Appeal from the Order of the Court of Common Pleas of Indiana County, in the cases of In Re: Condemnation by T.W. Phillips Gas and Oil Co. v. Kovalchick Salvage Company and W. C. Leasure, No. 350 C.D. 1987, and In Re: Condemnation by T.W. Phillips Gas and Oil Co. v. William C. Vernocy and Mary Irene Vernocy, No. 369 C.D. 1987.
Robert S. Bell, with him, John P. Merlo, Merlo & Bell, for appellants, William C. Vernocy and Mary Irene Vernocy.
Michael Handler, for appellant, W. C. Leasure.
Walter A. Bunt, Jr., with him, Bruce Wiegand and Nancy L. Krzton, Kirkpatrick & Lockhart, and Michael S. Delaney, Delaney & Delaney, for appellee, T.W. Phillips Gas and Oil Company.
Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.
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In these consolidated appeals, landowners/condemnees W. C. Leasure (at No. 1627 C.D. 1987) and William C. Vernocy and his wife, Mary Irene Vernocy (at No. 1287 C.D. 1987) appeal orders of the Court of Common Pleas of Indiana County which approved a bond of T.W. Phillips Gas and Oil Co., the condemnor.
The condemnor is a regulated natural gas utility company. It signed a contract with Indiana University of Pennsylvania (IUP) to provide natural gas to a cogeneration plant being constructed by IUP. The plant would
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provide heat and power for all of IUP's facilities. To provide the natural gas, the condemnor had to construct a pipeline approximately ten miles long. When negotiations with the landowners concerning the price for the eighteen foot wide right of way proved fruitless, the condemnor filed a petition for approval of a bond. The landowners filed various preliminary objections. Following a consolidated hearing involving these appellants and other landowners who did not appeal, the trial court dismissed the preliminary objections and approved the bond.
Section 322 of the Business Corporation Law, Act of May 5, 1933, P.L. 364, added by the Act of August 27, 1963, P.L. 1381, as amended, 15 P.S. § 1322 (Supp. 1987), clothes a natural gas company with the power of eminent domain. It has been clear, however, that whenever the power of eminent domain is exercised, whether by private corporations with authorization of the Legislature or by governmental entities, this power may be exercised only for a public use. Pa. Const. art. 1, § 10; Allegheny County v. Frank Mashuda Co., 360 U.S. 185 (1959).
The landowners argue that since the land acquired here is for the benefit solely of IUP, no public purpose is served and the condemnation is not permitted under law. In support of this argument, the landowners cite Fayette County Gas Company v. Pennsylvania Public Utility Commission, 153 Pa. Superior Ct. 271, 33 A.2d 761 (1943), where the court, in discussing the eminent domain power of natural gas companies, stated:
[The power] does not apply to service lines laid for the benefit of an individual consumer. The property of A can be taken in eminent domain proceedings, as a public use, for the benefit of the public generally. It cannot be taken for the sole benefit of B. ...