Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

According to a report released earlier this summer by Trust for America’s Health and the Robert Wood Johnson Foundation, West Virginia has the highest rate of overdose deaths in the United States—more than double the national average. In 2011 to 2013, there were about 34 drug overdose deaths per 100,000 West Virginia residents in 2011 to 2013. The national average was only 13.4. Even when compared to the second-highest state, New Mexico, which was at 28.2 overdose deaths per 100,000 residents, West Virginia was still way ahead. And the Ohio Valley is no exception. In 2014, the Ohio Valley saw an increase in overdose deaths. This increase led to the creation of a federal task force, as well as U.S. Attorney Bill Ihlenfield’s Ohio Valley Addiction plan, with the hopes of combating the region’s drug problems. Of particular importance, however, is the increase in heroin overdoses and related deaths.  In 2014, it was estimated that two to three heroin overdoses occurred each week in the Ohio Valley. Young adults, which are more susceptible to developing an addiction to heroin, were the hardest hit. In June, high school students from the Ohio Valley unveiled the newest heroin awareness public service announcement (PSA) called #ThisIsHeroin. The PSA was created as part of Ihlenfield’s Ohio Valley Addiction plan. Wheeling Park student Noah Clune wrote and produced the entire PSA.  In an interview with WTRF, Noah stated: “I want to increase awareness to everyone of what’s happening in the Ohio Valley because we . . . have a serious problem.” “The heroin epidemic,” as it is being called, has pressured some states to adopt laws on the use of naloxone in schools. Naloxone, also known by the brand name Narcan, can reverse the effects of an overdose; it works almost immediately to get the overdose patient breathing again. Five states have adopted laws this year on the use of naloxone in schools. Rhode Island, for example, requires naloxone to be available in all middle, junior high and high schools. Other states allow schools or encourage schools to buy it. With the increase in drug overdoses and related deaths, including those resulting from heroin, should West Virginia follow suit?

Sadly, many nursing home residents and/or their families feel compelled to place video surveillance systems in the resident’s room. This is so because video surveillance can be a powerful deterrent to abuse and neglect; it can often assist in identifying and punishing the perpetrators of these offenses; and, it can be of an immense benefit to residents and their families in civil damage law suits. Just last year in Pennsylvania, hidden video surveillance helped the Commonwealth’s prosecutors convict nursing home employees of crimes of abuse and neglect, and has assisted our firm in recovering reasonable compensation for those affected by this senseless conduct. The countervailing force against video surveillance in nursing homes is of course the loss of privacy.   The resident, for one, may object to live in a proverbial fish bowl, with little or no privacy, and to some, a substantial loss of dignity.  The resident’s roommate would have substantially the same rights; and, to a lesser degree, employees and visitors have certain reasonable expectations of privacy. Often times, the resident and/or the family believe it is perfectly acceptable to place hidden cameras in the resident's room without notice to third parties.  Unfortunately, placing hidden video cameras in Pennsylvania's nursing homes can, in certain circumstances, violate federal and state laws. For instance, in Pennsylvania it is a criminal offense to record audio without the consent of the person being recorded.  This conduct thus violates Pennsylvania's wiretapping laws. Those found guilty of the crime are subject to criminal and civil penalties, including actual damages, $100 per day, or $1000, whichever is greater, along with punitive damages, litigation costs and attorney’s fees. So, before you hit that "record" button, make sure you are not recording conversation without the consent of the other party. That being said, Pennsylvania has no law that makes it criminal offense to place a hidden video surveillance camera (again no audio) in a resident's room.  However, the conduct may violate The Omnibus and Reconciliation Act (OBRA), a federal law that regulates the conduct of all nursing homes doing business in the United States.  This law states that skilled nursing facilities must promote and protect patient rights, including, "he right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups. " Accordingly, if the nursing home facility locates the video surveillance camera, they are authorized by law to remove it.  Moreover, the nursing home facility is within their right to refuse to allow video surveillance in the resident's room going forward.  Still, many nursing homes approve the use video surveillance provided that the appropriate consents and surveillance parameters can be agreed upon.  