Uschock, W. v. Kriebel Gas

J-A08041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM M. USCHOCK AND DAVID IN THE SUPERIOR COURT OF
USCHOCK, CO-EXECUTORS OF THE PENNSYLVANIA
IRENE G. USCHOCK ESTATE

Appellants

v.

KRIEBEL GAS COMPANY AND RANGE
RESOURCES APPALACHIA, LLC

Appellee No. 955 WDA 2013

Appeal from the Order May 17, 2013
In the Court of Common Pleas of Westmoreland County
Civil Division at No.: 5618 of 2011

BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED AUGUST 29, 2014

William M. Uschock and David Uschock

appeal the May 17, 2013 order that sustained the preliminary objections of

This appeal concerns an oil and gas lease executed between Irene G.

Uschock1 (now deceased) and Kriebel Resources on or about February 12,

2001. In relevant part, the lease agreement permitted Kriebel Resources to

ount Pleasant Township,

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1
Irene G. Uschock was the wife of William M. Uschock.
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Irene G. Uschock and her husband, William M. Uschock. In pertinent part,

the lease agreement provided the following with regard to drilling rights:

1. Leasing Clause. [Irene G. Uschock] in consideration of
One ($1.00) Dollar in hand paid by [Kriebel Resources], receipt
of which is hereby acknowledged, grant and convey unto
[Kriebel Resources], its heirs, executors, administrators,
successors, and assigns, and warrant generally title to, all the
oil, gas, surface and Drilling Rights in, on and under [the
Property.]

* * *

2. Drilling Rights
gas and surface rights owned or claimed by [Irene G. Uschock]
in and under lands which are adjacent, contiguous to or form a
part of the lands above described by [Kriebel Resources] is
hereby granted the exclusive right of drilling and operating the
Property alone or conjointly with neighboring lands for producing
oil and gas by any means, and all rights necessary, convenient
and incident thereto . . . .

See

-eighth part Id.

At some point thereafter, Irene G. Uschock died and the executorship

of her estate passed to, amongst others, her husband William M. Uschock

-

Executor

pro se civil complaint against Appellees, who are

the successors-in- See Brief for

Appellees at 2; see also Rang

Matter, 12/7/2012, Exhibit 1, at 1-

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complaint was a confusing and intermixed discussion of facts and legal

conclusions. The complaint did not contain a factual history, nor did it

substantive legal research. In relevant part, Husband sought to recover the

drilling rights to the Property, and argued that the Agreement was

ambiguous with regard to what materials were to be extracted from the

Property, the amount to be extracted, and the methods that were to be used

in that extraction. Husband also asserted $1.5 million in damages.

On September 14, 2011, Kriebel filed preliminary objections to

join the other co-

claims were legally insufficient to establish a right to relief; and (3) Husband

See

Preliminary Objections, 9/14/2011, at 1-8. On December 13, 2011, the trial

legally and factually sufficient pleadings. The trial court also ordered David

and Richard Uschock to be joined as plaintiffs. Order, 12/13/2011, at 1-2.

On December 29, 2011, the Co-Executors filed an amended pro se

complaint that principally asserted the same causes of action, although there

was no longer any specific claim with regard to monetary damages. See Co-

-7. This first amended

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complaint comprised seven handwritten paragraphs that suffered from the

same infirmities as Husband

complaint did not contain a factual history and, by way of legal authority,

contained a single, incomplete citation to a 1983 precedent from the

Pennsylvania Supreme Court. Id. at 2 (generally citing U.S. Steel Corp. v.

Hoge, 468 A.2d 1380 (Pa. 1983)). Despite the cursory nature of this filing,

the scope of the Co-

Co-Executors argued that, under Hoge Butler v.

Charles Powers Estate, et al. Butler I

Kriebel did not own the rights to the natural gas contained in the Marcellus

Shale on the Property. Rather, the Co-

Id. at 3.

On January 18, 2012, Kriebel filed preliminary objections to the Co-

factual and legal insufficiency. On February 14, 2012, before the trial court

s preliminary objections, the Co-Executors submitted

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2
Nonetheless, on April 16, 2012, the
____________________________________________

2
On April 17, 2012, the trial court entered an order striking the Co-

requirements of Pa.R.C.P. 1033. See Pa.R.C.P. 103
filed consent of the adverse party or by leave of court, may at any time

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objections due to the Co-

to Pa.R.C.P. 1019(a). Order and Opinion, 4/16/2012, at 1-2. The trial court

granted Co-Executors leave to file another amended complaint. Id. at 2.

