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Scott Allen Fay v. Dominion Transmission

July 24, 2012

SCOTT ALLEN FAY,
PLAINTIFF
v.
DOMINION TRANSMISSION, INC., DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Defendant Dominion Transmission, Inc. moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment of Plaintiff Scott Allen Fay's claim for taking under the Pennsylvania Eminent Domain Code. (Doc. 40). The parties have fully briefed the issues and this matter is ripe for disposition. Background

Plaintiff Scott Allen Fay (hereinafter "plaintiff") initiated the instant action on June 11, 2010 by filing a fifteen count complaint against Defendant Dominion Transmission, Inc. (hereinafter "defendant") in the Court of Common Pleas of Tioga County, Pennsylvania. (Doc. 1-2, Compl.). In general, plaintiff's complaint alleges that, as a result of its operation of natural gas storage facilities near plaintiff's property, defendant has stored natural gas under plaintiff's property, extended a "buffer zone" to encompass part of plaintiff's property, and/or contaminated plaintiff's property and groundwater supply. (See id. ¶¶ 11-22).

Defendant removed this case to federal district court on July 6, 2010. (Doc. 1, Notice of Removal). Plaintiff filed an amended complaint on August 25, 2010. (Doc. 12-3, Am. Compl.). The amended complaint contains thirteen counts. Count I alleges trespass based on defendant placing natural gas storage facilities underneath plaintiff's land. Count II alleges trespass based on the defendant's negligent creation of a "buffer zone" around plaintiff's property that encompasses at least some of plaintiff's land. Counts III and IV allege unjust enrichment premised on defendant's unauthorized use of plaintiff's land for either gas storage or as a "buffer zone." Counts V and VI are for conversion of plaintiff's right to make use of his natural gas and oil rights. Count VII contends that defendant's storage of natural gas on plaintiff's land led to a chemical contamination of the surface of plaintiff's property and thus amounted to a chemical trespass. Count VIII raises a claim for private nuisance as a result of defendant's unauthorized use of plaintiff's land for gas storage. Count IX is a claim for negligence based on circumstantial evidence of defendant's alleged contamination of plaintiff's property. Count XI*fn1 seeks strict liability for defendant's alleged contamination of plaintiff's property. Count XIII*fn2 alleges that any claim made by defendant of a right to store natural gas under plaintiff's real property constitutes a taking under the Pennsylvania Eminent Domain Code. Count XIV asserts that defendant's claimed right to store natural gas under plaintiff's real property constitutes a taking under the United States Constitution. Count XV alleges that defendant's actions violate plaintiff's right to pure water under the Pennsylvania Constitution.

Defendant moved to dismiss all of the counts of plaintiff's amended complaint except for Count XIII--plaintiff's claim under the Pennsylvania Eminent Domain Code. (Doc. 14, Mot. to Dismiss). The court granted defendant's motion to dismiss on July 5, 2011, and Count XIII was the only count sent into discovery. (Doc. 28, Mem. & Order Dated July 5, 2011). Thus, the only question left before the court is whether defendant violated the Pennsylvania Eminent Domain Code, 26 PA. CONS. STAT. ANN. § 101, et seq.

Discovery is completed, and defendant has filed a timely motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 40, Def.'s Mot. for Summ. J.). The parties have briefed defendant's motion for summary judgment and filed statements of undisputed material facts, thus bringing this case to its current posture.

Jurisdiction

This court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. Plaintiff is a Pennsylvania citizen. Defendant is a Delaware corporation with its principal place of business in Clarksburg, West Virginia. The amount in controversy exceeds $75,000. Because the court is sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

Standard of Review

Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)).

"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

With respect to the legal standard for summary judgment motions, the Third Circuit Court of Appeals has indicated that, despite being entitled to "'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.'" Goode v. Nash, 241 F. App'x 868 (3d Cir. 2007) (quoting Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).

Our local rules require that both the proponent and opponent to a motion for summary judgment file a statement of material facts. L.R. 56.1. With respect to the statement of material facts, ...


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