HomeMy WebLinkAbout14-0784 SUNOCO PIPELINE L.P. : IN THE COURT OF COMMON PLEAS
OF CUMBERLAND CO TY
Petitioner : PENNSYLVAQN(I�A
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v. NO. t ll/� _
DAVID W. FERTIG and FAITH R. FERTIG: � �
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Respondents
VERIFIED PETITIONT IMMEDIATE
RIGHT OF ENTRY PURSUANT TO 26 Pa.C.S.§ 309
1. Petitioner Sunoco Pipeline L.P. ("Sunoco Pipeline" or "Petitioner") is a limited
partnership organized and existing under the laws of the State of Texas and registered to do
business in the Commonwealth of Pennsylvania.
2. Sunoco Pipeline 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 Pipeline 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 Pipeline 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.
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5. Respondents David W. Fertig and Faith R. Fertig (together, "Respondents") are
married adult individuals with a last known.address of 656 Grahams Woods Road,Newville,
Cumberland County, Pennsylvania 17241.
6. Respondents own a parcel of property in Upper Franklin Township, Cumberland
County, Pennsylvania, tax identification#43-05-0419-002 (the "Property").
7. Sunoco Pipeline 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 Pipeline 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 Pipeline prefers to obtain the landowner's consent to entry.
13. On October 21, 2013, Sunoco Pipeline requested that Respondents permit Sunoco
Pipeline 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 Pipeline
entry upon the Property to conduct the necessary surveying and testing.
15. On January 28, 2014, counsel for Sunoco Pipeline attempted to resolve the
dispute and requested that Respondents grant Sunoco Pipeline the permission to perform the
necessary surveys and tests on the Property. This letter clarified Sunoco Pipeline'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 January 28, 2014 letter is attached hereto
as Exhibit B.
16. On January 31, 2014, counsel for Sunoco Pipeline and Respondent David W.
Fertig had a telephone conversation regarding Sunoco Pipeline's request to access the Property.
During that telephone call, Mr. Fertig once again denied Sunoco Pipeline access to the Property
to conduct the necessary surveying and testing.
17. Because Sunoco Pipeline 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 Pipeline is proceeding with this Petition.
18. This Petition does not seek establishment of any easement or ownership right in
the Property.
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19. Respondents are protected from any monetary loss that may occur as a result of
Sunoco Pipeline entering the Property under Section 309, which requires Sunoco Pipeline to pay
actual damages sustained by Respondents.
20. Without performing the necessary surveys and tests, it is impossible for Sunoco
Pipeline to determine the final route of the Pipeline.
21. Although Sunoco Pipeline 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 Pipeline seeks an order from this Court granting Sunoco Pipeline permission to enter
onto the Property pursuant to that Section.
22. 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,
although a rule to show cause has been issued by the Honorable Thomas A. Placey in Docket
No. 2014-00543 Civil Term, Sunoco Pipeline L.P. v. John E. Perry and Audrey B. Perry. The
Honorable Gary Gilman of the Court of Common Pleas of Washington County and the
Honorable Richard E. McCormick, Jr. of the Court of Common Pleas of Westmoreland County,
however, have granted nearly identical requests.
23. Respondents are not currently represented by counsel, as thus Sunoco Pipeline is
not required to seek Respondents consent in the filing of this Petition.
WHEREFORE, Sunoco Pipeline respectfully requests that this Court grant its Petition for
Right of Entry, and enter an Order, in the form attached, permitting Sunoco Pipeline's
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employees, agents, and representatives to enter on the Property to perform the required studies,
surveys, tests, soundings and appraisals.
Respectfully submitted,
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, 2014 Counsel for Sunoco Pipeline L.P.
5
VERIFICATION
Subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to
authorities, I hereby certify that I am the Chief Right of Way Agent 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.
Karl E. Williamson
Dated: January, 2014
Exhibit A
Sunoco Logistics Sunoco Pipeline L.P.
