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Transcontinental Gas v. A Permanent Easement

January 31, 2011


The opinion of the court was delivered by: Chief Judge Kane


Pending before the Court is Defendant Donald E. Bower and Joanne E. Bower's motion for contempt. (Doc. No. 50.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will deny Defendants' motion.


On March 18, 2009, Plaintiff Transcontinental Gas Company filed a complaint in condemnation for the taking of rights of way and easements ("Rights of Way") on the Bowers' property in order to install a pipeline loop. (Doc. No. 1 ¶ 2.) Also on March 18, 2009, Plaintiff filed an emergency motion for preliminary injunction, seeking emergency access to the proposed easement areas on the Bowers' property in order to clear trees before April 1, 2009. (Doc. No. 5 at 3.) On March 23, 2009, Judge Thomas Vanaskie entered a stipulation and order ("the Order"), in which the Bowers granted Plaintiff a right of access to the property for the purpose of felling trees. (Doc. No. 17 ¶ 1.) The Order also reflects the Bowers' intent to file a non-coal surface mining application with the Pennsylvania Department of Environmental Protection ("DEP"). (Id. ¶ 6.) Plaintiff reserved the "right to comment, review, object and intervene in the application process," but Plaintiff's comments, review, objection, and intervention were to "relate solely to its pipelines (existing and proposed), the Rights of Way and the existing easements" Plaintiff holds on the Bowers' property. (Id.)

On June 5, 2009, Plaintiff filed an emergency motion for preliminary injunction for immediate possession. (Doc. No. 23.) Plaintiff's motion sought immediate possession of the Rights of Way sought on the Bowers' property in order to complete the pipeline project by November 1, 2009, pursuant to an order from the Federal Energy Regulatory Commission. (Id. ¶ 2.) On June 15, 2009, the Bowers filed a brief in opposition to Plaintiff's motion, and a motion for contempt. (Doc. Nos. 32, 33.) In their motion for contempt, the Bowers alleged that a June 5, 2009, letter from Plaintiff's consultant violated the Order because the letter made comments unrelated to Plaintiff's interests. (Doc. No. 33 ¶¶ 6-8.) On June 17, 2009, the parties submitted a stipulation regarding the possession. (Doc. No. 40.) According to the stipulation, Plaintiff agreed to pay $500,000 to the Bowers as nonrefundable compensation for the property Plaintiff sought to condemn. (Id. ¶ 2.) The stipulation also states that the Bowers had no objection to Plaintiff's emergency motion for preliminary injunction for immediate possession. (Id. ¶ 6.) Further, the Bowers agreed to withdraw their motion for contempt against Plaintiff. (Id. ¶ 8.) On June 18, 2009, Judge Vanaskie entered an order granting Plaintiff's motion for a preliminary injunction. (Doc. No. 41.) The order incorporates by reference the parties' stipulation filed on June 17, 2009. (Id. ¶ 3.) The Bowers filed a motion to withdraw the motion for contempt, which was granted on June 23, 2009. (Doc. Nos. 43, 44.) On June 29, 2010, this matter was reassigned to this Court from Judge Vanaskie.

On September 2, 2010, the Bowers filed a motion for contempt, alleging that Plaintiff violated the Order by submitting four letters to the DEP which contained comments unrelated to Plaintiff's interest. (Doc. No. 5.) The Bowers filed a brief in support of their motion on September 8, 2010. (Doc. No. 51.) On September 22, 2010, Plaintiff filed a brief in opposition, (Doc. No. 53), and the Bowers filed a reply brief on October 5, 2010 (Doc. No. 54).


To hold Plaintiff in civil contempt, the Bowers must establish: "(1) that a valid court order existed, (2) that [Plaintiff] had knowledge of the order, and (3) that [Plaintiff] disobeyed the order." Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990). The Bowers have "a heavy burden to show [Plaintiff] guilty of civil contempt." Quinter v. Volkswagen of America, 676 F.2d 969, 974 (3d Cir. 1994). The Bowers must show that Plaintiff is guilty of contempt by clear and convincing evidence. (Id.) Willfulness is not a necessary element of civil contempt, and evidence regarding good faith does not bar the conclusion that Plaintiff acted with contempt. Robin Woods, Inc. v. Woods, 28 F.3d 396, 399-400 (3d Cir. 1994). A contempt motion "shall not be granted where there is 'ground to doubt the wrongfulness of' the respondent's conduct." Littlejohn v. Bic Corp., 851 F.2d 673, 683-84 (3d Cir. 1988) (citations omitted).


The parties do not dispute that the first two elements of civil contempt are satisfied here.

