Opinion
No. 89 M.D. 2013
10-06-2014
Commonwealth of Pennsylvania, Pennsylvania Game Commission, Plaintiff v. Seneca Resources Corporation, Defendant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Seneca Resources Corporation (Seneca) filed a summary judgment motion to the Commonwealth of Pennsylvania, Pennsylvania Game Commission's (Commission) Complaint seeking injunctive and declaratory relief against Seneca relative to development of oil and natural gas under State Game Lands 39 in Venango County, Pennsylvania (Property). There are two issues before the Court: (1) whether there is any genuine issue of material fact; and, (2) whether Seneca is entitled to judgment in its favor as a matter of law. We grant in part and deny in part Seneca's summary judgment motion.
With its Complaint, the Commission filed a motion for preliminary injunction which Seneca answered. On June 28, 2013, the parties stipulated that since "Seneca has no current plans to access the oil and gas in the Property until such time as the parties' respective rights therein are determined by the Court[,]" the motion for preliminary injunction was withdrawn without prejudice, and Seneca agreed to provide 60 days advance notice of its intent to drill for oil or gas in the Property. Stip. at 2. By July 3, 2013 order, this Court continued the motion for preliminary injunction subject to the parties' agreement.
By May 28, 1928 deed (1928 Deed), Sancrik Lumber Company (Sancrik) transferred four tracts of land comprising 3,171.58 acres to the Commission (Contract L-81). The 1928 Deed expressly excepted and reserved "all the oil and gas in or under the herein[-]described lands, with the right to operate for same by ordinary means now in use." Complaint Ex. A at 9.
In a November 27, 1929 deed (1929 Deed), Sancrik granted and conveyed to United Natural Gas Company (United Natural Gas)
all the petroleum oil and natural gas in and under or which may be produced from the following described tracts of land situated in the Townships of Mineral, Victory and Irwin, County of Venango and State of Pennsylvania . . . .Complaint Ex. C at 1, 8-9.
. . . .
TOGETHER with the right to enter upon all of the above[-]described tracts of land at any and all times, for the purpose of operating for, producing and removing said petroleum oil and natural gas in the usual and ordinary manner.
By October 15, 1932 deed (1932 Deed), Sancrik transferred four tracts of additional land totaling approximately 483.2 acres to the Commission (Contract L-368). The 1932 Deed expressly excepted and reserved "all petroleum oil and natural gas together with the right to prospect for, drill and bore for, produce and remove the same." Complaint Ex. B at 5.
In its Complaint, the Commission avers that Seneca's rights contained in Contracts L-81 and L-368 (which collectively make up the Property) derive from the exceptions and reservations contained in the 1928 Deed and the 1932 Deed, and the 1929 Deed conveying Sancrik's oil and gas rights to United Natural Gas, since "[i]t is believed, and therefore averred that United Natural Gas merged with Seneca . . . ." Complaint at ¶9. The Commission further alleges that those same deeds conveyed to it the Property's surface rights. Complaint at ¶¶4-7. Moreover, the Commission avers that "Sancrik is the common Grantor of both [the Commission] and [Seneca]." Complaint at ¶8.
Seneca drilled a vertical test well targeting unconventional shale gas formations on Contract L-81. Complaint at ¶11. The Commission asserts that "Seneca plans on drilling horizontal wells on multiple well pads targeting unconventional shale gas on Contract L-81 by way of methods not ordinarily used during the time of the [conveyance] severance . . . and has, in fact, permitted at least one well for that purpose." Complaint at ¶12. The Pennsylvania Department of Environmental Protection issued Well Permit No. 37-121-45122-00-00 to Seneca on December 20, 2012. Seneca's Prelim. Obj. Ex. 1. The Commission contends that since modern horizontal drilling methods and hydrofracturing were not developed at the time of the Property transfers, Sancrik could not have contemplated nor intended to reserve the right to burden the surface estates with the wells, well pads, water impoundments and water usage necessary for those processes.
