Clean Air Council, M.M. deMarteleire and M.S. Bomstein v. Sunoco Pipeline, L.P. , 185 A.3d 478 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clean Air Council, :
Margaret M. deMarteleire, and :
Michael S. Bomstein :
:
v. : No. 1112 C.D. 2017
: Argued: February 7, 2018
Sunoco Pipeline L.P., :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE BROBSON FILED: April 30, 2018
I. INTRODUCTION
This appeal arises out of an action for declaratory and injunctive relief
brought by Clean Air Council and two of its members, Margaret M. deMarteleire
and Michael S. Bomstein (collectively, Plaintiffs), in the Court of Common Pleas of
Philadelphia County (trial court) against Sunoco Pipeline L.P. (Sunoco). By Order
dated May 25, 2017, the trial court, by the Honorable Linda S. Carpenter, denied
Sunoco’s motion for summary judgment. The trial court, by the Honorable Mary D.
Colins, issued an amending order on July 13, 2017, pursuant to Section 702(b) of
the Judicial Code, 42 Pa. C.S. § 702(b),1 certifying the following controlling
questions of law for immediate appellate review:
(a) Are Plaintiffs’ claims outside the subject matter
jurisdiction of the [trial court] or otherwise
non-justiciable as collateral attacks on the Public
Utility Commission’s (PUC) determinations?
(b) Are Plaintiffs’ claims based upon Pennsylvania
Constitution Article I, Section 27 also outside the
subject matter jurisdiction of the [trial court] or
otherwise non-justiciable as collateral attacks on the
Department of Environmental Protection’s issuance of
environmental permits to [Sunoco] for the pipelines?
(c) Do Plaintiffs, as non-condemnees, lack standing to
pursue their claims?
(d) Are Plaintiffs’ due process claims legally insufficient
because the procedural provisions of the Eminent
Domain Code[2] and remedies provided by the Public
Utility Code[3] satisfy any due process requirements?
Sunoco thereafter filed a petition for permission to appeal pursuant to
Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure, which this Court
granted by its Order of September 27, 2017. In so doing, we indicated that we would
consider the above questions certified by the trial court, along with the question of
1
Section 702(b) of the Judicial Code provides:
When a court . . . , in making an interlocutory order in a matter in which its final
order would be within the jurisdiction of an appellate court, shall be of the opinion
that such order involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter, it shall so state in such
order. The appellate court may thereupon, in its discretion, permit an appeal to be
taken from such interlocutory order.
2
26 Pa. C.S. §§ 101-1106.
3
66 Pa. C.S. §§ 101-3316.
2
whether Sunoco is “the Commonwealth,” such that it can be sued for violating the
duties of the “trustee” under Article I, Section 27 of the Pennsylvania Constitution.4
II. BACKGROUND
Plaintiffs commenced this action in the trial court by Complaint filed
on August 27, 2015. (Reproduced Record (R.R.) 59a-398a.) In their eight-count
Complaint,5 Plaintiffs challenge the right, authority, and entitlement of Sunoco to
exercise the power of eminent domain in order to construct two natural gas liquid
(NGL) pipelines, known as Mariner East 1 (ME1) and Mariner East 2 (ME2), across
the Commonwealth of Pennsylvania as part of Sunoco’s Mariner East Project.
Ms. deMarteleire and Mr. Bomstein are husband and wife, jointly residing at their
home in Media, Delaware County, Pennsylvania. (Compl. ¶ 2.) Both are members
of Clean Air Council. Clean Air Council is a nonprofit corporation with a place of
business in Philadelphia, Pennsylvania. (Id. ¶ 1.) Clean Air Council’s mission is to
protect everyone’s right to breathe clean air.
Plaintiffs’ Complaint includes a lengthy and detailed history of the
Mariner East Project, with which this Court is very familiar. Briefly stated, the
Mariner East Project is an effort by Sunoco to construct and operate an integrated
pipeline system to transport petroleum products and NGLs (e.g., propane, ethane,
and butane) from the Marcellus and Utica Shale formations in Pennsylvania, Ohio,
4
Article I, Section 27 of the Pennsylvania Constitution, otherwise known as the
Environmental Rights Amendment, provides:
The people have a right to clean air, pure water, and to the preservation of
the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s
public natural resources are the common property of all the people, including
generations yet to come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
5
By order dated February 5, 2016, the trial court struck Count IX of the Complaint.
3
and West Virginia, through the Commonwealth of Pennsylvania, with a terminus at
Sunoco’s Marcus Hook Industrial Complex in Delaware County, Pennsylvania. See
In re Condemnation by Sunoco Pipeline L.P., 143 A.3d 1000, 1008 (Pa. Cmwlth.)
(en banc) (Martin), appeal denied, 164 A.3d 485 (Pa. 2016). The project consists of
two phases—ME1 (combination of new and existing pipelines) and ME2 (entirely
new pipeline). Id.
As Plaintiffs note in paragraph 56 of their Complaint, efforts by Sunoco
to acquire easements over private property to construct ME2 have met resistance,
spawning litigation across the Commonwealth under the Eminent Domain Code,
some of which has reached this Court. The lead case is Martin. Martin involved
litigation over declarations of taking that Sunoco filed in the Court of Common Pleas
of Cumberland County pursuant to Section 302 of the Eminent Domain Code,6
26 Pa. C.S. § 302, condemning private property for purposes of constructing ME2.7
The property owners filed preliminary objections, contesting the declarations. In
doing so, they raised some of the legal challenges that Plaintiffs raise in their
Complaint.
Specifically, the property owners in Martin contended that ME2 was an
interstate pipeline regulated by the Federal Energy Regulatory Commission (FERC)
and not an intrastate pipeline regulated by the PUC as a public utility. As a
consequence, Sunoco could not use its eminent domain power as a public utility to
6
The Eminent Domain Code provides that the power of condemnation can only be
exercised by the filing of a declaration of taking in the court of common pleas of the county in
which the real property is located. 26 Pa. C.S. §§ 301, 302.
