HomeMy WebLinkAbout14-0543 SUNOCO PIPELINE L.P. : IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
Petitioner : PENNSYLVANIA rr
V. NO.
JOHN E. PERRY AND AUDREY B. c c
PERRY
Respondents r;
VERIFIED PETITION FOR IMMEDIATE o
RIGHT OF ENTRY PURSUANT TO 26 Pa.C.S. § 309 x
D cra cl
1. Petitioner Sunoco Pipeline L.P. ("Sunoco" or "Petitioner") is a limiteoaraprsl p
organized and existing under the laws of the State of Texas and registered to do business in the
Commonwealth of Pennsylvania.
2. Sunoco has its principal office at 1818 Market Street, Suite 1500, Philadelphia,
Pennsylvania 19103.
3. As part of its objective to provide ethane,propane, liquid petroleum gas, and other
petroleum products transportation services to its customers, Sunoco has proposed to construct an
interstate pipeline that will be routed primarily below ground level and that will travel, as part of
its route, through Cumberland County, Pennsylvania(the "Pipeline").
4. Service on the Pipeline will be regulated by the Federal Energy Regulatory
Commission ("FERC") under the Interstate Commerce Act ("ICA"), 49 U.S.C. § 1 (1988). As
such, Sunoco is a "public utility corporation" under Pennsylvania's Business Corporation Law
("BCL"), 15 Pa.C.S. § 1101 et seq. and, thus, enjoys the right of eminent domain under Section
1511 of the BCL for the purposes of constructing the Pipeline.
5. Respondents John E. Perry and Audrey B. Perry (together, "Respondents") are
married adult individuals with a last known address of 4538 Enola Road,Newville, Cumberland
County, Pennsylvania 17241.
6. Respondents own two parcels of property in Upper Franklin Township,
Cumberland County, Pennsylvania, tax identification# 43-04-0389-014A and#43-04-0389-014
(together, the "Property").
7. Sunoco must conduct certain environmental, cultural resource, and other surveys
and tests of the proposed Pipeline route to comply with Pennsylvania law and determine, among
other things, whether the proposed routing impacts endangered species or encroaches on
protected wetlands, archaeologically significant sites, and other protected areas.
8. Pennsylvania law recognizes the necessity for these surveys and tests and permits
potential condemnors to make pre-condemnation surveys and tests. Specifically, Section 309 of
Pennsylvania's Eminent Domain Code (26 Pa.C.S. § 309), provides that "prior to the filing of the
declaration of taking, the condemnor or its employees or agents, shall have the right to enter
upon any land or improvement in order to make studies, surveys, tests, soundings and
appraisals."
9. The potential route of the Pipeline extends through the Property.
10. Sunoco needs to conduct certain surveying and other tests in order to determine
the exact path of the Pipeline.
11. Section 309 of the Eminent Domain Code requires that "the owner of the land or
the party in whose name the property is assessed shall be notified ten days prior to entry on the
property," and that "any actual damages sustained by the owner of a property interest in the
property entered upon by the condemnor shall be paid by the condemnor." See 26 Pa.C.S. § 309.
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12. Before invoking Section 309 to enter a landowner's property for conducting the
required surveys and tests, Sunoco prefers to obtain the landowner's consent to entry.
13. On October 21, 2013, Sunoco requested that Respondents permit Sunoco
representatives entry on the Property in order to conduct the required surveys for the Pipeline.
Ten days' notice under Section 309 was therefore provided. A true and correct copy of the
October 21, 2013 letters are attached hereto as Exhibit A.
14. In response to the October 21, 2013 letter, Respondents denied Sunoco entry upon
the Property to conduct the necessary,surveying and testing.
15. On November 7, 2013, counsel for Sunoco attempted to resolve the dispute and
requested that Respondents grant Sunoco the permission to perform the necessary surveys and
tests on the Property. This letter clarified Sunoco's legal right to conduct surveys on the
Property and its obligations to pay for any damages to the Property caused by the surveys. A
true and correct copy of the November 7, 2013 letter is attached hereto as Exhibit B.
16. On or about November 13, 2013, counsel for Sunoco and Respondent John E.
Perry had a telephone conversation regarding Sunoco's request to access the Property.
17. In follow up to the November 13, 2013 telephone conversation, on November 14,
2013, Respondents emailed counsel for Sunoco, again denying Sunoco's request to access the
Property. A true and correct copy of the November 14, 2013 email is attached hereto as Exhibit
C.
18. In response to the November 14, 2013 email, and in the hope of further clarifying
Sunoco's legal right to access the Property under Section 309, Sunoco sent a detailed letter to
Respondents on December 10, 2013. A true and correct copy of the December 10, 2013 letter is
attached hereto as Exhibit D.
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19. Upon no response to the December 10, 2013 letter, on January 2, 2014, counsel
for Sunoco emailed Respondents and inquired if they were now willing to grant Sunoco access to
the Property to conduct the necessary surveys and testing. A true and correct copy of the January
2, 2014 email is attached hereto as Exhibit E.
20. Sunoco has not received a response to either the December 10, 2013 letter or the
January 2, 2014 email.
21. Because Sunoco and its representatives are unable to obtain consent from
Respondents and certain surveys and tests are necessary to determine the path of the Pipeline,
Sunoco is proceeding with this Petition.
22. This Petition does not seek establishment of any easement or ownership right in
the Property.
23. Respondents are protected from any monetary loss that may occur as a result of
Sunoco entering the Property under Section 309, which requires Sunoco to pay actual damages
sustained by Respondents.
24. Without performing the necessary surveys and tests, it is impossible for Sunoco to
determine the final route of the Pipeline.
25. Although Sunoco has the right to enter the Property pursuant to Section 309, it
does not wish to provoke an on-site confrontation with Respondents. Consequently, Sunoco
seeks an order from this Court granting Sunoco permission to enter onto the Property pursuant to
that Section.
26. Pursuant to C.C.R.P. No. 208.3(a), no judge for the Court of Common Pleas of
Cumberland County has ruled on a same or related matter as the request set forth in this Petition.
The Honorable Gary Gilman of the Court of Common Pleas of Washington County and the
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Honorable Richard E. McCormick, Jr. of the Court of Common Pleas of Westmoreland County,
however, have granted nearly identical requests.
27. Respondents are not currently represented by counsel, as thus Sunoco is not
required to seek Respondents consent in the filing of this Petition.
WHEREFORE, Sunoco respectfully requests that this Court grant its Petition for Right of
Entry, and enter an Order, in the form attached, permitting Sunoco's employees, agents, and
representatives to enter on the Property to perform the required studies, surveys, tests, soundings
and appraisals.
Respectfully submitted,
BY '0"' A
Curtis N. Stambaugh, Esquire
Pa. I.D. No. 80565
Kimberly A. Colonna, Esquire
Pa. I.D. #80362
Dana W. Chilson, Esquire
Pa. I.D. # 208718
McNees Wallace &Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: JanuaryW2014 Counsel for Sunoco Pipeline L.P.
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VERIFICATION
Subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to
authorities, I hereby certify that I am the Director of Right of Way for Sunoco Pipeline L.P. and
that I am authorized to sign this verification on its behalf. I further verify that the facts set forth
in the foregoing document are true and correct to the best of my knowledge, information, and
belief.
SUNOCO PIPELINE L.P.
&x X%Q NA��
Karen R. McMillm
Dated: January t, 2014
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Exhibit A
Sunoco Logistics Sunoco Pipeline L.P.
— `
Right of Way Depatiment
October 2i2Ol�
CERTIFIED RETURN RECEirr AND REGULAR MAIL
John E.&Audrey B. Perry
4538Eno|uRoad
NcwvU|o, Pennsylvania |724|
Do: Nlariner East 2, Se�mcot2
Proposed PipcUnePro cc\-Survey Pcnn\sxion
Tract PA-CD-OO]2.000O, l3.3 acres,known asToxPuuc! I`Q#43-84'O389-0l4/\,
situated iu Upper FxuokK`vdTonmsbip, Cumberland County, FA
Dear John E & Audrey B. Perry,
Sunoco, Pipeline LP. (Sunoco), is invmsdQudngthe possibility o[ installing u |iguidpobo]uucu
guy yipc)iou extending from Harrison County, Ohio throouh the panhandle of West Virginia`
across Pennsylvania, and into Delaware. This project is an important enhancement to our
nadoo`a pipeline infrastructure and will oUom Suuuon to boi(cr meet Ule country's energy
demands.
One ofthe first activities Suouconi|| undertake is the performance of civil surveys and studies
to evaluate thu viability of Sunoco's plans, provide information required by ouriuio regulatory
agencies as pu/1 of their rcnicv/ of tile pipeline proposal, and ucuumic|y define the rights of way
and easements necessary for (lie project. Sunoco has determined that the (and described above,
in which you may have an interest (your "Properly"), may be a8'ecicd by this project und, as
such, Sunoco desires to conduct a survey and non-invasive 1easibility studies oil your Property.
/\hbonoh P/\ oiuie law provides Sunocop/idh {hc right to conduct these surveys and inspections
without your express permission, \vmp,oJerho obtain your consent before entering upon your
Property. }\ Survey Permission form is enclosed for your review. Please sign and return it to
me as soon as possible in the enclosed postage paid return envelope. [fnu (to not receive o
signed Survey Permission Form hom you, Sunoco will proceed to conduct Ulu surveys and
studies at its discretion, during reasonable daylight
Upon completion of W6e survey, if it is du1conincd that dlc pipeline route will uouoy }nur
property,a Sunoco agent will c6ntou(you Co discuss the purchase o[un casement ur other rights.
You should be hendn , fi-om uaauuio in dlu near future. In tile meantime, please feel bzc to md|
me at ihc number bo]up with any questions. We sincerely thank you fhr your assistance with
our important cUbUs.
Very truly yours,
Marl: McConnell
Proiect Manager
Representing Sunoco Pipeline L.P.
Phone: 814-204-0450
Enclosure(s): Survey Permission
Postage Paid Return-Falvelope
Mariner East 2, Segment 2-P&
Tract No.: 9A-CD-0032.0000
Sunoco Logistics Sunoco Pipeline L.P.
Right of Way Department
SURVEY PERMISSION FORM
`
l/Webcrehy give 8u0000I1p6ine LT, its affiliates, agents, employees, and contractors,
as well as its uorvo}orn, biologists, archeologists, and unvounmcnta| scientists, ponnisuinn to
cm/cr upon my/our pnxmiooy described below ("Property") to conduct civil surveys,
uuvimomcoNl yurvmys, uo|mm| roauonovupvoys, and all oUhorxurvcyn and tests ococaoury fora
pipeline mu(o study, including butt not limited to the placement of stakes, line-of-sight c|curiug,
and Qoutecbuicni soil hcxiogs, subject to the condition that l omAvu are paid for any and all
damages to the Property cuuscd hy said surveys,jfuny.
208.
John E.&Audrey 13.Perry
45388nnuRoad
Nor, ilc,Pe000y|vuoix 17241
(7|7)776-7858
Property Location:
Property Address:
7coun|`sNume: Phone:
Is there u water well located un (his propu,ty. ? Yoy No
Ix there u septic system located on this pzopcny9 Yes No
Notes/Conditions:
Sunoco Logistics Sunoco Pipeline L.P.
