IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :

Pipeline L.P. of Permanent and :

Temporary Rights of Way and :

Easements for the Transportation :

Of Ethane, Propane, Liquid Petroleum :

Gas, and other Petroleum Products in :

ThornburyTownship, Delaware County, :

Pennsylvania, Over the Lands of :

Traymore Investment Partners, L.P. :

:

Appeal of: Andover Homeowners’ : No. 1780 C.D. 2016

Association Inc. : Submitted: April 13, 2017

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: October 24, 2017

Andover Homeowners’ Association, Inc. (Andover/Condemnee) appeals 

from the Delaware County Common Pleas Court’s (trial court) September 26, 2016 

order overruling its Preliminary Objections to Sunoco Pipeline L.P.’s (Sunoco) 

Declaration of Taking (Declaration). There are four issues before this Court: (1) 

whether Sunoco’s Mariner East 2 pipeline is needed to meet the Commonwealth’s 

natural gas liquids (NGLs) demand; (2) whether the Public Utility Commission’s 

(PUC) procedures unconstitutionally exclude landowners potentially impacted by 

Mariner East 2; (3) whether any entity is serving as trustee of the Commonwealth’s 

natural resources for Mariner East 2; and, (4) whether the trial court abused its 

discretion by failing to hold excessive taking and bond sufficiency hearings. 
2

I. Background

On May 18, 2016, Sunoco filed the Declaration to condemn a permanent 

easement, temporary workspace easements, a permanent access road easement, a 

permanent block valve easement, and a fenced-in block valve site over 4.38 acres of 

Traymore Investment Partners, L.P.’s (Traymore) property in Thornbury Township

(Township), Pennsylvania (Property) to construct a portion of Sunoco’s Mariner East 

2’s pipeline project (Mariner East 2).

1

 See Reproduced Record (R.R.) at 2a-236a. On 

June 30, 2016, the trial court approved a stipulation allowing Andover, as the 

Property’s equitable owner, to participate as Condemnee in this matter.

2

 See R.R. at 

1b.3

On July 15, 2016, Condemnee filed Preliminary Objections to the 

Declaration in accordance with Section 306 of the Eminent Domain Code,4 26 

Pa.C.S. § 306, alleging: the Declaration violates Section 302 of the Eminent Domain 

Code, 26 Pa.C.S. § 302 (relating to contents of declarations) (Objection I); Sunoco 

lacks eminent domain powers for Mariner East 2 (Objection II); Sunoco is not a 

public utility (Objection III); Mariner East 2 does not fall within the scope of the 

certificates of public convenience (CPC) the PUC previously issued to Sunoco 

(Objection IV); new CPCs are necessary for Sunoco to exercise eminent domain 

rights since Mariner East 2 is a “different service” under Section 1102 of the Public 

Utility Code, 66 Pa.C.S. § 1102 (Objection V); new CPCs are necessary for Mariner 

East 2’s entirely new pipelines (Objection VI); until the PUC specifically approves 

 

1 The Property is an area of open space Traymore created when it developed the Andover 

subdivision to satisfy the Township’s open space requirements. See Condemnee Br. at 13-14. 

2 Traymore holds the Property’s title pending conveyance to Andover. See Condemnee Br. 

at 13.

3 Due to the Reproduced Record’s extensive nature, Condemnee divided it into parts labeled 

R.R. a – R.R. k. 

4

26 Pa.C.S. §§ 101-1106. 
3

Mariner East 2, Sunoco may not exercise eminent domain power (Objection VII); 

Sunoco lacks the power and right to take an easement for two pipelines (Objection 

VIII); Sunoco’s bond is insufficient (Objection IX); and, Sunoco’s taking will cause 

Condemnee to violate the Township’s open space requirements (Objection X). See

R.R. at 2c-13c. Sunoco opposed Condemnee’s Preliminary Objections.5 See

Certified Record (C.R.) Item 7 (Sunoco Br. in Opp. to Preliminary Objections) 

Condemnee filed a reply brief to Sunoco’s opposition. See R.R. at 1d-16d.

Importantly, on July 14, 2016, this Court issued an en banc decision in

In re Condemnation by Sunoco Pipeline, L.P. (Appeal of Martin), 143 A.3d 1000 (Pa. 

Cmwlth. 2016), petition for allowance of appeal denied, (Pa. Nos. 571, 572, 573 

MAL 2016, filed December 29, 2016) (Sunoco I),6 wherein Sunoco I decided a 

majority of the issues Condemnee raised in its Preliminary Objections. Based on 

Sunoco I, on September 26, 2016, without a hearing, the trial court overruled

Condemnee’s Preliminary Objections as follows:

1. [Sunoco] is regulated as a public utility by the [PUC]. 

[Sunoco I].

2. The Mariner East 2 service is included within [Sunoco’s]

certificated public utility service.

3. Mariner East 2 provides both intrastate and interstate 

pipeline service.

4. [Sunoco] and the Mariner East 2 service are dually 

regulated by the PUC and the Federal Energy Regulatory 

Commission [(FERC)].

5. Neither the Interstate Commerce Act, 49 U.S.C. [§]§ 

[101 – 80504] (1988), nor the Hazardous Liquids Pipeline 

 

5 Although referenced in Condemnee’s designation of the Reproduced Record’s contents, 

and in the Reproduced Record’s table of contents as Sunoco’s opposition to Condemnee’s 

Preliminary Objections, see R.R. at 1d-16d, what is attached is Condemnee’s reply brief to 

Sunoco’s brief opposing the Preliminary Objections.

