NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT D. RAY AND DIANE RAY,
CONSERVANCY, a Non-Profit
IN THE SUPERIOR COURT OF
No. 1799 WDA 2011
Appeal from the Order entered on October 19, 2011
in the Court of Common Pleas of Westmoreland County,
Civil Division, No. 3388 of 2011
BEFORE: MUSMANNO, BOWES and WECHT, JJ.
MEMORANDUM BY MUSMANNO, J.:
Filed: February 21, 2013
Robert D. Ray and Diane Ray (“the Rays”) appeal from the Order
denying the Motion for judgment on the pleadings filed by them and entering
judgment in favor of the Western Pennsylvania Conservancy (“the WPAC”), a
Non-Profit Corporation. We affirm.
The trial court summarized the relevant history underlying the instant
appeal as follows:
This action pertains to a tract of real estate consisting of
83.957 acres in Ligonier Township, Westmoreland County. On
June 6, 2006, [the Rays’] predecessor in title, Colcom
Foundation [“Grantor”], a non-profit corporation, granted a
Perpetual Conservation Easement and Declaration of Restrictive
Covenants (hereinafter [“Conservation Easement”]) to [WPAC],
… pursuant to the Conservation and Preservation Easements Act
[“the Act”], 32 P.S. [§] 5051 et seq. It was filed with the
Recorder of Deeds of Westmoreland County, Pennsylvania[,] at
Instrument Number 200606200029698[,] on June 20, 2006.
On June 22, 2006, [Grantor] conveyed the real estate in
question to [the Rays], subject to the perpetual [Conservation
Easement]. That Deed was filed with the Recorder of Deeds of
Westmoreland County, Pennsylvania[,] at Instrument Number
Trial Court Opinion, 10/19/11, at 1-2.
In April 2009, the Rays contacted the WPAC, advising the WPAC of the
Rays’ intent to explore natural gas on the Conserved Property via horizontal
drilling. Complaint, Exhibit C. The Rays sought confirmation that horizontal
drilling, from an adjacent property under the Conserved Property, would not
violate the Conservation Easement.
In December 2009, the WPAC
advised the Rays that the proposed drilling would violate the Conservation
In May 2011, the Rays filed a Complaint for declaratory relief.
Specifically, the Rays sought a declaration that drilling under the Conserved
Property would not violate the Conservation Easement. At the close of the
pleadings, the Rays filed a Motion for judgment on the pleadings. Following
the filing of briefs by the parties and a hearing, the trial court entered an
Order denying the Rays’ Motion, and declaring, in relevant part, the
It is the judgment of this Court that [the Rays] are not permitted
to remove or extract any gas, minerals or any other similar
materials from the real estate in question by drilling or any other
method of removal or extraction, including but not limited to,
horizontal drilling, as those activities would be violative of the
[Conservation Easement] herein.
Trial Court Order, 10/19/11.
Thereafter, the Rays filed the instant timely
complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
The Rays now present the following claims for our review:
Does a [Conservation Easement] burdening [the Rays’]
property prohibit [the Rays] from accessing, by means of
horizontal drilling from a well located on a neighboring parcel,
the natural gas deposits contained in the Marcellus Shale
formation deep below the property?
2. Did the trial court commit an error of law by finding, on [the
Rays’ M]otion for judgment on the pleadings, that the
[Conservation Easement] unambiguously disclosed the parties’
intent to prohibit accessing, by means of horizontal drilling from
a well located on a neighboring parcel, the natural gas deposits
contained in the Marcellus Shale formation deep below the
Brief of Appellants at 2.
The Rays challenge the trial court’s entry of judgment on the pleadings
in favor of the WPAC.
The standard by which a court reviews a request for judgment
on the pleadings is limited. A motion for judgment on the
pleadings will be granted only where, on the facts averred, the
law says with certainty no recovery is possible. As this issue
concerns a question of law, our review of the entry of judgment
on the pleadings is de novo.
It is fundamental that a judgment on the pleadings should
not be entered where there are unknown or disputed issues of
fact. The court must treat the motion as if it were a preliminary
objection in the nature of a demurrer.
In conducting this
inquiry, the court should confine its consideration to the
pleadings and relevant documents.
Piehl v. City of Philadelphia, 987 A.2d 146, 154 (Pa. 2009) (citations
The Rays first claim that the “construction [that] the trial court gave to
the [Conservation] Easement is contrary to the clear intention of the
parties[,] as embodied in the [Conservation] Easement.” Brief of Appellants
According to the Rays, the trial court improperly construed the
Conservation Easement’s restrictions in isolation, rather than in the context
of the Conservation Easement as a whole. Id. at 8. The Rays argue that
the Conservation Easement expressly sought to protect the conservation
values of the region by conveying the Conservation Easement “over” and
“across” the Conserved Property.
The Rays argue that the plain
meaning of the terms “over” and “across” express a relationship with the
surface or top of the location, and provides insight into the parties’ intention
regarding the scope of the Conservation Easement. Id.