-�-
4t Right Way DmmmrtNmnt
x
October 2|, 2O|3
CERTIFIED RETURN RECEIPT REQUESTED ANDREG',0LAR MAIL
David W. & Faith R.Fertig
Gj6Gnshunn Woods Road
NowviUc, Ponnsy|vuuiu |724|
Re: Mariner East 2, Segment
Proposed Pipeline Project- Survey Permission
Tract P/\-CD-O054.U0O0^ 8O acres, known ux]ax Parcel }D#4]'05-04|9'UU2= situated
in Upper FmukfboJ Township,Cumberland County, PA
Deal-David W. 6t Faith R. Fcrtig,
Sunoco Pipeline L.P. (Sunoco), is investigating Ulc possibility of installing u liquid petroleum
(Tus pipeline extending From Burrimom County, Ohio through (hc panhandle of West Virginia,
across Pennsylvania, and into Udaruru. This pr 'coi is all important enhancement to our
ouhnn"u pipeline infrastructure and will allow Sunoco 0u bni(cr muot the country's energy
demands.
One of tile first activities Sunoco will undertake is the performance ofcivil Surveys and studies
to evaluate the viability of Sunoco's plans, provide information required by certain regulatory
agencies as part of their review of tile pipeline proposal, and accurately define the rifdits of way
and casements necessary for the project. Sunoco has determined that the land described abovc`
in which you may have all iuiors\ (your "Property"), muy be uAeu(cd by this pn!'coiand, as
such,Suoocodcsiostoconduc1asorvcyondnon-invaoivcfeoaibi|itystudicsonyoorProperty.
Although �A state law provides Sunoco with the hghtto conduct these surveys and inspections
without your express permission, we prefer to obtain your umnacu| ho[urc on1cdog upon your
Property. /\ Survey Pcnnisxiun Umnn is enclosed [br your review. Please sign and return it to
/no as soon as possible in Ule eoo|uacd postage paid return envelope. If we do not receive a
signed Survey Permission (bon hnnn you, Sunoco will proceed 1u conduct the surveys and
Studies ut its discretion, durin� r�msonuh|�duy|�&hihours.
Upon completion of tile survey, if it is doicon|ncd that the pipeline route will cross your
property,a Sunoco agent will contact you to discuss the purchase ofan easement or other rights.
You should be hcurino 8nm us again in the near future. In the meantime, please feel free iocall
me at tile number below with any questions. We sincerely thank You for your assistance with
our important efforts.
Very truly yours,
Al/A
Mark McConnell
Project Manager
Representing Sunoco Pipeline L.P.
Phone: 814-204-0450
Enclosure(s): Survey Permission
Postage Paid Return Envelope
Mariner last 2, Se glinent 2 PA
Tract No.: .PA-CU-0054.0000
4Q%`� Sunoco Logistics Stmoco Pipeline L.P.
A-*11
Right of Way Department
SURVEY PERMISSION FORM
U«rc: 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 geoteclmical soil borings, subject to the condition that I am/we are paid for any and all
damages to the Property caused by said surveys, if any.
Date: 2013.
David W.&Faith R.Fertig
656 Grahams Woods Road
Ncwville,Pennsylvania 17241.
(71.7)241-0333
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? Yes No
Notes/Conditions:
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Exhibit 13 -
McNees
Wallace & Nurick LLC
100 Pine Street- PO Box 1166-Harrisburg.PA 17108-1166 Dana W.Chilson
T01, 717.232.8000 •Fax: 717.237.5300 Direct Dial:717.237.5457
17.26 .1 x 0
Direct Fax:717.260.1780
dchilson@nuvn.com
January 28,2014
David W.Fertig and Faith R. Fertig VIA CERTIFIED MAIL, RETURN
656 Grahams Woods 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 Number: PA-CU-0054.0000
Dear Mr. and Mrs. Fertig:
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 number 43-05-0419-002. 1 understand that you have not responded to
Sunoco's request to perform surveys on your property. I am writing in the hope that I can help
facilitate communication in order to gain your permission to allow Sunoco to perform 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 Laver("BCI:,"), 15 Pa.C.S. § 1101 et seq. 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
www.mwn.com
HARRISBURG,PA • LANCASTER,PA • SCRANTON,PA - STATE COLLEGE, PA - COLUMBUS,OH • WASHINGTON,DC
OA- Ca- 00
i
David W.Fertig and Faith R.Fertig
January 28,2014
.Page 2 ... ...
you that Sunoco's employees and agents will be respectful of your property rights. Sunoco's initial
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 'aw
k2AWIChlilson
Enclosure
pa-Loc- cx�azc 0 00 0 L-0 `1
... ... ...
