IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :

Pipeline L.P. of Permanent and :

Temporary Rights of Way for the :

Transportation of Ethane, Propane, :

Liquid Petroleum Gas, and other :

Petroleum Products in theTownship :

of Union, Huntingdon County, :

Pennsylvania, Over the Lands of : No. 1561 C.D. 2018

Stephen Gerhart and Ellen S. Gerhart : Submitted: February 8, 2019

:

Appeal of: Ellen S. Gerhart :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 8, 2019

Ellen S. Gerhart appeals an order of the Court of Common Pleas of 

Huntingdon County (trial court) holding her in contempt of court, for which it 

sentenced her to serve two to six months in prison and imposed a $2,000 fine. 

Gerhart argues that the trial court improperly categorized this civil contempt matter 

as indirect criminal contempt, which resulted in an illegal and excessive prison 

sentence. We affirm.

In 2015, Sunoco Pipeline L.P. (Sunoco) filed a declaration of taking 

seeking a permanent easement of 1.72 acres and a temporary work area easement of 

1.44 acres over portions of Stephen and Ellen Gerhart’s 27-acre property in Union 

Township, Pennsylvania. Sunoco acquired the easements for a construction project 

known as the Mariner East Pipeline Project. The Gerharts filed preliminary 

objections to the declaration of taking, which the trial court overruled. The Gerharts 
2

appealed to this Court, and it affirmed the trial court in In re Condemnation by 

Sunoco Pipeline L.P. (Pa. Cmwlth., No. 220 C.D. 2016, filed May 15, 2017), petition 

for allowance of appeal denied, 179 A.3d 456 (Pa. 2018).

Following this Court’s decision, Sunoco sought a preliminary 

injunction, alleging that the Gerharts were interfering with Sunoco’s tree clearing 

activities by installing platforms for “tree-sitters.” On June 28, 2017, the trial court 

issued the preliminary injunction, which stated as follows:

1. [The Gerharts] shall immediately, but in no event more than 

48 hours after issuance of this Order, remove all structures, 

tree platforms, tents, vehicles, equipment, and other objects 

placed within the easement granted to [Sunoco]. Any items 

remaining within the easement thereafter shall be viewed as 

abandoned illegal obstructions and shall be removed and 

disposed of by [Sunoco] or at the direction of [Sunoco]. Any 

items which cannot be readily removed may be destroyed by 

[Sunoco].

2. Unless their presence on the easement is consented to by 

[Sunoco], all persons are enjoined and restrained, pending 

further order of this Court, from entering, or being on the 

easement granted to [Sunoco] until the pipelines are installed 

and all remediation and restoration efforts are complete.

3. [The Gerharts], and all persons acting in concert with them, 

as well as all persons on property owned by [the Gerharts] or 

in the vicinity thereof are hereby restrained and enjoined, 

pending further order of this Court, from barring, preventing, 

or otherwise interfering in any way with [Sunoco’s] access to, 

and use of, the easement granted to [Sunoco] on [the 

Gerharts’] property.

4. [The Gerharts] and all persons acting in concert with them, as 

well as all persons on property owned by [the Gerharts], are 

hereby restrained and enjoined pending further order of this 

Court from barring, preventing, or otherwise interfering in 

any way with [Sunoco’s] installation of pipelines within said 

easement.
3

5. [The Gerharts], and all persons acting in concert with them, 

as well as all persons on property owned by [the Gerharts] or 

in the vicinity thereof are restrained and enjoined from 

creating conditions on the right of way that create a danger to 

themselves and others.

6. [bond ordered]

7. This Order shall remain in effect in full force until such time 

as this Court specifically orders otherwise.

Trial Court Order, 6/28/2017, at 1-2; Reproduced Record at 1-2 (R.R. ___). The 

Gerharts appealed the preliminary injunction to this Court but later filed a praecipe 

to discontinue their appeal. In re Condemnation by Sunoco Pipeline L.P. (Pa. 

Cmwlth., No. 1026 C.D. 2017, filed November 14, 2017). 

On April 30, 2018, Sunoco filed a “Petition for Determination of 

Indirect Criminal Contempt” against Ellen Gerhart. R.R. 98. The petition alleged 

that Gerhart had entered the easement area on numerous occasions in 2018 in willful 

defiance of the preliminary injunction. The trial court held a hearing on May 9, 

2018, at which time Gerhart’s bail was set at $25,000. As a condition of bail, Gerhart

was ordered to comply with the preliminary injunction. 

