author: TROUTMAN, Senior District Judge.

text:
    Eugene R. KOHR and Elaine M. Kohr, his wife, et al. v. RAYBESTOS-MANHATTAN, INC.
    Civ. A. No. 78-3942.
    United States District Court, E.D. Pennsylvania.
    Feb. 28, 1985.
    On Motion for Reconsideration March 9, 1985.

      See also, D.C. 522 F.Supp. 1070.
    James J. Pettit, Philadelphia, Pa., for plaintiffs.
    Creed C. Black, Jr., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

Defendant, Raymark Industries, Inc., employer or former employer of plaintiffs in the instant action has moved for summary judgment on what it perceives to be the remaining claim against it, that of intentional tort. The motion, as originally filed, was essentially based on three arguments:

1. That there is no evidence of intentional tort;

2. That there is no cognizable intentional tort exception to the exclusivity provisions of the Workmen’s Compensation/Occupational Disease Act under circumstances such as are alleged in the complaint in this case;

3. That the complaint does not sufficiently aver such intentional conduct as would abrogate the exclusivity provision even if the intentional tort exception is viable under these circumstances.

Before considering the merits of the motion, it is necessary that we engage in a short discussion of its proper procedural framework.

Although defendant requests summary judgment, its motion is unsupported by affidavit, by deposition testimony, or by any other type of evidence allowed by Fed.R. Civ.P. 56(c). Consequently, the motion is not accurately designated, for, “While a motion for summary judgment may be based solely on the pleadings, it is then functionally equivalent to a motion to dismiss for failure to state a claim under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c). If a motion is directed solely to the pleadings, the movant admits the truth of his adversary’s well-pleaded allegations but denies their sufficiency as a matter of law. And in ruling on such a motion the pleadings are to be liberally construed”. 6 Moore’s Federal Practice ¶ 56.11[1]. Thus, in the absence of evidence to support a defendant’s motion for summary judgment, the Court accepts the averments of the complaint as true and the moving party is deemed to have admitted the truth of those averments. Plaintiff, therefore, need not produce its evidence because on this motion defendants can prevail only if the complaint is legally deficient. Here, however, plaintiffs have produced evidence or, as defendant contends, at least an offer of proof. Under usual circumstances, that in itself may be enough to defeat an unsupported motion for summary judgment by raising an issue of material fact. But we are presented here with an unusual situation. As counsel recognized at argument, the issue presented is complex and has in only a limited number of cases been addressed in either the courts of Pennsylvania or this District. Consequently, we believe it would do all parties a disservice to dispose of the motion on technical grounds. Instead, we will follow the procedure outlined in Moore, supra, and treat the motion as one in which the defendant is testing the legal sufficiency of plaintiffs’ complaint, both in terms of whether the allegations are indeed “well-pleaded” and, more importantly, in terms of whether the complaint states a claim upon which relief may be granted in light of the exclusivity provisions of Pennsylvania’s Workmen’s Compensation Act..

In addressing the question whether and under what circumstances an intentional tort cause of action exists as to an employee seeking to sue his employer for an asbestos-related injury otherwise compensable under Pennsylvania’s Workmen’s Compensation/Occupational Disease Act, we begin by reviewing the few cases available on this issue. We have considered Chief Judge Luongo’s opinion in Tysenn v. Johns-Manville Corp., et al., 517 F.Supp. 1290 (E.D.Pa.1981), Judge Bechtle’s opinion in Neal v. Carey-Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Pa.1982), and Judge Hannum’s opinion in Wilson v. Asten-Hill Manufacturing Co., et al., No. 79-332, slip op. (E.D.Pa. June 6, 1983). We have also examined the opinion of Judge Takiff, of the Philadelphia Court of Common Pleas, in the case of Anastasi v. Pacor, Inc., 7 Phila. County Reports 488 (1982) and his more recent opinion in the case of Getz v. Rohm & Haas, et al., No. 576 November Term, 1983, slip op. (Philadelphia Court of Common Pleas October 24, 1984). Although three of these cases held that the employee-plaintiffs were not entitled to pursue tort actions against their employers, those reaching the opposite result are not irreconcilable. All agree on several general principles: the Workmen’s Compensation Act was designed to be an exclusive remedy, supplanting tort recovery in employee injury cases; the Pennsylvania courts have recognized a limited exception to the general rule where the injury is the result of intentionally tortious conduct on the part of the employer and plaintiff bears a heavy burden in successfully bringing the allegations of the complaint within the “extremely narrow boundaries” of the exception. In fact, as noted in Getz, the results in the cases cited above in which plaintiffs were foreclosed from pursuing a common law tort action against their employers turned on the insufficiency of the complaints in alleging intentionally tortious conduct. Averments of willful, wanton or reckless conduct fail to state a cause of action under the intentional tort exception to the exclusivity provisions of the Compensation Act. Only allegations of actual and provable intent to injure the employee will suffice. Demonstrating that intent requires a showing that the employer desired to cause the injury or believed that the injury was substantially certain to result. See, Neal at 379. Thus, even allegations of such deliberate actions as the knowing violation of safety statutes will not state a cause of action under the strict pleading requirements imposed by the courts. Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969).

The judicially created intentional tort exception to the legislatively created exclusive remedy was developed in limited cases of discrete injury, such as assault upon an employee by his employer. Readinger v. Gotschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). It is much more difficult to apply it to a “creeping disease” case, However, interpreting and analyzing Schneider v. Rohm & Haas, 23 D. & C.3d 428 (C.C.P.Phila.1982) and Neal, Judge Takiff recently articulated a standard for doing so. He reasoned that, given appropriate and sufficiently specific allegations, a “pattern of intentional, deliberate, egregious conduct by an employer which cannot be characterized as arising naturally in the course of employment” should bring a plaintiff within the admittedly narrow grounds of the exception. Getz, at 37. Judge Takiff’s analysis appears to represent a reasonable and workable integration of the case law in the Pennsylvania courts and in this district, particularly if one applies his definition of the language and phrase “arising in the course of employment”, as something which “occurs while the employee is doing the work which he is required to perform” (see Anastasi, supra, at page 498). Such a standard is more easily and rationally applied than one based on the nature of the injury, as defendant here urges, in that it focuses directly on the actions of the employer rather than on an attempt to distinguish between the initial injury and the aggravation thereof. Moreover, it is a standard less likely to either swallow the exclusivity rule, a result clearly at odds with present Pennsylvania cases and federal cases in this district reflecting Pennsylvania law, or vitiate the exception. The employer’s actions in exposing his employees to asbestos fibers is not such a deliberate act as would subject him to liability because it is conduct which arises naturally in the course of employment. On the other hand, consistent with Neal, a deliberate pattern of fraud and misrepresentation designed to induce plaintiffs to remain in the workplace despite the employer’s actual knowledge of its hazardous nature is conduct which would subject him to liability under the intentional tort exception to the exclusivity provisions of the Workmen’s Compensation/Occupational Disease Act.

Adopting this standard is the beginning of our analysis of the issue as presented in the instant case, not the end of it, for proper pleading is highly essential to presenting a viable cause of action in tort against an employer. In this regard, we digress momentarily to address plaintiffs’ argument that even if we find no cause of action in tort, their claims of post-employment failure to warn and extra-worksite exposure, not addressed by defendant’s motion, would remain. Our investigation of the issue thus presented, whether or not an employee may pursue a remedy other than compensation against his employer, has revealed no exception to the exclusivity of the compensation scheme other than intentional tort. Therefore, all of plaintiffs’ allegations against Raymark, however stated, must meet the intentional tort standards or recovery is foreclosed.

Before examining the allegations of the complaint to determine whether plaintiffs properly allege such a pattern of deliberate, egregious conduct as would bring these plaintiffs within the intentional tort exception and thus allow them to maintain their action against Raymark, there are a few general observations to be made. The case law is unanimous in emphasizing that averments of intentionally tortious conduct on the part of an employer must be clear and specific. Although we are to construe a complaint liberally on a motion akin to one for dismissal and, as plaintiffs argued, notice pleading is the general rule in federal court, we must balance these considerations against the stringent pleading requirements imposed upon plaintiffs seeking to maintain a common law tort action against their employers in the state courts. We do not frequently confront a situation where the more liberal pleading standards prevailing in the federal courts may have a deleterious effect upon a state mandated statutory scheme. In accepting a judicially created exception to a state legislative scheme we risk expanding it beyond its judicially intended bounds if we apply usual notice pleading standards. Importantly, however, a requirement of specific pleading is not unknown to the federal courts, particularly where substantial public policy concerns are implicated. It has long been the rule in the Third Circuit, for example, that civil rights complaints brought pursuant to 42 U.S.C. § 1983 must be pled with factual specificity. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976).

The situation here presented is in many ways similar to that faced by the federal courts when presented with civil rights claims against municipalities under § 1983. There, until the Supreme Court’s decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), local governments were not considered “persons” for § 1983 purposes and hence were effectively immune from suit for civil rights violations. Since Monell, a plaintiff who alleges an unconstitutional custom or policy on the part of a local government may maintain an action for violations of his civil rights accomplished by the execution of that policy or custom. In the present case there is a legislative determination that compensation is an exclusive remedy for employment related injuries, effectively and similarly immunizing employers from tort liability. However, Pennsylvania courts now recognize a narrow exception to that rule for deliberate, egregious conduct of an employer not arising out of employment or related thereto. This exception is similar to the custom or policy exception to the prior rule of municipal immunity.

