J-A20024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES E. PORTER, JR. AND MARY            :    IN THE SUPERIOR COURT OF
 PORTER, HUSBAND AND WIFE                 :         PENNSYLVANIA
                                          :
                   Appellants             :
                                          :
                                          :
              v.                          :
                                          :
                                          :    No. 16 WDA 2018
 CHEVRON APPALACHIA, LLC                  :

                 Appeal from the Order November 28, 2017
  In the Court of Common Pleas of Fayette County Civil Division at No(s):
                            1612 of 2017 G.D.


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 11, 2019

     James E. Porter, Jr., and Mary Porter, h/w (collectively, the “Porters”),

appeal from the order entered in the Court of Common Pleas of Fayette

County, granting the motion of Chevron Appalachia, LLC (“Chevron”), for a

preliminary injunction. Upon careful review, we affirm.

     The Porters are the owners of a 76-acre parcel of land in Lucerne

Township, Fayette County, which is subject to an oil and gas lease entered

into between the Porters and Atlas America, Inc., Chevron’s predecessor-in-

interest, on October 20, 2002 (“Lease”). Paragraph 1 of the Lease grants

Chevron exclusive rights as lessee:

     for the purpose of drilling, operation for, producing, and removing
     of oil and gas and all the constituents thereof, and of injecting air,
     gas, brine, and other substances from any source and into any
     subsurface strata and to transport by pipelines or otherwise across
     and through said lands oil, gas, and their constituents from the
     subject and other lands, regardless of the source of such gas or
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      the location of the wells, which right to transport gas from other
      properties across the leasehold premises shall survive the term of
      this lease for so long as the transportation of such gas may be
      desired by the Lessee, and of placing of tanks, equipment, roads,
      and structures thereon to procure and operate for the said
      products, together with the right to enter into and upon the lease
      premises at all times for the aforesaid purposes. . . .

Oil and Gas Lease, 10/20/02, at ¶ 1 (emphasis added).

      Paragraph 10 of the Lease provides that:

      The Lessor hereby grants in the Lessee the right at any time to
      consolidate the leased premises or any part thereof or strata
      therein with other lands to form an oil and gas development unit
      or units of not more than 640 acres, or such larger unit as m[a]y
      be required by state law or regulation for the purpose of drilling a
      well thereon, but the Lessee shall in no event be required to drill
      more than one well on any such unit or units.

                                      ...

      The Lessee shall effect such consolidations by executing a
      declaration of consolidation with the same formality as this oil and
      gas lease setting forth the leases or portions thereof consolidated,
      the royalty distribution and recording the same in the recorder’s
      office at the courthouse in the county in which the leased premises
      are located and by mailing a copy thereof to the Lessor at the
      address herein above provided for such use shall be payable to
      the owners of the parcels of land comprising said unit or units in
      the proportion that the acreage of each parcel bears to the entire
      acreage consolidated. Lessee shall have the right to amend, alter,
      or correct any such consolidation at any time in the same manner
      as herein provided.

Id. at ¶ 10.

      Prior to Chevron succeeding to Atlas’s interests in the lease, Atlas had

drilled multiple conventional, vertical wells on the Porters’ property that were

used to produce oil and gas from the Porters’ land. In or about 2017, Chevron

gave notice to the Porters that it intended to develop and construct a well pad

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on the Porters’ property to accommodate multiple, unconventional wells to

produce oil and gas from neighboring properties.

      On July 26, 2017, the Porters filed a complaint against Chevron, asking

the court to declare that Chevron may not use the surface of their land to

construct either a well pad site for use in the production of oil and gas from

adjoining lands, or an access road to and from the well pad site. The Porters

also requested preliminarily and permanent injunctions. On August 16, 2017,

Chevron filed preliminary objections in the form of a demurrer. The Porters

filed an answer to Chevron’s preliminary objections on August 21, 2107.

      While the preliminary objections were pending, Chevron notified the

Porters, through counsel, that it would be visiting the site to conduct an

environmental assessment and geotechnical investigation of the property in

preparation for the filing of an application for a permit with the Pennsylvania

Department of Environmental Protection (“DEP”). Chevron also notified the

Porters that it would be “staking” the property in order to comply with

Pennsylvania’s One Call System, which requires excavators to mark digging

sites in order to prevent interference with utility lines.

