IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation of Easement :

and Right of Way Across lands of :

Curtis R. Lauchle and Terri L. :

Lauchle, husband and wife, by :

UGI Penn Natural Gas, Inc. For :

Public Purposes :

:

Appeal of: Curtis R. and Terri L. : No. 2215 C.D. 2014

Lauchle : Argued: September 14, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McGINLEY FILED: January 5, 2016

Appellants, Curtis R. and Terri L. Lauchle, (Lauchles) own 357 acres 

of land in Lycoming County, Pennsylvania. Petition for Approval and Order for 

Filing Condemnation Bond filed July 15, 2014 (Condemnation Petition-Pipeline 

Easement) at 1-2, Notes of Testimony, October 17, 2014 (N.T.) at 11, 28-29; 

Reproduced Record (R.R.) at 19a-20a, 61a, 78a-79a. 

In July 2014, UGI Penn Natural Gas, Inc. (UGI), by way of the 

Condemnation Petition-Pipeline Easement, sought to condemn the Lauchles’ land 

for a natural gas pipeline (Pipeline Easement)1pursuant to Section 1511 of the 

 

1

The condemnation for the Pipeline Easement is docketed in the Prothonotary’s Office of 

Lycoming County at 14-01790. See Lycoming County Prothonotary Complete Case History, 

Condemnation Petition-Pipeline Easement at 2, R.R. at 2a, 19a-22a.
2

Pennsylvania Business Corporation Law of 1988, 15 Pa.C.S. §1511(g). 

Condemnation Petition-Pipeline Easement, R. R. at 19-22a.

In August, 2014, by way of a Petition for Approval and Order for 

Filing Condemnation Bond, filed August 27, 2014 (Condemnation Petition-TCE), 

UGI also sought to obtain a temporary construction easement (TCE)2for purposes 

related to the Pipeline Easement. Condemnation Petition-TCE, R.R. at 29a-32a.

PROCEDURAL HISTORY

The Pipeline Easement

In regards to the Pipeline Easement, and in follow-up to the 

Condemnation Petition-Pipeline Easement, on August 19, 2014, UGI moved for 

approval by the Lycoming County Court of Common Pleas (common pleas court) 

of its Condemnation Petition-Pipeline Easement and attached a bond in the amount 

of $25,000 (Motion-Pipeline Easement)3. Motion-Pipeline Easement, R.R. at 13a22a. By Order dated August 26, 2014 (August 26, 2014 Order), the common pleas 

court granted the Condemnation Petition-Pipeline Easement and approved the bond

pertaining to the Pipeline Easement. August 26, 2014 Order, R.R. at 23a. 

Subsequently, on August 29, 2014, the Lauchles filed an Answer to 

Petition/Action in Equity in response to UGI’s filings in the Pipeline Easement

matter (Answer/Equity Action-Pipeline Easement). Answer/Equity ActionPipeline Easement, R.R. at 24a-27a. In their Answer/Equity Action-Pipeline 

 

2

The TCE is docketed in the Prothonotary’s Office of Lycoming County at 14-02219. 

See Lycoming County Prothonotary Complete Case History, Condemnation Petition-TCE at 2, 

R.R. at 4a, 29a-32a.

3 As of the date that UGI filed its Motion-Pipeline Easement, no attorney had entered an 

appearance for the Lauchles.
3

Easement, the Lauchles raised the following challenges to the Condemnation

Petition-Pipeline Easement: (1) that this was a taking for the benefit of a private 

enterprise rather than for a public purpose; (2) that the proposed taking was for 

more property than necessary; (3) that UGI’s attempt to enlarge its easement for

the pipeline was in excess of the current need and was unjustified; and (4) that the 

bond amount was inadequate. Answer/Equity Action-Pipeline Easement at 2-3, 

R.R. at 25a-26a.

The TCE

In regards to the TCE, and in follow-up to the Condemnation PetitionTCE, on September 9, 2014, the Lauchles filed an Answer to the Petition/Action in 

Equity in response to UGI’s filings in the TCE matter (Answer/Equity ActionTCE). Answer/Equity Action-TCE, R.R. 47a-50a. In this Answer/Equity ActionTCE, the Lauchles raised the following challenges to the Condemnation PetitionTCE: (1) that the bond amount was inadequate; (2) that factual issues were raised 

which suggested that an evidentiary hearing was necessary after discovery; and (3) 

that this TCE was a taking for a private enterprise rather than a public purpose. 