7
In Martin, this Court observed that ME1 “has been completed.” Martin,
143 A.3d at 1008.
4
construct ME2.8 Martin, 143 A.3d at 1015-16; (Compl. Ct. I). The property owners
in Martin also contended that Sunoco lacked certificates of public convenience
(CPC) from the PUC to construct ME1 and ME2, which, under the Public Utility
Code, Sunoco must possess in order to exercise its eminent domain power as a public
utility.9 Martin, 143 A.3d at 1016-17; (Compl. Ct. II). They also contended that
Sunoco failed to demonstrate a public need served by the taking. Martin,
143 A.3d at 1017-18.
Ultimately, a divided en banc panel of this Court rejected the property
owners’ contentions and allowed the takings to proceed:
For these reasons, we conclude that common pleas
did not err when it overruled Condemnees’ Preliminary
Objections to Sunoco’s Declarations of Taking. We
further conclude that Sunoco is regulated as a public utility
by the PUC and is a public utility corporation, and Mariner
East interstate service is a public utility service rendered
by Sunoco within the meaning of the BCL.[10]
Martin, 143 A.3d at 1020 (citation omitted).11 In so doing, the Court expressly held
that Sunoco possesses the requisite approvals from the PUC to construct ME2 to
provide intrastate service. Id. at 1015-16. Since Martin, other property owners
across the Commonwealth have fought against Sunoco’s efforts to take their
property by eminent domain, with similar results. See, e.g., In re Condemnation by
Sunoco Pipeline L.P., 165 A.3d 1044 (Pa. Cmwlth. 2017) (Katz), appeal denied,
8
Under Section 1511(a)(2) of the Business Corporation Law of 1988 (BCL),
15 Pa. C.S. § 1511(a)(2), a public utility corporation may acquire private property through eminent
domain for certain “principal purposes,” among which is the transportation of natural gas “for the
public.”
9
See 66 Pa. C.S. §§ 1101, 1104.
10
15 Pa. C.S. §§ 1101-4146.
11
The undersigned and Judge Patricia McCullough each filed a dissenting opinion.
5
(Pa., No. 507 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco
Pipeline L.P. (Pa. Cmwlth., No. 1780 C.D. 2016, filed Oct. 24, 2017) (Andover
Homeowners’ Assoc., Inc.), petition for allowance of appeal pending, (Pa., No. 814
MAL 2017, filed Nov. 27, 2017); In re Condemnation by Sunoco Pipeline L.P. (Pa.
Cmwlth., No. 2030 C.D. 2016, filed June 29, 2017) (Perkins), appeal denied, (Pa.,
No. 501 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco Pipeline
L.P. (Pa. Cmwlth., No. 1306 C.D. 2016, filed May 26, 2017) (Blume), appeal denied,
(Pa., No. 434 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco
Pipeline L.P. (Pa. Cmwlth., No. 565 C.D. 2016, filed May 24, 2017) (Homes for
Am.), appeal denied, (Pa., No. 429 MAL 2017, filed Jan. 22, 2018); In re
Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 220 C.D. 2016, filed
May 15, 2017) (Gerhart), appeal denied, (Pa., No. 400 MAL 2017, filed
Jan. 22, 2018).
In their Complaint, Plaintiffs attempt to open up a new front in the battle
to stop Sunoco from exercising the power of eminent domain to construct ME1 and
ME2.12 They commenced their assault in the trial court, although it is undisputed
that neither ME1 nor ME2 enters Philadelphia County. Moreover, unlike the
property owners in the cases cited above, Plaintiffs do not allege to be
“condemnees”—i.e., owners of real property subject to filed declarations of taking
under the Eminent Domain Code. See 26 Pa. C.S. § 103 (definition of
“condemnee”). Instead, Ms. deMarteleire and Mr. Bomstein allege that their home
in Delaware County was, at the time they filed their Complaint, on the proposed
route of ME2. (Compl. ¶ 108.)
12
As previously noted, ME1 “has been completed.” Martin, 143 A.3d at 1008.
6
As for its interest, Clean Air Council also identifies as a member Eric
Friedman, a resident of the Andover Development in Thornberry Township,
Delaware County, and President of the Andover Homeowners’ Association
(Andover HOA). (Compl. ¶¶ 118-19.) Plaintiffs allege that the path of ME2 would
run through open space in the Andover Development and that the Andover HOA and
Mr. Friedman oppose any easement to Sunoco to construct ME2.
(Compl. ¶¶ 120-25.) Indeed, Sunoco proceeded under the Eminent Domain Code
by filing a declaration of taking in the Court of Common Pleas of Delaware County
for purposes of securing an easement to construct a portion of ME2 within the
Andover HOA open space. The Andover HOA filed preliminary objections,
challenging the declaration. The Delaware County court overruled the preliminary
objections, thereby allowing the taking. This Court affirmed. Andover
Homeowners’ Assoc., Inc., slip. op. at 11.13
Clean Air Council also points to one of its members, Thomas Casey of
Chester County. According to the Complaint, Sunoco “initially expressed intent” to
take Mr. Casey’s land for purposes of ME2, but it ultimately chose not to do so.
(Compl. ¶ 129.) Clean Air Council also alleges generally that it “has members
throughout Pennsylvania, including along the route of” ME2 who do not wish to
give or sell an easement to Sunoco for ME2. (Compl. ¶¶ 116, 235.) Clean Air
Council, however, does not identify any of these members, nor does it allege that
any of them face an imminent taking of their property by Sunoco.
As noted above, Counts I and II of the Complaint include claims that
are identical in all material respects to challenges that this Court addressed in Martin.
13
In our decision, we vacated and remanded only that portion of the Delaware County
court’s order relating to the amount of the bond filed by Sunoco. Andover HOA has filed a petition
for allowance of appeal with the Pennsylvania Supreme Court, docketed at 814 MAL 2017.
7
With respect to relief, Plaintiffs seek a judicial declaration that Sunoco “may not
exercise the right of eminent domain against” Ms. deMarteleire and Mr. Bomstein
and other Clean Air Council members. (R.R. 98a, 100a.) In Counts III and IV,
Plaintiffs seek a judicial declaration that Sunoco’s condemnations to construct the
Mariner East Project violate Plaintiffs’ property rights secured by the Takings
Clause of the Fifth Amendment to the United States Constitution14 and Article X,
Section 4 of the Pennsylvania Constitution15 and that, as a result, Sunoco “may not
exercise the right of eminent domain against” Ms. deMarteleire and Mr. Bomstein
and other Clean Air Council members. (Compl. Cts. III, IV.) In this regard,
Plaintiffs specifically allege that Sunoco is using its eminent domain power to effect
a “private taking” for a “private purpose.”
