decided: April 14, 1971.
MALCOLM P. AND MARJORIE SIMS CROOKS
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND PHILADELPHIA ELECTRIC COMPANY, INTERVENING APPELLEE
Direct appeal from the order of the Pennsylvania Public Utility Commission, Docket No. 95154, dismissing appellant's petition to reopen proceedings and rescind a prior order of the Commission. Appellees moved to quash the appeal.
Robert J. Sugarman, with him Bernard A. Ryan, Jr., and Dechert, Price & Rhoades, for appellant.
Anthony L. Marino, Assistant Counsel, with him Edward Munce, Acting Counsel, for Commission, appellee.
Leonard Barrack, with him Harold E. Kohn, for intervening appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Wilkinson.
[ 1 Pa. Commw. Page 584]
This case comes before this Court by way of appeal from an order of the Pennsylvania Public Utility Commission refusing to reopen hearings on Commission order A95154. The precise procedural question is raised by appellee's motion to quash the appeal. The issue which the Court must decide is whether an appeal lies from the Commission's refusal to reopen a matter under Section 1007 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, Art. X, § 1007, 66 P.S. 1397. We hold that the appeal does lie.
Philadelphia Electric Company, on March 3, 1969, filed application to obtain a certificate of convenience and necessity to acquire right of way over a portion of land owned by Malcolm and Marjorie Sims Crooks in Solebury Township, Bucks County. On May 4, 1970, the Commission issued its order granting the certificate for the purpose of constructing an electric power transmission line. This was based, inter alia, on testimony of Philadelphia Electric Company that "it is not practicable to route the proposed line to avoid the Crooks' property".
A letter dated June 30, 1970, from Walter Hickel, Secretary of the Interior, to George Bloom, Chairman of the Commission, indicated that the United States government was interested in preserving Honey Hollow Watershed National Historic Landmark. The Crooks' property is located in the watershed. In response to Secretary Hickel's letter, a vice- president of the Philadelphia Electric Company, H. T. Bryans, in correspondence dated July 8, 1970, said that the company was acquiring an alternate route which would avoid crossing the watershed. This was diametrically opposite to what the same company's witness had testified at the hearing.
As a result of Bryan's letter, the Crooks filed a petition under Section 1007 of the Public Utility Law to
[ 1 Pa. Commw. Page 585]
the Commission on July 16, 1970, to reopen the proceedings docketed at A95154 and rescind the certificate. Their petition was dismissed on August 24, 1970, although no notification was sent to the Crooks' counsel until September 16, 1970. The Commission based its dismissal on lack of timeliness. On October 14, 1970, the Crooks appealed the August 24 order to dismiss to this Court.
Section 1101 of the Public Utility Law reads as follows: "(a) Within thirty days after the service of any order by the commission, unless an application for a rehearing may be pending, and then within thirty days after the service of the order refusing such application, or the service of an order modifying, amending, rescinding, or affirming the original order, any party to the proceedings affected thereby may appeal therefrom to the Superior Court. . . ." (Act of May 28, 1937, P.L. 1053, Art. XI, § 1101, 66 P.S. 1431(a).)
Appellees argued that the subordinate clause in this section relates only to pending petitions for rehearing filed under Public Utility Law, Section 1006, as was held in the case of Beaver Valley Water Co. v. Pennsylvania Public Utility Commission, 140 Pa. Super. 297, 14 A.2d 205 (1940). Eliminating the subordinate clause from "unless" to "original order", the section reads: "(a) Within thirty days after the service of any order by the commission, . . . any party to the proceedings affected thereby may appeal therefrom . . ." (Act of May 28, 1937, P.L. 1053, Art. XI, § 1101, 66 P.S. 1431(a).)
Both the Commission and the intervening appellee, Philadelphia Electric Company, cite Beaver Valley and Department of Highways v. Pennsylvania Public Utility Commission, 197 Pa. Super. 350, 178 A.2d 820 (1962), in support of their proposition that Section 1007 cannot be used to circumvent Section 1006. In
[ 1 Pa. Commw. Page 586]
Department of Highways petitioned for rehearing under Section 1006. This was denied by an order received July 17, 1958. The Department appealed on August 18, 1958, just beyond the 30-day time limit. The appeal was quashed by the Superior Court by opinion dated March 18, 1959, and reported in 189 Pa. Super. 111, 149 A.2d 552 (1959). The Department's petition for allocatur was refused by the Supreme Court of Pennsylvania on June 18, 1959. On August 12, 1959, the Department filed a petition under the provisions of Section 1007. The petition reiterated certain averments contained in its previous petition set forth under Section 1006 and had some additional allegations "purportedly" constituting new facts and changed conditions. The contents of this petition are described in detail in the court's opinion. The Commission ordered the matter set down for hearings which were held on April 11 and July 19, 1960. Following the hearings, the Commission entered its order on February 20, 1961, denying the Department's petition and refusing to reopen, amend or alter its order of April 21, 1958. The Department of Highways then appealed this order refusing its petition under Section 1007. The Superior Court did not quash the appeal but rather considered it on its own merits and affirmed the order of the Public Utility Commission on the merits. There could not be a clearer holding that the denial of a petition properly under Section 1007 is appealable.
Since all parties agree that the petition was under Section 1007, under the decision of the Department of Highways case above, this appeal having been filed within 30 days of the service of the order, is timely.
Motion to quash the appeal is dismissed.
Motion to quash dismissed.
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