6

Sunoco I is referred to in Condemnee’s brief as Martin.
4

Safety Act of 1979 (‘HLPSA’), [Public Law 96-129, 93 

Stat. 989,] 49 U.S.C. [§§] 2001 [- 2014], preempt[] the 

PUC’s regulation of intrastate shipments on the Mariner 

East 2 service.

6. Section 104 of the Public Utility Code, 66 Pa.C.S. § 104, 

does not restrict the PUC’s jurisdiction over the intrastate

shipments on the Mariner East 2 service.

7. As a public utility providing public utility service under 

the Business Corporation Law [(BCL)], 15 Pa.C.S. § 

1511(a), [Sunoco] has the power of eminent domain.

8. The doctrine of collateral estoppel does not apply to 

compel a different result.

9. The public need for the Mariner East 2 service has 

already been conclusively determined by the General 

Assembly, through enactment of the [BCL], and the PUC, 

through issuance of [CPCs], and [Sunoco’s] taking is 

reasonable for the purpose of providing the Mariner East 2 

service.

10. The Property Rights Protection Act, 26 Pa.C.S. §[§ 201-

207], does not apply to condemnations by public utilities 

such as [Sunoco].

11. [Sunoco] has complied with all the requirements of the 

Eminent Domain Code in filing the [Declaration].

12. The bond [Sunoco] posted is adequate to secure 

payment of just compensation.

Condemnee Br. Ex. A, Trial Ct. Order at 1-2. 

On October 7, 2016, Condemnee filed a motion for reconsideration,

wherein it re-argued its Preliminary Objections, and added arguments that

potentially-impacted landowners were denied due process and that Mariner East 2 

may not satisfy the “primary and paramount” purpose test for takings under the 

Eminent Domain Code, in light of the Pennsylvania Supreme Court’s September 28, 

2016 decision in Robinson Township v. Commonwealth, 147 A.3d 536 (Pa. 2016) 

(Robinson IV). See R.R. at 2f-40f. Sunoco opposed the motion. See R.R. at 1g-14g. 
5

On November 7, 2016, the trial court denied Condemnee’s reconsideration motion.7 

See R.R. at 2h.

On October 24, 2016, Condemnee appealed to this Court.

8

 See R.R. at 

1j. On November 21, 2016, Condemnee filed its Concise Statement of Issues [sic] 

Complained of on Appeal. See R.R. at 1k-6k. On January 10, 2017, the trial court 

filed an opinion in support of its September 26, 2016 order, largely based upon this 

Court’s holdings in Sunoco I. See Sunoco Br. App. D, Trial Ct. Op; see also R.R. at 

1i-51i. 

II. Analysis 

Condemnee argues herein that Sunoco I is inapposite to the issues now 

before the Court:

A. Public Need

Condemnee argues that Sunoco’s Mariner East 2 pipeline is not needed 

to meet the Commonwealth’s NGLs demand. Specifically, Condemnee asserts that 

there is no public interest; that the Sunoco I Court did not conclude that Mariner East 

2 was necessary to provide intrastate service and, since Mariner East 1’s capacity is 

sufficient to meet stated demand, Sunoco is taking more than it needs to fulfill a 

public benefit. 

 

7 Notwithstanding, the trial court’s order is not binding since the reconsideration motion was 

denied by operation of law when the trial court lost jurisdiction to change its September 26, 2016 

order after the applicable 30-day appeal period expired (i.e., October 25, 2016). See Section 5505 

of the Judicial Code, 42 Pa.C.S. § 5505 (relating to a trial court’s authority to modify an order 

within 30 days); see also Pennsylvania Rule of Appellate Procedure 1701(b)(3) (relating to 

reconsideration requests). 

8

“In an eminent domain case disposed of on preliminary objections this Court is limited to 

determining if [the trial court’s] necessary findings of fact are supported by competent evidence and 

if an error of law or an abuse of discretion was committed.” Sunoco I, 143 A.3d at 1014 n.17.
6

1. Regulation of Sunoco as a Public Utility

Sunoco has operated as a Pennsylvania public utility since 2002, when it 

received the PUC’s approval for the transfer, merger, possession, and use of all assets 

of the Sun Pipe Line Company (Sun) and Atlantic Pipeline Corporation (Atlantic), 

both of which were public utilities subject to the PUC’s jurisdiction. See R.R. at 24a27a. Accordingly, the PUC issued a CPC (2002 CPC) authorizing Sunoco “to 

transport petroleum products in the former service territory of Sun and Atlantic[,]” 

between Delmont, Westmoreland County, Pennsylvania and Twin Oaks, Delaware 

County, Pennsylvania, which includes Lebanon County. R.R. at 28a; see also R.R. at 

28a-31a. In granting the 2002 CPC, the PUC declared that the transfer of assets to 

Sunoco “provides an affirmative public benefit” (R.R. at 29a) and that “the granting 

of [Sunoco’s] application is necessary or proper for the service, accommodation, 

convenience and safety of the public.” R.R. at 24a.

