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COLONIAL PIPELINE COMPANY PENNSYLVANIA v. PEERY ET AL. (04/23/69)

decided: April 23, 1969.

COLONIAL PIPELINE COMPANY OF PENNSYLVANIA
v.
PEERY ET AL., APPELLANTS



Appeals from orders of Court of Common Pleas of Chester County, Nos. 233 and 234 of 1967 Term, in cases of Colonial Pipeline Company of Pennsylvania v. Luther C. Peery et ux.; and Same v. Frederic A. Lang et ux.

COUNSEL

David F. Binder, with him Fred T. Cadmus, III, and Bennett, Bricklin & Saltzburg, for appellants.

M. Carton Dittmann, Jr., with him Peter Platten, Robert S. Gawthrop, Jr., Jack Vickrey, Howard D. McCloud, and Ballard, Spahr, Andrews & Ingersoll, and Gawthrop & Greenwood, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result.

Author: Eagen

[ 434 Pa. Page 245]

Colonial Pipeline Company of Pennsylvania (Colonial) is a wholly owned subsidiary of the Colonial Pipeline Company. In November 1962, the Pennsylvania Public Utility Commission granted to Colonial a Certificate of Public Convenience authorizing Colonial to acquire rights of way across tracts of land located in Chester County so that it might extend its

[ 434 Pa. Page 246]

    pipelines into Pennsylvania. Colonial, after unsuccessfully negotiating with the appellants in an attempt to acquire rights of way over their land, tendered to the appellants condemnation bonds which were refused. Thereafter the Common Pleas Court of Chester County, upon Colonial's petition, approved the bonds;*fn1 the appellants did not, at that time, file exceptions to Colonial's petition, nor did they contest Colonial's right to exercise powers of eminent domain.

After the bonds were approved, the pipeline was, in 1964, constructed across the appellants' land, and has remained in operation ever since.*fn2

When in November of 1967, the appellants had still not petitioned the court to appoint a Jury of View to assess damages resulting from Colonial's appropriation of the rights of way; and when, at that time, the appellants had not yet contested the exercise of the right of eminent domain in the condemnation proceedings; -- then Colonial petitioned the Common Pleas Court of Chester County to appoint a Jury of View. This the court did. The appellants then petitioned the court to revoke the appointment of the Jury of View on the ground that Colonial was not authorized by law to exercise the right of eminent domain over the land.

In orders dated September 5, 1968, and September 6, 1968, the court refused the appellants' motions. From those orders, these appeals are taken.

[ 434 Pa. Page 247]

Colonial has presented motions to quash the appeals. It argues, inter alia, that the orders are interlocutory, and not appealable. The appellants, in their Statement of Jurisdiction, contend that this court has jurisdiction to hear the appeals pursuant to the Act of March 5, 1925, P. L. 23, 12 P.S. ยง 672, which ...


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