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AKRON BOROUGH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (10/09/70)

decided: October 9, 1970.

AKRON BOROUGH
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLANT



Appeal from order of Court of Common Pleas of Dauphin County, No. 2823 Equity Docket, No. 367 Commonwealth Docket, 1967, in case of Borough of Akron v. Pennsylvania Public Utility Commission.

COUNSEL

Ronald Ziegler, Assistant Counsel, with him Edward Munce, Assistant Counsel, and Paul Silverstein, Counsel, for Pennsylvania Public Utility Commission, appellant.

W. Russel Hoerner, with him Kenelm L. Shirk, Jr., and Shearer, Mette & Hoerner, and Shirk & Reist, for borough, appellee.

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

Author: Cohen

[ 441 Pa. Page 11]

This is an appeal from an order of the Court of Common Pleas of Dauphin County dismissing preliminary objections of the Public Utility Commission to a complaint in equity. The PUC states it is bringing this appeal under the Act of March 5, 1925, P. L. 23 § 1, 12 P.S. § 672, since the jurisdiction of the subject matter of this action lies exclusively in it.

In January, 1958, the Borough of Akron, appellee, filed an application with appellant seeking a certificate of public convenience which would authorize it to furnish water service to the public within a designated portion of West Earl Township, Lancaster County, adjacent to its corporate limits. Under section 2407 of The Borough Code, Act of February 1, 1966, P. L. (1965) 1656, 53 P.S. § 47407, a borough which is maintaining waterworks has the authority to supply water outside its geographic limits. The PUC granted the certificate and so gave appellee the privilege of furnishing water service within a certain designated area of West Earl Township.

On May 4, 1967, Mahlon Zimmerman filed a complaint with the PUC asking that it compel appellee to furnish water service to a tract of land owned by him and located in West Earl Township but not within the area for which appellee had been certificated. On May 30, 1967, appellee filed with the Commission a motion to dismiss based on the theory that the Commission lacked jurisdiction and power to require it to extend its service area against its will beyond the area described in the certificate. The Commission denied that motion and set a hearing for August 30, 1967.

On August 21, 1967, the Borough of Akron filed an action in equity in the Court of Common Pleas of Dauphin County seeking to enjoin the Commission from holding any proceedings on the Zimmerman complaint or granting the relief requested. This action was filed

[ 441 Pa. Page 12]

    pursuant to section 1111 of the Public Utility Code, Act of May 28, 1937, P. L. 1053, art. XI, 66 P.S. § 1441, which states: "No injunction shall issue modifying, suspending, staying, or annuling any order of the commission, or of a commissioner, except in a proceeding questioning the jurisdiction of the commission, and then only after cause shown upon a hearing."*fn1 The complaint stated that the PUC was without jurisdiction, power or authority to grant the relief requested by Zimmerman. The Commission filed preliminary objections to the complaint which stated, inter alia, that it had the exclusive jurisdiction to decide whether or not to compel appellee to extend its service. The court below dismissed those preliminary objections, and it is from that order that this appeal is taken.*fn2

We initially note that we have jurisdiction to entertain this appeal under the Act of 1925, 12 P.S. § 672, because the question involved is whether the court below had jurisdiction over the cause of action. It must be remembered that this is not a situation such as a challenge to the validity of a taxing ordinance in which we must decide whether equity or the administrative framework is the proper forum. This is not a case in which alternative tribunals could grant the same relief. Equity does not have the power to order appellee to extend its services beyond ...


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