Answer/Equity Action-TCE, R. R. at 47a-50a.

Thereafter, on October 1, 2014, UGI moved for approval by the 

common pleas court of its Condemnation Petition-TCE (Motion-TCE).4

 

4

The Motion-TCE was not incorporated as part of the Reproduced Record but is included 

in the Original Record of the TCE action as document “6”.
4

Prior Decisions

During a hearing on October 17, 2014, a request for consolidation of 

the Pipeline Easement action and TCE action was made by the Lauchles, who 

argued that the relevant issues in both matters were substantially the same. N.T. at 

2-6, R.R. 52a, 56a. During that October 17, 2014 hearing, the common pleas court 

directed that the cases be consolidated. N.T. at 7, R.R. at 57a. However, no 

formal order was entered by the common pleas court. These matters were, 

nevertheless, heard together and decided together. See UGI’s Brief at 6; Lauchles’

Brief at 7; see also Lauchles’ Brief at Appendix A.5

Thereafter, by Opinion and Order of the common pleas court, dated 

November 7, 2014, (Opinion and Order) the common pleas court overruled, denied 

and dismissed the Lauchles' Answer/Equity Action-Pipeline Easement as untimely; 

and overruled, denied and dismissed that action on the merits because it held that 

the taking for the Pipeline Easement was for a public purpose. By way of that 

same Opinion and Order, the common pleas court also dismissed the Lauchles' 

Answer/Equity Action-TCE because it held that the taking under the TCE was also 

for a public purpose and granted the TCE.

6

On December 8, 2014, the Lauchles filed Notices of Appeal to the 

common pleas court challenging the common pleas court’s Opinion and Order, 

 

5 Consequently, no order solely on UGI’s Motion-TCE was issued by the common pleas 

court.

6

The Opinion and Order was not incorporated as part of the Reproduced Record. 

However, the Opinion and Order was referenced in UGI’s Brief at page 6 and Lauchles’ Brief at 

page 7. The Opinion and Order is also attached to Lauchles’ Brief as “Appendix A”.

The Opinion and Order is included in the Original Record of the Pipeline Easement as 

document “10” and “14” and in the Original Record of the TCE as document “14”.
5

which held that the Lauchles’ Action in Equity-Pipeline Easement was untimely; 

that the takings under the Action in Equity-Pipeline Easement and Action in 

Equity-TCE were not greater than necessary; and that the takings were for a public 

purpose.7 Notices of Appeal, R.R. at 113a-116a. On January 21, 2015, the 

Lauchles filed a “Statement of Matters Complained Of On Appeal”. “Statement of 

Matters Complained Of On Appeal”, R.R. at 118a, 123a.

On March 31, 2015, the Lauchles filed their Reproduced Record and 

Brief on appeal to this Court bearing the docket numbers for both the Pipeline 

Easement and the TCE. By Order dated April 15, 2015, this Court noted that these 

matters were not consolidated, deemed the Lauchles’ Brief filed at both appeals

and granted UGI permission to file a single brief bearing both Commonwealth 

Court docket numbers.

8

Thereafter, by Order dated September 1, 2015, this Court ordered that 

both matters be listed for oral argument seriatim before a panel of this Court.

 The controversy is now before this Court.9

 

7

In connection with the Motion-TCE, the common pleas court held a conference with 

counsel on October 3, 2014. At the conference the parties informed the court that they had 

resolved the Lauchles’ objections concerning the amount of the bond and that the sole issue 

remaining under the Condemnation Petition-TCE is that the TCE is greater than necessary.

8

The Pipeline Easement appeal is docketed at Commonwealth Court Docket No. 2215 

C.D. 2014. The TCE appeal is docketed at Commonwealth Court Docket No. 2216 C.D. 2014.

