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January 12, 1951



Paul E. Beaver, Altoona, for appellant.

Jack F. Aschinger, Asst. Counsel, John W. Mentzer, Asst. Counsel, and Charles E. Thomas, Counsel, all of Harrisburg, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 168 Pa. Super. Page 248]

HIRT, Judge.

The City of Altoona is served by a municipally owned and operated water system. Part of the system was originally acquired by purchase from privately owned water companies. One of these companies, referred to as the Allegheny System, had operated in Logan Township and the existing service was continued by the city after purchasing that system in 1930. Logan Township has a wide adjoining area almost completely surrounding the City of Altoona. The city, at the time when the present complaints were filed, was furnishing public water service in parts of Logan Township. In the present proceeding eight owners of real estate fronting either on Twenty-seventh or Twenty-eighth Avenues between Fifteenth and Sixteenth Streets, sought extensions of the public water supply by the city for the service of their properties. This area adjoins the city but is wholly within Logan Township. The existing municipal water lines end at Twenty-sixth [Avenue] and at Fifteenth Street which mark the city lines abutting the township area here involved.

When the requests of the owners of the land were refused they filed complaints with the Public Utility Commission alleging that the city had discriminated against them unduly and unreasonably by refusing them water service. The Commission, after hearing and rehearing, concluded that 'an extension of about 360 feet of 2-inch pipe on 27th Avenue at a probable installed cost of about $1,000 or less, would be adequate for residential service to the properties of complainants and others in that block between 15th and 16th streets, where there are 14 fifty-foot abutting lots or the equivalent thereof; and that a similar extension on 28th Avenue would be adequate for similar service in that block of 28th Avenue where there are similar abutting lots or equivalent.' The Commission, in disposing of the complaints, suggested that the property

[ 168 Pa. Super. Page 249]

    owners share in the cost on a foot front basis subject to a refund after a period of years, and it was ordered nisi: 'That City of Altoona extend its water facilities and service to the properties of complainants and others abutting on 27th and (or) 28th avenues between 15th and 16th streets in Logan Township, Blair County, either in accordance with the basis suggested in the foregoing for consideration of the parties or under any reasonable arrangements as may be mutually agreed.' In the absence of any agreement between the parties and the city, this became the final order from which the city has appealed.

The municipal water system, insofar as it provides service within the city, is subject to regulation by the Court of Common Pleas of the County. Act of June 16, 1836, P.L. 784, 17 P.S. § 41 et seq. Under § 401 of Public Utility Code, of May 28, 1937, P.L. 1053, 66 P.S. § 1171, however, it is provided that: 'Any public utility service being furnished or rendered by a municipal corporation beyond its corporate limits shall be subject to regulation and control by the commission as to service and extensions, with the same force and in like manner as if such service were rendered by a public utility.' The same section of the Code provides: 'Subject to the provisions of this act and the regulations or orders of the commission, every public utility may have reasonable rules and regulations governing the conditions under which it shall be required to render service.' Seeking to restrict public water service for the future to facilities then existing, the city enacted an ordinance on March 11, 1947, providing, in effect, that thereafter no service would be extended beyond the city limits to residents of adjoining townships except 'where frontage abuts existing water-mains'. This ordinance is wholly ineffective to oust the jurisdiction of the Public Utility Commission under the 1937 Act, supra.

[ 168 Pa. Super. Page 250]

The Commission had jurisdiction of the subject matter of the present complaint. In addition to continuing to serve the former patrons of the Allegheny System the city had extended its water service into Logan Township. The answer of the city to the present complaint admits that other residents in many other parts of Logan Township receive water service from the city, with this qualification: 'Some non-residents of the City residing in townships adjoining the said City have been furnished water prior to March 11, 1947, (such as users of the Allegheny Water System purchased by the [City]; [or] non residents whose properties abut existing City Water Mains'. And the testimony shows that two properties on Twenty-ninth Avenue between Fifteenth and Sixteenth Streets, in the neighborhood of the area here involved, have been supplied with city water service ever since 1934.

The City of Altoona extended the service of its municipal water works beyond its corporate limits on statutory authority. The Third Class City Law, the Act of March 10, 1937, P.L. 57, § 2, 53 P.S. § 12198-3540, in continuing like authority granted in prior legislation provides that a city having title to its waterworks 'may extend' the service of water supply beyond the bounds of the city. And when once extended the service beyond the corporate limits of the city are made subject to regulation and control by the Commission 'as to service and extensions' by § 401 of The Public Utility Code above quoted. A city alone can decide whether it will extend its service beyond its corporate limits, but although the city could have refused to accept new customers beyond its limits in the first instance, yet so long as the privilege was granted to ...

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