J-A26016-25
2026 PA Super 139
RICHARD E. PENNESI AND MICHELE : IN THE SUPERIOR COURT OF A. PENNESI, HUSBAND AND WIFE; : PENNSYLVANIA
AND EDWARD J. MAZZONI AND ANN :
ZOPPETTI, UNMARRIED :
:
:
:
:
Appellants : No. 452 WDA 2025
:
:
v. :
:
:
DL RESOURCES, INC., DWAYNE :
OVERLY AND ROSEMARY OVERLY, :
HUSBAND AND WIFE, GARY C. :
MOORE, CARMELITA MYERS, :
RONALD D. MALINE, TERRY KING, :
JOSEPH S. MUCHNOCK AND LISA A. :
MUCHNOCK, HUSBAND AND WIFE, :
MICHAEL J. LITTLE AND JILL M. :
LITTLE, HUSBAND AND WIFE, :
ROBERT G. SISAK AND LISA A. :
SISAK, HUSBAND AND WIFE, JOHN :
B. ZOMISKY, AND BRYAN K. ROBB :
AND DIANE L. ROBB, HUSBAND AND :
WIFE. :
:
Appeal from the Order Entered March 11, 2025
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): 2444 of 2023
BEFORE: OLSON, J., STABILE, J., and KING, J.
OPINION BY OLSON, J.: FILED: JULY 1, 2026
Appellants, Richard E. Pennesi and Michele A. Pennesi, husband and
wife, (collectively, “Pennesi”) and Edward J. Mazzoni and Ann Zoppetti, an
unmarried couple, (collectively, “Mazzoni”) appeal from the March 11, 2025 J-A26016-25
order entered in the Court of Common Pleas of Westmoreland County that
granted summary judgment in favor of, inter alia, DL Resources, Inc. (“DL
Resources”) in the declaratory judgment action brought by Appellants. 1 The
March 11, 2025 order also denied Appellants’ cross-motion seeking summary
judgment in the declaratory judgment action. After careful consideration, we
vacate the March 11, 2025 order and remand the case for further proceedings
in accordance with our decision.
On June 22, 2023, Appellants filed a complaint for declaratory judgment
against the party-defendants seeking, inter alia, to enjoin DL Resources from
conducting further oil and gas drilling and production operations on the surface
of the real property owned by Pennesi. By way of background, Appellants
collectively “own a total of 17.58 acres of land in Unity Township,
Westmoreland County, Pennsylvania.” Appellants’ Response to Motion for
Summary Judgment and Cross-Motion for Summary Judgment, 1/29/25, at
¶5.2 Appellants’ land “is part of a larger 54[-]acre tract of land (the “Leased ____________________________________________
1 The motion for summary judgment filed by DL Resources was joined by the
remaining defendants named in the declaratory judgment action, those being Dwayne Overly and Rosemary Overly (husband and wife), Gary C. Moore, Carmelita Myers, Ronald D. Maline, Terry King, Joseph S. Muchnock and Lisa A. Muchnock (husband and wife), Michael J. Little and Jill M. Little (husband and wife), Robert G. Sisak and Lisa A. Sisak (husband and wife), John B. Zomisky (“Zomisky”), and Bryan K. Robb and Diane L. Robb (husband and wife). We refer to DL Resources and the other named-defendants collectively as “the party-defendants.”
2 The trial court adopted, and relied upon, the undisputed facts set forth in
Appellants’ response to DL Resources’ motion for summary judgment and
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Premises”) which Benjamin John Wells, Jr., William W. Wells, and Carol C.
Wells [(collectively, “Wells”)] leased to lessee W.H. Haupt Company by [an]
oil and gas lease dated August 13, 1959[.]” Id. at ¶6. On August 27, 1976,
Wells “sold 41.02 [acres] of the Leased Premises[,] including the appurtenant
oil and gas rights[,] to Zomisky[.]” Id. at ¶8. On March 13, 1982, “Zomisky
sold 2 acres of [his] land[,] including the appurtenant oil and gas rights[,] to
[Pennesi].” Id. at ¶9. On March 13, 1982, “Zomisky [also] sold 2 acres of
[his] land[, including the appurtenant oil and gas rights,] to David C. Maffit.”
Id. at ¶¶10, 17. Thereafter, Mazzoni acquired 2 acres of land, including the
appurtenant oil and gas rights, from Maffit in 1993. Id. at ¶17.
On January 25, 1997, “Zomisky sold 13.58 acres of [his] land to [Michele
A. Pennesi (the “Pennesi Deed”).]” Id. at ¶11. “The Pennesi Deed ‘excepted
and reserved’ to Zomisky the ‘oil and gas’ rights associated with the [13.58
acres of land sold to Michele A. Pennesi] (the ‘Reserved Gas’). However, the
Pennesi Deed did not ‘except and reserve’ unto Zomisky any express right to
use the surface of the [13.58-acre tract of land] to produce the Reserved
Gas.”3 Id. at ¶12. As a result of the prior deed transfers of real property, on ____________________________________________
cross-motion for summary judgment filed on January 29, 2025. Trial Court Opinion, 3/11/25, at 2.
3 Minerals and other sub-surface “materials,” such as gas and oil, are corporeal
things already in existence and, as such, remain in the possession of the grantor when “excepted” in a conveyance versus incorporeal things, which do not exist at the time of conveyance, remain in the grantor’s possession when they are “reserved” within the context of a property transfer. Ralston v.
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January 25, 1997, “Zomisky continued to own about 20.28 acres of the Leased
Premises including the related oil and gas rights.” Id. at ¶13. At this same
time, Zomisky also owned a 13.58-acre oil and gas sub-surface estate located
beneath the 13.58-acre surface estate owned by Michele A. Pennesi.
