                            [J-48-2019] [MO: Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


 ADAM BRIGGS, PAULA BRIGGS, HIS                :   No. 63 MAP 2018
 WIFE, JOSHUA BRIGGS AND SARAH H.              :
 BRIGGS,                                       :   Appeal from the Order of the Superior
                                               :   Court dated April 2, 2018,
                      Appellees                :   Reconsideration Denied on June 8,
                                               :   2018, at No. 1351 MDA 2017
                                               :   Reversing the Order of the
               v.                              :   Susquehanna Court of Common
                                               :   Pleas, Civil Division, dated August 8,
                                               :   2017 at No. 2015-01253.
 SOUTHWESTERN ENERGY                           :
 PRODUCTION COMPANY,                           :   ARGUED: September 12, 2019
                                               :
                      Appellant                :


                      CONCURRING AND DISSENTING OPINION


JUSTICE DOUGHERTY                                       DECIDED: January 22, 2020
       I join the majority’s holding that the rule of capture remains effective in

Pennsylvania to protect a developer from trespass liability where there has been no

physical invasion of another’s property. In so holding, the majority correctly recognizes

that if there is such a physical invasion the rule of capture will not insulate a developer

engaged in hydraulic fracturing from trespass liability. As I agree with both propositions,

I also agree the matter should be remanded for further proceedings involving a specific

inquiry into a physical invasion. I respectfully dissent, however, from the notion that this

question must be determined by the Superior Court on the present record, and would

instead remand to the trial court for completion of the discovery that was forestalled by

erroneous summary judgment, and for trial, if necessary.
       The learned majority has expertly explained the rule of capture and its purpose in

our jurisprudence related to oil and gas drilling; in my view, the rule was a reasonable

innovation in response to the inherent nature of underground gas and oil deposits, that

is, their “fugitive” nature, and their tendency to move freely deep inside the earth and

“escape” across surface property lines “without the volition of the owner.” Westmoreland

& Cambria Nat. Gas Co. v. DeWitt, 18 A. 724, 725 (Pa. 1889). The majority also correctly

recognizes the Superior Court erred in focusing — in its decision not to apply the rule in

this case involving hydraulic fracturing — on the “artificial” mechanisms of fracking.

However, I cannot agree with the majority’s rationale and disposition for the following

reasons.

       First, my review reveals the majority’s repeated suggestion that the plaintiffs did

not consistently make allegations of a physical invasion in their trespass case is

erroneous and misleading. See, e.g., Majority Opinion, slip op. at 8, 9, 10, 11, 17, 18, 25.

As the majority itself recognizes, fracking — by definition — involves the injection of fluid

and proppants into the earth, with the expected and intended result they will move

horizontally in all directions, for long distances, to create new fractures (or join with

existing ones) to allow drainage up to the driller’s wellbore. See id. at 4-5, quoting from

EPA (“These fractures can extend several hundred feet away from the wellbore.”). See

also Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 7 (Tex. 2008) (fracking

fluid travels “sometimes as far as 3,000 feet from the well”); id. at 33 n.34 (Willett, J.,

concurring) (typical fracture runs 2,500-4,500 feet from wellbore) (citation omitted).

Indeed, at every stage of the litigation, there was no dispute among the parties that

plaintiffs alleged a trespass — which by definition involves a physical invasion1 — caused

1See, e.g., Majority Opinion, slip op. at 19 (“In Pennsylvania, a trespass occurs when a
person who is not privileged to do so intrudes upon land in possession of another, whether
willfully or by mistake.”).


                             [J-48-2019] [MO: Saylor, C.J.] - 2
by fracking — which by necessity involves underground injection and dispersal of fluid

and proppants across great distances of underground territory.              See, e.g., Majority

Opinion, slip op. at 9 (noting Southwestern’s argument in support of summary judgment

that it did not physically invade Plaintiffs’ property). Compare id. at 27 (observing Plaintiffs

did not expressly mention a physical intrusion in response to defendant’s motion for

summary judgment) with id. at 9-10 (noting Plaintiffs used intrusion verbiage in their

motion for partial summary judgment). See also Coastal Oil, 268 S.W.3d at 37 (Willett,

J., concurring) (“[Fracking] involves the injection of fluids across lease lines, but . . . is not

a trespass because [it] is not wrongful because [it] generates societal and economic

benefits that outweigh any harm to individual operators.”). I reject the notion that Plaintiffs

had to use the magic words “invasion” or “intrusion” at every turn in order to apprise

Southwestern of the nature of their trespass claim, and I cannot agree with the majority’s

unfair characterization of the plaintiffs’ case as somehow lacking in this regard.

