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November 15, 1954



Joseph M. Loughran, Greensburg, for appellant.

Edward Munce, Jack F. Aschinger, Asst. counsel, Lloyd S. Benjamin, Harrisburg, counsel, for Pennsylvania Public Utilities Commission.

Charles L. McCormick, James F. Boyer, Pittsburgh, for West Penn Power Co., intervening appellee.

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

Author: Hirt

[ 176 Pa. Super. Page 622]

HIRT, Judge.

In this proceeding the Pennsylvania Public Utility Commission, after hearing, approved the application of West Penn Power Company for an exercise of eminent domain under Section 4(b) of the Act of May 21, 1921, P.L. 1057, 15 P.S. § 1182. The Power Company had found it necessary to construct a 132,000 volt transmission line, extending from the Pennsylvania-West Virginia line in Fayette County to its Luxor Substation in Westmoreland County, in order to meet the growing demands for electric energy throughout the area. The right-of-way for the transmission line, which was approved in the present condemnation proceeding, involved the taking of a strip of land 100 feet in width and approximately 5,069 feet in length from a farm of 238 acres owned by appellant and six other heirs of a prior owner, as tenants in common. The Power Company brought this eminent domain proceeding on November 7, 1953, only after unsuccessful attempts to consummate an agreement with the owners, as to the route of the transmission line across their farm, and the amount of the resulting damages. It is admitted that all of the seven owners had proper notice of the application and all were present at the hearing before the Commission on January 7, 1954, at the time fixed in the notice.

The appellant, Edgar M. Byers, testified that after receiving notice of the hearing he consulted his brother

[ 176 Pa. Super. Page 623]

Frank T. Byers, one of the owners and a protestant in the eminent domain proceeding, and that Frank advised him that he had employed counsel to represent him personally and that it would not be necessary for the other owners to be represented by counsel at the hearing. At the conclusion of the applicant's testimony at the hearing before the examiner for the Commission, counsel for Frank T. Byers, stated: 'We have nothing to offer, sir', and indicated that no brief would be filed. It is in effect averred that appellant and the other heirs were surprised by the action of Frank's counsel in failing to interpose a defense to the application, and, because of resulting nonplus and their inexperience in such matters, did not then protest the closing of the record as to them. Edgar M. Byers immediately consulted counsel who now represents him and five other owners of the farm. In a letter to the Commission, dated January 8, 1954, (the day after the hearing) counsel stated that Edgar M. Byers had asked him to prepare a petition for a rehearing in order that he can come before the Commission and state his objections to the granting of the application. The Commission replied by referring counsel to its rules under which 'A petition for rehearing would be appropriate only after an adverse decision is rendered by the Commission.' An adjourned hearing to give appellant the opportunity to interpose his defense might have better suited his purpose and a petition to reopen the proceeding and for a further hearing would have been appropriate. A petition for further hearing under Rule 54 of the Commission is directed to relief before decision. Appellant sought a 'rehearing' as contemplated by the rules of the Commission in accordance with § 1006 of the Act of May 28, 1937, P.L. 1053, 66 P.S. § 1396, and postponed its application for relief until after the adverse decision by the Commission. The petition for

[ 176 Pa. Super. Page 624]

    a rehearing was not filed until more than four months after the original hearing in this case.

In its order dated May 3, 1954, the Comission found: 'that the service to be furnished by West Penn Power Company through the exercise of the right of eminent domain * * * over and across the tracts of land herein referred to, is necessary or proper for the service, accommodation, convenience or safety of the public * * *' On that ground the application was approved. The Commission on June 1, 1954, denied the application for a rehearing. No appeal was taken from the order of May 3, 1954, approving the taking of the land by eminent ...

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