For example, the facility, in addition to acquiring all necessary consents, may require visible postings to warn individuals that the area is under surveillance. While the Pennsylvania Health Care Association, with nearly 450 long-term care providers as members, has not made any rules on the use of video cameras, there are many elder advocacy organizations that support the use of video surveillance when the resident consents and privacy safeguards are in place. “You’re dealing with a vulnerable population and if a resident wants that to feel more comfortable, we certainly think they have right to have that type of monitoring,” said Amity Overall-Laib, a manager at The National Consumer Voice for Quality Long-Term Care. Moreover, the American Association of Retired Persons (AARP) has a national policy supporting the use of cameras for communication and surveillance, said Ray Landis, advocacy manager for AARP. As intimated above, there is no law in Pennsylvania that requires a nursing home to place video surveillance cameras within its facility, even if the resident consents to placement.  Accordingly, when choosing a nursing home facility for you or your loved one, you might consider raising this issue with the nursing home facility’s administration. 18 Pa. Cons. Stat. § 5703, et seq. sets forth the law concerning the interception, i.e. recording, of a communication.  Unless falling under an enumerated exception under this Act, the interception, disclosure or use of wire, electronic or oral communications, a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;... 18 Pa. Cons. Stat. § 5725 42 U.S.C. § 1395i-3(c)(1)(A)(iii) (1994). Pennsylvania.http://publicsource.org/investigations/eye-inside-do-cameras-nursing-homes-protect-or-intrude#.Vf9gH1r3arU Id. Id.

Picture this scenario, you just built your dream house on a beautiful piece of property in the country side. Some of your favorite things about the property are the view of the beautiful rolling hills from your deck, the fact that you can allow your children to run free around your property without worrying about their safety, and the peace and quiet you come home to after a long day of work.  One day, you notice several men doing work on the property across the street.  Soon, several men turn into many large trucks that are kicking up dirt on your property.  Next, you are told by your neighbors that an oil and gas company bought the property across the street and will be using it for their operations. Over the next several months, your family is forced to deal with noise and light on your property during all hours of the day and night.  Not only can you not sleep at night, but you wake up to smell odd fumes and odors, walk out on your deck and see your property covered in dust and dirt, only to look up and see a large flare across the street.  Your air conditioner no longer works and you believe that cracks are starting to form in the foundation of your house. Moreover, no one wants to live on your property and, as a result, it is worth less than half of its previous value.  Your little piece of paradise now looks more like an industrial zone and there is no end in sight. Many of our clients have called with similar stories, wondering what rights, if any, they have.  In West Virginia, Ohio and Pennsylvania, individuals have the right to bring a claim for substantial and unreasonable interference with the private use and quiet enjoyment of their land.  This blog will not discuss the technical aspects of the laws of each state, but I do want to let our readers know that they may be entitled to compensation for the loss of their property value, stress and anxiety, annoyance, inconvenience and other issues caused by oil and gas operations. In many cases, the oil and gas company has the right to use neighboring properties for their operations.  However, you may be entitled to compensation for the damages their operations cause to your property.  It would be impossible for me to write a blog discussing the laws of different states and how they may apply to all of the different scenarios that could exist.  Therefore, if you have a question regarding the damages that someone else is causing to your property, always feel free to call our office for a free consultation.  Many times, if I cannot help someone, I do my best to point them in the direction of someone who can.

At the risk of showing my age and my complete lack of technological savvy, I readily admit I thought the word “BLOG”, was an acronym. I could not figure out what it was an acronym for, so I spent 30 minutes searching the internet trying to determine what the word meant.  I finally figured out that, at least according to the internet, the word “Blog” is short for web-log.  Now I do not know what web-log means and I am starting from scratch. However, I do know that blogs are very popular.  The blog has created its own world and many new words recognized by the Merriam Webster dictionary, at least the one I found on the internet.  Blog, blogger, blogging, all are now recognized words of the English language.  To be politically correct, I wonder how you say blog in Spanish?  That would take an internet search that would unquestionably test my limited technological capabilities. I still have not figured out how someone starts his or her own blog.  Do you have to go to a website creator to start your own blog?  If I can get good at “blogging”, can I sell advertising on my blog?  How accurate must I be when I write something on my blog?  Obviously, if my blog makes it to the internet, everyone will assume what I say is true, otherwise it would not be on the internet. Jerry Seinfeld and Larry Davis created a sitcom about nothing that made billions.  If I blog about nothing, I wonder if I can make millions? I am thinking I best keep my day job, at least for now.

