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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CAMP NE’ER TOO LATE, LP, : No. 4:14-cv-01715

:

Plaintiff, : (Judge Brann)

:

v. :

:

SWEPI, LP, : 

:

Defendant. :

MEMORANDUM

May 5, 2016

The renowned eighteenth-century English poet Alexander Pope 

once wrote, “Blessed is the man who expects nothing, for he shall never be 

disappointed.”1 The dispute presently before the Court was fueled by the 

outsized and unsupported expectations of landowners who entered into a 

natural gas lease and subsequent agreements during a time when such 

exploration was steadily reaching its zenith in Pennsylvania’s northern tier 

counties. As the natural gas boom gradually winnowed, drilling 

 

1 Letter, written in collaboration with John Gay, to William Fortescue (Sept. 23, 

1725).

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companies, like the one hauled into court here, reacted with contractionary 

business decisions that included, among other defensive strategies, halting 

plans for the development of future wells. 

The unfolding of this dispute has confirmed the well-established 

principle that the disappointment and dissatisfaction felt by a natural gas 

lessor as a result of the lessee’s failure to develop its property—what 

plaintiff’s representatives in this case have called their “shattered 

dreams”—do not afford the lessor a remedy at law if such development is 

not mandated by the clear text of an agreement between the parties.

Plaintiff, Camp Ne’er Too Late, LP, petitions this Court to 

extrapolate a set of contractual obligations on the part of Defendant, 

SWEPI, LP, from a single introductory paragraph of a right-of-way 

addendum, which Plaintiff’s representatives drafted. This Court considers

it highly unbefitting for federal judges to substitute their own predilections 

for those of the litigants who appear before them, particularly when those 

litigants have already expressed their intentions in the clear text of a

bargained-for agreement. 

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Consequently, because Plaintiff’s case theory simply is not borne out

either by the text of the parties’ agreements or the plain reality of the 

parties’ course of dealings, its request that the Court engage in judicial 

revisionism of the instant natural gas lease and intervene on its behalf,

now having the benefit of hindsight, must be rejected. Instead, this Court 

will honor the written agreement for which the parties bargained. As such 

and in accordance with the following reasoning, Defendant’s Motion for 

Summary Judgment is granted and Plaintiff’s corresponding Motion for 

Summary Judgment is denied.2

I. BACKGROUND3

A. Ne’er Too Late Lodge and East Resources, Inc., negotiate and 

execute the 2008 lease and addendum. 

 

2 ECF No. 8 at 2.

3 Local Rule 56.1 states that the party opposing a motion for summary

judgment shall file a separate statement of material facts, responding to the 

numbered paragraphs set forth in the moving party’s statement of material 

facts and noting genuine issues to be tried. All material facts in the statement 

of the moving party are admitted unless properly refuted by the opposing 

party. Id. See also Pinegar v. Shinseki, No. CIV.A.1:07-CV-0313, 2009 WL 

1324125, at *1 (M.D. Pa. May 12, 2009) (Conner, J.) (“The purpose of this rule 

is obvious: it enables the court to identify contested facts expeditiously and 

prevents factual disputes from becoming obscured by a lengthy record.”).

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The instant dispute springs from the terms of natural gas lease 

governing a wooded 230-acre plot of land in Rutland Township, Tioga 

County, Pennsylvania.4 That property, to which the subject lease applies,

was acquired by Ne’er Too Late Lodge, a Pennsylvania nonprofit 

corporation, in 1966.5 The nonprofit entity Ne’er Too Late Lodge shares its 

name with a small cabin that sits on the land in question, land which 

according to one of Plaintiff’s partners, has been used throughout the years 

for private brook trout fishing, hunting, and similar outdoor activities.6

On June 17, 2008, Ne’er Too Late Lodge and SWEPI, LP’s 

predecessor-in-interest, East Resources, Inc., executed the oil and gas lease 

that ultimately gave rise to the present litigation.7 The lease was negotiated 

on behalf of Ne’er Too Late Lodge by shareholder-brothers Robert A. 

Schwoyer and David Schwoyer, Sr., both of whom would later become 

general partners in Camp Ne’er Too Late, LP, the organization formed by 

Ne’er Too Late Lodge’s shareholders to manage the business affairs 

 

4 ECF No. 29 Ex. 8 (2008 Natural Gas Lease).

5 ECF No. 29 Ex. 2 (1966 Rutland Deed).

6 ECF No. 36 Ex. 10 at 62, 77 (David Schwoyer Dep. 62:11–15, 77:02–15.

7

 ECF No. 29 at 4 ¶ 16. ECF No. 38 at 3 ¶ 16.

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associated with the lease.8 David Schwoyer would also go on to testify in 

this matter as Plaintiff’s Federal Rule of Civil Procedure 30(b)(6) designee.

In 2008, the parties agreed to a “paid-up” lease, meaning that Ne’er 

Too Late Lodge, solely for entering into the lease, received an up-front 

payment of $287,500, which compensation was comprised of a bonus and 

accelerated delay rental fees.

9 The lease also provided that Ne’er Too Late 

Lodge would receive as a royalty payment one-eighth of the proceeds 

realized by East Resources through its sales of natural gas extracted from 

the property.

10

According to the text of the agreement, Ne’er Too Late Lodge leased 

the subject land to East Resources “for the purpose of exploring for, 

developing, producing and marketing oil and gas.”11 The parties do not 

dispute that the lease gave East Resources the authority to place well pads 

on the leased premises and that nothing in the lease required the drilling 

 

8 ECF No. 29 at 4 ¶¶ 16–17. ECF No. 38 at 3 ¶¶ 16–17. ECF No. 36 Ex. 10 at 39 

(D. Schwoyer Dep. 39:19–25).

9 ECF No. 36 Ex. 10 at 211 (D. Schwoyer Dep. 211:12–16).

10 ECF No. 29 Ex. 8 at 2 ¶ 4 (“Royalty Payment”).

11 ECF No. 29 Ex. 8 at 2 ¶ 1 (“Lease”).

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of any number of wells.12 In fact, prior to the expiration of the primary 

term of the lease, only one well had actually been drilled on the land.

13

Importantly, the Lease also granted East Resources the right to 

construct pipelines throughout the leased premises.

14 Specifically, 

Paragraph 11 of the lease (“Ancillary Rights”), provides that Ne’er Too 

Late Lodge granted to East Resources “the right of ingress and egress over, 

under and through said leased premises with the right to conduct such 

exclusive operations on the leased premises as may be necessary for such 

purposes, including but not limited to . . . the constructions and use of 

roads, pipelines, tanks, water wells, disposal wells injection wills, pits 

electric and telephone lines, and other facilities.”15

Although the lease provided that such constructions could be made 

“regardless of the source of such substances,” during the course of the 

negotiations, the parties composed a lease addendum containing twenty 

additional paragraphs, one of which—Paragraph 12—restricted East 

 

12 ECF No. 29 at 4 ¶¶ 16–17. ECF No. 38 at 3 ¶¶ 16–17.

13 ECF No. 29 at 5 ¶¶ 22–23. ECF No. 38 at 3 ¶¶ 22–23.

14 ECF No. 29 at 5 ¶ 27. ECF No. 38 at 4 ¶ 27.

15 ECF No. 29 Ex. 8 at 3 ¶ 11 (“Ancillary Rights”).

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Resources from constructing a pipeline on the leased premises unless that 

pipeline was used to transfer oil and/or gas from one or more wells drilled 

on the leased premises.16 In the context of natural gas leases, gas 

transported across leased premises that is drilled from those same 

premises is known as “domestic” or “native” gas.17 The parties attached 

the addendum to the lease and explicitly incorporated it.18 The addendum 

provisions were therefore made effective upon execution of the lease itself.

For the record, I will also note that the parties do not dispute either that 

the lease was a completely integrated document with a standard 

integration clause or that the lease disclaimed any and all implied 

obligations.19

 

16 ECF No. 29 Ex. 8 at 7 ¶ 12 (“Pipelines shall not be constructed on the leased 

premises except for those used to transport oil and/or gas from a well(s) 

drilled on leased premises or land pooled therewith.”). See also ECF No. 29 at 

5 ¶ 27. ECF No. 38 at 4 ¶ 27.

17 ECF No. 36 Ex. 10 at 160 (D. Schwoyer Dep. 160:1–3). See also Jacobs v. CNG 

Transmission Corp., 332 F. Supp. 2d 759, 768 (W.D. Pa. 2004).

18 ECF No. 29 Ex. 8 at 4 (“SEE ADDENDUM ATTACHED HERETO AND 

MADE A PART HEREOF”).

19 ECF No. 29 at 6 ¶¶ 32–33. ECF No. 38 at 6 ¶¶ 32–33.

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At this juncture, it is also important to note that because Defendant 

ultimately did construct a pipeline that transported non-native gas over 

the subject land, the elemental issue in this litigation is whether the text of 

certain subsequent agreements between the parties incorporated 

Paragraph 12 of the lease addendum in any manner. Because the text of 

those agreements indicates otherwise, I conclude in my analysis below that

Paragraph 12 of the lease addendum was not so incorporated.

Shortly thereafter, the shareholders of Ne’er Too Late Lodge 

engaged in the first of two inconsistent transactions. On November 14, 

2008, five months after the lease was executed, Ne’er Too Late Lodge 

assigned all of its rights under the lease to its individual shareholders.20 As 

part of the assignment, each of Ne’er Too Late Lodge’s nine shareholders 

accepted an interest in the rights under lease in proportion to their 

ownership share in Ne’er Too Late Lodge.

21 That assignment was never 

 

20

 ECF No. 29 at 5 ¶ 24. ECF No. 38 at 3 ¶ 24.

21

 ECF No. 29 Ex. 3 at 3.

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recorded.22 The second inconsistent transaction would occur in April 2010 

and is detailed below in Part I.C.

B. Ne’er Too Late Lodge and East Resources negotiate and 

execute the 2009 right-of-way agreement.23 

Despite the lease and its addendum having already given East 

Resources the right to construct a pipeline on the leased premises that 

carried only domestic gas, the parties nevertheless found it necessary to 

negotiate two right-of-way agreements that granted East Resources the 

ability to construct such a pipeline. These two subsequent right-of-way 

agreements did not include any limitations as to domestic gas or explicit 

references to Paragraph 12 of the lease addendum. Each of the subsequent 

right-of-way agreements also entailed additional consideration paid to 

Plaintiff or its predecessor-in-interest beyond what the lease required. 

 

22

 ECF No. 29 at 3 ¶ 12. ECF No. 38 at 2 ¶ 12.

23 Though the 2009 right-of-way agreement indicates that the granting party 

was “Camp Ne’er Too Late,” Camp Ne’er Too Late, LP, was not formed until 

2010. David Schwoyer, Sr., would later explain in his deposition that the term 

“Camp Ne’er Too Late” was also used as a locational reference point to 

describe the lands held by the corporate entity Ne’er Too Late Lodge. ECF 

No. 36 Ex. 10 at 61:01–13. For the sake of consistency and to remain faithful to 

the true legal entities, I refer to the granting party by its corporate name, 

Ne’er Too Late Lodge.

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These characteristics of the right-of-way agreements have now led

Defendant, quite rightly in this Court’s view, to argue that these peripheral 

agreements effectively granted it greater rights than what its predecessorin-interest initially enjoyed under the lease, namely, the right to construct a 

pipeline capable of transporting non-native gas.

Accordingly, in 2009, Ne’er Too Late Lodge and East Resources 

began negotiating over what would be the first of two pipeline right-ofway agreements that were eventually executed as to the subject land.