      On October 10, 2017, Chevron personnel, including Rodney Frazee, the

Surface Land Term Lead for Chevron, arrived at the property to begin staking

and found a lock on the gate to Porter’s property, which prevented vehicle

access. After staking the property, Frazee was approached by Mr. Porter, who

asked them to remove the stakes. Frazee indicated that he could not remove

the stakes, after which Mr. Porter threatened to remove them himself. When

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Frazee later returned to verify whether Mr. Porter had, in fact, removed the

stakes, he again encountered Mr. Porter, who told him “you best get off my

property while the getting’s good.”     N.T. Preliminary Injunction Hearing,

11/22/17, at 36. Interpreting Mr. Porter’s statement as a threat, Chevron

personnel left the property.

      On October 18, 2017, Chevron filed a motion for preliminary injunction,

seeking to enjoin the Porters from “preventing access to and development of

Chevron’s oil and gas rights.” Motion For Preliminary Injunction, 10/18/17, at

¶ 15. The Porters filed an answer and new matter, in which it asserted that

Chevron was not entitled to injunctive relief because it had not asserted any

cause of action against the Porters.       Thereafter, Chevron withdrew its

preliminary objections to the Porters’ complaint and, on November 16, 2017,

filed an answer thereto, as well as a counterclaim seeking declaratory and

injunctive relief.   On November 22, 2017, the court held a hearing on

Chevron’s preliminary injunction motion and, by order dated November 29,

2017, granted the requested relief. This timely appeal follows, in which the

Porters raise the following claims for our review:

      1. Whether the trial court abused its discretion by ordering the
      Porters to permit Chevron to conduct geotechnical testing on the
      surface of the Porter Farm where Chevron failed to provide any
      clear evidence that it would suffer immediate and irreparable
      harm if such testing was delayed?

      2. Where Chevron had never previously entered onto the surface
      of the Porter Farm to conduct any activities relative to the
      production of oil and gas from beneath adjoining lands, whether
      the trial court erred or abused its discretion by effectively


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       changing that status quo by ordering the Porters to permit
       Chevron such access?

       3. Whether the trial court committed an error of law or abused
       its discretion by effectively determining on the merits that
       Chevron has an absolute right to operate on the surface of the
       Porter Farm to produce oil and gas from beneath adjoining lands
       in order to support its grant of a mandatory preliminary
       injunction?

Brief of Appellants, at 3.

       Our review of a trial court’s order granting or denying preliminary

injunctive relief is “highly deferential”.1 Warehime v. Warehime, 860 A.2d

41, 46 (Pa. 2004). Thus, in reviewing the grant or denial of a preliminary

injunction, an appellate court is directed to “examine the record to determine

if there were any apparently reasonable grounds for the action of the court

below.” Id. The scope of our review is plenary. Id. at n.7.

       A petitioner seeking a preliminary injunction must establish six

prerequisites; failure to establish any one of them results in the denial of relief.

       To obtain a preliminary injunction, a petitioner must establish
       that: (1) relief is necessary to prevent immediate and irreparable
       harm that cannot be adequately compensated by money
       damages; (2) greater injury will occur from refusing to grant the
____________________________________________


1 In their appellate brief, the Porters assert that the relief granted by the trial
court constitutes a mandatory injunction, which would require greater scrutiny
on appellate review. See Kessler v. Broder, 851 A.2d 944, 947 (Pa. Super.
2004), quoting Mazzie v. Commonwealth, 432 A.2d 985, 988 (Pa. 1981)
(“[I]n reviewing the grant of a mandatory injunction, we have insisted that a
clear right to relief in the plaintiff be established.”). However, in this case,
the injunctive relief is merely prohibitory, requiring that the Porters refrain
“from taking any actions inconsistent or in interference with Chevron’s rights
to perform activities related to permitting and site testing on the Porter
property[.]” Order, 11/28/17.


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J-A20024-18


        injunction than from granting it; (3) the injunction will restore the
        parties to their status quo as it existed before the alleged wrongful
        conduct; (4) the petitioner is likely to prevail on the merits; (5)
        the injunction is reasonably suited to abate the offending activity;
        and (6) the public interest will not be harmed if the injunction is
        granted.

Brayman Const. Corp. v. Com., Dep't of Transp., 13 A.3d 925, 935 (Pa.

2011), citing Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt.,

Inc., 828 A.2d 995, 1001 (Pa. 2003).