On July 27, 2018, Sunoco filed a petition to revoke Gerhart’s bail for 

refusing to comply with the preliminary injunction. To interfere with construction, 

Gerhart stood in front of moving construction vehicles; ignited fires next to the 

construction fence; threw ground meat on workers; and baited the area with food to 

entice wild animals to the construction site. The trial court ordered a bench warrant 

for the arrest of Gerhart, and she was incarcerated that same day. On July 30, 2018,

the trial court reissued bail at $25,000 cash and scheduled the indirect criminal 

contempt hearing for August 3, 2018. Because Gerhart did not post bail, she 

remained incarcerated.
4

At the hearing, Heather Rae Martin, a security officer employed at the 

construction site from April 5, 2018, to July 7, 2018, testified. She stated that 

Gerhart routinely entered the construction site and stood in front of equipment to 

prevent personnel from working. If workers were cutting trees, Gerhart would stand 

nearby so they would have to stop. If workers were cutting logs, Gerhart would sit 

on the logs. If the workers moved to another tree or log, Gerhart would follow them.

Martin testified that every security officer wears a body camera and 

carries video equipment. When Gerhart entered the easement area, security officers 

advised her of her trespass, that it was unsafe to be in the construction area and asked

her to leave. At “no point [did they] physically engage her.” Notes of Testimony, 

8/3/2018, at 6 (N.T. __); R.R. 15. If Gerhart came too close, the workers had to stop 

because “it would be worrying about her safety.” Id. Videos of security officers 

were introduced into evidence showing Gerhart within the easement sitting on logs 

and stepping in front of moving equipment. 

Martin explained that when Sunoco placed nylon fencing around the 

easement, Gerhart began throwing food over the fencing, such as meat and eggs. 

She spread cat litter, which produced a stench. Gerhart set up a “baiting station” 

with berries, vegetables, suet and peanut butter. N.T. at 24; R.R. 33. The food 

attracted bears to the site, and Martin presented video of several bears in the 

easement. 

John Bricker, Sunoco’s project coordinator and security supervisor,

also testified. He began working at Sunoco’s site on April 2, 2018, and personally 

encountered Gerhart three to four times a week. Once, she held a rock and acted 

“like she was going to throw [the] rock at [him, but] laughed and threw it at a piece 

of equipment that was next to [him].” N.T. 34; R.R. 43. She also “threw spoiled 
5

milk on [him].” N.T. 35; R.R. 44. Once, she pulled up stakes marking the 

easement’s boundary line and threw them. 

On several occasions, Gerhart lit fires close to the nylon fencing. 

Bricker presented a video of her lighting a fire near gasoline pumps. She asked him, 

“how does it feel to be next to something that could explode[?]” N.T. 37; R.R. 46. 

She also approached the fencing with a bottle that appeared to have a wick in it, like 

a “Molotov cocktail.” N.T. 35; R.R. 44. She put it on a tree stump and attempted to 

light it. When it did not ignite, she “made a fire on the stump, placed that item on it 

and let it burn.” Id. 

Rick Macklem, a Pennsylvania Game Warden, testified about Gerhart’s 

“baiting for bears” with suet blocks and grease smeared on trees next to Sunoco’s 

fencing. N.T. 52; R.R. 61. Some of the suet and grease was spread on guard stations 

within the easement. Macklem warned Gerhart that putting out food to attract bears

is unlawful because it causes a danger to the public. When she continued to do so, 

he issued a citation to her.

Gerhart’s sole witness was her daughter, Elise Gerhart. She testified 

that bears are common in the area. However, she often goes for walks on the 

property and has never seen food near the easement area. 

The trial court found that Gerhart had purposefully violated the 

preliminary injunction on multiple occasions. The trial court sentenced her to two 

to six months in prison and imposed a $2,000 fine. Gerhart filed post-sentence 

motions, but they were denied by the trial court. Gerhart then appealed to this 

Court.

1

 

1 Our review of an appeal of a contempt order is limited to a review of whether the trial court 

abused its discretion or committed an error of law. Jackson v. Hendrick, 764 A.2d 1139, 1142 n.4 

(Pa. Cmwlth. 2000).
6

On appeal, Gerhart raises two issues. First, she contends the trial court 

erred in treating the matter as indirect criminal contempt, when it was actually a civil 

contempt proceeding. Accordingly, her criminal sentence was unlawful. Second, 

she contends that her sentence for indirect criminal contempt was excessive.

