J-A18038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TODD AND KATHRYN HAFER                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellants

                    v.

ANADARKO E & P COMPANY, LP

                         Appellee                  No. 2263 MDA 2013


              Appeal from the Order Entered December 4, 2013
              In the Court of Common Pleas of Lycoming County
                       Civil Division at No(s): 11-02303


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 26, 2014



Court of Common Pleas of Lycoming County granting summary judgment in



       omplaint with prejudice. Upon review, we affirm.

     The trial court ably summarized the facts of this matter as follows:

     On May 15, 2006, the Hafers executed an Oil and Gas Lease with
     East Resources, Inc., for a term of five years with no provisions
     for extension beyond the initial five-year term unless oil, gas or
     other substances covered by the lease were actually being
     produced in paying quantities under the lease. Before April 28,
     2008, an agent for East Resources, Inc. approached the Hafers
     and negotiated a new five-year lease, beginning at the end of
     the existing lease primary term on May 15, 2011. During the

     ACRE 90 DAYS AFTER SIGN LEASE $1700 AN ACRE ON OR
     BEFORE THE EXPIRATION DATE 5/15/2011, $2,500 AN ACRE 90

                                                                   Five
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     years from May 15, 2011
     An extension payment of $2500 per acre was required as follows


       extend the primary term of this lease for an additional
       period equal to the primary term by paring or tendering to
       Lessor an extension payment of twenty five hundred
       ($2500.00) per acre payable at any time prior to the
       expiration of the primary term. If Lessee exercises this
       option, the primary term of this lease shall be considered
       to be continuous, commencing on the Effective Date hereof
       and continuing to the end of the extended primary term.

     The Oil and Gas Lease further provides for rental payments as
     follows.

       (6) RENTAL PAYMENT               This lease is made    on the
       condition that within ninety (90) days from the       Effective
       Date of this lease, Lessee shall pay to the Lessor    the sum
       or (See attached addendum, Clause 7) Dollars ($       .00) per
       acre for the first year. . . . .

     The attached Addendum, Clause 7 provides the following.

       7. Lessee agrees to pay Lessor in which three hundred
       dollars ($300.00) per net mineral acre to be delivered to
       Lessor within 90 days of the execution of this agreement
       and remaining One Thousand Seven hundred dollars
       ($1700.00) per net mineral acre due on or before May 15,
       2011. All rental due during the primary term of the lease
       will then be considered to be paid in full and no further
       rental payments will be due.

     The Lease also provides the following.

       (17) ACCEPTANCE       This lease contains all of the
       agreements and understandings of the Lessor and Lessee
       respecting the subject matter hereof and no implied
       covenants or obligations or verbal representations or
       promises have been made or relied upon by Lessor or
       Lessee supplementing or modifying this lease or as an
       inducement thereto.

     Ultimately, the Lease was assigned to [Anadarko]. The Hafers
     filed a Complaint-Assumpsit on December 8, 2011, alleging that
     they should have been paid $2500 per acre on or by August 13,


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J-A18038-14


      2011 based upon the Oil and Gas Lease executed on April 28,
      2008 as evidenced by a writing made prior to the execution of
      the Oil and Gas Lease.

Trial Court Opinion, 12/4/13, at 1-3 (citations omitted).

      Anadarko filed its motion for summary judgment on August 30, 2012.



the following conclusions of law:

      6. The [c]ourt concludes that the Oil and Gas Lease, including
         the specific reference in paragraph 6 to the attached
         addendum, Clause 7 listing the rental payments, represents
         the entire agreement between the parties and their assignee.

      7. The Oil and Gas Lease does not require a payment of $2500
         per acre to the Hafers on or by august 13, 2011.

      8. The parol evidence rule precludes this [c]ourt from
         considering the pre-
                      Yocca v. Pittsburgh Steelers Sports, Inc.,
         854 A.2d 425 (Pa. 2004).