Though the 2010 right-of-way agreement, due to certain of its unique 

terms, is the document that largely gave rise to the present dispute, the 

Court will also briefly review the facts surrounding the execution of the 

2009 agreement and 2011 amendment for the sake of completeness.

The 2009 right-of-way agreement was executed on November 28, 

2009 and gave East Resources “the right to lay, maintain and remove a 

pipeline(s) over and through” the leased premises.24 Terry Bryant was the 

landman, the agent of East Resources with whom Robert A. Schwoyer 

 

24 ECF No. 29 Ex. 10 at 2.

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negotiated.

25 During his Rule 30(b)(6) deposition, David Schwoyer, Sr., 

could not recall any discussions with Mr. Bryant related to how the 2009 

right-of-way agreement interacted with the Lease.26

Though nothing in the agreement references the lease or limits the 

location of the pipeline, a proposed pipeline map was attached to the 

agreement.27 Nevertheless, during his Rule 30(b)(6) deposition, Mr. 

Schwoyer admitted that a pipeline was never constructed in the particular 

way that the map depicted.28

The parties do not dispute that 2009 right-of-way agreement

provided for compensation of five dollars per linear foot of the actual 

footage that East Resource’s eventual right-of-way would utilize.

29 The 

2009 agreement was a fully integrated document, and as far as both parties 

are concerned, although an additional right-of-way agreement was

 

25 ECF No. 29 at 7 ¶¶ 36–37. ECF No. 38 at 5 ¶¶ 36–37.

26 ECF No. 29 at 7 ¶ 38. ECF No. 38 at 5 ¶ 38.

27 ECF No. 29 at 7 ¶¶ 39–40. ECF No. 38 at 5 ¶¶ 39–40.

28 ECF No. 36 Ex. 10 at 108 (Schwoyer Dep. 108:7–13).

29 ECF No. 29 at 7 ¶ 41. ECF No. 38 at 5 ¶ 41.

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negotiated, Plaintiff was never told that the 2009 agreement was invalid or 

no longer in force.30

C. The shareholders of Ne’er Too Late Lodge form Camp Ne’er 

Too Late, LP, in April 2010. Ne’er Too Late Lodge thereafter

transfers its rights under the lease to Camp Ne’er Too Late

in August 2010, despite having already transferred those 

rights to its individual shareholders in November 2008.

In April of 2010, the second of two conflicting transactions was 

effected by Ne’er Too Late Lodge. As discussed above in Part I.A, in 

November 2008, Ne’er Too Late Lodge assigned its rights under the lease 

to its individual shareholders in proportion to their ownership interest in 

the Ne’er Too Late Lodge. However, on August 2, 2010, Ne’er Too Late 

Lodge once again assigned its rights under the lease, this time to Camp 

Ne’er Too Late, LP, a limited partnership created in April 2010 by the nine 

individual shareholders of Ne’er Too Late Lodge to manage the business 

affairs associated with the lease.

31 Unlike the first assignment of the lease 

 

30 ECF No. 29 at 8 ¶¶ 42–43. ECF No. 38 at 5 ¶¶ 42–43.

31

 ECF No. 29 Ex. 1. Although Plaintiff has provided the percentage of each 

shareholder’s capital contribution to Lodge, I agree with Defendant that the 

issue of whether the supplied ownership breakdown of Camp Ne’er Too 

Late, LP is identical to that of Ne’er Too Late Lodge (and consequently, that 

of the November 2008 assignment) is unresolved on the present record, as the 

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rights to Ne’er Too Late Lodge’s shareholders, this subsequent assignment 

was recorded in the Office of the Recorder of Deeds of Tioga County, 

Pennsylvania.32

To ascertain the purpose behind these two contradictory 

assignments, Plaintiff’s current counsel, during Plaintiff’s Rule 30(b)(6) 

deposition on June 30, 2015, telephoned former counsel for Plaintiff who 

had overseen the assignments.33 As a result of that conversation, Plaintiff 

has stipulated that the August 2010 assignment assigned to Camp Ne’er 

Too Late only those rights that remained after the November 2008 

assignment to the individual shareholders of Ne’er Too Late Lodge.

34

Thus, the parties agree that the individual shareholders—and not Camp 

 

Court has only been provided with the initial capital contribution breakdown 

but not with the proportions of ownership as they relate to the rights under 

the lease. See ECF No. 29 at 3 ¶ 13. ECF No. 38 at 2 ¶ 13. Compare ECF No. 29 

Ex. 1 at 23 (listing ownership percentages), with ECF No. 29 Ex. 3 (listing no 

ownership percentages).

32

 Id. See also ECF No. 29 Ex. 5. Neither party discusses the potential that the 

November 2008 transfer, not having been recorded, would have fallen second 

in priority as to the August 2010 recorded assignment or the result such 

dynamic would have had upon the standing issue.

33

 ECF No. 29 Ex. at 5–7.

34 ECF No. 38 at 2 ¶ 13.

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Ne’er Too Late—were the actual assignees of the Ne’er Too Late Lodge’s

rights under the lease.35 Moreover, at no time did the individual 

shareholders either: (i) convey their rights back to Ne’er Too Late Lodge 

before the August 2010 transfer from Ne’er Too Late Lodge to Camp Ne’er 

Too Late or (ii) assign them directly to Camp Ne’er Too Late.

36

D. Camp Ne’er Too Late and East Resource’s successor-ininterest, East Resources Management, negotiate and execute 

the 2010 right-of-way agreement and addendum.

In 2010, further right-of-way negotiations were held between the 

parties. On June 1, 2010, East Resources transferred its interest in the 

leased premises, including the lease and the 2009 right-of-way agreement, 

to East Resources Management.37 Mr. Bryant and Mark Schall were the 

landmen with whom Plaintiff negotiated in 2010.38 On October 19, 2010, 

Camp Ne’er Too Late and East Resources Management executed the 2010 

right-of-way agreement, the second of two right-of-way agreements 

 

35

 Id.

36

 ECF No. 29 at 3 ¶¶ 14–15. ECF No. 38 at 2–3 ¶¶ 14–15.

37 ECF No. 29 at 8 ¶ 44. ECF No. 38 at 6 ¶ 44.

38 ECF No. 29 at 8 ¶ 48. ECF No. 38 at 6 ¶ 48.

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relating to the subject premises and the one that is largely responsible for 

this dispute.

39

As initially presented to Plaintiff, the 2010 right-of-way agreement 

did not contain an addendum.40 When Plaintiff’s representatives informed 

Mr. Bryant that they had some concerns regarding the proposal, Mr. 

Bryant sent Plaintiff a telefax of certain notes detailing the typical 

provisions found in an addendum and informed Plaintiff to “put [its] 

thoughts down and we will go from there.”41

No one from East Resources Management forbid Plaintiff from 

making changes to the proposed addendum.42 In fact, Plaintiff proposed a 

number of terms and revisions to the addendum, many of which were 

accepted.43 David Schwoyer, Sr., recalls “revising some of the addendum 

 

39 ECF No. 29 at 8 ¶ 45. ECF No. 38 at 6 ¶ 45. See also ECF No. 29 Ex. 12.

40 ECF No. 29 at 9 ¶ 49. ECF No. 38 at 6 ¶ 49.

41 ECF No. 29 at 9 ¶ 50. ECF No. 38 at 6 ¶ 50.

42 ECF No. 29 at 9 ¶ 52. ECF No. 38 at 6 ¶ 52.

43 ECF No. 29 at 9 ¶¶ 53–54. ECF No. 38 at 6 ¶¶ 53–54.

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language,” as “things were going back and forth” between Plaintiff and 

East Resources Management’s representatives.

44

While it was revising the language of the addendum to the 2010 

right-of-way agreement, Plaintiff was not represented by counsel. “We had 

somebody we could call, I guess, if we had a concern,” David Schwoyer, 

Sr., remembered, “but nobody was involved I believe at this time with 

us.”45 Rather than consult an experienced oil and gas lawyer, Plaintiff’s 

representatives negotiated with East Resources Management on their own 

and made the textual revisions themselves, consulting one another and 

proposing amendments through group emails.

In one of those emails between brothers Robert and David 

Schwoyer, Sr., Robert Schwoyer writes “David, look at item 12 of our 

original gas lease and see if it applies . . . .”46 David Schwoyer took his 

brother’s question “[t]o basically address the fact that if we are going to 

assign a right-of-way, we want to make sure that we are consistent with 

 

44 ECF No. 36 Ex. 10 at 124 (D. Schwoyer Dep. 124:01–05).

45 ECF No. 36 Ex. 10 at 125 (D. Schwoyer Dep. 125:04–18).

46 ECF No. 36 Ex. 10 at 125–26 (D. Schwoyer Dep. 125:19–126:01).

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the original oil and gas lease.”47 Eventually, on October 12, 2010, Schwoyer 

would write to two other of Plaintiff’s partners, “I tired [sic] sick of looking 

at the document as I have read, re-read, edited, deleted and added 

numerous items.”48 Schwoyer went on to write, “Let’s make sure we are 

saying what we need to say but lets [sic] get it done already!”49

What ultimately resulted from these drafts were certain revisions to

the introductory paragraph of the addendum to the 2010 right-of-way 

agreement. David Schwoyer does not deny that he is the individual 

responsible for the drafting of the contested language. During his Rule 

30(b)(6) deposition, Mr. Schwoyer was asked by Jeremy A. Mercer, 

Esquire, counsel for Defendant, “Were you the one who made the change 

to that paragraph to add that additional text . . . ?”50 Mr. Schwoyer 

answered, “Yes.”51

 

47 ECF No. 36 Ex. 10 at 126 (D. Schwoyer Dep. 126:02–07).

48 ECF No. 29 Ex. 14 at 2.

49 Id.

50 ECF No. 36 Ex. 10 at 132 (D. Schwoyer Dep. 132:09–11).

51 ECF No. 36 Ex. 10 at 132 (D. Schwoyer Dep. 132:12).

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After Mr. Schwoyer’s revisions were incorporated into the final 

version of the addendum to the 2010 right-of-way agreement on October 

19, 2010, the introductory paragraph of that document read as follows:

This addendum is attached to and made part of that certain 

Right of Way Agreement dated October 19, 2010. If any of the 

following provisions conflict with or are inconsistent with any 

of the printed provisions or terms of the Right of Way 

Agreement or Original Oil and Gas Lease and Addendum the 

following provisions, and the non conflicting terms of the 

Original Oil and Gas Lease and its Addendum, shall control 

and be deemed to supersede the printed terms of the Right of 

Way Agreement.52

When pressed as to the effect of this language during his Rule 

30(b)(6) deposition, Mr. Schwoyer suggested that he intended the language 

to reference “back to and incorporate at least paragraph 12 of the 

addendum to the oil and gas lease.”53 However, Mr. Schwoyer conceded 

that he failed to “specifically identify paragraph 12 in that text,” even 

though he acknowledged that he “could have, if [he] wanted to, have put 

in the proposed addendum language that specifically referred to item 12 of 

 

52 ECF No. 29 at 10–11 ¶ 59. ECF No. 38 at 6 ¶ 59. See also ECF No. 29 Ex. 12 at 5 

(“Addendum”).