In Count I of its Complaint, the Commission sought a declaration from this Court that the Commission "has ownership of the oil, gas and development rights" associated with modern extraction of the oil and gas subject to Contract L-81 (1928 Deed) and Contract L-368 (1932 Deed). Complaint at 6. The Commission contends that at the time of the Property's conveyance in 1928, Sancrik "could not have contemplated nor intended to convey the right to burden the surface estate with monitoring wells, 5 to 10[-]acre well pads, incorporating more th[a]n one well per pad or 3-10[-]acre water impoundments in order to utilize the horizontal drilling method and hydrofracturing process which is currently used . . . ." Complaint at ¶24. The Commission also averred that Sancrik "could not have contemplated nor intended to convey the right to extensively use the surface to support the above[-]noted needs . . . nor to contaminate the remaining surface estate through the fluid injection process . . . ." Complaint at ¶25. In Count II of its Complaint, the Commission requested this Court to enjoin Seneca from engaging in any conduct that would unreasonably interfere with the Property.
Seneca filed preliminary objections seeking to have the Commission's Complaint dismissed because the Commission's claims were nonjusticiable and failed to state a claim upon which relief may be granted. By January 27, 2014 opinion and order, this Court sustained in part and overruled in part Seneca's preliminary objections. See Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Seneca Resources Corporation, 84 A.3d 1098 (Pa. Cmwlth. 2014) (Seneca I). Specifically, this Court overruled Seneca's objection that Count I of the Commission's Complaint failed to state a claim entitling the Commission to a declaration that Seneca's extraction of the oil and gas underlying the Property is limited by the 1928 Deed. Accordingly, this Court ordered that the litigation proceed on the limited issue of whether the 1928 Deed restricts Seneca's extraction methods. A status conference was held on April 1, 2014, following which this Court ordered the parties to conclude discovery by July 1, 2014. Now before this Court en banc is Seneca's motion for summary judgment as to the remainder of Count I of the Commission's Complaint.
This Court overruled Seneca's preliminary objection that the Commission's claims were not justiciable. The Court sustained Seneca's demurrer to a portion of Count I of the Commission's Complaint because Seneca's oil and gas rights could not revert to the Commission under any circumstances and, therefore, the Commission has no rights to Seneca's oil and gas. Finally, because the Commission could not establish a clear right to relief as to its reversion claim and not all of the requirements for a permanent injunction could be met, this Court dismissed Count II of the Commission's Complaint.
Pursuant to this Court's January 27, 2014 order, Seneca timely answered the remaining portions of Count I of the Commission's Complaint.
During the status conference, the Commission requested an additional six months in which to engage in discovery. This Court denied the Commission's request, admonishing: "The Commission initiated this action by filing a complaint on February 22, 2013 and should be prepared to put forth its case. This Court cannot countenance indefinite delay, especially in cases of great public importance, as is the instant matter." April 2, 2014 Order.
Summary judgment is properly granted where 'the pleadings, depositions, answers to interrogatories, and admission[s] on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.' Ducjai v. Dennis, . . . 656 A.2d 102, 113 ([Pa.] 1995). ' The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.' Marks v. Tasman, . . . 589 A.2d 205, 206 ([Pa.] 1991). Summary judgment may be entered only in those cases where the right is clear and free from doubt.
Seneca argues that there is no genuine issue of material fact and, as a matter of law, it is entitled to judgment in its favor because: (1) the 1928 Deed does not preclude it from accessing its oil and gas from adjoining land; and, (2) the 1928 Deed does not limit its surface activities on the Property beyond the "reasonably necessary" standard established in Chartiers Block Coal Co. v. Mellon, 25 A. 597 (Pa. 1893) and Belden & Blake Corporation v. Department of Conservation and Natural Resources, 969 A.2d 528 (Pa. 2009).
[T]he law of this Commonwealth is that one who has the right to remove subsurface minerals, also has the right to enter onto the surface and to make reasonable use of a portion of the surface to retrieve his property. Belden & Blake . . . . In Belden [&] Blake, the Pennsylvania Supreme Court held that the case in Chartiers . . . remains the seminal case setting forth a subsurface owner's rights with respect to the surface owner's rights. [Belden & Blake, 969 A.2d [at] 532 []n.[]6. In Chartiers, the [C]ourt held that:
As against the owner of the surface, each of the several purchasers [of subsurface rights] would have the right, without any express words of
grant for that purpose, to go upon the surface to open a way by shaft, or drift, or well, to his underlying estate, and to occupy so much of the surface, beyond the limits of his shaft, drift, or well, as may be necessary to operate his estate, and to remove the product thereof.
Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 511 (Pa. Super. 2013).
[Chartiers], 25 A. at 598.