On February 22, 2012, “Michele A. Pennesi conveyed the [13.58-acre
surface estate] to [both her and her husband, such that the deed to the
surface estate was now titled in both names.]” Id. at ¶14. On December 16,
2014, Pennesi sold 6.175 acres [of the 13.58-acre surface estate] to
[Mazzoni].” Id. at ¶15. This resulted in Pennesi owning “9.405 acres of the
Leased Premises consisting of the 2 acres with [the appurtenant] oil and gas
rights[,] which Zomisky conveyed in 1982[,] and 7.405 acres of the
[13.58-acre surface estate Zomisky sold Michele A. Pennesi in 1997, to which
Zomisky excepted to himself the oil and gas rights appurtenant to the land
(collectively, the “Pennesi Land”).]” Id. at ¶16. As a result of the December
16, 2014 transaction, Mazzoni owned “8.175 acres of the Leased Premises
consisting of the 2 acre tract [of land] with [the appurtenant] oil and gas rights
which Zomisky [first] sold [] in 1982[,] and 6.175 acres of the [13.58-acres
surface estate acquired from Pennesi to which Zomisky excepted to himself
the oil and gas rights appurtenant to the land (collectively, the “Mazzoni
Land”).] Id. at ¶17.
Ralston, 55 A.3d 736, 741 (Pa. Super. 2012) (explaining that the terms “exception” and “reservation” are often used interchangeably in deeds).
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“By way of various assignments, [DL Resources] succeeded to the
interest of [W.H. Haupt Company under the August 13, 1959 oil and gas rights
lease.]” Id. at ¶19. In 2006, DL Resources “drilled three conventional gas
wells[,] known as the William Wells 1, 2, and 3[,] on the surface of the Leased
Premises[,] which are covered by [well permits issued by the Pennsylvania
Department of Environmental Protection. As of January 29, 2025, DL
Resources] continued to operate all three wells to produce gas from the
Leased Premises.” Id. at ¶20. DL Resources “drilled and is currently
operating one of those wells, the William Wells 2[,] on the surface of the
Pennesi Land.” Id. at ¶21. Specifically, the well is located on the 7.405-acre
portion of the 13.58-acre surface estate in which Zomisky excepted for himself
the oil and gas rights. “In connection with its operation of [William Wells 2,
DL Resources] maintains a wellhead and related production equipment
including roadways, gathering pipelines, and brine tanks on the surface of the
Pennesi Land.”4 Id. at ¶22.
As part of Appellants’ declaratory judgment action, DL Resources
“admitted that it [] surrendered the [August 13, 1959 oil and gas rights lease
and that the lease] no longer has any force effect.” Id. at ¶24. “Instead, the
only oil and gas lease which currently affects the Leased Premises is an oil and
4 The focus of the parties’ dispute is the access to DL Resources’ William Wells
2 which is located on the Pennesi Land. Mazzoni is the owner of the surface estate adjacent to the Pennesi Land and, therefore, is also a plaintiff in the declaratory judgment action. However, there are no allegations that DL Resources utilized the Mazzoni Land to access its oil and gas estate.
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gas lease dated March 1, 2023[,] which the [party-defendants, excluding DL
Resources,] as lessors[,] made in favor of [DL Resources,] as lessee[.]” Id.
at ¶25. Neither Pennesi nor Mazzoni joined the March 1, 2023 lease
agreement as lessors. Id. at ¶26. The March 1, 2023 lease agreement
references the same 54-acre tract of land (the Leased Premises) that is the
subject of the August 13, 1959 lease and conveys a leasehold interest in the
sub-surface oil and gas estate for all but 4 acres of the Leased Premises to DL
Resources. Id. at ¶27. The March 1, 2023 lease agreement “expressly
excludes from the [conveyance] the 4 acres [of land that] Zomisky sold to
[Pennesi] and to [Mazzoni, via an initial transfer to David C. Maffit,] in 1982.”
Id. at ¶28. The March 1, 2023 lease “does not cover the surface[,] or any
other part[,] of the Pennesi [L]and [or the Mazzoni Land] because [Pennesi
and Mazzoni] have not joined [the lease] as lessors.” Id. at ¶29.
The party-defendants, except for Zomisky and DL Resources, filed
preliminary objections to Appellants’ complaint for declaratory judgment.
Zomisky filed his own preliminary objections to Appellants’ complaint. In
response, Appellants filed an amended complaint.
Following the filing of the amended complaint, additional preliminary
objections (which were overruled), and answers and new matter, DL
Resources and Zomisky jointly filed a motion for summary judgment which
the remaining-defendants joined. In part, the party-defendants argued that
DL Resources possessed the right to use the surface of the Pennesi Land at all
relevant times. Subsequently, Appellants filed a response to the motion for
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summary judgment, as well as a cross-motion for summary judgment. The
trial court entertained argument on the competing motions for summary
judgment on February 26, 2025. On March 11, 2025, the trial court granted
summary judgment in favor of the party-defendants and, in turn, dismissed
Appellants’ cross-motion for summary judgment with prejudice. In granting
summary judgment in favor of the party-defendants, the trial court held that
the party-defendants were not required to show that DL Resources’ use of the
Pennesi Land was strictly necessary but, rather, only that its use was
reasonable. Because, in the trial court’s view, no genuine issue of material
fact existed as to the reasonableness of DL Resources’ use of the Pennesi
Land, the trial court held that the party-defendants were entitled to judgment
as a matter of law. This appeal followed.5
Appellants raise the following issue for our review:
Whether[,] absent an express right to use the surface of land to
produce the underlying oil and gas estate, [an] easement to do so
may be implied on the basis of mere convenience rather than on
its strict necessity [for] production operations?
Appellants’ Brief at 4.
Our standard and scope of review of an order granting summary
judgment is well-settled.
A reviewing court may disturb the order of the trial court only
where it is established that the [trial] court committed an error of ____________________________________________
5 Appellants and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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law or abused its discretion. As with all questions of law, our
review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. [See] Pa.R.C[iv].P. 1035.2.
[Pennsylvania Rule of Civil Procedure 1035.2] 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[ or she] may not merely rely on his[ or her]
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[ or her] case and on which it bears the
burden of proof establishes the entitlement of the moving party to
judgment as a matter of law. 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.
Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (case citations, ellipses, and quotation marks omitted); see also Smith
v. A.O. Smith Corp., 270 A.3d 1185, 1191-1192 (Pa. Super. 2022), appeal
denied, 283 A.3d 1247 (Pa. 2022).
Here, Appellants assert that DL Resources relinquished its express right
to access the Pennesi Land when DL Resources surrendered the August 13,
1959 lease in 2023. Appellants’ Brief at 15. Appellants further assert that
they were not a party to the March 1, 2023 oil and gas lease and, even if they
had agreed to the terms of the new lease, the lease did not provide DL
Resources an express right of access to the Pennesi Land. Id. Without an
express easement, DL Resources, according to Appellants, needed to look to
an implied easement in order to validly assert the right to access the Pennesi
Land. Id. at 16-32. Because DL Resources was unable to establish an implied
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easement, Appellants conclude that it was not entitled to access the Pennesi
Land. Id.
