In Re: Condemnation by Sunoco Pipeline, L.P. ~ Appeal of: C.S. Katz, Jr. and K.M. Katz

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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 : No. 1747 C.D. 2016
Karen M. Katz : Argued: May 2, 2017

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 3, 2017

Charles 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.
 I.
To 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.

A.
The 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. . . .”1 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.

1
Article X, Section 4 of the Pennsylvania Constitution provides that “Municipal and
other corporations invested with the privilege of taking private property for public use shall make
just compensation for property taken, injured or destroyed by the construction or enlargement of
their works, highways or improvements and compensation shall be paid or secured before the
taking, injury or destruction.”

2
 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).2 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).

B.
Public 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)3 defines a
“Public utility” as “Any person or corporations now or hereafter owning or
operating in this Commonwealth equipment or facilities for: . . . Transporting or

2
As apparent from our Supreme Court’s quoted language in Lands of Stone, the terms
“public use” and “public purpose” have been used interchangeably in the context of eminent
domain matters.

3
66 Pa.C.S. §§ 101–3316.

3
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).

Simply 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. § 1101.4 To obtain a CPC, a public utility is required to submit a written

4
Section 1101 of the Code provides:

Upon the application of any proposed public utility and the
approval of such application by the commission evidenced by its
certificate of public convenience first had and obtained, it shall be
lawful for any such proposed public utility to begin to offer,
render, furnish, or supply service within this Commonwealth. The
commission’s certificate of public convenience granted under the
authority of this section shall include a description of the nature of
the service and of the territory in which it may be offered,
rendered, furnished or supplied.

66 Pa.C.S. § 1101. Similarly, Section 1102 of the Code provides, in part:

(a) General rule.—Upon the application of any public utility and
the approval of such application by the commission, evidenced by
its certificate of public convenience first had and obtained, and
upon compliance with existing laws, it shall be lawful:

(1) For any public utility to begin to offer, render, furnish
or supply within this Commonwealth service of a different nature
or to a different territory. . . .

66 Pa.C.S. § 1102(a)(1).

4
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).

While 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”5
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. § 1511(a)(2).6

The 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).7 It

5
The BCL defines a “public utility corporation” as “[a]ny domestic or foreign
corporation for profit that . . . is subject to regulation as a public utility by the [PUC] or an
officer or agency of the United States. . . .” 15 Pa.C.S. § 1103.

6
Section 1511(b) of the BCL provides that the power of eminent domain granted to
public utility corporations for purposes of constructing petroleum or petroleum products
transportation cannot be exercised within “any part of the reasonable curtilage of a dwelling
house within 100 meters therefrom.” 15 Pa.C.S. § 1511(b). No such restriction exists on the
transportation of artificial or natural gas.

7
Section 1511(c) of the BCL, 15 Pa.C.S. § 1511(c), provides:

(Footnote continued on next page…)

5
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).

C.
Once the PUC approves a CPC, the public utility corporation can
begin taking private property by filing a declaration of taking. For a property

(continued…)

The powers conferred by subsection (a) may be exercised to
condemn property outside the limits of any street, highway, water
or other public way or place for the purpose of erecting poles or
running wires or other aerial electric, intrastate aerial telephone or
intrastate aerial telegraph facilities only after the Pennsylvania
Public Utility Commission, upon application of the public utility
corporation, has found and determined, after notice and
opportunity for hearing, 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 proceedings held under this subsection,
and no court shall entertain any proceeding questioning the
jurisdiction of the commission under this subsection. A final order
of the commission approving or denying an application under this
subsection, including an order involving a question of jurisdiction
under this subsection, may be made the subject of any appeal in the
manner provided or prescribed by law.

6
owner to challenge the taking, Section 306(a)(3) of the Eminent Domain Code
provides, in relevant part:

(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).

While 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).

We now turn to the facts of this case.

