NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 3613

_____________ WAYNE HARRISON ; MARY HARRISON

v. CABOT OIL & GAS CORPORATION, Appellan t

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 10

- c v - 00 312 ) District Judge: Hon. Robert D. Mariani

_______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

April 2 4 , 2015 Before: JORDAN, SHWARTZ , and KRAUSE, Circuit Judges

(Filed: June 25, 2015 )

_______________ OPINION 

_______________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

JORDAN, Circuit Judge Cabot Oil & Gas Corporation (“Cabot Oil”) appeals from the entry of summary judgment in favor of Wayne Har rison and Mary Harrison on its counterclaim. We will affirm. After briefing was completed in this appeal , we petitioned for certif ication of the following question to the Supreme Court of Pennsylvania: “When an oil and gas lessor
files an unsuccessful la wsuit to invalidate a lease, is the lessee entitled to an equitable extension of the primary lease term equal to the length of time the lawsuit was pending?” Harrison v. Cabot Oil & Gas Corp. , No. 12

- 3613, at 7 (3d Cir. Apr. 7, 2014) . That Court granted our petition and issued a thorough and thoughtful opinion on February 17, 2015. In answering our question, the Pennsylvania Supreme Court declared, “We do not foreclose that equitable relief may be available to oil

- and

- gas - producing companies

– subject to applicable requirements governing recourse to equity

– where there is an affirmative repudiation of a lease.” Harrison v. Cabot Oil & Gas Corp. , 110 A.3d 178, 186 (Pa. 2015) . But , the C ourt continued, “ the mere pursuit of declaratory relief challenging the validity of a lease does not amount to such .” Id. It explained that it “ has required more than the mere assertion of a challenge to the validity of an agreement to demonstrate such repudiation. Under Pennsylvania law, anticipatory rep udiation or bre ach requires an ‘ absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so. ’ ” Id. at 18 4 (quoting 2401 Pa. Ave. Corp. v. Fed’n of Jewish Agencies of Greater Phila. , 489 A.2d 733, 73 6 ( Pa. 1985) ).3

The Pennsy lvania Supreme Court’s opinion effectively resolves the sole issue on appeal. Cabot Oi l ’s counterclaim sought equitable relief based on the request in the Harrison s ’ amended complaint for a declaration that the lease was invalid. 1 Because “ the
mere pursu it of declaratory relief challenging the validity of a lease does not amount to [repudiation] , ” id. at 186, the District Court properly granted summary judgment against Cabot Oil on its counterclaim

. Cabot Oil acknowledges that , in light of the Pennsylvan ia Supreme Court’ s decision , it cannot prevail on a theory of repudiation. But it argues that its counterclaim is also based on a number of other equitable theories, including estoppel, unjust enrichment, and avoidance of contractual forfeiture. Because the Commonwealth’s Supreme Court did not address th o se alternative theories, Cabot Oil urges us to do so

now. C ontrary to Cabot Oil’s assertion, however, its counterclaim was based solely, and explicitly, on a theory of repudiation. In its briefing befor e us , Cabot Oil did briefly discuss alternative theories that other jurisdictions have used to justify the equitable relief it seeks, but its briefing focuses , appropriately , on the one theory actually alleged in its counterclaim: repudiation. O ther theor ies of relief are therefore not properly before us

.

1 In their amended complaint, t he Harrisons also sought, i n the alternative, an order compelling Cabo t Oil to pay fair market value for the lease. But Cabot Oil only allege d repudiation on the basis of the Harrisons’ request for declaratory relief

. Thus any claim of repudiation based the Harrisons’ request for just compensation has been forfeited

. See Josey v. John R. Hollingsworth Corp. , 996 F.2d 632, 641

- 42 (3d Cir. 1993) (treating as forfeited a claim that was neither raised in complaint nor added by amendment)

.4

See Josey v. John R. Hollingsworth Corp. , 996 F.2d 632, 641

- 42 (3d Cir. 1993) (treating as forfeited a claim that was neither raised in complaint nor added by amendment). Accordingly , we will affirm the order of the District Court.