53 ECF No. 36 Ex. 10 at 132–33 (D. Schwoyer Dep. 132:25–133:04).

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the oil and gas lease.”54 Furthermore, when asked whether he ever recalled 

discussing Paragraph 12’s limitations on domestic gas with the landmen, 

Mr. Schwoyer responded, “I can’t remember specifically what was said as 

far as whether or not we specifically told him about that.”55

The parties agree that the 2010 right-of-way agreement contained an 

integration clause.56 Still, in its answer to Defendant’s Statement of Facts, 

Plaintiff averred that its representatives “conveyed to Mark Shall [sic] that 

the reason that the second sentence of the first paragraph of the 2010 Right 

of Way addendum was put in there was because the Plaintiff had a 

concern that this document would change the protections in the Lease and 

the Plaintiff wanted to make sure the 2010 Right of Way and [sic] didn’t 

change any of the protections that were already stated in the Lease.”57

Moreover, Plaintiff contends that Mr. Schall provided estimates that 

Plaintiff’s representatives could use to calculate projected revenue.

58

 

54 ECF No. 36 Ex. 10 at 119, 127 (D. Schwoyer Dep. 119:01–14, 127:04–09).

55 ECF No. 36 Ex. 10 at 114 (D. Schwoyer Dep. 115:22–23).

56 ECF No. 29 at 14 ¶ 76. ECF No. 38 at 9 ¶ 76.

57 ECF No. 38 at 37–38 ¶ 66.

58 ECF No. 38 at 17 ¶ 137.

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Taking into account the existence of a valid integration clause and 

reading the portions of Mr. Schall’s deposition to which Plaintiff cites for 

support, I cannot agree that Plaintiff has raised a genuine dispute as to any 

specific knowledge on Mr. Schall’s part as to Plaintiff’s purported concern 

with transportation of domestic gas. Instead, the pertinent portions of Mr. 

Schall’s depositions reveal that the only concerns of which he was 

specifically informed involved water testing and expiration of the lease.59

In fact, Mr. Schall recalls informing Plaintiff during negotiations that “[W]e 

are putting the pipeline under the terms of the right-of-way agreement, 

and it’s completely separate from your oil and gas lease.”60 In addition, as 

explained more fully below, such extrinsic evidence or documents are 

hardly relevant where the text of the agreements is so clearly integrated.

East Resources Management paid Plaintiff $59,610.00 in 

consideration for the 2010 right-of-way agreement.61 During Plaintiff’s 

Rule 30(b)(6) deposition, counsel for Defendant tasked Mr. Schwoyer to 

 

59 ECF No. 38 Ex. 6 at 59 (Schall Dep. 59:04–10).

60 ECF No. 38 Ex. 6 at 58 (Schall Dep. 58:20–23).

61 ECF No. 29 at 14 ¶ 78. ECF No. 38 at 10 ¶ 78. See also ECF No. 29 Ex. 15 at 2 

(“Check No. 502976”).

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offer any plausible, alternative explanation for why Defendant would pay 

Plaintiff nearly $60,000.00 in excess consideration, if not to obtain the right 

to construct a more extensive pipeline capable of transporting non-native 

gas. Unfortunately, Mr. Schwoyer offered no viable answers. 

“So what additional rights are they getting under the right-of-way 

agreement, that they didn’t have under the lease?” Mr. Mercer asked. 

“That I can’t answer,” Mr. Schwoyer responded.62 “Did you ever ask ‘What 

are they paying us 60,000 dollars for?’” “No,” Mr. Schwoyer said.

63 Mr. 

Mercer repeatedly asked, “Did you ever consider ‘Wait a minute, we are 

getting 60,000 dollars here, maybe they are getting something other than 

what they already had the right to do under the lease?’” and “They 

weren’t getting any additional rights under your view than they had 

under the lease. But they were paying you 59,000 plus dollars for it?” 64 In 

the Court’s view, Plaintiff has failed to adequately address this critical 

question.

 

62 ECF No. 36 Ex. 10 at 157 (D. Schwoyer Dep. 157:15–18).

63 ECF No. 36 Ex. 10 at 157 (D. Schwoyer Dep. 157:19–21).

64 ECF No. 36 Ex. 10 at 157, 158 (D. Schwoyer Dep. 157:22–25, 158:10–12).

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The 2010 right-of-way agreement also contained the following map 

of the proposed pipeline, depicted as Figure 1 below:

Figure 1. Map of Proposed Pipeline from 2010 Right-of-Way Agreement

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The proposed pipeline is depicted as the thick black and white route 

beginning at the northcentral portion of the map and running south 

toward the center of the map, before continuing in a southeasterly 

direction toward the eastern boundary of the map. A second portion of the 

proposed pipeline, what the parties refer to as the “spur” line, is depicted 

connecting to the main portion of the pipeline near the center of the map 

and thereafter moving across the leased premises in a southwesterly 

direction.65

During Plaintiff’s Rule 30(b)(6) deposition, Mr. Mercer asked Mr. 

Schwoyer to indicate on the map the location of the two well pads at issue 

with a capital letter “P.”66 The first well pad, at the southwestern corner of 

the diagram, was a proposed or planned well pad.67 It was never built and 

in fact, the spur portion of the pipeline was never constructed.68 Moving 

eastward, the second well pad, which existed at the time, is denoted 

 

65 See ECF No. 36 Ex. 10 at 142 (D. Schwoyer Dep. 142:19–22).

66 See ECF No. 36 Ex. 10 at 143 (D. Schwoyer Dep. 143:15–25).

67 See ECF No. 36 Ex. 10 at 143 (D. Schwoyer Dep. 143:06–08).

68 See ECF No. 36 Ex. 5 at 7 ¶ 42. ECF No. 40 at 9 ¶ 42.

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immediately below that portion of the main pipeline that would connect 

with the spur section of the pipeline.69

The parties do not dispute that if the pipeline and pads were 

constructed as depicted on the above map, it would not be possible for gas 

to flow through both sections (the main and the spur sections) 

simultaneously while only transporting domestic gas.70 This is true 

because it is not possible for gas to flow in both a northward and 

southward direction through the pipeline at the same time.

71 Defendant 

contends that this consequence renders Plaintiff’s argument as to the 

continued applicability of the lease addendum’s domestic-gas-only 

provision (Paragraph 12) incompatible with the reality of the parties’ 2010 

right-of-way agreement.72

 

69 See ECF No. 36 Ex. 10 at 143 (D. Schwoyer Dep. 143:11–17).

70 ECF No. 29 at 15 ¶¶ 81–82. ECF No. 38 at 10–11 ¶¶ 81–82.

71 ECF No. 29 at 15 ¶ 83. ECF No. 38 at 11 ¶ 83.

72 ECF No. 29 at 14 ¶ 80.

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E. Camp Ne’er Too Late and SWEPI, LP, negotiate and execute 

the 2011 amendment to the 2010 right-of-way agreement.

On December 31, 2010, Defendant acquired the rights to the lease 

and lease addendum, as well as the 2009 and 2010 right-of-way 

agreements.73 Thereafter, Plaintiff and Defendant began negotiating an 

amendment to the 2010 right-of-way agreement.74At this time, Plaintiff still 

was unrepresented during negotiations and drafting of the pertinent 

agreement.

75 That amendment was executed on December 2, 2011.76

Plaintiff was paid $104,220.00 for executing the 2011 amendment, 

$99,220.00 of which was in consideration for the amendment and $5,000.00 

of which was for the replanting of trees taken from the right-of-way.

77

The purpose of the 2011 amendment was to expand the width of the 

2010 right-of-way.78 It states that “[e]xcept as provided in this Amendment, 

all of the terms and provisions of the [2010 right-of-way agreement] 

 

73 ECF No. 29 at 16 ¶ 86. ECF No. 38 at 11 ¶ 86.

74 ECF No. 29 at 16 ¶ 88. ECF No. 38 at 11 ¶ 88.

75 ECF No. 36 Ex. 10 at 217 (D. Schwoyer Dep. 217:01–05).

76 ECF No. 29 at 16 ¶ 88. ECF No. 38 at 11 ¶ 88.

77 ECF No. 29 at 17 ¶¶ 97–98. ECF No. 38 at 12 ¶¶ 97–98.

78 ECF No. 29 at 16 ¶ 90. ECF No. 38 at 11 ¶ 90.

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remain in full force and effect.”79 The 2011 amendment is a fully integrated 

contract, and nothing in the 2011 amendment specifically references 

Paragraph 12 of the lease addendum.80 Even though Plaintiff was never 

told by Al Wichter, the landman with whom its representatives now 

negotiated, that Defendant would definitely drill eleven wells on the 

property within a prescribed period of time, Plaintiff suggests that Mr. 

Wichter represented during negotiations that Defendant was going 

forward with such plans.81 The 2011 amendment, however, is silent as to 

those purported plans.

82

In connection with the 2011 amendment, Robert Schwoyer signed 

three maps. Mr. Schwoyer made and initialed next to several “X” marks on 

both of the December 2, 2011, maps which indicated that those were things 

to which Plaintiff was not agreeing.83 The parties agree that by signing the 

 

79 ECF No. 38 Ex. 10 at 2 ¶ 4 (“Amendment to Pipeline Right of Way 

Agreement”).

80 ECF No. 29 at 16–17 ¶¶ 90, 96. ECF No. 38 at 11–12 ¶¶ 90, 96.

81 ECF No. 29 at 17 ¶ 93. ECF No. 38 at 11 ¶ 93.

82 ECF No. 38 Ex. 10.

83 ECF No. 29 at 18 ¶ 104. ECF No. 38 at 13 ¶ 104.

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two December 2, 2011 maps, Mr. Schwoyer was approving the location of 

the pipeline.84 Though Defendant contends Mr. Schwoyer was approving 

the final version of the pipeline, Plaintiff suggests Mr. Schwoyer was 

approving the location of the pipeline “at that time.”85

Significantly, however, on January 25, 2012, Robert Schwoyer signed 

a third map, which is noted in his own handwriting at the top of the page 

and in preprinted text in the legend box, as the “final” version of the 

pipeline’s layout.

86 Again, the parties dispute whether Mr. Schwoyer’s 

adoption of this map approved the final location of the pipeline or merely 

approved the location of the pipeline as it then stood.87 Nevertheless, the 

parties do not dispute that the January 25, 2012 map no longer depicts the

portion of the pipeline that would connect the well on the property to the 

 

84 ECF No. 29 at 18–19 ¶¶ 103–05. ECF No. 38 at 13 ¶¶ 103–05.

85 ECF No. 29 at 19 ¶ 105. ECF No. 38 at 13 ¶ 105.

86 ECF No. 29 at 20 ¶ 112. ECF No. 38 at 13 ¶ 112. Plaintiff’s answer to 

Defendant’s statement of fact ¶ 112 is non-responsive. Defendant’s statement 

of fact ¶ 112 is therefore deemed as admitted. See also ECF No. 29 Ex. 22 

(“Final South”/”Final Property”).

87 ECF No. 29 at 20 ¶ 113. ECF No. 38 at 13 ¶ 113.

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greater pipeline infrastructure.88 Without that connection line, the parties 

also do not dispute that gas could not be carried from any well on 

Plaintiff’s property.89

A visual comparison of the 2011 and 2012 maps, taken from 

Defendant’s supporting brief and annotated by Defendant are shown 

below as Figure 2:

Figure 2. Comparison of the 2011 and 2012 Amendment Maps90

 

88 ECF No. 29 at 20 ¶ 114. ECF No. 38 at 14 ¶ 114.

89 ECF No. 29 at 20 ¶ 115. ECF No. 38 at 14 ¶ 115.

90 ECF No. 37 at 21.

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F. Plaintiff enters into the 2012 surface use agreement with 

Defendant. Thereafter, Defendant constructs the pipeline.

On February 13, 2012, Plaintiff entered into a surface use agreement

with Defendant.