On January 28, 2019, Sunoco filed an application for post-submission 

communication pursuant to Pennsylvania Rule of Appellate Procedure 25012to file 

a motion to dismiss for mootness. Generally, Rule 2501 relates to 

“‘communications’ such as briefs, memoranda or letters [and] does not apply to 

applications for relief.” Deutsche Bank National Company v. Butler, 868 A.2d 574, 

577 (Pa. Super. 2005). However, Pennsylvania Rule of Appellate Procedure 

1972(a)(4) does authorize “any party” to move “[t]o dismiss for mootness.” PA.

R.A.P. 1972(a)(4). The issue of mootness may be raised at any time because “an 

actual case or controversy must exist at all stages of the judicial or administrative 

process.” Pennsylvania Liquor Control Board v. Dentici, 542 A.2d 229, 230 (Pa. 

Cmwlth. 1988). 

 

2

It provides:

(a) General rule. After the argument of a case has been concluded or the case has 

been submitted, no brief, memorandum or letter relating to the case shall be 

presented or submitted, either directly or indirectly, to the court or any judge 

thereof, except upon application or when expressly allowed at bar at the time of the 

argument.

(b) Change in status of authorities. If any case or other authority relied upon in the 

brief of a party is expressly reversed, modified, overruled or otherwise affected so 

as to materially affect its status as an authoritative statement of the law for which 

originally cited in the jurisdiction in which it was decided, enacted or promulgated, 

any counsel having knowledge thereof shall file a letter, which shall not contain 

any argument, transmitting a copy of the slip opinion or other document wherein 

the authority relied upon was affected.

PA. R.A.P. 2501.
7

We begin with Sunoco’s motion to dismiss for mootness, to which 

Gerhart has filed an answer. Sunoco asserts that Gerhart’s sentence expired on 

January 22, 2019, and, thus, her appeal is moot. In response, Gerhart acknowledges 

that her sentence has been served but notes that she was also ordered to pay a $2,000 

fine, which is outstanding. An appeal from a completed sentence is not moot if 

collateral consequences remain or if the question presented is capable of repetition 

yet evades review. Gerhart claims both apply to her case. The outstanding fine may 

subject her to collateral criminal consequences, and incarceration for indirect 

criminal contempt may be so short that it will evade appellate review.

Appellate courts do not decide moot questions. In re Gross, 382 A.2d 

116, 119 (Pa. 1978). In Commonwealth v. Kelly, 418 A.2d 387 (Pa. Super. 1980), 

the Superior Court explained that once a sentence is served, a challenge to “the lower 

court’s interpretation of [the] sentence” is moot. Id. at 388. However, a challenge 

to the legality of the sentence is not moot if there is a “possibility” of “collateral civil 

or criminal consequences” because of the conviction. Commonwealth v. King, 786 

A.2d 993, 996 (Pa. Super. 2001).

The Superior Court addressed the possibility of collateral criminal 

consequences of an unpaid fine in Commonwealth v. Mauk, 185 A.3d 406 (Pa. Super. 

2018). There, the defendant pled guilty to theft-related offenses and was ordered to 

pay restitution, court costs and fines. Six years later, with the defendant’s debt in 

arrears, the trial court found him in indirect criminal contempt and sentenced him to 

14 days in prison. The defendant appealed, and the Commonwealth argued his 

appeal was moot because his sentence had been served. The defendant argued 

otherwise listing two reasons. First, the short sentence meant that the trial court’s 

order could evade appellate review. Second, his restitution remained in arrears, 
8

leaving him susceptible to future contempt charges and imprisonment. The Superior 

Court agreed with the defendant on both counts. 

Likewise, here, Gerhart challenges the legality of her sentence as well 

as the outstanding fine, which raises the “possibility” of future criminal 

consequences. As was the case for the defendant in Mauk, Gerhart could be 

incarcerated for the fine’s nonpayment. We conclude that Gerhart’s appeal is not 

moot and will consider the merits of her appeal. 

In her first issue, Gerhart contends the trial court erred in holding that 

she committed indirect criminal contempt, which protects the interest of the public. 

Gerhart contends that only the private interest of Sunoco was involved. At most, 

therefore, she committed civil contempt. Her sentence was illegal because an 

individual held in civil contempt must be able to avoid incarceration by purging the 

contempt. 

Sunoco responds that indirect criminal contempt was the appropriate 

sanction for willfully violating the preliminary injunction. Gerhart was represented 

by counsel, received all the procedural protections due under the law and, thus, the 

sentence imposed by the trial court was proper. 

