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YEZIORO v. NORTH FAYETTE COUNTY MUNICIPAL AUTHORITY (09/20/60)

September 20, 1960

YEZIORO
v.
NORTH FAYETTE COUNTY MUNICIPAL AUTHORITY, APPELLANT.



Appeal, No. 74, April T., 1960, from decree of Court of Common Pleas of Fayette County, No. 2256, in equity, in case of Walter Yezioro et al. v. The North Fayette County Municipal Authority et al. Decree affirmed; reargument refused October 17, 1960.

COUNSEL

Charles E. Thomas, with him Paul V. Mahoney, and Hull, Leiby and Metzger, for North Fayette County Municipal Authority, appellant.

Samuel J. Feigus, for appellees.

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

Author: Rhodes

[ 193 Pa. Super. Page 274]

OPINION BY RHODES, P.J.

This is an appeal by the North Fayette County Municipal Authority*fn1 from a final decree of the Court of Common Pleas of Fayette County enjoining and restraining the authority from discontinuing water service to several consumers.

[ 193 Pa. Super. Page 275]

On December 2, 1957, several individual consumers instituted a complaint in equity against the authority and against the School District of North Union Township under section 4 of the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended by the Act of October 7, 1955, P.L. 671, 53 PS § 306B(h). The consumers sought to compel the authority to continue to provide water service to them through a water line owned by the school district to which their individual service lines are connected.

The controversy arose when the school district requested the authority to discontinue service to the school building supplied by the school district line. The authority proposed to discontinue service to the individual consumers as well, unless one or all of them accepted responsibility for the line previously controlled by the school district. The individual consumers refused this responsibility. The present action was instituted to forestall the impending cessation of service.

The school district line was constructed in 1927 to provide water to the Youngstown School. The line runs for a distance of approximately 1,500 feet from the Youngstown School to its point of connection with a distribution main of the authority. Near the point where the school district line connects with the distribution main a meter was installed to measure the water supplied to the school district. At the time of this connection the water company was privately owned. At various times from 1952 through 1954 the school district granted permission to several individuals to tap on the school district water line, and the private water company provided this service upon separate applications of the consumers. The water company metered the consumption of the various individuals with one exception. The individual consumption

[ 193 Pa. Super. Page 276]

    was deducted from that registered on the school district meter to determine the consumption billed to the school district.*fn2 The individuals paid for the water metered at their premises.

In May, 1956, the school district requested the authority to discontinue service to its private line, and the authority notified the individual consumers that it would discontinue service unless one or all of them assumed the responsibility for the private line. Pending possible settlement of the matter the school district withdrew its request for discontinuance of service, but reinstated it on December 1, 1957. The consumers then instituted this action to enjoin the school district and the authority from discontinuing their water service.

The consumers also sought by their complaint to have the school district transfer the water line to the authority and to have the authority maintain and repair the line.

[ 193 Pa. Super. Page 277]

After hearing, the court filed an extensive adjudication in which it made findings of fact, discussed in detail the merits and contentions of the parties, and arrived at conclusions of law. The case was treated as one involving an attempted abandonment of service by the authority. The court concluded that the legal requirement of reasonable and adequate service compelled the authority to continue supplying water to the consumers by means of the existing school district line, and that a meter was to be installed to measure the consumption at the Yezioro residence which previously had not been metered. Accordingly, a decree was entered enjoining the authority from discontinuing the service.

The school district filed a consent of record to the continuing use of its water line for the benefit of these consumers and other members of the public upon condition that the school district should not be liable for the payment of any water or for the cost of maintenance, repair, upkeep, or replacement. The Yezioros filed their consent to the installation of a meter on their premises.

The exceptions to the adjudication filed by the authority were dismissed and a final decree entered. This appeal followed.

On this appeal the authority contends (1) that the authority is not under obligation to continue furnishing water to individual consumers through a privately owned water line which is no longer used to render service to the owner of the line; (2) or that, assuming the obligation to continue rendering service exists, the court erred in this case in requiring the continuation of service through a pipe line alleged by the authority to be inadequate, in poor condition, and not economically feasible to replace.