91 The purpose of this agreement was to allow Defendant

to store equipment and supplies on the well pad on the subject premises

during construction of the pipeline.92 Plaintiff’s representatives never

discussed why Defendant would need the agreement to use the well pad if 

the lease already covered such rights.

93 Plaintiff received $33,600.00 in 

additional consideration for allowing Defendant to use the well pad to 

store equipment and supplies for a six-month period.94

Shortly thereafter, construction on the pipeline began. Robert 

Schwoyer lives next door to the subject property, and he admits that 

during construction he visited the property almost every day.95 By 

October 1, 2012, the pipeline project was complete and only non-native gas 

 

91 ECF No. 29 at 21 ¶ 116. ECF No. 38 at 14 ¶ 116.

92 ECF No. 29 at 21 ¶ 117. ECF No. 38 at 14 ¶ 117.

93 ECF No. 29 at 21 ¶ 118. ECF No. 38 at 15 ¶ 118.

94 ECF No. 29 at 21 ¶ 119. ECF No. 38 at 15 ¶ 119.

95 ECF No. 29 at 22 ¶¶ 122–23. ECF No. 38 at 15 ¶¶ 122–23.

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was flowing through the pipeline.96 At that, time Plaintiff was aware that 

the only well on the property was not connected to the pipeline, rendering 

that well “shut-in.”97 Moreover, the “spur line” section of the pipeline had 

not been constructed.

98 Yet, Plaintiff contends that it was “under the 

impression” that further pipeline construction and well development 

would be completed.99

Under the Lease, Plaintiff was to receive yearly shut-in payments of 

$1,150.00 when a well was drilled and shut-in on the Property.100 The 

parties do not dispute that Plaintiff has received the shut-in payments 

required by the lease.101 On November 6, 2013, Plaintiff cashed the first 

shut-in check.102 At the time that Plaintiff cashed the first shut-in check, it 

was aware for more than a year that gas was flowing through the pipeline

but that no portion of that gas was produced from any wells on the leased 

 

96 ECF No. 29 at 22 ¶ 124. ECF No. 38 at 15 ¶ 124.

97 ECF No. 29 at 22 ¶ 125. ECF No. 38 at 15 ¶ 125.

98 ECF No. 29 at 22 ¶¶ 125–27. ECF No. 38 at 15 ¶¶ 125–27.

99 ECF No. 38 at 15 ¶¶ 125–26.

100 ECF No. 38 at 16 ¶ 129. See also ECF No. 29 Ex. 8 at ¶ 12 (“Shut-in Royalty”).

101 ECF No. 29 at 23 ¶ 130. ECF No. 38 at 16 ¶ 130.

102 ECF No. 29 at 23 ¶ 131. ECF No. 38 at 16 ¶ 131.

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premises or pooled properties.

103 Plaintiff contends that it still remained 

“under the impression” that further work on the pipeline needed to be 

completed prior to the drilling of additional wells on its property.

104

Plaintiff has returned subsequent shut-in checks to Defendant.105

G. Plaintiff sends Shell the October 1, 2013 “Shattered Dreams” 

Letter.

On October 1, 2013, one month before cashing the shut-in check, 

David Schwoyer, Sr., provided Robert A. Schwoyer a letter, which Robert 

A. Schwoyer sent to Shell on behalf of Plaintiff.

106 During his deposition, 

David Schwoyer admitted that the letter “was written by [David 

Schwoyer] and Robert Schwoyer” and that the facts in the letter “came 

from [David Schwoyer] as well as from [Robert Schwoyer].”107

“[W]e now find ourselves at a loss,” the Schwoyers, on behalf of 

Plaintiff, wrote.108 Many of their neighbors have “similar” stories, but each 

 

103 ECF No. 29 at 23 ¶ 132. ECF No. 38 at 16 ¶ 132.

104 ECF No. 38 at 16 ¶ 132.

105 ECF No. 38 at 16 ¶ 132.

106 ECF No. 29 Ex. 24.

107 ECF No. 36 Ex. 10 at 215 (Schwoyer Dep. 215:07–14).

108 ECF No. 29 Ex. 24 at2.

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“have their own disappointments.”109 Among other admissions, the letter 

acknowledges that Plaintiff has been aware that since the end of June 2010, 

“Shell drilled and capped the well and all activities since then have 

completely ceased on the pad and well site.”110 The letter also indicates

that at the time of its writing, Plaintiff’s members were aware that “[t]he 

pipeline has been in place for over a year and as far as we know it is fully 

operational.”111

“[I]t has been over a year since the pipeline was completed and there 

ha[s] been no further communications to us from Shell regarding this 

matter,” the letter continues.112 In fact, Plaintiff admits in the letter to being 

informed by a Shell representative in May 2013 that “our location was not 

on the fracking schedule for this year (2013).”113 The letter indicates that in 

 

109 Id.

110 Id. at 3.

111 Id. at 4.

112 Id.

113 Id.

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late May 2013, a representative for Plaintiff was “informed [ ] that Shell 

had no intentions of doing anything else at our location.”114

The whole situation resulted in “shattered dreams,” Plaintiff’s letter 

suggests. “We hope that after reading our story ‘that someone in your 

organization’ has the courtesy, ethical value and integrity, to finally tell us 

what the true plans if there are any regarding our location.”115 “Even with 

all this we still have some partial dream that Shell will live up to the 

written and verbal commitments East and Shell have made with our 

organization over the past 5 years to expand our pad, drill and frack the 

wells as stated.”116 It does not appear from the record that Defendant 

responded to Plaintiff’s letter.117

H. Plaintiff initiates this civil action. Defendant files a timely 

Motion for Summary Judgment, but Plaintiff files a late 

Motion for Summary Judgment, even after receiving an 

extension from the Court.

 

114 Id. at 5.

115 Id.

116 Id.

117 Defendant is a general partner of Shell Energy Holding GP, LLC. ECF No. 9 

at 1 ¶ 3.

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On July 30, 2014, Plaintiff initiated this litigation in the Court of 

Common Pleas of Tioga County, Pennsylvania, seeking injunctive and 

monetary relief for the alleged breach of contract.

118 Defendant was served 

on August 5, 2014. On September 2, 2014, Defendant properly removed the 

action to this Court.119

The dispositive motions deadline of August 7, 2015 was set by Order 

of this Court on June 25, 2015.120 On August 7, 2015, Defendant filed the 

instant Motion for Summary Judgment, but Plaintiff filed no dispositive 

motions.121 On August 10, 2015, three days after the deadline had passed, 

Plaintiff filed a motion seeking an extension of time to file a dispositive 

 

118 ECF No. 1 & Ex. 1.

119 Removal was appropriate under 28 U.S.C. § 1441(b), as this Court has 

diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Each of Plaintiff’s 

general partners is a citizen of Pennsylvania or Florida. Therefore, Plaintiff is 

also a citizen of Pennsylvania and Florida. Defendant is a citizen of Delaware 

and Texas. Plaintiff’s Complaint seeks monetary damages “greater than

$50,000.00.” ECF No. 9 at 6. Plaintiff also seeks injunctive relief. Id. Making a 

reasonable, independent valuation of the relief sought, this Court is satisfied 

that 28 U.S.C. § 1332(a)’s $75,000.00 statutory minimum amount-incontroversy has been met here. See also ECF No. 1 at 3–4.

120 ECF No. 27.

121 ECF No. 28.

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motion, which Defendant opposed.122 Notwithstanding Defendant’s 

opposition, this Court granted Plaintiff leave to file a dispositive motion 

“no later than August 28, 2015 at 5:00 p.m.”123 The Court made clear that 

this was a “strict deadline” and that “no further extensions of time will be 

granted.”124 Plaintiff filed the instant Motion for Summary Judgment on 

August 28, 2015 at 5:16 p.m., sixteen minutes late.125

Because there is no genuine dispute of material fact that the 2010 

right-of-way agreement fails to incorporate Paragraph 12 of the lease 

addendum, Defendant committed no breach by transporting non-native 

gas through the subject pipeline. Therefore, I will enter judgment in favor 

of Defendant in accordance with the following reasoning.

 

122 ECF Nos. 30–31.

123 ECF No. 32 at 5. ECF No. 33.

124 ECF No. 32 at 5. ECF No. 33.

125 ECF No. 36 (Receipt: Notice of Electronic Filing). Therefore, in addition to the 

foregoing reasons, Plaintiff’s Motion for Summary Judgment could be denied 

on the independent ground that is was untimely filed. Tardiness has been 

described as the “quintessential discourtesy.” In re Lokuta, 964 A.2d 988, 1005 

(Pa. Ct. Jud. Disc. 2008). It evidences “disrespect for the judicial system itself” 

as well as for those who play by the rules. See id.

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II. LAW

“One of the principal purposes of the summary judgment rule is to 

isolate and dispose of factually unsupported claims or defenses, and we 

think it should be interpreted in a way that allows it to accomplish this 

purpose.”126 Summary judgment is appropriate where “the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.”127“Facts that could alter the 

outcome are ‘material facts,’ and disputes are ‘genuine’ if evidence exists 

from which a rational person could conclude that the position of the 

person with the burden of proof on the disputed issue is correct.”128

“A defendant meets this standard when there is an absence of 

evidence that rationally supports the plaintiff’s case.”129 “A plaintiff, on the 

other hand, must point to admissible evidence that would be sufficient to 

 

126 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

127 Fed. R. Civ. P. 56(a).

128 Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) 

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex 

Corp., 477 U.S. at 322).

129 Clark v. Modern Grp. Ltd., 9 F.3d at 326.

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show all elements of a prima facie case under applicable substantive 

law.”130

“[T]he inquiry involved in a ruling on a motion for summary 

judgment or for a directed verdict necessarily implicates the substantive 

evidentiary standard of proof that would apply at the trial on the 

merits.”131 Thus, “[i]f the defendant in a run-of-the-mill civil case moves 

for summary judgment or for a directed verdict based on the lack of proof 

of a material fact, the judge must ask himself not whether he thinks the 

evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the plaintiff on the evidence 

presented.”132 “The mere existence of a scintilla of evidence in support of 

the plaintiff’s position will be insufficient; there must be evidence on 

which the jury could reasonably find for the plaintiff.”133 “The judge’s 

inquiry, therefore, unavoidably asks . . . ‘whether there is [evidence] upon 

 

130 Id.

131 Liberty Lobby, Inc., 477 U.S. at 252.

132 Id.

133 Id.

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which a jury can properly proceed to find a verdict for the party producing 

it, upon whom the onus of proof is imposed.’”

134

“[A] party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its motion, and 

identifying those portions of the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, 

which it believes demonstrate the absence of a genuine issue of material 

fact.”135 “[R]egardless of whether the moving party accompanies its 

summary judgment motion with affidavits, the motion may, and should, 

be granted so long as whatever is before the district court demonstrates 

that the standard for the entry of summary judgment, as set forth in Rule 

56(c), is satisfied.”136

Where the movant properly supports his motion, the nonmoving 

party, to avoid summary judgment, must answer by setting forth “genuine 

factual issues that properly can be resolved only by a finder of fact because 

 

134 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 

(1871)).

135 Celotex Corp., 477 U.S. at 323 (internal quotations omitted).

136 Id.

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they may reasonably be resolved in favor of either party.”137 For movants 

and nonmovants alike, the assertion “that a fact cannot be or is genuinely 

disputed” must be supported by: (i) “citing to particular parts of materials 

in the record” that go beyond “mere allegations”; (ii) “showing that the 

materials cited do not establish the absence or presence of a genuine 

dispute”; or (iii) “showing . . . that an adverse party cannot produce 

admissible evidence to support the fact.”138

“When opposing summary judgment, the non-movant may not rest 

upon mere allegations, but rather must ‘identify those facts of record 

which would contradict the facts identified by the movant.’”