7
 II.
On February 24, 2016, Sunoco filed a declaration of taking pursuant
to Section 302 of the Eminent Domain Code, 26 Pa.C.S. § 302, and Section 1511
of the BCL, 15 Pa.C.S. § 1511, seeking to condemn a 0.08 acre permanent pipeline
easement and a 0.10 acre temporary workspace easement on Condemnees’
property situate at 1487 Heather Hills Lane in Glen Mills, Edgmont 8 Township,
Delaware County, Pennsylvania (property). As stated in the declaration, the
purpose of this taking is “to construct a portion of the ‘Mariner East 2’ pipeline
project.” (Declaration of Taking at 2.) The property is encumbered by a bridle
path easement. Sunoco gave notice only to Condemnees of the filing of the
declaration of taking.

Condemnees filed preliminary objections contending, in relevant
part,9 that Sunoco is not able to exercise eminent domain powers because: it is not
a public utility corporation; it requires a CPC for the Mariner East 2 pipeline; and
the Mariner East 2 pipeline’s primary and paramount purpose is not intrastate, does
not provide a public benefit, and is not necessary to meet public needs.
Condemnees also filed an objection contending that Sunoco’s notice of taking was
defective because it failed to notify the entire Edgmont Township community of
the condemnation.

8
While the name of the township is spelled “Edgemont” in the caption, it appears that the
correct spelling is Edgmont.

9
On appeal, Condemnees do not raise objections to the sufficiency of the $7,000 security
bond Sunoco posted to cover the costs of damages resulting from appropriation of its interest in
the property or that the declaration of taking is barred by collateral estoppel.

8
 III.
Before the trial court decided Condemnees’ preliminary objections,
this Court, on July 14, 2016, decided In re Sunoco Pipeline, L.P., 143 A.3d 1000
(Pa. Cmwlth. 2016), appeal denied In re Condemnation By Sunoco Pipeline, L.P.
of Permanent, ___ A.3d ___ (Pa. No. 571-573 MAL 2016, filed Dec. 29, 2016).
While In re Sunoco Pipeline involved different condemnees and property, the
issues and responses by both parties in that case are essentially identical to those
raised in the instant appeal.10

10
We summarized the issues raised in In re Sunoco Pipeline as follows:

All Condemnees objected: that Sunoco lacked the power or the
right to condemn their land as Sunoco was not a public utility
regulated by [Pennsylvania Public Utility Commission (PUC)] for
the Mariner East 2 pipeline; that Sunoco’s corporate resolution
authorized takings only for an interstate pipeline and not an
intrastate pipeline; that the declarations were barred by collateral
estoppel on the basis of the York County decision; that the Mariner
East 2 pipeline was an interstate pipeline and not an intrastate
pipeline; that the Declarations sought to condemn their properties
for two pipelines while the agency Condemnees assert has sole
jurisdiction, [Federal Energy Regulatory Commission (FERC)],
approved only one pipeline; that Sunoco lacked the FERC
Certificate of Public Convenience and Necessity (Certificate)
necessary to exercise eminent domain power for the pipeline; and
that Sunoco’s proposed bond amounts were insufficient.

Sunoco filed responses to Condemnees’ Preliminary Objections
that were, like the objections, essentially uniform. With regard to
the corresponding objections referenced in the preceding
paragraph, Sunoco asserted: that PUC recognizes that, the fact that
Sunoco has FERC authorization to make interstate movements on
Mariner East notwithstanding, Sunoco also has authority under
state law to provide intrastate service as a public utility regulated
by PUC; that the corporate resolution attached to the Declarations
is not defective in any way; that the identical issue of whether
(Footnote continued on next page…)

9
 In that case, we were tasked with determining, inter alia, whether
Sunoco is regulated as a public utility corporation empowered to exercise eminent
domain for the Mariner East 2 pipeline and whether the Mariner East 2 pipeline
constitutes an intrastate service that is covered by Sunoco’s CPCs. In answering
that question, we set forth an in-depth discussion of Sunoco and its Mariner East
Project.11

(continued…)