Trial Court Opinion, 12/4/13, at 4.    The Hafers filed the instant appeal on

December 20, 2013, in which they present the following issues for our

review:

      1. Was the clear, written promise to exercise the optional
         extension of lease negated by an integration clause in one of
         the lease documents?

      2. If the parol evidence rule applied, based on an integration



Brief of Appellant, at 4.

      We begin with our well-established scope and standard of review:

      Our scope of review of an order granting summary judgment is
      plenary.   We apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there

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J-A18038-14


       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.

                                       ***
       When reviewing a grant of summary judgment, we are not


       an error of law or an abuse of discretion. Judicial discretion
       requires action in conformity with law on facts and
       circumstances before the trial court after hearing and
       consideration. Consequently, the court abuses its discretion if,
       in resolving the issue for decision, it misapplies the law,
       exercises its discretion in a manner lacking reason, or does not
       follow legal procedure.

McCausland v. Wagner, 78 A.3d 1093, 1099-1100 (Pa. Super. 2013)

(citations omitted).

       In their first issue, the Hafers contend that the three writings       the

handwritten schedule, the Lease, and the Addendum                 represent the

agreement offered by East Resources and accepted by the Hafers.               We

disagree. As the trial court succinctly explained,

       In this instance, the parties deliberately put the contract into
       writing. Therefore, in the eyes of this [c]ourt, that writing is the
       best and only evidence concerning their agreement.              That
       writing, the Lease[,] does not provide a payment of $2500 per
       acre to the Hafers on or by August 13, 2011. The Lease
       specifically refers to an Addendum, Clause 7, which lists the
       rental payments but that writing does not reference the
       handwritten, pre-contractual writing.

Trial Court Opinion, 12/4/13, at 5 (emphasis added). Furthermore, Clause

17 of the Lease contains an integration provision specifically excluding the

pre-

stating the parties intend the writing to represent their entire agreement is a

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J-A18038-14




                                                DeArmitt v. New York Life

Ins. Co., 73 A.3d 578, 589-90 (Pa. Super. 2013).         Thus, the trial court

properly concluded that the Lease and Addendum represent the entire

agreement between the parties and that the integration clause contained

within the Lease negated the handwritten, pre-contractual promise to extend

the Lease. Id.

      In their second issue, the Hafers argue that the trial court erred when

it granted summary judgment because the allegation of fraud, accident or

mistake was implicit in the pleadings as an exception to the application of

the parol evidence rule. We agree with the trial court that the Hafers waived

this argument.

      It is well settled that arguments cannot be raised on appeal if they

were not raised and preserved in the trial court.           Pa.R.A.P. 302(a).

                                                                     ourt does

not sit to review questions that were neither raised, tried, nor considered by

                  Dollar Bank v. Swartz, 657 A.2d 1242, 1245 (Pa. 1995)

(quoting Commonwealth, Dep't of Transp. v. Boros, 620 A.2d 1139,

1143 (Pa. 1993)).

      Instantly, the Hafers rely on Price v. Ross 489 A.2d 252 (Pa. Super.

1985), for the proposition that a pleading, otherwise sufficient, will not fail

                                                                           Id.

However, our review of the record reveals that the facts pled were

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J-A18038-14



insufficient to support a theory of fraud, accident, or mistake. Instead, the

Hafers filed a complaint in assumpsit, which made no mention of fraud,

accident or mistake. The Hafers did not amend their complaint or seek leave

to amend to raise a fraud, accident, or mistake claim. Similarly, the Hafers

did not assert such an argument or supporting facts in their opposition to



brief. Rather, they raised allegations of fraud, accident and mistake for the

very first time in their concise statement of errors complained of on appeal,



                                                     Opinion, 12/4/13, at 6.

Because the Hafers failed to timely raise and properly preserve this

argument, it is waived. Pa.R.A.P. 302(a); see also Dollar Bank, supra.

     Having found no misapplication of law, unreasonable exercise of

discretion, or improper l



McCausland, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014


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