Robbins et al v. Dominion Transmission
Filing
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MEMORANDUM and ORDER granting 15 Motion to Dismiss ; Case shall proceed pursuant to the PA Eminent Domain Code.Signed by Honorable James M. Munley on 7/5/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT ALLEN FAY,
Plaintiff
:
No. 3:10cv1384
:
:
(Judge Munley)
:
:
v.
:
:
DOMINION TRANSMISSION, INC.,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
FRED J. ROBBINS, SR. and
:
No. 3:10cv1381
MARY ROBBINS,
:
Plaintiffs
:
(Judge Munley)
:
v.
:
:
DOMINION TRANSMISSION, INC.,
:
Defendant
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM AND ORDER
Before the court are defendant’s motions partially to dismiss the instant
complaints. Having been fully briefed and argued, the matters are ripe for
disposition.
Background
These cases arises from a dispute about the storage of natural gas
underneath land owned by the plaintiff. As to the action filed by Plaintiff Scott Allen
Fay, Defendant Dominion Transmission, Inc. owns and operates underground gas
storage fields in Tioga County, Pennsylvania, where plaintiff resides. (Amended
Complaint (Doc. 12 in No. 10cv1384) at ¶¶ 6-7). One of the fields here in question is
known in the industry as the “Tioga Field.” (Id. at ¶¶ 7-8). The second of the fields
in question is known as the “Meeker Field.” (Id. at ¶¶ 9-10). Plaintiff contends that
defendant has stored and continues to store natural gas in or underneath plaintiff’s
real property and on properties adjacent to plaintiff’s land. (Id. at ¶¶ 11-14).
Fay alleges that natural gas storage facilities are surrounded by “buffer
zones;” no natural gas can be extracted from such zones without interfering with the
operation of the storage fields. (Id. at ¶ 17). Extracting natural gas from land within
a “buffer zone” is “not commercially practical” for gas companies. (Id. at ¶ 18).
Plaintiff contends that the Pennsylvania Oil and Gas Act, 58 P.S. § 601.101, et seq.,
“contemplates the existence of buffer zones around underground gas storage fields.”
(Id. at ¶ 16). The buffer zone surrounding one or more of defendant’s fields in Tioga
county storage facilities includes all or part of plaintiff’s real property. (Id. at ¶ 19).
Because of these buffer zones, plaintiff has been prevented from entering into a
lease for the natural gas deposits located under the plaintiff’s real property or an
agreement to store gas on the property. (Id. at ¶¶ 20-21).
Fay also alleges that the defendant’s gas storage operations have resulted in
chemical and heaving metal contamination, including contamination from arsenic, to
his property. (Id. at ¶ 22). Defendant’s operations have also allegedly contaminated
plaintiff’s water supply. (Id. at ¶ 23).
Plaintiffs Fred and Mary Robbins own real property located at 1432 Tower Hill
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Road, Tioga, Pennsylvania. (Case No. 10cv1381, First Amended Compl. (Doc. 14)
at ¶ 4). Defendant is the owner and operator of several underground storage fields
in Tioga County, Pennsylvania. (Id. ¶¶ 7, 8, 9, 10). Included in their operations are
the Meeker Field and the Tioga Field. (Id.) Defendant has stored, and continues to
store, natural gas in or under plaintiffs’ real estate and on property adjacent to the
plaintiffs’ real estate. (Id. at ¶¶ 11 - 14).
Like Fay, the Robbins allege that the buffer zone around defendant’s storage
field prevents them from entering into a commercially reasonable lease or other
agreement for the exploration, extraction and collection of natural gas deposits
located on their property. (Id. ¶ 20). Additionally, the defendant’s gas storage
operations have led to the contamination of plaintiffs’ property and groundwater
supply with heavy metal contamination, including arsenic. (Id. ¶¶ 22 - 23).
Fay and the Robbins filed complaints in the Court of Common Pleas of Tioga
County, Pennsylvania on June 10, 2010. (See Doc. 1-2 in No. 10cv1381 and
10cv10384). Defendant removed the cases to this court and filed motions to
dismiss. After defendant filed a brief in support of that motion, the plaintiffs filed
motions to amend the complaint, which the court granted.
The two complaints are nearly identical. The court will describe Fay’s
complaint for convenience. The complaint contains fourteen counts. Count I alleges
trespass based on defendant’s alleged negligence in placing natural gas storage
facilities underneath plaintiff’s land. Count II alleges trespass in the defendant’s
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negligent creation of a “buffer zone” around plaintiff’s property that encompassed all
of plaintiff’s land. Counts III and IV allege unjust enrichment through plaintiff’s
unauthorized use of plaintiff’s land and the buffer zone around that land for gas
storage. Counts V and VI claim conversion through defendant’s allegedly improper
use of plaintiff’s land for storage and as a buffer zone. Count VII contends that
defendant’s storage of natural gas on plaintiff’s land led to a chemical contamination
of the surface of plaintiff’s property and thus amounted to a chemical trespass.
