Robbins et al v. UGI Utilities/Central Penn Gas
Filing
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MEMORANDUM and ORDER granting 5 Motion to Dismiss w/ respect to Count XIV as claim is not ripe; and declining to exercise jurisdiction over remaining state law claims; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 9/24/12 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRED J. ROBBINS, JR. and
MARY ROBBINS,
Plaintiffs
:
No. 3:12cv626
:
:
(Judge Munley)
:
v.
:
:
UGI UTILITIES/CENTRAL PENN GAS,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Defendant UGI Utilities/Central
Penn Gas’s motion to dismiss and to strike. The matter has been fully
briefed and is ripe for disposition.
Background
Defendant UGI Utilities/Central Penn Gas (hereinafter “defendant”) is
in the business of selling natural gas to the public. (Doc. 1, Compl. ¶ 2). In
furtherance of its business, defendant owns and operates underground gas
storage fields in Tioga County, Pennsylvania. One field is known in the
industry as the “Tioga Field” and another is known as the “Meeker Field.”
(Id. ¶¶ 8-12). The Tioga and Meeker Fields are either adjacent to or close
to real property owned by Plaintiffs Fred J. Robbins, Sr. and Mary Robbins
(hereinafter “plaintiffs”). Plaintiffs contend that defendant stores natural
gas under plaintiffs’ real property and under property adjacent to plaintiffs’
property. (Id. ¶¶ 13-16).
Pennsylvania law provides the right of eminent domain to Defendant
UGI Utilities/Central Penn Gas to the extent that it is “empowered to
transport, sell or store, natural or manufactured gas, within [Pennsylvania].”
58 PA. CONS. STAT. ANN. § 3241. The law provides for “buffer zones”
surrounding underground natural gas storage facilities. (Id. ¶¶ 17-18).
The buffer zones of defendant’s storage fields encompass all or part of
plaintiffs’ real property. (Id. ¶ 21). The defendants’ underground storage
facilities and associated buffer zones prevent the plaintiffs from entering
into a commercially reasonable lease for the exploration of natural gas
deposits located on or near plaintiffs’ property or for carrying on gas
storage operation in or near their property. (Id. ¶¶ 22- 23).
Plaintiffs further contend that the defendant’s gas storage operations
have resulted in serious chemical and heavy metal contamination,
including contamination of plaintiffs’ groundwater supply. (Id. ¶¶ 24-25).
Based upon these factual averments, plaintiffs filed a fifteen count
complaint alleging: Count I-Trespass (Direct Storage); Count II-Trespass
(Buffer Zone); Count III-Unjust Enrichment (Direct Storage); Count IVUnjust Enrichment (Buffer Zone); Count V-Conversion(Direct Storage);
Count VI-Conversion (Buffer Zone); Count VII-Chemical Trespass; Count
VIII-Nuisance; Count IX-Negligence (Res Ipsa Loquitur); Count XNegligence Per Se; Count XI-Strict Liability for Contamination; Count XIIDuty to Restore or Replace; Count XIII-Taking (Pennsylvania Constitution);
Count XIV-Taking (United States Constitution); and Count XV-Denial of
Right to Clean Air and Pure Water (Pennsylvania Constitution).
Defendant has filed a motion pursuant to Federal Rules of Civil
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Procedure 12(b)(1),12(b)(6) and 12(f). Defendant’s motion seeks to
dismissal of portions of the complaint and the striking of parts of the
complaint. This motion is ripe for disposition.
Jurisdiction
Because Count XIV of plaintiffs’ complaint asserts a cause of action
for a “taking” under the United States Constitution, the plaintiffs invoke this
court’s federal question jurisdiction. See 28 U.S.C. § 1331 (“The district
courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
Standard of review
As noted above, defendant bases its motion on several different rules
of civil procedure. We will address only the issues raised pursuant to Rule
12(b)(1) as we find it to be dispositive of the entire case. Rule 12(b)(1)
provides for dismissal of a case when the court lacks jurisdiction over the
subject matter. Defendant claims that plaintiffs’ only federal cause of
action is not ripe. Ripeness affects justiciability; therefore, when a claim is
unripe it should be dismissed pursuant to Rule 12(b)(1). See Taylor Inv.,
Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir. 1993).
“A Rule 12(b)(1) motion may be treated as either a facial or factual
challenge to the court’s subject matter jurisdiction. . . . In reviewing a facial
attack, the court must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the light most
favorable to the plaintiff. In reviewing a factual attack, the court may
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consider evidence outside the pleadings.” Gould Elec., Inc. v. U.S., 220
F.3d 169, 176 (3d Cir. 2000) (internal citations and footnote omitted).
Because the parties have not submitted evidence outside of the complaint,
we will treat the defendant’s motion as a facial attack and consider the
complaint’s allegations as true and in the light most favorable to the
plaintiff.
Discussion
Plaintiffs assert this court’s federal question jurisdiction. Defendant,
however, points out that only one of plaintiffs’ causes of action is based
upon federal law, Count XIV-Taking (United States Constitution).
Defendant argues that this claim should be dismissed because it is not
ripe. Without this claim, no basis for federal district court jurisdiction exists,
and the complaint should be dismissed for lack of subject matter
jurisdiction. After a careful review, we agree with the defendant.
Under the Fifth Amendment to the United States Constitution, the
government may not take private property for public use without paying just
compensation to the property owners. U.S. CONST. amend. V.1 This
Amendment requires that when the government takes property for public
use “a ‘reasonable, certain and adequate provision for obtaining
compensation’ exist at the time of the taking.” Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194
The Fifth Amendment’s protection applies to the states under the
Fourteenth Amendment. Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 175 n.1 (1985).