Right of Way Department
October 2|,2Ol3
CERTIFIEDRET0'RyQ RECEIPT REQUESTED AND REGULAR MAIL
John 2. 6L Audrey T]. Perry
4538EnuiuRoad
NcowD]e`Puoosy|van|u |724|
Re: Mariner East 2, Segment
Proposed Pipeline h 'uci- Durvcy9o,miyyiuo
Tract PA-CU-0033.0000, 143.6 acres, known us Tax Pu/zo| 11) 9 431-04-0384-014,
situated in Upper Fronkfbrd Tov/nvhip' Cumberland County,PA
Dear John E. 8t Audrey B. Perry,
Sunoco Pipeline L.P. (Sunoco), is invoytigutin- the possibility of installing a liquid pctro|cuon
gas pipeline extending from Harrison County, Ohio through the panhandle of \9cxt Virginia,
across Pennsylvania, and into Delaware. This project is an important enhancement 0m out*
nutimn`x pipeline lnfi-nxbocmo and will u|)on' Sunoco to br1(cr mcci the country's energy
docnanJs.
One nfthe first activities Sunoco `vi\| undertake is the performance o[civil surveys and studies
to evu|na[u the viuhi|ity, of Sunoco's plans, provide iofhnnabon required by certain /e8o|u1ory
aoencies as part of their review of the pipeline proposal, and accurately define the rights of way
and easements necessary for the project. Sunoco has determined that the land described above,
in which you /nuy have an in(ou:o( (your "Property"), may be affected by this project and, as
such, Sunoco desires to conduct a Survey and non-invasive feasibility studies on your Property.
Although P/\ s(u(u law provides 8u11uoov/iih the rig[it to conduct these surveys and inspections
without your express permission, we prefer 0oobtain your consent bof'orcentering upon your
Property. /\ Survey Permission form is enclosed for your review. Please sign and return it to
me as soon as possible in the ooc|oocd postage paid return envelope. If we du not receive u
signed Survey Pc/rniasiuo form Dnnn you' Sunoco will procccd to conduct the snrvcvu and
studies eu its discretion, during reasonable daylight hours.
Upon Conp|oiiuo of the uurvey, if it is determined that the Pipeline route will cross your
property, uSunucmagent will contact you to discuss the purchase ofun casement ov other rights.
You should hc hearing 6mmouagain in |ho near future. In the meantime, p|*uye Rrc| free iocall
mc at the number below with any questions. We sincerely Uionk you for your assistance with
out-important efforts.
Very truly yours,
Mark McConnell_
Project.Manager
Representing Sunoco Pipeline L.P.
Phone: 814-204-0430
Enclosure(s): Survey Permission
Postage Paid Return Envelope
Mariner East 2, Segment 2 -PA
Tract No.: PA-CU-0033.0000
Sunoco Logistics Sunoco Pipeline L.P.
Right of Way Department
SURVEY PERMISSION FORM
T/We hereby give Sunoco Pipeline L.P., its affiliates, agents, employees, and contractors,
as well as its surveyors, biologists, archeologists, and environmental scientists, permission to
enter upon my/our premises described below {"Property„) to conduct civil surveys,
environmental surveys, cultural resource surveys,and all other surveys and tests necessary for a
pipeline route study, including but not limited to the placement of stakes, line-of-sight clearing,
and geotechnical soil borings, subject to the condition that 1 am/we are paid for any and all
damages to the Property caused by said surveys,if any.
Date: 2013.
John P. &Audrey.B.Perry .
453£3 Enola Road
Newville,Pennsylvania 17241.
(717)776-7858
Property Location:
Property Address:
Tenant's Name: Phone:
Is there a water well located on this property? Yes No
Is,there a septic system located on this property'? aces No
Notes/Conditions:
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Exhibit B
lollMcNees
Wallace & Nurick LLC
100 Pine Street•PO Box 1166•Harrisburg,PA 17108-1166 Dana W.Chilson
Tel: 717.232.8000 a Fax: 717.237.5300 Direct Dial:719.237.5457
Direct Fax:717260.1780
dchilson@mwn.com
November 7,2013
John E. and Audrey B. Perry VIA CERTIFIED MAIL,RETURN
4538 Enola Road RECEIPT REQUESTED AND FIRST
Newville,PA 17241 CLASS U.S.MAIL WITH
CERTIFICATE OF MAILING
Re: Sunoco Pipeline's Request for Survey Access
Tract Numbers: PA-CU-0032.0000 and PA-CU-0033.0000
Dear Mr.and Mrs. Perry:
McNees Wallace &Nurick LLC represents Sunoco Pipeline L.P. ("Sunoco")regarding
Sunoco's possible acquisition of an easement and right-of-way through your property in Cumberland
County,identified as Tax Parcel numbers 43-04-0389-014A and 43-04-0389-014. I understand that
you have denied Sunoco's request to perform surveys on your property. I am writing in the hope that I
can help resolve this dispute and convince you to allow Sunoco to perform the necessary surveys on
your property.
As an initial matter,Sunoco has the legal right to conduct surveys on your property. Sunoco
possesses the right of eminent domain for the proposed Mariner East II pipeline. Service on the
Mariner East II pipeline will be regulated by an agency of the United States under the Interstate
Commerce Act("ICA"),49 U.S.C. § 1 (1988). Because the pipeline will be regulated by an agency of
the United States,Sunoco qualifies as a"public utility corporation" under Pennsylvania's Business
Corporation Law("BCL"), 15 Pa.C.S. § 1101 et M. As a public utility corporation under this law,
Sunoco has the right,under Section 1511 of the BCL,to condemn property for the purpose of
constructing the pipeline. Included within the power of eminent domain granted to Sunoco by statute
is the authority to conduct surveys under Section 309 of Pennsylvania's Eminent Domain Code(26
Pa.C.S. § 309).
