In Re: Condemnation by Sunoco Pipeline L.P. ~Appeal of: Homes for America, Inc. ( 2017 )

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 the Township of :
Heidelberg, Lebanon County, :
Pennsylvania, over the Lands :
of Homes for America, Inc. :
: No. 565 C.D. 2016
Appeal of: Homes for America, Inc. : Submitted: September 30, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 24, 2017
Homes for America, Inc. (Condemnee) appeals from the Lebanon
County Common Pleas Court’s (trial court) March 24, 2016 order overruling its
Preliminary Objections to Sunoco Pipeline L.P.’s (Sunoco) Declaration of Taking
(Declaration).1 Condemnee contends that the trial court erred because Sunoco’s
Mariner East 2 Project is not an intrastate and interstate pipeline dually regulated by
the Pennsylvania Public Utility Commission (PUC) and the Federal Energy
1
Appeals filed by Gerald V. and Katherine M. Thomas (collectively, Thomas) (Pa. Cmwlth.
No. 563 C.D. 2016) and Heath K. and Brenda H. Nell (collectively, Nell) (Pa. Cmwlth. No. 564
C.D. 2016) were consolidated with Condemnee’s appeal on April 26, 2016. However, because
Thomas and Nell have since resolved their disputes with Sunoco, this Court discontinued their
appeals by October 16, 2016 order. Only Condemnee’s appeal remains active.
Regulation Commission (FERC), Sunoco is not a public utility, Sunoco does not have
eminent domain power, and Sunoco’s Declaration is barred by the collateral estoppel
doctrine.2
This Court en banc decided a majority of Condemnee’s issues in In re
Condemnation by Sunoco Pipeline, L.P., 143 A.3d 1000 (Pa. Cmwlth. 2016), petition
for allowance of appeal denied, (Pa. Nos. 571, 572, 573 MAL 2016, filed December
29, 2016) (Sunoco I). After careful review of the record in this case, and in
accordance with Sunoco I, we affirm the trial court’s order.
I. Background
On August 5, 2015, Sunoco filed the Declaration to condemn permanent
and temporary easements across Condemnee’s property located on South Canaan
Grove Road, Newmanstown, Heidelberg Township, Lebanon County (Property) for
the construction, operation and maintenance of Sunoco’s Mariner East 2’s pipelines.
See Reproduced Record (R.R.) at 749a-767a, 880a-885a.
Condemnee filed Preliminary Objections to the Declaration in
accordance with Section 306 of the Eminent Domain Code,3 26 Pa.C.S. § 306,
alleging: Sunoco does not have condemnation authority (Objection 1); Sunoco’s
corporate resolution does not authorize Sunoco to use eminent domain for the
intrastate pipeline (Objection 2); Sunoco is collaterally estopped from asserting
eminent domain power for Mariner East 2 after it was denied in Loper v. Sunoco
Pipeline, L.P. (C.P. York No. 2013-SU-004518-05, filed February 24, 2014)
2
In its Statement of Questions Involved set forth in Condemnee’s brief filed with this Court,
Condemnee’s first issue is whether the trial court erred in finding that Mariner East 2 is both an
interstate and intrastate service. Condemnee’s second issue is whether Mariner East 2 may be
dually regulated by the PUC and FERC. Because both issues involve the same analysis, we
combined those issues as Issue 1 herein.
3
26 Pa.C.S. §§ 101-1106.
2
(Objection 3); the Declaration falsely represents Mariner East 2 as an intrastate
pipeline (Objection 4); Sunoco seeks approval for two pipelines despite that FERC
only approved one (Objection 5); and, Pennsylvania law prohibits Sunoco’s attempt
to obtain eminent domain power under the Pennsylvania Business Corporation Law
of 1988 (BCL)4 without a FERC Certificate of Public Convenience (CPC) (Objection
6).5 See R.R. at 920a-973a. Sunoco opposed Condemnee’s Preliminary Objections.
See R.R. at 974a-993a.
The trial court conducted a hearing on November 30, 2015. See R.R. at
1269a-1453a. On March 24, 2016, the trial court ordered Condemnee’s Preliminary
Objections overruled, as follows:
1. The Mariner East 2 Pipeline will provide both interstate
and intrastate service for ethane, propane, and other
petroleum products in the Commonwealth.
