Summary
In Lansdale Borough v. Philadelphia Electric Company, 403 Pa. 647, 170 A.2d 565 (1961), the appellant borough sought an order of court requiring appellee electric company to terminate service to an area which the borough had recently annexed and to which area the borough had, pursuant to the Borough Code (53 P. S. § 47470), the exclusive right to supply electricity.
Summary of this case from Feingold v. Bell of PennsylvaniaOpinion
April 26, 1961.
May 22, 1961.
Courts — Common pleas — Jurisdiction — Public utilities — Electric company — Ordering abandonment of service — The Borough Code — Public Utility Law.
1. Where a public utility has been granted a certificate of public convenience by the Pennsylvania Public Utility Commission for the rendition of electricity in an area, in the absence of prior approval of the Public Utility Commission a court of common pleas has no jurisdiction to order the utility to abandon or surrender that service because the area was recently annexed by a borough. [649-52]
2. A Pennsylvania court will not originally adjudicate matters within the jurisdiction of the Pennsylvania Public Utility Commission. [650]
3. The Public Utility Law of 1937, P. L. 1053, as amended, requires a certificate of public convenience to be obtained before any public utility can dissolve, abandon, surrender, in whole or in part, any service, or transfer by any method whatsoever any tangible or intangible property used in the public service. [651]
Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
Appeal, No. 204, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, June T., 1960, No. 326, in case of Borough of Lansdale v. Philadelphia Electric Co. et al. Order affirmed.
Declaratory judgment.
Order entered sustaining preliminary objections and dismissing petition, opinion by FORREST, J. Petitioner appealed.
Aaron S. Swartz, 3rd, with him High, Swartz, Roberts Seidel, for appellant.
Harold E. Kohn, with him Samuel G. Miller, Robert P. Garbarino, Bruce W. Kauffman, Vincent P. McDevitt, and Dilworth, Paxson, Kalish, Kohn Dilks, for appellee.
Vincent Butler, with him Austin Gavin, and Edward H. Feege, for appellee.
Northcutt Ely, General Counsel, and Ely, Duncan and Bennett, of the Washington, D.C. Bar, for amicus curiae.
The Borough of Lansdale, appellant, sought a declaratory judgment in the court below to assert its exclusive right under the authority of The Borough Code, to sell electricity in an area recently annexed by the Borough but presently serviced by the Philadelphia Electric Company (Company), appellee.
Act of May 4, 1927, P. L. 519, as amended, 53 P. S. § 47470.
The lower court dismissed the petition on the grounds that jurisdiction of the subject matter is vested solely in the Pennsylvania Public Utility Commission, and the Borough appealed.
It is unquestioned that the Public Utility Law gives the Pennsylvania Public Utility Commission (PUC) exclusive and comprehensive regulatory jurisdiction over appellee's activities. On the other hand it is readily acknowledged that a borough, to the exclusion of the PUC, has jurisdiction over its own electric service when confined within the borough's boundaries. In fact, The Borough Code prohibits the introduction of electric current into the Borough without the consent of the Borough authorities. The PUC, however, has jurisdiction over any portion of the Borough's service which extends beyond the limits of the Borough.
Act of May 28, 1937, P. L. 1053, as amended, 66 P. S. § 1101-1562.
Act of May 4, 1927, P. L. 519, as amended, 53 P. S. § 47470.
Act of May 28, 1937, P. L. 1053, as amended, 66 P. S. § 1122(g).
The problem here is to determine whether a utility which has been granted a certificate of public convenience by the PUC for the rendition of electricity in an area may, without prior approval of the PUC, be required by decree of the court of common pleas to abandon or surrender that service because the area was recently annexed by a borough.
Although we still possess the right of judicial scrutiny over the acts of the PUC, no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC — not in the courts. It has been so held involving rates, service, rules of service, extension and expansion, hazard to public safety due to use of utility facilities, installation of utility facilities, location of utility facilities, obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property and rights to serve particular territory.
Cheltenham and Abington Sewerage Co. v. Pa. P. U. C., 344 Pa. 366, 25 A.2d 334 (1942), at 372: "The review of orders of the commission by the courts is a judicial function whereby it is determined whether the commission has acted within its delegated powers and within the constitution."
