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TOLER ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (01/21/58)

January 21, 1958

TOLER ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 22, March T., 1958, from decree of Court of Common Pleas of Dauphin County, No. 60 Commonwealth Docket, 1956, No. 2182 Equity Docket, in case of Elizabeth N. Toler and Earl W. McComas v. Pennsylvania Public Utility Commission and Pennsylvania Power Company, intervening appellee. Decree affirmed.

COUNSEL

C. Francis Fisher, with him Brenlove & Fisher, for appellants.

Edward Munce, Assistant Counsel, with him Jack F. Aschinger, Assistant Counsel, and Thomas M. Kerrigan, Acting Counsel, for Pennsylvania Public Utility Commission, appellee.

David Dunlap, with him Edward J. Cooke, for utility company, intervening appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 185 Pa. Super. Page 224]

OPINION BY WRIGHT, J.

The Pennsylvania Power Company, hereinafter referred to as the Company, is a public utility corporation engaged in the business of generating electric power, heat, and light for public use in the counties of Allegheny, Beaver, Butler, Lawrence, and Mercer. Under the provisions of the Act of 1921, P.L. 1057, 15 P.S. 1182, the Company applied to the Pennsylvania Public Utility Commission, hereinafter referred to as the Commission, for approval of the exercise of the right of eminent domain in acquiring lands of Elizabeth N. Toler and Earl W. McComas in Taylor Township, Lawrence County, "for the purpose of storing ash thereon and for the practical development of its other ash storage areas". The property owners filed in the Court of Common Pleas of Dauphin County a complaint for an injunction questioning the jurisdiction of the Commission on the ground that the Act of 1921 does not confer the right to acquire land for the purpose indicated. The Company was permitted to intervene, and both the Company and the Commission filed answers to the complaint. After the taking of testimony and the submission of requests for findings of fact and conclusions of law, the chancellor filed an adjudication with decree nisi dismissing the complaint. Exceptions filed by the property owners were dismissed by the court en banc, and the decree nisi was affirmed and

[ 185 Pa. Super. Page 225]

    adopted as the final decree. The property owners have appealed.

Under Section 1111 of the Public Utility Law,*fn1 the Court of Common Pleas of Dauphin County is expressly clothed with exclusive jurisdiction throughout the Commonwealth of all injunction proceedings questioning the jurisdiction of the Commission. See Reed v. Pa. P.U.C., 174 Pa. Superior Ct. 132, 100 A.2d 399. By virtue of the Act of 1921, the Company is authorized "(b) To appropriate property ... necessary for its corporate use in the construction, erection, operation, or maintenance of its buildings, machinery, apparatus, plants, works, equipment, and facilities for generating electric light, heat, and power, or any of them, for the transmission or distribution thereof ... And provided further, That before any such company shall exercise the power conferred by this subsection, the Public Service [Utility] Commission of the Commonwealth of Pennsylvania, upon application of such company, shall have found and determined, after public hearing, that the service to be furnished by said company through the exercise of said power is necessary or proper for the service, accommodation, convenience, or safety of the public". Appellants take the position that the storage of ash or residue from the operation of the Company's generating plant is not necessary or proper for the service, accommodation, convenience, or safety of the public. On the other hand, the position of the Company and the Commission is that the storage of ash is an integral part of the Company's electric-power generating activity, and that, by necessary implication, the Act of 1921 does confer the power of eminent domain for such purpose.

The Company's sole generating facility is its West Pittsburgh plant, located ...


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