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DUNK ET UX. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. SMITH ET UX. (04/23/69)

decided: April 23, 1969.

DUNK ET UX., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION. SMITH ET UX., APPELLANTS, V. PENNSYLVANIA PUBLIC UTILITY COMMISSION



Appeal from order of Superior Court, March T., 1967, No. 21, affirming order of Pennsylvania Public Utility Commission, No. 92171, in case of Charles S. Dunk et ux. v. Pennsylvania Public Utility Commission et al.; and appeals, No. 92, May T., 1967, from decree of Court of Common Pleas of Dauphin County, No. 2721 Equity, and No. 330 Commonwealth Docket, 1965, in case of J. Willison Smith, Jr. et ux. v. Pennsylvania Public Utility Commission et al.

COUNSEL

David Berger, with him Norman C. Henss, Harold Greenberg, and Cohen, Shapiro, Berger, Polisher and Cohen, for appellants (Dunk).

Bayard M. Graf, with him Christian V. Graf, for appellants.

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

Charles E. Thomas, with him Jack F. Aschinger, Donald Blanken, Samuel Graff Miller, Vincent P. McDevitt, and Metzger, Hafer, Keefer, Thomas and Wood, for Philadelphia Electric Company, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents.

Author: Roberts

[ 434 Pa. Page 43]

These two cases have taken different routes and stopped at different stations, but both have now come to the same resting place, presenting the same issues. Dunk, No. 1 May Term 1969, is an appeal from an order of the Superior Court, 210 Pa. Superior Ct. 183, 232 A.2d 231 (1967); Smith, No. 92 May Term 1967, is an appeal from the decree of the Court of Common Pleas of Dauphin County, 85 Dauph. 106 (1966). In both cases, appellants challenge the authority of the Pennsylvania Public Utility Commission to approve the Philadelphia Electric Company's request to allow condemnation of a right of way for the construction and operation as part of the "Keystone Project" of a power line which will run in Pennsylvania from Peach Bottom, York County, to a substation known as Whitpain in Montgomery County. Appellants are property

[ 434 Pa. Page 44]

    owners along the proposed right-of-way. Smith has reached us by certification from the Superior Court; subsequently we granted allocatur in Dunk. We combined the cases for argument, and in this opinion we affirm the dispositions of the courts below.

Appellants first maintain that exclusive jurisdiction over the matter here in issue -- the right to condemn land for the construction and operation of this high-voltage line -- is vested exclusively in the Federal Power Commission under the Federal Power Act, 16 U.S.C.A. § 791 et seq. Section 824(a) notes that "the business of transmitting and selling electric energy . . . is affected with a public interest," but states also that federal regulation extends "only to those matters which are not subject to regulation by the States." Section 824(b), the section most heavily relied on by appellants, provides that the FPC "shall have jurisdiction over all facilities for such transmission or sale of electric energy [in interstate commerce] . . . ." Appellants argue that the power line involved in this case is a facility used in interstate commerce, and thus falls within the FPC's jurisdiction. We need not determine whether this line, which will run solely within Pennsylvania, but which arguably will be part of or an offshoot of an interstate network, is in interstate commerce within § 824(b), because we agree with the courts below that in this situation, the FPC does not have jurisdiction over the construction of new facilities.

The Federal Power Commission Act aimed primarily at federal regulation of the interstate sale of electric energy. Connecticut Light and Power Co. v. FPC, 324 U.S. 515, 524, 65 S. Ct. 749, 753 (1945). Jersey Central Power and Light Co. v. FPC, 319 U.S. 61, 67, 63 S. Ct. 953, 956 (1943). Nowhere in the Act is there any indication that the ...


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