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 CPS and traditional surveying equipment to perform topographic
and boundary surveys along the proposed pipeline right-or-way. Surveyors may be placing
stakes and/or Bags to mark survey control points,any existing pipeline,or property corners.
Archaeolo ical/Cultural Resource Survey
Cultural resource surveys will be undertaken as necessary in order to ensure compliance with
relevant permitting-needs and Slate lfistoric Preservation Office regulatious and to ensure
identification and assessment of above and below ground cultural resources.
Archaeological surveys may include the exeuvaiion of small shovel tests pits every 50 fee[along
the proposed pipeline right-of•--way. Shovel lest pits are dug using hand tools and are
approximately 1.5 — 2 feet wide. Shovel lists are immediately backftlled find every c(i'ort is
made to preserve llte sad layer.
Suhsurfacc Utility Sti rypy
Subsurlbee utility survcys will he condueled to de(errnine presence of underground utilities
within the project area. Small test holes will be peribrmcd to locate underground utilities
approximately Ig-inches in diamc(cr.These last holes will be perlbrmcd using a pressurircd air
and a vacuum hose. The excavations will be surveyed and holes will be backfilled to(Ile existing
surface.
Environmental Survcv
At lhis'lime aquatic resource(wetland and wa(erbody)and basic habitat characterization survcys
are planned for (he proposed project. align men[. These surveys will include the mapping of
wetlands and streams using CPS 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 tnay 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.
Certified Mail Labels(SDC-3910)
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SUNOCO PIPELINE L.P. : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
Petitioner : PENNSYLVANIA
v. : NO. 19 WL1
DAVID W. FERTIG and FAITH R. FERTIG:
Respondents •
ORDER
AND NOW, this c'ay of 4-01"-'. , 20 14, upon consideration of the foregoing
petition, it is hereby ordered that:
1) A rule is issued upon the respondents to show cause why the petitioner is not entitled to
the relief requested;
2) The respondents shall file an answer to the petition within twenty (20) days of service
upon the respondents;
3) The petition shall be decided under Pa.R.C.P. No. 206.7;
4) Notice of the entry of this order shall be provided to all parties by the petitioner; and
5) A hearin on the within petition is hereby scheduled to be held on , the I b
.
day of , 20 I4, at /P-3fl •• .A .M. in Courtroom No. ca, oft e
Courthouse of Cumberland County, Carlisle, Pennsylvania.
•
BY THE COURT:
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SUNOCO PIPELINE L.P. : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
Petitioner : PENNSYLVANIA
v. : NO. 14-784
DAVID W. FERTIG and FAITH R. FERTIG: ‘.'11 t;_..:.
Respondents •
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PROOF OF SERVICE
I hereby certify that on February 21, 2014, I served a copy of the Court's February 19,
2014 Order issuing a Rule on Respondents David W. Fertig and Faith R. Fertig by first class
mail, postage prepaid addressed to them at 656 Grahams Woods Road,Newville, PA 17241. A
Certificate of Mailing evidencing the service is attached.
McNEES WALLACE &NURICK LLC
By 0A/ti,ei///112A6
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
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: February 2014 Counsel for Sunoco Pipeline L.P.
aUNITED STATES
POSTAL SERVICE® T ,'-{
Certificate Of Mailing m z`
This Certificate sf r.lailinq pr yld,: itl sss that snail has bear,p.sentsd is I`SPS®formailing , r.H 1.1.'`
This form rnE*hh c,1_s-d fo,l isriesti an l i/nnttemat.n l mail p -
From: N. .r lll- V� H l , t rl.
me lV ee S W 2 t(4Ce A J i r7 GK LL C ...; rr. ,,ti.-.