On May 4, 2012, Appellants3 filed a second amended pro se complaint.

amended complaint. In pertinent part, Kriebel argued that Appellants claims

for relief were legally insufficient under current Pennsylvania law. On August

preliminary objections. The trial court acknowledged the unsettled nature of

Order, 8/9/2012, at 1. Specifically, the trial court discussed Butler I,

stating that our

preliminary objections in the nature of a demurrer in a declaratory judgment

Opinion and Order, 8/9/2012, at 2. However, at the time that the trial court

entered its order, the Supreme Court of Pennsylvania had granted allowance

____________________________________________

3
For reasons not evident from the certified record or respective
submissions, Richard Uschock was not included as a named party plaintiff.

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of appeal in Butler I, see Butler v. Powers Estate ex rel. Warren, 41

A.3d 854 (Pa. 2012), but had not yet issued an opinion:

As in Butler I, [the trial court] cannot say unequivocally that
[Appellants] do not have a cognizable claim regarding the nature
of the mineral rights in Marcellus Shale and the natural gas
contained in it.

[It remains to be determined whether] (1) Marcellus Shale
constitutes a
the type of conventional natural gas contemplated in
Dunham v. Krikpatrick, 101 Pa. 36 (Pa. 1882) and
Highland v. Commonwealth, 161 A.2d 390 (Pa. 1960);
and (3) Marcellus Shale is similar to coal to the extent that

Butler I, 29 A.3d at 43.

* * *

As Butler I is currently on appeal in the Pennsylvania Supreme
Court, [the trial court] will not sustain the within Preliminary
Objections in the form of a demurrer under the present state of
the law in Pennsylvania.

Opinion and Order, 8/9/2012, at 2 (citations modified; block indent added).

On April 24, 2013, our Supreme Court issued an opinion overruling

Butler I. See generally Butler v. Charles Powers

Estate ex rel. Warren Butler II

argued that the Supreme Cour Butler II

claims for relief. That same day, the trial court entered an order sustaining

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the preliminary objections and dismissing the second amended complaint

with prejudice.

On June 5, 2013, Appellants filed a timely notice of appeal.4 On June

10, 2013, the trial court directed Appellants to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 17,

2013, Appellants timely complied. On June 21, 2013, the trial court issued

an opinion pursuant to Pa.R.A.P. 1925(a).

It is exceedingly difficult to discern the exact issues that Appellants

wish to pursue before this Court. In lieu of a statement which conforms with

our briefing requirements, see on will be

considered unless it is stated in the statement of questions involved or is

-long

brief suffers from numerous other deficiencies under our Rules of Appellate

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4
Appellants initially attempted to seek direct appeal before the Supreme
Court of Pennsylvania. In a letter dated June 3, 2013, the Supreme Court
ot among the
circumstances in which the Supreme Court has jurisdiction on direct appeal
from the court of common pleas. See

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brief should include a: (1) statement of jurisdiction; (2) copy of the order in

question; (3) statement of the scope and standard of review; (4) statement

of the questions involved; (5) statement of the case; (6) summary of the

argument; (7) argument for appellant; (8) a short conclusion; (9) copies of

the relevant opinions and pleadings from the trial court; and (10) a copy of

5(b) statement.

Instantly, Appellants have not included a proper statement of

the statutory provision, general rule or other authority believed to confer on

the appellate cou See Pa.R.A.P. 2114. While Appellants have

standard of review, see Pa.R.A.P. 2111(a)(3), that statement merely lists

ers no discussion of our

though, Appellants have not included an argument section in their brief, and,

therefore, have failed to abide by the requirements of Pa.R.A.P. 2119(a).

See P

as there are questions to be argued . . . followed by such discussion and

offered only the most cursory of arguments with respect to their position.

Discounting the factual morass of the statement of the questions involved,

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5
which reads completely as follows:

This case involves a breach of development as prescribed in the

Neither the shallow permeable sand conventional gas field, nor

s would a prudent operator.

