On June 12, 2018, a Pennsylvania appeals court refused a petitioner’s request for an en banc rehearing on a case decided by a three-judge panel in April 2018, holding that the rule of capture did not bar a claim for trespass under circumstances where an operator’s hydraulic fracturing activity resulted in the drainage of gas from an adjoining tract that was not a part of the operator’s lease. The decision, Adam Briggs et al. v. Southwestern Energy Production Company, case number 1351 MDA 2017, which was decided by the Superior Court of Pennsylvania on April 2, 2018, conflicts with a Texas Supreme Court case, Coastal Oil & Gas Corp v. Garza Energy Trust, one of the very few cases known to have considered this issue. In Coastal, the Texas Supreme Court held that that a plaintiff seeking to assert a claim of trespass for the drainage of oil and gas from beneath its property as a result of hydraulic fracturing was precluded from making such a claim under the rule of capture. A full discussion of the April 2nd decision was previously made and may be found here.
The Pennsylvania appeals court did not comment on the Briggs case in rendering its decision not to rehear the matter. The petitioner, Southwestern Energy Production Company, is now faced with the prospect of petitioning the Pennsylvania Supreme Court for review of the case. If left unchanged, Briggs represents a seismic shift regarding actionable claims for drainage of another party’s gas, by serving notice to oil and gas producers in Pennsylvania, and perhaps in other areas outside of Texas, that there may be an alternative outcome regarding whether liability may be applied when hydraulic fracturing is used to produce oil and gas. For now, Briggs remains the law in Pennsylvania.