Argued: November 12, 2013.
[Copyrighted Material Omitted]
Court of ORIGINAL JURISDICTION.
Shawn N. Gallagher, Pittsburgh, for petitioner.
Michael B. Jones and Nicholas Urick, Aliquippa, for respondents.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P.), HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE McCULLOUGH. Judge Brobson did not participate in this decision.
PATRICIA A. McCULLOUGH, Judge
In these three consolidated petitions for review in our original jurisdiction, Seitel Data, Ltd. (Seitel) requests equitable and declaratory relief against three different municipalities, seeking to declare invalid or enjoin the enforcement of contractual agreement(s) and/or resolution(s) that allegedly violate due process and equal protection and are preempted by section 3302 of the Unconventional Gas Well Impact Fee Act (Act 13), 58 Pa.C.S. § 3302. In all three petitions, Seitel asserts that this Court has original jurisdiction over the matters pursuant to section 3306(1) of Act 13, 58 Pa.C.S. § 3306(1). The municipalities
have filed preliminary objections, which contend, as a predominate issue, that this Court lacks subject matter jurisdiction to entertain Seitel's claims because none of the municipalities currently have a resolution or ordinance in effect that regulates oil or gas operations. After considering the parties' briefs and arguments, this Court concludes that we do not have subject matter jurisdiction and we will grant the municipalities' preliminary objections in this regard. Rather than dismiss Seitel's petitions for review, we will transfer these matters to the Court of Common Pleas of Beaver County.
A. Factual Allegations and Requests for Relief
On October 3, 2013, Seitel filed three petitions for review in this Court: one naming Center Township and Center Township Board of Supervisors (collectively, Center Township) as respondents (492 M.D. 2013); one naming Shippingport Borough and Shippingport Borough Council (collectively, Shippingport Borough) as respondents (493 M.D. 2013); and one naming Greene Township and Greene Township Board of Supervisors (collectively, Greene Township) as respondents (494 M.D. 2013). The relevant facts of these cases, as stated in Seitel's petitions for review, are as follows.
Initially, Seitel avers the following facts that are common to all three cases. Seitel conducts seismic surveys in Allegheny and Beaver Counties and provides the data to businesses in the oil and gas industry. Seitel has entered into contracts with property owners in Center Township, Shippingport Borough, and Greene Township and has the right to conduct seismic surveys on and across these private properties. Seitel has also obtained the necessary permits from the Pennsylvania Department of Environmental Protection and the Pennsylvania Department of Transportation, including a blasting activities permit, to conduct seismic surveys. On September 3, 2013, in the unrelated cases of Seitel Data, Ltd. v. Hopewell Township, 388 M.D. 2013, and Seitel Data Ltd. v. Potter Township, 389 M.D. 2013, the Honorable Keith B. Quigley entered a single-judge order preliminarily enjoining Hopewell and Potter Townships (who are not parties to these cases) from enforcing municipal laws -- Hopewell Resolution No. 2013-7 and Potter Township Ordinance No. 2013-124 -- that purport to regulate seismic operations. Judge Quigley concluded that the processes and permit applications sanctioned by the municipal laws and employed by the townships were arbitrary and inviting of discriminatory enforcement, but he did not address the issue of Act 13 preemption. (Petition for Review (PR), 492 M.D. 2013, ¶ ¶ 1, 9-10, 19-20; PR, 493 M.D. 2013, ¶ ¶ 1, 9-10, 17-18; PR, 494 M.D. 2013, ¶ ¶ 1, 9-10, 4, 13.)
Seitel alleges that Center Township, Shippingport Borough, and Greene Township either enacted (or considered enacting) resolutions substantially similar to those laws in the Hopewell and Potter cases or sought to execute contractual agreements with terms mirror the requirements and provisions of the resolution and ordinance in the Hopewell and Potter cases.
Specifically, at 492 M.D. 2013, Seitel alleges that on July 24, 2013, it was advised by Center Township's solicitor that Center Township does not have -- nor would it adopt -- a resolution that regulates seismic operations. However, on September 25, 2013, Center Township drafted and presented to Seitel a contract, which Seitel
terms a " Seismic Agreement." Center Township required Seitel to sign the Seismic Agreement before conducting seismic surveys on property located within Center Township. According to Seitel, the Seismic Agreement includes a near verbatim restatement of the same seismic regulations and requirements that were enjoined in the Hopewell and Potter cases. (PR, 492 M.D. 2013, ¶ ¶ 18, 23, 54, 62-63.)
