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.
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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.
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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.
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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.
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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.
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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).
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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.
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