Pipeline protester loses appeal

Gerhart contends offense was civil, not criminal

The Pennsylvania Common­wealth Court has ruled against a Huntingdon County property owner whose protest last year against the construction of the Sunoco Mariner East 2 Pipeline resulted in her incarceration.

Ellen S. Gerhart, 63, served two months in prison and was on parole for four months after Huntingdon County President Judge George N. Zanic in August found her guilty of indirect criminal contempt for not obeying an injunction barring her and her supporters from encroaching on the pipeline easement.

At the time, the pipeline was being constructed in Cambria, Blair and Huntingdon counties, and included a permanent easement through 1.72 acres of Gerhart’s 27-acre farm.

Gerhart also was fined $2,000.

Reading attorney Richard A. Raiders appealed her conviction for indirect criminal contempt, contending her offense more appropriately was one of civil contempt, which would have meant a lesser prison sentence, if any at all.

Gerhart’s defense attorney also argued the sentence was excessive.

The Commonwealth Court, one of Pennsylvania’s appeals courts, explained that indirect criminal contempt “is an offense against the court’s inherent authority.”

It adopted Zanic’s explanation that Gerhart “was acutely aware of the mandates of the (preliminary injunction) and made a conscious choice to challenge the authority of the (trial court).”

“The criminal activity of (Gerhart) relates to her violation of (the preliminary injunction), and intentional disregard for the rule of law,” Zanic stated in his ruling.

As to the excessive sentence, the Commonwealth Court found the state sentencing guidelines do not apply to issues such as indirect contempt of court and concluded the trial court was not restricted in any way concerning the sentence he imposed.

The defense, it pointed out, did not challenge Zanic’s sentence by claiming an “abuse of discretion.”

The panel issuing the decision Wednesday included Judges Mary Hannah Leavitt, Ellen Ceisler and Patricia A. McCullough.

McCullough, in a short concurring opinion, said she was “constrained to agree with the ultimate result reached by the majority,” but explained from her view, the pipeline project “is an unlawful undertaking and taking of private property.”

She stated Sunoco failed to obtain a “certificate of public convenience” and therefore lacked the authority to condemn private property.

McCullough said, however, that the pipeline project was upheld in past decisions issued by the Commonwealth Court and the state Supreme Court rejected further appeal.

Gerhart said she will discuss with her attorney whether to appeal her case to the state Supreme Court.

On Thursday, Gerhart said it was “unfortunate” the Commonwealth Court did not rule in her favor, pointing out that she was arrested for protesting on her own land.

The ruling will serve to act “as a deterrent to protest,” she explained.

The state Legislature, she said, is attempting to beef up penalties for those who protest pipelines, but those increased sentences could be extended to other forms of protest, such as prayer vigils.

According to Gerhart, companies don’t always obey the rules, and she enumerated the environmental ills that have resulted in protests in other counties, such as Chester and Berks.

Gerhart’s criminal contempt charge occurred because, it was alleged by Sunoco, she violated an injunction ordered on June 28, 2017.

She and other protesters were barred from interfering with tree-cutting and clearing activities by the company.

It prohibited protesters from interfering with Sunoco’s access to the easement through the Gerhart property.

On April 30, 2018, Sunoco sought a ruling of indirect criminal contempt because Gerhart was continuously entering the easement area, it claimed.

She was placed on bail and Sunoco eventually asked that her bail be revoked.

According to the commonwealth Court, Gerhart did not challenge Zanic’s finding of facts: that she had set fires near the easement area; went onto the easement and obstructed movement of equipment and “spread rancid materials on trees and the ground in the vicinity of the easement to, in her words, attract wild animals to the construct site.”

“It’s not over. There are so many problems — sinkholes, water contamination,” Gerhart explained as she summed up the ongoing controversy concerning the pipeline.

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