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Scott Allen Fay v. Ugi Utilities/Central Penn Gas

September 24, 2012


The opinion of the court was delivered by: Judge Munley


Defendant UGI Utilities/Central Penn Gas moves to dismiss and to strike Plaintiff Scott Allen Fay's fifteen count complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f). The matter is fully briefed and ripe for disposition. For the following reasons, the court will dismiss the complaint.


Plaintiff Scott Allen Fay (hereinafter "plaintiff") filed the instant complaint against Defendant UGI Utilities/Central Penn Gas (hereinafter "defendant") in this court on April 5, 2012. (Doc. 1, Compl.). This case arises from plaintiff's allegations that defendant's natural gas storage operations violate his property rights.

Plaintiff owns a plot of real property in Tioga County, Pennsylvania. (Id. ¶¶ 1, 6; Doc. 1-2, Ex. A, Quitclaim Deed). Plaintiff owns one-half of the oil, gas and mineral rights of his Tioga County property, and FayViard, Inc. owns the remaining one-half interest in the property's gas and mineral rights. (Doc. 1, Compl. ¶ 7). Defendant is in the business of selling natural gas to the general public, and it operates natural gas storage facilities in the vicinity of plaintiff's property in Tioga County. (Id. ¶ 2). Defendant is specifically alleged to own and operate two underground natural gas storage fields in Tioga County, Pennsylvania. (Id. ¶ 8). The first filed is known in the industry as the "Tioga Field" and the second field is known as the "Meeker Field." (Id. ¶¶ 9-12). Plaintiff alleges that defendant has stored natural gas under plaintiff's real property as well as under the properties adjacent to plaintiff's property. (Id. ¶¶ 13-16).

Plaintiff further alleges that the "buffer zone" of one or more of defendant's underground storage facilities encompasses all or part of plaintiff's property. (Id. ¶ 21). Buffer zones are imposed by law and encompass the area around natural gas storage fields. (Id. ¶¶ 17-18). It is not commercially practical to extract natural gas from land within the buffer zone because any such extraction would involve a significant danger of interfering with the underground natural gas storage facility. (Id. ¶¶ 19-20).

Defendant's underground natural gas storage operation and associated buffer zones prevent plaintiff from entering into a commercially reasonable lease for the exploration, extraction, collection, removal, transportation or storage of natural gas on or under plaintiff's property. (Id. ¶¶ 22-23). Plaintiff further contends that defendant's gas storage operations have resulted in serious chemical and heavy metal contamination, including contamination of plaintiff's groundwater supply. (Id. ¶¶ 24-25).

Based upon these factual averments, plaintiff asserts the following fifteen counts in the complaint: 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); Count XV-Denial of Right to Clean Air and Pure Water (Pennsylvania Constitution). Defendant responded to plaintiff's complaint with a motion filed pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f), bringing this case to its current posture. Jurisdiction

Because Count XIV of plaintiff's complaint asserts a cause of action for "taking" under the United States Constitution, plaintiff invokes 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.").

Standard of Review

As noted above, defendant bases its motion on several different rules of civil procedure. The court will address only the issues raised pursuant to Rule 12(b)(1) as the court finds it to be dispositive of the entire case. Rule 12(b)(1) mandates dismissal of the complaint when the court "lack[s] subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). Defendant claims that plaintiff's 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).

In determining whether the court has subject-matter jurisdiction, the court must decide "whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (internal quotatuion omitted). "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be 'facial' or 'factual.'" Turicentro v. Am. Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). A facial attack serves to "contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Id. If the attack is factual, the court "accords plaintiff's allegations no presumption of truth. In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id. Because the parties have not submitted evidence outside of the complaint, the court will treat the defendant's motion as a facial attack and consider the complaint's allegations as true and in the light most favorable to the plaintiff.


Plaintiff asserts this court's federal question jurisdiction. Defendant, however, points out that only one of plaintiff's causes of action is based upon federal law, Count XIV-Taking (United States Constitution). Defendant argues that this claim should be dismissed because it is not ripe. Without this claim, no basis for federal district court jurisdiction exists, and the complaint should be ...

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