There are fair amount of mineral owners in the Ohio Valley area who might own a 100 percent interest in their mineral rights, or a share in minerals rights held by their family, but who are unable to execute a lease for those rights.  I am not talking about lands were are still “held by production” or “held by storage” by older leases and wells that are still active.  I am talking about the concept known as “executive rights.”  The executive right, in the context of mineral ownership, is the actual right to negotiate and enter into a mineral lease agreement.  This usually lies with the ownership of the minerals, but not always.   Many times a person who decided to keep all or part of their mineral rights would give the surface owner the executive right.  When done properly, the executive rights holder would be the individual or entity to have to right and ability to negotiate any oil and gas lease related to the property.  In theory, this gave the land owner the right to protect the surface of the property by negotiating the terms on which their surface might be used for oil and gas operations.  The mineral owner would benefit from the lease agreement when production began and would receive their royalty interest when the oil and gas was ultimately sold from the property.  In most situations, the executive rights holder would have the right and ability to receive any “bonus” monies related to the execution of the lease. While the mineral owner is “non-participating” in the leasing process that does not mean that they are without rights.  Case law from the Texas oil fields, and which has been acknowledged here in West Virginia, demonstrates that an executive right holder owes fiduciary duties to the mineral owner.  What that means, essentially, is that the executive right holder has a duty not to unfairly or unreasonably negotiate deals which are unfair or inequitable to the mineral owner.  For example, an executive right holder, knowing that he or she would not receive royalties from the oil and gas produced from the property, might try to negotiate a higher per acre bonus rate in exchange for a lower royalty rate.  The executive right holder is not harmed, because he is not entitled to the royalty.  The mineral owner, however, is harmed greatly because the royalty rate is the only way they will ultimately profit from their interest.  There are many different ways in which a mineral owner might be harmed by the actions of an executive right holder.  A careful review of the terms negotiated and entered into by the executive rights holder is necessary to make sure the mineral owner’s rights have been protected.  If you are a mineral owner who does not hold their executive rights, take special care to review any deals entered into by the executive to make sure your interests were protected.  Contact a mineral rights attorney today as you may have a claim for a breach of the fiduciary duty owed to you if the executive holder placed its rights above yours during the negotiation process.

I recently attended the Steel City Big Pour, a craft beer and food festival held at Construction Junction. This year marked the ninth year that the event has been held, and from the reviews of attendees, it sounded like this year’s event was the best yet. With more than 40 brewers offering samples of up to four different beers each, and more than 20 food vendors, there was certainly something for everyone to enjoy. One of my favorite aspects of the event was having the chance to try new brews from some of my favorite breweries, while still being able to sip some old favorites. The event created a smartphone app, which allowed participants to rate each beer that they sampled, so you could see how each beer was ranked. Checking on the rankings every now and then to see what was in first place alerted me to some new beers to try, even though I did not always agree about what should have been a top-ranked beer. A lot of the brewers put out their fall beers, so I got to taste a good variety of pumpkin-flavored beers as well. The food was also incredible. There were tacos, pulled pork sliders, gourmet grilled cheeses, pretzels and tons of different kinds of macaroni and cheese, and these were just the food items that I personally sampled. A major perk of the Big Pour is definitely the venue. So many food and drink festivals are held outside, and subject to less than ideal weather, particularly this time of year. When these events are held inside, however, it can get really hot, crowded and overwhelming. Construction Junction’s warehouse provides the perfect solution to both of these problems. Attendees can venture outside for some fresh air, but there is plenty of space, with the high ceilings and wide aisles, for those who wish to remain inside without feeling trapped. Not only is the Big Pour a great opportunity to sample some of Pittsburgh’s very best food and drinks, it is also a major revenue-generating event for Construction Junction, a non-profit building material reuse retailer, whose main goal is to promote conservation through the reuse of all kinds of building materials. In addition to reducing waste and recycling, Construction Junction also pairs with Goodwill and the Trade Institute of Pittsburgh to provide job training and placement programs to help Pittsburgh residents, particularly those with disabilities, find employment. The funds that Construction Junction receives from hosting the Big Pour are used to help facilitate these programs, pay rent and utility bills, provide pick up and drop off services for reusable goods, and explore new partnerships to expand material reuse. I look forward to attending the Big Pour in future years, and if you are ever looking for a great event in the Pittsburgh area, this would be one to check out. Whether or not you are a big craft beer enthusiast, the Big Pour is a great chance to sample some new beers, enjoy some delicious food, socialize with hundreds of other participants and support a great organization.