As to the municipal immunity exception and based upon the important public policy of “weeding out” frivolous and insubstantial cases at an early stage of the litigation, this Circuit adopted, even prior to Monell, a requirement of fact pleading in civil rights cases. Thus, a complaint against a municipality under § 1983 must present allegations of municipal policy with sufficient factual specificity. See, Borenstein v. City of Philadelphia & Briggs, 595 F.Supp. 853 (E.D.Pa.1984). In Getz, Judge Takiff was concerned about the continued viability of the exclusivity rule in light of the intentional tort exception which he articulated. He adhered to strict pleading requirements consistent with the usual fact pleading standards m Pennsylvania courts. Recognizing the important public policy concerns underlying Judge Takiff’s discussion of the pleading standards he outlined in Getz, we conclude that the situation here involved is even more compelling than the civil rights area for imposing specificity in pleading. Here we risk more than frivolous and insubstantial claims. There is in this situation the potential for creating a double standard of recovery for plaintiffs in federal and state courts if we recognize the exception to the exclusivity provisions of Pennsylvania’s Workmen’s Compensation/Occupational Disease Act but fail to also adopt the Pennsylvania courts’ pleading standards when an employee seeks to assert an intentional tort action against his employer. The principle underlying the Federal Rules of Civil Procedure is that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Under these circumstances only a requirement of factual specificity inpleading will vindicate that principle and accomplish the results dictated by Pennsylvania law.

Turning now to the allegations of the complaint in this case, we consider first defendant’s argument that only Count VI purports to state an intentional tort claim against Raymark. The averment there that defendant “deliberately, intentionally, willfully injured plaintiffs” is clearly insufficient under prior case law in this district, see, Tysenn at 1293, Wilson at 3, Neal at 379, as well as under the specific pleading standards we deem necessary for this type of case. In the first instance, it does not indicate the conduct of the employer to which plaintiffs refer. Insofar as it may be a claim that the employer exposed the plaintiffs to asbestos fibers it does not state a claim under the intentional tort exception as we have here defined it no matter what pleading standards are imposed. Beyond that, it fails to aver clearly and with factual specificity a pattern of intentional, egregious conduct on the part of the employer which injured the plaintiffs.

Consistent with our obligations in construing a complaint on a motion to dismiss, however, we also examined the allegations of Count VII which apparently seeks to state claims for failure to warn, fraud and misrepresentation. The difficulties with Count VII are twofold: first, the allegations are not directed specifically to the conduct of employer but encompass the actions of all defendants; second, they are equivocal as to Raymark’s actual knowledge of the dangers inherent in using asbestos products. In addition, we note that all the cases in which employee-plaintiffs were allowed to pursue tort actions against their employers involved situations where the employers themselves had hired experts to examine their own employees, or to examine the employees’ work-related illness records, etc., but then chose to ignore the experts’ conclusions and/or misrepresent such conclusions to the employees. See, Neal, Schneider and Getz. Such does not appear to be the case here. Even if we were to supplement the complaint by incorporating and considering the evidence plaintiffs supplied to the Court to support their opposition to the instant motion, we find only broad claims against all defendants for concealing information known generally in the industry, not claims specifically directed against Raymark for its conduct vis-a-vis its employees only. None of the allegations of this complaint, therefore, meet the strict, factually specific pleading requirements necessary to bring plaintiffs in this case within the narrow bounds of the intentional tort exception to the exclusivity provisions of the Workmen’s Compensation/Occupational Disease Act.

In hereafter entering an order dismissing employee-plaintiffs’ claims against Ray-mark, their employer, which will be designated judgment for the defendant in the context of this motion, we are cognizant of the usual practice followed in these circumstances of giving plaintiffs the opportunity to amend their complaint. We do not deem that to be a viable alternative in this case at this time. It is now the eve of trial. Allowing an amendment to the complaint would certainly delay the trial of a seven-year-old case by twentyrone plaintiffs against ten defendants other than Ray-mark. As noted above, our careful examination of plaintiffs’ offer of proof persuades us that an amendment would likely be futile in any event.

In summary, we recognize that a narrow intentional tort exception to the exclusivity provisions of Pennsylvania’s workers’ compensation scheme does exist through which an employee-plaintiff may assert a common law claim against an employer for an asbestos-related disease where he can show a pattern of deliberately egregious conduct not arising out of employment or related thereto. Liability on the part of an employer may not be based upon its conduct in exposing and continuing to expose its employees to asbestos, however, because such exposure arises out of employment and is subject to the exclusivity principles discussed. Other conduct of the employer which may support a cause of action must be alleged with factual specificity and must demonstrate that the employer took some action specifically directed against its own employees.

ON MOTION FOR RECONSIDERATION

On February 28, 1985, this Court, on motion of defendant, Raymark Industries, Inc., for summary judgment, treated by the Court as a motion for judgment on the pleadings, entered judgment in favor of defendant. We held that the complaint failed to allege, with sufficient specificity, the alleged intentionally tortious conduct of the defendant as required by Pennsylvania law and to sufficiently and adequately plead a common law intentional tort claim against said defendant. We considered the exclusivity provisions of the Pennsylvania Workmen’s Compensation and Occupational Disease Acts. In so doing, and on plaintiff’s urging, we considered and ultimately adopted the reasoning and principles enunciated and offered by the Court in the case of Getz v. Rohm & Haas Company, et at., No. 576 November Term, 1983 (Phila. Court of Common Pleas, October 24, 1984).

In our prior memorandum we said:
In fact, as noted in Getz, the results in the cases cited above in which plaintiffs were foreclosed from pursuing a common law tort action against their employers turned on the insufficiency of the complaints in alleging intentionally tortious conduct. Averments of willful, wanton or reckless conduct fail to state a cause of action under the intentional tort exception to the exclusivity provisions of the Compensation Act. Only allegations of actual and provable intent to injure the employee will suffice. Demonstrating the intent requires a showing that the employer desired to cause the injury or believed that the injury was substantially certain to result. See, Neal at 379. Thus, even allegations of such deliberate actions as the knowing violation of safety statutes will not state a cause of action under the strict pleading requirements imposed by the courts. Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969).
The judicially created intentional tort exception to the legislatively created exclusive remedy' was developed in limited cases of discrete injury, such as assault upon an employee by his employer. Readinger v. Gotschall, 201 Pa.Super. 134, 191, A.2d 694 (1963). It is much more difficult to apply it to a ‘creeping disease’ case. However, interpreting and analyzing Schneider v. Rohm & Haas, 23 D. & C.3d 428 (C.C.P.Phila. 1982) and Neal, Judge Takiff recently articulated a standard for doing so. He reasoned that, given appropriate and sufficiently specific allegations, a ‘pattern of intentional, deliberate, egregious conduct by an employer which cannot be characterized as arising naturally in the course of employment’ should bring a plaintiff within the admittedly narrow grounds of the exception. Getz, at 37. Judge Takiff’s analysis appears to represent a reasonable and workable integration of the case law in the Pennsylvania courts and in this district, particularly if one applies his definition of the language and phrase ‘arising in the course of employment’, as something which ‘occurs while the employee is doing the work which he is required to perform’ (see Anastasi, supra, at page 498). Such a standard is more easily and rationally applied than one based on the nature of the injury, as defendant here urges, in that it focuses directly on the actions of the employer rather than on an attempt to distinguish between the initial injury and the aggravation thereof. Moreover, it is a standard less likely to either swallow the exclusivity rule, a result clearly at odds with present Pennsylvania cases and federal cases in this district reflecting Pennsylvania law, or vitiate the exception. The employer’s actions in exposing his employees to asbestos fibers is not such a deliberate act as would subject him to liability because it is conduct which arises naturally in the course of employment. On the other hand, consistent with Neal, a deliberate pattern of fraud and misrepresentation designed to induce plaintiffs to remain in the workplace despite the employer’s actual knowledge of its hazardous nature is conduct which would subject him to liability under the intentional tort exception to the exclusivity provisions of the Workmen’s Compensation/Occupation Disease Act.

However, in following Getz, we declined to dilute Judge Takiff’s careful preservation of Pennsylvania’s legislative scheme by engrafting the liberal federal notice pleading standards onto what is essentially a state cause of action. Instead, analogizing the situation we faced to that confronting the Third Circuit when it adopted a specific pleading standard for 42 U.S.C. § 1983 civil rights cases, we found the rationale supporting the Circuit’s action to apply with even more compelling force in the context of this case because here we are charged with the preservation and application of a statutorily mandated compensation program affecting all Pennsylvania employees, a compelling issue not involved under 42 U.S.C. § 1983. Consequently, applying Getz, we found the allegations of the complaint originally filed insufficient to state a cognizable claim under the narrow intentional tort exception to the Compensation Act. Accordingly, at pages 9 and 10 of our prior memorandum we stated:

In Getz, Judge Takiff was concerned about the continued viability of the exclusivity rule in light of the intentional tort exception which he articulated. He adhered to strict pleading requirements consistent with the usual fact pleading standards in Pennsylvania courts. Recognizing the important public policy concerns underlying Judge Takiff’s discussion of the pleading standards he outlined in Getz, we conclude that the situation here involved is even more compelling than the civil rights area for imposing specificity in pleading. Here we risk more than frivolous and insubstantial claims. There is in this situation the potential for creating a double standard of recovery for plaintiffs in federal and state courts if we recognize the exception to the exclusivity provisions of Pennsylvania’s Workmen’s Compensation/Occupational Disease Act but fail to also adopt the Pennsylvania courts’ pleading standards when an employee seeks to assert an intentional tort action against his employer. The principle underlying the Federal Rules of Civil Procedure is that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Under these circumstances only a requirement of factual specificity in pleading will vindicate that principle and accomplish the results dictated by Pennsylvania law.

