In Re: Condemnation by Sunoco Pipeline L.P. of Permanent and Temporary Rights of Way and Easements ~ Appeal of: Andover HOA Inc. ( 2017 )


Menu:
  •               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.
    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.
    2
    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.
    3
    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.
    4
    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.
    5
    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 24a-
    27a.       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 . . . .
    6
    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 16a-
    17a. 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).
    7
    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 53a-
    57a);
       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.
    8
    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.
    9
    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).
    10
    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).[]
    11
    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
    12
    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.
    13
    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 PUC-
    certificated 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.
    14
    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.
    15
    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
    16
    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
    17
    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, 229a-
    236a. 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.
    18
    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
    19
    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.”).
    20
    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.
    21
    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.                             :
    ORDER
    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