Each and every day brings a new series of challenges, surprises, joy, sadness and many unpredictable events that can activate all sorts of emotions. Sometimes we find ourselves anticipating what we believe tomorrow may bring and then tomorrow comes and the situation for that day has you wondering how things happen.  Sunday was one of those situations for me. It was supposed to be a day of relaxation and some leisurely fun.  Watching some Steelers football, enjoying the kids and taking in the beginning of fall weather, but it ended up becoming a worrisome night with little sleep. My husband owns some rental properties and on occasion, you have a tenant that wants to “skip” out on paying up.  Generally the kind of person who has those kind of scruples doesn’t leave the place in such good shape.  My husband has been doing this for more than 30 years now though, and he deals with it and moves on while trying to maintain a positive outlook. My husband was alerted by a neighbor near one of his properties that a tenant did just that - moved out.  So he went to the home and aside from finding the place in shambles, he found seven kittens that were clearly two different litters and found only one mama.  No food, nothing - left behind as if they were discarded meaningless possessions for someone else to clean up and get rid of.  In all our years of owning rental property, I have seen many things, but never anyone leaving behind a living creature to see if it would survive. Those kittens and that mama came to my home.  We spent hours trying to de-flea, feed and care for these beautiful little gifts from heaven.  Pictured above is one of the bigger ones. The reality set in that we really needed some help because they were so very frail and their chances for survival appeared more bleak than we initially thought.  Blood dripped from them as we tried to get the fleas under control.  Some couldn’t even walk or try to eat and drink.  The mama…well, she was only the mother to three of them so, she didn’t want to feed the others. I began reaching out to friends, family and neighbors.  The neighbor kids came over and helped keep them warm by wrapping them in blankets and offering a gentle hand to hold and cuddle them.  Phone calls were made, decisions and arrangements were being discussed.  We put them to bed with a heat lamp to keep them warm. That night, I didn’t sleep very much mostly because of the worry.  I knew I had to have a plan of action in place and I realized that this was something far beyond my own ability to fix. My mind raced with thoughts about  why people do the things they do. When I arrived at work on Monday, I immediately emailed everyone in the office explaining the situation.  One reply came from a co-worker who put me in touch with some ladies she knew from Ohio who started their own non-profit organization. That’s when I met Beth and Ashley from the Back Street Cat Rescue. These ladies took these kittens in and the mama, too.  They dedicate their lives to rescuing cats and kittens.  I immediately felt relief knowing they would be in the hands of rescuers and I met with them immediately after work. Some of the stories Beth and Ashley shared were of unbelievable cruelty and heart wrenching circumstances of what people do to animals - from abuse to abandonment and it happens every single day.  These women run the rescue out of their own pockets and rely on charitable donations, but when those donations don’t come in, they keep the organization going on their own dime.  It’s not for them. It’s for any cat or kitten that was no longer a priority to their owner -  a discarded possession that deserved good care and love. If you are ever looking for a cause to support, I suggest you consider this one - Back Street Cat Rescue, 214 Maple Ave, Bethesda, Ohio 43719. I learned first thing this morning one of the little seven, didn’t make it. That’s my situation for today.