Plaintiffs have now moved for reconsideration of our order and to amend the complaint. Just as we previously considered the allegations in plaintiffs’ original complaint and the sufficiency thereof (see pages 10 and 11 of our prior memorandum), so we here consider the sufficiency of the proposed amendments to the complaint in light of the Getz case cited and relied upon by the plaintiffs and other cases cited in our prior memorandum to determine whether the motion to amend should be granted. In considering the proposed amendments we need not, should not and indeed are not influenced by this belated application filed on the eve of trial, after the case has been in litigation for approximately seven years. We recognize the delays incident to bankruptcies, resulting stay orders, appeals and like matters. The problems of counsel in managing deadlines fixed by multiple courts and negotiating reasonable settlements should be recognized and understood, thus, explaining the extraordinary and sometimes unreasonable burdens placed upon counsel and the Court.

In proposed Count VIII, plaintiffs allege that Raymark intentionally injured them

by intentionally engaging in a systematic pattern of egregious misconduct; by intentionally suppressing their scientific and medical knowledge regarding the risks of asbestos exposure; by affirmatively and intentionally distorting scientific and medical information engendered by scientists and physicians over whom they retained control; by retaining both staff physicians whom they controlled and by retaining physicians outside the plant whom they controlled, and by intentionally entering into a pattern of fraud, misrepresentation and concealment regarding the medical findings of plaintiffs and/or plaintiffs’ decedents so that plaintiffs and/or plaintiffs’ decedents innocently relied to their detriment on said fraud, misrepresentation and concealment; by intentionally and affirmatively concealing the results of dust studies and governmental studies; by intentionally deciding not to warn plaintiffs and/or plaintiffs’ decedents of the risks of asbestos exposure and/or of precautions to be taken; by intentionally providing inadequate, untimely, misleading and ambiguous warnings; by intentionally deciding to refuse to fund or perform adequate testing of asbestos; by intentionally entering into a conspiracy with other defendants to perform all of the above misconduct; by intentionally exposing plaintiffs and/or plaintiffs’ decedents to the hazards of asbestos exposure in a calculated, deliberate, egregious, economically motivated decision to pursue profit at the expense of the health and life of plaintiffs and/or plaintiffs’ decedents; each and every one of which caused the injuries set forth herein.

We conclude that these allegations lack the requisite factual specificity required to state a common law claim against an employer. Under the pleading requirements enunciated in Getz which we previously held were necessary to bring same within the narrow bounds of the intentional tort exception to the Workmen’s Compensation Act scheme, plaintiffs are required to set forth with factual specificity the acts of the employer alleged to comprise the “pattern of intentional, egregious misconduct” which was allegedly directed against each plaintiff. As suggested in Getz, “magical words” do not suffice and do not meet plaintiffs’ burden. We realize that it is a heavy but necessary burden. However, having adopted the intentional tort exception as defined by Judge Takiff, and as urged by plaintiffs in their motion and at oral argument, this Court is obliged to compare the language and allegations of the complaint found insufficient in Getz with the language and allegations now proposed by plaintiffs by way of amendment to the complaint. Judge Takiff found the following averments insufficient to state a claim:

The defendant with full knowledge of the consequences of asbestos use and exposure did by design, resolve, determination and thereby with intent to injure directly concealed information of such life threatening use and/or exposure from plaintiff, thereby intentionally and willfully concealing from the plaintiff the nature and extent of such danger to his health, so as to specifically commit an intentional tort. Complaint, Count V, para. 31.

Further, plaintiff averred that his employer:

through its agents, servants, and/or employees, with deliberate intent to induce plaintiff to continue to work under hazardous conditions did conspire to and did fraudulently conceal from plaintiffs knowledge of diseases known by these defendants to be caused by ingestion of asbestos fibers and dust and therefore defendant, Rohm and Haas Company did deliberately intend the wrong resulting in the illnesses of the plaintiff. Complaint, Count V, para. 33.
Getz, at 4, 5.

Obviously, the foregoing allegations, rejected in Getz as insufficient, are even more specific than Count VIII now proposed by plaintiffs. We recognize that Judge Takiff was applying Pennsylvania’s procedural rules requiring specific pleading. We have held that under the circumstances, those rules perform the necessary substantive function of assuring that the “narrow bounds” of the intentional tort exception are not inadvertently widened by applying the federal rules of notice pleading. (See prior memorandum and order dated February 28, 1985). Hence, our adoption and application of specificity in pleading this type of claim. We shall not repeat what we have previously stated, in detail, as the basis for our conclusion. The plaintiffs would have us adopt Getz for the purpose of demonstrating that the “intentional tort” doctrine is alive and well in Pennsylvania but risk burying the exclusivity provisions of the Pennsylvania Compensation Law by the application of federal notice pleading as opposed to state factual pleading.

Plaintiffs also include a proposed Count IX, dealing with ambient air quality in the area around the Raymark plant and defendant’s post-employment failure to warn plaintiffs of the hazards of asbestos exposure and factors found to aggravate asbestos-related diseases. Plaintiffs continue to argue that these allegations do not need to come within the bounds of the intentional tort standard. We reiterate our holding that workmen’s compensation has been legislatively designed as the exclusive remedy for employees injured by the acts of their employers arising out of employment or related thereto. Allegations that do not meet the stringent pleading standards of the narrowly defined intentional tort exception to the exclusivity of remedy provisions of Pennsylvania’s compensation scheme will not suffice to sustain a common law intentional tort action by an employee against his employer. Because we conclude that the allegations in proposed Count IX do not meet the required pleading standards, they likewise fail to state a claim upon which relief may be granted.

In summary, having reconsidered and reaffirmed our opinion and order of February 28, 1985, and having further carefully examined and considered plaintiffs’ proposed amendments to the complaint, we conclude that if said amendments were permitted they would fail to state a cognizable claim against defendant Raymark. Hence, plaintiffs’ motion for leave to file an amended complaint in the form submitted will be denied.

We now address plaintiffs’ motion for reconsideration of our prior order contending that we improperly treated it as a Rule 56 motion, disregarding defendant’s lack of supporting evidence but passing upon the sufficiency of plaintiffs’ proferred evidence. In fact, we treated Raymark’s motion as one brought pursuant to Rule 12(c) and so stated. Our decision was based upon the insufficiency of the complaint. Plaintiffs argue further that if such is the case, the motion should have been denied because the allegations of the complaint must be taken as true and correct.

Plaintiffs fail to realize, however, that truth does not equal sufficiency. The granting of a Rule 12(c) motion means that even if all the averments of the complaint are true, they still fail to state a cognizable claim. We so found. Hence, plaintiffs’ motion for reconsideration will be denied.

      . Plaintiff argues that post-employment failure to warn and extra-worksite exposure of employees also remain as theories for recovery. The conflict will be resolved by our legal conclusions.

      . Beyond the considerations of complexity of the issue presented here, the Court is justified in proceeding as on a motion to dismiss because although the fact that plaintiffs presented evidence while defendant did not was duly raised by plaintiffs’ counsel, it was not pressed at argument. Understandably and properly, it was not pressed because plaintiff did not present evidence such as by affidavit of a factual witness. Rather, in argument, counsel made broad offers of proof based on voluminous materials produced in discovery in this and other cases. Thus, counsel relied primarily on legal, not factual, arguments and our decision is accordingly based upon a legal conclusion.

      . In Getz, Judge Takiff concluded that a tort action was not automatically foreclosed but found that the allegations of the complaint did not sufficiently plead an intentional tort cause of action. Accordingly, plaintiffs were given leave to amend the complaint.

      . In his discussion of Johns-Manville Prods. Corp. v. Contra Costa Super. Ct., 612 P.2d 948, 27 Cal.3d 465, 165 Cal.Rptr. 858 (1980), Judge Takiff stressed the difficulties inherent in applying such a standard in light of Pa. case law which has consistently held that "injury" for occupational disease compensation purposes arises when a disability occurs, which in turn is defined as the point at which earning capacity is impaired. See, Getz at 35, and cases cited therein.

      . At oral argument, plaintiffs’ counsel, who also represents the plaintiffs in Getz, informed the Court that the complaint in that case was found to state a claim as amended. However, as noted, that case involved allegations that the defendant "maintained a medical department to diagnose, treat and examine plaintiff’. Similarly, Schneider and Neal involved experts, hired by the employers, to determine the cause of their employees’ illnesses. No such facts and circumstances have been here asserted in oral argument or otherwise.

