Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

WHITE OAK BOROUGH AUTHORITY APPEAL (01/05/53)

THE SUPREME COURT OF PENNSYLVANIA


January 5, 1953

WHITE OAK BOROUGH AUTHORITY APPEAL

Appeal, No. 134, March T., 1952, from order of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 2125, in re Acquisition of a Water System in White Oak Borough. Order affirmed.

COUNSEL

Alexander J. Bielski, for appellant.

Harry H. Meizlik, City Solicitor, for appellee.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 372 Pa. Page 425]

OPINION BY MR. JUSTICE BELL

This is an appeal from the Order of the Court of Common Pleas of Allegheny County which sustained preliminary objections filed by the City of McKeesport and dismissed a petition for the appointment of viewers. The following facts must be considered (for purposes of this appeal) as admitted:

White Oak Borough Authority was organized under the Municipality Authorities Act of May 2, 1945, P.L. 382 et seq., 53 PS 2900z-1 et seq. The Borough of White Oak thereafter delegated to the Authority certain specific powers including the acquisition, construction, improvement, maintenance, extension and operation of a water works and a water distribution system for all or any part or parts of the Borough of White Oak, including "the acquisition of such land for... fire hydrants... by the exercise of the right of eminent domain... as the Board of said Authority may authorize if necessary for said project, for a supply of water for domestic, commercial, industrial and other uses, and for fire protection, in all or any part or parts of said Township."

Since 1907 the City of McKeesport has been furnishing (indispensable) water to the inhabitants of the Borough of White Oak with its knowledge but without any express authority or consent and without ever obtaining a certificate of public convenience from the Public Utility Commission of the Commonwealth of Pennsylvania. White Oak Borough is outside the corporate limits of the City of McKeesport.

In 1940 the City of McKeesport constructed a sixinch water line on Henderson Avenue in White Oak

[ 372 Pa. Page 426]

Borough and since that time has rendered water service to the residents along Henderson Avenue. This water line was constructed and water was furnished by the City of McKeesport without any permission from the municipal authorities of White Oak Borough and without any certificate of public convenience from the Public Utility Commission. Such certificate is clearly required under Sec. 2029 of the Public Utility Law of May 28, 1937.*fn*

On May 21, 1951, the Authority by Resolution condemned 1500 feet of the City's water line along Henderson Avenue for the purpose of providing fire protection; next day it filed its general bond as security for the taking and condemnation of the aforesaid property. On August 22, 1951, the Authority filed a petition for the appointment of viewers to assess damages resulting from the condemnation of the Henderson Avenue pipeline. Viewers were appointed and a view was directed to be made.*fn** The City of McKeesport then filed preliminary objections to the appointment of

[ 372 Pa. Page 427]

    viewers on the ground that the Authority was not authorized to exercise the right of eminent domain against the water lines and facilities owned or used by the City of McKeesport. These preliminary objections, as hereinbefore noted, were sustained by the lower Court, whereupon this appeal was filed.

Niether Authorities nor Municipalities are sovereigns; they have no original or inherent or fundamental powers of sovereignty or of legislation; they have only the power and authority granted them by enabling statutory legislation. Cf. Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303; Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182; Murray v. Phila., 364 Pa. 157, 71 A.2d 280.

The pertinent Act covering the unusual situation here involved is the Municipality Authorities Act of May 2, 1945, supra, as amended by Act of June 12, 1947, P.L. 571, Sec. 1, which provides in Sec. 11: "The Authority shall have the power to acquire, by purchase or eminent domain proceedings, either the fee or such right, title, interest or easement in such lands, water and water rights as the Authority may deem necessary for any of the purposes mentioned in this act: Provided, however, That water and water rights may not be acquired unless and until approval is obtained from the Water and Power Resources Board in accordance with the law in such cases made and provided: And provided further, That no property owned or used by the United States, the Commonwealth of Pennsylvania, any political subdivision thereof,... nor any property of a public service company... shall be taken under the right of eminent domain."

Where a municipality operates a water system it is, ad hoc, a private business corporation: Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557; Western Saving Fund Soc. v. Philadelphia, 31 Pa. 175; Versailles

[ 372 Pa. Page 428]

    of public convenience, first had and obtained...." Sec. 2(j) provides: "The term 'project' shall mean any structure, facility or undertaking which an Authority is authorized to acquire, construct, improve, maintain or operate under the provisions of this Act": "Project" undoubtedly includes the water rights and facilities which are the subject of this suit.

The City of McKeesport in operating a water distribution system beyond its corporate limits is subject, as we have seen, to the jurisdiction of the Pennsylvania Public Utility Commission and consequently this Authority cannot acquire by any device or means whatsoever all or any part of the City's water Distribution system without first obtaining the approval of the Pennsylvania Public Utility Commission. The Authority has not obtained such a certificate of public convenience from the Commission. For these reasons the action of the Court below was correct in sustaining the City's preliminary objections and dismissing the Authority's petition for the appointment of viewers.

The Order of the Court below is affirmed without prejudice to the right of the White Oak Borough Authority to apply to the Public Utility Commission for a certificate of public convenience and to have its rights and powers determined by such Commission or in any other proper proceeding.

Disposition

The Order of the Court below is affirmed without prejudice to the right of the White Oak Borough Authority to apply to the Public Utility Commission for a certificate of public convenience and to have its rights and powers determined by such Commission or in any other proper proceeding.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.