Sunoco has the power of eminent domain to condemn for the
Mariner East 2 pipeline was not decided previously in the York
County decision [Sunoco Pipeline, L.P. v. Loper, 2013-SU-4518-
05 (C.P. York, February 24, 2014) (reaffirmed March 25, 2014)];
that the Mariner East 2 pipeline is regulated by both PUC and by
FERC; that FERC’s regulation of interstate shipments on Mariner
East 2 pipeline is inapplicable to a determination of Sunoco’s
eminent domain authority as a Pennsylvania-regulated public
utility; that a FERC Certificate is not the only method by which a
public utility can obtain eminent domain power in Pennsylvania
where state law provides eminent domain authority both to utilities
regulated by PUC and to utilities regulated by an officer or agency
of the United States, such as FERC; and that the bonds posted by
Sunoco were adequate.

In re Sunoco Pipeline, 143 A.3d at 1011-12.

11
As we explained in In re Sunoco Pipeline, in 2012, Sunoco announced its intent to
develop an integrated pipeline system known as the “Mariner East Project” for the purpose of
transporting petroleum products and natural gas liquids (NGLs) from the Marcellus and Utica
Shales through and within the Commonwealth, which require using pipeline and terminal
infrastructure within the Commonwealth. 143 A.3d at 1008. The Mariner East Project has two
phases: Mariner East 1, which has been completed and utilizes Sunoco’s existing pipeline
infrastructure; and the second phase known as “Mariner East 2,” which requires construction of a
new pipeline largely tracing the Mariner East 1 pipeline route. Sunoco’s existing CPCs provide
it authority “to transport petroleum products and refined petroleum products, including propane,
between Delmont, Westmoreland County, and Twin Oaks, Delaware County.” Id. at 1007
(emphasis added). A PUC order dated August 21, 2014, authorized Sunoco to expand its
intrastate service to Washington County and the “result of this Order is that PUC authorized
(Footnote continued on next page…)

10
 We concluded that Sunoco’s CPCs apply to “both Mariner East 1
service and to Mariner East 2 service, as it is an authorized expansion of the
same service.” Id. at 1016-1017 (emphasis in original). We further concluded that
Sunoco is regulated as a public utility by the PUC and is a public utility
corporation empowered to exercise eminent domain, and Mariner East intrastate
service is a public utility service rendered by Sunoco within the meaning of the
BCL, 15 Pa.C.S. §§ 1103, 1511.

Because the condemnees in In re Sunoco Pipeline also challenged the
necessity and nature of the Mariner East 2 service, this Court was further tasked
with deciding whether a party may collaterally challenge the PUC’s determination
to issue a CPC in the context of an eminent domain proceeding. Here, we held that
“The Eminent Domain Code does not permit common pleas to review the public
need for a proposed service by a public utility that has been authorized by PUC
through the issuance of a CPC.” 143 A.3d at 1018 (emphasis added).
Accordingly, because “Sunoco here holds CPCs issued by PUC and PUC in its
Orders issuing the CPCs found the authorized service to be necessary and proper, it
is left to common pleas to evaluate the scope and validity of the easement, but not
the public need.” Id. at 1019. As we explained:

(continued…)

Mariner East 1 and Mariner East 2 intrastate service in 17 counties, from Washington County in
western Pennsylvania, through 15 other counties, including Cumberland County, to Delaware
County in eastern Pennsylvania.” Id. at 1015 (emphasis added).

11
 [D]eterminations of public need for a proposed utility
service are made by PUC, not the courts. Section 1103
of the Code requires an applicant for a CPC to establish
that the proposed service is “necessary or proper for the
service, accommodation, convenience, or safety of the
public.” 66 Pa.C.S. § 1103(a). Under this section, the
applicant must “demonstrate a public need or demand
for the proposed service. . . .” Chester Water Authority
v. Public Utility Commission, 868 A.2d 384, 386 (Pa.
2005) (emphasis added).

***

Here, both PUC and common pleas followed their
statutory mandates and evaluated the issues within their
respective purviews. There is no basis for a common
pleas court to review a PUC determination of public
need. In fact, to allow such review would permit
collateral attacks on PUC decisions and be contrary to
Section 763 of the Judicial Code, 42 Pa.C.S. § 763,
which places review of PUC decisions within the
jurisdiction of this Court.