       In his discussion of Johns-Manville Prods. Corp. v. Contra Costa, Super.Ct., 612 P.2d 948, 27 Cal.3d 465, 165 Cal.Rptr. 858 (1980) Judge Takiff stressed the difficulties inherent in applying such a standard in light of Pa. case law which has consistently held that ‘injury’ for occupational disease compensation purposes arises when a disability occurs, which in turn is defined as the point at which earning capacity is impaired. See, Getz at 35, and cases cited therein.

      . The motion was filed with this Court on Friday, March 8, 1985, at 11:00 A.M. The case is scheduled for trial for the second time next Monday, March 11, 1985, at 10:00 A.M. Similarly, belated motions were filed by the defendant when the case was originally fixed for trial a week ago and again when approximately a week prior, the case was fixed for final pre-trial conference.

      . We also note, in this regard, that another of the cases upon which plaintiffs originally urged us to rely, Neal v. Carey Canadian Mines, Ltd,, 548 F.Supp. 357 (E.D.Pa.1982), dealt with the issues of post-employment failure to warn on the part of the employer. There Judge Bechtle found that the claim fell within the intentional tort exception. It is impossible to determine from that opinion whether or not the sufficiency of the complaint was ever challenged. A review of the opinion in that case, however, indicates that said issue was not precisely raised and thus specifically decided by the Neal court.


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Aileen J. HUBER, Plaintiff, v. Donald BLINZINGER, as Administrator of Public Welfare; and Robert Goshert as Director of the St. Joseph County Department of Public Welfare, Defendants. Donald L. BLINZINGER, as Administrator of the Indiana State Department of Public Welfare, Third Party Plaintiff, v. Margaret HECKLER, as Secretary of the Department of Health and Human Services; Clyde Downing as Regional Administrator, Office of Family Assistance, Third Party Defendants.
    No. S 82-542.
    United States District Court, N.D. Indiana, South Bend Division.
    April 8, 1985.

      Wendell W. Walsh, Legal Services Program, South Bend, Ind., for plaintiff.
    Gary L. Shaw, Deputy Atty. Gen., Indianapolis, Ind., Bruce BonDurant, David Kreider, Asst. U.S. Atty., South Bend, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is presently before the court on a Motion to Amend and Alter Judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure filed December 5, 1984 by the State defendants and a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure filed January 8, 1985 by the Third Party defendants. Both motions seek a dissolution of a permanent injunction entered against the State defendants by order of this court on November 28, 1984 and judgment in their favor as a result of a change in federal law and regulations. All parties have fully briefed the issues and oral argument was heard on March 5, 1985 at which time the permanent injunction issued in this case was stayed.

In its Memorandum of Decision and Order entered on November 28, 1984, this court held that the policy of the Indiana Department of Public Welfare (DPW) considering Old Age, Survivor and Disability Insurance (OASDI) benefits received by a representative payee on behalf of a child as “income” to an AFDC applicant and his or her family for the purpose of calculating AFDC benefits was in violation of applicable federal law. More specifically, the court found that the DPW policy of deeming income was in conflict with federal statutes and regulations governing the conduct of a representative payee and limited its decision accordingly. On July 18, 1984, Congress passed the Deficit Reduction Act of 1984 which contained the following provision:

[T]hat in making the determination under [42 U.S.C. § 602(a)(7) with respect to a dependent child and apply [42 U.S.C. § 602(a)(8)], the State agency shall (except as otherwise provided in this part) include—
(A) any parent of such child, and (B) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of [42 U.S.C. § 606(a)], if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 205(j) in the case of benefits provided under Title II).

Section 2640 of the Deficit Reduction Act of 1984. The issue before the court is what effect, if any, this provision has on this court’s order of November 28, 1984.

Section 205(j) of Title II, 42 U.S.C. § 405(j), establishes the payment of OASDI benefits to a representative payee for an individual entitled to receive the benefits. As indicated in the Deficit Reduction Act provision, notwithstanding the requirements under 42 U.S.C. § 405(j) for the purposes of AFDC eligibility, OASDI benefits made to a representative payee on behalf of a member of the AFDC assistance unit must be counted as income. In recent interim regulations, the Secretary of Health and Human Services further highlighted the requirement to consider OASDI benefit payments to a representative payee on behalf of a member of an AFDC assistance unit. In the comments to the regulations regarding AFDC assistance, the Secretary stated:

All of the income and resources of the individuals required to be included in the assistance unit must be considered in determining eligibility and payment for the assistance unit. In this connection, the statute specifically provides for the inclusion of title II benefits, notwithstanding [42 U.S.C. § 405(j) ]. When title II benefits are paid to a representative payee on behalf of a member of the assistance unit and the payee lives in the same household as the assistance unit, the title II benefits must be counted as income. When the representative payee does not live in the household, the title II benefits are included only to the extent that the payee makes them available for the support of the beneficiary. Conforming changes in title II regulations will be published shortly.

49 Fed.Reg. 35588-89 (September 10, 1984). Thus, under Section 2640 of the Deficit Reduction Act and the Secretary’s regulations and interpretations thereof, the DPW’s policy of considering OASDI benefits received by a representative payee on behalf of a child as “income” to an AFDC applicant or his or her family for the purposes of calculating AFDC benefits was required by federal statute. Accordingly, since the underlying basis for the issuance of the permanent injunction in this case has been undermined by the Deficit Reduction Act of 1984, the permanent injunction must be dissolved.

The plaintiff maintains, however, that the permanent injunction in this case should be reinstated because Section 2640 (1) creates an irrebutable presumption which denies plaintiff’s due process rights; and (2) did not repeal Sections 205(j) and 208(e) of the Social Security Act so that plaintiff would be forced to violate a criminal statute by the application of Section 2640. This court does not find these arguments persuasive.

Section 205(j) of the Social Security Act provides that:

When it appears to the Secretary that the interest of an applicant entitled to a payment would be served thereby, certification of payment may be made, regardless of the legal competency or incompetency of the individual entitled thereto, either for direct payment to such applicant, or for his use and benefit to a relative or some other person.
42 U.S.C. § 405(j).

Section 208(e) of the Social Security Act provides, in relevant part:

Whoever—
******
(e) having made application to receive payment under this subchapter for the use and benefit of another and having received such a payment, knowingly and willfully converts such payment, or any part thereof, to a use other than for the use and benefit of such other person;
shall be guilty of a felony and upon conviction thereof shall be fined not more than $5,000 or imprisoned for not more than five years, or both.
42 U.S.C. § 408(e).

These statutes are specific in nature and are not subject to repeal by implication by a later generalized statute absent a clear intention otherwise. See, Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). However, this court finds such a clear intention on the part of Congress in this instance. Section 2640 of the Deficit Reduction Act of 1984 specifically provides that “notwithstanding Section 2050 in the case of benefits provided under Title II.” Any income of or available to the AFDC family unit is to be included in making a determination of AFDC eligibility. The specific reference to section 2050 clearly indicates that Congress was well aware of the provision of section 2050 and its possible inconsistency with Section 2640 and by express language indicated how the potential conflict was to be resolved. Further, such resolution is consistent with the general purpose of the Deficit Reduction Act of 1984, namely, to reduce federal expenditures. See, e.g., Sadler on Behalf of Bailey v. Atkins, 597 F.Supp. 1204, 1209 (D.Mass.1984). Thus, by making Section 2050 inapplicable to this situation, Section 208(e) must logically be inapplicable as well and plaintiffs position based on this argument is not supported by law.

Likewise, plaintiffs argument with respect to Section 2640 violating her due process rights is without foundation. In support of her due process argument, plaintiff cites the case of Weinberger v. Salfi, 422 U.S. .749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) for the proposition that Congress may not invidiously discriminate based on criteria which bear no rational relationship to a legitimate legislative goal. Although this may be a fair summary of the Weinberger case, it does not support plaintiffs position in this case. The underlying purpose of the AFDC program was to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them. Heckler v. Turner, — U.S.-,-, 105 S.Ct. 1138, 1141, 84 L.Ed.2d 138 (1985). In determining need under the AFDC program, the income and benefits available to the AFDC unit, as a total of the income individuals making up the unit, is of critical importance for if the needs of the dependent children and family are being met without AFDC assistance, the underlying purpose of the AFDC program is being met. Thus, the inclusion of OASDI benefits received by a member of an AFDC unit in the income of the AFDC unit is certainly rationally related to the underlying goal of the AFDC program. Further, since both the AFDC and OASDI programs are social welfare programs, the consideration of benefits provided by the OASDI program in determining need under the AFDC program also facilitates the allocation of limited funds available to meet the needs of the American people.

For the foregoing reasons, the State defendants’ Motion to Amend and Alter Judgment and the Motion for Relief from Judgement filed by Third Party defendants are GRANTED. The permanent injunction heretofore issued by this court on November 28, 1984 is DISSOLVED.

SO ORDERED.