Count VIII raises a claim for private nuisance as a result of defendant’s unauthorized
use of plaintiff’s land for gas storage. Count IX is a claim for negligence based on
defendant’s alleged contamination of plaintiff’s property. Count XI1 seeks strict
liability for defendant’s alleged contamination of plaintiff’s property. Count XIII2
alleges that any claim made by defendant of a right to store natural gas under
plaintiff’s real property constitutes a taking under the Pennsylvania Eminent Domain
Code. Count XIV claims that defendant’s claimed right to store natural gas under
plaintiff’s real property constitutes a taking in violation of the Fifth Amendment of the
United States Constitution. Count XV is a claim that defendant’s alleged
contamination of plaintiff’s property constitutes a violation of the right to pure water
guaranteed in the Pennsylvania Constitution.
The defendant moved to dismiss the amended complaint as well, and the
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Plaintiff’s amended complaint strikes Count X.
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Plaintiff’s amended complaint strikes Count XII.
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parties briefed the issues, bringing the case to its present posture.
Jurisdiction
This court has jurisdiction pursuant to the diversity jurisdiction statute, 28
U.S.C. § 1332. Plaintiffs are Pennsylvania citizens. The defendant is a West
Virginia Corporation with its principal place of business in that state. The defendant
is the subsidiary of a Virginia Corporation. The amount in controversy exceeds
$75,000. Because the court is sitting in diversity, the substantive law of
Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d
154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Legal Standard
Defendant seeks dismissal of the complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) mandates dismissal of the
complaint when the court “lack[s] subject-matter jurisdiction.” F ED. R. C IV. P.
12(b)(1). Defendant’s motion pursuant to Rule 12(b)(1) contends that some of
plaintiff’s claims are not ripe, and thus not justiciable. In determining whether the
court has subject-matter jurisdiction, the court must decide “whether the allegations
on the face of the complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Taliaferro v. Darby Township Zoning Board, 458
F.3d 181, 188 (3d Cir. 2006) (citations omitted). “Challenges to subject matter
jurisdiction under Rule 12(b)(1) may be ‘facial’ or ‘factual.’” Turicentro v. American
Airlines, 303 F.3d 293, 300 n.7 (3d Cir. 2002). A facial attack serves to “contest the
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sufficiency of the pleadings, and the trial court must accept the complaint’s
allegations as true.” Id. If the attack is factual, the court “accord’s plaintiff’s
allegations no presumption of truth. In a factual attack, the court must weigh the
evidence relating to jurisdiction, with discretion to allow affidavits, documents, and
even limited evidentiary hearings.” Id. Defendant asserts that this factual standard
applies.
When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded
allegations of the complaint must be viewed as true and in the light most favorable to
the non-movant to determine whether “under any reasonable reading of the
pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township,
838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of
York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d
564, 565 (3d Cir. 1977) (per curium)). The court may also consider “matters of
public record, orders, exhibits attached to the complaint and items appearing in the
record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal
conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad.
of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’” a standard
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which “does not require ‘detailed factual allegations,’” but a plaintiff must make “‘a
showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the
speculative level.’” McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the conduct alleged.” Id.
Discussion
Defendants’ motions to dismiss contend that most of plaintiffs’ complaints
should be dismissed because plaintiffs’ sole remedy for these matters lies in the
Pennsylvania Eminent Domain Code. Only the portion of the complaint brought
pursuant to the Eminent Domain Code should proceed to discovery. The
Pennsylvania Eminent Domain Code establishes that “[t]his title provides a complete
and exclusive procedure and law to govern all condemnations for public purposes
and the assessment of damages.” 26 Pa. C.S.A. § 102(a). If the action complained
of amounts to a de facto taking, then the eminent domain code applies as the
appropriate remedy. Enon Valley Tel. Co. v. Market, 493 A.2d 800, 802 (Pa.
Commw. Ct. 1985). “A de facto condemnation occurs when an entity clothed with
the power of eminent domain substantially deprives an owner of the use and
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enjoyment of his property.” Id. at 802. “The landowner must establish that the
deprivation was the direct and necessary consequence of the entity’s action.”
Dickson City v. Malley, 503 A.2d 1035, 1036 (Pa. Commw. Ct. 1986).
At oral argument on the Fay matter, the plaintiff conceded that these matters
should proceed under the Eminent Domain Code only. Fay’s counsel, who also
represents Fred and Mary Robbins, stated that “I believe the Eminent Domain Code”
controls. (Transcript of Proceedings Held June 16, 2011 (Doc. 26) at 13). The
cases, counsel agreed, “should be proceeded on that basis,” and “[n]othing else.”
(Id. at 14, 15). Plaintiffs could be “made whole” through proceedings pursuant to the
Eminent Domain Code. (Id. at 15). Counsel also affirmed that the Eminent Domain
Code provides the sole remedy for the Robbins’s case as well. (Id.).
Defendant’s motions to dismiss seek dismissal of all claims except the claim
brought pursuant to the Eminent Domain Code. Since the plaintiffs agree that their
claims should proceed under that statute, the court will grant the motions as
unopposed. The only count remaining in both complaints will be Count XIII. The
cases will continue under the Pennsylvania Eminent Domain Code, as appropriate.
Accordingly:
AND NOW, to wit, this 5th day of July 2011, the Defendant’s motions to
dismiss (Doc. 15 in 10cv1381, Doc. 14 in 10cv1384) are hereby GRANTED. The
cases shall proceed pursuant to the Pennsylvania Eminent Domain Code, 26 Pa.
C.S.A. § 101, et seq.
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BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT
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