In Counts V and VI, Plaintiffs purport to raise a procedural due process
challenge under the Fourteenth Amendment to the United States Constitution and
Article I, Section 1 of the Pennsylvania Constitution.16 (R.R. 103a.) Specifically,
14
The Fifth Amendment to the United States Constitution, made applicable to the States
through the Fourteenth Amendment to the United States Constitution, prohibits the taking of
private property for “public use” without just compensation. The Pennsylvania Constitution
includes a similar takings clause in Article I, Section 10, which prohibits the taking of private
property for “public use” without legal authority and just compensation. Plaintiffs, however, do
not specifically allege a violation of Article I, Section 10 in their Complaint.
15
Article X, Section 4 of the Pennsylvania Constitution requires municipal and other
corporations, when exercising the power of eminent domain, to make just compensation for the
property taken for “public use.”
16
The Due Process Clause of the Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Though not explicitly found in the text, the Pennsylvania Supreme Court has
held that the guarantee of due process of law in Pennsylvania jurisprudence emanates from
Article I, Sections 1, 9, and 11 of the Pennsylvania Constitution. Lyness v. State Bd. of Med.,
605 A.2d 1204, 1207 (Pa. 1992). The due process standards of the United States and Pennsylvania
Constitutions are, however, essentially the same. Muscarella v. Commonwealth, 87 A.3d 966, 973
(Pa. Cmwlth. 2014).
8
Plaintiffs aver that they did not receive adequate notice of any PUC authorizations
granted to Sunoco to construct ME1 or ME2. Had they received such notices,
Plaintiffs allege that they would have appeared before the PUC to oppose such
authorizations. As for relief, Plaintiffs seek a “hearing to determine whether
[Sunoco] is entitled to exercise eminent domain rights over” Ms. deMarteleire’s and
Mr. Bomstein’s property and other Clean Air Council members’ properties. (Id.)
In Count VII of the Complaint, Plaintiffs allege that Sunoco has
fiduciary duties as a trustee under the Environmental Rights Amendment to consider
the impact its construction of the Mariner East Project would have on Pennsylvania’s
public natural resources. Plaintiffs further allege that Sunoco has failed to perform
this assessment. Accordingly, Plaintiffs seek a declaration that Sunoco may not
pursue eminent domain with respect to either ME1 or ME2 “until it demonstrates to
the PUC that its pipeline project comports with the Environmental Rights
Amendment.” (R.R. 104a (emphasis added).) Finally, in Count VIII, Plaintiffs seek
preliminary and final injunctive relief, barring Sunoco from using eminent domain
to acquire easements to construct ME1 and ME2 based on the substantive claims in
the Complaint. (R.R. 107a.)
In its Opinion in support of its order denying Sunoco’s motion for
summary judgment, the trial court rejected Sunoco’s contention that this Court’s
decisions in Martin and subsequent eminent domain cases related to the Mariner
East Project compelled the trial court to enter judgment in Sunoco’s favor as a matter
of law on Plaintiffs’ claims. (Trial Ct. Op. at 6-10.) With respect to Counts I and II,
the trial court noted that discovery is ongoing and factual issues remain that preclude
the entry of summary judgment. With respect to the remaining substantive counts
(Counts III-VII), the trial court noted that these constitutional claims are outside of
9
the ambit of the Eminent Domain Code and the adjudicative authority of the PUC.
Accordingly, they were not raised nor could they have been raised in the
condemnation cases previously addressed by this Court. Finally, the trial court noted
that because summary judgment would be denied with respect to the substantive
counts of the Complaint, Count VIII, which derivatively seeks injunctive relief,
should also proceed.
III. ANALYSIS
A. Standard of Review
Our standard of review on appeal from the grant or denial of summary
judgment is de novo, and our scope of review is plenary. Pentlong Corp. v. GLS
Capital, Inc., 72 A.3d 818, 823 n.6 (Pa. Cmwlth. 2013). Our review is limited to
determining whether the trial court committed an error of law or abuse of
discretion. Wolfe v. Stroudsburg Area Sch. Dist., 688 A.2d 1245, 1247 (Pa.
Cmwlth. 1997). Summary judgment is only appropriate where, upon examination
of the record in the light most favorable to the nonmoving party, no genuine issue of
material fact exists and the moving party is clearly entitled to a judgment as a matter
of law. Dwight v. Girard Med. Ctr., 623 A.2d 913, 915 (Pa. Cmwlth. 1993).
In their brief, Plaintiffs raise several concerns about issue preservation,
suggesting that Sunoco did not raise or preserve below the questions currently on
appeal with respect to some or all of the counts of the Complaint. In response, we
note that it is the trial court, not Sunoco, that has certified questions to this Court as
“controlling questions of law” and has amended its prior order, denying summary
judgment, to indicate that its ruling denying Sunoco’s motion for summary judgment
“involves” the four questions that the trial court certified in its amending order
pursuant to Section 702(b) of the Judicial Code. Moreover, in their Answer to
10
Petition for Permission to Appeal Under Pa. R.A.P. 1311 filed with the Court in this
matter, Plaintiffs concede that Sunoco raised the issues currently before this Court
in several filings before the trial court, most recently its motion for summary
judgment. (Pls.’ Answer at 1-2.) For these reasons, we will proceed to address the
issues certified by the trial court consistent with the standard and scope of review set
forth above.
B. Question 1: Are Plaintiffs’ Claims Outside the Subject Matter
Jurisdiction of the [Trial Court] or Otherwise Non-Justiciable
Collateral Attacks on the Public Utility Commission’s
Determinations?17
1. Count I (Interstate/Intrastate) and Count II (Lack of CPCs)
The essence of Plaintiffs’ Contention in Count I of the Complaint is that
ME1 and ME2 are interstate pipelines regulated by the FERC, not the PUC. Sunoco,
therefore, lacks the authority to condemn property to construct ME1 and ME2
afforded under the BCL to public utilities regulated by the PUC. In Count II,
Plaintiffs contend that even if the Mariner East Project is intrastate in nature, the
PUC has not issued the required CPCs for the pipelines. Sunoco essentially argues
that in Martin, the issues raised by Plaintiffs in Counts I and II of the Complaint
have already been decided. Sunoco contends that Plaintiffs’ effort to press the issues
in the trial court amount to collateral attacks on the CPCs issued by the PUC to
Sunoco.