 

2. The Mariner East Project

Sunoco planned the Mariner East Project to transport NGLs,

9

such as 

propane, ethane, and butane within the service territory authorized by the 2002 CPC. 

 

9 According to the United States Energy Information Administration:

[NGLs] are hydrocarbons—in the same family of molecules as natural 

gas and crude oil, composed exclusively of carbon and hydrogen. 

Ethane, propane, butane, isobutane, and pentane are all NGLs . . . 

NGLs are used as inputs for petrochemical plants, burned for space 

heat and cooking, and blended into vehicle fuel . . . .

The chemical composition of these hydrocarbons is similar, yet their 

applications vary widely. Ethane occupies the largest share of NGL 

field production. It is used almost exclusively to produce ethylene, 

which is then turned into plastics. Much of the propane, by contrast, 

is burned for heating, although a substantial amount is used as 

petrochemical feedstock . . . .
7

See R.R. at 5a-6a. The Mariner East Project consists of multiple phases, and the 

overall goal is to relieve the oversupply of NGLs in the Marcellus and Utica Shale 

basins and to remedy propane shortages in Pennsylvania and the Northeast. See R.R. 

at 5a.

Sunoco initially intended the Mariner East Project to prioritize interstate

service. The first phase, known as Mariner East 1, was designed to transport NGLs

from the Marcellus and Utica Basins east to the Marcus Hook Industrial Complex 

(MHIC) located in both Delaware County and Claymont, Delaware. See R.R. at 6a. 

However, the record indicates that Sunoco also contemplated the intrastate

transportation of propane for delivery to Pennsylvania customers. See R.R. at 6a. 

During the completion of Mariner East 1, Sunoco experienced a significant increase 

in demand for intrastate shipments of propane, driven by local consumer demand. 

See R.R. at 6a. The record further reflects that harsh winter conditions experienced 

during the 2013-14 winter season, combined with a pipeline infrastructure deficit, led 

to propane shortages and changing market conditions. See R.R. at 6a. Because of the 

circumstances, Sunoco accelerated its plans to provide intrastate shipments of 

propane, in addition to interstate shipments of propane and ethane, through the 

Mariner East Project. See R.R. at 6a.

This increased focus on intrastate shipments was the impetus for the 

second phase of Sunoco’s Mariner East Project (Mariner East 2). See R.R. at 16a17a. Mariner East 2 will consist of pipelines with access points in Ohio, West 

Virginia, and Pennsylvania. See R.R. at 16a-17a. Product will be placed into a 

pipeline (on-ramps), and there will be multiple exit points within Pennsylvania where 

product will be removed from the pipeline (off-ramps). See R.R. at 16a-17a. Mariner 

East 2 generally will run parallel to the Mariner East 1 line. See R.R. at 16a. The 

 

United States Energy Information Administration, Today in Energy, April 20, 2012, available at 

http://www.eia.gov/todayinenergy/detail.cfm?id=5930&src=email (last visited May 20, 2016).
8

Mariner East Project (through Mariner East 1 and Mariner East 2) will transport 

petroleum products in Sunoco’s certificated areas as an integrated service.10 

3. PUC Orders and Tariffs

The record contains references to Sunoco initiating several PUC 

proceedings when its focus for the Mariner East Project moved from interstate to 

intrastate transportation of NGLs after the winter of 2013-14. See R.R. at 6a-19a. 

These proceedings, and the resulting PUC orders, include the following relevant 

actions: 

 July 24, 2014 order – the PUC reaffirmed Sunoco’s 

authority to transport petroleum products between 

Delmont, Westmoreland County, and Twin Oaks, 

Delaware County (see R.R. at 41a-51a); 

 August 21, 2014 order – the PUC approved a tariff for 

Sunoco’s west-to-east intrastate movement of propane 

from Mechanicsburg to Twin Oaks (see R.R. at 53a57a); 

 August 21, 2014 order – the PUC granted Sunoco a 

CPC authorizing it to provide intrastate transportation 

service of petroleum products in Washington County, 

which expanded the service territory in which Sunoco is 

 

10 The PUC’s August 21, 2014 Order states:

Subject to continued shipper interest, Sunoco intends to undertake a

second phase of the Mariner East [P]roject, which will expand the 

capacity of the project by constructing: (1) a 16[-]inch or larger 

pipeline, paralleling its existing pipeline from Houston, PA to the 

Marcus Hook Industrial Complex and along much of the same route, 

and (2) a new 15 miles of pipeline from Houston, PA to a point near 

the Pennsylvania-Ohio boundary line. This second phase, sometimes

referred to as ‘Mariner East 2’, will increase the take-away capacity 

of [NGLs] from the Marcellus Shale and will enable Sunoco to 

provide additional on-loading and off-loading points within 

Pennsylvania for both intrastate and interstate propane shipments.

R.R. at 61a-62a. 
9

authorized to provide its Mariner East service (see R.R. 

at 60a-64a);

 October 29, 2014 order – the PUC reaffirmed that 

“Sunoco has been certificated as a public utility in 

Pennsylvania . . . , and the existence of [PUC o]rders 

granting the [CPCs] to Sunoco is prima facie evidence 

of the facts therein, including that Sunoco is a public 

utility under the [Public Utility] Code [(Code)11].”12 

(R.R. at 116a; see also R.R. at 77a-133a);

 January 15, 2015 order – the PUC approved a tariff for 

Sunoco’s west-to-east intrastate movement of propane, 

reflecting a new origin point of Houston, Washington 

County (see R.R. at 66a-70a); and,

 March 26, 2015 order – the PUC approved a 

supplemental tariff for intrastate shipments from 

Delmont, Westmoreland County to Twin Oaks, 

Delaware County (see R.R. at 72a-75a).