The court's stipulation and order is a valid court order, and Plaintiff had knowledge of the order. The parties do disagree on whether the Bowers have met their burden of proof in demonstrating by clear and convincing evidence that Plaintiff violated the Order. (Doc. No. 53-2 at 4.) The Bowers take issue with comments in four different letters sent by Plaintiff to the DEP. The Court will address each letter in turn.

A. Burcat Letter

The Bowers first argue that a comment in a letter sent by Joel E. Burcat of Saul Ewing, LLP to Tom Owen of the Department of Environmental Protection ("DEP") violated the Order because the comment had nothing to do with the pipeline. (Doc. No. 50 ¶¶ 6, 7.) Point 9 of the letter states:

DEP's regulations require that a person may not allow a discharge from a mine into the waters of the Commonwealth without first obtaining a permit from DEP. 25 Pa. Code § 77.101. We understand that the application indicates a discharge from the proposed quarry without identifying that discharge or seeking permission from DEP for that discharge. See NPDES application regarding the discharge from the settling basin to the unnamed tributary on Phase HR4. Discharges could have an impact on pipeline operations. DEP should not permit this discharge without a permit. (Doc. No. 50-5 at 4.)

Mr. Burcat states that discharges could contribute to erosion of the highwall adjacent to the pipeline and the stability of the pipeline. (Doc. No. 53-4 at 2.) Mr. Burcat also states that the Bowers' failure to provide the basic information required by the National Pollutant Discharge Elimination System ("NPDES") application left Plaintiff guessing as to the nature and location of the outfall. (Id.) The Bowers asked Joseph A. Martarano, an engineer, to review the comments sent by Plaintiff to the DEP. The Bowers and Martarano assert that the fact that the discharge point was left off the application has no effect on the pipeline. (Doc. No. 50 ¶ 7; Doc. 54-2 at 2.)

Based on its review of competing affidavits, the Court cannot find by clear and convincing evidence that Attorney Burcat's written comment on behalf of Plaintiff constitutes contempt. The affidavit of Mr. Burcat is convincing evidence that Plaintiff believed the discharge on which it commented has the potential to impact the pipeline directly or indirectly and thus is sufficiently related to Plaintiff's interests. Therefore, the Court finds that Plaintiff is not guilty of contempt for Mr. Burcat's comment.

B. Sacchetti Letter

Next, the Bowers assert that Plaintiff violated the Order in a letter from Mark Sacchetti, an engineer employed by Plaintiff, to the DEP on June 5, 2009. (Doc. No. 50 ¶¶ 8-11.) Sacchetti's letter states, in pertinent part:

When considering the excavation of sand and gravel Transco seeks engineering detail and verification from a qualified engineer to assure stability of the pipeline and right of way will not be compromised as a result of proposed mining and excavation slopes. When considering a maximum slope and that slope's proximity to pipeline facilities a qualified engineer must include the following criteria in their evaluation: over burden associated with heavy pipeline equipment operating in the right of way, the weight of pipeline facilities, the tendency of non-consolidated earthen material to subside, the disturbances that may be imposed by nearby proposed blasting, and any other information deemed necessary by a qualified engineer. (Doc. No. 50-6 at 3.)

The Bowers claim that in a previous letter sent by Sacchetti on February 13, 2009, Sacchetti stated that a slope of 1.5:1 was acceptable. (Doc. No. 50 ¶ 10.) The February 13, 2009, letter states, in pertinent part:

In the absence of a geotechnical review of the soil conditions, Transco objects to any proposed sloping of soils in excess of 1.5:1, as this is a typical sloping requirement of OSHA in Type "C" soils. Any other suggested sloping grades from the north edge of the pipeline right of way must be substantiated by a geotechnical and engineering analysis for stabilizing and sloping plans. (Doc. No. 50-7 at 2.)

Marcarato asserts that this letter became part of the Order and therefore Sacchetti should not have commented on the slope stability. (Doc. No. 54-2 at 3.) The Order states that the February 13, 2009, letter "reflects Transco's final review and analysis of the blasting and soil sloping on the Bower plans provided to Mr. Sacchetti for review. If Bower resubmits a plan to Transco for review, it will, within a reasonable time, review that plan for blasting and soil sloping using the same methods as in the February 13, 2009 report." (Doc. No. 17 ¶ 5.)

Sacchetti's June 5, 2009, letter clearly does not violate the Order's requirement that Plaintiff's comments relate solely to the pipeline and Rights of Way. The Court also finds that the letter to the DEP does not violate the Order's mandate that Plaintiff review the Bowers' subsequent plans using the same methods as those used in Sacchetti's February 13, 2009, letter. There are grounds to doubt the wrongfulness of Plaintiff's comment requesting assurances that the stability of the pipeline and Rights of Way would ...

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