I just received notification that I will be called for jury duty. Given what I do for a living, I probably won't be selected, but I would gladly serve if needed. Other than our judges, trial attorneys like me probably know better than anyone how valuable jury service really is. Whenever I try a case, I always remind myself that the individual members of the jury have taken time away from their lives, jobs, and families to participate in the greatest system of justice in the world. It is an important and necessary sacrifice. I recently read that an experienced federal judge has started a project designed to make things easier on jurors while recognizing the vital nature of the work that juries do every day in our courtrooms. Specifically, the judge has asked the legal community to adopt and respect a "Juror's Bill of Rights."  Among the provisions of this Bill of Rights would be an acknowledgement that jurors have the right not to have their time wasted by lawyers who are unprepared for their cases, to be informed about exactly how long the case will last, and the right to a clear and understandable explanation of the law and their role in the case. These are all great ideas and I know that I will be more aware of these issues the next time I have the privilege of stepping in front of a jury. To all those who have served on a jury and to all those who will serve in the future, your service is appreciated. Thank you.

For any of us unfortunate enough to have to file a civil lawsuit, we know all too well the truth of the familiar refrain “the wheels of justice turn slowly”. Indeed, it can be quite frustrating, and borderline maddening at times, to be embroiled in litigation over a just cause, only to see months and months pass with what seems like no real movement towards resolution.  And the typical pace of a lawsuit is even more acutely felt when the stakes are high and the case involves important matters that have changed one’s life drastically. From a lawyer’s perspective, it seems like there’s never enough time to get ready and each client’s case dominates the lawyer’s daily life for years.  But a lot of what occurs in preparing for a lawsuit does not directly involve the client on a daily basis.  So months can pass where the client is not directly involved in the day-to-day preparation of the case, which can greatly add to a litigant’s frustration. Today, I wanted to take a moment to try and bring some understanding to the moving parts of a typical lawsuit in hopes that, through awareness, litigants can find a bit more solace while they wait for their case to resolve. Every civil lawsuit starts with the filing of a Complaint.  A Complaint is the initial pleading that a plaintiff (the person who brings the lawsuit) files that outlines the basic facts and allegations of the lawsuit.  A Complaint is not a form or typically a document that can simply be whipped out and filed once the client leaves a lawyer’s office after that initial meeting.  On the contrary, typically a fair amount of planning and fact gathering must take place before a Complaint can be drafted, because there are rules in every state that govern virtually every aspect of the filing of a civil lawsuit.  These rules must be followed or a litigant risks the very real possibility that the Court will simply dismiss the lawsuit for non-compliance right out of the gate.  For instance, in a medical malpractice case, most states require a litigant to present a notarized “certificate of merit” from a licensed doctor practicing in the same specialty as the defendant doctor, certifying that the case is meritorious, before one is even allowed to file their Complaint. To obtain that certificate from a qualified doctor, the doctor has to review all of the relevant medical records, which can take several months to obtain from the medical facilities at issue. Some states, like West Virginia, then require a litigant to give the doctor’s certificate to the target defendants of a lawsuit and then wait another 30 days before filing the Complaint. So from the day you first consult with a lawyer, it can often take many months before your lawyer is even in a position to file your Complaint. Once a Complaint is filed, the defendants in the lawsuit typically have 28-30 days to file a responsive pleading.  That responsive pleading typically takes one of two forms.  First, a defendant can file an Answer addressing each of the allegations in the Complaint.  The filing of an Answer can help move a lawsuit along, because once an Answer is filed, discovery of each side’s evidence can begin, bringing the litigants one step closer to trial.  However, the other type of responsive pleading that is typically filed is a Motion to Dismiss the Complaint.  The law provides numerous grounds by which a defendant can try to have a lawsuit dismissed.  These grounds include things like the plaintiff’s failure to state a claim, defects in the Complaint or an argument that the plaintiff has insufficient evidence to support their claim. Typically, when a Motion to Dismiss is filed, discovery of the other side’s evidence is put on hold, until the Court rules on the Motion to Dismiss. If a Motion to Dismiss is denied, the defendant typically gets additional time (typically two to four weeks) to file an Answer.  