Cheltenham and Abington Sewerage Co. v. Pa. P. U. C., 344 Pa. 366, 25 A.2d 334 (1942); Bellevue Borough v. Ohio Valley Water Co., 245 Pa. 114, 91 A. 236 (1914); Sheets v. Pa. P. U. C., 171 Pa. Super. 151, 90 A.2d 633 (1952); State College Borough Authority v. Pa. P. U. C., 152 Pa. Super. 363, 31 A.2d 557 (1943).
Reading Co. v. Pa. P. U. C., 188 Pa. Super. 146, 146 A.2d 746 (1958); Latrobe Bus Service v. Pa. P. U. C., 175 Pa. Super. 164, 103 A.2d 442 (1954); Altoona v. Pa. P. U. C., 168 Pa. Super. 246, 77 A.2d 740 (1951); Ambridge Borough v. Pa. P. U. C., 137 Pa. Super. 50, 8 A.2d 429 (1939).
Hickey v. Philadelphia Electric Company, 122 Pa. Super. 213, 184 A. 553 (1936); Beaver Valley v. Public Service Commission, 70 Pa. Super. 621 (1918).
Lower Chichester Twp. v. Pa. P. U. C., 180 Pa. Super. 503, 119 A.2d 674 (1956); Willits v. Pa. P. U. C., 183 Pa. Super. 62, 128 A.2d 105 (1956).
Midland Borough v. Steubenville, etc., Co., 300 Pa. 134, 150 A. 300 (1930); Reading Co. v. Pa. P. U. C., 188 Pa. Super. 146, 146 A.2d 746 (1958); Postal Telegraph-Cable Co. v. Pa. P. U. C., 154 Pa. Super. 340, 35 A.2d 535 (1944).
York Water Co. v. York, 250 Pa. 115, 95 A. 396 (1915); Willits v. Pa. P. U. C., 183 Pa. Super. 62, 128 A.2d 105 (1956).
Lower Chichester Twp. v. Pa. P. U. C., 180 Pa. Super. 503, 119 A.2d 674 (1956); Willits v. Pa. P. U. C., 183 Pa. Super. 62, 128 A.2d 105 (1956).
New Brighton Borough v. New Brighton Water Co., 247 Pa. 232, 93 A. 327 (1915); General Telephone Co. of Pa. v. Pa. P. U. C., 192 Pa. Super. 563, 161 A.2d 906 (1960); Pittston Gas Co. v. Pa. P. U. C., 190 Pa. Super. 365, 154 A.2d 510 (1959); Newport Home Water Co. v. Pa. P. U. C., 174 Pa. Super. 522, 102 A.2d 221 (1954); Pottstown Borough v. Pa. P. U. C., 144 Pa. Super. 220, 19 A.2d 610 (1941).
Fogelsville and Trexlertown Electric Co. v. Pa. Power and Light Co., 271 Pa. 237, 114 A. 822 (1921); General Telephone Co. of Pa. v. Pa. P. U. C., 192 Pa. Super. 563, 161 A.2d 906 (1960); Pittston Gas Co. v. Pa. P. U. C., 190 Pa. Super. 365, 154 A.2d 510 (1959).
The Public Utility Law requires a certificate of public convenience to be obtained before any public utility can dissolve, abandon, surrender, in whole or in part, any service, or transfer by any method whatsoever any tangible or intangible property used in the public service. Nevertheless, the Borough desires a court to initially determine whether the appellee must dissolve, abandon, sell, transfer or discontinue its already obtained franchise privilege to render service in this newly annexed area. Our courts do not possess the jurisdiction to make such a determination.
Act of May 28, 1937, P. L. 1053, as amended, 66 P. S. § 1122(d) and (e).
Although the Borough is armed with the provisions of The Borough Code, it can only effectuate its purpose by initially proceeding before the PUC. The Public Utility Law contemplates such procedures by providing that: "The commission, or any person, corporation or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission. . . ." (Emphasis supplied) Initial jurisdiction over the instant controversy is vested in the PUC and the available administrative remedies must be resorted to before the courts can exercise their power of review.
Act of May 4, 1927, P. L. 519, as amended, 53 P. S. § 47470.
Act of May 28, 1937, P. L. 1053, as amended, 66 P. S. § 1391.
Order affirmed.