See also Sunoco I.

The Sunoco I condemnees likewise argued before the Cumberland 

County Common Pleas Court that Sunoco failed to demonstrate a public need for the 

Mariner East 2 pipeline. Therein, the condemnees contended that the PUC’s approval 

of a service is only a preliminary step, and it was the responsibility of the trial court 

 

11 66 Pa.C.S. §§ 101-3316.

12 Condemnee claims that Sunoco is relying on at least one non-final PUC order. See

Condemnee Br. at 49-51. Condemnee contends throughout its brief that since Sunoco withdrew its 

application to bypass local zoning to construct ancillary facilities, which was the subject of the 

PUC’s October 29, 2014 remand order (adopted October 2, 2014, but entered October 29, 2014), 

the PUC left open the question whether Sunoco is a public utility corporation. See Condemnee Br. 

at 10-11, 15; see also R.R. at 116c-168c. However, it is clear on the face of the PUC’s October 29, 

2014 remand order that the PUC was called upon to decide only “whether it is in the convenience or 

welfare of the public for Sunoco to enclose the planned facilities with walls and roofs, even if those 

enclosures may conflict with local zoning ordinances.” R.R. at 95a. In making its determination, 

the PUC reviewed Sunoco’s PUC-certificated authority and re-affirmed that Sunoco is a public 

utility under both the BCL and the Code. See R.R. at 96a, 116a. Accordingly, there is no support 

for Condemnee’s claim that the PUC’s October 29, 2014 remand order left open the question 

whether Sunoco is a public utility corporation. 
10

in an eminent domain proceeding to review the public need and to make a 

determination of the scope and validity of the condemnation for the Mariner East 2 

pipeline. 

As to the PUC’s jurisdiction, this Court in Sunoco I stated:

[T]he Code charges [the] PUC with responsibility to

determine which entities are public utilities and to regulate 

how public utilities provide public utility service. This has 

long been the statutory mandate. See, e.g., Pottsville Union 

Traction Co. v. P[a.] Pub[.] Serv[.] Comm’n, 67 Pa. Super. 

301 (1917). It is beyond purview that the General 

Assembly intended [the] PUC to have statewide jurisdiction 

over public utilities and to foreclose local public utility

regulation. Duquesne Light Co. v. Monroeville Borough, . . 

. 298 A.2d 252 ([Pa.] 1972).

Sunoco I, 143 A.3d at 1017. The Sunoco I Court expounded: 

[I]n the public utility context, an entity must meet separate 

but related requirements set forth in both the BCL and the 

Code to be a public utility corporation clothed with the 

power of eminent domain. Section 1511(a)(2) of the BCL 

provides that ‘public utility corporations’ may exercise the 

power of eminent domain to condemn property for the 

transportation of, inter alia, natural gas and petroleum 

products. Section 1103 of the BCL defines public utility

corporation as ‘[a]ny domestic or foreign corporation for 

profit that . . . is subject to regulation as a public utility by 

the [PUC] . . . .’ 15 Pa. C.S. § 1103. Section 1104 of the 

Code requires that a public utility must possess a CPC 

issued by [the] PUC pursuant to Section 1101 of the Code 

before exercising eminent domain. While courts of 

common pleas have jurisdiction to review whether an entity 

attempting to exercise eminent domain power meets the 

BCL criteria, that jurisdiction does not include the authority 

to revisit PUC adjudications. A CPC issued by [the] PUC 

is prima facie evidence that [the] PUC has determined 

that there is a public need for the proposed service and 

that the holder is clothed with the eminent domain 

power. 

Sunoco I, 143 A.3d at 1017-18 (emphasis added). 
11

The Sunoco I Court further explained: 

The Eminent Domain Code does not permit common pleas 

to review the public need for a proposed service by a public 

utility that has been authorized by PUC through the 

issuance of a CPC. In Fairview Water Co. v. Public Utility 

Comm[ission], . . . 502 A.2d 162 ([Pa.] 1985), our Supreme 

Court discussed the proper forum for a condemnee’s

challenge to the legality of a taking when a public utility 

attempts to condemn an easement and [the] PUC has 

determined that condemnee’s property is necessary for the 

utility service. The case stemmed from a dispute between 

Fairview and a power company over the power company’s 

continuing use of an easement previously agreed to by the

parties. Id. at 163. The power company filed an application 

with [the] PUC requesting a finding and determination that 

its transmission line was necessary and proper for the 

service, accommodation, convenience, or safety of the 

public. A PUC Administrative Law Judge determined that 

the service was necessary and proper and also determined 

the scope and validity of the easement. This court affirmed. 

On appeal, Fairview argued that [the] PUC lacked 

jurisdiction to determine the scope and validity of the 

easement. Id. at 163-64. The Supreme Court agreed and 

stated: ‘[o]nce there has been a determination by the PUC 

that the proposed service is necessary and proper, the issues 

of scope and validity and damages must be determined by a 

Court of Common Pleas exercising equity jurisdiction.’ Id.

at 167. As Sunoco here holds CPCs issued by [the] PUC

and [the] PUC in its [o]rders issuing the CPCs found the 

authorized service to be necessary and proper, it is left to 

common pleas to evaluate scope and validity of the 

easement, but not the public need.

