J-A16021-14

                              2014 PA Super 164


PENNSYLVANIA SERVICES                           IN THE SUPERIOR COURT OF
CORPORATION, TRADING AS EMERALD                       PENNSYLVANIA
COAL RESOURCES, LP, AND
PENNSYLVANIA LAND HOLDINGS
COMPANY, LLC

       Appellee

                    v.

TEXAS EASTERN TRANSMISSION, LP

       Appellant                                     No. 1429 WDA 2013


                    Appeal from the Order August 9, 2013
               In the Court of Common Pleas of Greene County
                    Civil Division at No(s): AD 663 of 2011


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

CONCURRING STATEMENT BY OTT, J.:                       FILED JULY 29, 2014




appealable as a final order pursuant to 42 Pa.C.S § 7532.1 In this regard, I


1
    Section 7532 of the Pennsylvania Declaratory Judgments Act, entitled


       Courts of record, within their respective jurisdictions,
       shall have power to declare rights, status, and other legal
       relations whether or not further relief is or could be claimed. No
       action or proceeding shall be open to objection on the ground
       that a declaratory judgment or decree is prayed for. The
       declaration may be either affirmative or negative in form and
       effect, and such declarations shall have the force and effect of a
       final judgment or decree.
J-A16021-14




to quash.2 Nonetheless, I am compelled to note that the cogent arguments

of the parties highlight the tension between the Pennsylvania Supreme

                      Nationwide Insurance Company v. Wickett, 763

A.2d 813 (Pa. 2000), and

Dept. of Banking, 948 A.2d 790 (Pa. 2008).

      As discussed by the majority, Emerald filed a five-count complaint

against Texas Eastern, seeking declaratory relief, specifically, a declaration

recognizing its superior property rights, and interference of those rights by



relief, and asserted claims of violation of easement/real covenant, trespass

and private nuisance. Texas Eastern filed an answer with new matter and

counterclaims for declaratory and injunctive relief, breach of contract,

trespass, negligence and unjust enrichment.          Following the close of

discovery, both parties filed motions for partial summary judgment seeking

declaratory relief, and the court, after a hearing, issued the order underlying



extract all of the coal in the D District, without leaving any coal to support



42 Pa.C.S. § 7532.
2
  On September 23, 2013, Emerald filed a motion to quash. This Court, per
curiam, denied the motion to quash without prejudice to raise the issue
before this panel. See Order, 11/13/2013. Emerald renewed its contention
                                                                  10.



                                     -2-
J-A16021-14




for, implement and pay for appropriate and timely measures to mitigate

potential subsidence damage to the pipeline so as not to interfere with

                                                   2.

      Texas Eastern maintains that the order at issue is appealable pursuant

to Pennsylvania Rule of Appellate Procedure 341(b)(2),3 Section 7532 of the

Declaratory Judgments Act, and Wickett, supra.             In Wickett, the



in a declaratory judgment action that either affirmatively or negatively

declares the rights and duties of the parties constitutes a fina         Id.,

763 A.2d at 818.   Emerald, in support of its motion to quash, contends that

the Pennsylvania Supreme Court has clarified its holding in Wickett, and

found it inapplicable to cases such as this one.

      Emerald relies on Pennsylvania Bankers, supra,4 wherein the

Supreme Court held that Wickett did not apply to a Commonwealth Court




3
                                                                           is
expressly defined as a final order by statute
4
  In Pennsylvania Bankers, the Pennsylvania Supreme Court held that a
Commonwealth Court order sustaining
in the
alternative declaratory judgment claims, challenging the constitutionality of
tax exemption provided to credit unions under the Credit Union Code, did
not represent an affirmative or neg
the meaning of the Declaratory Judgments Act and thus was not a final,
appealable order. See id., 948 A.2d at 793 794.



                                     -3-
J-A16021-14




broader declara                        Pennsylvania Bankers, 948 A.2d at



             -

                                  Wickett,

in Wickett



                                               See                   at 8 9,

citing Pennsylvania Bankers, 948 A.2d at 798 799.

     Moreover, Emerald asserts that the Supreme Court further clarified

Wickett in United States Orgs. for Bankruptcy Alternatives, Inc. v.

Dept. of Banking, 26 A.3d 474 (Pa. 2011),5                       n order in a

declaratory judgment action, which merely dismisses one or several

alternative theories for relief without ultimately deciding the case, is not

                               Id. at 478, citing Pennsylvania Bankers,

supra, 948 A.2d at 798.    See                        5, 9.   Emerald states

that in Bankruptcy Alternatives

the form of a declaratory judgment, the Supreme Court held the order was



5
 In Bankruptcy Alternatives, the Pennsylvania Supreme Court held that a
Commonwealth Court order granting in part and denying in part debt


that certain provisions of the statute were unconstitutional, was not a final
appealable order as the constitutionality of multiple provisions of the Act
remained in dispute. See id., 26 A.3d at 480.


                                    -4-
J-A16021-14



not immediately appealable under the Declaratory Judgments Act.             See



     Texas Eastern counters that, in Pennsylvania Bankers, supra, the

                                                 Wickett is inapplicable to an

                                                   declaratory judgment claims

                                              at 4 (emphasis in original), citing

Pennsylvania Bankers



                                                        Texas Eastern similarly

distinguishes Bankruptcy Alternatives



theories that are asserted in support of requests for types of relief other

than a decla

in original). Texas Eastern emphasizes that, in the present case, the trial



judgment concerning the subjacent su

theory that either party pled in support of any declaratory judgment claim,

nor any individual component of any declaratory judgment claim, remains

                                  Id. at 6.

     Reviewing the arguments of the parties in light of the record, I agree

with Texas Eastern that Wickett



and the claims that remain pending are non-declaratory judgment claims.


                                    -5-
J-A16021-14




namely, that Emerald reach an agreement with Texas Eastern regarding

performance of mitigation measures for the pipelines. The overarching issue

in this case   which party owns and controls the right to subjacent support

   was raised in the requests for declaratory judgment relief set forth in

                                                                  matter and

counterclaims, and presented to the court in the cross motions for partial




      In this respect, the present case is distinguishable from Pennsylvania

Bankers and Bankruptcy Alternatives, which followed Pennsylvania

Bankers, explaining:

      We note that the distinction between Pennsylvania Bankers
      and the present case identified by the [appellant] derives not
      from the application of Wickett in the post-Pennsylvania
      Bankers legal regime, but from the nature of the original
      challenge, i.e., a challenge to a single provision versus multiple
      provisions. In other words, in Pennsylvania Bankers, the
      banks challenged the constitutionality of a single provision and,
      if the lower court had decided the constitutional issue and

      than merely narrowed the dispute between the parties. Here,
      however, the constitutionality of multiple provisions remains in
      dispute and, even though the Commonwealth Court granted
      USOBA [United States Organization for Bankruptcy Alternatives,
      Inc.] relief as to two provisions, the dispute has not been
      resolved but merely narrowed. Therefore, the Pennsylvania
      Bankers decision is relevant and dispositive.

Bankruptcy Alternatives, supra, 26 A.3d at 480 (emphasis supplied).


                                    -6-
J-A16021-14


     Finally, I note that in Pennsylvania Bankers, the Supreme Court

expressly declined to overrule Wickett                  Pennsylvania

Bankers, supra, 948 A.2d at 799 n.15.

     In sum, I conclude that Wickett applies here, and not the Supreme

                  Pennsylvania Bankers and Bankruptcy Alternatives.




                                  -7-