2. Such pipeline service is dually-regulated, with [FERC]
having the authority to regulate interstate service and the
[PUC] having the authority to regulate intrastate service.
3. Since [Sunoco] is regulated by the [PUC] for the Mariner
East 2 Project, it meets the definition of a public utility
providing public utility service under the Pennsylvania
[BCL].
4. As a public utility providing public utility service under
the [BCL], [Sunoco] has the power of eminent domain.
4
15 Pa.C.S. §§ 1101-9507. Section 1511(a)(2) of the BCL, 15 Pa.C.S. § 1511(a)(2),
provides that “public utility corporations” may exercise the power of eminent domain to condemn
property for the transportation of, inter alia, natural gas and petroleum products. Section 1103 of
the BCL, 15 Pa.C.S. § 1103, defines 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 . . . .” FERC is an agency of the United States that may regulate an
entity as a public utility under this section.
5
Condemnee also objected to the sufficiency of Sunoco’s bond; however, on December 9,
2015, Sunoco posted a bond agreeable to Condemnee. See R.R. at 1469a-1474a. Accordingly,
Condemnee’s seventh objection was rendered moot. See Trial Court Op. at 12.
3
5. The doctrine of collateral estoppel does not apply to
compel a different result.
6. The bonds posted by [Sunoco] in response to our Order
of December 15, 2015 are adequate to cover the damages
anticipated by Condemnee[].
7. In light of the above, the Preliminary Objections . . . are
[OVERRULED] in their entirety.
Condemnee Br. App. A, Trial Ct. Order. Also on March 24, 2016, the trial court filed
an opinion in support of its order. See Condemnee Br. App. A, Trial Ct. Op. On
April 8, 2016, Condemnee appealed to this Court.6
II. Analysis
A. Dual Regulation
Condemnee first argues that the trial court erred by finding that Mariner
East 2 is both an intrastate and interstate pipeline subject to the PUC’s regulation.
Condemnee also contends that the trial court erred by finding that Mariner East 2
service is dually regulated by the PUC and FERC, because no law supports dual
regulation, and Section 104 of the Public Utility Code (Code),7 66 Pa.C.S. § 104,
prohibits the PUC’s regulation of interstate commerce. We disagree.
The record made before the trial court in this matter is nearly identical to
the one made in Sunoco I. Both contain the same Sunoco witness testimony, Mariner
East Project exhibits and PUC orders. Therefore, this Court’s thorough and
exhaustive analysis and summary of Sunoco’s background in Sunoco I is relevant to
the Declaration filed in this case.
6
“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.” Sunoco I, 143 A.3d at 1014 n.17.
7
66 Pa.C.S. §§ 101-3316.
4
1. Regulation of Sunoco as a Public Utility
Sunoco has operated as a Pennsylvania public utility since 2002, when it
received the PUC’s approval for the transfer, merger, possession, and use of all assets
of the Sun Pipe Line Company (Sun) and of the Atlantic Pipeline Corporation
(Atlantic), both of which were public utilities subject to the PUC’s jurisdiction. See
R.R. at 769a-772a. Accordingly, the PUC issued a CPC (2002 CPC) authorizing
Sunoco “to transport petroleum products in the former service territory of Sun and
Atlantic[,]” between Delmont, Westmoreland County, Pennsylvania and Twin Oaks,
Delaware County, Pennsylvania, which includes Lebanon County. R.R. at 773a; see
also R.R. at 773a-776a. In granting the 2002 CPC, the PUC declared that the transfer
of assets to Sunoco “provides an affirmative public benefit” (R.R. at 774a) and that
“the granting of [Sunoco’s] application is necessary or proper for the service,
accommodation, convenience and safety of the public.” R.R. at 769a.
2. The Mariner East Project
Sunoco planned the Mariner East Project to transport natural gas liquids
(NGLs),8 such as propane, ethane, and butane within the service territory authorized
8
According to the United States Energy Information Administration:
[NGLs] are hydrocarbons—in the same family of molecules as natural
gas and crude oil, composed exclusively of carbon and hydrogen.