As illustrated by Fairview, determinations of public need 

for a proposed utility service are made by [the] PUC, not 

the courts. Section 1103 of the Code requires an applicant 

for a CPC to establish that the proposed service is 

‘necessary or proper for the service, accommodation, 

convenience, or safety of the public.’ 66 Pa.C.S. § 1103(a). 

Under this section, the applicant must ‘demonstrate a public

need or demand for the proposed service . . . .’ Chester 

Water Auth. v. Pub[.] Util[.] Comm’n, . . . 868 A.2d 384, 

386 ([Pa.] 2005) (emphasis added).[]
12

Sunoco I, 143 A.3d at 1018-19 (footnote and emphasis omitted).

Specific to the PUC orders issued regarding the Mariner East Project, the 

Sunoco I Court noted that the PUC’s July 24, 2014 order found that intrastate pipeline 

service proposed by Sunoco would result in “numerous potential public benefits” by 

allowing Sunoco “to immediately address the need for uninterrupted deliveries of 

propane in Pennsylvania and to ensure that there is adequate pipeline capacity to meet 

peak demand for propane during the winter heating season.” Id. at 1019. The Court 

further noted that in the PUC’s August 21, 2014 order authorizing the provision of 

intrastate petroleum and refined petroleum products pipeline transportation service in

Washington County, the PUC stated:

[W]e believe that approval of this Application is necessary 

and proper for the service, accommodation, and 

convenience of the public. We believe granting Sunoco 

authority to commence intrastate transportation of 

propane in Washington County will enhance delivery 

options for the transport of natural gas and [NGLs] in 

Pennsylvania. In the wake of the propane shortage

experienced in 2014, Sunoco’s proposed service will 

increase the supply of propane in markets with a demand 

for these resources, including in Pennsylvania, ensuring 

that Pennsylvania’s citizens enjoy access to propane 

heating fuel. Additionally, the proposed service will offer 

a safer and more economic transportation alternative for

shippers to existing rail and trucking services.

Id. (emphasis in original).

The Sunoco I Court held that “there is no basis for a common pleas court 

to review a PUC determination of public need[,]” and that “to allow such review 

would permit collateral attacks on PUC decisions and be contrary to Section 763 of 

the Judicial Code, 42 Pa. C.S. § 763, which places review of PUC decisions within 

the jurisdiction of this Court.” Id. Accordingly, this Court concluded in Sunoco I 
13

that Sunoco holds a PUC-issued CPC for Mariner East 2, and it “is clothed with the 

eminent domain power.” Id. at 1018.

Based upon this Court’s ruling on this precise issue in Sunoco I, we find 

no error in the trial court’s conclusion in this case that

[t]he statutorily[-]permitted and non-waived objections 

listed in [Condemnee’s] Concise Statement of Issues [sic]

Complained of on Appeal were either addressed directly or

subsumed in the findings listed in the appealed from [o]rder 

of this [c]ourt and would, as well, be included in the factual 

and legal matrices encompassed and ruled upon by the 

Commonwealth Court [in Sunoco I,] hereunto appended as 

Exhibit A. A thorough review of the Commonwealth 

Court’s analysis and ratio decidendi for upholding the 

overruling of preliminary objections identical to those filed 

by [Condenmee] under the Eminent Domain Code, 26 Pa. 

C.S.[] § 306(a), will illustrate why this [c]ourt’s overruling 

of [Condemnee’s] Preliminary Objections must not be

reversed on appeal. 

R.R. at 20i. Because the trial court’s determination is consistent with Sunoco I, we 

hold that the trial court properly overruled Condemnee’s Preliminary Objections. See

In re Condemnation of Sunoco Pipeline, L.P. (Appeal of Katz) 165 A.3d 1044 (Pa. 

Cmwlth. No. 1747 C.D. 2016, filed July 3, 2017); In re Condemnation of Sunoco 

Pipeline, L.P. (Appeal of Perkins) (Pa. Cmwlth. No. 2030 C.D. 2016, filed June 29, 

2017); see also In re Condemnation of Sunoco Pipeline, L.P. (Appeal of Blume) (Pa. 

Cmwlth. No. 1306 C.D. 2016, filed May 26, 2017); In re Condemnation of Sunoco 

Pipeline, L.P. (Appeal of Homes for America, Inc.) (Pa. Cmwlth. No. 565 C.D. 2016, 

filed May 24, 2017); In re Condemnation of Sunoco Pipeline, L.P. (Appeal of 

Gerhart) (Pa. Cmwlth. No. 220 C.D. 2016, filed May 15, 2017).

13

 

13 We acknowledge that this Court’s unreported memorandum opinions may be cited “for 

[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). We reference this Court’s other 

recent Sunoco decisions herein for their persuasive value.
14

Based on the foregoing, there is no merit to Condemnee’s position that 

our Supreme Court’s Robinson IV decision requires Sunoco to reapply to the PUC for 

hearings concerning the public benefit of Mariner East 2.14 See R.R. at 2f-40f. 

