Appeal, No. 180, Oct. T., 1959, from order of Pennsylvania Public Utility Commission, Complaint Docket No. 16942, in case of The Municipal Authority in the Township of Blythe v. Pennsylvania Public Utility Commission et al. Appeal dismissed.
Donald D. Dolbin, with him Burke, Bowe, Dolbin & Heffner, for authority, appellant.
Edward Munce, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.
Robert H. Young, with him Anson W. H. Taylor, Jr., and Morgan, Lewis & Bockius, for borough, intervening appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 191 Pa. Super. Page 543]
This is an appeal taken on February 7, 1959, by the Municipal Authority of the Township of Blythe, County of Schuylkill, from an order of the Pennsylvania Public Utility Commission determining its jurisdiction in a rate proceeding.*fn1 The appeal will be dismissed.
[ 191 Pa. Super. Page 544]
The jurisdictional issue must be resolved in the first instance by the Court of Common Pleas of Dauphin County, the tribunal designated by statute as exclusive for its determination, before an appeal may be taken to this Court. Section 1111 of the Act of May 28, 1937, P.L. 1053, 66 PS § 1441.
On February 28, 1958, the Borough of Schuylkill Haven filed a tariff supplement with the commission in which it proposed to substitute and apply its regular water rate schedule for water which appellant, the Municipal Authority of the Township of Blythe, obtains from the Tumbling Run Reservoirs owned by the borough. Previously Blythe Authority made payment for water received from the borough under an indenture dated February 1, 1945, in a manner and amount separate and apart from the regular tariff of the borough. By this indenture the Silver Creek Water Company, predecessor in title to the borough, conveyed certain parcels of land, in connection with the sale of its water works, to the Blythe Authority. It also granted to Blythe Authority, subject to certain conditions, the right to be supplied from the Tumbling Run Reservoirs retained by the grantor any water necessary in drought or emergency to supplement the water supply of Blythe Authority from its own watershed. For this right, which was designated a covenant running with the land, Blythe Authority was obliged to pay a fixed annual fee of twenty-five hundred dollars for the first ten years, after which the charge was subject to reexamination. The commission approved this indenture. On November 15, 1945, Silver Creek Water Company sold other water works and properties to the Borough of Schuylkill Haven, including the Tumbling Run Reservoirs. This indenture was subject to the covenant to supply water from Tumbling Run Reservoirs to Blythe Authority, and was approved by the commission. At the expiration of ten years the annual charge
[ 191 Pa. Super. Page 545]
was re-examined by the borough and Blythe Authority, but they were unable to agree on a proper charge. Although the 1945 indenture provided for arbitration in such event, such procedure apparently was not utilized. The borough thereafter ...