United States District Court, M.D. Pennsylvania
UGI SUNBURY, LLC, Plaintiff.
A PERMANENT EASEMENT FOR 0.0933 ACRES IN MONROE TOWNSHIP, SNYDER COUNTY, PENNSYLVANIA TAX PARCELS NOS. 12-08-070 AND 12-08-016 ZDENEK A. TUSEK ALENA M. TUSEK and ALL UNKNOWN OWNERS, Defendants.
MATTHEW W. BRANN UNITED STATES DISTRICT JUDGE
above-captioned matter is scheduled for a bench trial in this
Court beginning Monday, May 14, 2018. The parties have filed
various motions in limine and have submitted briefing on
those motions and other issues.
Motion in Limine to Exclude the Testimony of Defendant's
moved to exclude the testimony of Defendant's expert
witness pursuant to Federal Rule of Evidence 702, arguing
that the expert's report is “riddled with errors of
material fact” and is “not the product of
reliable principles and methods.”
Court will deny UGI's motion. Both the Supreme Court of
the United States and the United States Court of Appeals for
the Third Circuit have expounded on Rule 702's
“reliability” and “fit”
requirements. This Court, however, is granted wide
discretion when deciding whether those requirements have been
Because the upcoming trial is a bench-not jury-trial, because
there is a “strong preference for
admission” of expert testimony, and because this
Court believes that “hearing the expert's testimony
and assessing its flaws [is] an important part of assessing
what conclusion [is] correct”,  this Court will admit the
testimony of Defendant's expert. UGI may, of course, present
its own expert and may also vigorously cross examine
Defendant's expert vis-à-vis any perceived flaws
or inconsistencies in his methodology. This Court, as finder
of fact, will carefully consider the soundness of both
experts' reasoning and their opinions' factual basis,
and will attentively evaluate the experts' credibility.
Motion in Limine to Exclude the Testimony of UGI's Expert
has likewise moved to exclude the testimony of UGI's
expert witness, also arguing that the expert's report
contains legal and factual errors. For the reasons discussed
above, that motion will be denied, but thorough
cross-examination will be permitted.
Motion to Use Pennsylvania Law
has moved this Court to use Pennsylvania law when determining
the amount of “just compensation” owed by UGI.
in this District have previously concluded that federal-not
state- law applies in condemnation actions brought pursuant
to the Natural Gas Act.Other courts have come to the opposition
conclusion. Recently, however, the Honorable A.
Richard Caputo of this Court has certified this question for
interlocutory appeal to the Third Circuit.
and Pennsylvania law both define “just
compensation” as the difference between a
property's pre-taking and post-taking
value. Pennsylvania eminent domain law, however,
allows a condemnee to collect several forms of damages not
available under federal law. In its Proposed Findings of Fact
and Conclusions of Law, Defendant has signaled an intent to
seek damages in the form of “professional fees, ”
as provided for under Pennsylvania,  but not federal, law. As
was discussed at the pretrial conference on April 13, 2018,
however, Defendant has not pled those damages in its answer,
and UGI argues that those damages should, therefore, not be
recoverable. This Court consequently ordered the
parties to submit briefs on that issue, which are due on
April 27, 2018.
light of the pending resolution of this issue by the Third
Circuit, a ruling on this motion will be stayed. If this
Court, however, decides that unpled damages are unavailable
to Defendant-an issue on which this Court currently expresses
no opinion-this motion will be denied as moot.
Motion to Exclude UGI's Lay Witnesses
has moved to exclude UGI's lay witnesses on the basis of
relevance. This motion will be denied, but Defendant may