This Court has explained the difference between civil and criminal 

contempt as follows:

The courts have always been possessed of inherent power to 

enforce their orders and decrees by imposing sanctions. If the 

dominant purpose of the court is remedial, to coerce compliance 

with the court’s previous order and in some cases to compensate 

the complainant for losses suffered, the contempt proceeding is 

classified as civil. If the dominant purpose is to vindicate the 

dignity and authority of the court and to protect the interest of the 

general public by punishing the contemnor, the proceeding is for 

criminal contempt. Criminal contempt is a crime, and those 

accused of indirect criminal contempt, that which is committed 
9

outside the presence of the court, are provided with safeguards 

according to statute and to normal criminal procedures.

Borough of Beaver v. Steckman, 728 A.2d 418, 421 (Pa. Cmwlth. 1999) (internal 

citations omitted). Indirect criminal contempt pertains to the violation of a court 

order. Section 4136(a) of the Judicial Code states, in relevant part, as follows:

(a) General rule.--A person charged with indirect criminal 

contempt for violation of a restraining order or injunction issued 

by a court shall enjoy:

(1) The rights to bail that are accorded to persons accused of 

crime.

(2) The right to be notified of the accusation and a reasonable 

time to make a defense, if the alleged contempt is not committed 

in the immediate view or presence of the court.

42 Pa. C.S. §4136(a). The Supreme Court has explained:

Indirect criminal contempt is a violation of a court order that 

occurred outside the court’s presence. To prove indirect criminal 

contempt, evidence must be sufficient to establish: the court’s 

order was definite, clear, specific, and leaving no doubt in the 

person to whom it was addressed of the conduct prohibited; the 

contemnor had notice of the order; the act constituting the 

violation was volitional; and the contemnor acted with wrongful 

intent.

Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa. 2008) (internal citations 

omitted) (emphasis added).

The preliminary injunction named Gerhart, and her notice of the order 

is undisputed. The preliminary injunction prohibited her from “entering, or being 

on the easement” or “interfering in any way with [Sunoco’s] access to, and use of, 

the easement ....” Trial Court Order, 6/28/2017, ¶¶2-3; R.R. 1-2. The terms of the 

order are clear. Notably, Gerhart does not challenge the trial court’s findings she 
10

violated the preliminary injunction beyond a reasonable doubt by committing the 

following actions:

1. [S]he placed workers in danger by setting fires near the 

easement that required actions by workers to extinguish;

2. [S]he entered onto the easement and physically obstructed 

workers which caused safety concerns;

3. [S]he entered onto the easement and obstructed the movement 

of heavy equipment causing safety concerns and forcing work 

to cease to prevent injury to her;

4. [S]he spread rancid materials on trees and on the ground in 

vicinity of the easement to, in her words, attract wild animals 

to the construction site;

5. [S]he threw a large stick or tree limb onto the easement in the 

vicinity of workers;

6. [S]he removed survey markers from the easement and threw 

them from the easement onto her property; and

7. [S]he constructed an object from a plastic bottle (which 

appeared on video to be an incendiary device), and ignited the 

device at the boundary of the easement in an attempt to place 

workers in fear of being injured.

Trial Court Op., 8/20/2018, at 4 (denying post-sentence motions). The trial court 

held that Gerhart “was acutely aware of the mandates of the [preliminary injunction]

and made a conscious choice to challenge the authority of the [trial court].” Id. at 5. 

“The criminal activity of [Gerhart] relates to her violation of [the preliminary 

injunction], and her intentional disregard for the rule of law.” Id. at 3. In sum, each 

element of indirect criminal contempt was satisfied. McMullen, 961 A.2d at 849. 

There is no requirement that the conduct in violation of an injunction 

be directed against the public, as Gerhart suggests. Id. at 850 (“[I]ndirect criminal 

contempt is an offense against the court’s inherent authority, not necessarily against 
11

the public.”). In any event, the Pennsylvania Public Utility Commission (PUC) has 

concluded that the Mariner East Pipeline Project serves a public need and will 

advance the public interest.

3

 We reject Gerhart’s first claim of error.

In her second issue, Gerhart argues that her sentence for indirect 

criminal contempt was excessive. She concedes that the trial court had the authority 

to impose a sentence of up to six months but argues that the sentence was excessive 

under Pennsylvania’s Sentencing Guidelines, 204 Pa. Code §§303.1-303.18(c).4 

Sunoco responds that the trial court has broad discretion when imposing a sentence, 

and that the Sentencing Guidelines are irrelevant. 

