NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 18-2276 ______________

COLUMBIA GAS TRANSMISSION LLC

v.

AN EASEMENT TO CONSTRUCT, OPERATE AND MAINTAIN A 20-INCH GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN WASHINGTON COUNTY AND ALLEGHENY COUNTY, PENNSYLVANIA OWNED BY MCC INTERNATIONAL, INC.; UNKNOWN PERSONS AND INTERESTED PARTIES; MICHAEL BOBROWSKI; CANDICE BOBROWSKI; ROBERT A. COWDEN, SR.; ELIZABETH COWDEN; CECYLE KLAPHAKE, Trustee of the William Klaphake and Cecyle Kaphake Revocable Living Trust; DANIEL ROBINSON; DEBORAH ROBINSON; ROBERT J. WEISS; PATRICK SCHEIDER; WEST PENN POWER CO; CROWN ATLANTIC COMPANY, LLC

Cecyle Klaphake, Trustee of the William Klaphake and Cecyle Kaphake Revocable Living Trust, Appellant ______________

No. 18-3424 ______________

CECYLE KLAPHAKE, Appellant

v.

COLUMBIA GAS TRANSMISSION, LLC; COLUMBIA PIPELINE GROUP; TRANSCANADA CORPORATION ______________

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Nos. 2-17-cv-1297, 2-17-cv-1359)

District Judge: Honorable Cathy Bissoon ______________

Argued on June 18, 2019

Before: AMBRO, RESTREPO, and FISHER, Circuit Judges

(Filed: November 22, 2019)

Steven E. Gibbs [ARGUED] Gibbs LLC 500 Grant Street, Suite 2900 Pittsburgh, PA 15219 Counsel for Appellant

Nicolle R. Snyder Bagnell [ARGUED] Thomas Galligan Reed Smith LLP 225 Fifth Avenue Pittsburgh, PA 15222

David Fedder Rachel Milazzo Alice Aten Dentons US LLP 211 N. Broadway, Suite 3000 St. Louis, MO 63102 Counsel for Appellees

2 ______________

OPINION* ______________

RESTREPO, Circuit Judge

These appeals involve two consolidated cases: a condemnation action brought by

Columbia Gas Transmission LLC (“Condemnation Action”); and a Declaratory Judgment

action brought by Cecyle Klaphake (“Declaratory Action”).1 Cecyle Klaphake appeals

the District Court’s Orders that were in favor of Columbia in each of the cases. For the

reasons which follow, we affirm the District Court’s Order granting Columbia’s Motion

for Judgment on the Pleadings in the Declaratory Action, and we dismiss Klaphake’s

appeal in the Condemnation Action for lack of jurisdiction.

I.

For many years, Columbia and its predecessors-in-interest owned and operated an

interstate natural gas pipeline, segments of which were laid across the property at issue in

this appeal (“Klaphake Farm” or “Farm”), pursuant to a 1946 easement agreement

between the parties’ predecessors-in-interest (“Easement Agreement”). The pipeline laid

* This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 1 Columbia Gas Transmission, LLC, Columbia Pipeline Group, and TransCanada Corporation were named as defendants in the Declaratory Action and are appellees in this appeal. For ease of reference, the appellees are collectively referred to herein as “Columbia.” 3 pursuant to the Easement Agreement included a tap which allowed Klaphake and her

predecessors-in-interest to receive natural gas service directly from the pipeline.

More recently, Columbia developed, and the Federal Energy Regulatory

Commission (“FERC”) approved, a project that included abandoning segments of the

original pipeline and constructing a new relocated pipeline. The relocated pipeline did

not include installation of a tap on the new pipe crossing the Klaphake Farm. FERC

issued to Columbia a Certificate of Public Convenience and Necessity granting Columbia

permission to, among other things, install the requested relocated pipeline.

As Klaphake acknowledges in her brief, the relocated pipeline was to be laid

“across a different section of the Klaphake Farm” from the original pipeline, see

Klaphake Br. 8, and Columbia was unable to negotiate with Klaphake mutually agreeable

terms for the new easements it requested in order to lay the relocated line. Columbia thus

initiated, under the Natural Gas Act,

-717z, its Condemnation Action in

the District Court against Klaphake, as Trustee of the William Klaphake and Cecyle

Klaphake Revocable Living Trust, and the remaining landowners with whom Columbia

could not agree on compensation for the new easements it desired.