1
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(1985) (quoting Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 124-25
(1974)). If no such procedure exists, then an aggrieved property owner
may file suit to recover under the Fifth Amendment. Where, however, a
State does have a procedure for awarding compensation for a taking, a
plaintiff must first seek compensation through that State procedure prior to
asserting a federal Constitutional claim. See id. “If the government has
provided an adequate process for obtaining compensation, and if resort to
that process yields just compensation, then the property owner has no
claim against the Government for a taking.” Id. at 194-95. (internal citation
and quotation marks omitted).
The United States Supreme Court explained this area of the law in
Williamson, supra, where the owner of a tract of land sought to develop it
as a residential subdivision. Id. at 175. He sued in the United States
District Court claiming that the application of various zoning laws and
regulations to his property by Williamson County, Tennessee, amounted to
a Fifth Amendment “taking.” Id. The jury found in the property owner’s
favor and awarded him $350,000 as “just compensation” for the taking. Id.
The district court granted a judgment notwithstanding the verdict, but the
Sixth Circuit Court of Appeals reinstated the verdict. Id. The County
appealed to the United States Supreme Court. The Court granted
certiorari “to address the question of whether Federal, State, and Local
governments must pay money damages to a landowner whose property
allegedly has been ‘taken’ temporarily by the application of government
regulations.” Id. at 185. The court, however, did not address this issue
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because it found that the controversy was not yet ripe. Id. at 186.
The Court found the matter was not ripe for two reasons. First, the
property owner had not sought variances that may have allowed him to
develop the property as he sought. Id. at 187-88. Second, and more
important for our analysis, the property owner had not sought
“compensation through the procedures the State provided for doing so.”
Id. at 194. The Court explained as follows: “If the government has
provided an adequate process for obtaining compensation, and if resort to
that process yields just compensation, then the property owner has no
claim against the Government for a taking. . . . Similarly, if a State
provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation Clause
until it has used the procedure and been denied just compensation.” Id. at
194-95 (internal citations, quotation marks and brackets omitted). Under
Tennessee eminent domain law, the owner could bring an inverse
condemnation action to obtain just compensation. Id. at 196. The
landowner had not availed himself of this procedure, therefore the taking
claim was premature, or in other words, not ripe for disposition. Id. at 197.
Thus, a claim of a Just Compensation Clause violation is not ripe and
cannot be made until the property owner has unsuccessfully attempted to
obtain just compensation through the procedures the State provides for
obtaining such compensation.
Instantly, plaintiffs allege that the defendant acted according to the
Pennsylvania Oil and Gas Act, 58 PENN. CONS. STAT. ANN. § 3201 et seq.
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(Compl. ¶¶ 17-18).2 Pennsylvania has an Eminent Domain Code,
providing for inverse condemnation procedures through which plaintiffs
may seek just compensation. Plaintiffs, however, have not sought relief
against the defendant under the Pennsylvania Eminent Domain Code.
Thus, their federal “taking” cause of action is not yet ripe.
Plaintiffs argue that the claim is ripe because the Federal Energy
Regulatory Agency (hereinafter “FERC”) authorized the underground
storage facilities to have a buffer zone and authorized the exercise of
eminent domain for the buffer zones. Plaintiffs make no claims about
FERC in their complaint and only raises this issue in their brief.
Regardless, reliance on FERC to support federal jurisdiction in the instant
case is futile. If they seek to challenge a ruling by FERC, the proper
procedure is to file an application for rehearing with the FERC or appeal to
the appropriate Court of Appeals, rather than filing suit in District Court.
2
Count 14 specifically alleges as follows:
To the extent that the Defendant claims the
right to store natural gas in or under the Plaintiffs’
real property pursuant to the eminent domain
provisions of the Pennsylvania Oil and Gas Act, 58
P.S. § [3241], or pursuant to any other law of this
Commonwealth or any law of the United States,
such claim would constitute a taking without
compensation in violation of the Fifth Amendment of
the United States Constitution in that the Defendant
has not compensated the Plaintiffs for such
appropriation.”
(Compl. ¶ 53).
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See 15 U.S.C. §§ 717r(a), 717 r(b); Steckman Ridge GP, LLC v. An
Exclusive Natural Gas Storage Easement, Nos. 08-168, 08-169, 08-177,
and 08-180, 2008 WL 4346405 *4 (W.D. Pa. Sept. 19, 2008).
Accordingly, based upon all of the above, we find that plaintiffs’
“taking” claim is not ripe, and we do not have jurisdiction over plaintiffs’
federal law cause of action. Count XIV will thus be dismissed. All the
remaining claims in plaintiffs’ complaint are based on Pennsylvania state
law. This court may decline to exercise supplemental jurisdiction over
state law claims if we dismiss all claims over which we have original
jurisdiction. 28 U.S.C. § 1367 (c)(3). Where litigation is in its early stages
and the complaint asserted federal question jurisdiction, the district court
has “a powerful reason not to continue to exercise jurisdiction.” CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 351 (1988). Such is the situation
here, and we will decline to exercise supplemental jurisdiction. An
appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRED J. ROBBINS, JR. and
MARY ROBBINS,
Plaintiffs
:
No. 3:12cv626
:
:
(Judge Munley)
:
v.
:
:
UGI UTILITIES/CENTRAL PENN GAS,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 24th day of September 2012, the defendant’s
motion to dismiss (Doc. 5) is GRANTED with respect to Count XIV as that
claim is not ripe. We decline to exercise supplemental jurisdiction over the
remaining state law claims; thus, this case is dismissed without prejudice.
The Clerk of Court is directed to close this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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