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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A18038-14
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,
-2-
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
-3-
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
-4-
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
-5-
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
-6-