Pennsylvania Services Corp. v. Texas Eastern

J-A16021-14 2014 PA Super 164 PENNSYLVANIA SERVICES IN THE SUPERIOR COURT OF CORPORATION, TRADING AS EMERALD PENNSYLVANIA COAL RESOURCES, LP, AND PENNSYLVANIA LAND HOLDINGS COMPANY, LLC Appellee v. TEXAS EASTERN TRANSMISSION, LP Appellant No. 1429 WDA 2013 Appeal from the Order August 9, 2013 In the Court of Common Pleas of Greene County Civil Division at No(s): AD 663 of 2011 BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J. CONCURRING STATEMENT BY OTT, J.: FILED JULY 29, 2014 appealable as a final order pursuant to 42 Pa.C.S § 7532.1 In this regard, I 1 Section 7532 of the Pennsylvania Declaratory Judgments Act, entitled Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree. J-A16021-14 to quash.2 Nonetheless, I am compelled to note that the cogent arguments of the parties highlight the tension between the Pennsylvania Supreme Nationwide Insurance Company v. Wickett, 763 A.2d 813 (Pa. 2000), and Dept. of Banking, 948 A.2d 790 (Pa. 2008). As discussed by the majority, Emerald filed a five-count complaint against Texas Eastern, seeking declaratory relief, specifically, a declaration recognizing its superior property rights, and interference of those rights by relief, and asserted claims of violation of easement/real covenant, trespass and private nuisance. Texas Eastern filed an answer with new matter and counterclaims for declaratory and injunctive relief, breach of contract, trespass, negligence and unjust enrichment. Following the close of discovery, both parties filed motions for partial summary judgment seeking declaratory relief, and the court, after a hearing, issued the order underlying extract all of the coal in the D District, without leaving any coal to support 42 Pa.C.S. § 7532. 2 On September 23, 2013, Emerald filed a motion to quash. This Court, per curiam, denied the motion to quash without prejudice to raise the issue before this panel. See Order, 11/13/2013. Emerald renewed its contention 10. -2- J-A16021-14 for, implement and pay for appropriate and timely measures to mitigate potential subsidence damage to the pipeline so as not to interfere with 2. Texas Eastern maintains that the order at issue is appealable pursuant to Pennsylvania Rule of Appellate Procedure 341(b)(2),3 Section 7532 of the Declaratory Judgments Act, and Wickett, supra. In Wickett, the in a declaratory judgment action that either affirmatively or negatively declares the rights and duties of the parties constitutes a fina Id., 763 A.2d at 818. Emerald, in support of its motion to quash, contends that the Pennsylvania Supreme Court has clarified its holding in Wickett, and found it inapplicable to cases such as this one. Emerald relies on Pennsylvania Bankers, supra,4 wherein the Supreme Court held that Wickett did not apply to a Commonwealth Court 3 is expressly defined as a final order by statute 4 In Pennsylvania Bankers, the Pennsylvania Supreme Court held that a Commonwealth Court order sustaining in the alternative declaratory judgment claims, challenging the constitutionality of tax exemption provided to credit unions under the Credit Union Code, did not represent an affirmative or neg the meaning of the Declaratory Judgments Act and thus was not a final, appealable order. See id., 948 A.2d at 793 794. -3- J-A16021-14 broader declara Pennsylvania Bankers, 948 A.2d at - Wickett, in Wickett See at 8 9, citing Pennsylvania Bankers, 948 A.2d at 798 799. Moreover, Emerald asserts that the Supreme Court further clarified Wickett in United States Orgs. for Bankruptcy Alternatives, Inc. v. Dept. of Banking, 26 A.3d 474 (Pa. 2011),5 n order in a declaratory judgment action, which merely dismisses one or several alternative theories for relief without ultimately deciding the case, is not Id. at 478, citing Pennsylvania Bankers, supra, 948 A.2d at 798. See 5, 9. Emerald states that in Bankruptcy Alternatives the form of a declaratory judgment, the Supreme Court held the order was 5 In Bankruptcy Alternatives, the Pennsylvania Supreme Court held that a Commonwealth Court order granting in part and denying in part debt that certain provisions of the statute were unconstitutional, was not a final appealable order as the constitutionality of multiple provisions of the Act remained in dispute. See id., 26 A.3d at 480. -4- J-A16021-14 not immediately appealable under the Declaratory Judgments Act. See Texas Eastern counters that, in Pennsylvania Bankers, supra, the Wickett is inapplicable to an declaratory judgment claims at 4 (emphasis in original), citing Pennsylvania Bankers Texas Eastern similarly distinguishes Bankruptcy Alternatives theories that are asserted in support of requests for types of relief other than a decla in original). Texas Eastern emphasizes that, in the present case, the trial judgment concerning the subjacent su theory that either party pled in support of any declaratory judgment claim, nor any individual component of any declaratory judgment claim, remains Id. at 6. Reviewing the arguments of the parties in light of the record, I agree with Texas Eastern that Wickett and the claims that remain pending are non-declaratory judgment claims. -5- J-A16021-14 namely, that Emerald reach an agreement with Texas Eastern regarding performance of mitigation measures for the pipelines. The overarching issue in this case which party owns and controls the right to subjacent support was raised in the requests for declaratory judgment relief set forth in matter and counterclaims, and presented to the court in the cross motions for partial In this respect, the present case is distinguishable from Pennsylvania Bankers and Bankruptcy Alternatives, which followed Pennsylvania Bankers, explaining: We note that the distinction between Pennsylvania Bankers and the present case identified by the [appellant] derives not from the application of Wickett in the post-Pennsylvania Bankers legal regime, but from the nature of the original challenge, i.e., a challenge to a single provision versus multiple provisions. In other words, in Pennsylvania Bankers, the banks challenged the constitutionality of a single provision and, if the lower court had decided the constitutional issue and than merely narrowed the dispute between the parties. Here, however, the constitutionality of multiple provisions remains in dispute and, even though the Commonwealth Court granted USOBA [United States Organization for Bankruptcy Alternatives, Inc.] relief as to two provisions, the dispute has not been resolved but merely narrowed. Therefore, the Pennsylvania Bankers decision is relevant and dispositive. Bankruptcy Alternatives, supra, 26 A.3d at 480 (emphasis supplied). -6- J-A16021-14 Finally, I note that in Pennsylvania Bankers, the Supreme Court expressly declined to overrule Wickett Pennsylvania Bankers, supra, 948 A.2d at 799 n.15. In sum, I conclude that Wickett applies here, and not the Supreme Pennsylvania Bankers and Bankruptcy Alternatives. -7-