This case also calls into question the recent Pennsylvania
Supreme Court decision in [Butler II] of April 24, 2013 as to

comparison of the [Hoge] case precedent. [Appellants] contend

shale rock gas estate regarding unconventional rock gas.

Even were we to construe the paragraphs reproduced above as

required by the Pennsylvania Rules of Appellate Procedure. Appellants have

failed to recite or apply any relevant standard of review, nor have they

offered any discussion of the legal contours specific to issues involving

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5
In relevant part, Pa.R.A.P. 2117 provides that a proper statement of
the case shall contain: (1) a statement of the form of action, followed by a
brief procedural history of the case; (2) a brief statement of any prior
determination of any court or other government unit in the same case; (3)
the names of the judges or other officials who determinations are to be
reviewed; (4) a closely condensed chronological statement, in narrative
form, of all the facts which are necessary to be known in order to determine
the points in controversy, with an appropriate reference in each instance to
the place in the record where the evidence substantiating the fact relied
upon may be found; and (5) a brief statement of the order under review.
See Pa.R.A.P. 2117(a). As the above-quoted text indicates, Appellants also
have not complied with Rule 2117.

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contract interpretation, oil and gas leases, or Marcellus Shale. Although

Appellants have invoked Butler II and Hoge, their reference to those

precedents is cursory, at best. Appellants baldly state that they believe that

Hoge should invalidate Butler II.6 Beyond invoking the axiomatic principle

of stare decisis, Appellants have not explained why the holding in Hoge

allegedly invalidates the High Cour Butler II through

legal analysis and citations to pertinent authorities.

This Court has described the proper format of an appellate brief, with

specific reference to the argument section and waiver, as follows:

In an appellate brief, parties must provide an argument as to
each question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 782 A.2d 517, 532
(Pa. 2001) (Castille, J., concurring). To do so places the Court in
the conflicting roles of advocate and neutral arbiter. Id. When
an appellant fails to develop his issue in an argument and fails to
cite any legal authority, the issue is waived. Commonwealth v.
Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).

In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013) (quoting

Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008))

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6
Similarly, Appellants baldly contend in their statement of the questions

gas fields. . . subject to severing a gas lease if the gas field is not exploited
rief at 4. Appellants have declined to

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legal citation to support an assertion precludes our appellate review of a

Id. (quoting In re J.B., 39 A.3d 421, 437 (Pa. Super. 2012)).

Consequently, we conclude that Appellants have waived their appellate

claims pursuant to Rule 2119(a). Although Appellants have flagged various

potential issues, they have not supported those claims with any kind of

discussion that approaches meaningful legal research or citation. See

briefing dictates under the Pennsylvania Rules of Appellate Procedure has

substantially impeded our ability to accurately identify, and adjudicate, the

issues in this case. See

material aspects with the requirements of these rules as nearly as the

circumstances of the particular case will admit, . . . and, if the defects are in

the brief or reproduced record of the appellant and are substantial, the

Thus, Appellants have waived any claims that they sought to raise

before this Court under Rules 2119(a) and 2101.7

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7
Assuming, arguendo
Rules of Appellate Procedure, their claim involving Hoge and Butler II is
without merit. In Hoge, the Pennsylvania Supreme Court held as follows

Gas is a mineral, though not commonly spoken of as such, and
while in place it is part of the property in which it is contained,
as is the case with other minerals within the bounds of a
freehold estate.
(Footnote Continued Next Page)

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J-A08041-14

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014

_______________________
(Footnote Continued)

* * *

[A]s a general rule, subterranean gas is owned by whoever has
title to the property in which the gas is resting. . . . In
accordance with the . . . principles governing gas ownership,
therefore, such gas as is present in coal must necessarily belong
to the owner of the coal, so long as it remains within his
property and subject to his exclusive dominion and control.

4
that relies upon Hoge
this Court. We discern that Appellants are arguing that Appellants retain the
rights to the Marcellus Shale natural gas on the Property because (1)
Hoge;
and (2) therefore, Appellees do not own the rights to the Marcellus Shale
natural gas on the Property because the Agreement did not contemplate
mineral rights. However, in Butler II, our Supreme Court specifically
declined to extend the Hoge holding to include Marcellus Shale natural gas:

natural gas is contained within shale rock, regardless of whether shale rock
is or is not []a mineral, such consequentially renders the natural gas therein
Hoge, 468 A.2d at 1383).

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