9

This Court's scope of review in an eminent domain case is limited to determining 

whether the trial court abused its discretion or committed an error of law. Keener v. Carnegie 

Natural Gas Company, 629 A.2d 256 (Pa. Cmwlth. 1993). 
6

ISSUES

The issues, as summarized, are whether the common pleas court 

abused its discretion or committed an error of law by finding that the Lauchles’ 

Action in Equity-Pipeline Easement was untimely filed; by finding that UGI 

qualified for the public utility exception under Section 204(a) of the Property 

Rights Protection Act (PRPA), 26 Pa.C.S. §204(a) for purposes of the Action in 

Equity-Pipeline Easement and Action in Equity-TCE; and in holding that UGI’s 

easement was not greater than necessary to acquire property rights in connection 

with the Pipeline Easement?

Was the Action in Equity Untimely Filed?

The Lauchles argued that they properly filed their Action in EquityPipeline Easement. Lauchles’ Brief at 13. The Lauchles identified that UGI filed 

its Motion-Pipeline Easement on August 19, 2014, and that the common pleas court 

issued the August 26, 2014 Order approving the Condemnation Petition-Pipeline 

Easement.

Thereafter, on August 27, 2014, the Lauchles’ counsel mailed a copy of 

their Action in Equity-Pipeline Easement to the prothonotary of the common pleas 

court, which was filed on August 29, 2014, or ten (10) days after UGI’s MotionPipeline Easement was filed and three (3) days after the common pleas court order 

that granted the Condemnation Petition-Pipeline Easement. Motion-Pipeline 

Easement, R.R. at 13a, August 26, 2014 Order, R.R. at 23a, Action in Equity-Pipeline 

Easement, R.R. at 24a-27a. Consequently, the Lauchles argue their filing was timely.
7

UGI, however, asserted that the Lauchles did not timely respond to 

UGI’s Condemnation Petition-Pipeline Easement within the ten-day period set forth in 

Section 1511(g) of the Business Corporation Law of 1988, 15 Pa.C.S. §1511(g). 

UGI identified that its Condemnation Petition-Pipeline Easement was filed on July 

15, 2014, and served on the Lauchles on July 22, 2014. Lycoming County 

Prothonotary Complete Case History, Affidavit of Service filed by Matthew 

Troxell, R.R. at 2a. UGI further argued that it held off filing its request for 

common pleas court approval of the relief sought in its Condemnation PetitionPipeline Easement until August 19, 2014, or twenty-nine (29) days from service of 

the Condemnation Petition-Pipeline Easement, before it filed its request for the 

common pleas court approval of the relief sought. See generally Lycoming County 

Prothonotary Complete Case History, R.R. at 2a.

Section 1511(g) of the Business Corporation Law of 1988, 15 Pa.C.S.

§1511(g) states in pertinent part that:

(i)...the [interested party] may make a[n] ... application to the 

appropriate court for an order directing the filing of a bond to the 

Commonwealth.... The application shall be accompanied by the bond 

and a certified copy of the resolution of condemnation.

...

(ii)...written notice of the filing of the application under subparagraph 

(i) shall be sent to such party by mail, or otherwise, at least ten days 

prior to the consideration thereof by the court.

15 Pa.C.S. §1511(g).

In the current controversy, the Lauchles were personally served at 

their residence on July 19, 2014, with Condemnation Petition-Pipeline Easement. 

Lycoming County Prothonotary Complete Case History, Affidavit of Service filed 

by Matthew Troxell, R.R. at 2a; Lauchles’ Brief, Appendix A at 3. The Lauchles 
8

did not file an answer or objection to UGI’s Condemnation Petition-Pipeline 

Easement within ten (10) days, or otherwise as prescribed by 15 Pa.C.S. §1511(g).

