Argued April 15, 2015
Daniel E. Krauth, Pittsburgh, for appellant.
William P. Bresnahan, II, Pittsburgh, for appellees.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORALBE
ANNE E. COVEY, Judge.
Judge McGinley did not participate in the decision of this case. DISSENTING OPINION BY JUDGE LEAVITT. Judge McCullough joins in this dissent.
DAN PELLEGRINI, JUDGE.
Equitable Gas Company, LLC, incorrectly named as Equitable Gas, LLC, a division of Equitable Resources (Equitable), appeals the order of the Westmoreland County Court of Common Pleas (trial court) overruling its preliminary objections to the Petition for the Appointment of Viewers Alleging a DeFacto Taking (Petition) filed by David and Kathleen Stark (collectively, Landowners). We affirm.
In September 1983, Landowners acquired a parcel of property (Stark 1) in North Huntingdon Township (Township), Westmoreland County (County), near the intersection of U.S. Route 30 and Carpenter Lane. (Reproduced Record (R.R.) at 69a). The description of the parcel in the deed begins " at a point on the Westerly right-of-way line of U.S. Route 30, at the Northeast corner of lands now or formerly of George Scheffle," and describes its west boundary line as starting at " a point, said point being the Northerly right-of-way line of an unnamed street 40 feet wide;  thence along the Northerly line of the unnamed street a distance of 201.16 feet to a point on the Northerly line of lands now or formerly of George Scheffle...." ( Id. ). The chain of title of the Stark 1 parcel in deeds from 1971, 1975 and 1982 also describe the west boundary line of the property as along " the Northerly right of way line of an unnamed street having a 40-foot right of way...." ( Id. at 79a, 83a, 87a).
In July 1992, Norwin School District (School District) owned the adjoining parcel of property and granted Equitable a right-of-way for the construction of and ingress and egress to a 10-inch gas pipeline to be buried " along the eastern edge of [the School District]'s 40 foot wide private road...." (R.R. at 46a). In January
2007, Landowners acquired the School District's adjoining parcel by deed (Stark 2) with the north boundary line described as " BEGINNING at a point at the northwest corner of property deeded to [Landowners] and the center of an unopened 40 foot street and south right-of-line of Carpenter Lane (SR 4019); thence from said point of beginning along the south right-of-way line of Carpenter Lane and line of [the School District] South 72° 12' 12" West a distance of 24.37'...." ( Id. at 96a).
In July 2007, Landowners hired Dennis Dull (Dull) to complete a survey of their properties. Dull determined that Equitable's pipeline had been installed on the Stark 1 parcel because he determined that the western boundary of that parcel extended to the center line of the paper street. As a result, in 2009, Landowners filed a trespass action against Equitable and then, in February 2013, filed the instant Petition alleging a de facto taking and seeking the appointment of a Board of Viewers. In April 2013, the trial court issued an order appointing a three-member Board of Viewers.
In August 2013, Equitable filed preliminary objections to the Petition arguing that it should be dismissed because: (1) Landowners maintained a separate trespass action while pursuing ...