Indeed, Robinson IV reaffirmed that the public must be the primary and paramount 

beneficiary before eminent domain powers may be exercised by a private corporation. 

However, since the Sunoco I Court specifically declared that Sunoco is a PUCcertificated public utility authorized to exercise eminent domain powers for Mariner 

East 2 for the public good, Robinson IV does not require a different result.15 By 

extension, the Property Rights Protection Act does not bar Sunoco’s Declaration in 

this case. See Perkins. 

 

B. Landowner Exclusion

Condemnee also contends that “Sunoco cannot hide behind faulty PUC 

procedures to prohibit landowners from contesting the right to condemn when it 

provided no notice to the landowners that quiet enjoyment of their land was at risk.” 

Condemnee Br. at 33. Specifically, Condemnee argues that the PUC’s existing 

procedures unconstitutionally exclude landowners potentially impacted by Mariner 

East 2; Sunoco or the PUC were required to notify landowners that the PUC process 

would be used to remove private property rights; direct mail contact would have 

afforded reasonable minimal landowner notice; and, the Township did not have 

 

14 Because Robinson IV was issued two days after the trial court issued its September 26, 

2016 order, the trial court erred by concluding that Condemnee waived this issue because it was 

“not raised in [the trial court] prior to the issuance of the appealed from [o]rder.” Trial Ct. Op. at 19 

n.13.

15 See also Blume. Moreover, to the extent Robinson IV is limited to private, non-regulated 

corporations, and Sunoco herein has eminent domain authority as a PUC-certificated public utility, 

Robinson IV is distinguishable. See also Gerhart.
15

notice.

16

 See Condemnee Br. at 33-49. Based upon our review of the record, 

Condemnee did not raise these procedural due process violation claims in its 

Preliminary Objections, but rather asserted them for the first time in its motion for 

reconsideration. See R.R. at 31f-36f. Condemnee again raised the issues in its 

Concise Statement of Issues [sic] Complained of on Appeal. See R.R. at 2k-3k. The 

trial court, in its decision, deemed the issues waived. See R.R. at 20i.

The Eminent Domain Code makes clear that “[p]reliminary objections 

are the sole method by which a condemnee may challenge the declaration of taking.” 

In re Condemnation Proceeding by S. Whitehall Twp. Auth., 940 A.2d 624, 627 n.2 

(Pa. Cmwlth. 2008); see also Section 306(a) of the Eminent Domain Code, 26 

Pa.C.S. § 306(a). Section 306(a)(3) of the Eminent Domain Codes specifies: 

Preliminary objections shall be limited to and shall be the 

exclusive method of challenging:

(i) The power or right of the condemnor to 

appropriate the condemned property unless it has 

been previously adjudicated.

(ii) The sufficiency of the security.

(iii) The declaration of taking.

(iv) Any other procedure followed by the 

condemnor.

26 Pa.C.S. § 306(a)(3) (emphasis added). Section 306(b) of the Eminent Domain 

Code further declares that the “[f]ailure to raise by preliminary objections the issues 

listed in subsection (a) shall constitute a waiver.” 26 Pa.C.S. § 306(b). Section 

306(d) of the Eminent Domain Code requires that “[a]ll preliminary objections shall 

 

16 In essence, Condemnee claims that the PUC erred by not giving all landowners whose 

property may potentially be condemned by Sunoco for Mariner East 2 notice and an opportunity to 

be heard relative to Sunoco’s CPC applications. 
16

be raised at one time and in one pleading.” 26 Pa.C.S. § 306(d). Section 306(c) of 

the Eminent Domain Code provides that preliminary objections must specifically 

state the grounds upon which they rely. See 26 Pa.C.S. § 306(c). 

In the instant matter, because Condemnee’s due process claims were not 

raised in its Preliminary Objections, they are waived. Condemnee’s raising of those

issues in its motion for reconsideration and its Concise Statement of Issues [sic] 

Complained of on Appeal did not preserve them. Accordingly, the trial court 

properly deemed Condemnee’s due process violation claims waived, and this Court

will not now consider them.

 

C. Natural Resources Trustee

Condemnee further asserts that no entity is serving as trustee of the 

Commonwealth’s natural resources for Mariner East 2. However, Condemnee did 

not include this issue in its Preliminary Objections. See R.R. at 2c-13c. Rather, 

Condemnee raised it for the first time in its Concise Statement of Issues [sic]

Complained of on Appeal. See R.R. at 3k. The trial court declared the issue waived. 

See R.R. at 20i. Because Condemnee’s trusteeship claim was not raised in its 

Preliminary Objections, the trial court properly concluded that that issue was waived, 

and this Court is precluded from addressing the issue. 26 Pa.C.S. § 306(a)-(d).

D. Hearings

Condemnee finally argues that the trial court abused its discretion by 

failing to hold hearings relative to Condemnee’s excessive takings and bond 

sufficiency claims. Initially, Section 306(f)(2) of the Eminent Domain Code 

provides, in pertinent part, that “[i]f an issue of fact is raised, the court shall take 

evidence by depositions or otherwise.” 26 Pa.C.S. § 306(f)(2). Thus, this Court has 

declared that “[a]ccording to the Eminent Domain Code, the court must take evidence 
17

if an issue of fact is raised. However, ‘[w]here . . . the issues before the court are 

purely legal, the court may rule on the preliminary objection without a hearing.’” 