Further, UGI agreed to an extension of time for the Lauchles to 

respond to the Condemnation Petition-Pipeline Easement as requested by the 

Lauchles. Condemnation Petition at 2, See also Exhibit D of MotionCondemnation Petition, R.R. at 14a. That extension terminated on August 16, 

2014, after the Lauchles declined to retain counsel. R.R. at 14a, Exhibit D.10

UGI thereafter waited until August 19, 2014, thirty-four (34) days, 

before filing their Motion-Condemnation Petition. See Lycoming County 

Prothonotary Complete Case History, R.R. at 2a; Lauchles’ Brief, Appendix A at 

3. Only after the common pleas court entered its August 26, 2014 Order, which 

approved the condemnation and bond, did the Lauchles even react by filing their 

Answers to the Pipeline Easement and TCE. See, e.g., Answer/Equity ActionPipeline Easement, R.R. at 24a-27a, Answer/Equity Action-TCE, R.R. at 47a-50a; 

see also Motion-Pipeline Easement, R.R. at 14a, Motion-TCE Original Record of 

the TCE action at document “6”.

Where a statute is effective and the words are clear, the Court is

precluded from holding otherwise. Section 1921(b) of the Statutory Construction 

Act of 1972, 1 Pa.C.S. § 1921(b). See also, Pennsylvania State Police, Bureau of 

Liquor Control Enforcement v. Scioli-Turco Post 593, V.F.W., 668 A.2d 1207 (Pa. 

Cmwlth. 1995). (The Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 

 

10 Exhibit D cited to in the R.R. at 14a was not contained within the Reproduced Record. 

However, it is attached as “Exhibit D” to the Motion-Condemnation Petition as document “3” in 

the Original Record of the Pipeline Easement action.
9

P.S. §§1–101–10–1001, was revised which provided a liquor licensee with the 

option to choose between daylight savings time and eastern standard time when 

setting its hours of operation. The Commonwealth Court acknowledged that

giving this option to licensees would cause the Bureau enforcement problems. 

However, the Court nevertheless held that when a statute is effective and the words 

are clear, the Court is precluded from holding otherwise (citing Section 1921(b) of 

the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b)).

In the current controversy, the statute required service of the filing of 

the application and further required at least ten (10) days after such service before 

requesting consideration of the motion by the court. Here, service of the 

Condemnation Petition-Pipeline Easement upon the Lauchles was by personal 

service, evidenced by an affidavit of that service filed on July 22, 2014. Lycoming 

County Prothonotary Complete Case History, Affidavit of Service filed by 

Matthew Troxell, R.R. at 2a; UGI’s Brief at 6, Lauchles’ Brief at 7, Appendix “A” 

at 3.11 

UGI waited not only the required ten (10) days after service under 

statute prior to filing their Motion-Pipeline Easement, they waited an additional

twenty-four (24) days, or thirty-four (34) days overall for the Lauchles to respond 

before requesting the court to act on UGI’s Motion-Pipeline Easement. Again, it 

was only after the court entered the order and approved the condemnation petition 

and bond that the Lauchles acted. 

 

11 See also Opinion and Order in the Original Record of the Pipeline Easement as 

document “10” and “14” and in the Original Record of the TCE as document “14”.
10

There is no question that the Lauchles failed to act timely under the 

statute. However, still assuming arguendo that the Lauchles’ action was timely 

filed, their appeal fails.

Does UGI Fall Under the Public Utility Exception of the Pennsylvania 

Property Rights Protection Act12 (PRPA)?

Lauchles argued that condemnation of their land for private enterprise 

was prohibited by Section 204(a) of the PRPA. 26 Pa.C.S. §204(a). The Lauchles 

asserted that UGI’s condemnation for a Pipeline Easement and TCE are not for a 

valid, public purpose, but rather for a private entity known as the “Panda Power 

Fund”. Lauchles’ Brief at 12.

Lauchles asserted that UGI does not fall within the public utility 

exemption of the PRPA13 as that applies only to the definition of a public utility 

corporation as defined in Section 102 of the Public Utility Code, 66 Pa.C.S. §10214;

 

12 26 Pa.C.S. §§201-207. 

13 26 Pa.C.S. §204(b).

14 Section 102 of the Public Utility Code provides in pertinent part:

“Public utility.”

(1) Any person or corporations now or hereafter owning or operating in 

this Commonwealth equipment or facilities for:

(i) Producing, generating, transmitting, distributing or furnishing 

natural or artificial gas, electricity, or steam for the production of light, 

heat, or power to or for the public for compensation.

(ii) Diverting, developing, pumping, impounding, distributing, or 

furnishing water to or for the public for compensation.

