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PITTSTON GAS COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (09/16/59)

September 16, 1959

PITTSTON GAS COMPANY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeals, Nos. 234 to 238, inclusive, Oct. T., 1959, from order of Pennsylvania Public Utility Commission affirming order of August 25, 1958, Application Docket Nos. 84813, 84819 and 84878 and P.U.M.C. Nos. 3682 and 3732, in case of Pittston Gas Company v. Pennsylvania Public Utility Commission et al. Order affirmed; reargument refused October 10, 1959.

COUNSEL

Ernest R. von Strck, with him Norman T. Hayes, Jr., and Morgan, Lewis & Bockius, for appellant.

William A. Goichman, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

Charles E. Thomas, with him Lloyd S. Benjamin, Gomer W. Morgan, and Hull, Leiby and Metzger, and O'Malley, Morgan, Bour & Gallagher, for intervening appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Ervin

[ 190 Pa. Super. Page 367]

OPINION BY ERVIN, J.

This is an appeal by Pittston Gas Company (Pittston) from an order of the Pennsylvania Public Utility Commission granting to Dade Area Gas Company (Scranton-Spring Brook Water Service Company) a certificate of public convenience to serve the Township of Exeter in Luzerne County and denying to Pittston the right to serve the Township of Exeter, Luzerne County, and the Township of Ransom, Lackawanna County.

On September 16, 1957 Pittston sought commission approval of a charter amendment and the beginning of the exercise of the additional right, power or privilege of providing gas service to the public in the territories of the Boroughs of Avoca, Duryea and Dupont and the additional territory of the Township of Exeter, Luzerne County. On September 18, 1957 Pittston also applied for approval of the incorporation of West Valley Gas Company (for subsequent merger) and for the approval of the beginning of the exercise of the right to provide gas service in the Borough of Old Forge and the Township of Ransom, Lackawanna County. Pittston subsequently indicated on the record that it was willing to have West Valley's applications considered as withdrawn insofar as they related to the Borough of Old Forge.

On September 30, 1957 Scranton-Spring Brook applied for the additional right and privilege of furnishing gas service in the Boroughs of Old Forge and Moosic, Lackawanna County. This application was uncontested and the commission in its final order awarded the territories of Old Forge and Moosic to Scranton-Spring Brook. Scranton-Spring Brook, on October 10, 1957, also filed an application for approval of the incorporation of Dade Area Gas Company (for subsequent merger) and approval of the beginning of the

[ 190 Pa. Super. Page 368]

    exercise of the right to furnish gas service to the public in the Boroughs of Duryea, Avoca and Dupont and the Townships of Exeter and Plains, Luzerne County.

Protests to the granting of Scranton-Spring Brook's application and to the granting of Dade's application were filed by Pittston. Protests to the granting of Pittston's application were filed by Scranton-Spring Brook, Township of Exeter, Borough of Dupont and Borough of Duryea. The Township of Exeter subsequently withdrew its protest. Protests to the granting of West Valley's application were filed by Scranton-Spring Brook and the Borough of Old Forge. As a consequence, the contested areas covered by the applications include the Boroughs of Avoca, Duryea and Dupont and the Township of Exeter, Luzerne County, wherein both Scranton-Spring Brook and Pittston seek certification. The Township of Ransom, Lackawanna County, wherein only Pittston (West Valley) seeks authority, is opposed by Scranton-Spring Brook because it claims charter rights in the entire County of Lackawanna. The uncontested territory includes the Township of Plains, Luzerne County, and the Boroughs of Moosic and Old Forge, Lackawanna County, wherein only Scranton-Spring Brook seeks certification.

After hearings the commission, on August 25, 1958, granted the territories in dispute to Scranton-Spring Brook. On September 12, 1958 Pittston filed a petition for rehearing and reopening of the record and modification of the order of August 25, 1958, together with a request for a stay. On October 6, 1958 the commission granted a rehearing limited to testimony pertaining to the Townships of Exeter and Ransom. On March 2, 1959, after the rehearing had been held on October 22, 1958, the commission reaffirmed its order of August 25, 1958. A dissenting opinion was filed on March 9, 1959 by Commissioners Stahlnecker and Sharfsin, who

[ 190 Pa. Super. Page 369]

    would have awarded the territories of the Townships of Exeter and Ransom to Pittston. Pittston accepted the commission's order as far as the Boroughs of Duryea, Avoca and Dupont, Luzerne County, are concerned and has taken this appeal only with regard to the Townships of Exeter, Luzerne County, and Ransom, Lackawanna County. The Township of Ransom was not applied for by Scranton-Spring Brook and the commission did not order Scranton-Spring Brook to supply such service. However, the commission did state in its order of August 25, 1958: "Inasmuch as Scranton-Spring Brook has charter rights throughout Lackawanna County, it has the duty and the obligation to reasonably and adequately provide for the needs of the public in the Township of Ransom." The commission, since it awarded the Township of Exeter to Scranton-Spring Brook, denied the Township of Ransom to Pittston. Inasmuch as the Township of Ransom is of very small size, there being only 13 customers at the present time, it is understood that Pittston does not desire to serve the Township of Ransom without the accompanying right of serving Exeter Township.

By order dated April 20, 1959 we granted Scranton-Spring Brook the right to intervene as a party appellee in these proceedings.

The issue in this appeal is, therefore, narrowed to the question of whether the commission abused its discretion in awarding the Township of Exeter to Scranton-Spring Brook rather than to Pittston in the light of ...


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