        The Porters first allege that the court erred in finding that Chevron

established    the   existence   of   immediate    and   irreparable   harm,    not

compensable by money damages. They argue that Chevron made no showing

that a delay in performing the geotechnical testing “might result in the

expiration or termination of oil and gas leases, cause the loss of business or

marketing opportunities, waste resources already invested, jeopardize

existing contracts with third parties, or forfeit any favorable feature of current

market or regulatory conditions[.]” Brief of Appellants, at 12. Rather, the

Porters argue, the only delay-related harm shown in the record is the

inconvenience to Chevron of having to wait to conduct the tests at a later

time.

        The trial court was satisfied that Chevron established irreparable harm

not compensable by money damages.             First, the court noted our Supreme

Court’s pronouncement that, “[i]n light of the unique and intrinsic value of

land, interference with . . . contractual rights to ownership of that land must

be deemed irreparable harm.”          Trial Court Opinion, at 7, quoting New

Eastwick Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766,

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J-A20024-18



770 (Pa. 1968).    In addition, the court found that inability to access the

Porters’ land would cause continued delay in Chevron’s operations, which

would not only push back production on the well pad to be erected on the

Porters’ property, but also effect other unrelated production plans due to

resulting equipment delays.      The court found this possibility of delay

particularly significant because Chevron could only complete the necessary

geotechnical testing at certain times of the year when the ground was not

frozen.

      In light of the foregoing, we find the record contains reasonable grounds

for the court to conclude that Chevron would suffer irreparable harm in the

absence of an injunction. Warehime, supra. The Porters’ actions deprived

Chevron of contractual rights in land pursuant to the 2002 lease, which in and

of itself supports a finding of irreparable harm. See New Eastwick Corp.,

supra. Moreover, the testimony presented by Chevron supports a finding that

interference with Chevron’s access to perform the necessary testing would

result in delay-related costs that would be impossible to quantify.

      The Porters next assert that the trial court erred in finding that an

injunction will restore the parties to the status quo as it existed immediately

prior to the alleged wrongful conduct. Rather, the Porters argue that, because

Chevron had never previously entered or attempted to enter the land or

conducted any activities thereon, the injunction allowing Chevron access to

the land actually created a new status quo.




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      The trial court found that the status quo existing immediately prior to

the wrongful conduct was that “Chevron’s predecessor, Atlas, had access to

the Porters’ land under the Lease as well as in practice.            Chevron, as

successor-in-interest to Atlas under the Lease, is entitled to the same status.”

Trial Court Opinion, at 9.

      We agree with the trial court that whether Chevron itself had actually

exercised its rights under the Lease prior to the Porters’ wrongfully denying it

access to the land is irrelevant.      “The status quo to be maintained by a

preliminary injunction is the last actual, peaceable and lawful noncontested

status   which     preceded      the   pending    controversy.”        Allegheny

Anesthesiology Associates, Inc. v. Allegheny Gen. Hosp., 826 A.2d 886,

894 (Pa. Super. 2003).        Here, that “noncontested status” was Chevron’s

contractual right of access to the land for the purposes set forth in the Lease

agreement,      which   its   predecessor-in-interest   had   exercised    without

interference.    In denying Chevron access, the Porters interfered with the

status quo.     Accordingly, there were reasonable grounds for the court to

conclude that an injunction was necessary to restore the status quo.

      Finally, the Porters claim that the trial court erred by effectively reaching

the ultimate issue in this case and determining that Chevron “has the absolute

right to use the Porter Farm for whatever oil and production activities it

wants.” Brief of Appellants, at 15. The Porters claim that the trial court’s

interpretation of the Lease is incorrect and, properly interpreted, the Lease

limits Chevron to the drilling of one well.      The Porters cite the following

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language from Paragraph 10 to support their “one well” interpretation, which

grants:

      Lessee the right at any time to consolidate the leased premises or
      any part thereof . . . with other lands to form an oil and gas
      development unit or units . . . for the purpose of drilling a well
      thereon, but the Lessee shall in no event be required to drill more
      than one well on any such unit or units.

Oil and Gas Lease, 10/20/02, at ¶ 10 (emphasis added). The Porters further

argue that, although the unitization clause in Paragraph 10 authorizes

Chevron to “consolidate” the Porter Farm with other land to create oil and gas

development units, Chevron has not done so in accordance with the terms of

the Lease. In any case, the Porters argue, Paragraph 10 limits Chevron to the

drilling of “a well” on any such unit.

