J-A04028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

XTO ENERGY, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DOMINION FIELD SERVICES, INC., 

EQUITRANS, LP, EQT ENERGY, LLC, AND 

EQT CORPORATION

v.

LINN ENERGY, LLC, F/K/A, LINN ENERGY 

HOLDINGS, LLC AND LINN OPERATION, 

INC.

APPEAL OF: DOMINION FIELD 

SERVICES, INC. No. 837 WDA 2013

Appeal from the Judgment Entered on April 18, 2013,

In the Court of Common Pleas of Allegheny County

Civil Division at No.: GD-10-004393

XTO ENERGY, INC.

 APPELLANT

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DOMINION FIELD SERVICES, INC., 

EQUITRANS, LP, EQT ENERGY, LLC AND 

EQT CORPORATION

v.

LINN ENERGY, LLC F/K/A LINN ENERGY 

HOLDINGS, LLC, AND LINN OPERATION, 

INC. No. 885 WDA 2013
J-A04028-14

- 2 -

Appeal from the Judgment Entered on April 18, 2013,

In the Court of Common Pleas of Allegheny County

Civil Division at No.: GD-10-004393

XTO ENERGY, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DOMINION FIELD SERVICES, INC., 

EQUITRANS, LP, EQT ENERGY, LLC, AND 

EQT CORPORATION

v.

LINN ENERGY, LLC, F/K/A, LINN ENERGY 

HOLDINGS, LLC AND LINN OPERATION, 

INC.

APPEAL OF: EQUITRANS, LP, EQT 

ENERGY, LLC, AND EQT CORPORATION No. 890 WDA 2013

Appeal from the Judgment Entered on April 18, 2013,

In the Court of Common Pleas of Allegheny County

Civil Division at No.: GD 10-004393

BEFORE: BOWES, J., WECHT, J., and STABILE, J.

MEMORANDUM BY WECHT, J.: FILED OCTOBER 22, 2014

This matter comes before this Court on the parties’ respective appeals 

of various summary judgment rulings entered by the trial court.1 Those 

____________________________________________

1 The parties address the appeal and cross-appeals to various orders. 

However, under these circumstances, the respective appeals lie only from 

the trial court’s April 18, 2013 entry of final judgment in this matter. 

See generally Johnston the Florist, Inc. v. TEDCO Constr. Corp., 

(Footnote Continued Next Page)
J-A04028-14

- 3 -

orders conclusively resolved a number of claims and cross-claims arising 

from a dispute involving the sale of natural gas that was occasioned by an 

error made by an employee of an intermediary to the transaction. We affirm 

the trial court’s final judgment.

The factual history underlying this case is complicated, and involves 

esoteric aspects of how natural gas is traded. The trial court provided the 

following apt summary of the commercial context in which this dispute 

arose, as well as a summary of the events and relationships that led to the 

claims sub judice, the content of which is not substantially disputed by the 

parties.

XTO Energy, Inc. [“XTO”] has filed a complaint raising a single 

count (breach of contract) against Dominion Field Services, Inc. 

[“DFS”]. . . .

1

1

I am bifurcating the remaining claims raised in this 

litigation.

The breach of contract claim arises out of writings between XTO 

and DFS for the sale of natural gas for the seven-month period 

between April 1, 2008 and October 31, 2008.2

2 The writings governing the period through June 30, 

2008 were executed by [the Linn Energy parties]. On July 

1, 2008, XTO succeeded to [the interest of the Linn Energy 

(Footnote Continued) _______________________

657 A.2d 511, 514 (Pa. Super. 1995) (“Because the entry of judgment was 

considered to be a prerequisite to the exercise of this Court’s jurisdiction, it 

was long this Court’s policy to quash an appeal from an order upon which 

judgment had not been entered.”). Nonetheless, all appeals filed in this 

matter were timely relative to the April 18, 2013 entry of judgment and the 

rules governing the timing of cross-appeals. See Pa.R.A.P. 511, 903(b). 

Consequently, our jurisdiction over the instant appeals is not in question.
J-A04028-14

- 4 -

parties (“Linn”)2] in these contracts. Additional writings 

executed by XTO govern the period from August 1, 2008 

through October 31, 2008.

A gas contract between XTO and DFS is comprised of two 

documents. The first is titled “Master Gas Contract General 

Terms and Conditions[” (“the Contract”);] it sets forth common 

terms that govern all purchase transactions. The second 

document, known as a “Natural Gas Purchase Confirmation,” is 

specific to each particular purchase; each Confirmation specifies 

the time period, quantity, price, meters, receiving pipeline, and 

any special conditions.

The contracts between XTO and DFS for the sale of gas provide 

for delivery through the use of a gathering system operated by 

Equitrans[, LP]. At DFS’s request, Equitrans designates specific 

meters [“the Meters”] that may be used only for XTO’s deliveries 

to DFS. The gas passing through [the Meters] goes into a 

gathering system that gathers gas on behalf of numerous 

buyers, with each meter serving only a single buyer.

Each meter measures the amount of gas leaving the meter and 

going into the gathering system. Equitrans is to credit DFS with 

the amount of gas shown on [the Meters]. At the end of each 

month, Equitrans is to furnish DFS a Production Statement 

showing, for the entire month, the amount of gas credited to 

DFS from each meter. DFS calculates payments owed to XTO 

based on the monthly totals shown on the Production Statement.

There are instances in which Equitrans, based on information 

furnished by parties using the Equitrans gathering system, will 

switch the credits from one party to another. This would occur, 

for example, if there was a writing signed by DFS, XTO, and EQT 

Energy, LLC and delivered to Equitrans, stating that all gas 

coming into [the Meters] should be credited to EQT Energy, 

rather than to DFS. In this case, there is no such writing.

____________________________________________

2

Linn is a cross-defendant to this action as the predecessor in interest 

to the contracts at issue, which later were acquired in full by XTO, 

retroactively to a date preceding the events underlying the instant litigation. 

For simplicity’s sake, we have replaced the trial court’s usage of “Linn/XTO” 

with “XTO,” except where it is necessary to distinguish between those 

parties.
J-A04028-14

- 5 -

In April 2008, gas furnished by XTO began to flow through [the 

Meters] and into Equitrans’ [p]ipeline. Equitrans gave credit to 

DFS for the gas [that] XTO delivered to the [M]eters in April, 

May, and June. DFS, in turn, paid XTO approximately 

$1.5 million for this gas.

In accordance with the parties’ agreement, payments are made 

on an approximate two-month lag. Payment for the April sales 

is made in late June, payment for the May sales is made in late 

July, and the payment for the June sales is made in late August.3

3

Linn made the April, May, and June deliveries. From 

July through October 2008, XTO delivered the gas to the 

[M]eters.

This litigation would not have occurred but for (1) mistakes 

made by Leslie Crider—an Equitrans employee—and (2) a sharp 

decline in the price of gas.

In late August 2008, Ms. Crider was looking at DFS’s pool on 

Equitrans’ invoices for April, May, and June. Ms. Crider 

remembered that some time ago there had been conversations 

between Steve Rafferty, Senior Vice President of EQT . . . and 

Curt Tipton, then a Vice President of Linn, involving Linn’s sale to 

EQT Energy of the gas [that] XTO delivered in April, May, and 

June.4 She testified that she thought EQT Energy had the deal 

so the gas should be in EQT Energy’s pool rather than DFS’s 

[pool]. Consequently, she transferred the gas, meaning that 

Equitrans cancelled DFS’s credits of approximately $1.5 million 

[worth of gas] for April, May, and June and gave the credits to 

EQT Energy. Ms. Crider did so without first notifying EQT Energy 

or DFS.

4 There were negotiations between Mr. Rafferty (EQT 

Energy) and Mr. Tipton beginning in March 2008 and 

ending in the middle of April 2008.

Immediately after she made the transfer, she advised Bernie 

Miele, her contact person at DFS, that she had switched the 

credits from DFS to EQT Energy. Ms. Miele responded through 

emails stating that the gas belonged to DFS and that DFS had 

already paid XTO for April, May, and June.

