banc) (citation omitted).

     Where plaintiffs are granted summary judgment, it is necessary for

them prove that there was no genuine issue of material fact regarding each

element of their cause of action and that they are entitled to judgment as a

matter of law. Long v. Yingling, 700 A.2d 508, 514-15 (Pa.Super. 1997).

In Long, we reversed the grant of summary judgment in favor of a

defendant, and, on appeal, the plaintiff requested that summary judgment

be granted to her. We outlined all the elements of her cause of action and

noted that there was a genuine issue of material fact as to the existence of

one of those elements. We thus denied plaintiff summary judgment.

     Herein, EQT answered the Bachmanns’ motion for summary judgment

by pointing out that the evidence produced by the Bachmanns failed to

establish that there was no issue of material fact regarding certain “facts

essential to the cause of action” pled in the complaint.   Pa.R.C.P. 1035.3

(a)(2). Rule 1035.3 pertains to the burden of the responding party in the

summary judgment setting and provides in pertinent part:

            (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


                                    -8-
J-A04007-15



                  (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) (emphasis added).

      EQT thus satisfied its burden, did not rest on its pleadings, and pointed

out that the Bachmanns had not produced evidence that there was no

genuine issue of material fact as “to facts essential to the cause of action” in

quiet title. Specifically, EQT noted that there was no indication that it failed

to conduct operations for the exploration of gas and did not conduct

operations for the production of gas.       In its answer, new matter, and

counterclaim, EQT specifically averred that it conducted such activities and

had not forfeited its lease.

      The trial court, echoing the Bachmanns’ arguments on appeal, justified

its ruling by indicating that, since there was no genuine issue of material fact

regarding the lack of production of gas and oil in paying quantities for four

years on well API No. 37-125-00713, the lease was void.         In light of the

express language of the lease in question, we cannot agree that summary

judgment can be premised on this evidence. Since the Bachmanns sought

to terminate the oil and gas lease in question, it was their burden of proof to

establish that the lease was no longer in effect. T.W. Phillips Gas and Oil

Co. v. Jedlicka, 964 A.2d 13 (Pa.Super. 2008).          EQT, as successor in

interest to Equitable, continues to own the oil and gas rights to the 133 acre

Myers parcel “as long after the commencement of operations as said land is

operated for the exploration or production of gas or oil, or as gas or oil

                                     -9-
J-A04007-15



is found in paying quantities thereon . . .” Myers Lease (emphases added).

This language is clear and unequivocal.

      The Bachmanns and the trial court overlooked the emphasized

language and focused solely upon the language regarding production of gas

or gas in paying quantities. Summary judgment was premised solely upon

the lack of production of oil and gas from December 31, 2006 to December

1, 2010 on the well drilled on the acreage pursuant to the lease.         The

Bachmanns, as moving parties in a summary judgment setting, had to

establish that there were no operations for the exploration of gas or oil and

no operations for the production of gas or oil.       While the Bachmanns

characterize it as burdensome to require them to prove these facts and to

depose the other parties subject to the lease, we cannot change the

pertinent law. It was their burden of proof to establish that the lease was

void, and it was their burden of proof to establish that they were entitled to

summary judgment.

      As expressly indicated in their motion for summary judgment, the

Bachmanns asked for EQT to designate persons to discuss operations,

maintenance, and production as to the well drilled under the lease.

Critically, their summary judgment motion failed to indicate that they

requested EQT to designate the appropriate person to discuss any operations

related to exploration of gas on the 133 acres and to designate the

appropriate person to discuss any operations related to the production of gas

on the 133 acres.

                                    - 10 -
J-A04007-15



      Nothing in this adjudication should be construed as holding that the

lease remains valid.     Our ruling herein is premised solely upon the

premature nature of the request for summary judgment.               The Bachmanns

can   cure   the   present   deficits    by      demanding   that   EQT   designate

representatives to establish that it conducted operations for the exploration

or production of gas. We simply cannot permit a shortcut approach as to the

termination of an oil and gas lease. This lease does not require actual gas

production to remain effective, and summary judgment was premised solely

on the lack of actual gas production.

      Since it complied with Pa.R.C.P. 1035.3(a)(2), EQT did not, contrary to

the Bachmanns’ position on appeal, have to produce evidence of operations

for the exploration of gas on the 133 acres or evidence of operations for the

production of gas on the acreage. See Appellees’ brief at 16-17. Appellees

failed to secure the proper designated representatives on those subject

matters and focused solely upon the lack of production on the well drilled

under the lease.

      It is clear that the Bachmanns failed to establish that there was no

genuine issue of material fact that the Myers Lease was void under its

express terms. Thus, summary judgment was improperly entered.

      Order reversed. Case remanded. Jurisdiction relinquished.




                                        - 11 -
J-A04007-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




                          - 12 -