      . This case was filed before the Deficit Reducation Act of 1984 was passed and the plaintiff was challenging the policy of the DPW as it was applied to her prior to that time. However, applying the same basic analysis used by the Supreme Court in Heckler v. Turner, - U.S. -, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985) in determining whether the Secretary and thus the Indiana DPW had correctly interpreted Congress' intent with respect to "income” in determining need for AFDC purposes, this court finds that the Deficit Reduction Act of 1984 was clarifying current law, not amending it. Accordingly, the DPW's policy was not in conflict with federal law.


author: LYNCH, District Judge.

text:
    Fern YORK, et al., Plaintiffs, v. CITY OF SAN PABLO, et al., Defendants.
    C-83-3186 EFL.
    United States District Court, N.D. California.
    June 11, 1985.
    Nancy Kramer, Martinez, Cal. Dennis Cunningham, San Francisco, Cal., for plaintiffs.
    Sellar, Hazard, Snyder, Kelly & Fitzgerald, Walnut Creek, Cal., for defendants.
   ORDER RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS

LYNCH, District Judge.

This action involves claims arising out of the death of Steven Thompson, who was shot and killed by a San Pablo police officer in August 1982. The complaint alleges causes of action under state tort law and under 42 U.S.C. section 1983. The defendants’ motions for judgment on the pleadings and for summary judgment were heard by the Court on February 22, 1985. At that time, the Court granted the parties an additional period of time in which to file supplemental factual material relating to the issue of inadequate police training. Having received the supplemental papers from the parties, the Court now rules as follows.

I. Motion for Judgment on the Pleadings

The defendants assert two grounds for granting their motion for judgment on the. pleadings: (1) that the plaintiffs are not proper parties to bring this action and (2) that no section 1983 claim is stated since the decedent was not deprived of any constitutional right. Although the defendants’ argument regarding the capacity of the plaintiffs to bring this lawsuit is well-taken, the Court considers this aspect of the motion moot in light of the plaintiffs’ intention to establish an intestate estate for the deceased and amend their complaint to reflect that the action is being brought by the estate’s administrator. The defendants’ second argument for dismissal, that no constitutional violation has been alleged here due to the availability of post-deprivation tort law remedies, is seriously undercut by the Ninth Circuit’s decision to rehear en banc several recent cases which address this precise issue. See Haygood v. Younger, 729 F.2d 613 (9th Cir.1984). Because no decision has been issued in Haygood, the defendants’ motion for judgment on the pleadings is denied without prejudice.

II. Motion for Summary Judgment by the Defendant-Officers (Hearn, Alforno, and Hamilton)

“[Pjolice officers have a qualified immunity under section 1983 such that they are shielded from liability if they reasonably believe in good faith that their actions are constitutional.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.1981), cert. de nied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982); see also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 78 L.Ed.2d 288 (1967); Gonzales v. City of Peoria, 722 F.2d 468, 479 (9th Cir.1983). In order to prevail against the defendant-officers, the plaintiffs must make two separate showings: (1) that the police officers were not justified in their use of deadly force and (2) that the officers did not reasonably believe in good faith that deadly force was warranted. Smiddy v. Varney, 665 F.2d at 266. The question whether the officers were justified in shooting the decedent is determined by California law, which provides that police officers may use deadly force where the circumstances “reasonably create a fear of death or serious bodily harm to the officer or another.” Kortum v. Alkire, 69 Cal.App.3d 325, 333 (1977). The second issue, whether the officers had a good faith belief in the validity of their conduct, involves a similar inquiry in this case since “good faith” is tested according to the objective reasonableness of the officers’ actions, not their subjective thought processes. Harlow v. Fitzgerald, 457 U.S. 800, 816-19, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 396 (1982).

The Court finds that there is a question of fact as to whether the officers acted lawfully and with an objectively reasonable belief in the validity of their own conduct. Although the essential facts leading up to the shooting are not in dispute, there appears to be some doubt as to whether the decedent’s hand was raised in a shooting position when he was shot by Officer Hearn, and whether the officers could reasonably have believed under these circumstances that they or other persons were in danger. The defendant-officers’ motion for summary judgment is therefore denied.

III. Motion for Summary Judgment by the Municipal and Supervisory Defendants (City of San Pablo, Russell, Sylstra, Verdi, and Miller)

In Monell v. Department of Social Serv. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governmental entities can be held liable under section 1983 for constitutional deprivations that are the result of a governmental custom, policy, ordinance, regulation, or decision, whether or not the policy has been formally approved or adopted. It is clear, however, that the mere right to control employees is an insufficient basis for imposing liability on municipalities or their supervisory personnel. Monell, 436 U.S. at 663-64 n. 7, 98 S.Ct. at 2022 n. 7; Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir.1984); May v. Enomoto, 633 F.2d 164,167 (9th Cir.1980). Instead, there must be independent evidence of a direct causal link between the misconduct of the individual officers and the acts of the defendants. See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

Relying on the teachings of Monell and Rizzo, the vast majority of lower federal courts have rejected simple negligence as the standard for supervisory liability and have required a higher degree of malfeasance, which has been described in various cases as gross negligence, recklessness, or “deliberate indifference.” See Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Annot., 70 A.L.R.Fed. 17 (1984). A recent United States Supreme Court case, City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), suggests that even gross negligence may not be sufficient to meet the “policy” requirement of Monell. The plurality decision in Tuttle explicitly left open the question whether “a more conscious decision on the part of the policymaker would be required.” Id. 105 S.Ct. at 2436 n. 7. The Court nevertheless applies the standard of gross negligence here since it clearly represents the minimum standard for imposing liability on the municipal and supervisory defendants (“City defendants”).

Plaintiffs’ complaint sets forth essentially two theories of liability against the City defendants. First, plaintiffs allege that the City defendants failed to act “firmly, forthrightly, and impartially” in responding to claims of misconduct against members of the San Pablo Police Department (“Department”). The Ninth Circuit appears to have recognized a cause of action for a supervisor’s failure to correct misconduct of which he has notice. See Ybarra, 723 F.2d at 680-81 (citing McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir.1979)). Under this theory, the issue is whether the City defendants either failed to act or acted inadequately in the face of actual or imputed knowledge of a pattern of police misconduct. Recognizing that the standard to be applied is gross negligence, the plaintiff must show that persons in a position of responsibility were so indifferent to prior incidents of misconduct as to tacitly encourage, condone, or acquiesce in such behavior. See, e.g., Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Languirand v. Hayden, 717 F.2d 220 (5th Cir.), reh’g. denied, 721 F.2d 819 (1983), cert. denied, — U.S. -, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984); Salinas v. Breier, 695 F.2d 1073 (7th Cir.1982), cert. denied, 464 U.S. 835, 104 S.Ct. 119, 78 L.Ed.2d 118 (1983); McClelland v. Facteau, 610 F.2d at 697, Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978).

In this case, the evidence relating to whether there has been official acquiescence in police misconduct is straightforward and undisputed. Between January 1, 1978 and August 14, 1982, the date of the Thompson shooting, the Department re- • ceived six complaints alleging that members of the Department had used excessive force and seven complaints about conduct other than the use of force. In addition, there were five occasions during this period of time where a San Pablo Police Officer discharged his firearm, including the incident complained of here. All of these matters were treated in accordance with the Department’s formal complaint procedures. (City of San Pablo Police Department, Departmental Order # 6, Rev. Mar. 1981). These procedures provide that all officer-involved shootings and citizen complaints of misconduct are to be investigated by a supervisor in the Department, who then submits a written report to the Division Commander for a recommendation as to whether disciplinary action is warranted, and ultimately to the Chief of Police for final disposition.

Reviewing the record of complaints and the Department's personnel investigation procedures in the light most favorable to plaintiffs, the Court is unable to find any evidence that would tend to support plaintiffs’ allegation that the Department had a policy of ignoring or condoning police misconduct. The summaries of the investigation reports provided by the parties do not indicate any systematic pattern of police misconduct or violence. (Mankamyer Deck in Support of Defendants’ Motion for Summary Judgment; Aff. of Nancy A. Kramer in Support of Plaintiffs’ Supplemental Opposition to Motion for Summary Judgment). On the contrary, the incidents appear to be discrete occurrences involving several different officers. Disciplinary action was taken in four of the misconduct/excessive force cases, and although no further action was taken in any of the police shootings, the facts of those cases indicate that the officers were justified in their use of firearms.

In response to this evidence, the plaintiffs offer nothing more than argument. A policy of acquiescing in misconduct cannot be inferred from the Thompson incident itself. Tuttle, 105 S.Ct. at 2436; Ybarra, 723 F.2d at 681; McClelland, 610 F.2d at 697. The plaintiffs do not charge that the complaints received by the Department constitute an unusually large number for a city the size of San Pablo. Nor do the plaintiffs present any independent evidence to indicate that the Department’s investigation policy is a sham, cf. Popow v. City of Margate, 476 F.Supp. 1237, 1247 (D.N.J.1979) (question of fact created by non-existence of departmental investigation procedure), or that there were unreported acts of misconduct known by the police hierarchy, cf. McClelland, 610 F.2d at 697 (question of fact created by widespread and credible publicity of police misconduct). Under these circumstances, the Court must grant summary judgment as to this theory of liability in favor of the defendants.

The second general theory of liability against the City defendants is based on the Department’s failure to ensure that its officers were adequately trained. See Ybarra, 723 F.2d at 680-81; McClelland, 610 F.2d at 696. As with the failure to exercise proper supervision and discipline, the plaintiffs must show gross negligence amounting to the creation of a de facto policy of inadequate training. See, e.g., Languirand v. Hayden, 717 F.2d at 227-28; Lenard v. Argento, 699 F.2d 874 (7th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983); Harlee v. Hagen, 538 F.Supp. 389 (E.D.N.Y.1982); Cattan v. New York, 523 F.Supp. 598 (S.D.N.Y.1981).

In support of their motion for summary judgment on this theory, the defendants have provided uncontroverted evidence regarding the qualifications and training required for members of the Department. Pursuant to the Department’s established policy, all new officers are first required to pass a physical examination and an extensive background and character check. The officers are then assigned to a law enforcement academy, as required by state law, which they attend full-time for approximately four months. (Sylstra Depo. at 9-11.) Officer Hearn successfully completed his basic police academy course at Los Medaños College, which is certified as an accredited police training center by the Commission on Peace Officer Standards and Training of the State of California. (Glen-non Deck, 11 8). While at the academy, Officer Hearn received the basic training required of all police officers in the State of California, including instruction in the use of deadly force. (Tamborski Deck). The other officers at the scene of the Thompson shooting also received the necessary training required by state law. (Glennon Deck, ¶ 12). In addition, the uncontradicted deposition testimony of the San Pablo Police Chief shows that members of the Department receive twelve weeks of field training following their graduation from the academy, and work under the supervision of an experienced officer for the first two months on the job. (Sylstra Depo. at 9-11.) Furthermore, there is recurrent training, both formal and informal, for all experienced officers under the supervision of a training manager or coordinator. (Sylstra Depo. at 7-8.) The Department’s policy with respect to the use of deadly force is set forth in a written bulletin, with which all of the officers were familiar. (Hamilton Depo. at 46).

Where, as here, a party has provided sufficient evidence to support a motion for summary judgment, it is incumbent upon the party opposing the motion to come forward with specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). In this case, the only evidence offered by the plaintiffs to disprove the defendants’ assertion that competent training was provided to members of the San Pablo Police Department is the declaration of Frank Saunders. Although Mr. Saunders makes various comments about the training received by the officers involved in the Thompson shooting, Mr. Saunders concedes that those comments do not reflect his own personal knowledge, but rather are derived exclusively from his evaluation of the circumstances surrounding the Thompson shooting. (Saunders Depo. at 93.) It is well-established, however, that reference to a single incident of misconduct is not sufficient to raise an issue of fact as to a policy or custom of inadequate training. Tuttle, 105 S.Ct. at 2436; Ybarra, 723 F.2d at 681. Summary judgment is therefore granted on this theory as to all claims against the City defendants.

IT IS SO ORDERED.

      . The parties agree that the police received reports of someone "acting crazy” and shooting a gun, that the decedent was told to drop his gun and exit the house, that the decedent came out of the house with a gun in his hand and did not drop the gun when commanded to do so by the officers.

        . Although the coroner is of the opinion that the decedent’s arm was in a horizontal position at the time of the shooting, this conclusion is contradicted by the accounts of several eyewitnesses. There also appear to be some inconsistencies in the statements of Officers Hearn and Alforno regarding whether the deceased advanced towards them and whether the deceased was carrying the gun in his right or left hand.

      . Although the Court might otherwise be inclined to find the officers’ conduct reasonable in this situation, especially in light of the fact that the decedent was carrying a gun and disregarding the commands of the police, the affidavit of Frank Saunders, plaintiffs’ expert witness, creates a sufficient question of fact to warrant presenting this issue to the jury.

      . These incidents occurred on 8/28/78, 9/4/78, 9/25/78, 3/12/79, 5/24/80, and 5/9/81 (Mankamyer Dec!.).

      . These incidents occurred on 6/8/80, 6/27/80, 10/24/80, 2/8/81, 10/14/81, 12/8/81, and 2/11/82 (Mankamyer Deck).

      . These incidents occurred on 10/18/80, 11/1/80, 12/13/80, 3/4/81, and 8/14/82 (Mankamyer Deck).

      . Although plaintiffs’ complaint sets forth their inadequate training allegation in four separate causes of action, all of the claims relate to the general notion that the Department failed to train the officers to deal with the situation that arose in this case.


author: BUNTON, District Judge.

text:
    COLORADO INTERSTATE GAS COMPANY v. HUFO OILS, Lynn S. Hunt and Carl C. Foulds.
    No. MO-84-CA-58.
    United States District Court, W.D. Texas, Midland-Odessa Division.
    June 20, 1985.

      Michael Beatty, James Fisher, Wm. Gerner, Jr., Colorado Springs, Colo., James Austin Fisher, Dallas, Tex., W.O. Shafer, Odessa, Tex., for plaintiff.
    Ivan Hasley, Austin, Tex., Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, Tex., for defendant.
   MEMORANDUM OPINION AND ORDER

BUNTON, District Judge.

Before the Court is Plaintiff COLORADO INTERSTATE GAS COMPANY’S (CIG) motion, pursuant to Rule 56, Federal Rules of Civil Procedure, for summary judgment. After reviewing the pleadings filed herein and the relevant legal authorities, and hearing arguments of counsel, the Court is of the firm opinion that, considered in a light most favorable to Defendants HUFO OILS, LYNN S. HUNT AND CARL C. FOULDS, (collectively referred to as HUFO), there exists no genuine issue of material fact and that CIG is entitled to judgment as a matter of law. Galindo v. Precision American Corporation, 754 F.2d 1212 (5th Cir.1985).

I.

On June 15, 1928, Amarillo Oil Company (Amarillo) assigned to Canadian River Gas Company (Canadian) all “gas, gas rights, and gas privileges” under ten oil and gas leases, dated from 1916 to 1928, on land owned by Lee Bivins. Amarillo retained the oil rights under the ten Bivins leases, which were eventually released and reverted to the descendants of Lee Bivins (the Bivins Interests).

On May 1, 1939, a Consolidated Lease Agreement was entered into between Canadian and the Bivins Interests which consolidated the gas rights previously conveyed to Canadian and, in addition, conveyed gas and gas rights to another 6,320.7 acres of land. Approximately ten years later, on August 18, 1949, Canadian and the Bivins Interests entered into an Operating Agreement. By its terms, this Operating Agreement set forth the parties’ “respective rights and obligations in connection with future operations for the production of oil and gas to be conducted upon the premises covered by said consolidated lease agreement.”

In 1951 Canadian merged with CIG and all of Canadian’s rights under the 1939 Consolidated Lease and the Operating Agreement were assigned to CIG. On October 22, 1954, CIG and the Bivins Interests executed an agreement styled “New Consolidated Lease” which was to apply to, inter alia, the acreage subject to the 1939 Consolidated Lease. This 1954 New Consolidated Lease superseded the 1939 Consolidated Lease.

On June 28, 1983, the Bivins Interests granted an “Oil and Casinghead Gas Lease” to HUFO on the following lands: Sections 14, 15, 16, 17, 29, 30, 31, 32 and 35, Block M-20, G & M Survey, Potter County, Texas. These lands are within the geographical scope of the Operating Agreement.

HUFO’s Oil and Casinghead Gas Lease states in part:

The oil and casinghead gas and oil and casinghead gas rights in certain of the lands described in this lease are subject to the provisions of the instrument styled “Operating Agreement” dated August 18, 1949, recorded in Volume 1365, page 883, Deed Records of Potter County, Texas, entered in between Mary E. Bivins, et al, as “Oil Operator,” and Canadian River Gas Company, as “Gas Operator.”
The rights and privileges granted to Lessee and the obligations imposed upon Lessee herein are and shall be subject to the provisions of said Operating Agreement insofar as it relates to any given tract of land which is described therein and in this lease, and Lessee agrees to be bound by and to assume the obligations imposed upon the Oil Operator in said Operating Agreement as to each such tract of land just as though Lessee had been named as the Oil Operator therein rather than Mary E. Bivins, et al, and Lessee shall succeed to benefits accorded to Mary E. Bivins, et al, in said Operating Agreement insofar as they relate to each such tract of land.

On or about August 31, 1983, HUFO applied to the Texas Railroad Commission for permission to drill eight wells on Section 32, Block M-20, G & M Survey, Potter County, Texas. CIG owns and operates a gas well on this same section of land.

Subsequent to HUFO’s application to the Texas Railroad Commission, Cabot Pipeline Corporation (Cabot) offered to purchase HUFO’s future casinghead gas production on the Oil and Casinghead Gas Lease acreage. The terms of the offer were embodied in a document styled “Draft — Gas Purchase Contract.”

Under the terms of the Operating Agreement, however, CIG had a right of first refusal on casinghead gas production from HUFO. Specifically, CIG’s rights are outlined in the Operating Agreement as follows:

In the event Oil Operator shall at any time, and from time to time, receive, and desire to accept, a bona fide offer to purchase all or any part of its casinghead gas production from lands covered hereby, for ultimate consumption outside of the Texas Panhandle gas field, Oil Operator shall notify Gas Operator, in writing, of all the terms and conditions of such offer, and for a period of thirty (30) days after receipt of such notice, Gas Operator shall have, and Oil Operator hereby grants to Gas Operator, the right, privilege and option to purchase such casing-head gas upon the terms and conditions of the offer as set forth in the notice. If Gas Operator shall refuse or fail to exercise such optional right within the period specified, then Oil Operator shall be privileged to accept the original offer in accordance with the terms and conditions specified in the notice to Gas Operator.

HUFO, rather than providing CIG with the first right of refusal, asked Cabot to revise its proposal. Cabot was asked by HUFO to change the following sentence in its proposal:

The gas shall be delivered without prior processing for production extraction except that Seller may extract by use of lease separator a maximum of .42 gallons of heavy hydrocarbon liquids per MCF to maintain the gas-oil ratio of each lease.

HUFO changed the words “lease separator” to “lease separator or LTX unit” and changed the maximum liquid production from “.42 gallons per MCF” to “.63 gallons per MCF.”

Cabot agreed to the changes proposed by HUFO. Accordingly, Cabot and HUFO executed a document styled “Casinghead Gas Purchase and Processing Agreement” dated November 18, 1983. Thereafter, on or about November 23, 1983, CIG received a letter from HUFO, together with an executed copy of the “Casinghead Gas Purchase and Processing Agreement” between HUFO and Cabot. This letter stated that CIG

... shall have in accordance with said paragraph 11 [of the Operating Agreement], thirty (30) days from receipt of this notice in which to exercise your option to purchase the casinghead gas production from Hufo Oils’ lease on the same terms and conditions as set forth in the enclosed offer.

CIG responded to HUFO’s offer by sending a letter dated December 22, 1983, stating:

Please be advised that Colorado Interstate Gas Company hereby accepts your offer to sell “casinghead gas” (as “casinghead” gas is defined in Paragraph 10 of the Operating Agreement) from the above-described acreage only, under the terms of the Cabot Agreement to the extent the terms of the Cabot Agreement are not violative of the provisions of the August 18, 1949, Operating Agreement or the laws, rules or regulations of any governmental agency having jurisdiction herein. For example, the use of gas processing units such as LTX units to maintain or adjust a well’s gas/oil ratio is not permitted by the Operating Agreement.

HUFO responded to CIG’s letter of December 22,1983 by letter dated January 24, 1984, stating:

The Operating Agreement does not prohibit the use of gas processing units. Your letter of December 22, 1983 is a rejection of the above-referenced agreement. Hufo Oils declines to accept your counteroffer as set forth in said letter.

CIG contends that HUFO’s offer violates Paragraph 10 of the Operating Agreement in that it allows HUFO to operate wells which are “gas wells” under the Texas statutes of 1949. CIG further contends that HUFO’s offer violated paragraph 11 of the Operating Agreement by allowing HUFO to sell that portion of the gas which is condensed to the liquid phase to third persons without first offering it to CIG as gas. CIG also contends that HUFO’s offer violated paragraph 11 in that the offer was an executed, already effective contract with a third person. Finally, CIG contends that it accepted HUFO’s offer to the extent that the offer did not violate the Operating Agreement.

HUFO contends that the Texas statutes of 1949 permitted the liquid product of an LTX unit to be counted as crude petroleum oil for well classification purposes, and so its offer did not contemplate operation of “gas wells” in violation of the Operating Agreement. HUFO further contends that CIG rejected its offer and that it complied with paragraph 11 of the Operating Agreement in all respects.

II.

HUFO contends that, because there has been no oil or casinghead gas production on any acreage subject to HUFO’s Oil and Casinghead Gas Lease, there lacks a justiciable controversy and this cause should be dismissed for lack of subject matter jurisdiction. CIG responds that HUFO’s contention is “ludicrous.”

CIG has asked this Court for a declaratory judgment on the dispute of whether a contract for the sale of gas was formed by CIG and HUFO in December, 1983 and whether certain terms of that contract are illegal. More specifically, CIG has sued for a declaration that HUFO’s offer of first refusal was invalid under the Operating Agreement and, alternatively, that there is a contract between HUFO and CIG for the sale of casinghead gas.

The Court is of the opinion that subject matter jurisdiction exists and that CIG has presented for resolution a justiciable controversy. Simply because there has been no actual production does not create the lack of a justiciable issue; before the Court are issues of whether contract rights have been created between HUFO and CIG.

In Haider v. Standard Oil Company, 642 F.2d 107 (5th Cir.1981), a service station dealer/lessee asked the Court to declare what rights he would have against the lessor if the State of Georgia condemned the land subject to the lease. In American F & C Company v. Pennsylvania T & F Mutual Cas. Ins. Company, 280 F.2d 453 (5th Cir.1960), the insurer of the owner of a truck asked the Court to declare what liability it would incur if a person injured in a truck accident prevailed in an entirely separate lawsuit against the driver of the truck. Likewise, in Coffman v. Breeze Corporation, 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264 (1945), the holder of a patent sued his licensees to enjoin them from paying royalties to the government under the Royalty Adjustment Act, and attacking the constitutionality of the Act. The patent owner, however, asserted no claim to the royalties themselves and, in addition, the defendants did not contest the constitutionality of the Act. In these cases, plaintiffs sought judicial determination of whether rights would exist under certain continencies outside the scope of the contract and beyond the control of the parties. Here, CIG alleges a present, vested right to purchase whatever gas HUFO produces.

III.

HUFO also contends that the Court lacks subject matter jurisdiction because this case falls within the primary jurisdiction of the Texas Railroad Commission. The Court disagrees.

The Court notes that this cause is in no way related to Railroad Commission rules and regulations. Rather, CIG is requesting of the Court a declaration of the rights and obligations of the parties to a contract. The fact that a provision in the contract contains a term which is defined by Texas statutes as they existed in 1949 does not provide any basis for this Court to abstain from deciding the contractual questions. Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946) (mere fact that federal court, in the exercise of its jurisdiction is required to interpret state law is an insufficient reason to withhold relief to Plaintiff).

Moreover, there is no reason for abstention where the statutory provisions to be interpreted are plain and unambiguous. County of Allegheny v. Frank Mashuda Company, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roloff Evangelistic Enterprises, Inc. v. State of Texas, 556 S.W.2d 856 (Tex.Civ.App. — Austin 1977, writ refd n.r. e.). The applicable statutes presented here are plain and unambiguous and are easily capable of interpretation. Indeed, the same statutes have previously been interpreted by this Court in Clymore Production Company v. Thompson, 13 F.Supp. 469 (W.D.Tex.1936).

In Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Supreme Court indicated that abstention was proper if: (1) there exists an unsettled issue of state law; and (2) there exists a possibility that the state law determination will moot any federal constitutional question raised in the federal proceeding. Here, the Court is of the opinion that CIG’s claims involve only matters of private contract rights; action of the Railroad Commission cannot serve to moot any of these issues. Moreover, the Court is not convinced that the issues involved in this case involve unsettled issues of state law. There exists simply a matter of interpretation of state law defining “oil well” and “gas well.” This, the Court has previously done in Clymore, supra. Likewise, there is no federal “constitutional” question presented here which is in substantial danger of being mooted by Railroad Commission action.

Abstention is also proper where a case presents an issue of state law such that the state has an overriding interest in having the first opportunity to consider it and the state provides a unified method of formulating policy and determining cases. Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In Burford, Justice Black stated:

New public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies, ... These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary ...

Id. at 332, 63 S.Ct. at 1106, citing Pullman, supra.

While certainly desirous of not invading the state province in determining matters of state law, the Court notes that no action of the Railroad Commission will be dispositive of the contractual rights in dispute among the parties. As CIG notes, not only are the contract issues not before the Railroad Commission, but the Commission is without jurisdiction to determine any such contractual disputes. Because the State of Texas has no overriding interest in the determination of what this Court considers to be a private dispute between HUFO and CIG, the Court finds the principals outlined in Burford to be inapplicable.

The Supreme Court has held that abstention is also proper if there is a state court proceeding pending in which the controversy between the parties can be resolved and “exceptional circumstances” exist. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (“[abstention from the exercise of federal jurisdiction is the exception, not the rule”). As has previously been stated, any Railroad Commission action will not be dispositive of CIG’s dispute over its contract rights under the Operating Agreement. Abstention by this Court would not have the effect of avoiding “piecemeal” litigation.

In light of the relevant legal authorities and policy considerations, the Court does not feel that this is a proper case for abstention. Likewise, the Court cannot conclude that this is such a case that requires referral to an administrative body such as Railroad Commission on the grounds of primary jurisdiction.

“The doctrine of primary jurisdiction ‘is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.’ ” Nader v. Allegheny Airlines, 426 U.S. 290, 303, 96 S.Ct. 1978, 1986, 48 L.Ed.2d 643 (1976) citing United States v. Western Pacific R. Company, 352 U.S. 59, 63, 77 S.Ct. 161, 164, 1 L.Ed.2d 126 (1956).

Because the dispute among these parties involve only legal issues, referral to the Railroad Commission would be, in the opinion of this Court, inappropriate.

If, as CIG contends, the 1949 statutes forbid counting natural gas as crude petroleum oil, then there is nothing the Commission can do to change that rule of law. There exists no need for the Railroad Commission’s technical expertise in determining the claims of the parties.