Appellants argue that an implied easement to access land for mining
purposes, such as the removal of gas or oil from a sub-surface estate, must
be both strictly necessary and subject always to reasonable constraints. Id.
at 20. Appellants contend that “[t]he ‘necessity’ requirement is primary and
focuses solely on whether – from the perspective of the dominant estate [(the
sub-surface estate)] – an easement is strictly necessary.” Id. at 21. “The
‘reasonableness’ requirement, on the other hand, is secondary and
examines – from the perspective of the servient estate [(the surface
estate)] – whether the extent of the exercise of the easement is reasonable.”6
Id. “As such, easements are implied on the basis of their ‘strict necessity’
and not [solely] the ‘reasonableness’ of their exercise[,]” as the trial court
seems to have held. Id. Furthermore, reasonableness – as a secondary
factor - is “evaluated only after ‘strict necessity’ has been established.” Id.
Appellants assert that “an easement to use the surface of the Pennesi
Land to produce [] the oil and gas underlying the Leased Premises must be
based on strict necessity existing both at the time of [the severance of the
dominant estate (the oil and gas estate) from the servient estate (the surface
estate) and at the time DL Resources attempted to exercise the implied ____________________________________________
6 A “dominant estate” is the sub-surface estate that benefits from the implied
easement. The “servient estate” is the surface estate that is burdened by the implied easement.
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easement.]” Id. at 24-25. Appellants contend that, at the time the oil and
gas estate (the dominant estate) was severed from the surface estate (the
servient estate), the August 13, 1959 lease was in effect that allowed W.H.
Haupt Company, and its successors-in-interest, including DL Resources, to
remove the oil and gas from beneath the surface estate by installing a well on
any portion of the surface estate. Id. at 25. As such, according to Appellants,
access to the Pennesi Land was not “strictly necessary” for the removal of the
oil and gas because, at the time of the severance of the dominant estate (oil
and gas estate) from the servient estate (surface estate), the wells and
production operations could be located on, and accessed from, any portion of
the servient estate pursuant to an express easement granted by Wells to W.H.
Haupt Company under the 1959 lease. Id. at 26. Appellants further assert
that access to the Pennesi Land is not strictly necessary now because, under
the March 1, 2023 lease, DL Resources has the express right to access its oil
and gas estate by installing wells, and maintaining its production operations,
on any portion of the remaining servient estate that is now subject to, and a
part of, the March 1, 2023 oil and gas rights lease. Id. at 27-29.
Appellants assert that DL Resources provided no evidence that the
existence of William Wells 2 and the related production operations on the
Pennesi Land was strictly necessary but, rather, simply responded, in
discovery, that “the equipment and roadway necessary to deliver the gas
from the well to market were reasonably placed on the Pennesi Land.” Id.
at 31 (emphasis in original). Appellants agree that “the drilling of wells and
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the installation of related equipment are ‘necessary’ to produce oil and gas in
the sense that those substances cannot be produced without [the wells and
the related equipment].” Id. at 31. Employing this standard, Appellants
contend, however, that “strict necessity” “requires more than the tautological
assertion that gas wells are ‘necessary’ because oil and gas cannot be
produced without [wells].” Id. Appellants argue that, to establish strict
necessity, DL Resources was required to show that the Pennesi Land (William
Wells 2) was the only location where it was “practically possible” for DL
Resources to extract resources from its sub-surface oil and gas estate. Id. at
32. Appellants contend DL Resources “failed to produce any evidence that
[access to] the surface of the Pennesi Land remained ‘strictly necessary[.]’”
Id. at 32.
DL Resources contends that “[t]here is no legal authority to support
[Appellants’] position that [DL Resources] can only operate [William Wells 2]
on the Pennesi 7.405[-a]cre [p]arcel upon a showing of strict necessity.” DL
Resources’ Brief at 1.7 DL Resources argues that the only limitation that may
be placed on its use of the Pennesi Land “is that such use be reasonable and
necessary to transport the [oil and gas] to market.” Id. DL Resources
maintains that Appellants’ concept of strict necessity is unsupported by case
law. Id. at 4-5, relying on Belden & Blake Corp. v. Commonwealth, Dept. ____________________________________________
7 The remaining party-defendants, excluding Zomisky, indicated to this Court
that they relied upon the trial court’s opinion and would not be filing an appellate brief or participating in oral argument. Letter, 9/2/25.
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of Conservation and Nat’l Res., 969 A.2d 528 (Pa. 2009). DL Resources
asserts that the trial court’s order granting summary judgment in favor of DL
Resources and against Appellants should be upheld because Appellants failed
to establish that DL Resources’ use of the Pennesi Land was unreasonable. DL
Resources’ Brief at 5.
The trial court explained its decision to grant summary judgment in
favor of DL Resources and against Appellants as follows:
[DL Resources and Appellants] both seek summary judgment
arguing that the law, when applied to the undisputed facts of the
case, is in their favor and entitles them to judgment as a matter
of law. They both rely on the same case law in support of their
position, but both interpret that case law differently. The law
relied upon states as follows:
As against the owner of the surface [estate,] each of the
several purchasers would have the right, without any
express words of grant for that purpose, to go upon the
surface to open a way by shaft, or drift, or well, to his [or
her] underlying estate, and to occupy so much of the
surface, beyond the limits of [the] shaft, drift, or well, as
might be necessary to operate [the sub-surface] estate, and
to remove the product thereof. This is a right to be
exercised with due regard to the owner of the surface
[estate,] and its exercise will be restrained, within proper
limits, by a court of equity if this becomes necessary; but
subject to this limitation it is a right growing out of the
contract of sale, the position of the stratum sold, and the
impossibility of reaching it in any other manner.