Ethane, propane, butane, isobutane, and pentane are all NGLs . . .
NGLs are used as inputs for petrochemical plants, burned for space
heat and cooking, and blended into vehicle fuel . . . .
The chemical composition of these hydrocarbons is similar, yet their
applications vary widely. Ethane occupies the largest share of NGL
field production. It is used almost exclusively to produce ethylene,
which is then turned into plastics. Much of the propane, by contrast,
is burned for heating, although a substantial amount is used as
petrochemical feedstock . . . .
5
by the 2002 CPC. See R.R. at 755a; see also In re Condemnation of Sunoco Pipeline,
L.P. (Pa. Cmwlth. No. 220 C.D. 2016, filed September 2, 2016);9 Sunoco I, 143 A.3d
at 1007-11. The Mariner East Project consists of multiple phases, and the overall
goal is to relieve the oversupply of NGLs in the Marcellus and Utica Shale basins and
to remedy propane shortages in Pennsylvania and the Northeast. See R.R. at 755a.
Sunoco initially intended the Mariner East Project to prioritize interstate
service. The first phase, known as Mariner East 1, was designed to transport NGLs
from the Marcellus and Utica basins east to the Marcus Hook Industrial Complex
(MHIC) located in both Delaware County and Claymont, Delaware. See R.R. at
755a. However, the record indicates that Sunoco also contemplated the intrastate
transportation of propane for delivery to Pennsylvania customers. See R.R. at 755a.
During the completion of Mariner East 1, Sunoco experienced a significant increase
in demand for intrastate shipments of propane, driven by local consumer demand.
See R.R. at 755a. The record further reflects that harsh winter conditions experienced
during the 2013-14 winter season, combined with a pipeline infrastructure deficit, led
to propane shortages and changing market conditions. See R.R. at 755a. Because of
the circumstances, Sunoco accelerated its plans to provide intrastate shipments of
propane, in addition to interstate shipments of propane and ethane, through the
Mariner East Project. See R.R. at 755a.
This increased focus on intrastate shipments was the impetus for the
second phase of Sunoco’s Mariner East Project (Mariner East 2). See R.R. at 761a-
United States Energy Information Administration, Today in Energy, April 20, 2012, available at
http://www.eia.gov/todayinenergy/detail.cfm?id=5930&src=email (last visited May 20, 2016).
9
We acknowledge that this Court’s unreported memorandum opinions may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). We reference this Court’s In re
Condemnation of Sunoco Pipeline, L.P. (Pa. Cmwlth. No. 220 C.D. 2016, filed September 2, 2016)
decision herein for its persuasive value.
6
762a. Mariner East 2 will consist of pipelines with access points in Ohio, West
Virginia, and Pennsylvania. See R.R. at 762a. Product will be placed into a pipeline
(on-ramps), and there will be multiple exit points within Pennsylvania where product
will be removed from the pipeline (off-ramps). See R.R. at 762a. Mariner East 2
generally will run parallel to the Mariner East 1 line. See R.R. at 763a. The Mariner
East Project (through Mariner East 1 and Mariner East 2) will transport petroleum
products in Sunoco’s certificated areas as an integrated service.10
3. PUC Orders and Tariffs
The record contains references to Sunoco initiating several PUC
proceedings when its focus for the Mariner East Project moved from interstate to
intrastate transportation of NGLs after the winter of 2013-14. See R.R. at 754a-767a.
These proceedings, and the resulting PUC orders, include the following relevant
actions:
 July 24, 2014 order – the PUC reaffirmed Sunoco’s
authority to transport petroleum products between
Delmont, Westmoreland County, and Twin Oaks,
Delaware County (see R.R. at 786a-796a);
10
The PUC’s August 21, 2014 Order states:
Subject to continued shipper interest, Sunoco intends to undertake a
second phase of the Mariner East [P]roject, which will expand the
capacity of the project by constructing: (1) a 16[-]inch or larger
pipeline, paralleling its existing pipeline from Houston, PA to the
Marcus Hook Industrial Complex and along much of the same route,
and (2) a new 15 miles of pipeline from Houston, PA to a point near
the Pennsylvania-Ohio boundary line. This second phase, sometimes
referred to as ‘Mariner East 2’, will increase the take-away capacity
of natural gas liquids from the Marcellus Shale and will enable
Sunoco to provide additional on-loading and off-loading points within
Pennsylvania for both intrastate and interstate propane shipments.
