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BLYTHE TOWNSHIP MUNICIPAL AUTHORITY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (11/15/62)

THE SUPERIOR COURT OF PENNSYLVANIA


November 15, 1962

BLYTHE TOWNSHIP MUNICIPAL AUTHORITY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.

Appeal, No. 35, March T., 1962, from decree of Court of Common Pleas of Dauphin County, No. 63 Commonwealth Docket 1959, No. 2347 Equity Docket, in the case of Municipal Authority of the Township of Blythe v. Pennsylvania Publid Utility Commission et al. Decree affirmed.

COUNSEL

Donald D. Dolbin, with him Burke, Bowe, Dolbin & Heffner, for appellant.

Edward Munce, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Robert H. Young, with him Anson W. H. Taylor, Jr., and Morgan, Lewis & Bockius, for intervenor-appellee.

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

Author: Rhodes

[ 199 Pa. Super. Page 335]

OPINION BY RHODES, P.J.

This is an appeal by the Municipal Authority of the Township of Blythe, hereinafter referred to as "Blythe,"

[ 199 Pa. Super. Page 336]

    from the dismissal of its complaint in equity by the Court of Common Pleas of Dauphin County. The complaint was filed pursuant to the Act of May 28, 1937, P.L. 1053, Art. XI, ยง 1111, 66 PS 1441, wherein Blythe sought to enjoin the Pennsylvania Public Utility Commission from exercising jurisdiction over rates or charges for water furnished to Blythe from the water system and Tumbling Run Reservoirs of the Borough of Schuylkill Haven, hereinafter referred to as "Borough."

Blythe contends that it is entitled to the water on terms fixed under grant or covenant in a deed from the Borough's predecessor in title, and that it does not come within the jurisdiction of the commission under the tariff for water service filed with the commission by the Borough. The same question as to commission jurisdiction was presented in Blythe Township Municipal Authority v. Pennsylvania Public Utility Commission, 191 Pa. Superior Ct. 542, 159 A.2d 256. The facts forming the basis of the dispute as to commission jurisdiction are not controverted and are set forth in our opinion in that appeal. We there held that Boythe must pursue the statutory remedy by suit in the Court of Common Pleas of Dauphin County to question the jurisdiction of the commission; and we dismissed the appeal. The record in that appeal has been made a part of the record in the present appeal.

On February 4, 1959, Blythe filed the present complaint in equity in the Court of Common Pleas of Dauphin County seeking to enjoin the commission from asserting jurisdiction over the proposed tariff of the Borough. The matter was held in abeyance by the Court of Common Pleas of Dauphin County pending disposition of Blythe's appeal to this Court on the jurisdictional issue.

The Borough was allowed to intervene in the action in the Court of Common Pleas of Dauphin County

[ 199 Pa. Super. Page 337]

    which heard argument by the parties, and, after considering the action on the same record utilized in the prior appeal, the court entered a decree nisi on December 5, 1960, which became final on May 4, 1961, dismissing the complaint after sustaining the jurisdiction of the commission in the matter.

On this appeal Blythe raises the single issue as to whether the commission has jurisdiction. Blythe contends that its right to water from the Tumbling Run Reservoirs is a property right, and that the Borough is not furnishing a service as a public utility at a rate subject to regulation by the commission.

On the record before it the Court of Common Pleas of Dauphin County correctly concluded that the water which Blythe received from the reservoirs under the covenant*fn1 in the deed amounted to the furnishing of a public utility service by the Borough, beyond its corporate limits; that the service and rate of payment were subject to commission jurisdiction and regulation under the Public Utility Law.

Under the Public Utility Law the commission is given jurisdiction over the rates charged by the municipal corporation for service beyond its corporate limit.*fn2

Since the Borough admittedly delivers water to Blythe beyond the Borough's corporate limits, there

[ 199 Pa. Super. Page 338]

    should be no question concerning the commission's jurisdiction. However, Blythe seeks to avoid the effect of this statutory provision by contending that no utility service or rate is involved in its relations with the Borough or that the commission's jurisdiction is divested because the charges for the service involved were initially fixed by a deed covenant. Neither of these arguments has merit.

The Borough clearly supplies a public utility service to Blythe, and its compensation is a rate. The Borough pumps, chlorinates, and transmits all water furnished the expense for the operation and maintenance pays the expense for the operation and maintenance of pumping and transmission facilities. The water from the Tumbling Run Reservoirs is pumped to the Borough's distribution system and then to Blythe, being metered at the Borough's pumping station in North Manheim Township, then piped to Blythe's storage tank in the Borough of St. Clair through a transmission main owned by the Borough. Such activities are unquestionable "service" under the definition of that term set forth in the Public Utility Law.*fn3 Blythe argues that the Borough provided no public service, that Blythe takes the water as property belonging to it under the covenant in the deed, and that the annual fee is paid for pumping only. However, any such payments are still a rate. Under the Public Utility Law, "service" includes pumping, and any charge for pumping water is a "rate."*fn4 A rate is the consideration or

[ 199 Pa. Super. Page 339]

    compensation for the services rendered. Henshaw v. Fayette Gas Company, 105 Pa. Superior Ct. 564, 568, 161 A. 896. It would therefore appear that under any name or form a charge for services is a "rate."

The principal argument of Blythe is that its rate for water furnished from the Tumbling Run Reservoirs to it is set forth in a covenant contained in a deed and that the commission has no jurisdiction to supplant the covenant with any other rate. This argument ignores many Pennsylvania cases holding that the Public Utility Commission has jurisdiction over the price charged for utility services regardless of whether that price has been established by a deed, a contract, ordinance, or otherwise.*fn5 These cases are based upon the proposition that individuals cannot, by contract, abridge the police powers of the Commonwealth which protect the general welfare and the public interest. This proposition is well stated in Leiper v. Baltimore and Philadelphia Railroad Company, 262 Pa. 328, 332, 105 A. 551, 553, wherein the Supreme Court said:

[ 199 Pa. Super. Page 340]

"Where the rights of individuals under a contract which would otherwise be perfectly valid are in conflict with the 'general well-being of the State,' the rights of the individuals must give way to the general welfare. It therefore follows that when, as in this case, the parties enter into a contract with a public service corporation relating to rates, they are presumed to do so with the knowledge that the right of the State to exercise this police power in the future is expressly reserved, and that where the common weal and the interests of the public demand that the provisions of the contract thus entered into shall be modified, it can be done without any violation of the provision of the Constitution of the United States with reference to the impairment of the obligation of contracts."

We have held this principle applicable in cases where the disputed rate is established by a deed covenant running with the land. Dickson v. Drexel, 285 Pa. 419, 424, 425, 132 A. 284; Henshaw v. Fayette Gas Company, supra, 105 Pa. Superior Ct. 564, 567, 568, 161 A. 896; Wayne Sewerage Company v. Fronefield, 76 Pa. Superior Ct. 491, 499.

Therefore, since the Borough is providing service to Blythe beyond the Borough's corporate limits, the charges made by the Borough for such service, whether contained in the Borough's tariff or in the deed contract, are clearly "rates" and within the jurisdiction of the commission.

Disposition

Decree of the court below is affirmed; appellant to pay the costs.


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