Once the Answer is filed, then discovery can begin.  The Civil Rules of procedure allow for the discovery by each side of the other side’s evidence.  This is accomplished through two mechanisms.  First, written discovery requests are served by each side asking for information and documents that the other side has that could be relevant to the issues raised in the lawsuit.  Typically the answering party will have 28-30 days to respond to this request, but extensions of those timeframes are typically granted upon request so these time frames can and usually are extended once or twice.  Usually after written discovery has been completed, the second phase of evidence gathering begins – namely the taking of depositions.  Depositions are the mechanism by which each side gets to question the other side’s witnesses, who are place under oath to tell the truth.  The testimony of each side’s witnesses are recorded by a court reporter and testimony is to be given exactly as if the witness were sitting in Court on the stand during trial in front of the jury.  Depending on the number of witnesses that have discoverable information and the complexity of the case, depositions can take months, if not years to accomplish. Once all the information possessed by each side has been discovered, the defendants get another chance to have the lawsuit dismissed.  You see, the plaintiff in a lawsuit has the burden of proof, which means that the plaintiff is the party that must present enough evidence of their case to even allow the jury to decide the issues.  The Court acts as a gatekeeper here to make sure that the evidence is good enough to even present it to a jury.  If the plaintiff is unable to present sufficient evidence to meet their burden of proof, the Court will dismiss the lawsuit.  The legal procedure for trying to get a lawsuit dismissed at the end of discovery is called “summary judgment”, and the defendant in every civil lawsuit has the opportunity to ask for such relief from the Court. If a plaintiff survives the summary judgment stage, the next phase of the lawsuit typically involves each side moving to exclude certain evidence or arguments from being presented to the jury at trial.  Under the Civil Rules of Evidence, only relevant evidence is admissible.  Only evidence that has any tendency to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence is admissible at trial.  So in almost every case, each side will argue over which evidence meets that standard. Once the Court has ruled on each side’s motions to exclude evidence, only then is the case ready to be presented to a jury.  Depending on the evidence, trials can last anywhere from days to many, many months.  Once a verdict is delivered by the jury, each side has the right to appeal the decision, which can add a great deal of additional time to the ultimate resolution of one’s case.  Litigants are somewhat more fortunate here in West Virginia, since West Virginia only has one appellate court, The West Virginia Supreme Court of Appeals.  But other states have multiple levels of appeal courts and litigants have a right to appeal to each one of them to overturn a verdict. Typically, if all goes smoothly through this procedure, a litigant is looking at a trial anywhere from 12 to 18 months from the date the Complaint was first filed.  And, unfortunately, this is usually a best-case scenario.  There are many, many other factors that can delay the resolution of a civil lawsuit.  For instance, Courts are very busy places and a big factor in how soon you can get your case to trial depends on the Judge and the Court’s schedule.  Criminal cases get priority over civil cases, so it will take longer to get your civil case to trial in a county that sees a lot of criminal activity.  Also, a litigant can appeal a Judge’s decisions along the way, before the case even goes to trial.  For instance, a defendant who loses a Motion to Dismiss can petition for an appeal of that decision.  All of these things can add a tremendous amount of additional time to the ultimate resolution of a lawsuit. On the bright side, cases can settle at any time during the litigation process, but the process is daunting not only because of the emotional turmoil that lawsuits often involve, but also simply because of the length of time one must remain patient in order to see justice done.  For those reasons, I often feel a great deal of pride and admiration for the clients we represent.  For their willingness to stay the course to see wrongs righted, for their steadfastness in the face of significant procedural adversity.  It takes a great deal of courage, perspective and patience to seek justice, and I am fortunate enough to work with clients every day who dig deep and rise above the inherent hurdles they must climb to have their case decided by a jury of their peers.  If you are considering the filing of a lawsuit, please do not despair.  Although justice can often take a while, truth can and still does win out in the end, and a cause worth fighting for is a cause worth fighting for.  Period.

