May 22, 1961
LANSDALE BOROUGH, APPELLANT,
PHILADELPHIA ELECTRIC COMPANY.
Appeal, No. 204, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, June T., 1960, No. 326, in case of Borough of Lansdale v. Philadelphia Electric Co. et al. Order affirmed.
Aaron S. Swartz, 3rd, with him High, Swartz, Roberts & Seidel, for appellant.
Harold E. Kohn, with him Samuel G. Miller, Robert P. Garbarino, Bruce W. Kauffman, Vincent P. McDevitt, and Dilworth, Paxson, Kalish, Kohn & Dilks, for appellee.
Vincent Butler, with him Austin Gavin, and Edward H. Feege, for appellee.
Northcutt Ely, General Counsel, and Ely, Duncan and Bennett, of the Washington, D.C. Bar, for amicus curiae.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 403 Pa. Page 649]
OPINION BY MR. JUSTICE COHEN.
The Borough of Lansdale, appellant, sought a declaratory judgment in the court below to assert its exclusive right under the authority of The Borough Code,*fn1 to sell electricity in an area recently annexed by the Borough but presently serviced by the Philadelphia Electric Company (Company), appellee.
The lower court dismissed the petition on the grounds that jurisdiction of the subject matter is vested solely in the Pennsylvania Public Utility Commission, and the Borough appealed.
It is unquestioned that the Public Utility Law gives the Pennsylvania Public Utility Commission (PUC) exclusive and comprehensive regulatory jurisdiction over appellee's activities.*fn2 On the other hand it is readily acknowledged that a borough, to the exclusion of the PUC, has jurisdiction over its own electric service when confined within the borough's boundaries. In fact, the Borough Code prohibits the introduction of electric current into the Borough without the consent of the Borough authorities.*fn3 The PUC, however, has jurisdiction over any portion of the Borough's service which extends beyond the limits of the Borough.*fn4
The problem here is to determine whether a utility which has been granted a certificate of public convenience by the PUC for the rendition of electricity in an area may, without prior approval of the PUC, be required by decree of the court of common pleas to abandon or surrender that service because the area was recently annexed by a borough.
[ 403 Pa. Page 650]
Although we still possess the right of judicial scrutiny over the acts of the PUC,*fn5 no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC - not in the courts. It has been so held involving rates,*fn6 service,*fn7 rules of service,*fn8 extension and expansion,*fn9 hazard to public safety due to use of utility facilities,*fn10 installation of utility facilities,*fn11 location of utility facilities,*fn12
[ 403 Pa. Page 651]
obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property*fn13 and rights to serve particular territory.*fn14
The Public Utility Law requires a certificate of public convenience to be obtained before any public utility can dissolve, abandon, surrender, in whole or in part, any service, or transfer by any method whatsoever any tangible or intangible property used in the public service.*fn15 Nevertheless, the Borough desires a court to initially determine whether the appellee must dissolve, abandon, sell, transfer or discontinue its already obtained franchise privilege to render service in this newly annexed area. Our courts do not possess the jurisdiction to make such a determination.
Although the Borough is armed with the provisions of The Borough Code,*fn16 it can only effectuate its purpose by initially proceeding before the PUC. The Public Utility Law contemplates such procedures by providing that: "The commission, or any person, corporation
[ 403 Pa. Page 652]
or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission...." (Emphasis supplied)*fn17 Initial jurisdiction over the instant controversy is vested in the PUC and the available administrative remedies must be resorted to before the courts can exercise their power of review.