The Supreme Court has also held that it is a general rule of law that, when anything is granted, all the means of attaining it and all the fruits and effects of it are also granted; when uncontrolled by express words of restriction all the powers pass which the law considers to be incident to the grant for the full and necessary enjoyment of it. Oberly v. H.C. Frick Coke [Co.], . . . 104 A. 864 ([Pa.] 1918). Consequently, a grant or a reservation of mines gives the right to work them, to enter and to mine, unless the language of the grant itself provides otherwise or repels this construction.
The bare right to work carries with it the right to use so much of the surface as is reasonably necessary. Id. The mine owner has the right to enter and take and hold possession even as against the owner of the soil, and to use the surface so far as may be necessary to carry on the work of mining, even to the exclusion of the owner of the soil. Id.
Moreover,
[a] subsurface owner's rights cannot be diminished because the surface comes to be owned by the government, or any party with statutory obligations, regardless of their salutary nature. A 'regular' surface owner cannot unilaterally impose extra conditions on the subsurface owner beyond those that are reasonable. [Department of Conservation and Natural Resources (DCNR)] may wish to do so because of its statutory duties, but its mandate does not allow it to do so unilaterally, nor does it shift the burden of seeking redress to the subsurface owner. That is, whatever its admirable obligations to the public, as concerns the owner of private property, the government and its agencies must be held to the same standard as any other surface owner.
DCNR may seek additional conditions because of its mandate, but it has no authority to impose them unilaterally without compensation.Belden & Blake, 969 A.2d at 532-33.
Finally,
effect must be given to all the language of the instrument, and no part shall be rejected if it can be given a meaning. If a doubt arises concerning the interpretation of the instrument, it will be resolved against the party who prepared it. . . . To ascertain the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.Consolidation Coal Co. v. White, 875 A.2d 318, 326-27 (Pa. Super. 2005) (citations omitted).
It is clear in the instant case, as the Commission's Complaint contends, that the 1928 Deed excepted and reserved "all the oil and gas in or under the herein[-]described lands, with the right to operate for same by ordinary means now in use." Complaint Ex. A at 9 (emphasis added). Based upon that language, the Commission claims that Seneca's extraction methods are limited to those "in use" in 1928 when the Deed was executed. We acknowledge that "now" is defined as "at the present time or moment," or "in the time immediately to follow: FORTHWITH." Merriam-Webster's Collegiate Dictionary 849 (11th ed. 2004). Thus, the phrase "now in use," limits extraction to those existing at the time the 1928 Deed was executed or immediately thereafter. Nevertheless, the Pennsylvania Supreme Court has declared: "[W]hen anything is excepted [in a deed], all things that are depending on it and necessary for obtaining it are excepted also." Walker v. Forcey, 151 A.2d 601, 606 (Pa. 1959); see also Pennsylvania Elec. Co. v. Waltman, 670 A.2d 1165, 1170 (Pa. Super. 1995). The 1928 Deed also granted the subsurface owner oil and gas rights, "with the right to operate for" those rights. "With" is defined, inter alia, as "inclusive of." Merriam-Webster's Collegiate Dictionary at 1438. "Operate" is defined, inter alia, to "BRING ABOUT, EFFECT." Id. at 869. Therefore, the 1928 Deed conveyance language can also be interpreted such that Sancrik intended to reserve oil and gas rights, together with the right to develop those rights as modern technology would allow. Consequently, this Court concluded in its January 27, 2014 opinion that the extraction methods language contained in the 1928 Deed is ambiguous. See Seneca I.
In the case of ambiguous instruments, intent is determined by the situation and conduct of the parties, surrounding circumstances, the object they had in view and the nature of the subject matter. Where an uncertainty exists as to applicability of vague or ambiguous language, the court may resort to extrinsic or parole evidence to explain, but not vary the written word of the deed. Consideration may also be given to subsequent acts of the parties.Hercules v. Jones, 609 A.2d 837, 841 (Pa. Super. 1992) (citations omitted; emphasis added). Accordingly, by its January 27, 2014 order, this Court afforded the parties an opportunity to produce evidence, in addition to the 1929 and 1932 Deeds, from which this Court could glean the intent of the ambiguous 1928 Deed language.