139 Moreover, 

“[i]f a party fails to properly support an assertion of fact or fails to 

properly address another party’s assertion of fact as required by Rule 

56(c), the court may . . . consider the fact undisputed for purposes of the 

motion.”140 On motion for summary judgment, “[t]he court need consider 

 

137 Liberty Lobby, Inc., 477 U.S. at 250.

138 Fed. R. Civ. P. 56(c)(1).

139 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 

2003) (Weis, J.).

140 Fed. R. Civ. P. 56(e)(2).

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only the cited materials, but it may consider other materials in the 

record.”141

“[A]t the summary judgment stage the judge’s function is not 

himself to weigh the evidence and determine the truth of the matter but to 

determine whether there is a genuine issue for trial.”142 “[T]here is no issue 

for trial unless there is sufficient evidence favoring the nonmoving party 

for a jury to return a verdict for that party.”143 “If the evidence is merely 

colorable . . . or is not significantly probative, summary judgment may be 

granted.”144

III. ANALYSIS

In accordance with the following reasoning, I hold that Plaintiff has 

standing to sue because it was a signatory to the 2010 right-of-way 

agreement, which Plaintiff alleges conditionally incorporates Paragraph 12 

of the 2008 lease addendum.

 

141 Fed. R. Civ. P. 56(c)(3).

142 Liberty Lobby, Inc., 477 U.S. at 249.

143 Id.

144 Id. at 249–50 (internal citations omitted).

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Reaching the merits, I further hold that summary judgment is 

appropriately granted in Defendant’s favor because there is no genuine 

dispute of any material fact that the 2010 right-of-way agreement fails to 

incorporate Paragraph 12 of the lease addendum and that the Defendant 

therefore did not breach the 2010 right-of-way agreement by constructing a 

pipeline that transported non-native gas.

In addition, I hold that Plaintiff’s course of conduct here is sufficient 

to conclude that it waived any expectation or right it had preserve the 

domestic gas limitation in its subsequent dealings with Defendant and is

thereby estopped from now asserting such a claim. 

A. Plaintiff Has Standing To Sue Because It Was A Signatory 

To The 2010 Right-Of-Way Agreement, Which Plaintiff 

Alleges Conditionally Incorporates Paragraph 12 Of The 

2008 Lease Addendum. The Course Of The Parties’

Subsequent Dealings Confirms This Conclusion.

As a preliminary matter, Defendant argues that Plaintiff lacks 

standing to sue for breach of the lease. This must be the case, Defendant 

contends, because Plaintiff was not a signatory to or an intended third 

party beneficiary of the lease, and thereafter Plaintiff was never properly 

assigned any rights under the lease.

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Specifically, as the parties’ statements of fact recount, the lease was 

executed on June 17, 2008 between the not-for-profit organization Ne’er 

Too Late Lodge and SWEPI’s predecessor-in-interest, East Resources, 

Inc.

145 Though the validity of the assignment of rights from East Resources,

to East Resources Management, and ultimately to SWEPI is uncontested, 

Defendant takes issue with the purported transfer of rights that occurred 

between Ne’er Too Late Lodge and Camp Ne’er Too Late, LP.

Defendant’s challenge centers on the two inconsistent transactions 

that transpired after Ne’er Too Late Lodge signed the lease. Specifically, on 

November 14, 2008, five months after the lease was executed, Ne’er Too 

Late Lodge assigned all of its rights under the lease to its individual 

shareholders.146 As part of the assignment, each of Ne’er Too Late Lodge’s

nine shareholders accepted an interest in the rights under lease in 

 

145

 ECF No. 29 at 4 ¶ 16. ECF No. 38 at 3 ¶ 16.

146

 ECF No. 29 at 3 ¶ 11. ECF No. 38 at 2 ¶ 11.

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proportion to their ownership share in Ne’er Too Late Lodge.

147 That 

assignment was never recorded.148

Approximately eighteen months later in April 2010, those same nine 

shareholders of Ne’er Too Late Lodge formed Camp Ne’er Too Late, LP.

149

Curiously, Ne’er Too Late Lodge, on August 2, 2010, once again assigned 

its rights under the lease, this time to Camp Ne’er Too Late.

150 Unlike the 

first assignment of the lease rights to Ne’er Too Late Lodge’s shareholders, 

this subsequent assignment was recorded in the Recorder of Deeds Office 

of Tioga County, Pennsylvania.

151

 

147

 ECF No. 29 Ex. 3 at 3.

148

 ECF No. 29 at 3 ¶ 12. ECF No. 38 at 2 ¶ 12.

149

 ECF No. 29 Ex. 1. Although Plaintiff has provided the percentage of each 

shareholder’s capital contribution to Ne’er Too Late Lodge, I agree with 

Defendant that the issue of whether the supplied ownership breakdown of 

Camp Ne’er Too Late, LP, is identical to that of Ne’er Too Late Lodge (and 

consequently, that of the November 2008 assignment) is unresolved on the 

present record. ECF No. 29 Ex. 1 at 23.

150

 ECF No. 29 at 3 ¶ 13. ECF No. 38 at 2 ¶ 13. 

151

 Id. See also ECF No. 29 Ex. 5. Neither party discusses the potential that the 

November 2008 transfer, not having been recorded, would have fallen second 

in priority as to the August 2010 recorded assignment or the result such 

dynamic would have had upon the standing issue.

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As fully recited in the facts section above, Plaintiff has stipulated 

that the August 2010 assignment assigned to the Camp Ne’er Too Late

only those rights that remained after the November 2008 assignment to the 

individual shareholders of Ne’er Too Late Lodge.

152 Thus, the parties agree 

that the individual shareholders—and not Camp Ne’er Too Late—were the 

actual assignees of the Ne’er Too Late Lodge’s rights under the lease.153

The lease rights having vested to the individual shareholders, 

Defendant points out that at no time did the individual shareholders 

either: (i) convey those rights back to Lodge before Lodge assigned them to 

Camp or (ii) assign them directly to Camp.

154 Accordingly, as Defendant 

would have it, Plaintiff does not have standing to enforce any rights 

pursuant to the lease executed between Defendant’s predecessor-ininterest and Ne’er Too Late Lodge, because Plaintiff never received an 

assignment of those rights in full.

 

152 ECF No. 38 at 2 ¶ 13.

153

 Id.

154

 ECF No. 29 at 3 ¶¶ 14–15. ECF No. 38 at 2–3 ¶¶ 14–15.

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Plaintiff’s primary argument to the contrary is that Defendant has 

overlooked the fact that although Plaintiff was not a party to the original 

lease and lease addendum, it was a party to the 2010 right-of-way 

agreement. Because the addendum to the 2010 right-of-way agreement

references the lease and lease addendum, Plaintiff contends that it does 

have the requisite standing to pursue the instant claim.155

In my view, the standing dispute in this matter essentially boils 

down to the following question: Does a signatory to an agreement have 

standing to advance a breach of contract claim by alleging that the 

disputed agreement incorporates unfulfilled provisions of an earlier 

 

155 Plaintiff also contends that the standing dispute could be resolved on a 

different basis, namely, that the partners of Camp Ne’er Too Late, LP, made 

initial contributions equivalent to their proportionate stake in the lease. 

Although Plaintiff has provided the percentage of each shareholder’s capital 

contribution to Lodge, I agree with Defendant that the issue of whether the 

supplied ownership breakdown of Camp Ne’er Too Late, LP is identical to 

that of Ne’er Too Late Lodge (and consequently, that of the November 2008 

assignment) is unresolved on the present record, as the Court has only been 

provided with the initial capital contribution breakdown but not with the 

proportions of ownership as they relate to the rights under the lease. See ECF 

No. 29 at 3 ¶ 13. ECF No. 38 at 2 ¶ 13. Compare ECF No. 29 Ex. 1 at 23 (listing 

ownership percentages), with ECF No. 29 Ex. 3 (listing no ownership 

percentages).

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agreement to which the plaintiff was not a signatory? The answer, 

according to Pennsylvania contract law and everyday practice, is yes.156

Although I agree with Plaintiff on its standing to bring the instant 

suit, I find it important to note that its success on this issue comes at a very 

narrow margin. Specifically, the outcome would likely be different if the 

parties here had never executed the subsequent right-of-way agreements, 

and Plaintiff was forced to bring its claim directly under the lease or its 

addendum. In that sense, this case is much more focused upon 

interpretation of the 2010 right-of-way agreement’s addendum than it is 

upon so analyzing the terms of the initial lease. Because of that, Plaintiff 

possesses a sufficient basis to proceed with this action.

At this juncture, however, it is also important to recognize that the 

outcome of the standing issue in Plaintiff’s favor is not determinative as to 

the merits of its claim. The issues of standing and breach in this dispute, 

though similar in some respects, are necessarily distinct as a matter of law. 

 

156

 “A federal court sitting in diversity must apply state substantive law and 

federal procedural law.” Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 

2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (Brandeis, J.)).

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The issue of standing is a preliminary one, resolvable by a federal court at 

the outset of its disposition and before reaching the merits. As the United 

States Court of Appeals for the Third Circuit has observed in an analogous 

context, “our determination of the likelihood of success on the merits of 

the case is a separate inquiry from the threshold issue of Article III 

standing. To demonstrate its standing to sue, a plaintiff must only allege

that they have suffered sufficient injury to comply with Article III’s ‘case 

or controversy’ requirement.”

157

That is to say, although Plaintiff has standing to sue for a breach of 

the 2010 right-of-way agreement by alleging a derivative breach of the 

lease addendum, it still must establish that the pertinent provision on 

which it relies, Paragraph 12 of the lease addendum, was clearly

incorporated into the 2010 right-of-way agreement and thereafter violated. 

In that sense, because the contested provision was alleged to have been 

incorporated into the 2010 right-of-way agreement in conditional fashion,

Plaintiff must first prove that the conditions necessitating such 

 

157 The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000) (Nygaard, J.).

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incorporation were actually satisfied. This is the determination to which 

the Court turns in Part III.B.

“The requirement of standing under Pennsylvania law is prudential 

in nature, and stems from the principle that judicial intervention is 

appropriate only where the underlying controversy is real and concrete, 

rather than abstract.”158 “A party has standing to bring a cause of action if 

it is ‘aggrieved’ by the actions complained of, that is, if its interest in the 

outcome of the litigation is substantial, direct, and immediate.”159 “A 

‘substantial’ interest is one that surpasses the common interest of all 

citizens in procuring obedience to the law.”

160 “A ‘direct’ interest requires a 

showing that the matter complained of caused harm to the party.”161 “An 

‘immediate’ interest involves the nature of the causal connection, see id.,

and signifies that judicial intervention is ordinarily inappropriate when the 

 

158 City of Phila. v. Commonwealth, 575 Pa. 542, 559, 838 A.2d 566, 577 (2003).

159 City of Phila. v. Schweiker, 579 Pa. 591, 604, 858 A.2d 75, 83 (2004).

160 Hosp. & Healthsystem Ass’n of Pa. v. Com., 621 Pa. 260, 279, 77 A.3d 587, 599 

(2013) (internal citations omitted). 

161 Id.

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harm alleged is remote and speculative.”