The Rays also rely upon the stated purposes of the Conservation
Easement to support their claim.
According to the Rays, the stated
purpose of the Conservation Easement was to ensure the preservation of the
forested, open space character of the Conserved Property, “both as an end
in itself and as a means to conserve the quality of water and to promote
biological diversity.” Id. at 9. The Rays further direct our attention to the
Baseline Survey, incorporated into the Conservation Easement, which
cataloged only the surface features of the Conserved Property.
According to the Rays, the trial court improperly divorced the restrictions set
forth in the Conservation Easement from the express purposes that the
Conservation Easement was designed to serve, i.e., the preservation of the
surface characteristics of the Conserved Property. Id. at 11.
The Rays’ claim requires this Court to construe the provisions of the
Conservation Easement. Under Pennsylvania law, easement provisions are
interpreted under the same rules of construction as contracts. Zettlemoyer
v. Transcontinental Gas Pipeline Corp., 657 A.2d 920, 924 (Pa. 1995).
These rules provide that if the location, size or purpose of an
easement is specified in the grant, then the use of an easement
is limited to the specifications. If, however, the language of a
granting deed is ambiguous regarding these matters, then the
intent of the parties as to the original purpose of a grant is a
controlling factor in determining the extent of an easement.
Moreover, the intention of the parties is determined by a fair
interpretation and construction of the grant and may be shown
by the words employed construed with reference to the
attending circumstances known to the parties at the time the
grant was made.
Whether a trial court properly interpreted a contract is a
question of law and our scope of review is plenary. As with any
contract the rights conferred by the grant of an express
easement must be ascertained solely from the language of the
deed, provided that the deed language is unambiguous. When
the language is ambiguous, however, a court may resort to
evidence of extrinsic circumstances as an aid to interpretation.
When the purposes of an express easement are not specifically
stated, the court must ascertain the objectively manifested
intention of the parties in light of the circumstances in existence
at the time of conveyance. Whether an ambiguity exists is a
question of law subject to plenary review. However, resolution
of conflicting parol evidence relevant to what the parties
intended by an ambiguous provision is for the trier of fact.
PARC Holdings, Inc. v. Killian, 785 A.2d 106, 111-12 (Pa. 2001)
(citations and internal quotation marks omitted).
The Conservation Easement at issue in this case provided, in relevant
part, as follows:
1. Grantor is the owner of a certain parcel of real property,
Pennsylvania, comprising 83.957 acres, more or less, hereinafter
called the “Real Estate.” ...
2. Within the Real Estate shall be an area designated as the
“Building Envelope” which will contain not more than 3.0 acres….
3. It is [WPAC’s] corporate purpose to preserve and conserve
natural areas for preservation of open space, public outdoor
4. Grantor and [WPAC] recognize the conservation values of the
region in which the Real Estate is located, and propose the
protection of such values by the conveyance to [WPAC] of a
conservation easement over and across those parts of the Real
Estate which are outside of the Building Envelope. The parts of
the Real Estate which will not be within the Building Envelope
are hereinafter referred to as the “Conserved Property.” The
conveyance of said easement shall conserve the quality of water
resources by maintaining the forested areas of the Conserved
Property. These forested areas protect water resources from
sediment and non-point pollution and promote the infiltration,
detention and natural filtration of storm water.
[Conservation E]asement shall also conserve biological diversity
and perpetuate and foster the growth of a health and
unfragmented forest. Features to be conserved include native
species, continuous canopy with a multi-tiered understory of
trees, shrubs, wildflowers, and grasses; and breeding sites and
corridors for the migration of birds and wildlife. The easement
shall also ensure that agriculture, forestry, and other uses, to
the extent that they are permitted, be conducted in a manner
that will neither diminish the biological integrity of the Conserved
Property nor deplete natural resources over time nor lead to
irreversible disruption of ecosystems and associated purposes.
5. Pursuant to the [Act], Grantor intends by this Grant and
Declaration to declare a conservation easement to the Conserved
Property in favor of and for the benefit of [WPAC], and Grantor
wishes to impose certain limitations and restrictions on the use
and development of the Conserved Property so that the natural
condition of the Conserved Property will be forever preserved,
subject to uses and changes permitted hereby.
The terms “natural character,” “natural environmental
systems,” “natural condition” and “natural values”, as used
herein shall, without limiting their generality, have meanings
which may be ascribed to such terms by ordinary usage, and are
further intended to describe the condition of the Conserved
Property on the date hereof.
The specific conservation
values of the Conserved Property are further documented
in an inventory of relevant features of the Conserved
Property, on file at the office of the [WPAC] and
Documentation”) …, which consists of reports, maps,
photographs, and other documentation that the parties agree
provide, collectively, an accurate representation of the
Conserved Property at the time of this grant and which is
intended to serve as an objective information baseline for
monitoring compliance with the terms of this grant.
Grant and Declaration at 1-2 (emphasis added).
As set forth above, the terms “Real Estate” and “Conserved Property”
are defined terms. The term “Real Estate” refers to the property as a whole.