The Sentencing Guidelines exempt indirect criminal contempt. Section 

303.1(b) states:

The sentencing guidelines do not apply to sentences imposed as 

a result of the following: accelerated rehabilitative disposition; 

disposition in lieu of trial; direct or indirect contempt of court; 

violations of protection from abuse orders; revocation of 

probation, intermediate punishment or parole.

204 Pa. Code §303.1(b) (emphasis added). Despite this, Gerhart asks the Court to 

consider whether her acts are of the same character as those listed in the basic 

sentencing matrix. 204 Pa. Code §303.16(a). We decline to do so. 

In McMullen, the Supreme Court held that the courts “have the 

authority to punish individuals in violation of their orders” and “the legislature 

cannot create a form of indirect criminal contempt and restrict a court’s ability to 

 

3

See In re Condemnation by Sunoco Pipeline (Pa. Cmwlth., No. 220 C.D. 2016, filed May 15, 

2017), where this Court held that it did not have the authority to second guess the PUC’s award of 

a certificate of public convenience to Sunoco.

4 The Sentencing Guidelines “are promulgated by the Pennsylvania Commission on Sentencing ... 

a legislative agency created by the General Assembly.” Commonwealth v. Smith, 186 A.3d 397, 

400 (Pa. 2018). 
12

punish individuals who commit contempt of court.” McMullen, 961 A.2d at 849-50. 

The legislature generally may determine the appropriate punishment for criminal 

conduct but “indirect criminal contempt is an offense against the court’s inherent 

authority ....” Id. The trial court was not restricted in any way by the Sentencing 

Guidelines when deciding Gerhart’s sanction. 

The trial court had the authority to set the sentence, absent an abuse of 

discretion. Jackson, 764 A.2d at 1142 n.4. Gerhart has neither established nor 

argued an abuse of discretion. Thus, we reject her second claim of error.

For the above reasons, the order of the trial court is affirmed.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :

Pipeline L.P. of Permanent and :

Temporary Rights of Way for the :

Transportation of Ethane, Propane, :

Liquid Petroleum Gas, and other :

Petroleum Products in theTownship :

of Union, Huntingdon County, :

Pennsylvania, Over the Lands of : No. 1561 C.D. 2018

Stephen Gerhart and Ellen S. Gerhart :

:

Appeal of: Ellen S. Gerhart :

O R D E R

AND NOW, this 8

th day of May, 2019, (1) the Application for PostSubmission Communication Filed by Sunoco Pipeline, L.P. (Sunoco) seeking 

permission to file a Motion to Dismiss for Mootness is GRANTED, albeit 

unnecessarily. (2) The Motion to Dismiss for Mootness filed by Sunoco is DENIED. 

(3) The order of the Court of Common Pleas of Huntingdon County, dated August 

3, 2018, is hereby AFFIRMED. 

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation by Sunoco :

Pipeline L.P. of Permanent and :

Temporary Rights of Way for the :

Transportation of Ethane, Propane, : No. 1561 C.D. 2018

Liquid Petroleum Gas, and other :

Petroleum Products in the Township : Submitted: February 8, 2019

of Union, Huntingdon County, :

Pennsylvania, Over the Lands of :

Stephen Gerhart and Ellen S. Gerhart :

:

Appeal of: Ellen S. Gerhart :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING OPINION 

BY JUDGE McCULLOUGH FILED: May 8, 2019

I write separately to restate my continued belief that the underlying 

catalyst in this series of unfortunate events, the Mariner East Pipeline Project, is an 

unlawful undertaking and taking of private property, for Sunoco “failed to obtain the 

requisite certificate of public convenience [] from the Public Utility Commission []

and therefore lacked the statutory authorization necessary to condemn private 

property under Section 1104 of the Public Utility Code, 66 Pa.C.S. §1104.” In re 

Condemnation by Sunoco Pipeline L.P., 165 A.3d 1044, 1053 (Pa. Cmwlth. 2017), 

appeal denied, 179 A.3d 455 (Pa. 2018) (McCullough, J., concurring) (Sunoco I); 

see In re Sunoco Pipeline, L.P., 143 A.3d 1000, 1028-29 (Pa. Cmwlth.) (en banc), 
PAM - 2

appeal denied, 164 A.3d 485 (Pa. 2016) (McCullough, J., dissenting) (Sunoco II). 

Realizing that this view did not constitute a majority of the Court in Sunoco I and 

Sunoco II, and that our Supreme Court denied discretionary review in both cases, I 

am constrained to agree with the ultimate result reached by the Majority in this case. 

________________________________

PATRICIA A. McCULLOUGH, Judge