Many people in West Virginia do not own the minerals under their property. They only have what we call “surface rights.”  Surface rights allow us to live on and use the surface of the land, but do not include ownership interests in items such as coal, oil and natural gas.  It is disappointing to find out that as a surface owner you cannot benefit from the tremendous amount of money that has been coming into the area for the last seven to eight years from oil and gas operators.  What is more disappointing, however, is to find out that those oil and gas companies may still be able to come onto your property to try and get the oil and gas out from underneath of it.  Mineral owners and those companies obtaining leases from those owners have implied rights that can possibly permit them to come onto the surface overlying their minerals.  The traditional thought was that the minerals under the property really have no value unless you can get to them and use them.  Therefore, even if a deed which severed the mineral and surface rights apart is silent on the subject of surface rights, the mineral owner has implied rights to use the surface of the property.  What does that mean?  Can the gas company build a road on your property?  Can the gas company put in pipelines or electric lines?  Can the company drill a well site on your property?  The West Virginia Supreme Court has typically upheld the rights of mineral owners to do what is “fairly” or “reasonably necessary” to extract their minerals.  Gas companies have been pushing these rights to the brink of fairness and reasonableness in recent years.  The advent of horizontal drilling and hydraulic fracturing has made it possible to develop many hundreds of acres of mineral rights from one drill site.  That drill site, however, is much larger and involves much more equipment and potential pollutants and emissions that the traditional oil and gas well sites which were drilled over the preceding 100 years before the Marcellus and Utica Shale plays.  Modern drill sites can be 10, 15 and 20 acres.  There have been ponds installed; there are compressors, dehydrators, heaters and many other types of noisy and potentially dangerous pieces of equipment involved.  Can an oil and gas company put one of those well sites on your property if you only own your surface and not the minerals?  They are certainly trying to. We believe that oil and gas companies, by in large, do not have such broad implied rights to use your property.  Cases decided in the area of coal mining law have long held that mineral owners might have the right to use a piece of surface property to get the mineral under that property, but not to get to minerals located under other people’s properties.  This idea has been extended to the concept of oil and gas law in other cases and many legal scholars agree that oil and gas companies should not be permitted to force their way onto a surface owner’s lands to conduct production operations which will produce gas from separate unrelated properties.  This concept is a tool to help surface owners fight back against large horizontal drilling operations on their property.  There is actually an argument that drilling horizontal wells against the wishes of a surface owner can be considered trespassing.  Bordas & Bordas is already representing several surface owners who have been approached by oil and gas companies seeking to use our client’s surface to drill massive horizontal well sites.  Often these cases result in the oil and gas companies actually filing suit against the surface owner to try and enforce their alleged rights.  It is important to know that even if the oil and gas company has certain implied, or even express, rights to enter your land, it cannot do so in a manner which “unduly” or “substantially” burdens your use of the surface rights.  Finally, even if the company does have a right to be on your property, there are several avenues available to help you get compensation for the damages to your property and, potentially, the decrease in your property value.  If you are a surface owner who has been approached about operations on your property, feel free to call us to get a no obligation consultations about what rights you might have.  Even if a gas company has already drilled on your property, it may be possible for you to purse several different avenues of recovery to be compensated for your loss.