      We begin by noting that

      oil and gas leases are subject to the same contract law principles
      that apply to contract interpretation generally. When a writing is
      clear and unequivocal, its meaning must be determined by its
      contents alone. We must be mindful that the object in interpreting
      instruments relating to oil and gas interests, like any written
      instrument, is to ascertain and effectuate the intention of the
      parties.

Loughman v. Equitable Gas Co., LLC, 134 A.3d 470, 474 (Pa. Super. 2016)

(internal citations and brackets omitted). In construing a contract, we must

give effect to all of the provisions therein. Capek v. Devito, 767 A.2d 1047,

1050 (Pa. 2001).     “An interpretation will not be given to one part of the

contract which will annul another part of it.”       Id., quoting Cerceo v.

DeMarco, 137 A.2d 296, 298 (Pa. 1958) (citations omitted).


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      Here, the trial court interpreted Paragraph 10 to permit the drilling of

multiple wells. The court reasoned as follows:

      [The Porters] read “a well” to mean “only one well, and no more.”
      However, the indefinite article “a” does not always lend itself to
      this definition, and it must be interpreted within the larger context
      of the sentence[.] As an example, Article I, Section 5 of the United
      States Constitution states that “[e]ach House may determine the
      Rules of its Proceedings, punish its Members for disorderly
      Behavior, and, with the Concurrence of two thirds, expel a
      member.” [U.S. Const. art. 1, § 5] (emphasis added). Certainly,
      the [Framers did not] intend for each House of Congress to only
      have the ability to expel one member ever. Likewise, the sentence
      in Paragraph 10 of the Lease must be construed as a whole. After
      the sentence that states that Chevron can drill “a well thereon,” it
      continues by stating that “. . . Lessee shall in no event be required
      to drill more than one well on any such unit or units.” This clearly
      contemplates that Chevron may drill multiple wells on
      consolidated units. The language here does not limit Chevron to
      drilling only one well; it just provides that Chevron is not required
      to drill more than one well.

Trial Court Opinion, at 10-11.       The trial court further found that the

consolidation argument raised by the Porters was unavailing, because there

would be nothing to prevent Chevron from unitizing if required by the court.

We can discern no error in the trial court’s reasoning.

      Initially, the Porters’ assertion that the court determined that Chevron

had “the absolute right to use the Porter Farm for whatever oil and production

activities it wants” is factually incorrect. The trial court, at this preliminary

injunction stage, did not conclude that Chevron possessed an “absolute right”

to use the property for any and all oil and production activities. Rather, the

court’s grant of relief was limited to allowing Chevron access to the Porters’




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land “for the limited purpose of conducting necessary testing required to

obtain a DEP permit.” Trial Court Opinion, 2/27/18, at 13.

       In addition, the court did not exceed the proper scope of inquiry

regarding the ultimate merits of the case. In a preliminary injunction action,

the moving party, in order to prove that it is likely to prevail on the merits,

must establish a prima facie right to relief.      Synthes USA Sales, LLC v.

Harrison, 83 A.3d 242, 249 (Pa. Super. 2013)         Thus, where the terms of a

lease form the basis for a party’s request for injunctive relief, a court must,

necessarily, address the underlying merits by analyzing the terms of the lease

and interpreting its provisions in order to determine whether the party is likely

to prevail on the merits.2 See Santoro v. Morse, 781 A.2d 1220, 1229 (Pa.

Super. 2001) (because moving party must show he has reasonable likelihood

of success on merits, it is entirely reasonable and proper for court to consider

testimony going to merits at time of preliminary injunction hearing).

Accordingly, it was entirely proper for the court to interpret the terms of the

Lease in making a preliminary determination as to Chevron’s likelihood of

success on the merits.          We further find the trial court’s above-quoted

interpretation of Paragraph 10 to be reasonable, particularly in light of the

contract-law precepts that, in construing a contract, we must give effect to all


____________________________________________


2 Of course, a preliminary injunction proceeding does not fully and finally
adjudicate the parties’ rights, and the principles of res judicata and collateral
estoppel are inapplicable to any findings made by the court during those
proceedings. Santoro, 781 A.2d at 1229.

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J-A20024-18



its provisions and that an interpretation will not be given to one part of the

contract which will annul another part of it. Capek, supra.

      Because there existed reasonable grounds for the grant of a preliminary

injunction in favor of Chevron, Warehime, supra, we affirm the order of the

trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2019




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