In response, Plaintiffs claim that common pleas courts, and not the
PUC, have “jurisdiction over claims as to the validity of a utility’s taking.” (Pls.’
Br. at 16.) In support, Plaintiffs cite to this Court’s opinion in Southeastern
17
A court’s lack of subject matter jurisdiction is a nonwaivable issue that can be raised at
any stage of the proceeding, even by an appellate court sua sponte. See, e.g., LeFlar v. Gulf Creek
Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986).
11
Pennsylvania Transportation Authority v. Public Utility Commission,
991 A.2d 1021 (Pa. Cmwlth. 2010) (SEPTA). In that case, SEPTA appealed the
PUC’s approval of an application to site and construct a high voltage power line. On
appeal, SEPTA contended that the PUC should have denied the application, because
the utility could not justify condemnation of the property to construct the power line.
Agreeing with the PUC, this Court held that whether a public utility may exercise
the power of eminent domain is not an issue that the PUC considers when reviewing
an application for a CPC:
[T]he only role of the PUC is to consider if the project is
necessary or proper for the benefit of the public, and it is
expressly barred from considering the power of the utility
to condemn. After the PUC authorizes a utility to exercise
the power of eminent domain, a condemnation is far from
final, as 15 Pa. C.S. § 1511(g) makes clear that before
taking the land, the utility must prevail in a condemnation
action at the Court of Common Pleas. As our Supreme
Court held, in interpreting an earlier but substantially
similar version of the statute: “Once there has been a
determination by the PUC that the proposed service is
necessary and proper, the issues of scope and validity and
damages must be determined by a Court of Common Pleas
exercising equity jurisdiction.”
SEPTA, 991 A.2d at 1023 (quoting Fairview Water Co. v. Pa. Pub. Util.
Comm’n, 502 A.2d 162, 167 (Pa. 1985)).
We agree with Plaintiffs in their assessment of the law but only to a
point. We do not read Counts I and II of the Complaint as challenging orders or
CPCs issued by the PUC to Sunoco. Rather, Plaintiffs challenge the power of
Sunoco to condemn property by eminent domain. As we noted in SEPTA, in order
to exercise the power of eminent domain conferred by the BCL, a public utility must
12
first obtain a CPC from the PUC.18 In evaluating a request for a CPC, the PUC only
considers whether the proposed service is “necessary or proper for the service,
accommodation, convenience, or safety of the public.” 66 Pa. C.S. § 1103(a). There
is no provision in either the Public Utility Code or the BCL that also authorizes the
PUC, in the context of a CPC administrative proceeding, to consider whether the
public utility may exercise the power of eminent domain to effect a taking in
furtherance of the authorized service. Indeed, as this Court observed in SEPTA,
although the issuance of the CPC allows the public utility to commence proceedings
under the Eminent Domain Code, success in the common pleas court is not
guaranteed. To effect a condemnation, the public utility must proceed and succeed
in the common pleas court under the Eminent Domain Code. 15 Pa. C.S. § 1511(g)
(requiring all condemnation and taking of property authorized by section to follow
procedures under Eminent Domain Code); see also Martin, 143 A.3d at 1019
(discussing separate roles of PUC and common pleas courts).
In Counts I and II, like the condemnees in Martin, Plaintiffs challenge
the power of Sunoco to exercise eminent domain on two grounds: (1) Sunoco is not
a public utility for purposes of the Mariner East Project because the project is purely
interstate in nature and not regulated by the PUC; and (2) if intrastate, Sunoco has
not secured the required CPCs from the PUC. Neither claim amounts to a collateral
attack of the CPCs that the PUC has issued to Sunoco or a challenge to the PUC’s
determination of “public need” set forth in those CPCs. There remains, however,
the question of the trial court’s subject matter jurisdiction.
18
For purposes of Sunoco’s ME1 and ME2 pipelines, that requirement is found in
Section 1104 of the Public Utility Code, 66 Pa. C.S. § 1104, which provides: “Unless its power
of eminent domain existed under prior law, no domestic public utility . . . shall exercise any power
of eminent domain within this Commonwealth until it shall have received the certificate of public
convenience required by section 1101.”
13
The Pennsylvania Supreme Court has observed: “Subject matter
jurisdiction relates to the competency of a court to hear and decide the type of
controversy presented. Jurisdiction is a matter of substantive law.” Commonwealth
v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003), cert. denied, 540 U.S. 1118 (2004). As
for jurisdiction of the courts of common pleas, Section 931(a) of the Judicial Code,
42 Pa. C.S. § 931(a), provides:
Except where exclusive original jurisdiction of an action
or proceeding is by statute or by general rule adopted
pursuant to section 503 (relating to assignment of matters)
vested in another court of this Commonwealth, the courts
of common pleas shall have unlimited original jurisdiction
of all actions and proceedings, including all actions and
proceedings heretofore cognizable by law or usage in the
courts of common pleas.
(Emphasis added.) The test for determining whether a court has subject matter
jurisdiction is whether the court has “‘the power to enter upon the inquiry, not
whether it might ultimately decide that it was unable to grant the relief sought in the
particular case.’” Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Prob. and
Parole), 860 A.2d 25, 29 (Pa. 2004) (quoting Strank v. Mercy Hosp. of
Johnstown, 102 A.2d 170, 172 (Pa. 1954)).
Applying this test, we hold that the trial court’s general jurisdiction
under Section 931(a) of the Judicial Code does not extend to claims seeking to
adjudicate the power and right of a public utility to condemn property. As noted
above, the substantive law of this Commonwealth requires that public utilities
wishing to condemn private property abide by the procedures set forth in the Eminent
Domain Code. The Eminent Domain Code “provides a complete and exclusive
procedure and law to govern all condemnations of property for public purposes and
the assessment of damages.” 26 Pa. C.S. § 102. To condemn property, the
14
condemnor must commence an action “in the court of the county in which the
property is located or, if the property is located in two or more counties, in the court
of any one of the counties.” 26 Pa. C.S. § 301 (emphasis added). The condemnor
does so by, inter alia, filing in court a declaration of taking and providing notice to
the condemnee. 26 Pa. C.S. §§ 302-305. Thereafter, the condemnee may file
preliminary objections, challenging the condemnation on certain grounds:
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) (emphasis added).