R.R. at 806a-807a.
7
 August 21, 2014 order – the PUC approved a tariff for
Sunoco’s west-to-east intrastate movement of propane
from Mechanicsburg to Twin Oaks (see R.R. at 798a-
802a);
 August 21, 2014 order – the PUC granted Sunoco a
CPC authorizing it to provide intrastate transportation
service of petroleum products in Washington County,
which expanded the service territory in which Sunoco is
authorized to provide its Mariner East service (see R.R.
at 805a-809a);
 October 29, 2014 order – the PUC reaffirmed that
“Sunoco has been certificated as a public utility in
Pennsylvania . . . , and the existence of [PUC o]rders
granting the [CPCs] to Sunoco is prima facie evidence
of the facts therein, including that Sunoco is a public
utility under the Code.” (R.R. at 861a; see also R.R. at
822a-878a).
 January 15, 2015 order – the PUC approved a tariff for
Sunoco’s west-to-east intrastate movement of propane,
reflecting a new origin point of Houston, Washington
County (see R.R. at 811a-815a); and,
 March 26, 2015 order – the PUC approved a
supplemental tariff for intrastate shipments from
Delmont, Westmoreland County to Twin Oaks,
Delaware County (see R.R. at 817a-820a).
See Sunoco I; see also In re Condemnation of Sunoco Pipeline, L.P. (Pa. Cmwlth.
No. 220 C.D. 2016, filed September 2, 2016).
The Sunoco I Court also “provide[d] some . . . background information
on the nature of the interrelationships between [sic] Sunoco, [the] PUC and [FERC,]”
as follows:
Both FERC and [the] PUC regulate the shipments of natural
gas and petroleum products or service through those
pipelines, and not the actual physical pipelines conveying
those liquids. FERC’s jurisdiction is derived from the
8
Interstate Commerce Act (ICA)[11] and applies to
interstate movements, while the Code and [the] PUC’s
jurisdiction apply to intrastate movements. This
jurisdiction is not mutually exclusive. . . .
Sunoco I, 143 A.3d at 1004 (original bold text emphasis, footnotes and original
record citations omitted; bold text emphasis added).
[I]t is [the] PUC, and not FERC, that has authority to
regulate intrastate shipments. Similarly, . . . pipeline
service operators in Pennsylvania, such as Sunoco, can be,
and frequently are, simultaneously regulated by both FERC
and [the] PUC through a regulatory rubric where FERC
jurisdiction is limited only to interstate shipments, and [the]
PUC’s jurisdiction extends only to intrastate shipments. . . .
....
The record substantiates that the pipeline system previously
provided and currently provides interstate and intrastate
service on the same pipelines. . . . [The] PUC has
regulated Sunoco’s intrastate pipeline transportation of
petroleum products and refined petroleum products
since 2002, and FERC has regulated Sunoco’s interstate
service of the same products on the same pipelines. . . .
Sunoco I, 143 A.3d at 1005-06 (emphasis added).
Therefore, when the condemnees in Sunoco I made the identical dual
regulation arguments,12 this Court determined, based on the PUC orders related to the
Mariner East Project, FERC’s decision in Amoco Pipeline, Co., 62 F.E.R.C. ¶ 61119,
at 61803-61804, 1993 WL 25751, at *4 (Feb. 8, 1993) (finding that “the
commingling of oil streams is not a factor in fixing jurisdiction under the ICA”), and
other related authority, “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.”
11
42 U.S.C. § 60502.
12
Condemnee’s counsel in the instant appeal, Michael F. Faherty, Esquire, also represented
the condemnees in Sunoco I.
9
Sunoco I, 143 A.3d at 1017 (original bold emphasis omitted; bold emphasis added).