100 f i\-e $eat- P, . B x 11(o Co °°m
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PS Form 3817,April 2007 PSN 7530-02-000-9065 ,,';'��k
3a �y_ Q m
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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:
David W. Fertig and Faith R. Fertig
656 Grahams Woods Road
Newville, PA 17241
Dated: February 05, 2014 D0
Dana W. Chilson
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
,r t Cumber, PRO HON-._} ri
Jody S Smith
Chief Deputy
20R FEB 28 PM 3:
Richard W Stewart CUMBERLAND 3 C i,. =.r,
Solicitor `" � � '`�
PENNSYLVANIA
Sunoco Pipeline L.P.
vs. Case Number
David Wayne Fertig (et al.) 2014-784
SHERIFF'S RETURN OF SERVICE
02/20/2014 01:04 PM - Deputy Jason Kinsler, being duly sworn according to law, served the requested Affidavit by
"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Faith
Renee Fertig at 656 Grahams Wood Rd, Upper Frankford, Newville, PA 17241.
JASO N KINS Icy , DEPUTY
02/20/2014 01:04 PM - Deputy Jason Kinsler, being duly sworn according to law, served the requested Affidavit by
handing a true copy to a person representing themselves to be Faith Fertig, wife, who accepted as"Adult
Person in Charge"for David Wayne Fertig at 656 Grahams Woods Road, Upper Frankford, Newville, PA
17241.
JASON INK SLPR, DEPUTY
SHERIFF COST: $58.05 SO ANSWERS,
February 24, 2014 RONNY R ANDERSON, SHERIFF
IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF PENNSYLVANIA:
CUMBERLAND COUNTY
SUNOCO Pipeline L.P.
Petitioner
v.
David W. FERTIG and Faith R. Fertig,
Respondents
Civil
Docket No. 14-784 Civil
Motion to Strike Verified Petition
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• It is settled law that suit may be commenced only by writ of summons, properly served,
or by complaint with a Notice to Defend attached. Pennsylvania Civil Practice (Matthew
Bender), §4.01.
2. Further, "courts of equity have power to prevent or restrain the commission or
continuance of acts contrary to law and prejudicial to the interests of the community or
the rights of individuals. See Act of June 16, 1836, P.L. 784, § 13, and Act of February
14, 1857, P.L. 39, § 1, 17 P.S. §§ 282 and 283 respectively." Rankin v. Chester-Upland
School District, 11 Pa. Comm'w 232, 238, 312 A.2d 605, 607-8 (1973).
3. The Eminent Domain Code does not provide a remedy or procedure for enforcing the
"right" to enter prior to condemnation.
4. Therefore Sun Pipeline L.P. must proceed to file a civil action complaint in equity for an
injunction should it desire to ensure its statutory right. A stand-alone "Petition" should
not be permitted to circumvent the established law of procedure necessary to provide
relief.
5. Further, Sunoco Pipeline seeks "immediate entry", corresponding to a preliminary
injunction- and such preliminary injunctive relief is governed by Pa. R.C.P. 1531, which
provides safeguards for the defendant(s) in such cases.
6. While Sun Pipeline states in its "Verified Petition" that two judges in other counties have
granted "nearly identical requests", there is no citation to the decisions, nor copies of the
orders granted nor any other clue to permit determination of the truth of the assertion.
7. Sun Pipeline L.P. cites no authority for this Honorable Court to exercise jurisdiction over
its anomalous "Verified Petition".
WHEREFORE, David W. Fertig and Faith R. Fertig, respectfully pray this Honorable Court to
DISMISS the Verified Petition and direct Petitioner to file an appropriate Complaint seeking
injunctive relief, and/or grant such other relief as this Court deems just.