In Vartan v. Reed, 514 A.2d 646 (Pa. Cmwlth. 1986), appeal denied,
536 A.2d 1335 (Pa. 1987), the owner of property in the City of Harrisburg was
advised that a local redevelopment authority planned to acquire the property by
condemnation. Rather than wait for this to occur, the property owner commenced
an action in common pleas court, seeking an order enjoining the authority from
attempting to acquire the property by eminent domain. The common pleas court
granted the injunction, and the authority appealed. This Court reversed, finding that
the common pleas court lacked subject matter jurisdiction over the case: “It has
uniformly been held that equity does not have jurisdiction to enjoin a condemnation,
whether or not a declaration of taking has been filed; and that preliminary objections
15
shall be the exclusive method of challenging the right or power to condemn.”
Vartan, 514 A.2d at 648 (emphasis added).19
Whether Sunoco is a public utility for purposes of the Mariner East
Project (Count I) and, if it is, whether it has secured the required CPCs to proceed
therewith (Count II) are questions that go to the “power and right” of Sunoco to
condemn land by eminent domain under the BCL. Under the substantive law of this
Commonwealth, the exclusive method for raising these questions is through
preliminary objections filed (1) by the condemnee, (2) after the filing of a declaration
of taking, and (3) in the court of common pleas where the property is located. As
Plaintiffs’ action below does not meet any of these parameters, the trial court lacks
subject matter jurisdiction over Counts I and II of the Complaint.
2. Counts III and IV (Unconstitutional Takings)
As noted above, in Counts III and IV of the Complaint, Plaintiffs’ claim
that Sunoco’s condemnations of property for the Mariner East Project violate the
Takings Clause of the Fifth Amendment and Article X, Section 4 of the Pennsylvania
Constitution. To properly exercise eminent domain under these provisions,
Plaintiffs contend, the condemnations in question must be for a public purpose.
Citing, inter alia, the Pennsylvania Supreme Court’s decision in Middletown
Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007), Plaintiffs contend that the test
for determining whether a condemnation is for a “public purpose” is whether the
19
In Vartan, the Court addressed the exclusiveness of the remedy under Section 406(a) of
the 1964 Eminent Domain Code (Former Code). See Act of June 22, 1964, Special Sess.,
P.L. 84, as amended, formerly 26 P.S. § 1 406(a), repealed by Section 5 of the Act of May 4, 2006,
P.L. 112. Under Section 306(a) of the current Eminent Domain Code, 26 Pa. C.S. § 306(a),
“preliminary objections are still the exclusive method of challenging the condemnor’s right to
take, the declaration of taking itself, and any procedural irregularities by the condemnor.” Lang
v. Dep’t of Transp., 13 A.3d 1043, 1049 (Pa. Cmwlth. 2011).
16
public is “the primary and paramount beneficiary.” Lands of Stone,
939 A.2d at 337-38. Plaintiffs seek the opportunity to establish below that although
a public need may be served by the Mariner East Project, for purposes of triggering
the power to condemn under the BCL, the condemnations do not satisfy the “primary
and paramount beneficiary test.”
Counts III and IV of the Complaint raise questions that go to the “power
and right” of Sunoco to condemn land by eminent domain under the United States
and Pennsylvania Constitutions. Indeed, Lands of Stone, the opinion on which
Plaintiffs rely, arose under the Eminent Domain Code. The township in that case
filed a declaration of taking to condemn property for preservation of open space.
The condemnee filed preliminary objections, challenging, inter alia, the power of
the township to take his property. The Pennsylvania Supreme Court held that
although the township had the statutory power to condemn the property for open
space (recreational purposes), the record was inadequate to determine whether the
condemnation violated the Takings Clause of the Fifth Amendment to the United
States Constitution. Accordingly, it remanded the matter to common pleas
(proceeding under the Eminent Domain Code) to develop a record and consider the
question. Lands of Stone, 939 A.2d at 337-40.
The trial court concluded that it could exercise jurisdiction over these
claims, citing the Pennsylvania Supreme Court’s decision in Robinson Township v.
Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson Twp.). That case, however,
involved a facial validity challenge to a statute enacted by the General Assembly,
which authorized certain private entities in the oil and gas industry to condemn
property through eminent domain. The plaintiffs claimed that the statute was
unconstitutional because it authorized private takings in violation of the
17
Pennsylvania and United States Constitutions. In rebuffing the Commonwealth’s
contention that the plaintiffs could not bring their challenge until a company
attempted to exercise that authority by filing a declaration of taking under the
Eminent Domain Code and then raise it by preliminary objection, the Supreme Court
explained:
Waiting for a test case implicating a taking under
[the statute]—and subject to the Eminent Domain Code’s
exclusive procedures—is certainly an available avenue for
testing the constitutionality of the provision. But, as a
facial challenge to the validity of a statutory provision and
pure question of law, the citizens’ claim is also generally
appropriate for pre-enforcement review in a declaratory
judgment action.
Robinson Twp., 83 A.3d at 990 (emphasis added).
By analogy, this case would be similar to Robinson Twp. if Plaintiffs
were challenging the constitutionality of Section 1511(a)(2) of the BCL, which
provides public utilities with the power to condemn private property.
Counts III and IV, however, do not raise facial challenges to the constitutionality of
a statute; rather, they call into question the public purpose of particular takings across
the Commonwealth. Moreover, the claims do not involve pure questions of law, as
Plaintiffs contend at several points in their appellate brief. (See, e.g., Pls.’ Br. at 35.)
The trial court’s reliance on Robinson Twp., therefore, was misplaced.
For these reasons, the Eminent Domain Code provides the exclusive
procedure for challenging the power and right of Sunoco to condemn under the
United States and Pennsylvania Constitutions. The trial court, therefore, lacks
subject matter jurisdiction over Counts III and IV of the Complaint.