It is evident that the parties did not undertake discovery. Seneca attached to its summary judgment motion the Commission's May 2013 answers to interrogatories in which the Commission stated that in addition to the 1929 and 1932 Deeds, it will offer the testimony of licensed professional geologist Mike DiMatteo (DiMatteo) comparing oil and gas operations in use in 1928 and today. The Commission also indicated therein that it would offer the testimony of land management supervisors James Donatelli (Donatelli) and Mario Piccirilli (Piccirilli) relative to the effect of Seneca's operations on the Property. Seneca Summary Judgment Motion Ex. A. Also attached to Seneca's motion were excerpts from a Pennsylvania Historical and Museum Commission article published in the Spring 2009 issue of Pennsylvania Heritage magazine, which "highlights the practice of 'shooting' a well with high-explosive torpedoes, which was commonplace at the time of the conveyances at issue in this case." Seneca Summary Judgment Motion at 5; see also Ex. B. Seneca concluded that because there is no genuine issue of material fact, this Court may proceed to determine whether it is entitled to judgment in its favor as a matter of law.
The Commission's answers to interrogatories and response to request for production of documents pre-dated this Court's January 27, 2014 order and were specifically limited to the Commission's motion for preliminary injunction, which this Court stayed on July 3, 2013 based upon the parties' agreement. See supra note 1.
In paragraph 15 of the Commission's answer to Seneca's summary judgment motion, it stated:
[T]he intent of the parties must be first ascertained from the four corners of the deed. Notwithstanding the foregoing, . . . the [Commission] has evidence that horizontal drilling and hydrofracturing did not take place in 1928. . . . Seneca has no evidence that horizontal drilling or hydrofracturing ever did take place prior to the 1940[]s . . . . Seneca's general denials of the averments that horizontal drilling and hydrofracturing did not exist in 1928 . . . appear to create a genuine issue of material fact with no factual averment actually being made by Seneca.Commission Answer to Summary Judgment Motion ¶15. In paragraph 17 of its answer to the summary judgment motion, the Commission stated:
The government article attached [to Seneca's summary judgment motion] is neither verified, nor of evidentiary value, as it is not capable of being cross-examined. That article also does not describe 'those' surface impacts, but surface impacts in general, largely prior to 1928. By way of further reply, it is averred that surface impacts are not at issue in this case.Commission Answer to Summary Judgment Motion ¶17. In support of its position, the Commission attached DiMatteo's April 22, 2014 affidavit stating:
In 1928, there were no hydrofracturing activities taking place in Pennsylvania. Oil and gas wells could only be 'stimulated' by use of explosives which broke rock in shallow geologic formations. This is qualitatively different from perforating a casing and [] using large volumes of water and other chemicals under high pressure to fracture rock a mile beneath the surface. In addition, the primary targeted product in 1928 in Venango County was oil, not gas. Gas was commonly flared, so an exception of oil and gas would have been contemplating ordinary operations for oil, not gas.Commission Answer to Summary Judgment Motion, DiMatteo Aff.
The first hydrofracturing technology for gas began in 1947. Modern hydrofracturing entails a large scale use of water and a large infrastructure. In 1928, there were no horizontal drilling operations taking place.
Based on these facts, it is my opinion horizontal drilling and hydrofracturing were not 'ordinary methods now in use' in 1928.
Despite having been afforded ample opportunity to do so, the parties have supplied no more information to assist this Court in ascertaining the intent of the 1928 Deed than was available to the Court at the time Seneca's preliminary objections were decided. During oral argument, the Commission's counsel conceded that Seneca has the exclusive right to the subject oil and gas, and admitted that it cannot offer specific extrinsic evidence of the parties' intent at the time the 1928 Deed was executed. However, the Commission's counsel once again declared that the Commission could produce evidence that horizontal drilling and hydrofracking methods to extract oil and gas were not used in 1928, and that such methods would damage the Property, but did not yet have those facts available for the Court's review.
In the summary judgment motion and at argument, Seneca's counsel argued that there is no genuine issue of material fact, and that this Court must enter judgment in its favor as a matter of law since it has an undisputed right to the oil and gas, long-standing Pennsylvania case law grants it the right to enter the Property's surface to extract it, and the Commission has failed to adduce evidence that horizontal drilling and hydrofracking would cause more Property disturbance than wide-spread digging and torpedo methods used in 1928. Seneca's counsel represented that horizontal drilling and hydrofracturing from adjacent land to the Property, which is one method by which Seneca was considering to extract the oil and gas, would not affect the Property's surface.
