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WHITE OAK BOROUGH AUTHORITY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (03/16/54)

March 16, 1954

WHITE OAK BOROUGH AUTHORITY
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION



COUNSEL

Alexander J. Bielski, McKeesport, for appellant.

Harris J. Latta, Jr., Philadelphia, Jack F. Aschinger, Mechanicsburg, asst. counsel, Lloyd S. Benjamin, Harrisburg, counsel, for appellee.

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

Author: Rhodes

[ 175 Pa. Super. Page 116]

RHODES, Presiding Justice.

This appeal is from an order of the Pennsylvania Public Utility Commission dismissing, without prejudice and without a hearing, an application by White Oak Borough Authority for a certificate of public convenience evidencing commission approval of the acquisition by the Authority of certain existing water facilities located within the Borough. The facilities consist of the following: (a) Water lines installed in public streets and paid for by the City of McKeesport; (b) water lines installed in public streets and paid for by Versailles Township, predecessor of White Oak Borough; (c) water lines installed in public streets and paid for by individuals in connection with lot and plan developments; and (d) water lines and fire hydrants installed and paid for by White Oak Borough Authority.

The application filed by the Authority set forth that the City of McKeesport since 1907 had been furnishing

[ 175 Pa. Super. Page 117]

    water in White Oak Borough, which is beyond the corporate limits of the City; that the City was to that extent a public service company and subject to the jurisdiction of the Commission; that the Authority was created under the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended, 53 P.S. § 2900z-1 et seq.; and that the Authority desired to acquire the water facilities owned and operated by the City which were located solely within the Borough.

The Authority relied upon the following legislation and precedent as a legal basis for such acquisition: (a) The Public Utility Law of 1937, as amended, 66 P.S. § 1101 et seq.; (b) the Municipality Authorities Act of 1945, P.L. 382, as amended; (c) section 34, clause 7, of the Act of April 29, 1874, P.L. 73, 15 P.S. § 1353; (d) White Oak Borough Authority Appeal, 372 Pa. 424, 93 A.2d 437. Without requiring an answer to the application and without a hearing, the Commission concluded that, under the facts averred, the Authority had not shown any procedure by which it was entitled to acquire adversely and by compulsory process the water lines and facilities of the City of McKeesport within the Borough limits. Accordingly the Commission held that it could not exercise its jurisdiction to grant the certificate requested, and it denied the application of the Authority, without prejudice. From this order of the Commission the Authority has appealed.

This is not a case where the Commission persists in entertaining jurisdiction, Reed v. Pennsylvania Public Utility Commission, 174 Pa. Super. 132, 100 A.2d 399, but one in which the Commission dismissed the application for lack of jurisdiction; and such order of the Commission is, without doubt, final and appealable. Cf. Sayre Land Co. v. Pennsylvania Public Utility Commission, 167 Pa. Super. 1, 74 A.2d 713; Philadelphia Electric Co. v. Public Service Commission,

[ 175 Pa. Super. Page 118314]

Pa. 207, 215, 171 A. 690; Pottstown Borough v. Pennsylvania Public Utility Commission, 144 Pa. ...


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