I hope this clarifies any questions or concerns you may have about Sunoco's legal authority
here.
As for any practical concerns you may have about the process itself,the purpose of the
proposed survey work is to determine whether your property would be an appropriate location for the
proposed pipeline. Sunoco understands your concerns about protecting your property. I can assure
you that Sunoco's employees and agents will be respectful of your property rights. Sunoco's initial
www.mwn.com
HARRISBURG,PA • LANCASTER,PA • SCRANTON,PA • STATE COLLEGE,PA • CoLUMBus,011 • WASHINGTON,DC
John E. and Audrey B. Perry
November 7,2013
Page 2
survey access will be minimal,as Sunoco is still trying to determine the exact route of the pipeline and
the final details of the project. At this time,Sunoco simply would like to inspect, survey and perhaps
dig small holes,using a shovel, for cultural resource investigation. I have enclosed a document that
further explains the survey work. Although Sunoco does not expect this initial access to cause any
damage to your property, Sunoco is required by law to pay you for any damage it causes to the
property.
To be clear, Sunoco has not yet decided whether it would like to place a pipeline across your
property and allowing access for the survey does not mean that you are conceding Sunoco's right to
ultimately install a pipeline on your property. This is merely the first step in the process and one that
should present no real downside,as any intrusion will be minimal and temporary.
I hope that this letter addresses any legal or practical concerns you may have about this
process. If you have additional questions about Sunoco's condemnation authority or the scope of the
proposed surveys,please let me know. Otherwise, if you will contact Mark McConnell at(814)204-
0450, Sunoco can set up a convenient time to perform its surveying work. If we do not hear from you
within 10 days of receipt of this letter,we will assume that you no longer object to the survey, and
Sunoco will advise the surveyors to begin surveying your property shortly thereafter. A Sunoco
representative will attempt to provide you at least 24 hours notice prior to the beginning of the survey
work.
Sincerely,
McNEES WALLACE&NURICK LLC
By
ana W. Chilson
Enclosure
John E. and Audrey B. Perry
November 7, 2013
Page 3
bc: Crystal Hall (via email)
ioc: Curtis Stambaugh (via email)
Kandice Hull (via email)
Robert Weishaar(via email)
SUNOCO PIPELINE L.P.
Field Studies/Surveys
A survey team consisting of three or four people may be visiting your property and conducting
one or more of the following field studies/surveys:
Civil Survey
Surveyors will be on site using GPS and traditional surveying equipment to perform topographic
and boundary surveys along the proposed pipeline right-of-way. Surveyors may be placing
stakes and/or flags to mark survey control points, any existing pipeline, or property corners.
Archaccrlo zical/Cultural Resource Survey
Cultural resource surveys will be undertaken as necessary in order to ensure compliance with
relevant permitting needs and Suite Ristoric Preservation Officc regulations and (o ensure
identification and assessment of above and below ground cultural resources.
Archaeological surveys may include the excavation of small shovel tests pits every 50 feet along
the proposed pipeline right-of-way. Shovel test pits are dug using hand tools and are
approximately 1.5 — 2 feet wide. Shovel tests are immedia(cly backfillcd and every eftbrt is
made to preserve the sod layer.
Subsurface Utility Survey
Subsurface utility surveys will he condueled to determine presence of underground utilities
Within the project area. Small test holes will be performed to locale underground utilities
approximately I 8-inches in diameter. "These test holes will be performed using a pressurized air
and a vacuum hose. The excavations will be surveyed and holes will be backfillcd to the existing
surface.
Environmental Survey
At this time aquatic resource (wetland and waterbody) and basic habitat characterization surveys
are planned for the proposed project alignment. These surveys will include the mapping of
wetlands and streams using GPS survey. Where these resources occur, vinyl flagging will be
used at intervals to mark the boundaries. Small soil samples may be taken within and nearby
wetland habitats. Habitat surveys will not involve the hanging of flags or soil samples, but will
involve a descriptive assessment of the habitats encountered so that impacts can properly be
evaluated. These baseline surveys may lead to additional evaluations that may include species-
specific survey or more detailed habitat characterizations. Notification will occur if additional
efforts result in actions on your property beyond those presented here.
Exhibit C
Chilson, Dana
From: Whistlewind [perryja @embargmail.com]
Sent: Thursday, November 14, 2013 10:19 AM
To: Chilson, Dana
Subject: Sunoco Pipeline Survey Access
To: McNees, Wallace and Nurick, LLC
Attention: Attorney Dana W. Chilson
This will respond to your kind letter of Nov. 7, 2013 and earlier letters of Oct. 21
from Sunoco Logistics and Percheron Field Services concerning access to my
properties to conduct surveys for Sunoco Pipeline's proposed Mariner East II
pipeline.
Based on my amended agreement with Sunoco Pipeline on August 21, 2001, Sun
already has the right of full access to a forty foot (40') pipeline right-of-way through
my properties. Any survey activities on this right-of-way do not need my
permission, only reasonable notification of work to be done.
Subsequent conversations with survey representatives indicate that their
instructions are to survey a much wider swath, 200 feet has been mentioned, which
may or may not coincide with the existing pipeline. This certainly was not clear
from the original letters of Oct 21 and only became evident from inquiries by
landowners. While such surveys are not likely to cause much, if any damage, this
is not the real issue.