Prior to the initiation of the Condemnation Action, Klaphake had filed her

Declaratory Action in Pennsylvania state court, and Columbia subsequently removed that

action to the District Court. Klaphake sought an Order stating that, among other things,

Columbia’s obligations under the 1946 Easement Agreement included installing a gas tap

4 “on any line of pipe laid on the Klaphake Farm” and removing rather than “abandon[ing]

the existing pipeline or any other pipeline laid on the Klaphake Farm.” See App. 68-69.

II.

With respect to the Condemnation Action, the District Court granted Columbia’s

Renewed Motion for Partial Summary Judgment and Immediate Access and Possession

of Easements on Property Owned by Cecyle Klaphake. Columbia argues that we should

decline to consider on appeal any challenge to the District Court’s grant of partial

summary judgment, since that action remains pending, and a final Judgment has not yet

been entered.2

An Order entered by the District Court that resolves fewer than all claims in a

single action, or that determines the rights and liabilities of fewer than all parties in that

action, is not immediately appealable unless the District Court directs the entry of a final

judgment as to the claim or party under Federal Rule of Civil Procedure 54(b). See Hill

v. City of Scranton,

(3d Cir. 2005). Here, it appears that claims against

other defendants were pending in the Condemnation Action at the time of Klaphake’s

2 Columbia also argues that to the extent that Klaphake challenges the District Court’s grant of preliminary injunctive relief in the form of Columbia’s immediate access to the Farm in the Condemnation Action, such a challenge should be denied as moot since Columbia has already constructed the relocated pipeline on the Farm. However, Klaphake makes clear that she “is not challenging the District Court’s grant of preliminary injunctive relief but rather the grant of partial summary judgment.” See Klaphake’s Reply 5; see also id. at 4 (“Klaphake Does Not Seek Review of the District Court’s Grant of Preliminary Injunctive Relief”). Therefore, it is unnecessary for us to address the District Court’s granting of preliminary injunctive relief or Columbia’s mootness argument in that regard. 5 appeal. However, even assuming all claims related to the other defendants in the

Condemnation Action have been resolved since the filing of this appeal, as counsel

acknowledged at oral argument before us, compensation proceedings involving the

Klaphake Farm are currently pending in the District Court, and it has not directed the

entry of a final judgment as to Klaphake in the Condemnation Action. Thus, Klaphake’s

appeal of the Order granting partial summary judgment in the Condemnation Action is

not properly before us because the Order did not end the litigation as to all claims and all

parties and was thus not an appealable final Order. See Andrews v. United States,

(1963); Hill,

.

Klaphake asks us to assert pendent appellate jurisdiction over the District Court’s

grant of partial summary judgment. The doctrine of pendent appellate jurisdiction

“allows [us] in [our] discretion to exercise jurisdiction over issues that are not

independently appealable but that are intertwined with issues over which [we] properly

and independently exercise[] [our] jurisdiction.” Reinig v. RBS Citizens, N.A.,

(3d Cir. 2018) (quoting Aleynikov v. Goldman Sachs Grp., Inc.,

(3d Cir. 2014)) (internal quotation marks omitted). The doctrine “is indisputably

narrow and should be used sparingly.” Griswold v. Coventry First LLC,

(3d Cir. 2014) (citing E.I. DuPont de Nemours and Co. v. Rhone Poulenc Fiber and

Resin Intermediates, S.A.S.,

(3d Cir. 2001)) (internal quotation marks

omitted).

6 We have discretion to exercise pendent appellate jurisdiction where an appealable

order is “inextricably intertwined” with a non-appealable order, or where “review of [a]

non-appealable order . . . is necessary to ensure meaningful review of [an] appealable

order.” Reinig,

(citing CTF Hotel Holdings, Inc. v. Marriott Int’l, Inc.,

, 136 (3d Cir. 2004)) (internal quotation marks omitted). “Issues are

‘inextricably intertwined’ only when the appealable issue ‘cannot be resolved without

reference to the otherwise unappealable issue.’” Id. (quoting Invista S.A.R.L. v. Rhodia,

S.A.,

(3d Cir. 2010)) (internal quotation marks omitted). Indeed,

although pendent appellate jurisdiction is discretionary, see Reinig,

, “if

the appealable order may be properly ‘dispose[d] of . . . without venturing into otherwise

nonreviewable matters[,]”

(quoting Kershner v. Mazurkiewicz,

(3d

Cir. 1982) (en banc)), we “have no need - and therefore no power - to examine the

[nonreviewable] order,”

(quoting Hoxworth v. Blinder, Robinson & Co.,

(3d Cir. 1990)).