Belden[,] 969 A.2d [at] 530[,] citing Chartiers Block Coal Co.
v. Mellon, 25 A. 597, 598 (Pa. [] 1893). The undisputed facts
show that [Zomisky] owns oil and gas rights beneath the surface
of the Pennesi and Mazzoni land, including the land on which a
wellhead exists. Based on this undisputed fact, and the holding
set forth [supra, the trial], court can make the following rulings as
a matter of law:
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First, this case law makes it clear that the owners of the oil and
gas rights beneath the surface of a property do not need an
express right to open a way to their underlying estate. Second,
there are no qualifications on the right to go on the surface and
open a shaft, [drift], or well. As a result, [Appellants] are not
entitled to summary judgment on the basis that [DL Resources]
lacks an express right to operate a well on the surface of the
Pennesi and Mazzoni land[8], because no express right is required[.
DL Resources] is entitled to summary judgment regarding
[Appellants’] claim for relief as set forth in [their amended
complaint] because case law supports [DL Resources’] right as a
matter of law to open a well on the surface of the land.
Third, the case law also makes it clear that the owners of the oil
and gas rights beneath the surface of the property do not need an
express right to occupy the surface, beyond the limits of their
shaft, drift, or well, as might be necessary to operate their estate,
and to remove the product from their estate. Therefore,
[Appellants] are not entitled to summary judgment based on the
fact that none of the [party-defendants] had an express right to
operate on the surface of the Pennesi and Mazzoni land, as the
law makes it clear that they do not need an express right to do
so. However, the case law does place qualifications on this right.
The use of the surface beyond the shaft, drift, or well is limited to
that which is necessary and with due regard to the surface owner.
“What is necessary and reasonable may be determined by
reference to what is customary, and is a question of fact.” Oberly
v. H.C. Frick Coke Co., 104 A. 864 (Pa. [] 1918).
[Appellants] do not claim that any particular use of the Pennesi
and Mazzoni land beyond the well was and continues to be
unreasonable or unnecessary, and they do not ask [the trial] court
for such a declaration. Instead, [Appellants] argue that the
applicable standard is one of strict necessity because the case law
states that the right of access is one “growing out of the
impossibility of reaching the oil and gas in any other manner.”
Belden[,] 969 A.2d [at] 530[,] citing Chartiers Block Coal[,] 25
A. [at] 598[. Appellants] argue that it is not impossible for [DL
Resources] to reach the oil and gas by any other manner, as they ____________________________________________
8 As previously noted, the gravamen of Appellants’ declaratory judgment action is that DL Resources has no right of access over the Pennesi Land in order to access William Wells 2. See supra at p. 5, n. 4.
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pooled the gas rights and can access [the oil and gas sub-surface
estate] from other locations not on the Pennesi and Mazzoni land,
and therefore[, the party-defendants] fail to satisfy the strict
necessity requirement.
However, [the trial] court does not agree with [Appellants’]
interpretation of the law and does not view the language relied
upon by [Appellants] as imposing a strict necessity requirement.
This would be contrary to the remaining language set forth in the
case law, and the holding of the Belden Court. In fact, the
Belden Court states that[] “Chartiers holds that the exercise of
a subsurface owner’s rights must be reasonable[.” Belden, 969
A.2d] at 532. [The holding in Chartiers] does not state that it
must be strictly necessary, and the Belden Court does not
analyze the rights of the parties before it through a strict necessity
standard. In Belden, a surface owner contended that it was
permitted to impose conditions on the party exercising their
subsurface rights, and the Belden Court reasoned that allowing
such conditions “would place the burden on the sub[-]surface
owner to seek judicial redress when Chartiers clearly places the
burden on the surface owner to seek legal redress to prevent or
restrain the sub[-]surface owner[’s] exercise of its rights.” [Id.]
If [the trial] court required [DL Resources] to establish strict
necessity, then that would also place the burden on the
sub[-]surface owner and would be contrary to the standard set
forth in Chartiers and Belden.
Based on the application of the law, [the trial] court could only
place limitations on [DL Resources’] use of the surface [estate] if
that use were unreasonable, and therefore, [the trial] court
cannot permanently enjoin [DL Resources] from conducting any
further drilling or production operations on the surface of the
Pennesi and Mazzoni land, and it cannot award [Appellants]
damages for [interference] with their right to use and enjoy their
land, as the law permits the owner of the oil and gas [rights] to
interfere with their use as long as doing so is reasonable.
Therefore, [Appellants] are not entitled to summary judgment as
a matter of law because the relief requested does not comport
with the law relied upon by both parties, and [DL Resources] is
entitled to summary judgment on all remaining requests for relief
set forth in [Appellants’] amended complaint.
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Trial Court Opinion, 3/11/25, at 5-8 (formatting modified; extraneous
capitalization, ellipsis, and original brackets omitted).
At common law, a person who owned the surface of the land, “owned
all that grew upon it[,] all that was buried beneath it” to the “center of the
earth[,]” and the space above it extending “upward to the clouds.”9
Chartiers, 25 A. at 598.10 As the sciences of geology and mineralogy evolved,
so too did the understanding that the “land” consisted of different layers or
stratum comprised of such things as soil, oil, gas, coal, and water. With this
scientific enlightenment came advancement in the law governing ownership
of “land.” Id. (stating, “This may be called the ‘expansive property of the
common law.’ [Sub-surface rights] are peculiar, and exist from necessity, and
the necessity must be recognized, and the rights of [sub-surface] and
[surface] landowners adjusted and protected accordingly.”). A fee simple
owner of the “land” could, for example, retain ownership rights to the surface
9 This doctrine, commonly known as the ad coelum doctrine, is derived from
the Latin maxim “cujus est solum ejus est usque ad coelum et ad infernos,” which generally translates as “whoever owns the soil, it is theirs up to the sky and down to hell.”
10 The Belden Court remarked that “Chartiers remains the seminal case setting forth a sub[-]surface owner’s rights with respect to the surface owner’s rights.” Belden, 969 A.2d at 532 n.6. Recently, our Supreme Court confirmed its continued reliance on the jurisprudence set forth in Belden and, by implication, Chartiers. PBS Coal v. Dept. of Transp., 244 A.3d 386, 407 n.13 (Pa. 2021) (reiterating the principal that an owner of a dominant sub-surface estate has the right to access the estate via the servient surface estate provided that the exercise of that right is reasonable).
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estate (the soil stratum) for purpose of settlement and cultivation while
transferring property rights to the various other estates or strata, i.e., the
coal, oil, and gas estates, to different fee simple owners or lessees.11 Id.