Thus, the Sunoco I Court held that the trial court
did not err when it concluded that ‘PUC regulated intrastate
shipments of NGL[s,]’ including service provided by
Mariner East 2, and that ‘[a]s a result, [Sunoco] has the
power of eminent domain to condemn property for the
construction of [Mariner East 2].’ ([Sunoco I Trial Ct.]
Op. at 4.)
Id. at 1017 (original bold emphasis omitted; bold emphasis added). The Sunoco I
Court further held “that the record establishes that the expanded service to be
provided by the Mariner East 2 pipeline will involve both interstate service
(subject to FERC regulation) and intrastate service (subject to [the] PUC[’s]
regulation) . . . . ” Id. at 1015 (original bold emphasis omitted; bold emphasis
added).
Because this Court’s Sunoco I decision controls our analysis of this
issue, we hold that the trial court here properly held that Mariner East 2 is both an
intrastate and interstate pipeline dually regulated by the PUC and FERC.
B. Public Utility
Condemnee further argues that the trial court erred by finding that
Sunoco is a public utility, since Mariner East 2 “is in interstate commerce and not for
the public.” Condemnee Br. at 8, 29. Because Condemnee failed to raise this issue in
its Preliminary Objections, it is waived. See In re Condemnation of Land for the S. E.
Cent. Bus. Dist. Redevelopment Area #1, 946 A.2d 1143 (Pa. Cmwlth. 2008).
Notwithstanding, the Sunoco I condemnees likewise argued before the
Cumberland County Common Pleas Court that Sunoco failed to demonstrate a public
need for the Mariner East 2 pipeline. Therein, the condemnees contended that the
PUC’s approval of a service is only a preliminary step, and it was the responsibility
10
of the trial court in an eminent domain proceeding to review the public need and to
make a determination of the scope and validity of the condemnation for the Mariner
East 2 pipeline. Id. at 1017.
As to the PUC’s jurisdiction, this Court in Sunoco I stated:
[T[he Code charges [the] PUC with responsibility to
determine which entities are public utilities and to regulate
how public utilities provide public utility service. This has
long been the statutory mandate. See, e.g., Pottsville Union
Traction Co. v. P[a.] Pub[.] Serv[.] Comm’n, 67 Pa. Super.
301 (1917). It is beyond purview that the General
Assembly intended [the] PUC to have statewide jurisdiction
over public utilities and to foreclose local public utility
regulation. Duquesne Light Co. v. Monroeville Borough,
298 A.2d 252 (Pa. 1972).
Sunoco I, 143 A.3d at 1017. The Sunoco I Court further explained:
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. In Fairview Water Co. v. Public Utility
Comm[ission], . . . 502 A.2d 162 ([Pa.] 1985), our Supreme
Court discussed the proper forum for a condemnee’s
challenge to the legality of a taking when a public utility
attempts to condemn an easement and [the] PUC has
determined that condemnee’s property is necessary for the
utility service. The case stemmed from a dispute between
Fairview and a power company over the power company’s
continuing use of an easement previously agreed to by the
parties. Id. at 163. The power company filed an application
with [the] PUC requesting a finding and determination that
its transmission line was necessary and proper for the
service, accommodation, convenience, or safety of the
public. A PUC Administrative Law Judge determined that
the service was necessary and proper and also determined
the scope and validity of the easement. This court affirmed.
On appeal, Fairview argued that [the] PUC lacked
jurisdiction to determine the scope and validity of the
easement. Id. at 163-64. The Supreme Court agreed and
stated: ‘[o]nce there has been a determination by the PUC
that the proposed service is necessary and proper, the issues
11
of scope and validity and damages must be determined by a
Court of Common Pleas exercising equity jurisdiction.’ Id.
at 167. As Sunoco here holds CPCs issued by [the] PUC
and [the] PUC in its [o]rders issuing the CPCs found the
authorized service to be necessary and proper, it is left to
common pleas to evaluate scope and validity of the
easement, but not the public need.
As illustrated by Fairview, determinations of public need
for a proposed utility service are made by [the] 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 Auth. v. Pub[.] Util[.] Comm’n, 868 A.2d 384, 386
([Pa.] 2005) (emphasis added).[]
Sunoco I, 143 A.3d at 1018-19 (footnote and emphasis omitted).
