United States District Court, W.D. Pennsylvania
J. Schwab United States District Judge
before this Court is Plaintiff's Motion for Partial
Summary Judgment and Immediate Access and Possession of
Easements to be Condemned (“Motion for Partial Summary
Judgment”) (doc. no. 6), filed on February 7, 2017.
Plaintiff also filed a Motion for an Expedited Hearing on its
Motion for Partial Summary Judgment (doc. no. 10) on that
same date. On March 1, 2017, the Court ordered Defendants to
file a Response to the Motion for Partial Summary Judgment by
March 7, 2017. See doc. no. 34.
interim, Plaintiff entered into agreements with all of the
Defendants - except one, the Old Wilson Farm Land Trust
(“Old Wilson Farm”) - giving Plaintiff the right
to immediate entry onto the land of each Defendant as
identified in Plaintiff's Complaint. See doc. nos. 1
and 32. Thus, the only Defendant obligated to file a Response
to Plaintiff's Motion for Partial Summary Judgment, was
the Old Wilson Farm. No such Response was filed on behalf of
the Old Wilson Farm.
STANDARD OF REVIEW
judgment may be granted if, drawing all inferences in favor
of the non-moving party, “the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see also Melrose, Inc. v. City of Pittsburgh,
613 F.3d 380, 387 (3d Cir. 2010).
is “material” if proof of its existence or
non-existence might affect the outcome of the suit under
applicable law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also Lamont v. New Jersey,
637 F.3d 177, 181 (3d Cir. 2011). Disputes must be both: (1)
material, meaning concerning facts that will affect the
outcome of the issue under substantive law, and (2) genuine,
meaning there is sufficient evidence supporting the claimed
factual dispute “to require a jury or judge to resolve
the parties' differing versions of the truth at
trial.” In re Lemington Home for Aged, 659
F.3d 282, 290 (3d Cir. 2011).
moving for summary judgment has the initial burden of
supporting its assertion that fact(s) cannot be genuinely
disputed by citing to particular parts of materials in the
record - i.e., depositions, documents, affidavits,
stipulations, or other materials - or by showing that: (1)
the materials cited by the non-moving party do not establish
the presence of a genuine dispute, or (2) that the non-moving
party cannot produce admissible evidence to support its
fact(s). Fed.R.Civ.P. 56(c)(1). The moving party may
discharge its burden by “pointing out to the district
court” the “absence of evidence to support the
nonmoving party's case” when the nonmoving party
bears the ultimate burden of proof for the claim in question.
Conoshenti v. Public Service Elec. & Gas Co, 364
F.3d 135, 140 (3d Cir. 2004), quoting Singletary v.
Pennsylvania Dept. of Corrections, 266 F.3d 186, 192 n.
2 (3d Cir. 2001), quoting Celotex, 477 U.S. 317, 325 (1986).
in order to defeat a motion for summary judgment, the
non-moving party must support its assertion that fact(s) are
genuinely disputed by citing to particular parts of materials
in the record, or by showing that: (1) the materials cited by
the moving party do not establish the absence of a genuine
dispute, or (2) the moving party cannot produce admissible
evidence to support its fact(s). Fed.R.Civ.P. 56(c)(1). When
determining whether there are any genuine issues of material
fact, all inferences should be drawn in favor of the
non-moving party. Berckeley Inv. Group, Ltd. v.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
reviewing a motion for summary judgment, the Court does not
make credibility determinations, and summary judgment is
“inappropriate when a case will turn on credibility
determinations.” El v. Southeastern Pennsylvania
Transp. Authority, 479 F.3d 232 (3d Cir. 2007), citing
Anderson, 477 U.S. at 255.
following facts are uncontested and relevant:
February 2, 2017, the Federal Energy Regulation Commission
(hereinafter “FERC”) granted Plaintiff a
certificate of public convenience and necessity (hereinafter
the “FERC Certificate”) under the Natural Gas
Act, 15 U.S.C.A. § 717, authorizing Plaintiff to
construct, install, and maintain a new interstate 24”
to 42” diameter pipeline extending over approximately
713 miles. This new pipeline system is designed to add 3,
250, 000 dekatherms per day of new pipeline capacity to
industrial and residential users.
portion of the pipeline which pertains to Plaintiff and the
instant lawsuit (hereinafter, “the Rover
Pipeline”) will transport gas from receipt points in
the Marcellus and Utica shale supply areas in West Virginia,
Pennsylvania, and Ohio, to delivery points along Mainlines
“A” and “B, ” which will mostly run
parallel from Harrison County, Ohio, to the Midwest Hub in
Defiance County, Ohio. The Rover Pipeline Project represents
an approximate $4.2 billion investment of private funds for
public infrastructure under the Natural Gas Act.
brought this condemnation action pursuant to the Natural Gas
Act, 15 U.S.C. § 717 and Federal Rule of Civil Procedure
71.1, in order to acquire easements over much of the land
affected by the Rover Pipeline. Defendants to this action own
real property located in Washington County, Pennsylvania,
over which Plaintiff is seeking easements necessary to
construct and install the Rover Pipeline system. The
easements Plaintiff seeks through this lawsuit from the
Defendants (a) consist of fifty-foot permanent easements,
across the tracts to be traversed by a single Rover pipeline,
and (b) a sixty-foot permanent easement across the tracts to
be traversed by dual Rover pipelines, temporary construction