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CLEMMER ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (03/24/66)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 24, 1966.

CLEMMER ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION

Appeals from orders of Pennsylvania Public Utility Commission, Nos. A. 91893, A. 91892, A. 91954, A. 92111, A. 91891, A. 91894, A. 92048, A. 92049, A. 92169, A. 92166, and A. 92167, in cases of Richard I. Clemmer et al. v. Pennsylvania Public Utility Commission et al.; Otis A. Astle et al. v. Same; A. Lewis Trego et ux. v. Same; Sterling O. Warner et ux. v. Same; County of Chester et al. v. Same; Howard S. Rue, Jr. et ux. v. Same; W. H. Dunwoody Zook et ux. v. Same; John S. Kean et ux. v. Same; Samuel W. Morris et al. v. Same; William H. Brower et ux. v. Same.

COUNSEL

Fred T. Cadmus, III, for appellants.

Theodore O. Rogers, for County of Chester, intervenor-appellant.

Anthony L. Marino, Assistant Counsel, with him Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Samuel Graff Miller, with him Donald Blanken, Edwin W. Scott and Vincent P. McDevitt, for intervenor-appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 207 Pa. Super. Page 390]

These appeals are from orders of the Pennsylvania Public Utility Commission (Commission) granting to the Philadelphia Electric Company (Company) certificates of public convenience to permit condemnation of

[ 207 Pa. Super. Page 391]

    easements over lands in Chester County, Pennsylvania. The orders are based on applications filed by the Company for authority to erect a 500 KV aerial power line from Peach Bottom, located on the Susquehanna River in York County, to Whitpain, Montgomery County, by a route through Chester County. The project is part of a power grid arrangement involving other electric companies in Pennsylvania, New Jersey and Maryland.*fn1

The Company owns another three hundred fifteen (315) foot right of way through Chester County known as Conowingo Right of Way, which appellants contend is adequate for the purposes for which the Company alleges it needs the new right of way.

The instant appeals involve approximately three and six tenth miles of a total of 45 miles more or less of necessary easements within Chester County. The entire length of the proposed 500 KV line through Chester, Montgomery, York and Lancaster Counties is 83 miles. The easement rights over 82.8 per cent of the properties along this proposed 83 mile line have already been acquired by the Company.

[ 207 Pa. Super. Page 392]

The properties involved in these appeals are those of Richard I. Clemmer et ux. (No. 63), Otis A. Astle et ux. (No. 64), A. Lewis Trego et ux. (No. 66), Sterling O. Warner et ux. (No. 67), Howard S. Rue et ux. (No. 79), W. H. Dunwoody Zook et ux. (No. 81), John S. Kean et ux. (No. 84), Samuel W. Morris et ux. (No. 85), and William H. Brower et ux. (No. 89).

The County of Chester has been granted permission to intervene as an appellant in the cases of Clemmer (No. 63), Astle (No. 64), and Morris (No. 85), and has also filed separate appeals from the orders affecting Clemmer and Astle, its Clemmer case appeal being No. 71 and the Astle No. 70. In two other cases affecting properties of Nathan M. Clark and the Janaline Realty Company in which the county had intervened in the proceedings before the Commission, as it had done also in Clemmer and Astle, the county took appeals at Nos. 69 and 72, although the property owners Clark and Janaline did not appeal. We have refused a motion of the Company to dismiss the separate appeals by the county and shall consider them as part of this consolidated appeal since the issues are common to all cases and the parties have stipulated that all appeals shall be disposed of in accordance with our disposition of Appeals Nos. 63, 64, 70 and 71. The Company is an intervening appellee in all cases.

The basic issue is whether the record contains sufficient evidence to support the Commission's finding that the service proposed to be furnished by the Company through the proposed facilities is necessary or proper for the service, accommodation, convenience or safety of the public; and in making such finding, whether the Commission unreasonably disregarded the rights of appellant landowners or the County of Chester.

Aside from the contention that the present existing Conowingo easement is adequate to accommodate the

[ 207 Pa. Super. Page 393]

    new 500 KV line, the county also complains that the certificate granted an easement of greater width than is required by the Company's present needs for the proposed new line. The appellants also argue that the Commission failed to take into consideration aesthetic factors and the inconvenience the county will suffer by the disruption of existing and planned public facilities, i.e., a planned 700 acre park, planned flood control and water conservation facilities.