Ms. Crider also notified Steve Rafferty at EQT Energy of the 

transfer. On September 2, 2008, he told Ms. Crider that EQT 
J-A04028-14

- 6 -

Energy had no claim for the gas—there had been negotiations 

but they never had a deal.5

5 He also testified that one of his conditions for a deal 

was his receiving a release from DFS.

Ms. Crider subsequently removed from EQT Energy the April, 

May, and June credits she had given to EQT Energy. However, 

she mistakenly failed to give these credits back to DFS.

Also, because Equitrans did not re-designate, as DFS meters, 

[the Meters], no one received any credit for XTO’s July through 

October deliveries to [the Meters]. In addition, DFS reversed the 

$1.5 million payments made to XTO for the April-June deliveries. 

Thus, XTO has never received any payments for the gas 

delivered between April and October 2008.6

6

It is the position of Equitrans that this gas, which on 

paper remains in the gathering system, belongs to DFS 

and that XTO is entitled to payment based on the contract 

price.

Four days after Equitrans removed the credits from DFS and 

placed them with EQT Energy, DFS made the decision to walk 

away from its contracts with XTO for the period from April 1 

through October 31, 2008. The decision was made by Joseph 

Vanzant, DFS’s Vice President.

He testified that several events caused him to take this position:

Event 1—He learned from Bernie Miele that Ms. Crider told 

Ms. Miele that Equitrans was going to take the gas from DFS 

retroactive to April 1 because it belonged to someone else.7

7 Mr. Vanzant also knew or should have known that on 

the same date that Ms. Crider told Ms. Miele that she had 

transferred the credits to EQT Energy, through e-mails, 

Ms. Miele told Ms. Crider that this was DFS’s gas and that 

DFS had paid for the gas. In the first e-mail, Ms. Miele 

states that DFS does have [the Meters] under contract 

with XTO. She further states that the contract was 

renewed in April 2008 and again in July with new 

ownership [i.e., upon XTO’s succession to the wells as part 

of its transaction with Linn].

Event 2—Mr. Vanzant had a DFS buyer, Neil Stultz, call Curt 

Tipton (now a former Linn employee who had never been 
J-A04028-14

- 7 -

employed by XTO) to find out if there had been the sale of this 

gas from the DFS meters to another party. Mr. Vanzant testified 

that Mr. Stultz advised him that Mr. Tipton said to Mr. Stultz that 

he had sold the gas to EQT Energy (Steve Rafferty) back in April 

and forgot to take the gas off DFS’s contract.

Event 3—Mr. Vanzant checked with his chief accountant and 

determined that because of falling gas prices, DFS would save 

several hundred thousand dollars if it walked away from the 

agreements with XTO. See the following e-mail from 

Mr. Vanzant to DFS’s chief accountant explaining that DFS would 

net approximately $450,000 if it did not purchase the gas 

pursuant to the agreements with XTO because of the decline in 

the price of gas:

Equitrans confirmed this morning something they told us 

last week. They have been crediting gas to DFS from 

4 XTO meters that XTO sold to EQT Energy starting in April 

(XTO never told us they were going to sell this gas to EQT 

Energy and we included the 4 meters in our renewal of the 

XTO contract starting April 1). Equitrans is going to deduct 

this double-counted gas from DFS’s pool, creating a big 

negative imbalance that DFS will have to fix [by obtaining 

and depositing in the pool an amount of gas equal to the 

negative imbalance].

Happily, the nearly 138,000 [dekatherms] being taken 

away for the months April, May and June was priced at an 

average of $11.22/dth. We will start bringing in TCO gas3

immediately to replace the gas being taken away. 

Assuming we buy the TCO gas at today’s spot prices, plus 

TCO transport shrink, the replacement cost delivered to 

[the] TCO/Equitrans interconnect will be in the 

neighborhood of $7.90/dth. I figure this adjustment from 

Equitrans will net us somewhere near $450,000 in reduced 

gas cost. Yay!

____________________________________________

3

In our review of the record, we cannot discern to what “TCO gas” 

specifically refers, but we assume that this relates to another source of 

natural gas sufficient to make up the deficit that would be created were DFS 

not to claim XTO’s production.
J-A04028-14

- 8 -

Later that day, Mr. Vanzant explained in a subsequent e-mail to 

DFS’s chief accountant that the economic benefit would be even 

greater than $450,000 because DFS would be able to replace the 

gas it was expecting from XTO in the future at lower prices.

Mr. Vanzant testified at pages 222-224 of his deposition that as 

of September 2 or September 3, he chose to walk away from the 

contract:

A. . . . . When I agreed to walk away, based on the 

financial analysis that I did, it’s my opinion that at that 

point the meters were deleted retroactive to April 1.

Q. Okay. So I think you’ve answered my question. Your 

answer is as of September 2nd or 3rd of ’08, you had a 

valid existing and enforceable contract for the meters with 

XTO, and it was your choice to either enforce those rights 

or acquiesce and walk away from the contract as of that 

date; correct?

A. Yes.

Q. And you chose to walk away?

A. Yes.

Q. And you chose to walk away retroactively back to 

April 1, 2008?

A. In my opinion, there were only two options: walk away 

effective April 1 or enforce it going forward.

Q. And if you walked away from the contract as of I’ll just 

use September 2nd, 2008, you wouldn’t have any claim to 

that gas from that day going forward; correct?

A. I wouldn’t have any claim on that gas retroactive to 

April 1.

Q. Okay. Which would include the period following 

September 2nd, 2008, obviously?

A. Yes.

Mr. Vanzant also testified that he never informed XTO in writing 

that he had chosen to walk away from the contract until he sent 

XTO the meter deletion in the first week of November, that he 
J-A04028-14

- 9 -

never spoke to EQT Energy, and that he never explained DFS’s 

position to Equitrans:

Q. Did you inform XTO in writing that that’s what you had 

chosen to do?

A. Not until we sent them the meter delete amendment in 

the first week of November.

Q. And when you sent them the meter deletion 

amendment, did you—aside from sending them that form 

that you were agreeing to delete those meters as of 

whatever that day was, 11/1/2008, did you explain that 

you had made a decision to not enforce your rights, to 

walk away from the contract on September 2nd or 

September 3rd?

A. I did not explain our position to XTO.

Q. Did you explain that position to EQT Energy?

A. I have never spoken to EQT Energy.

Q. And did you explain that position to Equitrans?

A. No.

Q. Did anyone at DFS explain that position to Equitrans?

A. No one asked our opinion. So I guess the answer is no.

Trial Court Opinion (“T.C.O.”), 6/12/2012, at 1-7 (nomenclature modified for 

consistency).

In explaining its rejection of DFS’s equitable estoppel defense to XTO’s 

breach of contract claim, the trial court highlighted additional aspects of 

DFS’s conduct in the wake of its discovery of Ms. Crider’s error:

DFS contends that the doctrine of equitable estoppel allows DFS 

to walk away from the contract. This doctrine might possibly 

apply if XTO engaged in conduct [that] caused DFS to believe 

that the gas was under contract with EQT Energy on the date 

[that DFS] decided to walk away from the contract.
J-A04028-14

- 10 -

Obviously, nothing that occurred before August 28, 2008 would 

have caused DFS to believe that the gas was under contract with 

EQT Energy because prior to this date DFS knew nothing about 

any negotiations between Linn and EQT Energy.

DFS contends that it was misled because of the failure of XTO to 

inform DFS that the gas belonged to DFS. Because of XTO’s 

failure to demand that DFS pay for the gas, DFS believed that 

XTO recognized EQT Energy as the owner of the gas.

This argument is inconsistent with DFS’s decision made on 

September 2, 2008 to walk away from what Mr. Vanzant 

believed to be a “valid existing and enforceable contract” . . . . 