It wasn’t long ago that my wife, Brenda, and I were discussing vacation plans. Where could we go to “unplug” for a few days? We considered a couple of old favorites.  Years ago we went to a rustic campground in the mountains.  We also considered Sugar Creek, Ohio, nestled in the midst of Amish country two hours away. Then Brenda threw out another suggestion.  How about Lancaster, Penn.?  True, it’s a little further away, but it has all the Amish amenities and a theater that performs wonderful Christian-themed musicals.  The musical that was playing through the fall was called “Joseph.”  I was intrigued.  Then Brenda sweetened the pot.  Maybe we could also make a day trip to Gettysburg and tour the battlefield. Now I have to stop right here and tell you that I’m a bona fide history geek.  I loved taking history classes, I minored in history in college, and I’ve always been a rabid reader of history books.  Gettysburg was, and still is, one of my favorite battles to study.  So when Brenda suggested a trip that included Gettysburg, I jumped at it. That’s when she blindsided me.  I didn’t even see it coming:  “Maybe we could take one of the horseback riding tours.” As you can probably guess, Brenda loves horses.  She’s ridden for many years and is very comfortable in the saddle.  I’ve only ridden once--and, to be honest, I wasn’t anxious to repeat the experience.  But how could I say no?  Brenda had stretched herself by agreeing to do something that I liked.  Why shouldn’t I?  Even if I was secretly scared to death?  I must have muttered something that sounded like “yes” because in a day or two all of the arrangements had been made. We left for Lancaster two weeks later, and early Monday morning we made the hour long drive from Lancaster to Gettysburg.  We wound our way through the historic downtown area, and then onto one of the narrow roadways running parallel to the battlefield.  Before long we were sitting in a sprawling parking lot at a nearby campground.  Horses and trailers were visible in the distance. I was introduced to the horse I would be riding.  His name was Prince, and strangely enough he did seem to have a royal baring.  I cautiously stroked his snout, hoping that he didn’t sense any of my fear.  Then I tossed out plenty of complements in a transparent attempt to win his favor.  So far, so good…. I put my foot in the stirrup, breathed deep and lifted myself up into the saddle.  Surprisingly, I felt very safe and comfortable.  The guide gave us a crash course in horsemanship, but she assured us that the horses were well-behaved and very responsive to commands, even for the greenest of riders like me. Soon we were heading toward the battlefield.  Whatever fear I might have had disappeared as we neared the battlefield and I began focusing my attention on what the guide had to say. It turns out we spend most of our time behind the battlefield.  We followed a trail that was over 150 years old and ran directly behind the Confederate lines.  It was used by the Confederates to ferry their messages and supplies during the battle.  We also stopped at a spot near General Lee’s monument that was probably used by Lee as an observation point.  Farther along the trail we saw an old farmhouse.  We were told that Confederate soldiers camped and ate their meals in the neighboring fields.  We also saw General Picket’s headquarters and passed through the woods where Picket’s soldiers waited before their famous charge on the battle’s third and final day. For a history lover, it was an adventure of a lifetime.  I had toured the battlefield itself ten years ago.  But this tour was like taking a peek behind the curtain and seeing the things that actually made the battle possible.  Messages from Lee to his generals followed the same path we took.  It’s said that an army marches on its stomach, and we saw where the soldiers ate, slept and cooked their meals.  Picket’s charge is the most famous part of the battle and we saw where it all began—in the woods where 15,000 men huddled, waiting for the order to advance against the Federal lines. I have a confession to make.  This horseback tour wasn’t just informative and eye opening.  It was actually fun.  Yeah, that’s right.  Fun. Just don’t tell my wife….

What a great time of year to be a sports fan. It's that unique time when baseball races to the pennant at the same time football gets back underway. We are particularly lucky this year in the Ohio Valley given that many of our local teams at the high school level are off to great starts, the Mountaineers, Buckeyes and Fighting Irish are each undefeated and the Pirates continue to make life very uncomfortable for the Cardinals. It's also great to see all the kids in town back in the swing of things. I love driving around and seeing all the kids, coaches and parents busy on all of the local fields, gyms and courts. Just this weekend, my oldest son played for Central Friday night, my youngest son played in his flag football game Saturday morning, my middle son played a hockey game in Pittsburgh and my daughter scored two goals for her soccer team on Sunday afternoon. A special thanks to all of the volunteers that make these things happen for the kids. All around town, caring people devote hundreds of hours to serving as coaches, referees and administrators mostly without pay. Without them, none of it would be possible. So as the weather cools off, go find a game and cheer on your favorite team.