18
3. Counts V and VI (Due Process)
In Counts V and VI, under the guise of due process claims, Plaintiffs
aver that the CPCs Sunoco received from the PUC affected the property rights of the
Plaintiffs as well as other Clean Air Council members, as Sunoco has relied on them
to support its exercise of eminent domain to obtain easements for the construction
of the Mariner East Project. Plaintiffs allege that Sunoco should have been required
under Pennsylvania recording laws to index the CPCs in county records as
encumbrances. (Compl. ¶¶ 207, 210.) Sunoco did not record the CPCs in the
Delaware County property records relating to Ms. deMarteleire’s and Mr.
Bomstein’s property. (Compl. ¶ 207.) As a result, neither Ms. deMarteleire nor Mr.
Bomstein ever had actual or constructive notice that Sunoco “was planning to
construct a pipeline in their backyard.” (Compl. ¶ 208.) Further, Plaintiffs posit that
if Sunoco were to apply to the PUC for approval to build ME1 and ME2 and had
notified Plaintiffs of its application, Plaintiffs would have appeared to oppose any
such application. (Compl. ¶ 212.)
Sunoco contends that Plaintiffs’ due process claims are collateral
attacks on the process the PUC followed to issue the CPCs to Sunoco that relate to
the Mariner East Project and the validity and enforceability of those CPCs.
It contends that such issues fall within the PUC’s exclusive jurisdiction. Sunoco
does not cite any authority to support its position. Plaintiffs respond, however, that
claims that a condemnor failed to afford due process is “collateral” to an eminent
domain proceeding and, therefore, can be raised before a common pleas court sitting
in equity. In support, Plaintiffs cite to cases from this Court, one of which addresses
due process claims.
19
In Condemnation of Legislative Route 201, 349 A.2d 819 (Pa.
Cmwlth. 1975) (en banc) (Becker), the Pennsylvania Department of Transportation
(PennDOT) initiated condemnation proceedings under the Former Code to acquire
private property for purposes of a road-widening project. Before initiating
condemnation proceedings and during the design phase of the project, then-existing
state and federal law required PennDOT to provide notice of the project to the public
with an opportunity to be heard with respect to, inter alia, the environmental impacts
of the design. Becker, 349 A.2d at 819-20. After PennDOT completed the design
phase and initiated proceedings under the Former Code to condemn property in
Chester County, the condemnees filed preliminary objections, which included an
objection under the Environmental Rights Amendment. The common pleas court
dismissed the preliminary objections, and the condemnees appealed. Id. at 820.
On appeal to this Court, the condemnees argued that PennDOT violated
their due process rights by failing to give them personal notice of and an opportunity
for hearing as to the environmental impacts of the project: “This, they argue, makes
the condemnation proceedings a nullity.” Id. Initially, this Court considered
whether the procedural due process challenge fell within the scope of the four
authorized preliminary objections under the Former Code, which are materially
identical to the four grounds set forth in Section 306(a)(3) of the Eminent Domain
Code. The Court first held that the challenge did not go to PennDOT’s “power or
right” to condemn, which is provided for in a statute separate and apart from the
procedures that govern planning for highway projects. Id. at 821. Noting that the
condemnees did not challenge the sufficiency of the security or the declaration of
the taking itself, the Court considered whether the condemnees’ due process
challenge could be considered an objection to “any other procedure followed by the
20
condemnor.” Id. The Court concluded that it did not, noting that this preliminary
objection is confined to other procedures set forth in the Former Code directly related
to the filing of a declaration of taking. Id. (citing Simco Stores, Inc. v. Phila.
Redevelopment Auth., 302 A.2d 907 (Pa. Cmwlth. 1973), aff’d, 317 A.2d 610
(1974)).
The Court concluded that the appeal was analogous to the Court’s
earlier decision in Simco:
The instant appeal is analogous to Simco, wherein a
local ordinance protected businesses from eviction for one
year subsequent to the declaration of taking. The
condemnor attempted such an eviction, and the
condemnee raised preliminary objections based on the
ordinance. We found such an objection to be improper,
because even though the conduct was improper under the
ordinance, the power to take was still effective.
Id. (emphasis added). Concluding, then, that the condemnees’ due process challenge
could not be raised by preliminary objection under the Former Code, the Court held:
Even if one assumes that failure to give personal
notice to [the condemnees] of the highway project hearing
here involved constituted legal error, preliminary
objections to the declaration of taking is not the proper
vehicle to challenge such procedures. Here the challenge
goes to a matter that is primarily of a planning nature and
collateral to the condemnation proceeding.
Id. at 821-22 (emphasis added).
Although Sunoco has not persuaded the Court that Plaintiffs’ due
process challenge lies in the exclusive jurisdiction of the PUC, we are also
unpersuaded by Plaintiffs’ arguments that their due process challenges in
Counts V and VI of the Complaint are akin to the collateral claims discussed in
Becker and Simco. In Becker, PennDOT’s power to condemn was unaffected by its
alleged failure to afford due process in the design phase of a highway project.
21
In Simco, the condemnor allegedly acted in contravention of a local ordinance after
it filed the declaration of taking, not at all implicating the power to file the
declaration of taking in the first place. Here, by contrast, Sunoco’s power and right
to condemn property by Eminent Domain depends on the existence and validity of
CPCs issued by the PUC to Sunoco. See 66 Pa. C.S. § 1104. Counts V and VI
plainly level a due process challenge to the validity and enforceability of the CPCs.
As such, although couched in terms of due process, the claims are similar in kind to
Counts I through IV of the Complaint in that they call into question the “power and
right” of Sunoco to condemn land by eminent domain under the BCL.
Accordingly, for the reasons set forth above with respect to
Counts I through IV, the claims set forth in Counts V and VI of the Complaint must
be raised in the context of proceedings under the Eminent Domain Code.20 The trial
court, therefore, erred in concluding that Plaintiffs could invoke the trial court’s
general jurisdiction under Section 931(a) of the Judicial Code to address their due
process claims.
C. Question 2: Are Plaintiffs’ Claims Based Upon Pennsylvania
Constitution Article I, Section 27 Also Outside the Subject Matter
Jurisdiction of the [Trial Court] or Otherwise Non-Justiciable
Collateral Attacks on the Department of Environmental
Protection’s Issuance of Environmental
Permits to [Sunoco] for the Pipelines?
