              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)1 pursuant 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.
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)2 for 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 13a-
22a. 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 Action-
Pipeline 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.



                                               2
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 Petition-
TCE, 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 Action-
TCE). Answer/Equity Action-TCE, R.R. 47a-50a. In this Answer/Equity Action-
TCE, the Lauchles raised the following challenges to the Condemnation Petition-
TCE: (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”.



                                             3
                                        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”.



                                                4
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).




                                              5
                                  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 Equity-
Pipeline 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 Motion-
Pipeline 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.




                                         6
             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 Petition-
Pipeline 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



                                          7
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 Motion-
Condemnation 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 Action-
Pipeline 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.



                                              8
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”.




                                            9
              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…)

                                                10
(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…)

                                            11
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-in-
lycoming-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.




                                          12
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


                                          13
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



                                         14
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



                                           15
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.




                                        16
             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.


                                          17
         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                               :


                                    ORDER

            AND NOW, this 5th day of January, 2016, the Order of the Court of
Common Pleas of Lycoming County, Pennsylvania is affirmed.




                                      ____________________________
                                      BERNARD L. McGINLEY, Judge