(iii) Transporting passengers or property as a common carrier.

(iv) Use as a canal, turnpike, tunnel, bridge, wharf, and the like for 

the public for compensation.

(v) Transporting or conveying natural or artificial gas, crude oil, 

gasoline, or petroleum products, materials for refrigeration, or oxygen or 

(Footnote continued on next page...)
11

 

(continued...)

nitrogen, or other fluid substance, by pipeline or conduit, for the public for 

compensation.

(vi) Conveying or transmitting messages or communications, 

except as set forth in paragraph (2)(iv), by telephone or telegraph or 

domestic public land mobile radio service including, but not limited to, 

point-to-point microwave radio service for the public for compensation.

(vii) Sewage collection, treatment, or disposal for the public for 

compensation.

(viii) Providing limousine service in a county of the second class 

pursuant to subchapter B of Chapter 11 (relating to limousine service in 

counties of the second class).

(2) The term does not include:

(i) Any person or corporation, not otherwise a public utility, who 

or which furnishes service only to himself or itself.

(ii) Any bona fide cooperative association which furnishes service 

only to its stockholders or members on a nonprofit basis.

(iii) Any producer of natural gas not engaged in distributing such 

gas directly to the public for compensation.

(iv) Any person or corporation, not otherwise a public utility, who 

or which furnishes mobile domestic cellular radio telecommunications 

service.

(v) Any building or facility owner/operators who hold ownership 

over and manage the internal distribution system serving such building or 

facility and who supply electric power and other related electric power 

services to occupants of the building or facility.

(vi) Electric generation supplier companies, except for the limited 

purposes as described in sections 2809 (relating to requirements for 

electric generation suppliers) and 2810 (relating to revenue neutral 

reconciliation).

(3) For the purposes of sections 2702 (relating to construction, relocation, 

suspension and abolition of crossings), 2703 (relating to ejectment in 

crossing cases) and 2704 (relating to compensation for damages 

occasioned by construction, relocation or abolition of crossings) and those 

portions of sections 1501 (relating to character of service and facilities), 

1505 (relating to proper service and facilities established on complaint) 

and 1508 (relating to reports of accidents), as those sections or portions 

thereof relate to safety only, a municipal authority or transportation 

authority organized under the laws of this Commonwealth shall be 

considered a public utility when it owns or operates, for the carriage of 

passengers or goods by rail, a line of railroad composed of lines formerly 

owned or operated by the Pennsylvania Railroad, the Penn-Central 

(Footnote continued on next page...)
12

that such exemption applies only when a public utility is providing the “natural 

gas” service to the public. Lauchles’ Brief at 12.

 Lauchles argued that, as admitted by UGI, the natural gas was to be 

supplied to Panda Power Fund, a private entity. Consequently, Lauchles argued

that UGI’s condemnation for this Pipeline Easement and TCE did not fall within 

the exemption as defined in Section 102 of the Public Utility Code15; that such 

condemnation was for a private purpose and prohibited; and that Panda Power 

Fund was not a public utility.

To this end, the Lauchles argued that UGI’s sought-after taking was 

not for serving the public but was an acquisition sought to serve the Moxie/Panda 

Electric Generation Plant.

16 UGI Press Release, August 28, 2014, UGI Penn 

Natural Gas to Begin Infrastructure Project in Lycoming County, 

http://new.ugi.com/press/ugi-penn-natural-gas-to-begin-infrastructure-project-inlycoming-county/ (last visited December 16, 2015), R.R. at 150a; Lauchles’ Brief 

at 19. Lauchles stated that UGI admitted in its discovery responses that the 

proposed pipeline was to be constructed to supply natural gas to the electric 

generation facility constructed by the Moxie/Panda Electric Generation Plant. 

 

(continued...)

Transportation Company, the Reading Company or the Consolidated Rail 

Corporation.

14 66 Pa.C.S. §102.

15 66 Pa.C.S. §102.

16 Panda Power Fund was the successor to Moxie Patriot LLC. R.R. at 130a, 145a; 

Lauchles’ Brief at 19.
13

Interrogatories Directed to Defendant, UGI Penn Natural Gas, Inc. at 7, R.R. at 

130a.

