Co-authors Paul Yale and Rusty Tucker

The concurrence and dissent in Briggs et al v. Southwestern Energy Production Company appears to be of little help to property owners complaining of trespass by fracking where there is no invasion of frack fluids on to the neighbor’s property. Justice Dougherty, joined by Justice Donohue, agreed with the majority 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.” And they believed the majority correctly recognized that “if there is such a physical invasion the rule of capture will not insulate a developer engaged in hydraulic fracturing from trespass liability.”

The dissenters spent most of their time on issues of pleading and procedure, arguing that it was erroneous to suggest that Briggs didn’t allege a physical invasion. They would have affirmed the Superior Court’s disposition insofar as it vacated summary judgment and remanded it for further factual development, in particular completion of discovery on the factual question of physical invasion.

Majority’s response to the dissent

In its opinion the majority discussed Pennsylvania pleading requirements. Those issues will be addressed by lawyers and litigants in future cases but does not appear to have informed the substantive result: Vindication of the rule of capture – to an extent – in oil and gas production.

The majority conceded that it is a reasonable assertion that hydraulic fracturing causes liquid and proppants to travel some distance from the wellbore, but the distances may vary from case to case. Thus, plaintiffs asserting a trespass cause of action in Pennsylvania must still allege – even if on information and belief – that their lands have been invaded.

The majority further stated that while it may be true that ‘at every stage’ Briggs alleged a trespass, that again speaks only to their legal theory, and not to whether the complaint stated the elements of such cause of action. The majority explained, “the word ‘trespass’ does not itself automatically contain within it all essential facts to make out a trespass cause of action.” Further, “a plaintiff alleging trespass by invasion of property must aver something more than mere drainage of minerals form the subject property, which by itself implicates the rule of capture.” A plaintiff claiming trespass by fracking must at least use “some words alleging physical intrusion – and not merely by inference based on generalized characteristics of a particular drilling method . . . – if for no other reason than to give the defendant a chance to deny the allegation and avoid an implied admission.”

The majority concluded that Briggs’ failure to plead a physical invasion could not be cured by “ … post-hoc references to scientific evidence concerning hydraulic fracturing in general, expressions of jurists in other jurisdictions, subsequent questions propounded by a plaintiff during discovery, or subsequent advocacy in opposition to summary judgment.”

A musical interlude by John Prine. He says its a random collection of unrelated memories that don’t mean much. His songs never don’t mean much.