Dep’t of Transp. v. Montgomery Twp., 655 A.2d 1086, 1088 (Pa. Cmwlth. 1995) 

(quoting Miller v. Dep’t of Transp., 498 A.2d 1370, 1373 (Pa. Cmwlth. 1985)). 

1. Excessive Takings Hearing

Condemnee argues that the trial court erred by failing to hold an 

excessive takings hearing. Based upon our review of the record, Condemnee did not 

specifically raise this issue in Condemnee’s Preliminary Objections. Although 

Condemnee previously argued that Sunoco’s taking is excessive, the first time 

Condemnee expressly made this claim of error was in its motion for the trial court to 

reconsider its September 26, 2016 order overruling Condemnee’s Preliminary 

Objections. See R.R. at 21f-22f, 27f, 36f-37f. Condemnee also raised this issue in its 

Concise Statement of Issues [sic] Complained of on Appeal. See R.R. at 1k-5K. 

Condemnee’s presentation of this issue in its reconsideration motion and Concise 

Statement of Issues [sic] Complained of on Appeal, rather than in its Preliminary 

Objections, did not preserve it. 26 Pa.C.S. § 306(a)-(d). Under the circumstances, 

the issue is waived. 

2. Bond Sufficiency Hearing

In its Preliminary Objections, Condemnee specifically objected and 

requested a hearing as to whether the bond “is insufficient security for just 

compensation for the permanent easement to be appropriated by Sunoco or payment 

for damages to the [P]roperty or arising out of the anticipated two-year or longer 

duration of Sunoco’s occupation on the [P]roperty to construct and install the 
18

pipeline.” R.R. at 11c (emphasis added); see also R.R. at 10c-11c (Objection IX), 

15c, 35c-36c; Condemnee Br. at 15-16, 18. 

Sunoco responds that the trial court properly decided Condemnee’s bond 

sufficiency objection based on the law and facts in the pleadings and, thus, no hearing 

was required.17 See Sunoco Br. at 31. Sunoco specifically asserts that, because the 

bond’s purpose is to secure future payment of just compensation, the relevant 

consideration is the condemnor’s ability to pay just compensation and, since Sunoco 

posted the bond based upon a professional appraisal, and the bond is backed by a 

surety, Condemnee is appropriately assured without a hearing that Sunoco will be 

able to pay just compensation.18 See Sunoco Br. at 31-32. 

Section 303(a) of the Eminent Domain Code requires that “every 

condemnor shall give security to effect the condemnation by filing with the 

declaration of taking its bond, without surety, to the Commonwealth for the use of the 

owner of the property interests condemned[.]” 26 Pa.C.S. § 303(a). Here, Sunoco 

filed a $23,000.00 bond. See Condemnee Br. at 6; see also R.R. at 19a-20a, 229a236a. The bond reflects that the amount was calculated based upon an appraisal of 

the Property’s reasonable just compensation. See R.R. at 229a. Despite that such 

 

17 In its brief in opposition to Condemnee’s Preliminary Objections, Sunoco argued that 

Sunoco’s bond was based upon a professional appraisal and, therefore, was adequate. See C.R. 

Item 7 (Sunoco Br. in Opp. to Preliminary Objections) at 25-26; see also Ex. 2 (Appraisal). 

18 Sunoco claims that Condemnee objected to the bond amount as “too little compensation

for the taking,” which Section 306(b) of the Eminent Domain Code prohibits from being raised by 

preliminary objection. Sunoco Br. at 32 (emphasis added). We acknowledge that Section 306(b) of 

the Eminent Domain Code states: “Issues of compensation may not be raised by preliminary 

objections.” 26 Pa.C.S. § 306(b). However, Condemnee’s specific objection here is that the bond 

“is insufficient security for just compensation[.]” R.R. at 11c (emphasis added). Section 

306(a)(3)(ii) of the Eminent Domain Code makes preliminary objections the exclusive method to 

challenge “[t]he sufficiency of security.” 26 Pa.C.S. § 306(a)(3)(ii); see also In re Condemnation 

by the Dep’t of Transp. of Right of Way for Legislative Route 146, 547 A.2d 867 (Pa. Cmwlth. 

1988). Because Condemnee’s objection is clearly based on whether Sunoco has provided sufficient 

security, and not the amount of damages to which it may ultimately be entitled, it properly raised 

the issue by Preliminary Objection.
19

measure was not statutorily required, Sunoco had Liberty Mutual Insurance Company 

secure the bond as surety. See R.R. at 229a. In ruling on the bond’s sufficiency, the 

trial court declared: “The bond [Sunoco] posted is adequate to secure payment of just 

compensation.”19 Trial Ct. Order at 2. The trial court did not specify in its opinion 

the basis upon which it decided that the bond Sunoco posted for this taking was 

sufficient. 

Section 303 of the Eminent Domain Code does not require the trial court 

to hold a bond sufficiency hearing. Rather, Section 303(c) of the Eminent Domain 

Code states: “The court . . . may require the condemnor to give bond and security as 

the court deems proper if it appears to the court that the bond . . . of the condemnor is 

insufficient security.” 26 Pa.C.S. § 303(c). However, this Court, following the 

Supreme Court’s declaration in In re Redevelopment Authority of Altoona, 254 A.2d 

653 (Pa. 1969), held: “It is well settled that in cases in which the sufficiency of the 

security is challenged by preliminary objection, the condemnee is entitled to a 

hearing and an opportunity to present evidence.” Milford Traumbauersville Area 

Sewer Auth. v. Approximately 0.753 Acres of Land, 358 A.2d 450, 451 (Pa. Cmwlth. 