That issue is simply that Sun does not have the right under the existing agreement
to conduct such surveys which in effect would amount, without permission,
to trespassing. While I understand from your letter that Sunoco could exercise the
right of eminent domain to obtain such access I have no knowledge if any legal
action by Sun to invoke eminent domain provisions.
It would seem that Sun is therefore attempting to persuade landowners to
gratuitously give permission to begin a process that, if ultimately successful, would
result in yet another pipeline on their property. I AM NOT DISPOSED TO GIVE THIS
PERMISSION. There are currently three pipelines on my land, two of which are side
by side and do not appear to be in operation. If Sun is interested in placing another
pipeline perhaps they should explore acquisition of those existing rights-of-way.
This will constitute my response to your letter of Nov.7.
Sincerely,
John Perry
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Exhibit D
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n McNees
Wallace & Nur~ck L�
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/Of)Hn*SueoI ~ PO Box n08 h PA 17108-1166 Dana vuommv^
Tnk `1r �31 �3UO mmo mu—71r�ozow�
om�pozr17�oo1nm�0��" 71/�%l�
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December 1O. 2013 �
John E. Perry and Audrey B. Perry |
453OEno|aRoad /
Nevvv|ka, PA17241
RE: Sunoco Pipeline LF. Mariner East 2, Segment 2
John E. Perry and Audrey B. Perry; Tract PA-CU-0032.00OO and Tract PA'CIJ- �
O0330�OO '
. �
Dear Mr, and Mrs. Perry: �
We are in receipt � �ure �U d�� November 1� 2013. wherein y� �d�� that you
are not aware of any 'statutory power by which Sunoco may enter private property to conduct �
surveys. The following ioo detailed explanation Cf Sunoco's eminent domain power, which gives �
rise to the power to enter property to conduct surveys in advance of constructing the Mariner �
East Two pipeline project. i
. .
Sunoco is e fadenmUy-n»gu|ob*d public utility under Goobon 1511 of the Pennsylvania
Business Corporation Law ("BC[) Because Section 1511 of the BCL specifically grants
eminent domain power to federally-regulated public utilities, Sunoco possesses the requisite
authority to exercise eminent domain
authority pursuant �n the Enninao� Domain C�de. which i
allows preliminary access 1n property ho conduct tests and surveys. Sections 1511 and 1103 of |
the BCL specifically grant eminent domain power to certain non-govornmental private entities � |
operating as "public uU|ih/ corporations" and providing specific services for the public. The
statutory tonn "public u0|b/ oorporadion" is defined to include both Pennsylvania Public Ut||bv /
Commission y'PUC")-certificated public utilities and to entities nagu�had as public utilities by the
federal government. Pm.C.8. -� 1103. The BCL defines m public utility corporation on "[a]ny .
domestic or foreign corporation for profit that: (1) in subject bo regulation aSa public utility bythe
Pennsylvania Public Utility Commission or an officer or agency of the United Gh9te/I" /d �
(Emphasis added). �
Sunoco operates many pipelines in Pennsylvania, including pipelines located solely within !
the state (intrastate) and pipelines crossing into other states (interstate). Sunoco's intrastate
pipa|ineo are regulated by the Pennsylvania PUC. The new pipa|ine, huwever, will extend
outside of Pennsylvania and .
into Ohio. West Virginia. and Dc|avvane. which triggers federal �
regulation under what ia known on the Interstate Commerce Act/"|C/Y'\. The |CAiaa federal law . |
regulating the rates, terms, and conditions for pipeline transportation ofpahnkyuno products, such |
as athanm, prmpone, and other natural gas liquids ('NGI-s'). Aa further explained belom/, each of
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HARRISBURG,PA ° LANCASTER,PA * SCRANTON,PA ° STATE COLLEGE,PA ^ Co0moux.OM * WASHINGTON,DC �
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John E. Perry and Audrey B. Perry i
December 10, 2013
Page 2
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these products falls under the ICA's jurisdiction over oil pipelines. 49 U.S.C. Apps. §§ 1 et seq.
(1988). The ICA itself does not directly convey any federal right of eminent domain, but Sunoco's
status as a petroleum products pipeline company regulated by the federal government under the
ICA qualifies Sunoco as a federally-regulated public utility corporation under Section 1511 of the
BCL.
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Importantly, the federal agency charged with enforcing the ICA is the Federal Energy '
Regulatory Commission ("FERC"). FERC regulates interstate pipeline transportation, which
includes transportation of two different product types. The first type of product includes oil and
petroleum products, such as ethane, propane, and other NGLs, which are regulated under the
ICA. The second type of product includes natural gas or artificial gas, which are regulated under
the Natural Gas Act. FERC regulates pipelines differently depending on whether they fall under
the ICA or the Natural Gas Act. Most importantly, FERC does not issue certificates of public
convenience for natural gas liquids, oil or petroleum products pipeline construction, but must
issue a certificate of public convenience prior to construction of natural or artificial gas pipelines. ;
Although the ICA is a federal law, it is directly relevant to Sunoco's status as a public utility
corporation, because the aforementioned Section 1511 of the BCL grants state condemnation
power to for-profit corporations subject to regulation as a public utility by an agency of the United
States. 15 Pa. C.S. § 1103. Under the ICA, oil and petroleum products pipeline companies are
defined as common carriers subject to regulation. 49 U.S.C. Apps. § 1(1)(b); see also See Gulf
Central Pipeline Company, 50 FERC 161381, at 62163-64(March 20, 1999).
To exercise its authority under the ICA to regulate various aspects of petroleum products
pipeline transportation, FERC has developed extensive regulations applicable to Sunoco and 1
other interstate petroleum products pipeline companies. Under current FERC regulations, oil and
petroleum products pipeline rates must be cost-based and just and reasonable. BP West Coast
Prods., LLC v. FERC, 374 F.3d 1263, 1282-83 (D.C. Cir.2004). Initial rates must be set by cost
of service or agreement with non-affiliated customers. 18 C.F.R. § 342.2(a)-(b) (2006). Once
initial rates are approved, rate changes can be implemented by filing supplemental cost of
service data, requesting permission to charge market-based rates following FERC determination
that a carrier lacks market power, reaching a settlement with current shippers, or increasing tariff
rates in accordance with FERC's annual adjusted index rates. 18 C.F.R. § 342.3-4. Regardless
of how rates are set, FERC reserves authority to challenge new and existing rates to ensure that
all rates collected by oil and petroleum products pipeline companies are just and reasonable. 49
USC 13(1), 15(1), (7). Because FERC closely regulates petroleum pipeline transportation rates
and conditions as public utilities, Sunoco is subject to regulation by the federal government as a
public utility and therefore falls within the definition of Public Utility Corporation in Section 1103 of
the BCL.
The Commonwealth Court confirmed that federal regulation as a public utility conveys
eminent domain power under Section 1511 of the BCL. Appeal of Swidzinski, 579 A.2d 1352,
John E. Perry and Audrey B. Perry
December 10, 2013
Page 3
1353 (Pa. Commw. 1990) (hereinafter Swidzinski ). In Swidzinski, the Commonwealth Court
found that a common carrier of interstate telecommunications, under the regulatory auspices of
the Federal Communications Commission has the power of eminent domain as a public utility
corporation pursuant to the former Section 322 (currently Section 1511) of the BCL. See 15 Pa.
C.S. § 1511 (formerly 15 P.S. § 322). The court concluded that the telecommunications lines to
occupy the condemned property were purely for interstate purposes and, based on the interstate
nature of the lines and language in Section 1511, concluded that "the Legislature has not made
preapproval of the Public Utility Commission necessary before . . . [the] exercised [ofJ . . . [the]
power of eminent domain." Id
Sunoco's new pipeline will provide service for the public as required for the exercise of
eminent domain under Section 1511(g)(2) of the BCL. As discussed above, FERC will regulate
the pipeline under the ICA, which prohibits discriminatory rates and practices. 49 U.S.C. Apps.
§§ 3(1), 15(1) (1988). Part of FERC's regulatory supervision includes confirming that Sunoco
offers "equal, non-discriminatory opportunity" for all prospective shippers (i.e., the public) to
receive service when capacity is available. Express Pipeline P'ship, 76 FERC 161,245, order on
reh'g, 77 FERC ¶ 61,188 (1996). In accordance with its obligation to provide non-discriminatory
access up to its available capacity, Sunoco is conducting a widely publicized "open season"
offering ail prospective shippers an opportunity to reserve capacity on the pipeline. At the
conclusion of this open season, Sunoco will seek a declaratory order from FERC approving the
reservation of capacity commensurate to the term and volume commitments received, in
exchange for priority shipping at premium rates. See e.g. Petition for Declaratory Order of
Sunoco Pipeline, L.P., at 3, FERC Docket No. OR13-9-000, (Dec. 7, 2012). In this context, a
service is public when all entities that are able to use the service have fair access to it.
Accordingly, FERC will be asked to approve Sunoco's open season as appropriately giving all
shippers the opportunity to become committed shippers. See e.g. Sunoco Pipeline, L.P., 142
FERC ¶61,115 at P 20 (2012). Additionally, Sunoco will provide all interested shippers with an
equal, non-discriminatory opportunity to obtain future available capacity on the Pipeline.
Under the Eminent Domain Code, a Condemnor or its employees or agents shall have the
right to enter upon any land or improvement in order to make studies, surveys, tests, soundings
and appraisals. 26 Pa .C.S § 309. As a public utility corporation authorized to execute eminent
domain actions by Section 1511 of the BCL, Sunoco is a Condemnor with power to enter any
land and conduct studies, surveys, tests, soundings and appraisals before commencing formal
condemnation proceedings, but with 10 days notice to the affected property owner.
I
John E. Perry and Audrey B. Perry
December 10, 2013
Page 4
I trust that this detailed description provides the answers to your questions regarding how
Sunoco has the power to access private property for surveying on the Mariner East Two pipeline
project. Should you have any additional questions, please do not hesitate to contact me.
Sincerely,
McNEES WALLACE& NURICK LLC
n
By ✓��%�
ana W. Chilson i
J
S
Exhibit E
From: Chilson, Dana
Sent: Thursday, January 02, 2014 1:24 PM
To: 'Whistlewind'
Cc: Chilson, Dana; Hull, Kandice
Subject: RE: Sunoco Pipeline Survey Access
John,
I hope you had a great holiday season. I just wanted to touch base with you in regard to my December 10, 2013, in
which I provided additional information regarding Sunoco's authority to access the property for surveying. Please advise
if your previous denial has changed. If you want to chat about the surveying, please feel free to give me a call.
Thank you,
Dana
Dana Windisch Chilson
McNees Wallace & Nurick LLC
717.237.5457 (Direct Dial)
From: Whistlewind [mailto:perryja(a)embargmail.com]
Sent: Thursday, November 14, 2013 10:19 AM
To: Chilson, Dana
Subject: Sunoco Pipeline Survey Access
To: McNees, Wallace and Nurick, LLC
Attention: Attorney Dana W. Chilson
This will respond to your kind letter of Nov. 7, 2013 and earlier letters of Oct. 21
from Sunoco Logistics and Percheron Field Services concerning access to my
properties to conduct surveys for Sunoco Pipeline's proposed Mariner East II
pipeline.
