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PANTHER MOUNTAIN LODGE, INC v. WAYMART WINDFARM

November 30, 2010

PANTHER MOUNTAIN LODGE, INC., PLAINTIFF
v.
WAYMART WINDFARM, L.P., DEFENDANT



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Magistrate Judge Carlson) (Judge Munley)

MEMORANDUM

Before the court for disposition is the report and recommendation of Magistrate Judge Martin C. Carlson. The report and recommendation suggests that the court grant Defendant Waymart Windfarm, L.P.'s motion for summary judgment with respect to Plaintiff Panther Mountain Lodge, Inc.'s contract claims and deny it with respect to Waymart Windfarm's counterclaim for attorney's fees. Panther has filed objections to the report and recommendation and it is ripe for disposition.

Background

The background facts of this case are largely uncontested. Plaintiff owns a 160-acre parcel of land in Clinton Township, Wayne County, Pennsylvania. (Doc. 10, Am. Compl. ¶ 3). Plaintiff and defendant entered into an Easement Agreement allowing defendant to use the land for a wind energy project. (Id. ¶ 6). Included on the property is an operations and maintenance ("O&M") building. Plaintiff contends that defendant was not granted the right to use and occupy this building. Rather, plaintiff merely consented to its presence on the premises. (Id. ¶ 8).

Plaintiff filed suit alleging that defendant is in default on the easement agreement for the following reasons: a) defendant maintains an office in the O&M building; b) defendant caused a well to be drilled on the property; c) defendant's use of the building and its adjacent lands prevents plaintiff from using approximately ten to twelve acres for hunting; d) defendant has permitted the general public access and use of the property;

e) defendant failed to remove a trailer, equipment and machinery after completion of construction; f) defendant did not provide gates that were required by the easement agreement; g) defendant's use of water has lowered the water table and consequent loss of a pond which had been on the property; and h) the guaranty for removal of the improvements on termination of the agreement is inadequate. (Id. ¶ 13).

Plaintiff asserts that the fair market value for the rent on the O&M building and its appurtenant land is $4,500.00 per month. (Id. ¶ 14). As damages for the defendant's "default" of the agreement, plaintiff seeks $220,500.00, the total rent due up to the filing of the amended complaint, and $4500.00 for each month thereafter. (Id. ¶ 14).

In the alternative, plaintiff raises issues regarding a second easement agreement that was entered into between the parties. Plaintiff alleges that this agreement was executed by the plaintiff under duress and is a void contract of adhesion. (Id. ¶ 20). Plaintiff seeks the same damages under this theory.

Defendant filed an answer to the complaint and a counterclaim that seeks attorney fees. (Doc. 18).

During a telephone conference with the magistrate judge, the plaintiff indicated that it was withdrawing its contract of adhesion claim. Thus the court issued an order deeming it withdrawn. (Doc. 35, Order of Court dated May 29, 2009). The sole remaining claim, therefore, is the claim that the defendant breached the easement agreement with regard to the O&M building.

At the close of discovery, the defendant moved for summary judgment. Magistrate Judge Carlson issued a report and recommendation suggesting that summary judgment should be granted to the defendant on the breach of contract claim, but denied on the counterclaim for attorney's fees. Plaintiff filed objections to the report and recommendation with regard to the contract claim, bringing the case to its present posture. Jurisdiction

This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332 as the plaintiff and defendant are citizens of different states. Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d ...


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