They also contend that the Commission made no findings of fact to support its orders. This last contention is without merit. Although the various orders of the Commission do not set forth its findings seriatim, each one does contain the necessary supporting findings made by the Commission. In each order it is expressly stated that, "Upon full consideration of all matters of record, the Commission finds that the service to be furnished by Philadelphia Electric Company through its proposed exercise of the power of eminent domain, under the provisions of the Act of Assembly, approved May 21, 1921, P. L. 1057, 15 P.S. 1182, is necessary or proper for the service, accommodation, convenience, or safety of the public, and that a certificate to that effect should issue . . ." Furthermore, Section 1005 of the Public Utility Law, the Act of May 28, 1937, P. L. 1053, 66 P.S. § 1395, providing that orders of the Commission must be supported by sufficient findings, is in reality for the benefit of the reviewing court and any complaint as to noncompliance should come from it. Department of Highways v. Pennsylvania Public Utility Commission, 189 Pa. Superior Ct. 111, 149 A.2d 552 (1959).

The authority of this Court to overrule an order of the Commission is limited. We may not disturb such an order except for errors of law, lack of evidence to support a finding, determination or order of the Commission, or violation of constitutional rights, Section

[ 207 Pa. Super. Page 3941107]

of the Public Utility Law, 66 P.S. § 1437; Pennsylvania Railroad Company v. Pennsylvania Public Utility Commission, 202 Pa. Superior Ct. 114, 195 A.2d 162 (1963); and we may not exercise our independent judgment on the record or resolve conflicting evidence. Gradison Auto Bus Company, Inc. v. Pennsylvania Public Utility Commission, 199 Pa. Superior Ct. 303, 184 A.2d 334 (1962); Pittsburgh Railways Company v. Pennsylvania Public Utility Commission, 198 Pa. Superior Ct. 415, 182 A.2d 80 (1962).

Our review of this record compels us to affirm the orders of the Commission since they are supported by sufficient competent evidence and we find no error of law or violation of any constitutional rights of the several parties.*fn1a

The need for the new 500 KV transmission line being conceded, the issue is limited to that relating to the route it should follow. The old Conowingo Right of Way is already occupied by two 230 KV lines and there is evidence to establish that a third line of similar capacity will be needed within a reasonably short time. In addition, for a distance of approximately two-and-one-half miles at the northeasterly end of this easement, within Chester County adjacent to Plymouth Meeting substation, it is fully occupied by lines and ground installations for the transmission of electrical energy. This condition would necessitate by-passing this area and the condemnation of additional land or easements to accommodate a new line if the Conowingo

[ 207 Pa. Super. Page 395]

    easement were to be utilized for the new 500 KV line.

It is the contention of the appellants supported by their expert witness, Mr. Alexander Lurkis, that the Conowingo easement is adequate and may be utilized in several ways to accommodate the new line. This expert says these several alternatives are more economical than the plan proposed by the Company. The alternatives suggested by Mr. Lurkis are briefly described as follows:

(a) Raise the voltage of the two existing 230 KV lines and substitute towers that carry two circuits rather than one.

(b) Install a 500 KV tower between the two 230 KV towers now erected thereon and place the 500 KV line at a higher elevation sufficient to give a 40 foot clearance between the 500 KV line and the two 230 KV lines. Recognizing the problem existing near Plymouth Meeting substation in the use of this alternative he recommends the acquisition of a new right of way between the Conowingo easement and the railroad which runs parallel to it at this point, as a by-pass.

(c) Permit one 230 KV tower to remain temporarily while rebuilding the other 230 KV tower to accommodate two vertical configurations of conductors to carry two 230 KV lines. After both are established then remove the 230 KV line on the other tower and replace it with the new 500 KV line, by-passing Plymouth Meeting substation in the same manner as suggested in (b).

(d) This suggestion is similar to (c), except instead of running a vertical configuration of conductors, run a series of conductors on a parallel. This would avoid a common objection to the vertical configuration which is frequently made because of the risk of the higher line falling and by striking the lower line knocking out both circuits.

[ 207 Pa. Super. Page 396]

(e) Construct part of the 230 KV line underground for 25 miles from a point south of Allentown to Whitpain and utilize the space on the Conowingo easement vacated by that part of the 230 KV line for the construction of the 500 KV line.

Numerous reasons were stated by Mr. Shew, the Company's chief electrical engineer, for rejecting the above suggestions made by Mr. Lurkis. Mr. Shew testified that the 230 KV tower could not be relocated economically, and if relocated would result in the lines being out of service for a long time during which many communities would be greatly inconvenienced; that it would take from ten to twelve months to replace an existing line with a twin circuit line; that two alternate supply lines on the same tower is an unacceptable operating condition resulting in poor reliability; that the Keystone project would be delayed two years if these suggestions were adopted, resulting in a deficiency of service to the entire Pennsylvania, New Jersey and Maryland interconnection for an extended period of time; that any available space on the Conowingo easement was inadequate for a 500 KV line and furthermore, the space was required for another 230 KV line to be constructed in the near future; that there is no practical way to construct a 500 KV line across or around Plymouth Meeting substation property; and finally, that an independent route for the new 500 KV line is required for reliability reasons.