Based on my amended agreement with Sunoco Pipeline on August 21, 2001, Sun
already has the right of full access to a forty foot (40') pipeline right-of-way through
my properties. Any survey activities on this right-of-way do not need my
permission, only reasonable notification .of work to be done.
Subsequent conversations with survey representatives indicate that their
instructions are to survey a much wider swath, 200 feet has been mentioned, which
may or may not coincide with the existing pipeline. This certainly was not clear
from the original letters of Oct 21 and only became evident from inquiries by
landowners. While such surveys are not likely to cause much, if any damage, this
is not the real issue.
That issue is simply that Sun does not have the right under the existing agreement
to conduct such surveys which in effect would amount, without permission,
to trespassing. While I understand from your letter that Sunoco could exercise the
right of eminent domain to obtain such access I have no knowledge if any legal
action by Sun to invoke eminent domain provisions.
It would seem that Sun is therefore attempting to persuade landowners to
gratuitously give permission to begin a process that, if ultimately successful, would
result in yet another pipeline on their property. I AM NOT DISPOSED TO GIVE THIS
PERMISSION. There are currently three pipelines on my land, two of which are side
by side and do not appear to be in operation. If Sun is interested in placing another
pipeline perhaps they should explore acquisition of those existing rights-of-way.
This will constitute my response to your letter of Nov.7.
Sincerely,
John Perry
2
SUNOCO PIPELINE L.P., ' i l i 11 11
Petitioner . ,,,r nizt
v. Count?of Cumbevfanb
IN THE COURT OF COMMON PLEAS
JOHN E. PERRY AND AUDREY B. OF THE NINTH JUDICIAL DISTRICT
PERRY,
Respondents 2014-00543 CIVIL TERM
IN RE: VERIFIED PETITION FOR IMMEDIATE RIGHT OF ENTRY PURSUANT TO 26
PA.C.S. § 309
4 ORDER OF COURT
AND NOW, this bday of January 2014, upon consideration of the Verified
Petition for Immediate Right of Entry Pursuant to 26 Pa.C.S. § 309, a RULE is issued
upon Respondents to show cause why the relief requested should not be granted.
PETITIONER shall effectuate service of this Order of Court upon Respondents and
shall file proof of service.
RULE RETURNABLE twenty (20) days from the date of service.
BY T OURT,
Thoma A Placey C.P.J.
Distribution:
,,/Curtis N. Stambaugh, Esq.
. -John and Audrey Perry r-nZ c...
e-Of I ier PLI-1 trtrL
V30 n 3c C 2
�(Y1
SUNOCO PIPELINE L.P. : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
Petitioner : PENNSYLVANIA
•
v. : NO. 14-543 Civil Term
•
JOHN E. PERRY AND AUDREY B. • I ;"
PERRY �-` i..
z r
crf-<> c ,
Respondents < _�''_. ..
r
PROOF OF SERVICE --t -
I hereby certify that on February 4, 2014, I served a copy of the Court's January 30, 2014
Order issuing a Rule on Respondents John E. Perry and Audrey B. Perry by first class mail,
postage prepaid addressed to them at 4538 Enola Road,Newville, PA 17241. A Certificate of
Mailing evidencing the service is attached.
McNEES WALLACE &NURICK LLC
By
Curtis N. Stambaugh, Esquire
Pa. I.D. No. 80565
Kimberly A. Colonna, Esquire
Pa. I.D. #80362
Dana W. Chilson, Esquire
Pa. I.D. # 208718
McNees Wallace &Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: February 12, 2014 Counsel for Sunoco Pipeline L.P.
UNITED STATES Certificate Of . LT c,
POSTAL SERVICED, Mailing word
This Certificate of Mailing provides evidence that mail has been presented to USPS®for mailing. m `-'
This form may be used for domestic and intern ional mail. (� w C�
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PS Form 3817,April 2007 PSN 7530-02-000-9065
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing document by first class
mail,postage prepaid, upon the following:
John E. Perry and Audrey B. Perry
4538 Enola Road
Newville, PA 17241
Dated: February 12, 2014
Dana W. Chilson
•..Jor-w �. P�rc �� �3. r��/'-/ e7ZO/14—
14 February,2014 c
To:Court of Common Pleas of the Ninth Judicial District. zm rn rn
�70 Co f
r rn
Regarding:Petition 2014-00543 by SUN Pipeline for Right of Entry > a '
This will respond to the Rule of the court issued to us on 30 January 2014 to show cause why the o
relief requested by the Petitioner should not be granted.
Zi r,,v
We were first approached in October 2013 by persons representing themselves as agents for Sun
Pipeline requesting that we sign a written permission document for survey activities on our property.
No mention was made of the extent of survey and the implication was that it would be conducted on
SUN's existing pipeline which has a 40 foot Right-of-Way though our property. Since SUN already has
guaranteed access to this ROW we saw no reason for further permission and declined to sign. This
declination was reaffirmed by the attached letter to SUN on Nov 14,2013.(Enclosure 1)
Subsequent repeated contacts by SUN Representatives occurred through 2013 and with each contact
a scenario unfolded which revealed not only was the proposed survey not to be confined to the
existing ROW but could be anywhere on our property and was reported to involve several hundred
feet in width. Further, SUN asserted that Pa.State law gives them the right,without permission,and
without further involvement of the State of Pa.to conduct such surveys prior to actually requesting
and obtaining Eminent Domain authority to acquire property. Conversations with SUN's attorney led
to correspondence dealing with the provisions of Title 26 Pa C.S.,specifically section 309 dealing with
this issue,which we have read and understand but feel that it encroaches badly on our property
rights,and that there may be more to it than is being asserted by SUN.