11 “Pennsylvania recognizes three discrete estates in land: the surface estate,
the mineral estate, and the right to subjacent (surface) support.” Miller v. Bunting, 335 A.3d 733, 744 (Pa. Super. 2025) (citations omitted). We note that the term “mineral” is often used generally to refer to many of the organic and inorganic substances found below a surface estate. By definition, a mineral must be inorganic, homogeneous in structure, have a definite chemical composition, and have a known crystallization. BLACK’S LAW DICTIONARY 897 (5 ed. 1979). Examples would include quartz, gold, silver,
th
copper, and diamond. Coal, by scientific definition, is not a mineral but, rather, is an organic, sedimentary rock which results from the compacting of plant matter. Natural gas and oil also are not minerals “because they are not of a metallic nature, as the common person would understand minerals.” Butler v. Charles Powers Est. ex rel. Warren, 65 A.3d 885, 898 (Pa. 2013). Under the rule established by our Supreme Court in Dunham v. Kirkpatrick, 101 Pa. 36 (1882) (commonly referred to as “the Dunham Rule”), there exists “a rebuttable presumption in the context of a private deed conveyance that the term ‘mineral’ does not include oil or gas.” Butler, 65 A.3d at 897. Thus, encompassed within the definition of a “mineral estate,” as considered within a discussion of the three discrete estates in land, are true mineral estates, i.e., a copper estate or a gold estate, as well as non-mineral estates, such as a coal estate, a gas estate, or an oil estate. Hetrick v. Apollo Gas Co., 608 A.2d 1074, 1077 (Pa. Super. 1992) (stating, “the Pennsylvania rule permitting severance of the mineral estate for coal and other solid minerals applies with equal force to oil and gas”); see also Bastian v. Sullivan, 117 A.3d 338, 344 (Pa. Super. 2015) (noting that the three discrete estates in land are more properly referred to as the surface estate, the mineral or sub-subsurface estate, and the right to subjacent (surface) support). As such, in the conveyance of, or exception of, a “mineral estate,” the grantor must be specific in that which is being conveyed or excepted to avoid confusion. In the case sub judice, the parties agree, and the record supports, that, on August 27, 1976, Wells conveyed to Zomisky 41.02 acres of surface land (including appurtenant oil and gas rights), which included the 13.58 acres of surface land currently owned by Pennesi (7.405 acres) and Mazzoni (6.175 acres) that is at the center of the declaratory judgment action.
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(explaining, “the surface of the land may be separated from the different
strata underneath it, and there may be as many different owners as there are
strata”); see also Shawville Coal Co. v. Menard, 421 A.2d 1099, 1103
(Pa. Super. 1980) (stating, “there may be many different owners of the
minerals underlying a tract”). “The difficulty is to so apply the law as to give
each owner the right of enjoyment of his [or her] property or strata without
impinging upon the right of other owners, where the owner of the surface
[estate] neglected to guard his [or her] own rights in the deed by which he
[or she] granted the lower strata to other owners.” Chartiers, 25 A. at 598;
see also Bartkowski v. Ramondo, 219 A.3d 1083, 1095 (Pa. 2019)
(reiterating that “[a]ll property owners are presumptively entitled to the quiet
use and enjoyment of their entire properties; such rights are inherent to our
understanding of property ownership”).
As the Chartiers Court explained,
As against the owner of the surface [estate], each of the several
purchasers would have the right, without any express words of
grant for that purpose, to go upon the surface to open a way by
shaft, or drift, or well, to his [or her] underlying estate, and to
occupy so much of the surface beyond the limits of [the] shaft,
drift, or well, as might be necessary to operate [the sub-surface]
estate, and to remove the product thereof. This is a right to be
exercised with due regard to the owner of the surface [estate],
and its exercise will be restrained within proper limits by a court
of equity, if this becomes necessary; but, subject to this limitation,
it is a right growing out of the contract of sale, the position of the
stratum sold, and the impossibility of reaching it in any other
manner.
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Chartiers, 25 A. at 598. “The grantee has the right to use and occupy [the
surface estate] while engaged in the removal of the [sub-surface materials,
i.e., oil, gas, or coal,] for the reason that such use is essential to the
enjoyment of the grant.” Id. at 599; see also Baker v. Pittsburg, Carnegie
& Western R.R. Co., 68 A. 1014, 1015 (Pa. 1908) (stating, “A grant of
minerals implies the right to win them from the underlying soil. The use of
some portion of the surface [estate] is necessary for the proper enjoyment of
this right.”); Belden, 969 A.2d at 532 (stating, “‘[o]ne who has the exclusive
right to mine coal upon a tract of land has the right of possession even as
against the owner of the [surface estate], so far as it is necessary to carry on
mining operations’” (ellipsis omitted) (relying on Turner v. Reynolds, 23 Pa.
199, 206 (1854)); Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 511
(Pa. Super. 2013) (stating, “one who has the right to remove sub[-]surface
minerals, also has the right to enter onto the surface [estate] to make
reasonable use of a portion of the surface [estate] to retrieve his [or her]
property”). “[If rights to materials located in a sub-surface estate] are
excepted in a lease, conveyance, or other instrument without any express
mention of working powers, then the law implies or confers all such powers
as are reasonably sufficient to enable the [person with rights to the
sub-surface estate] to dig and carry away the minerals[ - ]namely, a power
to enter upon the surface, [dig pits, get the minerals,] and for a limited
period[,] deposit them on the surface.” Baker, 68 A. at 1016, citing JOHN
HENRY COCKBURN, THE LAW OF COAL, COAL MINING, AND THE COAL TRADE AND OF THE
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HOLDING, WORKING, AND TRADING WITH MINERALS GENERALLY 117-118 (1902). In
simplest terms, absent an express right-of-way, the law implies a right-of-way
by necessity for the benefit of the sub-surface owner to access his or her
estate. Id.
The three fundamental requirements for an easement [or
right-of-way] by necessity to arise are the following:
1) The titles to the alleged dominant and servient [estates]
must have been held by one person.
2) This unity of title must have been severed by a
conveyance of one of the tracts [or estates].
3) The easement must be necessary in order for the owner
of the dominant [estate] to use[, i.e., access,] his [or her
sub-surface estate], with the necessity existing both at
the time of the severance of title and at the time of the
exercise of the easement.
Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000) (citation omitted),
appeal denied, 760 A.2d 855 (Pa. 2000); see also Bartkowski, 219 A.3d at
1092; Youst v. Keck’s Food Serv. Inc., 94 A.3d 1057, 1075 (Pa. Super.
2014). An implied right-of-way by necessity “contemplates a situation in
which a parcel of land [or estate] is landlocked” and access “cannot be had
except by passing over [another’s estate].”12 Phillippi, 748 A.2d at 760; see ____________________________________________
12 We recognize that, while an implied right-of-way by necessity “contemplates,” and is often relied upon in, a case involving a parcel of land or estate that is landlocked, a finding of an implied right-of-way by necessity is not limited only to those situations in which the parcel of land or estate is landlocked or surrounded by other surface estates. See Bartkowski, 219 A.3d at 1093 (explaining that, because the term “strict necessity” does not require a showing of “utter impossibility,” the property owner’s entitlement to
- 19 -J-A26016-25
also Bartkowski, 219 A.2d at 1092 (stating, “[an implied] right[-]of[-]way
[by necessity] never exists when [an individual] can get to his [or her] own
property through his [or her] own land” (citation and original quotation marks
omitted)).
An implied right-of-way by necessity does not contemplate a ‘necessity’
that is absolute or indefinite, nor without limit. Foremost, an implied
right-of-way by necessity “is always of strict necessity” and “never exists as
a mere matter of convenience.” Phillippi, 748 A.2d at 760 (emphasis in
original; citations omitted); see also Bartkowski, 219 A.3d at 1092 (stating,
“[w]e have long[-]recognized that [an implied] right[-]of[-]way [by] necessity
over the land of another is always of strict necessity” (original quotation marks
and ellipsis omitted) (citing Ogden v. Grove, 38 Pa. 487, 491 (1861)). Our
Supreme Court, in Bartkowski, supra, recently defined further the term
“strict necessity” within the context of an implied easement or right-of-way
by necessity. As the Bartkowski Court noted, “the concept of strict necessity
always is contrasted with the notion of convenience.” Bartkowski, 219 A.3d
at 1092. In defining the term “strict necessity,” the Bartkowski Court
explained that, “[w]ithout question, these two concepts - strict necessity and
mere convenience - sit at opposite ends of a continuum that encompasses a
significant amount of gray area.” Id. at 1093. “There is no formulaic or ____________________________________________
an implied right-of-way or easement by necessity is not limited to circumstances in which the parcel of land or estate is completely surrounded and landlocked by other properties or estates).
- 20 -J-A26016-25
canonical standard that constitutes ‘strict necessity,’ leaving each case to turn
on its facts.” Id. The Bartkowski Court reasoned that “[t]o require a party
to prove utter impossibility of alternative access is to stretch ‘strict necessity’
beyond its intended meaning.” Id. “Where it is manifestly impracticable,
even though theoretically possible, to create ingress and egress [to] one’s
[estate], the [dominant estate] may establish that [an implied]
right[-]of[-]way over [the servient estate] is ‘strictly necessary’ in the legal
sense.” Id. at 1094. Thus, in order to acquire an implied right-of-way by
necessity, the dominant estate is not required to establish that access to the
estate is absolutely impossible by all means other than a grant of an implied
right-of-way by necessity. Id. at 1093 (stating “literal impossibility of
alternative access is an unworkable standard”). However, it is insufficient for
the dominant estate to simply show that an implied right-of-way by necessity
exists because it is the most convenient and least expensive means of access.
Id. (stating, “neither is it sufficient merely to show that the legally available
[alternative] route would be inconvenient or expensive”).
In determining whether an implied right-of-way by necessity is “strictly
necessary,” the Bartkowski Court advised that, while “[t]he expense of
constructing alternative access may be one of many relevant factors in
determining whether access across a [servient estate] is ‘strictly necessary[,]’
. . . the cost or difficulty of constructing alternative access may not always, or
even often, be sufficient by itself to warrant burdening [the servient estate.]”
Id. at 1094 (stating, “there may be a tipping point at which it becomes
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manifestly unreasonable to require a party to expend a disproportionate
amount of money in order to access [an estate]”).
The central inquiry is whether, absent the recognition of an
[implied right-of-way by necessity], the proposed dominant estate
will be left without a means of ingress and egress, rendering the
[estate] inaccessible and, thus, unusable. A [trial] court must
evaluate the asserted necessity by assessing whether this
untenable outcome will result in practice, not merely by asking
whether some remote alternative is hypothetically possible in the
abstract. Each case will require individualized consideration of
multiple factors, including, but not limited to: the existence of
zoning restrictions and the likelihood that the party can obtain the
necessary variances or exceptions; the existence of state or
federal regulations that prohibit certain uses of the [estate] in
question; the topography of the [estate] and the practicability of
constructing alternative access; the environmental consequences
of construction; the costs involved; and, of course, whether and
to what extent these impediments existed at the time of
severance. This list of factors is non-exclusive, as future cases
may well present additional circumstances relevant to the
establishment of [strict] necessity.
Id. at 1096 (footnote omitted). “The burden to establish [strict] necessity for
[the grant of] an [implied right-of-way by necessity] across the [servient
estate] falls squarely upon [] the shoulders of the party seeking it.” Id. at
1095.
As such, an implied right-of-way by necessity to use a surface estate
located immediately above a sub-surface estate cannot be found when the
owner of the sub-surface estate has readily available access to his or her
sub-surface estate through practical means other than via the surface estate
located immediately above the sub-surface estate, such as through the use of
adjoining estates to which the owner of the sub-surface estate has an express
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right of access. In this instance, the owner of the sub-surface estate is not
entitled to an implied right-of-way by necessity across the surface estate even
if access via the surface estate is the least expensive or most convenient.
Friedline v. Hoffman, 115 A. 845, 846 (Pa. 1922) (stating that where the
owner of the sub-surface estate has a practicable way over his or her own
lands for the removal of the minerals contained in the estate, “the law cannot
allow [the sub-surface owner an implied] right[-]of[-]way by necessity”); see
also Blackburn v. Youghiogheny & Ohio Coal Co. of Pennsylvania, 168
A. 351, 353 (Pa. Super. 1933); Bartkowski, 219 A.3d at 1093.
An implied right-of-way by necessity ceases once all of the minerals or
materials contained in the sub-surface estate have been removed or if the
mining or removal efforts are abandoned. Westerman v. Pennsylvania Salt
Mfg. Co., 103 A. 539, 541 (Pa. 1918); see also Phillippi, 748 A.2d at 760.