David R. Yoder,
Attorney for David and Faith Fertig
Pa. Att'y ID 76281
Law Offices of David R. Yoder
P.O. Box 215
Carlisle, Pa. 17013
Tel. 717-571-2088
AND
Scott M. Amori,
Pa. Attorney ID 77038
Amori & Associates
717 Sarah St.,
Stroudsburg, Pa. 18360
Tel. 570-421-1406
VERIFICATION
I, David W. Fertig, verify that the statements made in the foregoing document are true and
correct to the best of my knowledge, information and/or belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
Date Davi Fertig
IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF PENNSYLVANIA:
CUMBERLAND COUNTY
SUNOCO Pipeline L.P.
Petitioner
v.
David W. FERTIG and Faith R. Fertig,
Respondents
Civil
Docket No. 14 -784 Civil
ANSWER to VERIFIED PETITION, Etc.
1. Admitted.
2. Admitted.
3. Admitted that Sunoco Pipeline L.P. provides petroleum product transport, it is unknown
by Respondent what the exact purpose of the "Pipeline" proposed by Petitioner is, as
Petitioner and its employees and agents have been consistently unwilling to provide
details relevant to Respondent's interests.
4. Admitted that the Federal Energy Regulatory Commission regulates interstate transport
of petroleum products; denied that the "Pipeline" is currently so regulated, and therefore
Petitioner must qualify under other provisions, which it has not alleged. Further, it is
denied that the Petitioner is, in fact, a "business corporation" at all within the meaning of
the BCL, as it is a foreign partnership.
5. Admitted
6. Admitted.
7. Admitted as to the Petitioner's duties, denied as the route is unknown to Respondent
Blume, and Petitioner and its agents and employees have thus far refused to indicate what
route is proposed across which of Respondent's parcels.
8. Admitted that 26 Pa. C.S. §309 states that access shall be granted. Denied that the access
sought is the narrow exception to the common law indicated by the statute; rather the
Petitioner seeks full and complete access, without exception, to every portion of
Respondent's property. Denied that the statute grants this.
9. Denied that the entire pipeline extends through the entire property, as a pipeline is a
linear installation, and Respondent's land encompasses many more acres than needed for
a pipeline installation and Petitioner has repeatedly refused to specify the route to be
taken.
10. Denied for the reason stated in paragraph 9, above.
11. Admitted that the statute provides the elements indicated. Denied that Sunoco has
demonstrated the will to abide by the spirit of the statute, as it has not sought relief under
a proper form (see below), and because the statute does not define actual damages,
Respondents risk damage on several fronts - loss of one or more of their three (3) wells,
which range in depth from 50 feet to over 200 feet, damage to their annual production of
approximately 75,000 commercial turkeys, damage to the earning capacity of their
agricultural land (which is rented to another farmer), blockage of the storage areas needed
in Mr. Fertig's restoration and salvage business, as well as damage to roads and other
features.
12. Denied as Respondent has consistently insisted it has no need to seek permission, even
while asking for it..
13. Admitted.
14. Admitted.
15. Admitted that such letter was sent, denied that counsel was attempting to resolve the
dispute..
16. Admitted.
17. Admitted that this Petition is the next step, denied that this Petition is the proper method
for obtaining such authority. Contrarily, Respondents assert that where Petitioner seeks
to enforce a statutory right that does not provide a mechanism for enforcement within
itself, the right must be asserted through an actual complaint seeking injunctive relief.
Rankin v. Chester -Upland School District, 11 Pa. Comm'w 232, 238, 312 A.2d 605, 607-
8 (1973). See also the contemporaneously filed Motion to Strike.
18. Admitted.
19. Admitted.
20. Admitted.
21. Admitted that Petitioner is seeking this Order, denied that this Petition is the proper way
to seek a remedy, paragraph 17, above.
22. Admitted that a petition is pending before Judge Placey. As the references to other courts
contain no docket numbers, citations, or other checkable references, the same is denied,
and strict proof demanded.
23. Admitted that at the time of filing Respondents were not represented. Counsels' contact
information is contained below.