This argument is also inconsistent with the information in Bernie 

Miele’s e-mail that the gas belonged to DFS and that DFS had

already paid XTO for the gas.

* * * *

DFS appeared to be doing its best to keep the matter muddled. 

An October 15, 2008 e-mail from a DFS employee to other DFS 

employees states: “I have received several telephone calls from 

various XTO personnel requesting contact names for EQT Energy 

personnel to pursue payment for the volumes taken away from 

DFS supposedly under contract with EQT Energy. The last 

telephone caller stated XTO was not impressed with EQT Energy 

and would be contacting Stultz to ‘return’ these meters to a DFS 

purchase contract.”

Subsequently, in an October 20, 2008 e-mail, the same 

employee asked a supervisor to deal with Bob Wimpee (XTO Vice 

President) because she [knew] that DFS [did] not want the gas 

and fear[ed] she might misspeak:

The saga continues. . .

Bob Wimpee called this afternoon with a simple question 

on one of the renewals we just sent him. I answered him, 

and he began to ask about this issue. I explained to him 

that I had very limited knowledge on the subject.

I told him that the meters are on our contract. EQT 

Energy told him that these meters were not under contract 

to us, and he is questioning them further. In the 

meantime, I went and got the scoop from Bernie.
J-A04028-14

- 11 -

I called to pass along to him that XTO put a deal in place 

with EQT Energy and that we should not have received the 

gas[,] which is why Equitrans made an adjustment to our 

pool and why we took payment back from XTO. He found 

out [that the Meters] were shut in and Curt Tipton worked 

out a deal to sell the gas to Steve Rafferty. The beauty of 

that is that neither XTO nor Equitrans can find the 

paperwork. Bob was going to call Leslie Crider to see, in 

light of the no contract information, what she had to 

authorize talking [sic] the gas from us.

In talking with Bernie, I understand that it was actually a 

good thing for DFS to lose the gas, and that we do not 

want the gas retroactively. I do not want to misspeak to 

Bob—can you handle with him, please? . . . .

Stultz responded through an October 21, 2008 e-mail that he

[would] talk to Bob Wimpee.

Id. at 10-12 (nomenclature modified).

Unsurprisingly, DFS’s decision to walk away from the Contract; DFS’s 

failure to seek restoration of the improperly transferred credits; and DFS’s 

refusal to pay XTO for the gas that XTO delivered to the Meters that were, at 

all relevant times, assigned to DFS ultimately spawned the instant litigation. 

First, on March 9, 2010, XTO filed a complaint, followed eventually by a first 

amended complaint, and, finally, by a second amended complaint, which 

XTO filed on June 1, 2010. The second amended complaint named as 

defendants DFS, Equitrans, EQT Energy, and EQT Corporation. Therein, XTO 

asserted the following claims:

1. Breach of Contract against DFS;

2. Tortious Interference with Contractual Relations against 

EQT Energy;

3. Breach of Contract against EQT Energy;
J-A04028-14

- 12 -

4. Unjust Enrichment / Quantum Meruit / Goods Accepted 

against EQT Energy;

5. Conversion against Equitrans; and

6. Vicarious Liability of EQT Energy and EQT Corporation for 

Conversion by Equitrans.

See Second Amended Complaint at 10-17.

On June 8, 2010, DFS filed its answer, which included new matter, 

counterclaims, and cross-claims. The counterclaims against XTO were for 

breach of contract and unjust enrichment. DFS also raised cross-claims 

against the EQT defendants (collectively, “EQT”)4of conversion, tortious 

interference with contractual relations, unjust enrichment, and 

indemnification and/or contribution. On June 30, 2010, XTO responded to 

DFS’ answer, adding a cross-claim in the alternative for indemnification and 

joint liability against EQT in the event that DFS prevailed on its 

counterclaims against XTO.

On July 1, 2010, EQT filed its answer, new matter, and cross-claim to 

XTO’s second amended complaint. Therein, EQT asserted, inter alia, a 

cross-claim against DFS for indemnification.

____________________________________________

4

In its second amended complaint, XTO explained that it used “EQT” as 

a collective name for Equitrans, EQT, and EQT Corporation because “(1) that 

is the nomenclature that [DFS] ha[d] used in [a prior] pleading; and 

(2) after reasonable investigation such entities in many instances appear to 

be indistinguishable.” Second Amended Complaint at 9 n.1. Notably, the 

EQT parties have filed only joint pleadings and briefs in this litigation. Thus, 

we adopt the same convention when it is not necessary or beneficial to refer 

to the parties individually.
J-A04028-14

- 13 -

On September 21, 2010, DFS filed an additional cross-claim against 

Linn. On September 23, 2010, the trial court entered a case management 

order directing that discovery be completed by February 24, 2011; expert 

reports be filed by March 24, 2011; and motions for summary judgment be 

filed by April 25, 2011. On October 11, 2010, EQT filed a complaint joining 

the Linn parties as defendants. Therein, EQT asserted a claim for breach of 

warranty of title. On November 9, 2011, Linn filed preliminary objections to 

EQT’s complaint against Linn. On January 5, 2012, the trial court sustained 

Linn’s preliminary objections to EQT’s complaint with prejudice, leaving Linn 

subject only to DFS’s cross-claims.

In the months that followed, discovery was completed and all parties 

filed motions for summary judgment. After hearing argument, on June 12, 

2012, the trial court denied DFS’s motion for summary judgment relative to 

the dueling contract claims between DFS and XTO and granted summary 

judgment to XTO on its contract claim. On July 9, 2012, the trial court 

entered an order granting Linn’s motion for summary judgment relative to 

DFS’s cross-claims against Linn as additional defendant. On December 28, 

2012, the trial court entered an order granting EQT’s motions for summary 

judgment against XTO and DFS, dismissing all of the latter parties’ claims 

against EQT.

On February 1, 2013, XTO filed a motion for summary judgment 

against DFS on DFS’s claims alleging that XTO had failed to mitigate its 

damages. On March 26, 2013, the trial court granted XTO’s motion for 
J-A04028-14

- 14 -

summary judgment. The trial court ordered a status conference for April 18, 

2013, to address the status of the parties’ various claims. At the April 18 

conference, after determining that no claims remained to be resolved, the 

trial court entered final judgment on all claims, ripening this case for appeal. 

DFS (837 WDA 2013) filed a timely appeal on May 20, 2013, and XTO 

(885 WDA 2013) and EQT (890 WDA 2013), respectively, filed timely crossappeals thereafter. On June 20, 2013, this Court granted the parties’ 

“Consent Motion to Consolidate Related Appeals.”5 

DFS raises the following issues:

1. Whether DFS even breached its contract with XTO, given 

that the fact-finder could reasonably resolve ambiguous contract 

language by concluding that DFS was not obligated to pay XTO 

until gas was actually credited to DFS?

2. Whether XTO failed to mitigate damages resulting from 

breach of a contract for the purchase of natural gas, where XTO 

rejected a reasonable offer to purchase the gas and otherwise 

refused to sell the gas to a third party, instead choosing to watch 

the value of the gas decline over time?

3. Whether [EQT] wrongfully converted DFS’s property and 

tortiously interfered with DFS’s contracts, where they diverted 

gas away from DFS without permission, retained possession of 

the gas, withheld possession from DFS, and misled DFS into 

believing that the gas belonged to another buyer.

____________________________________________

5

The trial court did not direct the parties to file concise statements of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of a 

Rule 1925(a) opinion, for reference we have only the trial court’s several 

orders and memoranda disposing of the claims at issue. We find those 

discussions sufficient to elucidate the trial court’s reasoning. Thus, the 

absence of a discrete Rule 1925(a) opinion presents no impediment to our 

review.
J-A04028-14

- 15 -

Brief for DFS at 7 (issues reordered to reflect the order of discussion).