In re Sunoco Pipeline, 143 A.3d at 1019 (emphasis in original).

IV.
Soon after we decided In re Sunoco Pipeline, Condemnees requested
a hearing to obtain evidence and testimony with respect to factual issues raised by
their preliminary objections. Without a hearing, the trial court denied
Condemnees’ preliminary objections.

Echoing the findings and conclusions made by this Court in In re
Sunoco Pipeline, the trial court found, in pertinent part: Sunoco is a public utility
regulated by the PUC that has the power of eminent domain; the Mariner East 2

12
pipeline is included in Sunoco’s CPC and provides intra- and interstate pipeline
services; and the public need for the Mariner East 2 service is conclusively
determined by the issuance of the CPC. The trial court also found that Sunoco
complied with all requirements of the Eminent Domain Code in filing the
declaration and notice of taking.12

In response to Condemnees’ contention that the trial court erred when
ruling upon the preliminary objections without holding a hearing, the trial court
reasoned “where issues before the court in an action under the eminent domain
code are purely legal, a court may rule on preliminary objections without a hearing.
. . .” (Trial Court’s Opinion at 17.) Regardless, all such objections are:

. . . included in the factual and legal matrices
encompassed and ruled upon by the Commonwealth
Court’s Opinion in [In re Sunoco Pipeline]. . . . A
thorough review of the Commonwealth Court’s analysis
and ratio decidendi for upholding the overruling of
identical preliminary objections . . . will illustrate why
this Court’s overruling of the Condemnees’ Preliminary
Objections must not be reversed on appeal.

12
In their Concise Statement of Issues Raised on Appeal and in their Brief, Condemnees
contend that the “PUC should have notified the affected public of any proceedings before the
PUC and permitted a public hearing on the subject of [the Mariner East 2] service.”
(Condemnees’ Brief at ii.) However, “All preliminary objections shall be raised at one time and
in one pleading.” 26 Pa.C.S. § 306(d). “Failure to raise by preliminary objections . . . shall
constitute a waiver. Issues of compensation may not be raised by preliminary objections.” 26
Pa.C.S. § 306(b). Accordingly, the trial court correctly determined that this issue is waived.

13
(Trial Court’s Opinion at 18) (citations omitted). This appeal by Condemnees
followed.13

V.
A.
On appeal, Condemnees reassert various contentions that essentially
challenge Sunoco’s status as a public utility and its authority to condemn property
for purposes of the Mariner East 2 pipeline. While acknowledging that we held in
In re Sunoco Pipeline that a property owner cannot challenge the PUC’s
determination of “public need” for a service, Condemnees contend that it does not
follow that a property owner is unable to challenge whether a specific taking
purportedly made for that service carries out a public purpose.

We agree with Condemnees that in the context of eminent domain
proceedings, a property owner may challenge a specific taking on the basis that it
fails to carry out a public purpose. As an example, if the PUC would have found
that there was a “public need” for a private pipeline to be built between two
Sunoco plants or a pipeline to cross the state for only Sunoco products, while a
property owner could not challenge that need, the owner could still challenge that a
specific taking is unconstitutional because it is for a private purpose. That
challenge does not go to the need, but whether the specific takings carried out for

13
In an eminent domain case disposed of on preliminary objections, this Court is limited
to determining if the trial court’s necessary findings of fact are supported by competent evidence
and if an error of law or an abuse of discretion was committed. Stark v. Equitable Gas Co., LLC,
116 A.3d 760, 765 n.8 (Pa. Cmwlth. 2015).

14
that need serve a public, constitutional purpose. Moreover, that challenge is not
precluded on the basis that it was decided before the PUC when issuing the CPC.
When issuing a CPC, the PUC is only tasked with determining whether the
proposed service 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 PUC’s determination does not require an evaluation of the specific
taking of private property, which may remain unknown at the time of approval.
This is especially likely considering that it is not until a declaration of taking is
filed that a property owner is aggrieved and may challenge the constitutional basis
of a taking. In any event, that issue was not even decided before the PUC when
issuing CPCs to Sunoco because 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).

Notwithstanding the above, the arguments that Condemnees raise do
not go to whether the taking was for a public purpose. Condemnees contend that
Sunoco’s taking does not serve a public need and that the primary and paramount
purpose of the Mariner East 2 pipeline is not intrastate. They go on to assert that
In re Sunoco Pipeline “is silent concerning whether [the Mariner East 2 pipeline] is
actually necessary to satisfy the Pennsylvania intrastate demand . . . or whether the
existing repurposed [Mariner East 1] pipeline is sufficient to satisfy demand within
the Commonwealth without an excessive taking for non-public purposes.”
(Condemnees’ Brief at 13.) Condemnees also contend that the Mariner East 2
pipeline service is not within the scope of Sunoco’s existing CPCs.

15
 All of the above issues were resolved in In re Sunoco Pipeline. In that
case, we explicitly held that Sunoco is a public utility corporation, Mariner East 2
constitutes an intrastate service and falls within Sunoco’s CPC, and Sunoco has the
power of eminent domain with regard to the Mariner East 2 pipeline. We also held
that in the context of eminent domain proceedings such as this, a court is not
permitted to review “collateral attacks on PUC decisions” with regard to the public
need or necessity of a service carried out under authority of a CPC. In re Sunoco
Pipeline, 143 A.3d at 1019.

B.
Condemnees also contend that the trial court erred when denying them
a hearing on the issue of whether Sunoco’s condemnation constitutes an excessive
taking. However, Condemnees admit that they only seek “to demonstrate to the
Court through evidence that the taking for [Mariner East 2] is excessive, since
[Mariner East 1], as repurposed, already meets the intrastate need for propane
shipment.” (Condemnees’ Brief at 15.) They do not challenge the scope of the
specific taking under the declaration. Accordingly, this is just another collateral
attack seeking to demonstrate that the Mariner East 2 service does not actually
serve a public need or is not necessary.

C.
Finally, because their property is subject to a preexisting bridle path
easement, Condemnees object that Sunoco’s notice of taking was defective
because it failed to notify the entire Edgmont Township community of the
condemnation. Likely because they would otherwise not be aggrieved by this

16
alleged notice deficiency, Condemnees contend they have standing to raise this
issue because their property deed provides that they must warrant and defend all
property rights, including the preexisting bridle easement. Even assuming this
contention is true – because Condemnees would otherwise lack standing to assert
this issue – Sunoco’s notice was not deficient because it provided notice to the
only party tasked with warranting and defending the alleged and unrecorded bridle
path easement.

Accordingly, for the foregoing reasons, the trial court’s order is
affirmed.14

___________________________________
DAN PELLEGRINI, Senior Judge

Judge Wojcik did not participate in the decision in this case.

14
Condemnees make allusions to this Court’s decision in Robinson Township v.
Commonwealth, 96 A.3d 1104 (Pa. Cmwlth. 2014), rev’d Robinson Township v. Commonwealth,
147 A.3d 536 (Pa. 2016), presumably for the purpose of questioning the validity of In re Sunoco.
However, because this mere allusion can, at best, be construed as an extremely undeveloped
argument, the issue is waived. See City of Philadelphia v. Berman, 863 A.2d 156, 161 (Pa.
Cmwlth. 2004).

17
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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 : No. 1747 C.D. 2016
Karen M. Katz :

ORDER

AND NOW, this 3rd day of July, 2017, the order of the Court of
Common Pleas of Delaware County dated September 26, 2016, is affirmed.

