Mike Faherty appeared in the York County Court of Common Pleas on February 6, 2014, to oppose a Sunoco pipeline (Mariner East) request for an immediate right to survey a Mechanicsburg property. Mike argued that the request should be denied because federal jurisdiction preempted the state jurisdiction or because Sunoco failed to correctly start litigation per Pennsylvania Rules of Civil Procedure. In the alternative, Mike argued for denial of the request because: (1) Sunoco is not a Condemnor, (2) Pennsylvania Business Corporation Law does not allow eminent domain for propane or ethane transportation, (3) Federal law requires a Certificate of Public Convenience and Necessity, and (4) State law requires a Certificate of Public Convenience and Necessity. The judge approved Mike’s suggestion that the judge accept written argument over the following two weeks.
Author Archive | Eminent Domain PA
Mike Faherty represented multiple property owners vs. Sunoco Pipeline on January 21 before Judge Emery in Washington, Pa. Mike pointed out that the Sunoco legal authority to date has yet to identify any specific law giving eminent domain power for the Mariner East Pipeline. Mike also elicited evidence that the appraisal approach was wrong per the Eminent Domain Code and the bond security was inadequate. Judge Emery may decide the initial four cases within a month.
Pa. Eminent Domain Pipeline Fight Headed to CourtNBC 10 Philadelphia | Sunday, Jan 19, 2014
Ron and Sallie Cox’s house in North Strabane Township is nestled behind a lush forest they are fighting to protect from a new natural gas pipeline inching toward their property.
The couple are so adamant about preserving their land that they have found themselves among more than two dozen property owners in Washington County involved in a complicated legal battle challenging Sunoco Pipeline’s right to cross their land. “It’s a disaster,” Sallie Cox said last week as her attorney prepared their case against the Philadelphia-based company’s claims it’s a public utility and has a right to impose eminent domain powers to enter private property for the 50-foot-wide project.
Arguments in the Cox case will be heard Tuesday in Washington County Court, and it’s outcome likely will set the tone for how the others will play out as Sunoco constructs a 50-mile pipeline from Washington County to Delmont in Westmoreland County. Sunoco began filing declarations of taking in Washington County Court last year, lawsuits that sought to condemn property and have the court approve the amount of bonds it needed to post to cover any damages.
President Judge Debbie O’Dell Seneca ruled the cases are too complicated to hear individually and consolidated them Nov. 11. The Coxes then claimed they were being treated unfairly and challenged Sunoco’s public utility status. Eight others involved in the case also countersued.
As a result, Washington County Judge Katherine B. Emery ruled the countersuits need to be settled before the company can proceed with condemnations, and she will proceed first with hearing arguments in the Cox appeal as to whether Sunoco is a public utility.
“The property owners have their full right to use their property as they wish,” said Harrisburg attorney Michael F. Faherty, who represents the Coxes and nine other property owners. Faherty argued in his Wednesday response to the court that Sunoco needs to obtain eminent domain authorization for the pipeline from the Federal Energy Regulatory Commission, claiming the state court has no jurisdiction in the case. He said some of his clients don’t want Sunoco to take their land, while others feel they have not been offered “persuasive enough prices.”
The Coxes are among those who don’t want the pipeline and have complained that they wouldn’t be allowed to plant anything on the right of way and don’t want to deal with the company spraying to maintain a clear path for the pipeline. “I’m one of the people here who has the most to lose,” said the Coxes’ neighbor, Raymond Romanetti, who races horses and has yet to join the lawsuit. “It’s ridiculous that someone has to hire an attorney to protect their property,” Romanetti said.
In Sunoco’s Jan. 10 answer to the court, its attorneys argue it has eminent domain powers under FERC rules, which permit privately held companies to build an interstate pipeline, court records show.
This pipeline, named Mariner East, would connect to MarkWest Energy’s gas-processing plant in Chartiers Township and hook up to an existing, nearly 20-year-old line crossing Pennsylvania into Delaware. Range Resources of Southpointe is a partner and would ship ethane and propane in the pipeline from MarkWest, company spokesman Matt Pitzarella said. “Obviously, it’s an important project to us,” Pitzarella said.
Sunoco states in court records it no longer wishes to voluntarily negotiate purchase prices for the unsettled cases due to the “anticipated delay” of the project. Company spokesman Jeffrey P. Shields said Sunoco doesn’t comment on pending litigation. When the project was announced in March Sunoco expected construction to be underway before the end of last year.
“We are in the process of clearing right of ways and flagging construction areas, and we started directional drills and boring this week,” Shields said. “We expect to begin installing pipe in the next two weeks,” he added.
Sunoco files for eminent domain to acquire Penn land for pipeline
Photo: Lillian DeDomenic | For The Penn Trafford Star
By Chris Foreman
Staff Reporter, Tribune-Review
Published: Wednesday, July 17, 2013
Sunoco Pipeline officials are trying to use eminent domain to acquire an easement in the vicinity of a retirement home and assisted-living center in Penn Township for a 50-mile liquid gas-transmission line. The company last week filed a petition in Westmoreland County Common Pleas Court against Quest Realty Partnership, which owns an 89 acres that are bordered by Mellon, Ader and Walton Roads. Quest also owns an adjacent property at Ader and Walton that has the William Penn Care Center and William Penn Senior Suites and Personal Care.
Court records show the filing is Sunoco’s first attempt in the county to take right-of-way against a property owner’s wishes for the Mariner East project. Sunoco also initiated cases last week to request court orders enabling it to go onto properties in Sewickley and South Huntingdon townships to perform environmental testing related to the proposed pipeline path.
Sunoco has plans to run its pipeline — to transport ethane and propane as natural gas liquids — along the same route as an existing line owned by Dominion Transmission Inc. Dominion previously got a court order to condemn via eminent domain a portion of Quest’s property along Mellon Road in August 2011.
In its filing against Quest, Sunoco said it may use the right of eminent domain because it is considered a “public utility corporation” under Pennsylvania’s Business Corporation Law.
But a Harrisburg attorney who represents some Washington County property owners in the pipeline’s path says it’s not clear to him that Sunoco has the authority for eminent domain.
Under the law Sunoco cites, a company may receive permission to condemn land for pipes transporting natural gas, petroleum or petroleum products but not natural-gas liquids, Michael Faherty said.
“I think it’s open to a number of challenges,” Faherty said after reviewing a copy of Sunoco’s filing.
Quest’s attorney, George Pomper, also disputed Sunoco’s authority in a letter earlier this year in which he opposed Sunoco’s court filing to conduct environmental testing on Quest’s property.
“Sunoco is not a ‘utility’ to the best of our knowledge,” Pomper said in the Jan. 24 letter filed in court records. “Sunoco is known as a gasoline retailer and purveyor of motoring products such as wiper blades, tires and convenience store goods. “The owners of Quest Realty are not aware of any electricity, natural gas, water and the like sold by Sunoco to the public.” Pomper did not return messages from the Penn-Trafford Star about Sunoco’s filing.
Sunoco spokesman Joe McGinn and Sunoco’s Greensburg-based attorneys, George Stewart and Dara DeCourcy, also did not respond to requests for comment.
Landowners who oppose eminent domain can raise objections questioning whether a company is properly licensed or if a project could create environmental concerns, said Peter Georgiades, a Pittsburgh attorney who specializes in eminent domain issues. But simply saying “I don’t want it” isn’t sufficient, he said.
“There’s no leg to stand on if you don’t want it,” Georgiades said.
As of Monday, Sunoco reached agreements for rights-of-way for 16 Penn Township residential and industrial properties, county records show. Two months ago, Penn Township commissioners declined to act on Sunoco’s offer of a $1,550 payment for an easement on vacant property the township owns behind Smartie Artie’s at Zackel’s restaurant in Claridge. Manager Bruce Light he hasn’t heard anything from Sunoco since, but the township has received notice that Sunoco applied for an erosion and sedimentation control permit from the Westmoreland Conservation District.
Mike Faherty will serve on the faculty of the National Business Institute Seminar Eminent Domain From Start to Finish. Mike will speak on Settlement Strategies on August 19, 2013 in Harrisburg, Pa. Registration information may be obtained from the National Business Institute at www.nbi-sems.com.
Mike Faherty completed litigation of a Lehigh County condemnation for a road widening. The Condemnor asserted the commercial property was vacant and offered $63,600. Faherty presented evidence that the former gas station was used as a motor vehicle repair garage and vehicular access was eliminated during construction. The Board awarded $110,000 in property damages plus delay damages and professional fees.
A recent Patriot News publication titled Here It Comes described the anticipated natural
gas pipeline planned to run from Lycoming County, PA, to Rockville, MD.
The article touted the anticipated lower energy prices in Central Pennsylvania. However,
other unfavorable aspects of the process are also coming to Central Pennsylvania.
The article repeatedly quoted Bill Moler, the Chief Operating Officer of the responsible
company, Inergy Midstream. He described the company’s approach of paying for
property damages in a manner in which the various owners along the route would receive
the same amount of money per foot of the right-of-way acquisition. Unfortunately, this
plan and approach to property rights is in direct conflict with the controlling Pennsylvania
law, the Pennsylvania Eminent Domain Code.
The correct approach to damages, which may be much more costly to Inergy Midstream,
is to pay eminent damages based on the fair market value of the entire property interest
before and after a condemnation. The proper approach would suggest that a peaceful
residential property would have much more significant monetary damages than a vacant
property. Property owners would be wisely cautious in dealing with a company which
seeks to avoid paying fairly for the acquisition of property rights.