In Count VII of the Complaint, Plaintiffs seek a declaratory judgment
that Sunoco violated its fiduciary duties as a trustee under the Environmental Rights
Amendment by failing to consider the environmental impacts of the Mariner East
Project before moving forward. They seek a declaration that Sunoco may not
20
In light of this ruling, we need not consider the fourth question that the trial court certified
for appeal, relating to the legal sufficiency of Plaintiffs’ due process claims.
22
acquire property by eminent domain for the Mariner East Project until Sunoco
demonstrates “to the PUC” that the project “comports with the Environmental Rights
Amendment.” (R.R. 104a (emphasis added).)
As noted above, in ascertaining whether the trial court has subject
matter jurisdiction over this claim, we concern ourselves with the power of the trial
court to enter upon the inquiry, not whether it might be able to issue the relief
Plaintiffs seek. The inquiry prompted by the Complaint is whether Sunoco has
violated the Environmental Rights Amendment with respect to the construction of
the Mariner East Project. In support of its jurisdictional challenge, Sunoco claims
that Count VII is nothing more than a collateral attack on the decisions by the PUC
and the Department of Environmental Protection approving the project. Instead,
Sunoco contends, Plaintiffs should have raised any Environmental Rights
Amendment concerns in appeals from the determinations of those agencies relating
to the Mariner East Project. In response, Plaintiffs raise several points, none of
which appear to address directly the question of the trial court’s jurisdiction.
Our review of the Complaint, particularly Count VII, convinces us that
Plaintiffs are not seeking to attack collaterally PUC or Department of Environmental
Protection approvals relating to the Mariner East Project. Instead, Plaintiffs’ legal
claim is that Sunoco, and Sunoco alone, has violated the Environmental Rights
Amendment in choosing to proceed with the project. Whether Sunoco has secured
necessary regulatory approvals may have some relevance to its defense to Plaintiffs’
claim,21 but anticipated defenses do not dictate our analysis of the trial court’s
subject matter jurisdiction.
21
Until the Pennsylvania Supreme Court’s decision in Pennsylvania Environmental
Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (PEDF), one of the factors that
23
When we accepted this interlocutory appeal, we agreed to consider the
four issues that the trial court certified, along with the question of whether Sunoco
is “the Commonwealth,” such that it can be sued for violating the duties of the
“trustee” under the Environmental Rights Amendment. We requested that the
parties address this question in their briefs. Both parties did so. Plaintiffs, in
addition, argued that because Sunoco did not raise this question below, the question
was not properly before the Court: “[T]he question may not be considered on appeal,
sua sponte or otherwise.” (Pls.’ Br. at 42.) It is apparent that Plaintiffs do not
appreciate the purpose behind the Court’s question.
In PEDF, the Pennsylvania Supreme Court explained the scope of
protections afforded under the Environmental Rights Amendment:
[The Environmental Rights Amendment] grants two
separate rights to the people of this Commonwealth. The
first right is contained in the first sentence, which is a
prohibitory clause declaring the right of citizens to clean
air and pure water, and to the preservation of natural,
scenic, historic and aesthetic values of the environment.
This clause places a limitation on the state’s power to act
contrary to this right, and while the subject of this right
may be amenable to regulation, any laws that
unreasonably impair the right are unconstitutional.
The second right reserved by Section 27, set forth in
its second sentence, is the common ownership by the
people, including future generations, of Pennsylvania’s
public natural resources. . . .
this Court considered when evaluating a challenge under the Environmental Rights Amendment
was whether the challenged action complied with all applicable statutes and regulations relating to
the protection of the Commonwealth’s public natural resources. In PEDF, however, the Supreme
Court rejected this Court’s three-part test, first articulated in Payne v. Kassab, 312 A.2d 86 (1973),
aff’d, 361 A.2d 263 (Pa. 1976). PEDF, 161 A.3d at 930. This does not necessarily mean, however,
that compliance with statutes and regulations is irrelevant to the inquiry, even under the new
standards adopted by the Pennsylvania Supreme Court in PEDF.
24
The third clause . . . establishes a public trust,
pursuant to which the natural resources are the corpus of
the trust, the Commonwealth is the trustee, and the people
are the named beneficiaries.
PEDF, 161 A.3d at 931-32 (citations and footnote omitted) (emphasis added). In
terms of the trustee’s obligation, the Supreme Court offered the following relevant
elaboration:
Trustee obligations are not vested exclusively in
any single branch of Pennsylvania’s government, and
instead all agencies and entities of the Commonwealth
government, both statewide and local, have a fiduciary
duty to act toward the corpus with prudence, loyalty, and
impartiality.
Id. at 931 n.23. Accordingly, in terms of actionable rights and duties, the
Environmental Rights Amendment does two things: (1) it limits the power of “the
state” to act in derogation of protected environmental interests; and (2) it obligates
“the Commonwealth” to act as a trustee of Pennsylvania’s public natural resources.
One of the questions that the trial court certified and this Court accepted
goes to the trial court’s subject matter jurisdiction over Plaintiffs’ Environmental
Rights Amendment claim. In light of the foregoing, the Environmental Rights
Amendment does not impose duties or obligations on private parties. See Feudale
v. Aqua Pa., Inc., 122 A.3d 462, 466 (Pa. Cmwlth. 2015) (“The plain language of
the Environmental Rights Amendment charges the Commonwealth, as trustee, with
the duty to conserve and maintain Pennsylvania’s public natural resources, and we
are unaware of any case law applying this duty to non-Commonwealth entities.”),
aff’d, 135 A.3d 580 (Pa. 2016). Plaintiffs contend, however, that as a public utility
exercising eminent domain powers, Sunoco is not acting purely as a private party.
Instead, it is exerting “governmental powers.” (Pls.’ Br. at 44.) In essence, then,
25
Plaintiffs contend that Sunoco, acting under authority conferred by the PUC, is
acting as “the Commonwealth government.”22
With limited exceptions not applicable here, Section 761(a) of the
Judicial Code, 42 Pa. C.S. § 761(a), vests within this Court exclusive original
jurisdiction over all civil actions or proceedings “[a]gainst the Commonwealth
government, including any officer thereof, acting in his official capacity.”