___________________________________
DAN PELLEGRINI, Senior Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :
Pipeline L.P. of Permanent and :
Temporary Rights of Way for the :
Transportation of Ethane, Propane, : No. 1747 C.D. 2016
Liquid Petroleum Gas, and other :
Petroleum Products in Edgemont : Argued: May 2, 2017
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 :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: July 3, 2017

At least three commissioned judges of this Court have questioned

whether Sunoco Pipeline, L.P. (Sunoco) has the legal authority to condemn private

property for the “Mariner East 2” or “ME2” pipeline project.1,2

1
“The power of eminent domain, next to that of conscription of man power for war, is
the most awesome grant of power under the law of the land.” Winger v. Aires, 89 A.2d 521, 522
(Pa. 1952). “The exercise of the right of eminent domain, whether directly by the state or its
authorized grantee, is necessarily in derogation of private right,” id. at 523, that is, “a private
citizen’s right to hold property,” Olson v. Whitpain Township, 595 A.2d 706, 708 (Pa. Cmwlth.
(Footnote continued on next page…)
 In this latest matter surrounding Sunoco’s undertaking, I am

constrained to concur in the result reached by the Majority because In re Sunoco

Pipeline, L.P., 143 A.3d 1000 (Pa. Cmwlth. 2016) (en banc), appeal denied, ___

A.3d ___ (Pa., No. 571 MAL 2016, filed December 29, 2016), controls the

outcome of this matter. I, however, remain steadfast to my dissenting opinion in

that case, wherein I expressed the view that Sunoco failed to obtain the requisite

certificate of public convenience (CPC) from the Public Utility Commission (PUC)

and therefore lacked the statutory authorization necessary to condemn private

property under Section 1104 of the Public Utility Code. 66 Pa.C.S. §1104.3 From

(continued…)

1991), and Article 1, Section 10 of our Constitution prohibits the taking of property “without
authority of law.” PA. CONST. art. 1, §10. As such, any statutory authority or procedure
prescribed by the Legislature to condemn property must be strictly construed and strictly
followed. Olson, 595 A.2d at 708.

2
See, e.g., In re Sunoco Pipeline, L.P., 143 A.3d 1000, 1020-28 (Pa. Cmwlth. 2016) (en
banc), appeal denied, ___ A.3d ___ (Pa., No. 571 MAL 2016, filed December 29, 2016)
(Brobson, J., dissenting); id. at 2028-29 (McCullough, J., dissenting); In Re: Condemnation by
Sunoco Pipeline L.P., (Pa. Cmwlth., No. 220 C.D. 2016, filed May 15, 2017), Dissent slip op. at
1-3 (Cosgrove, J., dissenting).

3
In pertinent part, this provision states that “no domestic public utility . . . authorized to
do business in this Commonwealth shall exercise any power of eminent domain within this
Commonwealth until it shall have received the certificate of public convenience . . . .” 66
Pa.C.S. §1104; see Duquesne Light Company v. Upper St. Clair Township, 105 A.2d 287, 293
(Pa. 1954) (“The function of the Commission . . . is to determine whether the exercise of the
right of eminent domain is necessary or proper for the service, accommodation, convenience or
safety of the public. If the Commission determines that it is, it issues a certificate of public
convenience.”). In In re Sunoco Pipeline, L.P., I stated: “As can be gleaned from the Majority’s
(Footnote continued on next page…)
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a dissenting posture, I recommended that should Sunoco “desire to pursue this

matter further,” it should not “bypass the PUC,” but instead, should “obtain, in the

first instance, the proper authority from the PUC to exercise eminent domain

powers with respect to ME2 before it targets private property within the

Commonwealth and seeks to deprive Commonwealth citizens of their fundamental

right to own the same.” In re Sunoco Pipeline, L.P., 143 A.3d at 1029

(McCullough, J., dissenting). To date, Sunoco has not secured an appropriate CPC

and it is my renewed belief that Sunoco continues to take private property without

lawful authority.

While I still adhere to my dissenting opinion in In re Sunoco Pipeline,

L.P., the Majority’s decision in that case constitutes binding precedent and

compels the result in this case. Hence, I concur only in the result.

________________________________
PATRICIA A. McCULLOUGH, Judge

(continued…)

opinion, Sunoco has cobbled together various CPCs since the 1930’s [sic], but never sought a
CPC or any other PUC approval granting it the ability to exercise eminent domain within the
Commonwealth. Most certainly, Sunoco never sought authority to exercise eminent domain as
to ME2.” 143 A.3d at 1029 (McCullough, J., dissenting).

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