()

In the first case examining the scope of its original jurisdiction under the Act 13 of 2009 amendments to the Pennsylvania Oil and Gas Act, the Commonwealth Court has ruled that it lacks original jurisdiction to hear challenges to township resolutions and agreements that were either never officially enacted as ordinances or have since been rescinded.

In the consolidated cases of Seitel Data v.Center Township, Seitel Data v. Shippingport Borough and Seitel Data v. Greene Township, a unanimous three-judge panel of the court granted the preliminary objections of defendants Center Township, Shippingport Borough and Greene Township and transferred the cases to the Beaver County Court of Common Pleas.

Plaintiff Seitel Data, a company that conducts seismic surveys, had argued that Center Township and Shippingport Borough had attempted to get it to execute agreements that included a near verbatim restatement of the same seismic regulations and requirements that were enjoined by Judge Keith B. Quigley’s September 2013 order in the cases Seitel Data v. Hopewell Township and Seitel Data v. Potter Township, according to Judge Patricia A. McCullough.

McCullough said Seitel also alleged that Greene Township enacted a resolution nearly identical to the ones at issue in the Hopewell and Potter cases.

But McCullough said neither the Center Township and Shippingport Borough agreements, nor Greene Township’s resolution, constituted enacted ordinances.

McCullough said Section 3306(1) of Act 13, which states that “‘any person who is aggrieved by the enactment or enforcement of a local ordinance that violates the [Pennsylvania Municipalities Planning Code], this chapter or Chapter 32 … may bring an action in Commonwealth Court to invalidate the ordinance or enjoin its enforcement,’” clearly restricts the Commonwealth Court’s original jurisdiction to hearing challenges to officially enacted ordinances.

“We decline Seitel’s invitation to construe the term ‘ordinance’ in Section 3306(1) to include ‘unwritten or otherwise not officially adopted ordinances,’” McCullough said, citing language from Seitel’s brief. “This proposed construction contravenes the natural meaning of the word ‘ordinance’ and disregards the official process and procedure that not only is necessary to create and effectuate an ordinance, but also differentiate official lawmaking activity from other forms of municipal business. Moreover, although Center Township and Shippingport Borough sought to impose the conditions of the seismic agreements upon Seitel, these contracts, regardless of their terms or the underlying intent of the municipalities in proposing them, cannot be viewed as being a duly enacted ‘ordinance.’”

Similarly, McCullough found that Greene Township’s resolution did not constitute an ordinance either and that, even if it did, records indicate that it has since been rescinded and is no longer enforceable anyway.

McCullough was joined by Judge Bonnie Brigance Leadbetter and Senior Judge James Gardner Colins.

According to McCullough, Seitel, which conducts seismic surveys in Allegheny and Beaver counties and provides the data to oil and gas companies, alleged in three petitions for review filed in the Commonwealth Court on Oct. 3, 2013, that the agreements Center Township and Shippingport Borough attempted to get the company to sign, along with the “amended seismic resolution” Greene Township adopted in July 2013, included substantially similar language to what was used in the municipal laws Quigley had invalidated as arbitrary and inviting to discriminatory enforcement in the Hopewell and Potter cases.

But McCullough said Black’s Law Dictionary defines an “ordinance” as “‘an authoritative law or decree’” that “‘is a legislative enactment … as much as an act of the state legislature.’”

McCullough also noted that Pennsylvania case law has held that ordinances are legislative acts voted on and adopted by municipal governments in their official authority.

Therefore, McCullough said, the agreements Center Township and Shippingport Borough attempted to enter into with Seitel could not be considered enacted ordinances.

McCullough cited the 1982 Commonwealth Court case Board of Commissioners of Lower Merion Township v. Haslett, in which thecourt found that a subdivision agreement between a property owner and a township was a contract, not an ordinance, because there was no evidence that the agreement had ever been “‘published in a manner regulations usually are, or that it was ever formally adopted, mentioned or specifically incorporated into the existing ordinance.’”

“Similarly, here, the seismic agreements are contractual agreements by their very nature, and the averments in Seitel’s petitions for review establish that they were not officially adopted as ordinances,” McCullough said.

McCullough also rejected Seitel’s “novel contention” that Center Township and Shippingport Borough were attempting to enforce Greene Township’s July 2013 amended resolution, finding that settled law has held that a township has no authority to enforce other municipalities’ local laws.

Even if they could, McCullough added, Seitel already pleaded that the Greene Township resolution did not meet all the requirements to be considered a valid ordinance.

“Particularly, Seitel averred that ‘the amended seismic resolution … was not advertised, subject to public inspection, nor was it ever recorded in [Greene Township's] book of ordinances,” McCullough said.

Regardless, McCullough added, the record reflects that Greene Township’s July 2013 amended resolution was rescinded in October 2013.

McCullough found that because the Commonwealth Court has the authority, under its own 1987 decision in McClimans v. Shenango Township Board of Supervisors, to contact counsel to obtain information about ordinances, “it naturally follows that we are able to do the same with respect to official municipal action reflecting the replacement or rescission of an ordinance.”

McCullough said that, according to Greene Township’s Resolution 24-2013 and the official meeting minutes for Oct. 7, 2013, the July 2013 amended resolution was officially rescinded.

“Therefore, this court concludes that we lack subject-matter jurisdiction because there is no ‘ordinance’ currently present in this case that regulates seismic activity,” McCullough said.

The court did, however, keep intact Quigley’s Nov. 13, 2013, order granting a preliminary injunction to Seitel, which stated that the injunction would remain in effect for 30 days after the case was transferred to the Beaver County trial court.

Counsel for Seitel, Shawn N. Gallagher of Buchanan Ingersoll & Rooney in Pittsburgh, said that because of Quigley’s injunctions in the Hopewell, Potter, Greene, Center and Shippingport cases, Seitel has been able to complete its seismic testing.

But Gallagher added that while his client ultimately got what it wanted, the Commonwealth Court’s ruling in the Greene, Center and Shippingport cases has “broader implications,” including allowing municipalities to “destroy jurisdiction” by taking legislative action without officially enacting ordinances and by rescinding legislative action after a suit challenging the action has been filed.

Counsel for the defendant municipalities, Michael B. Jones of McMillen Urick Tocci Fouse & Jones in Aliquippa, Pa., who also represents the defendants in Hopewell and Potter, acknowledged that, despite the Commonwealth Court finding in his clients’ favor here, Seitel has been allowed to continue with its seismic testing in all of the defendant municipalities in the meantime.

“We win and the citizens lose,” Jones said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 24-page opinion in Seitel Data v.Center Township, PICS No. 14-0370, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •