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DUQUESNE LIGHT COMPANY v. UPPER ST. CLAIR TOWNSHIP (05/24/54)

May 24, 1954

DUQUESNE LIGHT COMPANY
v.
UPPER ST. CLAIR TOWNSHIP, APPELLANT



Appeals, Nos. 171 and 173, March T., 1954, from decree of Court of Common Pleas of Allegheny County, April T., 1954, No. 1917, in case of Duquesne Light Company v. Township of Upper St. Clair et al. Decree affirmed; reargument refused June 4, 1954.

COUNSEL

C. Francis Fisher, with him Brenlove & Fisher, for Upper St. Clair Township, appellant.

Louis Vaira, for intervening defendants, appellants.

John B. Nicklas, Jr., with him McCrady & Nicklas, for intervening defendant.

Elder W. Marshall, with him Robert F. Banks, Henry G. Wasson, Jr., Walter T. Wardzinski and Reed, Smith, Shaw & McClay, for plaintiff, appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 377 Pa. Page 325]

OPINION BY MR. JUSTICE CHIDSEY

These appeals are from the action of the Court of Common Pleas of Allegheny County in awarding a preliminary injunction enjoining the first class Township of Upper St. Clair, Allegheny County, and its officers from enforcing a zoning ordinance against the Duquesne Light Company, a public utility corporation (hereinafter called "Duquesne").

Following the filing on February 23, 1954 of the complaint in equity in which the plaintiff Duquesne sought the injunction against the township, its commissioners and police officer, the defendants named in the suit, a hearing was had on March 5, 1954 and testimony adduced by the complainant. Counsel appeared for the defendants and cross-examined the witnesses called by the plaintiff. On March 25, 1954 the chancellor (Judge Sara Soffel) filed her adjudication granting the prayer of the bill. From the chancellor's findings which are supported by the evidence and not here challenged, the facts may be stated as follows: Duquesne is engaged in the generation, transmission, distribution and sale of electric energy in the City of Pittsburgh and other municipalities in Allegheny, Beaver and Westmoreland Counties. It has constructed

[ 377 Pa. Page 326]

    and is now operating a power plant known as "Elrama Power Station", located in parts of Beaver Borough, Allegheny County, and Union Township, Washington County, in which energy is generated by two generating units. It has constructed and operates a substation at Woodville, Collier Township, Allegheny County, from which electric energy for light, heat and power is distributed locally and transmitted to other parts of the Duquesne system. The demand for electric energy for light, heat and power has increased in the Woodville area and elsewhere in the Duquesne system during recent years and it is essential that additional energy be transmitted to the Woodville substation to care for the increased demand.

A peak kilowatt load has become imposed upon the system with the result that the generating reserve capacity system is only 1.65% of the installed generating power. The minimum generating reserve necessary to provide adequately for maintenance and breakdowns and to insure adequate service to customers is 10%. Duquesne is presently installing at its Elrama Power Station a third generating unit which is to be completed and placed in operation on September 1, 1954. In order to provide sufficient generating capacity to supply the system's peak load demand and to meet the growing requirements of its system, Duquesne proposed to construct a transmission line between the Elrama Power Station and the Woodville distributing substation. This line passes through seven political subdivisions, two boroughs and five townships, including the Township of Upper St. Clair and Collier Township. The location or site of this proposed transmission line from Elrama to Woodville is the result of the studied judgment of Duquesne's Planning, Engineering, Construction and Right-of-Way Departments. The determining factors in the location of the proposed

[ 377 Pa. Page 327]

    line were efficiency and economy. The new transmission line will be the principal means of transmitting the output of the new generator at Elrama to Dequesne's 69,000-volt ring transmission system and of supplying the increased demand for electrical energy in the area served by the Woodville substation.

In order to construct the new transmission line it became necessary for Duquesne to acquire by purchase or condemnation rights-of-way and easements over a portion of the defendant Upper St. Clair Township which is zoned residential by a township ordinance. Duquesne does not serve any customers in this township, although it has charter rights to do so, but it owns facilities in the township and serves the public in immediately adjoining communities.

On February 28, 1953 Duquesne filed under the Act of May 21, 1921, P.L. 1057, 15 PS § 1182, its individual applications with the Pennsylvania Public Utility Commission praying for a determination that the service to be rendered through the proposed condemnation of rights-of-way and easements on and over ten properties in Upper St. Clair Township was necessary and proper for the service, accommodation, convenience and safety of the public. Subsequently some of the Upper St. Clair property owners whose lands were involved in the applications to the Commission appeared before the Commission's hearing examiner and, while having filed to answer or protests to the applications on their merits, moved for their dismissal for lack of jurisdiction in the Commission to entertain them, averring that (1) Duquesne does not serve nor intend to serve the public in Upper St. Clair with electric energy; (2) the Act of May 8, 1889, P.L. 136, as amended by the Act of 1921, does not authorize the Commission to approve the exercise of the right of eminent domain by an electric light, heat or power

[ 377 Pa. Page 328]

    company for use in a township; and (3) Duquesne had failed to aver in its application that it had complied with a certain ...


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