There is a great deal of engineering detail in this record in support of each contention and to depreciate the opinion of each expert. However, as previously stated, the credibility of the witnesses and the weight of the testimony is for the Commission, which we believe is well qualified by years of experience in this field to determine the true facts and arrive at the proper conclusion. As we view the record in the light of other obvious facts within our personal knowledge,

[ 207 Pa. Super. Page 397]

    such as the continuous expansion of our economy, the explosion in our population, and the possible failure of power with the disastrous results that it produces, as recently suffered by northeastern United States, we are not prepared to say that the Commission erred in concluding that an independent route was necessary for the new 500 KV line, rather than the utilization of the old Conowingo route.

No other route except the Conowingo one having been suggested by appellants, we need direct our attention only to the new route proposed by the Company after many months of study. At the outset it is noted that whenever it was possible to use an existing easement a new one was not requested, i.e., from Peach Bottom to Nottingham substation through Lancaster and part of Chester County an existing right of way was used. It is also noted that the terminals of the new line had been fixed at (1) a point in the territorial boundary line between Lower Chanceford and Chanceford Townships in York County, Pennsylvania, where the Company's portion of the line would meet that of the Metropolitan Edison Company; (2) the Peach Bottom plant site in Peach Bottom Township, York County, Pennsylvania; and (3) the Whitpain substation in Whitpain Township, Montgomery County, Pennsylvania.

The individual appellant's objections to the new route are common objections in cases of this nature, i.e., (a) the landscape is changed and woodland is destroyed; (b) the location causes unreasonable damage to property rights. As to objection (a) there is nothing in the record indicating this change is greater or more damaging in Chester County than generally occurs elsewhere. As to (b), the record shows that the new easement is located in the rear of appellants' buildings and a considerable distance therefrom. We note that their briefs omit reference to any objection

[ 207 Pa. Super. Page 398]

    to the route for reasons concerning the particular property of any one of the individual appellants, except as to the width of the easement which is said to be excessively wide, 300 feet rather than 200 feet.

It is the County of Chester that advances the more serious arguments. We have given our answer to its objection for aesthetic reasons. Its second objection relates to the possible lost revenue from taxes. This is a debatable objection and this record falls short of convincing us that such a result will follow. However, if it does, the fact that a political subdivision is deprived of possible tax revenue has never been considered controlling in eminent domain proceedings. Willits v. Pennsylvania Public Utility Commission, 183 Pa. Superior Ct. 62, 128 A.2d 105 (1956), cert. denied, 355 U.S. 11, 78 S. Ct. 14, 2 L. Ed. 2d 20.

The county also objects because of the possible effect the new line will have on its plans for a 700 acre park and a lake or reservoir for flood control and water conservation, neither project having been started. We are not convinced, nor was the Commission, that either the construction of the overhead lines or the towers will cause undue inconvenience or interference with the county's plans. It would be to the advantage of the Company as well as the county for such construction to be planned in a manner to cause the least interference with the aforesaid plans of the county. In what manner the line should be constructed in this area, overhead or underground as suggested for the Conowingo easement by-pass, is a matter for future study and decision.

The fact that these overhead lines and towers are to be constructed within one-and-six-tenths miles from the county airport, possibly two miles from the runway, and approximately the same distance from the airport beacon, gives us some concern since this is an airport used by small aircraft whose operators are not

[ 207 Pa. Super. Page 399]

    all of the utmost experience. However, safety requirements will have to be met by the Company in the erection of its lines and we believe that the Commission also properly left this feature of the case for future consideration.*fn2

This brings us to appellants' final objection relating to the excessive width of the easement. There is testimony that in the year 1970 another 500 KV line will be required over this easement. The Commission was convinced by the evidence that this was true. In cases of this nature a liberal consideration for the future as well as existing necessities is the test. Truitt v. Borough of Ambridge Water Authority, 389 Pa. 429, 133 A.2d 797 (1957); Pittsburgh, Ft. Wayne & Chicago Ry. v. Peet, 152 Pa. 488, 25 A. 612 (1893); Appeal of Pittsburgh Junction R. Co., 122 Pa. 511, 6 A. 564 (1886). In view of the law, the record, and our own observations previously stated, we cannot declare the Commission in error for approving the easement at the full width of 300 feet. The argument advanced by appellants to the effect that the Company can secure the easement at a lower value at this time than it may be able to do so later has no substantial merit. The future worth of its present payment of damages for the additional width should also be greater at a later date if properly invested.

Our final conclusion is that the Commission did not abuse its discretion in granting the Philadelphia Electric Company the easement rights hereinbefore discussed. Its orders are supported by the record and are

[ 207 Pa. Super. Page 400]

    not in violation of the law or any constitutional rights of the appellants.

All orders affirmed.

Disposition

Orders affirmed.


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