Here, Klaphake argues that pendant appellate jurisdiction is available because the

District Court’s non-final rulings in the Condemnation Action served as the basis for the

Court’s appealable rulings in the Declaratory Action. However, since the issues of

whether the Easement Agreement obligates Columbia to install a tap on the relocated

pipeline, or prohibits Columbia from abandoning the original pipeline, are not

“inextricably intertwined” with the non-appealable issues in the Condemnation Action,

and meaningful review of the appealable Order does not require review of the non- 7 appealable Order, see Reinig,

, we dismiss Klaphake’s appeal in the

Condemnation Action for lack of jurisdiction. Moreover, even assuming pendent

appellate jurisdiction were available in the Condemnation Action appeal, we would

decline to invoke the doctrine in this case.

III.

With respect to the Declaratory Action, Klaphake appeals the District Court’s

Order granting Columbia’s Motion for Judgment on the Pleadings.3 Klaphake argues

that, under the 1946 Easement Agreement, Columbia had no right to abandon the original

pipeline on the Farm and is also obligated to install a tap on the relocated pipeline. Since

the language of the Easement Agreement unambiguously does not prohibit Columbia

from abandoning the original pipeline and does not obligate Columbia to install a tap on

the relocated pipeline, we affirm the District Court’s Order.

Under Pennsylvania law, “[i]t is well established that the same rules of

construction that apply to contracts are applicable in the construction of easement

grants.”4 Zettlemoyer v. Transcontinental Gas Pipeline Corp.,

(Pa.

1995). When unambiguous, as with any contract, the rights conferred by the easement

agreement must be ascertained from its language. See PARC Holdings, Inc. v. Killian,

3 The District Court had subject-matter jurisdiction over the Declaratory Action pursuant to

(a) and 1441, and we have appellate jurisdiction under

. 4 The parties do not dispute that Pennsylvania law controls in construing the Easement Agreement. 8

(Pa. Super. 2001); Baney v. Eoute,

(Pa. Super.

2001).

As pointed out by the District Court, the Easement Agreement’s specific reference

to a tap was limited to the following language: “Tap to be installed on this line at point

nearest the residence.” See App. 53, 357. As also pointed out by the District Court, “this

line” refers unambiguously to the pipeline mentioned in the Easement Agreement which

was the pipe originally laid pursuant to the Agreement and “a [permitted] second line of

pipe [that may be laid] alongside of the first line . . . subject to the same conditions,” see

App. 73. The Agreement unambiguously does not mean what Klaphake’s Complaint

requests the Court to order – that Columbia is obligated to install a gas tap “on any line of

pipe laid on the Klaphake Farm,” see App. 58-59, or on the relocated pipeline which was

laid across a different section of the Farm, see Klaphake Br. 8.

Furthermore, although the Easement Agreement vests Columbia with the “right”

to “remove said lines,” nothing in the Easement Agreement requires Columbia to remove

its pipeline upon discontinuing its permissive use of the original pipeline. Contrary to the

allegations in Klaphake’s Complaint, the Easement Agreement does not prohibit

Columbia from “abandon[ing] the existing pipeline or any other pipeline laid on the

Klaphake Farm,” see App. 68-69, and there is nothing unambiguous about the wording in

the Agreement in that regard. See, e.g., In re G-I Holdings, Inc.,

(3d

Cir. 2014) (refusing to read mandatory or exclusive requirements into a permissive

contractual provision). 9 IV.

Under the unambiguous terms of the 1946 Easement Agreement, Columbia may

abandon the original pipeline and has no obligation to install a tap on the relocated

pipeline. Further, it is unnecessary to review the District Court’s Order granting the

motion for partial summary judgment in the Condemnation Action in order to ensure

meaningful review of the Order granting the motion for judgment on the pleadings in the

Declaratory Action. Accordingly, we affirm the District Court’s Order in the Declaratory

Action, and we dismiss for lack of jurisdiction Klaphake’s appeal in the Condemnation

Action.

10