The opinion of the court was delivered by: (Judge Munley)
Before the court for disposition is Defendant UGI Utilities/Central Penn Gas's motion to dismiss and to strike. The matter has been fully briefed and is ripe for disposition.
Defendant UGI Utilities/Central Penn Gas (hereinafter "defendant") is in the business of selling natural gas to the public. (Doc. 1, Compl. ¶ 2). In furtherance of its business, defendant owns and operates underground gas storage fields in Tioga County, Pennsylvania. One field is known in the industry as the "Tioga Field" and another is known as the "Meeker Field." (Id. ¶¶ 8-12). The Tioga and Meeker Fields are either adjacent to or close to real property owned by Plaintiffs Fred J. Robbins, Sr. and Mary Robbins (hereinafter "plaintiffs"). Plaintiffs contend that defendant stores natural gas under plaintiffs' real property and under property adjacent to plaintiffs' property. (Id. ¶¶ 13-16).
Pennsylvania law provides the right of eminent domain to Defendant UGI Utilities/Central Penn Gas to the extent that it is "empowered to transport, sell or store, natural or manufactured gas, within [Pennsylvania]." 58 PA. CONS. STAT. ANN. § 3241. The law provides for "buffer zones" surrounding underground natural gas storage facilities. (Id. ¶¶ 17-18).
The buffer zones of defendant's storage fields encompass all or part of plaintiffs' real property. (Id. ¶ 21). The defendants' underground storage facilities and associated buffer zones prevent the plaintiffs from entering into a commercially reasonable lease for the exploration of natural gas deposits located on or near plaintiffs' property or for carrying on gas storage operation in or near their property. (Id. ¶¶ 22- 23).
Plaintiffs further contend that the defendant's gas storage operations have resulted in serious chemical and heavy metal contamination, including contamination of plaintiffs' groundwater supply. (Id. ¶¶ 24-25).
Based upon these factual averments, plaintiffs filed a fifteen count complaint alleging: Count I-Trespass (Direct Storage); Count II-Trespass (Buffer Zone); Count III-Unjust Enrichment (Direct Storage); Count IV-Unjust Enrichment (Buffer Zone); Count V-Conversion(Direct Storage); Count VI-Conversion (Buffer Zone); Count VII-Chemical Trespass; Count VIII-Nuisance; Count IX-Negligence (Res Ipsa Loquitur); Count X-Negligence Per Se; Count XI-Strict Liability for Contamination; Count XII-Duty to Restore or Replace; Count XIII-Taking (Pennsylvania Constitution); Count XIV-Taking (United States Constitution); and Count XV-Denial of Right to Clean Air and Pure Water (Pennsylvania Constitution).
Defendant has filed a motion pursuant to Federal Rules of Civil Procedure 12(b)(1),12(b)(6) and 12(f). Defendant's motion seeks to dismissal of portions of the complaint and the striking of parts of the complaint. This motion is ripe for disposition.
Because Count XIV of plaintiffs' complaint asserts a cause of action for a "taking" under the United States Constitution, the plaintiffs invoke this court's federal question jurisdiction. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
As noted above, defendant bases its motion on several different rules of civil procedure. We will address only the issues raised pursuant to Rule 12(b)(1) as we find it to be dispositive of the entire case. Rule 12(b)(1) provides for dismissal of a case when the court lacks jurisdiction over the subject matter. Defendant claims that plaintiffs' only federal cause of action is not ripe. Ripeness affects justiciability; therefore, when a claim is unripe it should be dismissed pursuant to Rule 12(b)(1). See Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir. 1993).
"A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. . . . In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. In reviewing a factual attack, the court may consider evidence outside the pleadings." Gould Elec., Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000) (internal citations and footnote omitted). Because the parties have not submitted evidence outside of the complaint, we ...