162 Thus, “[s]tanding requires a 

party to have a substantial interest in the subject matter of the litigation; 

the interest must be direct; and the interest must be immediate and not a 

remote consequence.”163

In ACTEGA Kelstar, Inc. v. Musselwhite, for instance, the United 

States District Court for the District of New Jersey interpreted New Jersey 

state contract law, which closely tracks Pennsylvania law on the issue of 

enforcement by non-signatories.

164 The court in ACTEGA addressed 

whether a plaintiff corporation that did not sign an original employment 

contract could enforce a restrictive covenant in that contract solely as a 

result of that corporation having executed an amended agreement that 

incorporated the contested restrictive covenants.165 The court held that it 

could. “[T]hat Plaintiff was not a party to the original employment 

agreement does not prevent Plaintiff from seeking to enforce the restrictive 

 

162 Id.

163 In re Trust Under Deed of Green, 2001 PA Super 186, ¶ 17, 779 A.2d 1152, 

1157 (2001) (quoting Ken R. on Behalf of C.R. v. Arthur Z., 546 Pa. 49, 682 

A.2d 1267, 1270 (1996)).

164

 No. CIV. 09-1255(RBK/JS), 2009 WL 1794793, at *3 (D.N.J. June 22, 2009).

165

 Id.

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covenants,” the court confirmed, since “Plaintiff is a party to the 

Amendment, in which Defendant expressly agreed that he would be 

bound by the restrictive covenants in the [original] contract.”166

Furthermore, in a related setting, the Supreme Court of 

Pennsylvania has recognized that the creditor of a trust who was not a 

named in the trust’s originating documents may nevertheless compel an 

accounting of such trust if the creditor later enters into agreements 

premised upon the trust’s creation. “Although appellant was not a party to 

the original agreement,” the Supreme Court of Pennsylvania wrote, 

“subsequent to its date, and after the execution of the deed, he entered into 

an extension agreement which recognized the status of affairs created by 

the trust deed and its incorporated agreement.”167

Miller v. Butler, a matter before the United States District Court for 

the District of New Jersey, involved a breach of contract suit brought by an 

individual investor against an investment fund that had been organized as 

 

166

 Id.

167

 In re Wheeler’s Estate, 287 Pa. 416, 418, 135 A. 252, 252 (1926).

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a limited liability company.168 Miller confirms that courts may find 

adequate standing in contract disputes where the plaintiffs themselves 

contributed the contested property, even if those plaintiffs were not parties 

to the underlying contract. In that case, the individual plaintiff was not a 

member of the defendant limited liability company, but a separate limited 

liability company that he owned was a member.

169 The defendant limited 

liability company raised the issue of standing as to plaintiff’s breach of 

contract claim, as the plaintiff personally was not a signatory to the 

defendant’s operating agreement.170 The district court rejected that 

argument and reasoned that “Plaintiff has standing since the funds to 

purchase the [contested fund] were transferred by and from him.”171

Turning to the instant matter, recall that the final version of the 

introductory paragraph of the addendum to the 2010 right-of-way 

agreement reads as follows:

 

168

 No. 1:12-CV-01004 RBK/JS, 2012 WL 5868962, at *2 (D.N.J. Nov. 16, 2012).

169

 See id.

170

 Id.

171

 Id.

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This addendum is attached to and made part of that certain 

Right of Way Agreement dated October 19, 2010. If any of the 

following provisions conflict with or are inconsistent with any 

of the printed provisions or terms of the Right of Way 

Agreement or Original Oil and Gas Lease and Addendum the 

following provisions, and the non conflicting terms of the 

Original Oil and Gas Lease and its Addendum, shall control 

and be deemed to supersede the printed terms of the Right of 

Way Agreement.172

Considering the above language in light of the foregoing authorities, 

I would find that Plaintiff has adequately established standing to pursue 

its claims here, since it was party to subsequent agreements that allegedly 

incorporated the contested provisions. In this manner, Plaintiff enjoys 

standing not directly via the lease and addendum but derivatively as a 

signatory to subsequent amendments that referenced those documents and 

contemplated conditional incorporation of certain of the documents’ terms.

By way of example, contemplate the scenario in which the second 

sentence of the above-quoted paragraph from Plaintiff’s 2010 right-of-way 

agreement began not with “If any of the following provisions conflict with 

or are inconsistent with any of the printed provisions or terms of the Right 

 

172 ECF No. 29 at 10–11 ¶ 59. ECF No. 38 at 6 ¶ 59. See also ECF No. 29 Ex. 12 at 5 

(“Addendum”).

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of Way Agreement or Original Oil and Gas Lease and Addendum” but 

with “If any of the following provisions conflict with or are inconsistent 

with any of the printed provisions or terms of the 2008 Merger Agreement 

between Company A, Inc., and Company B., Inc.” or with “If any of the 

following provisions conflict with or are inconsistent with any of the 

printed provisions or terms of the 2008 Right-of-Way Agreement between 

Tioga County, Pennsylvania Landowner John Doe and SWEPI, LP.”

I hardly think that whether Plaintiff here was a party to the 

hypothetical 2008 Merger Agreement or the hypothetical 2008 Right-ofWay Agreement in Tioga County makes any difference in the 

determination of whether Plaintiff would have standing to sue for a breach 

of the hypothesized right-of-way agreements. Those terms are effected in a 

derivative rather than a direct sense, but they do not preclude Plaintiff 

from suing based upon the agreement it did in fact sign.

In addition, courts interpreting common law contract principles 

agree that “a party may adopt and be bound to a contract to which it was 

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not originally a signatory.”173 Such construction is particularly apt where 

the “plaintiff had not been created at the time the agreement was drafted 

and signed” but “had an explicit relationship” to the agreement.174 “There 

are no magic words to explicitly adopt a contract.”175 “Third parties to a 

contract become parties who are bound by the contract’s terms by either 

explicitly or implicitly adopting the agreement.”176

“Express adoption occurs when a successor adopts a contract of a 

predecessor as its own.”177 “Implicit adoption occurs when a party accepts 

benefits intended for third party beneficiary.”178 “Courts will often find 

implicit adoption when a party who has received benefits of a contract 

then tries to avoid burdens imposed by the same contract.”

179

 

173

 Am. Legacy Found. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 

640 F. Supp. 2d 524, 538 (D. Del. 2009), aff’d sub nom Am. Legacy Found., RP 

v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 623 F.3d 135 (3d Cir. 2010).

174

 See id.

175 In re Fed.-Mogul Glob., Inc., 526 B.R. 567, 576 (D. Del. 2015).

176

 Id.

177

 Id.

178

 Id.

179

 Id.

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Relatedly, contracts may be implied from the course of the parties’

conduct. For instance, “as a result of plaintiff’s actions, statements, and the 

benefits it received as a direct result of the [agreement], the [agreement] 

can be held to be an implied in fact contract as it relates to plaintiff.”

180

“An implied in fact contract has the legal equivalency of an express 

contract.”

181 As the Superior Court of Pennsylvania has concluded, “[a]

contract implied in fact can be found by looking to the surrounding facts of 

the parties’ dealings.”182 “Implied contracts . . . arise under circumstances 

which, according to the ordinary course of dealing and the common 

understanding of men, show a mutual intention to contract.”183

The Third Circuit has explained that application of such doctrines, 

like those of adoption, equitable estoppel, and implied-in-fact contracts, 

“prevent[s] a non-signatory from embracing a contract, and then turning 

 

180

 Id. n. 33.

181

 Id.

182

 Tyco Elecs. Corp. v. Davis, 2006 PA Super 64, ¶ 3, 895 A.2d 638, 640 (2006).

183

 Id.

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its back on the portions of the contract . . . that it finds distasteful.”184 In 

line with these common law contract principles, the particular course of 

dealing here compels the conclusion that Plaintiff has standing to sue 

based upon its allegations that certain of the lease addendum’s provisions 

were incorporated into the 2010 right-of-way agreement and thereafter

violated.

For instance, Defendant does not contest that after Plaintiff was 

formed, several negotiations between Plaintiff and Defendant were held 

with the purpose of agreeing to several right-of-way agreements.185 Those 

negotiations between Plaintiff and Defendant resulted in two right-of-way 

agreements, which although distinct, referenced the initial lease and 

addendum.

186 Moreover, Defendant or its predecessor-in-interest East 

Resources Management compensated Plaintiff $59,610.00 and $99,220.00, 

respectively, in consideration for the 2010 and 2011 right-of-way 

 

184 E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, 

S.A.S., 269 F.3d 187, 200 (3d Cir. 2001) (Barry, J.).

185

 ECF No. 29 at §§ D–E (discussing the creation of the 2010 and 2011 Right-ofWay Agreements).

186

 See id.

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agreements.187 As Plaintiff suggests, Defendant “cannot have it both ways 

by alleging that Plaintiff entered into various fully integrated agreements, 

and was paid according to those agreements, including shut-in payments 

under the Lease, while also asserting that Plaintiff does not have standing 

to bring suit for breach of the Lease.”188

I think it enough that both the text of the 2010 right-of-way 

agreement and the course of the parties’ dealings afford Plaintiff standing 

and permit the Court to advance to the merits.

B. Summary Judgment Is Appropriate In Favor Of Defendant 

Because There Is No Genuine Dispute Of Material Fact That 

The 2010 Right-Of-Way Agreement Fails To Incorporate 

Paragraph 12 Of The Lease Addendum And That The 

Defendant Therefore Did Not Breach The 2010 Right-OfWay Agreement By Constructing A Pipeline That 

Transported Non-Native Gas.

“The court can grant summary judgment on an issue of contract 

interpretation if the contractual language being interpreted ‘is subject to 

 

187

 ECF No. 29 at 14 ¶ 78, 17 ¶ 98. ECF No. 29 at 10 ¶ 78, 12 ¶ 98. 

188

 ECF No. 39 at 4–5.

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only one reasonable interpretation.’”

189 “Under Pennsylvania law, the 

Court must determine, as a matter of law, whether the relevant contract 

terms are ambiguous.”

190 “If the contract is unambiguous, then it is for the 

Court to decide whether the contract was breached.”

191

Contract interpretation is an “attempt to ascertain the intent of the 

parties and give it effect,” and “[w]hen the words of an agreement are 

clear and unambiguous, the intent of the parties is to be ascertained from 

the language used in the agreement.”192 Where the words are ambiguous, 

on the other hand, “parol evidence is admissible to explain or clarify or 

resolve the ambiguity.”193

 

189 Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 164 (3d Cir. 2001) 

(quoting Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 

521 (3d Cir.1999)). See also Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 

413, 418 (3d Cir. 2013) (Ambro, J.).

190 Gen. Refractories Co. v. Fed. Ins. Co., No. CIV.A. 00-5508, 2001 WL 1580173, 

at *3 (E.D. Pa. Dec. 6, 2001)

191 Id.

192 LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 

(2009).

193 Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 905 A.2d 462, 469 

(2006).

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When determining whether the language of an agreement is clear or 

ambiguous, the Court assumes that the parties intend “all provisions in the 

agreement [to] be construed together and . . . given effect.”194 The “focus 

. . . is upon the terms of the agreement as manifestly expressed, rather than 

as, perhaps, silently intended.”195

Accordingly, the Court assumes generally that the parties have 

given words their “commonly accepted and plain meaning,” but also 

recognizes “that every agreement is made and to be construed with due 

regard to the known characteristics of the business to which it relates . . . 

and hence the language used in a contract will be construed according to 

its purport in the particular business, although this results in an entirely 

different conclusion from what would have been reached had the usual 

meaning been ascribed to those words.”196

Interpretation is not concerned with the parties’ “post hoc 

judgment[s] . . . as to what should have been,” and the Court will not “rely 

 

194 Id.

195 Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (1982).