       Additionally, and for the same reason, I cannot agree that the Superior Court

considered this pivotal question of physical intrusion sua sponte, as the majority posits,

see Majority Opinion, slip op. at 19. In my view, the panel simply confronted the issues

as the parties themselves have litigated them, and I would emphasize it is for this same

reason Southwestern did not challenge the Superior Court’s holding in this regard. See

id. at 14 (Southwestern did not question Superior Court’s ruling based in part on the

premise that Plaintiffs’ claims were grounded on allegations fluid/proppants were injected

into their property).2


2  I reach the same conclusion regarding the question presented in this appeal. Contrary
to the majority’s view that the idea of a physical intrusion is “not fairly subsumed within
the issue framed for our review,” see Majority Opinion, slip op. at 21, it is clear to me that
the phrasing of the question as pertaining to fracking fluids that are “injected solely on or
beneath the driller’s own property” inherently includes the idea that those fluids — while
injected at the driller’s wellbore site — are by definition injected with the intention that they



                              [J-48-2019] [MO: Saylor, C.J.] - 3
       In fact, the complaint states that, by the use of its “units” adjacent to Plaintiffs’ land,

Southwestern “continues to extract natural gas from under the land of the Plaintiffs,” and

that these actions were a “past and continuing trespass” on Plaintiffs’ land. Complaint at

¶¶8-9, 11, 14; see also Answer to New Matter and Counterclaim at ¶61.1 (“Plaintiffs allege

that natural gas is being extracted from under their land by way of wells, the boreholes of

which are located on [Southwestern’s leaseholds].”). As the majority notes, Southwestern

did not file preliminary objections in the nature of a demurrer; instead, Southwestern has

consistently focused, inter alia, on the rule of capture as their defense to the Plaintiffs’

trespass action. See, e.g., Answer, New Matter and Counterclaim at ¶¶36-39.

       Moreover, Plaintiffs’ three sets of interrogatories served on Southwestern included

numerous questions about the horizontal distance from each side of a Southwestern

borehole from which Southwestern reasonably anticipated extracting natural gas, and the

filings related to both summary judgment motions included discussion of trespass by

physical intrusion beneath Plaintiffs’ property. For example, Plaintiffs opposed summary

judgment by arguing, inter alia, that truthful answers to these interrogatories — the subject

of an outstanding motion to compel the trial court ultimately denied as moot — would

“readily demonstrate the extent of the intrusion under” their property. Brief of Plaintiffs in

Opposition to [Southwestern’s] Supplemental Brief in Support of Motion for Summary

Judgment and in Opposition to Plaintiffs’ Motion for Partial Summary Judgment at 3.3


will be disseminated horizontally in all directions for great distances, and the majority itself
concedes there is “some evidentiary support . . . for the concept that fracturing fluid and/or
proppants may have been propelled beneath Plaintiffs’ land.” Id. at 25 n.17.
3I disagree with the majority’s suggestion discovery was complete when judgment was
entered. Majority Opinion, slip op. at 9 (stating Southwestern’s summary judgment
motion was filed “[a]fter the parties engaged in discovery”). It is clear that Plaintiffs’
outstanding motion to compel Southwestern’s response to interrogatories was denied as
moot in the summary judgment order. Order dated 8/8/17; see also Majority Opinion, slip
op. at 9-10. Plaintiffs expressly objected to determination of the motion for summary



                              [J-48-2019] [MO: Saylor, C.J.] - 4
Plaintiffs also relied on an expert report indicating at least one of Southwestern’s

boreholes is located within 63 feet of their land, when the relevant “fracking area” could

be approximately 371 feet each way from a borehole. Id. at 2. See also Plaintiffs’ Brief

in Opposition to SWN’s Motion for Summary Judgment and in Support of Their Motion for

Summary Judgment at 4 (explaining a trespass “may be made by causing or permitting

a thing to cross the boundary of the premises”) (citation omitted); 6 (noting that, with

respect to horizontal fractures caused by injection of fluids, nothing can be done to control

their direction) (citation omitted); 16-17 (explaining, with respect to statute of limitations,

manner of entry onto Plaintiffs’ land is by hydrofracturing far underground). Under the

circumstances, in my view, the argument that Southwestern’s fracking activities effected

a physical intrusion upon Plaintiffs’ property has always been at the crux of the present

litigation.