[ 193 Pa. Super. Page 278]

A municipality or municipal authority owning and operating a water system acts in a proprietary rather than governmental capacity. In the ownership and operation of such facilities it stands on the same basis as a private corporation. Hamilton's Appeal, 340 Pa. 17, 20, 21, 16 A.2d 32. A municipal authority has the privilege of fixing and receiving reasonable and uniform rates for the service which it provides, and it has the obligation to render adequate, safe, and reasonable service. Hamilton's Appeal, supra, 340 Pa. 17, 20, 21, 16 A.2d 32; Act of May 2, 1945, P.L. 382, § 4, as amended by the Act of October 7, 1955, P.L. 671, 53 PS § 306 B(h). The purpose of the Legislature in authorizing the creation of a municipal authority was "to benefit the people of the Commonwealth by, among other things, increasing their commerce, health, safety and prosperity, ..." Section 4 A of the Municipality Authorities Act of 1945, as amended, 53 PS § 306 A. By an amendment of 1955,*fn3 the authority is given the power "to determine by itself exclusively the services and improvements required to provide adequate, safe and reasonable service, including extentions thereof, in the areas served: ... Any person questioning the reasonableness or uniformity of any rate fixed by any Authority or the adequacy, safety and reasonableness of the Authority's services, including extentions thereof, may bring suit against the Authority in the court of common pleas of the county wherein the project is located, ... The court of common pleas shall have exclusive jurisdiction to determine all such questions involving rates or service."*fn4 The burden of

[ 193 Pa. Super. Page 279]

    proving that the services of the authority are not adequate, safe, and reasonable appears to rest upon the consumers bringing the action in the court of common pleas. Rankin v. Chester Municipal Authority, 165 Pa. Superior Ct. 438, 449, 68 A.2d 458.

What amounts to adequate, safe, and reasonable service is generally not capable of definition with precision. The duty of the hearing tribunal is to determine, from all the relevant facts and circumstances indicated by the substantial evidence, whether the service provided is adequate, safe, and reasonable for the consuming public. Colonial Products Company v. Pennsylvania Public Utility Commission, 188 Pa. Superior Ct. 163, 169, 170, 146 A.2d 657.

The consumer complaint in this case is not the usual type service complaint in the sense that the existing service is not alleged to be inadequate or unreasonable; rather, it relates to the complete discontinuance and abandonment of the existing service with which the consumers are apparently satisfied. Although the Municipality Authorities Act, in section 4, 53 PS § 306, makes no specific reference to abandonment of service, the issue of the abandonment of service may properly be raised in a complaint questioning the adequacy and reasonableness of the authority's service as outlined in the Act.

It is clear that the authority is not relieved of its obligation to provide service to these consumers simply because the private line to which they are connected is no longer used to serve the owner of the line. As the court below found, when the authority acquired, in

[ 193 Pa. Super. Page 280]

April, 1956, the franchises, equipment, and other assets of the private water company, it assumed all the contracts and obligations to supply water to consumers in the area served by the predecessor company. That obligation did not cease merely because the school district no longer desired water service at the Youngstown School. The private line of the school district, while remaining its private property and not the property of the predecessor water company or the authority, was and is nevertheless a facility of the water company and the authority in so far as the consumers who have been permitted to obtain water from this line are concerned. Overlook Development Company v. Public Service Commission, 101 Pa. Superior Ct. 217, 224. The obligation of the authority to continue rendering service to the consumers on this line does not depend upon the authority's ownership of the line, but does arise from the obligation of the predecessor water company acquired by the authority and from the fact that, as to these consumers, the private line is a facility of the authority. The court below properly concluded that the private ownership of the line is not, in itself, an excuse for the cessation of providing adequate service so long as the line remains available for use by the authority in furnishing service to these consumers. As we have indicated, the school district has filed a consent of record permitting the use of this line not only by these consumers but by the general public as well. See Overlook Development Company v. Public Service Commission, supra, 101 Pa. Superior Ct. 217, 225.

The exonerative language in the service applications made by the consumers to the predecessor utility cannot be held to mean that the predecessor utility could have discontinued the service then, or that the authority may discontinue the service now, in its sole discretion. The abandonment of service may not depend

[ 193 Pa. Super. Page 281]

    solely upon private agreements. See Wattsburg Telephone Cooperative Association v. Pennsylvania Public Utility Commission, 182 Pa. Superior Ct. 594, 600, 128 A.2d 160.

Since the abandonment of service cannot be justified solely on the basis of the private nature of the line, we turn now to a review of the court's determination that on the facts of the case the cessation of service would deprive the consumer of adequate and reasonable service contrary to the provisions of the statute.

The decree enjoined the authority from discontinuing the existing service to the plaintiff consumers, but it did not require the authority to acquire ownership of the school district line.

The net effect of the court's decision was to require the authority to continue rendering the same service as it had rendered in the past with the sole exception that the line losses, determined upon the present state of the record to be de minimis or not so substantial as to warrant abandonment of service, shall be absorbed by the authority rather than the school district, at least until actual experience proved the loss was significant. In this regard, it was ordered that the school district master meter be retained in order that the actual amount of line loss could be determined. The court retained jurisdiction of the case for ...


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