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PHILADELPHIA SUBURBAN WATER COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (05/24/67)

decided: May 24, 1967.

PHILADELPHIA SUBURBAN WATER COMPANY
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLANT



Appeal from order of Superior Court, March T., 1966, No. 131, reversing and modifying order of Pennsylvania Public Utility Commission, No. 91503, in case of Philadelphia Suburban Water Company v. Pennsylvania Public Utility Commission and Dublin Water Company.

COUNSEL

Miles Warner, Special Counsel, with him Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellant.

James E. Riely, with him Milton Berger, and Stassen and Kephart, for appellant.

Robert H. Young, with him Norman T. Hayes, Jr., and Morgan, Lewis & Bockius, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 425 Pa. Page 503]

This litigation is the latest episode in a long standing controversy between Philadelphia Suburban Water Company and Dublin Water Company over rights to provide water service in Upper Dublin Township.*fn1 Philadelphia Suburban Water Company [hereinafter Suburban] is a large, long established public utility through whose facilities water service is provided to roughly 200,000 customers in a 300 square mile area on the periphery of the City of Philadelphia. By virtue of "grandfather" rights acquired prior to formation of the Public Utility and Public Service Commissions, Suburban is entitled to provide water service in portions of Upper Dublin Township which have not been certificated to others by the commission.*fn2 In fact, however, Suburban's service facilities have been mainly confined to the eastern portion of the township. This is because of the certification of the southwestern and south-central portion of the township to companies not here involved and because of the relatively undeveloped character of the northwestern and north-central portions of the township.

Dublin Water Company [hereinafter Dublin] is a small company formed in 1958 to provide water service in a small area in the northwestern portion of the township. Since 1958, Dublin has filed a series of applications with the commission to obtain service rights throughout large portions of the northwestern and

[ 425 Pa. Page 504]

    north-central portions of the township. Dublin's efforts at certification to small areas immediately adjacent to its original franchise have not generally been opposed by Suburban and have been successful. On the other hand, Dublin's efforts to obtain certification to larger areas especially in the central and north-central portions of the township have been contested by Suburban and have heretofore been unsuccessful. It is important to note that one of the commission's reasons for rejecting Dublin's prior applications in these larger areas has been Dublin's failure to show a need sufficiently sizeable and definite to warrant the finding of public interest requisite to granting Dublin a certificate. Similarly, it should be borne in mind that these rejections were not intended forever to bar Dublin from the areas sought. As the commission said in its order of June 1, 1964, denying Dublin's last application before the instant one, the rejection was "without prejudice to the filing by Dublin Water Company of applications seeking specific additional service areas, provided that such applications are supported by definite commitments for service extension and definite showings of public necessity."

The instant litigation arises out of Dublin's application to provide service in two small tracts in the central portion of the township. The first of these tracts, containing about 125 acres and known as the Boyce tract, borders the southeastern corner of an area already certificated to Dublin. The second tract, containing about 78 acres and known as the Wentz tract, is located about 400 feet southeast of the southeastern corner of the Boyce tract. The strip of land separating the Boyce and Wentz tracts, as well as several hundred acres of the township to the west of the tracts have no public water service and have not been certificated to any water company. These areas are, of course, within the area subject to Suburban's "grandfather"

[ 425 Pa. Page 505]

    rights. Similarly, the Boyce and Wentz tracts are, until certification is final, ...


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