At 493 M.D. 2013, Seitel avers that in August 2013, Shippingport Borough considered adopting the resolution and/or ordinance at issue in the Hopewell and Potter cases. However, Shippingport Borough later decided not to adopt a resolution or ordinance and never did adopt a resolution or ordinance. Instead, in September 2013, Shippingport Borough required Seitel to execute a " Seismic Agreement" before conducting seismic surveys on properties located within Shippingport Borough. According to Seitel, the Seismic Agreement includes a near verbatim restatement of the same seismic regulations and requirements that were enjoined in the Hopewell and Potter cases. (PR, 493 M.D. 2013, ¶ ¶ 13, 19-20, 31-38.)
At 494 M.D. 2013, Seitel contends that on April 1, 2013, Greene Township adopted Resolution 08-2013, which Seitel terms a " Seismic Resolution." On July 1, 2013, Greene Township amended and replaced the Seismic Resolution in its entirety with a new resolution, Resolution 16-2013, which Seitel dubs the " Amended Seismic Resolution." Allegedly, the Amended Seismic Resolution is identical to the resolution and ordinance at issue in the Hopewell and Potter cases and was purportedly adopted without proper public notice and was never recorded. Pursuant to the provisions of the Amended Seismic Resolution, Greene Township advised Seitel to submit an application for a " Township Seismic Activities Permit." Greene Township's solicitor later informed Seitel that Greene Township would take action to rescind the Amended Seismic Resolution, and that Greene Township would not apply the Amended Seismic Resolution to Seitel's activities, but, instead, would require the execution of a Seismic Agreement. However, this agreement mandated that Seitel " comply with any provisions relative to seismic operations" within Greene Township, ostensibly including the terms and conditions of the Amended Seismic Resolution. (PR, 494 M.D. 2013, ¶ ¶ 13, 22-23, 39, 43, 56, 66, 70, 77-78.)
In all three cases, Seitel's petitions for review allege a pattern of conduct on the part of Center Township, Shippingport Borough, and Greene Township that evinces unreasonable delay and ever-changing requirements for Seitel to fulfill in order to conduct seismic activities. For example, at 492 M.D. 2013, Seitel asserts, among other things, that Center Township advised Seitel in early 2013 that it might pass a resolution regulating seismic activity; over the course of the next eight months, Center Township refused to accept or consider Seitel's permit applications because of the pending ordinance doctrine; then, on July 24, 2013, Center Township informed Seitel that it would not enact a resolution, but, instead, would require Seitel to sign the Seismic Agreement; and finally, disputes over and misrepresentations regarding that agreement and a permit application further delayed the process. (PR, 492 M.D. 2013, ¶ ¶ 13, 16, 18, 23, 45-50, 54, 63.) At 493 M.D. 2013 and 494 M.D. 2013, Seitel alleges that Shippingport Borough and Greene Township engaged in substantially similar conduct. (PR, 493 M.D. 2013, ¶ ¶ 13, 16, 19, 31-33, 38; PR, 494 M.D. 2013, ¶ ¶ 14, 21, 22, 32, 43, 57, 66.)
At 492 M.D. 2013 and 493 M.D. 2013, Seitel asserts three identical claims against Center Township and Shippingport Borough:
(1) a count for declaratory relief, contending that the Seismic Agreements violate due process and equal protection because the agreements are arbitrary and not rationally related to a legitimate public purpose; (2) a count for declaratory relief, asserting that the Seismic Agreements are preempted by Act 13 because they regulate " oil and gas operations; " and (3) and a general count for permanent injunctive relief on the basis that Seitel has no adequate remedy at law. (PR, 492 M.D. 2013, ¶ ¶ 71-93; PR, 493 M.D. 2013, ¶ ¶ 51-73.)
At 494 M.D. 2013, Seitel asserts four claims against Greene Township and seeks as relief: (1) a declaration that the Amended Seismic Resolution is invalid due to procedural defects; (2) a declaration that the Amended Seismic Resolution is preempted by Act 13 because it regulates " oil and gas operations; " (3) a declaration that the Amended Seismic Resolution violates due process and equal protection because it is arbitrary and not rationally related to a legitimate public purpose; and (4) ...