Accordingly, based upon this Court’s ruling on this precise issue in
Sunoco I, we find no error in the trial court’s conclusion in this case that
even if this objection were not waived, . . . the
determination as to whether a particular service by a public
utility will be in the public’s interest is a determination to
be made by the . . . PUC. In determining whether to grant
CPCs, the PUC investigates and determines whether a
company will be acting in the interest of the public. As to
the public benefit of the Mariner East [P]roject, the PUC
has ruled on multiple occasions that the project is in the
public interest. See, e.g. Condemnor’s Ex[.] 4 at 10;
Condemnor’s Ex[.] 6[] at 4.
Trial Ct. Op. at 13. Accordingly, the trial court’s reasoning is consistent with Sunoco
I, and it properly concluded that Sunoco is a public utility.
C. Eminent Domain
Condemnee next argues that the trial court erred by finding that Sunoco
has eminent domain powers for Mariner East 2 because its corporate resolution
12
authorized an interstate pipeline, and Sunoco seeks to condemn for two pipelines
when it only asserts the need for one.13 We disagree.
As previously described, in the public utility context, an
entity must meet separate but related requirements set forth
in both the BCL and the Code to be a public utility
corporation clothed with the power of eminent domain.
Section 1511(a)(2) of the BCL provides that ‘public utility
corporations’ may exercise the power of eminent domain to
condemn property for the transportation of, inter alia,
natural gas and petroleum products. Section 1103 of the
BCL defines public utility corporation as ‘[a]ny domestic or
foreign corporation for profit that . . . is subject to
regulation as a public utility by the [PUC] . . . .’ 15 Pa. C.S.
§ 1103. Section 1104 of the Code requires that a public
utility must possess a CPC issued by [the] PUC pursuant to
Section 1101 of the Code before exercising eminent
domain. While courts of common pleas have jurisdiction to
review whether an entity attempting to exercise eminent
domain power meets the BCL criteria, that jurisdiction does
not include the authority to revisit PUC adjudications. A
CPC issued by [the] PUC is prima facie evidence that
[the] PUC has determined that there is a public need for
the proposed service and that the holder is clothed with
the eminent domain power.
Sunoco I, 143 A.3d at 1017-18 (emphasis added).
Specific to the PUC orders issued regarding the Mariner East Project, the
Sunoco I Court noted that the PUC’s July 24, 2014 order found that intrastate pipeline
service proposed by Sunoco would result in “numerous potential public benefits” by
allowing Sunoco “to immediately address the need for uninterrupted deliveries of
propane in Pennsylvania and to ensure that there is adequate pipeline capacity to meet
peak demand for propane during the winter heating season.” Id. at 1019. The Court
further noted that in its August 21, 2014 order authorizing the provision of intrastate
13
The Sunoco I condemnee made the same arguments to the trial court, but did not develop
the corporate resolution argument on appeal to this Court. See Sunoco I, 143 A.3d at 1011; see also
id. at 1014 n.16.
13
petroleum and refined petroleum products pipeline transportation service in
Washington County, the PUC stated that:
[W]e believe that approval of this Application is necessary
and proper for the service, accommodation, and
convenience of the public. We believe granting Sunoco
authority to commence intrastate transportation of
propane in Washington County will enhance delivery
options for the transport of natural gas and natural gas
liquids in Pennsylvania. In the wake of the propane
shortage experienced in 2014, Sunoco’s proposed service
will increase the supply of propane in markets with a
demand for these resources, including in Pennsylvania,
ensuring that Pennsylvania’s citizens enjoy access to
propane heating fuel. Additionally, the proposed service
will offer a safer and more economic transportation
alternative for shippers to existing rail and trucking
services.
Id.
The Court held that “there is no basis for a common pleas court to
review a PUC determination of public need,” and that “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.” Id. Accordingly, this Court concluded in Sunoco I that
Sunoco holds a CPC issued by the PUC for Mariner East 2, it “is clothed with the
eminent domain power.” Id. at 1018.
Relative to Sunoco’s corporate resolution, the trial court ruled:
[Section 1511(g)(2) of the BCL,] 15 Pa.C.S. [§]
1511(g)(2)[,] provides, in relevant part, that a petition for
approval and order filing bond ‘shall be accompanied by the
bond and a certified copy of the resolution of
condemnation. The resolution shall describe the nature and
extent of the taking.’ Id. We find that the Resolution[] to
Condemn submitted by Sunoco satisfy the requirements of
[Section] 1511 [of the BCL]. Contrary to Condemnee[’s]
Preliminary Objection, the Resolution[] do[es] not specify
14
that [it is] for an interstate pipeline, [r]ather, [it] state[s] that
[it is] for the Mariner East 2 Project, which as noted above,
we have found to be both an interstate and intrastate
pipeline. The Resolution[] further specif[ies] that [it]
cover[s] Lebanon County and specifically identif[ies] the
subject [Property] and the extent of the easements sought on
[the Property]. We therefore find that [the Resolution is]
sufficiently specific to authorize the condemnation[] . . . .
Trial Ct. Op. at 8. Based upon our review of the record, we hold that the trial court
properly determined that Sunoco’s corporate resolution authorized the Property’s
condemnation. See R.R. at 887a-892a. Further, since “determinations of public need
for a proposed utility service are made by [the] PUC, not the courts[,]” neither the
trial court nor this Court may assess whether Sunoco, in fact, needs one or two
pipelines for Mariner East 2.14 Sunoco I, 143 A.3d at 1019. Accordingly, the trial
court’s reasoning, consistent with Sunoco I, properly concluded that Sunoco has
eminent domain powers for Mariner East 2.
D. Collateral Estoppel
Lastly, Condemnee argues that the trial court erred by finding that the
Loper decision denying Sunoco eminent domain power does not compel the same
result in this case. We disagree.
The doctrine of collateral estoppel bars relitigation of an
issue where a question of law or fact essential to a judgment
was actually litigated and determined by a court of
competent jurisdiction. Collateral estoppel applies only
when the issue decided in the prior case and the issue
presented in the current case are identical; there was a final
judgment on the merits; the issue was essential to the
judgment; the party against whom estoppel is asserted had a
full and fair chance to litigate the merits; and the party
14
Since Condemnee expressly objected to Sunoco’s need for two pipelines in Objection 5
(see R.R. at 925a), there is no merit to Sunoco’s argument (see Sunoco Br. at 4) that the issue was
waived.
15
against whom estoppel is asserted was a party or in privity
with a party in the prior case.
Foster v. Colonial Assur. Co., 668 A.2d 174, 180-81 (Pa. Cmwlth. 1995) (citation
omitted), aff’d, 673 A.2d 922 (Pa. 1996).
The condemnees in Sunoco I similarly argued that Sunoco’s declarations
of taking were barred by collateral estoppel based on Loper. At issue in Loper was
whether Sunoco satisfied the definition of “public utility corporation” in the BCL, as
a result of the regulation of its interstate service by FERC. However, at the time
Loper was decided, Sunoco had not yet sought or obtained PUC approval to provide
intrastate service. Thus, the Loper court addressed only whether Sunoco was a public
utility corporation because it was subject to regulation as a public utility by an officer
or agency of the United States, i.e., FERC, and did not decide whether Sunoco was a
public utility corporation because it was subject to regulation as a public utility by the
PUC.
However, the Sunoco I Court found that, subsequent to the Loper
decision and after the polar vortex in 2013-14, Sunoco repurposed Mariner East 2 to
be both an interstate pipeline, as well as an intrastate pipeline subject to PUC
regulation. Sunoco filed its declarations of taking in Cumberland County as a public
utility corporation subject to regulation as a public utility by the PUC. As the
question before the trial court and on appeal to this Court was whether Sunoco was
subject to regulation as a public utility by the PUC because the Mariner East 2
pipeline was also an intrastate service, we concluded that the issue decided in Loper
was not the same as in Sunoco I, and hence that collateral estoppel did not bar
Sunoco’s declarations of taking.