In other words, once all the minerals have been extracted, or the sub-surface
estate is abandoned, the implied right-of-way by necessity ceases because
there is no longer a necessity for the sub-surface owner to have a right-of-way
across the surface estate.
The owner of the sub-surface estate has an implied right-of-way by
necessity to access the minerals, as well as the space left by the removal of
the minerals, until the sub-surface estate is terminated by exhaustion of the
minerals or by abandonment of the sub-surface estate. Lillibridge v.
Lackawanna Coal Co., 22 A. 1035, 1038 (Pa. 1891); see also Kormuth v.
United States Steel Co., 109 A.2d 907, 909 (Pa. 1954) (stating, the owner
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of the sub-surface estate “is entitled to the possession of the [minerals] and
also of the space made by [their] removal). The owner of the sub-surface
estate may use the space left by the removal of minerals under the servient
surface estate to remove minerals from adjoining sub-surface estates to which
the owner of the sub-surface estate has a right of possession. Lillibridge, 22
A. at 1038; see also Shawville Coal Co., 421 A.2d at 1104 n.4 (explaining
that “since [an owner of the sub-surface estate] owns the [minerals
comprising the estate] and[,] in essence[,] the space occupied by the
[minerals] while they are being mined, [the sub-surface owner] may use that
space as he [or she] wishes as it becomes available” through mining efforts).
In other words, when an owner has two or more adjoining sub-surface estates,
the owner of the sub-surface estates may access one sub-surface estate by
means of a shaft, drift, or well and use the passageway created as a result of
the mining efforts to remove materials from an adjoining sub-surface estate.
The owner of the sub-surface estate may not, however, increase “the burden
upon the servitude on the surface by bringing the minerals from the [adjoining
sub-surface estate] over the surface” of the servient surface estate, absent
an express right to do so. Lillibridge, 22 A. at 1038; see also Shawville
Coal Co., 421 A.2d at 1104 n.4 (stating that, “additional use of the surface
[estate] beyond that needed to mine the [minerals] under the [surface estate]
imposes an encumbrance that will not be implied unless explicitly made a part
of the agreement between the parties).
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Thus, if an owner acquires property rights to a sub-surface estate
comprised of minerals or other materials, such as oil or gas, then the owner
of the sub-surface estate, absent an express right-of-way, has an implied
right-of-way based upon strict necessity to access the minerals or other
materials beneath the surface estate through use of the servient surface
estate unless the owner of the dominant sub-surface estate can access the
sub-surface estate through another surface estate for which he or she has an
express right-of-way. If the owner of the dominant sub-surface estate has an
implied right-of-way by necessity to come upon the servient surface estate,
that right permits the owner of the sub-surface estate to access the minerals
by installing, for example, a shaft, drift, or well. The owner of the sub-surface
estate may reasonably burden the servient surface estate in a way necessary
to permit the removal of the minerals from the sub-surface estate. The owner
of the sub-surface estate may also use the space created in the sub-surface
estate by the removal of the minerals as a conduit for removing and
transporting minerals from the owner’s adjoining sub-surface estates. The
owner of the sub-surface estate may not, however, burden the servient
surface estate with the removal of minerals mined from an adjoining
sub-surface estate without an express grant of wheelage rights.13 ____________________________________________
13 The right to burden the servient surface estate with the removal of minerals
mined from an adjoining sub-surface estate is commonly referred to as “wheelage” rights and must be expressly conveyed as a separate right in a property conveyance. Shawville Coal Co., 421 A.2d at 1103 n.3 (explaining
- 25 -J-A26016-25
With these principals in mind, we turn to the case sub judice. It is
undisputed, and the record supports, that on August 27, 1976, Zomisky
acquired 41.02 acres that included both a conveyance of the surface estate,
as well as the sub-surface estates, including, inter alia, the oil and gas estate.
On March 13, 1982, Zomisky subdivided the 41.02-acre surface estate and
conveyed two 2-acre surface estates, those being the 2-acre surface estates
currently owned by Pennesi and Mazzoni. In these March 1982 conveyances,
Zomisky did not except for himself the oil and gas estates located beneath
these two 2-acre surface estates. In January 25, 1997, Zomisky further
subdivided his remaining surface estate and conveyed a 13.58-acre surface
estate to Michele Pennesi. The 13.58-acre surface estate was subsequently
subdivided by Pennesi into a 7.405-acre surface estate, currently owned by
Pennesi, and a 6.175-acre surface estate, currently owned by Mazzoni. In the
January 1997 deed, Zomisky excepted for himself the oil and gas estate
located under the 13.58-acre surface estate. The remainder of Zomisky’s
surface estate, that being a 23.44-acre surface estate (41.02 acres less the
two 2-acre conveyances and the 13.58-acre conveyance equals 23.44 acres)
is now owned in some proportion by the party-defendants (excluding DL
that a “wheelage” right is “a right to transport [minerals] from an adjoining tract” across a servient surface estate). Because the owner of an adjoining sub-surface estate would have an implied right-of-way by necessity to access the sub-surface estate via the adjoining surface estate, a wheelage right to burden the surface estate cannot be implied out of strict necessity but, rather, must be expressly granted. Shawville Coal Co., 421 A.2d at 1104 n.4.
- 26 -J-A26016-25
Resources) with the oil and gas estate located under the 23.44-acre surface
estate being excepted to the benefit of those party-defendants.14 On March
1, 2023, the party-defendants, including Zomisky, leased their interests in the
oil and gas estate to DL Resources. The oil and gas estate that is the subject
of the March 1, 2023 lease agreement is comprised of that portion of the
original oil and gas estate, acquired by Zomisky in 1976, less the two 2-acre
oil and gas estates that were conveyed to Pennesi and Mazzoni. In other
words, the oil and gas estate that is the subject of the March 1, 2023 lease
agreement is a 37.02-acre oil and gas estate.
