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PHOENIXVILLE v. PUBLIC UTILITY COMMISSION (08/05/71)

decided: August 5, 1971.

PHOENIXVILLE
v.
PUBLIC UTILITY COMMISSION, AND PHOENIX PLAZA, INC., INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission, Complaint Docket No. 18751.

COUNSEL

Thomas M. Garrity, with him J. Edmund Mullin and Wisler, Pearlstine, Talone & Gerber, for appellant.

Alan R. Squires, Assistant Counsel, with him Edward Munce, Acting Counsel, for appellee.

Michael L. Temin, with him Wolf, Block, Schorr and Solis-Cohen, for intervenor.

President Judge Bowman, and Judges Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Judge Manderino concurs in result only.

Author: Kramer

[ 3 Pa. Commw. Page 58]

This is an appeal from an Order of the Pennsylvania Public Utility Commission, appellee (Commission), dated September 21, 1970, directing the Borough of Phoenixville, appellant (Phoenixville), to allow Phoenix Plaza, Inc., intervening appellee (Plaza), to install and connect its water and sewage lines to facilities owned and operated by Phoenixville, and thereafter to furnish Plaza and its tenants with water and sewage services. Plaza is the real estate developer of a shopping center in East Pikeland Township. Phoenixville operates water and sewage facilities serving customers*fn1 within its political boundaries, and in several townships outside its political boundaries (Schuylkill, Upper Providence and Charlestown Townships); in addition, while it does provide water service to two "courtesy customers"*fn2 in East Pikeland Township, it serves no sewage customers in that latter township.

The Commission assumed jurisdiction in this matter as a result of a service complaint filed by Plaza on June 25, 1969. Phoenixville and Plaza's predecessors in title (who assigned their right to Plaza) entered into a contract on October 15, 1968, wherein Phoenixville agreed to provide water and sewage service to the predecessors of Plaza (and their "successors and assigns"). The contract required the developer to bear the costs of pipeline and tie-in installations, and to pay the effective rates for the water and sewage services to be provided. On January 16, 1969, after the transfer of title to the realty to Plaza, Phoenixville Borough Council passed a

[ 3 Pa. Commw. Page 59]

    resolution designed to unilaterally rescind the contract and informed Plaza of its action. The service complaint filed before the Commission resulted from this rescission action, and refusal by the Borough to provide its agreed-to service. In its adjudication, the Commission did not rely upon the contract, but, rather based its action on the reasonableness of the request for extension of service. From the order of the Commission to provide such service Phoenixville appealed to this Court.

The precise question presented to this Court in this case is whether the Commission may order a municipality to extend utility service to customers located outside its governmental boundaries, where the municipality, without a certificate of public convenience issued by the Commission, has held itself out to render such service and does render such service to others outside its boundaries. We hold that the Commission has power to render such an order of extension of service so long as there is no abuse of discretion or error of law.

Under Section 2031 (53 P.S. 47031) and Section 2407 (53 P.S. 47407) of the Borough Code, Act of February 1, 1966, P.L. 1656, a borough is authorized to furnish sewer and water utility services to customers "outside the limits of such borough."

So long as a municipality provides utility services inside its boundaries, the Legislature specifically excluded such operations from the jurisdiction of the Commission. See 66 P.S. 1102(9), (15) and (17). However, once the municipality provides utility services outside its boundaries, the jurisdiction of the Commission attaches, and the municipality is in the same position and subject to the same control as a ...


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