In Re: Condemnation by Sunoco Pipeline L.P. of Permanent and Temporary Rights of Way for the Transportation of Ethane, Propane, Liquid Petroleum Gas, and other Petroleum Products in Edgemont Township, Delaware County, Pennsylvania, over the Lands of Charles S. Katz, Jr. and Karen M. Katz Appeal of: Charles S. Katz, Jr. and Karen M. Katz
Argued: May 2, 2017
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE
ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge
PELLEGRINI, Senior Judge Judge.
S. Katz, Jr. and Karen M. Katz (Condemnees) appeal from the
order of the Court of Common Pleas of Delaware County (trial
court) overruling all of their preliminary objections to the
declaration of taking filed by Condemnor Sunoco Pipeline,
L.P. (Sunoco), which seeks to condemn easements on
Condemnees' property to facilitate construction of the
phase of Sunoco's Mariner East Project known as the
Mariner East 2 pipeline.
better understand the matter before us, a short review of
takings law and a public utility corporation's authority
to take private property is in order.
United States and Pennsylvania Constitutions provide that
private property can only be taken from a property owner to
serve a "public use." The Fifth Amendment to the
United States Constitution provides, in relevant part,
"[N]or shall private property be taken for public use,
without just compensation." U.S. Const. amend. V.
Echoing this language, Article I, Section 10 of the
Pennsylvania Constitution provides, "[N]or shall private
property be taken or applied to public use, without authority
of law and without just compensation being first made or
secured." Article X, Section 4 of the Pennsylvania
Constitution, which vests corporations with the power of
eminent domain, also limits the power to the "taking
[of] private property for public use. . .
." Our Supreme Court has held:
. . . [T]he only means of validly overcoming the private
right of property ownership . . . is to take for 'public
use.' In other words, without a public purpose,
there is no authority to take property from private owners.
According to our Court, "a taking will be seen as having
a public purpose only where the public is to be the primary
and paramount beneficiary of its exercise." In re
Bruce Ave., 266 A.2d 96, 99 (Pa. 1970). In considering
whether a primary public purpose was properly invoked, this
Court has looked for the "real or fundamental
purpose" behind a taking. Belovsky v. Redevelopment
Authority, 54 A.2d 277, 283 (Pa. 1947). Stated
otherwise, the true purpose must primarily benefit the
public. . . .
Middletown Township v. Lands of Stone, 939 A.2d 331,
337 (Pa. 2007) (emphasis in original). Private property
cannot be taken for private use, not even under the
authorization of the Legislature. Ormsby Land Company v.
City of Pittsburgh, 119 A. 730 (Pa. 1923).
utility corporations are the types of corporations referred
to in Article X, Section 4 of the Pennsylvania Constitution
that can be vested with the power of eminent domain if it is
exercised for a public purpose. Jurisdiction over the
certification and regulation of public utilities in the
Commonwealth is vested in the Public Utility Commission
(PUC). The Public Utility Code (Code) defines a "Public
utility" as "Any person or corporations now or
hereafter owning or operating in this Commonwealth equipment
or facilities for: . . . Transporting or conveying natural or
artificial gas, crude oil, gasoline, or petroleum products,
materials for refrigeration, or oxygen or nitrogen, or other
fluid substance, by pipeline or conduit, for the public for
compensation." 66 Pa.C.S. § 102(1)(v).
being subject to PUC regulation, however, is insufficient for
an entity to acquire the power of eminent domain. Pursuant to
Section 1104 of the Code, 66 Pa.C.S. § 1104, a public
utility must also possess a certificate of public convenience
(CPC) issued by the PUC pursuant to Section 1101 of the Code,
66 Pa.C.S. § 1101. To obtain a CPC, a public utility is
required to submit a written application to the PUC, after
which "A certificate of public convenience shall be
granted by order of the commission, only if the commission
shall find or determine that the granting of such certificate
is necessary or proper for the service, accommodation,
convenience, or safety of the public." Section 1103(a)
of the Code, 66 Pa.C.S. § 1103(a).
the power of eminent domain is conferred on a public utility
via a CPC, an entity's authorization to implement its
taking power is contained in Section 1511(a) of the Business
Corporation Law of 1988 (BCL), 15 Pa.C.S. § 1511(a).
While that provision lists a number of services for which
private property can be taken, pertinent, here, is the
provision that a "public utility
corporation"can take private property for "The
transportation of artificial or natural gas, electricity,
petroleum or petroleum products or water or any combination
of such substances for the public." 15 Pa.C.S. §
procedure for a public utility to exercise the power of
eminent domain is set forth under Section 1511(c) of the BCL,
15 Pa.C.S. § 1511(c). It provides, in pertinent part, that
before a public utility can construct a pipeline for
artificial or natural gas and/or petroleum or petroleum
products, that "the service to be furnished by the
corporation through the exercise of those powers is necessary
or proper for the service, accommodation, convenience or
safety of the public. The power of the public utility
corporation to condemn the subject property or the procedure
followed by it shall not be an issue in the commission. . .
." 15 Pa.C.S. § 1511(c).
the PUC approves a CPC, the public utility corporation can
begin taking private property by filing a declaration of
taking. For a property owner to challenge the taking, Section
306(a)(3) of the Eminent Domain Code provides, in relevant
(3) Preliminary objections shall be limited to and shall be
the exclusive method of challenging:
(i) The power or right of the condemnor to appropriate the
condemned property unless it has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
26 Pa.C.S. § 306(a)(3).
the Rules of Civil Procedure have occasionally been applied
in an "instructive" manner, this Court has
repeatedly held that they are not applicable to eminent
domain proceedings. Gilyard v. Redevelopment Authority of
Philadelphia, 780 A.2d 793, 794 (Pa. Cmwlth. 2001). This
is because in eminent domain cases, preliminary objections
serve a somewhat broader purpose and are intended as a
procedure to resolve expeditiously the threshold factual and
legal challenges to a declaration of taking, without awaiting
further proceedings. In re Condemnation of .036 Acres,
More or Less, of Land Owned by Wexford Plaza Associates,
674 A.2d 1204, 1207 (Pa. Cmwlth. 1996).
turn to the ...