The trial court, in granting summary judgment in favor of DL Resources
and, in turn, denying Appellants’ cross-motion for summary judgment, held
that “owners of oil and gas rights beneath the surface of a property do not
need an express right to open a way to their underlying estate.” Trial Court
Opinion, 3/11/25, at 5. We concur with the trial court that an express
right-of-way is not the only means by which an owner of a sub-surface estate
may obtain access to his or her estate. The trial court, however, went on to
state that “there are no qualifications on the right to go on the surface and
open a shaft, [drift], or well.” Id. at 6. We cannot agree, and the trial court
erred as a matter of law, that the right to utilize the surface estate for the
purpose of accessing the sub-surface estate does not come with certain ____________________________________________
14 The majority of the 23.44-acre oil and gas estate is excepted to the benefit
of Zomisky. Zomisky did not, however, except the oil and gas estate in all of the conveyances surrounding the subdivision of the 23.44-acre surface estate.
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qualifiers. An owner of a sub-surface estate may gain access to the
sub-surface estate via an express right-of-way or, as explained supra, via an
implied right-of-way by necessity in the event that an express right-of-way
cannot be obtained. When an owner of a sub-surface estate has an express
right-of-way to cross-over the surface estate, the agreement granting the
right-of-way controls the particulars of what the owner of the sub-surface
estate can, and cannot, do in terms of utilizing the surface estate. See Bito
Bucks in Potter, Inc. v. Nat’l Fuel Gas Supply Corp., 449 A.2d 652, 653
(Pa. Super. 1982) (stating, “the same rules of construction apply to deeds
granting easements as to contracts generally”). For example, the agreement
may define the path by which the owner of the sub-surface estate must travel
or the location where the shaft, drift, or well must be located. Absent an
express right-of-way, the owner of the sub-surface estate may acquire an
implied right-of-way by necessity by demonstrating that use of the surface
estate is strictly necessary to gain access to the sub-surface estate and that
use must be necessary and reasonable as to the burden imposed on the
servient surface estate. Thus, the qualifier of strict necessity must be satisfied
before an implied right-of-way by necessity can be found to exist. See
Chartiers, 25 A. at 598; see also Baker, 68 A. at 1015; Phillippi, 748 A.2d
at 760; Belden, 969 A.2d at 532. Once strict necessity is established and an
implied right-of-way by necessity is granted, the use of that implied
right-of-way must be reasonable.
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Pursuant to the March 1, 2023 lease, DL Resources has an express
right-of-way to enter upon 23.44 acres of the 37.02-acre surface estate for
the purpose of installing a shaft, drift, or well to gain access to, and use of, its
oil and gas estate.15 Currently, DL Resources has two wells, William Wells 1
and William Wells 3, which are located on the 23.44-acre surface estate. If
DL Resources is able to access all of its 37.02-acre oil and gas estate through
use of William Wells 1 or William Wells 3, then the use of William Wells 2 on
the Pennesi Land is not strictly necessary. See Lillibridge, 22 A. at 1038;
see also Shawville Coal Co., 421 A.2d at 1104 n.4.; Bartkowski, 219 A.3d
at 1094. If, however, it can be established that William Wells 2 is required
out of strict necessity to permit DL Resources to access the 13.58-acre portion
of its oil and gas estate which lies beneath the corresponding 13.58-acre
surface estate, then a right-of-way by necessity will be implied under
Lillibridge, Chartiers, and their progeny so DL Resources may access its
13.58-acre oil and gas estate via use of William Wells 2.
In its motion for summary judgment, DL Resources had the burden, as
the moving party, to establish that no genuine issue of material fact existed
as to the strict necessity of the existence, and use, of William Wells 2 so DL
Resources may access its 13.58-acre oil and gas estate located under the
15 Because Pennesi and Mazzoni were not parties to the March 2023 lease, DL
Resources did not obtain an express right-of-way to access the two 2-acre surface estates, as well as the 7.405-acre and 6.175-acre surface estates owned by Pennesi and Mazzoni, respectively.
- 29 -J-A26016-25
surface estates owned by Pennesi and Mazzoni. In viewing the record in the
light most favorable to Appellants as the non-moving party, we cannot concur
with the trial court that DL Resources satisfied its burden and was entitled to
a grant of summary judgment.16 A genuine issue of material fact exists as to
whether, or not, William Wells 2 was strictly necessary for DL Resources to
access its 13.58-acre oil and gas estate at the time of the severance and at
the time of the exercise of the implied right-of-way by necessity.17 This is a
fact intensive inquiry, not yet undertaken by the parties and the trial court,
that will require careful scrutiny of the inexhaustive list of factors identified
supra. Therefore, we find that the trial court erred as a matter of law and
abused its discretion in granting summary judgment in favor of DL Resources
16 To establish an implied right-of-way by necessity, DL Resources was required to establish, inter alia, that, at the time of the severance of the dominant estate from the servient estate, and at the time DL Resources sought to exercise the implied right-of-way by necessity on the servient estate to extract resources from its oil and gas estate (see Phillippi, 748 A.2d at 760), its use of the servient estate was strictly necessary. Chartiers, 25 A. at 598; see also Phillippi, 748 A.2d at 760; Bartowski, 219 A.3d at 1092. If the implied right-of-way by necessity is strictly necessary, then exercise of that right-of-way must be reasonable.
17 For purpose of this litigation, the severance of the dominant estate (DL Resources’ oil and gas estate) from the servient estate (the Pennesi Land) occurred on January 25, 1997, when Zomisky conveyed the 13.58-acre surface estate (servient estate) to Michele A. Pennesi and retained the appurtenant oil and gas rights but without an express easement to use the 13.58-acre surface estate (servient estate) to extract resources from the oil and gas estate (dominant estate). DL Resources sought to exercise an implied right-of-way by necessity in 2006 when it drilled William Wells 2 on the Pennesi Land.
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and against Appellants.18 Consequently, we vacate the March 11, 2025 order
and remand this case for further proceedings in accord with this decision.
Order vacated. Case remanded. Jurisdiction relinquished.
DATE: 7/1/2026
18 Because a genuine issue of material fact exists as to whether, or not, William
Wells 2 was strictly necessary for DL Resources to access its 13.58-acre oil and gas estate, we do not address whether, or not, DL Resources established that its current use of the Pennesi Land was reasonable. See Baker, 68 A. at 1016.
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