196 Franklin Sugar Ref. Co. v. Howell, 274 Pa. 190, 118 A. 109, 110 (1922).

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upon a strained contrivancy” to establish ambiguity.197 “The Court, rather, 

seeks to be faithful to the meaning that the parties—given their positions at 

the time of contracting—would have given their words ex ante.”

198

Moreover, “[t]he issue of whether a writing constitutes an integrated 

contract is a question of law.”199 “A contract is integrated if it represents a 

final and complete expression of the parties’ agreement.”

200 “Where a 

contract purports to be a complete legal obligation without any doubt as to 

its object or extent, it is presumed to reflect the whole legal right of the 

parties.”201

“[A] lease is in the nature of a contract and is controlled by 

principles of contract law.”202 “It must be construed in accordance with the 

 

197 Steuart, 444 A.2d at 663.

198 Roe v. Chief Expl. & Dev. LLC, No. 4:11-CV-00579, 2013 WL 4083326, at *5 

(M.D. Pa. Aug. 13, 2013).

199 Lenzi v. Hahnemann Univ., 445 Pa. Super. 187, 195, 664 A.2d 1375, 1379 

(1995) (citing Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 

401, 490 A.2d 839 (1985)).

200 Lenzi, 445 Pa. Super at 195 (citing McGuire v. Schneider, Inc., 368 Pa.Super, 

344, 534 A.2d 115 (1987)).

201 Lenzi, 445 Pa. Super at 195 (citing McGuire, 368 Pa.Super, at 344).

202 T.W. Phillips Gas & Oil Co. v. Jedlicka, 615 Pa. 199, 208, 42 A.3d 261, 267 

(2012) (internal citation omitted).

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terms of the agreement as manifestly expressed, and the accepted and 

plain meaning of the language used, rather than the silent intentions of the 

contracting parties, determines the construction to be given the 

agreement.”203

“The best evidence of what parties to a written agreement intend is 

what they say in their writing.”204 Thus, the Supreme Court of 

Pennsylvania has acknowledged that if an agreement’s words “are clearly 

susceptible of but one interpretation,” the scope of that agreement “must 

be found in them alone.”205 “What ought to have passed . . . or what ought 

to be understood as having passed, is never a question for a court, when 

the grant itself, in words not to be misunderstood, states exactly what did 

pass.”206 In cases of such clarity, “[t]he law will not imply a different 

contract from that which the parties themselves made.”207

 

203 Id. (internal quotation marks omitted).

204 Benihana of Tokyo, Inc. v. Benihana, Inc., 59 F. Supp. 3d 654, 660 (D. Del. 

2014), aff’d, 622 F. App’x 169 (3d Cir. 2015) (quoting Greenfield v. Philles 

Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 (2002)).

205 Cubbage v. Pittsburg Coal Co., 216 Pa. 411, 414, 65 A. 797, 798 (1907).

206 Id.

207 Greek v. Wylie, 266 Pa. 18, 23, 109 A. 529, 530 (1920). 

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1. The lease and the subsequent right-of-way 

agreements are separate legal documents that

constitute distinct agreements. Therefore, Plaintiff can 

prevail only if Paragraph 12 of the lease addendum 

was incorporated by the introductory paragraph of the 

addendum to the 2010 right-of-way agreement.

As a starting point, I must determine whether the agreements at 

issue are appropriately viewed as separate writings constituting a single 

transaction or separate writings to be treated as distinct contractual 

agreements. The latter is more true to the factual backdrop in this case.

Even if there exists “a relationship between the work performed” 

under one agreement and that contemplated by another, the presumption, 

absent indication otherwise, is that they constitute “two separate contracts, 

not two separate writings that were to be construed as two parts of one 

contract.”

208 This is true even if the two agreements “concern the same 

subject matter” or “are part of the same bargain.”

209 A key consideration is 

 

208 Capricorn Power Co. v. Siemens Westinghouse Power Corp., 324 F. Supp. 2d 

731, 751 (W.D. Pa. 2004) (Gibson J.).

209 Id. at 750–51.

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whether, upon execution of one agreement, the parties “have established 

rights as between themselves.”210

In discerning whether “two agreements, while related, were 

intended to be separate agreements,” courts have considered the following 

factors: 

(1) whether the agreements were executed at different times;

(2) whether the agreements related to different subject matters;

(3) whether the agreements were not made between the same 

parties;

(4) whether the agreements contained integration clauses;

(5) whether one agreement could survive should the other be 

terminated;

(6) whether the agreements were intended as consideration for 

one another;

(7) whether the agreements contained different choice of law or 

dispute resolution provisions; and

(8) whether subsequent amendments to one agreement have left

similar provisions of the other agreement unchanged.

211

 

210 Id. at 751.

211 In re AbitibiBowater Inc., 418 B.R. 815, 824 (Bankr. D. Del. 2009).

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Considering all of the facts and circumstances applicable to the 

instant matter, I am satisfied that the original 2008 oil and gas lease with

addendum was intended to function as an agreement distinct from the 

subsequent 2010 pipeline right-of-way and addendum. Despite the fact 

that the agreements were executed between the same parties (or their 

predecessors-in-interest) and concern the same general economic activity 

(natural gas drilling), the remainder of the circumstances that I have 

considered counsel for treating these agreements as distinct contracts.

Most apparently, the agreements were the result of several

temporally distinct sets of negotiations, regarded several separate 

contractual rights, involved several forms of consideration paid, and 

ultimately resulted in several separate agreements, each with its own 

integration clause. Critically, the textual differences between the 2008 lease 

and the 2010 right-of-way agreement signal a distinction in the types of 

contractual rights each agreement bestowed upon Defendant. On one 

hand, the 2008 lease granted Defendant the right to drill and maintain 

wells on Plaintiff’s property, while also constructing a pipeline to transport 

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native gas only. Two years later, however, the parties found it necessary to 

negotiate as to construction of a pipeline not only capable of carrying nonnative gas, but also constructed with certain other geographic 

modifications than initially planned. One need only ask: if Plaintiff’s well 

was to cease production, would Defendant be forced to tear up the existing 

stretch of pipeline on the leased premises, or vice versa? Clearly, the 

answer is no, not only in a theoretical sense, but also because that precise 

separation of such rights has already played itself out in this matter.

Plaintiff cites to Southwestern Energy Production Co. v. Forest 

Resources, LLC, which according to Plaintiff’s opposition brief, stands for 

the proposition that “where several documents are made as part of one 

transaction, they will be read together and each will be construed with 

reference to the others even if the documents were executed at different 

times and do not in terms refer to each other.”

212 That argument relies on a 

fallacious premise and would also otherwise requires the explicit 

 

212 2013 PA Super 307, 83 A.3d 177 (2013). See also ECF No. 39 at 8.

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incorporation of one document’s terms into the second, which is not the 

case here. 

The faulty premise inapplicable to this matter is that cases like 

Southwestern Energy rely on the disputed documents having been made 

“as part of one transaction.”213 Specifically, Southwestern Energy involved 

a dispute between an initial oil and gas lease and two subsequent letter 

agreements that explicitly amended certain terms of the original lease.214 In 

Southwestern Energy, the Honorable Sallie Updyke Mundy of the 

Superior Court of Pennsylvania made clear that “by their own terms,” the 

agreements at issue “reference and incorporate each other with the clear 

intent they should be interpreted as a single agreement.”

215 Quite opposite 

from the facts at hand, one of the two subsequent lease amendments in 

Southwestern Energy even “identifie[d] itself as an amendment of the 

 

213 ECF No. 39 at 8.

214 Southwestern Energy, 83 A.3d at 181.

215 Id. at 187.

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[prior] [a]greement, not an independent collateral agreement.”216 Such is 

simply not true of the course of dealing in this case as recited above.

Because the 2008 oil and natural gas lease and addendum and the 

subsequent 2010 pipeline right-of-way agreement and addendum are 

distinct agreements, I must next consider whether there is any genuine 

dispute of material fact that Paragraph 12 of the lease addendum was not

incorporated by the introductory paragraph of the addendum to the 2010 

right-of-way agreement.

2. There is no genuine dispute of material fact that 

Paragraph 12 of the lease addendum was not 

incorporated by the introductory paragraph of the 

addendum to the 2010 right-of-way agreement.

“[U]nder Pennsylvania law, incorporation by reference is proper 

where the underlying contract makes clear reference to a separate 

document, the identity of the separate document may be ascertained, and 

incorporation of the document will not result in surprise or hardship.”217

Another federal court interpreting Pennsylvania law has instructed that 

 

216 Id. at 188.

217 Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746, 761 (3d 

Cir. 2016) (Cowen, J.) (internal quotation marks omitted).

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“[t]he doctrine of incorporation by reference dictates that where a writing 

refers to another document, that other document, or so much of it as is 

referred to, is to be interpreted as part of the writing.”218

“Incorporation by reference is a question of law.”219 It “requires a 

reference in one document to the terms of another. Moreover, the 

incorporating document must not only refer to the incorporated document, 

it must bring the terms of the incorporated document into itself as if fully 

set out.”

220

As the facts here reveal, evidence of an intent between the parties to 

incorporate the contested provisions from the 2008 lease agreement into 

the subsequent 2010 right-of-way agreement is strained at best in an 

everyday sense and wholly inoperative from a legal perspective. The text 

 

218 Shadowbox Pictures, LLC v. Glob. Enterprises, Inc., No. CIV.A. 05-2284, 2006 

WL 120030, at *7 (E.D. Pa. Jan. 11, 2006).

219 Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1343 

(Fed. Cir. 2008).

220 Sucesion J. Serralles, Inc. v. United States, 46 Fed. Cl. 773, 785 (2000). Accord

Northrop, 535 F.3d at 1344–47; Standard Bent Glass Corp. v. Glassrobots 

Oy, 333 F.3d 440, 447 (3d Cir.2003).

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of the introductory paragraph of the addendum to the 2010 right-of-way 

agreement is the cornerstone of my determination. It reads as follows:

This addendum is attached to and made part of that certain 

Right of Way Agreement dated October 19, 2010. If any of the 

following provisions conflict with or are inconsistent with any 

of the printed provisions or terms of the Right of Way 

Agreement or Original Oil and Gas Lease and Addendum the 

following provisions, and the non conflicting terms of the 

Original Oil and Gas Lease and its Addendum, shall control 

and be deemed to supersede the printed terms of the Right of 

Way Agreement.221

For all intents and purposes, the above-quoted language is the sole 

source of support upon which Plaintiff bases its argument. It is too 

insubstantial a showing to avoid summary judgment. The first inquiry

goes to the paragraph’s ambiguity, of which I would determine there is 

none, and that is the only viable interpretation. 

There is, for instance, no ambiguity as to the conditional nature of

incorporation: “If any of the following provisions conflict with or are 

inconsistent with any of the printed provisions or terms of the Right of 

Way Agreement or Original Oil and Gas Lease and Addendum” is the 

 

221 ECF No. 29 at 10–11 ¶ 59. ECF No. 38 at 6 ¶ 59. See also ECF No. 29 Ex. 12 at 5 

(“Addendum”).

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condition’s antecedent. Absent any evident conflict between one of the 

enumerated provisions of the 2010 right-of-way agreement’s addendum, 

incorporation of any term from any other document is textually foreclosed. 

Notably, none of the terms in the 2010 right-of-way agreement’s 

addendum address the distinction between native and non-native gas at 

all. What would have been the obvious course of action by a party who 

sought above all else to preserve the native gas requirement? Certainly, it 

would have been to include an explicit provision referencing the 

preservation and incorporation of Paragraph 12 of the original lease’s 

addendum into all subsequent right-of-way agreements. At least that 

much would have been apparent to a legal professional reasonably 

practiced in the arena of oil and gas law. In effect, Plaintiff would have 

been far better off to have simply said more with less.