42 Pa. C.S. § 761(a); see In re Condemnation of Legislative Route 58018,
375 A.2d 1364, 1367-68 (Pa. Cmwlth. 1977) (en banc) (holding that question of
whether PennDOT complied with Environmental Rights Amendment was collateral
to eminent domain proceeding and is “properly raised only before this Court within
our original jurisdiction”). Accordingly, as Plaintiffs’ Environmental Rights
Amendment claim hinges on the theory that Sunoco is exercising the powers of the
Commonwealth government as a public utility, this Court, and not the trial court,
has exclusive original jurisdiction over the claim, and the trial court, on remand,
should transfer this matter to this Court’s original jurisdiction pursuant to
Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a) (relating to transfers of
erroneously filed matters).23 This is not to say that the Court has accepted Plaintiffs’
22
Sunoco is clearly not acting on behalf of a local government agency. If Sunoco is not
“the Commonwealth” for purposes of the Environmental Rights Amendment, Plaintiffs cannot
prevail on their Environmental Rights Amendment claim.
23
Section 5103(a) of the Judicial Code provides:
(a) General rule.--If an appeal or other matter is taken to or brought in
a court or magisterial district of this Commonwealth which does not have
jurisdiction of the appeal or other matter, the court or magisterial district judge shall
not quash such appeal or dismiss the matter, but shall transfer the record thereof
to the proper tribunal of this Commonwealth, where the appeal or other matter shall
be treated as if originally filed in the transferee tribunal on the date when the appeal
26
theory of liability. Rather, we reserve for subsequent proceedings the merits
question of whether a public utility, such as Sunoco, exercising the power of eminent
domain, acts as the Commonwealth government and thus has independent duties or
obligations to the people of Pennsylvania under the Environmental Rights
Amendment.
D. Question 3: Do Plaintiffs, as Non-Condemnees,
Lack Standing to Pursue Their Claims?
The final issue to be resolved is whether Plaintiffs, as non-condemnees,
may pursue their claims against Sunoco. Through our dispositions of the above
issues, we have essentially winnowed Plaintiffs’ Complaint down to a single count,
alleging violations of the Environmental Rights Amendment by Sunoco in failing to
consider the environmental impacts of the Mariner East Project before moving
forward. We now consider the issue of whether Plaintiffs have standing to maintain
this claim.
On this point, Sunoco’s briefs are of little value. Boiled down to its
essence, Sunoco’s contention is that only condemnees can challenge Sunoco’s
exercise of eminent domain. Because neither Ms. deMarteleire nor Mr. Bomstein
are condemnees with respect to the Mariner East Project, Sunoco claims that they
lack standing to challenge Sunoco’s exercise of eminent domain. Because the
individual Plaintiffs lack standing, Clean Air Council, relying on the individual
Plaintiffs’ status as members, also lacks standing in Sunoco’s view. In short,
Sunoco’s reasoning is premised entirely on its belief that Plaintiffs are challenging
a particular condemnation of land. In Count VII of the Complaint, they are not.
or other matter was first filed in a court or magisterial district of this
Commonwealth.
(Emphasis added.)
27
Whatever law may restrict who may lodge preliminary objections to a declaration of
taking under the Eminent Domain Code does not necessarily limit who may
challenge in this Court’s original jurisdiction a particular governmental decision for
failure to comply with the Environmental Rights Amendment.
On the question of standing to bring a claim under the Environmental
Rights Amendment, we look to the Pennsylvania Supreme Court’s decision in
Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson Twp. II).
There, the Pennsylvania Supreme Court held that property owners within a zoning
district had standing to bring an Environmental Rights Amendment claim based
upon “the serious risk of alteration in the physical nature of their respective political
subdivisions and the components of their surrounding environment.” Robinson
Twp. II, 83 A.3d at 922. Here, even if they are not actual condemnees,
Ms. deMarteleire and Mr. Bomstein allege in the Complaint that the Mariner East
Project is either on or in close proximity to their property. They assert that the
project poses an increased risk of spills or explosions that would impair their
property. (R.R. 87a.) Consistent with the Pennsylvania Supreme Court’s decision
in Robinson Twp. II, this Court is satisfied that Ms. deMarteleire and Mr. Bomstein
have asserted an interest sufficient to support their standing to assert their
Environmental Rights Amendment claim against Sunoco. Concomitantly, Clean Air
Council also has standing. Robinson Twp. II, 83 A.3d at 922 (“Under Pennsylvania
law, an association has standing as representative of its members to bring a cause of
action even in the absence of injury to itself, if the association alleges that at least
one of its members is suffering immediate or threatened injury as a result of
the action challenged.”).
28
IV. CONCLUSION
For the reasons set forth above, the Eminent Domain Code provides the
exclusive procedure to raise the claims set forth in Counts I through VI of the
Complaint. In addition, because Plaintiffs contend that Sunoco, with respect to its
exercise of eminent domain in furtherance of the Mariner East Project, is acting as
“the Commonwealth,” this Court has exclusive original jurisdiction over Plaintiffs’
Environmental Rights Amendment claim in Count VII of the Complaint.
We, therefore, will reverse the trial court’s May 25, 2017 Order and remand with
instruction that the trial court enter summary judgment in favor of Sunoco on
Counts I through VI of the Complaint and transfer what remains to this Court
pursuant to Section 5103(a) of the Judicial Code.
P. KEVIN BROBSON, Judge
29
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clean Air Council, :
Margaret M. deMarteleire, and :
Michael S. Bomstein :
:
v. : No. 1112 C.D. 2017
:
Sunoco Pipeline L.P., :
Appellant :
ORDER
AND NOW, this 30th day of April, 2018, it is hereby ORDERED that
the Order of the Court of Common Pleas of Philadelphia County (trial court), dated
May 25, 2017, as amended by Order dated July 13, 2017, is REVERSED, and the
matter is REMANDED with instruction that the trial court enter summary judgment
in favor of Appellant (Defendant below) Sunoco Pipeline L.P. as to Counts I through
VI of the Complaint and transfer what remains to this Court’s original jurisdiction
pursuant to Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a).
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge