Russell v. Chesapeake Appalachia, L.L.C., 4:14-CV-00148
| Decision Date | 27 December 2018 |
| Docket Number | No. 4:14-CV-00148,4:14-CV-00148 |
| Parties | SHEILA RUSSELL, JIM SPLAIN, SUE SPLAIN, JANELLE SPLAIN, SUSAN HOUSEL, JOHN CHAFFEE, CAROL FRENCH, CLAUDE ARNOLD, LYNSEY ARNOLD, CAROLYN KNAPP, N.K., A MINOR BY CAROLYN KNAPP, GUARDIAN, M.K., A MINOR BY CAROLYN KNAPP, GUARDIAN, and ALLISON KOLESAR, Plaintiffs, v. CHESAPEAKE APPALACHIA, L.L.C., Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Brann)
Years of litigation have distilled Plaintiffs' multi-count complaint into a single claim for private nuisance against Defendant Chesapeake Appalachia, L.L.C. ("Chesapeake"). Chesapeake now moves for summary judgment, and for the following reasons, Chesapeake's motion will be granted.
On December 27, 2013, Plaintiffs filed a five-count complaint in the Court of Common Pleas of Dauphin County, Pennsylvania alleging various nuisance and negligence claims.1 Plaintiffs contend that Chesapeake's natural gas wells created excessive noise, traffic, dust, light, and air pollution, and have impaired Plaintiffs' water quality.2 Chesapeake removed the action to the Middle District of Pennsylvania,3 and over the past five years, this Court has adjudicated pretrial motions, and dismissed certain claims and parties from the suit.4 Earlier this year, Chesapeake moved for summary judgment.5
In that motion for summary judgment, Chesapeake argued in part that Plaintiffs' nuisance and negligence claims were barred by Pennsylvania's two-yearstatute of limitations.6 Plaintiffs subsequently withdrew their negligence claims.7 As a result, the only claim now pending before this Court is Plaintiffs' action for private nuisance.
To facilitate resolution of Chesapeake's motion for summary judgment, this Court ordered parties to submit supplemental briefing discussing whether Plaintiffs' nuisance claims were barred by Pennsylvania's two-year statute of limitations.8 Specifically, this Court asked for argument as to whether, for limitations purposes, Chesapeake's actions constitute a permanent or a continuing nuisance; whether the discovery rule, if it applies at all, tolls the limitations period; and whether Plaintiffs' claims should be severed prior to trial. Both parties submitted the requisite supplemental briefing, and the issues are now ripe for disposition.9
Summary judgment is granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as amatter of law."10 A dispute is "genuine if a reasonable trier-of-fact could find in favor of the non-movant," and "material if it could affect the outcome of the case."11 To defeat a motion for summary judgment, then, the nonmoving party must point to evidence in the record that would allow a jury to rule in that party's favor.12 When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the non-moving party.13
Under Pennsylvania law,14 a defendant is liable for private nuisance by intentionally and unreasonably invading another's use and enjoyment of his or her land.15 Nuisance actions are subject to a two-year limitations period.16Determining when a plaintiff's nuisance claim accrued depends on whether the alleged invasion constitutes a permanent or continuing nuisance.17 A permanent nuisance claim accrues at the time the plaintiff was first injured.18 A continuing nuisance claim accrues anew upon each new injury.19 As I explain below, to the extent Chesapeake's operations constitute a nuisance, that nuisance is permanent.
Consequently, Plaintiffs' claims are time-barred because Plaintiffs filed suit more than two years after they were first injured.
Pennsylvania courts use a multi-factor inquiry to determine whether an alleged nuisance is permanent or continuing.20 To begin, a court must decide whether the action concerns "a permanent change in the condition of the land" or whether the action "alleges separate, independent injuries."21 In answering that question, courts interpreting Pennsylvania law have considered "(1) the character of the structure or thing which produces the injury; (2) whether the consequences of the nuisance will continue indefinitely, and (3) whether past and future damages may be predictably ascertained."22
Pennsylvania courts in two cases—Cassel-Hess v. Hoffer and Graybill v. Providence Township—illustrate how these factors help differentiate between permanent and continuing nuisance claims. In Cassel-Hess v. Hoffer, the Superior Court of Pennsylvania concluded that a mosquito-infested lake was a permanent nuisance. There, plaintiffs sued their neighbor for trespass and nuisance after the neighbor constructed a commercial office building that caused standing floodwater to gradually accumulate on his property.23 The court applied the three-factor test and reasoned that (1) the character of the structure that produced injury—the lake—was a permanent feature of the neighbor's land; (2) the consequences of the nuisance—standing water and mosquitos—have been "unremitting and will continue indefinitely"; and (3) at the time the lake was formed, the plaintiff's past and future damages stemming from the lake could be predictably ascertained.24
Conversely, in Graybill v. Providence Township, the Commonwealth Court of Pennsylvania concluded that intermittent and recurring flooding constituted a continuing invasion. There, the neighbors of the plaintiff subdivided and built three houses on their property.25 The plaintiff alleged that the neighbors' development caused increased runoff and drainage that occasionally flooded the plaintiff's land.26 In concluding that the flooding constituted a continuing invasion, the court reasoned that (1) the character of the nuisance-producing-thing was a combination of the neighbor's acts (building the subdivision) coupled with occasional rainfall causing "consequential" damage to the plaintiff;27 (2) the consequences of the injury would not continue indefinitely because the plaintiffdidn't suffer flooding after every rain, alleging fewer than ten flooding incidents over a four-year period,28 and (3) future damages could not be predictably ascertained because, absent pure speculation, it would be impossible to calculate how many times the plaintiff's property may flood in the future and the severity of each flood.29
Upon this backdrop, I turn to the matter at hand and conclude that, to the extent Chesapeake's operations constitute a nuisance, that nuisance is permanent.
Under the first factor, I examine the character of the structure or thing that produced Plaintiffs' injuries. Here, it undisputed that Plaintiffs' injuries can be traced to either the natural gas wells themselves or Chesapeake's operations arising from its lawful drilling at those wells.30 When Chesapeake's physical wells were constructed, they became permanent features of the land.31 The Pennsylvania Supreme Court has stated that "[i]f the injury is caused by erecting a structure ormaking use of land which the defendant has a right to continue, the injury is regarded as committed once for all, and action must be brought to recover the entire damage, past and future."32 There is no evidence suggesting that Chesapeake does not have a right to lawfully engage in it its extraction activities. Accordingly, the character of the structure or thing that produced Plaintiffs' injuries spells permanence.
Under the second factor, I examine whether the consequences of the nuisance—i.e. Plaintiffs' injuries—will continue indefinitely. Plaintiffs' alleged injuries can be approximated into three categories, and each category supports the notion that Plaintiffs' injuries are permanent. First, Plaintiffs allege harms emanating from the wells themselves—i.e., noise created by well venting. When a nuisance producing structure is permanent, like a lake or a street, courts have deemed harms tied to the structure, like a mosquito infestation arising from the lake33 or damages caused by lowering the grade of a street,34 to be permanent injuries. Second, Plaintiffs allege harms that arise as a necessary corollary to Chesapeake's lawful natural gas extraction operation—i.e., traffic to and from the wells, increased noise and dust from that traffic, bright lights erected on the wellpad, and noise from equipment used at the wells to facilitate extraction activities. Injuries associated with a lawful business' ongoing operations, such as a tractor-trailer parking lot's "vibration and noise,"35 garbage dump's noxious odors36 and mine refuse dump's foul-smelling gasses37 have been categorized by Pennsylvania courts as permanent injuries.38 This conclusion squares with what litigants have conceded in at least one other jurisdiction in that odors and noise produced by natural gas compressor stations are permanent invasions.39 There is no evidence in the record suggesting that Chesapeake has plans to halt its lawful natural gas extraction business.40
Third, Plaintiffs allege harms that, although they may arise from Chesapeake's operations, they are harms that are not necessary to its extraction activities—i.e., water contamination and gas migration. Pennsylvania courts have held analogous emissions to be permanent invasions. These permanent invasions include a lead processing plant's seepage,41 a munitions facility's water-contaminating emissions,42 the dumping of hazardous waste,43 an oil well's failure to prevent comingling of salt and freshwater44 and a coal mine's destruction of a local spring.45
Plaintiffs seem to contest the permanency of Chesapeake's operations or the permanency of their injuries by arguing that since their harms occur unpredictably, unpredictable harms do not amount to a permanent change in the condition ofeither Chesapeake's land or the...
To continue reading
Request your trial