Aside from the Commission's discovery answers, DiMatteo's affidavit and the Pennsylvania Heritage article, the only extrinsic evidence currently before this Court consists of the 1929 Deed and the 1932 Deed. During oral argument on Seneca's preliminary objections, the Commission stated that the 1928 and 1929 Deeds involve the same property, but since the 1928 Deed was the initial conveyance, it controls. Hence, the focus of the Commission's claims is on the 1928 and 1932 Deeds. Notwithstanding, the 1929 Deed granted to Seneca's predecessor, United Natural Gas, all oil and gas under the land conveyed therein "TOGETHER with the right to enter upon all of the above[-]described tracts of land at any and all times, for the purpose of operating for, producing and removing said petroleum oil and natural gas in the usual and ordinary manner." Complaint Ex. C at 9 (emphasis added). "Ordinary" is defined as "1. Occurring in the usual course of events; normal; usual." Black's Law Dictionary 1209 (9th ed. 2004). "Usual" is defined as "1. Ordinary; customary. 2. Expected based on previous experience, or on a pattern or course of conduct to date." Id. at 1684. The phrase "in the usual and ordinary manner" contains no time period. Thus, it could mean in 1929 or at the time the oil or gas is extracted. A plain reading of the language would seem to make the time period irrelevant so long as the process being used to extract the oil and gas was the "ordinary" and "usual" process.
The Commission states in its brief that "Sancrik is the common Grantor of both Commission and [Seneca]. Seneca's . . . rights regarding the oil and gas estate included in or under Contracts L-81 and L-368 derive from [the] conveyance from Sancrik to United Natural Gas" under the 1929 Deed, since "[i]t is believed . . . that United Natural Gas merged with Seneca." Commission Br. in Opp. to Prelim. Obj. at 2. Seneca acknowledges that it acquired its oil and gas rights pursuant to the 1929 Deed from Sancrik to United Natural Gas. Seneca Br. in Supp. of Prelim. Obj. at 2, 6. --------
The 1932 Deed expressly excepted and reserved "all petroleum oil and natural gas together with the right to prospect for, drill and bore for, produce and remove the same." Complaint Ex. B at 5 (emphasis added). This Court stated in Seneca I that
unlike the 1928 Deed, the 1932 Deed did not limit removal of oil and gas to 'ordinary methods now in use.' Complaint Ex. A at 9, Ex. C at 8. Rather, the 1932 Deed generally permitted 'prospect[ing] for, drill[ing] and bor[ing] for, produc[ing] and remov[ing] the same.' Complaint Ex. B at 5. Because the language is unrestricted, it unambiguously grants Seneca 'all the means of attaining' the oil and gas subject to the 1932 Deed. Humberston, 75 A.3d at 511.Id. at 1107. This Court concluded that based on the 1932 Deed, "there is no question that Seneca may extract its oil and gas underlying the land conveyed in the 1932 Deed by horizontal drilling and hydrofracturing or by any other generally-accepted means, while respecting the Commission's surface estate as the law requires." Id.
Moreover, Seneca argues that by limiting extraction of the oil and gas underlying the Property in the 1928 Deed to the methods used at that time would lead to an absurd result. "Before a court will interpret a provision in . . . a contract in such a way as to lead to an absurdity or make the . . . contract ineffective to accomplish its purpose, it will endeavor to find an interpretation which will effectuate the reasonable result intended." Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. 2005) (quoting Laudig v. Laudig, 624 A.2d 651, 654 (Pa. Super. 1993)). As a practical matter, in light of the Commission's purported concern over the effect of Seneca's extraction on the Property's surface, the parties to the 1928 Deed could not have reasonably intended to preclude the use of modern extraction methods which would arguably minimize potential surface impacts, i.e., using water and drill bits rather than picks and shovels and high-explosive nitroglycerin torpedo methods commonly used in 1928. See Seneca Summary Judgment Motion Ex. B, Pennsylvania Heritage article at 10.