The term “Conserved Property” refers to the portion of the Real Estate that
is not part of the Building Envelope.
Grantor’s conveyance of the Conservation Easement to WPAC was
subject to the following provisions:
1. Grant of Easement: Acceptance. Subject to the terms of
this Grant and Declaration, Grantor hereby unconditionally and
absolutely grants and conveys unto [WPAC], in perpetuity, an
easement in gross and a declaration of restrictive covenants with
respect to the Conserved Property, as more particularly
hereinafter set forth …, exclusively for the purposes of
preserving and protecting the natural, agricultural and water
resource values of the Conserved Property, and preserving the
Conserved Property in its present natural condition. [WPAC]
hereby accepts the [Conservation] Easement and agrees to hold
it exclusively for such purposes and not to transfer it (a) in
exchange for money, other property or services, or (b) to any
organization which is not described in both Section 170 (h)(3)
and Section 2522(a) of the Internal Revenue Code of 1954, as
amended (hereinafter called the “code”), and (c) only as
permitted in Paragraph 13 below.
2. Declaration of Restrictions. In order to safeguard and
promote the purposes of the Easement set forth in paragraph 1
above, and to preserve the natural values and
environmental systems of the Real Estate, but subject
however to the other terms and conditions of this Grant and
Declaration, Grantor hereby declares and covenants that the
following restrictions are imposed, and shall apply forever
to the use and enjoyment of the Real Estate:
C. No quarrying, excavation, drilling or other removal of
coal, clay, oil, gas, minerals, gravel, sand, topsoil or other
similar materials including but not limited to, extraction
or removal of any such minerals by surface mining
methods, from the Real Estate shall occur except
incidentally in connection with any activity or construction
specifically permitted under the terms of this Grant and
E. In order to preserve the natural condition of the
Conserved Property, trees growing on the Conserved
Property may be cut or removed in a manner consistent
with the following, and provided that such cutting or
removal does not impair and is necessary for the
protection of the significant conservation interest which
are created pursuant to this [Conservation Easement] ….
I. No use or activity that causes or is likely to cause
significant soil degradation or erosion or significant
depletion or pollution of any surface or subsurface water
shall be permitted on the Real Estate.
Grant and Declaration at 2-3 (emphasis added).
The restriction at issue in this case, set forth at paragraph 2C,
prohibits “drilling … or other removal of … gas … from the Real Estate[.]”1
Id. at ¶ 2C (emphasis added).
This language is clear and unambiguous.
The Conservation Easement prohibits “drilling” and/or “other removal of …
gas” from the Real Estate. See id. Paragraph 2C does not limit its scope to
surface drilling on the Conserved Property.
Rather, paragraph 2C’s
restriction encompasses all removal of gas from the Real Estate.
This Court cannot ignore the parties’ intentions, as expressed by the
unambiguous restriction set forth at paragraph 2C.
Grantor and WPAC
expressly agreed to prohibit the removal of gas from the Real Estate.2 The
The Rays do not argue that the removal of gas would be incidental “in
connection with any activity or construction specifically permitted under the
terms of this Grant and Declaration.” Conservation Easement at ¶ 2C.
The Rays direct our attention to the Baseline Survey appended to the
Conservation Easement in support of their claim. Brief of Appellants at 9.
The Baseline Survey, however, describes only the Conserved Property, not
the Real Estate. The prohibition set forth at paragraph 2C applies to the
Real Estate as a whole. That the Baseline Survey depicted only surface
features does not negate the unambiguous restriction set forth at paragraph
horizontal drilling proposed by the Rays constitutes “drilling” or “other
removal of … gas … from the Real Estate.” See id.
Because the trial court
committed no error in interpreting the Conservation Easement, we cannot
grant the Rays relief on this claim.
The Rays next argue that in interpreting the Conservation Easement,
the trial court improperly engaged in fact-finding in the absence of an
Because we conclude as a matter of law that the
unambiguous restriction set forth at paragraph 2C of Conservation Easement
prohibits the Rays’ removal of gas from the Real Estate, we need not
address this claim.
The Rays also argue that the trial court improperly “gave a broader
meaning to the [Conservation] Easement than permitted by the [the Act].”
Brief of Appellants at 13. The Rays argue that the Act’s focus is to provide a
statutory basis for easements “that protect primarily surface features of
open space land in this Commonwealth.”
According to the Rays, the
trial court improperly expanded the scope of the Conservation Easement” to
“prohibit activities that occur predominately on a neighboring parcel.” Id.
Regardless of the purpose of the Act, the Rays cannot avoid the
Conservation Easement’s unambiguous prohibition on “drilling … or other
removal of … gas … from the Real Estate.” Conservation Easement at ¶ 2C.
The restriction’s scope is not limited to the surface of the property, and
encompasses all manner of removal. Further, the Rays have not established
- 10 -
Accordingly, we cannot grant the Rays relief on this claim.
For the foregoing reasons, we affirm the Order of the trial court.
- 11 -