Kichline v. Sunoco Pipeline, L.P.

247 A.3d 1182 (Table)

Michelle H. KICHLINE, Kathi Cozzone and Terence Farrell in their official capacities as the Commissioners of Chester County and the County of Chester, Pennsylvania, Appellants

v.SUNOCO PIPELINE, L.P.

No. 59 C.D. 2020

No. 67 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued: November 9, 2020

Filed: January 7, 2021

MEMORANDUM OPINION BY JUDGE WOJCIK

Michelle H. Kichline, Kathi Cozzone, and Terrence Farrell in their official capacities as the Commissioners of Chester County (Commissioners) and the County of Chester, Pennsylvania (collectively, County), appeal the order of the Chester County Court of Common Pleas (trial court) denying their request for declaratory and injunctive relief to prevent Sunoco Pipeline, L.P. (Sunoco) from using the "traditional open trench method" of constructing its Mariner East 2 Pipeline (Pipeline) on County-owned land rather than the previously agreed to "horizontal direction drill method." We affirm.

On February 2, 2017, Sunoco and County entered into two permanent easement agreements (Easements) to facilitate Sunoco's construction of its Pipeline under and across County-owned library property and trail property in West Whiteland Township. The Easements provide, in pertinent part:

1. The right to use the Permanent Easement shall belong to [Sunoco] and its agents, employees, designees, contractors, guests, invitees, successors and assigns, and all those acting by or on behalf of it for the purposes of establishing, laying, constructing ... [and] installing ... two pipelines, for the transportation of products that [Sunoco] has the right to transport pursuant to its certificate of public convenience issued by [the Public Utility Commission (PUC)] pursuant to the Public Utility Code[, 66 Pa. C.S. §§ 101 - 3316 ] ....

2. [Sunoco] shall install the Pipelines via road bore method or horizontal direction drilling method which shall not disturb the surface of the Property, however [Sunoco ] reserves the right to install the Pipelines via traditional open trench method should conditions beyond [Sunoco's] reasonable control necessitate it .... Should the aforementioned event occur , [Sunoco ] shall obtain written permission from [the County ], which shall not be unreasonably withheld, conditioned, or delayed , and shall make additional payment to [the County] for the use of a temporary construction easement (the "Temporary Easement"). All rights, duties and/or obligations arising by or under this Easement shall only apply to the Temporary Easement while same is in effect.

* * *

21. [The County ] and [Sunoco] shall execute and deliver any instruments and documents and take such action as may be necessary or reasonably requested or required by the other party to give full force and effect to this Easement and to carry out its intent .

Reproduced Record (R.R.) at 49a-50a, 53a (emphasis added). At some point following the execution of the Easements, it was determined that Sunoco's use of the horizontal direction drilling method had the potential to adversely impact the County's public water supply well.

On October 2, 2017, the County received notice from Sunoco explaining the adverse impacts that the horizontal direction drilling method would have on the County's public water supply, and advising the County that Sunoco applied to Department of Environmental Protection (DEP) to modify its Erosion and Sediment Control Permit (E&S Permit) to allow for a change in installation methodology. See R.R. at 807a-809a. Sunoco's application requested permission to use an open trench installation method, which causes a disturbance to the County land's surface, but would avoid interference with the County's public water lines. On April 16, 2018, DEP issued a press release notifying the public of Sunoco's application to alter the installation methodology and scheduling a public hearing thereon. See id. at 780a-781a. Thereafter, on August 16, 2018, DEP approved Sunoco's application and modified its E&S Permit to allow installation of the Pipeline via the open trench installation method. The County did not appear or intervene in the DEP proceedings to protect its rights with respect to its affected land, nor to assert any objections to the modification of the installation method for the Pipeline on those affected lands, and did not seek further review of DEP's decision by the Environmental Hearing Board (EHB).²

On April 9, 2019, the County filed a Complaint in the trial court seeking declaratory and permanent injunctive relief to prevent Sunoco from installing the Pipeline via the open trench method. The Complaint alleged that the plain language of the Easements required the County's consent to any change in installation methodology, and Sunoco had yet to receive any such consent. Accordingly, the County sought to permanently enjoin Sunoco from using the traditional open trench method to install the Pipeline before receiving County approval.

On January 10, 2020, while the above litigation remained pending in the trial court, Sunoco sent the County a letter indicating its intent to commence construction of the Pipeline on January 24, 2020. The County responded by filing an Emergency Petition for a Preliminary Injunction in the trial court. Following a hearing, on January 23, 2020, the trial court denied the County's request for a preliminary injunction on the basis that it lacked subject matter jurisdiction over the case, as alleged in Sunoco's preliminary objections to the Complaint, because the County failed to join the PUC and DEP as indispensable parties. The trial court also explained, inter alia , that the County failed to appeal DEP's grant of the modified E&S Permit and that the injunction was an impermissible collateral attack on DEP's approval. The County then appealed the trial court's order denying an injunction to this Court.³

Initially, as we stated in our Memorandum Opinion denying the County's Emergency Application seeking an injunction in our Court:

[T]rial courts have broad discretion in determining whether to grant or deny a preliminary injunction, and appellate courts only review those trial court decisions for an abuse of discretion. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc. , 828 A.2d 995, 1000 (Pa. 2003). Our Supreme Court expounded on this highly deferential standard of review as follows:

[W]e recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any

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