WHEREFORE, Respondents David W. Fertig and Faith R. Fertig respectfully requests this
Honorable Court to DISMISS the Petitioner's Verified Petition for Immediate Right of Entry, to
enter an ORDER narrowing the right of entry to protect Respondents, and/or grant such other
relief as this Court deems just.
tfully submitted,
avi• R. Yoder,
Attorney for David an. aith Fertig
Pa. Att'y ID 76281
P.O. Box 215
Carlisle, Pa. 17013
Tel. 717 -571 -2088
AND
Scott M. Amori,
Pa. Attorney ID 77038
Amori & Associates
717 Sarah St.,
Stroudsburg, Pa. 18360
Tel. 570- 421 -1406
VERIFICATION
I, David W. Fertig, verify that the statements made in the foregoing document are true and
correct to the best of my knowledge, information and/or belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
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Date David ertig
SUNOCO PIPELINE, L.P. : IN THE COURT OF COMMON PLEAS OF
PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID W. FERTIG AND
FAITH R. FERTIG,
RESPONDENTS : NO. 14-784 CIVIL
ORDER OF COURT
AND NOW, this 17th day of March, 2014, upon consideration of David and Faith
Fertig's Motion to Strike Verified Petition;
IT IS HEREBY ORDERED AND DIRECTED that Sunoco Pipeline, L.P., shall file
an Answer to the Motion to Strike on or before April 4, 2014. A hearing on the matter
will be held at the hearing previously scheduled regarding this matter on Thursday,
April 10, 2014, at 10:30 a.m. in Courtroom No. 2.
By the Court,
'Nees, Wallace and Nurick
P. 0. Box 1166
Harrisburg, PA 17108
counsel for Petitioners
& Associates, LLC
513 Sarah Street
Stroudsburg, PA 18360
Counsel for Fertigs
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M. L. Ebert, Jr.,
J.
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IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF
PENNSYLVANIA: CUMBERLAND COUNTY
SUNOCO Pipeline L.P.
Petitioner
v.
David W. FERTIG and Faith R. Fertig
Respondents
Civil
Docket No.
CERTIFICATE OF SERVICE
14 -784 Civil
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I, David R. Yoder, Esq. hereby certify that service of the Motion to Strike
Verified Petition and the Answer to Verified Petition, Etc. were made upon:
Curtis Stambaugh, Esq.
McNees, Wallace and Nurick
PO Box 1166
Harrisburg, PA 17108
by mailing, first class, postage prepaid on March 13, 2014. A copy of the Certificate of
Mailing is attached as Exhibit A.
David R. oder, Esq.
Law Offices of Davi . Yoder
PO Box 215
Carlisle, PA 17013
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aUNIT E D STATES
POSMIL SERVICE Certificate Of Mailing
This Certificate or Meiling provides evidence net mail taS been preiented to USPS® for maiing.
This torrn may be used for domestic and internetione
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PS Form 3817, April 2007 PSN 7530-02-000-9065
EXHIBIT A
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SUNOCO PIPELINE, L.P. : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID W. FERTIG AND
FAITH R. FERTIG,
DEFENDANTS : NO. 14 -784 CIVIL
ORDER OF COURT
AND NOW, this 27th day of March, 2014, this Court being advised that the parties
are in negotiations for a settlement of this matter and the request of the Plaintiff, with the
concurrence of the Defendants, for a continuance of the hearing currently scheduled for
April 10, 2014,
IT IS HEREBY ORDERED AND DIRECTED that the hearing regarding all
outstanding matters previously scheduled for Thursday, April 10, 2014, at 10:30 a.m. is
continued indefinitely. Should negotiations fail, either party may contact this Court to
request that the hearing be rescheduled.
IT IS FURTHER ORDERED AND DIRECTED that the Answer to the Defendant's
Motion to Strike due to be filed by Plaintiff on or before April 4, 2014, shall be held in
abeyance pending the negotiations.
Dana W. Chilson, Esquire
McNees, Wallace and Nurick
P. O. Box 1166
Harrisburg, PA 17108
Counsel for Plaintiff
By the Court,
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David Yoder, Esquire
P. O. Box 215
Carlisle, PA 17013
Counsel for Defendants
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