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March 24, 1960


Appeal, No. 104, April T., 1959, from order of Pennsylvania Public Utility Commission, Public Utility Contract No. 3491, in case of County of Allegheny v. Pennsylvania Public Utility Commission et al. Order affirmed.


Maurice Louik, County Solicitor, with him Arthur L. McLaughlin, III, Assistant County Solicitor, and James B. Wallace, solicitor for Controller of Allegheny County, for County of Allegheny, appellant.

Miles Warner, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

J. Tomlinson Fort, with him Carl E. Glock, and Reed, Smith, Shaw & McClay, for utility company, intervenor.

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

Author: Wright

[ 192 Pa. Super. Page 103]


On October 15, 1956, the Carnegie Natural Gas Company, hereinafter referred to as Carnegie, applied to the Pennsylvania Public Utility Commission for nunc pro tunc approval of an agreement dated August 13, 1929 between Carnegie and the County of Allegheny.

[ 192 Pa. Super. Page 104]

On November 13, 1956, on its own motion, the commission instituted a proceeding "to determine the reasonableness, legality, and or any other matter affecting the validity of the agreement". On January 17, 1957, there was a hearing before the commission's examiner at which time Carnegie introduced testimony, and the county moved to dismiss the proceeding. The examiner refused this motion, continued the hearing, and suggested that the county file with the commission a petition for dismissal. Such a petition was filed by the county on February 27, 1957, to which petition, on March 4, 1957, Carnegie filed an answer. On September 16, 1957, the commission denied the petition for dismissal without prejudice, and directed that the matter be set down for further hearing. At this further hearing, October 9, 1957, additional evidence was offered by Carnegie. The county did not present any evidence, but renewed its motion to dismiss. On February 9, 1959, the commission entered an order granting Carnegie's application for approval of the agreement. A petition for rehearing filed by the county on March 5, 1959, was denied by the commission on March 24, 1959. This appeal by the county followed. We granted Carnegie permission to intervene as an appellee. The factual situation is set forth in the following excerpt from the commission's order of February 9, 1959:

"The essential facts giving rise to these proceedings are not materially disputed. By conveyances executed in 1890, 1900, and 1906, applicant acquired legal title in the nature of easements to three parallel and adjacent rights of way crossing a tract of land located in Milfflin Township (now West Mifflin Borough), Allegheny County. Over these rights of way applicant constructed, and for many years maintained, three natural gas transmission lines connecting its sources of supply in West Virginia with certain plants of United

[ 192 Pa. Super. Page 105]

States Steel Corporation in Munhall, Allegheny County, and with domestic customers in the area of Munhall. The transmission lines occupied these rights of way at an average depth under the surface of three feet. They were of 16-, 20-, and 24-inch diameter, respectively.

"Shortly before 1929 the County of Allegheny acquired the tract (not including applicant's easements) and proceeded with plans to construct the Allegheny County Airport. These plans entailed lowering the grade of some portions of the land in which applicant's rights of way were located, and substantially raising the grade of other portions by adding fill. Of the total length of applicant's rights of way (appearing from its exhibits to approximate 3,000 feet), about 1,350 feet was proposed to be covered over with additional fill 10 to 13 feet in depth. Another 1,300 feet was to be lowered in grade and covered with concrete and bituminous materials for airplane runways. Where the grade was to be lowered, applicant's transmission lines would have to be immediately relocated at the altered grade. Where the grade was to be elevated, the transmission lines could be left in place, but would, as a practical matter, be rendered inaccessible for maintenance and ...

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