Excluding its counterstatement of DFS’s issues, XTO presents the 

following issue:

Whether [EQT] wrongfully tortiously interfered with XTO’s 

contracts with DFS, where they removed DFS’ credit from certain 

month[s’] gas, failed to give DFS credit for other month[s’] gas, 

knew about the DFS-XTO contract, purposefully engaged in 

conduct that prevented DFS from receiving credit for the natural 

gas, and knew there was a substantial certainty that XTO would 

be harmed by such conduct?

Brief for XTO at 6.

Excluding its counterstatements of DFS’s and XTO’s challenges to the 

trial court’s entry of summary judgment in EQT’s favor, EQT raises the 

following issue: “Whether the [t]rial [c]ourt erred in dismissing [EQT’s] 

claim against [Linn]?” Brief for EQT at 4.6

Inasmuch as each party challenges trial court rulings granting or 

denying motions for summary judgment, we begin by reviewing the 

governing legal standards:

A reviewing court may disturb the order of the trial court 

[granting or denying summary judgment] only where it is 

established that the court committed an error of law or abused 

its discretion. Capek v. Devito, 767 A.2d 1047, 1048, n.1 

(Pa. 2001). As with all questions of law, our review is plenary. 

Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 

(Pa. 1995).

____________________________________________

6 While it has filed a brief opposing EQT’s issue and addressing other 

arguments presented by DFS and XTO, Linn has not challenged any of the 

trial court’s rulings.
J-A04028-14

- 16 -

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. “Failure of a 

non-moving party to adduce sufficient evidence on an issue 

essential to his case and on which it bears the burden of 

proof . . . establishes the entitlement of the moving party to 

judgment as a matter of law.” Young v. PennDOT, 

744 A.2d 1276, 1277 (Pa. 2000). Lastly, we will view the record 

in the light most favorable to the non-moving party, and all 

doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party. Penna. State 

Univ. v. County of Centre, 615 A.2d 303, 304 (Pa. 1992).

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 

(Pa. 2001) (citations modified). 

[T]he issue as to whether there are no genuine issues as to any 

material fact presents a question of law, and therefore, on that 

question our standard of review is de novo. This means we need 

not defer to the determinations made by the lower tribunals. To 

the extent that [the appellate court] must resolve a question of 

law, we shall review the grant of summary judgment in the 

context of the entire record. 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) 

(citations omitted).

DFS first challenges the trial court’s rulings with respect to XTO’s 

contract claim. DFS presses only one theory in arguing that the trial court 

erred: DFS contends that the relevant contract provisions, viewed as a 

whole, were ambiguous. Consequently, DFS asserts, a jury, rather than the 
J-A04028-14

- 17 -

trial court, should have resolved that ambiguity with the benefit of extrinsic 

evidence.

Our Supreme Court has set forth the principles governing contract 

interpretation as follows:

The fundamental rule in contract interpretation is to ascertain 

the intent of the contracting parties. In cases of a written

contract, the intent of the parties is the writing itself. When the 

terms of a contract are clear and unambiguous, the intent of the 

parties is to be ascertained from the document itself. When, 

however, an ambiguity exists, parol evidence is admissible to 

explain or clarify or resolve the ambiguity, irrespective of 

whether the ambiguity is patent, created by the language of the 

instrument, or latent, created by extrinsic or collateral 

circumstances. A contract is ambiguous if it is reasonably 

susceptible of different constructions and capable of being 

understood in more than one sense. While unambiguous

contracts are interpreted by the court as a matter of law, 

ambiguous writings are interpreted by the finder of fact. 

Ins. Adjustment Bureau, Inc., v. Allstate Ins. Co., 905 A.2d 462, 469 

(Pa. 2006) (citations omitted). 

DFS’s entire argument is predicated upon the proposition that the 

contracts governing its gas purchase contract with XTO were ambiguous, a 

question of law that the trial court did not resolve in DFS’s favor.7 DFS 

briefly and aptly frames the dispute as follows:

____________________________________________

7 XTO contends that DFS waived this argument because, before the trial 

court, XTO argued only that the contracts were unambiguous. Thus, XTO 

contends, DFS did not preserve the alternative argument that the contracts 

were ambiguous. See Brief for XTO at 28-31 (citing Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for 

(Footnote Continued Next Page)
J-A04028-14

- 18 -

XTO’s breach of contract claim can be distilled to a single issue: 

whether DFS was obligated to pay XTO for gas that Equitrans 

failed to credit to DFS’s pool. XTO posits that DFS’s payment 

obligation accrued when the gas was “delivered.” DFS interprets 

the contracts differently, to require payment only after Equitrans 

credited the gas to DFS’s pool.

Brief for DFS at 35 (citation omitted).

The determination as to whether a contract is ambiguous is a question 

of law to be resolved by the court. Kripp v. Kripp, 849 A.2d 1159, 1164 

n.5 (Pa. 2004) (citing Easton v. Washington County Ins. Co., 137 A.2d 

332 (Pa. 1957)). “In making the ambiguity determination, a court must 

consider the words of the argument, alternative meanings suggested by 

(Footnote Continued) _______________________

the first time on appeal.”)). In support of its argument, XTO directs this 

Court’s attention to a slew of statements drawn from DFS’s pleadings in 

which DFS asserted, in various terms, that the contracts were unambiguous. 

XTO also cites Samuel Rappaport Family P’ship v. Meridian Bank, 

657 A.2d 17 (Pa. Super. 1995), in support of the proposition that theories of 

relief with respect to contract interpretation that are not raised in the trial 

court may not be presented for the first time on appeal. DFS responds that 

Rappaport is distinguishable because, in that case, the distinction was not 

between two different theories of interpretation, but rather the presentation 

on appeal of an ambiguity argument when in the trial court the appealing 

party had raised only that a mistake rendered performance impracticable, a 

question not directly implicating contract interpretation. See Omnibus Reply 

Brief for DFS at 7-9. DFS further contends that its argument on appeal in 

fact is couched first in plain language, and only in the alternative in terms of 

ambiguity. This latter proposition is a stretch; we find only a single sentence 

in DFS’s lead brief that supports its characterization, and only by implication, 

see Brief for DFS at 36 (“[A]t a minimum, the contract is ambiguous . . . .”); 

In substance, DFS’s argument presses only ambiguity as a basis for relief. 

Nonetheless, we agree with DFS that, once it raised contract interpretation 

issues, it preserved all arguments relating to interpretation, because the trial 

court was obligated to take into account all governing principles of contract 

interpretation in resolving the question of law. Accordingly, we decline to 

find this issue waived.
J-A04028-14

- 19 -

counsel, and extrinsic evidence offered in support of those meanings. 

Walton v. Phila. Nat’l Bank, 545 A.2d 1383, 1388 (Pa. Super. 1988) 

(citations omitted). Our standard of review for questions of law is de novo, 

and our scope of review is plenary. Kripp, 849 A.2d at 1164 n.5.

We begin our analysis by reproducing the various sections of the 

contracts that the parties cite in support of their respective arguments:

ARTICLE II—QUANTITY 

* * * *

2.2 If Seller’s gas is to be delivered to Buyer at specified wells 

or meters, Seller dedicates to Buyer full production from Seller’s 

wells or meters listed on the Confirmation, unless otherwise 

stated on the Confirmation.

* * * *

ARTICLE III—DELIVERY 

3.1 The “Delivery Point(s)” for Seller’s gas shall be the wells 

and meters specified on the Confirmation . . . . Title to the gas 

shall pass to Buyer at the Delivery Point(s).

* * * *

3.3 As between the parties thereto, Seller shall be in control 

and possession of the gas and responsible for any injuries, 

claims, liabilities, or damages caused thereby until the gas shall 

have been delivered to the Delivery Point(s), and after such 

delivery as between Buyer and Seller, Buyer shall be deemed to 

be in possession and control thereof and responsible for any 

injuries, claims, liabilities, or damages caused thereby . . . .

* * * *

ARTICLE IV—PRICES 

* * * *

4.2.1 . . . Buyer should make payment to Seller on or about the 

25th day of the month following the production month . . . .
J-A04028-14

- 20 -

ARTICLE V—MEASUREMENT 

5.1 Unless otherwise stated on the Confirmation, all gas 

delivered by Seller to Buyer shall be measured in Dekatherms at 

the Delivery Point(s). Buyer shall pay for Seller’s gas in the 

quantity credited to Buyer’s account by the Pipeline.

The Contract at 1-2.

DFS contends that it is reasonable to interpret paragraph 5.1 of the 

Contract as preventing XTO from establishing DFS’s putative obligation to 

pay for gas delivered from April through October 2008, because that 

production was never credited to DFS’s pool. Framed in the terms used in 

paragraph 5.1, DFS cannot “pay for Seller’s gas in the quantity credited to 

Buyer’s account by” Equitrans when Equitrans has not credited Buyer’s 

account at all.8 DFS elaborates on its argument as follows:

Importantly, the [Contract does] not state that DFS is obligated 

to pay for gas that flows through a meter if it is not credited to 

DFS’s pool. XTO argued that DFS was obligated to pay 

regardless of whether Equitrans credited DFS’s pool for the gas. 

DFS, on the other hand, interprets the [Contract] to condition 

DFS’s payment obligation upon two events: (1) gas flowing 

through the Meters and (2) Equitrans crediting this gas to DFS’s 

____________________________________________

8 There is no dispute that, as of the inception of this litigation, Equitrans 

had not credited DFS’s account. However, Equitrans did, in 2011, tender the 

appropriate credits to DFS, which DFS refused to accept. See Letter from 

Patrick Cavanaugh to Brian Wood, 1/24/2011 (offering to tender misassigned credits); Letter from Brian Root to Patrick Cavanaugh, 1/27/2011 

(declining the credit on the bases that the volumes “do not belong to [DFS]” 

and due to the pending lawsuit”). Brian Root’s letter declining the credit was 

erroneous in one particular: DFS does not dispute that the Contract 

specified that title would pass to DFS upon XTO’s delivery of the gas to the 

Meters, which XTO undisputedly did.
J-A04028-14

- 21 -

pool. The choice between these competing constructions cannot 

be made by the court, but rather is reserved for the fact-finder. 

Brief for DFS at 38 (emphasis in original). DFS argues that any other 

interpretation would nullify paragraph 5.1.

XTO provides the following summary of its contrary position:

DFS’[s] position is a remarkably brazen one. The only contract 

in existence is between []XTO and DFS, under which XTO fully 

performed every month in question by timely delivering gas to 

DFS, and under which DFS paid XTO. But when [Equitrans] 

reversed DFS’[s] previous credit for XTO’s gas, DFS did not ask 

[Equitrans] for a return of the credit. Instead, DFS quickly 

analyzed the economics of the event and determined that in light 

of falling gas prices it could make a quick $450,000 due to 

[Equitrans’] improper reversal of credit. Thus, within a matter of 

days of [Equitrans’] misdeed, DFS unilaterally decided that it 

was no longer under contract with XTO. DFS has not paid XTO 

since for the subject gas. Thus, DFS’[s] scheme was to use 

[Equitrans’] transgression as an excuse to profit at XTO’s 

expense. DFS’[s] modus operandi was its refusal to ask for the 

credit to be returned. Those are the reasons DFS has been 

forced to contrive a construction of Section 5.1 that does not 

require [XTO] to be paid unless [Equitrans] first gives [DFS] 

credit for the gas.

Brief for XTO at 33. 

XTO also maintains that DFS’s argument effectively transforms a minor 

provision related to the measurement of the gas delivered (paragraph 5.1) 

into a condition precedent that effectively nullifies paragraph 3.1, 

confounding the established principle that a condition precedent will only be 

recognized as such when the parties’ intent to treat it that way can be 

discerned from the contract language read as a whole. Id. at 35-37 (citing,

inter alia, Acme Markets, Inc., v. Fed’l Armored Express, Inc., 648 A.2d 
J-A04028-14

- 22 -

1218, 1220 (Pa. Super. 1994) (“While the parties to a contract need not 

utilize any particular words to create a condition precedent, an act or event 

designated in a contract will not be construed as constituting one unless that 

clearly appears to have been the parties’ intention.” (emphasis in original)); 

West Dev. Group, Ltd., v. Horizon Fin’l, F.A., 592 A.2d 72, 76 

(Pa. Super. 1991) (“Generally, an event mentioned in a contract will not be 

construed as a condition precedent unless expressly made such a 

condition.”)). 

The trial court rejected DFS’s argument for the following reasons:

[I]t is XTO’s position that the scope of Article V is defined by its 

title: “Measurement.” This is a two-sentence Article. The first 

sentence explains how gas shall be measured. The apparent 

purpose of the second sentence is to have [Equitrans’] 

measurements govern what DFS will pay and XTO will receive.

In this case, there is no dispute over the quantity of the gas that 

XTO delivered. The dispute is over who owns the gas that XTO 

delivered. This is not a matter that the parties would have 

intended for Equitrans to decide because this dispute has 

nothing to do with information known to Equitrans. 

Consequently, I find DFS’s reliance on Section 5.1 to be 

misplaced.

However even assuming that [paragraph] 5.1 applies, DFS 

cannot simply decide to accept Equitrans’ decision to take away 

DFS’s credits for gas DFS believed to be its gas and for which 

XTO is entitled to be paid. Title had passed to DFS, and it would 

have been the expectation of both parties that delivery and 

transfer of title would result in Equitrans furnishing credit for the 

gas to DFS. DFS cannot both hold title and express no 

opposition to a decision of Equitrans to credit another entity for 

the gas to which it holds title.

In this case, it would have been easy for DFS to have the credits 

restored and the credits for future deliveries to be credited to 

DFS. Equitrans was confused as to whether DFS or EQT Energy 
J-A04028-14

- 23 -

should receive credits for the gas delivered by XTO. Since EQT 

Energy was not claiming that it should be credited for the gas, 

there would not have been any opposition to a request made by 

DFS to Equitrans to give DFS the credits for the gas delivered by 

XTO. DFS, instead, chose not to approach Equitrans, apparently 

because of the financial benefits that it would receive from the 

decline in the price of gas if Equitrans did not reverse the 

transaction.

DFS contends that under [paragraph] 5.1, a Pipeline credit is a 

condition precedent to payment. However, Equitrans is 

obligated to give credit to DFS for gas in the gathering pool 

belonging to DFS. DFS cannot refuse to pay for the gas 

delivered by XTO if DFS never sought a credit that would have 

been given. In other words, the credit was DFS’s for the asking. 

Since it never asked for the credit, it cannot rely on 

[paragraph] 5.1.

T.C.O., 6/12/2012, at 13-14 (footnote omitted; nomenclature modified). 

The trial court further observed that “[t]he Uniform Commercial Code 

provides that every contract imposes an obligation of good faith in its 

performance.” Id. at 14 n.13 (citing 13 Pa.C.S. § 1304).

Aside from boilerplate citations in support of global principles of 

contract interpretation, DFS’s entire argument consists of an appeal to 

common sense not unlike the trial court’s, although their respective analyses 

lead to divergent outcomes. In this connection, DFS neither acknowledges 

nor attempts to explain or excuse its undisputedly conscious decision to 

abandon the Contract (and, consequently, not actively seek restoration of 

the misplaced credit) primarily or exclusively when it discovered that it 

would lose money if it adhered to the Contract. Furthermore, XTO had no 

contractual relationship with—and hence no authority to compel action by—

Equitrans. Rather, DFS alone had such a relationship and the closely 
J-A04028-14

- 24 -

correlated discretion to press the matter until Equitrans’ accounting error 

was rectified. But DFS, seeing a benefit to be gained by sitting on its hands, 

declined to act. At that point, XTO undisputedly had fully performed its 

obligation under the Contract; DFS, in turn, relied upon a situation over 

which it had far more control than XTO to avoid rendering quid for XTO’s 

quo.

Although we recognize some substance to DFS’s contentions regarding 

the availability of two interpretations, we do not believe that DFS’s 

interpretation of paragraph 5.1 of the Contract is reasonable as a matter of 

law. As XTO correctly notes, the law is loath to impute the parties’ mutual 

intention to impose a condition precedent on performance in the absence of 

clear evidence of that intent. Viewing paragraph 5.1 in isolation or in 

tandem with the balance of the Contract, and in particular with 

paragraph 3.1, which confers title to the gas in question upon DFS upon 

XTO’s performance, it would be a stretch to find such an intention in this 

case. 

Indeed, all that gives DFS’s interpretation the patina of reason are the 

unusual circumstances surrounding this case. Where the situation diverged 

from common experience was in Equitrans’ failure not only to remove the 

credit from EQT Energy without documentation supporting the removal, as it 

did, but also its failure to return the credit to DFS immediately, as its own 

records indicated should have happened. Things only devolved when DFS 

declined to pursue those credits in pursuit of greater profit.
J-A04028-14

- 25 -

Needless to say, in any given case where something like this happens, 

if payment is required notwithstanding the pipeline’s failure to account for 

the credits arising from a seller’s delivery of gas to the meters, it may be 

difficult to reach an estimate of the payment obligation in question. 

However, four considerations militate against inferring from this observation 

that, under the circumstances of this case, a buyer is relieved of any 

payment obligation unless and until a party with whom the seller has no 

contractual relationship holds up its own end of a separate bargain between 

pipeline and buyer. First, there is no dispute that DFS initially was made 

aware of the credits that had been assigned at least for the months of April, 

May, and June of 2008: DFS timely paid XTO upon receiving Equitrans’ 

accounting for XTO’s deliveries in those months, deducting that payment 

from future transactions only when it discovered that Equitrans had removed 

and failed to restore those credits. Second, as noted by XTO, adjustments 

to prior months’ accountings, sometimes substantial ones, are de rigeur in 

the industry and sometimes occur following a significant delay following the 

period to be adjusted. See Brief for EQT at 8 (“If there is an error in an 

invoice, it is common gas industry practice for the gathering system operator 

[i.e., Equitrans] to issue a Prior Period Adjustment (“PPA”) in the next 

monthly invoice.”). Third, just as DFS affirmatively could have taken steps 

to ensure that Equitrans rectified its error, it also could have asked Equitrans 

to account for XTO’s production for July through October of 2008, 

encompassing the remaining period at issue in this litigation. Finally, as the 
J-A04028-14

- 26 -

trial court observed, DFS long has known the volume of XTO’s production. 

See T.C.O., 6/12/2012, at 13 (“In this case, there is no dispute over the 

quantity of the gas that [XTO] delivered.”).

While this case might have been extraordinary enough to preclude the 

parties’ anticipation of such events in drafting the Contract, we conclude that 

it is not reasonable to imagine that XTO intended, under paragraph 5.1, that 

a buyer might delay its performance indefinitely as a consequence of a thirdparty error, let alone that it might do so while endeavoring consciously to 

profit from the mistake. With XTO’s delivery to the Meters, its performance 

obligation was satisfied and title for the gas passed to DFS, legally triggering 

DFS’s obligation to perform. At a minimum, it was reasonable for DFS to 

take such steps as were necessary to ensure that the delivered gas was 

accounted for in due course. The trial court did not err in so finding.9 

Consequently, we affirm the trial court’s entry of summary judgment in 

favor of XTO on its contract claim.

We note as well the dangerous precedent we would set in endorsing 

DFS’s conduct in this case. Were we to do so, no similarly structured gas 

purchase contract would be safe. To wit, because there is a one- to twomonth lag between delivery and accounting, any time the price drops 

____________________________________________

9

In another, similar situation, a fair and difficult dispute might arise as 

to what sort of payment would be due from a buyer to a seller when an 

accounting had not yet been provided. But, as set forth above, this is not 

such a case. 
J-A04028-14

- 27 -

relative to the contractual purchase price during the lag between delivery 

and accounting, it would be in the buyer’s interest to abandon the contract 

and seek an equal measure of gas elsewhere at a better price. This would 

be tremendously disruptive, were it to become commonplace.

In DFS’s second issue, DFS contends that the trial court erred when it 

dismissed DFS’s claims that XTO failed to mitigate damages. See Brief for 

DFS at 30-35. The trial court so ruled upon two bases: first, because DFS 

and XTO had equal opportunities to mitigate the damages in question and, 

second, because there could be no certainty that, if XTO sold the gas at 

issue in this case to another buyer, it would have obtained a better price 

than it would have received at some other time. T.C.O., 3/28/2013, at 3-5.

DFS contends that the trial court should have concluded that jury 

questions inhered in whether XTO had a superior opportunity to sell the gas, 

thereby mitigating damages, and that DFS “never had the ability to obtain 

and sell the gas to mitigate damages.” Brief for DFS at 31. DFS’s argument 

hinges upon the proposition that questions of fact remain regarding whether 

DFS relinquished its rights to the gas, whether the gas was credited to 

another potential buyer (e.g., EQT Energy), and whether XTO had “specific 

and definite opportunities to sell the gas, including an offer from EQT Energy 

to purchase the gas at the November 2008 market price.” Id. at 34. DFS 

further contends that the evidence would support a jury finding that 

“Equitrans, for its part, worked exclusively with XTO to facilitate a sale of the 
J-A04028-14

- 28 -

gas, and permitted XTO to try to sell the gas while it sat on the Equitrans 

system.” Id. (citations omitted).

XTO responds first that DFS is mistaken in asserting that XTO had the 

“superior” opportunity to sell the gas or that the mitigation question, 

focusing as it does upon the reasonableness of the efforts to mitigate made 

by the party with the burden of doing so, cannot be resolved as a matter of 

law. Brief for XTO at 24 (citing, inter alia, Loyal Christian Benefits Ass’n 

v. Bender, 493 A.2d 760, 763-64 (Pa. Super. 1985) (affirming disposition of 

mitigation claim on summary judgment)). XTO further emphasizes that XTO 

had no legal right to dispose of gas to which XTO undisputedly had no title 

once it was delivered it to the Meters. Id. at 26-27. XTO maintains that the 

trial court correctly found that DFS undisputedly had an obligation to seek 

restoration of the credits, that DFS failed to do so because it sought a 

financial advantage that lay in relinquishing those rights, and that DFS 

cannot seek relief from XTO for not selling gas that DFS could have taken 

control of merely by demanding that Equitrans credit DFS for the gas. 

See id. at 24-28.

It is true that “a party who suffers a loss has a duty to make a 

reasonable attempt to mitigate damages.” Ecksel v. Orleans Constr. Co., 

519 A.2d 1021, 1028 (Pa. Super. 1987). However, “[t]he injured party is 

not obligated to mitigate damages where both he and the liable party have 

an equal opportunity to reduce damages.” Bender, 493 A.2d at 763 

(Pa. Super. 1985) (citing S.J. Groves & Sons Co. v. Warner Co., 576 F.2d 
J-A04028-14

- 29 -

524 (3d Cir. 1978)). While we are not bound by the S.J. Groves decision,10

we nonetheless believe that it ruled consistently with Pennsylvania law when 

it made the following observation:

Where both the plaintiff and the defendant have had equal 

opportunity to reduce the damages by the same act and it is 

equally reasonable to expect the defendant to minimize 

damages, the defendant is in no position to contend that the 

plaintiff failed to mitigate. Nor will the award be reduced on 

account of damages the defendant could have avoided as easily 

as the plaintiff. The duty to mitigate damages is not applicable 

where the party whose duty it is primarily to perform a contract 

has equal opportunity for performance and equal knowledge of 

the consequences of nonperformance.

576 F.2d at 530 (citations omitted); accord TruServ Corp. v. Morgan’s 

Tool & Supply Co., Inc., 39 A.3d 253, 262 (Pa. 2012). Plainly, the latter 

conditions were true of DFS in the instant case, and, in effect, the trial court 

so concluded. See T.C.O., 3/28/2013, at 3-4.

It is important to note that “the burden is on the party who breaches 

the contract to show how further loss could have been avoided through the 

reasonable efforts of the injured party.” Ecksel, 519 A.2d at 1028. 

Moreover, contrary to DFS’s position, this Court has blessed trial court 

determinations as a matter of law that no duty to mitigate existed under 

____________________________________________

10 Cf. Martin v. Hale Prods., Inc., 699 A.2d 1283, 1287 

(Pa. Super. 1997) (“Decisions of the federal courts lower than the United 

States Supreme Court possess a persuasive authority. Nevertheless, a 

federal court’s interpretation of state law does not bind state courts.” 

(citations omitted; emphasis in original)).
J-A04028-14

- 30 -

such circumstances, demonstrating that it is not per se necessary to submit 

a dispute about such opportunities to a jury. Id.; Dox Planks of N.E. 

Penna. v. Ohio Farmers Ins. Co., 621 A.2d 132 (Pa. Super. 1993). 

This Court’s decision in Dox Planks is instructive. At issue in that 

case was the duty to mitigate of a supplier of pre-cast concrete barriers to 

the appellant contractor. The trial court determined as a matter of law, and 

this Court agreed, that because the barriers already had been received by 

the contractor and had been used on the underlying highway project at the 

time of the contractor’s breach of its obligation to pay, the appellee supplier 

“was precluded from taking steps to avoid loss on the breach of the 

contract.” 621 A.2d at 135-36. 

While it is true that DFS opted not to act upon its right to the gas, it is 

equally true that it would have taken little effort for it to do so and that DFS, 

in fact, recognized that it had an obligation to do so. See, e.g., Deposition 

Testimony of Joseph Vanzant, 12/1/2010, at 151 (“If I had gone to [XTO] 

and [XTO] had said that was not correct, they had not sold [the gas] to 

anyone else, then [DFS] would have had an obligation to go back to 

Equitrans and contest their removal . . . of the volumes.”). Indeed, at all 

relevant times it would have been easier for DFS to claim and sell the credits 

(at whatever price) to which it already had title than it would have been 
J-A04028-14

- 31 -

for XTO to seek to reclaim title to those credits and resell them.11 Instead of 

already having taken advantage of the credits and refusing to pay, as the 

contractor had done with the concrete barriers in Dox Planks at the time of 

the breach, DFS figuratively left the concrete barriers (i.e., the gas credits) 

in a side lot on its work site (i.e., Equitrans’ pool) but deliberately refused to 

install them, having found another supplier offering comparable items at a 

lower price. Then the buyer (i.e., DFS) insisted that the seller (i.e., XTO) 

had the principal duty to resell the barriers of which the seller no longer had 

title or possession. 

It makes little sense to submit the question to a jury when the 

breaching party fails to establish a prima facie case that the non-breaching 

party had an opportunity to mitigate, and that its opportunity was at least 

superior to that of the breaching party; the law does not require otherwise. 

We conclude that the trial court did not err as a matter of law or abuse its 

discretion when it determined that DFS had sufficient opportunity to mitigate 

the impending damages from DFS’s own breach of contract and that XTO 

____________________________________________

11 That this is the case is established constructively by Crider’s deposition 

testimony acknowledging that she was mistaken initially in transferring 

credit to EQT Energy and thereafter mistaken in removing the credit from 

EQT Energy without restoring it to DFS. She responded affirmatively during 

her deposition when asked whether she “should have given DFS credit” 

when she discovered her error. Deposition of Leslie Crider, 11/16/2010, 

at 77-78. She further testified that such transfers of credits are an 

appropriate subject of a prior period adjustment (“PPA”). Id. at 87.
J-A04028-14

- 32 -

had no obligation to mitigate those damages. Thus, we affirm the trial 

court’s rejection of DFS’s claim for mitigation. 

In DFS’s final issue, it argues that the trial court erred in granting 

summary judgment to EQT on DFS’s cross-claims for conversion and tortious 

interference with DFS’s contractual relationship with XTO. Brief for DFS 

at 41-63. We address these issues in turn.

A claim for conversion will lie when one party denies another party’s 

“right of property in, or use or possession of, a chattel, without the owner’s 

consent and without lawful justification.” Shonberger v. Oswell, 530 A.2d 

112, 114 (Pa. Super. 1987) (citing Stevenson v. Economy Bank of 

Ambridge, 197 A.2d 721, 726 (Pa. 1964)). Specific intent need not be 

proved: “[A]n intent to exercise dominion or control over the goods which is 

in fact inconsistent with the [victim’s] rights establishes the tort.” Id.

Moreover, money may be the subject of a claim for conversion. Id.; 

cf. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 581 (Pa. 

Super. 2003) (“Money may be the subject of conversion.”). Nonetheless, 

“[n]ot every destruction or deprivation of property amounts to a conversion; 

there must be an actual appropriation of it by the offending party for his 

own use.” Chrysler Credit Corp. v. Smith, 643 A.2d 1098, 1100 

(Pa. Super. 1994) (quoting 37 P.L.E. Trespass § 81) (emphasis added).

This last point is germane inasmuch as we find little merit to EQT’s 

argument that, given the nature of Equitrans’ function, the actual molecules 

delivered to the Meters by XTO were never possessed by Equitrans, but 
J-A04028-14

- 33 -

rather that the subject behavior reflected merely an accounting error. Be 

that as it may, we are not prepared to hold that such rights, which are not 

unlike cash in hand, cannot form the subject of a conversion claim. But see

Pittsburgh Constr. Co., 834 A.2d at 581 (“[T]he failure to pay a debt is not 

conversion.”). We assume arguendo that they may, but we find DFS’s 

argument unavailing for other reasons.12

Specifically, we find that DFS has failed to establish both a lack of 

consent and a lack of justification. Undisputedly, Equitrans’ accounting error 

resulted only in a brief deprivation of DFS’s rights to the subject gas, one 

which was rectified at the time that DFS learned of Equitrans’ misfeasance. 

After it obtained such knowledge, however, DFS did not take the slightest 

step to rectify the error; rather, it deliberately considered how best to 

benefit from the mistake. Moreover, upon partial correction of the error 

(i.e., by removing the credit from EQT Energy’s pool without restoring it to 

DFS), Equitrans did not hold the gas to its own benefit or that of EQT 

Energy, but rather in a sort of limbo that persisted only because no entity 

claimed it. 

In Norriton East Realty Corp. v. Central Penn Nat’l Bank, 

254 A.2d 637 (Pa. 1969), our Supreme Court held that a similar variety of 

acquiescence constituted consent sufficient to preclude a claim for 

____________________________________________

12 This Court may affirm a trial court ruling on any correct basis. 

Rambo v. Greene, 906 A.2d 1232, 1235 n.4 (Pa. Super. 2006).
J-A04028-14

- 34 -

conversion. In that case, the appellant-mortgagor, at appellee-mortgagee’s 

request, assigned all leases for the subject property to the mortgagee and 

directed its rental agent to turn over all rents to the mortgagee. The

mortgagee later initiated foreclosure proceedings and purchased the 

property at a sheriff’s sale. After further proceedings, the mortgagor filed 

suit against the mortgagee (which by then had surrendered the property and 

appurtenances to a third party) for conversion arising from the mortgagee’s 

alleged improper retention of various appliances that were not implicated in 

the foreclosure action. Id. at 638.

Our Supreme Court reversed the lower court’s determination that the 

mortgagee had converted the subject items. The Court noted first that the 

intent requirement was not satisfied: Because the goods originally came 

into the possession of the mortgagee with the consent of the mortgagor, 

they were not transferred in violation of the mortgagor’s possessory rights. 

Moreover, our Supreme Court found that “[p]ossession was not withheld 

since no demand was made of [the mortgagee] at any time [that the 

mortgagee] could have acquiesced.” Id. at 639 (emphasis added). “A 

defendant who has come rightfully into possession in the first instance,” the 

Court explained, “becomes a converter when he refuses to deliver on 

demand. Since there has been no wrongful taking or disposal of the 

property, demand and refusal are necessary to complete the tort.” Id.

(quoting Prosser, Torts § at 74 (2d ed. 1955)). Because the mortgagor 

made no demand until after the mortgagee had transferred the personalty in 
J-A04028-14

- 35 -

question to a third party, and therefore had relinquished the ability to return 

the party to the mortgagor, “there was no unreasonable withholding.” Id.

At no time relative to this appeal did DFS make any demand of 

Equitrans that it restore DFS’s credits for the gas in question. To the 

contrary, DFS made a calculated decision not to pursue those rights, was 

notably tardy in informing its counterparties of that decision, and even 

refused the credits in question when tendered by Equitrans in 2011. With 

DFS, the only party with a proper claim to the gas, refusing to claim it, we 

must conclude that Equitrans did not act wrongfully in leaving it in limbo: It 

was neither Equitrans’ nor EQT Energy’s nor XTO’s gas to sell. It would defy 

reason to hold Equitrans responsible for retaining credit that its rightful 

owner had disclaimed. DFS’s conduct was inconsistent with a conversion 

claim when its calculated acquiescence to Equitrans’ retention of the credits 

was practically indistinguishable from consent. Inasmuch as there are no 

genuine issues of material fact calling into question whether DFS willfully 

acquiesced to Equitrans’ actions, the trial court did not err in granting 

summary judgment to EQT on DFS’s conversion claim.

Turning to DFS’s argument in support of its tortious interference claim 

against EQT, see Brief for DFS at 48-49, DFS correctly notes that, in 

Pennsylvania, such claims are governed by the Restatement (Second) of 

Torts § 766A, which provides as follows: 

One who intentionally and improperly interferes with the 

performance of a contract . . . between another and a third 

person, by preventing the other from performing the contract or 
J-A04028-14

- 36 -

causing his performance to be more expensive or burdensome, 

is subject to liability to the other for the pecuniary loss resulting 

to him.

See also Al Hamilton Contr. Co. v. Cowder, 644 A.2d 188, 191 

(Pa. Super. 1994).

Without delving into the other elements of such a claim, we find that 

DFS’s argument in support of this claim is afflicted with difficulties 

establishing pecuniary loss. Noting that the price of gas has fallen steadily 

since 2008, DFS argues that EQT’s failure properly to credit the gas to DFS 

in a timely manner denied DFS the opportunity to sell the gas at more 

favorable 2008 prices. DFS notes that the gas was not ultimately credited 

until 2013, late in the instant litigation. See Brief for DFS at 59-60. 

However, DFS deliberately did not ask that its credits be restored in 2008. 

Rather than seek prompt action to correct what amounted to a bookkeeping 

error, DFS was content, even eager,13 to make up its negative balance in the 

pool with the less expensive gas that was available at that time. 

DFS maintains that what it deemed favorable at the time was, in fact, 

injurious:

Because Equitrans chose not to credit DFS’s pool for the April 

through October 2008 gas production when it entered the 

____________________________________________

13 In an e-mail from Joseph Vanzant to Wayne Hinter transmitted on 

September 2, 2008, i.e., the very day that the crediting error first came to 

DFS’s attention, Vanzant estimated that “this adjustment from Equitrans will 

net us somewhere near $450,000 in reduced gas costs. Yay!” (emphasis 

added).
J-A04028-14

- 37 -

Equitrans gathering system, Equitrans prevented DFS from 

reselling the gas at that time, when the market value of the gas 

was much more favorable, and instead has compelled DFS to sell 

the gas in a less favorable market, and at a substantial loss.

Brief for DFS at 60.14 However, DFS effectively gambled on XTO’s 

willingness to acquiesce to DFS’s abandonment of the Contract, a gamble 

that it lost. That DFS’s expectation that abandonment would redound to its 

benefit proved short-sighted does not establish that DFS suffered actionable 

damages. 

Furthermore, DFS has failed to establish that EQT’s actions prevented 

DFS from its performance under the Contract. First, it cannot be said that 

EQT in any way interfered with XTO’s performance, because XTO 

undisputedly fully satisfied its obligations under the Contract. Second, for 

precisely the same reason that we reject DFS’s interpretation of the 

Contract, we must conclude that DFS was obliged to perform 

notwithstanding Equitrans’ mistakes. While those mistakes may have 

complicated the process by which DFS could have performed, it cannot be 

said that EQT prevented DFS from doing so pursuant to the terms of the 

Contract. 

____________________________________________

14 The trial court noted that DFS did not raise “a claim for losses 

sustained, because of falling gas prices, between the date that the credits 

were removed and the date they would have been restored if [DFS] had 

taken reasonable steps to have the credits restored.” T.C.O., 12/28/2012, 

at 2 n.2.
J-A04028-14

- 38 -

Finally, and perhaps most importantly, the record establishes that 

DFS’s failure to perform was exclusively of its own choosing, reflecting 

precisely the sort of bad faith that the Uniform Commercial Code proscribes. 

See 13 Pa.C.S. § 1304 (“Every contract or duty within this title imposes an 

obligation of good faith in its performance and enforcement.”); 

cf. Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 617 

(3d Cir. 1995) (“[C]ourts generally utilize the good faith duty as an 

interpretive tool to determine the parties’ justifiable expectations . . . .”). 

Absent DFS’s demand for the credit and Equitrans’ refusal—the consideration 

fatal to DFS’s conversion claim—it cannot be said that there remain any 

questions of material fact as to whether EQT intentionally or improperly 

interfered with DFS’s performance under the Contract. DFS plainly chose 

not to perform, and its actions and inaction—as the damages it suffered, if 

any—reflected that choice. That DFS miscalculated cannot fairly expose EQT 

to liability for tortious interference associated with an unfortunate 

circumstance that lay within DFS’s means to rectify. Consequently, the trial 

court did not err in granting EQT’s motion for summary judgment as against 

DFS’s claims for intentional interference with DFS’s contract with XTO.

The above discussion concludes our review of the issues raised by DFS 

on appeal. We next consider XTO’s lone issue raised in its cross-appeal, to 

wit, that the trial court erred in granting EQT summary judgment as against 

XTO’s claim for tortious interference with contractual relations. 
J-A04028-14

- 39 -

XTO’s argument on this issue also fails for want of a specification of 

the discrete damages caused by EQT. With regard to this necessary element 

of a tortious interference claim, XTO identifies only two categories of 

damages: The approximately $1.5 million that it contends that it was owed 

for April through June 2008 production (i.e., the amount that DFS originally 

paid before deducting it when Equitrans reallocated the credit to EQT 

Energy) and the approximately $1.8 million that it asserts it was owed for its 

July through October 2008 production. Brief for XTO at 50-51. The trial 

court’s entry of summary judgment in XTO’s favor as against DFS, which we 

have affirmed, entered damages in precisely these amounts, as well as 

awarding substantial pre-judgment interest. See Final Judgment, 

4/18/2013, at 1 (awarding a judgment of $4,265,353.77 for XTO and 

against DFS, exclusive of costs of suit). Consequently, XTO has failed to 

identify any damages arising from EQT’s conduct for which it has not already 

been compensated. Thus, we affirm the trial court’s order granting 

summary judgment to EQT relative to XTO’s claim for tortious interference. 

Finally, we address EQT’s cross-claims against Linn. These claims 

were pressed by EQT only contingently, in the event that XTO’s claims 

against EQT were restored by this Court on appeal. See Brief for EQT at 53. 

Because we have affirmed the trial court’s order exonerating EQT of all 

liability in this case, EQT’s cross-claims against Linn are moot. 

Consequently, no relief is due. 
J-A04028-14

- 40 -

For the foregoing reasons, we affirm in its entirety the trial court’s 

entry of judgment in this matter, albeit in some instances for different 

reasons than those offered by the trial court.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2014