In support of the Lauchles’ argument that Section 204(a) of PRPA 

applied here (“the exercise by any condemnor of the power of eminent domain to 

take private property in order to use it for private enterprise is prohibited”), the 

Lauchles relied upon Reading Area Water Authority v. Schuylkill River Greenway 

Assn’n., 100 A.3d 572 (Pa. 2014) (“[B]ecause eminent domain is in derogation of 

private rights, any legislative authority for its use must be strictly construed in 

favor of the landowner”). Id. at 579. 

The Lauchles’ position is that the explicit language of Section 

204(a) of PRPA and the intent of the Pennsylvania Supreme Court in Reading Area 

Water Authority specifically prohibited this use for the private enterprise of the 

Moxie/Panda Electric Generation Plant.

In opposition, UGI argued that it qualified for the public utility 

exemption under Section 204(b) of PRPA. 26 Pa.C.S. §204(b). UGI argued that 

Section 204(b)(2)(i) of PRPA, 26 Pa.C.S. §204(b)(2)(i), clearly states that the 

prohibition in Section 204(a) against “tak[ing] private property in order to use it for 

a private enterprise,” does not apply when “(2) the property is taken by, to the 

extent the party has the power of eminent domain, transferred or leased to any of 

the following: (i) a “public utility” as defined in Section 102 of the Public Utility

Code. 66 Pa.C.S. §102. 

UGI also claimed there is a distinction between Reading Area Water 

Authority and the controversy before this Court. In Reading Area Water 
14

Authority, the water authority was not a public utility and the easements were to be 

turned over to, and for the sole use of a private party. Here, UGI is a public utility 

and was the sole owner of the Pipeline Easement (and TCE). Reading Area Water 

Authority, 100 A.2d at 583-84; see also, UGI’s Brief at 21.

Further, UGI argued that under Section 1103 of the Business 

Corporation Law of 1988, a “public utility corporation” is defined as “any 

domestic or foreign corporation for profit that: (1) is subject to regulation as a 

public utility by the Pennsylvania Public Utility Commission or an officer or 

agency of the United States;...” 15 Pa.C.S. §1103. 

The uncontroverted facts of record are: first, that the purpose of the 

gas line is to supply natural gas to the Moxie/Panda Electric Generation Plant

located within UGI’s service area; second, UGI is the chosen supplier of natural 

gas to the geographic area of the Moxie/Panda Electric Generation Plant; third,

UGI is a public utility regulated by the PUC; fourth, UGI is and will be the sole 

owner of the Pipeline Easement and TCE; and fifth, that the Moxie/Panda Electric 

Generation Plant will not own, operate or control the condemned easement or the 

natural gas line or related facilities to be placed in the Pipeline Easement. 

Interrogatories Directed to Defendant, UGI Penn Natural Gas, Inc. at 4, 7, 9-11, 

R.R. at 127a, 130a, 132a, 132a-134a.

So, as a public utility, UGI was vested under 15 Pa. C.S. §1511(a) 

with the power of eminent domain “to take, occupy and condemn property for (2) 

the transportation of artificial or natural gas” for the public and (3) for "the 

production, generation, manufacture, transmission, storage, distribution or 
15

furnishing of natural artificial gas, . . . " to or for the public. Consequently, UGI 

falls under the public utility exception of the PRPA. This Court agrees.

Was UGI’s Scope of Easements Greater Than Necessary to Acquire Property 

Rights in Connection With the Pipeline Easement?

The Lauchles maintain that while UGI admits that the proposed 

project at issue was for a single, twelve-inch pipeline, approximately eight (8)

miles long to serve the Moxie/Panda Electric Generation Plant, UGI sought

property rights from the Lauchles for multiple pipelines and for the right to 

increase the size of the pipeline, if needed, for its intended purpose. Lauchles’ 

Brief at 17.

The Lauchles asserted that a “purported need” for a single pipeline 

provided no justification for a condemnation of rights for multiple pipelines. 

Pennsylvania Department of Transportation v. Montgomery Twp., 655 A.2d 1086 

(Pa. Cmwlth.), appeal denied, 666 A.2d 1059 (Pa. 1995).