In Short,we do not accept SUN's claim that the law gives it,a for-profit company claiming to be a
public utility,ostensibly serving public interest the right to march into any property it desires any time
it wants. SUNOCO claims that it is regulated under Federal Interstate Commerce Law which qualifies
it as public utility corporation under Pa Business Corporation Law Title 15. We understand that SUN
Pipeline is a separate entity from SUNOCO which may also bear on this authority. THE REAL ISSUE
HERE IS JUST EXACTLY WHAT IS SUN PIPELINE'S AUTHORITY UNDER PA.EMINENT DOMAIN LAW. The
answer to that that question will also bear on future actions SUN desires to take to acquire property.
We understand that other Pa.Courts have already ruled on similar issues,but hope that this court will
look carefully at this case. Previous dealings with SUN Pipeline over the past 20 years have eroded
our TRUST in them and their credibility regarding any unilateral claims about their rights. If SUN
Pipeline is certain of it's position it should not need permission unless there are other issues involved.
Respectfully submitted,
rry
Enclosure 4538 Enola Road, Newville,Pa. 17241
Page 1 of 1
perryja @embargmail.com
From: <perryja @embargmail.com>
Date: Sunday,February 16,2014 7:13 AM
To: "Audrey Perry"<perryjanaembargmail.com>
Subject: Sunoco Pipeline Survey Access
To: McNees, Wallace and Nurick, LLC
Attention: Attorney Dana W. Chilson
This will respond to your kind letter of Nov. 7, 2013 and earlier letters of Oct.
21 from Sunoco Logistics and Percheron Field Services concerning access to
my properties to conduct surveys for Sunoco Pipeline's proposed Mariner
East II pipeline.
Based on my amended agreement with Sunoco Pipeline on August 21, 2001,
Sun already has the right of full access to a forty foot (40') pipeline right-of-
way through my properties. Any survey activities on this right -of-way do not
need my permission, only reasonable notification of work to be done.
Subsequent conversations with survey representatives indicate that their
instructions are to survey a much wider swath, 200 feet has been mentioned,
which may or may not coincide with the existing pipeline. This certainly was
not clear from the original letters of Oct 21 and only became evident from
inquiries by landowners. While such surveys are not likely to cause much, if
any damage, this is not the real issue.
That issue is simply that Sun does not have the right under the existing
agreement to conduct such surveys which in effect would amount, without
permission, to trespassing. While I understand from your letter that Sunoco
can exercise the right of eminent domain to obtain such access I have no
knowledge if any legal action by Sun to invoke eminent domain provisions.
It would seem that Sun is therefore attempting to persuade landowners to
gratuitously give permission to begin a process that, if ultimately successful,
would result in yet another pipeline on their property. I AM NOT DISPOSED
TO GIVE THIS PERMISSION. There are currently three pipelines on my land,
two of which are side by side and do not appear to be in operation. If Sun is
interested in placing another pipeline perhaps they should explore acquisition
of those existing rights-of-way.
This will constitute my response to your letter of Nov.7.
Sincerely,
John Perry
2/16/2014
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Andersonu
S h e r i f f O fl
Jody S Smith `4 20
Chief Deputy 4 p :
Richard W Stewart CUMBERLAND COUNTY
Solicitor PENNSYLVANIA
Sunoco Pipeline LP Case Number
vs.
John Eugene Perry(et al.) 2014-543
SHERIFF'S RETURN OF SERVICE
01/31/2014 04:56 PM - Deputy Valerie Weary, being duly sworn according to law, served the requested Complaint&
Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to
wit: John Eugene Perry at 4538 Enola Road, Upper Frankford, Newville, PA 17241. C
VALERIE WEARY, DEPUTY
01/31/2014 04:56 PM - Deputy Valerie Weary, being duly sworn according to law, served the requested Complaint&
Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to
wit:Audrey B Perry at 4538 Enola Road, Upper Frankford, Newville, PA 17241.
` c
VIE WEARY, DEPUTY
SHERIFF COST: $57.56 SO ANSWERS,
February 05, 2014 RONNY R ANDERSON, SHERIFF
T liw' {4J�!fi��fiY
SUNOCO PIPELINE L.P. ���'� '� RN11 : 27
Petitioner CUMBERLAND C
PENNSYLVAt jA
v. Countp of (urnberlanb
JOHN E. PERRY AND AUDREY B.
PERRY,
Respondents
IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL DISTRICT
2014 -00543 CIVIL TERM
IN RE: VERIFIED PETITION FOR IMMEDIATE RIGHT OF ENTRY PURSUANT TO 26
PA.C.S. § 309
ORDER OF COURT
AND NOW, this 7th day of March 2014, upon consideration of the Petition, a
Rule is issued upon Respondents to show cause why the relief requested should not be
granted, to which the Respondents have replied acknowledging the existence of a 40
Foot right of way through their property and their reticence to further permit ingress and
egress upon their property beyond that which has already been granted to Petitioner,
the request of the petition is GRANTED as follows:
1. The Respondents shall be notified by Petitioner not less than ten (10)
days prior to entry on Respondents property;
2. Petitioner shall inform Respondents upon entry, an estimated time of
completion of their actions upon the property;
3. Petitioner is permitted to make studies, surveys, tests, soundings and
appraisals while upon Respondents property;
4. Any actual damages sustained by the Respondents because of Petitioners
actions upon the property shall be paid by the Petitioner.
Distribution:
/urtis N. Stambaugh, Esq.
✓ John and Audrey Perry
319//Y
Thomas A. Placey C.P.J.