Moreover, upon review of the parties’ arguments as to the existence 

of any patent conflicts, it would be clear to any reasonable trier of fact that 

no such conflicts exist. Plaintiff’s sole and rather tepid attempt to present

conflicting terms is that the 2010 right-of-way agreement states that 

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Defendant “shall pay reasonable damages which, if any, may arise to 

crops, fences, buildings, and drain tile from laying operating, maintaining, 

repairing, replacing and removing said pipeline(s),” whereas the 

addendum to that agreement requires Defendant to “promptly replace any 

barrier, including but not limited to fences and stone walls removed by 

[Defendant] during the operations on said land.”222

Stepping back and taking a broad view of things, that is an awkward

argument. In the first instance, were Plaintiff correct, that would 

effectively mean that the parties entered into a right-of-way agreement 

whose terms were made immediately ineffective upon simultaneous 

execution of the addendum. “[I]f the plain meaning of a contract term 

would lead to an interpretation that is absurd and unreasonable, 

Pennsylvania contract law allows a court to construe the contract 

otherwise in order to reach the only sensible and reasonable interpretation 

of the contract.”

223 If there exists a conflict between the provisions of the 

 

222 ECF No. 38 at 8 ¶ 70.

223 Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 96 (3d Cir. 

2001) (Becker, C. J.) (internal quotations omitted).

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right-of-way and its addendum now, then there existed a conflict the 

moment documents were brought to fruition, rendering the right-of-way 

agreement ineffective, according to Plaintiff. That would lead to the most 

absurd of consequences and tellingly, is a consequence of Plaintiff’s failure 

to simply include plain language as to the native gas restriction that would 

have glaringly conflicted with Paragraph 12 of the lease addendum 

without such interpretive strain.

Secondly, Plaintiff’s contention that a conflict exists between a

provision that requires replacement of a removed fence and another that 

mandates a reasonable payment for damage to a retained fence is without 

merit on other grounds. As Defendant adequately outlines in its reply 

brief, those provisions co-exist “harmoniously” so as to cover two distinct 

scenarios: the first, outright replacement and the second, payment for 

minor repairs short of those requiring a new fence altogether.

Thirdly, even if there were a conflict as to the repair or replacement 

of fences, the Court is at an interpretive loss as to how such conflict would 

justify complete eradication of the right-of-way agreement rather than 

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meticulous substitution of the original conflicted term regarding fences. 

That the parties conditioned the entirety of the right-of-way agreement on 

the discovery of such picayune distinctions is hard to imagine, both as a 

matter of practice and common sense.

The more charitable interpretation, and truly the only reasonable 

one, is that where a conflict exists between a term in the lease or right-ofway agreement and a term in the right-of-way agreement’s addendum, 

then as stated, that conflicting provision of the addendum would 

supersede the conflicted term of the right-of-way agreement. Nowhere 

from the quoted language can it be discerned that a conflict involving a 

single fence post would nullify the remaining non-conflicting terms of the 

agreement and require halting the pipeline. That is certainly not what the 

parties bargained for.

Having concluded that there is simply no ambiguity as to whether 

Paragraph 12 of the lease addendum was incorporated by reference into 

the subsequent right-of-way agreement or addendum, I would add that 

the record in this case quite convincingly demonstrates that Plaintiff’s 

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representative played a significant role in drafting the contested language, 

requiring that any such ambiguity should nevertheless be construed in 

favor of Defendant. “[U]nder the rule of contra proferentem, any 

ambiguous language in a contract is construed against the drafter and in 

favor of the other party if the latter’s interpretation is reasonable.”224 Not 

only was David Schwoyer, Sr., admittedly instrumental in the drafting of 

the contested addendum language, but it is precisely his choice of words 

from which the present dispute flows.

Finally, although it follows logically from the preceding discussion, 

it is worth explicitly holding that because Paragraph 12 of the lease 

addendum was not properly incorporated into any subsequent agreement, 

Defendant committed no breach when it used the subject pipeline to 

transport non-native gas. Neither has Plaintiff adduced any contractual 

language indicating that Defendant has breached its obligations by failing 

to develop any additional wells on the leased premises. In light of the 

highly undulant nature of the industry’s business cycle, this Court finds it 

 

224 Colorcon, Inc. v. Lewis, 792 F. Supp. 2d 786, 797 (E.D. Pa. 2011) (citing Sun 

Co. v. Pa. Tpk. Comm’n, 708 A.2d 875, 878–79 (Pa.Commw.Ct.1998)).

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necessary to construe such “failure to develop” claims with a hesitant 

perspective. To that end, federal courts must “demonstrate[ ] a measured 

temperance” when disposing of such claims, “recognizing full well that it 

is not the judiciary’s place to substitute its own judgment for that of a 

business manager whose day-to-day closeness with his firm’s operations 

commands a certain deference.”

225

C. Plaintiff’s Course Of Conduct Is Sufficient To Conclude

That It Waived Any Expectation Or Right To Preserve The 

Domestic Gas Limitation. Plaintiff Is Thereby Estopped 

From Now Asserting Such A Claim.

“A waiver in law is the act of intentionally relinquishing or 

abandoning some known right, claim or privilege.”

226 “To constitute a 

waiver of legal right, there must be a clear, unequivocal and decisive act of 

the party with knowledge of such right and an evident purpose to 

surrender it.”227 “Waiver is essentially a matter of intention.”

228 “A waiver 

 

225 Moore v. CVS Rx Servs., Inc., No. 4:14-CV-01318, 2015 WL 6692266, at *16 

(M.D. Pa. Oct. 30, 2015).

226 Brown v. City of Pittsburgh, 409 Pa. 357, 360, 186 A.2d 399, 401 (1962) (Eagen, 

J.) (emphasis in original).

227 Id.

228 Id.

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may be express or implied, but in the absence of an express agreement a 

waiver will not be presumed or implied contrary to the intention of the 

party whose rights would be injuriously affected thereby, unless by his 

conduct the opposite party has been misled, to his prejudice, into the 

honest belief that such waiver was intended or consented to.”229

As such, “[w]aiver can be express or implied from conduct in 

situations that would support equitable estoppel.”

230 “Equitable estoppel 

arises when one by his acts, representations, or admissions, or by his 

silence when he ought to speak out, intentionally or through culpable 

negligence induces another to believe certain facts to exist and such other 

rightfully relies and acts on such belief, so that he will be prejudiced if the 

former is permitted to deny the existence of such facts.”

231

Applying these doctrines to the context of real property, the 

Superior Court of Pennsylvania has recognized that “[w]hen an owner of 

 

229 Atl. Ref. Co. v. Wyoming Nat. Bank of Wilkes-Barre, 356 Pa. 226, 236-37, 51 

A.2d 719, 725 (1947).

230 Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 148 (3d Cir. 1999) (Becker, 

C. J.).

231 Nw. Nat. Bank v. Commonwealth, 345 Pa. 192, 196, 27 A.2d 20, 23 (1942).

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land, with full knowledge of the facts, tacitly permits another to do acts 

upon the land, a license is implied.”

232 Although such permission is in 

certain circumstances revocable, it “may become irrevocable when the 

person granted the license has expended money and treated the property 

in a manner that they would not have treated it, but for the license.”

233

In Zivari v. Willis, for example, the Superior Court of Pennsylvania 

found the doctrines of waiver and equitable estoppel appropriate in a 

property dispute involving access to land.234 That case involved neighbors 

whose properties abutted each other in a cul-de-sac development.

235 One of 

the neighbors sought to remove his driveway and situate it differently on 

his land such that access to from his new driveway to the public cul-de-sac 

required him to briefly travel upon his neighbor’s private road.236 When 

the neighboring owner of the private road observed the construction, he 

 

232 Zieglar v. Reuss, No. 1588 WDA 2013, 2014 WL 10916932, at *10 (Pa. Super. 

Ct. June 20, 2014)

233 Id.

234 Zivari v. Willis, 416 Pa. Super. 432, 434, 611 A.2d 293, 294 (1992).

235 Id.

236 Id. at 434–35.

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remarked, “Well of course, I’ll let you use it, but you should have 

asked.”237 When the owner of the private road later challenged his 

neighbor’s using the road, the Superior Court rejected the owner’s claim 

on the grounds of waiver and equitable estoppel, noting that “once 

appellees relied on this statement to their detriment, appellants are 

estopped from denying appellees access to the road.”238

Despite its failure to incorporate Paragraph 12 of the lease 

addendum into subsequent agreements, I find that Plaintiff’s course of 

conduct after signing the initial lease suggests both that the provision had 

been waived and that Plaintiff should be estopped from asserting a claim 

based upon that provision. Several of the factual circumstances of this 

dispute support such a finding. First, Plaintiff accepted significant 

consideration above and beyond what the lease and addendum required 

when it entered into the subsequent right-of-way agreements. Not only 

does this support the individual nature of such agreements, but it also 

shows that Defendant paid Plaintiff certain extra consideration to 

 

237 Id. at 435.

238 Id. at 437.

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surrender additional contractual rights that Defendant did not already 

possess.

Moreover, the very course of conduct through which Plaintiff 

continued to deal with Defendant suggests that its members were willing 

to work with Defendant on an extended basis. Even though the 

relationship appears to have been far from perfect, it was also apparently 

far from irreparable for the majority of its existence. At any time after 2008, 

Plaintiff could have initiated immediate legal action against Defendant had 

it believed that Defendant’s conduct ran afoul of the core tenets of their 

agreements. The Court finds it telling, however, that such action was not 

instituted until July 30, 2014, nearly six years from the onset of the initial 

lease. Certainly, in addition to the desire to preserve actions carried out in 

reasonable reliance upon a promise, an equally important judicial 

motivation for such doctrines as waiver and estoppel is to discourage 

litigants from “sleeping on their rights.”239

 

239 See Upton v. Tribilcock, 91 U.S. 45, 55, 23 L. Ed. 203 (1875) (“Relief is not 

given to those who sleep on their rights.”). See also U.S. on Behalf of Small 

Bus. Admin. v. Richardson, 889 F.2d 37, 40 (3d Cir. 1989).

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Furthermore, the Court finds it quite relevant that Robert Schwoyer 

was willing to accept variations of the final right-of-way amendment that 

did not depict the necessary connecting segment of the pipeline, and that 

Mr. Schwoyer, who visited the construction site on a daily basis, failed to 

otherwise contest Defendant’s right-of-way until now. It is evident that 

Defendant relied upon these interpretations in constructing its pipeline, 

and the appropriate remedy now simply as a matter of economics and 

common sense cannot require such retrograde measures as rerouting of 

the pipeline or the gas it carries. 

It is important to recognize that such determines of waiver and 

estoppel are necessarily fact-specific ones, but on the basis of the record 

before the Court, I would hold that at this point, Plaintiff has effectively 

waived the domestic gas requirement as it pertains to the subsequent 

right-of-way agreements and is therefore otherwise estopped from 

asserting a claim on such grounds.

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IV. CONCLUSION

Ultimately, this dispute has presented to this Court the opportunity 

to resolve important issues involving the interpretation of contractual 

agreements in the natural gas setting, particularly in light the nuanced 

economic climate of such an industry. For the foregoing reasons, 

Defendant’s Motion for Summary Judgment is granted, and Plaintiff’s 

corresponding Motion for Summary Judgment is denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann 

United States District Judge

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