Finally, the Commission has presented no evidence that horizontal extraction of the subject oil and gas by way of adjacent land is subject to the methods used in 1928. The Commission stated in its answers to interrogatories that DiMatteo will testify regarding the types of oil and gas operations in ordinary use in 1928, 1929 and 1932 and how they differ today. The Commission further submitted that DiMatteo can testify as to the damage that would result from Seneca's use of modern extraction methods on the land "owned by the Commission . . . including loss of opportunity for land acquisition or habitat projects occasioned by the Commission being in charge of its own assets rather than having them appropriated by Seneca." Seneca Br. in Support of Summary Judgment Motion Ex. A at 1, 4 (emphasis added). It offered that Donatelli "will testify as to the effect of Seneca's planned operations on Game Lands Management . . . [and] can also testify as to how he would factor in oil and gas operations on [the Property]." Id. (emphasis added). It also represented that Piccirilli
can describe . . . the effect of Seneca's operations on Game Lands Management[,] . . . the impact of [shallow well operations] on management and wildlife, the impacts of modern horizontal drilling and hydrofracturing operations, and can testify as to the local perspective on management and planning if Seneca is allowed to proceed with removing the Commission's management options.Id. (emphasis added). The Commission also stated:
The Commission is the agency charged with the protection and propagation of game and wildlife. . . . Seneca has never repudiated its use of the surface for modern horizontal drilling and hydrofracturing methods not in use in 1928. . . .
Seneca acquired leases outside the Game Lands after testing the economic viability of the shale in an attempt to circumvent even discussing its proposed actions with the Commission. The actions by Seneca have deprived the Commission of options for its assets including, but not limited to, planning surface use in its Game Lands Plan.Id. at 6. Similarly, DiMatteo confirmed in his affidavit that the Commission's concern that "[m]odern hydrofracturing entails a large scale use of water and a large infrastructure" on the Property, but confirmed that Seneca's proposed horizontal drilling and hydrofracturing would take place "a mile beneath the surface." Commission Answer to Summary Judgment Motion, DiMatteo Aff.
Viewing all of the facts from the pleadings, answers to interrogatories, admissions and affidavits in a light most favorable to the Commission and resolving all doubts as to the existence of any material fact against Seneca, as we must, we conclude that the 1928 Deed does not preclude Seneca from horizontally extracting its oil and gas beneath the Property from adjacent land. This permissible use carries with it the same reasonable effect of permitting Seneca to access and extract its oil and gas from under the Property while simultaneously respecting the Commission's surface rights in accordance with Chartiers and Belden & Blake. Because the Commission cannot make out a prima facie cause of action for declaratory judgment in its favor as to Seneca's horizontal extraction methods from adjacent land, we grant Seneca's summary judgment motion on that limited issue.
We cannot similarly conclude based upon the evidence before us that the 1928 Deed does not limit Seneca's methods of extraction from the Property's surface. Thus, Seneca's summary judgment motion on that issue is denied. Accordingly, this litigation shall proceed and a hearing will be held on the limited issue of whether the 1928 Deed restricts Seneca's oil and gas extraction methods from the Property's surface to ordinary means in use in 1928. The issue of the method(s) used to extract oil and gas in 1928 is not currently before the Court, and shall be addressed at a subsequent hearing only if the Court determines that the 1928 Deed limited the oil and gas extraction to those methods ordinarily in use in 1928.
Based upon the foregoing, Seneca's summary judgment motion is granted in part and denied in part.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 6th day of October, 2014, there being no genuine issue of material fact and Seneca Resources Corporation (Seneca) is entitled to judgment in its favor as a matter of law that the 1928 Deed between Seneca's predecessor, Sancrik Lumber Company, and the Commonwealth of Pennsylvania, Pennsylvania Game Commission (1928 Deed) does not preclude Seneca from horizontally extracting its oil and gas from adjacent land, Seneca's summary judgment motion is granted as to that issue. We further order that it is not clear based upon this record whether there is any genuine issue of material fact and whether Seneca is entitled to judgment in its favor as a matter of law regarding its oil and gas extraction methods from the surface of the land set forth in the 1928 Deed (Property), and thus Seneca's summary judgment motion on that issue is denied.
A hearing limited solely to the issue of whether the 1928 Deed restricts Seneca's oil and gas extraction methods from the Property's surface to those methods ordinarily in use in 1928 shall be scheduled promptly.
/s/_________
ANNE E. COVEY, Judge
Commonwealth v. Jash Intern., Inc., 847 A.2d 125, 130 n.13 (Pa. Cmwlth. 2004). "[A] record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense." Continental Cas. Co. v. Pro Machine, 916 A.2d 1111, 1115 (Pa. Super. 2007).