The Lauchles further rely on Winnett v. Carnegie Natural Gas Co., 37 

Pa. Super. 204, (1908) for the proposition that where the plural use of the word is

used, that plural use grants the utility with the easement the right to lay more than 

one pipeline. See generally, Winnett. Consequently, the Lauchles argue that 

UGI's limited need is for a single pipeline as evidenced by its response that the 

single pipeline "should last at least fifty to one hundred years." Interrogatories 

Directed to Defendant, UGI Penn Natural Gas, Inc. at 9-11, R.R. at 132a- 133a.

UGI admits that it intended to initially install a single gas line within 

the thirty-foot wide easement for its underground facilities. UGI also admitted that 
16

it may install “pipelines” within that easement, using that word to afford UGI the 

flexibility in the future if it should be determined that additional lines become 

necessary. UGI’s Brief at 24-25. However, UGI asserted that the Lauchles did not 

challenge the location, scope or size of UGI’s easement area, only the extent to 

which it may be necessary to place additional future lines within that easement. 

See Eways v. Reading Parking Authority, 124 A.2d 92 (Pa. 1956); Duquesne Light 

Company v. Upper St. Clair Township, 105 A.2d 287 (Pa. 1954). (The expansion, 

extension or replacement of a public utility’s facilities lies solely within the 

discretion of company management, absent a showing of palpable bad faith or 

clear abuse of discretion or power.)

Further, as argued by UGI, the only case cited by Lauchles in support 

of their position on this issue, Pennsylvania Department of Transportation v. 

Montgomery Township, 655 A.2d 1086 (Pa. Cmwlth. 1995), is readily 

distinguishable.

In Montgomery Township, the Pennsylvania Department of 

Transportation (PennDOT) had filed a declaration of taking to condemn a property 

which had been deeded to Montgomery Township, but as to which a separate party 

(a partnership named Kasorex) held a reverter. Montgomery Township, 655 A.2d 

at 1087. Kasorex filed preliminary objections, and alleged that the condemnation 

was not for a valid public purpose and was arbitrary, capricious and in bad faith, 

based partly on the fact that the condemnation papers were filed even though 

PennDOT “had not definitely chosen” to construct any of its future highways or 

roads through the subject property. Montgomery Township, 655 A.2d at 1089.
17

On appeal in Montgomery Township, this Court affirmed, and noted

that the condemnation was premature, insofar as PennDOT had not yet even 

completed the studies necessary to finalize the location of the road, noting that a 

condemnor “may acquire public land prior to the time that it is actually needed,” 

but that “[Penn]DOT has not shown that the early condemnation was necessary 

and in good faith for future transportation purpose within a reasonable period of 

time.” Montgomery Township, 655 A.2d at 1089, 1091. So, PennDOT’s 

condemnation of land before it chose to use the land was invalid. 

In the controversy before this Court, UGI seeks the Pipeline Easement 

and TCE condemnations in connection with an active project, which was 

immediately going forward, and as to which there was no future uncertainty or 

doubt. In addition, the record is devoid of any evidence that these takings were 

merely prospective in nature, for some future but as-of-yet not definitively 

determined public project.

This Court must conclude there is no evidence of record that UGI’s 

scope of taking was greater than necessary to acquire the property rights in 

connection with the Pipeline Easement.

Accordingly, the decision of the common pleas court is affirmed

insofar as it determined that the Lauchles’ Answer/Action in Equity was untimely, 

and even if timely, their challenges are meritless.

____________________________

BERNARD L. McGINLEY, Judge

 

Judge McCullough dissents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation of Easement :

and Right of Way Across lands of :

Curtis R. Lauchle and Terri L. :

Lauchle, husband and wife, by :

UGI Penn Natural Gas, Inc. For :

Public Purposes :

:

Appeal of: Curtis R. and Terri L. : No. 2215 C.D. 2014

Lauchle :

O R D E R

AND NOW, this 5

th day of January, 2016, the Order of the Court of 

Common Pleas of Lycoming County, Pennsylvania is affirmed.

____________________________

BERNARD L. McGINLEY, Judge