Here, as it did in Sunoco I, Sunoco presented evidence that, after Loper
was decided, an intrastate component was added to the Mariner East Project in the
form of on-ramps and off-ramps within Pennsylvania, thus, providing for the PUC’s
16
regulation. In finding that the Loper decision does not bar the instant case, the trial
court reasoned:
Relying upon Loper as the basis for the application of
collateral estoppel in the instant case, Condemnee[] cannot
meet [its] burden, as there have been subsequent, significant
changes to the character of the Mariner East 2 Project in the
two years since Judge Linebaugh’s ruling. At the time
Loper was decided, the Mariner East 2 [P]roject was
intended to be only an interstate pipeline, one which crossed
Pennsylvania state lines but contained no stations for the
on-loading and off-loading of transported materials within
state lines. Thus, Loper only addressed whether Sunoco
had condemnation authority under federal law for what
was then a purely interstate pipeline. Since that time, in
response to market conditions, Sunoco has designated,
with [the] PUC[’s] approval, Mariner East 2 as both an
intrastate as well as an interstate pipeline. N.T. at 69-70,
79, 104-105, 143. Therefore, the facts of Loper are
inapposite to those of the instant case[], and the decision
cannot be the basis of Condemnee[’s] assertion of collateral
estoppel.
Trial Ct. Op. at 9-10 (emphasis added; footnote omitted).15 Based upon the PUC’s
approvals of Mariner East 2 as both an intrastate and interstate pipeline since Loper
15
The Sunoco I Court similarly held:
[The trial court] did not err in finding that collateral estoppel does not
bar this action. The issue decided in Loper is not the same issue
raised in this case, and so it does not meet the first condition. At issue
in Loper was whether Sunoco satisfied the definition of public utility
corporation as a result of the regulation of its interstate service by
FERC and not as a result of PUC’s regulation of its intrastate service.
At the time Loper was decided, Sunoco had not yet sought or
obtained [the] PUC[’s] approval to provide intrastate service. . . .
The Loper court addressed only whether Sunoco was a public utility
corporation because it was subject to regulation as a public utility by
an officer or agency of the United States, i.e., FERC, and did not
decide whether Sunoco was a public utility corporation because it was
subject to regulation as a public utility by [the] PUC, the issue raised
here. Although [the c]ondemnees disagree that Sunoco can prevail on
17
was decided, we agree that the issues in the two cases are not identical and, thus,
consistent with Sunoco I, the trial court properly concluded that collateral estoppel
does not compel a different result.
III. Conclusion
Because we discern no error in the trial court’s determinations pertaining
to the dual regulation of Sunoco’s Mariner East 2 project by the PUC and FERC,
Sunoco’s status as a public utility, Sunoco’s eminent domain powers and collateral
estoppel, and these issues are directly controlled by this Court’s Sunoco I decision
with which the trial court’s decision is in accord, we affirm the trial court’s order
overruling Condemnee’s Preliminary Objections to Sunoco’s Declaration.
___________________________
ANNE E. COVEY, Judge
this issue that is a separate inquiry from whether the issue was
previously decided. For these reasons, we agree that collateral
estoppel is not a bar to this case.
Id. at 1015 (emphasis added).
18
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 the Township of :
Heidelberg, Lebanon County, :
Pennsylvania, over the Lands :
of Homes for America, Inc. :
:
: No. 565 C.D. 2016
Appeal of: Homes for America, Inc. :
ORDER
AND NOW, this 24th day of May, 2017, the Lebanon County Common
Pleas Court’s March 24, 2016 order is affirmed.
___________________________
ANNE E. COVEY, 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, :
Liquid Petroleum Gas, and Other :
Petroleum Products in the Township :
of Heidelberg, Lebanon County, :
Pennsylvania, over the Lands of :
Homes for America, Inc. :
: No. 565 C.D. 2016
Appeal of: Homes for America, Inc. : Submitted: September 30, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: May 24, 2017
For the reasons set forth in my dissent in In Re: Condemnation by
Sunoco Pipeline, L.P. (Gerhart Appeal), (Pa. Cmwlth. No. 220 C.D. 2016, filed
May 15, 2017), I dissent here as well.
___________________________
JOSEPH M. COSGROVE, Judge