NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3613

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WAYNE HARRISON; MARY HARRISON

v.

CABOT OIL & GAS CORPORATION,

 Appellant 

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-10-cv-00312)

District Judge: Hon. Robert D. Mariani

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Submitted Under Third Circuit L.A.R. 34.1(a)

April 24, 2015

Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

(Filed: June 25, 2015)

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OPINION

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 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 Harrison and Mary Harrison on its counterclaim. We will 

affirm.

After briefing was completed in this appeal, we petitioned for certification of the 

following question to the Supreme Court of Pennsylvania: “When an oil and gas lessor 

files an unsuccessful lawsuit 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 Court 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 repudiation or 

breach requires an ‘absolute and unequivocal refusal to perform or a distinct and positive 

statement of an inability to do so.’” Id. at 184 (quoting 2401 Pa. Ave. Corp. v. Fed’n of 

Jewish Agencies of Greater Phila., 489 A.2d 733, 736 (Pa. 1985)).
3

The Pennsylvania Supreme Court’s opinion effectively resolves the sole issue on 

appeal. Cabot Oil’s counterclaim sought equitable relief based on the request in the 

Harrisons’ amended complaint for a declaration that the lease was invalid.1 Because “the 

mere pursuit 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 Pennsylvania 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 those alternative theories, Cabot Oil urges us to do so 

now.

Contrary to Cabot Oil’s assertion, however, its counterclaim was based solely, and 

explicitly, on a theory of repudiation. In its briefing before 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. Other theories of relief are therefore not properly before us. 

 

1

In their amended complaint, the Harrisons also sought, in the alternative, an 

order compelling Cabot Oil to pay fair market value for the lease. But Cabot Oil only 

alleged 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.