        Finally, I make the following observations relating to the rule of capture in the

context of fracking of non-conventional shale deposits. First, although I recognize natural

gas has a “fugacious” nature regardless of whether it lies in an open pool or in a

sandstone or shale deposit, it is clear that natural gas trapped in shale drains naturally

much more slowly than from a pool or from other materials; indeed, this is the very reason

developers engage in fracking, to make shale gas development productive faster, that is,

more efficient and economically viable. The practice exploits natural shale fractures and

creates new ones, and with present technology, much remains mysterious about

precisely what happens so far beneath the surface.            However, I do not view this

uncertainty as a basis to absolve developers from trespass liability if a plaintiff can prove

the fluids and proppants they intentionally injected into their wellbores travelled


judgment because discovery was outstanding and the case was therefore not “ripe for
resolution.” Plaintiffs’ Motion to Stay Resolution of Defendant’s Motion for Summary
Judgment, 1-2.


                             [J-48-2019] [MO: Saylor, C.J.] - 5
horizontally across property lines and caused drainage of gas previously trapped under

the plaintiff’s land.

       Moreover, the industry routinely divides royalties payable on natural gas produced

among multiple landowners on whose property the extraction is known to be taking place,

i.e., methods exist to measure or estimate these amounts. See Appellees’ Brief at 25-

26; 58 P.S. §34.1 (“Where an operator has the right to develop multiple contiguous leases

separately, the operator may develop those leases jointly by horizontal drilling unless

expressly prohibited by a lease. In determining the royalty where multiple contiguous

leases are developed, in the absence of an agreement by all affected royalty owners, the

production shall be allocated to each lease in such proportion as the operator reasonably

determines to be attributable to each lease.”); see also Bailets v. Pa. Turnpike Comm’n,

181 A.3d 324, 336 (Pa. 2018) (“Generally, under Pennsylvania law, damages need not

be proved with mathematical certainty, but only with reasonable certainty, and evidence

of damages may consist of probabilities and inferences.”). I do not view the difficulty as

a barrier to fact-finding, and I disagree that only the General Assembly can provide the

necessary relief to small, landlocked landowners such as Plaintiffs here. See Majority

Opinion, slip op. at 23.4

       Given the majority’s holding that the rule of capture does not preclude a trespass

if there is a physical invasion, I would affirm the Superior Court’s disposition insofar as it

vacated summary judgment and remanded for further factual development. Briggs, 184

4 Notably, Plaintiffs once had a lease with Southwestern, which was not renewed.
Appellees’ Brief at 39. It appears Southwestern, having leased the properties on three
sides of Plaintiffs’ parcel and potentially recovering drainage from beneath all of their land
by fracking, see id. at 3, had minimal incentive to enter into such a renewal. I am therefore
wary of the proposition that landowners who want to benefit from the shale gas beneath
their property should simply enter into leases, or drill their own wells. See Briggs v. Sw.
Energy Prod. Co., 184 A.3d 153, 163 (Pa. Super. 2018) (“Hydraulic fracturing is a costly
and highly specialized endeavor, and the traditional recourse to ‘go and do likewise’ is
not necessarily readily available for an average landowner.”) (citation omitted).


                             [J-48-2019] [MO: Saylor, C.J.] - 6
A.3d at 164. Given the state of the record, which was apparently not complete at the time

the trial court erroneously entered summary judgment, I would remand the matter to that

court for further proceedings, including the completion of discovery on the factual question

of physical invasion, and trial thereon as necessary.

       Justice Donohue joins this opinion.




                            [J-48-2019] [MO: Saylor, C.J.] - 7