1976) (emphasis added).

20

 Thereafter, “[t]he judgment of the trial court as to the 

 

19 In its opinion, the trial court pronounced that “the matter of determining adequacy of the 

bond is left until after the appropriateness of a condemnation has been established.” Trial Ct. Op. at 

19 (citing Dep’t of Transp. v. Montgomery Twp., 655 A.2d 1086 (Pa. Cmwlth. 1995)). However,

since the trial court dismissed Condemnee’s Preliminary Objections and, by doing so, declared the 

condemnation proper, it was further required to assess the bond’s sufficiency. 

20 Sunoco argues that no evidentiary hearing was necessary in this case since Condemnee 

did not question Sunoco’s ability to pay just compensation. In support of its position, Sunoco cites 

to a non-precedential common pleas court opinion. See Sunoco Br. at 32-33. Sunoco also relies 

upon eminent domain compensation provisions that are inapplicable at this stage of the proceeding. 

See Sunoco Br. at 31. In addition, Sunoco cites Golden Dawn Shops, Inc. v. Philadelphia 

Redevelopment Authority, 282 A.2d 395 (Pa. Cmwlth. 1971), wherein this Court held that the trial 

court was required to hold a hearing relative to the bond’s sufficiency before dismissing the 

preliminary objections. See Sunoco Br. at 31. Sunoco further relies upon York City Redevelopment 

Authority of City of York v. Ohio Blenders, Inc., 956 A.2d 1052 (Pa. Cmwlth. 2008), in which the
20

amount of the security will be disturbed only where there is a manifest abuse of 

discretion.” York City Redevelopment Auth. of City of York v. Ohio Blenders, Inc., 

956 A.2d 1052, 1061 (Pa. Cmwlth. 2008). 

Based on the foregoing, the trial court erred by not holding a bond 

sufficiency hearing before overruling Condemnee’s Preliminary Objections. As a 

result, we have no record upon which to determine if the trial court abused its 

discretion. Under the circumstances, this Court is constrained to remand this matter

for the trial court to conduct an evidentiary hearing limited to the sufficiency of the 

bond Sunoco posted for this condemnation.

III. Conclusion

Based on the foregoing, we vacate the trial court’s ruling that “[t]he 

bond [Sunoco] posted is adequate to secure payment of just compensation” (Trial Ct. 

Order at 2; see also Objection IX), and remand this matter to the trial court for an 

 

trial court’s bond sufficiency determination was made after a hearing. See Sunoco Br. at 31. 

Accordingly, Sunoco’s argument cannot stand. 

 Moreover, Sunoco’s contention is contrary to well-established precedent that a trial court 

must hold a hearing to determine a condemnor’s security bond’s sufficiency before dismissing 

preliminary objections regarding the same. See also In re Condemnation by the Econ. Borough 

Mun. Auth., 834 A.2d 685, 691 (Pa. Cmwlth. 2003) (“Where an objection to the sufficiency of the 

bond is raised, the trial judge should not dismiss the objection without requiring an answer and 

holding a hearing.”); Appeal of Conway, 432 A.2d 276, 278 (Pa. Cmwlth. 1981) (“In order to make 

a determination on the merits of [as to the sufficiency of the condemnor’s security], an adequate 

record should have been made before the trial judge dismissed the preliminary objections.”); Appeal 

of Milas, 387 A.2d 183, 184 (Pa. Cmwlth. 1978) (“[T]he court must examine the sufficiency of the 

bond with the aid of an adequate record.”); Riehl v. Millcreek Twp. Sewer Auth., 362 A.2d 478, 481 

(Pa. Cmwlth. 1976) (“[W]here an objection to the sufficiency of the bond is raised, the trial judge 

should not dismiss the objection without requiring an answer and holding a hearing.”). 
21

evidentiary hearing limited to the sufficiency of the bond Sunoco posted for this 

condemnation. We affirm the trial court’s order in all other respects.

___________________________

ANNE E. COVEY, Judge

Judge Wojcik did not participate in the decision in this matter.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :

Pipeline L.P. of Permanent and :

Temporary Rights of Way and :

Easements for the Transportation :

Of Ethane, Propane, Liquid Petroleum :

Gas, and other Petroleum Products in :

ThornburyTownship, Delaware County, :

Pennsylvania, Over the Lands of :

Traymore Investment Partners, L.P. :

:

Appeal of: Andover Homeowners' : No. 1780 C.D. 2016

Association Inc. :

O R D E R

AND NOW, this 24th day of October, 2017, the portion of the Delaware 

County Common Pleas Court’s (trial court) September 26, 2016 order ruling that 

“[t]he bond [Sunoco] posted is adequate to secure payment of just compensation” 

(Trial Ct. Order at 2; see also Objection IX) is vacated, and this matter is remanded to 

the trial court to hold an evidentiary hearing limited to the sufficiency of the bond 

Sunoco Pipeline L.P. posted for this condemnation. The trial court’s order is 

affirmed in all other respects. 

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge