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EQUITABLE GAS COMPANY v. COMMONWEALTH PENNSYLVANIA (02/04/86)

decided: February 4, 1986.

EQUITABLE GAS COMPANY, A DIVISION OF EQUITABLE RESOURCES, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION ET AL., RESPONDENTS



Original Jurisdiction in the case of Equitable Gas Company, a division of Equitable Resources, Inc. v. Pennsylvania Department of Transportation, Thomas D. Larson, Dane Baird Investments, Inc., PFP Pipeline Company, Guardian Industries Corporation, Dane Baird, and J.W. Wells Acquisition Corp.

COUNSEL

Dennis J. Lewis, with him, George E. Yokitis and Robert M. Lucas, Alder, Cohen & Grigsby, P.C., and Carroll F. Purdy, with him, Charles E. Thomas, Thomas & Thomas, and Of Counsel: Lawrence B. Nydes, for petitioner.

Michael H. Kline, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, for respondents, Pennsylvania Department of Transportation and Thomas D. Larson.

Craig A. Doll, for respondents, Dane Baird Investments, Inc., and PFP Pipeline Company.

Norman James Kennard, with him, Richard J. Gmerek, Tucker Arensberg, P.C., for respondents, Guardian Industries Corporation and J. W. Wells Acquisition Corp.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 94 Pa. Commw. Page 593]

Defendants, the Pennsylvania Department of Transportation (DOT), DOT Secretary Thomas D. Larson (Secretary), Dane Baird Investments (DBI), Dane Baird (Dane Baird), PFP Pipeline Co. (PFP), Guardian Industries Corp. (Guardian), and J. W. Wells Acquisition Corp. (J. W. Wells), have filed preliminary objections in the nature of a motion to dismiss a petition for review filed by Equitable Gas Co. (petitioner). The petition seeks equitable and mandamus relief invalidating a highway occupancy permit issued by the DOT to defendants PFP, Guardian, and J. W. Wells on the grounds that it was not issued in accordance with Section 411 of the State Highway Law,*fn1 and the regulations promulgated thereunder.*fn2

Petitioner, a natural gas supplier whose largest customer in percentage sales is Guardian's glass making facility in Western Pennsylvania, ultimately seeks by this action to halt construction of a three-mile natural gas pipeline being built by J. W. Wells, contractor for Guardian, along the permit path. The pipeline would bring gas on stream to Guardian's facility from Carnegie Natural Gas Co., a competitor of petitioner not a party to this action. The loss of Guardian's business as a result of the new gas flow from Carnegie is the harm alleged by petitioner as a basis for this action.

Guardian first employed PFP, an entity owned by Dane Baird and DBI, to build the pipeline. In order to commence construction, Dane Baird and PFP first had to seek a highway occupancy permit as per the

[ 94 Pa. Commw. Page 594]

    applicable DOT regulations.*fn3 The application was made in late September of 1984 and the permit granted in early November of 1984. In February of 1985, Dane Baird and PFP transferred the permit to Guardian, who thereafter reassigned it to J. W. Wells. DOT approved these transactions in May of 1985.

Petitioner contends that the permit was not issued in accordance with the applicable statute and DOT regulations and further argues that it will be irreparably harmed if the pipeline is completed and gas flows from Carnegie to Guardian, since Guardian is its biggest customer. After two days of hearings during which testimony, exhibits, and arguments of both sides were ...


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