In summarizing this already overly lengthy discussion on primary jurisdiction, suffice it to say that this Court concludes that reference to the Railroad Commission would serve only to further delay the resolution of this matter. Indeed, HUFO, by instituting its own legal action in Moore County state court at least impliedly believes that reference to the Railroad Commission is inappropriate. The Railroad Commission has not the authority nor the jurisdiction to resolve what the Court considers to be a private-contractual matter between CIG and HUFO.

IV.

The parties to the 1949 Operating Agreement agreed that the Oil Operator would not operate any well which was a “gas well” as then defined by Texas law. The Court proceeds with an examination of what is concededly scant authority on the matter.

The definitions of “oil well” and “gas well” were found in Article 6008 of the Civil Statutes (now § 86 of the Texas Natural Resources Code).

Section 2(j) of Article 6008 provides that the liquids manufactured from casinghead or any natural gas are classified as “natural gasoline” — not oil. The statutory definitions of “gas well” and “oil well” make no reference to “natural gasoline;” instead, what determines well classification is the amount of “crude petroleum oil” produced.

Section 2 of Article 6008 stated:

(d) The term “gas well” is any well (a) which produces natural gas not associated or blended with crude petroleum oil at the time of production, or (b) which produces more than one hundred thousand (100,000) cubic feet of natural gas to each barrel of crude petroleum oil from the same producing horizon, or (c) which produces natural gas from a formation or producing horizon producive of gas only encountered in a well bore through which crude petroleum oil also is produced through the inside of another string of casing.
(e) The term “oil well” is any well which produces one (1) barrel or more of crude petroleum oil to each one hundred thousand (100,000) cubic feet of natural gas.

The inescapable conclusion from the applicable statutes is that the classification of wells cannot be changed by post-production processing in an LTX unit. Section 2(d)(a) provides “[t]he term ‘gas well’ is any well ... which produces natural gas not associated or blended with crude petroleum oil at the time of production ...” (emphasis supplied). The Court agrees with CIG that, under this provision, if gas could become “crude petroleum oil” by condensation in an LTX unit, then all gas would be “associated or blended with crude petroleum oil at the time or production” and there would exist no gas wells under § 2(d)(a).

Similarly, §§ 2(d)(b) and (d)(c) distinguished wells in which oil is produced from the same “horizon” as gas. If hydrocarbons produced in the gaseous phase could be deemed “crude petroleum oil,” then there likewise would exist no gas wells under §§ 2(d)(b) and (d)(c). There would be no horizons productive of gas only and every well could be made to produce the requisite barrel of oil for each 100,000 cubic feet of gas.

The determination of whether a particular hydrocarbon is labeled “oil” or “gas” is determined at the time of production.

In Clymore Production Company v. Thompson, supra, oil operators had erected separators which extracted heavy hydrocarbon liquids from the gas produced by the purported “oil wells.” The Texas Railroad Commission had ruled that the liquid caught in the separators was not “crude petroleum oil” within the meaning of the regulatory statutes. The Clymore Court agreed with the Railroad Commission’s statutory interpretation:

It is our opinion from the evidence that complainant’s wells do not produce any crude petroleum oil in the statutory sense of that term. They produce wet gas, which when acted upon by the baffleplates in the separator, causes a distillate which complainants claim is oil. It is only by the most strained and technical construction that wells of this character could be classified as oil wells. The statutes must be given a reasonable construction and construed with the view of effecting the legislative intent valid. We think it perfectly obvious that the statutory definition of an oil well was never intended to cover wells of this character which normally produces gas and can only be made to produce oil by the use of manufacturing processes, however, crude, at the head of the well ... [TJhere enters into the definition of crude oil in the applicable statutes the proposition that the substance referred to should lie in the bed or reservoir as oil and as oil be produced from it. It was certainly never intended to cover distillates such as those . involved here when the statute speaks of the production of crude petroleum oil.

Id. at 470. (Emphasis supplied)

The Texas statutes interpreted by the Clymore court are the same statutes which define “gas well” for purposes of Paragraph 11 of the Operating Agreement. These statutes clearly state that natural gas liquids are not to be counted as crude petroleum oil in well classification.

V.

Having determined that the parties to the Operating Agreement are bound by the 1949 statutory definition of “gas well,” the Court concludes that liquids condensed from a stream of natural gas by an LTX unit may not be counted as “crude petroleum oil” in order to classify wells as “oil wells” instead of “gas wells.”

The Court also finds that HUFO’s offer to sell casinghead gas to CIG violated Paragraph 10 of the August 18, 1949 Operating Agreement in that it authorized HUFO to operate “gas wells” as defined by the statutes of the State of Texas as they existed in 1949. Further, HUFO’s offer to sell casinghead gas to CIG violated Paragraph 11 of the Operating Agreement in that it allowed HUFO to sell a portion of its casinghead gas production to parties other than CIG by condensing that gas to the liquid phase and selling it as such.

Summary Judgment is hereby entered in favor of Plaintiff COLORADO INTERSTATE GAS COMPANY in accordance with this Memorandum Opinion and Order.

Costs are hereby assessed against Defendants HUFO OILS, LYNN S. HUNT and CARL C. FOULDS, jointly and severally, for which execution may issue if not timely paid.

IT IS SO ORDERED.

      . The Operating Agreement states in paragraph 10:
      For the purpose of this agreement, the term “casinghead gas” shall mean any gas and/or

        oil vapor indigenous to an oil stratum and produced with commercial and paying quantities of oil from the same stratum, and shall be considered as part of the oil and oil rights.

        •¡t »V * Vf * *
      Notwithstanding the above and foregoing definition of "casinghead gas,” or any other provision in this agreement, it is understood that Oil Operator shall not produce, but shall plug and abandon or shut in, any well drilled or operated by Oil Operator which may produce both oil and casinghead gas in proportions which come within the classifications of a “gas well" as now defined by the statutes of the State of Texas.
      The geographic scope of the Operating Agreement is defined by the following sentence found on page 3:
      The terms and provisions of this agreement shall cover and relate to all of the lands described in Exhibit "B” of said [1939 consolidated] lease agreement (as changed as hereinabove set out), and likewise all lands described in Exhibit “A" of said consolidated lease agreement, in which oil leasehold [sic] the rights heretofore granted by Oil Operator have been or may be hereafter, from time to time, terminated and re-vested in Oil Operator.
      The duration of the Operating Agreement is defined by the following sentence found on page 3:
      The term of this agreement shall be coextensive with the term of said consolidated lease agreement; provided, however, that upon termination of said Consolidated Lease Agreement as to a portion of the lands covered thereby, through surrender, release or other cause, such land or lands henceforth shall be excluded from the terms and provisions of this Agreement.

      . The New Consolidated Lease states that it "... is and shall be accepted as wholly valid and in good standing with no unfulfilled obligations or claims or demands whatsoever outstanding as of January 1, 1954.”
      No party which executed the 1954 New Consolidated Lease has ever asserted or suggested that the Operating Agreement was terminated in 1954 by the New Consolidated Lease. Indeed, the Bivins interests cited, enforced, recorded and endeavored to comply with the Operating Agreement after 1954.

      . The Operating Agreement provides as follows: Nothing herein contained shall, or shall be construed to, limit or restrict Oil Operator’s right at any time, and from time to time, to lease to others all or any part of the premises covered by said Consolidated Lease Agreement for the production of oil, provided that any such lease shall be subject to, and shall obligate the lessee to faithfully perform all of the terms and provisions of this agreement insofar as they [sic] relate to and cover lands embraced within such lease.

      . The term “LTX” is an acronym for "low temperature extraction," describing gas processing units which cause hydrocarbons to condense or liquefy in a gas stream by refrigeration to temperatures below zero degrees Fahrenheit.

      . The ratio of 0.63 gallons per MCF is equal to 1.5 barrels per 100,000 cubic feet.
      The term "MCF" is a unit of gas volume. Thus, the hydrocarbons which HUFO reserved the right to process in an LTX unit are in the gaseous phase when they are obtained at the surface of the well from which they are produced.

      . The Court notes that after CIG filed this action, HUFO filed a declaratory judgment action in state court against CIG in Dumas, Texas, raising many of the same issues present here. In its petition, HUFO alleged that "[t]his exchange of correspondence evidences a genuine dispute and actual controversy among the parties as to their respective rights and as to the proper construction of the New Consolidated Lease and the 1949 Operating Agreement." Plaintiff's Original Petition, filed May 7, 1984, Case No. 84-43, 69th Judicial District, Moore County, Texas, at page 4.

      . As CIG points out, if oil and gas were not mutually exclusive the ratio of oil to gas established in §§ 2(d)(b) and 2(e) would be a meaningless criterion for well classification. Operators could determine their own wells’ classification simply by the operation of LTX units at the surface. Pure gas wells could be transformed into "oil” wells (0.63 gallons per MCF equals 1.5 barrels per 100,000 cubic feet — more than enough liquid to classify the well as an oil well and qualify for the benefits of that status).

      . The term "gas well” is any well (a) which produces natural gas not associated or blended with crude petroleum oil at the time or production, or (b) which produces more than one hundred thousand (100,000) cubic feet of natural gas to each barrel of crude petroleum oil from the same producing horizon, or (c) which produces natural gas from a formation or producing horizon productive of gas only encountered in a well bore through which crude petroleum oil also is produced through the inside of another string of casing. Art. 6008 § 2(d).